Virginia & Truckee Railroad v. Henry

By the Court, Whitman, C. J.:

This appeal is from the order of the district court confirming the report of commissioners appointed to ascertain and assess' the compensation to be paid respondents for lands to be taken by petitioner for its use; and from the order denying a new trial.

Appellant’s main objection is to the allowance by the commissioners of damages to the residue of the premises, from which a portion was taken; and it is strenuously insisted that the proper construction of the statute of this State forbids such allowance. Technically, yes, so far as the ultimatum of the report is concerned; and the one under review is awkwardly expressed when it finds “that the value of said ground appropriated by them and the damages to the remainder of the premises of defendants by reason of the severance of the part taken is,” etc.; but as the damage to the residue of a tract of land from which a portion is taken for public use is always an element of estimate in arriving at the compensation for the land taken; there is no substantial error. It is of form rather than of substance, of expression than real meaning. It is no such error in principle as should vitiate the report. So, for all that, it should stand. Troy and Boston R. R. Co. v. Lee, 13 Barb. 169 .

Says the statute: “The said commissioners shall proceed to view the several tracts of land as ordered by said court or judge, and shall hear the allegations and proofs of=said parties, and shall ascertain and assess the compensation for the land sought to be appropriated to be paid by said company to the person or persons having or holding any right, *171 "title .or interest in or to each of the several tracts of land; and in ascertaining and assessing such compensation they shall take in consideration and make allowance for any benefit or advantages that in their opinion will accrue to such person or persons by reason of the- construction of the railroad as proposed by said company; and if the said railroad company shall, in their petition filed in said special proceedings, offer or agree to make good and sufficient fences on the line of their said railroad or any portion thereof, or to make good and sufficient cattle-guards where fences may cross said line of railroad, at such places and such times as the same m&y be necessary, no s.um or price for such fences shall be included in the compensation or damages to be awarded by said commissioners.” Stats. 1864-5, pp. 439-40.

Upon this language, although the words “compensation” and “damages” are used, of course in the received and construed sense, petitioner insists that the measure thereof is filled by giving the private person the market value of the land taken. If such was the intention of the legislature, apt language has not been chosen to express it; and if such language had been used as of necessity clearly expressed such intention, then the act in that regard would have been opposed to the constitutional provision of the United States and of this State forbidding the taking of private property for public use without “just compensation,” and not only so but to the practice either of written or unwritten law of every civilized people. Upon principle and precedent the proposition is monstrous. While the law does and should provide in proper case for the surrender to the public use of individual property, so that no stay shall impede the general necessity, on the other hand it must jealously guard the rights of individual owners. They are never to be remitted, as counsel suggests, to litigation for all matter of loss save the naked market value of the property taken, but no part of their property shall be taken without just compensation “first made or secured.” It is difficult to imagine an unjust compensation; but the word “just” is used evidently to intensify the meaning of the word “compensation;” *172 to convey the idea that the equivalent to be rendered for property taken shall be real, substantial, full, ample; and no legislature can diminish by one jot the rotund expression of the constitution. So are all the decided cases. While courts have differed upon minor points, two of which the statute of this State settles, namely, the allowance for particular benefit derived from the construction of the railroad and the exclusion from the calculation of damages of the cost of necessary cattle-guards and fences where the petitioner offers to construct; yet upon the great substantial underlying basis, upon which only can arise a constitutional law for the taking private property for public use — the absolute protection of the individual by just compensation— there has been, could be, no dispute. Bigelow v. West Wis. R. R. Co., 27 Wis. 478 ; Memphis and Charleston R. R. Co. v. Payne, 37 Miss. 700 ; Walther v. Warner, 25 Mo. 277 ; Meacham v. Fitchburg R. R., 4 Cush. 291 : Swan v. Williams, 2 Mich. 427 ; Aldridge v. The Tuscumbia R. R. Co., 2 Stewart and Porter, (Ala.) 199; Johnson v. Joliet and Chicago R. R. Co., 23 Ill. 203 ; O'Hara v. Lexington R. R. Co., 1 Dana, 232 ; Woodfolk v. Nashville and Chattanooga R. R. Co., 2 Swan, 422; Wilmington & Reading R. R. v. Stauffer, 60 Pa. State, 374; Cleveland and Pittsburg R. R. Co. v. Ball, 5 Ohio State, 568 ; Troy & Boston R. R. Co. v. Lee, 13 Barb. 169 ; Winona R. R. Co. v. Waldron, 11 Minn. 515 ; Tide Water Canal Co. v. Archer, 9 Gill & Johnson, 480; and so on, ad infinitum. As has been said, there is not, nor could there be, any well considered case to the contrary.

In the case first above quoted occurs the following remarks applicable here: “Several witnesses were also allowed to testify, under like objection, as to how much less the remainder'of the quarter section was worth at the time the land was taken by the defendant than the whole quarter section would then have been worth had the same not been taken. The objection to the foregoing testimony is predicated upon the peculiar language of the charter of the defendant, providing for condemning land for its railroad, etc. The. charter simply makes provision for an appraisement and aAvard *173 of the value of the land taken, and is entirely silent on the subject of compensating the owner for any damage which may result to him in case such taking of his land depreciates the value of his other lands lying contiguous to that so taken and being part of the same tract. B. and Local Laws of 1863, Oh. 243. It is urged that this language distinguishes this charter from nearly all of the railroad charters which have been granted by the legislature of this state; and that while.under such other charters the owner of the land taken may recover compensation for the damages to his whole tract, by reason of the taking of a portion of it, he can only recover in a case arising under the charter of the defendant the mere naked value of the land actually taken, without regard to the effect of such taking upon the balance of his lot or farm. * * * * After a careful consideration of the subject, I am impelled to the conclusion that the construction of its charter for which the counsel for the defendant has so earnestly and ably contended, is untenable. 'He concedes, if I understand him correctly, that had the charter provided for making compensation to the owner of the land taken or for assessing his damages, under the authorities the rule would have been otherwise. I think it is not difficult to demonstrate that the terms ‘assessing the value of the land taken’ and ‘making compensation to the owner for the land taken,’ mean the same thing. Section 13, Article I, of the constitution of this state provides, that ‘the property of no person shall be t§ken for public use without just compensation therefor.’ Under this restriction the state may, in the exercise of its right of eminent domain, appropriate to public use the private property of the citizen. In respect to the land taken from the plaintiff, the state has delegated or has attempted to delegate to the defendant this high attribute of its sovereignty. But the defendant takes the power subject to the restriction, or it does not take it at all. Unless the law which purports to confer the power to take the land provides for just compensation to the owner thereof, it is in violation of the constitutional restriction, and therefore void. Hence, unless *174 the provision of the charter of the defendant for ‘ assessing the value of the land taken’ is equivalent to one giving the owner ‘ just compensation for the land taken,’ the charter in that respect is void, and the company have no power to take land for any j^urpose, without the consent of the owner thereof. It must be assumed that the legislature intended to confer upon the defendant a valid power; and if so, the conclusion is irresistible, that by the terms ‘value of the land takén’ it meant just compensation to the owner for the land which it empowered the defendant to take. It requires neither argument nor reference to authorities to show that when the language of a statute admits of two constructions, one of which would render it constitutional and valid and the other unconstitutional and void, that construction should be adopted which will save the statute. An application of this rule to its charter defeats the construction for which the counsel for the defendant contends, and saves to the defendant the powers therein granted. Inasmuch as the defendant has taken private property pursuant thereto, it cannot justly complain if we give to the charter a construction which will save the rights thus asserted under it. We hold therefore that the provision of the defendant’s charter by virtue of which the land of the plaintiff was taken, entitles him to just compensation therefor. ” pp. 484-5-8-7. ■

It is next objected that the report does not show the proceedings had, in that it fails to disclose material testimony received. There is conflict upon affidavits filed as to what the omitted testimony in fact was; but, accepting the petitioner’s version as entirely correct, it could in no view of the case have been material. Henry, one of the defendants, testified that he swore his property before the assessor at much less than he valued it before the commissioners. As to the estimate for taxation, unfortunately too common a course! but one which could have no weight in determining the value of the property in question, incompetent in fact for that purpose though perhaps admissible to tend to contradict his testimony in chief; if any stress was given that, *175 there should have been none as the evidence was entirely irrelevant, basing as it does the claim for compensation mainly upon the fact of special injury to respondent’s present business. This is not the rule. Whitman et al v. Boston and Maine R. R., 3 Allen, 133 . The same is true of Mrs. Henry’s testimony; but if, perchance, the commissioners were influenced by the statements of either or both, it is petitioner’s own fault; it should have made timely objection, and the record shows none.

The cross-examination of .Cooper, Brown, Butler and Robinson did not vary their direct testimony. So while the intimation made in Virginia and Truckee R. R. Co. v. Lovejoy, ante 100, as to the propriety of presenting all the testimony to the court suggests good practice and might well be followed, it is no vital error not to do so, especially when such is immaterial as in the case at bar. The district court has power to order in the testimony, and in a proper case would undoubtedly do so; here there was no call for an order. The district court saw that there was substantial testimony to sustain the award and that all such said to have been omitted could not touch the issue.

The only evidence in point came from Winterbauer, Cooper, Robinson and Eraser. This was based upon or approximated the basis of the rule, which is clearly summed up by a text writer thus: “ It has been said the appraisers are not to go into conjectural and speculative estimations of consequential damages, but confine themselves to estimating the value of the land taken to the owner. This is most readily and fairly ascertained by determining the value of the whole land without the railway and of the portion remaining after the railway is built. The difference is the true compensation to which the party is entitled.” Redfield on the Law of Railways, Sec. 71, Sub. 3.

Winterbauer fixes the value of the whole property before the severance at two thousand dollars, after at five or six hundred; Cooper at twenty-five and twelve; Robinson at sixteen and twelve; Eraser at fifteen and eleven; making, as will be seen, the various estimates of compensation fourteen, *176 thirteen, and four hundred dollars. The commissioners found one thousand. Here was a conflict of testimony, but no such conflict as of itself would warrant a district court in setting aside the verdict of a jury because against the weight of evidence. It must be remembered that these commissioners are not on questions of fact confined and limited as a jury. They hear and weigh the allegations of the parties; they view the premises, and are supposed to exercise their own judgment to some extent, irrespective of evidence; and into their conclusions enter elements of calculation which it 'is hard to estimate, but which are of sufficient importance to deter a district court, even in absence of statutory prohibition,' from lightly setting aside a report so made. Under the statute, it can only be done “upon good cause shown therefor. ” What that good cause shall be can with safety be held something clear and indubitable, pointing error in law or fact or both, intentional or unintentional on the part of the commissioners. Piper's Appeal, 32 Cal. 530 ; St. Louis and St. Joseph R. R. Co. v. Richardson, 45 Mo. 466 .

Such is not the case here. As this court said in another case and iterates now, which affirmance it is hoped may be regarded as a settlement of the question: “If it be admitted that the testimony reported in the record preponderates against the conclusion of the commissioners on this point, it cannot be said, in any view that may be taken of it, that the preponderance is so great and decided as to justify an interference with the report. There is testimony decided and substantial in support of it; and furthermore under the statute the commissioners are required to examine or view the land themselves, which was done in this case; and thus their opinion of its value is added to the testimony of the witnesses on behalf of the respondent. Under such circumstances the decision of the commissioners will not be set aside if there be any substantial testimony to support it. Such is the rule repeatedly announced, and we think uniformly followed. * * This ease very clearly comes within the rule, and hence the report cannot be disturbed. ” The Virginia and Truckee R. R. Co. v. Elliot, 5 Nev. 358 .

*177 The orders of the district court refusing a new trial and confirming the report of its commissioners are affirmed.