Seattle & M. Ry. Co. v. Gilchrist

• Citation: 30 P. 738,4 Wash. 509
• Court: United States State Supreme Court of Washington
• Decision Date: 07 July 1892
• Parties: SEATTLE & M. RY. CO. v. GILCHRIST ET UX.

30 P. 738

4 Wash. 509

SEATTLE & M. RY. CO. v. GILCHRIST ET UX.

Supreme Court of Washington

July 7, 1892

Appeal from superior court, Snohomish county; JOHN R. WINN, Judge.

Condemnation proceeding by the Seattle & Montana Railway Company against John Gilchrist and wife. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Burke, Shepard & Woods, for appellant.

Craddock & Miller and Stratton, Lewis &amp Gilman, for respondents.

ANDERS C.J.

This was a statutory proceeding instituted by appellant to appropriate a strip of land 100 feet in width across the premises of the respondents for the purpose of a right of way for its railroad. The right of way sought to be appropriated passes diagonally over the eastern portion of respondents' land, separating it into two unequal parts and cutting off about 11 acres to the east of the right of way from the larger tract lying to the west, and contains something less than 2 acres. The land of respondents is nearly all improved, and is productive, agricultural land. It is nearly level, but slopes and drains towards the west, and the grade of the proposed railroad is about four feet above the natural surface of the ground. Upon the trial the jury assessed the damages of respondents at $1,025, for which sum judgment was duly entered by the court. The petitioner appeals.

At the trial the court, against the objection of the petitioner, permitted the respondents to introduce their evidence first, and to open and close the argument to the jury, and that action of the court is assigned as error. This question was involved in the case of Railroad Co. v. Murphine, 30 P. 720, (just decided by this court.) Following the recent decision of this court in the case of Railroad Co. v. Strand, Id. 144, we there held that, under the provisions of the statute and constitution of the state, the petitioner had the right to open and close in cases of this character, and we are not disposed to depart from the doctrine announced in those cases.

It is objected that the court refused to permit the witness Hanson to state his opinion as to the fair market value of respondents' land. This objection would be entitled to consideration if it had been shown that the witness was competent to give an opinion upon that question. But, as he had himself stated that he did not know the market value of land in that vicinity, it is difficult to perceive wherein the court erred. The objection is obviously not well taken.

Upon the trial one Cardinell, a witness for the petitioner, testified that he had sold land similar in character to that of the respondents, and in the same vicinity, at about the time of the filing of the petition in this proceeding. The witness also testified that the land was nearer to the town of Stanwood than that of the respondents, and that it was purchased for the purpose of being divided and platted into town lots. When asked the question, "How much did you sell that land for per acre?" an objection was interposed by counsel for respondents, on the ground that it was incompetent, irrelevant, and immaterial. The objection was sustained, and an exception allowed. That action of the court is assigned as error. Whether, in determining the market value of a particular tract of land, it is proper to allow proof of the sale of similar property, at or near the time of the taking, is a question upon which the authorities are not at all harmonious. The market value of land, or other property, is the price it will bring when offered for sale in the ordinary way. Knowledge of value is generally derived from actual sales. Why, then, is it not competent to show sales of similar property in the same neighborhood, when made at or near the same time? The reason usually assigned for holding such testimony inadmissible, that it raises collateral inquiries which the jury should not be called upon to consider, is, to our minds, unsatisfactory. No witness is competent to testify as to a particular sale who is not personally cognizant of the fact, and, this being so, the character and situation of the land, and all the circumstances surrounding the transaction, may be brought out on the examination of such witness, thus enabling the jury, without difficulty, to determine whether or not such sale should be considered a fair criterion of value. Upon principle we can perceive no valid reason for rejecting such testimony, and we think the preponderance of authority is also in favor of its competency. See Town of Cherokee v. Land Co., 52 Iowa, 279, 3 N.W. 42; Provision Co. v. Chicago, 111 Ill. 651; Gardner v. Brookline, 127 Mass. 358; Sawyer v. City of Boston, (Mass.) 11 N.E. 711; March v. Railway Co., 19 N.H. 372; Railway Co. v. Greely, 23 N.H. 237; Washburn v. Railroad Co., 59 Wis. 364, 18 N.W. 328; Roberts v. City of Boston, (Mass.) 21 N.E. 668; Hunt v. City of Boston, (Mass.) 25 N.E. 82.

The degree of similarity that must exist between the property sold and the property whose value is to be determined, as well as the nearest in respect to time and distance, are matters resting largely in the discretion of the trial judge. Lewis, Em. Dom. § 443; Watson v. Railway Co., 57 Wis. 332, 15 N.W. 468. But still that discretion will, in proper cases, be reviewed by the appellate court; and in this instance, but for the fact that appellant could not have been prejudiced by the exclusion of the testimony offered, we would be inclined to criticise the ruling of the court. The same witness testified that he knew the market value of the land in question, and stated its value to the jury, and there was therefore no occasion, so far, at least, as that witness was concerned, for resorting to proof of specific sales of similar property, and appellant was in no wise injured by the ruling of the court.

The ruling of the court rejecting the testimony of the witness Foster, as to what he testified was the value of McDonald's land adjoining that of the respondents, in a probate proceeding, in the same court, the day before, is not open to criticism. What the witness said or did on the day previous, and in another proceeding, was entirely immaterial. If he knew the market value of respondents' land, he could have so stated. If he did not know it, he was not competent to testify as to its value at all.

It is also objected that one of the respondents was permitted to state how much, in his opinion, the land would be depreciated in value on account of the appropriation of the right of way and the construction of the railroad. It is conceded by appellant that it is competent for a witness, if properly qualified, to state his opinion as to the value of the land before and after the appropriation; but it is contended that it is for the jury to say what the damages are, and not the witness. While there is undoubtedly a conflict of authority upon this question, it seems difficult to perceive any substantial reason for rejecting such testimony. To admit evidence of the value of the land before and after the taking is to admit, in effect, the same thing to be done which appellant complains of, since the amount of the damages is then ascertained by the jury by the mere process of subtraction. And, this being so, we are unable to understand why the witness should not be permitted to state the result, as well as the facts from which such result is reached. In either case, the amount of the damages is ultimately based on the opinion of the witness. The distinction here insisted on between the two methods is based on mere form, rather than substance. The facts upon which the witness bases his opinion may be shown on cross-examination and when this is done the jury have all the means which can be afforded for forming an independent judgment as to the damages. See Railroad Co. v. Kirby, 44 Ark. 103; Hayes v. Railroad Co., 54 Ill. 373; Spear v....