Denver Joint Stock Land Bank v. Board of Com'rs of Elbert County, 14520.

• Decision Date: 08 January 1940
• Docket Number: 14520.
• Citation: 105 Colo. 366,98 P.2d 283
• Parties: DENVER JOINT STOCK LAND BANK v. BOARD OF COUNTY COM'RS OF ELBERT COUNTY et al.
• Court: Colorado Supreme Court

98 P.2d 283

105 Colo. 366

DENVER JOINT STOCK LAND BANK v. BOARD OF COUNTY COM'RS OF ELBERT COUNTY et al.

No. 14520.

Supreme Court of Colorado, En Banc.

January 8, 1940

Error to District Court, Elbert County; Arthur Cornforth, Judge.

Proceeding by the Board of County Commissioners of the County of Elbert State of Colorado, and another, against the Denver Joint Stock Land Bank of Denver and others, to condemn for public highway purposes certain land belonging to the defendants. The issue of compensation and damages was tried to a jury. Judgment entered in accordance with verdict fixing the damages, and the named defendant brings error.

Reversed and case remanded with directions.

David J. Miller, of Greeley, J. Donovan Stapp and Glenn A. Laughlin, both of Denver, for plaintiff in error.

C. W Dolph, of Colorado Springs, for defendant in error.

OTTO BOCK, Justice.

This proceeding was instituted by defendants in error, hereinafter referred to as petitioners, to condemn for public highway purposes certain land belonging to named parties, hereinafter designated as respondents. The tract of land involved consisted of a cattle ranch in excess of 4,000 acres, located in the eastern portion of Elbert county. The tract sought to be taken by petitioners comprises 41.76 acres. The proposed public highway created a division of a one-unit cattle ranch. The issue of compensation and damages was tried to a jury which found the value of the land actually taken to be $125.28, and fixed the damages to the residue of the land at $467.80, and a like sum as the value of benefits. Judgment was duly entered in accordance with the verdict. Respondent, Denver Joint Stock Land Bank of Denver being the owner of the land involved at the time of the entry of decree, and deeming the compensation and damages awarded to be insufficient, assigns error and seeks reversal. The assignment of errors may conveniently be comprehended in five grounds: First, prejudicial statements of counsel for petitioners in argument to the jury, and failure of the trial court to instruct the jury to disregard the same; second, erroneous instruction to the jurors, permitting them, in weighing the evidence, to exercise their individual judgment within the knowledge they acquired through experience and observation; third, erroneous admission of certain testimony of witnesses for petitioners relating to benefits, that were general and did not specifically affect the present market value of the property, and which were speculative or fantastic; fourth, the erroneous exclusion of the testimony of a witness for respondents regarding the value of the property; and, fifth, refusal of the court to allow expert witness fees to two of respondents' witnesses.

Plaintiff in error contends that the following statement, made by counsel for petitioners in his closing argument, was clearly prejudicial: 'Any payment that is made to the respondents in this case will come out of your own [the jurors'] pockets.' The primary objective of condemnation proceedings is to satisfy the constitutional guaranty of just compensation and damages to the owner of private property taken for public use. Article II, section 15, Colo.Const. That the quoted statement by counsel had its intended effect is indicated by the amount of compensation allowed for the land actually taken, which was the lowest figure given by any witness, and less than that fixed by most witnesses for petitioners. The statement of the court, after objections, that 'I have already instructed the jury that arguments of counsel are not evidence,' under the circumstances, was not sufficient to eliminate prejudice. Affirmative action on the part of the trial judge became necessary to properly channelize the issue of just compensation. While subconsciously the jurors may have had such an undisclosed prejudice, the argument of counsel had the effect of making them conscious of their personal interest in the determination of the amount of compensation and to render their passive prejudice active. Under somewhat similar circumstances, we held in Rocky Mountain Fuel Co. v. Bakarich, 66 Colo. 275, 281, 180 P. 754, 756, that such a disposition of the objections was 'equivalent to a statement by the court that the argument, as such, was proper.' Moreover, it was not the only attempt by counsel for petitioners to inject the personal interest of the jurors in the issue. During the cross-examination of a witness for respondents relating to the question of damages to the residue of the property, counsel for petitioners asked him whether his testimony would be the same if he were a freeholder in the county. Counsel for respondents objected, but the court overruled the objection and permitted the witness to answer. We think, under the circumstances, that the statement of counsel in argument to the jury was highly prejudicial and constitutes reversible error. We are supported in our conclusion by the holding in Doty v. City of Jacksonville, 106 Fla. 1, 142 So. 599, 601, in which the facts were quite similar to those in the instant case.

The next contention of respondents relates to the last paragraph of instruction No. 4, which reads as follows: 'In estimating the value of the land taken, the damages and benefits to the other lands, you are permitted to exercise in weighing the evidence, your individual judgment within the knowledge which you have acquired through experience and observation.' This was objected to by counsel for respondents on the ground 'that the jurors should be allowed to use only the knowledge and experience which they have in common with the rest of mankind, and not that which they might possess as individuals.' The objection was overruled and the court allowed exceptions. Counsel for respondents argue that this was tantamount to authorizing the jurors to determine the compensation and damages from their individual knowledge, experience and observations. We do not think the instruction goes that far. The use of their knowledge and experience was limited to weighing...