16 S.D. 644 | S.D. | 1903
This is an appeal by the plaintiff from a judgment in condemnation proceedings awarding to the defendant $400 damages and costs.
The plaintiff, for a number of years, has had and used a right of way over the land of the defendant, 18 feet in width, 9 feet on each side of the center of. the track. This right of way across the defendant’s land extends easterly and westerly
The appellant insists that inasmuch as the plaintiff had a right of way oyer the defendant’s land, of which it had been in possession for many years and over which it had daily run its trains, the defendant could not recover in this proceeding any damages on account of the construction of the railroad itself . and the inconvenience it might cause him. This is undoubtedly correct, and such, evidently, was the view of the learned circuit court, for in its charge to the jury, after calling its attention to the facts that the railroad company had previously acquired the right of way across the land to the extent of 18 feet in width, and now sought an additional right of way to the extent of 24 feet on each side of its present right of way,
The contention ,of the appellant, we think, is untenable for two reasons: First. This court will presume, in the absence of any showing to the contrary, that the jury followed the instructions of the court. Second. There was no evidence offered on the part of the appellant showing that the value of these two strips of land, or the amount of damage the defendant would sustain by reason of the taking of the same; and substantially all the testimony there was upon this subject was given by the defendant, and this was the only evidence that the jury had upon which to base its verdict.
The defendant, when on the stand as a witness in his own behalf, testified very fully as to the value of the land by reason of the fences between his residence and the railroad track, and the necessity for their removal if the land was taken by the company, and the liability of his stock to go upon the track and be injured by the trains after such removal. He was then asked the following question: “You may state what would be the difference in the market value of your farm as it now is and as it would be after taking the strips as proposed to be taken by the railroad company. A. $500 and more. ” Again, he says: “I think the value would be diminished to the
Mr. Walker, a witness for the defendant, testified that he had lived about 60 rods from the defendant for thé past' 10 years, and was acquainted with the value of land in that vicinity. He was then asked the following question: “What, in your judgment, is the fair market value of the land that they propose to take, having regard to its present location and condition?” to which he answered, “About $500.” He was also asked the following question: “What, in your judgment, would be the difference between the value of the farm as it now is with the railroad over it, and with Mr. Brink owning these 24 feet strips on each side, and the value of the same farm with the railroad across it and the road owning these two strips?” to which he answered, “$500.” This witness also testified that the market value of the land in that vicinity was about $40 per acre, but he says, ‘T speak about the whole, entire farm as land sells in that neighborhood.’’ Other'witnesses on the part of the defendant gave substantially the same estimate of the value of the strips proposed to be taken, .and the difference in the value between the strips of land as owned-by the defendant and the same as owned by the appellant, taking into consideration the moving of the fences and - the greater danger to defendant’s stock by reason of such removal.
It is true there was some evidence introduced on the part: of the appellant tending to prove that the value of the land in', that vicinity was from $35 to $50 per acre, but this price was
A. O.Ringsrud, a witness on the part of the appellant,, testifies: “1 know in a general way the fair market value of the land * * * The fair market' value of the farm where the road crosses, per'acre. is.$40; in my judgment. -I refer, to the value of the entire farm as a whole. I do not refer to tbe value, of any detached piece or portion of- it. I have stated what I con-, sider the value of the farm of 160 acres. ” •'
. ' Other witnesses on the part of the appellant gave similar evidence. The witnesses do not give or pretend to give thé value of the two strips’of land independently of'thé whole farm- or quarter' section, and no evidence was given, so far as we can. discover from-the record in this case, on'the part of the appellant,- tending to prove the difference in value of the farm in-its condition before' the taking of these strips and after the taking.
" It will be observed that the appellant’s evidence was not such as to furnish any data for-the-verdict of the jury. Of course, no person would be willing' to sell a strip 'of land through the center óf his farm at the samé price'.per acre as he would be-willing to sell the whole farm for, especially as that strip was fehéed 'in such a manner as to protect the stock of the owner from the dangers incident tothe running of trains through the iarm. : • ■ '
In view, therefore, of the evidence-on the part of the de-' fendant, the jury could not well have found' any less verdict than that returned by it. The jury, in fact, had no basis for any other verdict.' ' This court held, in- Schuler v. Board of Supervisors, supra, that a party whose 'land is taken under condemnation proceeding is entitled to'recover, not only for
While it is true, as contended by the appellant, the witnesses on the part of the defendant seem to have included, as a basis of their estimate of the difference of value between the farm as it was and would be after the strips were taken by the appellant, some incidents which would only be applicable if the appellant was taking the right.of way through the farm for the first time, yet we must presume, under the instructions of the court, that the jury disregarded the inadmissible evidence and only considered such facts and circumstances as, under the instructions of the court, were proper to be considered in arriving at its'verdict. As we have seen, the proper question was asked the witnesses, and their answers were clear and specific. As the verdict of the jury, therefore, was less than the amount stated by the witnesses as the damages sustained by the defendant, there - is no ground for claiming that the verdict is excessive.
We are of the opinion, therefore, that the circuit court was right in denying a new trial, and the judgment and order denying the same are affirmed.