Texas & St. Louis Railway v. Kirby

CockrilTj, O. J. The railroad instituted proceedings under the statute to condemn the right of way through forty acres of land near Texarkana, and under an order from the circuit judge for that purpose, deposited the sum of $250 in court to pay the damages to be assessed. After the land owner had been brought into court the railroad filed a motion to compromise and confess judgment for eighty-five dollars, provided this should be taken in full of all damages, and about the same time filed a motion to have the Kirbys, who are appellees here, made parties, because, as the motion alleged, they had become the owners of the land and had succeeded to the first owner’s right to receive whatever damages might be awarded in the proceeding. The offer to compromise was not accepted. The court, however, looking only to the offer to confess judgment, and disregarding the condition that the amount named should be taken, if at all, in full satisfaction of the claim for damages, rendered judgment against the company for $85, directed the clerk to pay it out of the fund deposited in court, and continued the case for further proceedings. The clerk paid the amount as ordered to the land owner. At the next term the Kirbys were brought in by service of process and took up the litigation in the place of the original owner, one Arlidge. There was a trial by jury, and a verdict and judgment in their favor for $250. The railroad moved for a new trial, took a bill of exceptions and appealed. X¿f Circuit Court.Must be «xoepted Several questions upon the exclusion of testimony offered by appellant are pressed upon the court as error at the trial, but as no exceptions were saved to the rulings of the Circuit Court in that regard, the presumption is that the appellant acquiesced therein. If it was desired to make any point on the exclusion of this testimony, the ruling of the court should have been objected to at the time. ^obright of Way: How proved. Witnesses who had personal knowledge of the character anc[ location of the land, and of the facts in regard to . building the railroad over it, were permitted to give their opinions as to the amount of damage sustained thereby, against appellant’s objection. The difference in value before and after the location would be a valid test of the damage done, and it would seem to be immaterial whether the testimony was admitted in this form or in answer to a direct question as to the amount of the damage. The latter follows as a mathematical deduction from the first. In either case, it must come as an opinion, and opinions as to the value of the land before and after location, were held admissible by this court in the similar case of St. Louis & Texas Ry. v. Anderson, 39 Ark., 167. Both methods seem to be sustained by the authorities. Pierce on Railways, 227 and cases; Snow v. B. & M. Ry., 65 Me., 230; Shattuck v. Stoneham, etc., Ry., 6 Allen, 115; Sherman v. St. P., Minn. & Man. R. R. Co., 30 Minn., 227; T. & St. L. Ry. v. Eddy, 42 Ark., 527. "Whether a witness has such knowledge of the facts as to make his opinion of value, is in a great measure at the discretion of the circuit judge. It is true that such evidence, like all oral testimony, may at times prove unreliable, but its value can be readily and satisfactorily tested by cross-exami n ati o n. It is urged that there is no evidence to show that the Kirbys succeeded to the rights of Arlidge, the original owner of the land. The fact was admitted and no proof was necessary. Arlidge was a party to the proceeding, and the Kirbys were brought in on appellant’s showing that they were the real parties in interest, and the truth of this was not disputed by any one. In the outset the court below seems to have misapprehended appellant’s offer to submit to a judgment for $85, in way of compromise. The offer was made in substantial compliance with the statute, and, as it was not accepted by the party entitled to recover, it should have been held in abeyance by the court merely for the purpose of putting the costs on the party refusing, in case no more than $85 was recovered by him. (Mansf. Dig., sec. 5221.) It was clearly error in the court to take the offer as an admission that $85 should be recovered in any event. Mans/. Digest, sec. 5222. On the trial of the case the court seems to have conformed to the rule that an offer of this kind should not be given in evidence, and, upon the whole, substantial justice would have been <done if the appellees had been compelled to enter a remittitur for the sum previously recovered by Arlidge. The Kirbys were purchasers pendente lite, and were bound by the proceedings had prior to their coming into the case. The verdict of the jury was for $250. One of the errors assigned in the motion for a new trial was that the damages were excessive. The evidence may be said to sustain the verdict. Some of the witnesses estimated the damage at more than $250, but none of them placed the amount at as much as $85 more than that sum. The result is that upon what might otherwise be deemed a proper judgment for $250, the appellant is mulcted in damages to the extent of $335. As a remittitur will cure the only error complained of, if the appellees will enter a remittitur of $85, the judgment will be affirmed upon the terms prescribed in Fowler v. Johnson, 11 Ark., 280; otherwise it must be reversed and a new trial granted.