Opinion — Boston Chamber of Commerce v. Boston

BOSTON CHAMBER OF COMMERCE v. CITY OF

BOSTON.

ERROR TO THE SUPERIOR COURT OF THE STATE OF

MASSACHUSETTS.

No. 99. Argued March 2, 3, 1910.—Decided April 4, 1910.

This court accepts the construction of a state statute as to condemna-

tion of land given to it by the state court.

While in condemnation proceedings the mere mode of occupation does

not limit the right of an owner’s recovery, the Fourteenth Amend-

ment does not require a disregard of the mode of ownership, or re-

quire land to be valued as an unencumbered whole when not so held.

Where one person owns the land condemned subject to servitudes to

190 OCTOBER TERM, 1909.

Argument for Plaintiff in Error. 217 U.S.

others, the parties in interest are not entitled to have damages esti-

mated as if the land were the soie property of one owner, nor are

they deprived of their property without due process of law within

the meaning of the Fourteenth Amendment because each is awarded

the value of his respective interest in the property.

195 Massachusetts, 338, affirmed.

Tue facts are stated in the opinion.

Mr. Charles A. Williams and Mr. Charles S. Hamlin for

plaintiff in error:

The market value of the “locus,” the land taken for this

street at the time of the taking, was $60,000.

Consequently, the owners in fee simple of the land unen-

cumbered were entitled to recover in this proceeding $60,000.

Boom Company v. Patterson, 98 U. 8. 403.

In determining the damages sustained by an owner of land

taken by eminent domain, the use which the landowner at the

time of taking happens to be making of his land is not the

only thing to be considered. The use which the owner of the

land taken is making of the land at the time of the taking is

absolutely and wholly immaterial. Maynard v. Northampton,

157 Massachusetts, 218, 219; Eastern R. R. v. Boston & Maine

R. R., 111 Massachusetts, 125, 132; and see also Providence &c.

R. R. v. Worcester, 155 Massachusetts, 35; Conness v. Com-

monwealth, 184 Massachusetts, 541; Fales v. Easthampton,

162 Massachusetts, 422, 425.

The right of the petitioners to recover the fair market value

of the land is not lost because of the fact that there is more

than one owner, nor by reason of the fact that the entire title

is held by different owners who own different interests, nor

because of the fact that at the time of the taking the peti-

tioners were making a use of the land similar in kind to the

use which the city intended by its taking, to make of it.

And this although neither without the codperation of the

other could convey a clear title to the whole estate. Ed-

mands v. Boston, 108 Massachusetts, 535.

The statute was not intended to be used so as to prevent

BOSTON CHAMBER OF COMMERCE v. BOSTON. 191

217 U.S. Argument for Defendant. in Error.

the recovery of full damages, i. e., the fair market of the

land taken. It was only intended to prevent the recovery of

more than the fair market value.

The taking of land for a highway and subjecting it to that

use in perpetuity, to the exclusion of all other uses, gives the

owner of the land taken, the right to recover the fair market

value of the land taken, even though technically an easement

and not the fee is taken. If what is taken is practically co-

extensive with the fee, and if the taking deprives the owner

of the beneficial interest in the land, then it makes no differ-

ence in the quantum of the damage which he has sustained

whether you call the taking a taking of an easement or a taking

of the fee. Lawrence v. Boston, 119 Massachusetts, 126; Ed-

mands v. Boston, 108 Massachusetts, 535; Chase v. Worcester,

108 Massachusetts, 60, 67; Parks v. Boston, 15 Pick. 198;

Newton v. Perry, 163 Massachusetts, 319; New Eng. Tel. &

Tel. Co. v. Boston Terminal Co., 182 Massachusetts, 397, 399;

Sears v. Crocker, 184 Massachusetts, 586.

The decision of the state court overlooks the vital fact that

the petitioners by their agreement with reference to this land

did not part with the right to sell the land to be used for any

of the purposes for which it was adapted, while the taking

by the city did deprive them of this right. Blaney v. Salem,

160 Massachusetts, 303.

In Massachusetts, easements in gross may be reserved in a

deed poll, and may be separately sold and conveyed. Good-

rich v. Burbank, 12 Allen, 459, 461; Whittenton Mfy. Co. v.

Staples, 164 Massachusetts, 319, 328; White v. Crawford, 10

Massachusetts, 183; and see also Matter of the Opening of

Eleventh Avenue, 81 N. Y. 436; S. C., 27 App. Div. (N. Y.) 265;

Winthrop v. Welling, 2 App. Div. (N. Y.) 229; Re Canal Place,

101 N. Y. Supp. 397; see also 115 App. Div. 458; and 191

N. Y. 525; Re Jerome Avenue, 105 N. Y. Supp. 319.

Mr. Thomas M. Babson for defendant in error:

Damages, when property is taken, are to be assessed as of

192 OCTOBER TERM, 1909.

Argument for Defendant in Error. 217 U.S.

the time of taking. Parks v. Boston, 15 Pick. 198; Cobb v.

Boston, 109 Massachusetts, 438; Pitkin v. Springfield, 112

Massachusetts, 509; Burt v. Merchants’ Ins. Co., 115 Massa-

chusetts, 1; Bates v. Boston El. Ry., 187 Massachusetts, 328.

The construction of the statute by the state court gave the

plaintiffs in error just compensation measured by the loss

caused them. The decision entitled them to receive the value

of what they have been deprived. To have awarded more

would have been unjust to the public. At the time of the tak-

ing of the easement of public travel the land taken was already

subject to rights of way and to rights of light and air not only

to the Wharf and Dock Corporation but to its assigns, and the

owner of the land so taken may be limited in his recovery to

nominal damages. Bartlett v. Bangor, 67 Maine, 460; Walker

v. Manchester, 58 N. H. 438; Wilkins v. Same, 74 N. H. 275;

In re Ethel Street, 24 N. Y. Supp. 689; Olean v. Steyner, 135

N. Y. 341; In re Adams, 141 N. Y. 297; Washburn v. Common

Council, 128 App. Div. (N. Y.) 44, 49; Gamble v. Philadelphia,

162 Pa. St. 413; C., B. & Q. R.R. Co. v. Chicago, 166 U. S. 226.

Servitudes which diminish the value of land are a legiti-

mate ground for a reduction of damages. Tobey v. Taunton,

199 Massachusetts, 411; Crowell v. Beverly, 134 Massachusetts,

98. See also Allen v. Boston, 137 Massachusetts, 319; New

England Tel. & Tel. Co. v. Boston Terminal Co., 182 Massa-

chusetts, 400.

The filing of a stipulation signed by the plaintiffs in error

could not make the property taken unencumbered building

land, and as such the property of a single owner in fee, when

at the time of the taking it was not. To so construe the statute

would have been to deprive the public of property without

due process of law rather than the plaintiffs in error. Thus the

United States will follow the construction of a state statute

given it by the highest court of the State. Maiorano v. B.

& O. R. R. Co., 213 U.S. 268; Smiley v. Kansas, 196 U. S. 447,

455; Tullis v. Lake Erie & Western R. R. Co., 175 U. S. 348,

353; Covington v. Kentucky, 173 U.S. 231.

a RRM RR nae p EN NE _

BOSTON CHAMBER OF COMMERCE v. BOSTON. 193

217 U.S. Opinion of the Court.

Mr. Justice Hoimgs delivered the opinion of the court.

This is a petition for the assessment of damages caused by

the laying out of a public street over 2955 square feet of land

at the apex of a triangle between India Street and Central

Wharf Street in Boston, the latter being a private way between

Milk Street and Atlantic Avenue, laid out by the same order as

part of the same street. The Chamber of Commerce had a

building at the base of the triangle and owned the fee of the

land taken. The Central Wharf and Wet Dock Corporation,

which owned other land abutting on the new street, had an

easement of way, light and air over the land in question, and

the Boston Five Cents Savings Bank held a mortgage on the

same, subject to the easement. These three were the only

parties having any interests in the land. They filed an agree-

ment in the case that the damages might be assessed in a lump

sum, the city of Boston refusing to assent, and they con-

tended that it was their right, as matter of law, under the

Massachusetts statute, R. L. c. 48, p. 495, §§ 20, 21, 22, and

the Fourteenth Amendment, to recover the full value of the

land taken, considered as an unrestricted fee. The city on the

other hand offered to show that the restriction being of great

value to the Central Wharf and Wet Dock Corporation, the.

damage to the market value of the estate of the Chamber of

Commerce was little or not!ing, and contended that the dam-

ages must be assessed according to the condition of the title

at the date of the order laying out the street. It contended

that the jury could consider the improbability of the easement

being released as it might affect the mind of a possible pur-

chaser of the servient estate, and that the dominant owner

could recover nothing, as it lost nothing by the superposition

of a public easement upon its own. The parties agreed that

if the petitioners were right, the damages should be assessed at

$60,000, without interest, but if the city was right they should

be $5,000. The judge before whom the case was tried ruled in

favor of the city, and this ruling was sustained by the Supreme

VOL. ccxviI—13

194 OCTOBER TERM, 1909.

Opinion of the Court. 217 U.S.

Judicial Court, upon report. 195 Massachusetts, 338. A

judgment was entered in the court where the record remained,

and then the case was brought here.

We assume in favor of the petitioners, the plaintiffs in error,

that their only remedy was under the statute; and we give

them the benefit of the doubt in interpreting the decision of

the court, so far as to take it to mean that the statutes of

Massachusetts authorize the taking of land held as this was

with no other compensation than according to the principle

laid down. In short, we assume in their favor that the consti-

tutional question is open, and that the case properly is not to

be dismissed. But we are of opinion that upon the only possi-

ble question before us here the decision was right.

Of course we accept the construction given to the Massachu-

setts statute by the state court. Maiorano v. Baltimore & Ohio

R. R. Co., 213 U. 8. 268, 272. The only question to be con-

sidered is whether when a man’s land is taken he is entitled

by the Fourteenth Amendment to recover more than the

value of it as it stood at the time. For it is to be observed that

the petitioners did not merely contend that they were entitled

to have the jury consider the chance of getting a release, for

whatever it might add to the market value of the land, as the

city merely contended that the jury should consider the chance

of not getting one. The petitioners contended that they had a

right, as matter of law under the Constitution, after the taking

was complete and all rights were fixed, to obtain the conniv-

ance or concurrence of the dominant owner, and by means of

that to enlarge a recovery that otherwise would be limited

to a relatively small sum. It might be perfectly clear that the

dominant owner never would have released short of a purchase

of the dominant estate—in other words, that the servitude

must have been maintained in the interest of lands not before

the court—but still, according to the contention, by a simple

joinder of parties after the taking, the city could be made to

pay for a loss of theoretical creation, suffered by no one in fact.

The statement of the contention seems to us to be enough.

BOSTON CHAMBER OF COMMERCE v. BOSTON. 195

217 U.S. Opinion of the Court.

It is true that the mere mode of occupation does not neces-

sarily limit the right of an owner’s recovery. Boom Co. v.

Patterson, 98 U.S. 403,408. Louisville & Nashville R. R.Co. v.

Barber Asphalt Co., 197 U.S. 430, 435. But the Constitution

does not require a disregard of the mode of ownership—of the

state of the title. It does not require a parcel of land to be

valued as an unencumbered whole when it is not held as an

unencumbered whole. It merely requires that an owner of

property taken should be paid for what is taken from him. It

deals with persons, not with tracts of land. And the question

is what has the owner lost, not what has the taker gained. We

regard it as entirely plain that the petitioners were not en-

titled as matter of law to have the damages estimated as if the

land was the sole property of one owner, and therefore are

not entitled to $60,000 under their agreement. See Bartlett v.

Bangor, 67 Maine, 460, 468. Walker v. Manchester, 58 N. H.

438, 441. Gamble v. Philadelphia, 162 Pa. St. 413. Matter of

Adams, 141 N. Y. 297. Olean v. Steyner, 135 N. Y. 341, 346.

Crowell v. Beverly, 134 Massachusetts, 98. There is some sub-

ordinate criticism under the alternative agreement giving

them only $5,000. It is noticed that this was conditioned upon

the petitioners not being entitled as just stated, and upon the

admissibility of the evidence offered by the city, and upon the

substantial correctness of the requests for rulings; and it is

said that the evidence was not admissible. It seems to us that

the worst objection to it was that it was offered to prove the

obvious. But taking the agreement fairly we think it meant

only to contrast broadly the position of the two sides, and

made the result depend upon which was right.

Judgment affirmed.