27 Wis. 108 | Wis. | 1870
This was an appeal to the circuit court of Dane county from the appraisement of commissioners appointed under the charter of the railway company to assess the damages sustained by the plaintiff by reason of the taking of certain lands of his by the company for right of way. In the circuit court there was a verdict and judgment for the plaintiff, from which the company appeals. The facts of the case, upon which the questions of law arise, are thus succinctly stated in the brief of the learned counsel for the company : The plaintiff was the owner
The company requested the court to charge the jury as follows: “ The land taken being across lots deeded and laid out in the city, and separated from the other lots of • the plaintiff by a street, so that they do not adjoin his other property and lots, the defendants are not liable for any supposed damages that the plaintiff" may sustain to his other lots or property thus situated, by reason of taking and using the strip across the lots through which the railroad passes.”
This instruction was refused, and in place thereof the following, as part of the general charge, was given:
“ I have charged you, as requested by defendant’s counsel, that lots in a city are not generally supposed or intended to be used for agricultural purposes; nor*110 is the value usually determined by such rule — their value being generally estimated and established according to their eligibility for business or building purposes. But it is not necessarily so in reference to all land included in the city limits of a city of ten or twelve thousand inhabitants, as large in territorial extent, perhaps, as some of the largest cities in the country. A party may use, in connection with his residence, a number of acres. Persons very frequently do so within the city limits of the largest cities; but when land lying in a body is so used in connection with a residence, it is not two distinct tracts, even if a highway pass through it, no more than a farm having a highway passing through it is two farms; nor, because it may consist of more than one lot, and have been purchased by the owner and resident upon it, at different times and in different parcels — especially when, as in this case, as General Mills and all the witnesses testifying on the point, as I remember the evidence, say, the part below the road was worth more as part of the place, than it would have been separate.”
Such are the facts, and such the propositions of law involved, as stated in the brief of counsel, which is quite sufficient, save only as to the additional facts, which are rather assumed than stated, because there was no controversy with respect to them, that the lots of the plaintiff are situate on the confines of the city, where the residences are not numerous, and where the land, or nearly all of it, like that of the plaintiff, is entirely devoted to the purposes of agriculture. It is proper likewise to observe, what appears from the plat or map given in evidence, that the lots as laid out seem designed quite as much, if not more, for the purpose of tillage and cultivation than for any other. They are lots of the kind designated in the legislation of this state as “out lots,” and distinguished from “ in lots,” which are only those properly intended for city or village residences and for business, by being
These considerations, in connection with the use which was actually made of the lots by the plaintiif, seem to go very far towards verifying the correctness of the rules laid down by the learned judge of the court below for the guidance of the jury, and to show that the method adopted for estimating the damages sustained by the plaintiff was the proper one. The objection to that method is, that the property is city lots, and not designed for agriculture, and that in determing the damages, the injury to each lot should be considered by itself, and with reference to any separate use which might be made of it, or at all events, that the injury or depreciation in value of the property of the same owner upon the opposite side of the street cannot be taken into the account. The effort is to disconnect these several lots and the use which was made of them by one owner, as a single tract or parcel of land for the purposes of agriculture, and to treat them as so many distinct lots owned by different persons, or as if those on one side of the street, over which the railroad runs, were owned by one man, and those on the other side by another.' The injustice of such a rule, were it the rule prescribed by law, as applied to the present plaintiff’s case, is mani
The damages is such cases must always very much depend the use to which the property is appro
Objection is also taken in the brief of counsel for the company, that the plaintiff was allowed to give evidence of the separate value of the four lots across which the railroad runs, and that the company was not allowed to refute that evidence or give any proof on the subject. It appears from the bill of exceptions that the plaintiff, when first called to the stand as a witness, testified to the value per acre of the four lots
It follows from these views that the judgment of the circuit court must be affirmed.
By the Court. — It is so ordered.