Simmons v. St. Paul & Chicago Ry. Co.

• Decision Date: 01 January 1873
• Parties: HAMILTON F. SIMMONS v. ST. PAUL & CHICAGO RY. CO.
• Court: Minnesota Supreme Court

18 Minn. 168

HAMILTON F. SIMMONS

v. ST. PAUL & CHICAGO RY. CO.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Goodhue county, denying a new trial.

Phelps & Taber and Seagrove Smith, for appellant, cited:

W. Colvill and J. C. McClure, for respondent.

RIPLEY, C. J.

Respondent appealed to the district court of Goodhue county from an award of commissioners appraising the value of certain land of his, taken by defendant under its charter. The cause being upon the calendar for trial the defendant moved for a change of venue. Said motion was based upon the affidavit of D. M. Taber, its attorney of record, and the other affidavits hereinafter mentioned. Taber's affidavit states his belief that a fair trial of said action could not be had unless a change of venue was granted, and the place of trial changed to some other county than Goodhue, stating also his belief that a fair trial could not be had in either Dakota or Wabasha counties, and that Washington county was the nearest county to Goodhue in which a fair trial could be had. The affidavit states, in conclusion, that the defendant therefore prays that a change be had to some county "other than Goodhue, Dakota, or Wabasha," viz., to the nearest county in which a fair trial of said cause could be had.

The charter of the company provides that the clerk of the district court shall enter the appeal, as a case, upon the docket of said court, setting down the land-owner as plaintiff, and the company as defendant; and said court shall proceed to hear and determine such case in the same manner that other cases are heard and determined in said court. Ex. Sess. 1857, c. 1, § 13. It is to be governed, therefore, by the rules of practice in that court, unless the charter makes a different provision in any respect.

It provides in the same section that "either party shall be entitled to a change of venue for the trial of said cause on affidavit filed stating the belief of the affiant that a fair trial cannot otherwise be had; the change of venue shall be to the nearest county where a fair trial can be had." The affidavit of the party is not required. By analogy to proceedings by attachment, for publication of summons, etc., we think that an affidavit by some one on behalf of the party is contemplated. Indeed, the fact that one party is a corporation makes this construction necessary. The affidavit of the attorney of record is, of course, sufficient. The affidavit, and those of Danforth and Kemp, agents of the defendant, filed therewith, also state facts tending to prove that a fair trial could be had neither in Goodhue, Dakota, or Wabasha.

Plaintiff filed a great number of affidavits, stating facts which tended to prove that a fair trial could be had in Goodhue county. The motion was heard upon the affidavits and counter-affidavits and denied. The reason does not appear. The circumstances lead to the belief that the parties, and the court alike acted on the belief, that it had a discretion not to change the venue from Goodhue unless the proof satisfied it that a fair trial could not otherwise be had. If so, the refusal would seem to have been justified by the weight of evidence. But it is, of course, immaterial in this court why the motion was denied. It must appear affirmatively upon the record that said denial was error or we cannot interfere; and we do not think that the record shows this.

The appellant contends in this court that the district court had nothing to do with the question whether or not, in point of fact, a fair trial could be had in Goodhue county, if the affidavit of Taber, aforesaid, stated his belief that it could not. Whether the appellant is right in this construction of its charter, it is unnecessary to decide. Assuming that it is so, still the charter does not put upon the district court the duty of ascertaining for itself, upon the filing of the affidavit, which such nearest impartial county is. If, as a matter of practice, it is enough to move the court to change the venue to "the nearest county in which a fair trial can be had," it is certainly the duty of the moving party to furnish the court with proof, upon which it may act, as to which that county is. If this be not done, error cannot be assigned upon a refusal of the court to look up evidence for itself upon the point; and the defendant furnished no proof whatever.

All that Taber's affidavit contains on the point is a statement of his belief that Washington county is the nearest impartial county. The others do not state even that. They state a belief that said county is the nearest county where a fair trial can be had, which is easy of access; but this is wholly beside the question. Taber's belief, aforesaid, was therefore all that was offered to the district court upon this point. But, unless some statute provided otherwise, it could only be required to act on proof, not mere naked belief. It may be added that such belief was prima facie — an unreasonable one — Washington being separated from Goodhue, while nothing is alleged against Rice, Dodge, or Olmsted, by which the latter is actually in part bounded. The court could not change the place of trial till it knew to what county such change was to be made. The defendant's moving papers then, being insufficient to set the court in motion, it cannot complain that the court refused to move.

At the time of the trial, the defendant's road had been nearly all graded across plaintiff's farm. The defendant's charter (section 13) provides that the jury "shall assess the value of the lands so entered upon, taken, possessed, occupied, and used by said company, at the time when the same was entered upon and taken," etc.

The plaintiff's witnesses were respectively asked the following questions, the defendant's objections thereto that they were incompetent and irrelevant, and not the proper mode of ascertaining the value of the land taken, being overruled, viz.: "What was that farm worth at the time the railroad took possession of it? What was that farm worth at the time the railway entered upon it, deducting the strip taken from it by the railway company for its purposes?"

It is of no consequence in this case how far the value of the land taken, at the time of the taking, is that just compensation without which private property cannot be taken for public purposes. Hursh v. First Div. St. P. & P. R. R. 17 Minn. 439, (Gil. 417.) The scope of this appeal was but to secure a retrial of the same matter submitted to and passed upon by the commissioners. As to what the charter means by the "value of the land taken," the defendant "neither claims nor assumes" in this court (although it did claim in the district court) that the word "value" is to be confined to the value of the isolated strip taken, but that it comprehends all that is implied by compensation, as used in the constitution, and means the value of the strip taken, together with such additional value as thereto attaches by reason of its use in connection with adjacent land of the same owner. Upon this theory it is not perceived wherein the court below erred in overruling the objection aforesaid to said questions; for that must be taken to be that those questions were not the correct mode of ascertaining such just compensation aforesaid.

In this, however, the defendant is opposed to high authority, which, while agreeing with the defendant and its charter, as it here interprets it, that when the question of compensation is presented the only proper inquiry is what is the value of the land taken, is of opinion, nevertheless, that the proper way of finding that out is to inquire, what is it now fairly worth in the market, and what will it be worth after the improvement is made. In re William St. 19 Wend. 678, 690; 17 Wend. 649; Troy & B. Ry. v. Lee, 13 Barb. 169; Canandaigua Ry. v. Payne, 16 Barb. 273. "The value of the land taken to the owner * * * is most readily and fairly...