154 P. 686 | Or. | 1916
Opinion by
This is an appeal by the plaintiff, the Molalla Electrict Company, a corporation, from a decree requiring it to pay the defendants Irvine Wheeler and Jennie Wheeler, his wife, $200 as the value of 1.39 acres of their land which was taken for a canal, and $300 as damages to the remainder of their premises. It appears from a transcript of the testimony that the plaintiff’s predecessors in interest, the Molalla Power Company and the Canby Canal Company, in the year 1909 began the construction of a ditch to divert water from the Molalla River and conduct it to a powerhouse, where it was to be used in generating electricity for illumination. In prosecuting the work it became necessary to cross a 12-acre rectangular tract of land owned by the defendants. In order to secure a right of way therefore, an agent of the plaintiff’s predecessors agreed to pay the defendants $100, to furnish them the free use of eight 16-candle power incandescent lamps six hours daily, to allow them to install in the ditch a 5-horse power wheel with which to divert 24 miner’s inches of water to be used for irrigation from May to August each year, both months included, to grant them the right to excavate an incline to the canal to permit stock to obtain water, to authorize them to take from the canal sufficient water to operate a hydraulic ram to supply water for domestic purposes,
The defendants commenced an action in ejectment to try the title to and to recover the possession of the strip of land, making the Molalla Power Company, the Canby Canal Company and the Molalla Electric Company defendants. The last named company, having succeeded to all the rights of the other companies in and to the canal, filed an answer in that action, and thereupon as plaintiff instituted this suit in the nature of a cross-bill in equity, to enjoin further prosecution of the law action, and to have determined the value of the land which was taken for the ditch and the measure of the damages which resulted to the defendants’ premises by reason of the construction of the canal. The cause being at issue, was tried, a decree rendered and a review thereof instituted as hereinbefore stated.
“You consider that this canal, knowing the land before it went through and knowing its condition now, is this a benefit to the land ?
“A. No, sir.
“Q. Is it a detriment?
“A. Yes, sir.
“Q. How?
“A. It puts the land in bad shape to farm and it is a nuisance to get across the canal.”
In Burton v. Severance, 22 Or. 91 (29 Pac. 200), it was ruled that a witness should state facts, and not draw conclusions from them or give opinions; and hence, in actions for damages, while a witness might state facts upon which the damages were predicated, he could not give his opinion concerning the amount of damage resulting from any given act or omission, because it was the exclusive province of the jury to assess damages under the rules of law declared by the court. According to the rule there recognized, as applied herein, it might have been proper for a witness, who was qualified to testify on the subject, to have stated upon oath that before the canal was dug the defendants ’ tract was worth $300 an acre, but since the ditch was completed the premises were worth only $200 an acre. Prom this testimony the trial court might have concluded that the amount of damage thereby sustained was $100 an acre or $1,200. Such supposed method of substantiating a material fact amounts to nothing more than a mere estimate, made by a wit