Illinois Central R. R. v. Smith, 110 Ky. 203

Illinois Central R. R. v. Smith

110 Ky. 203 | Ky. Ct. App. | 1901

Opinion op tiie cotjet by

JUDGE O’REAR

Reversing.

Appellee recovered judgment on a verdict against appellant for damages to his land in the sum of $450. The damages complained of were occasioned, it is alleged, by the building of a railroad by the Owensboro, Falls of Rough & Green River Railroad Company; the latter company,' in the construction of its road adjacent to appellee’s lands, it is charged, having diverted the course, and so changed the channel, of a stream known as “Middle Fork of Adam’s Fork of Rough Creek” as to cause the current of the stream to strike plaintiff’s lands at a different angle and with more accelerated force than when in its former and natural channel. The effect was to ■cause the stream to leave its channel in time of flooded waters, and! “cut across” plaintiff’s field of about sixteen acres, washing away its soil and rendering it “unfit for cultivation.” Appellant for two years before this suit had owned and operated the road in question, and, after notice, had failed, it is alleged, to abate the continuing nuisance caused by the acts stated. It is sought to make appellant liable for the two years only since it acquired the road.

Numerous errors are complained of, but we think it necessary to notice only two, the others appearing immaterial, if they are errors at all. The trial court seemed to have had some difficulty in determining the measure of damages in this cáse. In the course of the trial, in ruling on the admissibility of testimony on this point, the court announced that the criterion of recovery was the dimin*207islied rental value of the land as occasioned by the acts complained of. Further along in the case the court admitted testimony showing not only the diminished rental value of the land, but the value of crops damaged in the two preceding years by this overflow; and, finally, as to the extent plaintiff’s land was permanently damaged by the overflow, — that is, as to how much its selling value was decreased by reason of the loss of the soil occasioned by the overflows. From the facts shown in the record we think the injury complained of was a permanent one, and therefore the measure of damages under the pleadings was the injury done to the soil, and consequently diminution of its salable value. On the trial, witnesses were introduced by plaintiff, who were asked the question, in substance, “How much, in your opinion, was plaintiff’s land damaged by this change in the stream?” to which the witness would answer, “$300,” or such sum as he may have fixed as the damages. Opinions are not admissible as evidence in fixing damages, where the extent of damages may be shown by direct and positive proof. 'The word “opinion,” as here used, is distinct from the faculty of judgment based on observation and experience and inspection of the premises in suit. The character of testimony discussed is open to the further objection that it constitutes-the witness sole judge of the measure of damages in the case. For example, this case seemed to puzzle the lawyers engaged, and for a time to have not been been fully satisfactory to the learned trial judge in determining what was the correct measure of recovery, A witness asked the mere question, “How much, in your opinion, was A. damaged by the overflowing of his lands?” at a certain time, left the witness to determine a measure of damage, and to apply it. In thus determining the *208measure of damages, the witness exercises the functions of the court, and, in applying it, the functions of the jury. Besides, neither the jury, nor the court, nor counsel interested could know what measure the witness adopted, and therefore would not know7 what just value to give his opinion, even had it been competent as testimony. In such a case we think the court should determine the criterion of recovery, and control the evidence of damage by it. If the criterion is the diminished rental value of the land, then the question to the witness is, “What was the rental value of the land but for the injury complained of?” and then, “How much, if any, had it been impaired by reason of the injury complained of?” If the criterion is the diminished salable value of the land, then the inquiry is, what was its salable value but for the injury, and how- much, if any, has its salable value been diminished by reason of the injury complained of? The admission of the character of testimony above referred to was error. Por the reasons indicated, the judgment is> reversed, and the cause remanded, with directions to set aside the judgment and verdict, and to grant appellant a new trial. Upon a return of the cause the court should allow or compel a reformation of the pleadings so as to fairly present the question of the alleged injury, designating so a® it may be identified the particular tract of land alleged to. have been damaged, and the character of the damage claimed to have been sustained. As the pleadings were formed on the other trial, evidence as to value of crops destroyed by the overflow was inadmissible.