Portneuf-Marsh Valley Irr. Co., Ltd. v. Portneuf Irrigating Co., Ltd.

• Citation: 19 Idaho 483,114 P. 19
• Parties: PORTNEUF-MARSH VALLEY IRRIGATION CO., LTD., Appellant, v. PORTNEUF IRRIGATING CO., LTD., et al., Respondents
• Decision Date: 04 March 1911
• Court: United States State Supreme Court of Idaho

114 P. 19

19 Idaho 483

PORTNEUF-MARSH VALLEY IRRIGATION CO., LTD., Appellant, v. PORTNEUF IRRIGATING CO., LTD., et al., Respondents

Supreme Court of Idaho

March 4, 1911

CONDEMNATION-ASSESSMENT OF DAMAGES-INSTRUCTION.

(Syllabus by the court.)

1. In a condemnation suit an instruction "that the measure of damages of defendant, the Portneuf Irrigating Co., would be the amount in dollars and cents, if any, saved to the plaintiff corporation in the construction or enlargement of the proposed canal by reason of the existence of the ditch of defendant, the Portneuf Ir- rigating Co Ltd., as constructed at the time of the issuance of summons bearing in mind said defendant's continued future use of the proposed enlarged canal in common with that of the plaintiff corporation," does not correctly state the rule for estimating and fixing damages, and is in direct conflict with the further instruction that, "The jury are instructed that they are not to measure the value of the right sought to be condemned from the defendant, the Portneuf Irrigating Co., Ltd., by the necessity the plaintiff is under of obtaining that right, or the value it may have to the plaintiff alone, under the peculiar circumstances of this particular case. The reasonable market value of the property sought to be taken is the true measure of damages for the amount so taken." The latter instruction correctly states the law, and was a proper instruction for the jury.

2. In a condemnation suit the plaintiff necessarily admits that the taking of the property would be a damage to defendant in some amount, and with regard to a question based upon the theory entertained by the plaintiff as to the measure of damages where the court sustains an objection to the question, it is not necessary that the plaintiff should state the evidence he expects to produce in answer to such questions, for the reason that it is apparent to anyone that there would be some evidence as to damages and that the plaintiff could have produced evidence fixing the damages in some amount.

3. Where instructions, when all read together, may be harmonized and reconciled, the court will not reverse a judgment because some particular isolated instruction, when read alone, might be misleading or give the jury an improper understanding as to the law of the case; but where the instructions are in irreconcilable conflict on a decisive or controlling question to be determined by the jury, they cannot be construed together, and where no one can tell which instruction the jury followed, a reversal of the judgment must necessarily follow.

APPEAL from the District Court of the Fifth Judicial District, in and for the County of Bannock. Hon. Alfred Budge, Judge.

Suit in condemnation. Judgment for the defendant establishing its damages, from which plaintiff appealed. Reserved.

Reversed and remanded. Costs awarded in favor of appellant.

Edwin Snow and Standrod & Terrell, for Appellant.

The real damages are what the party is damaged. In property like this, it is measured by the difference between the value of his property before and after the taking.

"Compensation must be reckoned from the standpoint of what the land owner loses by having his property taken, not by the benefit which the property may be to the other party to the proceedings." (15 Cyc. 757; 2 Lewis, Eminent Domain, 3d ed., p. 1231; Black River etc. R. v. Barnard, 9 Hun (N. Y.), 104; In re Boston Hoosac Tunnel etc. Ry. Co., 22 Hun, 176; In re N.Y. L. & W. R. Co., 27 Hun, 118; Sullivan v. Lafayette County, 61 Miss. 271; Five Tracts of Land v. United States, 101 F. 661, 41 C. C. A. 580; San Antonio & A. P. Ry. Co. v. Telegraph Co. (Tex. Civ.), 56 S.W. 201; S.W. Tel. Co. v. Gulf etc. Ry. Co. (Tex. Civ.), 52 S.W. 106; Mobile & Ohio R. Co. v. Postal etc. Co., 76 Miss, 731, 26 So. 370, 45 L. R. A. 223.)

The federal courts have construed the Idaho statutes with reference to this matter. The doctrine heretofore advanced has been fully and expressly sustained with reference to our particular statute. (Postal Tel. Co. v. Oregon S. L. Ry. Co., 104 F. 623, affirmed by circuit court of appeals, 111 F. 842, 49 C. C. A. 663. See, also, Virginia & Truckee R. Co. v. Elliott, 5 Nev. 358; Sargent v. Merrimac, 196 Mass. 171, 124 Am. St. 528, 81 N.E. 970, 11 L. R. A., N. S., 996; Union Depot v. Knapp, Stout & Co., 160 Mo. 396, 61 S.W. 300; Union Depot etc. Co. v. Brunswick, 31 Minn. 297, 47 Am. Rep. 789, 17 N.W. 626; Ligare v. Chicago etc. Ry. Co., 166 Ill. 249, 46 N.E. 803; West Virginia etc. Ry. Co. v. Gibson, 94 Ky. 234, 21 S.W. 1055; Chicago, B. & Q. Ry. Co. v. Chicago, 166 U.S. 248, 17 S.Ct. 581, 41 L.Ed. 979; San Pedro Ry. Co. v. Board (Utah), 99 P. 263; 7 Dec. Dig. 2266, 2267; Selma, Rome & Dalton R. Co. v. Keith, 53 Ga. 178.)

Clark & Budge, for Respondents.

"Damages for property taken under eminent domain must be awarded on basis of the value of the property for its present use, or for purposes to which it could be most advantageously applied under existing conditions." (Ranck v. City of Cedar Rapids, 134 Iowa 563, 111 N.W. 1027; New York etc. R. v. City of New Haven, 81 Conn. 581, 71 A. 780; Chicago etc. R. Co. v. Mason, 23 S.D. 564, 122 N.W. 601; Railroad Co. v. Weideman, 77 Kan. 300, 94 P. 146.)

"If land sought to be taken is specially valuable to the condemnor for certain purposes, defendant should be allowed to show such value." (Spring Valley Water Works v. Drinkhouse, 92 Cal. 528, 28 P. 681; San Diego L. & T. Co. v. Neale, 78 Cal. 63, 20 P. 372, 3 L. R. A. 83, 88 Cal. 50, 25 P. 977, 11 L. R. A. 604; Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; 2 Lewis, Em. Dom., 2d ed., sec. 479.)

"All instructions given in a case should be read and considered together and as a whole; and if when so considered they fairly present to the jury the law of the case, the judgment will not be reversed on account of some specific portion of the instructions, when taken alone, being incomplete or obscure." (State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; People v. Bernard, 2 Idaho 193 (178), 10 P. 30; Houser v. Austin, 2 Idaho 204 (188), 10 P. 37, 41; Hayden v. Con. Mining Co., 3 Cal.App. 136, 84 P. 422; People v. Kennedy, 55 Cal. 202; Lawrence v. Hagerman, 56 Ill. 68, 8 Am. Rep. 674; Lourance v. Goodwin, 170 Ill. 390, 48 N.E. 903; Stephenson v. So. P. Co., 102 Cal. 143, 34 P. 618, 36 P. 407.)

It is to be inferred that the jury considered all the other instructions with the particular clause of instruction 7 emphasized by appellant (State v. Neil, supra), and it will not be presumed that the jury disregarded one part of an instruction more than another. (Feliz v. Feliz, 105 Cal. 1, 38 P. 521.)

The rule is that if a party during the trial thinks that the instructions might mislead the jury, he should ask to have them made more specific. (Dahlen v. Ins. Co., 109 Minn. 337, 123 N.W. 926; Cafre v. Lockwood, 47 N.Y.S. 916, 22 A.D. 11.)

And if he fails to offer an instruction to correct one which he deems to be erroneous, he cannot predicate error upon such erroneous charge. (Memphis St. Ry. Co. v. Shaw, 110 Tenn. 467, 75 S.W. 713; Dyer v. McWhirter (Tex.), 111 S.W. 1053; Board of Councilmen v. Howard (Ky.), 74 S.W. 703; Perkins v. Marrs, 15 Colo. 262, 25 P. 168.)

AILSHIE, J., SULLIVAN, J. Stewart, C. J., Ailshie, Presiding J., concurring.

OPINION

AILSHIE, J.

This is an action for condemnation. The plaintiff sought by its action to condemn a right to enlarge the defendant's (the Portneuf Irrigating Co., Ltd.) canal to such capacity that it will carry the volume of water the Portneuf Irrigating Co. desires to carry through the canal, and also the plaintiff's appropriation. The case was tried before the court and a jury, and judgment was entered allowing the defendant's damages at $ 4,500. The plaintiff has appealed from the judgment awarding damages.

The only question presented on this appeal is the correctness of an instruction given by the court to the jury. The last sentence of the following instruction given by the court is the part to which appellant took exception, and now urges as ground for a reversal of the judgment:

"The court instructs you, gentlemen of the jury, that the rule of damages in condemnation proceedings is, that all damages, present and prospective, that are the natural or reasonable incident of the improvement made or the work to be constructed, should be ascertained; and you are instructed in the present case, so far as the ditch and right of way of the defendant, the Portneuf Irrigating Company, is concerned, you may in arriving at the damage, if any, to which said company is entitled, consider the value of that portion of said defendant's ditch sought to be condemned, if any; subject to the right that the Portneuf Irrigating Company has to run its water, jointly with the plaintiff company, through said proposed canal.

"In other words, the court instructs you, gentlemen of the jury, that the measure of damages of the defendant, the Portneuf Irrigating Co., would be the amount in dollars and cents, if any, saved to the plaintiff corporation in the construction or enlargement of the proposed canal, by reason of the existence of the ditch of the defendant, the Portneuf Irrigating Co., Ltd., as constructed at the time of the issuance of summons of this action, bearing in mind said defendant's continued future use of the proposed enlarged canal, in common with that of the plaintiff corporation."

The bill of exceptions shows that upon the trial counsel for the plaintiff propounded the following question to a witness: "Supposing that this improvement were constructed in the manner testified to by you that it will be, what would be the difference in value of defendant's ditch and right of way before and after that...