91 Minn. 127 | Minn. | 1903
The city of Ely, through proper proceedings authorized in its charter, appropriated an acre and a quarter of land adjacent to its municipal waterworks. Commissioners were appointed to appraise the damages to the landowner, and an award was duly returned, from which there was an appeal to the district court. On the trial the only question was the amount of compensation she was entitled to recover. At the close of the evidence the court instructed the jury that the verdict should not exceed the sum of $150 per acre, which was adopted by the verdict. She moved for a new trial, which was denied. This appeal is from that order.
it appears that appellant was the owner of a forty-acre tract of land near the city, of which the land appropriated was a part. There was a fissure spring thereon discharging large quantities of water daily, which under her claim substantially enhanced its market value over other lands in the same locality. The limitation of the amount recoverable by the court was not excepted to, neither was it made a specific point of objection to the verdict on the motion for new trial; and under the rule we have been required to adopt in giving effect to Laws 1901, p. 121 (c. 113), we are not at liberty to review errors assigned to the charge of the court, or to several other orders that are criticised upon the same ground. Cappis v. Wiedemann, 86 Minn. 156, 90 N. W. 368; Olson v. Berg, 87 Minn. 277, 91 N. W. 1103.
But a valuation of the tract taken by one witness for appellant was stricken out, which order was duly excepted to and must be considered. This witness, after having given a detailed description of the land taken, and its relation to the whole tract from which it was separated, described the spring, its capacity and general utility for the purposes of
“Q. You are acquainted * * * with the situation of affairs in Ely, so far as the water supply is concerned for the town? A. Yes, sir. Q. You are familiar with this spring? A. Yes, sir. Q. And, in a general way, the character of the water coming from the spring? A. Yes, sir. Q. And 'the quantity of water coming from the spring?' A. Yes, sir. Q. And do you know whether or not the supply from this spring is constant, in a general way? A. It is constant. Q. As long as you have lived there the supply has been about the same, as near as you can judge? A. Yes, sir; as near as I could judge. Q. Under all the circumstances and conditions existing, and the various uses this acre of ground and the spring upon it may be put to, what would you say is the value of this acre of ground, with the spring on it, for all purposes ? A. I should say $10,-000.”
Upon cross-examination he testified as follows: .
“Mr. Conan, you base that opinion on the fact that you believe this is the only available supply of water ? A. I think that has a*130 great deal to do with it. Q. And the fact that the city must have it for its water supply? A. It is the most convenient. Q. And any other water supply would be very expensive? A. Yes. Q. You base it on the fact of its value to the city by reason of that? A. Yes.” On behalf of plaintiff: “Q. By ‘City’ you niean people of the city of Ely? * * * A. Yes.” On cross-examination: “Q. And the water is supplied to the city of Ely through the waterworks of the city very largely ? There are some wells in the city? 'A. Yes, six-. Q. And you have based your opinion as to the value of the property that the city must have it for its water supply? A. That has a great deal to do with it. Q. That is the basis of your valuation? A. Yes, sir.”
Were it not for the answer to this last question, no doubt could be raised as to the materiality of the testimony; but in coxrsidering the whole testimony we do not think that it must be inferred that the fact that the city had got to have it, and that its necessities rather than the xnarket value of the px-operty — which is the xneasure of the landowner’s compensation — was the sole-standard upon'which the witness in his opinion based his estimate above that which the court said the jury could not go in its award of compensation. We should not be too finical or criticise with too much nicety the language of this witness, but endeavor to consider its import upon the foundation he had laid for his opinion with a reasonable degree of liberality. If the last question propounded, which was evidently considered the crucial test of his qualification to give an estimate by the court, had been “was the fact that the city needed it as a water supply for the people of Ely,” ixistead of that “the city must have it for the water supply for the city,” etc — and, we think, taking the testimony all together, that the former was what might have been understood by the witness — an affirmative answer thereto would have fairly embraced elements affecting the general market value of the property to all persoxis or corporations who would or might be likely to purchase the same, instead of the peculiar necessity for the municipal improvement, which gave the selection of this particular piece an enhanced value to the city by reason of its location rather than its available attributes for a water supply.
In the same line this court has held that a person is entitled to the fair value of' his property for any use to which it is adapted, and for which it is available, and for which it may be sold. He is entitled to the value of his property for any use to which it may be applied, and for which it would ordinarily sell in the market, whether that use be one to which it is presently applied, or some other to which it is adapted. Any evidence is competent, and any fact proper to be considered, which legitimately bears upon the market value of the property. King v. Minneapolis U. Ry. Co., 32 Minn. 224, 20 N. W. 135. And further it was said in this case, that by market value of property is meant what purchasers generally would pay for it; not “what men would pay who had no particular object in view in purchasing, and no definite plan as
We cannot adopt the view of counsel that the course pursued by the trial court is justified by the previous decisions of Stinson v. Chicago, St. Paul & M. Ry. Co., 27 Minn. 284, 6 N. W. 784, or Union Depot v. Brunswick, 31 Minn. 297, 17 N. W. 626. In the former case a witness was not allowed to give the land’s value for railroad purposes, who had said that “I don’t think that my life has been sufficiently spent with railroads to justify me in saying what it would be worth for railroad or any other [than building] purposes.” But this court did not hold that the general use to which railroads might adapt the property was not a proper consideration to be taken into account in appraising its value. The point decided went upon the showing as to the qualifications of the witness, and was not, as here, the basis of an actual order limiting the amount of recovery.
In tire latter case the proceeding was to condemn land for railway purposes for a particular railroad from one place to another in the city of Stillwater, and a witness was asked and allowed to answer the question, “Is there any other route by which connections can be made between the lower depot and the upper, except across this land ?” to which the answer was, “Not that I know of,” which was held to be error. The court goes no further in this case than to hold, in reversing the court below, that the peculiar difficulties of extending the line north of the lower to the upper depot, which interfered with its construction, and made the use of a certain route requisite, did not fairly tend to show the market value of the property, or even its general fitness for railroad purpose, but made the exclusive necessity of use of the land appropriated an essential and distinctive criterion in determining the measure of damages.
But in the case at bar it is contended, and we think properly so, that the necessity of the city or the people of the city for a water supply might be considered as an element of its value, and does not distinctly involve such exclusive requirement for the land by the city as would make the excluded estimate depend entirely upon its special necessities therefor, based upon fits own peculiar situation relative to the land taken, rather than to a legitimate use to which it might be adapted by .any person or corporation similarly situated or desiring to engage in
Order reversed, and new trial granted.
START, C. J., absent, sick, took no part.