Selma, Rome & Dalton Railroad v. Redwine

Trippe, Judge. 1. In the argument of this case it was urged that certain testimony was illegally admitted. The reply was made that the record did not show that objection was made, to its admission, or that any exception Avas founded thereon, either in the bill of exceptions or in the motion for a neAV trial. And this is true. There is no reference to such a point, except that in the brief of the evidence there is a statement to that effect. This is not sufficient. The proper way to have raised the question Avas to have made the admission of the testimony claimed to be illegal a ground in the motion for a neAV trial, and to have verified it by the sanction of the judge, or to have set it forth in the bill of exceptions as one of the errors complained of. The bill of exceptions purports to set out specially every ruling of the court which was excepted to, and these are but recitals of the various grounds taken in the motion for a neAV trial. They cannot be enlarged by mere reference to a note made by counsel for plaintiff in error, in the brief of the testimony, although such a statement was in the brief when it was filed and when the motion was heard. 2. But from the judgment Ave render the point is of no-practical importance in this case, as we hold that for another1 reason the verdict, so far as it could have been affected by the testimony which is claimed to have been objected to, shall be corrected or a new trial had. The witnesses for the defendant474 in error gave the real value of the land taken by the railroad at $6 00 or $7 00 per acre, but in the form and for the purpose it was taken, they state it is worth to the balance of the land from $30 00 to $50 00 per acre.. Most of them say that it is worth as land only the comparatively small figures above stated, but they put the value expressed by the other figures upon it because it is taken out of the land in such a shape and for the purpose of using it for a railroad. These statements of the increased valuation are made in connection with others, showing the disadvantages which the balance of the land — the plantation, and the dwelling house, etc. — suffers by reason of the railroad running through the lot. This furnishes a very strong presumption that the raising the value from $7 00 to $50 00 per acre, was on account of the whole damage resulting to the lot of land by running the road through it, apd no other damage should have been allowed except what were specially stated and proved as further and additional damages. 3. We are satisfied that the value of the land appropriated by the road was founded on the basis above stated, and the damages should not have been increased by the opinion of the witnesses that the value of the land as taken, with the incidental advantages and disadvantages to the land by the road, make a sum greater than the proven estimates furnished by ■the same witnesses would amount to. It was these opinions of the witnesses which it is stated in the brief of the testimony were objected to. Whether the exception to the evidence was or was not properly shown, we do not think the testimony ■was sufficient, when considered in connection with the balance of it, to have authorized the jury to have gone beyond what .is above indicated as the true rule to have been adopted for ascertaining the damages. As will be presently seen we have directed this excess in the verdict to be remitted, or that a new trial be granted. 4. There was testimony that the orchard on the land was specially damaged $100 00, and it was proper to allow for this. The road was located and partly graded in 1859. The [475] intestate of defendant in error purchased the land in 1860 or 1861. Nothing further was done on the road until about 1870; the road was completed and the cars commenced running in the fall of that year. The writ for the assessment of damages ivas sued out in November, 1870. 5. Under this state of facts interest could not have been given for a period further back than the year 1870, which would make it about three years to the trial. If these seven acres be taken as the quantity of land used by the railroad, including the acre ruined by the water from an insufficient, culvex't, and $50 00 per acre be counted as the average proven value, estimated in connection with the general damage to the land, axxd $100 00 be added for the injury to the orchard, all this, with interest, will make about the sum of $460 00. 6. As the jury found a verdict for $680 00 it is directed that a' xxew trial be granted, unless the defendant in error do write from the verdict axxd judgment the sum of $220 00, and upon the same being done the judgment for the balance shall stand affirmed.