Allen v. City of Charlestown , 109 Mass. 243 ( 1872 )

Wells, J.

The verdict in this case was set aside, upon the objection of the respondent, that the jury were not allowed to make proper deductions, from the damages, on account of benefits to the property of the petitioner by reason of the location of the new way.

It appears by the report of the case, that the jury were instructed that “if all or nearly all the other estates abutting on the street are benefited in a similar manner, then such benefit is not special or peculiar to the estate of the petitioner, and'the amount of such benefit cannot be deducted by the jury from the damages sustained by him in his lands or buildings.”

If these proceedings were taken under the General Statutes, and not under the betterment acts, so called, this instruction was clearly wrong. The benefit is not the less direct and special to the land of the petitioner, because other estates upon the same street are benefited in a similar manner. The kind of benefit, which is not allowed to be estimated for the purpose of such deduction, is that which comes from sharing in the common advantage and convenience of increased public facilities, and the general advance in value of real estate in the vicinity by reason thereof. Meacham v. Fitchburg Railroad Co. 4 Cush. 291. Upton v. South Reading Branch Railroad Co. 8 Cush. 600. Dickenson v. Fitchburg, 13 Gray, 546. The advantages of more convenient access to the particular lot of land in question, and of having a front upon a more desirable avenue, are direct benefits to that lot, giving it increased value in itself. It may be the same, in greater or less degree, with each and every lot of land upon the same street. But such advantages are direct and special to each lot. They are in no proper sense common because there are several estates, or many even, that are similarly benefited. Whitman v. Boston Maine Railroad, 3 Allen, 133, and 7 Allen, 313. This distinction between that which is direct and special, and that which is indirect and general, is well illustrated by the decisions upon analogous questions relating to injuries which may be either public wrongs or private torts. See, especially Wesson v. Washburn Iron Co. 13 Allen, 95, 102.

That part of the instructions to the jury in Farwell v. Cambridge, 11 Gray, 413, which may be regarded as conflicting with these views, was not approved by the court as declaring the correct rule of law; but the verdict was accepted because a correct rule had previously been given, and the court did not think that “the particular words and illustrations afterwards used by the sheriff ” could have misled the jury. Without undertaking to revise the question of the propriety of the distinction thus made, when applied to the instructions as reported in that case, or of the inference that the jury could not have been misled by the erroneous illustrations, we are unwilling to follow it as an authority for the decision of other cases which may be supposed to be like that case. If a presiding officer, after stating the general rule, proceeds to illustrate it in a manner which appears to be applicable to the precise case under trial, we do not think the jury can be expected to disregard such illustrations, as having no bearing upon it, or as not proper to guide their deliberations.

In this case, however, the whole tenor of the instructions excludes all benefit of a kind such as was acquired by all the estates adjacent, or bounding on said street.

Whether these proceedings were taken under the general provisions of law for laying out streets, or under the “ betterment acts,” does not appear decisively from the records of the city, copies of which are produced. There is no adjudication to proceed under the special authority, as provided in the St. of 1866, e. 174, § 1. There is no separate estimate of benefits made for the purposes of an assessment of the expenses. A printed tabular form for a schedule of awards of damages, which purports to be in pursuance of provisions of the St. of 1866, c, 174, § 2, is used for the return of damages ; but the return shows that damages were not estimated in accordance with the provisions of that statute, in any respect: and the estimate of “ betterments,” referred to in those proceedings, was made only by way of set-off to the claims for land damages. On the whole, we think it does not appear from the record that the proceedings were under the St. of 1866, c. 174.

It was a question of fact, then, in the court below, as, from the report, it appears to have been before the jury also. The decision of that fact in the superior court is final. Only the question of law is brought up by the appeal. In determining the question of law, we presume that all disputed questions of fact, involved in the case, were decided in the court below in a manner most favorable to the support of the decision there made.

Assuming, as we think we must assume, that the proceedings were under the general provisions of law, the verdict was properly set aside. We need not consider, therefore, whether, if they were under the St. of 1866, c. 174, the petitioner might retain his verdict, waiving objections on account of the deduction made by the jury.

Judgment of the superior court, setting aside the verdict, affirmed.