Atchison, Topeka & Santa Fe Railroad v. Blackshire

1. Practice ; lamination, and Cross-Examination; Bias of Witness. Upon cross-examination a question is proper which enables the jury to see upon what basis the witness has made his estimates of value, or which connects his general estimates of value and damages with the particular premises and injury. So also a question which seeks to ascertain if there be anything of a personal nature which may bias or influence the testimony of the witness. 2. Private Statutes, Must be Pleaded. Courts do not take judicial notice of a private act of the legislature. It must be proved or pleaded, or no . attention will be paid to its existence. 3. Condemnation Proceedings eor Eailroad Purposes; Damages to Land-ovmer. In a proceeding to recover damages for the right of way appropriated to the use. of a railroad company it is not error to refuse to instruct the jury “that damages to adjoining lands to right of way may be offset by benefits to same lands,” when the court has already charged that “the fair way of determining the injury' is to determine the fair market value of the premises before the right of way is set apart, and then again after, and the difference will be the true measure of damages.” 4.--Purpose of Taking. There is no error in refusing an instruction “that thp purposes for which the right of way was taken is not to be considered, only the taking.” 5.--Compensation for Iiyjury. A charge that the railway company “does not agree to increase the plaintiff’s land in value, but does agree to compensate for any injury or depreciation,” refers to any injury caused by the appropriation of the right of way, and it is not reasonable to suppose a jury was misled thereby. 6. Vjsrdiots; Conflicting Evidence. It is well settled that this court will not reverse a judgment of the district court on the ground that the verdict is contrary to the evidence, when there appears in the record some unimpeached testimony sustaining every point in issue.

jError from Chase District Court. Blackshire appealed from the decision and aAvard of the board of county commissioners of Chase county, as to the appraisement of value and assessment of damages for lands taken for the right of way of A. T. & Santa Fe Railroad Company’s railroad through and across certain lots of land belonging to him, under the provisions of art. 9, ch. 23, Gen. Stat. 1868. The amount assessed by the said county commissioners in favor of Blackshire, on account of such taking, and for injury to his adjoining lands, was $577.52. Blackshire owned five quarter-sections of land, embracing 800 acres. Three of the quarter-sections were cut, or partially cut, by the'said right of way, two of them diagonally, and nearly in the center, and the third having only about an acre of ground cut off from one corner. The only questions of fact presented by the issues made by the pleadings were as to the amount which Blackshire was entitled to receive from the railroad company by reason of the premises. The appeal was tried at the April Term 1872 of the district court, and a verdict found in favor of Blackshire for $2,400. New trial refused, and judgment on the verdict; and the Railway Company brings the case here for review. [The questions and answers referred to by counsel are copied in full in the opinion.] 1. The court erred in allowing certain questions to be propounded to H. L. Hunt, a witness for defendant below, upon his cross-examination. The questions were no part of a proper cross-examination. No inquiry had been made of the witness during the giving in of his evidence in chief, which could in any view of the case be held to furnish the least ground for such questions. They were each and all entirely irrelevant and foreign to the issues to be tried, and were calculated to induce a prejudice in the minds of the jury against the defendant and its road. Take, for example, the first question and the answer thereto: the decision to be arrived at, was not as to whether the witness would rather have a farm with or without a railroad across it, nor could his preferences have anything to do with the real question at issue. Neither was there any question at issue between the parties, as to what the value of Blackshirc's land would' be, with all the benefits of a railroad in the vicinity, and yet not touching his lands. We insist that the mere allowance of such inquiry under the circumstances, and in view of the answer which might have been expected, and which was given, could scarcely have any other than an unjust and prejudicial effect as against the defendant. In cases of this kind, as indeed in any other, it is. enough, and justice to litigants demands, that only legal testimony shall go to juries. 2. The court erred in refusing to instruct the jury, “That under the charter of the A. T. & S. E. Eld. Co., approved Eeb. 11th, 1859, the jury must take into consideration the advantages as well as any injury to the plaintiff's land; that this is not affected by § 4, art. 12 of the constitution of the state.” As to this point, we have only to refer to § 11 of the charter of the company, passed, and acted upon by the company, long before the adoption of the section of the constitution referred to. Private Laws of 1859, p. 57. 3. The court erred in refusing to instruct the jury, “That damages to adjoining lands to right of way, may be offset by benefits to same lands.” Testimony was offered, and without objection, under Avhich such an instruction was applicable, and it should have been given. But, says the defendant in error, this rule is in conflict with the constitution, (art. 12, § 4,) and hence is not good law. We say there is no such conflict. The section referred to only requires that compensation shall be made for the right of way. It says nothing about damages to , adjoining lands, or otherwise. And besides, the words “compensation” and “damages” are by no means convertible terms. They do not mean the same thing, nor are they used as synonymous anywhere in the constitution or laws of the state, but a wide distinction is preserved throughout. See §4, art. 12, referred to; also §§47 and 82, ch. 23, Gen. Stat.; also, Pierce on Rly. Law, 196. But what is .“compensation,” as used in our laws? We answer, the p>rice or value of the land talcen: (§82, ch. 23, sv/pra.) Then, as to “damages,” what are they? and how are they to be determined? We answer, The amount of the depreciation of the land, caused by the railroad — expressed in dollars and cents — is the damages, and this amount is to be arrived at. by a consideration of the circumstances which immediately depredate sueh land, by the taking of the right of way, and no other circumstances can be considered. See Pierce on Rly. Law, 196, 197, 204. But lands crossed by a railroad may be benefited' as well as damaged. If then, such lands, while being depreciated in some respects, and to a certain amount, are benefited in other respects, and to a like amount, what room, we ask, is there for saying that there is any real damage, for which a recovery can be had? It certainly seems to us that at the best such damage can, in such a case, be but nominal. 4. The court erred in refusing to instruct the jury, “That the purposes for which the right of way was taken is not to be considered, only the talcing.” This is the settled law of such cases. Pierce, 191; 16 Barb., 273; 6 How. Pr. R., 467. Such refusal operated prejudicially to the defendant. It was the same as saying to the jury: “You may consider the use to which the land is to be, or has been put. It is for a railroad, and such use is far more damaging to the land and to the owner than such a taking for other purposes could be.” Suppose, for instance, that this taking had been for an ordinary, or for a plank or macadamized road — the amount of land taken being the same — the severance of one portion of plaintiff’s land from the other just as effectual, etc.: does any one imagine for a moment that damages anywhere near the amount found here would have been assessed ? And yet, under the rule of law referred to the amount in each case ought to be the same, or substantially so. 5. The damages are grossly excessive. For at least $700 to $800 of the verdict there is no warrant or support in the testimony of the plaintiff even. It is the law, and the court instructed the jury that they should not consider any damage done to the lands of the plaintiff below, which were not touched by the railroad, and the proof shows that portions only of three quarter-sections were at all so touched. Through two of the quarter-sections the road passes, dividing them nearly into two. equal parts, but the third quarter is only touched at one corner — about one acre of land being cut off from it. The depreciation of the land was placed by plaintiff’s witnesses at $5 per acre, from all causes — no distinction being made as to amount of injury to any one acre or number of acres being different or greater to that done to any other acre or number of acres. The number of acres in the three quarters any part of which were so touched, as above stated, by the railroad, equals 480 acres. The $5 per acre depreciation, so far as it resulted from the railroad, was not and could not be applicable to all the 480 acres. At least forty acres of the first quarter-section touched by the railroad was north of a regularly laid out and traveled common road, and by such road was separated and cut off from the x’emaining portion of the quarter-section, thus becoming a separate and distinct tract or lot of land. This portion of the quarter, so cut off by the said common road, was, and is not touched by the railroad at all, and hence could not be deleteriously affected by it. It was already separated permanently from the portion of the same quarter through which the railroad ran, and what more could be affected by the railroad? This forty acres then should have been left out of the computation; and yet $200 of the verdict was for this forty acres. This showing alone ought to and will warrant a reversal of the judgment. But if the two quarter-sections touched by the railroad and divided into two nearly equal parts by it are depreciated ;n each acre $5, and only that amount, how can it be said that the quarter through the corner of which only the railroad passes, is damaged or depreciated in the same amount? The idea is simply preposterous, and the allowance monstrous. The whole 160 acres of this quarter depreciated in the sum of $800, because the railroad cuts off one aere from one corner! But suppose wc take this quarter by its legal subdivisions, and notice how they arc affected by the railroad, as may be done under art. 9, ch. 23, Gen. Stat. It will be seen that only one forty acres of it comes anywhere near the railroad, or can be affected by it! One hundred and twenty acres of this quarter ought then to be left out of the account in this estimate of damages, and this number multiplied by $5 gives $600 more of the verdict for which there' is no warrant or support iu the testimony, when considered in the light of reason and conimon sense, and the law applicable thereto. 6. But how is the case, when considered in the light of the testimony of more than one-half of the witnesses sworn on the trial, to the effect that the plaintiff’s land was either not damaged or depreciated at all by the railroad, or in a very slight degree? And again, how does this verdict look in the light of the testimony of several witnesses who testified that plaintiff’s land was not only not depreciated by the railroad, but was enhanced in value by its location? It seems to us to be plain, at least, that it was not damaged, and hence that the verdict for $2,400 is not sustained by sufficient, or by any, evidence. Verdicts clearly and manifestly against the weight of evidence should be set aside. 7 Mass., 261; 13 id., 507; 4 Conn., 102; 12id., 487; J. J. Marshall,-440; 3Blackf., 304. 1. The first question objected to was competent for the purpose of explaining or modifying the general conclusion as to value of land stated by witness in his examination in chief. It had direct and pertinent reference to the question of value about which the witness had testified in chief. It indicated the true basis of assessment of damage, which allows to the party whose land is taken, the benefit of the general rise in value of land growing out of the building of the road, the same as adjoining lands, not touched by the road., (6th Wis., 636.)' The question was also responsive to the statement of the witness in chief that “people owning land asked more for and from the building of the road. At time of the appraisement, I think the lands in the vicinity of plaintiff’s were worth,” etc. The admission of the question was within the discretionary power of the court. 1 Greenl. Ev., § 449. There are no positive and fixed limits to a cross-examination. The witness was one of the board oí commissioners who had made the assessment of damages that was appealed from, and which Aras the subject of the action. He had been in the pay of the railroad company, and naturally lie would feel like justifying his expression of judgment made as such commissioner — he had been chosen for the assessment of damages (in connection Avith the other members of the board) by the railroad company: §81, page 212, Gen. Stat. The question, taken in connection with the two following, tended to disclose the interest or bias of the witness, by shoAA'ing that he had land through which the railroad ran, which he was trying to sell. The second and third questions were asked for the sole purpose of showing interest or bias, and as such were competent. Being ansAvcred in the negative they did not affect the case unfavorably to plaintiff in error. 2. There Avas no error in the refusal of the court to instruct the jury that they .“must take into consideration the advazitages as well as aziy injury to the plaintiff’s land.” The condemnation in this case Avas under the laws of 1868, eh. 23, as shown by the fact that the original assessment was made by the county commissioners. The court could not take judicial notice of a private charter such as is described in the instruction asked. (A. & A. on Corp., §632.) The charter referred to was neither pleaded nor proven. While by the pleadings it was admitted that the plaintiff in error was a railway corporation, yet this 'was not an admission of any special fact applicable to plaintiff in error alone, such as is assumed in the instruction asked. The territorial legislature did not possess the right of eminent domain —so the provision of the charter cited never was operative. (Cooley’s Const. Lim., 525.) This provision of the charter was abrogated by the adoption of the constitution which only saved such portions as were not in conflict with its provisions: Ordinance, § 4. 3. As to the refusal of the court to instruct the jury “that damages to adjoining lands to right of way, may be offset by benefit to same lands,” we need only cite art. 12, §4, of the constitution. This is verbatim, § 5 of art. 13 of the constitution of Ohio, save a clause directing the method of ascertaining the compensation. That provision of the Ohio constitution has been construed by the supreme court of that state adverse to the position of the plaintiff in error. (4 Ohio St., 330; 5 id., 575; 6 id., 186.) All these decisions were rendered before the adoption of our constitution, and in the adoption of this provision from the Ohio constitution Ave adopted with it the construction put upon that provision by the Ohio court. 1 Kas., 227; 4 Kas., 353. “Compensation” and “damages” as used respectively in the constitution and statute, are precisely synonymous. (2 Iowa, ,288.) The provision of the Iowa constitution is: “Private property shall not be taken for public use Avithout just compensation.” Art. 2, §18. The narrow construction sought to be applied to the equivalent provision of our constitution by the plaintiff in error, would, applied to the IoAva constitution, limit compensation to the property actually “taken,” — viz., right-of-way. But the supreme court of IoAva in the case above cited, repudiate such a construction; and say that • “just compensation” means “damages.” 24 Mo., 544; 4 Chand., ("Wis.,) 83. So far as such an instruction could in any sense be proper, it is embodied in the instruction given by the court. This court has already decided this point squarely against the position of plaintiff in error: 8 Kas., 409,419; 9 Kas., 137. 4. The court properly refused to instruct the jury “ that the purposes for which the right-of-way was taken is not to be considered, only the talcing.” This instruction does not embody the law applicable to this case. Pierce’s Eld. Law, 184 to 198. 5. The verdict is sustained by the plain, unequivocal, positive testimony of eight out of the sixteen witnesses téstifying on the subject. The jury adopted substantially the testimony of these eight witnesses in making up their verdict, ■and the court below refused to interfere. This court has so repeatedly decided, that under such circumstances it will not interfere, that we do not deem it necessary to argue the point.' Verdicts in cases where the damages are the subject of, and required to be established by proof, are to be distinguished from those — as in slander — where the jury take cognizance of the damage without any proof whatever. In these latter cases the reviewing court is as competent as a jury to determine the proper measure of damages. But in the former, the credit and judgment of witnesses are embodied in the verdict, and these cannot be considered by this court.