St. Louis

• Decision Date: 07 January 1888
• Citation: 16 P. 695,38 Kan. 307
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS, KANSAS & ARIZONA RAILWAY COMPANY v. CHARLES W. CHAPMAN

16 P. 695

38 Kan. 307

THE ST. LOUIS, KANSAS & ARIZONA RAILWAY COMPANY v. CHARLES W. CHAPMAN

Supreme Court of Kansas

January 7, 1888

Error from Anderson District Court.

ON August 26, 1879, the St. Louis, Kansas & Arizona Railway Company, by commissioners duly appointed, condemned fifty lots, and thirty feet of one other lot, all in Chapman's addition to the city of Garnett, as a right-of-way for said company, and assessed the damages at $ 227; from which appraisement plaintiff Chapman appealed to the district court. Trial at the September Term, 1885. The jury assessed the value of the land taken at $ 1,500, and the damages sustained by the plaintiff to his other adjacent land at $ 2,900, and allowed interest, $ 1,860.10, from the time of the taking until the trial. While the motion of the defendant for a new trial was pending, the plaintiff remitted from the verdict the whole of said sum of $ 2,900, allowed for damages to his land other than that taken, together with the interest thereon, leaving the verdict to stand for $ 1,500, the value of his lots taken, with interest thereon at the rate of seven per cent. per annum from the time of taking until the time of verdict, September 18, 1885, being, principal and interest, $ 2,136.30. Judgment was rendered for $ 1,500 and interest. The Railway Company brings the case here for review.

Judgment affirmed.

W. A Johnson, for plaintiff in error.

A Bergen, and L. K. Kirk, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

The errors complained of are, that the witnesses who were permitted to testify as to the value of the lots appropriated were not competent to testify; and second, that the court erred in its instructions to the jury in relation to the question of value and rule of damages. The objection to the competency of the witnesses by the defendant below arose not from want of a general knowledge of values in the community by the witnesses, or even of a knowledge in a general way of the value of the lots appropriated, but because of the fact that the witnesses showed that they were not acquainted with the market value of the lots at the time they were appropriated, for the reason that there was at that time no market value on the lots. Counsel insists that the rule of damages is the market value of the lots at the time they were taken. This is true where the property taken has a market value. This then presents the question, can the value of property be shown in absence of a market value? It was shown by the witnesses that they were residents of the city of Garnett, and that this addition adjoined and was part of the city; that they had resided in Garnett for a number of years, and were well acquainted with the property in controversy, and acquainted with the general values of lands at Garnett and in that vicinity at the time this land was appropriated, and a number of them testified that for a number of years prior to and at the time of this suit they were engaged in the land business, and were dealing in real estate in that vicinity; that this property at the time it was appropriated had no market value; that they arrived at the value of lots from a comparison with the value of other lots and sales made in Garnett, and also from sales of lots made in Garnett, and also from sales of lots made in this addition before and after the land was appropriated, and from their general knowledge of the values of property. There was however, a special objection made to the competency of the defendant in error as a witness. He showed that he had never resided in Kansas; that he had owned this land, known as the Chapman addition, since 1867, and had been well acquainted with it since that time; that he platted the land and fixed the prices of the lots; that he had sold some thirty or forty lots in said addition at the prices so fixed by him; that he was acquainted with the values of land and city property in and about Garnett at the time these lots were appropriated by the railway company; that he did not know of any market value for the lots at the time they were appropriated. Upon this foundation he was permitted to testify to the value of the lots so taken. In this we see no error. The fact that there was no market value of the lots in defendant's addition would not warrant the railway company in...