Miller v. Windsor Water Co.

Opinion by Mr. Justice Sterrett, ' This proceeding, in the court below, was for the purpose of determining the compensation to which plaintiff is justly entitled for property taken, injured or destroyed by the company defendant in the exercise of the powers conferred by its charter. As declared in its bond filed in court, the intention of the company was “ to permanently appropriate to its use the waters of a stream, creek or rivulet, .... which it has selected for the purpose of introducing into the borough of Hamburg a supply of water, as well as to appropriate property upon which to erect a reservoir, catch-basin, water-mains, etc., and to lay a line of water-pipe or main, reaching from said reservoir, etc., and has surveyed, located and determined upon a course or route for the introduction of said water supply, the erection of a reservoir, catch-basin, distributing-basin, water-main, etc., and the appropriation of said stream, creek or rivulet, running through the property of said George S. Miller and others, and supplying his grist and sawmill with the water wherewith the same was run and operated,” etc. Following the language of the bond, the plaintiff, in his petition for the appointment of viewers to assess damages, avers, inter alia, “ that the Windsor Water Co. has appropriated permanently to its use the water of said stream or creek, which has its natural course and channel through the tract of land of your petitioner, and diverted it from its natural channel,” etc. From the report of the viewers appointed in pursuance of this petition, both parties appealed, and the issue was tried by the jury. On the trial two points for charge were presented by the defendant : “ 1. The measure of damages is the difference in value of the whole property before and after the improvement, that is, before and after the taking and appropriation of the stream in question. The rule is, to inquire what would the entire property, unaffected by the appropriation, have sold for at the time of the appropriation; what would it have sold for as affected by the appropriation; the difference is the true measure of compensation. “ 2. The estimates of plaintiff’s witnesses, as to the value of his property, based upon the profits he was making, or the state of his business, or into which such profits or the state of his business entered as an element, must be disregarded by the [439] jury, and therefore the testimony of the witnesses who testified in that way upon the subject of damages could not be regarded by the jury in making up their verdict.” The first point was affirmed without any qualification, and thus the defendant had the full benefit of his own rule as to the measure of damages. The second point was answered thus : “ The jury must consider the question of damages without reference to the person of the owner or the actual state of profits of his business. The test is not what he makes, but what is the market value of the land. As to the market value of the land, the jury will disregard any estimate founded wholly upon those considerations, and they will disregard all estimates in so far as they may have entered into them. But the jury may consider the use to which a property may be put, and if that property, by reason of its location or the use to which it is put, may be worth more for that particular use than any other, its market value would be governed accordingly.” This answer is the subject of complaint of the 5th specification ; and it may as well be disposed of now, by saying that it is quite as favorable to the defendant as it should have been. Indeed, the charge, as a whole, is a very clear and adequate presentation of the questions involved in the issue. If the jury were mistaken as to the principles of law governing the case, or as to their proper application to the facts established by the evidence, it was not the fault of the court. There appears to be no error in the answer to defendant’s second point, or in any other portion of the charge. The 1st specification charges error in excluding defendant’s offer to show the assessment of plaintiff’s property for taxation in 1882 as some evidence of its market value in 1890, when it was appropriated by defendant. The bare statement of the proposition is strongly persuasive, if not conclusive, of its want of merit. At best, such assessments or valuations are a very unreliable measure of market value at the time they are made. As a general rule, they differ so widely from actual market values that no one ever thinks of accepting them as a measure by which to sell or buy. While in a few counties they are nearly up to the legal standard, in a large majority they are less than one half, and in others less than one third. Our at [440] tention was recently called to a modified form of assessor’s oath, in which that official, in ease of his conscience, obligated himself not to assess at more than thirty-three per cent of actual value. If the offer had been to prove a recent assessment of plaintiff’s property, it, doubtless, would have been entertained; but when, in addition to the unreliability of such assessments as a measure of value, the court was asked to receive evidence of one made eight years before the property in question was taken under the right of eminent domain, it is not at all surprising that the offer was rejected as too remote in point of time. There was no error in refusing to strike out the testimony of Albert K. Rentschler. Portions of it, at least, were unobjectionable. Moreover, the error is improperly assigned, in that it recites only a part of the witness’s testimony. As shown by the record, the motion was to strike out all, and not merely the portion of his testimony that is recited in the specification. If the court had been asked to strike out a specified portion of it, a different question would have been presented. But no such request was made. The court was asked “ to strike out the testimony of this witness; ” and that must be taken to mean the whole of his testimony. To have done that would have been error. The Bd specification is not sustained. There does not appear to have been any error in permitting the witness to answer the question recited in the specification. Nor was there any error in refusing defendant’s offer to prove matters specified in the 4th assignment, viz.: “ that since the water company is in operation, and since it has supplied the town of Hamburg, the property of plaintiff has had a sufficient supply of water to run the two mills, and to supply his family and his farm for all the purposes it had before,” etc. This was objected to as immaterial and irrelevant, not only because the act of 1874, under which the company was incorporated, contemplates only a single taking and one assessment of damages, but mainly on the ground that the pleadings in the case show a permanent appropriation of the entire stream. As we have already seen, the bond filed by the company recites its determination to permanently appropriate to its use the waters of the stream or creek flowing through plaintiff’s property [441] “ and supplying Ms grist and sawmill with water, wherewith the same were run and operated, together with the alleged easement or right on and along either side of said creek,” etc. There is nothing in the appropriation proceedings to show any reservation to plaintiff of any water-right or privilege whatever, nor any intention of the defendant to restrict its claim in any manner. On the contrary, the pleadings clearly show a permanent appropriation, with full power and authority to divert the stream from its ordinary channel, and use all the water in such manner and at such times as the company may see fit. The taking is absolute and unequivocal. The viewers were appointed to assess the plaintiff’s damages caused thereby; and the issue the jury was impaneled to try was precisely the same. The learned judge was therefore clearly right in holding that it is immaterial what waterworks the company may or may not have established. The pleadings show that it has taken and appropriated to its own use the entire stream; and hence the present or prospective capacity of the company’s works has nothing to do with the question. The court was clearly right in excluding the evidence. The case was tried with marked ability and care, and we find nothing in the record that would justify a reversal of the judgment. Judgment affirmed.