DAVID L. KRUTIAK & another [Note 1] vs. TOWN OF CHESHIRE.

SIKORA, J. In this eminent domain case we consider the standards for valuation of land enhanced by its capacity to furnish a public water supply. In April of 1998, the defendant town of

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Cheshire (town) made a partial taking of a rural tract of approximately twenty acres owned by the plaintiffs David and Karen Krutiak (Krutiaks or plaintiffs). The town took the eastern half of the tract (parcel two) comprised of 10.078 acres and an access easement for a roadway over the western half (parcel one) of the tract. The purpose of the taking was the creation of a new groundwater well supply for the municipality. The town extended pro tanto compensation of $33,000 to the Krutiaks. In February of 2001, the Krutiaks commenced suit for an assessment of damages. [Note 2] At the conclusion of a six-day trial in June of 2004, a Superior Court jury returned a verdict for damages of $555,000. The town has appealed from the resulting judgment upon grounds that the trial judge failed to enforce the valuation standards for water-bearing land established by the leading precedent of Young Men's Christian Assn. of Quincy v. Sandwich Water Dist., 16 Mass. App. Ct. 666 (1983) (YMCA), and that the landowners' evidence failed to meet those standards. The record demonstrates that the rulings and jury instructions of the judge and the evidence of the plaintiffs fully satisfied the requirements of the case law. We therefore affirm.

Factual background. The evidence permitted the following findings. From 1957 to 1970 David Krutiak had worked for his father's sand and gravel company in North Adams. From 1970 to 1997 he had owned, operated, and greatly expanded the business into general contracting activity (demolition work and construction of roads, pipelines, and buildings) and the excavation and use of sand and gravel throughout northern Berkshire County. The provision of sand and gravel for construction projects comprised about fifty percent of his company's work from 1970 to 1997. Those materials had general utility as bedding for roads, underground pipelines and wire conduits, and buildings. They provided grading, protective insulation, and drainage for structures placed within or above them. The work of his company included removal of the sand and gravel from natural mines, banks, or pits; screening and washing of the materials to fit the specifications of particular jobs; and installation.

The Krutiak company had owned and operated one large pit and two smaller ones in Adams. In 1983, Krutiak and his wife

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Karen purchased the subject twenty-acre parcel in Cheshire as a reserve bank of sand and gravel. In 1985 the town issued the Krutiak company a permit for gravel removal. From 1985 to 1998, Krutiak maintained the permit and withdrew small amounts from the site.

At the public hearing upon his permit application in 1985, Krutiak informed the planning board of Cheshire of his long-term plan to develop building lots on the site. In a written response to an open space survey by the town in 1987, he repeated that intention. His plan became firmer in the mid-1990s. During that period, the operator of a sand and gravel mine on the land immediately north of Krutiak's property sold its tract to a developer. The developer constructed a residential subdivision. The Krutiak company had participated in the construction work of many residential subdivisions. He formed a familiarity with the developer and constructed much of the access road to the subdivision.

Meanwhile, since the early 1980s, the town had remained in violation of standards of the Federal Safe Drinking Water Act (act). [Note 3] The Federal Environmental Protection Agency had rejected the town's requests for exemption and as of 1996 had calculated financial penalties against it in the sum of approximately $23 million. The town negotiated a far lower penalty and entered an administrative consent order with the agency. The order included an agreement to create a new water supply. In 1996, Cheshire retained an engineering firm to accomplish that objective.

The firm's preliminary study posed three alternative means for compliance with the Federal standards: (1) construction and operation of a filtration system at the existing reservoir; (2) the purchase of water from the neighboring Adams fire district; or (3) the development of a sand and gravel deposit ground well. The engineering analysis concluded (1) that the capital and maintenance requirements of a filtration plant at the existing reservoir would be substantially more costly than the creation of a new groundwater supply; and (2) that the purchase of water from the Adams fire district would be similarly more expensive by reasons of its high wholesale rate and the needed extension of the Cheshire

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water main by about 10,000 feet to the Adams water source (at a price of approximately $1 million). The town accepted the firm's recommendation to locate its own groundwater well supply.

The engineering firm and a hydrogeology firm conducted a year-long search for an appropriate site. They drilled eight test wells. The first three were bedrock-depth borings in the watershed area of the Kitchen Brook Reservoir. None generated an adequate volume of water for the town's needs; all contained discoloring impurities; and all would have required high transmission costs. The firm then moved the search southeastwardly to the Hoosic River Valley, the locale of an extensive sand and gravel aquifer. After a study of soil mapping information, they sank five test wells on promising sites. The first three generated water of inadequate volume or purity.

The final two test sites produced water of sufficient quantity and quality: the Troy and the Krutiak tracts. Exploration ceased after the Krutiak test boring. Several considerations favored the selection of the Krutiak property. Its well appeared capable of pumping 1,440,000 gallons per day, and the Troy well 560,000 gallons. The town hydrologist attributed "superior hydraulic qualities" to the Krutiak property and regarded it as the "superior" or "most suitable" among the test sites. The engineering firm recommended the Krutiak location to the town. The firm was uncertain whether the soil conditions of the Troy site would sustain the necessary volume through the long term. In the "Environmental Notification Form" required for the construction of a new public groundwater supply well and submitted at the end of the June, 1997, the chairman of the town water commission and the project manager from the engineering firm reported to the Massachusetts Department of Environmental Protection (department), "Five other locations along the Hoosic River Valley were investigated and only the proposed well site indicated sufficient capacity and quality for a public supply well" (emphasis supplied). The order of taking issued ten months later.

Discussion. Preliminary procedural issues. a. The missing transcript. After trial the court reporter was unable to locate a cassette tape containing about ninety minutes of testimony offered by the Krutiaks. Part of the lost material consisted of

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testimony by Omer Dumais, the project manager and chief engineer from the engineering firm retained by the town; and the remainder consisted of testimony by Stephen Alcott, a professional engineer and an attorney specializing in the financial operations of water utilities and the evaluation of their rates. Pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 933 (1979), the trial judge, counsel, and witnesses reconstructed the missing testimony by trial notes, stipulation, and affidavits, so as to leave only one subject of contention: whether Dumais conceded in trial testimony that the Krutiak site qualified as the "unique" location for the town water supply or as only one site among multiple locations atop the Cheshire aquifer capable of serving that purpose.

The trial judge settled the record in accordance with Mass.R.A.P. 8(c) by adoption of several passages of reconstructed testimony in which Dumais acknowledged his engineering assignment to be the location of the "best" or "most suitable" potential site for the new town water supply. The town claims prejudice and seeks a new trial.

We find no prejudice in the reconstruction. It was merely cumulative of other acknowledgments by Dumais in his execution of the Environmental Notification Form to the department and in other testimony fully preserved in the appellate record. [Note 4]

b. The town's failure to move for a directed verdict and for judgment notwithstanding the verdict. The Krutiaks argue that the town cannot challenge the sufficiency of the evidence or the accuracy of rulings and instructions upon appeal because it failed to move for a directed verdict at the conclusion of the plaintiffs' evidence, to renew such a motion at the close of all the evidence, and to move for judgment notwithstanding the verdict pursuant to Mass.R.Civ.P. 59(a) and (b), 365 Mass. 827

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(1974); and that it thereby failed to preserve the sufficiency of the evidence as an appellate issue.

However, the town did mount and maintain a challenge to the sufficiency of the evidence throughout the trial by alternate process. At the outset it submitted a motion in limine asserting that any valuation component derived from water supply rested upon speculation and conjecture unworthy of submission to the jury. During trial it repeated that objection to the opinions offered by the Krutiaks' valuation experts. At the conclusion of the evidence it unsuccessfully requested an instruction excluding any water supply valuation upon the same ground. These efforts consistently informed the judge of its objection to all water-related evidence and preserved the issue for appeal. [Note 5]

The water value component in perspective. On appeal the town has trained its argument exclusively upon the valuation of the water supply of the taken land. The black letter definition of the fair market value owed as compensation for the taking is the highest price which a willing buyer would pay to a willing seller in an open market in which both were free of any compulsion and in which both were acting prudently with full knowledge of all the reasonable uses of the property. Epstein v. Boston Hous. Authy., 317 Mass. 297 , 299 (1944). See Commissioner of Corps. & Taxn. v. Worcester County Trust Co., 305 Mass. 460 , 462 (1940). We measure the fair market value as of the time of the taking. Kinney v. Commonwealth, 332 Mass. 568 , 571-572 (1955). See G. L. c. 79, § 12 (first sentence). "All the uses to which the property is reasonably adapted may be considered" (emphasis supplied). Correia v. New Bedford Redev. Authy., 375 Mass. 360 , 361-362 (1978), quoting from Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy., 335 Mass. 189 , 193 (1956).

At trial the Krutiaks presented evidence and argument in support

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of three complementary applications of the taken property as its combined highest and best use. Their primary expert witness, real estate appraiser Richard Clapp, testified that over the ten years from the taking in April, 1998, the property would have accommodated (1) the extraction of substantial commercial sand and gravel amounts (called "marketable aggregate"); (2) the development of a residential subdivision of six lots; and (3) the generation of a water supply. The uses would proceed sequentially over the decade. The mining of the marketable aggregate above the water table would occupy the first three and one-half years; the creation of the wellhead and water main system would follow; and the subdivision could develop simultaneously with the wellhead or afterward, within the remainder of the tract.

Clapp supported his model by references to a civil engineering study of the probable sand and gravel capacity of the property and to a financial study of the marketable water potential of the site. [Note 6] For each of the three uses he computed a net income stream over the coming decade and discounted it to a value at the time of the taking. By this capitalization of income, he concluded that the fair market value of the Krutiak tract had been $1,032,000 immediately before the partial taking, and $477,000 immediately afterward. He proposed the resulting diminution in value of $555,000 as the Krutiaks' damages. The jury awarded exactly that amount. [Note 7]

Clapp did not precisely apportion the $555,000 between the

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three uses. He estimated the water generating value of the property to comprise $150,000 to $175,000 of the total $555,000. Consequently the town's sole focus upon the water-based valuation addresses less than one-third of the amount of the verdict and leaves unchallenged the portion of the award attributable to the extraction of sand and gravel and to the potential development of a residential subdivision.

The particular suitability of the taken land for water generation. The dominant theme of the town's appeal is that the trial judge did not correctly instruct the jury upon the requirement of the Krutiak site's special suitability for water generation damages and that the evidence did not satisfy that requirement as prescribed in YMCA, supra at 675-676. Both contentions are unmeritorious.

The rule confirmed in YMCA is that if "the plaintiff's land was particularly well suited for drawing the water, the appropriate measure of that advantage was the difference in cost between drawing the water from the locus and drawing the same water from other suitable tracts." Id. at 676. [Note 8] The judge's instruction accurately communicated the point to the jury: "If you find that the property taken was especially well suited as access to water, the appropriate measure of that damage on the subject property is the difference in cost between drawing the water from this property and drawing the same water from other suitable tracts."

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The landowners' evidence abundantly satisfied that standard. It showed that the ground well supply on the Krutiak site surpassed the general alternatives of the construction and maintenance of a treatment plant at the Kitchen Brook Reservoir and of the purchase of municipal supply from the Adams fire district. It showed also that the Krutiak well supply provided water in quantity, quality, and cost [Note 9] superior to the water from the three bedrock wells tested near the existing reservoir and from the other four selected sand and gravel sites tested in the Hoosic River Valley. Under cross-examination, the town water commissioner forthrightly acknowledged the special fitness of the Krutiak locus as the new municipal water supply.

Q.: "So is it fair to say, sir, that after all of the Town's efforts in trying to solve its water problems, the only access to a good quality and sufficient quantity of water supply was located on the Krutiak property?"

A.: "Of all the sites that we investigated, yes, the Krutiak site was the most favorable."

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Q.: "That was the only one you found in all of your investigations, right?"

A.: "That's true."

Q.: "And sir, out of all the places that the Town explored, the Krutiak property site was the most suitable, was it not?"

A.: "Yes, it was."

The town's insistence that other equivalent sites must exist above the expansive Cheshire aquifer is misdirected. It did not find them. It did locate the Krutiaks' tract and now enjoys the superior benefit of that site. It must compensate them for that advantage. The standard calls only for the particular suitability of the locus, not its absolute primacy.

The wellhead protection zone. At trial and on appeal the town has argued that the Krutiak tract could not host a public water supply because its area and shape prevented compliance with a water safety requirement of the Department of Environmental Protection (department). Regulations of that department mandated that the proprietor of a wellhead producing 100,000 gallons or more per day for public consumption must maintain a protective radius of 400 feet so as to prevent the introduction within that range of any structure or use dangerous to the purity of the water. 310 Code Mass. Regs. §§ 22.02, 22.21(1)(c) (1997). In effect the well operator must own or control the circle of land determined by the 400-foot radius. After acquisition of parcel two of the Krutiak tract, the town had taken two small slices of abutting properties (a fraction of an acre each) so as to satisfy the 400-foot requirement. The town introduced into evidence portions of the pertinent regulations. It has maintained that they do not allow for variance or exemption. In fact the regulations do permit appropriate variances. [Note 10] However neither

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the town nor the Krutiaks offered them into evidence. The jury did not learn of them.

Instead the Krutiaks offered evidence that they could satisfy the 400-foot requirement by an appropriate placement of the well in the tract at a point other than the site chosen by the town on parcel two. Both David Krutiak and Stephen Alcott offered testimony to that effect. Alcott testified more extensively in support of the probability of a favorable waiver by the department for a Krutiak well. He cited three examples of apparent waivers. The town's consulting engineer acknowledged that the department did grant exemptions for "benign" uses within the protective zone.

For the valuation of the highest and best use of taken land, the law does permit the fact finder to consider a potential use restricted at the time of the taking if the evidence supports a reasonable prospect of the removal of the restriction. See especially Douglas Envtl. Assocs., Inc. v. Department of Envtl. Protection, 429 Mass. 71 , 76 (1999) ("[T]he fact that a potential use is prohibited or restricted by law at the time of the taking does not preclude its consideration if there was a reasonable prospect of rezoning or acquiring a special permit"). [Note 11]

The trial judge correctly instructed the jury. [Note 12] They could have found that the Krutiaks enjoyed a reasonable prospect of a waiver or variance from the four-hundred-foot requirement and

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that a willing buyer would have included that prospect as an element of fair market value.

Consideration of the contemplated public use. An owner is not entitled to an increase of fair market value resulting from the public use or improvement contemplated by the taking authority. Nor may the announcement of public purpose increase the fair market value for calculation of the landowner's damages. See Cole v. Boston Edison Co., 338 Mass. 661 , 665-666 (1959); Lipinski v. Lynn Redev. Authy., 355 Mass. 550 , 554 (1969); Roach v. Newton Redev. Authy., 381 Mass. 135 , 137 (1980). The danger of such a bootstrapping valuation may be greater in circumstances in which the property owner is hypothesizing as a new highest and best use the very activity for which the government is taking the land. That situation has arisen here. The Krutiaks seek a measure of compensation for the operation of their property as a water supply, a use to which they had not put it but to which the town will put it for the first time. The town complains that the judge's instruction did not adequately safeguard against the danger of valuation inflated by the public purpose of the taking.

The judge gave the correct instruction: "Now, the owner is not entitled to recover for any increase or decrease in the value of the property taken that is produced by the public improvement project for which the property was taken or by the early announcement of that project." He rejected alternate language from the town. The trial judge is free to choose his or her own specific language so long as it accurately communicates the substance of the governing law, see, e.g., Jacobs v. Pine Manor College, 399 Mass. 411 , 414 (1987), especially if the judge fears confusion from alternate language, Liebovich v. Antonellis, 410 Mass. 568 , 575 (1991). The jury is presumed to have followed the instruction. Roberts v. Southwick, 415 Mass. 465 , 473 (1993). [Note 13]

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Conclusion. [Note 14] The trial judge properly ruled upon the controlling law and correctly instructed the jury. The evidence supported the damages verdict.

Judgment affirmed.