Portland & O. C. Ry. Co. v. Ladd Estate Co.

Mr. Justice Benson delivered the opinion of the court. 1. We shall first consider defendant’s assignment of error to the effect that the court erred in permitting the president and chief engineer of plaintiff to testify as to negotiations had with property owners along the line of the proposed railroad for purchases from them of right of way and yardage and as to prices at which such owners offered to sell lands. It has been held by this court that such testimony is not admissible to prove value, and can be justified only when admitted upon cross-examination to test the knowledge of the witness: Oregon R. & N. Co. v. Eastlack, 54 Or. 196 (102 Pac. 1011, 20 Ann. Cas. 692); Pacific Ry. & Nav. Co. v. Elmore Packing Co., 60 Or. 534 (120 Pac. 389, Ann. Cas. 1914A, 371). 2. But plaintiff contends that the testimony objected to was offered solely for the purpose of showing how [520] it arrived at its estimate, and tender, and that the court in its instructions limited it to that use. The reply to this contention is that the answer of defendant specifically admits that the parties were unable to agree, and admits the tender as alleged in the complaint, and therefore there was no issue to which such evidence was relevant, even if it were admissible for that purpose, which we doubt. 3. We come then to the question as to whether the court erred in permitting the plaintiff’s witness to testify in regard to efforts made to obtain another and different right of way across the same lands and as to defendant’s reasons for refusing to grant such right of way. As we have already suggested, there was no issue in the pleadings to which such evidence could be relevant, and it was therefore improperly admitted. 4. The remaining assignments of error involve a consideration of the kind of benefits which a jury may consider in arriving at a reduction of the damage resulting to the residue of the tract by the appropriation of the right of way. A careful examination of the testimony in the case discloses the fact that no evidence of benefits was offered other than those arising from increased transportation facilities. In different jurisdictions there has been a variety of views expressed upon this point, but the matter has been settled by this court to the effect that the only benefits that may be set off against damages are those which are special and peculiar to the tract of land in controversy: Beekman v. Jackson County, 18 Or. 283 (22 Pac. 1074); Coos Bay R. R. Co. v. Nosler, 30 Or. 547 (48 Pac. 361). In the latter case Mr. Justice Wolverton, speaking for the court, says: “Whatever of peculiar or especial benefit might accrue or result to the lands of the party claiming damages may be offset, but remote or speculative benefits [521] in anticipation of a rise in property for town-site purposes, or, generally, by reason of the proposed opening of a highway, construction of a railroad, or other improvements, cannot be considered. Such benefits are the common privilege of all the individuals of the community, and one cannot be permitted to profit by it more than another.” Counsel for plaintiff argues that since defendant is the owner of Easlmoreland and Westmoreland additions and the tract of land traversed is more than a mile in length, there is no community to be helped, and that therefore the benefits of increased transportation facilities are peculiar to its land. As to this contention it would be sufficient to remark that the evidence discloses that large portions of both additions have been sold. In addition to this fact, however, we may say that any benefit accruing to defendant thereby which is greater than that of its more remote neighbors is merely a question of degree rather than class. In the case of Washburn et al. v. Milwaukee & L. W. R. Co., 59 Wis. 364 (18 N. W. 328), the court says: “The location of a depot at a given point is a general public benefit, although, as in the case of any general benefit created by public improvements, one citizen may be more directly and largely benefited than another. * * That statute provides only for the allowance of special benefits in such cases, and such is not the character of the benefit under consideration. It would seem that a benefit which may thus be allowed is one which enhances the value of the land affected by it, by improving its physical condition and adaptability for use; such as by reclaiming waste land, by draining or flowing a marsh, by aiding in the development of a water power, by dispensing with the necessity of maintaining fences, or by opening a mine or quarry, and the like. We are unable to conceive of any other kind of benefits which are not general benefits as well, and hence outside the statute.” [522] This quotation quite clearly expresses our views and we conclude that the judgment should be reversed and the cause remanded for a new trial. It is so ordered. Reversed and Remanded. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice McBride concur.