This is a petition for the assessment of damages under G.L. (Ter. Ed.) c. 79, for the taking of land
The parcel taken was at the corner of Poplar Street, had a frontage on Second Street, and contained about two thousand square feet. One side bounded on a five foot passageway leading into Second Street. The passageway was for
The petitioner's husband testified that he was the treasurer and general manager of Tigar Refrigeration Company of which the petitioner was president, and that the various parcels had been acquired for the purpose of being developed as a single unit for use by that company. One building on Walnut Street was to be remodeled as an administration building and as a show room for its business of commercial refrigeration, and the property at 48-50 Second Street was to be remodeled as a freezer building, the two to be connected by a bridge over the passageway. Some time after 1946, as a result of a conversation in which the chairman of the respondent advised him to do no more work because the property might be taken, the petitioner's husband caused work to be stopped.
The assessed values for the three years prior to the taking were: 48-50 Second Street $3,500, and 43-47 Walnut Street $8,000. The parcels were purchased at three different times.
The only other evidence of value or damage introduced by the petitioner was the testimony of the witness Breen. Because of a dispute as to its meaning, it must be stated in detail. The witness, after referring generally to the petitioner's scheme to develop the property for a particular use by the refrigeration company, testified: "The premises, according to the plans which I saw, and having in mind the condition of the property as I viewed it, were in the process
The usual test is the fair market value of the property at the time of the taking. Maher v. Commonwealth, 291 Mass. 343, 348. G.L. (Ter. Ed.) c. 79, § 12. And the judge so stated in making a ruling not now material. Fair market value "means the highest price which a hypothetical willing buyer would pay to a hypothetical willing seller in an assumed free and open market." Epstein v. Boston Housing Authority, 317 Mass. 297, 299. In ascertaining that value, the uses to which the property might probably be applied may be taken into consideration. Burt v. Wigglesworth, 117 Mass. 302, 306. Fosgate v. Hudson, 178 Mass. 225, 232. Or as was expressed in Smith v. Commonwealth, 210 Mass. 259, 261, "all the uses to which the property is reasonably adapted may be considered. If it is so exceptionally fitted for a municipal water supply and the necessity for such use is so imminent as to add something to its present value in the minds of buyers, that element may be considered.... It is only in those rare instances, when property is of such a nature or so situated or improved that its real value for actual use cannot be ascertained by reference to market value, that the standard of special value may be
"But market value is not a universal test, and cases often arise where some other mode of ascertaining value must be resorted to." Beale v. Boston, 166 Mass. 53, 55. Where the property is not commonly bought or sold, to confine the owner to the testimony of witnesses who could testify as to its value by their knowledge of sales of similar property would deprive him of the right to show its true value. In such a case, "it is proper to allow testimony to be given of its value for the special purpose for which it is used ... by persons who show themselves qualified to testify thereto from knowledge derived from experience in their own business in which they have dealt with similar property. The value of land actually used for manufacturing purposes is an illustration of property of this description ... [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." Cochrane v. Commonwealth, 175 Mass. 299, 302-303. See Conness v. Commonwealth, 184 Mass. 541, 543-544; Assessors of Quincy v. Boston Consolidated Gas Co. 309 Mass. 60, 64-65; Nichols, Eminent Domain (3d ed.) § 12.32. 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. Sargent v. Merrimac, 196 Mass. 171, 175. Davenport v. County of Franklin, 277 Mass. 89, 93.
A speculative future development cannot be shown. Moulton v. Newburyport Water Co. 137 Mass. 163, 167. See Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 209 Mass. 298, 314-315; Mann v. Scituate, 260 Mass. 592, 593. Thus, evidence of the rental value should vacant land be improved by the erection of buildings has been held to be too prospective and indefinite in its nature to be competent evidence of present value. Burt v. Wigglesworth, 117 Mass. 302, 306. Gardner v. Brookline, 127 Mass. 358, 362. Fales v. Easthampton, 162 Mass. 422, 425-426. Greenspan v. County of Norfolk, 264 Mass. 9, 11. Likewise
In the case at bar the property, the judge could have found, had been in the course of renovation which was discontinued because of the impending taking. At the time of the taking the building resembled a hollow shell almost completely enclosed on all sides. Obviously, there might be no ready market for it. It could have been found to be something not commonly bought or sold. The intended use of all the petitioner's parcels as a unit was more than a plan for the future, for it could have been found to be a project which was already under way. In so far as the discretion of the trial judge was exercised in favor of admitting testimony of value for a special purpose, we would not be inclined to reverse his ruling.
The precise exception, however, was to giving in evidence the owner's estimate of cost. The witness's answer was interrupted by the ruling and the saving of that exception, and after he resumed, he used from some source a figure of $20,000 for the cost of the unfinished work. It is not clear beyond all doubt that the figure used was the owner's estimate. The petitioner, indeed, argues that the witness was giving his own calculation, but it seems inconceivable that this would have been permitted had it been apparent that this was what he was doing. After all, he had qualified as an expert in real estate, not in engineering or in the construction of refrigeration plants. So, on the question of interpretation, we think that "this figure," as used by the witness, was in its context to be taken as being the owner's estimate of cost. At no time did the witness state that