Sigafoos v. Minneapolis, Lyndale & Minnetonka Railway Co.

Gilfillan, C. J. This is an appeal by the company from an order refusing its motion for a new trial in proceedings to condemn land for the use of its railroad. The land sought to be condemned was a strip for the company’s right of way, running through plaintiff’s farm, cutting it into two parts. The first assignment of er [9] rors is upon several questions asked witnesses by plaintiff, and objected to by the appellant; in substance this: “What was the difference between the value of the farm without the railroad across it, and its value with the railroad across it?” An objection is made here that the witnesses were not shown, competent to answer, but that objection was not made below, and of course cannot be raised here. Otherwise the questions were proper. To assist the jury in arriving at the damages the opinions of witnesses as to the value, though not conclusive, are always proper;,and in that manner may be proved the value of t^e entire tract before the taking, and the value with the strip taken out for railroad purposes. Simmons v. St. Paul & Chicago Ry. Co., 18 Minn. 168, (184;) Grannis v. St. Paul & Chicago Ry. Co., 18 Minn. 178, (194.) The second assignment of errors is upon questions asked by plaintiff of appellant’s witnesses on cross-examination. They had testified as to the difference in value of the farm made by taking the strip out for a railroad, and on cross-examination they were asked if it would make any difference in their judgment that the owner had no right to cross the right of way. As the statute (Laws 1887, c. 174,) gives the owner in such case the right to a crossing constructed at his own expense, when he requires it by notice served on the company in the manner it prescribes, of course the damages cannot be assessed on the theory that the land is taken, leaving the owner no right to cross. But it is apparent that, ordinarily, some inconvenience in the use of the farm thus cut in two would arise from the owner’s right of passage from one part to the other being limited to a particular point. And after appellant’s witnesses had given their opinions as to the difference in value caused by the railroad running through the farm, it was proper for the plaintiff, on cross-examination, to test the value of those opinions by asking the witnesses whether, and to what extent, in their opinion, the inconvenience of passing from one part of the farm to the other would affect the value. The question asked did not go beyond this legitimate purpose, for if, in answer, they had stated that in their opinions it did not make any difference that the owner had no right to cross from one part to the other of his farm, it must be apparent that their opinions as to the [10] difference made in the value by running the railroad across it would be entitled to comparatively little weight. The court, in its charge,, explicitly instructed the jury in substance that the plaintiff had a right to crossings, and that he could by law enforce such right if the company refused to allow it. Two requests of appellant were given, with a modification, and the modification is assigned as error. The two requests were in substance-alike, so that we need state but one, as follows: “The amount of your verdict must be the difference in the market value of this appellant’s farm without the respondent’s raikpad upon it, and with its railroad upon it as now is, with the crossings over and under the track now there.” The court refused to give the part of the request we have-italicized, but gave the remainder. There was some evidence in the case of two crossings made by the company at plaintiff’s request, when constructing the road. From the evidence they were apparently temporary. As they were not procured by plaintiff in the manner pointed out in the statute, it would have been difficult for the-jury to find (what the requests assumed) that they were intended to-be permanent, and to fix the rights of the parties in that respect. For that reason the requests were properly modified. We see nothing in the ease to suggest that the evidence is not sufficient to sustain the verdict, or that the damages are excessive. Order affirmed.