ONORATO BROTHERS, INC. vs. MASSACHUSETTS TURNPIKE AUTHORITY.

CUTTER, J The petitioner purchased in 1953 lots 61-67 and lot 80 in a section of Framingham. The respondent took (under St. 1952, c. 354) by eminent domain, by order dated March 24, 1955, part of lot 65 and the whole of lots 66, 67, and 80. Entry was made on March 30, 1955. Prior

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to the taking the petitioner had built speculative houses on lots 61-64, and after these houses were completed, the respondent put a number of stakes on these lots for the purpose of making surveys and plans. Thereafter, but prior to March 24, 1955, the holder of the mortgage on lots 61-64 foreclosed that mortgage.

The petitioner filed on September 21, 1955, its petition under G. L. (Ter. Ed.) c. 79, Section 14, for assessment of damages for the lots actually taken. It seeks to recover also for injury to lots 61-64 which it contends was caused by placing stakes on these lots. The case is here on the petitioner's bill of exceptions relating to rulings (described in detail later) of the trial judge excluding certain evidence. The pertinent provisions of St. 1952, c. 354, [Note p55-1] and certain related provisions of G. L. (Ter. Ed.) c. 79, [Note p55-2] are set out in the margin.

1. The petitioner asked two real estate experts and the president of the petitioner questions about the value of lots 61-64 before and after the placing of survey stakes on these

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lots. When the questions were not allowed, offers of proof were made that the aggregate fair market value of lots 61-64 and the buildings thereon was $68,000 prior to the placing of survey stakes on these lots and $56,000 after the stakes had been placed. Exceptions were duly saved.

We assume that entry for preliminary surveys upon lots 61-64 could have been permitted without compensation and without violating any constitutional requirement. Winslow v. Gifford, 6 Cush. 327, 329-330. Lafontaine's Heirs v. Lafontaine's Heirs, 205 Md. 311, 320-321. See Restatement: Torts, Section 211, comment c; Nichols, Eminent Domain (3d ed.) Sections 6.11, 26.22. Compare Hazen v. Boston & Maine Railroad, 2 Gray 574, 581; Brigham v. Edmands, 7 Gray 359, 362-363; Providence, Fall River & Newport Steamboat Co. v. Fall River, 183 Mass. 535, 540-541. However, the Legislature (see United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 137) by St. 1952, c. 354, Section 7 (see note 1, supra), expressly (a) has permitted the respondent to enter on the land of others to make surveys, and (b) has provided for reimbursement of "any actual damage resulting to such lands." [Note p56-1] Section 15, paragraph 5 (also quoted in note 1), permits any "person damaged in his property by the exercise of . . . the powers granted by this act" to recover for such damage under G. L. (Ter. Ed.) c. 79. There is no indication in the record that the entry on lots 61-64 to make surveys was authorized by any formal vote or order of the respondent. Accordingly, we assume that G. L. (Ter. Ed.) c. 79, Section 10 (quoted, supra, note 2) governs any recovery with respect to lots 61-64 in the present case. See United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 140-141.

The petition in this proceeding refers only to lots 65-67 and lot 80 without making any mention of lots 61-64. All of these lots, both those not taken and those actually taken, were owned by the petitioner in 1953, and for a time thereafter

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(subject to various mortgages). However, the foreclosure of the mortgage covering lots 61-64 took place between (a) the preliminary survey made on lots 61-64 and (b) the taking of the other land. Lots 61-64 thus were not owned by the petitioner at the time of the taking of the land actually taken, and do not constitute land of the petitioner remaining in its hands after a partial taking of the tract purchased in 1953. Accordingly, recovery for the damage caused to lots 61-64 by the taking cannot now be allowed on the basis referred to in Valentino v. Commonwealth, 329 Mass. 367, 368, and Kinney v. Commonwealth, 332 Mass. 568, 571. See Nichols, Eminent Domain (3d ed.) Sections 14.1-14.4; Orgel, Valuation under Eminent Domain (2d ed.) Sections 47-65.

The petitioner argues, however, that, on principles mentioned in Chandler v. Jamaica Pond Aqueduct Corp. 125 Mass. 544, 550-551, it is entitled, in connection with its recovery of damages for the taking of the land which it did own in March, 1955, to recover also under this petition for the injuries, if any, caused by the survey stakes to lots 61-64, which it owned at the time of the survey. Whether this contention has merit we need not decide, for the petitioner has not offered to prove any substantive facts relating to lots 61-64 which show that it is entitled to recover for any injury whatsoever to those lots caused by the survey. [Note p57-1]

On the present record, there is no indication of more than trivial physical injury to lots 61-64. The petitioner's theory of the damage (although not outlined in any evidence or offers of proof) appears to have been that the placing of the survey stakes on lots 61-64 scared away potential purchasers by creating doubts about the future of the land, thus reducing its market value.

Where a statute, such as St. 1952, c. 354, Section 7, allows recovery for specified injury to land not taken, recovery is not necessarily limited to actual physical injuries to the property itself, if the injury is "special and direct as distinguished

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from remote and consequential." See Wine v. Commonwealth, 301 Mass. 451, 458. On this record, however, there is no basis for contending that lots 61-64 suffered "special and direct" damage different from that suffered by the owners of other lots in the area. Apart from the insignificant physical damage, the only damage to lots 61-64 mentioned in argument as caused by the survey stakes rested upon the supposition, which proved to be unfounded (compare National Dock & Storage Warehouse Co. v. United States, 97 Fed. Sup. 706, 708-709 [Ct. Cl.]), that the execution of the turnpike project would involve a taking of some part of lots 61-64. This type of menace the petitioner shared generally with other landowners in the general area. The record suggests no greater uncertainty about the future of lots 61-64 than about other land along or near the general route which the turnpike was expected to follow while it was being surveyed. The record shows no preliminary action by the respondent toward actual condemnation of lots 61-64 themselves [Note p58-1] and no such action appears to have been contemplated. The only possible substantial injury arises from uninformed public misinterpretation of the presence of the survey stakes. Compare Meriden v. Zwalniski, 88 Conn. 427, 432-435; Nichols, Eminent Domain (3d ed.) Section 14.241; Orgel, Valuation under Eminent Domain (2d ed.) Sections 61-62. The record shows no unreasonable postponement by the respondent of a decision about location causing special loss to the petitioner. Compare Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33, 41-42.

We think any vague cloud upon the future of lots 61-64 caused by the presence of the survey stakes is at most a temporary, inchoate injury which does not give rise to recovery

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on eminent domain principles. See National Dock & Storage Warehouse Co. v. United States, 97 Fed. Sup. 706, 708-709 (Ct. Cl.). It certainly is too indefinite, conjectural, and general to constitute "such injury as is special and peculiar" to land, not in fact condemned, for which recovery can be had in accordance with the second sentence of G. L. (Ter. Ed.) c. 79, Section 12. [Note p59-1] See Putnam v. Boston & Providence Railroad, 182 Mass. 351, 353-354; Bailey v. Boston & Providence Railroad, 182 Mass. 537, 539-540; McSweeney v. Commonwealth, 185 Mass. 371, 373; Wine v. Commonwealth, 301 Mass. 451, 458. See also Whitney v. Lynn, 122 Mass. 338, 343; United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 140; Nichols, Eminent Domain (3d ed.) Section 6.11 at pages 242-245, Section 6.42; Hanify, Elements of Damages in Eminent Domain, 34 B. U. L. Rev. 146, 158. Compare Lentell v. Boston & Worcester Street Railway, 202 Mass. 115, 117, 120-121. Compare also noncompensable injuries from the exercise of the police power, Barnes v. Springfield, 268 Mass. 497, 511, certiorari denied 281 U.S. 732; Franco-Italian Packing Co. v. United States, 128 Fed. Sup. 408, 414 (Ct. Cl.).

The evidence offered with respect to lots 61-64 was properly excluded on the record.

2. The petitioner offered evidence of the amount remaining due on a mortgage covering lots 65, 66, 67, and 80 as having a bearing on the loss sustained by the taking of these lots so far as actually taken. We do not need, however, to consider whether evidence of mortgage value is always to be excluded (see Peirson v. Boston Elevated Railway, 191 Mass. 223, 231-234) in eminent domain matters (compare Nichols, Eminent Domain [3d ed.] Section 12.43 at pages 181-182) even if, in a particular case, proof of the amount of a mortgage may have real tendency to establish at least the minimum value of the mortgaged property. The present case,

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in any event, has not been shown to be one for the admission of such testimony. There was no offer of proof on the following points: (1) how much of the amount due on the mortgage represented money originally lent and how much, if any, was arrears of interest; (2) the extent to which the security for the mortgage loan was furnished by lot 65 which was taken only in minor part; and (3) the change, or absence in change, in values of the mortgaged property between (a) 1953 when the mortgage was given as a purchase money mortgage in connection with the purchase of lots 61-67 and 80, and (b) the taking in 1955. The absence of a showing on these points, among others, made the evidence of the amount remaining due on the mortgage of little, if any, probative value in establishing the value of the land actually taken and the extent of the injury caused by its condemnation. The trial judge properly excluded this evidence.

Exceptions overruled.