[After the foregoing statement of the case.] 1. We are of opinion that the testimony of the value of the building as planned and finished, the rental value of the two and. the cost of completing the building (the latter taken in connection with the testimony that completing the building was the best thing to be done, and that the cost so incurred was reasonable) were all admissible in the discretion of the presiding judge for the purposes explained in the charge, upon the issue under § 4, to wit, what was the value of the land and unfinished building before the enactment of the act, and what was its value after. We see nothing in the cases cited by the respondent to the contrary. Chase v. Worcester, 108 Mass. 60. Pinkham v. Chelmsford, 109 Mass. 225. Cobb v. Boston, 109 Mass. 438. Fairbanks v. Fitchburg, 110 Mass. 224. Boles v. Boston, 136 Mass. 398. Cushing v. Boston, 144 Mass. 317. Maynard v. Northampton, 157 Mass. 218.
2. The first ruling requested was rightly refused. • The re*552strietions in Sts. 1896, c. 318, and 1897, c. 379, apply only to parkways on which a building line has been established as therein provided.
3. It is now established that in erecting the sculptured ornaments the trustees acted in violation of St. 1898, c. 452. But the jury were warranted in finding that they did so on the advice of counsel, and acted in good faith in trying to make the best use that could be made of the unfinished building. Under those circumstances, at any rate, they did not lose their right to compensation under this act.
4. The third ruling was also rightly refused. In our opinion all damages to the real estate are recoverable under § 4, and all other damages are recoverable under § 3. Section 3 was in our opinion inserted to give to the owners of the real estate compensation for damages which they could not recover as owners of the real estate, and to give compensation for damages suffered by them to other persons having an interest in any building covered by the act (a contractor for example) who but for § 3 would have no claim to compensation. Rightly applied, there would be no duplication of compensation.
5. But we are of opinion that the two sections were not rightly applied. In our opinion not only is there a possibility that there may have been compensation awarded twice for the_ same damages, but of necessity there was such a duplication. The judge told the jury that items 9 and 10, being items for extra foundations and extra iron put in for a one hundred and twenty foot building and not needed for a ninety foot building, were proper elements of damage under § 3. If these had been bought and paid for by the owners before the enactment of St. 1898, c.,452, but had not been incorporated into the building, they would have been proper items to be recovered under § 3. Under the circumstances just put, had no such provision been in the act as those contained in § 3, no compensation for these items could have been obtained. Section 4, limiting the compensation due to damage or loss in his property, is restricted to damage or loss to his real estate. For other damage or loss he is remediless under that section. See in that connection, New York, New Haven, & Hartford Railroad v. Blacker, 178 Mass. 386, and cases cited; Sawyer v. Commonwealth, 182 Mass. 245, 247; *553Bailey v. Boston Providence Railroad, 182 Mass. 537, 539; Boston Belting Co. v. Boston, 183 Mass. 254; Nashua River Paper Co. v. Commonwealth, 184 Mass. 279. The object of § 3 was to enable the owner to recover damages of that character to which he otherwise would not be entitled. It was also evidently intended to allow third persons having an interest in the building who had suffered loss in the limitation of the height of the building to recover for such loss.
In the case at bar the right to compensation under the two sections would have been plainer if the parties had brought and proved the proper petitions by the several parties, in place of bringing one petition in which all joined, and agreeing that all compensation due under § 3 should be paid to Woodbury and Leighton, whether due to them or to any one of the other petitioners.
As we have said, money expended for items 9 and 10, if not incorporated into the building, would have been proper items for compensation under § 3. But when they were incorporated in the building they necessarily entered into the difference between the value of the building as it was before the act and its value as it was after the height to which it could be built had been limited by the act to ninety feet.. It would be hard to state this more clearly than it was stated in the charge of the presiding judge when he said, in speaking of these very items 9 and 10: “ If purchasers wished to buy that property and found that there was in it material that was not needed, whether in the form of unnecessary iron or unnecessary granite, after the passage of this act, they would not pay as much for it. That would affect the market value and would be thrown out by purchasers in considering what would be a fair price to pay.” If the unnecessary iron and foundations which added to the value before the act as part of a hotel one hundred and twenty feet high would be thrown out by a purchaser in fixing a price for the unfinished building after it was limited by the act to ninety feet, the loss represented by these two items is included in the decrease in the market value of the unfinished building. And the jury should have been instructed accordingly. The auditor was right in holding that the amount of these two items was duplicated, and seems also to have been right in holding that the other items *554deducted by him (to wit, items 1, 2, 7 and 8) were duplicated. Whether he was right as to items 1,2,7 and 8 it is not necessary now to decide finally. The facts stated in the record as to these items are not altogether plain.
But the auditor was not right in deducting these items, nor were the parties right in agreeing that any items should be deducted. As we have said, compensation cannot be recovered for the same items under both sections. Compensation for items 9 and 10 being recoverable under § 4, cannot be recovered under § 3, and the same is true of any of the other items compensation for which can be recovered under § 4. If compensation for an item can be recovered under § 4, that item does not come within § 3. In no event can there be double compensation for the same item ; and in no case can there be any deduction for duplication if' the two sections are properly applied.
.Exceptions sustained.