Atchison, Topeka & Santa Fe Railroad v. Blackshire

10 Kan. 477 | Kan. | 1872

The opinion of the court was delivered by

Brewer, J.:

i. Examination and cross-examination. Practice; bias of witness. The plaintiff in error commenced proceedings to condemn the right of way through the land of the defendant in error. Not satisfied with the amount awarded him by the commissioners, Blackshire appealed to the district court. There he recovered a judgment of $2,400, to reverse which this proceeding in error is brought. Several questions are raised by counsel for plaintiff in error, on the record, and discussed with great ingenuity and ability. We will examine them in the order in which they are presented in his brief. . And first, “ the court erred in allowing certain questions to be propounded to PI. L. Hunt, a witness for defendant below, upon his cross-examination.” The only question .. n , n m issue under the pleadings was the amount oi ° damage. Hunt had been' one of the commissioners who made the award from which Blackshire appealed, and was called by defendant to testify as to the value of the land taken, and the amount of damage done to the remainder of Blackshire’s farm. After testifying at some length for defendant he was asked on cross-examination among others these three questions:

Question. — Take plaintiff’s land just as it is, and suppose the railroad ran through the valley without running through his land: what is the difference in value, compared with the value as the road now is? Answer.-1 would rather have the land without the road running through it, but don’t know what the effect on the general market would be.

Question.-H&ve you not a piece of land in the neighborhood of plaintiff which you are offering to sell, and desirous to sell, through which the railroad runs? Mus-Yes, I have.

Quesiwm.-State whether or not these facts might not bias your judgment as to value of Mr. Blackshire’s land? Ans.— I think not.

As no ground of objection was stated, it may well be doubted whether anything was saved by the exception which we can consider. But waiving this, it seems to us there was no error in permitting this latitude upon cross-examination. It is a matter of common knowledge that the building of a railroad tends to increase the value of lands in its vicinity. It is also a matter equally of common knowledge that it is an injury to any particular farm which it crosses. The witness had testified on his direct examination that “people owning land asked more for and from the building of the road.” It was proper to seek a modification of this general statement, in reference to this particular farm, and it could well be done by the contrast presented in the first of these questions. It drew his attention as well as that of the jury to known facts of great importance in determining the amount of damages sustained. On cross-examination great latitude is tolerated, and anything is proper which enables the jury to see upon what basis the witness has made his estimates of value, what facts have induced him to form the opinion he has-expressed, or which connects his general estimate of values and damages with the particular premises claimed to have been injured. The other two questions were proper to ascertain if there existed anything of a personal nature to bias or influence the judgment of the witness. That the answers were unfavorable to the party asking the questions does not render the questions improper.

a private acts-to r>e pleaded, II. “ The court erred in refusing to instruct the jury, ‘That under the charter of the A. T. & S. F. Rld. Co., approved Feb. 11th 1859, the jury must take into consideration the advantages as well as any injury to the plaintiff’s jajyj. that this is not affected by §4, art. 12, of the constitution of the state.’ ” It is sufficient reply to this objection to say that the act incorporating the A. T. & S. F. Rld. Co. is a private act, and as it was neither pleaded nor proved the court was under no obligation to notice its existence, or refer to its provisions. Courts take judicial notice of the public statutes of their own state, and these need to be neither pleaded nor proved. But the rule is otherwise with the private laws. They are matters of proof. In pleading them, or a right derived from them, it is sufficient under the code to refer to them by their title and the dates of their approval, and thereupon the courts take judicial notice of them: Code, §124. Nothing of this kind was done in this case.

3. Damages to iand-ovnei. III. “The court erred 'in refusing to instruct the jury, ‘That damages to adjoining lands to right of way, may be offset by benefits to same lands.’ ’’ The instruction-the-court did give was as follows: “The fair way of determining the injury is to determine the fair market value of the premises before the right of way is set apart, and then again after, and the difference will be the true measure of damages.” If counsel meant to claim by the instruction asked, any different rule than that embraced in the one given, if he meant by that, that the jury were to consider any prospective benefits, any advantages which might in the future accrue to the land-owner by the construction of the road, his instruction was erroneous. If it enunciates the same rule, giving it once was sufficient, and it was no error to refuse a repetition.

4. Purposes of taking. IV. “The court erred in refusing to instruct the jury, 'That the purposes for which the right of way was taken, is not to be considered; only the taking.’” This in effect says that all that the jury may rightfully consider is, thát.so much land in such a shape and in such a location has 1 been conveyed away from the owner to another party. This is not the law. There are many things besides which must be taken into account before any fair award of damages can be made. Not to venture into debatable ground, nor to inquire what may and may not be considered, we will mention, one about which there can be no controversy. Where .a farm is cut in two by a roadway the amount of damages is materially affected by the presence or absence of a high embankment, or.a deep cut; and the necessity for these can only be determined by the purpose for which the right of way is taken. The use to which the right of way is appropriated must affect the question of damages. It is not necessary to affirm that every conceivable annoyance and inconvenience resulting from proximity to and intersection by a railroad is proper subject of inquiry and damage. It is enough now to decide that the jury may consider something more than the loss of such a strip of land. M. K. & T. Rly. Co. v. Haines, ante, 439.

V. The next objection raised by counsel is an exception to .certain phrases in the charge of the court. That portion of the charge which includes these phrases is as follows:

“You are not to consider the land as an entire tract, but merely as the commissioners themselves looked upon it as they went upon the several tracts and determined the amount they were injured. The railroad company does not agree to increase the plaintiff’s land in value, but does agree to compensate for any injury or depreciation, and they (the commissioners) take the value as it was the moment before the right of way was appropriated, and then how much it is depreciated or injured, upon the same market. In determining this you have the right to look at all matters that injure or deteriorate the value of the premises in market. In doing this you can, of course, look at the manner in whi ch the road runs through the several tracts or quarter-sections. How does it divide the tracts into regular or irregular, salable or unsalable portions? and how the aggregate of these pieces compared with the appraised value of the whole tract? You are not to allow consequential or speculative damages to the plaintiff, as the necessity to build fences that may never be required, or for any other purpose not certain. The damages that you can consider are actual damages, not imaginary; such as affect the value of the premises in the market, and such as are established by proof,” etc. ¶

The objection is to the clauses italicised. Of course the company does not agree to compensate for every injury, but only for such as result from the appropriation of the right of way for its road. Nor is there any possibility of a jury’s being misled by such a general statement. They, must of necessity consider it as limited to those injuries which the road causes. None other could be meant. No juror, unless inconceivably stupid, could suppose any other were meant.

6. verdicts; condence, etc. The last objection, and one to which our attention is most strenuously directed, and upon which counsel has placed great labor, is, that the damages awarded are excessive, and not supported by the testimony. We have examined the testimony with great care, and are constrained to say that it brings the case within the rule which forbids interference by this court. It would be a useless labor to attempt to transfer the testimony to this opinion, or notice its salient points. It is enough that more than one witness placed the damages at a sum largely in excess of the verdict. And this is a case where the verdict must be based upon the estimates of value given by witnesses, and not like the case of physical injuries where the jury make the estimate from the circumstances of the case. It is therefore simply a question whether the verdict is contrary to the evidence. The plaintiff himself testified in these words: “The market value of the land, that is, the whole 800 acres, was $20 per acre before the railroad was located- on it. The value of that left was not over $15 per acre after the road was built.” A. R. Ice, John Holmes, Vm. H. Shaft, and J. D. Riggs, gave similar testimony. Indeed, one of them, Holmes, fixed the damage at $6 per acre. Counsel insists that as two of the quarter-sections were not touched by the road, they could not in law ■or in fact be damaged, and that this testimony must be limited in its application to the other three. It is enough to say that the witnesses did not so limit it. The farm of 800 acres was in one body, an entire tract, and they said that the .whole farm was damaged five dollars an acre. If they meant ■only 480 acres, that should have been shown on cross-examination. We do not understand that when a witness testifies that a farm is damaged five dollars an acre, he means that each particular acre standing by itself, is damaged to that extent, but that the farm as a whole is injured so much as will, if distributed, average five dollars an acre. It may be that the award of the jury is high; it seems probable that it is. But it does not appear from the testimony to be so grossly excessive that it may properly be disturbed. These are all the questions presented in the record and therefore the judgment must be affirmed.

All the Justices concurring.