Upton v. South Reading Branch Railroad , 8 Mass. 600 ( 1851 )

Dewey, J.

The ruling of this court in the case oí ffleacham v. Fitchburg Railroad Co. 4 Cush. 291, upon the instructions given to the jury in that case by the presiding officer, must govern the present case. The jury were in that case instructed, that if they were satisfied that the laying out and construction of the railroad had occasioned any benefit or ad vantage to the lands of the petitioner through which the road passed, or lands immediately adjoining, or connected therewith, rendering the part not taken for the railroad more convenient or useful to the petitioner, or giving it some peculiar increase in value, compared with other lands generally in the vicinity, it would be the duty of the jury to allow for such benefit or increase of value, by way of set-off, in favor of the railroad company; but, on the other hand, if the construction of the railroad, by increasing the convenience of the people of the town generally, as a place for residence, and by its anticipated and probable effect in increasing the population, business and general prosperity of the place, had been the occasion of an increase in the salable value of real estate generally, near the station, including the petitioner’s land, and thereby occasioning a benefit or advantage to him in common with other owners of real estate in the vicinity, this benefit was too contingent, indirect and remote, to be brought into consideration in settling the question of damages to the petitioner for taking his particular parcel of land. Instructions substantially like the above should have been given to the jury in this case. To this extent the instructions were wrong, and for this cause the verdict is to be set aside.

The evidence offered by the petitioners, to show that the respondents had made a certain offer to them for their damages, was properly rejected. New trial ordered.