Bailey v. Boston & Providence Railroad , 182 Mass. 537 ( 1903 )

Knowlton, C. J.

The principles of law applicable to these cases have long been well established in this Commonwealth, whatever difficulties may have arisen in the application of them. Under statutes like that before us, in the absence of any peculiar provision, persons damaged in their real estate are to receive compensation for all such damages as are direct and proximate, as distinguished from those that are remote and consequential, if they are, at the same time, special and peculiar as distinguished from common and general. When real estate is used in carrying on a business, the damage to be assessed for the diminution in value of the real estate is estimated in reference to the uses to which it is adapted, and not for loss in the business. Maynard v. Northampton, 157 Mass. 218. Edmunds v. Boston, 108 Mass. 535. Williams v. Commonwealth, 168 Mass. 364. New York, New Haven, & Hartford Railroad v. Blacker, 178 Mass. 386.

Loss to business as business is too remote and consequential a damage to be allowed in estimating damage to the real estate on which it is conducted. Nor does it furnish a correct criterion by which to determine the diminution in value of the estate for the uses to which it is adapted. The business might chance to be exceedingly profitable at the time of the taking, so that an interruption of it from an interference with the full use of the real estate might cause a loss far greater than the reasonable rentable price of the property, or it might then be going on at a loss, so that the interruption would cause no damage to the business, notwithstanding that the interference with the use of the real estate was such as would cause a great diminution of its rentable value.

In these cases there was an interference with the use of the petitioner’s property for about twelve months. So far as this interference diminished its rentable value, or its value for the uses to which it was adapted, and so far as the damage was special and peculiar, as distinguished from that suffered in greater or less degree by the public generally, it was an element properly to be considered by the jury. The fact that it continued only while the work of construction was going on, if it was properly incident to the construction, is immaterial. Edmonds v. Boston, 108 Mass. 535, 549. Penney v. Commonwealth, 173 Mass. 507.

In the form in which the items are stated, one being for money paid for handling goods which could not be taken by teams on account of the work of construction, and the other being for a money loss to the business from diminution in its volume, it is plain that the jury were rightly instructed that they were not recoverable. In the first place they both appear to be for expense or loss in the business, and therefore they were not recoverable. Consequently, if we interpret the language strictly, and if we consider whether the items represent in whole or in part diminution in the value of the real estate for use, it would appear that the shutting off of access referred to was only access through the streets as lines of travel, which was an interference affecting in greater or less degree the whole public, and so not a special and peculiar damage, but only a general damage for which there can be no recovery. If the damage was caused by shutting off access to the street, as distinguished from access through each of the neighboring streets, the damage may be special and peculiar. See Davenport v. Dedham, 178 Mass. 382; Davenport v. Hyde Park, 178 Mass. 385.

There was a difference of understanding between counsel at the argument, as to whether the jury were permitted to give damages for diminution of the value of the property for use, caused by the obstructions which were special and peculiar, as distinguished from the interference with the use of the street in its longitudinal course by the general public. There is some uncertainty as to the construction to be given to this part of the report, and we are of opinion that the report should be discharged and the Superior Court left to enter the judgment prescribed by the report, or to grant a new trial, as justice requires.

So ordered.