Bros v. City of Oshkosh

• Decision Date: 02 February 1897
• Citation: 70 N.W. 162,95 Wis. 221
• Parties: ALEXIAN BROS. v. CITY OF OSHKOSH.
• Court: Wisconsin Supreme Court

95 Wis. 221

70 N.W. 162

ALEXIAN BROS.

v.CITY OF OSHKOSH.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Alexian Bros., a corporation, against the city of Oshkosh, to recover damages for land taken for a street through plaintiff's land. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an appeal from an assessment of damages and benefits in the matter of the condemnation of certain land belonging to Alexian Bros., a corporation, for the opening of Wisconsin avenue, in the city of Oshkosh, through block 133, said block being owned and occupied by the plaintiff, fronting on two streets, namely, New York avenue and Prospect avenue, the strip taken being 60 feet wide and 604 feet in length, running due north and south through the center of the block. The award of the board of public works was $250 for the strip of land and $150 for benefits. The Alexian Brothers appealed to the circuit court. Upon the trial in the circuit court it was agreed that the benefits would amount to $150, and the controversy was as to the value of the strip of land taken, amounting to five-sixths of an acre. The only question presented is as to the rulings of the court in its charge to the jury. It appeared that the land had never been platted into lots, and there were no streets running through it in either direction. The block was about 604 feet in depth, north and south, and about the same width from east to west. The south one-half was used for pasture, and the north one-half for raising of oats and other grain, and in part for a vegetable garden. The witnesses on the part of the plaintiff, as to the fair market value of the land, testified variously that it was worth from $1,400 to $1,500, $1,700, and $2,000. They were real-estate dealers, and familiar with such property. The testimony on the part of the defendant was that the land was worth from $700 to $750 and $800. The witnesses for the plaintiff based their opinion somewhat upon the fact that by platting the land into lots it would sell in the market for more than if sold by the acre, and would sell for from $1,400 to $2,000, and they gave various estimates of the value if the strip was divided into two large lots, one fronting on New York avenue, and the other on Prospect avenue. The court instructed the jury that in determining the value of the land actually taken they were “to be governed by the fair market value at the time it was taken, for any purpose for which it might reasonably be used in the immediate future. The question was, what was the land then worth in the market, with reference to its availability by a prudent and discreet business man? That if the present value was enhanced by reason of its adaptability to some use to which it might be put in the near future, was so situated that it might be platted into city lots, and that its present value was thereby increased, such increase was a proper basis for the assessment of damages.” At the request of the defendant, the court instructed the jury that in determining what the fair market value was they “must consider its value to the owner in the market, and its value is not to be determined by what the land might be worth at some remote future time, when it might be used for some other purpose; but you may consider its present value for such purpose, and its adaptability for some...