38 Kan. 246 | Kan. | 1888
This was an appeal from the award of commissioners appointed to condemn a small piece of land in the city of Atchison, for the use of the railway company. There are but two assignments of error; and the first is as to the admissibility of certain parts of the testimony of one John Barry, a witness for the plaintiff below. He had stated that he knew the property in controversy; that he had lived in Atchison since 1872; that he knew the market value of the property before the railway company “took any off;” that the value of the strip taken was from $90 to $100; that the value of the property after the taking-off of the strip was so much; that the property was used as a hotel; and he was then asked, “ What would be the principal damage to the property ? ” This question was objected to as “ calling for the opinion of the witness;” “not a proper subject of expert testimony;” “incompetent, irrelevant, and immaterial.” The objections were overruled, and exceptions noted. He answered, “ The closer the road comes to the property, the worse and more damage it does.” This is the particular question and answer complained of. The rule is for the witness to state the value just before and just after the appropriation, and the difference is the amount of damages that the witness fixes. Is it improper to ask him what is the principal damage, that is, what acts tend to form his estimate? What things does he take into consideration in fixing the difference in value just before and just after the taking? All such questions are proper on cross-examination; why not in chief? It may be a matter of opinion, (in the nature of things it probably is,) but so were the answers to preceding questions, and this necessarily grew out of them. We think the question was proper, even if the answer was not directly responsive. The answer was a statement within the common knowledge of any ordinary man. It cannot be, in view of all the other evidence in the case, if the question was improper, that it was such a material or prejudicial error that.the case ought to be reversed for that reason.
“No. 6: What are the several elements or sources of damages which make up the aggregate of the answer to special question No. 5, and how much of said aggregate is made up by each of said elements or sources of damage? A. Disfigurement of property, and inconvenience and damage of sale.” (Giving the figures for each as above stated.)
In answer to question No. 5, the jury fixed the amount of real and actual damage to the remainder of the property at $350. They fixed the valúe of the land taken at $75. The property was a lot on the corner of Main and Fourth streets, in the city of Atchison, fifty feet front by ninety feet. There is a hotel on the lot fifty by seventy feet, built of brick, two stories and a basement, containing about thirty rooms, constantly in use for all the purposes of a hotel. The strip of ground condemned lies in the rear of the hotel building, and had been used for a yard, and had a coal house and chicken coop' thereon. The portion taken was a strip triangular in form, being four feet wide at one end, and twelve feet six inches at the other, containing about twenty-five- square feet of ground. It is said that the two items of inconvenience and damage should be stricken out. Counsel for plaintiff in error contend that according to the decisions of this court, inconvenience as an element of damage is only allowed where the land is cut in two, so that the tract is divided, and one part rendered less easy of access, on account of the road-bed or the taking of the right-of-way. It may be that in the reported cases this is the only example of inconvenience that is cited and commented on, but it surely does not require much argument to show that the lessening of the area of the yard, the dangers and difficulties of approach from that direction, the loss of room for coal houses, chicken coops, and other
There are very many things which might have been considered by the jury as elements of damage, other than disfigurement and inconvenience, that are grouped together in the last item of “damage, $150.” No objection was made by counsel to the form of the answer, and we do not now understand him as objecting on that account; his contention seems to be one of logical deduction, rather than of mere formality. In other words, the “marrow” of his proposition is, that when inconvenience is assessed at $100, and disfigurement at $100, the elements of damage in this particular are exhausted. We do not think so. Among the various, if not many, things that might operate to the prejudice of the owner of the irregularly-shaped lots, bounded on two sides by railroad tracks, are: The effect these things would have, not on his possession and.enjoyment, but on the market value of the property; its undesirableness for all kinds of residence or business purposes; the annoyance of the trains; crossing the tracks to approach it from two sides; and the danger attending the operation of
The jury estimated inconvenience, disfigurement, and other damage. If the plaintiff in error was dissatisfied with this answer, he should have asked the court to send the jury back and require them to specify the other elements of damage besides the two mentioned. This was not done, but a motion was filed, after the jury were discharged, to strike them all out of the special verdict. If insisted on, the jury might have enumerated other elements.
We do not see that such material error is shown as compels us to reverse the case. While the record shows that a judgment was rendered, it nowhere recites it. A literal transcript of the precise judgment in all its terms ought to be contained in the case-made, and it may happen that if it is not, this court would not consider the error assigned. Here there is a specific averment that the court rendered a judgment on the general verdict, but the judgment itself ought to have been set out, word for word.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.