Pingrey v. Cherokee & D. R. Co.

• Decision Date: 12 October 1889
• Citation: 43 N.W. 285,78 Iowa 438
• Parties: PINGREY v. CHEROKEE & D. R. CO.
• Court: Iowa Supreme Court

78 Iowa 438

43 N.W. 285

PINGREY

v.CHEROKEE & D. R. CO.

Supreme Court of Iowa.

Oct. 12, 1889.

Appeal from district court, Cherokee county; C. H. LEWIS, Judge.

Action for the condemnation of a right of way over plaintiff's lands. From the findings of a jury on appeal to the district court the defendant appeals to this court.E. C. Herrick, M. Wakefield, and Thos. McCulla, for appellant.

A. F. Meservey, Wm. McHenry, and A. N. Botsford, for appellee.

GRANGER, J.

1. Several witnesses testified as to the value of plaintiffs' farm, both before and after the location of defendant's road across it. There was an objection to the testimony, on the ground that the witnesses had not shown themselves competent; the precise point being that it did not appear that the witnesses knew of the date of the location or building of the road, and that without such knowledge they could not properly testify as to values before and after the location. Without citing the testimony of the several witnesses separately, it is sufficient to say that their testimony showed them to be farmers. That they had resided in Cherokee county for periods ranging from nine to thirty years. Each stated that he knew the lands in question, and was acquainted with the value of farm lands in Cherokee county. Neither witness stated in terms that he knew the date of the location of the road, nor was the question asked him. The main purpose of showing the fact would be to enable the court to know if the witness was qualified to testify as to values before and after the location. Conceding that the court should know that fact to admit the testimony, it is not necessary that it should appear alone from the testimony of the witness. If the fact appeared from any evidence in the case, or from the record, the court could take notice of it in making his ruling. Nor is it necessary that the fact should be testified to in terms. If it is a fact deducible from other established facts in the case, the court may thus find. The railroad company filed its application for a sheriff's jury to assess the damage, July 18, 1887, and this case was tried in the district court in December thereafter. The court took notice of such facts from the record, where they appear. The testimony of the witnesses showed them residents of the county from nine to thirty years; and from the well-known publicity of such an event as the location and building of a railroad through a county the court might well understand from the facts before it that the witnesses knew of the time of the location. If it be said that the road may have been located and built before the assessment by the sheriff's jury, it is sufficient to say such is not the fact, as both the application for a jury to assess and the return of the jury show the assessment was of damages to be, and not that had been, sustained by the location of the road. If, in view of these facts, appellant felt that the court was not sufficiently advised, a word of cross-examination might have put the matter beyond controversy.

2. By a stipulation in the record it appears that the right of way across plaintiff's farm occupied 12.28 acres, and against the objection of the defendant plaintiff was allowed to prove the value thereof per acre, and error is assigned in this respect. In support of this assignment we are referred to Winklemans v. Railway Co., 62 Iowa, 11, 17 N. W. Rep. 82. The point ruled there is of very different import from that under consideration. In that case the effort was to prove the value of a part of the farm, and this court held that it could not be done; that “the land was used, improved, and occupied as one farm, and could not properly be valued in detached parcels.” In this case the proof is as to the value of the right of way, which is no longer a part of the farm. It is what is taken, and its value is a legitimate part of the loss or damage. It is true, the plaintiff cannot have the value of the right of way, and, in addition, the damage to the farm. The depreciation in value to the farm is made up of the loss of the land taken and other resulting damages. The plaintiff, in making his proofs, is not confined to mere expert testimony as to values before and after location, but he may put the jury in possession of such facts as will enable it to make the legitimate estimate of damage therefrom; and this is but one link in the chain of such proofs. There might be a case in which the only damage to the farm would be the land taken, and in such a case the most direct and reasonable way to reach the result would be to fix the value of the land taken by competent evidence. Without exception there is damage to the extent of such value, for no benefits can be considered; and whether or not other damages result is a question for the jury. This holding has something of support in the approval of an instruction in Smalley v. Railroad Co., 36 Iowa, 571.

3. Defendant introduced as a witness one Green, who testified that he was an insurance agent, and knew the rates of insurance on various risks by fire companies. He was asked, “what effect the building of a railroad within the distance of one hundred and fifty feet of a barn would have on the rate of insurance that it would take to keep the barn insured.” The court sustained an objection to the question that it was incompetent, irrelevant, and immaterial. Error is assigned as to the ruling. Appellant urges, both upon reason and authority, “that the jury had a right to consider this question of danger from fire in determining the weight to be given to the estimates of damage of the various witnesses.” We think this position of appellant is correct, but we do not see the bearing on the question submitted. The question has to do only with the rates of insurance companies. We know of no law--barring, perhaps, that of a business character--requiring the plaintiff to keep her barn insured. Risk to property by the operations of trains, whereby fires are likely to occur, is a proper element in fixing damages, but it is not the law that this element of damage is to be considered on a basis that property, if insurable, must be kept insured. We are referred to the case of Johnson v. Railroad Co., 35 N. W. Rep. 438, in support of appellant's theory. Referring to the case, it has not a remote reference to insurance. It sustains the doctrine that increased risk of fire is an element of damage in this class of cases, and proper for the jury to consider. The risk there mentioned is the risk of the owner, and not that of an insurance company. Lance v. Railroad Co., 57 Iowa, 638, 11 N. W. Rep. 612, is cited in support of a rule that, as showing the danger or risk, it is proper to show the jury the exact situation, and allow it to consider such facts in passing upon the estimates of the witnesses as to the depreciation in value. The case sustains the rule, but again the argument is without force as to the point ruled upon. In this case the distances and surroundings are shown by the testimony, so that the jury, under the rule of Lance v. Railroad Co., could consider the increased risk; but neither in the light of reason nor of the authorities cited do we see the bearing of the rates of insurance companies upon the issues of the case.

4. One Maltby, a civil engineer in the employ of the defendant company, was a witness for the defendant, and it offered to show by such witness the character of netting or screens used in the smoke-stacks of defendant's engines, and that coals or sparks that could escape through such screens could not live to reach the distance of plaintiff's barn from the track. The offer was refused. The refusal was not error. The damages were to be assessed, not on a basis that the company would continue to use such screens, or that the same company would continue to operate the road. The easement...