Webber v. Eastern Railroad

Shaw, C. J. This case comes before this court by excep tions to the decision of the court of common pleas, in accepting the verdict of a jury, allowing damages to the petitioner, occasioned by taking his land in Beverly, for the construction of the eastern railroad. The objection of the company to the verdict Is founded on exceptions taken to the decision and directions of the sheriff, on the assessment of damages, which appear by a [149] bill of exceptions allowed by the sheriff, and returned with the verdict. 1. The respondents excepted to the testimony of John W. Proctor, called as a witness by the petitioner, on several grounds. One was, that he was called to give his opinion upon the question, whether the proximity of a railroad would be likely to increase the rate of premium of insurance against fire, when it lid not appear that his acquaintance with the subject was such, as would warrant him to give his opinion in evidence. It is true that in answer to a cross interrogatory, Mr. Proctor answered that he did not profess to be an expert. But his statement of his experience and. means of knowledge, in estimating the risks against fire, from his long having been secretary of a fire insurance office, and having been charged with the duty of examining buildings, and taking .into consideration all circumstances bearing upon the risk and the rate of premium, rendered him, we think, quite competent to give his opinion as evidence to the jury upon that subject. As to what other directors said, it would not be competent evidence, had the question been asked and objected to, and al lowed by the sheriff; being merely hearsay. But if it came out unasked, as it apparently did, and no request was made to the sheriff to direct the jury to disregard it, this is no sufficient ground for a new trial. But taking the statement from the bill of exceptions, it appears to us that the testimony was to an act, rather than a declaration. If an application was made in a case similar to that of the petitioner, and was in fact rejected, on account of the increased risk, that was an act and not a declaration, and was competent evidence to show that the proximity of a railroad to a building increases the fire risk. 2. The second exception was, that the petitioner offered an estimate of damages by a committee of the town of Beverly, made at the request of the agent of the Respondents, in which the damage to the petitioner’s estate, with a number of others, was set down, with a view to enable them to form a just comparison of the cost of the route first proposed, and of another proposed to be substituted. This estimate, though objected to by the company, was admitted. [150] This paper has been submitted to us with the exceptions. It purports to be the copy of an estimate, made by a committee of Beverly, of the damages to estates on the routes above and below Essex Bridge. It purports to be signed by Josiah Lovett, and to have been presented to Mr. Chase, one of the executive committee pf the railroad company. On the route above the bridge, the item relied on is as follows. “ John P. Webber & son, lowest he will take $4000.” The court are of opinion that this was not competent evidence, and ought not to have been admitted. It was not made in pursuance of any legal commission or authority, was not under oath, and bears no character of official authority. It is said to have been made at the request of the company; but that does not make it evidence against them. Besides, so far as it affects the estate now in question, it does not appear to express the judgment or opinion of the committee upon the actual value of the estate, or the damages which the railroad would occasion ; but only the sum demanded by Mr. Webber, as the lowest he would take. And we are of opinion that it was not merely irrelevant and Immaterial, but was calculated to have an influence upon the minds of the jury. It does not appear upon what grounds this estimate was made. It does not purport to be an exact or just appraisement. It might be intended to induce the agents of the company or ihe legislature to adopt one route in preference to another, and may have been made by interested persons. In every view we have been able to take of it, it appears to us to be irrelevant and incompetent evidence, and therefore, upon this ground, that the verdict ought to be set aside, and a new trial granted. 3. It was also objected by the respondents, that the sheriff instructed the jury in reference to the quantity of land taken, and as applicable to the title deeds of the petitioner, that a deed bounding a grantee by a highway without any admeasurement of lines, carries him to the centre of the way. This direction is so general and abstract in its terms, that it is difficult to express an opinion on its correctness, without much qualification. It is undoubtedly true, that when a highway or town way is laid over [151] the land of an individual, the public acquire a perpetual easement over the land, for all purposes to which a right of way is applicable, but the owner retains his fee in the soil under the way. He may therefore convey the adjoining land without the soil undei the highway, or the soil under the highway witnout the adjacent land, or both together. If the land under the way passes by a deed of the adjacent land, it passes as parcel, and not as appurtenant. It is a question of construction, therefore, in each particular case, and depends, as in all other cases, upon the intent of the parties, as expressed in the descriptive part of the deed, explained and illustrated by all the other parts of the conveyance, and by the localities and subject matter to which it applies. In the present case, it does not appear, by the bill of exceptions, what was the particular description in the deed referred to, whether the way was a highway, town way or private way ; whether the grantor owned the soil under the highway, or how, or when, or in what mode, the way was laid out; all which circumstances might have more or less bearing upon the question of construction. It does not appear whether the way in question had been discontinued or not, before laying out the railroad ; whether the railroad was laid over the way, so that one species of public easement was added to another, or superseded the other ; which might be important circumstances, in considering the subject with a view to damages, as it was considered in the present case. We have thought it less important to give an opinion upon this abstract question stated in the exceptions, as the verdict must be set aside on the other ground; because, if the way had not been discontinued, if the owner o' the land had ever been allowed damages for taking his land for a public easement, and the laying out of the railroad was merely superadding one public easement to another, or substituting one public easement for another, it would practically make very little difference in the assessment of damages. The right of the public to the easement being perpetual, and going to such use of the land, as supersedes the use of the owner to any beneficial or practical purpose, unless in the extraordinary case of a mine, or spring, or auarry under the way, the value of the dormant [152] fee depending upon a very remote and improbable contingency, its value is too small to have much influence in the assessment of damages. Considering it thus unimportant, and depending upon many facts and circumstances not mentioned in the bill of exceptions, and supposing it quite probable that the question will not again arise, we have not thought it expedient to ex¡ ress ary opinion upon this point. Verdict set aside, and the result to be certified to the county commissioners, with directions to issue a new warrant, for the assessment .of the petitioner’s damages.