Tufts v. City of Charlestown , 70 Mass. 537 ( 1855 )

Merrick, J.

1. The declarations of Ferrin, which the respondents endeavored to introduce in their cross-examination of San-born were properly rejected by the officer who presided at the trial. They were not made under oath, nor in the course of any legal investigation, nor in the hearing of the party supposed to be affected by them, nor, as far as it appears, upon any occasion when his attention would have been likely to have been attracted to what was said. They can be considered therefore as nothing but mere hearsay; and though offered to be proved by the person by whom they were spoken, were just as inadmissible as if the attempt had been made to give them in evidence through the testimony of another witness.

2. The sum for which Ferrin would be willing to sell his right was properly rejected, as he might have been influenced by considerations entirely distinct from its value.

3. The instructions to the jury, in lieu of those which the presiding officer was requested by the respondents to give them, were appropriate and correct. They fully embraced and explained the principles of law by which the jury, in their determination of the question of damages submitted to them, ought to have been influenced and controlled. The petitioner owned in fee the land over which the respondents had caused a street and public highway to be duly located and established. He had enhanced its value after it came into his possession, by the erection of a bouse upon it, which was thereby annexed to the freehold. But his ownership of the land was subject to the incumbrance of a right of way over that part of it where the house was erected, in behalf of Ferrin and his heirs and assigns. His interest therefore in the estate was to this extent diminished, and his loss, when the land was taken from him, was the sum which should be found to remain after deducting from its value, with all the improvements which had been made upon it, the value of the incumbrance occasioned by the right of way. This was all which he was justly entitled to receive, or which the respondents could equitably be required to pay for it. Under the rule which was laid down in his instructions to the jury by the presiding officer, it was their duty, in estimating and determining the amount of damages to be assessed for the petitioner, to make such allowance and deduction from' the value of the estate taken as the principle of law applicable to the case required. As the rule of law was correctly stated to them, we must presume that they allowed the full benefit of it to the respondents, and we can therefore see no cause of complaint on their part to the verdict which was returned.

Judgment affirmed.