Van Wie v. Southern Wisconsin Power Co.

Siebecker, J. It is contended that the court erred in -submitting to the jury evidence of the profits of the business •carried on upon the property in question. It is not questioned that evidence of the profits of a business conducted upon the land in question before the alleged flowage is not •competent to establish the market value of the land, nor is there dispute between the parties that evidence of the adaptability of the land for business purposes is a consideration which goes to show the value and is properly to be submitted to a jury to ascertain the damages to land from flooding a part thereof. This latter element of value is entirely distinct •from the former and is proper to be considered in estimating the value of such land before and after flowage. It is strenuously contended that the opinion of the plaintiffs’ witnesses as to the value of this property is shown to have been based upon the profits of the business theretofore conducted on this land and that such evidence was incompetent and operated to the prejudice of the defendant. The court by special ques [414] tion submitted to tbe jury tbe inquiry of finding tbe difference in market value of tbe land in question before and after tbe construction of tbe dam causing tbe flowage, and in connection therewith explicitly informed tbe jury tbat tbe difference in tbe market value of tbe property before and after tbe flowage, if any, constituted tbe damage caused thereby to tbe land, and directed them tbat “In fixing this market value you cannot allow any sum for any injury tbat may have' resulted to tbe business tbat tbe plaintiffs conducted on tbe land,” and also, “In fixing this market value you cannot assess any sum for remote or speculative values, or consider any speculative or remote use to which tbe property might be-put.” It is manifest tbat tbe court properly limited tbe jury to a consideration of tbe evidence on tbe question of market value. Treating tbe evidence received in tbe light of this inquiry, can it be said tbat the witnesses based their estimates of value on tbe profits realized in tbe business tbat bad been conducted on tbe premises? Tbe evidence shows that tbe witnesses took into consideration tbat tbe business conducted there would produce an income. Though tbe witnesses, in phrasing their testimony, did not use tbe words “profits” and “income” with strict nicety, yet it is plain tbat in giving their estimates of tbe value of this land they meant and included in their estimates of value tbe element of tbe adaptability of the lands for conducting a profitable business thereon of the nature of tbat which had been conducted ón tbe premises; but. tbe evidence does not warrant tbe claim tbat such estimates were based on tbe actual profits tbat bad been realized or tbat were expected to be realized from such a business. We are persuaded tbat the jury under the instructions and directions of tbe court understood correctly tbe bearing of such evidence and were not misled to tbe prejudice of tbe appellant, and that no error was committed in submitting this evidence to-tbe jury. The property in question is of an unusual character and is restricted in its uses for business purposes, and its415 market value depends in a material degree upon tbe nature and kind of business that could be successfully conducted thereon. These conditions made its adaptability for profitable business purposes an essential and proper consideration to be taken into account by the witnesses in giving their opinions of its market value. These facts also had an important bearing on the question for determination by the jury, namely, the amount of damages sustained by the plaintiffs on account of the alleged flowage. Under the facts and circumstances shown it is clear that this inquiry, of necessity, calls for the exercise of judgment by a jury and hence is an inference to be drawn by them from the facts and circumstances. We cannot say as matter of law that the damages awarded are excessive. There is no room for argument that the witnesses were not qualified to give their opinions as to the value of the property nor for the claim that the market value of the property was but slightly affected by the flowage because plaintiffs could readily remove their buildings to other points on the premises and continue their business. These questions were within the jury’s field and must be held to have been properly determined by them. The claim that the premises were within the limits of ordinary high- and low-water mark is not sustained by the evidence. The alleged improper remarks of counsel in argument to the jury are not set out in the record, nor can they be held, if made as claimed in oral argument, to have affected the substantial rights of the parties. By the Oowrt. — Judgment affirmed. KeewiN, J., took no part.