Trial of this petition under G.L.c. 79 for assessment of damages in the taking of land in Savoy had the unusual result of a verdict for the Commonwealth. The petitioner's exceptions are to the admission in evidence of a so called "Land Damage Agreement," to the denial of her motion to strike that agreement from evidence, and to the allowance of the Commonwealth's motion to amend its answer during trial.
The petition was filed on January 30, 1959, and the answer on April 24, 1959. On June 2, 1959, the petitioner filed interrogatories to the respondent.
The taking was of six parcels aggregating 2.05 acres from
On May 14, 1958, the respondent recorded the order of taking, which was made on April 29, 1958, and which named the sand company as owner. The purpose of the taking was to eliminate a curve and to widen portions of a road. The only notice received by the petitioner was in a communication the respondent mailed in May, 1958, addressed "Savoy Sand Company, c/o Mrs. Victoria Wright, 71 Circle Drive, Plandome Manor, Manhasset, New York." This she opened and observed an award of $1 for each of the six parcels, but did nothing further. On July 1, 1958, she received a second communication from the respondent addressed like the first. This contained the first sheet of exhibit 22, at the time unsigned and undated, and three maps of certain Savoy takings, including those concerned in this case. No copy of the first sheet was enclosed. On July 10, 1958, the petitioner dated and signed the first sheet of exhibit 22, and mailed it to the respondent, but retained the maps. Upon receipt, the respondent, through the Department
The petitioner testified that she first became aware of the takings and their location when she visited the real estate in August, 1958. She then discovered that the road, which was in construction, went through a valuable mineral deposit on her land, and consulted counsel.
The petitioner has neither received any money from, nor been tendered any money by, the respondent. Her own testimony was that her damages were $10,000. That of her expert was that they were $7,750 and that of the respondent's expert that they were $300.
The petitioner testified that she was puzzled when she saw "Savoy Sand Company" on the first sheet, but relied upon the assumed fact that the respondent knew what it was doing. She examined the maps before signing.
In order to understand fully the exceptions relating to exhibit 22, it is necessary to set it forth at some length. It is on a printed form of the Department of Public Works, Right of Way Division, and is entitled "Land Damage Agreement Standard Form." The names of the town and county are typed in. The project is given as "Route 116 Recons.," the name of the owner as "Savoy Sand Company," its mailing address as "Mrs. Victoria Wright, 71 Circle Drive, Plandome Manor, Manhasset, New York"; the "layout" as "4673," and the "parcel" as "6, 7, 8, 9, 11 & 13."
There follow two printed paragraphs:
"This agreement is entered into for full settlement of any and all claims for damages incurred or to be incurred by the Department of Public Works as a result of a taking by eminent domain, construction and/or alteration of the subject project by the Department of Public Works. The land/or rights in land taken and limitations of access, if any, are described in an order of taking (together with any related plans) adopted by the Department of Public Works
"The owner agrees to accept the sum of $150.00 [figures in type], plus an apportionment of real estate taxes from the date of the recording of the order of taking to the end of the calendar year of the taking, in full settlement of any and all claims whatever to the taken or remaining property of the owner on the subject project whether caused by the taking of land and/or rights in land, limitations of access, changes in grade or drainage and/or alteration of said project; and agrees to give to the Commonwealth of Massachusetts, through its Department of Public Works, such releases as will release the claims, due to said taking, construction and/or alteration, of any and all persons or concerns having ownership or any interest or title in the premises."
The final printed paragraph is, "It is understood and agreed that this agreement shall become binding only when signed by the owner and other parties in interest, and formally approved by the Commissioners of Public Works."
At the bottom of the page certain printed topics are filled in in ink by the department: Damages $150.00 Taxes $0.90 Total $150.90. Thereafter beside the topics "Signature of owner Date Assented to by mortgagee" the respective blanks in the petitioner's handwriting are: "Victoria P. Wright July 10, 1958 No mtg." Below is "Approved by Right of Way Engineer" followed by the signature of one Ellis.
The second page is in typewriting:
"July 29, 1958 Voted, That the offer of Savoy Sand Company, c/o Mrs. Victoria Wright, dated July 10, 1958, to settle for $150.00 (plus $0.90 tax allowance) their claim for damages resulting from the laying out and construction of a State highway in the town of Savoy (Layout No. 4673, dated April 29, 1958 — Parcels Nos. 6, 7, 8, 9, 11 & 13) be accepted, and an award be made accordingly."
This is followed by a stamp attesting that it is a true copy by "Edward F. Doyle, Secretary, Public Works Commission Department of Public Works."
Before considering any exception relating to exhibit 22 we must state the facts concerning the amendment to the answer, which was allowed following the marking of that exhibit. The original answer was a general denial and a denial that the petitioner is entitled to compensation for the taking. On May 5, 1965, the amended answer added another paragraph alleging that the "plaintiff" entered into an agreement with the Commonwealth releasing and discharging the Commonwealth from the cause of action "declared in the petition," and that the offer was duly accepted by the Commonwealth thus releasing and discharging the Commonwealth. The allowance of the amendment was within the judge's discretion, G.L.c. 231, §§ 51, 145, and was not barred by G.L.c. 79, § 22, quoted below.
General Laws c. 79, § 22,
As hitherto noted, no order expressly removed the default. The hearing began without an exception by the petitioner on this ground. This must be taken to be a waiver of the failure formally to remove the default. It was not, however, a waiver of the right to receive in answer to interrogatory
To the extent that exhibit 22 may have been inadmissible because of the limited allegations of the original answer this has been cured by the amendment of the answer. There is, however, another objection to admissibility. The effect of the writing is a question of law for the court. Ingalls v. Green, 337 Mass. 444, 447. Charles L. Hazelton & Son, Inc. v. Teel, 349 Mass. 617, 621. In the circumstances in which it came to the petitioner's notice, the document, or more precisely its first page, which is all she saw before it was admitted in evidence at the trial, was highly ambiguous. It was addressed to a defunct corporation. The petitioner's name was nothing but a "mailing address." The Commonwealth in its brief has argued that that page then
Subsequent to her offer she never received or even had temporary possession of a copy of the second page. She was never notified in any way of its contents or of the vote. Had she been allowed to examine it, all she would have observed was that there had been a vote by the department purporting to accept an offer of the sand company. No money was paid or tendered, and there was nothing in exhibit 22 which sustained the allegation of the amended answer that she released and discharged the Commonwealth from damages for the taking.
Viewed merely as an offer by the petitioner to settle all claims, exhibit 22 was not admissible. Ashton Valve Co. v. Jean, 273 Mass. 360, 362.
It was error to admit exhibit 22. It was likewise error not to strike it from evidence.