Damages, For property taken or impaired under statutory authority. Evidence, Photographs, Remoteness, Of value. Way, Public: laying out.
Upon a petition for the assessment of damages sustained from the laying out as a public highway of a private street adjoining the petitioner's land and changing its grade, it is proper to base the damages upon the assumption that the street will be completed to the grade established by the order for its laying out, and the damages are not to be limited to the effect of the change of grade that exists at the time of the trial after a temporary suspension of the work on the street.
In such a case it is proper for the presiding judge to permit the jury to consider evidence of the cost of raising the petitioner's house and of filling and raising the grade of the petitioner's land or of a part of it, if the jury first find that to raise the house and raise the land is a reasonable, economical, proper and advantageous way of treating the property in the situation that will exist when the street shall have been raised to the grade established by the order.
At the trial of a petition for the assessment of damages sustained from the laying out as a public highway of a private street adjoining the petitioner's land and raising the grade of such street, the presiding judge in his discretion properly may permit the introduction in evidence of a photograph of the land taken about fifteen years before the trial by the petitioner, who had lived on the land off and on for sixteen years and who testified that "no one ever touched the street until the city accepted it."
At the same trial it is proper for the presiding judge to permit the petitioner to testify what he considers was the fair market value of the land immediately before the order for the laying out of the street, such an owner being assumed to have a knowledge of his property adequate to form an intelligent estimate of its value.
De COURCY, J.
The petitioners owned two adjoining forty-five-foot lots on the southerly side of a private way now known as Slade Street in Fall River. The front portion of the westerly lot was practically on a level with the street, but the easterly lot sloped from west to east so that the northeasterly corner was from fifteen to eighteen inches below the surface of the way. Slade Street was laid out as a public way and its grade established by the city of Fall River on June 21, 1911. The city authorities entered upon the land on April 5, 1912, and proceeded to work the street to grade. They ceased work upon it in December, 1912, at which time the surface of the grade had been raised about two feet at the northeast corner of the petitioner's property, where the established grade called for a raise of five and one half feet; and it remained in that condition at the time of the trial. So far as the record discloses, however, no offer was made by the respondent to show that the established grade had been abandoned, or that the suspension of the work of grading was other than temporary. See Como v. Worcester, 177 Mass. 543.
On the facts appearing at the trial the damages to which the petitioners were entitled properly were based on the assumption that the street would be worked to the established grade, and were not limited to the grade as it existed temporarily when work was suspended in December, 1912. Snow v. Provincetown, 109 Mass. 123. Brady v. Fall River, 121 Mass. 262. Subsequent completion of the work of bringing the street to the established grade, if made within a reasonable time, presumably would be part of the original construction, for which the petitioners could recover no additional damages. Geraghty v. Boston, 120 Mass. 416. The respondent's requests for instructions relating to this subject were refused rightly. The eighth and ninth properly could not be given; and the trial judge accurately instructed the jury upon the proper application of the evidence as to the cost of putting the property in the same condition relatively as before, as one of the steps in determining the diminished value of the premises. Buell v. County of Worcester, 119 Mass. 372. In short, the principles of law and rules of evidence applicable to the case were explained to the jury in a charge that was correct, comprehensive and clear.
There were numerous exceptions to the admission and exclusion of evidence. Plainly the photograph was admissible in the discretion of the judge. Everson v. Casualty Co. of America, 208 Mass. 214. We find no error in the admission of the evidence of the petitioner Wooley. Usually the owner is assumed to have a knowledge of his property adequate to form an intelligent estimate of its value. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. Patch v. Boston, 146 Mass. 52, 57. Lincoln v. Commonwealth, 164 Mass. 368, 380. Shea v. Hudson, 165 Mass. 43.
The remaining exceptions have been considered and call for no special mention.
Exceptions overruled.