Hartshorn v. B., C. R. & N. R.

Day, J.

i, natt.- . of°way:iiVJasages-.0 am — I. The plaintiff was permitted to prove that the right of way in question passed through his farm of four hundred and ninety-nine-acres, and he was allowed to show the depreciation in the value of his whole farm on account of the taking of the right of way, and construction of the road. The defendant excepted to the evidence as to the depreciation in value of the entire farm, and claims that the investigation should be confined to the damage to the governmental subdivisions over which the road runs, and which are described in the notice of assessment and the return of the sheriff’s jury. This position, we think, is not sound. Under this construction, if a farm consists of three forties, a railroad could give notice of the condemnation of a right' of way over the middle forty, and confine the owner to the damage sustained to that forty, notwithstanding the fact that the location of the railroad would, cut the farm in two, and greatly depreciate the entire value. Government subdivisions, we think, are entitled to no consideration, and cut no figure in the determination of the damage sustained. This should be arrived at by taking into consideration the entire farm, of whatever size, and considering how much less, as a whole, it is worth after, than before the taking of the right.of -way.

¿yidence. II. The defendant served upon plaintiff notice of an assessment of damages for right of way through Hartshorn’s addito the town of Tama. The plaintiff, against the objection of the defendant, testified: “Iliad that property surveyed and staked off in subdivisions, about half an acre each, with streets; the plat showed the survey'; it was surveyed-in 1876 or 1877. I sold seven of these subdivisions.” Plaintiff’s counsel then offered the plat, simply to illustrate the testimony, stating that-it was not a good plat, *615 having never been certified or recorded as provided by law. The defendant objected, which objection was overruled. Tiie court upon this branch of the case instructed the j ury as follows:

“12. In the opinion of the court, tlio plaintiff has not shown a lawful laying out and platting of his addition, in accordance with the statute, and he had no legal right to commence selling his supposed lots according to the plat which he attempted to have made. Nevertheless, having had it staked off and marked on the ground into divisions and pieces, and thrown out certain portions for streets, these last, if taken and used by the public, would estop him by act of dedication again to close them up, but the public-would have a right to use the streets for highways; and you will consider all these circumstances as you find them, in estimating the damages; that is, while the platting is not lawfully done, as a town plat, yet, you should consider what had been done to the land in the way of opening and dedicating streets, by acts of the plaintiff, and acceptance by the public, if so accepted, in estimating1' damages.

“ 13. But the supposed streets would not become such unless the public had accepted the same as and for such streets,, so far as the public were concerned; nevertheless, if sales were made to private parties of supposed lots by the plaintiff, with representations of streets, to induce- the purchase, then the plaintiff would be estopped from afterwards shutting up such streets, to the inconvenience of such purchasers.”

We think the court did not err in the admission of this evidence, considering the purpose for which it wras offered, and the manner in which its effect is limited by the foregoing instructions. It was competent, as bearing upon the question of damages, to prove the real condition of the property.

III. It is claimed, however, that these instructions, in so far as they refer to an acceptance and use of the streets by the public, are.not pertinent to the testimony, inasmuch as there was no proof that the public occupied and used the streets. Wo think this objection to these instructions is well taken. Still, we are inclined to think that if they are on that ground *616 erroneous, tbe error is without prejudice. The evidence shows that lots have been sold on both sides of what is designated as a street running through this land. Having so sold lots, the plaintiff cannot close up the street and restore the property to the condition of an entire tract. If the property cannot be restored to its former condition of an entire tract, then its present condition should be considered in estimating damages for right of way over it, and it is not material whether that condition was effected by the acceptance and use of the streets by the public, or by such a sale of lots as estops the plaintiff to assume control over the streets, or by both such facts. It is sufficient to sustain these instructions that the evidence shows, without conflict, a sale of lots in the manner above indicated.

■ IV. The court instructed the jury as follows:

3 . __ damages. “ 8. The interruption of plaintiff in the use and cultivation of his land, or any inconvenience he may have been put to in its cultivation and use as a live stock farm, or otherwise, according to his peculiar taste in farming, since the appropriation of the right of way, if any, cannot be considered by the jury as forming an clement of damages in his favor, and your inquiry must be confined to the marketable value of plaintiff’s land before and after the right of way was appropriated, taking into the account, in this connection, the number of acres taken for right of way, the manner of its location, the way his land is cut by the railroad, and the like; so as to be able to estimate the true market value of his land, affected by the location of the railroad before and after such location, the difference in the market value of the land affected by the appropriation of the strip for right of way before, and then again after, the right of way is asserted, will form or constitute his true measure of damages.

“9. Nevertheless, if you find from the evidence that the plaintiff’s farm consisted of near five hundred acres of improved lands, and the right of way of defendant cut the same in such a manner as to injure the value of the same by throwing it open and dividing it into pieces, you are at liberty to consider all the circumstances and effects upon the lands and lots, if *617 any, by reason of the location upon the lands of the railroad, and all the inconveniences directly caused by the railway, in determining the effect the same would have upon the market value of the lands, and it is the depreciation .in market value of- the premises which is the true measure of damages, and which you are to allow for, and not the matters which would cause such depreciation.”

It is insisted by the appellant that instruction No. 9 is contradictory of No. 8, and authorizes the finding of damages for injuries, real or pretended, and inconveniences, upon which damages cannot be predicated. We think the instructions announce a correct rule. Everything resulting from the taking of the right of way may be considered in estimating the depreciation in the value of the farm.

4. —: - — : est. lutei" Y. The court instructed the jury that if they should find that the damages, at the date of the condemnation, were more than as found by the sheriff’s jury, they should allow interest on the same to date of trial. The giving of this instruction is assigned as error. Ordinarily, it may be conceded that interest cannot be allowed upon unliquidated damages. But the theory of the law is that damages for right of way shall be estimated as of the date of condemnation, and that payment shall he made before possession is taken of the property. Where possession is taken of the property, and .the damages are not paid because of the failure of the sheriff’s jury to assess sufficient damages, it seems to us to be proper that interest should be allowed upon the damages finally recovered,-if they are in excess of those awarded by the sheriff’s jury.

YI. It is urged that the damages are .excessive. They do seem very high. They are not, however, without support from the testimony. Several of the witnesses place the depreciation in the value of the farm at $5.00 per acre; one places it at $6.00, another at $8.00, and one at $10.00 per acre. One estimates the depreciation of the farm at $3,000.

One witness places the depreciation in Hartshorn’s addition at $2,000, and four witnesses place it at $1,200. These estimates strike us as being extravagantly large, but that they fully *618 warrant the finding of the jury there can be no question. We are not warranted in setting aside the verdict as not sustained by the evidence.

Affirmed.