38 Kan. 307 | Kan. | 1888
Opinion by
The errors complained of are, that the witnesses who were permitted to testify as to the value of the lots appropriated were not competent to testify; and second, that the court erred in its instructions to the jury in relation to the question of value and rule of damages. The objection to the competency of the witnesses by the defendant below arose not from want of a general knowledge of values in the community by the witnesses, or even of a knowledge in a general way of the value of the lots appropriated, but because of the fact that the witnesses showed that they were not acquainted with the market value of the lots at the time they were appropriated, for the reason that there was at that time no market value on the lots. Counsel insists that the rule of damages is the market value of the lots at the time they were taken. This is true where the property taken has a market value. This then presents the question, can the value of property be shown in absence of a market value ? It was shown by the witnesses that they were residents of the city of Gar-nett, and that this addition adjoined and was part of the city;
“While on the other hand, the values of real estate, especially in localities where there are few changes in property, are not so absolutely certain, and cannot be determined with absolute exactness; and in respect to them the testimony of witnesses partakes largely of the nature of opinions. And yet from the necessities of the case it has come to be recognized that such testimony is competent. It is the best that, in the nature of things, can be obtained; for a description by a witness of the locality of any given tract, its improvements and surroundings, would ordinarily throw little light upon the question of its value. So many things enter into and affect such value that a witness would be unable to describe them all, or even to comprehend them all fully. Hence it has become pretty generally established that a witness who testifies that he is acquainted with the values of real estate in the locality may give his opinion as to the value of any particular tract.” (See also A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 380; K. C. Rly. Co. v. Allen, 24 id. 33.)
On the question of the values and the rule by which to determine the defendant’s damages, the court instructed the jury as follows:
“4. In determining the value of plaintiff’s lots appropriated as right-of-way, you are to consider the fair market value of the lots taken as to the time of the taking. This does not necessarily mean what it would bring at forced sale, or under peculiar circumstances; but such sum as the property is worth in the market; that is, to persons generally, if those desiring to purchase were found who were willing to pay their just and fair value.
“ 5. If you should find that there was no market for such*311 property at the time, it does not follow that they were worthless, or could be appropriated without fair compensation. You should inquire what was its actual value, its reasonable worth; you should consider its reasonable worth in the hands of a prudent seller, at liberty to sell, at a reasonable time for selling, and usual and reasonable terms and conditions of sale; taking in view the location of the lots and the purposes for which they were held. You should determine such value as the same would be determined by a prudent seller or purchaser. In arriving at this value the opinions of witnesses are taken. Of course the value of their opinions depends upon the means of knowledge, experience and observation that the witnesses are shown to possess. You are not concluded by these opinions of one or more witnesses. You should consider the location, surroundings, the value of other lots in the vicinity at the time, and determine such value from a careful comparison and consideration of the whole evidence, guided by your own observation of the location and situation, as shown by the view you have had of the premises. Of course you will not fix the value from your own knowledge, or opinions formed upon the view, but will make use of your observation in weighing and considering the testimony offered, and applying it to the case. You should not be influenced by any estimate of the owner, based upon fancy, local attachments, or otherwise; neither should you base your estimate upon forced sales made under circumstances of hardship.”
In these instructions we see no error. It was a direction to the jury to determine the market value of the property, in the first instance, and if they found that there was no market value at the time the property was so taken and condemned, then they might consider the evidence of the reasonable worth of the same in the hands of a prudent seller, or a person desiring to purchase, and that in arriving at this value the opinions of the witnesses are to be taken, and that the value of the opinion depended upon the knowledge, experience and observation of the witness; also, that they were to consider its situation, surroundings, and the value of other property in that vicinity, and upon the whole evidence they were to be guided by their observation of the property, as shown to them, and from all this testimony and observation they were to determine its fair market value or real value. This instruction
We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.