4 Wash. 509 | Wash. | 1892
Lead Opinion
The opinion of the court was delivered by
This was a statutory proceeding instituted by appellant to appropriate a strip of land 100 feet in width across the premises of the respondents for the purpose of a right-of-way for its railroad. The right-of-way sought to be appropriated passes diagonally over the eastern portion of respondents’ land, separating it into two unequal parts, and cutting off about eleven acres to the east of the right-of-way from the larger tract lying to the west, and contains something less than two acres. The land of respondents is nearly all improved, and is productive,agricultural land. It is nearly level, but slopes and drains towards the west, and the grade of the proposed railroad is about four feet above the natural surface of the ground. Upon the trial the jury assessed the damages of respondents at $1,025, for which sum judgment was duly entered by the court. The petitioner appeals.
It is objected that the court refused to permit the witness Hanson to state his opinion as to the fair market value of respondents’ land. This objection would be entitled to consideration if it had been shown that the witness was competent to give an opinion upon that question. But, as he had himself stated that he did not know the market value of land in that vicinity, it is difficult to perceive wherein the court erred. The objection is obviously not well taken.
Upon the trial one Cardinell, a witness for the petitioner, testified that he had sold land similar in character to that of the respondents, and in the same vicinity, at about the time of the filing of the petition in this proceeding. The witness also testified that the land was nearer to the town of Stanwood than that of the respondents, and that it was purchased for the purpose of being divided and platted into town lots. When asked the question, “How much did you sell that land for per acre?” an objection was interposed by council for respondents, on the ground that it was incompetent, irrelevant, and immaterial. The objection was sustained, and an exception allowed. That action of the court is also assigned as error. Whether, in
The degree of similarity that must exist between the property sold and the property whose value is to be determined, as well as the nearness in respect to time and distance, are matters resting largely in the discretion of the
The ruling of the court rejecting the testimony of the witness Foster, as to what he testified was the value of McDonald’s land adjoining that of the respondents in a probate proceeding in the same court the day before, is not open to criticism. What the witness said or did on the day previous, and in another proceeding, was entirely immaterial. If he knew the market value of respondents’ land, he could have so stated. If he did not know it, he was not competent to testify as to its value at all.
It is also objected that one of the respondents was permitted to say how much, in his opinion, the land would be depreciated in value on account of the appropriation of the right-of-way and the construction of the railroad. It is conceded by appellant that it is competent for a witness^ if properly qualified, to state his opinion as to the value of the land before and after the appropriation; but it is contended that it is for the jury to say what the damages are and not th e witness. While there is undoubtedly a conflict of authority upon this question, itseems difficultto perceive any substantial reason for rejecting such testimony. To admit evidence of the value of the land before and after the taking is to admit, in effect, the same thing to be done
- In Seattle & Montana Railroad Co. v. Murphine, supra, this court held that the cost of new fencing made necessary by the construction of the road might be shown to aid the jury in ascertaining the extent of the burden thereby cast upon the land, but that the same should only be considered in so far as the land was thereby depreciated in value. On the authority of that case the objection of appellant to the testimony as to the cost of additional-fencing is not tenable.
Appellant further complains of the ruling ofthe court in-permitting the respondent, John Gilchrist, to state how-much the land lying east of the railroad would be diminished in value by reason of the drainage being obstructed. The question propounded to the witness was objected to on
It appears from the testimony that the premises of respondents over which the right-of-way passes are such as are known as “peat lands,” and which become dry and combustible duringcertain portions of the year. A witness was asked at the trial, against the objection of appellant, whether there would be danger of this “peat land,” in dry weather, igniting from sparks from a locomotive, and appellant claims that it was error on the part of the court to permit the question to be put and answered. Danger from fire communicated from passing engines to buildings and improvements situated upon the part of the premises not taken for railroad purposes, if such danger is appreciable and imminent, may be considered in estimating the damages, in so far as the residue of the land is thereby depreciated in value. But the possible or probable damages that may result from such a cause to the landowner, in the future, cannot be considered by the jury. Such damages are purely speculative, and not capable of satisfactory proof. A railroad company is liable, in an action for damages, for property destroyed by fire resulting from its negligence, but not for damages occurring without negligence in the proper operation of its road. And it is, therefore, the danger from fire, and not losses that may probably be occa
Appellant also complains of the instruction of the court upon the question of liability from fire. While the charge is, perhaps, not so clear and explicit as it might have been, it is substantially correct, and we see no reason to think that it was not fully understood by the jury.
Appellant’s tenth assignment of error cannot be sustained, for the reason that no exception to the instruction therein complained of appears in the record.
At the trial, counsel for appellant propounded to a witness this question: “Has not the market value of real estate through Skagit and Snohomish counties, where the Seattle & Montana railroad runs, increased within the last six months?” The question vrs objected to as irrelevant and immaterial, and tie objection was sustained, and we think rightly. In a new country like this, values are likely to increase rapidly, even in localities remote from railroads. If counsel had offered to show to the court, by proper proof, that such enhancement of value was directly due to the proposed building of the road, and that such appreciation of value should therefore be excluded, the case would be different. But disconnected from anything showing that the real market value of respondents’ land, at the time of the taking, should not he considered in the assess
The 13th, 14th and 15th assignments of error cannot be here considered, as the record fails to show that any requests to charge the jury were made by appellant. This, no doubt, was an oversight of counsel, but we are not warranted in passing upon any matter not contained in the record. We may say, however, that even if the requests had been regularly presented to the court, and so appeared of record, the exception of counsel would be unavailing for want of sufficient definiteness.
For the errors indicated the judgment of the court below is reversed, and the cause remanded for a new trial.
Hoyt and Stiles, JJ., concur.
Dissenting Opinion
(dissenting). — This case is very similar to that of the Seattle & Montana Ry. Co. v. Murphine, ante, p. 448. The pleadings took the same course. A different point is raised here, as to allowing a witness to testify there would be danger of that land being ignited by fire from the locomotive. If this testimony was objectionable, it occasioned no harm, for the danger was apparent, and the testimony did not make it any more so. Consequently, and for the reasons stated in my dissenting opinion in the Murphine case as to the right to open and close, I dissent here.
Durbar, J., concurs.