Concord Railroad v. Greely

| Superior Court of New Hampshire | Dec 15, 1851

Eastman, J,

The most important questions raised in this case, as we view them, were recently settled in the case of Dearborn v. the Boston, Concord and Montreal Railroad, in Grafton county. Upon the principles laid down in that case, the evidence showing the effect of the building of the railroad upon the plaintiff’s meadow, was admissible; and the course taken by the court, in declining to give the instructions requested upon that point, was correct. The general instructions bearing upon the question, and the matters to be taken into consideration by the jury, in assessing the damages sustained, were also in accordance with that decision, and the decision of March v. the Portsmouth and Concord Railroad, recently decided in Rockingham county. It is believed, too, that they were in accordance with the ruling in like cases throughout the State. The law of 1837, under which this proceeding was instituted, is not so explicit on the question of damages as the general railroad law of December, 1844, but we find nothing in it, that should, in our opinion, change the general doctrine which has been established as the true rule governing questions of this kind.

When the value of a piece of land is to be decided by a jury, it has been the general practice, in this State, to admit evidence of sales of other lands, similarly situated, in the vicinity of that in question, which were made about the time that the value is to be settled ; and the evidence, showing what the corporation paid, about the time Greely’s land was taken, to other owners in the vicinity, for the right of way over their lands, comes within the principle and was rightly admitted. The corporation did not take the fee; but that can make no difference. A witness may state what was the cost of property of a particular description at a given place, in order to ascertain the value of property of a similar description. Whipple v. Walpole, 10 N. H. Rep., 130. Rut evidence of the price for which the corporation offered to sell a tract adjoining Greely’s, and how much they refused to take for it, is certainly of doubtful competency. We have held at this term, in the case of Hersey v. the Merrimack County Mutual Fire Insurance Company, in Merrimack county, that what the owner of a piece of real estate said he would sell the same for, was competent evidence against him, as tending to show its value. But that was a statement in regard to the value of the land itself, while the evidence admitted here was going one step further; it was a statement in regard to other lands; and it is quite questionable whether it could have any legitimate tendency to prove the value of Greely’s land.

It is, however, unnecessary to decide the point, as the evidence admitted in regard to the injuries and inconveniences received by another person upon his farm, from the ordinary running of the cars, cannot, we think, be admissible upon any view which we have been able to take of it. On questions of science, skill, or trade, or others of a like kind, experts may not only testify to facts, but are permitted to state their opinions. 1 Greenl. Ev., § 440. But upon subjects of general knowledge, which are understood by men in general, and which a jury are presumed to be familiar with, witnesses must testify as to facts alone and the jury must form their opinions. In such cases the testimony of witnesses, as experts merely, is not admissible. A large portion of our jurymen are usually farmers, and upon the facts stated, and their own knowledge connected with railroads, can as well judge of the effects upon a farm, through which a railroad passes, as other farmers.

But it is contended that what the witness testified to, was matter of fact within his own knowledge, and being confined by the court to the inconveniences suffered by the ordinary running of the cars, was admissible as tending to show the incon-• veniences which Greely must have suffered. It appears to us,' however, that this is an erroneous view of the question. Greely could undoubtedly show every thing connected with the manner in which the road was made across his land, and the actual inconveniences which he had himself suffered; and if the road was suitably and properly made, all this would be competent for the consideration of the jury: Erom these facts, and their general knowledge of the subject, they could make up their verdict. But to lay before the jury the inconveniences which other farmers in the vicinity had suffered, and require of them to assess the damages according to those facts, would be to try the issue, not upon the actual facts which could be shown in the case, but upon collateral facts arising in other cases. The court, too, might soon be involved in trying the issues raised upon the collateral facts.

We do not see that the case varies in principle from very many which might be supposed, where the same consequences almost invariably follow certain acts done, or a certain course pursued; and yet, the case itself, must be tried by the facts which actually take place, and not by those which transpire in other parallel cases. The ruling upon this point was incorrect.

The only remaining question, is the one of interest. This proceeding is entirely a matter of statutory regulation. The act provides, that after the committee shall have made their estimate, the corporation may tender to the owner of the land, the damages estimated, in full satisfaction thereof; and, if the land owner shall refuse to receive the same, with costs, to be taxed to that period, and shall apply for a jury, he shall pay all such costs as shall he caused by such application, arising after such tender, unless upon the final hearing, he shall recover a greater amount of damages than the sum tendered. Act of January 13th, 1837, Pamphlet Laws, chapter 280, § 8.

The tender was to be in full satisfaction, and consequently the land owner could not take the amount tendered and proceed for a further sum. But in this case, no tender was made, and the law, so far, was not complied with by the corporation. It is true, that the amount awarded was brought into court after the petition for a jury; but there is no provision of the statute by which it could be done, and there was no obligation upon the petitioner to take the money. It was therefore a nugatory act, so far as the rights of the corporation or petitioner were concerned^ and the petitioner would stand upon the same ground as though nothing of the kind had been done. The statute makes no provision for interest in proceedings of this kind ; hut after a sum has been fixed by the award of the commissioners, unless the corporation shall pursue the requirements of the statute, by making a tender in cases arising under the act of 1837, or depositing the money in cases arising since the statute of 1844, we have allowed interest on the sum awarded from the time of the award. In this case interest should be cast on the $900, from the time of the award.

On account of the admission of incompetent evidence, as before stated, the verdict must be set aside, and a

New trial granted.