Tingley Brothers v. City of Providence

8 R.I. 493

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1867
• Status: Published

Opinion

The opinion of the court was read by

Brayton, J.

The appellants, dissatisfied with the award of the commissioners, in the matter of the lay out and opening of South Water street, appealed from that award and have claimed a trial by jury.

The questions before the jury were, if the damage to the property of the appellants by the laying out of said street exceeded the benefit and advantage accruing to their estate thereby, and how much.

On these questions certain witnesses were, admitted as experts in real estate upon the offer of the appellants, and were allowed to testify and give their opinions as to the value of the land taken for the street and of -the adjacent land, and other wit nesses were permitted to testify to the present rises of both, and to facts tending to show the probable future uses of the adjoining lands after the street was opened. And the appellants offered further in evidence the opinion of said experts, that the appellants would suffer loss and damage over and above the benefit and advantage which they would derive from the laying out and opening of said street. These opinions were ruled out by the judge who presided at the trial, and the ruling forms the first ground for the appellants’ motion for a new trial. And it is said in argument, that such evidence is the best which the nature of the case admits, and has been uniformly held to be admissible.

Now, we think, the appellees claim more than the cases warrant, when they say that the evidence has been uniformly admitted. It is true that the testimony of experts is admitted uniformly in matters of science, of peculiar skill, and in all cases where such testimony becomes necessary to enlighten the jury, and enable them to judge properly the facts submitted; that experts are so admitted, to testify to the value of real estate, and in one or more instances they may have given their opinions as to the amount of damages to real estate taken for roads or highways. But, that such evidence is not uniformly admitted, is sufficiently clear from the authorities cited to this point by the appellant. No one of the cases cited by the appellees sustains, the proposition, or admits such evidence by any ruling upon its admission or rejection.

The question here, as put to the witness, is not whether the loss and damage to the land of the appellant is greater than the benefit and advantage; but whether the appellants would suffer loss and damage, over and above the benefit and advantage to them, by the laying out the street.

There is no case which holds a question in that form admissible.

But were the opinion offered in evidence that the loss and damage to the land of the appellants would be greater than the benefit and advantage to:it,.it is still not maintainable that it is uniformly admitted. In 11 Cushing, cited, the evidence given was the value of the estate before the laying of the wall, and the value afterwards, and this was held by the court admissible necessarily for want of other means of proof, and it was said, “if the true value of the estate, immediately before and immediately after the trespass could be ascertained accurately, the most exact means would be furnished to determine the real pecuniary damage.” Market value was nearest, and any competent evidence to prove such value was admissible. If no sales near the time, then the opinions of practical men best acquainted with property, to give their opinions, the weight of those opinions to be determined by the reason which they give.” Such men did testify in that case that the land would be considerably enhanced in value for house lots, but did not state the amount. In Dickenson v. Inh. of Fitchburg, 13 Gray, 147, it was held that commissioners who had often before assessed damages for land taken for highways, may give their opinions of the effect of taking land for that use. The witness had been asked the market value of the land, and had answered. Ou being asked in cross-examination to state his reason, the question was objected to and ruled out. It does not appear that the witness was asked the amount of damages. In Webber v. Eastern Railroad Co., 2 Met., 147, such question was not asked, and the witness testified only that the fact .then would influence and effect the rate of insurance, not the amount. In East Penn. Railroad Co. v. Hottenstine, 47 Penn. State, 28, the question proposed was the value of the land before and after. It was held that from necessity opinions as to. that were admissible. In Howard v. City of Providence, 6 R. I. 514, the question was as to the value of the land. In Illinois Railroad Co. v. Downing, 18 Ill. 257, the question put to the witness was as, to the value of the property before, and its value after, the land was taken for the road.

In the case of Dorlan v. East Brandywine Railroad Co., 46 Penn. State R., 520, though the question put to the witness was, “ what is the amount of loss or damage,” the question was not objected to. The opposite party claimed the right to examine the witness as to his means of knowledge before permitting him to asseverate, and the court held that that was matter of cross examination. The principle upon which the amount of damage was to be ascertained was clearly laid down, as in 11 Cushing, comparing the value of the lands before and after the location of the road, and the difference would be the amount of damage. The rule would only require answer as to value. These cases are entirely consistent with the cases cited by the appellees. The first of them is that of Paige v. Hazard & Kelley, 5 Hill, 643, which was an action to recover damages for sinking a canal boat. A witness having large experience in raising sunken boats was examined as to the expense of raising the boat in question. He was not allowed to give his opinion of the amount of expenses of raising, or of the damages from sinking.

Lincoln v. Saratoga and Schenectady Railroad Co., 23 Wendell, 425, was an action for injury to plaintiff, by which plaintiff’s leg was fractured. The witness, though a surgeon, and who had testified to the nature of the fracture and the extent of the nature of the injury, was not permitted to give his opinion of the amount of damages.

In Norman v. Wells, 17 Wendell, 136, it is expressly decided that a witness cannot give his opinion of the amount of damages in any case, and the court said that there was then no case in which it had been held to be admissible. -

The evidence which had been admitted in the present case from the expei'ts in real estate, had already been as to those points which furnish the means held most proper to determine the amount of loss and damage, benefit and advantage, viz., the market value before, and the market value after, the laying out of the street.

This is the rule held by the court in Pennsylvania, in Massachusetts, and in New York. It is the one assumed in Illinois. This rule requires no further opinions to enable the jury to form their opinions upon the evidence produced.

Shaw, C. J.,

in Dickenson and others v. Inh. of Fitchburg, 13 Gray, 555, makes this observation upon expert testimony, that the reason for receiving the opinions-of an expert is, “that from his larger experience and more exact observation of facts and the connection between certain appearances and their causes,he is able to draw correct conclusions from circumstances which a man of ordinary knowledge and experience, could not do.” These facts may be generally known without proof, or they may be proved, and “ when explained may be comprehended and applied by any person of good understanding.” And he then says that the witness should have been allowed to explain, for when explained, they might be comprehended without proof.

Facts upon which the party relies to prove that a loss has resulted to him from the misconduct of the defendant may be all admitted, and yet .the jury may not be able to see how the facts adduced operated to produce the result. They may not understand the connection between cause and effect in the particular case, and in such contingency it will, be necessary to call in those whose knowledge is, upon the particular subject, beyond that of ordinary men, to explain the laws by which those facts are governed, how the causes operate to ■ produce their effect. When explained, the jury are at once enabled to judge whether any injury has been caused, and become the proper judges of the amount.

It is not always necessary that the witness called for the purpose should give any opinion, properly so called. He may state only those natural laws with which he has from long study or long observation become familiar. These are facts, in that sense, by which the jury are able to understand facts before put 'in evidence, and this they can do as well without any opinion expressed as with it. It is not because one man may know and can testify to more facts upon a particular subject than another, or that he learned them by study and observation, and by opportunities which most men have not, that entitles him to give an opinion: So far as facts can be given, .the principles of the law require them to be given to the jury, whether they are facts or causes, or as effects, or as connecting links in the chain of cause and effect, or the laws of nature which govern that train.

A plat of the land left open on the Fox Point Association plat was made by the city, with the lots adjoining thereto, for the use of assessors of taxes, and kept in their office. Upon this plat the lands of the ajspellants were delineated, part whereof was taken for this street. This was offered in evidence, accompanied by the testimony of two of the assessors and the surveyor, that the portion of the land claimed by appellants taken for the street, had not been assessed for taxes for a number of years.. This evidence was admitted against the appellants objection,'that appellees should first offer some evidence that the appellants had knowledge of said plat, or that these lands were not taxed.

One question in this trial wag, whether the land in question were part of a public highway or street, which had become such by user under claim of right by the public. The appellees .claimed that it had thus become a public street. Upon this issue it was necessary to show, not only that there had been a user of the land by the public for travel, but that the use had been accompanied by a claim that it was a street where all might lawfully and rightfully travel. Any public declaration or public claim that it was a public street, would not be irrelevant. The making of a plat used for public purposes upon which the way was laid down, might be regarded as a declaration that they claimed the way to be public way, where all might rightfully travel; and if it were-also proved that the land so delineated had not been taxed to the appellants or treated as private property, it would not be the less admissible as part of those acts which are evidence of claim.

The objection to the evidence is, not that the matter proved could have no bearing upon the issue, but that it was first necessary for the appellees to prove affirmatively that the appellants had knowledge of them.

Bearing in mind that the Statute, chap. 33, section 4, requires that “taxes on real estate shall be assessed' to the owners, and separate traets or parcels shall be separately described and valued as far as practicable,” and the proof being of the plat of the street and adjoining estate made by the city to that end, it may well be.implied that every owner of estate along the street had some knowledge, as well of the platting as of the taxation, as the statute informed him of the mode of proceeding to the assessment and every one of his several parcels were separately valued. An owner could not have looked with any care to his own interest, who could be entirely ignorant of what the assessors had done, and what of his estate had been taxed, and we think it was not necessary for the appellees to prove affirmatively such knowledge.

The next exception is, that the judge refused to instruct the jury that the fact that the land was not taxed had no bearing upon the case unless the fact were brought home to the knowledge of the appellants, and did leave that fact to the consideration of the jury. This exception, it will be seen, is nearly allied to the preceding. The last exception was to the admission of the evidence with prior affirmative proof of knowledge. That is, to the consideration of the same evidence without first giving such affirmative proof, and the answer is the same, it may be presumed from the circumstances in proof.

The appellants had been permitted to put in rebutting evidence to show their want of knowledge, and all the evidence upon that point was properly left to the consideration of the jury.

Another exception stated in this motion, and made the further ground for new trial, is, that the judge ruled that the deed of Asa Pike to Jonathan Pike passed no estate or title which the grantor might have had at that time in the land delineated upon the plat as a street. The association called the Eox Point Association, original proprietors of land at Eox Point, platted and divided their land into lots, and laid out also upon the plat portions of the land delineated thereon as streets. The lots were all numbered on said plat. XJpon this plat was an agreement by the proprietors in relation to the streets, in substance, “ that all the streets, squares, and gangways, are equally appurtenant to each and every lot, and each and every grantee of the same are equally entitled to use and occupy said squares, streets and gangways, as such, at all times, except that the grantees of all and every of the water lots, their heirs and assigns forever, shall have the exclusive right to demand wharfage for all the streets and gangways adjoining to their several lots respectively, and each and every the grantees of the water lots, beginning at lot No. 1 and extending to lot No. 22 inclusively, their heirs and assigns, shall have the sole right to use the piece of land on the west side of the street adjoining their several lots for all purposes, but shall not erect any permanent building thereon.”

The deed of Asa Pike conveys to Jonathan Pike one undivided half part (as described in the deed) of lots No. 1, 2, 3 and 4, on the plat of the Eox Point Association. They are no otherwise described in the deed. These lots were water lots on the east side of the street mentioned in the agreement, the western line of the lots being the eastern line of the street. Lots 3 and 4 are those owned by the appellants, who have succeeded to the title of Jonathan Pike.

All that could have passed by this deed, lying as it does next a street, would have been the land to the middle or thread of the street, under a proper description of the lot as bounding “ upon ” “ or along ” the street. The grant might have been thus extended. There is nothing in this deed, upon any construction, which could extend further, and in such case the land within the street passes, because the bound is a street, and whatever therefore thus passed, must pass subject to the public easement. If it had ceased to be a highway at the time of the conveyance and became the absolute property of another discharged of that easement, it could not pass at all by any such description.

The direction to the jury, that the deed conveyed nothing in the street discharged of the easement, is correct, and so also the direction that no land in the street, if it had been acquired by the grantor’s adverse possession, passed by the deed.

It is certainly not clear that under the description in this deed any thing could have passed by it beyond the line of the street as delineated on the plat. When the only description is (Chapter 329) by the number of the lot upon the plat, the construction of the deed is the same as if the boundaries appearing on the plat had been described in the deed. The western boundary on the pl'at is by a line drawn upon the plat separating the lot from the street, a line which cannot be extended into the street or be construed to be in the middle of the street. It is a line drawn actually excluding the street.

It is admitted that twelve hundred square feet of the appellant’s land as claimed by them outside and beyond the west line of the street as laid down on the Eox Point plat, was taken for South Water street, and that a like quantity of land lying within the lines of the street laid down on said plat were not taken for the new street, but were left on the east side thereof. The judge instructed the jury that these two parcels, equal in quantity, could not be exchanged the one for the other, and the values offset; and further charged the jury, against the objection of the appellants, that they might in .estimating the damages of the appellants consider whether or not, after the new street was opened, the appellants would not probably take into their possession, without objection, the portion of the old street not taken for the new. This instruction is the ground of the last exception.

Had the instruction to the jury been, that in estimating the value of the appellants’ land after the opening of the street they might consider the fact that here was twelve hundred feet of land not considered necessary for the purposes of this street, that lay next adjoining the appellants’ land; that it might at some time cease to be used for travel, and without any prejudice to the public be accepted for private purposes upon favorable terms ; and might consider whether an estate thus circumstanced would be enhanced in value; whether the market price would be greater-; whether a purchaser would pay more for such prospective advantage; whether it was an advantage in prospect; such instruction would hardly be deemed objectionable, considering one matter for the determination of the jury is the market value of the land. Such instruction, however, is not different in substance and effect from that which was actually given, and tended to the same result, and we think is not objectionable.