Railway v. Combs

• Decision Date: 13 April 1889
• Citation: 11 S.W. 418,51 Ark. 324
• Parties: RAILWAY v. COMBS
• Court: Arkansas Supreme Court

11 S.W. 418

51 Ark. 324

RAILWAY v. COMBS

Supreme Court of Arkansas

April 13, 1889

APPEAL from Washington Circuit Court, J. M. PITTMAN, Judge.

Affirm.

B. R Davidson and E. D. Kenna, for appellant.

1. The damages were excessive. The verdict is evidently based upon the evidence of witnesses who based their opinions upon fanciful and purely speculative damages, and not upon the difference in the market value before and after the taking.

2. "Liability to frighten teams or stock" is not an element of damage to be considered. 41 Ark. 435; Mills Em Dom., sec. 166; 103 Mass. 7; 24 Kas., 745; 14 A. & E. R cases, 172; Ib., 198-202.

The opinions of witnesses not admissible. The extent of damage is to be proven by facts, and estimated by the jury. 49 Ind. 493; 35 Id., 54; 36 Ia. 323; 42 Ala. 83; 14 A. & E. R. cases, 184; 23 Wend. 430; 4 R.I. 221; 10 Ind. 120; 20 Wis. 262.

3. Where an assessment of damages precedes the building of a railroad, the presumption is that it will be built with skill and properly constructed. 44 Ark. 262; 20 Gratt., 355; 4 Foster (N. H.,) 179; 52 Me. 208; 30 Vt. 610; 14 A. & E. R. cases, 239.

It was error to assume that the fee in the strip of land was taken. Mansf. Dig., secs. 54-63; 22 Kas., 285; Mills Em., Dom., secs. 56-57; 23 Conn. 100.

4. The judgment should be reversed for misconduct of appellee's counsel in offering to prove an offer of compromise. Mansf. Dig., secs. 5215, 5221; 44 Ark. 107; Hayne New Trial, sec. 26; 41 N.H. 317, 325; 66 Me. 564; 11 Ga. 633; 10 Ib., 522; 44 Wis. 282; 61 Ia. 559; 19 Mo. App., 134; 36 Oh. St., 201.

J. D. Walker, for appellee.

The elements of damage proved were competent. 41 Ark. 435. No injury occurred to appellant by the offer to prove the offer of compromise. The court excluded it, and the jury did not consider it. The verdict is within the evidence. The law was fully and clearly charged, and no errors appear to the damage of appellant and the judgment should be affirmed.

OPINION

COCKRILL, C. J.

This is an appeal from a judgment awarding damages assessed by a jury as compensation to a land-owner in a statutory proceeding instituted by the railway for condemnation of a right of way. The road had been constructed diagonally across the cultivated lands of Combs' farm. The questions raised by the company's appeal relate mainly to the measure of damages.

The court's charge definitely confined the jury to the consideration of the difference in value of the tract through which the right of way was condemned before and after the construction of the road, in accordance with the ruling in Railway v. Anderson, 39 Ark. 167. As elements which might be considered as disadvantages impairing the value of the remaining property, the charge recites, "the frightening of teams, but not of loose stock;" and the danger of injuries to stock, or in lieu thereof the cost of fencing made necessary by the construction of the road. This part of the charge was limited by a direction to the jury to consider nothing as an element of damage except as it was peculiar to the defendant's land.

On cross-examination, witnesses who had given opinions as to the amount of the depreciation of the value of the farm, stated that the frightening of teams in farm use and the danger to stock on the farm, entered into their calculation; and that part of the charge to which attention is directed, is based upon that testimony.

In the case of the Railway v. Allen, 41 Ark. 431, it was held that the exposure of a dwelling to fire by close proximity to a railroad; the annoyance from the sounding of whistles and bells and the running of trains, as well as the increased danger to members of the family and live stock, were elements of damage to be considered in a condemnation proceeding, because they tended to diminish the vendible value of property. In so far as the railway enhances the danger to live stock upon a farm, to that extent may it be said to conduce to depreciate the value of the land for farming purposes, and for that reason it has a direct bearing upon the fact to be established by the condemnation proceedings--that is the injury to the land or what is the same thing, its depreciation in value by the construction of the road. The frightening of items employed in the use of the land has the same tendency, and although its influence upon the value cannot be considered great, it is not too remote to be taken into account in ascertaining the extent of the injury. Railway v. Hill, 56 Pa. 460; Snyder v. Railway, 25 Wis. 60; Weyer v. Ry., 68 Ill. 180; 2 Wood's Railway Law, sec. 257, p. 919; 1 Hare's Const. Law, pp. 351-2.

The inconvenience in such cases is not such as is common to the community in general, but is in the nature of an interruption of the business to which the land is appropriated.

II. On cross-examination, one of the witnesses based his estimate of damages to the land in part upon the fact that pools of water had been allowed accumulate on the right of way in excavations made in constructing the road-bed, which he thought would produce sickness. The ditching for the road-bed had not been completed when the damages were assessed, and the company urges that the court erred in refusing to instruct the jury that they should indulge the presumption that the road-bed would be properly drained when completed. But the appellant was not injured by the refusal, for the court charged the jury that they should consider no element of damages to the land except such as was specified in the charge; and the supposed damage from the pools was not included in the elements enumerated for the jury's consideration.

III. It is argued that the land-owner should not be allowed the full value of the land actually taken for the right of way because the company acquires not the fee, but an easement only. But the theory of the condemnation is that the easement is to be a perpetual right, and the determination of all the previous cases in this State has been based upon the idea that there must be compensation in the full value of the land actually condemned. The company has the right to the exclusive occupancy of the land condemned when it is necessary to the proper operation of the road, and the presumption is that it needs and intends to use all...