Sater v. Burlington & Mount Pleasant Plank Road Co.

Isbell, J. — Tbe question now, for tbe first time, arises in tbis court, namely, wbat is tbe true criterion of compensation, in cases like tbe present? Eor, we assume, that wben tbe statute uses tbe word damage, it bas reference to tbe just compensation required- by tbe constitution. It can but be anticipated, that, in tbe progress of improvément in our state, like cases will frequently come before tbe judicial tribunals; and at tbis early period, it is desirable that some-plain, just rule, if possible, should be established, to guide in their determination. But it is quite obvious, that from tbe variety of circumstances attending such cases, that it will be impossible to lay down any very specific rule, which will not be subject to so many exceptions, as to serve to perplex, rather than to be a practical aid. We can, in fact, do little more than to enunciate a principle, upon which such assessment should be made. Tbe terms used in tbe constitution, “just compensation,”' are not ambiguous. They, undoubtedly, mean a fair equivalent; that tbe person whose property is taken, shall be-made whole. But while tbe end to be attained is plain, tbe mode of arriving at it, is not without its difficulty. On due consideration, we see no more practical rule, than to first ascertain tbe fair marketable value of tbe premises over which the proposed improvement is to pass, -irrespective of such improvement, and also a like value of tbe same, in tbe condition in which they will be immediately after tbe land for tbe improvement bas been taken, irrespective of tbe benefit which will result from tbe improvement, and tbe difference-in value, to constitute tbe measure of compensation. But in ascertaining tbe depreciated value of tbe premises, after that part which bas been taken for public use, bas been appropriated, regard must be bad only to tbe immediate, and not remote, consequence of tbe appropriation; that is to say, the value of tbe remaining premises, is not to be depreciated by heaping consequence on consequence. While we-see no more practical mode of ascertainment than tbis, yet it must still be borne in mind, that this is but a mode of ascertainment; that after all, tbe true criterion is,, tbe one, [394] provided bj the constitution, namely, just compensation for the property taken. "We come now to the inquiry in the case before us: Did the court err in the particulars contended for by appellant ? .The bill of exceptions shows, that the plaintiff interrogated the witnesses as to his damages - and that they stated a general sum, which, it appears, included various items of incidental damage. How it was made to appear, that this general sum included the various items of incidental damage; whether by the examination in chief, on the part of the plaintiff; or whether it became apparent by the cross-examination of the defendant; and, again, whether the objection to the testimony, was on account of the generality of the question propounded to the witnesses, or because of the incidental circumstances of which they testified, is not made very clear by the bill. That the plaintiff may inquire generally as to the value of the land, before and after the appropriation, leaving the opposite party, by his right of cross-examination, to learn the ability of the witness to judge in the premises, and what he takes into consideration, in making up his judgment, we have no doubt. Neither have we any doubt, in ease it should appear by such cross-examination, that the witness assumed a false basis of computation of value — that in appraising the land left, he took into consideration remote consequences of the appropriation— that it would be the duty of the court, especially on objection made, to inform the jury, that the estimate based upon such considerations, was not to be considered; and in all of this, there would be no error. Does this record disclose that anything more than substantially this, was the fact in relation to the admission of testimony in this case? We conclude that it does not. Eirst, for the reason, that it nowhere ajapears that the particular matter complained of, was drawn out in answer to any special interrogatory of the plaintiff, but the language of the bill is, “ Plaintiff interrogated said witnesses as to the damages, and they did state before the jury a general sum of damages which, in their opinion, covered the inconvenience,” [395] &c.; but by whose interrogation it was made to appear, that this sum covered these inconveniences, is not stated. But, secondly, it does appear, at least inferentially, that the evidence was .drawn out by the defendant on cross-examination, from the fourth ground set forth by him in his motion for a new trial. If it satisfactorily appeared, that plaintiff was permitted to specially inquire as to some of these items of inconvenience, after objection taken; as for instance, as to the damage he would sustain on account of dangers of depredations on his- orchard, we should have no hesitancy in pronouncing it erroneous. Whether the court could cure such error, by instructing the jury to disregard such evidence, is not necessary now to decide. With regard to the other ground assumed on error, after a careful examination of all the instructions, we conclude that taking them together, as they went to the jury, the principle of the above rules was not materially departed from by the court. It is true, that taking the second clause of the third instruction by itself, it would tend to an erroneous measure of compensation. But this is so distinctly .-qualified by the whole tenor of the instructions, that it would be presuming too much on the ignorance of the jury, to conclude that they could have been misled by it. In view of all the instructions, we conclude that if there existed any just ground of complaint, as to the measure of compensation, or the relation to that for which compensation should be given, it lay with the plaintiff rather than defendant. Judgment affirmed.