Van Bentham v. Board of Commissioners

1. Opening Road — Cost of Maintaining Fences. In an appeal from an award of damages allowed by the board of county commissioners, on account of the opening of a public road across the appellant’s land, the cost of maintaining new fences rendered necessary by opening said road is a proper element of damages to be considered by the jury trying such appeal. It is error, therefore, for the court to exclude evidence offered in relation thereto. 2. Value oe Title — Erroneous Instruction. On the trial of such an appeal, it is error for the court to instruct the jury that they may consider the value of the title to the land over which the road is laid, and the value of the use of such land for other purposes than as a highway, in diminution of the appellant’s damage, in the absence of any evidence relating to the value of said title, or such use of said land. 3. Costs — Offer to Confess Judgment. In an action for the recovery of money, where the defendant desires to confess judgment for a sum less than the amount claimed, for the purpose of saving costs if the plaintiff on the trial fail to recover judgment for a sum larger than the amount offered, he must give the plaintiff notice of his intended offer, the time when he proposes to make it, and of the amount thereof, or he must call the attention of the court to the offer when the plaintiff is present in court.

Error from Osage District Court. The opinion contains a sufficient statement of the facts. At the time of the rendition of the judgment for $378.70, plaintiff asked leave and offered to prove that when said alleged offer was made the plaintiff was not present, and did not refuse or accept such confession, and that he had no notice that the offer would be made, no personal notice of its amount, or the time of making it, and also that the plaintiff had no knowledge that the offer had been made, except by being informed of it, some time afterwards, outside of court, which offer to prove was by the court refused, and the ruling of the court excepted to, and the court then, of its own mo-motion, but on what evidence we know not, made a finding that, “it appearing to the court from the record” that such an offer was made, and then proceeded to tax all the costs in said case to plaintiff. We think that the court erred in setting aside, of its own motion, the verdict of the jury that the road was “not of public utility,” and in wholly disregarding and ignoring the written agreement made by the parties to the action. We know of no reason why, in an action of this kind, the parties have not the same control over it as the parties have in other civil actions, and after the issue had been tried by the first jury, under the direction of the court, we do not think the court was correct in holding that it had no jurisdiction to try the issue submitted to the jury, and in setting aside and wholly ignoring the verdict of the jury and the agreement of the parties. For this reason alone the court should have allowed plaintiff’s motion for a new trial in this cause, and set aside the last verdict. We submit that the error was a most important and material one. It is true that the supreme court has decided that, when an appeal of this kind is taken, the appellate court can only try the question of the amount of damages, but those were eases where there was no agreement or stipulation between the parties; and why the parties in an action of this kind cannot control by agreement the issues to be tried, as in other cases, in a court of general jurisdiction, we are at a loss to understand. The district court refused to allow the witness Wigginton to answer the question: “Do you know what it would be worth to build a lawful, legal fence, that is necessary to be built along there?” the only objection to it being that it was incompetent and irrelevant. And the court refused to allow the same witness to answer the question: “Would it require a strong or would a weak fence be sufficient; that is, taking into consideration the manner this farm has been cultivated, and stock being on it, would it require a strong fence or weak one to protect it?” the only objection being for incompetency and irrelevancy; and confined plaintiff, as to this and in fact all the witnesses, to simply showing what would be the cost of a legal wire fence, and refused to allow plaintiff to show what the cost of keeping the fence in repair would be, the the only objection being that it was incompetent and irrelevant; the court refused to allow same witness to make any statement as to the difference it would make in the keeping of cattle when allowed to go to water at will, and when they had to be driven to water from a pasture in which there was none. The witness Humphrey was not allowed to state what kind of fence would be necessary to be built to enable plaintiff to carry on the business of the farm as it was conducted before the road was located; and every other witness who was asked the same or a similar question was not allowed to answer. The only objection to such evidence was incompetency and irrelevancy. The evidence showed that plaintiff’s farm contained between 1,800 and 1,900 acres; that it was a stock farm; that plaintiff at times Had upwards of 800 head of cattle on the place, and that he raised blooded bulls for market; that a portion of his farm was used for crops, and a portion for pasturage, there being between 400 and 500 acres of tame grass land; yet all evidence of the kind of fence necessary to be built or the cost of the repair of any kind of fence was excluded, and plaintiff confined to proving what kind of fence had enclosed the 320 acres which had been cut off from water and from the main body of the farm by the road, without reference to plaintiff’s right to properly equip his farm and complete his improvements from time to time, to carry on his farm in accordance with his original design, which he had been prosecuting for over 10 years as he was able. Nor was plaintiff allowed to show purposes and reasons for building particular fences at certain times; and by the evidence excluded, and by the ruling of the court as to what was permissible, the jury was entirely misled in making its allowance of damages. Witness Smith was not allowed to state anything as to cost of keeping fence in repair. Witness McMullin was not allowed to state what the cost of keeping fences along the line of the proposed road would be. There was no objection to any of this evidence except incompeteney and irrelevancy; and a motion to strike out all of McMullin’s testimony was certainly improperly sustained. This witness’ testimony was all practically stricken out; so the jury understood it, and could have understood nothing else; but why, it is impossible to understand. The witness had stated that the land was diminished in value from $2.50 to $5 per acre, and yet on the ground of incompetency and irrelevancy this was stricken out. How a more rational method of conveying to the jury the nature and amount of the injury to plaintiff could have been adopted, it is hard to understand. The second instruction is erroneous. This court, in case of Cornm’rs of Dickinson Co. v. Hogan, 39 Kas. 609, says: “The damages to a land-owner through whose farm a public road is laid are made up of innumerable elements, differing in each particular case. The object and purpose for which a farm is used; what it is adapted to; the manner in which it is used; its location and convenience, are all matters to be taken into consideration in assessing the damages. Where land is owned and used for stock purposes, water being upon one part, and grazing land upon another, the means of reaching different portions of the land for the purpose for which it is used and adapted, and the like, must always be considered. So, in this case: the fact of the land being separated by a public road, the disadvantage of maintaining and keeping up fences, the opening of gates, and crossing from one part of the land to another; . . . are all proper elements to be considered by the jury.” The court was asked to give an instruction embodying the principles of this decision, which it refused, and the court not only refused to instruct the jury that “the disadvantage of maintaining and keeping up fences” was an element of damages to be considered by the jury, but refused to allow the plaintiff to prove anything on the subject. Under the case above cited, the court erred materially in its second instruction. In the third instruction the court says: “ The plaintiff has, and will have at all times, the right to use any portion of the land covered by the road in any manner which will not interfere nor be inconsistent with the paramount right of the public to use it for the purpose of a public road, and you may properly take this into consideration in determining the amount of damages sustained by the plaintiff.” This was siaying that plaintiff could make other uses of the road, valuable ones, which other citizens could not. What are they? The court also tells the jury that it may properly consider the value of the title to the land covered by the road perpetually appropriated to public use. This was saying, as to these valuable uses, and at the time of giving this instruction, the jury had evidence on which it could arrive at their amount and value, for the purpose of deducting that amount from amount of damages proved by plaintiff. Yet the defendant had not offered to give.a particle of evidence as to amount and value of such diminution, and practically could have proved none — at most, nothing but a nominal value. Where no evidence tending to provea material point has been given, the court should rather say so, and withdraw it, instead of adding to the confusion of the jury by telling that it may properly take such point into consideration. It was error to give the above instruction. On July 5, 1887, The defendant in error offered to confess judgment for the sum of $500, which offer was rejected by the plaintiff in error, or at least it was not accepted as shown by the record, which is tantamount to refusing it. The offer was made in open court in writing, and hence the plaintiff in error is charged with notice, and cannot be heard to say he had no knowledge of the offer. The court committed no error in taxing all the costs accruing subsequent to July 5,1887, to the plaintiff in error. We think the filing of the written offer to confess judgment for $500, aud entering into the written agreement to submit the one question to the jury, “Is the road of public utility?” on the same day, and filing them at the same time, is evidence of the fact that a compromise had been contemplated by both parties. Did the court err in setting aside the verdict of the jury, rendered on July 5, 1887, on the one question, “Is the road of public utility?” The court very properly said it had no jurisdiction to try that question, and set the verdict aside. In Briggs v. Comm’rs of Labette Go., 39 Kas. 90, this court passed upon this identical question, in the following language: “ On an appeal from an award of damages for the laying out of a public road, the only question the court has jurisdiction to determine, or submit to the determination of a jury, is the amount of damages the appellant is entitled to.” Paragraph 5480, General Statutes, requires the viewers to make a report to the county commissioners in writing, stating the amount of damages, if any, by them assessed, and to whom; and they are also required to return to the board the written applications on which the assessments are allowed. The statute then says: “All allowance for damages, as provided in this act, shall be subject to revision by the said board of county commissioners, and any person, feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decision of the said board of county commissioners,” etc. The appeal lies from the judgment of the board of county commissioners on the subject of damages and nothing else. ' The plaintiff in error seeks not only to reverse the judgment at the June term, 1888, but the former judgment, of July 5, 1887, by which the court on its own motion set aside the verdict of the jury declaring the road “not of public utility,” and seeks to have the trial court directed to render a judgment in favor of the plaintiff in error on that verdict, which the trial court very properly said it had no right to permit a jury to render. All errors, if any, committed by the trial court in submitting that one question to the jury were cured by the granting of a new trial to the plaintiff in error, and a trial of the whole cause had at the November term, 1887, of that court. The whole matter again came before the ■court and jury, and the plaintiff in error was afforded an opportunity to present his whole case, and he cannot now be heard to complain of errors committed in either of the former trials. Having been awarded a new trial on his motion, and -the new trial had, he can only complain of the errors committed at the last trial. The plaintiff in error complains of the ruling of the court on the following question: “ Do you know the cost of building a fence along that line, along the line of that road; what it would amount to; what would it be worth to build a lawful, legal fence, that is necessary to be built along there?” The question was objected to as incompetent, irrelevant, and immaterial, and the court sustained the objection. Counsel for plaintiff in error complains of this ruling, but in the following questions proceeds to cure the cause for the objection by showing that the witness is a competent one to testify on that subject. At the time the objectionable question was asked, he had not shown himself competent to testify on the subject of fence building. Whether it would require a strong or weak fence to protect the farm of the plaintiff in error is also immaterial, and the court committed no error in refusing to allow the witness to answer the question put to him. The question is indefinite, uncertain, and incompetent, and does not tend to prove any damage that the plaintiff in error sustained by reason of locating the road. Plaintiff in error complains because the court would not permit him to show by the witnesses Wigginton, Humphrey, Smith and McMullin what repairs to a certain kind of fence would cost. The kind of fence to which their attention was ■called was not the kind of fence required to be built on the ■line of the proposed road. The plaintiff in error cannot be permitted to claim and recover for repairs on a hog-tight fence 'when a lawful wire fence is the one in use. A motion was made to strike out a portion, not all, of MeMullin’s testimony. We fail to see how the jury could be misled by this motion, as it specifies what portions of the witness’ testimony is to be stricken out. Counsel for plaintiff in error insists that the trial court erred grossly in not permitting him to prove the cost of maintaining and repairing a peculiar kind of a fence along the proposed highway, and cites the case of Gomm’rs of Dickinson Go. v. Hogan, 39 Kas. 606, and quotes from page 609, of that case. The case at bar is not a case like the one relied on. An attempt was made to show that the laying out of the road would separate the water from the grazing land, but the attempt was fruitless. No opening of gates is made necessary or extra-strong fence is required to enable the plaintiff in error to enjoy the full possession of his premises for the purposes for which they were intended. What may be an element of damage and proper to go to a jury in one case would be very improper in another. Each case is governed largely by the facts and circumstances surrounding it, and the trial court is put to the test of pruning sometimes severely, in the estimation of one side or the other. We think the trial court gave the law properly in the second instruction, and very properly declined to give the instruction asked for by the plaintiff in error.