Farrand v. Chicago & North-Western Railway Co.

21 Wis. 435 | Wis. | 1867

Dixon, C. J.

Transpose the words “as appears from the books of records hereof,” by putting them immediately after the words “I hereby certify,” and the language of the certificate of the register in this case is almost the very same as that of the certificate of the receiver in Bigelow v. Blake, 18 Wis., 520; and it is liable to the same objection. The further certificate of the register, that he has examined and compared the foregoing with records in his office, and finds the same to be a correct transcript therefrom, adds no force to the instrument as evidence, since it is obvious from the language previously used that it is not a copy of any record or document made or kept in his office, to the correctness of which he certifies.

It is unnecessary to decide whether the certificate in question is admissible under chapter 125, Laws of 1866, since that chapter was not enacted at the time of the trial.

There was likewise error in giving and refusing instructions as to the extent of the appropriation by the company of the land in controversy. The jury were instructed that they might estimate the damages upon the theory that the company in their proceedings had appropriated the whole of the east side of Rroad Street; and an opposite instruction asked by the company was refused. It appeared in proof that the company had in fact only appropriated so much of the street as was necessary for laying a track, constituting a part of the main line of its road for the passage of trains; and such, no doubt, was the extent of its authority under the charter. Chap. 137, Laws of 1856, sec. 4. The company has no right to appropriate the whole or any part of the street to its own exclusive use, as for side tracks, switches, engine houses, depot buildings and the like, and so destroy the public right of way, as the instruction seems to contemplate. The instruction was therefore erroneous.

The question whether witnesses may be interrogated and allowed to state the damage to the lots by building the road through the street, is an embarrassing one, and has not been decided by the court. The more recent and leading decisions are collected by Mr. Justice Cole in Blair v. Milwaukee & Prairie du Chien R. R. Co., 20 Wis., 262. I have examined them, and whilst I think there is great force in the reasoning of Judge Selden in two of the decisions referred to, I still doubt the practicability, in eases like this, of the rule for which he so learnedly contends. It seems to me that great and almost insuperable difficulty must be experienced in distinguishing between those questions the answers to which depend exclusively upon mere differences in value, which he contends may be put, and those which involve the legal rule of damages, which he concedes cannot be put. It requires very accurate and close application to follow the learned judge in his dis-criminations of some of the adjudged cases; and one has, I think, but to read his opinions and the very able one of Judge Johnson in Clark v. Baird, to appreciate in some measure the difficulty which I have suggested. I think the rule established in the latter case the safer if not the sounder one ; for, conceding the correctness of Judge Selden’s positions, it comes to the same thing in the end, the difference being that the witness must answer two questions instead of one. Let him state the value of the lands before the alleged appropriation or injury, and then their value afterwards; and the jury can ascertain the difference. This will avoid all entanglement with the legal rule of damages, which otherwise cannot with certainty be said not to have entered into the estimate .of the witness. Questions like those put in this case have not yet received the sanction of any of the courts of New York. They were not involved in the judgments pronounced by Judge Sel-den, and the great weight of authority seems decidedly against their admissibility.

By the Court. — Judgment reversed, and a new trial awarded.