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approvingly the case of Anthony v. Stinson, 4 Kan. 211, where this court said that the jury were not to be instructed as to what part of the testimony before them should control their verdict; that, in order to control it, the testimony of experts should be of such a character as to outweigh, by its intrinsic force and probability, all conflicting testimony; and that they could not be required to accept, as a matter of law, the conclusions of the witnesses instead of their own. In a recent case this court has said that a court or jury trying the question of the value of legal services is not bound to accept as conclusive the opinions given by, attorneys respecting the value of certain services; that such opinions are only to be considered in connection with other testimony in the case, in the light of which and of its own general knowledge the court or jury should, for itself, determine the value. Bentley v. Brown, 37 Kan. 14. In Patterson v. Boston, 20 Pick. (Mass.), 166, the question was as to the damages to be awarded to the plaintiff for his property taken to widen a street in Boston. The trial court instructed the jury that, in estimatiаg the amount of the damages, if any of them knew, of his own knowledge, any material fact that bore upon the issue, he ought to disclose it, and be sworn, and communicate it to his fellows in open court, in the presence of the parties; but that, in making up their verdict, they might rightfully be influenced by their general knowledge on such subject, as well as by the testimony and opinions of witnesses. The case being taken to the supreme court of the state, it was held that the directions were not open to exception. Said Chief Justice SHAW, speaking for the court: “ Juries would be very little fit for the high and responsible office to which they are called, especially to make an appraisement, if they might not avail themselves of those powers of their minds when they are most necessary to the performance of their duties." In Murdock v. Sumner, 22 Pick. (Mass.), 158, the same court, speaking through the same distinguished judge, said that “the jury very properly exercise their own judgment, and apply their own knowledge and experience, in regard to the general subject of inquiry.”. In that case a witness had testified as to the quality, condition, and cost of certain goods, and giving his opinion as to their worth; and the court said that "the jury were not bound by the opinion of the witness. They might have taken the facts testified by him as to the cost, quality, and condition of the goods, and come to a different opinion as to their value.” Lawson, Exp. Ev. 68. The jury is to decide what weight, if any, shall be given to the opinions or evidence of an expert, or to the opinion of a non-professional witness. They are not bound by such evidence, and may exercise their own experience in deciding the question touching which the opinions were given. 7 Am. & Eng. Ency..Law, 516; Atchison, T. & S. F. Ř. Co. v. Thul, 32 Kan. 255; Davis v. State, 35 Ind. 496; Rose v. Spies, 44 Mo. 20. We recommend an affirmance of the judgment.

Per CURIAM.—It is so ordered ; all the justices concurring. Eminent Domain-Damages-Considerations to be given to Opinions of Witnesses.—See McReynolds v. Burlington, etc., R. Co. (Ill.), 14 Am. & Eng. R. Cas. 172.

PENNSYLVANIA, POUGHKEEPSIE & Boston R. Co.

V.

Root et al.

(New Jersey Supreme Court, February 20, 1891.) Eminent Domain-Damages-Experts.--In condemnation proceedings, when the damages done to a farm by the location of a railroad arise entirely from its changed agricultural conditions, a farmer is an expert with respect to the value of the lands before the laying of the road, as compared with their value after that transaction. But when, beyond this, the value of the land has been affected injuriously in other ways, as from its exposure to be fired by passing locomotives, etc., a farmer cannot make such comparison of values as an expert.

ERROR to Circuit Court, Sussex County.
Martin & Conklin, for plaintiff in error.
Francis J. Swayze, for defendants in error.

BEASLEY, C. J.—This was a proceeding to condemn lands for railroad purposes. The property so sought to be taken was part of a farm. The first question presented for the consideration of this court is whether, in Farmer as ox. such an injury, before a jury, on appeal to the cir- bere with re.

spect to value. cuit court, it is lawful to ask a witness, who is a farmer, acquainted with the value of farm land in the neighborhood of the property condemned, what, in his opinion, is the market value of the farm in question before the running of the railroad through it, and what is its value after such event? It seems to me that this question, in its broad sense, cannot be answered categorically, either in the affirmative or the negative; for the legality of the interrogation depends on the incidents of the case that is trying. The witness is an expert on certain subjects, and his opinions have no place in the judicial investigation except by reason of such status. Within the sphere of his special knowledge, he is competent to express his opinion; beyond that reach, he is not competent. Such is, beyond question, the general rule; none but experts on the given subject can, in any course of law, express their estimate of the value of anything, real or personal. Such it is believed is the universal practice of all courts that are controlled by the methods of the common law. Carrying, therefore in our mind this doctrine that the witness in question is competent to express his opinion only upon subjects to which his special knowledge relates, it is easy to see that, in the class of cases to which the present one belongs, sometimes the interrogatory above stated will be legitimate, and at other times not so. Thus, if the effect of the taxation of the railroad in a particular case is simply to sever the fields of a farm from each other, producing the necessity of putting and keeping up additional fences, and producing inconvenience in the tillage of the farm, if these be the sole detriments in question, it would seem plain that the farmer would be an expert as to the quantum of such impairment. The situation would be the same as that which is occasioned by the laying out of a common highway under similar circumstances, and the effect on the value of the property by the railroad or by the highway would be identical. As such intersections of land are of common occurrence, and the expense and inconveniences proceeding from them are well known practically to every agriculturalist, and are equally unknown to persons of other callings, it necessarily follows that the former must be regarded in courts of law as possessed of the knowledge of the specialist on the subject. In such a posture of affairs, the opinion of the farmer touching the value of the given farm before such intersection of it, as compared with its value subsequently, is manifestly admissible, as the difference between such values is the exact measure of the damage that has been done. But, in cases of the intersection of farms or other lands by railroads, the problem with respect to the damage thereby inflicted is oftentimes one of greater per.

plexity than that which is presented in the class of

instances just referred to. By such transactions, or's opinion property of this kind is frequently damnified be. is not compe- yond that which ensues from a change merely in

its agricultural conditions. For example, let the road run within a few yards of the dwelling house upon the farm; clearly, such building may be subjected to some risk of being fired by sparks from locomotives, and its in mates disturbed, by night and by day, by the noise, dust, and smoke occasioned by the frequent trains. And it would seem evi. dent that, with regard to the damage thus inflicted, no person can claim to be an expert. On this subject all men stand on an equal footing, for each case that arises must necessa

Cases in which farm

tent.

rily be differently conditioned. It is presumed that no court would permit a witness, because he is a farmer, to be directly asked how much, in his opinion, the value of the farm had been lessened by reason of its dwelling house being subject to the noises and smoke of passing locomotives, and yet it would seem undeniable that such an opinion in the case just stated would be embraced in a general statement of the witness as to the decreased market value of the property after the laying of the road; for, if we suppose the mischief stated to be represented by the sum of $1,000, the selling value of the premises would obviously be diminished in about that measure.

The result, therefore, is that a farmer is to be deemed competent, in this class of cases, to express his opinion as an expert with respect to the value of the lands, both before and after the laying of the railroad, whenever the damage that has been done has arisen solely from a change in the agricultural conditions of the property, and that he is not so qualified when there are other causes of damage of the indefinite nature of those just specified. In the present instance there was no testimony relating to the damages except those supposed to have been occasioned by the mere intersection of the farm by the railroad, and consequently the opinion of the witness as an expert with respect to them was admissible. There was no error in this particular. The evidence was properly received by the trial judge. The other objections pressed in the brieis of courses have been examined, but in these respects there is neither error nor matter requiring discussion. Let the judgment be affirmed.

Eminent Domain - Competency of Witnesses to Give Opinion Evidence as to Value of Land.See note 44 Am. & Eng. R. Cas. 136.

Although a witness may not be able to state absolutely the value of land, yet he may give his opinion, where it is shown that he is familiar with the locality and the general surroundings. San Antonio & A. P. R. Co. v. Ruby, (Texas Sup. Ct., March 10, 1891), 15 S. W. Rep. 1040.

In Papooshek v. Winona & St. P. R. Co., 44 Minn. 195, it was held that there is no inflexible rule of law defining how much a witness must know about property before he can be permitted to testify as to its value. It must appear on the preliminary examination that he has knowledge on the subject sufficient to enable him to form an estimate of its value, and such as it may be supposed the jury do not have. It is then for the court to dethemine the question of his competency; and if the evidence is received the jury will determine the weight and worth of it, in view of all the circumstances as developed on the examination.

Opinion Evidence as to Amount of Damage Sustained- Qualification of Witness to Testify.-In Chicago, K. & W. R. Co. v. Easly, (Kansas, May 9, damages to a farm consisting of 160 acres, puts a witness on the stand to of the land, ma does not know the market value of the other so, but says

, it is in his judgment worth $20 per acre, it is error to permit him, over the

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objection of the adverse party, to state how much less the whole farm was worth immediately after the appropriation of the right of way across it by the railroad company than it was immediately before such right of way was appropriated.

Qualification of Witness to Speak as an Expert-Form of objection to Ques tion.--An objection to a question asking a witness how much the land in question was worth before the road was run through it, on the ground that “no proper basis had been laid, and as called for a mere opinion,” cannot be interpreted as an objection that the witness had not shown any qualification to speak as an expert. Evansville & R. R. Co. v. Swist, (Indiana, April 8, 1891), 27 N. E. Rep. 420.

Competency of Witness to give Opinion as to Value of Fruit Trees on Land Taken.-A person who has testified on the trial that he is 50 years of age : that he has followed farming all his life; that he has had experience in growing orchards of fruit trees; that he has put out in his life time three or four different orchards; that he knew at the time of the construction of the railroad through the premises that there was “ quite a nice little orchard there;” that he had been over the premises very frequently; that he lived only two miles from the same; that while he could not say he knew the particular trees taken, he knew what fruit trees planted in such an orchard were reasonably worth at the time of the construction of the road, -is competent to give his opinion of the value of fruit trees, two, three, and five years old, which were growing in an orchard on the premises, but taken or destroyed by a railroad company in constructing its road over its right of way. Chicago, K. & W. R. Co. v. Mouriquand, Kansas, Jan. 10, 1891), 25 Pac. Rep. 568.

Competency of Witness to give Opinion as to Proportion of Land Subject to Overflow.-In Chicago, K. & W. R. Co. v. Donelson, (Kansas, Jan. 10, 1891), 25 Pac. Rep. 584, which was a condemnation proceeding for a right of way of a railroad, it was claimed that the construction of the road interfered with the natural drainage of the land not taken ; that the ditches would not carry off the water, and a portion of the land would be overflowed and injured. A witness, who was acquainted with the land, and had seen the road and ditches since they were made, but who had not measured the capacity of the ditches, and had not seen an overflow of the land, there having in fact been none since the construction of the road, was asked, and allowed to answer, what proportion of the plaintiff's land was subject to overflow from the ditches. Held that, as the witness was not a surveyor or civil engineer, and had no special skill that would enable him to take levels or make calculations as to the quantity of water which would accumulate, and could be discharged through the ditches, or to make measurements and calculations to the exteet of land that would be affected, if there was an overflow of the ditches, was not competent to give an opinion upon the subject, and that his testimony should have been excluded. The court said: “The question involved a calculation in engineering, as to the extent of country drained into the ditches, and the dimensions and capacity of the ditches to carry off the surface water that might flow into them. The sloping character of the ground and the level of the ditches should be considered to determine the rapidity of the flow, and the capacity of the ditches to discharge the water. If the ditches were insufficient to carry off the water that would probably fall in that section of the country, and upon the area that would run into the ditches, then the witness would have to determine the extent of the land that would be reached by an ordinary overflow, and the rapidity of such overflow would have much to do with the injury that would result therefrom. A surveyor or civil engineer who had made a survey of the ditches, and had taken levels at various points upon the land liable to be over

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