Silk v. Commonwealth
Silk v. Commonwealth
Opinion of the Court
This is a petition for the assessment of the damages arising out of the respondent’s taking in 1966 of some 172,000 square feet of land, together with two buildings thereon (“one a car wash building and the other a building used as a warehouse”), owned by the petitioners and located on Mystic Avenue and Shore Drive in Som-erville. The jury returned a verdict for the petitioners in the amount of $314,000, and the case is here on the petitioners’
The principal dispute between the parties centered on the value of the car wash building, which was 278 feet long and varied in width from thirty to forty feet. Two thirds of the building were one story in height, and one third was two stories in height. At the time of the taking the major portion of the ground floor housed mechanical car washing equipment, the balance having been devoted to related facilities such as boilers for supplying hot water and steam to the washing equipment, an office, a tool room, a laundry, and lavatories. On the second floor were a rest room and a stockroom.
1. One of the petitioners testified to a number of features of the building which supported his contention that the building was special purpose in nature, including the following: concrete floors in the car washing section of the building which were pitched in such fashion as to cause water to flow into large sumps located beneath the floor and from which water was drained from the building; a mechanical conveyor which was imbedded in the concrete floor and which had a 212 foot long guide rail employed in pulling and guiding cars through the car washing operation; a separately drained pit in the floor under a wheel washing machine; electrical conduits and plumbing installed several inches below the surface of the concrete floor to serve the car washing machinery; and large exhaust fans in the exterior walls to prevent accumulations of condensed moisture inside the building. The same petitioner testified without objection that in his opinion the “fair market value of the building and the land which was taken” was $700,000.
A voir dire was then held on the question of admitting evidence of the reproduction cost less depreciation of the car wash building at the time of the taking. Under an agreement that the foregoing testimony should be incorporated by reference, the petitioners called one William Engle, who testified that he had been engaged by the petitioners to “make a survey of the land and building
At the conclusion of the voir dire the trial judge stated that he would permit the petitioners to introduce evidence designed to show that the highest and best use of the building in question was as a car wash but ruled, subject to the petitioners’ exception, that he would exclude evidence of reproduction cost less depreciation because the petitioners had “not established to the satisfaction of the [cjourt that it is impossible to prove the value of the property without dispensing with the usual rule” of valuation. In the course of explaining his ruling the judge specifically quoted the following passages from the case of Tigar v. Mystic River Bridge Authy. 329 Mass. 514, 518: “[T]he usual rule should be departed from and testimony of this kind admitted only when without it it is impossible to prove the value of the property in question”; and “The burden is on the owner to show that it is impossible to prove the value of the property without dispensing with the usual rule.”
It is apparent from what has been said that the trial judge was well aware of the controlling principles of law governing the admissibility of evidence of reproduction cost less depreciation (see, in addition to the Tigar case, Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy. 335 Mass. 189, 193-198; Bachelder Truck Sales, Inc. v.
3. Finally, the petitioners argue their exceptions with respect to the admission of evidence offered by the respondent of the sales prices of two properties, one on Mystic Avenue in Medford and the other on McGrath Highway in Somerville. After admitting the price of each sale the judge specifically and carefully advised the jury that it was for them to determine how much weight, if any, should be given to the sales prices. As the petitioners’ own expert witness Grush had already testified during the petitioners’ case in chief that the first of these sales “helped him to a certain extent” in arriving at his opinion of $666,000 as the total amount of damages sustained as a result of the taking, we do not see how the “error complained of has . . . injuriously affected the substantial rights of the” petitioners within the meaning of G. L. c. 231, § 132. The other
In view of the foregoing we find it unnecessary to decide whether the petitioners are barred from appellate review by the possibility that this case went to judgment under Rule 79 of the Superior Court (1954) during the interval between the expiration date of the second extension of time for filing a bill of exceptions and the date on which the trial judge purported to act under one or both of the concluding two sentences of G. L. c. 231, § 113, as amended, to grant a third such extension.
Exceptions overruled.
We note in this connection that the petitioners have not briefed their exception to the admission in evidence of the price at which a car wash building on Middlesex Avenue in Medford was sold in 1965. This was one of the sales in which Engle said he had participated.
Our decision on this point does not rest on the possibility that either of the disputed buildings sold may have been comparable to the “warehouse” located on the petitioners’ property but nowhere described in the bill of exceptions, or on any of the photographs which were marked in evidence, which were incorporated by reference in the bill of exceptions, but which are nowhere identified in the bill.
Concurring Opinion
(concurring in result). I agree in overruling the exceptions to the trial judge’s refusal to admit evidence of the depreciated reproduction cost of the car wash building. However, as I read the statements made by the trial judge in taking this action, he ruled that the evidence offered by the petitioner was inadmissible as a matter of law. On the record I believe he was correct.
Reference
- Full Case Name
- John P. Silk & Another, Trustees, vs. Commonwealth
- Cited By
- 5 cases
- Status
- Published