Wead v. St. Johnsbury & Lake Champlain Rd.

TAFT, J. The questions arise upon seven exceptions to the master’s report. The master permitted witnesses to testify and give their opinions upon the questions of damages sustained by the orator. The defendant insists that such testimony was incompetent. It appears from the report that no objection was made by the defendant to the introduction of such evidence until after the testimony had been heard. The master states that no formal objection was made to the tesimony at the time it was offered. We do not understand that any objection was made until the defendant claimed, after the [425] testimony had been heard, that the master had no right to consider it. The defendant’s solicitor assumes that an inform al objection was made to the testimony, but we find nothing in the report to support the assumption. This question was ruled and we think correctly in Laurent v. Vaughn, 30 Vt. 90, in which it was said “A party cannot allow testimony to be introduced without objection, thereby waiving his right to object, and-then, after the testimony is closed and the case being argued, insist upon its exclusion.” The exception is not sustained. The second exception was taken because the master refused to consider the evidence of sales of lands contiguous to that of the orator, as bearing upon the question of damages. The damages were assessed as of the first day of July, 1880 ; the sales offered to be shown were in 1872 and 1873. It does not appear why the master rejected the evidence. Unless error appears in its rejection the exception cannot be sustained. We cannot say as matter of law that it was error to reject it. It not being shown that the evidence was pertinent to some issue involved in the trial the exception is overruled. The third exception was to the offer to show that the land mentioned in the second sub-division of the mandate was-not the land of the orator. It was adjudged in these proceedings that the land belonged to the orator and was a part of the highway crossing. The question cannot again be-litigated in this case even as bearing upon the question of damages. This exception is not sustained and for the same-reason the fifth exception is overruled. The fourth exception is not considered, as the decree does not cover damages found from the evidence objected to. The serious question arises under exceptions six and seven, viz.: that the master neglected to find the damages upon competent evidence, and did consider illegitimate-opinion evidence. We do not think the question of opinion [426] evidence properly before us under these two exceptions, for the reasons already stated. We do think it is apparent from the report that the master did not consider legitimate evidence, properly in the case, and found the amount of damages sustained by the orator upon opinion evidence only. The master states that the defendant did introduce several witnesses who gave their estimates as to the value of the property before and after the building of the road; that real estate in the locality had declined since 1872 ; and claimed that upon such testimony, the situation of the property and the business carried on there, that the master should make his findings. It was proper and it was the master’s duty to consider all this testimony and the circumstances .detailed in the report, together with the opinion evidence — as that was in the case without objection — and upon it all make his findings upon the questions of damages; the master states that he was not able to extract from such testimony offered by the defendant with the circumstances, etc., the necessary elements upon which to base the specific findings required by the mandate. It is apparent that the master based his findings upon opinion evidence alone, not considering the testimony offered by the defendant, for he states in his report that he is not possessed of those peculiar elements of knowledge needful for the formation of an intelligent judgment upon the matters embraced in the mandate, and that in his findings therein he has weighed and passed upon the estimate of witnesses whom he finds were possessed of such elements. Without passing upon the question of whether the opinion evidence, if objected to, was legitimate, the master had the right to consider it, but we think he erred in basing his findings upon that alone. That the construction thus given the report is the true one is evident from the fact that when the master was asked to find “what damages the orator had suffered from consideration of facts alone relating to each item, unaided by the [427] judgment, opinion or estimate of witnesses,” he confesses his inability to do so and said that he must depend upon the estimates of others. The sixth and seventh exceptions are sustained, the decree reversed and cause remanded, with mandate similar to the one in the case as reported in 6‡ Vt. 52. Start, J., did not sit.