Upham v. City of Worcester , 113 Mass. 97 ( 1873 )

Gray, C. J.

The benefits which may accrue to any estate from the laying out of a highway are of three kinds : 1st. Those directly occasioned to an estate bounding upon the highway, and peculiar to the estate itself, as distinguished from other estates not bounding thereon, 2d. Those shared by the estate in common with other estates in the neighborhood. 3d. Those which extend to all estates in the same town or city.

Benefits of the first kind only can be allowed by way of set-off against the damages awarded to the owner under the highway act for taking part of the estate and injuring it. Gen. Sts. c. 43, § 16. Dickenson v. Fitchburg, 13 Gray, 546. Whitney v. Boston, 98 Mass. 312. Allen v. Charlestown, 109 Mass. 243. Benefits of the first kind, where no part of the estate is taken or injured by the laying out of the highway, and of the second kind in all cases, are to be included in the benefit and advantage to be considered in making an assessment under the betterment acts. Sts. 1870, c. 163, § 3; 1871, c. 382, § 1. The increased value of the estate by reason of benefits of the third kind, being those which its owner receives in common with all other owners of lands in the same municipality, are not subjects of compensation from him to the public in any form of proceeding. St. 1871, c. 382, § 1.

The bill of exceptions shows that part of the petitioner’s land was taken for the highway, and that his damages were assessed by a committee duly appointed. He now offers to prove that in the estimate of those damages the peculiar benefits to his estate were deducted, and the amount of that deduction. But the betterment act of 1870, c. 163, § 3, under which the present case arose, enacts that in estimating, in accordance with its provisions, the benefit and advantage to any estate by the laying out or alteration of a highway, “ due allowance shall be made for any benefit set off under the provisions of § 16 of c. 43 of the General Statutes.” If the amount of the peculiar benefit thus set off had been permitted to be given in evidence, the jury must have been mstructed not to include it in their verdict; and the same result was reached more directly and quite as surely by wholly excluding from their estimate all such benefits as could be so set off. The petitioner, therefore, has no ground of exception to the rulings and instructions at the trial. Exceptions overruled