15 Colo. 193 | Colo. | 1890
delivered the opinion of the court.
The assignments of error are very numerous, but counsel in their printed argument have very considerately abandoned most of them. This practice is to be commended. In the hurry of a trial at nisi prints many exceptions are often taken which counsel find are of no avail when they come to prepare briefs for the appellate court. By frankly withdrawing all assignments except such as are seriously relied on, counsel save themselves and the court of review much unnecessary labor, and secure attention more readily to the important matters involved in the record. It is often hard to find a kernel of wheat in a bushel of chaff.
The matters discussed in the brief of counsel relate solely to the admission and rejection of evidence. From the evidence it appears that the premises through which appellant sought to condemn a right of wray were situated on the Roaring Fork river, and were occupied and used by appellees for a planing-mill and lumber-yard, and that it was necessary to keep large quantities of lumber stored upon the premises. The location was peculiarly available and valuable as a mill-site on account of its water-power, which could be used for operating different kinds of machinery.
Appellees were permitted to show the market value of the water-power, and its adaptability to the operation of mining machinery and electric motors in and about the city of Aspen, although such uses had not been actually a-r-
In proceedings under the act of eminent domain in this state, the owner’s recovery is not limited to the value of the property for the special use to which it is devoted at the time of the taking or trial, nor to any particular use. The value of property must necessarily be a matter of opinion, and is, therefore, always somewhat speculative. The proper measure of the owner’s recovery is:
(1) Compensation for the land or property actually taken equal to the true and actual value thereof at the time of the appraisement.
(2) Damages to the residue of the land or property not taken, equal to the actual diminution of its market value, if any, for any use to 'which the same may reasonably be put; and in determining such damages the use to which the property taken is subjected, and the loss and inconvenience thereby occasioned, may be taken into consideration, as the construction and operation of a railroad. Eminent Domain Act (approved February 12, 1877), § 17; City of Denver v. Bayer, 7 Colo. 113; Railroad Co. v. Allen, 13 Colo. 229; Lewis, Em. Dom. §§ 478-487; Railway Co. v. Vance, 115 Pa. St. 331; Johnson v. Railway Co. 111 Ill. 413; Weyer v. Railroad Co. 68 Wis. 180.
From the foregoing rules and decisions it will be ob
It was shown in evidence in behalf of appellees that appellant, while constructing its road-bed, rolled or deposited certain large boulders upon the land of appellees, some of them so large that it took six mules to move them out of the excavation. The amount of appellees’ land covered by the deposit of the boulders is not shown in the record, though it was pointed out on the map at the trial. On the part of appellant, one witness testified that these boulders were deposited outside “ temporarily, waiting for the track to be laid in' order to take them off.” The withdrawal of this latter testimony from the jury on motion of appellees is assigned for error. It would be an unsafe rule to prevent the owner from recovering the actual damages done to the residue of his premises by the mere declaration of a witness that it w’as the intention of the'party doing the injury to repair the damage at some future time. Ho injustice was done by striking out this testimony. It was not shown nor offered to be shown that the boulders were ever removed by appellant; and, if appellees are allowed to recover for such damage, appellant cannot be required to remove the boulders. Dorlan v. Railroad Co. 46 Pa. St. 520.
It has been suggested, though not in the briefs of counsel, that the damage occasioned by depositing the boulders upon the lands of appellees is not recoverable in a proceeding of this kind on the ground that such damage cannot be
The judgment of the district court is affirmed.
Affirmed.