90 P. 565 | Utah | 1907
The matters presented for review in this case grew out of a certain proceeding instituted by the plaintiff, the appellant in this court, against the defendant, the board of education of Salt Lake City, the respondent here, to condemn a certain strip of land. The record is quite voluminous, but the facts necessary to a comprehension of the question passed ■upon may be stated as follows: The respondent on the l«t day of August, 1905, owned, occupied, and used for public school purposes in the western portion of Salt Lake City a certain parcel of land .292 feet in length by 150 feet in width, on which there was situate a one-story brick school building, sixty-three by ninety feet, divided into four rooms, accommodating about forty pupils in each room. A strip of ground 43-J feet in width off the south end of the larger strip mentioned above was condemned by appellant, making the condemned strip 150 feet in length by 43-| feet wide. The strip in question was sought for the purpose of constructing thereon a railroad, and, if deemed necessary in the future, to construct double or more tracks as the necessi
The respondent at the trial contended, and now contends, that the construction and operation of a. railroad, in view of the noise, the jar of the building by passing trains, the distraction of the attention of the children, and the physical dangers incident to the operation of' a railroad, practically destroyed' the school property for school purposes, so that it was and had to be abandoned and renders it valueless for school purposes. Upon this subject the evidence, in substance, discloses the following facts, as appears from the testimony of some of the principals and teachers testifying as experts, viz.: That several large passenger trains pass to and fro daily (the exact number is not shown). Also some freight trains pass by the school daily each way. It seems no trains passed during the school hours up to the time of trial, hut such might be the ease in the near future. That the passing of a train has the effect to distract the attention of the pupils from their studies, and the noise would interrupt recitations for the time being until the train had passed. That the school in such condition could not be kept
Upon substantially the foregoing facts in respect to the destruction of the property for school purposes, the court submitted the following question to the jury as a part of the verdict to be returned by them, viz.: “Do you find from the evidence that the property of the defendant not taken has been wholly destroyed for school purposes?” The answer was, “Yes.” The court also gave instruction to the jury in respect to the method to be pursued by them in ascertaining the value of the property taken, and the damages to' the property not taken, directing the jury to find from the whole evidence whether the property not taken was wholly destroyed or only damaged for school purposes, and, if wholly destroyed for said purposes, then the amount to be allowed by them would be the whole value of the property not taken, less the amount that they should find its value to be for other than . school purposes, and, if they found it to be damaged and not wholly destroyed for school purposes, then to find the amount of such damages and allow them, and, in addition to either amount, also the value of the strip actually taken. The jury in accordance with these instructions found the value of the strip taken to be $250 and the damages to the part not taken $7,750. Just how the jury arrived at this result is not quite clear, but the reasonable theory to be deduced from the evidence is that they found the value of the part and parcel not taken to be worth from $2,000 to $2,500 for other purposes, and deducted that amount from what they found the building and land to be worth for school purposes before the railroad was constructed, and the balance constitutes their findings as damages. Upon this verdict and findings the court entered a decree condemning the property and judgment for the amount found by the jury, namely $8,000, and computed
Appellant filed a motion for a new trial, which was overruled, and it appeals from the judgment in respect to the allowance of damages in the amount above stated.
Numerous errors are assigned which need not be specifically set forth, and we shall notice such only as are deemed of importance. One of the errors urged upon us is that the verdict is not sustained by sufficient evidence. If there is any substantial evidence in this record in support of the verdict and judgment, then it is not within the province of this court to determine which way it preponderates and the verdict and judgment must stand, unless erroneous upon other grounds. If there is no substantial evidence in support of any one or more of the material elements upon which the verdict and judgment rest, then it becomes merely a question of law for this court to determine, and we cannot shirk the responsibility of looking into the evidence to ascertain whether there is any substantial evidence in support of all the essential facts necessary to support the judgment by simply assuming that all questions of fact are for the jury andthe trial court to pass upon. We have found no difficulty in this case in arriving at the conclusion that the findings of the jury that the property is wholly destroyed for school purposes is not supported by any direct evidence. In fact, what direct evidence there is upon the subject is directly to the contrary. The difficulty in this case lies in determining wha.t constitutes a total destruction of the property for school purposes, and in determining whether there is any -evidence in the record from w-hich this ultimate fact may be inferred or deduced. We have arrived at a conclusion, after much reflection and with some hesitancy, in view of the complications presented. It is argued that the evidence is clearly to the effect that the operation of a railroad located and constructed so near the school house is a constant menace and source of danger to the physical safety of the children; that the noise and jarring incident to the passing of trains distracts the attention of the pupils from their lessons, and breaks into the recitations,
The instruction is as follows: “The court instructs you that the defendant would have the right to regard the Uintah school building as wholly destroyed for school purposes if the defendant, acting conscientiously and as reasonable, and prudent men having in mind and giving due weight to the subject of taxation and the burden upon the owners of property, and likewise considering and giving due weight to the defendant’s duty to provide reasonable educational facilities to children living in the neighborhood where the Uintah school is located, and taking into consideration the standard of efficiency maintained by the defendant throughout its entire school system, and likewise giving due and reasonable consideration to the safety of the school children, when, to repeat, the defendant, SO' acting, would be justified in abandoning
There are several errors assigned to the admission of evidence and to the propounding of certain questions to certain of respondent’s witnesses. We have carefully considered all of those. The court fully and fairly instructed the jury on the measure of damages in such cases, and applied the rule •correctly. On the matter of permitting respondent to prove the valué of the schoolhouse apart- from the land, no other method was practical in this case in view that the property had no market value for school purposes.
In view, therefore, that the jury evidently were strongly impressed by the instruction referred to, and, from the state of the evidence, evidently based, to some extent at least, their finding and verdict thereon, and in view that the instruction, as we view it at least, permits the conduct of the board of education to be considered as evidence, the judgment cannot be permitted to stand.
The judgment therefore is reversed, and the cause remanded for a new trial in accordance with the views expressed in this opinion, appellant to recover costs.