Conan v. City of Ely

• Decision Date: 18 December 1903
• Docket Number: Nos. 13,692 - (99).,s. 13,692 - (99).
• Citation: 91 Minn. 127
• Parties: ELIZA CONAN v. CITY OF ELY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

91 Minn. 127

ELIZA CONAN v. CITY OF ELY.¹

Nos. 13,692 - (99).

Supreme Court of Minnesota.

December 18, 1903.

In proceedings in the district court for St. Louis county by the City of Ely to condemn certain land for an extension of the city waterworks.

Eliza Conan, the owner of the land, appealed from an award made by the commissioners. The case was tried before Cant, J., and a jury, which rendered a verdict in her favor for $187.50. From an order denying a motion for a new trial, she appealed. Reversed.

Porter J. Neff, for appellant.

Baldwin & Baldwin, for respondent.

LOVELY, J.²

The city of Ely, through proper proceedings authorized in its charter, appropriated an acre and a quarter of land adjacent to its municipal waterworks. Commissioners were appointed to appraise the damages to the landowner, and an award was duly returned, from which there was an appeal to the district court. On the trial the only question was the amount of compensation she was entitled to recover. At the close of the evidence the court instructed the jury that the verdict should not exceed the sum of $150 per acre, which was adopted by the verdict. She moved for a new trial, which was denied. This appeal is from that order.

It appears that appellant was the owner of a forty-acre tract of land near the city, of which the land appropriated was a part. There was a fissure spring thereon discharging large quantities of water daily, which under her claim substantially enhanced its market value over other lands in the same locality. The limitation of the amount recoverable by the court was not excepted to, neither was it made a specific point of objection to the verdict on the motion for new trial; and under the rule we have been required to adopt in giving effect to Laws 1901, p. 121 (c. 113), we are not at liberty to review errors assigned to the charge of the court, or to several other orders that are criticised upon the same ground. Cappis v. Wiedemann, 86 Minn. 156, 90 N. W. 368; Olson v. Berg, 87 Minn. 277, 91 N. W. 1103.

But a valuation of the tract taken by one witness for appellant was stricken out, which order was duly excepted to and must be considered. This witness, after having given a detailed description of the land taken, and its relation to the whole tract from which it was separated, described the spring, its capacity and general utility for the purposes of a water supply, and, having shown proper qualifications to express an opinion of its market value, estimated the same at a much higher sum than the amount which the jury were allowed to give by the restriction of the trial court. No other witness rated the value of the land taken higher than $150 per acre, and undoubtedly the theory of the court, in limiting the amount to be allowed by the verdict, was that the opinion of this witness was entitled to no consideration whatever. We are inclined, in view of the entire record, to treat the estimate of this witness with more importance than was attributed to it by the trial court. It might have been too high, but its exclusion, in connection with the grounds upon which it was based, did not require the jury to agree to the full extent with the judgment therein expressed; but, if it had any proper tendency to appreciate the value of plaintiff's land above the limit fixed by the court, the consideration of its effect was for the jury, and its exclusion was error. After the questions showing the qualification for the judgment of the witness, the direct examination proceeded as follows:

"Q. You are acquainted * * * with the situation of affairs in Ely, so far as the water supply is concerned for the town? A. Yes, sir. Q. You are familiar with this spring? A. Yes, sir. Q. And, in a general way, the character of the water coming from the spring? A. Yes, sir. Q. And the quantity of water coming from the spring? A. Yes, sir. Q. And do you know whether or not the supply from this spring is constant, in a general way? A. It is constant. Q. As long as you have lived there the supply has been about the same, as near as you can judge? A. Yes, sir; as near as I could judge. Q. Under all the circumstances and conditions existing, and the various uses this acre of ground and the spring upon it may be put to, what would you say is the value of this acre of ground, with the spring on it, for all purposes? A. I should say $10,000."

Upon cross-examination he testified as follows:

"Mr. Conan, you base that opinion on the fact that you believe this is the only available supply of water? A. I think that has a great deal to do with it. Q. And the fact that the city must have it for its water supply? A. It is the most convenient. Q. And any other water supply would be very expensive? A. Yes. Q. You base it on the fact of its value to the city by reason of that? A. Yes." On behalf of plaintiff: "Q. By `City' you mean people of the city of Ely? * * * A. Yes." On cross-examination: "Q. And the water is supplied to the city of Ely through the waterworks of the city very largely? There are some wells in the city? A. Yes, sir. Q. And you have based your opinion as to the value of the property that the city must have it for its water supply? A. That has a great deal to do with it. Q. That is the basis of your valuation? A. Yes, sir."

Were it not for the answer to this last question, no doubt could be raised as to the materiality of the testimony; but in considering the whole testimony we do not think that it must be inferred that the fact that the city had got to have it, and that its necessities rather than the market value of the property — which is the measure of the landowner's compensation — was the sole standard upon which the witness in his opinion based his estimate above that which the court said the jury could not go in its award of compensation. We should not be too finical or criticise with too much nicety the language of this witness, but endeavor to...