47 Minn. 458 | Minn. | 1891
This was a proceeding to assess the amount of compensation to be awarded to the plaintiff for opening a street through lands belonging to the appellant and a co-owner, lying in the city of Duluth. The land is chiefly valuable for use as city prop
While the language of different statutes in this state upon this subject is not uniform,'yet it is generally construed to refer to the same general rule of damages or compensation. Thus in Scott v. St. Paul & Chicago Ry. Co., 21 Minn. 322; Simmons v. St. Paul & Chicago Ry. Co., 18 Minn. 168, (184;) Greve v. First Div., etc., R. Co., 26 Minn. 66, (1 N. W. Rep. 816,)—the court construed the language of a charter providing for an assessment of the “value” of the land taken to be intended to mean its value as related to or connected with an entire tract, and hence to embrace compensation for damages to the whole. And so it is generally understood, and in practice, on the trial of this class of eases, it is usual to offer evidence of the value of the land with and without the proposed improvement. Simmons v. St. Paul & Chicago Ry. Co., 18 Minn. 168, (184,) St. Paul & Sioux City R. Co. v. Murphy, 19 Minn. 433, (500;) Emmons v. Minn, & St. Louis Ry. Co., 41 Minn. 133, (42 N. W. Rep. 789;) San Francisco, etc., R. Co. v. Caldwell, 31 Cal. 368. In Canandaigua, etc., R. Co. v. Payne, 16 Barb. 273, the statute required the commissioners to determine the compensation to be made to the owner of the land proposed to be taken, to be appraised by them, and it
Upon the trial, in connection with the plat of the land in question, showing the proposed improvement and adjacent platted lands, the testimony of the witnesses related wholly to the value of the land, and its value as affected by the improvement; that is to say, the value of the remaining portion of the tract after the opening of the street. Of course, in estimating the relative values, neither the witnesses nor the jury are permitted to consider general or speculative benefits or advantages, but such only as are peculiarly incident to the remaining portion of the particular tract, and it is proper that they should be so advised. The basis of the opinions or estimates ■of the witnesses maybe ascertained and tested by cross-examination. In the absence of such examination, or any evidence suggesting that a wrong rule has been applied in giving or weighing the testimony, it will not be presumed that either the witnesses or jury have erroneously included improper elements in their estimates of damages or benefits. There was no error, therefore, in the instruction given to the jury. If the testimony based on the rule stated was proper, the instruction was proper. It would have been proper, however, for the court to instruct the jury in respect to the distinction between general and special benefits as applicable to such cases; but, as the point was overlooked by the court, it was evidently the appellant’s duty, if she desired further instructions, to ask for them.
Order affirmed.