Foster v. City of Boston

Shaw C. J.

delivered the opinion of the Court. It appears that in March, 1833, a memorial or petition was presented to the city government, by various proprietors of land, including these complainants, setting forth that a marginal street, passing over their lands, would be of great public convenience, and to promote this improvement, which it was obvious, would be beneficial to them, they offered to give in, without claim for damage, so much of their land, respectively, as might be necessary for such street. This offer was upon condition that the street should be laid out during the year *381833. • The city thereupon, without expressly declining or accepting this offer, passed a vote offering to pay $ 25,000 foi the accomplishment of this improvement.

It is contended, on the part of the complainants, that by this vote, the city impliedly declined their offer, and that they were no longer bound by it. But the Court are of opinion, that it cannot be so considered. It was a distinct proposition on the part of the city, and if not accepted, it did riot preclude them from acting upon the offer before made by the petitioners, if it were not withdrawn.

In regard to this offer of the city, a committee of the petitioners took it into consideration, and ultimately it was agreed to accept it, if the city would add $ 3000. This proceeding however is not material to the present inquiry.

The Court are also of opinion, that until the city government had accepted or rejected the offer of the complainants and the other proprietors, they had a right to revoke or to modify it. In the exercise of this right, the complainants, in June, 1833, addressed a letter to the proprietors, and sent a copy of the same to the mayor, explaining the proposition on their part to be, an offer to relinquish all claim of damages for land taken, but not other and incidental damages, for removing and repairing buildings. This was in effect a renewal and confirmation, on the part of the complainants, of the offer be fore made, with the modification and explanation thus stated. It was a continuing offer, for the time therein limited, that is, during the year. The city government, within that time, the offer not having been revoked, did lay out the street in due form of law, thus acted upon and in legal effect acceded to, and accepted the offer, and then it became a contract, binding upon both parties.

It was contended, that although in ordinary cases a party-making an offer, may withdraw or modify it, before it is accepted and acted upon, yet it could not be done in the present case by the complainants, without joining with all the other subscribers. But we think this is not correct. The several proprietors, although they joined in one petition and representation, in effect severally offered to relinquish their respective lands. The offers were in their nature several.

*39The question then recurs, what was the effect of the complainants’ offer, and how far did it bind them" as to relinquishment of damages, considering the "offer as expressed in the subscription paper, and explained by the subsequent letter. It may be proper to say in passing, that any declarations, or protests, made by the complainants, after the city government had accepted their offer by laying out the street, could be of no avail. The}' could then neither revoke nor modify their proposal.

The offer of the complainants must be taken according to the subject matter. In most cases, an offer of land for any purpose would be an offer to transfer the land in fee. But where it is for a highway, it must be an offer to allow the pub lie such right .as they would acquire by taking it for a highway, that is, an easement for the public, to continue during their pleasure. To fit it for this use, all buildings must necessarily be removed from it ; the offer therefore necessarily includes the consent of the owner, that all buildings shall be removed from t, and in relinquishing the land, he relinquishes all benefit to be derived from having buildings stand upon it. As suen a public and perpetual easement deprives the owner of nearly all beneficial use of the land, the damage for taking the land is to all practical purposes the value of the land.

But in taking land for a street, especially in a populous city, the proprietor usually sustains damages beyond the value of the land taken. In the present case, the street was to be laid out according to a plan previously drawn, and it was probably foreseen, that the lines would pass through some buildings. The expenses which a proprietor incurs, in addition to the value of tne land taken, usually are those necessary to fit his remaining lands for beneficial use and occupation. This will commonly depend much upon the circumstances of each case. If the buildings can be removed, and the proprietor owns the land adjoining, so that they can be set back, then the expense oi removing the buildings would be the damage. In many cases it may be necessary to build new walls on the new line of the street, to replace chimneys and other fixtures. Whatever it may be, the expense of adapting the buildings of the proprietor to the new line of street, being something beyond the *40value of the land taken for street, and incurred not upon ot in respect to the land taken but to other and adjacent land, we think cannot be included in an offer to give up the value of the land. The offer we think was, to relinquish the land, and all direct benefit of it, that is, the value of the buildings standing upon it, beyond the value of the materials, or the value of them to remove, but not the incidental expenses of íeplacing walls, and fitting the remaining lands for beneficial occupation, according to the circumstances. The true rule therefore would be to take the common mode, of estimating damages, taking in separate items tne value of the land, and incidental damages to other land, whatever this may be, then strike out the item for land, and leave the residue as the measure of the complainants’ damages.

Exceptions allowed, verdict set aside, and a new trial grant~ ed, to be had at the bar of this Court.