Munroe v. City of Woburn

De Courcy, J. The petitioner owns a large lot of land on Union and Main streets in Woburn. In December, 1908, an order was duly adopted by the city to take a strip of this lot for the purpose of widening Union Street; but as the land was not entered upon to complete the taking, she became entitled to “indemnity for loss or expense incurred by the proceedings,” by virtue of R. L. c. 48, § 69. The questions raised at the trial involve the construction of this statute. The trial judge ruled- that upon the evidence offered by the petitioner her “loss and expense” must be confined to her loss of time, and the amounts paid to counsel and to real estate men on account of the taking by the city, amounting in all to $250. Her contention is that she was entitled also to recover for the loss of rentals on a proposed building which she contemplated erecting on'the premises and was deterred from erecting by reason of the order of taking; for the loss of opportunity to make sales of the land during the two years after the respondent’s right to take possession accrued (R. L. c. 48, § 92); for money paid to architects for changes in the plans; and for the amount paid by her during the two years for taxes on the whole lot, or at least on the part covered by the taking. The main controversy between the parties relates to the significance and scope of the word “loss” in § 69 of the statute; and that must be ascertained, not by analyzing the comprehensive and different definitions of the word, but by determining the sense in which the Legislature used the word in this particular connection. A brief reference to the history of the statute may aid us in interpreting the legislative intent. See Sears v. Nahant, 215 Mass. 234. Before 1842, when a public way once was established, both the right of the public to a permanent easement and the right of the [120] landowner to damages became vested, and the owner became entitled to his damages although his land never was entered upon and although the way had been discontinued without ever being used by the public. Harrington v. County Commissioners, 22 Pick. 263. Hallock v. Franklin, 2 Met. 558. Presumably it was in consequence of such decisions that the St. of 1842, c. 86, § 1, was passed, by which it was enacted that no person claiming damage should have a right to demand the same until the land had been entered upon and possession taken for the purpose of constructing a highway; and further, that when put to “any trouble and expenses” by the proceedings, he should be allowed full indemnity therefor, although his land might not be entered upon or taken possession of. The history of the subsequent extension of the statute, and of the provision that the layout or alteration should be void as against the owner of the land unless possession should be taken within two years, is traced in Corey v. Wrentham, 164 Mass. 18, 22. The case of Whitney v. Lynn, 122 Mass. 338, arose under Gen. Sts. c. 43, §§ 14, 63, which retained the words “trouble and expense” of the original statute of 1842. Under the charge of the judge of the Superior Court the petitioner was allowed to recover, among other things, for the uncertainty as to whether the land was to be entered upon by the city or not, in which he had been kept during the two years from the taking. In setting aside the verdict this court used the following language: “The word ‘trouble’ in the statute refers to trouble from which some material or pecuniary injury results, involving labor and the expenditure of time, or occasioning inconvenience to the owner in the use and occupation of the land; all of which may be estimated in damages by a standard common to all cases.” While it is true that in R. L. c. 48, § 69, the word “loss” is substituted for “trouble,” which was used in the earlier revisions, it does not appear that the Legislature intended to make any change in the elements of damage from those defined in the Whitney case. In the case at bar the petitioner was allowed compensation for the expenses she incurred and for the time she lost on account of the taking by the city. Her control over and her use and occupation of the land was not interfered with by the city while the proceedings were pending. If there had been buildings thereon she and not the city would have been entitled to the rents. The only [121] compensation ordinarily allowed for the delay in payment until possession is taken by the city and for the trouble occasioned by the incipient appropriation of the land to public use, is that of interest. Edmands v. Boston, 108 Mass. 535, 551. It is not to be assumed that a municipality, in.dealing with one of its own tax payers, will defer the entry and keep the owner in suspense for the full two years unless it honestly intends to take possession of the land and to pay the owner therefor. Nor is it contended here that the city acted otherwise than in good faith and in the exercise of its legal rights. If it had carried out the contemplated street widening, it would have been obliged to pay to the plaintiff only the value of the land taken and the damage to her remaining land consequent on the taking, with interest. The contention that now, although the city has not actually taken her land, it must pay her the speculative profits that she might have derived from a building that she intended to erect thereon, finds no support in the language or the spirit of the statute. The payment of the taxes was rightly borne by her, as she had the exclusive use of the land during the entire period. The expense for plans which would be available only in the event that the city should not complete its taking, does not come within the statute. In this respect the situation of the plaintiff is not unlike that of a gas company after the passage by a municipality of the first vote to acquire its plant. See St. 1891, c. 370, § 12, as amended by St. 1893, c. 454, § 5. Practically the company makes additions at the risk of not being paid for them in the event of a purchase by the city; and it may refrain from making improvements on account of the uncertainty as to final action of the municipality. There are doubtless other instances where the exercise of a public right to take the property of an individual may at times result in delay and uncertainty that are detrimental. But it rests with the Legislature to determine the necessity and provide the remedy for such exceptional instances. Plainly the broad question asked of the petitioner and the expert, as to the loss she sustained by the action of the city council, was incompetent. The only elements of damage that were material were those contemplated by the statute. Exceptions overruled.