Tyson Creek Railroad Co. v. Empire Mill Co.

• Decision Date: 03 July 1918
• Citation: 31 Idaho 580,174 P. 1004
• Parties: TYSON CREEK RAILROAD COMPANY, a Corporation, Respondent, v. EMPIRE MILL COMPANY, a Corporation, and WILLIAM CONNOLLY, Appellants
• Court: Idaho Supreme Court

174 P. 1004

31 Idaho 580

TYSON CREEK RAILROAD COMPANY, a Corporation, Respondent, v. EMPIRE MILL COMPANY, a Corporation, and WILLIAM CONNOLLY, Appellants

Supreme Court of Idaho

July 3, 1918

EMINENT DOMAIN-EVIDENCE - EXPERT TESTIMONY-TRIAL - INSTRUCTIONS-VIEW BY THE JURY-VALUE-DAMAGES-BENEFITS.

1. In an action for the condemnation of lands by a railroad company, it is not error to exclude from the evidence a permit to divert and appropriate waters for mining purposes upon the lands in question, issued by the state engineer to one not a party to the action, upon an application filed therefor after the issuance of the summons.

2. It is not error to allow an expert witness to testify as to the facts and assumptions upon which he arrived at his opinion which is admitted in evidence, where such assumptions are based upon his own investigation.

3. The market value of the property actually taken in a condemnation proceeding is the correct rule of ascertaining damage for the property taken in all cases where it is of such a nature that its market value can be determined.

[As to evidence of damages in condemnation proceedings, see note in 22 Am.St. 49.]

4. Even though an isolated instruction, considered alone, may be erroneous and misleading, where the instructions as a whole state the law correctly, no reversible error is committed.

5. Evidence of the discovery of mineral deposits upon lands sought to be condemned for railroad right of way after the issuance of summons is admissible for the purpose of enabling the jury to determine whether the market value of the land was affected thereby at the time of the issuance of the summons. In such cases it is not permissible to draw a distinction between actual value and market value for actual value must be held to mean actual market value.

6. Under Rev. Codes, sec. 5220, benefits which will specially and directly accrue to the portion of the land not sought to be condemned may be set off against the damages which will accrue to the portion not sought to be condemned, but not against the value of the portion of the land taken. Under this statute, increased transportation facilities are not special and direct benefits to the land not taken.

7. Benefits which may be set off against lands not sought to be condemned must be such as relate to the land and not to the owner.

8. The knowledge gained by the jury by means of a view of the premises involved does not supply a want of evidence and is not evidence upon which a verdict may be based, but it is to be applied in determining the weight and applicability of the evidence introduced at the trial.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. John M. Flynn, Judge.

Action to condemn right of way. Judgment for the plaintiff. Reversed.

Judgment reversed, with costs to appellants. Petition for rehearing denied.

C. W Beale and Chas. L. Heitman, for Appellants.

A water right owned by defendants and appurtenant to the land would add to the value of the land owned by and in the possession of appellants, and their damages would thereby be increased. (2 Lewis on Eminent Domain, sec. 480.)

Mere general and public benefits, or such benefits as result from the improvement to the public at large, cannot be charged to the owner of land which is taken for a public use. (10 Am. & Eng. Ency. of Law, 1177, citing cases.)

The jury should have been instructed that if they found from the evidence that appellants' lands had been specially and directly benefited, they should so find, and the difference between special and general benefits should have been clearly defined. (3 Brickwood-Sackett Instructions, sec. 3562; Beveridge v. Lewis, 137 Cal. 619, 92 Am. St. 188, 67 P. 1040, 70 P. 1083, 59 L. R. A. 581; Hilbourne v. Suffolk County, 120 Mass. 393, 21 Am. Rep. 522; St. Louis etc. R. R. Co. v. Continental Brick Co., 198 Mo. 698, 96 S.W. 1011; Chicago etc. Ry. Co. v. Wiebe, 25 Neb. 542, 41 N.W. 297; Guthrie etc. Ry. Co. v. Faulkner, 12 Okla. 532, 73 P. 290; Laflin v. Chicago etc. Ry. Co., 33 F. 415; Adden v. White Mountain R. R. Co., 55 N.H. 413, 20 Am. Rep. 220.)

The benefits to be considered were those to the land. (Bennett v. Woody, 137 Mo. 377, 38 S.W. 972.)

A view of the premises by the jury is not evidence. (2 Lewis on Eminent Domain, sec. 425, p. 937; Cram v. City of Chicago, 94 Ill.App. 199; Vane v. City of Evanston, 150 Ill. 616, 37 N.E. 901; Rich v. City of Chicago, 187 Ill. 396, 58 N.E. 306.)

W. F. McNaughton, for Respondent.

The court's instruction No. 2 is in direct accordance with the provision of sec. 5220, Rev. Codes, regarding the measure of damages and compensation, and in accordance with the opinion of the court as to the measure of damages in the case of Idaho Western Ry. Co. v. Columbia Conference etc., 20 Idaho 568, 119 P. 60, 38 L. R. A., N. S., 497.

The fourth and fifth instructions are in direct accordance with the law of this state as announced in the Rawson-Works Lumber Co. v. Richardson, 26 Idaho 37, 46, 141 P. 74.

The jury should consider any special benefit to the timber and these timber lands which they find resulting from this road running directly through them. An instruction to disregard any benefits that might accrue to these lands specially or otherwise by virtue of transportation afforded would clearly have been erroneous under our code provisions and the testimony in this case. (Colorado Cent. R. Co. v. Humphrey, 16 Colo. 34, 26 P. 165; St. Louis, O. H. & C. Ry. Co. v. Fowler, 142 Mo. 670, 44 S.W. 771; Chicago, S. F. & C. Ry. Co. v. McGrew, 104 Mo. 282, 15 S.W. 931.)

RICE, J. Morgan, J., concurs. Budge, C. J., sat at the hearing but took no part in the opinion.

OPINION

RICE, J.

The Tyson Creek Railroad Company instituted this proceeding against the Empire Mill Company, a corporation, and William Connolly, for the purpose of condemning certain portions of their property for right of way for a railroad, and to determine the value of the land sought to be taken, as well as damages and benefits to that portion of the property not taken. The two cases were consolidated and tried as one to a jury. The jury by its verdict found the value of each tract of land sought to be taken for the right of way, and also damages accruing to that portion of the land of each of the defendants not sought to be condemned, as well as the amount which the land not sought to be condemned will be specially and directly benefited by the construction of the proposed railroad.

The first assignment of error is that the court erred in sustaining the objection of respondent to the introduction in evidence of Appellant's Exhibit "T." It appears that this exhibit was a permit issued by the state engineer to appropriate and divert waters for mining purposes upon the lands in question. It appears further that the permit was not issued to any party to the action, but was issued to Lawrence Connolly upon an application therefor filed with the state engineer on April 5, 1916. The summons in the Empire Mill Company's case was issued February 15, 1915, and the summons in the Connolly case was issued June 14, 1915.

Sec. 5221, Rev. Codes, provides as follows:

"For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken, but injuriously affected, in all cases where such damages are allowed, as provided in the last section. No improvements put upon the property, subsequent to the date of the service of summons, shall be included in the assessment of compensation or damages."

The issuance of this permit by the state engineer could not have had any bearing upon any feature of this case, and it was not error to exclude the exhibit.

The action of the court in overruling motion of appellant to strike out the following testimony of witness Burbridge is assigned as error:

"A. Assuming that this hole would be the same as the others which we did examine and could reach the bottom of and then if this gold had all been found in the six inches of gravel next to the bedrock as shown in the other pits, and Pit No. 3 is fourteen feet deep, then these values that we arrived at by computing this amount of gold by the number of pans usually estimated to the yard, we should have a value of about two cents per cubic yard."

The witness was an expert and outlined in his answer the results of his own observations by which he arrived at his conclusions. In this connection appellants cite Alameda Mining Co. v. Success Mining Co., 29 Idaho 618, 161 P. 862, but the discussion in that case was directed to the weight of the evidence and not to its admissibility.

The following instruction is assigned as error:

"You are further instructed that the presence of placer gold upon this land of itself would not warrant you in allowing damages therefor, but such gold must exist in such quantities and be in such condition as to be capably and feasibly mined so that it could and would increase the market value of that property at the time of the commencement of this action; but regardless of whether there is gold in this property, the whole question is to be finally determined by you upon the one question as to the market value of this land at the time of the commencement of this action."

It is claimed that this instruction is faulty in that it does not discriminate between the market value of the tract actually sought to be appropriated and the damages to the remainder of the land not taken. In other portions of the charge the court instructed the jury that in arriving at...