Shenandoah Valley Railroad v. Shepherd

26 W. Va. 672, 1885 W. Va. LEXIS 104

Opinion

Green, Judge:

The instructions'set out in the first bill of exceptions were intended to lay down a rule to govern the jury in its appraisement of the value of the parcel of land ninety feet long by sixty-six feet wide taken by the railroad company from the detendants. Upon this question Judge Field in delivering the opinion of the Supreme Coui’t of the United States in Boom Company v. Paterson, 98 U. S. 408, says : “So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is pei’haps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully governed rule; but as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may reasonably be expected in the immediate future.” Just preceding this Justice Field had said: “In determining the value of land appropriated for public purposes the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is applied, but with reference to the uses for which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may 'be able to use it and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market-value which can be readily estimated.”

In that case the defendant, Paterson, owned certain islands in the Mississippi river above St. Anthony’s Falls. The position of these islands especially fitted them in connection with the west bank of the river to form a boom of very extensive dimensions at a very small cost. The jury found a general verdict for $9,358.33, but found specially, that the compensation which the owner of the land was entitled to, if the adaptability of these islands for boom-purposes was uot considered, would be $300.00; but if it was considered, his just compensation they estimated at $9,058.33. The company asked a new trial and the court granted the motion, unless the proprietor would reduce the verdict to $5,500.00, which he elected to do; and judgment was rendered accordingly. In the opinion of the Supreme Court it appears, that the boom-company claimed, that no one but them could use these islands for boom-purposes, they having by their charter a monopoly of this business on the river. And, as I understand the court, if this had beeu true, the value of these islands for boom-purposes should not have been included in the estimate of the proprietor’s compensation ; but as this boom-company had no such monopoly, the special value of these islands for boom-purposes was properly considered in fixing the compensation of the proprietor, (pp. 408-9.) It appears from this case, that the Mississippi river is a navigable stream above St. Anthony’s Falls, and that booming of timber on it was a business; and though the evidence is not stated very fully, yet from what is said in the opinion, I think, the inference is but fair, that this business of booming was such as to add to the market-value of these islands because of their adaptability for booming-purposes. In the paragraph we have quoted Judge Field says : “ Begard should be had to the existing business or wants of the community or such as may be reasonably expected in the immediate future.” I presume in this case there must have been evidence, which justified the jury and the court in holding, that the market value of these islands was increased by the condition of the existing boom-business on this part of the Mississippi river or by what could be regarded would be the condition of this booming-business in the immediate future. I am the more persuaded that this was so, because.the court cites approvingly on page 410 the case of Young v. Harrison, 17 Ga. 30, where the court say of this case: “ In it, where land necessary for the abutment of a bridge was appropriated, the supreme court of Georgia held, that its value was not to be restricted to its agricultural or productive capacities, but that enquiry might be made as to all the purposes to which it could be applied having reference to the existing and prospective wants of the community. Its value as a bridge-site was, therefore, allowed in the estimate of compensation to be awarded to the owner.” My inference from this case, relied upon by the defendant in error, is that which is drawn by the reporter in the syllabus of the case and that is: In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale between private parties, the enquiry in such case being, what, from their availability for valuable uses, are they worth in market.” And “ as a general rule, compensation to the owner is to be estimated by reference to the uses for which the appropriated lands are suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.” It seems to me, that the law is as correctly and as definitely laid down in the syllabus of this case as it can well be done, except that instead of using the words in the conclusion “or such as may be reasonably expected in the immediate future,” I would deem the law. more accurately stated if the language had been : “ or such as may be reasonably expected in the near future.” The value of property at a remote future time is inadmissable as a basis for assessing its present value; it partakes too much of the speculative. See Everett v. Union Pacific Railroad Co., 10 American and English Rail way Cases, 204, 206. The wants of the community in the future must be in a future not so remote as not to affect the present market value. (See Cobb v. Boston, 112 Mass. 183.)

Not confining ourselves to, the facts set forth in the, preamble to the instructions given by the court, as set forth in the first bill of exceptions, but looking to all the- evidence in the case, as set forth in the third bill of. exceptions, which we have a right to do, can the plaintiff in error object to the instructions contained in the first bill of exceptions ? If we take the two instructions set out in' the first bill of exceptions together, it seems to me, while the law is not as definitely and clearly laid down, as it might have been in connection with ttíe actual evidence in the case, and while the first instruction, the one given at the instance of the defendants, was perhaps calculated from the nature of the facts in proof in the case to mislead the jury, yet, as the law laid down by it can not be in itself said to be erroneous, and as the plaintiff asked no modification of the instruction, I do not think a new trial ought to be awarded because of anything appearing in the first bill of exceptions. But this instruction, if the request had been made by the plaintiff below, ought to have been modified so as to read: “The court instructs the jury, that in ascertaining the value of the land proposed to be taken by the Shenandoah Yalley Railroad Company they may properly enquire into its value by reason of its being a natural abutment for a bridge across the Potomac, but in making such estimate they must have reference to the existing needs of the community for another bridge across the Potomac at or near Shepherdstown or to the probable need oí such other bridge across the Potomac at or near Shepherdstown in the near future; but in considering the market-value of this natural abutment of this bridge they must not consider the uses to which the Shenandoah Valley Railroad Company had put this ground in. constructing its railroad.” When so modified and given the instruction asked by tlie railroad company set out in the first bill of exception need not have been given, as it would have been covered by the above instruction.

Having stated as accurately as can be done the rule proving the appraisement of the real estate actually taken, I will now consider how the damage to the residue of the tract beyond the peculiar benefit to the same from the construction of the road should be estimated. In the first place it is settled that no benefit, which the residue of the tract derives from the construction of the road in common with other adjoining tracts, can be abated from the damage to the residue of the tract; as by the very words of the statute, to justify such abatement, the damage must be abated only by the -peculiar benefit to the tract; such for instance as draining it by the construction of the railroad. It would be obviously unjust to the proprietors, if by an abatement of their damages they were made to pay for benefits enjoyed by them in common with persons, through whoso lands the railroad did noj;.pass. It would seem to be equally obvious, that the railroad company ought not to be required to pay for damage to the residue of the tract, where such damage was only such as the proprietors of the land suffered in common with other owners of laud, through which the railroad did not pass, where such damage was such as such owners, through whose land the railroad did not pass, could not recover for. In other words the railroad company ought not to pay the proprietors for damage to the residue of the tract, when such damage was of such a character, as made it common to the entire neighborhood, though it may have arisen from the construction and operation of the railroad. Such damage is damnum absque injuria and ought not to be recovered. As for example damage resulting from the loss of custom to one’s mill, wharf or store, though they be on the tract of land, through which the railroad passes, is not such damage as can be estimated by the commissioner or by the jury in as- sessiug damage to the residue of the tract. Such damage is only such as is sustained by the proprietors of the tract, through which the railroad passes, in common with all other owners of mills, wharves and stores in the neighborhood, on land through which the railroad did not pass. It is not properly damage to the property arising from the construction of the railroad, but is more properly speaking damage to the trade of the proprietors resulting from the subsequent use of the railroad. (Cadonian Railway Company v. Walker’s Trustees, L. R. 7 App. Case 6; Am. & Eng. Railroad Cases, 536.7; Brand’s Case, 4 H. L. 171; Rex v. London Dock Co., 5 Ad. & E. 163.)

To justify the making of an allowance for damage to the residue of the tract, the damage must be such as results directly and proximately to the property itself from the construction and operation of the railroad, such for instance as the obstruction of access to the property, the obstructing or diverting of a mill-race, the increased danger of fire to a store in consequence of the proximity of the railroad-track. It is very obvious that no damage of this description was sustained by the mills, wharf or warehouse in the case before us, regarding them, as I do, as a part of the tract, through which the railroad passed. The saw-mill and grist-mill were on a run which flowed through this tract of land ; but the map shows, that the railroad was constructed on a bluff, which was not nearer to this run, where it passed through this tract, than 100 yards. Of course the mill-races of these mills could have neither been obstructed, diverted nor in any manner interfered with by the railroad; and the mills themselves could have been in no way directly injured by the construction or running of the railroad. It could not have endangered them by fire from the locomotives ; it could in noway have obstructed any road to them or in any way have injured them proximately or directly; and the same is obviously true of the warehouse, which was situated on a road some 200 yards distant from the railroad; and though, for all that appears in the record, the wharf may have been within fifty or seventy-five yards of the railroad-, yet, as it was on a level with the river, and the railroad was elevated above it on a bluff of a very considerable height, it is impossible that it could have been injured in any manner directly -or proximately by the railroad. JSTo road to it could have been obstructed by the railroad-track. Nor could any other direct injury, which I can conceive of, be done to it by the railroad. It is true, the map does not on its face show the elevation of the railroad above the river, but it must have been considerable, as it was necessarily on a level with thq railroad-bridge, which must have been considerably elevated above the river.

But it is contended by the appellee’s counsel, that, though all the evidence offered to the jury or all facts proven before them during the trial were certified by the court, yet the jury may have acted upon other facts not before this Court, which they obtained by their personal view of the premises, and therefore, as this Court can not know all the facts, on which they acted, the verdict of a jury should never be set aside by an appellate court, because the damages are regarded as excessive. It is unquestionably true, that an appellate court ought never to set aside the verdict of a jury in a condemnation case, where the jury have viewed the premises, unless the facts proven in court before the jury are such as show their verdict to he grossly excessive in amount, after supposing that everything was seen by them upon the view, which tended to increase the damage, which could he supposed to be seen on a view of the premises, and which is not utterly inconsistent with the facts actually shown to have been proven in court. Such utterly inconsistent facts will not however be supposed by the appellate court to have appeared upon the view of the j ury. Thus in this case this Court can not suppose, that the view of the jury showed them that the warehouse was endangered by fire from the locomotives, as it was proven by the map, which was before the jury at the trial, that it was 200 yards distant from the railroad.

I am therefore of opinion, that the circuit court erred in permitting the three questions set out in the second bill of exceptions to be propounded to Mrs. Shepherd, one of the defendants. In answer to these questions she said, that the wharf-property, the mill-property and the warehouse-property were greatly depreciated by reason of the taking of ninety by sixty feet of the land of the defendants by the railroad company for tliepurposes,for which it was sought to be appropriated by the company. She obviously meant that the business done at these mills, warehouse and wharf would be greatly injured by the competition which the running of cars on the railroad would bring about. This, we have seen, was a damage, which the jury had no right to consider in making up their werdict. The record shows by the preamble set out in.bill of exceptions Ro. 2, that the facts, which had been proven, when these questions were propounded, that neither of the mills, the warehouse, nor the wharf could by any possibility be injured or damaged proximately or directly by the building of the raih’oad; and as this was entirely obvious, the court ought not to have permitted questions to be propounded to Mrs. Shepherd, her answers to which could not according to a correct view of the law tend to enlighten the jury in the performance of their duty but might as doubtless they did tend to mislead them. Such questions might be very proper, if the facts before the court did not show, as in this case they did, that the answering of them could not enlighten the jury but might mislead them.

Of course I can not tell how the jury arrived at their ver-diet of $1,000.00 in this case; but, as the proof was clear, that excluding this supposed damage to the mills and warehouse and wharf and the value of the land as a natural abutment for a bridge it could not have exceeded $150.00, the estimate of the jury must have been made up to a large extent from this supposed damage or from a valuation by the jury of this land as a natural abutment to a bridge. Row I have shown, that in valuing this ground as a natural abutment to a bridge the jury must have reference to the existing and prospective wants of the community,.whom the bridge would accommodate. Upon this important point there was absolutely no evidence before the jury except that to be derived from the map produced in evidence and what appeared upon it. It is true the jury and this Court can take judicial notice, that the Chesapeake and Ohio canal runs along the bank of the Potomac river opposite Shepherdstown, and from this fact an inference might justly be drawn, that there would be considerable trade and business between Shepherds- town and Jefferson county and this canal, and that a bridge would be wanted probably at Shepherdstown to accommodate this trade and business. Blit the map produced before the jury had marked upou it a road from Shepherdstown to the Potomac and not only a county-bridge across it but also a ferry. Whether these'were sufficient^ accommodate the public, or whether there was then a demand for another bridge at or near Shepherdstown for the accommodation either in reference to the existing business or to the prospective business in the near future could not be inferred from this the only testimony before the jury. It could not be ascertained by an inspection of the premises by the jury upon their view of the ground but could only be proven by witnesses before the jury. No such proof was offered ; and it does seem to me, that upon correct principles of law, such as I have laid down, on this very scanty and unsatisfactory evidence as to the existing business or wants of the community or such as might reasonably be expected in the near future the jury would not have been justified in assessing the value of this ground as a natural abutment for a bridge across the Potomac river at $950.00, as they, it would seem, must have done, unless they allowed for this supposed damage to these mills, warehouse and wharf, which they ought not to have done.

I have stated, that with the exception of the facts appearing on the map before the jury there was no evidence of what demand, if any, there was for a bridge other than the one then in existence across thePotomac at or near Shepherdstown. It is true, that Mrs. Shepherd, one of the defendants, does say, that she estimates this ninety feet by sixty feet taken by the railroad company at $5,000.00. “And she estimates this .value from the fact that it is used as au abutment for the railroad-bridge; that she had always valued it as an abutment for a bridge, before the railroad came there; was worth that much not to have a bridge built upon it.” This opinion of Mrs. Shepherd, a party interested, would certainly be a very unsafe foundation for the verdict of a jury. She says she always valued it as an abutment for a bridge. In this she was probably right. But that furnishes no information, on which a jury could 'fix its value. What she meant by saying.it “was worth $5,000.00 not to havé a bridge built upon it,” is difficult to say. The literal meaning of such language is, I suppose, that in her opinion it was worth$5,000.00 leaving out of consideration its value as a natural abutment for a bridge. But it is impossible that she could have meant this, as four farmers residing in Jefferson county concur in estimating this property, which they had examined, as worth but |50.00, excluding from their estimate its value as a natural abutment for a bridge ; and there is no evidence to show that this is an under estimate. I suppose Mrs. Shepherd meant to say, she thought this property was worth $5,000.00 even though the railroad company had not built their bridge there. But as she furnishes none of the facts which it has been shown is necessary for any one to put a proper estimate on the present value of a natural abutment for a bridge, her opinion was entitled to very little weight before the jury.

For these reasons I am of opinion, that the circuit court erred in not setting aside the verdict of the jury and granting a new trial on the motion of the railroad-company; and that for that reason its judgment should be reversed and a new trial awarded, and the cause remanded to the circuit court to be proceeded with according to the principles laid down in this opinion.

ReveRSed. Remanded.