Little Rock Junction Ry. v. Woodruff

• Decision Date: 15 October 1887
• Parties: LITTLE ROCK JUNCTION RY. <I>v.</I> WOODRUFF and others.
• Court: Arkansas Supreme Court

Page 792

5 S.W. 792

LITTLE ROCK JUNCTION RY.

v. WOODRUFF and others.

Supreme Court of Arkansas.

October 15, 1887.

Appeal from circuit court, Lonoke county; F. T. VAUGHAN, Judge.

John McClure, for appellant. Collins & Balch and U. M. & G. B. Rose, for appellees.

McCAIN, Special Judge.²

This is a proceeding to condemn a site for the landing and approaches of a railroad bridge across the Arkansas river at Little Rock. The land sought to be condemned embraces what is known in the vicinity as the "Point of Rocks." This is a sort of promontory that makes out into the river, and seems to have been somewhat inviting as a bridge-site. The only issue in the court below was as to the value of the property. The estimates of the witnesses ran all the way from $1,500 to $50,000. The jury fixed the value at $20,000. The railroad company appealed. It is contended that the court below erred in admitting incompetent testimony, in refusing certain instructions asked by appellant, in giving an instruction for appellees against the objection of appellant, and also in refusing to set aside the verdict as being excessive and contrary to the evidence. The constitution of this state declares "all railroads to be public highways." Article 17, § 1. For the construction of these highways, "the state's ancient right of eminent domain is conceded." Article 2, § 23. The owner of the property taken under this right is entitled to "full compensation." Article 12, § 9. The title to land is always held upon the implied condition that it will be surrendered to the government when the public necessities demand, and when full compensation has been tendered. The taking of property under this power has very properly been called a "compulsory purchase." In this regard it bears a striking analogy to the king's ancient prerogative of purveyance, which was recognized and regulated by the twenty-eighth section of magna charta. Under that prerogative the king was allowed to take certain personal property of the subject when his convenience and necessity demanded, but the same was not to be taken without paying the fair value to the owner. 1 Bl. Comm. 287.

In taking property under this power of eminent domain for railroad purposes, it has been the policy and practice to proceed in the name and through the instrumentality of a corporation. The wisdom of this policy has been questioned, but its legality is beyond controversy. It is none the less, therefore, a taking for and on behalf of the state, notwithstanding it may be done in the name of a corporation. What is the measure of compensation which the citizen is entitled to demand for his property when thus taken? We think the general concurrence of authority is that the true measure is the market value of the property. Mr. Cooley says: "The principle upon which the damages are to be assessed is always an important consideration in these cases; and the circumstances of different appropriations are sometimes so peculiar that it has been found somewhat difficult to establish a rule that shall always be just and equitable. If the whole of a man's estate is taken, there can generally be little difficulty in fixing upon the measure of compensation; for it is apparent that, in such cases, he ought to have the whole market value of his premises, and he cannot reasonably demand more. The question is reduced to one of market value, to be determined upon the testimony of those who have knowledge upon that subject, or whose business or experience entitles their opinions to weight." Cooley, Const. Lim. 565.

In Boom Co. v. Patterson, 98 U. S. 403, the court say: "The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted."

A frequent source of confusion in cases of condemnation is that property sometimes seems to have a value other than and different from its market value. Bouvier, in his definition of "value," says: "This term has two different meanings. It sometimes expresses the utility of an object, and sometimes the power of purchasing other goods with it. The first may be called the value in use, the latter value in exchange." Webster recognizes a difference between "intrinsic" and "exchangeable" value. Webst. Dict. "Value." We also read in the law-books of the pretium affectionis which sometimes attaches to property, and is recognized by the courts. This theory that property may have more than one value does not go, however, without dispute. Judge LUMPKIN, in Harrison v. Young, 9 Ga. 359, says that "the value of land or anything else is the price it will bring in the market." Whether this theory of different values is well or ill founded, we think that every one who has had experience in trying condemnation cases will corroborate us in saying that such an idea obtains to a great extent among those who are called to testify as to the value of property. Many witnesses are never prepared to answer as to the value of property until they first inquire the purpose for which it is to be valued. We find illustrations of this by looking into the record of the testimony in this case.

There are authorities which hold that the land-owner is not restricted to the market value of the property. Such a doctrine is announced in Robb v. Turnpike Co., 3 Metc. (Ky.) 117, where the owner was allowed to recover more than the market value of the property. We think, however, that these cases are exceptional, and that the general current is the other way. If anything were wanting to satisfy us as to the correctness of the rule as we have announced, it is supplied by the concurrence on this point of the distinguished counsel who are arrayed against each other in this case. The following instruction seems to have been given by his honor, the circuit judge, with the approval of counsel on both sides: "Second. The owner is entitled, not simply to such sum as the property would bring at forced sale, but to such sum as the property is worth in the market, — that is, to persons generally; and in ascertaining the value it is not proper to add a value to the land, because the land is indispensable or necessary to the railroad company." Other instructions substantially to the same effect were given either by the court on its own motion, or at the request of the parties, and without objection.

Since, then, the market value is the criterion of damages, we are led to inquire, what is the market value? The word "market" conveys the idea of selling, and the market value, it would seem to follow, is the selling value. It is the price which an article will bring when offered for sale in the market. It is the highest price which those having the ability and the occasion to buy are willing to pay. The owner, in parting with his property to the state, is entitled to receive just such an amount as he could obtain if he were to go upon the market and offer the property for sale. To give him more than this would be to give him more than the market value, and to give him less would not be full compensation. Of course, real estate is not like cotton, grain, and other commercial products. It cannot be sold upon an hour's notice. To sell land at its market value sometimes requires effort and negotiation for some weeks, or even for some months. And, when we say that the owner is entitled to receive the price for which he could sell the property, we do not mean the price he would realize at a forced sale upon short notice, but the price that he could obtain after reasonable and ample time, such as would ordinarily be taken by an owner to make sale of like property. Yet it must be the amount which could have been obtained for the property with reference to the market value at the time of its appropriation. One who anticipates an increase in the value of his property may feel it a hardship to surrender it without receiving more than its present market value; but it would be a hopeless task to either measure or satisfy the anticipations of a sanguine land-owner. If the market value is the price for which the property could be sold on the market, we are next led to inquire, how is the market value to be proven? This is usually done by calling witnesses who are familiar with the property, and asking their opinion as to such value. Here is one of the recognized exceptions to the general rule that witnesses are to state facts, and not to express opinions. When the witness has made his estimate as to the market value of the property, it is competent to support his estimate by having him describe the property, giving its location, advantages, and surroundings, though ordinarily this would be uncalled for unless his estimate was attacked on his cross-examination; in which case the party introducing him would have ample opportunity to rebut any facts which might appear to be derogatory to his estimate. How much latitude should be allowed the parties in the way of bringing out in the...