10 Mont. 528 | Mont. | 1891
This is an appeal from an award of damages
1. Appellant argues at the bar that the decision is not supported by the evidence, in that there was no evidence of the value of the land at the date of the summons, basing his position upon section 609 of the Code of Civil Procedure, which provides that the actual value of the land at the date of the summons shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken, but injuriously affected. But the record discloses no specification upon this point, and it cannot be considered. The last utterance of this court on that question is in Carron v. Wood, ante, page 500.
2. There is evidence of a number of witnesses that the land taken was worth twenty dollars an acre. The court found that the land taken was worth two hundred and fifteen dollars. Appellant contends that there is no testimony of the number of acres taken, and hence no evidence by which the court could arrive at a total of two hundred and fifteen dollars. Again, consulting the specifications, we find, “ fifth,” that the appellant expressly specifies that it is admitted that there were ten and three-fourths acres taken by the canal, which acreage, at the value per acre of twenty dollars, gives a total of two hundred and fifteen dollars, as found by the court.
3. Appellant claims that there was error, in that witnesses were interrogated, and allowed to testify, as to damages in gross, as he calls it; whereas they should have testified as to damages and injuries to the premises, and again as to benefits; and, citing appellant’s brief, “the difference, if any, is the damage allowed to the land not taken, but the result is for the court
As a matter of course, evidence as to all damages is competent, and evidence as to all benefits is competent. But counsel seem to take the position that the witness must not speak of damages, unless, in the same utterance, he tells what he knows of the benefits; that is to say, that he must have them each in his mind at once, and weigh them each; and that when he has finished speaking he must have presented either a net result, or the facts from which the hearer may at once deduce the net result, and say what is the balance in favor of damage, if any; that is to say, that when a witness, in his testimony, finally informs the court or jury what the damage is, the sum arrived at must be a balance after deducting the benefits. But in the nature of things, when a witness is asked as to damages, he thinks of injuries alone as distinguished from benefits, and responds accordingly; and when the inquiry is as to benefits, his reply is upon that subject. Appellant objects that the questions were directed to damages alone and not to benefits, and that he, inquiring about damages, should have elicited information about benefits. The simple reply to appellant’s position is that, if the canal company were interested in proving benefits, they had ample opportunity for cross-examination to ascertain whether respondent’s witnesses had considered benefits in arriving at their figures, and of introducing direct evidence on that point. We have recently touched upon this proposition in Carron v. Wood, supra.
4. Appellant insists that there should have been separate findings of the court of the amount of damages and benefits. But the condition of the evidence upon the subject of benefits makes this matter immaterial to the appellant in this case. The whole evidence as to benefits is that two witnesses said that the cattle could drink from the canal. Oue said that if there is any seepage it would make the grass grow better, and another said that the canal makes water all the time, and he found it very convenient to have water upon all his fields. Not a witness testifies that the canal was a benefit in any sum whatever. A finding of benefits in any amount could not, therefore, have been sustained by the evidence; and if, on the evidence, the
In the preparation of the statement, on motion for a new trial, it appears that amendments were suggested by the respondent. The amendments were allowed by the district judge in the following language: “The foregoing statement, after the same has been amended by allowing the amendments offered by the defendant, .... is allowed and settled.” The amendments refer to changing words and inserting matter at different places in the statement in its original draft. Instead of making the amendments as the court ordered, and putting them into the statement at the appropriate places, the compiler tacks them on at the end of the statement, in their original language, with reference to pages and lines of the original draft. When a •copy of the statement is made and sent to this court, with pages and lines all changed, and this court undertakes to arrange the •amendments in their proper places (work which should have been done by the compiler), the matter is wholly unintelligible. The result is that we will disregard the amendments. We have heretofore endeavored to speak of this matter in unmistakable language, and we add this utterance to a long line of remarks in former cases. We find no error in the record. The order •and judgment of the District Court is affirmed, with costs.