BOSTON CHAMBER OF COMMERCE & others vs. CITY OF BOSTON.

KNOWLTON, C. J. On March 21, 1901, the Boston Chamber of Commerce owned in fee certain property, consisting of more than fifteen thousand square feet of land, on which it had erected a building for its own purposes. This land was acquired in January, 1890, in part from Henry M. Whitney and in part from the Central Wharf and Wet Dock Corporation. In the deed from this corporation there was a reservation of rights of way, light and air over a part of the premises described by metes and bounds, and containing thirty-five hundred and thirty-nine square feet. The boundary of one side of this reserved space is a curved line, drawn with a radius of forty feet, eighty-three and fifty-three one hundredths feet in length, so as to conform to the curved front of the building erected by the Chamber of Commerce on the lot conveyed. Adjacent to the lot was a private way known as Central Wharf or Central Wharf Street. On March 21, 1901, the board of street commissioners of Boston laid out this private way as a public street - an extension of Milk Street from India Street to Atlantic Avenue-and, by the order of laying out, took for the public street about twenty-nine hundred and fifty-five square feet of land from the parcel belonging to the Chamber of Commerce, included in the reservation. The street commissioners estimated that no persons had sustained damages by the extension of Milk Street, and accordingly assessed no damages. At the time of the laying out, the Boston Five Cents Savings Bank held, and now holds, a mortgage on the land, including that covered by the reservation.

This is a petition brought by these three corporations jointly, under the R. L. c. 48, § 20, for the assessment of damages for the taking of this land. The petitioners filed a stipulation in the case that damages might be awarded in a lump sum to all the parties interested, without an apportionment; but the respondent refused to assent to such a disposition of the case.

The contending parties, at the trial, differed widely in their view of the law applicable to the facts of the case. The

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respondent offered to prove that the reservation was of great value to the Central Wharf and Wet Dock Corporation, which at the time of the laying out was an owner of property on the private way that was laid out as a public street. While the report states that, apart from the reservation, it was possible and practicable for the Chamber of Commerce to have built over the reserved space, [Note p344] it might fairly be contended from the appropriation and use of the property by the Chamber of Commerce, as shown by the deeds and plan, that the keeping of this space open was of great value to the remainder of its estate, occupied by the building, and that this use of the land, for the benefit of the parties under the deeds, was the best use to which it could be put, and that the appropriation of it to this use was intended to be permanent. The respondent contended that, inasmuch as the taking of the property for a street only imposed upon it an easement for public travel, the Chamber of Commerce suffered little if any damage, in view of the easements previously existing upon the land, and that, in considering the market value of the land taken and the damage to the remaining estate, the jury could consider the probability or improbability of the Central Wharf and Wet Dock Corporation releasing its rights in the land, so far as this might affect the judgment of a possible purchaser. It also contended that the Central Wharf and Wet Dock Corporation suffered no damage that could be recovered under this petition.

The petitioners contended that they were entitled to recover the full fair market value of the land taken, estimating it as if it were an entire estate, and as if it were the sole property of one owner, in fee simple. They offered evidence tending to show that such market value was $60,000. It was agreed that, if the law was substantially as stated in the petitioners' requests for rulings, damages were to be assessed in the sum of $60,000,

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without interest, and if the law was substantially as the respondent contended, the petitioners' damages should be $5,000, without interest. We understand that the petitioners' contention calls an award that shall equal the full value of the land included in the taking, as it would be if there were no restrictions upon it, and if it were available for use for the erection of buildings, or for other purposes such as give the land in that vicinity its market value.

The difference between the contentions of the parties, as we understand them, may be illustrated as follows: Suppose that B. owns a tract of land between two parallel streets thirty rods apart, in a rapidly growing city. Suppose that he locates a private street four rods wide through his land, connecting the two streets, and lays out building lots three rods wide on each side of it, and sells each lot to a purchaser, bounding him on the side of the private street, and giving him a right to use it as a street, while he retains the fee in himself. Suppose that a dwelling house is erected by each purchaser on his lot, and the city then lays out the private street as a public street, and a petition is brought, in which B. and the twenty lot owners join, for the assessment of damages. A hearing is had upon the petition. Under the R. L. c. 48, § 22, which is relied on by the present petitioners, "If, on such hearing, the jury find any of the parties entitled to damages, they shall first find and set forth in their verdict the total amount of damages sustained by the owners of such property, estimating the same as an entire estate and as if it were the sole property of one owner in fee simple; and they shall then apportion such damages among the several parties whom they find to be entitled thereto, in proportion to their several interests and to the damages sustained by them, respectively, and set forth such apportionment in their verdict; and if they find that any party has not sustained damage, they shall set forth in their verdict that they award him no damages." It is obvious, in the case supposed, that no one of the lot owners suffers any damage; for the public easement taken by the authorities leaves every abutter with as advantageous rights to use the public street as he had before to use the private street. B. suffers no substantial damage; for he still remains

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the owner of the fee of the street, and the public easement that is taken from him only extends to the general public the same right to use the street which twenty house owners and the persons coming to their houses had before. Besides, the city assumes the burden of keeping the street in repair. According to the contention of the petitioners in this case, these twenty-one persons who own rights in the private street which, if united, would make a perfect title in fee simple, can recover as damages, under their petition, the fair market value of the one hundred and twenty square rods of land included in the taking, estimated as if it were the property of a sole owner, free from all restrictions or incumbrances, ready for use for building lots or for any other purpose. Such a startling result compels a careful scrutiny of the statute to discover its true meaning.

It is to be noted that the section quoted above and the other provisions of the chapter are intended merely to provide compensation for that which is taken, and for any injury to property that is not taken. The law does not give to any one more than the damages that he sustains. It is a familiar rule that the damages are to be assessed in reference to conditions existing at the time of the taking. Because the taking of land for a highway or a railroad is an appropriation of it for all time, which ordinarily will deprive the owner of any valuable use of it in the future, the value of the easement taken is usually substantially the same as the value of the land. So, in many cases, the value of the land taken is referred to as the principal element of the damages to be assessed. Commonwealth v. Coombs, 2 Mass. 489, 492. Presbrey v. Old Colony & Newport Railway, 103 Mass. 1, 7. Chase v. Worcester, 108 Mass. 60, 67. Edmands v. Boston, 108 Mass. 535, 544, 545. But in a case like the present, or like the one supposed, the value of the land, free from incumbrances, is very much more than the value of the easement taken. In the case supposed the private way was subject to an easement in favor of twenty house owners, before the taking, substantially the same as that taken for the public. It was far more valuable to the owners of this easement for use as a street than it could be for any other purpose. It was permanently appropriated to the use for which the easements were created, and it was so much more valuable for that use than for

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any other, that a change of the use or an abandonment or sale of the easements would be hardly possible. Under these conditions the value of the easement taken, or the diminution in value of the property by reason of the taking of the public easement, would be but little if anything; for the taking would not materially affect the value or the use of the property. Under § 22, above quoted, the jury are to find, not the value of the land, estimating it as an entire estate and as if it were the sole property of one owner in fee simple; but they are to find the total amount of damages sustained by the owners. The value of the land is of no consequence, except as an aid in determining the value of the easement taken for the public, or the diminution in the value of the land by reason of the taking of the easement. If, before the taking, the land is subject to an easement nearly or quite as permanent in its nature as the easement taken for the public, and substantially the same in its effect upon the land in reference to other uses of it, very little, if any, value is taken from it by the taking of the public easement. If, in the case that we have supposed, the owner of the land, instead of selling his building lots, had built a house upon each of them, and had been the owner of the private street and of houses built upon all the lots on each side of it when it was laid out as a public street, the same principles would apply. In that case the land of the private street would have its greatest value in a use which is not materially affected by the taking of the easement for the public. This is in accordance with the doctrine which underlies the assessment of damages in all cases of the taking of property under the right of eminent domain. Allen v. Boston, 137 Mass. 319. Abbott v. Cottage City, 143 Mass. 521, 526.

The provision in the R. L. c. 50, § 3, that "the damages for land taken shall be fixed at the value thereof before such laying out, relocation, alteration, widening," etc., referred to in Benton v. Brookline, 151 Mass. 250, means that the damages are not to be enhanced by an increase in value that results from the laying out or other change. It does not mean that, when the value of the easement taken is less than the value of the land, the owner is to be paid the whole value of the land.

The contention of the petitioners at the trial was erroneous.

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If they were to receive the whole value of the land as an estate in fee simple, free from restrictions and incumbrances, they would be paid a large sum for the taking of an easement which would not affect the use that they were making of the land, and the use which, very likely, was the most valuable to which the land could ever be put, even if it never was taken for a public street.

Judgment on the verdict. [Note p348]