49 Colo. 256 | Colo. | 1910
delivered the opinion of the court:
This action was brought by the appellant, as petitioner, under our eminent domain statutes, to
1. The first assignment of error noticed in the brief of the appellant relates to instruction No. 1. In that instruction, the jury were told, that in assessing the value of the land and property actually taken, its true and actual value, at the time of the appraisement, must govern; that where land has a market value, that value must govern, and in such a case the market value is the true and actual value. The jury were then told that if they believed from the
In the brief, after stating ■ the purport of the testimony of the witnesses relative to the value of the land, it is said:
“Unconsciously, however, the amount so fixed by these witnesses represented to each the true market value of the land, being the amount in the opinion of each witness which the land would bring if it were offered for sale by one who desired, but was not obliged, to sell, and was bought by .one who was willing, but not obliged, to buy. ’ ’
The appellant is right in this view of the testimony of the witnesses, except that the term “unconsciously” cannot be applied to all the witnesses. And again the brief says:
*260 “Examination of the evidence contained in the bill of exceptions discloses that, according to the testimony of all the witnesses, the right of way sought to. be condemned had a market value capable of ascertainment by the jury.”
If the verdict of the jury was within the market value thus shown by the evidence, then, even under the view taken by appellant, the instruction relative to no market value was harmless. As said before, the evidence on the part of respondents tended to show that the building site upon which the improvements were erected, owing to the natural conditions of the ranch, was peculiarly advantageous as a building site, and that, taken in connection with the ranch, it had a special value for that purpose. In § 479, Yol. 2, Lewis on Eminent Domain (2nd'ed.), it is said:
“The market value of property includes its value for any use to which it may be put. If, by reason of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation. Some of the cases hold that its value for a particular use may be proved, but the proper inquiry is, What is its market value in view of any use to which it may be applied .and of all the uses to which it is adapted?”
And after quoting from the case of Boom Co. v. Patterson, 98 U. S. 403, wherein it was held, that it was proper, in estimating the value of the land taken, to consider its special adaptability for boom purposes, the author continues: “So it is proper to show that property possesses a peculiar value for railroad purposes, for dock purposes, for mill site
2. The appellant objects to Instruction No. 2, wherein the term ‘ ‘ market value ’ ’ is defined. Standing alone, this instruction-may not conform strictly to each of the numerous decisions on this subject, or to the meaning of the term “market value” in some particular cases under peculiar facts. The instruction says that the market value is such a price as property will sell for in open market for cash, “when there is a demand therefor, and a purchaser or purchasers and a seller or sellers ready and
3. In the third subdivision of the brief, complaint is made of the refusal, of the court to give the second, third and fifth instructions requested by the appellant. Each of these instructions, when analyzed, is but a different way of expressing what is meant by market value.. The court, as has been seen, sufficiently explained this to the jury, and nothing but confusion could result from a multiplication of words.
4. In the fourth subdivision of the brief, the appellant objects to Instruction No. 3. In that instruction, the court told the jury what the true inquiry is in assessing the value of the strip of land taken and the damages to the residue. The instruction does not mention anything about benefits, and that is the reason for the objection. The objection is not at all tenable. Section 2432, Revised Statutes, requires that the verdict shall separately state: first, an accurate description of the land taken; second, the value of the land or property actually taken; third, the damages, if any, to the residue of such land; fourth, the amount and value of the benefits. The third instruction deals only with the second and third items, showing when the requirements of the law are satisfied as to those items. The fourth instruction deals with the fourth item or benefits.
5. Appellant complains because the court refused to give the sixth requested instruction. The brief itself says that appellant’s sixth requested in
The testimony referred to in the brief, to the effect that the land of the respondents was benefited by reason of the construction of the railway and the location of a switch and stockyards thereon, has been carefully examined. The witnesses stated that they thought the stockyards would benefit the ranch. That is all they said. No amount of benefit in dollars and cents was mentioned. It is impossible to fix any amount from such testimony. The jury viewed the premises and found no benefit. There is nothing definite in this record to show wherein they were wrong.
6. The respondents filed an answer to the petition. In this answer, after denials and admissions of the several allegations of the petition, it was alleged, by way of cross-petition, that the lands within the right of way were worth, on an average, $25.00 per acre, exclusive of improvements, and that they ascertained this value by inquiry. It was also alleged that the respondents were damaged in the sum of $1,500.00 by reason of the taking of the buildings and other improvements. The other damages alleged in the answer are damages to the residue of
“Pleadings would avail little or nothing if parties were not bound by them. They would be worse than useless, if parties were permitted to allege one thing in them and to prove another on the trial'or at the hearing. Instead of aiding the court and parties in the subsequent investigation, by narrowing’ the field of controversy, they would serve as*268 a lure to mislead and entrap an adversary/ That the evidence must be confined to the issue between the parties, is a rule so well settled as to admit of no controversy. ’ ’
In this view of the matter, the verdict of the jury as to the value of the property taken should be reduced in the-sum of $423.18.- The judgment of the lower court is, therefore, reversed and the cause remanded with instructions to amend the decree so that the compensation and damages to be paid respondents shall be $423.18 less than fixed in the decree, that is, $3,666.50 instead of $4,089.68, and when' so amended, the decree shall, in the respect as amended, and in all other respects as it was originally- entered, be the judgment of the court as of the former date thereof, to-wit, August 10, 1906. On the authority of Land and Canal Co. v. Hartman, 17 Colo. 138, and §§ 559 et seq., 2 Lewis on Eminent Domain (2nd ed.), it is ordered that the appellant shall not recover any of the costs of this appeal.
Reversed and remanded with instructions.
Chiee Justice Campbell and Mr. Justice White concur.