Cleveland & Pittsburgh Railroad v. Ball

Bartley, C. J. The first Inquiry presented in this case, is, whether the court below erred in admitting the opinions of witnesses as evidence to show the damages which the appropriation would occasion to the defendant. This is fully answered by the determination of this court at the last term, in the case of The Atlantic and Great Western Railroad Company v. Campbell, 4 Ohio St. Rep. 583. The general rule that the testimony of witnessees is confined to a statement of facts coming from observation, knowledge and recollection, as distinguished from the mere opinion or inference of a witness, is a safe rule, although subject to numerous exceptions. Opinions are often formed upon slight or inaccurate information, and sometimes the mere dictate of feeling, rather than the exercise of judgment, and therefore to be received with great caution even when competent as evidence. There are some facts of such a nature as to be incapable of the ordinary means of proof by direct evidence, and consequently resort is had to the best means of proof which the nature of the subject affords. On questions of science, skill, trade, and others of a like nature, experts are allowed to give their opinions as evidence. On questions of pedigree or relationship, character, boundary, and the like; also on inquiries touching the extent of a man’s property, his solvency, health, sanity, affection, antipathy, and others of a similar nature, the knowledge of witnesses is chiefly a matter of opinion, and it is often impossible to enumerate each particular fact from which the knowledge of a witness is derived. And of this nature are inquiries touching the value and quality of property. And in the case of The Atlantic and Great Western Railroad Company v. Campbell, above cited, while the opinions of witnesses as to the amount of damages sustained, are excluded as incompetent evidence, the court did not exclude the opinions of witnesses as to the value of the land, before and after the location of the railroad. It is proper for a witness to describe the particulars of the injury, the manner in Avhich the property is affected, and give his opinion as to the value of the land. And it is for the jury to find from all the facts, from the value of the land, and the extent and manner — 574 — in which injured, and other circumstances, what amount of damage has been sustained by tho land owner, And to allow witnesses to give their opinions as to the amount of the damages suffered, would permit witnesses to swear to the conclusion which \it is the peculiar province of the jury to deduce from the evidence. Upon this ground, therefore, there was error in the proceedings of the court below. 2d. It appears, that in the further progress of the case before the probate court, evidence was given by the land owner that there were valuable coal mines on his land through which the railroad passes; that the road was located between the coal banks and the river ; and that in the opinion of the witnesses, the railroad would prevent the coal from being carried across the road to the river. On cross examination, the counsel for the company inquired of the witnesses: “ Will the facilities for transportation of coal to a market, be diminished by reason of the construction of this railroad ?” This inquiry was objected to by the land owner, and the objection sustained, to which ruling an exception was taken. In this, the probate court manifestly erred. The inquiry was legitimate and proper as coming within the scope of cross-examination ; and it was especially important to show the value, if there would be any value, in the river transportation in connection with the coal banks. This would not be deducting benefits, but simply showing what value there would be in the river transportation to the owner of the coal banks, after the construction of the road ; for that value, so far as affected, would be one of the direct incidental consequences occasioned by the appropriation. If by means of the railroad facilities, the river transportation would be superseded by a cheaper and better mode of transportation, and thus be rendered of but little or no value to the owner, he ought not to be paid a compensation on account of an incidental disadvantage or loss of value which he did not suffer. 3d. The questions arising on the charge of the court to the jury, and the refusal of the court to charge as requested, are comprehended in the following inquiries : — 575 — 1. In estimating the damages to property outside of the limits of the land appropriated, what compensation for the incidental injury to the value of the residue of the land, is to be taken into the account? 2. Can the damages to the residue of the land through which the appropriation is made, be reduced by deducting therefrom, or setting off against them, the resulting benefits of the railroad to such residue of the land ? The provisions of the constitution of this State on this subject, are somewhat different from the provisions in the constitutions of some of the other states. “ Full compensation ” is required to be made to the owner in money for the appropriation of his property, as a condition precedent. To be a full compensation, it must be a remuneration or recompense for that detriment or loss to the owner in the value of his propei ty arising from the taking of his property in connection with the use for which it is taken. Where a piece or strip of land is taken and severed by the appropriation from its connection with other land of the owner, some elements of compensation necessarily enter into the computation besides the abstract value of the number of feet or acres of ground actually taken. These elements of compensation may be comprehended in the following: first, the abstract value of the quantity of ground taken; second, the value arising from the relative situation of the land, taken in its connection with the residue of the owner’s land from which it is severed ; and third, the effect upon the value of the residue of the owner’s land arising from the uses for which the appropriation is made. These grounds of compensation will give the land owner á recompense for the loss in the value of his property, caused by the appropriation for the special purposes or use for which it is authorized. Thus far, and thus far only, is the loss in the value of the residue of the land of the owner to be taken into account in making up the amount of the compensation to be paid. It is said in the work of Redfield on Railways, page 152, “ It is requisite that the tribunal appraising land damages, for lands condemned for railways, should take into consideration all such incidental loss, inconvenience and damage, as may reasonably be — 576 — expected to result from the construction and use of the road, in a legal and proper manner. And as all tribunals having jurisdiction of any particular subject matter are presumed to take into consideration all the elements legally constituting their judgments, such incidental loss and damage will be barred by the appraisal, whether, in fact, included in the estimate or not.” It is true, that speculative prospective detriment or injury to the value of the residue of the land, either by means of the severance therefrom of the land taken, or by the use and workings of the railroad, is not to be taken into the estimate; but the compensation is to be confined to such loss and injuries in the value of the owner’s property, as are appreciable at the time, as the necessary or natural consequences, fairly and reasonably expected to follow, from the appropriation made to the uses of the railroad, including in the incidental injury, to the value of the residue of the land, the deterioration in value from the necessary inconvenience and annoyance in the enjoyment of the same arising from the operation of the railroad. This is in accordance with the rule estimating the compensation in England, which requires that “ regard shall be had not only to tbe land taken, but also to damage by reason of severance from other lands, or otherwise injuriously affecting such lands.” The second inquiry arising on the instructions of the court to the jury, involves the inquiry whether, in estimating the compensation for the incidental loss or injury to the residue of the owner’s land, the incidental prospective benefits to such residue of the land from the railroad, are to be taken into the account, in reduction of the amount of the loss or injury. Mr. Redfield, in his work on Railways, page 135, says : “ In consequence of numerous ingenious speculations in regard to possible advantages arising from the public works, for which lands are taken, the whole subject has become, in this country especially, involved in more or less uncertainty. All the cases seem to concur in excluding mere general and public benefit, in which the owner of land shares in common with the rest of the inhabitants of the vicinity, from being taken into consideration, in estimating compensation.” — 577 — It must be conceded, that the rule on this subject, recognized formerly in some adjudications in this State, has been materially changed by the provisions of the present State constitution. By the 19th section of the bill of rights, it is declared, among other things: “ Where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money ; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.” And, by the 5th section of the 13th article of the constitution, it is further provided, on this subject: “ No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or first secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation.” Touching the subject of the construction of these provisions of the constitution, this court, in the case of Giesy v. C. W. and Z. Railroad Company, 4 Ohio St. Rep. 332, used the following language : “ The jury are not required to consider how much, nor permitted to make any use of the fact that, it may have been increased in value, by the proposal or construction of the work for which it is taken. To allow this to be done, would not only be unjust, but would effect a partial revival of the very abuse which it was a leading purpose of these constitutional provisions to correct. It would be unjust, because it establishes for a corporation what is done for no one else, a sort of right in the property of others, to the reflected benefits of its improvement; itself submitting to no reciprocity by affording others a compensation for the effect of their improvements, upon the property of the corporation. And it is doubly unjust, where, as must very often happen, the increase in value accrued to the benefit of a former owner, and has been bought and paid for by the present holder, from whom the property is taken at a diminished price.” It is insisted in the case before us, that in estimating the compensation for the incidental injury to, or loss of value in, the residue of the tract belonging to the land owner, the incidental — 578 — local benefits arising from the structure of the railroad, to any part of such residue of the land, must be taken into the account in reduction of the amount of the compensation. The constitution requires full compensation in money, and prohibits deductions for benefits to any property of the owner, from any improvement proposed by the corporation. It would scarcely be claimed by any one that the compensation required by the constitution was limited to the abstract value of the number of feet or acres of ground taken in the appropriation. The compensation must be broad enough to cover the full loss in value which the owner suffers in his property, by means of the appropriation for the uses for which it is made. Rut although it is not claimed that any deduction is to be made in view of the general prospective or resulting benefits in which the owner shares in common with others in the vicinity of the improvement, and which constituted a leading object in the grant of the important privileges by the State to the company ; yet it is insisted that incidental or local benefits may be conferred on the residue of the owner’s land, by the construction of the railroad, and that in estimating the compensation to be allowed for the incidental injury or loss of value in the residue of the owner’s land, the local benefits to such residue of the land are to be taken into the account and deducted; and that, therefore, the rule of compensation for the loss in the value of the residue of the land, is the loss in value to the whole residue of the tract after deductions or allowances for the local incidental advantages. Where a local benefit or advantage is blended with, or has a direct or immediate connection with, or bearing upon, the local incidental injury, such as appears in this case in the instance of the obstruction of the free and convenient communication between the coal banks and river, which loss may be either totally or partially removed by the facilities for the transportation of coal to market afforded by the railroad, then, the local advantage or benefit may have to be taken into consideration, in order to estimate the extent of the loss, if any, in the value of the property, caused by the injury or disadvantage. Eor if the river transportation for getting the coal to market had ceased to be of any great value, by means of — 579 — the facilities supplied by the railroad for the transportation of the coal, the owner ought not to be compensated for the disadvantage beyond its actual value to him in the enjoyment of his property. Where, in the construction of a railroad, a ditch or excavation is made, which drains a swamp and renders a part of the owner’s land valuable, which had been previously of little or no value, but the same ditch in draining the swamp, destroys a valuable spring of water, the injury and benefit may be so blended that they must necessarily be taken into consideration in estimating the compensation to be made. But where, in constructing a railroad, two ditches are made, one at one side of the owner’s tract, which benefits the land by draining a swamp, and the other, at the other side of the tract, which destroys a valuable spring; or where the locality and subject-matter of the local benefit and injury are otherwise separate and wholly unconnected, although on the same tract of land, the question may be quite different. And in such case, whether, under the peculiar provisions of the constitution of this State, in estimating the compensation to be made to the owner for the local incidental injury to the residue of his land, any deduction or allowance can be made for such separate local benefit, is a question not necessarily presented in this case, and as to wdiich we express no opinion at this time. The views already expressed in this connection have xgone far enough to show, that there was no error in the instructions of the probate court to the jury. On the other grounds, however, the judgment and proceedings of the court below are reversed. Judgment reversed, and cause remanded for further proceedings.