Trustees of Boston University v. Commonwealth

Lummus, J. On November 11, 1926, under St. 1926, c. 365, the Commonwealth took thirteen thousand two hundred four square feet of land belonging to the petitioner at the westerly corner of Chilmark Street and Bay State Road in Boston, together with “the area of thatch, flats and land under water appurtenant to said area” in — 61 — the Charles River Basin. Two successive smaller takings of flats only were made later, but these exceptions do not involve them. Three petitions, based on these takings, were tried together. For the first taking, the jury awarded the petitioner $375,045.60. The Commonwealth alleged exceptions. Besides the land taken, the petitioner owned a considerable tract of land west of Chilmark Street, bounded southerly on Commonwealth Avenue and northerly on the land taken; a large tract east of Chilmark Street and extending easterly to Ashby Street, bounded southerly on Commonwealth Avenue and northerly on Bay State Road, except that there was one house lot in other ownership until the petitioner acquired it on August 31, 1928; and a large tract east of Ashby Street and extending easterly to Granby Street, bounded southerly on Commonwealth Avenue and northerly on Bay State Road. Bay State Road skirts the Charles River Basin. All these ways were public ways, and. the fee in them, subject to the public easement, was in the petitioner so far as its land bordered on them. Before the taking, Bay State Road had its western end at Chilmark Street, and none of the ways named, except Commonwealth Avenue, was much travelled. The improvement for which the land was taken made Bay State Road a main thoroughfare. The first exception we consider is to a ruling upon evidence. A witness for the petitioner, testifying as an expert that the value of the entire property at the time of the first taking was $2,117,290, and $1,632,617 afterwards, stated, as one of a number of reasons for his opinion, that the Commonwealth had taken a strip of land not used for Bay State Road, between that road and remaining land of the petitioner, upon which a building might be erected, tending to shut off the light, air and view. There was no error in permitting the witness to state this as one of his reasons. Although the taking was for a'parkway or boulevard, the erection of a building on this strip was a possibility for which no further damages could be láter claimed. Further — 62 — more, a sale of the strip to private persons was possible. G. L. c. 92, § 85. The Commonwealth excepted to the refusal by the judge to instruct the jury in effect that the diminished value of the land of the petitioner east of Chilmark Street could not be considered in assessing damages for the taking of land west of Chilmark Street. There was evidence that the entire property of the petitioner, at the time of the first taking, was adapted for use as the site of a university, for which purpose the jury could find it was held, and was not fit for that use afterwards. There was evidence that for that use, and for use for hospital buildings or apartment houses, for which the land of the petitioner east of Chilmark Street was also adapted, the taking caused injury to that land. In Wellington v. Boston & Maine Railroad, 164 Mass. 380, 381, 382, this court said, “Whether a particular lot of land constitutes an independent parcel is a question which cannot be determined in the affirmative by the mere fact that it is separated from other land by a highway or street, or by paper lines, or by fences; nor can it be determined in the negative by the mere fact that it is all in' one ownership and is not divided by streets or by paper lines.” In that case, however, the absence of evidence that all the land was “used together, or held for sale as one parcel,” caused this court to hold that each division was a separate and distinct parcel. In Lincoln v. Commonwealth, 164 Mass. 368, 379, this court said, “No doubt there are many cases in which the court is able to see, from the way in which they are divided and used, that different parcels of land, even if they adjoin one another, are to be regarded as distinct. . . . But the question is a practical one, and the mere intervention of a way legally established, but not visible on the surface of the ground, is not conclusive. If, as here, the whole estate was practically one, the petitioner is entitled to have the damage to the whole of it considered. As was said by Dixon, C.J., we are to look at the land, and not at the map, to ascertain the plaintiff’s damages.” The former case arose under a statute (Pub. Sts. c. 112, § 95) — 63 — providing for the payment of “all damages occasioned by laying out, making, and maintaining its road, or by taking land or materials therefor”; and the latter case arose under St. 1889, c. 439, § 4, which gave “all damages that shall be sustained ... by reason of such taking.” At that time there was a tendency, shown in the latter case, to hold that such language gives no right to damages unless some land of the petitioner is taken. As to this, compare the later cases of Hyde v. Fall River, 189 Mass. 439, and Howell v. New York, New Haven & Hartford Railroad, 221 Mass. 169. The Wellington and Lincoln cases show that land divided by public ways may be deemed a unit, but they do not fully govern the present case, in which the intervening public ways were actually wrought and travelled. See also Tucker v. Massachusetts Central Railroad, 118 Mass. 546; Providence & Worcester Railroad v. Worcester, 155 Mass. 35, 40. The English cases tend in favor of the petitioner. Holditch v. Canadian Northern Ontario Railway, [1916] 1 A. C. 536, affirming Canadian Northern Ontario Railway v. Holditch, 50 Canada Sup. Ct. 265, arose under a statute which provided for “full compensation ... to all persons interested, for all damage by them sustained by reason of the exercise of such powers.” The Privy Council held that this language did not permit an award of damages for injury to other lands of the petitioner, divided from the lands taken by public ways, unless “the lands taken are so connected with or related to the lands left that the owner of the latter is prejudiced in his ability to use or dispose of them to advantage by reason of the severance” (Horton v. Colwyn Bay & Colwyn Urban District Council, [1908] 1 K. B. 327), but that the question, whether the lands are so connected or related as to constitute a single holding, depends on the circumstances. The same principle was applied in Sisters of Charity of Rockingham v. Rex, [1922] 2 A. C. 315. St. 1926, c. 365, under which the extension of Bay State Road was undertaken, is silent as to the measure of damages. Reference must be had to G. L. c. 92, § 80, and c. 79, § 12. — 64 — The section last cited provides that “in case only part of a parcel of land is taken there shall be included damages for all injury to the part not taken caused by the taking or by the public improvement for which the taking is made.” When that language was first chosen (St. 1918, c. 257, § 187, subsection 12), the Wellington and Lincoln cases were familiar, and the principle, that land divided by public ways may nevertheless be treated as a unit in awarding damages for a severance where part is taken, was well recognized in the law of Massachusetts. Nothing in the statute indicates an intention to negative that principle. The statutory word “parcel,” like'the cognate words “tract” and “lot,” has no invariable meaning. In different connections these words may vary in scope. See Orr v. Fuller, 172 Mass. 597; Scholl v. Fleischer, 251 Mass. 451. Since the evidence justified a finding that all the land of the petitioner in the neighborhood was held as a unit for a single purpose, and that each part was dependent on every other, it could not be ruled as matter of law, as the Commonwealth requested, that it could not be treated as a single parcel in assessing damages. This result accords with many decisions in other States. Essex Storage Electric Co. Inc. v. Victory Lumber Co. 93 Vt. 437, 446, 447. Darlington v. Pennsylvania Railroad, 278 Penn. St. 307. State v. Hoblitt, 87 Mont. 403, 408. Note, 57 L. R. A. 932. The last exception is to “so much . . . [of the charge] as dealt with damages to the remaining land.” The Commonwealth describes this exception as being “in effect to the failure of the court to recognize and state the principle of law that damages are to be paid in a total sum, which shall include the fair market value of the part taken only, plus the diminution in value of the part remaining.” See Vineyard Grove Co. v. Oak Bluffs, 265 Mass. 270, 278; Baker v. Arlington, 271 Mass. 415, 420. It is true, that the principle upon which damages for the injury to the remaining land were to be assessed was not definitely stated. We cannot share, however, the fear of the Commonwealth that the jury awarded the full value of all the property of the petitioner as though all had been taken. The course of the trial, as it — 65 — appears on the record, made clear the contention of the petitioner as to injury to the remaining land. Not unlikely the omission of the judge to state the rule definitely was due to that fact. No request was made at the end of the charge for a statement of the rule upon which damages for the injury to the remaining land were to be assessed. Brick v. Bosworth, 162 Mass. 334, 337, 338. Mahoney v. Gooch, 246 Mass. 567, 571. Commonwealth v. Johnson, 250 Mass. 320, 323, 324. Mahoney v. Boston Elevated Railway, 271 Mass. 274. Hughes v. Whiting, 276 Mass. 76, 79. The exception taken apparently referred vaguely to something said rather than to something left unsaid. To sustain such an exception would not be fair to the judge or to the prevailing party. Doubtless both would have been quite willing to have the rule stated had the omission to state it been pointed out. Anderson v. Beacon Oil Co. 281 Mass. 108. Exceptions overruled.