Davis v. State.

• Decision Date: 06 May 1947
• Parties: DAVIS v. STATE.
• Court: New Hampshire Supreme Court

52 A.2d 793

DAVIS

v.STATE.

Supreme Court of New Hampshire.

May 6, 1947.

Exceptions from Superior Court, Carroll County; Tobin, Judge.

Appeal under R.L. c. 100, § 3, by Philip S. Davis from commissioners' assessment of damages occasioned by the lay-out of a highway by the state over plaintiff's land. A verdict was entered for plaintiff in the amount of $2,000, and the plaintiff brings exceptions.

New trial.

Appeal, from the commissioners' assessment of damages occasioned by the layout of a highway over plaintiff's land in Conway under the provisions of R.L. c. 100, § 3. The appeal to the Superior Court was taken in accordance with Laws 1945, c. 188, pt. 4, § 17. Trial by jury resulting in a verdict for the plaintiff in the amount of $2,000.

The plaintiff excepted to the failure of the Court to grant his request for instructions Nos. 1 to 5, inclusive. The opinion for reasons hereinafter stated will deal only with the failure to give requests Nos. 2, 3 and 5 which were as follows:

‘2. Market value is the price which in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy taking into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining.

‘3. In the ascertainment of the market value of the plaintiff's property over which the highway was laid out, he is entitled to have it appraised for the most profitable or advantageous use to which it could be put at the time of the taking.

‘5. The measure of the plaintiff's damages is the difference between the market value of his land after the highway was laid out and constructed and what it would have been worth if the highway had never been established.'

The material portions of the Court's charge to the jury were as follows:

‘You are not to award damages merely for that particular piece of the property that was taken; you must take into consideration the loss of value of the entire tract of land. Merely because the land was not used for recreational purposes at the time it was taken is not entirely controlling. A man is entitled to have his property and to use it for its most valuable purpose, even at some future date. * * * Just compensation includes all elements of value that are inherent to the property, but it does not exceed the market value fairly determined. In other words, in accordance with the general rule which I have just given you, a man is entitled to have you determine the value of his property for the most profitable use that he would reasonably, eventually use it. That may be a little involved, but a man may have some property today that appears to have no value, but the State cannot take it and not give him a value that might be reasonably appraised at a later date.'

The defendant claims, first, that the plaintiff waived his exceptions as he did not object to the instructions as given or point cut precisely to the Trial Court at the time wherein he erred, and secondly, that the substance of the instruction as given. Further facts appear in the opinion.

A bill of exceptions was allowed by Tobin, J. Burnham B. Davis, of Conway and Robert W. Upton, of Concord, for plaintiff.

Ernest R. D'Amours, Atty. Gen., and Gordon M. Tiffany, Asst. Atty. Gen., for defendant.

BLANDIN, Justice.

It was the duty of the Trial Court ‘to fully and correctly instruct the jury as to the law applicable to the case’ (Burke v. Boston & M. Railroad, 82 N.H. 350, 361, 134 A. 574, 580), and to so phrase his instructions that it was reasonably certain the jury understood them, West v. Boston & M. Railroad, 81 N.H. 522, 532, 129 A. 768, 42 A.L.R. 176. In our opinion this was not done. Crediting the jury with sound common sense, still it cannot be said in view of all the conflicting claims make throughout the trial that they as laymen were bound to know the meaning of market value, or that they should have understood that this was the test to determine the amount of damages. See Trustees of the Phillips-Exeter Academy v. Exeter, 92 N.H. 473, 33 A.2d 665; Emmons v. Utilities Power Co., 83 N.H. 181, 141 A. 65, 58 A.L.R. 788; Low v. Railroad, 63 N.H. 557, 3 A. 739. It appears that the plaintiff's requests Nos. 1 and 4 are waived by his failure either to...