Winona & St. Peter Railroad v. Denman

— 279 — By the Court — Berry, J. — Under the special act relating thereto, commissioners were appointed to ascertain and determine the compensation to be paid to the respondents for the appropriation of certain lands by the appellant for right of way. From the determination of the commissioners an appeal was taken to the District Court for the county of Winona by the present appellant. The appellant moved for a new trial on sundry exceptions to the instructions and rulings of the court, and the case comes to this .Court on appeal from an order denying the motion. On the trial below, the respondent, Jacob S. Denman, was called as a witness in his own behalf, and testified that he resided on a farm traversed by appellant’s railroad. Question. How much land have you in that farm? This question was objected to by the appellant’s counsel, on the ground, “ (1) that under the charter it is immaterial and improper to enquire concerning other lands than those proposed to' be taken, the damages to which the commissioners were appointed to appraise, for the purpose of laying a foundation for damages. (2) That the pai’ty is confined in his inquiries to the lands specified in the commission. (3) That in no case can respondent go outside of the subdivisions through which the road passes, the title to which has been ascertained and determined by the Court.” The objection was rightly overruled. The mode of proceeding in a case of this kind is prescribed in Section 5 of Chapter 27 of the Laws of 1855,and without entering into details of verbal criticism, it is sufficient to say, that although the phraseology of different portions of the section is somewhat varied, in speaking of the same thing the difference is in words, not in meaning. Looking at the whole section, it is clear that the object of the Legislature was to provide a way for ascertaining the amount which should be paid as a compensation for the appropriation of land to the purposes of the contemplated railroad. And as this was to be a taking of private property for public uses, nothing short of compensation would satisfy the requirements of the Federal Constitution, under which the original charter of 1855 was granted, or of the Constitution of this State, under which the rights so granted were imparted to the appellant. — 280 — See Amendments to Const. U. S., Art. 5; Const. Minn., Art. 10, Sec. 4. According to approved lexicographers the primary signification of compensation is “ equivalence,” and the secondary and more common meaning is something given or obtained as an equivalent. We take it that the latter is the sense in which the word is used in the constitution and in the law referred to; and that whatever is necessary to be considered in order to determine what is an equivalent for the appropriation of private property is germane to the question of compensation. Now, without indulging in any metaphysical refinements, it is plain that the appropriation of a strip of land (as in this case) one hundred feet in width across and out of the body of a larger tract used and occupied as one farm, by which the farm is divided, and divided perhaps with great inconvenience to the owner, may be and in a great majority of cases would be a serious injury to the farm as a whole. And to say that the payment of the value of the strip by the acre and by itself would be a compensation or equivalent for the appropriation would be worse than unreasonable. As to tho objection that it is improper to enquire into the effect of the appropriation upon any lands other than those the title of which has been determined by tho Court as preliminary to the appointment of commissioners, it is to be remarked, first, that in this case the Court only determined the title to the one hundred feet strip ; second, that there is no provision in the charter requiring the Court to determine anything beyond this; and, third, that there is nothing prohibiting the commissioners from determining any fact which is necessary, in order to arrive at tho just compensation to which the party interested is entitled. Now, if in order to ascertain what amount will bo a compensation or equivalent for the proposed appropriation, it is necessary, as we have already determined, to take into account the effect, of the appropriation on the whole farm, it follows in the absence of anything to the contrary, that it is the duty of the commissioners to enquire what the extent of the farm is; that is, in other words, how much land the party damaged is the owner of, and this of course involves the determination of title. And to say that this is an unusual way — 281 — of settling title to real estate would not furnish a valid objection; and at any rate the party who considered himself aggrieved has the right of appeal to a court which, in the exercise of its ordinary and constitutional jurisdiction, is authorized to adjudicate upon questions of this nature. There is nothing in the language of the order appointing the commissioners, which is inconsistent with this view of the matter. We see no force in the point that the District Court was only authorized to exorcise an appellate jurisdiction, for while this is true there is nothing to show that there was any attempt to exercise any other. There is nothing to show that the commissioners did not act upon the views which we have expressed, and enquire into the ownership of the adjoining lands. Whether they took into consideration in making their estimate all the facts of which the law authorized them to take cognizance is moreover unimportant. The appeal is to be “ entered, proceeded in, and determined in the same manner as cases on appeal from courts of Justices of the Peace;” that is to say, there maybe a re-trial of the issues involved, and new evidence may be introduced in regard to matters which might have been contested below, without reference to the question whether they were or were not so contested. The respondent was also asked “ what was the market value of the land taken last fall ? ” The then last fall was the time when the assessment of damages was made by the commissioners. The appellant objected to the interrogatory on the ground that the value is not the proper measure of damages, but that the proper measure is the difference in the market value of the lands affected by the» taking without the railroad and with it, and that general benefits conferred upon these lands, and. other lands of the respondents, should be setoff against the damage if any to the lands taken. It will be observed that this is a departure from the ground upon which the appellant based the objections which we have already considered. But we are unable to perceive how or where there was any impropriety in the question, even if the rule contended for in the objection be correct. The quantity and the value of the — 282 — land actually taken from the respondent, and so to speak lost by him, were certainly proper elements in calculating the depreciation of his property, and in instituting a comparison between its value without and with the railroad. In fact it is difficult to perceive how the comparison could well be made without an estimate of the loss which he suffered. Even upon the theory that the correct standard of damages is the difference in value between the land with and without the Railroad, it would not be necessary even if proper to put the 'enquiry in this general form: “What is the difference between the value of the land with and without the railroad ?” For an intelligent answer to that question must be the result of a process of calculation, and it is certainly quite as proper to ask for the steps of that process, (one of which must be an estimate of the value of the property actually taken,) as it is to ask for the general result. As to that part of the Objection which contends that general benefits to the lands taken, and other lands of the respondent, should be set off against the damage to the lands taken, we might as well say here as any where, that the question as to the right to set off benefits, general or special, is not necessarily raised in this case. For it appears that the Court below ruled that benefits might be set off against the damages to the lands outside of the lands actually taken, and the jury in their verdict under this ruling, find damages to such outside lands. In other words, the jury find that the benefits which they were authorized to set off’ against damages to such outside lands were exceeded by such damages, and return a verdict for the balance. This being so, whether benefits could be set off against the value of the strip actually appropriated is not a practical question in the case, as such benefits were all deducted from the damages to outside lands, and none were left for further deduction. But the other branch of the objection made by the appellant to the question as to what the value was last fall, is “that the value should be shown at the time the company took possession.” We think this branch of the objection also untenable. The right which the company sought to obtain in this case, not having been acquired by purchase or gift, could only be ac — 283 — quired by proceedings through a commission, as pointed out iu the charter. These proceedings, the company, and not the land owner, had the right to set on foot at any time, and before any expenditure had been made upon the land. If the company sees fit to go on and put the road in operation before assessing the land damages, and is in consequence compelled to pay an enhanced price corresponding with the general advance of property as the country grows older, it was in its power to prevent such a result. There is nothing in the charter fixing the time the value at which is to furnish the standard of compensation. The company acquire no right, and the land owner parts with none until the action of the commissioners; and it would seem to be not unfair to the company, that the valuation should be made as at the time when it was passed upon by the commissioners. It was further contended on the argument that all enquiries as to value and damages should have been based upon the idea that the company did not take the fee, but simply an easement. It is unnecessary to determine in this case what estate or interest the company acquire. The charter specially provides that the commissioners are “to ascertain and determine the amount to be paid * * * as compensation for his interest or estate,” to the person interested in the land appropriated. Whether the Legislature were of the opinion that the company should be allowed to take the fee or an easement, this provision requires compensation for the interest or estate of those interested in the land without reference to the quantity or quality of such interest or estate, and it may be suggested that even if the company could take only an easement, what would be left to the land owner-consistent with the enjoyment of the easement by a railroad company ? and even his reversion, would ordinarily be of ineonsiderable or no appreciable value, and the Legislature might with perfect fairness provide for compensation for the whole interest, or estate of those claiming any right to the lands. Objections were also made to the evidence offered by the respondents, for the purpose of showing the additional expense of fencing occasioned by the construction of the road. — 284 — Keeping in view the idea of compensation, we think the objections were rightly disregarded. The evidence would tend to show what additional expense, resulting from the construction of tho Railroad, would be incurred by the respondent in order to make his adjacent land available for the ordinary purposes of good husbandry. It was proper for the jury to take this into consideration. The law regulating the matter of fencing was read to the jury, and there was no chance for mistake as to the liability of the company to build one-half of the fence by the terms of the law. For the other half, the cost of erecting and maintaining which would fall upon tho respondent it was proper to award compensation. It was objected by the respondents that the Court erred in holding that general benefits should be deducted from the injury to lands other than tho strip appropriated for right of way. But as this ruling was favorable to the appellant, who finds no fault with it, and as the respondent does not appeal, and as we deny a new trial, it is unnecessary to consider the objection at this time ; and wo may say in general that the subject of the deduction of benefits general or special in cases similar to this is not necessarily before us in the case under consideration. The question is one of very great importance in the infancy of our railroad system, and presents intrinsic difficulties which are greatly enhanced by the diversity of opinion in the adjudged cases. Upon this as well as some other questions which were raised upon the trial we refrain from expressing any opinion which, as it would not be necessary, would be regarded as little better than an obiter dictum. The order denying the motion for a new trial is affirmed, and the action remanded.