Kansas City & S. W. R. Co. v. Ehret

• Decision Date: 09 February 1889
• Citation: 20 P. 538,41 Kan. 22
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY & SOUTHWESTERN RAILROAD COMPANY v. R. EHRET

20 P. 538

41 Kan. 22

THE KANSAS CITY & SOUTHWESTERN RAILROAD COMPANY v. R. EHRET

Supreme Court of Kansas

February 9, 1889

Error from Cowley District Court.

THE opinion states the case. Judgment for plaintiff Ehret, at the September term, 1886. The defendant Company brings the case to this court.

Judgment affirmed.

Jos O'Hare, for plaintiff in error.

W. T Madden, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an appeal by R. Ehret from an award of damages made to him by the board of county commissioners of Cowley county in certain condemnation proceedings had for the purpose of appropriating a right-of-way for the Kansas City & Southwestern Railroad Company through his land and the land of others. The commissioners awarded damages to him to the amount of $ 542.40. After the appeal was taken, the case was tried in the district court before the court and a jury, and in that court damages were awarded to him to the amount of $ 870. The jury assessed the damages as follows: For the value of the land taken, $ 232.80; for damages to the remainder of the land, $ 633.20; for fences taken, $ 4; total, $ 870. To reverse the judgment of the district court, the Railroad Company, as plaintiff in error, has brought the case to this court. The principal alleged errors are as follows: 1. Error in the admission of improper testimony; 2. Error in excluding proper testimony; 3. Error in giving erroneous instructions to the jury. We shall consider these alleged errors in their order.

I. It is claimed that improper testimony was permitted to go to the jury, and the testimony of five witnesses is referred to. These witnesses were all farmers living in the vicinity of the land in question, had full and complete knowledge of the same, and testified with respect thereto, giving full details. Their testimony showed that the land was worth but little except for farming purposes; and they testified that they knew the value of the land for such purposes. But they did not testify that they knew its market value as contradistinguished from its usable or productive value; nor did they testify that they knew of any sales of any land made in their vicinity at or about the time when the right-of-way in this case was appropriated, and probably there were no such sales. These witnesses were permitted to give their opinion with respect to the value of this land, and this it is claimed was error. It is claimed that only such witnesses as know the market value of the land in question should be permitted to give opinions concerning its value, and that such opinions should be confined exclusively to market value. Now this claim is certainly untenable. It is not the market value merely that is in question, nor the usable or productive value, but it is the real value. And this real value involves everything that tends to make the land more valuable or less valuable. "The value of land for farm use is a proper subject of inquiry in proceedings to condemn it for railway purposes." (Mich. Air Line Rly. Co. v. Barnes, 44 Mich. 222, 223.) Indeed, the value of land for any use is a proper subject of inquiry in such cases, and anything may be shown which will tend to show a greater or less value, or which will tend in any manner to affect its value, and the owner may in all cases recover for its diminished value, taking into consideration any purpose for which it might be the most profitably used. The market value of property is only a measure or evidence of its real value, but in some cases it is very important. Indeed, where property has an absolute market value like government bonds or certain railroad stock, it is controlling. But real estate can never have any such absolute market value, and farms can hardly have any market value at all. Hence with respect to farms we have to resort to other measures of value, as to the value of their use, etc. Each farm depends principally for its value upon its improvements, its productiveness, the fertility of its soil, and the amount of money which can be realized from it. And it also depends for its value upon a great variety of special things: upon its location, its size, shape, and configuration; whether hilly, level, undulating or otherwise; its symmetry, beauty, attractiveness, etc.; whether it slopes one way or another, or in many ways; the quality and productiveness of its soil; the amount, kind and quality of its water, stone, minerals, etc.; how much forest, how much prairie, how much cultivated land, how much uncultivated; whether subject to weeds or other pernicious things to make it difficult of cultivation; its proximity to or remoteness from cities, towns, villages, markets, schools, churches, public roads, highways, and the kinds and characters of all these things; and also many other things not necessary to mention. All these things enter in to make a farm of greater or less value, and all these things may be shown. And with respect to these things no two farms can be alike, and they never are alike; and no two farms can be injured in precisely the same way by railroads passing through them. Farms are unlike railroad stock or bank stock, or other stock which may have an actual market value. They are unlike wheat, or corn, or other grain, which may respectively be homogeneous in character. They are unlike almost everything else. The most of things which are bought and sold may be classified, and a common or market value be established for all the things belonging to each particular class. In such cases when a market value is established for one particular thing of any particular class, a market value is established for all the things of that class. But farms cannot well be classified; each farm must to a great extent be considered separately, and the value of each farm must be determined separately. The market value of a thing is established by sales and purchases; the usable or productive value of a thing is established by the value of its use and the amount of profit which can be realized from it; but the real value of a thing is established or ascertained from all these things, and more too. It may be true that the market value of a thing may be established by sales and purchases of such thing alone made at different times, or by offers to purchase it made by different persons. But this is not the kind of market value involved in this case, or which we have been considering. The kind of market value which we have been considering in this case has reference only to a general class or kind of property, homogeneous in character, or composed of a vast number of like parts or like things, and the value established by actual sales and purchases of some part of the homogeneous mass, or some of the like parts or like things out of the general whole. This is what is usually understood as the market value of a thing as contradistinguished from the usable, productive, or real value thereof. But it is difficult to see how this kind of value can be applied to farms. Of course whenever a farm has a market value it is proper, and in many cases necessary, that such value should be shown,...