St. Louis, Iron Mountain & Southern Railway Co. v. theodore Maxfield Co.

• Decision Date: 28 February 1910
• Citation: 126 S.W. 83,94 Ark. 135
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. THEODORE MAXFIELD COMPANY
• Court: Arkansas Supreme Court

126 S.W. 83

94 Ark. 135

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. THEODORE MAXFIELD COMPANY

Supreme Court of Arkansas

February 28, 1910

Appeal from Independence Circuit Court; Charles Coffin, Judge affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, S.D. Campbell, and Jas. H Stevenson, for appellant.

1. The court did not properly instruct the jury as to the true measure of damages. 39 Ark. 167; 41 Id. 431; 2 Lewis, Em. Dom. §§ 686, 689, 693. And the judgment is excessive.

2. Testimony as to the selling price of other lands, not similarly situated, was improperly admitted.

Oldfield & Cole, for appellee.

1. The tract in question having been platted into lots and blocks, and the free use of the streets dedicated to the use of the public, it was in fact an addition to the city of Batesville. 77 Ark. 177; 77 Id. 221; 9 Am. & Eng. Enc. Law 57, 59; 13 Cyc. 455 et seq. And appellee was therefore entitled to recover upon the basis of its value for such purposes. 41 Ark. 202; 49 Id. 381; 59 Wis. 364; 83 S.W. 584; 30 N.E. 298; 25 A. 635; 70 N.W. 162; 54 N.W. 557; 94 P. 259, s. c. 15 L.R.A. (N.S.) 676; 98 U.S. 403. The jury were properly instructed, therefore, as to the true measure of damages. Art. 12, § 9, Constitution; Kirby's Dig., § 2953; 39 Ark. 167; 44 Id. 258.

2. The testimony as to the selling price of similar lands in the immediate neighborhood was admissible. 49 Ark. 381; 18 N.W. 328; 3 N.W. 42; 1 Wigmore, Evidence, § 463 and note.

OPINION

FRAUENTHAL, J.

This was an action instituted by the appellant, a railroad corporation, for the condemnation of a right-of-way over certain land owned by the appellee and for the assessment of the damages thereto. The sole question involved in the case is as to the amount of the damages which the appellee should recover. The appellee owned a tract of land adjacent to the city of Batesville, and in 1899 it laid same out into lots and blocks as an addition to said city with the purpose of having it regularly annexed to said city at some future time; but it has never been so annexed. In September, 1899, it filed for record in the recorder's office of the county a deed of assurance to which was attached a plat of said addition, on which were indicated the various lots and blocks and also streets, the free use of which was granted to the public by said deed. Sometime after this, and long before the institution of this condemnation proceeding, it sold four of said lots by reference to said plat. The entire tract was enclosed, and portions of it had been cultivated by the appellee up to the date of these proceedings. The right-of-way varied in width, but it extended substantially one hundred feet in width across the entire tract. It extended across the lower portion of four blocks of the land, as same is now laid out and designated on said plat. The appellee alleged that the appellant took and appropriated for its right-of-way 23 of the lots, as indicated on said plat, which were of the value of $ 2,875, and that the construction of the railroad depreciated the value of the remaining land to the extent of $ 2,500; and it asked for judgment for its damages in the sum of $ 5,375. The appellant made a deposit and tender of $ 1,000, which it claimed was a full and fair assessment of the damages. The cause was tried by a jury, who, in addition to hearing a number of witnesses as to the value of the land, viewed the same.

A verdict was returned in favor of appellee for $ 2,325; and from the judgment rendered thereon the railroad company prosecutes this appeal.

The measure of the compensation which an owner is entitled to recover from a railroad corporation, which takes a portion of his land under the right of eminent domain for the construction of its railroad, is the market value of the land actually taken and the depreciation of the market value of the remaining portion. The chief question involved in this case is whether or not, in determining the value of the land, the fact can be taken into consideration that the land is suitable for division into lots and blocks and an addition to the adjacent city; and whether or not the witnesses can take into consideration the value of such lots and blocks in arriving at their opinion as to the market value of the land. It is contended by the appellant that the land, although thus laid out on the plat in lots and blocks, was actually enclosed and cultivated as a farm; and while one or two streets had been opened up along the sides of the tract, the streets were not actually opened up through the tract, and the lots were not actually at the institution of the suit indicated on the land; and it urges that the value of the lots as laid out on the plat should not be considered in arriving at the value of the tract of land. But the measure of the damages which the owner is entitled to recover for property taken for public use or depreciated by such use is the market value of it. This market value is determined, not solely by the uses to which the property has been put or is put at the time of the condemnation proceeding, but by all the purposes to which it is adapted. It may not be used at the time for any purpose that is profitable, but the use to which it may reasonably and probably be put profitably must necessarily be taken into consideration in determining the market value of the land.

In the case of Little Rock & F. S. Ry. Co. v McGehee, 41 Ark. 202, this court quotes with approval the following language from the case of Boom Company v. Patterson, 98 U.S. 403, 25 L.Ed. 206: "In determining the value of land appropriated for public purposes the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses? * * As a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future." In speaking of the character of testimony that is admissible in arriving at the value of land taken under condemnation proceedings, this court in Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792, said: "As a general guide to the range which the testimony should be allowed to assume, we think it safe to say that the land owner should be allowed to state, and have his witnesses to state, every fact concerning the property which he would naturally be disposed to adduce in order to place it in an advantageous light, if he were attempting to negotiate a sale of it to a private individual." The land involved in this proceeding was adjacent to the city of Batesville, and was available as an addition to that city,...