Brown v. Providence, Warren & Bristol Railroad , 71 Mass. 35 ( 1855 )

Dewey, J.

1. As to the first point raised in the report, the competency of the evidence tending to show actual sales of liquors at the petitioner’s place of entertainment, the court are of opinion that it was inadmissible. The evidence would be objectionable, as leading to an examination of other and irrelevant issues. It could not properly be introduced, for the purpose stated in the report, to show that the place would be very much less valuable to a tenant if liquors were not sold there; as the fact whether intoxicating liquors hereafter might be lawfully sold there was not one upon which the jury had any sufficient data to judge. The evidence was of a nature calculated to prejudice some minds against the petitioner, and to withdraw the jurors from an impartial estimate of the actual damages sustained by the petitioner. The instruction to the jury is supposed to have rendered this exception unavailable. Such would be the case if the evidence were to be understood as entirely withdrawn from the jury. But that does not seem to have been directly done, though such may have been substantially the effect, taking the evidence to have been as stated in the report.

2. The testimony of the witnesses in respect to the probability of the location of a station at or near Brown’s place, and the probable effects that would result from establishing a station there, was of too uncertain a character to be submitted to the jury as a fact by which the damages could be affected. No act had been done by the corporation, establishing such station. If they would make it a substantive ground for reduction of damages, they should proceed to locate it; which being done, the fact of the location of the station will be easily made certain, and the further important fact will be apparent, whether the benefits accruing therefrom are such as are peculiar to the plaintiff, or only a benefit to his estate, which he shares in common with others from the establishment of the railroad.

3. The petitioner was entitled to have damages assessed by the jury for the injury to his buildings near the land taken, by blasting rocks within the line of the road. Dodge v. County Commissioners, 3 Met. 380. That such damages were properly the subject of inquiry seems, from the argument for the respondents, to be conceded; and the objection now urged is as to the mode of proof. The objection, in that distinct form, does not appear to have been taken at the hearing; and if it had, would have been unavailable. Shaw v. Charlestown, 2 Gray, 107. But how far the particular witness was competent to give an opinion as to the amount of the damages, and whether such inquiry should be made at all, or, if made, be preceded by a detailed statement of the facts as to the nature of the damage and the extent, must depend upon a more full view of the whole case upon this ground of damages than is now before the court.

4. The printed book was not competent evidence to prove the valuation of the assessors, as it was but a transcript of a copy of the valuation. It ought therefore to have been rejected. It *s also questionable whether any valuation made for the special purpose of taxation, and that some years previously to the assessment of damages by the jury, could be a useful or proper aid to the jury in fixing the value of the land, or the damages sustained by the petitioner on the location of the road. The presiding officer said substantially this to the jury, but the evidence should have been wholly rejected.

5. The admission of the award of the county commissioners to show the quantity of land was, as the case is stated in the report, clearly erroneous. The location, as made by the railroad company, is the proper guide for the jury as to the extent of the land taken. This would ordinarily appear in the warrant for a jury, or the papers connected therewith. The award of the county commissioners, assessing the damages, would not, in itself, be competent evidence of the extent of the location. Its recitals might, and probably would, correspond with the location. But if a subject of inquiry and a matter of controversy, it must be shown from other sources.

Verdict set aside.