Esch v. Chi., M. & St. P. Ry. Co.
| Decision Date | 18 September 1888 |
| Citation | 72 Wis. 229,39 N.W. 129 |
| Parties | ESCH v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county; CHARLES A. HAMILTON, Judge.Flanders & Bottum, for appellant.
John W. Cary and J. T. Fish, for respondent.
The appellant was the owner of lot 10, in block 86, in the city of Milwaukee, being a parcel of land 50 feet on the east side of Second street and 150 feet deep, lying between Clybourn and Fowler streets. The defendant company condemned for depot purposes 55 feet average width off the rear end of the lot, leaving it 50 by 95 feet, upon which there were buildings. The plaintiff appealed from the award of the commissioners, and in the circuit court recovered less damages than had been awarded him. The issue on the trial was of course the value of the strip taken, and the damage to the residue of the lot resulting from such strip being taken by the company. Errors are assigned to various rulings of the court on the trial, some of which will be noticed.
It is said the court erred in permitting several witnesses to testify, against the plaintiff's objection, to the value of the strip taken separate and apart from the residue of the lot. This would be a serious error were it sustained by the record, but we think it is not. On the contrary, we are satisfied that all the witnesses well understood that they were to estimate the value of the strip which was taken, considered with reference to the entire lot, and as a part thereof. It would be easy to verify this remark by citing answers to questions put to the witnesses, but it is deemed unnecessary. A number of exceptions are taken to the charge of the court in respect to the rule of damages. The charge is too long to be quoted entire, but the court in substance told the jury that they were to find what was the market value of the strip of land taken at the time it was taken as a part and parcel of the lot of which it was a part; and also what was the damage to the market value of the residue of the lot in consequence of such strip being taken for the use of the company. The learned circuit judge stated that these were the only questions which the jury were to consider; that the law did not provide for compensating the owner of the lot for losses in his business, but was confined to giving him compensation for the strip actually taken, and the damage to the market value of the residue of the lot. The judge further added: “Market value is such a sum of money as the property was worth in the market to persons generally who would pay its just and full value” at the time when taken. This language of the court is criticised, and it is said it is equivalent to telling the jury that the market value of the strip taken, and of the residue of the lot, was what they were worth in the market generally, which, it is said, did not afford a true test of the amount of compensation to which the plaintiff was entitled. The plaintiff was certainly entitled to just compensation for his property taken, and we universally arrive at the amount of this compensation by estimating the value of the property in money. This is its exchangeable value, and what property will bring in the market is resorted to as a means of ascertaining its true value or the amount of compensation the owner should receive. This is sufficiently accurate for the practical affairs of life, whether the market value is the true value or not. Now, the court told the jury they must assess the plaintiff's damages for the strip taken at the sum of money which it was worth in the market to persons who would pay its just and full value. The full and fair market value means what the property is worth or will sell for as between one who wants to purchase and one who wants to sell. This is what is understood by the words “market value,” what it is worth or what it...
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