Mowry v. City of Boston , 173 Mass. 425 ( 1899 )

Knowlton, J.

The only question in this case is whether the damages for the taking of the petitioners’ land are to be assessed at the value of it at the time of the passage of the act which required the taking as a part of a scheme of improvement which included the construction of the Union Station for passengers on railroads entering the southerly part of the city of Boston, or at its market value when it was formally taken, nearly a year afterwards, when the price of land in the vicinity had increased by reason of the expected improvement of which the taking of this land was a part. The answer to the question is found in the fact that the taking was an inseparable part of the improvement out of which the expected increase in value was to come, and on account of which there was a general increase in the market price of real estate in the vicinity. Section 11 of the statute referred to (St. 1896, c. 516) directed the street commissioners to extend Summer Street “ at least one hundred feet in width from Purchase Street to the harbor commissioners’ line.” The contemplated improvement which increased the market price of land could not be carried out under the statute without this extension, for which the petitioners’ land was taken. By the Pub. Sts. c. 51, § 3, “ the damages for land taken shall be fixed at the value thereof before” the taking. This section has been decided to be constitutional, and its meaning, as applied to cases where the market price of land is increased before the actual taking by reason of an expected improvement which involves the taking, has been considered in several cases. Dorgan v. Boston, 12 Allen, 223. Benton v. Brookline, 151 Mass. 250. May v. Boston, 158 Mass. 21. Bowditch v. Boston, 164 Mass. 107. Teele v. Boston, 165 Mass. 88.

The doctrine of these cases is stated by the counsel for the present petitioners in their brief in these words: “ The owner of land taken for public use cannot recover therefor an enhanced value which it has acquired merely by reason of the taking, or as the result of the improvement which the taking of that particular land for the specific purpose for which it is taken contemplates; for from the very nature of things its appropriation is a condition precedent to the existence of the improvement, and it cannot share in the effect of the change to create which it must be used.” The reason of this rule was considered in May v. Boston, ubi supra. The rule is applicable to the present case, for the statute under which the land was taken provided distinctly what should be done, and the improvements which caused the rise in the price of real estate could not be carried out without taking this land. The fact that the actual taking did not occur until nearly a year after the statute was passed and the particular improvement determined upon is immaterial, for the determination to make the improvement and to take this land was the foundation on which the increase in prices rested.

Judgment on the order.