Winklemans v. Des Moines Northwestern R'Y Co.
| Decision Date | 17 October 1883 |
| Citation | 17 N.W. 82,62 Iowa 11 |
| Parties | WINKLEMANS v. THE DES MOINES NORTHWESTERN R'Y CO |
| Court | Iowa Supreme Court |
Appeal from Carroll Circuit Court.
THIS is a proceeding for the condemnation of a right of way for the defendant's railroad through the farm of the plaintiff. The sheriff's jury appraised the plaintiff's damages at $ 500. The plaintiff appealed, and a trial by jury was had in the circuit court, and the damages were assessed at $ 2,100. The defendant appeals.
AFFIRMED.
Parsons & Runnels, for appellant.
McDuffie & Howard and H. Potter, for appellee.
I.
The farm of the plaintiff is situated in Greene county. The appeal from the assessment of the sheriff's jury was taken to the October term, 1881, of the circuit court for that county. The parties appeared at that term and, upon the application of the defendant, the place of trial was changed to the circuit court of Carroll county. At the January term 1882, the cause was continued upon the application of the defendant. At the September term, 1882, and on the twenty-sixth day of that month, the cause was reached for trial in the regular course of the business of the term. The plaintiff appeared with his counsel, and, no one appearing for the defendant, a jury was impaneled to try the cause, and the plaintiff was examined as a witness, and the court adjourned until 9 o'clock, September 27, at which time the defendant's counsel appeared and filed a motion asking that the trial be set for some future day in the term not earlier than Friday of that week. In an affidavit filed with the motion, it was stated that it would be possible for the defendant, with great effort, to prepare for trial, if two days were allowed him therefor. The motion was overruled and on that day the trial of the cause proceeded until the evidence of the plaintiff was introduced, and, by agreement of parties, further proceedings were postponed until the morning of September 28. The trial was not resumed until the twenty-ninth of September. On that day a portion of the defendant's evidence was introduced, and on the thirtieth of September the taking of the evidence was concluded.
Counsel for defendant claim that the court erred in overruling the motion to set the cause down for trial at some future day of the term. The affidavit made by counsel in excuse for failure to appear when the cause was reached for trial is quite voluminous. It recites the fact that one member of the partnership of counsel for defendant was then, and had been, very dangerously sick. It also sets forth pressing business engagements of the other partner, his necessary attendance upon other courts, and his sickness, besides other grounds of excuse. We have not thought it necessary to set out this affidavit in full. We think that, in view of the time afterwards taken in the trial of the cause, and the postponement of it for one day without anything being done, the court did not err in overruling the motion. The motion was made and overruled on the twenty-seventh of September, and the cause was open for the examination of witnesses and the submission of evidence up to and including the thirtieth day of the same month. This delay gave ample time for defendant to produce its witnesses.
II. The farm of the plaintiff consists of 222 acres. The right of way upon which defendant's road was constructed passes through the farm in such a manner that two hundred acres are on one side of the railroad, and about twenty-two acres on the other side. The farm buildings are on the twenty-two acres, and the tillable land is mostly, if not all, on the two hundred acres: The plaintiff claimed upon the trial that he had a valuable spring upon the land appropriated for the right of way, which, in building the railroad, was entirely destroyed by placing an embankment several feet in height over the spring. He produced witnesses, who testified to the character of the spring, and to the fact that it was destroyed by the railroad embankment.
It is claimed that this was improper evidence, because the plaintiff could not enhance his damages by showing that the railroad was negligently or improperly constructed; and the destruction of the spring could not be shown as a separate item of damages.
We think the evidence was competent, and deem it sufficient to say that the plaintiff did not by the evidence seek to show that the road was improperly constructed. No witness was asked whether the embankment which destroyed the spring was necessary to the proper construction of the road. It will be presumed that it was necessary. And the plaintiff did not seek by the evidence to show the destruction of the spring as a separate item of damages.
III. Objection was made to certain questions propounded by the plaintiff to a witness named Jay, who was introduced for the purpose of showing the damages to the farm. The witness stated that he resided for two years upon what was known as the Parks farm, within half a mile of the farm in question. He was asked by plaintiff's counsel if the Parks farm had been sold. He answered that it had been sold; and in answer to a further question he stated that it had been sold for $ 35 per acre. It was objected that it was incompetent for the witness to give evidence of particular sales. We have no means of knowing the connection in which these questions were asked. If they were for the purpose of showing the witness' knowledge of the value of land in the neighborhood, they were competent.
IV. Another witness was interrogated as to the sale of the Parks farm, and answered that he knew of the sale by what Parks told him. The defendant moved to strike out this evidence because it was not responsive to the question, and because it was mere hearsay as to a single transaction, and the witness was not, therefore, competent to testify as to value.
These objections, we think, were properly overruled. The knowledge which qualifies a witness to testify as to values must necessarily consist largely of hearsay. The examination of market reports, and information acquired from others as to sales of property, qualify a witness to testify as to values. It appears in the examination of some of the witnesses that they did not consider the Parks farm as valuable as plaintiff's farm, and the abstract shows that the first mention of the Parks farm was made by a witness on his cross-examination by defendant's counsel. And this is not at all surprising. The usual rule in such cases is to call a witness and ask him generally if he has a knowledge of the value of the property in question, or property of that kind. If he answers that he has, he is allowed to state the value in his judgment, and on cross-examination his means of knowledge or qualification to testify upon the subject is particularly inquired into, if counsel desires to make such inquiry. If he shows upon the cross-examination that his knowledge of values is limited, his testimony is not for that reason to be stricken out, but it goes to the jury for what it is worth. These remarks apply to the testimony of the witnesses Head and Millett, as well as to the last above objection. We discover no error in any of these rulings. There was a sufficient showing that the witnesses had the requisite qualifications to testify as to value.
V. As has already been stated, the plaintiff was examined as a witness in his own behalf in the absence of defendant's counsel. The record shows that he had testified that his farm was worth $ 50 an acre before defendant's right of way was taken from it, and that after the road was located across it the farm was not worth more than half that amount. He also testified to the destruction of the spring, much...
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