Oregon R. & Nav. Co. v. Taffe

• Decision Date: 07 October 1913
• Citation: 135 P. 332,67 Or. 102
• Parties: OREGON R. & NAV. CO. v. TAFFE et al.
• Court: Oregon Supreme Court

135 P. 332

67 Or. 102

OREGON R. & NAV. CO. v. TAFFE et al.

Supreme Court of Oregon

October 7, 1913

On petition for rehearing. Denied.

For former opinion, see 134 P. 1024.

EAKIN, J.

It is suggested that the court erred in following the rule as stated in Lewis on Eminent Domain, §§ 697, 698, and as declared by the Minnesota cases cited and by the case of Sharp v. United States, 191 U.S. 341, 24 Sup.Ct. 114, 48 L.Ed. 211, Id., 112 F. 893, 50 C.C.A. 597, 57 L.R.A. 932, to the effect that if different tracts are used together as one property, or are adapted for such use, and are more valuable because of such adaptation, they should be treated as one property, otherwise not. Defendants contend that this is not the correct rule but cite no cases to the contrary. The cases of Kansas City Co. v. Merrill, 25 Kan. 421, and St. Louis, etc., R. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867, 9 L.R.A. (N.S.) 426, 116 Am.St.Rep. 499, 8 Ann.Cas. 822, cited by defendants, do not conflict with the rule here adopted. That rule as applied in this case is certainly logical and reasonable. It is not shown that other blocks or lots will suffer any specific damage, but in general terms it is said that the railroad will obstruct the streets and prevent access to the lots, though it is not shown that any particular lot will be so injured or to what extent. The facts as to how and to what extent any particular lot is damaged must be shown, and the admission in evidence of such general statements that it will be a damage to the town site and instructing the jury that they might consider the same as an element of damage was error that we must consider had weight with them and prevents the application of the rule established by section 3, art. 7, of the Constitution (as amended [see Laws 1911, p. 7]), referring to which Mr. Justice McBride says: "But, for the jury to find the fact, the court must see that they receive only legal evidence, and no good finding of fact can ever be predicated upon illegal evidence." State v. Rader, 62 Or. 37, 124 P. 195; Lewis v. Northwestern Warehouse Co., 63 Or. 239, 127 P. 33.

The petition is denied.

McBRIDE, C.J., and BEAN and McNARY, JJ., concur.