"The
receivers of the Merchants' Insurance Company were the
general owners of said estate. Charles L. Haley was the
lessee thereof, and Avery & Harris were sub-lessees under
said Haley. The buildings on the land were totally destroyed
by fire November 9 and 10, 1872, and only land was taken.
"The
defendants offered evidence to show the value of said estate
at the time of trial, claiming that the valuation to be made
was to be the value of the estate at the time of the trial,
as the nearest approach to the time of the taking, and not
the value at the time of filing the petition: to which
evidence the plaintiff objected; but it was admitted.
"The
plaintiff asked for the following instructions: That in this
case, under the St. of 1873, c. 189, the jury are to
determine the value of the land of respondents, and their
respective interest therein, at the time of filing the
petition in this case, to wit, April 16, 1873, and not at any
subsequent time, nor at the time of the hearing before the
jury: That in no event, as against the said petitioner, is
the value of said land to be increased beyond its fair cash
market value, by reason of any apportionment of damages
between the respective parties claiming an interest in said
land; notwithstanding the jury should be of opinion that, as
between the respondents, under their several contracts and
leases, the aggregate value of their respective claims might
or should exceed, or fall short, of the fair cash market
value of said land, free from and not subject to any lease or
contract made upon or concerning said land, as against the
petitioner: That, as against the United States, the
petitioner, the jury are to determine the value of said land,
as land, at its fair cash market value, free from, and not
subject to, any lease or contract made upon it, and as though
one person owned it as one estate in fee, with interest
thereon from April 16, 1873. These instructions the presiding
judge refused to give."
"The
object of the proceeding is to ascertain the value of certain
real estate which the government of the United States
manifests a desire to purchase, and to pay therefor the fair
market value of the interest and claims of the respective
owners of the estate. It is the fair market value that you
are to ascertain; and your verdict will consist of several
items, substantially these: In the first place, you will
ascertain the total amount of the value to the owners of the
estate, estimating the same as an entire estate and as if the
same was the sole property of one owner in fee simple; and
that may not improperly be called the total value of the
estate. In the next place, you will ascertain the fair market
value of the estate to the Merchants' Insurance Company
who, in this case, are the owners of the fee of the land. In
the third item, you will ascertain and find the fair market
value of the interest and term of Haley, the first lessee. In
the fourth item, you will ascertain the fair market value of
the interest and term of Harris & Avery, the sub-lessees.
And the sum of the last three items will be equal to the
first; for it is a division that you are to make among these
several parties in interest. The time at which these values
is to be ascertained and fixed is the present time, the time
of the trial and verdict, as being nearest the time when the
purchase would be made and completed.
"You
will, then, proceed to consider the evidence in that light,
to ascertain the fair market value at this time. And I have
stated that the first thing for you to ascertain is the total
market value of the entire estate, to be ascertained from the
evidence; that is, its value to the owners of the estate,
estimating the same as an entire estate as if the same was
the sole property of one owner in fee simple; and I add now,
regard being had to the situation of the estate, and the
manner of its occupation, that may not improperly be called
the total value. You are to estimate it at its value to the
owners of the estate, not to the owner, -- to the owners of
the estate. It is the value to all the owners that is to be
found; and you are to estimate the same as an entire estate
as if the same was the sole property of one owner in fee
simple; not as the sole property of the owner in fee simple,
but as if it was the sole property of one owner in fee
simple. You will then ascertain the value to the owners as an
entire estate and as if there was but one owner in fee
simple. You must, therefore, ascertain the value to all the
owners; and, in doing so, you must estimate it as an entire
estate and as if the same was the sole property of one owner
in fee simple. Thus you will get the total value, or the fund
which you are to divide among the several owners.
"Now,
the several owners in this case are, first, the Merchants
Insurance Company, who own the fee of the land; another owner
is Haley, who leased this property of the Merchants'
Insurance Company, for fifteen years from the 1st of March,
1870, and who has parted, substantially, with the value of
his lease, for a consideration, but the term which he has
conveyed to the sub-lessees is a little shorter in point of
time than the lease to him; he is, therefore, an owner of
this property, and he holds an interest in a term. The other
owners are Harris & Avery, the sub-lessees, who hold the
lease under Haley. These, then, are the three owners; and it
is the value to them that you are to ascertain. And, when you
come to apply the rule, that it is to be estimated as an
entire estate as if the same was the sole property of one
owner in fee simple, you will remark that it is not the same
as if the language was, 'the value to the owner of the
estate in fee simple.' It is the value as it would be to
one owner in fee simple; and then that total value is to be
divided between this owner in fee simple and the owners of
the terms.
"The
counsel for the United States contend, that this total value
to all the owners of the estate is not so large as it would
be if the term created by the leases was not in existence. In
speaking of the term created by the leases in this
connection, I may as well call it a term, though it belongs
to the two owners, -- Haley and Avery & Harris. The
counsel for the United States contend that the value of the
entire estate, estimated as I have stated, should not be
found by you to be so large as it would be if the term
created by those leases was not in existence. That is to say,
that the existence of the term diminishes the total value of
this property, estimated in this way, from what it would be
if there was no such term. The term which remains is eleven
years and eight months. Does that term affect the total value
of this estate to the owners? You will consider that in
weighing the evidence, and making up this first item in your
verdict; and if you find, upon the whole evidence, that the
existence of that term makes the total value of this estate,
estimated as I have said, less than it would be if the term
was not in existence, you will regard that fact in making up
your verdict, and make it up at the value, as you determine
it ought to be, in the present situation of the estate, and
the manner of its occupation. If you are satisfied, from the
whole evidence in the case, that the existence of that term
has no effect upon the total value, you will so find; and
your verdict on that particular item will not be affected by
the existence of the term.
"Having
ascertained the total value, in this first item of your
verdict, you have then to ascertain three things more; and,
when you have ascertained them, you will have ascertained
three items which will exhaust this total value, into which
this total value will be divided. And the rules by which you
are to ascertain them are these:
"In
ascertaining the value of the interest and claim of the
owners of this estate in fee, the Merchants' Insurance
Company, you will look at their interest. You will see that
they have conveyed a part of the interest which they held
you will ascertain the fair market value of their interest,
as it stands to-day, with a term created upon it by their
lease having about eleven years and eight months to run; and
consider, also, that that lease secures to them $ 15,000
rent, annually, payable quarterly, according to the terms of
the lease. And you may, if you please, and it seems good to
you, consider in this valuation the term...