Blincoe v. Choctaw, O. & W.R. Co.

• Decision Date: 08 September 1905
• Citation: 83 P. 903,16 Okla. 286,4 L.R.A.N.S. 890,8 Am.Ann.Cas. 689,1905 OK 120
• Parties: BLINCOE v. CHOCTAW, O. & W. R. CO.
• Court: Oklahoma Supreme Court

83 P. 903

16 Okla. 286, 4 L.R.A.N.S. 890, 8 Am.Ann.Cas. 689, 1905 OK 120

BLINCOE v. CHOCTAW, O. & W. R. CO.

Supreme Court of Oklahoma

September 8, 1905

Syllabus by the Court.

In the exercise of the right of eminent domain under the statutes of Oklahoma, which provides for the appointment of commissioners to assess the injuries sustained by individuals because of the exercise of such right, which statute contains a provision with reference to the duties of such commissioners as follows: "And they shall inspect said real property and consider the injury which such owner may sustain by reason of such railroad; and they shall assess the damages which said owner will sustain by such appropriation of his land"-damages to be allowed are not limited to the real estate taken and injured, but may be such damages as the owner actually sustains to either his real or personal property by such appropriation of his land.

[Ed Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 371-377.]

An instruction of the court as follows: "The law does not permit you to fix speculative, boom, or fancy values upon the property in controversy, but the law requires you to determine the reasonable market salable value of the property if the owner was offering to sell on usual terms and a purchaser desired to pay"-is not erroneous because of the use of the word "boom" as here used; the court having in this and other instructions been careful to advise and instruct the jury that the market value as contradistinguished from a purely imaginative or speculative value must be their basis for the assessment of damages.

It is not error in the trial court, where a question of damages under the law of eminent domain is being tried, to reject evidence of offers to purchase other property in the neighborhood of the land in question, about the time condemnation proceedings were instituted.

[Ed Note.-For cases in point, see vol. 20, Cent. Dig. Evidence §§ 416-423.]

In the trial of such case, an instruction to the jury as follows: "All these matters are proper for your consideration in determining the reasonable market value of the property, at the time it was taken, and the damages, if any, to the remaining lot, but you are not bound by this evidence alone. You have been permitted to make a view and inspection of the property in question, and you have a right to exercise your own judgment, based upon your inspection and observation, together with all the evidence which has been permitted to go to you during the trial. Remember all this evidence and your own observation is for the purpose of enabling you to form a correct judgment as to the reasonable market value, if any, of the remaining lot, caused by the excavation made by the railroad company on the lots that it took from Mr. Blincoe, and in your deliberation you must consider all the evidence that you believe credible and give it such weight as in your judgment you deem it entitled to"-is not error.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 559, 564.]

Error from District Court, Logan County; before Justice John H. Burford.

Proceeding by the Choctaw, Oklahoma & Western Railroad Company against Edward L. Blincoe to condemn land. Judgment for plaintiff, defendant brings error. Reversed.

This is a proceeding instituted by the defendant in error in the district court of Logan county, to condemn lots 3 and 4 in block 63, East Guthrie, for a right of way and terminals for the defendant in error. At the time said condemnation proceedings were instituted, plaintiff was the owner and in the actual possession of lots 3, 4, and 5 in said block 63, and at that time and for several years prior thereto had been making use of said lots as and for the purpose of a lumber yard, in which business of retailing lumber he was then and had been for several years engaged. Commissioners were duly appointed by the judge of the district court to appraise the damages to said lots 3 and 4 in said block 63, upon and across which the line of said railroad was projected, and on the 21st day of March, 1902, filed their report as to these two lots in the words and figures following, to wit:

Value of land taken ..........	$5,500 00
Value of improvements taken ...	2,200 00
Moving lumber ...................	250 00
	---------
Total .....................	$7,950 00

The commissioners in their said report also state "that the said Choctaw, Oklahoma & Gulf Railroad Company has appropriated all of said described lots and tract of land," etc. To this award both parties excepted and demanded a trial by jury, and the cause was duly certified to the district court of said Logan county for trial. At the March term, 1903, the cause came on for trial before a jury, and, after the same had been concluded, and after the jury had deliberated upon their verdict, they returned into court and announced that they were unable to agree, and were therefore discharged. On the 21st of December, 1903, the cause again came regularly on for trial in said court before a jury, and during the course of this trial the following facts were developed, viz.: Lot 5 in the same block lies immediately contiguous to lots 3 and 4 and was owned and being made use of by Blincoe in connection with his lumber yard, and as a part thereof. Also at the time of the condemnation Blincoe had a large stock of lumber in the yard, and that the defendant in error immediately took possession of said lots 3 and 4 and the buildings and improvements thereon, removed the buildings and improvements, and excavated the ground to a considerable depth covering the whole of lots 3 and 4 and up to the line of lot 5, thereby making a retaining or supporting wall necessary to preserve the integrity of that lot. The action of the railroad company also made it necessary for Blincoe to remove the stock of lumber and other building material then on hand, from said lots 3 and 4. The evidence disclosed that from January, 1902, up to and after the time these premises were condemned, there was a very marked increase or appreciation in the value of all real estate in the vicinity of the premises condemned. At the conclusion of the evidence the jury were permitted, under the charge of a bailiff, to view the premises, and after their return into court were instructed by the court. The jury returned their verdict in the cause in the following form: "We, the jury in the above-entitled cause do upon our oaths find the issues in favor of the defendant, and assess the amount of his recovery at the sum of $7,500." Ten special questions were also submitted to the jury, among them the following: "Q. 1. What was the fair market value of the two lots of the defendant taken by the railroad company for right of way at the time of the condemnation? Ans. Six thousand five hundred dollars. *** Q. 3. What was the value of lot 5 in block 63 at the time lots 3 and 4 were condemned by the plaintiff railway company? Ans. Twenty five hundred. *** Q. 9. What was the value of lot 5 immediately after the railroad company completed its excavation on lots 3 and 4? Ans. Fifteen hundred dollars."

Joseph Wisby, J. C. Strang, and John Devereux, for plaintiff in error.

Dale & Bierer, for defendant in error

GILLETTE J.

Four assignments of error are set out in the petition in error herein, viz.: First, that the court erred in receiving incompetent evidence over the objection of the plaintiff in error; second, that the court erred in overruling a motion for a new trial; third, because the said judgment of the said district court is contrary to law and not sustained by the evidence; fourth, for error committed by the court in its charge to the jury, which was duly excepted to at the time by the plaintiff in error. These alleged errors will be discussed in the order in which plaintiff in error has presented them in his brief.

The first and principal proposition involved in this case arises on the rejection of evidence offered on the part of plaintiff in error tending to prove the necessary expense of moving his lumber yard from the lots 3 and 4, and in giving instructions No. 10. During the examination of plaintiff in error he was asked the following question: "I want to ask you, Mr Blincoe, about the removal of your lumber, what did it cost you, or what was it worth to remove your lumber from those lots?" Which question was objected to, and the objection sustained. The tenth instruction to the jury is as follows: "Tenth. You are instructed that you cannot allow the defendant lot owner anything for injury to his business, or for removing his business from the property in controversy, or for any depreciation, if that existed, in the value of his stock of material by reason of having to move the same from the premises and to conduct his business elsewhere. The law does not allow a railroad company to acquire a mercantile business, or to take personal property by condemnation. All that the railway company has a right to take is the land with the improvements thereon; that is, the land with the buildings and improvements that were affixed to the lots. A railroad company has no authority to take anything else, and consequently cannot be charged for anything else than the real estate taken, and any damages to the remaining portion not taken belonging to the same owner." It is to be observed that at the time of the condemnation the plaintiff in error had a large stock of lumber in the yard embracing lots 3 and 4 and 5, which he was forced to move, and as a part of his damages plaintiff in error offered to show what was the reasonable expense of making such removal of his lumber from the location taken by the railroad company, to another. This offer...