Cleveland T. &. V. Ry. v. Gorsuch

MARVIN, J. The railroad company brought proceedings in the probate court of this county to appropriate for railroad purposes certain real estate owned by the' defendant, Gorsueh, and others, in the city of Cleveland. By proper proceedings the matter of the assessment of the compensation to be paid for the premises so appropriated was brought to trial in said court and the jury made return, by its verdict, of the amount assessed in favor of each owner whose lands were sought to be appropriated. Judgment was entered for each on such verdict. The plaintiff brought proceedings in error in the court of common pleas to reverse the judgment as to Gorsueh. On hearing, such judgment was affirmed, and these proceedings are now prosecuted here to reverse such judgment of affirmance. A bill of exceptions is filed here, containing all the evidence offered on the trial in the probate court, together 'with a record of all the proceedings at such trial. Numerous rulings of the court are complained of, all of which have been carefully considered, and some of which are especially pointed out in this opinion. Mr. Gorsueh, the owner of the premises, was undergoing examination as a witness and had testified as to the surroundings of the property, the increase of business in the neighborhood, the proximity of the Valley railroad tracks, etc., and then this question was asked: “What, Mr. Gorsueh, is the common reputation of the C. T. & V. Ry., whether or not it is being operated as a part of another system ? “A. To the best of my judgment and what I have seen, by the Baltimore & Ohio.” On motion of the plaintiff, this answer was taken from the jury» and then this question was asked: “Mr. Gorsueh, you may state whether there is a common reputation-in the neighborhood in which you live, that the Cleveland Terminal & [470] Valley Railway Company are operating and using this freight station which is in the rear of your property, whether they are on not ? ’ ’ This was objected to by plaintiff, the objection overruled, and plaintiff excepted. “A. It has been used in that way.” Then this question: “Well, now, what railway company has been using and operating this freight station in the rear of your property?” This' was objected to, the objection overruled and an exception taken. “A. Well, it has been operated by the Baltimore & Ohio. “Q. Now, Mr. Gorsuch, have you any personal knowledge of the character, as to the extent of the Baltimore & Ohio Railroad Company, whether it is a large or a small railroad? Objected to; objection overruled; exception. “A. It is one of the largest systems we have got — amongst the largest. ’ ’ We find no error to the prejudice of plaintiff in any of these rulings. The witness does not testify as to the reputation in the neighborhood as to either railroad company. He does testify that the freight house adjacent to his premises was used by the Baltimore & Ohio, and that this is one of the largest systems in the country. We think it entirely proper, in an effort to ascertain the value of property, to show that it is near to a great railroad. Property is likely to be enhanced in value by being near to such a railroad, over what it would be by some insignificant tramway or small road. Mr. A. G. Daykin, a witness on behalf of defendant Gorsuch, was being cross-examined by counsel for the plaintiff, and this question was asked of him: “Did you know, Mr. Daykin, of Mr. Gorsuch’s having within about a year sold the thirty-three feet adjoining? “A. No, I don’t know anything about it, except what Mr. Gorsuch said about it. “Q. Did you learn prior to testifying, that such a sale had been made of thirty-three and one-half feet adjoining, by him at about the time he acquired this property? “A. I don’t think I did, Mr. Tolies. He said something about being skinned out of a piece there, but I didn’t take it into consideration.” The plaintiff moved to have this entire answer taken from the .jury, and same was overruled. [471] There was no error in this ruling. Certainly the first sentence of the answer is directly responsive to the answer put. The court was not asked to take a part of the answer from the jury but to take it all «.way. Nor, do we regard the last part of the answer as prejudicial to the plaintiff. There is nothing to indicate who Gorsuch thought skinned him, if anybody did. Further on in this cross-examination the same witness was asked if he did not know of the sale of certain other property by the defendant in this locality, and he answered: “Yes, he told nje he got swindled out of it.” Motion was made by plaintiff to take this answer from the jury. The first part was responsive to the question; the last part was not prejudicial. Without stopping to call attention to each of the rulings on the admission of evidence, in which we find no error to the plaintiff’s prejudice, we come to the consideration of a question appearing on page 136 of the record: Mr. F. H. Goff was upon the stand as a witness for the plaintiff. He had qualified as being sufficiently acquainted with the value of lands in the neighborhood of those under consideration to entitle him to give an opinion as to such values, and had' placed a value upon the defendant’s land, the value of which was in issue. He was then asked this question: “You may state, Mr. Goff, what, during the period named by you in your previous examination, has been the general selling price of .lots upon James Street?” This was objected to, the objection sustained and exception taken. It was expected that the witness would answer $1.50 per square foot, without buildings, $2.50 with buildings. This was property in the immediate vicinity of that in question.' Mr. Goff had testified that he .knew of. a considerable number of sales in that vicinity within the past two years. He had given his estimate of the value of this property. The question now under consideration sought to bring out an independent fact, viz.: the general selling price of lands in the neighborhood within a comparatively short time. He had already said that he knew what it was. We think if the witness had testified that he had not examined the tract in controversy, it would still have been competent to show- by him at what prices land in that locality were selling for. Lewis, Eminent Domain Sec. 443, says: “The propriety of allowing proof of the sales of similar property to that in question, made at or about the time of the taking, is almost universally approved by the authorities.” [472] lie shows, however, that there are high authorities to the contrary. Elliott, Railroads Sec. 1036, says that it is not settled that the price paúl on particular sales is admissible, but that it is held that, the general selling price of land in the neighborhood" is the test. We hold that the evidence of the general selling price of land in the neighborhood is admissible, not the price paid at a particular sale, and that,, therefore, there was error in excluding such testimony. It appears from page 27 of the bill of exceptions, thau when Mr. Gorsuch, the defendant, was upon the stand in his own behalf and had testified that the market "value of the property in question was $15,000, he was,-on cross-examination, asked by plaintiff’s attorney, from whom he purchased it. He answered, from Mr. Johnson, and that it was-two months more than a year before he testified. He was then asked iff the price he paid was not $7,000, and, again, what the price was that he' paid, stating that he expected the witness to answer, if permitted, that he paid $7,000. Both these questions as to the price paid were, on objection of defendant’s counsel, excluded. In this we think there was error. The price paid does not fix the value, nor does the value fourteen months prior to the time at which value is now to be determined, even when fixed, determine the present value, but both have a bearing on the present value and are admissible in evidence as tending to show present value. But the question here was asked on cross-examination and might well have been admitted as testing the witness. See Hoffman v. Conner, 76 N. Y. 121. On page 195 of the bill, it appears that J. G. W. Cowles was being examined as a witness for the plaintiff. He qualified as to the value off the land but not as to the building, and he was asked to give the fair market value of the land exclusive of the building. This, on objection of defendant, was excluded. Plaintiff expected him to say two dollars-per square foot. These and other like questions were asked of witnesses produced by the plaintiff, for the purpose of showing the value of the-building and the land separately. The court excluded such evidence.. The defendant contends that there was no error in those rulings, because the statute requires of the jury to fix a value on the parcel to-be appropriated, and here the land and the building together constitute-the parcel.- It is true that there is but one parcel to be paid far, but if this parcel is made up of parts, though the aggregate value of the-several parts taken separately may not be the value of the parcel when. \taken as a whole, yet such value of the parts furnish some criterion - upon which to "form a judgment of the value of the parcel. Of course,, there are some things where it may well be said that the value of the473 parts taken separately can form no such criterion. A complicated machine may be of great value as a whole and yet the several parts when separated be of practically no value whatever. But the case of a building upon land is far removed from this. Suppose the value of a farm of one hundred acres on which is a fine house is to be ascertained. Can it be doubted that those farmers owning, buying and selling land in the immediate vicinity, but who know nothing of the expense of putting up such a house, may be permitted to testify as to the value of the land, exclusive of the house, and that a competent builder may testify as to the value of the house for the purpose of ascertaining the value of the farm as a whole? It is not certain that the farm is worth as much as the combined value ,of the land and house, .for the house may be wholly unsuited to the purpose of the farm and .yet in itself be of great value. It may be, too, that the value of the house alone and of the land alone may be less than the value of tlie farm with the house upon it because of the fact that the two are so admirably adapted to each other, but it would hardly be urged that a separate valuation of the land and the house might not aid in coming to a right valuation of the whole. One can readily conceive of a case where of necessity the value of the thing to be paid for must be ascertained by taking the separate value of the several parts of that thing. A railroad company by one wrongful act destroys one’s turnout, consisting of horse, harness and carriage. One witness or a dozen witnesses know th$ value of the horse but on one of them knows the value of the carriage. Another witness or another dozen of witnesses know the value of the carriage but no one of them knows anything of the value of the horse. No one would doubt that in such case the value of each might be shown separately: In the case at bar we are of the opinion that the plaintiff had the right to show the value of the land, separate from the building, and the value of the building separate from the land, and in the absence of all other evidence the .aggregate of these two valuations should be taken as the value of the parcel. For the errors pointed out in this opinion the judgment of the court of common pleas is reversed, as is also the judgment of the probate court, and the case is remanded to the court of common pleas for further proceedings. Winch and Henry, JJ., concur.