41 Kan. 22 | Kan. | 1889
The opinion of the court was delivered by
This was an appeal by B. Ehret from an award of damages made to him by the board of county commissioners of Cowley county in certain condemnation proceedings had for the purpose of appropriating a right-of-way for the Kansas City & Southwestern Bailroad Company through his land and the land of others. The commissioners awarded damages to him to the amount of $542.40. After the appeal was taken, the case was tried in the district court before the court and a jury, and in that court damages were awarded to him to the amount of $870. The jury assessed the damages
I. It is claimed that improper testimony was permitted to go to the jury, and the testimony of five witnesses is referred to. These witnesses were all farmers living in the vicinity of the land in question, had full and complete knowledge of the same, and testified with respect thereto, giving full details. Their testimony showed that the land was worth but little except for farming purposes; and they testified that they knew the value of the land for such purposes. But they did not testify that they knew its market value as contradistinguished from its usable or productive value; nor did they testify that they knew of any sales of any land made in their vicinity at or about the time when the right-of-way in this case was appropriated, and probably there were no such sales. These witnesses were permitted to give their opinion with respect to the value of this land, and this it is claimed was error. It is claimed that only such witnesses as know the market value of the land in question should be permitted to give opinions concerning its value, and that such opinions should be confined exclusively to market value. Now this claim is certainly untenable. It is not the market value merely that is in question, nor the usable or productive value, but it is the real value. And this real value involves everything that tends to make the land more valuable or less valuable. “The value of land for farm use is a proper' subject of inquiry in proceedings to condemn it for railway purposes.” (Mich. Air Line Rly. Co. v. Barnes, 44 Mich. 223.) Indeed, the value of land for any use is a proper subject of inquiry in such cases, and anything may be shown which will tend to show a greater or
After a careful consideration of this case, and of the whole subject of the proof of value of real estate, we have come to the conclusion, both upon reason and authority, that farmers who reside within the vicinity of a particular farm, who are familiarly acquainted with the farm, who know its capabilities, and who can testify that they know its value, may give their opinions in evidence with respect to its value; and such opinions are competent evidence, although such farmers may not
“1. Upon the trial of an appeal from an award by commissioners of damages caused by the appropriation of a right-of-way through an addition to a city for railroad purposes, and a number of witnesses are called who testify that they have known the land appropriated for many years, its location and situation, and that at the time of its appropriation it had no market value; that they knew the value of real estate in that vicinity at the time of said condemnation; and such witnesses are permitted, over the objection of the defendant, to testify as to the value of the lots appropriated: Held, Not error.
“2. Where it is shown that the property sought to be appropriated has no market value at the time of its appropriation, witnesses who are competent to testify to the value of the*27 property may give their opinions of the value of the land so taken.”
See also L. & W. Rly. Co. v. Hawk, 39 Kas. 640, 641, where it is said as foilows:
“The next objection is, that the opinions of incompetent witnesses as to the market value of the land were received. These witnesses were farmers living in the neighborhood of the land in question, well acquainted with its situation and fertility, its advantages and disadvantages, and they were therefore qualified to state their opinions in regard to its value before and after the railroad was constructed through it. This is not a question of science or skill, requiring expert testimony, but it falls within one of the exceptions to the rule excluding mere opinions of ordinary witnesses. It is not necessary that the witnesses shall be engaged in buying and selling land, nor that they should have knowledge of an actual sale of that or similar land, to make them competent. A farmer living in the vicinity is presumed to be familiar with and to know the value of farm lands, and there can be no doubt of his competency when it is shown that he knows the situation and character of the land, its productiveness and availability for use, and who further states that he knows the value of the same, as did the witnesses in the present case.”
"We.think that Ehret, the plaintiff below, was a competent witness to give his opinion with reference to the value of the land. It appears that in 1870 he worked on a farm in the state of Illinois. In 1873 he removed to Cowley county, Kansas, where he has since resided. In 1877 he owned a farm in that county, and farmed the same himself. In 1884 and since, he has owned the farm which it is now claimed was injured by the railroad company. He purchased the same. This farm is situated about four miles in a northeasterly direction from Winfield, where the plaintiff has resided a large portion of the time since he removed to Cowley county. In 1884 and in 1885 he resided upon and cultivated this farm. The railroad company took possession of its right-of-way through this farm about August, 1885, and while the plaintiff was residing upon it. The plaintiff removed from the farm about November, 1885, and since that time and up to
II. Nor can we say that the court below erred in excluding testimony. The witness whose testimony was excluded did not seem, from his testimony, to be a competent witness to give an opinion. Pie did not know the value of the farm from his acquaintance with it, nor did he know the value of the farm from any sales made of any farm in that vicinity, or from any offers made to purchase the same.
III. We do not think that the court below erred in giving instructions to the jury. The instructions complained of we think were proper under the facts of the case.
The judgment of the court below will be affirmed.