The principal question in this case arises in the application of the law allowing the set-off of benefits in estimating the damages to the petitioners’ property from the location, construction, maintenance and operation of the defendant’s elevated railway, through the street in front of the petitioners’ premises. The proceedings are under the St. 1894, c. 548, which was considered in Baker v. Boston Elevated Railway, 183 Mass. 178. In construing this statute it seemed to the court that, while the Legislature was dealing with peculiar conditions, it must be presumed to have intended to make the statute harmonize, as nearly as possible, with other parts of our system relative to the assessment of damages to private property caused by similar public improvements. In reference to the construction of such a work as an elevated railway through the public streets, it is difficult, if not impossible, to establish a general rule that will operate with perfect equality upon all landholders affected by it. This statute gives damages for construction in the public ways only to “ parties who have an estate in the way, or in premises which abut thereon.” Other parties, owning property near the corners of streets crossed by the railway, may suffer similar damages, less in degree, for which the statute gives no compensation. An owner on the street through which the elevated way is constructed is allowed damage only to the amount that his estate has been “ damaged more than it has been benefited or improved in value.” St. 1894, c. 548, § 9. In setting off benefits in the assessment of damages to landowners whose property is taken ór injured by laying out a highway, only such benefits are included as are special and peculiar to such property, as distinguished from those which are received by estates generally in the vicinity. Parks v. Hampden, 120 Mass. 395. Hilbourne v. Suffolk, 120 Mass. 393. Cross v. Plymouth, 125 Mass. 557. Smith v. Boston, 7 Cush. 254. One reason for this rule is that it would be unfair to compel parties who suffer damage to pay for benefits, by a diminution of the amount fairly due them as compensation, when others in the neighborhood who have no claim for damages receive the same *519benefits without paying for them. With possible, but rare, exceptions (see statements in Hilbourne v. Suffolk, 120 Mass. 393, 395, and in Abbott v. Cottage City, 143 Mass. 521, 526), this rule works equitably in this particular.
But in the assessment of benefits for special taxation, under most betterment laws, a different standard is established. A set-off may be made of any benefit or advantage “ beyond the general advantage to all land in the city or town.” R. L. c. 50, § 1. In determining whether there is a special benefit to an estate under this statute, the comparison is not with other estates in the neighborhood, but with the land generally in the city or town, and the inquiry is whether the estate has received a benefit or advantage beyond the advantage to real estate generally in the city or town. This difference between special benefits which may be set off in a suit for the assessment of damages and those which may be made the subject of assessment under betterment acts has repeatedly been recognized by the court. Upham v. Worcester, 113 Mass. 97. Benton v. Brookline, 151 Mass. 250, 260, 262. Atkinson v. Newton, 169 Mass. 240, 242, 243. Sears v. Street Commissioners, 180 Mass. 274, 280, 281. Baker v. Boston Elevated Railway, 183 Mass. 178, 182.
It is decided that the difference between the detriment from the discontinuance of a way, which affects the public generally," and therefore must be borne by all alike, and special damage which will entitle the sufferer to compensation, is not merely a difference in degree, but a difference in kind. Davis v. County Commissioners, 153 Mass. 218. Hammond v. County Commissioners, 154 Mass. 509. A similar rule has been stated in some other classes of cases. In a sense, this truly marks the difference between a general advantage which cannot be set off and a special advantage for which allowance must be made. But between the “ general advantage to all the land in the city or town,” which cannot be made the subject of a special assessment, and the benefit or advantage beyond this, which can be made the subject of a betterment tax, the only necessary difference in kind is in the advantage affecting value referred to in the statute. Under this statute the test involves a consideration of every kind of benefit or advantage which enters into the *520value, and it makes the decision turn on whether this advantage is beyond that received generally in the city or town. In deciding whether a benefit is special and peculiar, under the betterment acts, proximity as an element of value is often the determining fact. While frequently there are marked differences between assessable and non-assessable property in the kind of benefit received, sometimes the only differences justifying an assessment are those affecting a large neighborhood assessed, in which the land of the city or town generally shares in some slight degree. While this has not been the subject of express adjudication, it is illustrated in the facts of many cases. It is well illustrated by the assessment which appears in Sears v. Street Commissioners, 180 Mass. 274. If the benefit is large enough the property comes within one class; if it is not it is left in the other class. Upon the kindred subject of damages see Baker v. Boston Elevated Railway, 183 Mass. 178, 183.
The petitioners rely upon Lincoln v. Street Commissioners, 176 Mass. 210. The decision of that case rests upon the principle that, if the benefits to the other estates were assessable, the remedy of the petitioner was not by a writ of certiorari, but by an application for a jury. See the discussion and cases cited on page 215. See also Jones v. Aldermen of Boston, 104 Mass. 461, 469. The discussion in the cases cited on page 213 refers to the set-off of benefits in suits for the assessment of damages, and not to benefits which may be assessed under betterment laws.
As the statute before us in § 9 contains broad language in reference to the benefit or improvement “ in value ” that may be set off, it seems reasonable that owners of land in the street, and abutters upon it, who alone are permitted to recover damages, and who are allowed compensation for everything that ever is paid for in such cases, should be obliged to set off all benefits that might be the subject of an assessment of betterments if the street railway were a public improvement erected under a statute at the city’s expense. This gives effect to the language of the statute by applying the same rule both to damages and benefits, including in each class everything except that which is suffered or received by property generally throughout the city.
We do not think that the different rule, provided by § 11 of *521the statute for the assessment of damages for taking private land outside of ways, is of much significance as an argument against this rule. Very little land was so taken, and the effect of the taking upon owners was very different from that of the construction of a railway in the public streets. Accordingly, in Baker v. Boston Elevated Railway, ubi supra, at page 182, this rule was stated for the guidance of the courts.
If some of the benefits which the respondent seeks to set off result from the easy and rapid transit furnished by the respondent’s railway to occupants of the petitioners’ hotel, the mere fact that the general public receive similar advantages does not make them less a matter of set-off, if the petitioners’ property receives from them a benefit or advantage beyond the general advantage to all the land in the city. We are of opinion that the respondent’s second and third requests for rulings should have been given.
The testimony which was admitted, subject to the respondent’s exception, relates to the effect of the railway upon the property, in reference to one of the uses to which it is adapted, and seemingly the use to which it is best adapted. Of course the evidence was not competent for the purpose of showing damage to the 'business conducted there, but only to show the diminution in value of the property for use in that business. New York, New Haven, & Hartford Railroad v. Blacker, 178 Mass. 386. In this view, the chief objection to the evidence is that, to make it of value, numerous collateral issues needed to be determined. Because of the difficulty of determining some of these, and especially because some of them depended for their determination upon the testimony of experts, whose opinions were, at the best, of very uncertain value as applied to this case, much of this evidence well might have been excluded, in the discretion of the court. On the other hand, as to the greater part of it we are not prepared to say that there was error of law in receiving it. See Cochrane v. Commonwealth, 175 Mass. 299.
Exceptions sustained.