Pacific Ry. & Nav. Co. v. Elmore Packing Co.

Mr. Justice Moore

delivered the opinion of the court.

Many exceptions to the ruling of the court were taken by the defendant’s counsel, but only a few of the alleged errors will be considered. George L. Davis, the engineer in chief in charge of the railway construction, as plaintiff’s witness testified that, limiting the width of the right of way to 75 feet as specified in the written waiver, the area of defendant’s land required was one-fifth of an acre; that the grade of the roadbed at the wharf would practically be level with that structure; that the extended line of the altered right of way would intersect the cannery at a point 22 feet north of the southwest corner, and cut from that building 847 square feet of surface; that he had examined the cannery, which was a cheaply con *538 structed building, now quite old, and its foundations were not in good repair; and that he had inspected the machinery placed in the structure, and knew how it was arranged. The witness, having further testified that he was conversant with the values of land in Tillamook County, was asked: “State what in your opinion is the damage that the defendant will sustain by the appropriation of the right of way involved in this case and shown by your map,” referring to a plat of the survey, “his buildings and land.” An objection to the question on the ground that it was immaterial, irrelevant, and incompetent and called for an opinion as to what constituted damages and estimated the measure thereof, was overruled and an exception allowed, whereupon Davis answered:

“Two hundred and fifty dollars I would judge from the settlement we have made with adjoining property would be ample for the land, and $150 for the buildings, $400 total.”

1. The legal principle has been firmly established in this State that in actions for damages a witness acquainted with the circumstances involved would be permitted to detail the facts from which a conclusion might be deduced as to the extent of the injury sustained or contemplated; but that he could not be allowed to express an opinion as to the amount of loss, hurt, or deterioriation caused by the negligence, design, or accident of one party to another in ,respect to the latter’s person or property, because it was the exclusive province of the jury to assess damages pursuant to the rules of law declared by the court: Burton v. Severance, 22 Or. 91 ( 29 Pac. 200 ); United States v. McCann, 40 Or. 13 ( 66 Pac. 274 ); Pacific Livestock Co. v. Murray, 45 Or. 103 ( 76 Pac. 1079 ). An error was committed in permitting the witness, over objection and exception, to answer the question hereinbefore quoted. It will be *539 remembered that Mr. Davis based his estimate as to the amount of damages which the defendant would sustain by reason of the condemnation of its land on the sums of money which the plaintiff had paid to the owners of adjoining property in settlement for rights of way. The motion of defendant’s counsel to strike out this answer was denied, and an exception allowed. This witness, having- testified that the distance between the places named in the following question was about 13 miles, was asked: “State what the expense of plaintiff has been for rights of way from Tillamook north to Garibaldi.” And over objection and exception answered: “About $10,000.”

2. The amount of damages sustained or anticipated by a party in consequence of the proposed condemnation of his land to a public use cannot be estimated by the compensation paid by a railway company for the fee or easement in adjoining or similar land. The rights of an owner to employ his property in such manner as best to conserve or promote his interests are not to be measured by the generosity, necessity, or estimated advantage which may have induced others to part with the title to their real estate, or to relinquish claims for damages by reason of injuries thereto: Oregon R. & N. Co. v. Eastlack, 54 Or. 196 ( 102 Pac. 1011 ). See the notes to this case. 20 Ann. Cas. 695.

Errors were committed in refusing to strike out the answer of the witness as to the measure of damages based on settlements made with owners of adjoining property, and in permitting him to testify as to the compensation paid for rights of way for the distance specified.

3. This witness was further interrogated as follows:

“State, Mr. Davis, whether the construction work of the plaintiff will interfere with the operation of that cannery (referring to defendant’s building in which salmon were hermetically sealed in tin cans and then prepared for market) this year or any other time when the railroad is constructed.”

*540 Over objection and exception, he replied:

“Our company will 'obligate itself that the traffic between the cannery and the wharf will not be interfered with.”

The community at large is interested in the operation of trains on lines of railway according to schedule tables, and neither the railway company nor any of its agents is empowered unreasonably to trench upon or restrict the right which might tend to injure the public: Ford v. Oregon Electric Ry. Co., 60 Or. 278 ( 117 Pac. 809 ). If the defendant could exercise the privilege thus attempted to be assured, and were engaged in loading at its wharf a vessel with cases of canned salmon in doing which it became necessary to cross the railway track with trucks or other vehicles, the interruption might delay the passage of trains until the task of receiving the entire freight was accomplished. A moment’s reflection will compel the conclusion that such privilege could not be granted to the defendant, and that errors were committed as alleged.

4, 5. The waiver and stipulations filed in this cause after the action was commenced but prior to the trial, were called to the attention of the court, but not offered or read in evidence. Based on such relinquishment and reservation, the jury were instructed as follows:

“In estimating the damage to the land, the jury will consider the quantity and value of the land taken by the railway company for right of way, which in this case is 75 feet by 110 feet, including buildings, etc., and the damage to the whole tract by reason of the road running through it. * * You are also instructed that the following-is the form of verdict that you are required to bring in, to wit: ‘We, the jury in the above-entitled cause, find for the plaintiff for the appropriation and possession of the property described in the amended complaint, as modified by the waiver filed by plaintiff, and with the reservation of a right to the defendant to cross said right of way as specified in the waiver of plaintiff, and *541 we assess the damages of the defendant for such appropriation and possession at $-.’ ”

Exceptions having been taken by defendant’s counsel to the parts of the charge limiting the width of the right of way to 75 feet, and to the reference in the form of the verdict to the property described in the amended comT plaint, “as modified by the waiver filed by plaintiff, and with the reservation of a right to the defendant to cross said right of way,” etc., it is maintained that errors were committed in the use of the language so employed. The waiver and stipulation were probably treated by the court, in effect, as an amendment to the complaint, which averments not having been denied were considered as established. If the assumed change had been made in the complaint, defendant’s counsel could have moved the court to require the stipulation to be made more specific in designating the particular place where the line of railway was proposed to be intersected, the width of the reserved crossing, and which party was to make and maintain it. These were important elements which the jury ought to have considered in estimating the damages which the defendant would sustain, and they should have been incorporated in the complaint so as to form the basis of a proper judgment.

The instructions complained of were not predicated upon any issues involved in the cause, nor supported by any evidence given at the trial, and in charging the jury as set forth errors were committed.

6. In view of the conclusions reached herein, it is believed that another alleged error should be examined. Immediately after the jury were impaneled, defendant’s counsel moved the court for an order permitting them to open and close the case as to introducing evidence and arguing to the jury the facts which they expected to prove, but, the application having been denied and an *542 exception saved, it is contended that an error was thereby committed. It is argued that as the answer did not controvert any averment of the complaint, but set forth the facts constituting the damages which would result from the appropriation, which latter allegations were denied in the reply only as to damages in excess of $500, the affirmative of the issues devolved as a matter of right on the defendant, entitling it to open and close the case, and hence was not a matter of discretion.

An action for the condemnation of real property shall be commenced and proceed in to final determination in the same manner as an action at law, except as otherwise specially provided in the title regulating the manner of appropriating land for corporate purposes. Section 6860, L. O. L. The méthod of conducting the hearing of a cause is as follows: “When the jury has been completed and sworn, the trial shall proceed in the order prescribed in this section, unless the court for special reasons otherwise direct”—setting forth the course to be pursued. Section 132, L. O. L. It will be seen that a court may order a trial to be conducted in a different manner from that indicated, and such regulation in our opinion is a matter of discretion that ought not to be reviewed except in case of an abuse of the power conferred, which is not manifest herein.

For the errors committed, as hereinbefore adverted to, the judgment is reversed and the cause remanded for such further proceedings as may be necessary, and not inconsistent with this opinion. Reversed.