Idaho-Western Ry. Co. v. Columbia Conference of Evangelical Lutheran Augustana Synod

• Decision Date: 13 November 1911
• Parties: IDAHO--WESTERN RAILWAY CO., Appellant, v. COLUMBIA CONFERENCE OF EVANGELICAL LUTHERAN AUGUSTANA SYNOD, Respondent
• Court: Idaho Supreme Court

119 P. 60

20 Idaho 568

IDAHO--WESTERN RAILWAY CO., Appellant, v. COLUMBIA CONFERENCE OF EVANGELICAL LUTHERAN AUGUSTANA SYNOD, Respondent

Supreme Court of Idaho

November 13, 1911

EMINENT DOMAIN-RAILROAD RIGHT OF WAY-VALUE OF PROPERTY TAKEN-COMPETENCY OF WITNESSES TO PROVE VALUE-DAMAGE TO PROPERTY REMAINING AFTER THE SEVERANCE-USE TO WHICH PROPERTY HAS BEEN APPLIED-SPECIAL USES TO WHICH APPLICABLE-EVIDENCE AS TO VALUE-EVIDENCE OF SPECIAL USES-ABSENCE OF MARKET VALUE - NATURE OF IMPROVEMENT PROPOSED - DAMAGE FROM NOISE AND SMOKE-CROSS-EXAMINATION AS TO PREVIOUS SALES-INJURIOUS USE TO WHICH PROPERTY TAKEN MAY BE DEVOTED.

(Syllabus by the court.)

1. It is not necessary to qualify a witness as an expert before allowing him to testify as to the value of property sought to be taken under condemnation proceedings or the damage that will be sustained to the remaining property by reason of the severance of the part taken. He must necessarily claim to have some knowledge on the subject before testifying as to values, and such knowledge and information may be tested on cross-examination by the condemnor, and his means of knowing values and the reasons which lead him to make his estimate as to the value of the property and the damages which will be sustained may be disclosed on cross-examination, and the weight to be given to his evidence is a proper subject for the consideration of the jury.

2. In estimating the value of property taken for public use, it is the market value of the property which is to be considered and the market value of property is the price which it will bring when it is offered for sale by one who desires but is not obliged to sell it, and is bought by one who is not obliged to have the property.

3. Where property sought to be taken under condemnation proceedings has no market value, evidence is admissible to show that the property is valuable for some peculiar or specific purpose or is especially valuable on account of its formation, location, natural or artificial adaptability to a particular use or to the peculiar use to which it is then applied, and in such a case evidence to the foregoing effect is admissible and may be considered by a jury as a proper subject of inquiry in arriving at a just estimate of the value to be placed upon the property taken and the damage that will be sustained by reason of severing the same from the property remaining.

4. The constitution prohibits the taking of the property of another for any use until just compensation has been paid therefor and this must be done whether the property has a market value or not. In every case, a fair and just compensation must be ascertained, and this should be done as nearly as possible in the same manner and by taking into consideration the same facts, circumstances and elements of value which would be taken into account by the vendor and purchaser if they were bargaining between themselves as to the fair price which the one would accept and the other would pay for the property.

5. Under the statute of this state (sec. 5220, Rev. Codes) where a condemnor is seeking to take a portion of a larger tract of land for a public use, it is proper and necessary to take into consideration and to introduce evidence to show the damage that will be sustained to the remaining parcel of land "by reason of its severance from the property sought to be condemned" and the "construction of the improvement proposed" by the condemnor.

6. An educational institution, commonly known and designated as a college, is not ordinarily a commercial or money-making institution, and cannot be said to have a market value in the ordinary and legal acceptation of that term; and where property devoted to such use is sought to be taken by a railroad company under the power of eminent domain, it is proper to introduce proofs showing the character of the location, its special fitness and adaptability for the uses to which it is then or may be devoted, the state of development and improvement of the property, the nature of the improvements, and the depreciation that will result to the remaining portion of the property after the severance therefrom of the part taken under condemnation, and such evidence is proper for the consideration of the jury in arriving at the true value of the property to be taken and the damage that will be sustained.

7. The noise usually incident to the operation of railway trains should not be taken into consideration as an element of damage in ordinary condemnation cases, for the reason that the taking of property for railroad purposes is authorized by the constitution and statute and condemnation is allowed therefor, and the noise of operating the road goes along with the use. Where, however, the property is already devoted to such a special and peculiar use that the taking of a part brings the use and the incidental noise so near to the remaining property as to render the noise a private nuisance to the owner of the remaining property except for the condemnation, and greatly depreciates its value for such special use, the question of noise may be considered in ascertaining the damage that will be suffered to the remaining property after the severance.

8. Where a witness in a condemnation proceeding testifies on behalf of the land owner that the land sought to be taken is of a certain value, it is not error for the witness to be allowed to thereafter explain that he bases his estimate upon the fact that the land could be subdivided into town lots and would for such purpose sell for the amount fixed by him as the value of the property.

9. Where a witness was called by the condemnor in condemnation proceedings and testified to what he considered to be the value of the property sought to be condemned and that he had advised the owner of the property to settle with the company it was not prejudicial error to allow the land owner on cross-examination to ask the witness if he had not sold to the plaintiff company his residence which was situated between the center of the city and the property being condemned, and if he had not received the sum of $25,000 for such property, where it appeared that such was in fact the case. Such evidence was admitted on the theory that it tended to show the prejudice and bias of the witness in favor of the condemning company.

10. Where a railroad company is condemning a part only of a tract of land and does not indicate or stipulate the specific manner in which it intends to use the property or the number of tracks it proposes to lay or whether it will use the land for switching purposes, it is competent and proper for the land owner to introduce evidence to show the probable damage that it will sustain by reason of the most numerous and injurious use to which the railroad company might lawfully put the property under its condemnation for railroad purposes.

11. Instructions examined and held sufficient, when read as a whole, to substantially state the law of the case, and that they contain no prejudicial error.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Action in condemnation. Judgment for the defendant in the sum of $ 9,000, from which the plaintiff appeals. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Charles L. Heitman, J. L. McClear, and F. M. Dudley, for Appellant.

By the statute (sec. 5220, Rev. Codes), the recoverable damages are only those which accrue to the untaken portion of the land. Injuries to business or to a use of the land, if they are not injuries to the land, are not recoverable. (Philadelphia Ball Co. v. Philadelphia, 192 Pa. 632, 73 Am. St. 835, 44 A. 265, 46 L. R. A. 724, and cases cited; St. Louis etc. R. Co. v. Knapp, Stout & Co., 160 Mo. 396, 61 S.W. 300, 304, 305; Kansas City etc. Ry. Co. v. Anderson, 88 Ark. 129, 113 S.W. 1030, 1032, 16 Ann. Cas. 784; Stadler v. City of Milwaukee, 34 Wis. 98 et seq.; Cook & R. Co. v. Sanitary District, 177 Ill. 599, 52 N.E. 870, 872, 873; Cobb v. Boston, 109 Mass. 438; Sawyer v. Commonwealth, 182 Mass. 245, 65 N.E. 52, 59 L. R. A. 726; Ranlet v. Concord, 62 N.H. 561; C. P. R. R. Co. v. Pearson, 35 Cal. 247, 263; Pause v. City of Atlanta, 98 Ga. 92, 58 Am. St. 290, 26 S.E. 489; In re Department of Public Parks, 53 Hun, 280, 6 N.Y.S. 750; 15 Cyc. 733; 2 Lewis, Eminent Domain, 3d ed., sec. 727.)

The adaptability of a parcel of land which is material is only that adaptability which gives it a special value, which adds to its worth on the market. (2 Lewis, Eminent Domain, 3d ed., sec. 707, and cases cited; City of Santa Ana v. Harlin, 99 Cal. 538, 34 P. 224; Conness v. Commonwealth, 184 Mass. 541, 69 N.E. 341; Sacramento S. R. Co. v. Heilbron, 156 Cal. 408, 104 P. 979.)

Respondent's witnesses had not qualified themselves to give testimony as to the special value of the land. (Conness v. Commonwealth, 184 Mass. 541, 69 N.E. 341; C. M. & St. P. R. Co. v. Alexander, 47 Wash. 131, 91 P. 626; In re Western Avenue, 57 Wash. 290, 106 P. 901; Laing v. United etc. Canal Co., 54 N.J.L. 576, 33 Am. St. 682, 25 A. 409; Friday v. Penn. Ry. Co., 204 Pa. 405, 54 A. 339; Town of Hingham v. United States, 161 F. 295, 88 C. C. A. 341.)

"Opinions should be confined to the property in question . . . . also to the question of market value, and not the value to the owner or for particular uses." (2 Lewis, Eminent Domain, 3d ed., secs. 654, 707.)

Noise caused by the railroad properly operated could not be considered as an element of damage. The constitution of Idaho does not prohibit the damaging of property. (Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638; Brown v. Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L. R. A. 161, and cases cited.)

The respondent would have...