Wichita & W. R. Co. v. Kuhn

• Citation: 17 P. 322,38 Kan. 675
• Court: United States State Supreme Court of Kansas
• Decision Date: 10 March 1888
• Parties: THE WICHITA & WESTERN RAILROAD COMPANY v. BARBARA KUHN

17 P. 322

38 Kan. 675

THE WICHITA & WESTERN RAILROAD COMPANY v. BARBARA KUHN

Supreme Court of Kansas

March 10, 1888

Error to district court, Reno county; L. HOUK, Judge.

Motion for Rehearing.

THE case is stated in W. & W. Rld. Co. v. Kuhn, ante, p. 104 et seq. The opinion herein was filed at the session of the court in March, 1888.

Judgment reversed and cause remanded for a new trial.

Geo. R Peck, A. A. Hurd, and Houston & Bentley, for plaintiff in error;

John R Parsons, for defendant in error.

OPINION

Per Curiam:

On December 10, 1887, this case was decided, and the judgment of the court below was to some extent modified. (W. & W. Rld. Co. v. Kuhn, ante, p. 104; same case, 16 P. 75.) Immediately thereafter the plaintiff in error, defendant below, moved for a rehearing upon the ground that the court below erred in the admission of evidence, and that this court misconstrued such evidence. After a reexamination of the case, we are inclined to think that the plaintiff in error is correct. Among the evidence complained of is the following: The plaintiff below introduced the deposition of Rufus J. Razey, which deposition contains the following question and answer, to wit:

"Ques.: How much less, in your opinion, is this farm worth after the railroad company had established its track through it, irrespective of any benefits from any improvements proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences and damages, present and prospective, which may reasonably be expected or shown to exist from the maintaining of said railroad track, to be continued permanently? Ans.: About $ 2,100."

This question and answer the court below permitted to be introduced over the objection and the exception of the defendant below. The court below certainly should not have permitted this evidence to be introduced. It involved substantially everything that the jury were called upon to determine; and left nothing for the jury to decide. It invaded the province of the jury. It really amounted to letting the witness himself determine by his own opinion what the plaintiff's damages were, and the amount which the plaintiff should recover in the action. It had no reference particularly to the market value of the land either before or after the right-of-way was taken; nor any reference to any specific fact which might tend to show what such market value was, or to increase or diminish the same; but it involved all these things and a great deal more. Upon the questions involved in this case we would refer generally to the following authorities: 3 Suth. Dam. ch. 16; Union Rld. Co. v. Moore, 5 Am. & Eng. Rld. Cases 352, note, and cases there cited; McReynolds v. B. & O. Rly. Co., 14 id. 175, note, and cases there cited; Neilson v. Chicago &c. Rly. Co., 14 id. 244, note, and cases there cited; Grafton & Greenbrier Rld. Co. v. Foreman, 20 id. 225, note, and cases there cited. We shall also refer to some other authorities. Where the whole of the owner's land is taken in condemnation proceedings, the measure of his damages is the actual value of his land; but where only a portion of his land is taken, as in this case, the measure of his damages is generally the difference in the value of the land before it was taken and afterward. This rule, though generally correct, is not always so in Kansas, for in Kansas, where the land of another is taken by a corporation for a right-of-way, the damages recoverable under § 4 of article 12 of the constitution, can never be less than the actual value of the property taken. That section reads as follows:

"SEC. 4. No right-of-way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation."

The above question is objectionable for several reasons: It has no particular reference to values or to specific facts, but in effect calls for an opinion of the witness as to what the final determination upon all the facts should be. It is simply permitting the witness to answer what only the jury can properly answer. This cannot be allowed. A witness should not even be allowed to state his opinion with reference to the damages to be recovered. (Roberts v. The Comm'rs of...