Wichita Falls & N.W. Ry. Co. v. Munsell

• Court: Oklahoma Supreme Court
• Writing for the Court: HAYES, C. J.
• Citation: Wichita Falls & N.W. Ry. Co. v. Munsell, 1913 OK 373, 132 P. 906, 38 Okla. 253 (Okla. 1913)
• Decision Date: 03 June 1913
• Docket Number: Case Number: 2579
• Parties: WICHITA FALLS & N.W. RY. CO. v. MUNSELL.

1913 OK 373

132 P. 906

38 Okla. 253

WICHITA FALLS & N.W. RY. CO. v. MUNSELL.

Case Number: 2579

Supreme Court of Oklahoma

Decided: June 3, 1913

Syllabus

¶0 1. EMINENT DOMAIN--Damages. Where a railroad, in condemning a right of way, cuts in two a tract of land, the fact that the operating of trains over the line of road and across the particular land increases the danger of fire to buildings and crops, and increases the danger to stock, are not matters which constitute independent elements of damage for which a specific award may be made; but such facts when proven, together with any other inconveniences or damages occasioned by the building and operating of the road, may be considered by the jury in determining the value of that part of the land not taken.

2.EVIDENCE--Damages--Competency of Witnesses. In an action for damages for the appropriation of a right of way of a railway through a farm of 160 acres, it is error to permit witnesses, who did not know the market value of the farm and had never seen same, to testify as to the amount the land was damaged by reason of the construction of the road.

3.EMINENT DOMAIN--Damages--Appeal--Evidence. On appeal from the board of appraisers to the district court in a condemnation proceeding, an award made by the board of appraisers is not competent evidence to go to the jury for the purpose of establishing the amount of damage to a farm resulting from the construction of the railway across it.

C. C. Huff, and Tisinger, Clay, Robinson & Hamilton, for plaintiff in error.

S. B. Garrett, for defendant in error.

HAYES, C. J.

¶1 Plaintiff in error originally brought this action in the court below against defendant in error for the purpose of condemning a right of way for its railway across a quarter section of land owned by defendant in error. The commissioners appointed by the court appraised the right of way and filed their report and award, whereupon plaintiff in error demanded a jury trial as to the award. The jury trial resulted in a verdict and judgment in favor of defendant in error for the sum of $ 1,650. To reverse that judgment and set aside the verdict upon which it is founded is the purpose of this proceeding. The evidence establishes that the land of defendant is practically level; that the railway enters it at one corner and passes out at the opposite corner; that it runs diagonally at an angle of about 30 to 40 degrees across the entire tract; that it divides the farm into two V-shaped divisions, and separates defendant's pasture land from his house and barn, and will require the driving of his stock backward and forward across the railway for the purpose of watering them. The following instruction was given by the trial court:

"In arriving at the amount of damages that the defendant has sustained, first, you will determine the value of the land taken by the plaintiff for its right of way; second, the injury or damages to the remaining portion of the land of the defendant by reason of the construction of the railroad and the depreciation of the land taken. In estimating the damages you may take into consideration the market value of the land taken at the time the same was taken, and, in determining the injury to the balance of the tract, you may consider the separation of the pasture, improvements, and water facilities, and their convenient connections, or inconveniences of crossing the railroad with farm machinery to farm separate tracts, the increased care and watchfulness necessary at all times while working in the immediate vicinity of the road with horses and farm implements, the anxiety and uneasiness and disturbance of that sense of safety and security to all members of the family while engaged in their

...