Home ROBERT D. QUIRK & another vs. TOWN OF MAYNARD.

360 Mass. 845

September 16, 1971

The town took by eminent domain two parcels to obtain access to a water supply under Lot A. Upon a petition for assessment of damages there was a substantial verdict with respect to Lot A. The town presents various exceptions. (1) Evidence was properly admitted bearing upon the effect of the known presence of water upon the fair market value of Lot A. See Carlson v. Holden, 358 Mass. 22 , 26. (2) The judge's charge, in the light of the evidence, adequately covered matters upon which he was asked to give instructions. (3) There was insufficient basis in the evidence to require instructions with respect to G. L. c. 131, Section 117C, inserted by St. 1965, c. 220. (4) Evidence bearing upon certain engineering and subdivision planning costs had some relevance on the issue of fair market value. (5) An expert witness called by the town testified that in his appraisal he had "considered" certain sales of land near Lot A. For the purpose of testing knowledge, methods, and opinion of the witness, the judge could properly allow him to be asked on cross-examination whether the sales had been at a higher unit price than he had used in appraising Lot A. Valley Paper Co. v. Holyoke Housing Authy. 346 Mass. 561 , 568-569. See Hunt v. Boston, 152 Mass. 168 , 171; Nichols, Eminent Domain (Rev. 3d ed.) Section 18.45; Wigmore, Evidence (3d ed.) Section 464. The judge, in his discretion even on cross-examination, appropriately might have required preliminary proof of the comparability to Lot A of the other parcels. The statement, however, that the witness had "considered" the sales to some extent implied comparability. In these matters much must be left to the judge's discretion. The judge was not asked to limit the effect of the testimony. In any event, any error was harmless for the witness at once, on redirect examination, was allowed to testify that he did not regard the other parcels as comparable for reasons stated by him in great detail. On this point, this is the opinion of a majority of the court.

Exceptions overruled.

Home RUTH C. SMITH vs. MASSACHUSETTS ELECTRIC COMPANY.

360 Mass. 845

September 29, 1971

The plaintiff was injured on September 25, 1964, when she fell into a hole in a public sidewalk at a point near a power line pole owned and maintained by the defendant. The jury returned a verdict for the defendant. The sole exception is to the court's instruction to the jury to the effect that "Massachusetts Electric Company is not liable for the negligent act, if any, of any predecessor corporation." The pole in question had been installed in 1928 by another corporation which was merged into the defendant corporation

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"sometime in the past ten years" prior to the trial. The plaintiff contends that under the provisions of G. L. c. 156B, Section 80 (b), formerly c. 156, Section 46C, the defendant assumed all of the liabilities and obligations of the corporation which had installed the pole. We need not decide that issue for the reason that there is no evidence in the record that the condition which caused the plaintiff to fall existed at the time of the merger which was fixed only as within a ten year span. On the limited bill of exceptions before us, which does not include the remainder of the judge's charge to the jury, the plaintiff shows no error resulting from the instruction to which she excepted.

Exceptions overruled.