Roberts v. New York Elevated Railroad

28 N.E. 486, 128 N.Y. 455, 40 N.Y. St. Rep. 454

• Court: New York Court of Appeals
• Decided: October 20, 1891
• Status: Published

Opinions

Peckham, J.

The principal question in this case is in regard to the admissibility of the opinions of experts in reference to the amount of damages sustained by the plaintiff by reason of injury to his easements of light, air and access to his property in Third avenue, in the city of Mew York, caused by the building and operation of the defendants’ railroad. As the question is one of considerable importance and arises in each one of this class of cases, and as the number of such cases tried and to be tried is as we understand very large, a critical examination of the question is called for. It will be well to have a clear view of the facts existing at the time that the questions in controversy were put to the witness, so that we may determine understandingly the precise point in issue.

It appears that the plaintiff in November, 1852, became the owner in fee of the premises in question, which consisted originally of six lots on the east side of Third avenue and on the south side of Ninety-ninth street, but the plaintiff subsequently sold some, leaving himself with a frontage of about 100 feet on Third avenue and about 110 feet in depth. These lots cost the plaintiff about $500 apiece at the time he purchased them, at which time thejr were vacant, and they so remained until 1865, when the plaintiff leased them for $150 per year.

The tenant erected a house upon the corner lot, with a stable, which buildings were destroyed by fire about 1877, at which time the tenant gave up his lease and the lots remained vacant until 1881. In the meantime the plaintiff filled them in and graded them. Before filling in, the premises formed a portion of a marsh or swamp over which the tide ebbed and flowed. In 1881 the plaintiff sold these lots under a contract for $40,000, and the purchaser commenced the erection thereon of the present buildings, five in number, four of which front on Third avenue and the fifth on Ninety-ninth street, each house being four stories high, constructed of brick with brown stone trimmings. The buildings are about forty-seven feet front elevation and sixty-five feet deep and cost about $11,000 each.

The purchaser had them substantially enclosed and the plastering nearly completed, in the spring of 1883, when the plaintiff foreclosed his liens thereon and took them from him and completed them, so that they were ready for occupancy in the fall of the year 1883. Since the month of October, 1883, the buildings have been leased to tenants and the rents actually collected from the Third avenue buildings, from January 1, 1884, to January 1, 1889, have been from one house and lot $7,053; from the second $6,129.11; from the third $7,554.50, and from the fourth $7,541.66. The defendants’ railroad was constructed in Third avenue in front of plaintiff's lots in the year 1878, and was put in operation in December of that year. The plaintiff in his complaint alleged that the building of the railroad was unlawful, and that the unlawful construction thereof interfered with his access to his premises and impaired his easement in the street or avenue by depriving him of a large portion of light and air, and of facility of access to them, in the amount of $75,000, and that by reason of the maintaining and operation and managing of defendants’ railway the value and the use and enjoyment of his premises he alleged had been depreciated and diminished to the amount of $5,000 per annum. He demanded judgment against the defendants, restraining them from operating their road through Third avenue in front of his premises, and also from continuing the unlawful acts set forth in his complaint, and he asked that the damages he had sustained down to the commencement and during the pendency of this action be adjusted by the court and that he might have judgment therefor against the defendants, and each of them, and that he might have such other relief as should be just and equitable.

The defendant joined issue with the plaintiff in regard to many of his allegations, and set up that the defendants were organized under the laws of the state of New York, granting them the right to use the street in question for the purpose of building their railroad, and that they had built it and equipped it, and used and operated it under such acts of the legislature, and in the most careful and skillful manner in which it was possible to construct, use and operate the same in the street mentioned in the complaint.

Upon the trial of the action the plaintiff was a witness, and after stating the condition of the premises, and the fact that he had erected or caused to be erected, buildings upon them at an expense of about $11,000 each, he said that he had offered the whole premises for sale, including the house on Ninety-ninth street, about two years previous, which would have been in the fall of 1887, for the sum of $105,000, and that in his judgment-that was a fair price for them. Here is certainly a very large appreciation in value over the original cost. Would it have been as much if the railroad had not been built ? It will be seen that the present buildings were not erected until some two years after the building of the road had been completed and the operation thereof commenced. Whether the value of the property would have been still greater without the road than it now is with it, was the fact to be found by the court.

Upon the trial a witness was called on behalf of the plaintiff, and testified that he was a real estate broker and had carried on that occupation in the city of New York for twenty-eight years; his transactions had extended throughout the whole city, and had involved both leasing and selling; that he knew the property in question, and was familiar with the value of that property and of the property in the neighborhood; that he had made an examination of the property with a view of seeing what the physical effects to the abutting property were, produced by the railroad and its trains, commencing at least six months ago, on four or five different occasions; that he had given special attention to the effect upon abutting property produced by the elevated railroad and the passing of its trains; that he had been examined a large number of times as a witness on the subject, and in reference to property scattered all over the city ; that he had made it his business to be familiar not only with the selling but the rental values of property along Third avenue since the railroad came there ; that he had informed himself about such transactions, not only in reference to this property, but other property; that so far as experience from personal transactions was concerned he had none in that vicinity since the building of the railroad, in renting or in selling; that he had been engaged by property owners for the last three years to make examinations and testify as an expert witness, and it had been a considerable part of his business, and in every case in which he had testified he had testified against the railroad company; that he was paid $100 to come and give these opinions; he did not know but that the property at the upper end of Third avenue had been benefited to some extent; his opinion was that rapid transit had helped Harlem.; that the building up of the upper end of Harlem had been due to the growth and filling up of all the cross streets; that the growth and filling up of the cross streets had been due to the rapid transit afforded by the elevated railroad in large part.

The following question was put to him: “ To what extent, if at all, in your judgment is the value of Mr. Bobert’s four buildings on the Third avenue, excluding from consideration the house on Ninety-ninth street, to what extent in your judgment is the value of that property damaged, if at all, by the presence of the structure and the running of the trains ?”

Under objection and exception the answer was permitted and the witness stated that the diminution extended from about $110,000 to $80,000, including the loss to the fee value simply.

The court then said: “ That is, you think that the four houses fronting on Third avenue are worth $80,000 now ? ” Witness: “ Yes, sir.”

Court: “ And that they would be worth $110,000 if the structure and road were not there?” Witness: “Yes, sir.”

“ Q. What do you estimate the rental value of the property to be, the railroad not being there ? I refer to the Third avenue front only.”

Same objection and exception. Answer: “$9,000.”

“ Q. And with the railroad there ? A. $6,400, as collectible rents, I mean.”

Upon this - appeal the question is: Were these objections of the defendant properly overruled ?

By resorting to a court of equity and seeking the aid of such court to prevent the operation of the defendants’ road until all his damages consequent upon the illegal construction of its road in front of his premises have been paid once for all, the plaintiff has brought before the court the question, what were the damages to the fee of the premises owned by him, consequent upon this wrongful act of the defendant ? The amount of damages thus caused to plaintiff’s fee is the precise question which the court or jury must determine and for such amount the court gives judgment, upon condition of the plaintiff executing a deed to the defendant of the property wrongfully taken or interfered with by it

The first question asked of this witness, to which exception is taken, as above noted, calls for his opinion as to the amount of such damage, and the second question is of substantially the same nature, except that it refers to the injury to the rental value of the property instead of the injury to the fee. The precise and specific question which is to be determined by the court and jury : is by this interrogatory placed before the witness for his opinion and decision. To permit it to be asked and answered is, beyond all question, against the great mass of authority in this and other states.

It is now asked that this court, in view of the alleged abnormal character of the litigations growing up in the city of New York over the erection and operation of these elevated railroads, shall sanction in regard to them a departure from well-established rules of law touching the admission of expert evidence. It seems to me that- neither the nature nor the extent of the litigation affords the slightest justification for such departure.

Expert evidence, so called, or, in other words, evidence of the mere opinion of witnesses, has been used to such an extent that the evidence given by them has come to be looked upon with great suspicion by both courts and juries, and the fact has become very plain that in any case where opinion evidence is admissible the particular kind of an opinion desired by any party to the investigation can be readily procured by paying the market price therefor. We have said lately that the rules admitting the opinions of experts should not be unnecessarily extended, because experience has shown that it is much safer to confine the testimony of witnesses to facts in all cases where that is practicable, and leave the jury to exercise their judgment and experience on the facts proved. As is stated by Earl, J., in Ferguson v. Hubbell, 97 N. Y., 507: “It is-generally safer to take the judgments of unskilled jurors than the opinions of hired and generally biased experts.” It is the general rule that testimony should consist of facts and not opinions, and the admission of opinions forms an exception to that general rule. Mr. Justice Cowen said, in speaking of the opinions of witnesses as to the then present value of real estate, that they were barely admissible, and that to receive them at all was a departure from the general rule of evidence, and that judges who preside at nisi prius sometimes have reason to regret that they should in practice form an exception. He referred to Rochester v. Chester, 3 N. H., 349, 364-366, where the court refused to receive the opinions of witnesses as to the value of land, even from those skilled in the market. They said the land must be described, and the jury must then judge from facts. See Matter of Pearl Street, 19 Wend., 654.

I refer to this, not for the purpose of throwing any doubt upon the admissibility of expert evidence upon the question of the past or, present value of real estate, where the witness is shown to be competent to give an opinion thereon ; that has been decided years ago by this court and has been continuously approved since that time, see Clark v. Baird, 9 N. Y., 183, but 1 cite it for the purpose of showing the opinion of learned judges regarding evidence of this kind when it first came into practice and the questions thereon first came up for decision.

The only-inquiry here is whether this is one of those cases in which the testimony is allowable.

The precise question has been decided by this court as lately as the 117 N. Y., 219; 27 N. Y. State Rep., 337, in McGean v. The Manhattan Railway. The question there asked was. “What would have been the fair rental value in the years 1879, 1880 and 1881, if the railroad had not been built ? ” And we decided it to be improper. It was so held, because it is merely speculative, and it is speculative upon the very question and upon the only question which the court or the jury is called upon to decide, and the question calls for the opinion of the witness upon that very subject. Some criticism has been made in regard to that case by the learned counsel for the plaintiff herein, and we are asked substantially to review it and to reverse our decision therein. We have carefully considered the arguments of counsel on both sides and have again looked through the cases decided in this court upon the subject, and we are unable to see that there has been any error in the McGean case, but on the contrary we think it is in strict conformity with the law as heretofore laid down by this court.

I shall refer to but a few of the cases cited by the appellant herein to sustain his claim that the court below erred in admitting the question in controversy. They are all contained in his very voluminous brief upon the subject, submitted to us, and out of them the following are all that I deem it necessary to comment upon. Morehouse v. Mathews, 2 N. Y, 514, was an action brought by the plaintiff to recover damages for a breach of contract by the defendant in not feeding to the plaintiff’s cattle as good hay as had been agreed upon. The plaintiff asked a witness what damages had occurred in consequence of feeding the cattle upon the hay in question instead of that agreed upon. Under objection the witness answered and stated that he thought the damage would be fifty dollars. This court reversed the judgment on the ground that the evidence had,been erroneously admitted, and stated that the question called simply for the opinion of the witness as to the amount of damage sustained by the plaintiff.

Van Deusen v. Young, 29 N. Y., 9, was an action, under the Revised Statutés, to recover treble damages for cutting trees on a certain piece of land owned by the plaintiffs, who were remaindermen, subject to a life estate. A witness was asked: What, in your opinion, is the difference in value of the farm by the removal of the timber? And also: Would the farm be worth more or less with the timber cut off ? Davies, J., held that the questions were objectionable as calling for a speculative opinion and not for facts, and referred to McGregor v. Brown, 6 Selden, 114; and Mullin, J., said: “ It was unquestionably competent for the witness to give his opinion as to the value of the farm with the timber on and its value after it was taken off. The difference between the two may be the damages, and in cases where the damages are arrived at by merely subtracting one sum from another, it may seem to be refining overmuch to refuse the witness the right to make the subtraction himself and declare the result; for this is what he is called on 'to do when asked to give his opinion as to the amount of damages.” The learned judge was speaking of a case where the witness knew the ■farm in question, knew it when the timber was on it, and knew what its value then was, and the timber having been cut off he knew what the value of the land was with the timber thus cut off, and in a case where the difference between the two would be the legal damages, it does not even then follow that a witness maybe asked the bald question, “ What amount of damages had the plaintiff sustained ?” The reason is that the rule of damages is a question of law, and the witness upon such a question might adopt a rule of his own and hold the defendant responsible beyond the legal measure. In Marcly v. Shults, 29 N. Y., 346, the court, per Denio, J., held that a witness could not be allowed to state his opinion of the amount of damages. That was in an action for damages for raising a dam so as to overflow the plaintiff’s house. The learned judge said the witness could describe the character of the overflow and its effect, and then it would be for the jury to estimate the damages; that what was offered was, in substance, an opinion as to the amount of the damages which the plaintiff had sustained by the wrongful act of the defendant.

This court in Green v. Plank, 48 N. Y., 669, in an action of replevin for a canal boat, reversed a judgment for the plaintiff where the witness had been asked to state the damages for taking and withholding the boat during the time the defendant had it. In Ferguson v. Hubbell, supra, which was an action for damages for a fire claimed to have been negligently set from which the plaintiff sustained damage to his land, a farmer was called as a witness for defendant and asked the question, What do you say as to whether it was a proper time or not to burn a fallow?” The testimony was said to have been erroneously admitted.

In Van Wycklen v. City of Brooklyn, 118 N. Y., 424; 29 N. Y. State Rep., 790, the question of the admissibility of expert evidence is discussed and held to be allowable only when from the nature of the case the facts cannot be stated or described to the jury in such a manner as to enable them to form a correct judgment thereon and no better evidence than such opinions is at-tamable

In Avery v. N. Y. Central, etc., Co., 121 N. Y., 31; 30 N. Y. State Rep., 471, which was an action for damages on account of the violation of a covenant to keep a proper opening from the defendant’s depot yard opposite the plaintiff’s hotel, the plaintiff was asked this question: “ Do you know what the rental value of your Continental property, real and personal, would have been between the 10th day of September, 1881, and the 28th day of January, 1884, if there had been a sufficient opening- kept and maintained by the defendant opposite your hotel, for the convenient access of passengers and their baggage to and from the twenty.foot strip of land lying south of the hotel ?” This evidence was held to be improper.

Judge Gray, in delivering the opinion of this court, said: “ The witness should not have been permitted to give his opinion upon that head. His testimony should have been confined to stating facts. He might have described the condition of his property. He could have given evidence of what the defendant did to or upon the land over which he claimed to possess rights. He could have stated what his business was, and what it amounted to at times prior and subsequent to any change in the situation and •circumstances surrounding its conduct; and it would then be for the jury to draw the conclusions from the facts stated as to whether plaintiff had been injured by the defendant, and what amount of damages he should recover.”

In Norman v. Wells, 17 Wend., 186, it was held by the old supreme court that the amount of indemnity, when it is not capable of being reached by computation, is always a question for the jury. It was stated that, if there be any rule without exception, it is this, and the court was unable to find any instance where the opinion of a witness has been received upon that particular question. The action was on covenant for damages to the plaintiff by the erection of another mill on the same stream with plaintiff’s mill, and a witness was asked the damages which, in his opinion, the plaintiff had sustained by reason of the erection of such mill. The question was allowed at circuit, and a new trial was granted for the error in allowing it.

The learned counsel for the plaintiff has cited a number of cases on his side which he claims are authorities for the question put to the witness herein. The briefs of both counsel exhibit untiring industry and research, and all the cases that have been decided involving questions of this nature, both in this and other states, would seem to have been found and cited on the one brief or the ■other. It is impossible to notice them all, and I shall not make the attempt. Special reliance seems to have been placed by the learned counsel for the plaintiff upon the cases I now refer to.

In Clark v. Baird, 9 N. Y., 183, the point decided was that the opinions of a witness acquainted with real estate, the value of which was in dispute, were competent upon the question of such .value. It was an action on the case by the purchaser of a tavern stand against his vendor for fraudulently misrepresenting the boundaries of the land. A witness for the plaintiff testified that he had examined the tavern stand with a view of buying it, and that “ it was worth $1,000 if it extended to the race and trees. The strip taken off would reduce it one-fourth.” This testimony was objected to, on the ground that the amount of damage could not be ascertained by the opinion of the witness. The objection was overruled, and the defendant excepted. Part of the alleged fraud consisted of the statement that the tavern stand extended to the race and trees. The plaintiff claimed that, as matter of fact, it did not extend so far. The learned judge, in the course of. his opinion, said that the witness had, in substance, stated the value of the stand, including all the land it was represented to include, and also in contrast with that statement, and as bearing upon the question of damages, had further stated the value of the ■stand excluding that part which, as the plaintiff contended, did not pass by the defendant’s conveyance to the plaintiff by reason of his want of title. I do not see that the case affords any countenance for the claim of the plaintiff herein. The witness simply stated the value of the tavern as it stood, estimating that a certain amount of ground in plain view was attached to the stand, and-then stated what, in his opinion, was the value of the land with that particular piece of land not included. Within any rule’ regarding the opinions of experts w’e think this evidence admissible.

In Rochester & Syracuse R. R. v. Budlong, 10 How. Pr., 289, which was a proceeding by plaintiff to take defendant’s property by the right of eminent domain, the opinion of the general term of the supreme court was delivered by Judge Selden in 1854. It contains expressions which favor the views contended for here by plaintiff’s counsel, and it includes all that can be said in favor of the admission of this kind of evidence. The opinion has not been, followed by the courts of this state, and many subsequent decisions of this court, some of which have already been cited, or& at war with the doctrines announced by Mr. Justice Selden. The-case cannot be regarded as authority in this state at the present, time. See, also, Harpending v. Shoemaker, 37 Barb., 270; Simons; v. Monier, 29 id., 419.

In Hine v. N. Y. Elevated R. R. Co., 36 Hun, 293, which was an. action brought to recover damages for the obstruction of light,, air and access to the plaintiff’s premises by reason of the construction of the defendant’s road, a real estate broker was called on the part of the defendant, who, after stating that he was familiar with the premises in question, was asked this question: “ What has been the effect in your opinion of the elevated railroad upon the value of the property, so far as the items of light, air and access are concerned ? ” Upon the plaintiff’s objection the question was exóluded and the court held that this was error. The court in the course of the opinion, which was delivered by Davis, P. J., said that “ the answer to the question should have been, received. The witness was an expert and that fact was sufficiently shown to entitle him to express an opinion on the subject. The-opinion called for related to the precise question of damages, which, as will be seen, the court submitted to the jury, and there; is no reason why the opinions of experts are not admissible upon those questions.’’ No case is cited in the opinion and what I have; quoted is all the learned judge said in regard to the admissibility of evidence of this kind.

The case is not in harmony with the cases in this court and. should not be followed. The evidence is open to all the objections spoken of, in that it puts the witness in the place of the-court and jury, and is only his opinion upon the very point to be. decided by them.

In Kenkele v. Manhattan Railway, 55 Hun, 398; 29 N. Y. State Rep., 95, an action similar to the one at bar and where as-here the defendant had neglected to take proceedings to condemn the property of the plaintiff, the general term of New York held that the measure of damages was the difference at the time of the-trial between the value of the property to which the easements-were appurtenant, with the easements, and its value without, them. The manner of proving such difference was not discussed. Mr. Justice Yan Brunt in the course of his opinion in that case,, after stating what he regarded the true rule of damages to be, said: “ We do not think that the court of appeals has as jet condemned the rule. Until they do, justice seems to require that it should be followed.”

It is stated as one of the grounds for the motion for a ■new trial in that case, that incompetent evidence upon the subject of damages had been given, but it does not appear, what that incompetent evidence was. The learned judge said: “ The evidence as to the value of these easements is necessarily, from the ■very nature of the case, somewhat conjectural, and stringent and •strict rules are not to be applied where they would deprive the owner of all proof of damage, as we are dealing with the damage done by a trespasser; and while damages should be proven with treasonable certainty, the rights and interests of the owner of these easements should not be sacrificed.” That is undoubtedly true. Continuing, the learned judge said: “ What more certain evidence of the value of these easements can be given than by proof of what the property to which they are appurtenant would now >be worth with the easements, and what it is worth without these ■easements ?” Evidence as to what the value of the property •would be with the easements alluded to unaffected by defendant’s acts, is proper. No dispute arises on that point. The controversy arises when the fact of that value is to be sworn to as an ■opinion by a so-called expert, and which opinion, speculative and uncertain as ,it must be, is directed to the very point which the jury is to determine. Evidence upon the subject of this speculative value, a value which in fact does not and cannot exist, should be confined to those facts which the court shall hold to be material for a fair and intelligent judgment, and then the inferences to be deduced from them may be drawn just as well by the jury ras by the expert, and in all probability much more fairly.

This case is one where the facts which form the basis of opinion can be specified and should be stated and the inference to be drawn from those facts should be drawn by the court or by "the jury.

A sufficient number of cases have been cited on both sides I ■think to place fairly before us the different reasons for the different views which would exclude or permit evidence of this nature to be laid before a jury. There can be no doubt, as I have already observed, that the great weight of authority both in the supreme court and in this court is against the introduction of this evidence; and, indeed, there is no reason why it should be introduced: Expert evidence of the value of real estate is proper and in many cases essential. The present value of the property of the plaintiff can be proved by expert evidence, both the value of the fee and the rental value. Both classes of values could also be proved by expert evidence as of a time immediately prior to the building of this road. They are facts which now exist or which once existed, and if the expert have knowledge of them he should be permitted to state it.- As to what the value would have been under wholly different circumstances he knows, ;and can know, nothing, but must form an opinion wholly specu lative in its nature, which opinion must be based upon data perfectly easy for him to state and from which, when once stated, an ordinarily intelligent jury pan draw as just and fair an inference-of a possible value as could the expert. And that very inference-must in some way be drawn by the jury, for it is the question it is called upon to decide. The opinion of the expert, if of the least value, would have to be based upon an intelligent consideration and knowledge of the value of other property as nearly as may be similarly situated, in about the same quarter of the town and under nearly the same circumstances, but without the presence-of a railroad of the nature of the defendants’ in front of the-property. All this information he could easily impart to the-jury.

Proof might be made of the filling up of the side streets along; the lines of this railroad and of the incoming of a large population, the erection of buildings somewhat similar to plaintiff’s and their rental and fee value, and finally a general statement of the-condition and value of property in the neighborhood of that in. question could be proved. All these facts would be of service in determining the question to be submitted to the jury. When they are all stated and past and present values proved, the jury or the court will then be as fully competent to draw the inference,, which it is its peculiar province and duty to draw, as the expert.

This special question is one which all admit is to some extent and in all cases a matter of conjecture aud speculation. How much the appreciation of property is itself due to the erection of the-road and the consequent filling up of the neighborhood opened by it, and whether the property without the construction of the-road would ever have become as valuable as it is, are questions; which, when these various data have been given, can be speculated upon as well by the judicial tribunal as by the hired expert. It is none the less conjecture and speculation because the expert, is willing to swear to his opinion. He comes on the stand to swear in favor of the party calling him and it may be said he-always justifies by his works the faith that has been placed in him.

This case is a good illustration of what may be almost termed the-wholly worthless character for any judicial purpose of the testimony on both sides upon this one point as to what would be the value of this property if this railroad had not been built. The experts on the part of the plaintiff guessed that it would have been $30,000-more valuable, while those on the part of the appellants, equally intelligent it would seem, and equally honest, thought that the-value of the property would have been less if the railroad had not been built. The court is not in the least aided by these various guesses of these hired experts. If the facts upon which, these gentlemen based their guesses are placed before the court, more exact justice will in my judgment be the result if their speculations be excluded and all speculation as to the damage sustained by a plaintiff be confined to the court and drawn entirely from the evidence in the case.

It is claimed, however, on the part of the plaintiff, that even if this question were objectionable, yet the fault was cured by the questions put by the. court, in response to which the witness said that the four houses fronting on Third avenue were worth $80,000 and would have been worth $110,000 if this structure and road were not there. If the objection were only to the form of the question, that which was made use of by the court would probably have cured the difficulty. But it is no objection to form that I have been discussing.

The objection is to the substance of permitting the witness to state what in his opinion would have been the value of this property at this time, in case the railroad had not been built and operated. This objection was not cured by the alteration of the form of the question. It is also claimed that there was sufficient evidence, excluding entirely the evidence of experts under the ruling of the court, upon which this judgment may be sustained. There is some other evidence in the case, but what would have been the result if all this objectionable evidence were eliminated, it is impossible for this court to determine. We went to the very extreme limit in upholding the judgment in the McOean case, but there the evidence was much more minute and the objectionable evidence seemed to have been objected to on grounds other than its absolute incompetence. We thought that it was doubtful whether the objection specifically and pointedly raised the question. The objection in this case is not only that it was incompetent, but the question was objected to on the ground that it was for the court alone, and not for the witness to determine the amount of damage. We think the objection was sufficiently exact to raise the question that has been discussed here.

Lastly it is alleged on the part of the plaintiff that even assuming error, it is not prejudicial to the defendant, because the defendant is not bound to avail itself of the privilege granted it by taking a deed of the easement from the plaintiff, upon the payment of the amount of the damages found by the court, but may submit to the injunction and in the meantime take proceedings to condemn the property. We do not think this contention can avail the plaintiff. The inquiry into the fee value of the plaintiff’s property is predicated upon the idea that the defendant is to take the property at the value found in order to escape the injunction which would otherwise issue, and indeed it would seem that the defendant would have not much choice in the matter and that it would be substantially bound by the judgment to take the property at the value found by the court or jury. It is idle to talk about a company situated like this corporation submitting to an injunction and ceasing to operate its road through the avenue for a single day. It might be questionable whether there would be the slightest justification for such stoppage, founded upon any allegation that the amount of damages found by the court was too great At any rate the question was tried by both sides for the purpose of determining what the amount of damages really was, and the defendant has the right under the circumstances, where the investigation of. such question was proper and material, to claim that it should be made upon competent and legal evidence, and where improper evidence is admitted to its damage it has the right to ask the court for relief.

Our conclusion is that for the error in the admission of this evidence the judgment should be reversed and a new trial granted, costs to abide the event