May v. City of Boston , 158 Mass. 21 ( 1893 )

Knowlton, J.

The question principally discussed in this case is how to apply the rule for the estimation of damages for land taken for a public improvement, when the improvement has been long contemplated, and the expectation of it has increased the market value of the land in the vicinity.

An owner of land' taken by right of eminent domain is to be compensated by the payment of the fair value of it at the time of the taking. Ordinarily the price at which such land will sell in the market, if there is a market for it, is the criterion by which to make the estimate. But in certain cases the market price is not the true standard by which to determine the value. By the Pub. Sts. c. 51, § 3, it is provided that in laying out, altering, or widening highways, “the damages for land taken shall be fixed at the value thereof before such laying out, alteration, or widening.” In the present case the damages are to be estimated as in cases of laying out, altering, or widening highways. St. 1875, c. 185, § 5.

It was evidently the purpose of the Legislature not to permit landowners to recover damages for the land taken for a public use at a value enhanced by a public improvement which owes its existence to the change of use of the very land which is to be paid for. Land taken is to be paid for at its value. Its value is to be determined by a consideration of the uses to which it is adapted. Its market value cannot legitimately be founded on anything else. It may have a market value largely dependent on a probable future demand for it; but that which is relied on ultimately to create the demand is the valuable uses to which it can be put. Whenever there is an expectation of a public improvement, the market price of land in the vicinity is likely to advance, in anticipation of the more valuable uses to which the land can be put when the improvement is made. Its real value for use is not increased until the change in its surroundings comes. If the expected improvement involves the taking of land by the right of eminent domain, the value of the land taken will never be enhanced by the improvement, for the taking precludes the possibility of ever using it under improved conditions. In that respect it stands differently from other land in the vicinity which is not taken. Whenever there is a project for laying out or widening a way, or taking land for any other public use which is expected to increase the value of real estate in the neighborhood, if the market price of land in the vicinity rises in anticipation of the change, the statute very justly says that the land taken shall not be paid for at the increased price. If it is known from the beginning exactly what land will be taken, it must also be known that that particular land can never be made more valuable by the improvements, since it can never be used by its owner under the improved conditions. If the plan is general, and it is not known exactly what land will be needed by the public, but only that some land will, whenever the plan takes definite form, and the location is fixed, it is known that the land to be taken has not received, and never can receive, any benefit from the improvements. There is no injustice in saying that such land shall not entitle its owner to be paid out of the public treasury at a rate determined, not by its value for use, but by a prospective and speculative value of land in the vicinity, derived from an expectation of the benefit to come from the public use for which this is to be taken. One holding or buying or selling land in a neighborhood where the market price has risen in anticipation of the public improvements which will involve the taking of a part of it for a public use, is bound to know that under the statute the land which will be taken for such a use can be paid for only at its value, unaffected by the improvements. Benton v. Brookline, 151 Mass. 250. The constitutionality of legislation of this kind was established in Dorgan v. Boston, 12 Allen, 223, 231.

The land of the petitioners was taken for a public park. There was evidence tending to show that the contemplated laying out of a park in this neighborhood, and general knowledge that a park was likely to be laid out, enhanced the value of the remaining land of the petitioners, including that taken on April 30, 1890.

The evidence of a printed report of the park commissioners, containing a recommendation of their advisory landscape architect, was rightly excluded. The recommendation to the board made in 1880 was too remote to be admitted as evidence that the project for a park had taken definite form previous to 1890, such that the enhanced value of land in the vicinity was founded on a settled plan which did not include the petitioner’s land, and which had ceased to have indefinite features, under which their land was liable to be taken and paid for at a value unaffected by the project. It was not competent for the petitioners to show that the laud in the vicinity had increased in price by reason of the general expectation that a park would be laid out there, for the purpose of enhancing their damages.

We discover no error in the refusal of the presiding justice to give the instructions requested, or in the instructions given. The fourth request for instructions would have been correct, as applied to a case in which it appeared that there was a definite and settled plan for laying out a defined park which did not include the land taken from the petitioners, and that the taking of the petitioners’ land was for a new and different public improvement. By the evidence, so far as it is reported in this case, the whole proceedings related to a single improvement, which had not been carried out, and the details of which had not been settled before the petitioners’ land was taken. We do not find in the bill of exceptions any evidence that the increase in value of the land prior to the taking was founded on a contemplated laying out of a park whose lines were fixed, so that changes could not reasonably be anticipated as possible, and we are of opinion that the jury could not have found, on any evidence disclosed in the bill of exceptions, that the increase referred to was on account of any other plan than the general originally indefinite plan under which the petitioners’ land was finally taken.

The fifth and sixth requests for instructions were rightly refused, because the “ likelihood that a public park was to be constructed adjoining, but not including,” the land taken from the petitioners, did not exclude the possibility, that when the scheme was carried out by locating the park on the land, it would include this land, in which case it would be paid for at its value without increase from the improvement. The instructions given upon the principal questions in the case were in accordance with the views we have expressed. The presiding justice was also right in ruling that the provision in regard to the way sixty-five feet wide on the land previously conveyed by the petitioners was a condition a breach of which would work a forfeiture, and not a restriction enforceable in equity.

It was within the discretion of the court to exclude the testimony of the witness Chandler. It does not appear that the land inquired about was situated similarly to that of the petitioners ; besides, its value might have been greatly changed by the location of the park, or by other causes, in the interval between April, 1890, and November, 1891.

Exceptions overruled.