Beals v. Inhabitants of Brookline , 174 Mass. 1 ( 1899 )

Hammond, J.

This is a petition for the revision of an assessment levied under St. 1887, c. 99, upon the land of the petitioner, for benefits arising from the improvements of the channel of Smelt Brook. It appeared that for the purpose of making the improvements a part of the land had been taken under the act.

Although in the first part of the trial the court refused to let the petitioner put in a certified copy of this taking, yet at the close of the evidence, the respondent consenting, the court said to the counsel for the petitioner that he might read to the jury all of the taking except the part relating to the award of damages, but that the award of damages could not be put before the jury. The petitioner declined to avail himself of this permission, and excepted to the exclusion of the record.

There was no question that the cost of the sewer exceeded the amount of the assessments, and therefore the amount of the damages awarded upon the taking of the land was entirely immaterial on the question before the jury. If it was necessary for the petitioner to introduce the taking in order to show that the proceedings prior to the levying of the assessment were legal and so that he was properly before the court for an abatement, or to inform the jury as to the amount of the land left after the taking and his precise interest therein, he was permitted finally by the court to put in such parts of the record as related to those matters. Upon them the award óf damages threw no light whatever. He has no cause for complaint as to the action of the court taken as a whole with reference to this record.

The question to Felton and that to Bennet were both properly excluded. The brook ran through the land of several people, and the subject of inquiry before the jury was the amount of benefit to the petitioner’s land from the improvements made. It would not tend to elucidate that question to show what would be the reasonable cost of constructing a drain through the land of Beals alone. In the absence of anything to the contrary it is to be assumed that the plan adopted by the selectmen who were acting as public officers under a power specially delegated to them was proper and reasonable. The method of inquiry started by these questions would open up too many collateral issues, and the court might properly decline to enter upon it. And this latter remark is particularly applicable to the last part of the question to Felton.

The petitioner contended and offered to show that after the above mentioned taking of his land he was obliged to lay out his lots 50 by 100 feet, and he desired to show that such lots would not sell so well and were not so valuable as lots 70 by 70 feet. The court rightly excluded the evidence. So far as it tended to show that the damage was caused by the taking it was immaterial, and so far as it tended to show the uses which could be made of the property as bearing upon the general value it was so far remote and collateral as to bring it within the exercise of the discretion of the court.

Under the circumstances disclosed in the bill of exceptions we think the court had the power to admit the photographs. In the admission of such evidence much must be left to the discretion of the presiding justice, and we are not prepared to say that there was error in law in permitting them to be shown to the jury. Carey v. Hubbardston, 172 Mass. 106. Verran v. Baird, 150 Mass. 141.

In admitting the .record of the assessment made by the selectmen including the amount, and in charging the jury that the adjudication as to the amount was to stand unless the petitioner proved by the fair preponderance of the evidence that it was not right, the court acted in accordance with the law as laid down in Bigelow v. Boston, 120 Mass. 326, and other similar cases. It is unnecessary here to rehearse the reasons for the rule.

At the close of the evidence the petitioner presented sixteen requests for rulings. The presiding justice remarked that he should not give the plaintiff’s requests, and then proceeded to charge the jury. It is unnecessary here to go over these requests in great detail, but we have compared .them with the charge, and have come to the following conclusions.

The first four and the fourteenth requests were in substance given. The petitioner complains that the jury were not distinctly told to disregard in their estimate of benefits any increase in the value of the land from other causes than the work under the statute, but the whole tenor of the charge was to the effect that the benefit to be assessed must have been special and caused by that work, and the jury must have understood that. If the petitioner desired any more to be said on that subject he should have distinctly said so in reply to the question from the court. The court was plainly with the petitioner on that matter, had said something about it in the charge, and in the absence of any request for more specific instructions the petitioner must be presumed to have been content with what the court had said.

The fifth request does not correctly state the law. If by the work the petitioner’s land was made more healthy for occupation, we do not see why that was not to be considered even if there was a similar benefit to other real estate in the neighborhood. Benefits are none the less peculiar merely because some other people are similarly benefited. Hilbourne v. Suffolk, 120 Mass. 393.

The sixth and seventh requests were properly refused. At the view taken by the jury it appeared that between the time of the assessment of the betterment and the trial, a way had been in part constructed over the channel; but there was no evidence that the way had been laid out, constructed, or accepted by the town, and. no contention was made by the respondent that any betterment should be assessed on account of the way ; nor was any contention made by the respondent that the jury should consider in any way the possibility that the town might lay out a way over the location of the covered channel, or the possibility that a way might be continued from Harvard Street to th.e location of the covered channel; nor that the jury should take into consideration such way or any other possible future ways.

These requests called for a particular enumeration of possible future contingencies. The respondent made no claim that any of these could be properly considered by the jury as an item of benefit. The general rule that the benefit must result solely from the work done under the statute having been stated to the jury, it was within the discretion of the court, in view of the evidence and of this position of the respondent, to decline to make the special enumeration called for by the requests. .

As to the eighth request it is a little difficult to understand what is meant by the word “allowed” in the phrase “which theretofore had been allowed to flow upon the petitioner’s land.” The petitioner, however, cites in his brief the following language from the bill of exceptions: “ There was evidence that surface water flowed from an area amounting to about 150 acres, including a part of Corey Hill, down through the adjoining street, in and upon land of the petitioner, and increased the amount of water in the rear of the petitioner’s land ”; and says that the town has no authority to “ precipitate ” surface water upon the petitioner’s land, and that the town would be answerable in damages if it did so. It does not appear, however, that the town ever had precipitated any water upon his land. The most that can be said is that it does not appear that the town ever has done anything to prevent the surface water which came from Corey Hill from following the law of gravitation and crossing over the road into his land. For this inaction the town is not liable. It could with impunity allow this.

In the language of the older books, surface water is regarded very largely by the law “ as a common enemy which every proprietor may fight or get rid of as best he may ”; and a town is not answerable for “ allowing ” surface water to cross its highway upon adjoining land. Flagg v. Worcester, 13 Gray, 601. Franklin v. Fisk, 13 Allen, 211. Walker v. Old Colony & Newport Railway, 103 Mass. 10, 13, 14. Much of the petitioner’s land was low and swampy, and if by reason of the work done under the statute the surface water, from whatever source it came, was more speedily or more effectually taken from the land and that was a benefit, the jury might consider it.

As to the ninth request, it is sufficient' to say that it was within the discretion of the court to single out any individual fact and rule upon the effect of that fact alone. Nor do we think it could be ruled as matter of law that the removal of a pool of water would not of itself be a benefit to land near the water but not abutting on it.

The tenth request would have been pertinent in a proceeding for the assessment for damages, but was entirely inapplicable to this suit. The petitioner had in law been paid for that damage.

As to the subject of the eleventh request, the jury were told in substance that they could not reduce the assessment made by the selectmen unless satisfied by the fair preponderance of the evidence that it was not right, and that on this question the assessment was “not evidence either prima facie or in any other way.” This was an exact statement of the law, and was all the petitioner was entitled to on this point.

The petitioner was not entitled to the thirteenth request, for reasons hereinbefore stated when dealing with the exceptions to the exclusion of the questions to the witnesses Felton and Be'nnet.

It is manifest that the fifteenth request could not have been given. There was evidence that the estate was benefited by the improvements, and the fact that the channel was covered would not prevent the use of it by the landowner for the purpose of carrying off the surface water by entering a private drain connected with the main channel, and it is to be assumed that such connections will be allowed under proper restrictions and regulations.

The petitioner was not entitled to have the sixteenth request given. The evidence did not warrant a finding that the town had “ constructed an independent drain not intended as a channel for the watercourse and not adapted for that purpose ”; and moreover this whole proceeding was upon the assumption that the acts of the selectmen were within the statute and valid.

The twelfth request was as follows:

“ Upon the evidence the town had no right to locate the catch basins outside of the location of the land taken for the channel, and if the petitioner’s land has received any benefit in consequence of the drainage by means of said catch basins, such benefit cannot be considered by you, and is not a charge or tax against the petitioner’s estate.”

Assuming, without deciding, that this was a correct statement of the law, the question is whether the failure to give the ruling requires that the verdict should be set aside. It appears by the evidence that outside of the land taken and upon the petitioner’s land, four catch basins were constructed “ the tops of which were about two feet lower than the top of the channel, and that said catch basins were connected by an open-jointed tile drain with the main channel.”

The town engineer, who had charge of the work, testified that there were several of these catch basins along the line of the improvement; that they were laid with dry stone, and would be mainly useful only in draining the land before it was filled up ; and that they were intended for temporary use as the land existed before the filling was done.

One Carr, called by the petitioner, the engineer who had charge of the filling, testified that in doing the filling he filled up the catch basins ; and on cross-examination he testified that he imagined that the catch basins were merely temporary things to take the water that might come on the surface of those parts where they were constructed, and take it off the land drained, and that it was what he should put them in for; that he supposed that it was intended and expected that they would be covered up eventually, and that the operation of the filling would be to destroy the use of the catch basins.

There was testimony that the drainage of the petitioner’s estate was effected through the tiled drain underneath the main channel, and to some extent by these catch basins, by the water running down through the same into the tiled drain, and up the chimneys into the main channel. There was no evidence that the petitioner or his predecessor in title who owned the land at the time of the laying out of the brook channel had ever given the town permission to construct the catch basins, and no evidence that the petitioner or his predecessor in title was aware of the construction of them, or had ever objected to the construction, and no evidence of what the cost of the catch basins was apart from the rest of the work.

The jury at the view saw the land thus filled up.

It therefore clearly appears from the evidence that the catch basins were no part of the permanent improvement, and at the time of the trial they had ceased to exist; and that fact had become impressed upon the jury at the view. The counsel for the respondent stated in his closing argument to the jury that they were merely temporary things and of no consequence in the case.

The court seems either to have regarded that concession of the respondent as sufficient, or to have inadvertently omitted to give the ruling.

It appears by the colloquy between the court and the counsel for the petitioner, at the close of the charge, that there had been a discussion between them, in which there had been developed some difference of opinion as to the law of the case, and the court had informed counsel what rulings would be given. It is not to be presumed that they disagreed as to whether a ruling which was in accordance with the views of" the counsel upon each side should be given. We think that if the counsel, at the close of the charge, intended to insist upon this request, instead of stating in reply to the question of the court that he thought the latter “ had given all that he said he would give,” he should have called the attention of the court to the particular omission.

Under all the circumstances we are of opinion that the petitioner is not entitled to have a new trial because of the failure of the court to give the twelfth ruling requested.

Exceptions overruled.