Bowditch v. City of Boston

Morton, J. We cannot say that the Duff estate was so unlike the estate of the petitioners’ testator that the price paid for it would furnish no criterion as to the value of the latter, and that the ruling admitting it was clearly wrong, as it must appear to have been in order to justify us in holding that the discretion of the presiding judge was improperly exercised. Paine v. Boston, 4 Allen, 168. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. Patch v. Boston, 146 Mass. 52. It does not appear that the introduction of electric cars had affected prices so much, or that the general rise in values had been so great, as to render it misleading as a standard of comparison. The fact that the sale was two and a half years before [111] the taking in question did not of itself render it incompetent. Benham v. Dunbar, 103 Mass. 365. The remaining question relates to the instruction given by the court, that, if the scheme of public improvement existing in April, 1892, did not contemplate the taking of the land of the petitioners’ testator, they would be entitled to recover damages for the enhanced value resulting from such scheme, but that, if it did, they would not; and to the refusal of the court to rule that there was no evidence that the scheme adopted in April, 1892, included or contemplated the taking of the land of the petitioners’ testator. The petitioners do not controvert the correctness of the general rule of law as stated by the court, and it must be regarded as established in this State. Dorgan v. Boston, 12 Allen, 223. Benton v. Brookline, 151 Mass. 250. May v. Boston, 158 Mass. 21. They contend that there was no evidence to warrant its application to the case before the court, and that its only effect was to mislead the jury. Brightman v. Eddy, 97 Mass. 478. It appeared in evidence from the plans, that in 1891 the defendant had acquired for park purposes the estate adjoining that of the petitioners’ testator on the north, and also an estate known as the Frothingham estate, and that in April, 1892, it had taken for park purposes all of the estates surrounding Jamaica Pond except the land of the petitioners’ testator and the two estates immediately adjoining it on the south. It also appeared from the map and plans used at the trial, that there was on one of the estates not taken a large ice-house, or, perhaps more correctly, a block of ice-houses. One of the defendant’s experts, in giving reasons for his opinion that there had been no increase in value by reason of the taking in April, 1892, said that every one knew that the park plans contemplated taking the estate of the petitioners’ testator, and all remaining lands on Jamaica Pond, and that no purchaser would pay an increased price, as he would know that his land would be taken before any work was done to improve the park lands taken in April, 1892. It also appeared that the land of the petitioners’ testator, and we infer the remaining estates, were taken in December, 1892, only some seven or eight months after the taking in April of the same year. We think that upon this evidence it was com [112] petent for the jury to find that the scheme or plan, as it existed in April, 1892, contemplated as a part of it the taking of the land of the petitioners’ testator, and of the remaining estates around the pond, and that the instructions that were given were therefore pertinent. It was open to argument, in the absence of evidence to the contrary, that the park commissioners could hardly have entered upon a scheme for the purpose of improving and beautifying the lands around Jamaica Pond as part of a system of public parks, and at the same time have contemplated leaving in the foreground, from different points of view around the pond, an unsightly block of ice-houses, and that it was more reasonable to infer, from the fact that they had acquired so much land around the pond in April, and that this was taken within so few months after, that the taking of it formed a part of the scheme as it then existed. We think that the exceptions should be overruled, and it is so ordered. Exceptions overruled.