Weyer v. Chi., W. & N. R. Co.

• Decision Date: 01 February 1887
• Citation: 68 Wis. 180,31 N.W. 710
• Court: Wisconsin Supreme Court
• Parties: WEYER v. CHICAGO, W. & N. R. CO.

68 Wis. 180

31 N.W. 710

WEYER

v.CHICAGO, W. & N. R. CO.

Supreme Court of Wisconsin.

February 1, 1887.

Proceedings instituted by the defendant railroad company for the condemnation of a strip of land 100 feet wide, comprising 3.48 acres, across a tract of land which the plaintiff claimed to own. Commissioners of appraisal awarded the plaintiff and all persons interested the sum of $300 as compensation for the value of the land taken, and for damages sustained by the owner by reason of such taking, which sum was paid into court. From this award appeal was taken to the circuit court of Washington county, where judgment was rendered in favor of plaintiff for $858.88, from which judgment defendant appeals.P. & T. O'Meara, for respondent.

Howard Morris, for appellant.

COLE, C. J.

The errors assigned in this case are to certain portions of the charge, and to the refusal of the court to give an instruction.

First. It is claimed that the court erroneously instructed as to the measure of damages. The court submitted two questions to the jury: “(1) What was the fair market value of the 3 1/2 acres, in round numbers, actually taken by the railroad? (2) what was the damage to the balance of the plaintiff's farm by the construction of the defendant's road through said farm?” The learned circuit judge made some pertinent remarks in regard to the first question which were applicable to the evidence, and to which no exception was taken In respect to the second question the learned judge said: “In determining that question, you are to take into consideration all the circumstances surrounding the case,--the location of the farm, the manner in which the road runs through it,--and you are to take into consideration, also, the inconvenience, trouble, and dangers, if there are any of these things, in working that farm in consequence of the road running through it. You are to take into consideration, also, whether this spring spoken of has been affected, or whether it has made it more difficult for the party to have access to it. You are to take into consideration the proximity of this road to the house and other buildings of the plaintiff; the smoke, noise, danger and inconvenience in working this farm, if any.” This last clause is the one excepted to as being erroneous. It is objected that in this clause the court directed the jury that damages might be assessed for smoke, noise, the danger and inconvenience of working the farm; that these things of themselves constituted a proper basis for damage. But we do not so understand the charge, nor do we think the jury could have so understood it. But, in determining the question as to the actual depreciation of the market value of the balance of the farm resulting from the construction of the road through it, these things were proper to be considered, because they had some bearing on the main fact to be established. They could likewise be taken into account as means for weighing the opinions of the witnesses who had testified as to the depreciation. On cross-examination the witnesses were generally asked the grounds or reasons for placing the...