GRACE H. WYMAN [Note 1] vs. CITY OF BOSTON.

WAIT, J. The several petitioners are owners of properties on Waldeck Street in the Dorchester district of Boston, which adjoin land formerly owned and used by the New York, New Haven and Hartford Railroad Company in the operation of its Shawmut branch. Pursuant to authority conferred by St. 1923, c. 480, the city of Boston, through its transit department, took the land of the railroad company for the purposes of the Dorchester Tunnel. Its lessee, the Boston Elevated Railway, now operates trains on the property so taken. No taking was made of land of any of the petitioners. Section 8 of said c. 480 provides as follows: "Any person sustaining damage by reason of property or rights in property taken or injured by the department under authority of this act, except public ways or lands, shall be entitled to recover the same from the city under" the statute relating to eminent domain, G. L. c. 79. At the trial, the petitioners excepted to the refusal of the presiding judge to give the following instructions: "2. The obligation of the city of Boston is to pay all special and peculiar damage arising from the maintenance and operation of the rapid transit system. 3. If the noise or vibration occasioned by the operation of the rapid transit trains was harmful to either the health or the comfort of ordinary people living on the land of the petitioners the petitioner is entitled to recover for the damage to his real estate so occasioned." It is the contention of the petitioners that St. 1923, c. 480, § 8, gives them a right to damages if their property has been injured by a nuisance resulting from the operation and maintenance of the system; that if noise, vibration, dust, etc., arising therefrom are such as to constitute a nuisance at common law they have received a special and peculiar damage even if that nuisance has been authorized by the statute and does not amount in itself to a taking of their property. They contend that the instructions actually given required the jury to find that any nuisance which might be found to exist was so extensive as to amount to a taking of their property; and, therefore, were erroneous. They contend, at least by implication,

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that the reference to G. L. c. 79 relates merely to the course of proceeding to be followed in enforcing their rights.

We think they are wrong. In our opinion the section refers to G. L. c. 79 as the measure of their rights as well as the means of enforcing them; that, under that chapter, recovery is limited to a special and peculiar damage beyond that common to the vicinage and apart from such injury as, but for the acts authorized by St. 1923, c. 480, would have constituted a nuisance not amounting to a taking. We find nothing in the cases cited by them, Munn v. Boston, 183 Mass. 421, Hyde v. Fall River, 189 Mass. 439, Lentell v. Boston & Worcester Street Railway, 202 Mass. 115, Fifty Associates v. Boston, 201 Mass. 585, which compels a different conclusion. Request 2 is not to be taken to be a correct statement of law when understood in the sense for which the petitioners contend. There was no reversible error in refusing to give it; because, taken in one sense, it was covered by the instructions given, and because, taken in the sense desired by the petitioners, it was erroneous. Put in another form, the petitioners contend that since under the decision in Baker v. Boston Elevated Railway, 183 Mass. 178, noise, vibration, etc., caused by the rapid transit system may be found to be a nuisance and a special and peculiar damage, recoverable under the statute which provided for the construction, operation and maintenance of the elevated railway in the streets of Boston, the same rule is applicable here. But St. 1923, c. 480, did not refer to the elevated railway act, St. 1894, c. 548, § 8, under which damages were assessed in the Baker case. It referred to G. L. c. 79, the statute dealing generally with takings by eminent domain. St. 1923, c 480, contemplated that the land belonging to the Old Colony Railroad Company, as owner, and the New York, New Haven and Hartford Railroad Company, as lessee, should be taken and that upon it should be placed surface tracks of the rapid transit system, §§ 2, 6, 9, 14, as has now been done. The Legislature must have contemplated the former location of the Shawmut branch as land which had been acquired,

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substantially by eminent domain (see Saltonstall v. New York Central Railroad, 237 Mass. 391, 394, et seq.), with relation to which compensation had been paid, where persons, whether their lands had been taken or not, had no longer valid claims for damages. Yet the Legislature made no provision, such as was made in St. 1894, c. 548, declaring the contemplated use to be an additional servitude. They left the usual rule of law to operate, that "all legal damages, whether immediate or remote, present or future, arising from the location of the railroad and that which follows necessarily therefrom in way of subsequent maintenance and operation, are paid for at the beginning, and that whatever changes thereafter may be wrought upon the railroad location in the natural development of the railroad art constitutes no new cause of action unless authorized by some new statute." Saltonstall v. New York Central Railroad, 237 Mass. 391, 396, 397. Had they intended new causes of action to arise for property owners in this locality, we think they would have so stated in clear terms. For this reason, if for no other, we think the refusal to give the request was proper. The Old Colony Railroad Company, as owner, and the New York, New Haven and Hartford Railroad Company, as lessee, not the plaintiffs, were the owners of the rights for which the petitioners are contending in this part of their argument. Request 3 is a sufficient definition of noise or vibration as a nuisance; but, for the reasons stated, the jury could not properly be instructed thus broadly that any noise or vibration sufficient to constitute a nuisance would sustain recoveries.

A doctor, qualified as a neurologist, called by the petitioners, testified that he had visited the premises once, three days before, had stayed on several of the petitioners' properties for a few minutes, and had heard the noise and felt such vibration as was there. He was asked what effect, if any, the noise and vibration he had found would have on the health and comfort of ordinary people living on the land. The question was excluded, with the offer of proof that the doctor would testify they had and would continue to have a harmful effect. The jurors had taken a view of

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the premises. They had spent several hours in listening to the noise and experiencing such vibration as existed there from passing trains. Conflicting testimony had been heard with regard thereto. We see no reversible error in the exclusion. The judge, in his discretion, well might consider that such opinion evidence would be of no assistance to the jurors and that the doctor had no such experience as qualified him to testify. Neither judge nor jurors knew what the doctor had heard or felt.

The jury from conflicting testimony, and under instructions not otherwise excepted to, found verdicts for the respondent.

Exceptions overruled.