Snow v. Boston & M.R.R.

• Decision Date: 13 September 1875
• Citation: 65 Me. 230
• Parties: CHARLES E. SNOW v. BOSTON AND MAINE RAILROAD.
• Court: Maine Supreme Court

65 Me. 230

CHARLES E. SNOW v. BOSTON AND MAINE RAILROAD.

Supreme Judicial Court of Maine.

September 13, 1875

1875.

ON EXCEPTIONS.

This was an appeal from the decision of the county commissioners relating to damages for land of Snow, taken for railroad purposes in North Berwick, brought to this court in accordance with Public Laws of 1873, c. 95. At the trial the plaintiff moved that the jury be permitted to view the premises, which motion the court denied.

The court excluded the opinion of the land owner as to the amount of damages sustained by him; allowed him to testify as to his opinion of the value of his whole lot before a portion was taken by the railroad, but excluded his opinion of the value of the remainder of the premises after a portion was so taken. The plaintiff introduced John Johnson, a municipal officer of North Berwick, who lived in the vicinity of the land taken, had bought and sold land in the vicinity, was acquainted with petitioner's land, and its value. He was allowed to give is opinion of the value of petitioner's whole lot before the taking, but his opinion of the value of that portion left after taking was excluded. The plaintiff excepted.

W J. Copeland, for the plaintiff.

G C. Yeaton, for the defendants.

DANFORTH J.

This is an appeal under the act of 1873, c. 95, relating to damages for land taken for railroad purposes, and comes before us upon exceptions to the ruling of the court at nisi prius.

The first objection is that the jury were not permitted to view the premises upon plaintiff's motion.

The act referred to is independent of and distinct from that found in R. S., c. 18, § 13. The appellant had his election to pursue his remedy under either, and he chose the former. By that no provision is made for a view by the jury, and if one is permissible, it rests in the discretion of the court to grant or refuse it. To the exercise of that discretion no exceptions will lie.

Upon the ruling excluding the testimony offered, we think the exceptions must be sustained. The owner of the land was not permitted " to give his opinion as to the amount of damages sustained by him," nor as to the value of the land left. The opinion of another witness, " acquainted with the petitioner's land and its value," as to the value of the portion left after the taking, was also excluded.

This testimony was excluded, not on the ground of any want of knowledge on the part of the witnesses of the property in question, but for the reason that such opinions were incompetent evidence.

The question at issue was the amount of damage to the petitioner's land by the location of the railroad. The difference in value before and after the location would be a valid test of that damage, and it would seem to be immaterial whether the testimony was admitted in this form or in answer to a direct question as to the amount of the damage. In either case it must come as an opinion, and in either case it is a question of value.

The real question then is, whether the opinion of a witness as to the value of property with which he is acquainted, or as to the amount of injury done to it, is proper evidence for the consideration of the jury. Such an opinion as to the value of the whole, is conceded to be admissible; why not, then, as to the part left? The reason for its exclusion, given by counsel, that it would instruct the jury as to the amount of the verdict to be rendered, would seem to be a very good reason for its admission. Instruction is what the jury want. They would not be bound by it, any more than by other testimony, but it would be more or less valuable in enabling them to come to a correct conclusion.

There appear to be two grounds upon which opinions are admissible in evidence. The first is the case of experts, where the knowledge upon which the opinion is founded relates to " questions of science, skill or trade, or others of the like kind," and...