No. 2,602 | Mont. | Mar 1, 1909
delivered the opinion of the court.
The plaintiff seeks by the exercise of eminent domain to acquire certain lands belonging to defendant, McLean. There was an appeal to the district court from the award of the commissioners. The question of damages was tried to the court sitting with a jury. Upon the verdict returned, a judgment was rendered and entered, from which judgment the defendant, McLean, appeals.
There are many assignments of error; but, with one or two exceptions, it will not be necessary to consider them separately. At the instance of plaintiff the court gave instructions 7 and 9, as follows:
“(7) What similar land has actually been offered or sold for is, of course, legitimate evidence upon the question of its market value and a legitimate basis for a decision as to the market value of the land.”
“(9) On the question of indirect damage, while this is ordinarily more difficult of determination than the actual value of the land, nevertheless it is governed by the same rules. All fanciful, exaggerated, and sentimental elements must be excluded. The amount must be just compensation for actual indirect damage that will really ensue — nothing more. You will consider those elements of damage, and those only, that would be agreed upon as reasonable elements by a reasonable buyer and seller, who were willingly trading in the open market; and on those elements you will confine yourselves to what you honestly believe the actual damage in money resulting therefrom will
“The court instructs you that, in determining the amount wbicli the defendant in condemnation proceedings is entitled to recover, you should take into consideration every element of value which would be considered if parties were negotiating a voluntary sale, as between one who wants to purchase but is not compelled to purchase, and one who wants to sell but is not compelled to sell.”
It is now insisted that instruction 9 is erroneous in any event, and that it is contradictory of instruction 5. In instruction 3 the court defined “indirect damage” as the detriment resulting to the portion of the land not taken by reason of its severance from the portion actually taken. In determining such detriment the court, in instruction 9, told the jury to consider those elements of damage, and those only, that would be agreed upon as reasonable elements by a reasonable buyer and seller, who are willingly trading in the open market. We confess our inability to understand the instruction, or to know therefrom what standard is sought to be established for the guidance of the jury. The common experience of mankind teaches that, when trading in land in the open market, there is not any question of damages presented at all. If it was meant by the instruction to say that the jury should confine themselves to those elements of value which would be agreed upon as reasonable by a reasonable buyer and seller in trading in the open market, the instructions could be understood, although it would be little less objectionable; but in its present form it is not only open to the charge that it is prejudicially erroneous, but it is so far meaningless that it could operate only to confound the jury.
The question now under consideration, which was before the jury for determination, is: What, if any, less value has the remaining portion of the land in its detached condition than it had as a portion of the entire tract ? And this question is to be resolved by the application of the same rule for, determining value as is applied in other cases. The solution of the ques
The question before this jury was about as simple as any ever presented in court; and the result in this instance is fairly illustrative of the danger attending the giving of a large number of instructions, where four or five plain statements of law would be ample. New trials are frequently ordered on account of conflicting and contradictory instructions, and in almost every instance, the result could have been avoided if the trial court had confined the instructions to the matters necessary for the information of the jury in rendering a verdict.
Since a new trial must be had, attention is directed to instruction 7, above. There are not any objections made to this part of the charge, but the error in this instruction is apparent.
We have examined the other specifications of error, but conclude that they are without merit.
The judgment is reversed, and a new trial ordered.
Beversed and remanded.