23 N.H. 237 | Superior Court of New Hampshire | 1851
The most important questions raised in this case, as we view them, were recently settled in the case of
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 tend
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
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
On account of the admission of incompetent evidence, as before stated, the verdict must be set aside, and a
New trial granted.