Cobb v. City of Boston , 109 Mass. 438 ( 1872 )

Ames, J.

The effect of the statute (St. 1867, e. 308) under which these proceedings have been had, is to place the city in the position of a purchaser of the land taken. Dingley v. Boston, 100 Mass. 544, 554. The object of the bill in equity is merely to determine the just and reasonable price that each pro-1 prietor ought to be paid for his separate estate. The words of the statute are that the commissioners are to assess the present value of each parcel of the land, and it is assumed, correctly as we think, by both parties, that the “ present value ” means the value at the time of the taking, and not that of the date of the statute. The damage which each proprietor is entitled to claim is the value of the estate which is taken from him, and the whole investigation before the commissioners is for the purpose of determining that value. That is the subject matter of their report, and they are not required to report anything else, unless some exception to any of their rulings or decisions should render it necessary to report the whole or a part of the evidence. That being the case, they could not, without going beyond their commission, receive any evidence, or make any adjudication, upon damages or claims accruing after the taking of the land. If any of the proprietors have been induced to expend money or labor in making improvements upon any land or buildings, since the taking, in consequence of any votes, directions or assurances from the city authorities, the remedy must be sought in some other form of proceeding. The plaintiffs complain that their offer of evidence on this point is not fully and sufficiently stated in the report of the commissioners; and they have accordingly endeav • ored to cure this defect hy filing a written document, in which they undertake to go into details upon this subject. But notwithstanding the explanation so furnished, the fact still remains that it is an attempt, on the part of the plaintiffs, to press upon the consideration of the commissioners certain specific claims, accruing since the land was taken, not submitted to them by their commission, and not included in, or relevant to, the inquiry as to the value of the several estates at the time of the taking. The first of the exceptions reported by the commissioners is therefore overruled.

In the case of Mary Ann Smith, her husband was examined as a witness in her behalf, and upon cross-examination, he testified that he bought the estate in 1864, and named the price which he gave for it. We think that, although his opinion of the value had not been asked in the direct examination, the commissioners had a right, in the exercise of their discretion, and for the purposes of cross-examination, to allow such a course of inquiry ; and the exception upon this point is therefore overruled.

The commissioners were right also, in the case of Edwin M. Montague, in excluding the evidence offered as to the annual profits of his business as a grocer upon the premises. The only question was as to the value of his unexpired lease, and not as to the profits of his business, or the inconvenience of removing it to some other place. The goodwill of the business was no part of his lease, and under this statute could not be made a subject of inquiry, as constituting part of its value. Edmands v. Boston, 108 Mass. 535.

It is further objected that a witness called by the defendants as an expert in real estate was allowed to give, from a memorandum of his own, the valuation which he had put upon the several estates in the autumn of 1867. We do not understand that the memorandum was offered as being of itself evidence, but that the witness testified to his present recollection of the truth and correctness of a valuation, which he made six months previous to the taking. The fact that he made a record at the time ought not to prevent Mm from testifying to the matters which he had so recorded, if at the time of testifying he knew them to be true. Under such circumstances, the commissioners might in their discretion permit him to read from his memorandum. In an inquiry as to the vaMe of property at any given time, it is impossible to say that evidence as to its value at an earlier date, is incompetent and inadmissible, unless that earlier date is so remote as to have no importance or relevance in the inquiry. It cannot be said to be too remote in this instance.

The plaintiffs then claim the right, if their exceptions cannot otherwise be sustained, to go to the jury “independent of and without ” the report of the commissioners. But to' allow this claim would be to repeal the statute, in one of its leading and most characteristic provisions. The hearing before t the commissioners is the first step in the trial of the cause. Either party may appeal from their decision, and claim a trial by jury, but upon such trial, the report of the commissioners is made primé facie evidence of what is therein stated. It is true that the statute provides, in § 6, that either party aggrieved by the determination of the commissioners may except to the report, or claim a trial by jury, but there is nothing in the statute that countenances the notion of a trial by jury without and independently of that report. On the contrary, the report is expressly made evidence at the trial, and either party has a right so to use it. That is a right which we have no power to take away. If the commissioners have fallen into any error in matter of law, it can be corrected upon exceptions heard and determined by the court, according to its course as a court of eqmty ; and when the report is fully so corrected, and not before, it “ shall be used as primé facie evidence of what is stated therein.” The provision, that it shall be the duty of the court to instruct the commissioners upon any matter of law involved in.their decision, § 10, is intended only for the special case in which the bill contains a separate article in the nature of a petition of right against the Commonwealth. The present bill contains nothing of the kind, and the only mode, therefore, in which the court can instruct the commissioners, in this case, upon matters of law, is by disposing of such exceptions as may be regularly taken to their report.

In the ease of Herman Askenasy, the commissioners fell into an error in excluding the evidence offered as to the value of his second lease. The second lease having been delivered and accepted before the expiration of the first, and before the taking of the land, prolonged his estate in the premises, and this should have been considered in computing his damages. Bacon v. Bowdoin, 22 Pick. 401. Weed v. Crocker, 13 Gray, 219. The exception in that case must therefore be sustained, but all the other exceptions taken by the plaintiffs are overruled.