| Wis. | Jan 29, 1884
All of the above cases arose in the circuit court by appeals severally taken by all the parties from awards made by commissioners duly appointed, in certain condemnation proceedings. The cases were severally tried in the circuit court, and the jury in each case were sent to view the premises affected by the proceedings. The plaintiff in each case appealed from the judgment of that court rendered pursuant to the verdict of the jury assessing his compensation for the talcing of his land. Such of the errors assigned as cause for reversing the judgments, which it is deemed necessary to pass upon, will be considered in their order.
1. In the Washburn case and the two Sbringham cases the jury were instructed, in substance, that they were to determine the amount of compensation to which the plaintiffs respectively were entitled, from the whole evidence, from their view, and their own knowledge, judgment, and good sense. In one of the cases the language of the court was: “You are to determine it [the compensation] from the whole evidence that has been given you in the case, from your view— you take the view you make, you take your own knowledge, your own judgment, your own good sense.” There are other passages in the instructions given which served to impress the minds of the jurors (or might have done so) that their own knowledge, and the dictates of their own judgments and good sense were the paramount and controlling considerations in making up their verdict, to which the sworn testimony of any or all the witnesses conflicting there
These instructions present for consideration two very important and interesting questions. These are, (1) How far may a jury who have made a view of premises affected by the action disregard the evidence given in court, and act upon their own observation on such view in making up their verdict? and (2) In what cases (if any), and to what extent, may jurors act upon their personal knowledge of the facts in controversy, and may they render a verdict in accordance therewith in opposition to the testimony?
We understand that the object of a view is to acquaint the jury with the physical situation, condition, and surroundings of the thing viewed. What they see they know absolutely. If a witness testify to anything which they know by the evidence of their senses on thé view is false, they are not bound to believe, indeed cannot believe, the witness, and they may disregard his testimony, although no other witness has testified on the stand to the fact as the jury know it to be. For example, if a witness testify that a certain farm is hi-lly and rugged, when the view has disclosed to the jury and to every juror alike that it is level
But if the fact of which the jury may thus take cognizance is only one of many elements which must be considered to determine some other fact which can only be satisfactorily determined by a resort to professional or expert testimonjq the case is very different. Such g,re these cases. The jury were to assess the value of the land taken for the use of the railway company, and the damages to the other adjacent lands of the respective owners resulting from such taking. To do this intelligently it became necessary to determine the location, quality, and condition of the land, the uses to which it was or might be applied, its market value, the manner in which the taking of a part of the tract would affect the residue, and perhaps other conditions affecting such value and damages. Some .of these conditions, and more especially the value of the land, could not be definitely determined by the view alone, and cannot properly be said to be within the common knowledge of the jury. The opinions of witnesses acquainted with the values of such-property are essential to an intelligent judgment.
At the common law a view might have been had in a real action, and by statute in any action, to. the end that the jury might see the land or thing claimed to enable the jurors better to understand the evidence on the trial. Jacob’s Law Diet., tit. “Yiew.” We think such is still the office of a view. Hence, whatever the jury in each of these cases learned-of the lands in- question by the view, was available to enable them to determine the weight of conflicting testimony respecting value and damage, but no further. Eor reaso'ns hereinafter more fully stated, we think such value and damages could only be assessed upon the evidence given
The foregoing observations are abundantly supported by the cases cited by counsel for the plaintiff, particularly the case of Close v. Samm, 27 Iowa, 503" court="Iowa" date_filed="1869-10-08" href="https://app.midpage.ai/document/close-v-samm-7094387?utm_source=webapp" opinion_id="7094387">27 Iowa, 503.
As to how far jurors may make up their verdict on their own knowledge, independently of the testimony, or against the testimony, the true rule is indicated in what has already been said concerning the view. A jury is not bound to give, and cannot give, any weight to testimony which, although undisputed by witnesses, is contrary to what every person of ordinary intelligence knows to be true. To illustrate, should a witness testily that at Boston on a certain day the sun arose at midnight, or that the Mississippi river empties into Lake Michigan, or that white is black, the testimony would be rejected at once. So, in matters of mere opinion, in cases where the testimony of experts is not required, if the jury know all the facts, they are not necessarily controlled by the opinions of witnesses, if such opinions have been received. In such cases the jury are as competent as the witnesses to' form an opinion, and the opinions of witnesses, if objected to, are inadmissible. Veerhusen v. C. & N. W. R’y Co., 53 Wis., 689" court="Wis." date_filed="1882-01-10" href="https://app.midpage.ai/document/veerhusen-v-chicago--northwestern-railway-co-6603667?utm_source=webapp" opinion_id="6603667">53 Wis., 689. Beyond this the jury cannot properly go.
To allow jurors to make up their verdict on their individual knowledge of disputed facts material to the case, not testified to by them in court, or upon their private opinions, would be most dangerous and unjust. It would deprive the losing party of the right of cross-examination, and the benefit of all the tests of credibility which the law affords. Besides, the evidence of such knowledge, or of the grounds of such opinions, could not be preserved in a bill of exceptions' or
"We think the correct rule in these cases is that above stated, to wit, if the testimony of value and damages is conflicting, the jury may resort.to their own general knowledge of the elements which affect the assessment, in order to determine the relative weight of conflicting testimony, but their assessment must be supported by the testimony, or it cannot stand. Halaska v. Cotzhausen, 52 Wis., 624" court="Wis." date_filed="1881-09-27" href="https://app.midpage.ai/document/halaska-v-cotzhausen-6603542?utm_source=webapp" opinion_id="6603542">52 Wis., 624, although not originally determined by a jury,' was decided uppn this rule. That was an action, quantum meruit, for services as attorneys. The testimony of the value of the services was very conflicting. The referee’s report, fixing the value, was modified by the circuit court, and judgment went for a larger sum, but there was-evidence to support it. This court said: “But a fact appears in the case, the existence of which enabled the circuit court to pass upon the conflicting expert testimony more intelligently than could either the referee or this court. The appeals in the condemnation proceedings were tried before the learned judge, who modified the report of the referee and ordered the judgment from which this appeal was taken. Whatever of skill and ability the defendants brought to their work, whatever success resulted from their efforts, the judge saw and knew. He knew, also, better than any witness (except the city attorney) how vigorously the causes were litigated by the city in his court. All
This is but an application to the knowledge of the judge -on a question of value of the same rule hereinbefore applied to knowledge obtained by the jury by a view; that is, that such knowledge may be used in determining the weight and preponderance of conflicting testimony concerning value.
Counsel for the defendant makes a quotation from the opinion in Neilson v. C., M. & N. W. R'y Co., 58 Wis., 516" court="Wis." date_filed="1883-11-20" href="https://app.midpage.ai/document/neilson-v-chicago-milwaukee--northwestern-railway-co-6604184?utm_source=webapp" opinion_id="6604184">58 Wis., 516, which he claims sustains the instructions under consideration. It is as follows: “Many of the questions called for facts within the knowledge of the jury, who, by order of the court, had viewed the premises and who knew the facts called for as well as the witnesses could have known them. Other questions called for the opinions of witnesses in respect to matters concerning which the jury could form an opinion as intelligently as could the witnesses. Opinions, in such a case, are entirely outside the range of authorized expert testimony. These rules are elementary.” So they are, in a case like that, wherein the facts called for related entirely to the physical condition of the premises viewed, and the opinions “ were outside the range of authorized expert testimony.” If the jury saw that the barn mentioned in that case stood close to the railroad track, it did not require testimony of the opinion of any witness to authorize them to find it an unsafe place. And so of the rejected testimony, which was offered to show that there was no other eligible
The value of the lands taken for the use of the railway company and the damages to the remaining contiguous lands of the same owner resulting from such taking are matters not within the common knowledge of any jury. To determine these correctly special knowledge of many facts and conditions is required. Amongst these, knowledge of the uses to which the land might be adapted advantageously, and of the probable price for which the land might be sold — that is to say, its market value- — -is indispensable. It cannot be presumed that the jurors possessed this knowledge. The presumption is rather to the contrary. Before a witness can be allowed to give an opinion as to such value and the amount of such damages, it must be shown that he has the requisite knowledge which qualifies him to give an opinion. TIad a witness in these cases stated that he resided remote from Oshkosh, and knew nothing of the prices of real estate ruling in that city, but had examined the lands of these plaintiffs which had been condemned, and the several tracts of which they were part and parcel, and knew thereof all that could be learned by such examination, he would certainly be incompetent to testify to the value and damages, even though he might testify that from such examination he had formed an opinion on these subjects. Presumably many of the jurors who made these assessments came from remote parts of the county, and were ignorant of the value of these lands. If so, had such jurors been offered as witnesses to
Many cases have been cited to sustain the opposite doctrine, and these have been carefully examined. It is believed that our views do not conflict with the judgments in those cases, although some things may be said in some of the opinions with which we do not agree. We do not understand the courts to hold in any of those cases that a jury may act upon the private knowledge of one or more of their number, not testified to in court, and render a valid verdict thereon, in opposition to all of the testimony, but only that they may act upon their common or general knowledge. In that case, however, to uphold a verdict against all the testimony given on the trial, we think the court must be able to say that it is a matter within the common or general knowledge of the jury. Neither do we understand any of those cases to hold that a jury may entirely disregard the opinions of experts, in a matter in which such opinions may properly be received.
It may be that some courts have held that in cases like these, opinions of witnesses are not admissible, but this court established a different rule in Snyder v. W. U. R. R. Co., 25 Wis., 60. It was said in that case, “Without the opinion of the witnesses as to the value of the land as it then was, and as to its value had not the road passed over it, the jury would have been unable to estimate the amount of damages.” The rule thus established has ever since been steadily adhered to. That the unimpeached opinions, of competent experts testified to by them, on a matter in which such
The juries in these causes might reasonably have understood the instructions to be that they were to assess the compensation to which the respective plaintiffs were entitled, according to their own knowledge, judgment, and good sense, aided by the view, and that they might do so without regard to the testimony, or in opposition thereto. We are •satisfied, for the reasons before stated, that this was erroneous. We cannot say that the error did not prejudice the plaintiffs. There must therefore be a new trial of the three cases in which such error occurred. As before stated, these are the Washburn case and the two Stringham cases.
2. In the Barlcer case, a strip of land about fifty feet wide, being the rear end of the plaintiff’s lot, fronting on Main street, was taken. The lot is said to have been 200 feet deep, with a store on the front of it, no part of which stood on the land taken. The plaintiff sought to show the value of the strip taken, considered as a part of the whole lot, but the court excluded the evidence, holding, as we understand, that its value was to be ascertained without reference to the balance of the lot, the same as though some other person owned such balance, the plaintiff owning only the part taken. We think this an erroneous rule. The part taken may have been, probably was, worth much more as a part of the lot than it would have been if disconnected therefrom, and the principle of just compensation to the owner seems to require that its value should be assessed as a part and parcel of the
3. In the Barker case the trial court instructed the jury that they might deduct from the depreciation in the value of that portion of the plaintiff’s lot not taken, resulting from the taking of the other portion thereof, the benefits accruing to the plaintiff by reason of the location of a depot on defendant’s railroad near the lot. The instruction was; “If there is in this location of the depot ground a benefit to this particular property*,Rhat benefit should be set off against the damages to his other property, even though it may also benefit some property immediately surrounding, but not benefit the whole people generally.” The only benefits claimed seem to be those resulting from the proximity of the lot to such depot. We think this is error. The location of a depot at a given point is a general public benefit, although, as in the case of any general benefit created by public improvements, one citizen may be more
4. Several exceptions were taken to the rulings of the circuit court admitting testimony of the prices obtained for .other lands in the vicinity of those affected by these actions theretofore sold. In these condemnation cases much latitude of proof is allowed, and it has been held by this court that testimony of sales of other lands may be admitted, in the discretion of the trial court. Watson v. M. & M. R’y Co., 57 Wis., 332" court="Wis." date_filed="1883-04-04" href="https://app.midpage.ai/document/watson-v-milwaukee--madison-railway-co-6604065?utm_source=webapp" opinion_id="6604065">57 Wis., 332, 350. Such testimony is admitted for the purpose of throwing some light upi^j, the questions of value and damage which the jury are to determine, and to test the accuracy of estimates thereof made by the witnesses. To be of any value, however, it should be made to appear that such other lands were similar in character, location, and value to the land in question in the action, and that the sales were not too remote in time. We do not determine whether any testimony of this kind was or was not improperly received or rejected on the trial of any of these .actions.
6. In the Washburn case the learned circuit judge instructed the jury, in substance, that if the present value of the lands taken was enhanced by reason of the adaptability thereof to some use to which they might be put in the future,— as, for example, if land used only for farming purposes was so situated that it might be platted into city lots, and if its present value was thereby increased,— such increased value was the proper basis for the assessment. We think this is a correct rule.
7. In the Stringham cases the awards of the commissioners were reduced by the jury. Costs were allowed to the defendant and deducted from the amounts of the verdicts, respectively. It is claimed that the plaintiff was entitled to costs. It is provided by statute that in these cases “costs shall be allowed to the successful party on such appeal, and, if in favor of the plaintiff, be added to the amount of the verdict; if in favor of the defendant, be deducted therefrom; and judgment shall be rendered thereon according to the rights of the parties.” Sec. 1849. This statute admits of but one rational construction, which is that the plaintiff is the successful party, if on his appeal the award of the commissioners is increased, or, on the appeal of the defendant company, if it is not reduced. Otherwise the defendant is the successful party. In the Stringham cases both parties appealed, and the respective awards of the commissioners were reduced. The defendant was, therefore, the successful party, and entitled to costs. What the rule of costs should be in a case of'cross-appeals, wherein the award of the com
By the Court.— The judgment of the circuit court in each of these causes is reversed, and the cause will be remanded for a new trial.