Opinion
October 8, 1964.
October 30, 1964.
Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, REARDON, JJ.
Evidence, Of value, Order of evidence, Judicial discretion.
At the trial of a petition for assessment of damages for a taking of a parcel of land, there was no abuse of discretion in the admission of evidence de bene of sales of other parcels before the introduction of evidence that such parcels were comparable with the parcel taken. [84] At the trial of a petition for assessment of damages for a taking of a large tract of land zoned for industrial purposes, having substantial frontage on two streets, suitable for subdivision, and located near "high-speed, limited access highways" in an area where there was "very little vacant land available for industrial development," there was no error in the admission in evidence of the sales prices of several much smaller parcels of land similarly zoned, each having good direct highway access and located in the general area of the tract taken, notwithstanding minor differences between the smaller parcels and the tract taken; nor was there error in the admission in evidence of the opinion of an expert as to the value of the tract taken based in part upon the sales prices of the smaller parcels. [84-86] There was no abuse of discretion, at the trial of a petition for assessment of damages for a taking of a tract of industrial land having substantial frontage on two streets, in excluding evidence respecting the sale of a "land-locked" parcel with "no utilities available to it," abutting the land taken, but having access to streets only over the land of others. [86]
PETITION filed in the Superior Court on March 29, 1961.
The case was tried before Coddaire, J.
John P. Ford ( John F. Burke with him) for the respondent.
Fredric S. O'Brien for the petitioner.
This is a petition under G.L.c. 79 for the assessment of damages resulting from the authority's taking of about seventeen acres of land in Lawrence (the locus) zoned for industrial purposes. The authority being dissatisfied with the verdict brings the case here on exceptions.
1. There was no abuse of discretion in the action of the judge in receiving de bene, at the outset of the trial, evidence about sales of four parcels in the Lawrence-North Andover area. Evidence was offered later that all the four parcels were comparable with the locus, although, at the time when testimony concerning the four sales was given, no such evidence of comparability had been admitted. The order of the presentation of evidence is within the sound discretion of the trial judge. Horowitz v. Bokron, 337 Mass. 739, 742. See Clarke v. Fall River, 219 Mass. 580, 586.
2. The evidence showed that the locus had frontage of 834 feet on one street and of 511 feet on a second street. For a distance of 200 feet from each street, the locus was "reasonably level with . . . [the] streets." Beyond that distance "some areas of the land . . . were elevated." An expert witness testified that the street frontage was important "as was the proximity of the land to high-speed, limited-access highways." There is, he said, "very little vacant land available for industrial development in Lawrence."
Three of the parcels, used for comparison with the locus, were in North Andover. One of one-half an acre was four to five miles from the locus. A second of 2.56 acres was five miles from the locus. The third contained 48,400 square feet. These parcels, one expert witness said, were "very, very similar" to the locus. The fourth parcel in Lawrence, of 45,630 square feet, was only a short distance from the locus. The same expert witness was of opinion that the four parcels and the locus were "similar in characteristics in every feature, including industrial zoning . . . except of course that each . . . [of the four parcels] was substantially smaller than the" locus. The three North Andover parcels were three and one-half miles from the center of Lawrence. The locus was one mile nearer the center, "which difference . . . [the witness] did not think significant." All four parcels had direct street frontage. The witness testified "that the long frontage of the . . . [locus] on two streets made it particularly suitable for division . . . [into] lots with street frontage for small industries." The witness admitted that there were various differences among the locus and the four parcels in topography, traffic conditions, proximity to an airport, wooded areas, and similar matters.
The trial judge did not err in refusing to strike out the evidence of the sales prices of the four parcels or in receiving the expert's opinion as to the value of the locus, an opinion which was in part based upon these four prices. In reaching the conclusion that the four properties were comparable with the locus, the judge could appropriately consider the expert's opinion to that effect, the similar zoning of all the parcels and the scarcity of vacant industrial land in the Lawrence area. In view of the present day general use of automobiles and trucks, he could reasonably regard the circumstance that all the parcels had good direct highway access as rendering unimportant their varying distances from the center of Lawrence. See Muzi v. Commonwealth, 335 Mass. 101, 105. That the expert witness considered the locus as in large measure suitable for subdivision for small industries tended to render less significant the smaller size of the four parcels. See Consolini v. Commonwealth, 346 Mass. 501, 503. Other differences between each of the four parcels and the locus, the trial judge could view as going only to the weight of the evidence of the four sales and not as requiring its exclusion. The evidence concerning the four sales of vacant industrial land in the general area of the locus seems to us plainly to have been highly relevant to establishing the value of the locus. The rulings complained of were well within the broad discretion given to the trial judge in such matters. See Iris v. Hingham, 303 Mass. 401, 408-409; Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359, 366-367; Valley Paper Co. v. Holyoke Housing Authy. 346 Mass. 561, 569. See also Congregation of the Mission of St. Vincent de Paul v. Commonwealth, 336 Mass. 357, 359.
3. The trial judge refused to permit one Solomon to testify to a sale in which he had participated (see Ramacorti v. Boston Redevelopment Authy. 341 Mass. 377, 380) of a "land-locked" fourteen acre parcel with "no utilities available to it," abutting the locus but having access to highways only over the land of others (by a right of way not well defined in the testimony). In view of the proximity of the parcel to the locus, we assume that the trial judge could properly have exercised his discretion to admit the testimony. We cannot say, however, that his failure to do so was an abuse of discretion. The absence of direct access to the Solomon parcel from any street was an important difference between that parcel and the locus. See Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359, 367.
Exceptions overruled.