Railway Company v. Davis.

• Decision Date: 23 January 1906
• Citation: 58 W.Va. 620
• Parties: Railway Company v. Davis.
• Court: West Virginia Supreme Court

58 W.Va. 620

Railway Company

v.Davis.

Supreme Court of Appeals of West Virginia.

Submitted September 14, 1905.

Decided January 23, 1906.

1. Eminent Domain Compensation Elements.

In a condemnation proceeding every element of value which would be taken into consideration between private parties in a sale of property should be considered in arriving'at a just compensation for the land proposed to be taken, and it is proper to consider not only the use for which the land may be maintained at the time, but its adaptability to any and every useful purpose to which it might be put. (p. 623.)

2. Eminent Domain Compensation Elements.

As a general rule, compensation to the owner, is to be estimated by reference to the uses for which the appropriated lands are suitable, having regard to the existing business or wants of the community or such as may be reasonably expected in the immediate future, (p. 623.)

3. Eminent Domain Compensation Elements.

As to the value of the property taken, the proper inquiry is, what is the value of the property for the most advantageous uses to which it maybe applied? (p. 623.)

4. Eminent Domain Appeal Prejudicial Error.

In a condemnation proceeding when a false, speculative and conjectural basis of the value of the real estate, proposed to be taken, is permitted to go in evidence to the jury, over the objections of a party, it will be presumed that the objecting party was prejudiced thereby, (p. 629.)

Error to Circuit Court, Mingo County.

Action by the Norfolk & Western Railway Company against T. J. Davis and others. Judgment for defendants, and plaintiff brings error.

Reversed.

Joseph I. Doran and Holt & Duncan, for plaintiff in error.

Simms & Enslow, for defendants in error. McWhorter, Judge:

This is a proceeding by the Norfolk and Western Railway Company for the condemnation of a strip of land 2, 567 feet in length, along the bank of the Tug Fork of Sandy river, in Mingo county, being the front of a trace of some five hundred and fifty or six hundred acres, the strip to be taken containing five and two one hundredth acres, the property of T. J. Davis, et al., for its use in the construction of a branch of its railroad. The applicant offered the owners $500.00, which they refused to accept. It then applied to the circuit court of Mingo county for the appointment of commissioners, under the statute, to ascertain the compensation, who reported $900.00 as a fair compensation for the land taken and damages to the residue of the property, which report was excepted to by the applicant "Because the amount fixed by said commissioners in their report as compensation for the land proposed to be taken and damaged is grossly excessive," and demanded that the question of compensation be ascertained by a jury. The defendants also excepted to said report "Because the amount fixed by said commissioners in their report as compensation for the land proposed to be taken and damaged is grossly inadequate," and likewise demanded a jury to ascertain the compensation and damages. Accordingly a jury was impaneled and sworn, and, after hearing the evidence, returned the following verdict: "We the jury find for the defendants the sura of $2,350 as compensation and damages for the land proposed to be taken as shown and described in the petition and plat filed herein." During the trial the plaintiff objected to certain evidence offered by the defendants and excepted to the ruling of the court in permitting the evidence to go in, and moved the court to set aside the verdict of the jury and grant it a new trial, because the same was contrary to law and without evidence to support it. Which motion the court overruled and entered judgment requiring the plaintiff to pay said sum of $2,350.00, to which plaintiff excepted and procured from one of the judges of this Court a writ of error.

The questions presented for the consideration of this Court are as to whether the amount of compensation found by the jury is so high that it must be attributed to prejudice, partiality, passion or mistake of law or judgment, and whether the court erred in permitting certain evidence to go to the jury as claimed by plaintiff's counsel. It is conceded, as well as proved, that the land taken for the right of way being a strip eighty feet wide, except for a distance where a fill was made it is enlarged to one hundred and forty feet, is rough hillside land wholly unfit for cultivation, and the evidence shows that between the right of way and the river is a strip, the most of which is bottom land, of about ninety feet in width, which is, by the road, severed from the main body of the tract of land out of which the right of way is taken. There are two producing gas wells on the land outside of the right of way proposed to be taken, one within about ten feet of the right of way, the other about two hundred feet up Lower Burning Creek from its mouth, so that the well must be within one hundred feet, or less of the right of way, but none upon the right of way. T. J., Davis, a witness in behalf of himself and the other owners testified that the compensation and damages should be $4,300.00, that he based his judgment upon an estimate that he had made; and testified that the two wells producing gas brought in rentals of $600.00 per year, to which testimony of Mr. Davis, so far as it referred to the gas upon the land and the rentals accruing from the two producing wells, the counsel for the plaintiff objected, but the objection was overruled and plaintiff excepted. Here was proof of actual development of the gas, the wells were bringing in certain definite rentals and it was certainly competent to show to what extent developments had been made, and what was actually being done with the land. It seems to be a rule well established that every element of value which would be taken into consideration between private parties in a sale of property should be considered in a proceeding of this character in arriving at a just compensation for the land taken, and it is proper to consider not only the use for which the land may be maintained at the time, but its adaptability to any and every useful purpose to which it might be put. In 15 Cyc. 724, "If a tract of which the whole or a part is taken for a public use, possesses a special value to the owner, which can be measured by money, he is entitled to have that value considered in the estimate of the compensation and damages. Compensation is not to be estimated simply with reference to the value of the land to the owner in the condition in which he has maintained it, but with reference to what its present value is in view of the uses to which it is reasonably capable of being put." And cases there cited. In Harrison v. Young, 9 Ga. 359, it is held: "The value of land taken for public use is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated." In Boom Co. v. Patterson, 98 U. S. 403, it is held: "In determining the value of lands appropriated for public purposes, the same considerations are to be regarded as in a sale between private parties, the inquiry in such cases being, what, from their availability for valuable uses, are they worth in the market." And it is there further held: ' 'As a general rule, compensation to the owner, is to be estimated by reference to the uses for which the appropriated lands are suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future." In that case the court adopts the language of the supreme court of New York in the matter of "The Furman Street" (17 Wend. 669) where it is said the proper inquiry was, "What is the value of the property for the most advantageous uses to which it may be applied." In Matter v. Railway Co., 23 Pacific 265 (Cal.) the court says: "In arriving at the value of the land, all its capabilities, all the uses to which it is adapted, should be taken into consideration. These capabilities are estimated by a purchaser, and we cannot see why evidence in regard to them is not admissible. The same considerations are to be regarded as in a sale of land between private parties." Boom Co. v. Patterson, 98 U. S. 403. And in Reed v. Railway Co., 17 N. E. 807 (111.) it is held: "The price to be paid by a railway company for land taken under eminent domain is its value for any purpose for which it is shown by the evidence it is available, and not simply its value as land as it is at the time." Railway Co. v. Moore et al., 15 N. E. 764. A long line of decisions is cited to the same effect from the states of Illinois, Kentucky, Massachusetts,...