Neilson v. Chi., M. & N. W. Ry. Co.

• Decision Date: 20 November 1883
• Citation: 17 N.W. 310,58 Wis. 516
• Parties: NEILSON AND WIFE v. CHICAGO, M. & N. W. RY. CO.
• Court: Wisconsin Supreme Court

58 Wis. 516

17 N.W. 310

NEILSON AND WIFE

v.CHICAGO, M. & N. W. RY. CO.

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Dane county.

The defendant company located and constructed its railway over and across the plaintiff's farm of 160 acres, in the town of Blooming Grove, Dane county, and instituted condemnation proceedings to obtain the right of way for the same through such farm. An award of damages having been made by commissioners duly appointed for that purpose, an appeal was taken therefrom to the circuit court of Dane county. A trial of the appeal resulted in an assessment by a jury of $300 for the value of the land of plaintiff acttually taken by the company, and of $1,789.83 for the damages to the residue of plaintiff's land by reason of the construction and operation of the railway through their farm,--in all $2,287.83. The jury viewed the premises. From the judgment rendered pursuant to the verdict the plaintiffs appeal. All of the errors assigned are upon the rulings of the court rejecting testimony offered by the plaintiffs, and admitting testimony given on behalf of the railway company. The exceptions by the plaintiffs to such rulings are very numerous, but less than one-half of the rulings thus excepted to are assigned as errors. Only those so assigned are considered by the court. The questions objected to, the rulings upon which objections are assigned as error, are as follows:

(1) A witness on behalf of plaintiffs, among other things, stated, “He has got to remove his barn.” Objected to. Court: “The witness has no right to say he has got to remove his barn.” Direct examination of plaintiff's witness. (2) Question. State whether in your opinion that barn that stands there can be used with safety by a farmer? Objected to; sustained. (3) Q. As the road is now, is there a safe and proper place for a barn? Objected to; sustained. (4) Q. State how that barn and barn-yard are affected as to safety by the railroad running there as it does? Objected to; sustained. (5) Q. What safe and proper place is there for a barn anywhere else on the farm? Objected to; sustained. (6) Q. Point out a safe and proper place for a barn? Objected to; sustained. (7) Q. Considering the present cost of labor and material, what would be the probable cost to put up a new barn, as valuable as the one there now? Objected to; sustained. (8) Q. (To one of the plaintiffs:) Point out a suitable place to put your buildings since the railroad has been constructed? Objected to; sustained. (9) Q. State, in your judgment, how many persons would be required to drive cattle or stock across that track, back and forth, as those things are now? Objected to; sustained. (10) Q. State what the inconveniences would be in going across the track with stock from one side to the other? Objected to; sustained. (11) Q. (On cross-examination of plaintiff's witness:) “I want to ask you what you believe this forty would sell for now?” Objected to; overruled, and question answered. (12) Q. What do you think that north forty was worth before the railroad crossed it? Objected to; overruled, and answered. (13) Q. (To plaintiff, on cross-examination:) What did you pay for that forty? Objected to; overruled, and answered. (14) (To a witness for plaintiffs on his direct examination.) Q. Referring to the barbed-wire fence built by the company: Is it an injury to the farm on account of horses and colts pastured in the field adjoining that fence? Objected to; sustained. (15) Q. Is it, in your opinion as a farmer, practicable to keep horses and colts on that farm, and, if so, on what part of it, in the condition it is in, in respect to those fences on that track? Objected to; sustained. (16) Q. Is it practicable, or can a man climb the wire fence? Objected to; sustained. (17) Q. (Plaintiff was describing the location of the crossings, and that others were needed.) “You wanted a crossing so that you could go from this piece to this one, and they (the company) refused it?” Objected to; sustained. (18) Q. What was the time they (the company) fenced up this right of way? Objected to; sustained. (19) Q. State whether or not they took down and kept down your fences on the farm there during the process of the construction of the road, and for how long? Objected to; sustained. (20) Q. State whether, during the time the road was being constructed, you were put to the expense of keeping your stock confined, so as not to damage your crops, and those of your neighbors, and, if so, how much? Objected to; sustained. Court:“I do not believe any special damages they may have done are recoverable in this form of action.” (21) Q. How long, during the time they were building the road, did they keep down the fences between your pasture lots and your grain fields? Objected to; sustained. (22) Q. How many fences within the right of way did they remove and keep down during the time they were building the road? Objected to; sustained. (23) Q. What effect did their removal have upon your fields? Objected to; sustained. (24) Q. (Plaintiff having testified on direct examination that he was enraged when right of way was taken.) State whether your insurance was canceled on account of proximity of the railroad to your buildings, and also state what other effort you made to obtain an insurance upon your buildings, and with what success? Objected to; sustained. (25) Q. (Put to witness for defendant on cross-examination:) “Don't you know that the price of a farm has been for the last seven or eight years, until a year or two, depressed so that they have not brought fair value?” Objected to; sustained. (26) Q. (To witness for defendant on cross-examination:) What is your land worth? Objected to; sustained. (27) Q. How much did you assess your land at? Objected to; sustained. (28) The respondent called as witnesses on the value of appellant's farm, Wm. R. Taylor, and others, residents of other towns, and distant therefrom several miles, each of whom was objected to by plaintiffs as not qualified to speak as to the market value of appellant's farm. Objection overruled. (29) Q. (On cross-examination of defendant's witness, Arthur:) “Do you know what lands are held at by the owners?” Objected to; sustained.Sloan, Stevens & Morris and John Winans, for appellants, Andreas Neilson and wife.

W. F. Vilas, for respondent, Chicago, M. & N. W. Ry. Co.

LYON, J.

There are certain established rules of evidence by which the rulings of the circuit judge on the trial rejecting or admitting testimony must be tested. These will be stated and briefly considered.

1. It is settled that the rule by which the damages to plaintiffs' land adjoining the defendant's railway is to be determined, is the depreciation of the market value of such land caused by the construction and operating of the railway through their farm, less any special benefits which may thereby accrue to the plaintiffs. Also that witnesses may, after stating the amount of the depreciation, testify as to the elements or items which make up that amount. In other words, they may state their grounds or reasons for fixing the damages at the specific sum named by them. The admissibility of testimony of the character last mentioned was first asserted in this state in Snyder v. Railroad Co. 25 Wis. 60, under the qualifications and restrictions stated in the opinion written by the present chief justice. One of these qualifications is that if such testimony has been received, the same should not be submitted to the jury as a basis for their assessment of damages. Because such testimony was so submitted in Hutchinson v. C. & N. W. Ry. Co. 37 Wis. 582, the judgment was reversed. The opinion by the late chief justice in that case so clearly states the nature and extent of the decision in Snyder v. Railroad Co., and the grounds for admitting, and the effect of the kind of testimony under consideration, that we are justified in quoting from it somewhat at length. It is there said: “The rule in Snyder v. Railroad Co. is...