FIFTY ASSOCIATES vs. CITY OF BOSTON.

LORING, J. 1. We are of opinion that the presiding judge was wrong in ruling that the petitioner was not entitled to recover damages for water coming into the cellar by reason of the removal of the bulkhead. The case was tried on the footing that the petitioner had the rights "of an ordinary abutter" in State Street. That assumes that the petitioner owned the fee in his half of the street subject to the public right to use it for street uses.

Counsel for the respondent has contended that the ruling was right on the ground that street uses include the use of the land below the surface of a street as well as the use of the surface itself, and that a tunnel for cars is a street use. The counsel is doubtless right as to the proposition which he takes as the ground of his argument, but in our opinion he is wrong in the conclusion which he contends for based on that proposition. That the public easement in a street includes the use of the land below the surface as well as the use of the surface, and that a tunnel is a street use was established in Sears v. Crocker, 184 Mass. 586. It is also established that the Legislature might have authorized the building of this tunnel without making compensation for bringing to an end the use which the petitioner as owner of the fee had theretofore made of the land under the street. See Boston Electric Light Co. v. Boston Terminal Co. 184 Mass. 566.

But the question we have to decide is whether as matter of construction of St. 1894, c. 548, § 34, as amended by St . 1895, e. 440, § 1, that is what the Legislature did; and we are of opinion that it is not.

The terms of the statute here in question are like those in case of highways. R. L. c. 48, § 15.

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The question whether such statutes should be limited as matter of construction to acts done which are in violation of common law rights protected by the Constitution, or should be extended to include all acts which in fact cause injury of a special and peculiar kind although not a violation of common law rights protected by the Constitution, was for a long time a question on which the decisions of this court were not all in accord. The question was put at rest by the decision in Hyde v. Fall River, 189 Mass. 439, in which it was held that such statutes are to be construed to give compensation for all injuries, special and peculiar, and not to be limited to violations of common law rights protected by the Constitution. See also in this connection Whitney v. Commonwealth, 190 Mass. 531; McKeon v. New England Railroad, 199 Mass. 292. Although the city had a right to remove the bulkhead, yet if the removal caused an injury to the petitioner's property, the petitioner, by virtue of St. 1895, c. 440, is entitled to compensation therefor.

It follows that the exception must be sustained which was taken to the following portion of the charge of the presiding judge: "I rule for the purposes of this case, that any boxing or any structure that the owners of this particular piece of property, or the original owners of this whole block, had put into the street for their own purpose, having been put in long after the public rights bad been acquired in the street, is not a structure whose destruction or removal gives them any right, by reason of that destruction or removal, to claim damages. Therefore that is not an injury to property which of itself entitles them to any damages in this case."

2. The petitioner asked the presiding judge to give the following ruling: "The plaintiff in this petition is entitled to recover all damages sustained by it to the property in question occasioned by the construction of the tunnel and its station, and in estimating such damages you are not to take into account the benefit, if any, received by said property from said tunnel and station." This was refused, and the instruction on this point given to the jury was in substance: That if out of the fact that passengers from the tunnel were landed at the door of the petitioner's store anything had resulted which is a benefit to that store, "something directly affecting this estate and others just

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like it," that benefit could be set off against the damage from the tunnel after the physical damage from the settling of the building had been made good.

We are of opinion that the exception taken to the refusal to give this ruling must be sustained.

The question of the damage done and the benefits which can be set off against it in the case at bar under St. 1895, c. 440, § 1, is the same as that arising where action is taken under the highway act, R. L. c. 48, § 15, and not under the betterment act, R. L. c. 50. For the difference between the two, see Benton v. Brookline, 151 Mass. 250; Atkinson v. Newton, 169 Mass. 240.

In cases arising under the highway act and similar statutes, the only benefit which can be set off against the damages due to a petitioner for taking his land or other injury done to his property are those which are special and peculiar to the land or property in question. Benefits which are common to the neighborhood cannot be set off. The difference is well illustrated by the instruction given and approved by this court in Whitney v. Boston, 98 Mass. 312. In that case a court extending from Washington Street towards Tremont Street was made a street extending to Tremont Street by taking a part of the petitioner's land. The jury were told that the defendant city could set off benefits to the petitioner's estate by reason of its being made a corner lot or by reason of a more convenient access to the rear part thereof, but "the fact, if it be a fact, that the estates fronting on La Grange Place are benefited in other or different ways, such as increased business on the street or in the neighborhood, or in increased facilities for converting dwellings into places of business, would not affect the respondents' claim to have the peculiar benefits set off." Of this charge this court said: "The jury were therefore rightly instructed to deduct the direct and peculiar benefits done to the whole remaining estate of the plaintiffs, excluding those which they received in common with other owners of real estate in that vicinity."

There are cases where the same benefit peculiar to each estate accrues to all the estates in the same street. Compare Hilboume v. Suffolk, 120 Mass. 393, with Parks v. Hampden, 120 Mass. 395. See also Abbott v. Cottage City, 143 Mass. 521, 526, and the cases there cited. But the test is this: Is the benefit in its

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character a neighborhood benefit? If it is it cannot be set off. The test is not: Is the benefit one which others in the street share?

This rule has been applied in a number of cases. Upton v. South Reading Branch Railroad, 8 Cush. 600. Dickenson v. Fitchburg, 13 Gray 546. Whitney v. Boston, 98 Mass. 312. Allen v. Charlestown, 109 Mass. 243. Parks v. Hampden, 120 Mass. 395. Cross v. Plymouth, 125 Mass. 557. See in this connection Peabody v. Boston Elevated Railway, 191 Mass. 513, 518.

The benefit coming from landing the passengers using the tunnel at the door of the petitioner's building is in our opinion a benefit in character common to all stores in the immediate neighborhood and so is not one peculiar to the petitioner, and therefore cannot be set off. It comes within the second class stated in Upham v. Worcester, 113 Mass. 97, 98, 99. That is to say, it is a benefit which would be the subject of a betterment assessment if the Legislature had authorized a betterment assessment in connection with the construction of this tunnel.

The doubt which arises on this point comes from the decision of this court in Shattuck v. Stoneham Branch Railroad, 6 Allen 115. It was held in that case that it was error to exclude evidence offered by the defendant corporation "that since the hearing began their directors had located a passenger station at a place near the petitioner's land which the railroad crossed." The decision was made without discussion, on the authority of Brown v. Providence, Warren & Bristol Railroad, 5 Gray 35. The decision in Brown v. Providence, Warren & Bristol Railroad was that it was error to admit evidence that if a station were thereafter to be located near the land, part of which was taken, it would benefit the remaining land of the petitioner. All that the court there said was: "If they would make it a substantive ground for reduction of damages, they should proceed to locate it; which being done, the fact of the location of the station will be easily made certain, and the further important fact will be apparent, whether the benefits accruing therefrom are such as are peculiar to the plaintiff, or only a benefit to his estate, which he shares in common with others from the establishment of the railroad." It is apparent that the court in

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Brown v. Providence, Bristol & Warren Railroad did not go so far as to decide that the location of a railroad station "near the petitioner's land which the railroad crossed would result in benefits peculiar to the plaintiff" as distinguished from "a benefit to his estate, which he shares in common with others."

The only case in this Commonwealth in which Shattuck v. Stoneham Branch Railroad has been cited on the point now under consideration is Childs v. New Haven & Northampton Co. 133 Mass. 253. In that case evidence was rejected "of a convenient place of delivery at a new depot of said railroad." The exception to the rejection of this evidence was overruled. In overruling it the court said: "It is true that in Shattuck v. Stoneham Branch Railroad, 6 Allen 115, evidence of the location of a passenger station in the immediate vicinity of the land taken was held admissible. The certificate in the present case does not show how near to the land taken the station of the respondent was to be. It is perhaps fairly to be inferred, from the fact that there was evidence of a station 'of another railroad more accessible from the petitioner's woodland by the distance of one third of a mile,' that it was not in its immediate vicinity. Certainly, the offer of the respondent does not show that, as located, it could have been of any special or peculiar benefit to the petitioner."

There is an earlier case not referred to in Shattuck v. Stoneham Branch Railroad, 6 Allen 115, which goes far toward being a decision in conflict with the rule apparently established in that case. That is the case of Meacham v. Fitchburg Railroad, 4 Cush. 291. The charge of the presiding judge was this: If "the laying out and construction of the respondents' railroad had created or occasioned any benefit or advantage to the lands of the petitioner, described in his petition or immediately adjoining or connected therewith, rendering the part not actually occupied by the respondents more convenient or useful to the petitioner, or giving it some peculiar increase of value in the market, as compared with other lands generally in the vicinity, it would be their duty to allow for such benefit or increase of value by way of set-off, in favor of the respondents; but that, on the other hand, if the construction of the respondents' railroad, by increasing the convenience of Watertown generally as a place

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of residence, and by its anticipated and peculiar effect or influence 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 their depot, including the petitioner's said lands, and thereby occasioning a benefit or advantage to him in common with other real estate owners in the vicinity, this benefit would be too contingent, indirect and remote, to be brought into consideration in this question of damages to a particular parcel of land." After considering the first part of this instruction this court said: "The further instructions to the jury upon this point seem to have been entirely correct, and in accordance with the principle of the other ruling. The respondents are not to have the benefit of any increase in value of the petitioner's adjacent land, so far as he has been benefited by the railroad, merely in common with all the citizens of the neighborhood or village, by the anticipated general rise of property, by reason of the railroad's passing through the town and in the vicinity of their lands. It is only the increased value of the land of the petitioner, arising from the location of the road over some part of it, which is to be taken into consideration. If such location over the land of the petitioner has raised the value of his adjacent lands, then a reduction or offset is to be allowed the respondents on that account."

The case which this court had in mind as the case of a benefit from the location of a railroad which was special and peculiar, seems to have been, where a railroad passes through a lot of land, leaving on one or both sides of it land of the petitioner fronting on the location and so adapted for the establishment of a yard or the erection of a building to be used in connection with a spur track running from the tracks of the railroad into the yard or building. See in this connection New York, New Haven, & Hartford Railroad v. Blacker, 178 Mass. 386. It was there held that the owner of land used for a lumber yard with a spur track was entitled to recover for loss of the possibility of using the land in that way under a decree for the abolition of a grade crossing which depressed the tracks so that a spur track could not be run into the land in question.

We are of opinion that these decisions should not prevent us

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from deciding that the benefit resulting from the station's being immediately opposite the land of the petitioner is the same in kind as (although greater perhaps in degree than) the benefit which results to the neighbors of the petitioner, and therefore cannot be set off against the damages due it as a benefit peculiar to its land.

3. The petitioner was entitled to recover such sum as was reasonably expended by it in caring for the physical injury done to its buildings by the construction of the tunnel. Included in that would be such sum, if any, which was reasonably expended by it in paying a competent person to see to it that proper precautions were taken to make the physical damage as small as was practically possible. Such an expense is an expense limited to the land taken and not consequential damages within the rule of Edmands v. Boston, 108 Mass. 535, affirmed in New York, New Haven, & Hartford Railroad v. Blacker, 178 Mass. 386. We are of opinion that the exception to the exclusion of evidence as to the sum paid by the plaintiff to Mr. Adams must be sustained.

4. The question of evidence raised by the exception to the admission in evidence of the number of persons who passed through the station opposite the petitioner's land, without distinguishing between those who left the station and came on to the street and those who passed through it merely, has become immaterial now that it has been decided that no benefit arising from those facts can be set off.

Exceptions sustained.