McReynolds v. Burlington & Ohio River Railway Co.

Mr. Justice Sheldon delivered the opinion of the Court: This was a petition filed by the Burlington and Ohio Biver Bailway Company, in the county court of Macoupin county, for the purpose of condemning, for the right of way of its railway, two certain strips of land. The defendants in the petition were the owners of two different farms, lying each in a compact body, and consisting, one of 256 acres, and the other of 420 acres. The petition sought to condemn a strip of land through the smaller body, ninety feet wide, containing acres, and one through the other, sixty-six feet wide, containing 9 acres and a fraction. A cross-petition was filed by the defendants, claiming damages to the whole of the several 256 acres and 420 acres. ' The jury went upon and viewed the premises, as provided for by the statute, and found the damages to be, to the smaller tract, $404.20, and to the larger, $859.50,—$1263.07 in all. The defendants appeal from the assessment. It is complained that the verdict is clearly against the preponderance of the evidence. This would be so if the opinions of witnesses, as expressed, were to be taken as the measure of damages. The sum of the several estimates of damages, divided by the number of witnesses, would give an amount much larger than that which was assessed. But this is not the mode to deal with the opinions of witnesses. They are not to be passively received and blindly followed, but they are to be weighed by the jury, and judged of in view of all the testimony in the case and the jury’s own general knowledge of affairs, and have only such consideration given to them as the jury may believe them entitled to receive. The opinions of witnesses is a variable and uncertain class of testimony, especially upon a question of damages like the present, where there was no matter of special damage claimed, but damage only from the general inconvenience of carrying on the farm with the railroad running through it. An,illustration is found in this case, where opinions of the amount of damages range from nothing to $4000 and upwards. There was testimony that the land would be specially benefited in the draining of it. The basis upon which the larger amounts of damages was estimated, was, in part, of the most unreliable and unsatisfactory character,—such as, the danger of crossing with teams, and danger of children and members of the family getting hurt, besides the general inconvenience in carrying on a farm divided into two parts by a railroad. The inconvenience of carrying on the farm because of the railroad would be a legitimate item of damage to be considered, although the damage from that source would be largely conjectural, and not susceptible of anything like definite ascertainment; but injury from the other sources of danger above named would be but merely possible. Such merely possible damages do not form a proper basis for the assessment of the amount of damages,—it is only such damages that are reasonably probable. See Jones v. Chicago and Iowa R. R. Co. 68 Ill. 380. The opinions of witnesses, here, were extremely conflicting. The jury went upon the premises, and saw for themselves the situation. What was the influence of the evidence which the jury thus derived from their own personal observation in determining the value to be placed upon the opinions of witnesses, we know not. The force of such evidence was remarked upon in Chicago and Iowa R. R. Co. v. Hopkins, 90 Ill. 323, where we said the result of the jury’s own observation, where they go upon and view the land, may have been such as to have justified the assessment made, even if it was clear the preponderance of evidence preserved in the record was against the amount of the assessment. We can not say that the finding of the jury, here, was so manifestly wrong under the evidence that it should be disturbed. Objection is taken to the refusal of the court below to permit the defendant’s counsel, on his motion, to open and close the case before the jury. The decisions of courts are not uniform upon this question. The general rule, as laid down in Wharton on Evidence, sec. 357, is: “It may be stated, as a test of universal application, that whether the proposition be affirmative or negative, the party against whom judgment would be given as to a particular issue, supposing no proof to be offered on either side, has on him, whether he be plaintiff or defendant, the burden of proof, which he must satisfactorily sustain.” The present proceeding is not one by the land owner to have an assessment made of his damages or compensation for the taking of his land, but it is a proceeding instituted by the railroad company to ascertain what is a just compensation for the land sought to be appropriated. By our State constitution the land can not be acquired without just compensation to the land owner, to be ascertained by a jury. The statute upon the subject contemplates that the jury are to ascertain the compensation “after hearing the proof offered.” Should there, then, be nó proof offered, the petitioner would be defeated. It would fail of having an ascertainment by the jury upon proof offered of what was a just compensation for the land, without which it would be unable to acquire the land sought to be appropriated. Under the rule, then, that the party entitled to begin is he who would have a verdict against him if no evidence were given on either side, we think the court below properly ruled that the petitioner should open and close. This view is in agreement with the decision of the Supreme Court of Ohio upon this precise question, in the well considered case of Neff v. Cincinnati, 32 Ohio St. 215, under the constitution and statute of that State, which we take to be similar to ours upon this subject. The petitioner moved the court below for a new trial, and consented that the motion be overruled pro forma. The defendants confessed the motion. The petitioner then asked leave to withdraw the motion. Leave was granted, to which ruling defendants excepted, and entered their motion for a new trial, which motion was afterward overruled, and judgment entered upon the verdict. This action of the court in permitting petitioner to withdraw its motion for a new trial, against the objection of the defendants, after the same had been confessed and assented to by defendants, is assigned for error. The action of the court in the above regard was proper. There is nothing to preclude a party from withdrawing a motion he may have made, whether for a new trial, or of other character; and the consenting to the motion by the opposite party would make no difference. The jury were instructed, that if, by the construction of the railway, the lands would be specially benefited to the extent, or greater than, they would be damaged, then the jury would only find a verdict for the compensation for the strips of land actually taken. Exception is taken to this instruction. The fault found with it is in the respect of special benefits, in not limiting them to such as are not common to other property. Special benefits mean benefits not common to other property; and any possible danger that there could have been of the jury being misled in that respect, was obviated by instructions asked and given on behalf of the defendants, defining and explaining special benefits as such that were not common to other property. Finding no error in the rulings below, the judgment is affirmed. Judgment affirmed.