Chicago v. Davidson

• Decision Date: 08 October 1892
• Citation: 31 P. 131,49 Kan. 589
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. H. H. DAVIDSON

31 P. 131

49 Kan. 589

THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. H. H. DAVIDSON

Supreme Court of Kansas

October 8, 1892

Error from Sumner District Court.

ON the application of the Railway Company, commissioners were appointed to assess the damages for taking certain land. They awarded Davidson $ 3,808. He appealed to the district court where he recovered judgment for $ 6,000. The defendant company comes to this court. The material facts are stated in the opinion.

Judgment affirmed.

M. A Low, and W. F. Evans, for plaintiff in error:

1. The court erred in overruling the motion of the plaintiff in error to strike out the evidence of the witness C. E. Davis. This witness, upon his direct examination, testified that prior to the condemnation of the land by the railway company the land in question was worth about $ 300 an acre, and that immediately thereafter it was worth $ 75 an acre. The cross-examination of this witness shows very clearly that his opinion of the market value of the property in question was founded upon an improper basis. The witness did not value the property with respect to its then market value. His estimate was based on his opinion as to what it could have been sold for to some fool, if divided into lots and blocks as an addition to the city of Wellington. This witness, in speaking of the land in question, said: "I think that there could have been some fool found that would have paid that the same as Staub's." The witness had no right to estimate the market value of the property upon the theory that some fool could have been found that would buy the property at an unreasonable or speculative price. The railway company was required to pay only the difference between the fair market value of the land immediately before and immediately after the condemnation.

2. The court admitted the evidence of John D. Share, offered by the plaintiff below. This was erroneous, and very prejudicial to the railway company. The object of the introduction of this evidence is very apparent. The defendant did not contend that the condition of the property in question, as well as that surrounding it, could not be shown upon the trial, nor that the jury could not have been informed thereof; but it earnestly contended in the trial court, that the evidence of the fact that other lands adjoining the city of Wellington had been platted or divided into lots and blocks and streets and alleys was entirely incompetent, and greatly tended to mislead the jury, and raise a collateral question that had no bearing upon the case. What had the platting of other lands into lots and blocks to do with the market value of the land in question? and in what manner could evidence thereof enable the jury to ascertain the amount of damages due the plaintiff? The only reason for the introduction of this evidence was to induce the jury to value the plaintiff's land upon the same basis of its value in lots, when it never had been, and probably never will be, needed as an addition to Wellington. The land in question was a farm, and at the time of the condemnation was being farmed, and at all times prior thereto had been farmed and used for grazing purposes. By showing what the value of property in the vicinity of plaintiff's property was after it was platted and sold the jury were induced to and doubtless did believe that, if the railway had not been located over the plaintiff's property, it would have been platted as an addition to the city of Wellington, and the lots sold, as the above evidence showed the other lots had been sold. The jury had nothing to do with the platting of other property, or the sale of the same as lots, and the evidence of these sales misled the jury, and no doubt greatly influenced them in arriving at their verdict.

3. The court erred in permitting the witness D. C. Millard to testify to the market value of the property in question immediately after the location of the railway over the same and as to what caused the difference between its market value before and after the location of the railroad thereon. This witness expressly stated that he did not know the manner in which the railroad was located and constructed over the land in question. In his direct examination he testified as follows:

"Ques. Do you know about how the railroad cuts that land? Ans. I have never seen -- I have not been up along the route to see just exactly where it enters it or goes out, but I know about where it enters on the south line."

This witness certainly was not competent to express an opinion as to the market value of the land after the location of the railroad thereon. He had no information or knowledge as to the manner in which the land was affected by the railroad, and was not informed as to the place where it entered or left the land on the north.

4. The court erred in admitting the following evidence of the witness D. C. Millard:

"Ques. You say the property could have been sold at the figures you placed on it, in your opinion, in May? Ans. I believe a purchaser could have probably been found that would have paid $ 150 an acre for it; or a syndicate could have been worked up, from the fact that they paid so much more a short time before that for land, that I believe a syndicate could have been worked up at that price."

We have been unable to find any rule sustaining the admission of this evidence, and do not think any can be found.

5. The court erred in admitting in evidence the map offered by the plaintiff. The property in question consisted of a farm of 160 acres, no part of which had at any time been platted or divided into lots or blocks or divided into subdivisions less than 160 acres. It had always been used as a farm and for grazing purposes. The map, the admission of which is complained of, did not represent the property correctly, or show the condition it was in at the time of the condemnation.

6. The court erred in giving to the jury the following instruction:

"In estimating the market value of the land, both before and after the condemnation, it will not be proper for you to make the estimate on what the laud would have been worth had the land at that time, or prior thereto, been laid off or platted into lots and blocks as an addition to the city of Wellington, but you must consider the land as it was at that time, and with reference to the use that was then being made of the same, and all other uses that could reasonably be supposed from the evidence could be made of it thereafter, whether for farming purposes or for platting and laying the same off into lots and blocks as an addition to the city of Wellington."

This instruction was misleading, and did not state the law correctly. Even if it had been correct to have told the jury to consider the property in any condition other than that which it was in at the time of the trial, or to make any inferences in regard to its use in the future, they should have been controlled or instructed to have been guided by what it was probable the property would have been used for in the future.

A. E. Parker, and James Lawrence, for defendant in error:

In determining the value of land appropriated for railroad or other public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to any and all uses to which the property may be shown to be adapted. Evidence may always be properly introduced in such cases for the purpose of showing that the land condemned has a special value for building lots, for wharves, for mining or milling purposes, or for any other special purpose. The measure of damages in such cases is not confined to its value and the damages it sustains when estimated only for the purposes for which the property is then being used; but the damages will be estimated on the basis of the highest market value of the property at the time it is appropriated for those purposes for which it is shown to be best adapted.

These rules for determining the measure and elements of damages in cases like the one at bar are fully sustained by the following, among other authorities: Boom Co. v. Patterson, 98 U.S. 407, et seq.; C. R. Rly. Co. v. Moore, 124 Ill. 329, (15 N.E. 764); Dupuis v. C. & N. W. Rly. Co., 115 Ill. 97 (3 N.E. 720); Washburn v. M. & L. W. Rld. Co., 59 Wis. 364 (18 N.W. 329); Doud v. City & F. D. R. Co., 76 Iowa 438 (41 N.W. 65); Stinson v. C. S. P. & M. Rly. Co., 27 Minn. 284 (6 N.W. 787); Montana Rly. Co. v. Warren, 6 Mont. 275 (12 P. 641); Esch v. C. M. & S. P. Rly. Co., 72 Wis. 229 (39 N.W. 129); In re Rugheimer, 36 F. 376; Laflin v. C. W. & N. W. Rld. Co., 33 id. 418; G. R. & I. Rld. Co. v. Weiden, (Mich.) 38 N.W. 294; Muller v. S. Pac. Rly. Co., 83 Cal. 240 (23 P. 265); Hooker v. M. & W. Rld. Co., 62 Vt. 47 (19 A. 775); Harris v. S. R. E. S. Rld. Co., (Pa.) 28 W. N. C. 44 (21 A. 590); C. M. Rly. Co. v. Brown, 15 Colo. 193 (25 P. 87); L. & N. O. Rld. Co. v. Ryan, 64 Miss. 399 (8 So. Rep. 173); C. & S. Rly. Co. v. Longworth, 30 Ohio St. 108, 111; Penn. S. V. Rld. Co. v. Cleary, (Pa.) 17 A. 470; same case, 39 Am. & Eng. Rld. Cases, 138, n.

The plat of plaintiff's property was properly introduced in evidence. It does not purport to represent streets already opened, or the property already subdivided into lots and blocks, but only to show the situation of the property relative to the city of Wellington and its streets, and was only admitted to aid the jury in determining the availability and value of the property for town-site purposes. The jury viewed the property and could not possibly have been misled by the plat. C. R. Rly. Co. v. Moore, ...