Chandler v. Jamaica Pond Aqueduct Corp.

Gray, C. J.

In estimating the value of a lot of land taken for a public use, actual sales of similar lands in the vicinity, about or before the time of such taking, are admissible in evidence ; and the question whether such other lands are sufficiently like the land taken, and such sales sufficiently near in point of time, to make the evidence competent, is largely within the discretion of the judge or officer presiding at the trial *307 Shattuck v. Stoneham Branch Railroad, 6 Allen, 115 . Benham v. Dunbar, 103 Mass. 365 . Green v. Fall River, 113 Mass. 262 .

But Ms discretion in tMs respect is not unlimited. If he excludes sales of lands lying very near the land in question, upon the ground that they are too remote ; Paine v. Boston, 4 Allen, 168 ; or if he admits sales of lands so dissimilar in situation and circumstances and in the uses to wMch they may be appropriated, that the court can see that such sales could afford no just measure of the value of the land taken, it is a matter of exception. Boston & Worcester Railroad v. Old Colony Railroad, 3 Allen, 142 , 146. Presbrey v. Old Colony Railroad, 103 Mass. 1, 9 .

We have not been referred to any case in which sales of other lands, at a later date than at or about the time of the taking of the land of the petitioner, have been held competent as independent evidence. In Whitman v. Boston & Maine Railroad, 7 Allen, 313 , 318, the subsequent sale was of part of the same land by the petitioner himself, and was admitted upon his cross-examination, and the decision overruling an exception to its admission was ultimately put upon the ground that “ great latitude of cross-examination might test the accuracy and fairness of the witness.” The presumption of the continuance of a state of tMngs once proved to exist may give rise to an inference that it has not since been changed; but it has no tendency to prove that it had existed previously, or, as is sometimes said, presumptions do not run backwards. Stark. Ev. (4th ed.) 76, 761. Hingham v. South Scituate, 7 Gray, 229 , 233.

In the present case, the other lot was not only a thousand feet off and in another town, but it was similar to the land taken only in being low land traversed by a brook. The two lots were dissimilar in respect of access by streets, of nearness to other houses, and of likelihood of coming into the market; and the sale was made three years after the taking of the petitioners’ land, and after a general advance in the value of lands in both towns. We are of opinion that the evidence was incompetent and likely to mislead and prejudice the jury, and that its admission requires the verdict to be set aside.

Exceptions sustained.