James Millar Co. v. Commonwealth

Pierce, J.

This is a petition for the assessment of damages caused by the taking of a coal wharf property on Plymouth Harbor, for the Commonwealth, by the Pilgrim Tercentenary Commission, on October 27, 1920, under Spec. St. 1919, c. 187. A jury found for the petitioner, and the case is before this court on the suggestion of the respondent that the court was without jurisdiction, and upon its exceptions taken to the admission of testimony.

The contention that the court had no jurisdiction to entertain suit against the Commonwealth rests upon the indisputable rule of law that the Commonwealth cannot be impleaded in its own court without its consent. Lemon v. Commonwealth, 236 Mass. 599, 600 .

Material provisions of Spec. St. 1919, c. 187, read as follows: Section 1. “The Pilgrim tercentenary commission ... is hereby authorized and directed to acquire in fee or otherwise, in the name and for the benefit of the Commonwealth, by purchase, gift, grant, devise or eminent domain . . . such lands, wharves and buildings ... as were recommended to be acquired for said purpose by the report of the said commission, presented to the General Court in the year nineteen hundred and seventeen, and . . . such lands and buildings ... as, in the opinion of the said commission, should be taken for the purpose aforesaid: provided, that the commission shall not acquire by purchase or right of eminent domain under this act any land or other property to an amount exceeding in value, in the aggregate, the total amount appropriated by the General Court or contributed by individuals, counties, other municipalities or corporations for that purpose.”

Section 5. “ The commission shall, within sixty days after voting to take any lands, rights or easements, as aforesaid, *462 file and cause to be recorded in the registry of deeds for the county of Plymouth, a description thereof sufficiently specific for identification, with a statement of the purpose for which the same were taken, signed by a majority at least of the commission, the recording to operate as a taking of the real estate and rights and easements therein described.”

Section 6. “The commission shall pay all damages to property sustained by any person, firm or corporation, by the taking of any land, buildings, rights or easements, or by any other thing done by the commission under this act. Any person, firm or corporation sustaining damages as aforesaid, and failing to agree with the commission as to the amount thereof, may have the same assessed and determined in the manner provided by law in the case of land taken for the laying out of highways, on application at any time within two years after the taking of such land or other property, or doing of any injury, under authority of this act, but no such application shall be made after the expiration of the said two years.”

Section 10. “The commission may expend, subject to the approval of the Governor and Council, for any of the purposes named in this act, the sum of one hundred and fifty thousand dollars, being the amount appropriated in item five hundred and seven a of the general appropriation act for the current year, and may expend in addition thereto the sum of one hundred thousand dollars during the year beginning December first, nineteen hundred and nineteen. Any balance of said sums unexpended may be expended in the succeeding years, but it is the purpose and understanding of the General Court that the sum of two hundred and fifty thousand dollars is the sum total of all appropriations which the Commonwealth shall make for the purposes of this act.”

We think the provisions in § 1, supra, directing the commission to acquire a fee in land taken in the name and for the benefit of the Commonwealth, read in connection with the limitation put upon that duty in §§ 1 and 10, supra, by implication authorized an action against the Commonwealth, by petition and jury trial, in any case where land was taken by eminent domain, if the petition was brought within two *463 years after the taking and the aggregate amount in value of land and property taken did not exceed the unexpended balance of the amount appropriated by the General Court for the payment of lands and property to be acquired in the name of the Commonwealth. United States v. Great Falls Manuf. Co. 112 U. S. 645, 656 . United States v. Lynah, 188 U. S. 445, 464 . United States v. Cress, 243 U. S. 316, 329 . United States v. North American Transportation & Trading Co. 253 U. S. 330, 333 . Campbell v. United States, 266 U. S. 368 . There is nothing in the record to show that land and property were purchased or taken by the commission in value beyond the amount appropriated by the General Court.

Having regard to the provision that title is to be taken in the name of the Commonwealth, to the appropriations for the purchase and taking of such property, and to the provision for a petition for damages, § 6, we think the case at bar is distinguishable from the case of Bent v. Emery, 173 Mass. 495 , upon which the respondent relies. We think G. L. c. 79, § 45, is not applicable where, as here, the land was taken before that statute went into effect, St. 1918, c. 257, § 187, St. 1920, c. 2, and that the rate of interest on the amount found by the jury was computed rightly at the rate of six per cent per annum.

The testimony of one Welch, that he sold his real estate in Scituate in 1923 for $100,000, was improperly admitted, and the exception of the respondent saved thereto must be sustained. The land sold was located in Scituate, twenty-five miles distant from Plymouth. No evidence was offered of similarity in the valuation of real estate in the two towns. The property sold was nearly twice the size of the property taken. It was similar in the fact that it had a coal wharf with water privileges. It was unlike in the fact that the land had a store on the property, which was used for the hardware business; that it had a building on it used as a post office; and that on it there were five or six lumber sheds used in the conduct of a lumber business. Presbrey v. Old Colony & Newport Railway, 103 Mass. 1 . Chandler v. Jamaica Pond Aqueduct Corp. 122 Mass. 305, 307 . Fourth National Bank of Boston v. Commonwealth, 212 Mass. 66 . Ham v. Salem, 100 *464 Mass. 350 . Benton v. Brookline, 151 Mass. 250 . Klous v. Commonwealth, 188 Mass. 149 . There would seem to have been no insuperable difficulty in ascertaining the fair market value of the land taken in the year it was taken, in a town of the size of Plymouth, without resort to evidence of sales of land twenty-five miles away and at a time two to three years after the taking. So far as the admission of the evidence was a matter of discretion we think it was improperly exercised.

The evidence as to the cost of reproducing the filled land was within the discretion of the trial judge to admit or exclude, and we cannot say in the circumstances of this case that the discretion was improperly exercised. Klous v. Commonwealth, supra. Lakeside Manuf. Co. v. Worcester, 186 Mass. 552, 560 .

The judge rightly excluded copies of the corporation excise tax returns for the year 1920, signed and sworn to by an officer of the petitioner, St. 1923, c. 402, § 3, Brackett v. Commonwealth, 223 Mass. 119, 126 , and the secrecy of the return should not be destroyed or minimized indirectly through the cross-examination of the officer of the corporation who filed the report.

We cannot say that there was an abuse of discretion in the admission of the testimony of Charles E. Fitz, who was allowed to qualify as an expert in the values of water front properties, in view of the apparent difficulties attending proof of the value of the property in question. Cochrane v. Commonwealth, 175 Mass. 299, 302 ;

We think the judge could properly haye admitted the evidence offered to prove that the president of the petitioner’s corporation stated in 1917 “that the property was only a $30,000 investment,” “investment ” being found by the jury to mean as used “value”; but we do not find legal error in this regard.

Exceptions sustained.