58 W. Va. 620 | W. Va. | 1906
This is a proceeding by the Norfolk and Western Railway Company for the condemnation of a strip of land 2,567 feet in length, along the bank of the Tug Eork of Sandy river, in Mingo county, being the front of a trace of some'five hundred and fifty or six hundred acres, the strip to be taken containing five and two one hundredth acres, the property of T.- J. Davis, et al., for its use in the construction of a branch of its railroad. The applicant offered the owners $500.00, which they refused to accept. It then applied to the circuit court of Mingo county for the appointment of commissioners, under the statute, to ascertain the compensation, who reported $900.00 as a fair compensation for the land taken and damages to the residue of the property, which report was excepted to by the applicant “Because the amount fixed by said commissioners in their report as compensation for the land proposed to be taken and damaged is- grossly excessive,” and demanded that the question of compensation be ascertained by a jury. The defendants also excepted to said report “Because the amount fixed by said commissioners in their report as compensation for the land proposed to be taken and damaged is grossly inadequate,” and likewise demanded a jury to ascertain the compensation and damages. Accordingly a jury was impaneled and sworn, and, after hearing the evidence, returned the following verdict: “We
The questions presented for the consideration of this Court are as to whether the amount of compensation found by the jury is so high that it must be attributed to prejudice, partiality, passion or mistake of law or judgment, and whether the court erred in permitting certain evidence to go to the jury as claimed by plaintiff’s counsel. It is conceded, as well as proved, that the land taken for the right of way being a strip eighty feet wide, except for a distance where a fill was made it is enlarged to one hundred and forty feet, is rough hillside land wholly unfit for cultivation, and the evidence shows that between the right of way and the river is a strip, the most of which is bottom land, of about ninety feet in width, which is, by the road, severed from the main body of the tract of land out of which the right of way is taken. There are two producing gas wells on the land outside of the right of wajr proposed to be taken, one within about ten feet of the right of way, the other about two hundred feet up Lower Burning Creek from its mouth, so that the well must be within one hundred feet, or less of the right of way, but none upon the right of way. T. J. Davis, a witness in behalf of himself and the other owners testified that the compensation and damages should be $4,300.00, that he based his judgment upon an estimate that he had made; and testified that the two wells producing gas brought in rentals of $600.00 per year, to which testimony of Mr. Davis, so far as it referred to the gas upon the land and the rentals accruing from the two producing wells, the counsel for the plaintiff objected, but the objection was overruled and plaintiff excepted. Here was proof of actual development of the gas, the wells
The defendants, over the objections and exceptions of plaintiff in case at bar, had been permitted to prove by witness, H. M. Payne, a civil and consulting engineer and mining engineer, the probable number of tons of coal per acre underlying the land proposed to be taken and the value thereof per ton as measured by the usual price of royalty paid to land •¡owners per ton for coal when the coal was leased and being produced, which doubtless formed the basis of the estimate •of the witness, Davis, of the value of the-coal under the land ' taken, when there was no evidence that coal was leased or mined • or any royalties paid anywhere near the land taken, or-that coal •operations would affect that neighborhood or section in any reasonable time in the future; no works were opened near it, '•the land was not leased for operation, nor any near it as far ■■as the evidence shows. There seemed to be no effort to prove the market value of the land to be taken. It was shown that there was some good coal under the land, but when it might be mined and removed does not appear. The coal is of no value while it must remain in the earth, it is the prospect of its production which gives it value. The early pros pect of its development is what adds to its value; it is true it has a value now as an investment 'to be held for future development and, has, as such, a market value, and this market value is the true basis of compensation to be allowed. Goal lands are sold by the acre and have a market value by the ¡acre, and the price is controlled by the various elements of value, the quality of the coal, the thickness of the seam, as ■well as conveniences and the facilities for conveying it to market. The estimate made by witness Davis was made upon a false basis, conjectural and speculative, and should •have been excluded from the jury as well as all testimony fixing the basis of value upon the price per ton paid as royalty in coal fields being operated; the value must be arrived ¡at by ascertaining the true market value of the land proposed to be taken, taking into consideration all the elements •of value as would be done in negotiations for the sale and purchase thereof between private parties. This principle is
It is assigned as error that the court permitted to be propounded by counsel for defendants to witness W. H. Hovey, the question, “Tell the jury what your experience is and from the experience you have had as to the probability of oil in that neighborhood,” and the same to be answered over the objection of plaintiff’s counsel. Mr. Hovey was placed upon the witness stand as an expert oil man. His testimony would scarcely raise a suspicion in the mind of any one that there was oil in the tract of land from which the right of way is .sought to be taken. If the land contained oil the defendants had a right to show it by any evidence they could adduce ’ that was practical, and not merely conjectural and speculative. Nothing was shown as to the presence of oil further than the fact of the development of gas, which is at least to some extent, an indication of the presence of oil, and this fact was already and properly before the jury without the testimony of Hovey. In the absence of all development of oil or the presence of oil, all testimony relative thereto was mere guess work" and liable to confuse or mislead the jury, and the question being purely speculative and any answer thereto necessarily so, the same should not have'been permitted to be ■answered.
. The first error assigned is in refusing to set aside the' verdict of the jury and grant a new trial, ‘ ‘Because the amount of compensation found by the verdict is so high that it must, be attributed to prejudice, partiality, passion, or mistake of law or judgment.’’ — Citing in support of this assignment, Railway Co. v. Nighbert, 46 W. Va. 202, where it is held: “A verdict finding an amount of compensation in a proceeding by a railroad company to condemn land, that is so high it must be attributed to prejudice, passion, bias, partiality or mistake of law or judgment, will be set aside.” It is true
It is claimed by defendants that the jury having viewed the premises in the course of the trial, that such view is a part of the evidence in the case; that what they see relevant to the issue to be decided by them is alway evidence in a primary sense, and what is detailed to them concerning the same subject matter by witnesses is evidence merely in a secondary sense; and that the view of the premises was conclusive, and that the verdict should not be disturbed, citing several authorities.
The purpose of a personal inspection by the jury is to enable them to view the whole situation and see for themselves the property to be taken, its character and quality, and its relation to the residue of the tract from which the right of way is taken, and thereby obtain a more intelligent grasp of the evidence adduced before them, which, taken in connection with their view they are better enabled to arrive at a just and proper conclusion as to the amount to be paid. In Washburn v. Railroad Co., 59 Wis. 364, it is held: “In assessing the compensation to be made to the owner of land taken by a railroad company the jury may resort to their own knowledge of the premises, obtained from a view thereof, and to their general knowledge of the elements which effect the assessment, in order to determine the relative weight of conflicting testimony as to value and damages, but their assessment must be supported by the testimony or it cannot stand. Instructions from which the jury might reasonably have understood that they were to assess the compensation according to their own knowledge, judgment, and good sense, aided by their view of the promises, and that they might do so without regard to the testimony or in opposition thereto, are held'erroneous.” In the absence of inadmissible testimony, or erroneous instructions, a verdict rendered by a jury should not be disturbed unless it was so
For the reasons herein stated, the judgment is* reversed, the verdict of the jury set aside and the case remanded to the circuit court of Mingo county there for a new trial to be had therein.
It ever sed.