39 Ark. 167 | Ark. | 1882
STATEMENT.
This was a proceeding under secs. 4944--4S of Gantt’s Digest, to obtain the right of way across a quarter section of land, and to assess the owner’s damages.' The surveyed line ran through an inclosed field for the distance of about one thousand feet, and the superficial area to be appropriated to the use of the railway company, computing the right of way at one hundred feet, would embrace a little less than three acres. The tract contained one hundred and forty acres, was well improved, and was proved to be worthjf4,000 or $5,000. The railway, when constructed, would pass about two hundred yards distant from the dwelling house, leaving some fifteen acres on the west side, and the residue on its east side, but would not interfere with any buildings, orchards, shade trees,’ wells or other improvements except the field through which it ran, part of which was in meadow. It would necessitate the building of additional fences along the line of the road, and it made the strip, which was severed from the main farm, more inaccessible, as the owner, in going to that part of the land, must either leave his own premises and pass through those of a neighbor, or must construct a crossing over the railway track. It rendered the meadow almost useless, destroying a great part of it. The jury assessed the damages at $250.
OPINION.
The principal grievance complained of, as shown by the company’s objections to testimony, its prayers for instrucrions, its motion for a new trial, and its brief here, is, that in determining the amount of compensation, the jury did not, and were not allowed to, deduct from the owner’s damages, the benefits likely to accrue to his remaining property from the building of the road. .
We believe the current of authorities is to the effect that such deductions may be made, when not prohibited by constitutional or statutory provisions. (See eases cited in Pierce on Railroads, at page 2211) But such decisions have no application here, where it is provided that compensation must fie made in money, and fie ascertained, irrespective of any benefits from the proposed improvement. (Constitution of 1874, art. 12, sec. 9.) A similar provision was contained in the Constitution of 1868. (Art. 5, sec. 48-) It is the plain meaning of this clause that a person whose land has been taken for the use of a railway company, is entitled to be paid in money, and can not be compelled to accept, as compensation, the estimated enhancement in the value of his remaining property. And such was its settled construction at the date of the adoption of our present Constitution. Whitehead v. Ark. Central Railway Co., 28 Ark., 460; A. § F. Railway Co. v. Burkett, 46 Ala., 569; S. C., 42 Ala., 83; Giesey v. Cin. W. and Z. R. Co., 4 Ohio St., 308; Cleveland and P. R. Co. v. Ball., 5 Ohio St., 568; Little Miami R. Co. v. Collett, 6 Ohio St., 182; St. Joseph and D. C. R. Co. v. Orr, 8 Kan. 419; Hunt v. Smith, 9 Kan., 137; Atchison, T. and S. F. Ry. Co. v. Blackshire, 10 Kan , 477.
The damages were not excessive, according to the evidence. The elements which enter into such an estimate are not alone the market value of the land actually appropriated, but include also the injury to the owner’s remaining land, arising from the increased difficulty of communication between the parts of the severed tract; the inconvenient shape in which the remaining land is left; the cost of new fences required in consequence of the construction of the railroad; the increased exposure to fire, so far as it depreciates the value of the residue of the land, and various other causes, provided they are not of a remote or speculative character. Pierce on Railroads, p. 174, and cases there cited.
T]ie true measure of damages is the difference between the market value of the whole tract before the taking, and the market value of what remains to him after such taking, excluding any enhancement of value by the building of the road. And the jury were, in substance, so told. The case was fairly submitted to them under proper directions.
The only other alleged error relates to the admission, as evidence, of the opinions of witnesses conversant with the land as to its value before and after the taking. Such witnesses are competent, not strictly as experts, having peculiar skill or scientific attainments, but as persons having particular knowledge of facts in issue. Whether the witness has acquired sufficient information to qualify him to give an opinion, is a question largely within the discretion of the presiding judge. Here the majority of the witnesses sworn were farmers, resident in the neighborhood, and acquainted with the property. It was no error to permit their testimony to go to the jury for what it was worth. Pierce on Railroads, p. 225.
Affirmed.