FOURTH NATIONAL BANK OF BOSTON & others v. COMMONWEALTH.

BRALEY , J. The petitioner's land having been taken in fee for the use of the public under the St. of 1909, c. 535, and a jury having been asked for and damages assessed as provided by the statute, the case is before us on the respondent's exceptions, which were confined at the argument to alleged errors in the admission and exclusion of evidence. [Note p67-1]

The land, comprising a tract of nearly thirty acres divided into building lots, fronted on the northerly side of a public way, and the tier of lots abutting on the way, being more attractive to purchasers, would command a higher price in the market than the portions not so advantageously located, [Note p67-2] If the measure of damages was the fair market value of the whole parcel, yet the petitioner would not have been precluded from introducing evidence of the price received from actual sales of these lots. But,

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as no sales had been made, evidence of this character was not available, and it was permitted to offer evidence of sales of lots for cash, or where the purchase price was payable partly in money, and the balance secured by a mortgage back from the purchaser, which abutted on the south side of the way directly opposite the land in question. It long has been settled, that in the assessment of damages where lands are acquired by eminent domain evidence is admissible of the price received from sales of land similar in character, and situated in the vicinity, if the transactions are not so remote in point of time that a fair comparison practically is impossible. Wyman v. Lexington & West Cambridge Railroad, 13 Met. 316, 326. Paine v. Boston, 4 Allen 168. Benham v. Dunbar, 103 Mass. 365. It rests very largely within the province of the presiding judge to determine in his discretion if the evidence shall be accepted or rejected. Paine v. Boston, 4 Allen 168. Shattuck v. Stoneham Branch Railroad, 6 Allen 115, 117. Ham v. Salem, 100 Mass. 350, 352. The conditions which often may make the decision difficult vary with the circumstances of each case, and are amply pointed out by Morton, J., in Lyman v. Boston, 164 Mass. 99, 104, 105. The decision of the trial judge, if manifest error is affirmatively shown by the excepting party, is however reviewable. Presbrey v. Old Colony & Newport Railway, 103 Mass. 1, 8. Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305, 307. Muskeget Island Club v. Nantucket, 185 Mass. 303. But the respondent fails to point out elements of dissimilarity sufficient to render the evidence irrelevant and prejudicial. The lots sold were in the same street and vicinity, and appear to have been substantially alike, and if by the terms of sale a part of the purchase price in some instances remained on mortgage, this condition did not restrict competition among bidders, or prevent the sales from being a fair standard of comparison. Amory v. Melrose, 162 Mass. 556, 558.

The respondent in the cross-examination of a witness called by the petitioner introduced without objection the sale at public auction of a tract of eleven acres adjoining the petitioner's land and the price received and also elicited testimony of the similarity of the tracts, and that during a period of thirty years both parcels had been unoccupied except for agricultural purposes. But with the consent of counsel, and accompanied by them, the judge took

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a view of the premises. The parties must have understood, that although not recited in the exceptions, the physical facts thus ascertained might be considered as relevant on the question, whether this evidence should have been admitted. It was with this understanding that the judge finally ruled, that the outside land was not "sufficiently similar to the lot in question to be a fair standard of value." The respondent properly could have asked for a statement of the topographical differences upon which the ruling was based, and have urged that they were insufficient to show that the evidence was incompetent. No request, however, was made, and of his own volition the judge thereupon excluded the price, and directed the jury to disregard it. While from the record his judicial discretion would have been more wisely exercised if the jury had been permitted to consider the evidence, yet it cannot be held as matter of law that the exclusion was erroneous. Perkins v. Stickney, 132 Mass. 217.

Exceptions overruled.

D. Malone, (G. S. Fuller with him,) for the Commonwealth.

W. A. Buie, (John R. Murphy with him,) for the petitioners.