Buell v. County of Worcester , 119 Mass. 372 ( 1876 )

Colt, J.

The petitioner claimed damages occasioned by a change of grade in the street. He was entitled to recover the diminution in value occasioned to his property in the condition it was when the change was made from a lower to a higher grade. Upon that question, and as one of the steps in determining it the jury might consider what expenses a prudent man would reasonably incur in putting the property, with reference to the new grade, in as good condition as it was before, being limited in their verdict to compensation for the diminished value of the property. This excludes a recovery for particular improvements in the estate, or changes unreasonably made, or not necessary to put the property in as good condition as before. The rule has been frequently applied in cases of this description and in analogous cases. Foster v. Boston, 22 Pick. 33. Plympton v. Woburn, 11 Gray, 415. Chase v. Worcester, 108 Mass. 60. Hartshorn v. County of Worcester, 113 Mass. 111. Bates v. Ray, 102 Mass. 458.

There is nothing in the condition of the property which should vary the rule, or which calls for the exclusion of the evidence offered. The petitioner had the right to construct the foundation of his building so as to meet the anticipated change of grade. If the change brought the street higher than he anticipated, it is difficult to see why the respondent has suffered less than if his foundations had been adapted to the still lower grade of the old street. The petitioner had the right to use and increase the profitable capacity of his estate. And his purpose seems to have been to diminish rather than increase his claim for damages.

Exceptions overruled.