Currie v. Waverly & New York Bay Railroad

— 391 — The opinion of the court was delivered by Garrison, J. This writ of error brings np the Circuit record of an issue tried upon an appeal from the award of commissioners appointed to condemn the lands of Mungo J. Currie, upon the application of The Waverly and New York Bay Railroad Company. The landowner is the plaintiff in error. The land taken for railroad purposes is a strip one hundred feet in width and seven hundred and seventy feet in length, lying near, but not fronting upon, New York bay. The strip in question is part of a tract of several acres belonging to the same owner. This tract had been plotted by its owner into town lots, and delineated up'on a map showing streets and avenues, In 1885 lots were offered at public sale by this map, but no lots abutting upon the avenues adjacent to the strip in question have been sold. The route selected by the railroad runs parallel with, and in immediate adjacency to, an avenue marked upon this map as Fifty-second street. The block upon which the route is located is bounded upon this map by Fifty-second street upon one side, and by Fifty-third street upon the other, and is the only block any portion of which is actually taken by the railroad. In this situation of affairs the jury were instructed by the trial court that the damages to be awarded to the landowner must be limited to the particular block a portion of which, as shown upon the map, was actually taken, unless it appeared from the evidence that the owner was using that block in common with the rest of his lands for a single use. In explaining this instruction to the jury the court used two illustrations. The jury was told that if the owner had a factory that covered three or four of these blocks and was using that factory as an entirety, then the block taken would not be the limit for assessing damages. The other illustration was that of a farmer who, having mapped his farm into blocks, continued to cultivate it as a unit. The propriety of the rule of damages thus laid down is the subject of a specific exception to the judge’s charge. — 392 — It is an established rule of law in proceedings for condemnation of land, that the just compensation which the landowner is entitled to receive for his lands and damages thereto must be limited to the tract a portion of which is actually taken. The propriety of this rule is quite apparent. It is solely by virtue of his ownership of the tract invaded that the owner is entitled to incidental damages. His ownership of other lands is without legal significance. Within the tract thus owned his rights are two-fold—-first, he is to be paid the value of the land included in the petition of the condemning agent, and secondly, he is entitled to an award of such damages as result to the residue of his tract. In the application of this rule no practical difficulty can arise where the tract is bounded by the lands of others. The difficulty, in so far as it has arisen hitherto, is in those cases in which the owner of several blocks of land, separated from. each other by public highways, has claimed compensation for land taken in one block, and also incidental damages to his adjacent parcels. The question thus presented is said to have been decided adversely to the claim of the landowner in the case of Matter of New York Central R. R. Co., 6 Nun 149. That case decides, that in the city of New York blocks of building lots arc separate tracts, and that no tract can be regarded as incidentally injured save only the particular one out of which the land required by the railroad company is in fact taken. The value of this ease as an authority upon the point under consideration is, however, greatly impaired, if not altogether destroyed, by the fact that by virtue of an act of the legislature of New York, passed in 1813, the fee to the streets and other public lands in the city of New York is vested in the municipality. Kellinger v. The R. R. Co., 50 N. Y. 206. For obvious reasons this case furnishes no controlling principle applicable to those jurisdictions in which an owner may assert absolute continuity of title to abutting lands lying upon opposite sides of a public highway. Jonas v. Salter, 10 Vroom 469; Ayres v. Pennsylvania R. R. Co., 21 Id. 660; Ayres v. Pennsylvania R. R. Co., post, p. 405. Indeed, a contrary — 393 — "view obtained recognition in the Supreme Court of this state in the case of The Somerville and Easton R. R. Co. v. Doughty, 2 Zab. 495. The present case, however, does not call for a decision upon this point-. The question how before us is not, what would be the rule of damages where the owner’s tract is actually subdivided by public highways, but whether the delineation of proposed subdivisions upon a map shall have the effect of limiting incidental damages to a particular block shown upon such map. The question thus presented is quite apart from the rights which a vendee, purchasing by such map, acquires against his vendor. As the case comes before •us, there is nothing actually upon the ground, nor is there anything constructively in the conduct of the owner to break the previous unity of his title over his entire tract. The fee in the lauds marked “ streets ” upon the map, which would have remained in him even if an easement had actually attached, is as yet in him, unsubjected to any burden which an invading corporation can set up as the legal limit of the territory over which the rule of resulting damages may extend. If damages are to be confined to a small parallelogram of land out of a tract of many acres similarly, although not equally, injured, it must be either because the land thus selected is in fact a separate tract, or because, by virtue of some rule of law, it must be so regarded. In the present case neither of these conditions exist. The instruction, therefore, that the owner’s damages must be limited to a particular block delineated upon his map, unless he could, by evidence, show an -actual and contra user, was giving to the mere act of plotting of the land upon paper an effect in excess of its legal import. The presumption of law thus assumed threw upoil the owner •of the lands a burden of proof which must be regarded as injurious to his property í’ights. Eor the correction of this ■error there must, be a new trial. A further question is presented upon this record. Upon the trial of the appeal a line of proof was offered by the landowner which was overruled, and a bill of exceptions allowed. The offer was to prove, in respect to the lands taken, a num — 394 — ber of matters tending to show that it possessed a special value-for railroad purposes generally, irrespective of its individual advantages to the defendant in error. Some of the matters thus offered were purely speculative opinions, while others were-conclusions from undisclosed facts. Such offers were properly overruled. There were, however, offers which we think were improperly rejected. Among other things, the landowner-offered proof upon the following points: First, that more than two-thirds of the land in Hudson county lying upon the New York bay was occupied as railroad termini; second, the situation of the land in question in relation to this water front; third, the width of the territory thus available; fourth, the-relation of the land in question to that portion of New York bay as yet unappropriated for railroad purposes. These-offers were overruled, not because they were unsusceptible of proof, but because they were regarded as not proper subjects’ for the consideration of the jury in estimating the amount of their award. The propriety of this ruling is before us upon this record. In substance, the landowner offered to show to-the jury the situation and surroundings of the land in question, with reference to its special availability as a railroad approach to an established centre of commerce. His contention was, that if this availability could be shown, it gave to his lands a pecuniary value for this purpose for which, as their owner, he was entitled to be paid. In the aspect in which the case comes before us, we must assume that such an availability existed, and that it could have been shown. The rule is imperative, that where an offer is made and rejected those things must be considered as true which the plaintiff in error offered to prove and was not permitted to prove. Peak v. State, 21 Vroom 179, 219; Peacock v. State, 21 Id. 653, 655; Scotland County v. Hill, 112 U. S. 183, 186. The questions raised by this ruling are: (1) May the situation and surroundings of land sought for railroad purposes impart to it a special value for such purposes generally? (2) If such special value is shown may the owner reap the benefit of it when called upon to part with his land by the compulsory — 395 — process of condemnation ? That land near a centre of trade-increases in value with the growth of commerce and in the line of its requirements, is not more self-evident than that as the locations for railroad access to such a centre are taken up and occupied, the residue of the lands available for such purposes increases in special value in proportion to the demand thus created and to the scarcity thus produced. Erom the same elements of common knowledge it results that the value arising from this situation of affairs is an existing value, inherent in the residue of such lands at whatever time any portion of such residue is sought by a new claimant for railroad facilities. It would be contrary to economic law and repellant to common justice to permit the fact that the lands are selected by a public agent because of this availability to strip them of any element of value which, independently of the new-comer and prior to his advent, they possessed. The fact that the special value acquired by lands thus situated has arisen from their availability for purposes similar to those to which the condemning party proposes to put them, is without significance. Such an availability is not special to this one carrier; it is general to all who are engaged, and to all who may be engaged, in similar enterprises, whose existence and whose presence as a class at or near these lands became an admitted-fact by the rejection of testimony competent to prove it. Whether this circumstance does or does not impart an appreciable money value to any given piece of land is a pure question of fact, and must be treated as such. Our present concern, is to discover by what rule of law applicable to investigations of this character the jury are excluded from passing upon this element of value, if, in fact, it exists. The rule of law applicable to the condemnation of land to these quasi public uses-is, that its owner shall be given, by way of compensation for his land, its fair price for any use for which it has a commercial value of its own in the immediate present or in reasonable anticipation in the near future. It is for the owner’s-deprivation of any existing value that he is to be compensated. Neither the individual advantages to the party acquiring the. — 396 — laud, nor the necessity of its, acquisition, can be considered in •computing the loss, of the land to the owner; but there is nothing in this principle which I have stated as favorable to the public agent, as the law admits-, whicji will enable a condemning party, to take, without payment, land values not created by it nor based upon its advantage or necessity, but which, on the contrary, antedated its advent,and owe their existence to natural situation and growth of trade, and the general economic laws underlying all commercial values. The rule, that .the, special advantage of the land to the acquiring corporation shall not add -to the compensation to.be paid the landowner applies to cases where the taking, which is advantageous to the purchaser, is not pecuniarily disadvantageous to the seller. If, however, the advantageous feature is of such a nature that it is of commercial value in the hands of either, then one cannot take it from the other without paying for it. These views are in entire harmony with the principle laid .down by the Supreme Federal Court in Boom Company v. Patterson, 98 U. S. 403, where it was held that the situation of certain islands, with reference to their special adaptability to booming purposes, might be shown as a circumstance which the owner had a right to insist upon as an element in estimating the value of his lands. Similar views have been expressed in many of the state courts. Trustees of College Point v. Dennett, 5 Thomp. & C. 217, 2 Hun 669 ; Chicago R. R. Co. v. Jacobs, 110 Ill. 415; Gardner v. Brookline, 127 Mass. 358, 363; Haslam v. Galena R. R. Co., 64 III. 353; Young v. Harrison, 17 Ga. 30; Calumet River Ry. Co. v. Moore, 124 III. 329. In re New York, Lackawanna, &c., R. R. Co., 27 Hun 116, the court goes to a much greater length .in applying this principle than is necessary for its support in cases like that before us. In that ease the owner of an abandoned canal bed successfully maintained an award based upon its special adaptability to railroad .purposes. I do not feel .called upon to •express any opinion as to the propriety .pf -the’ application .•made of the law to the. facts of .that ease. . The correct princi — 397 — pie was, however, recognized by the court, and for that alone-the case is now cited with approval. To the same end may be cited Goodwin v. Cincinnati, &c., Co., 18 Ohio 181; Cohen v. St. Louis, &c., R. R. Co., 34 Kan. 158, 164; Johnson v. Freeport, &c., Ry. Co., 111 Ill. 413, 419; Lake Shore and Western Ry. Co. v. Chicago, &c.,. R. R. Co. 100 Id. 21, 33. Under the law as thus expounded the landowner in the-present case should have been permitted to produce evidence as to the situation and surroundings of his land as they existed at the time of the location of the company’s route, for the purpose of demonstrating, if he was able, that there resulted to-his land from these circumstances a special value growing naturally out of the best use to which, from its situation, it was presently adapted. Guarded by the exclusion of speculative opinions upon the one hand, and of the individual advantages to the c'ondemning agent upon the other, such a course will best secure to the owner of the lands taken that compensation for their general value -which, is guaranteed by the constitution whenever private property is taken for a pub- - lie use. A further ground of exception was the admission of testimony as to the price at which a witness, who was a stranger to this record, had offered to sell to another stranger a piece of land belonging to yet a third stranger, but adjoining the tract in question. The proof w.as clearly incompetent. . Montclair R. R. Co. v. Benson, 7 Vroom 557. The attention of the court was not, however, directed to any special ground of objection, and it is evident that the objection was deemed to-be addressed to the period of time at which the transaction' in question occurred. Had the reason which is now urged been-presented at the time, the question would, in all probability, have been overruled. A general objection to the admission of testimony is unavailing upon error. Oliver v. Phelps, Spen. 181: The record.will be remitted-, and-a venire de novo awarded.. — 398 — For affirmance—None. For reversal—The Chancellor, Chief Justice, Depue,'Garrison, Mague, Van Syokel, Brown, Clement, Cole, Smith, Whitaker. 11.* Footnotes [*] Justices Depue and Yan Syckel voted to reverse only* on the first ground stated in the opinion.