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Johnson v. 192.

flowed, would have been a competent witness. But the witness was not skilled, and presented no claims entitling him to give an opinion as a scientific expert. As a farmer, he might give his opinion on matters ordinarily connected with farming, and his testimony was proper, so far as it related to specific facts. We find no testimony of an overflow from the ditches since the construction of the road, nor anything which satisfactorily shows the incapacity of the ditches to carry off the surface water which would probably pass into the same. The jury made a liberal award for the anticipated damages from this cause, based largely upon incompetent testimony; and hence the ground of error assigned must be sustained.”

Opinion Evidence as to Injury to Land not taken-Opinion of Witness not an Expert.-In Chicago, P. & St. L. R. Co. v. Nix, (Illinois, March 31, 1891), 27 N. E. Rep. 8i, it was held that a witness, although not shown to be an expert, may be asked what, in his judgment, would be the injury to the land not taken by a railroad company for its right of way. The court

“ The question called for the opinion of the witnesses as to the value of the land not taken, as affected by the construction and operation of the railway. It is not the rule that, on the question of the value of property, no witnesses can be examined but those engaged in buying and selling the species of property under investigation, but on the contrary, any person knowing the property and its value may testify, the weight to be given to their testimony being left to the jury. White v. Herman, 51 III

. 243; Freeport & M. R. R. Co., ní III. 413, 25 Am. & Eng. R. Cas.

The precise question arising here was decided in Keithsburgh & E. R. Co. v. Henry, 79 III. 290, where it was held that, on an assessment of damages, under a proceeding by a railroad company to condemn a right of way through a farm, it is competent for witnesses who are acquainted with the farm, and familiar with the use and productions of such property, and its value, to give their opinions as to the extent of damage which the construction of the road over the same will occasion, leaving it to the jury to give their evidence such weight as in their opinion it may deserve.

Expert Testimony as to value of Land-Details on Which Opinions are Founded.—In estimating the value of land taken by a railroad company for a right of way, the possible and probable uses of the land are important elements, and may be shown by the opinions of experts. But the details of improvements, the cost, probable rent afterwards, etc., require knowledge on the subject to insure the proper weight to be given, and the inferences to be drawn from them. Hence, they are not admissible as inof the expert in forming his judgment

, and whether they have done so is a legitimate subject of cross examination. Harris v. Schuylkill River E. S. R. Co., (Pennsylvania, April 6, 1891), 21 Atl. Rep. 590.

Evidence as to Value of Trees Growing on Land.-In a condemnation suit land taken to be given to the jury independently of the value of the land to which they were attached. The evidence was not objected to at the time affected it. Held, that the appellant, on appeal, could not complain of the introduction of such evidence. Chicago, P. & St. L. R. Co. v. Graney, (Illinois, Nov. 5. 1890), 25 N. E. Rep. 798.

as Value of -of be Inquired into.In Kansas City & T. R. Co. 2. Vickroy, Kansas, May 9, 1891), 26 Pac. Rep. 698, it was held that in appeals from the awards of commissioners in condemnation proceedings, opinions as to the value of property should be confined to the property in question, unless on cross examination, for the purpose of testing the knowledge and competency of the witness, the value of adjoining property is inquired of.

Opinion

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Case stated.

CHICAGO, KANSAS & NEBRASKA R. Co.

V.

NEIMAN. (Kansas Supreme Court, March 7, 1891.) Eminent Domain-Damages—Opinion Evidence.—The opinion of a witness, giving in the lump the amount of damages, present and prospective, which a landowner will sustain by the appropriation of a right of way for a railroad through his land is not admissible as evidence.

ERROR from District Court, Harvey Coụnty.
Ady & Henry and W. F. Evans, for plaintiff in error.
Bowman & Bucher, for defendant in error.

JOHNSTON, J.—The Chicago, Kansas and Nebraska Railway Company instituted proceedings to condemn a right of way

for its railroad through Harvey county. A strip of

land through the farm of I. H. Neiman, amounting to 7 24 acres, was desired, and the commissioners who had been appointed appraised the value of the land appropriated at $289.60, and estimated the damages for depreciation and injury to adjoining lands, not appropriated, at $410, making a total of $699.60. Neiman appealed to the district court, where a trial was had with a jury, and where damages were awarded in the sum of $1,611.70. The principal complaint, and the only one that we need notice, is the admission by the court of incompetent testimony. The following question was asked and the answer given over the objections of the railroad company: “Question. How much less, in your opinion, was the farm worth after the railroad had established their track through it, irrespective of any benefit to be derived from said track, taking into consideration the damage, present and prospective, the incidental loss, inconvenience, present and prospective, which may reasonably be expected to exist from maintaining the said railroad track to be continued permanently? Answer. $2,800 less, or $9,200 afterwards." 'A substantially similar question was asked another witness, and an objection was made at the time, but the objection was overruled, and the witness answered, “ About $1,300.” It is contended by the plaintiff in error that under these rules the

province of the jury was invaded by allowing the Opinion as to witnesses to determine by their opinions the exact

question that the jury was called to decide. The precise question presented was determined by this

court in Wichita & W.R. Co. v. Kuhn, 39 Kan. 675, 33 Am. & Eng. R. Cas. 159. The question asked and

amount of damages not admissible.

159.

answered in that case was almost identical with the one propounded in this, and the court held that the admission of the testimony was erroneous, and that it was virtually asking the witness to decide the case for the jury, and to advise them what their verdict should be. It cannot be said that the error was an immaterial one, as the witnesses differed widely in their opinions of the values of the property and of the damages suffered. The estimates ranged all the way from $800 up to $2,800, and those witnesses who had assumed the functions of the jury and lumped the damages suffered, were among those who placed the damages at the highest sum. The reasoning and cases cited in Wichita & W.R. Co. v. Kuhn, supra, are equally applicable here, and must rule in the present case. We do not deem it necessary to notice the other points that have been discussed in the case. The judgment will be reversed, and the cause remanded for a new trial.

All the justices concurring. Eminent Domain-Admissibility of Estimates by Witnesses as to Amount of Damages.See Sherman v. St. Paul M. & M. R. Co., (Minn.) 10 Am. & Eng. R. Cas. 193; Wichita & W.R. Co. v. Kuhn, (Kan.) 33 Am. & Eng. R. Cas.

In Nevada & M. R. Co. v. De Lissa, 103 Mo. 125, it was held that in an action to condemn a right of way for a railroad, upon an issue as to the damages by the construction of the road over defendant's farm, it is not error to perniit witnesses shown to be competent and acquainted with the premises, and the character of the land, and whether improved or not, to express their opinions as to the damages, including the value of the portion taken, and the damage done to the rest of the tract. Following Springfield & Southern R. Co. v. Calkins, 90 Mo. 538. In Dallas & G. R. Co. v. Chenault

, (Texas Ct. of App. May 10, 1890), 16 S. W. Rep. 173, which was a suit to condemn lands by a railroad company, several witnesses testified that the tract of land was damaged from $2000 to $3000.

This was their opinion. They said they did not know how much it had decreased in market value; that if they owned the place they would consider they had been damaged that much. In instructing the jury the court charged that the burden of proof was on the landowner to show the damages sustained by him, and, if the value was less after the taking, and the decrease was the result of the construction and operation of the railway, then the jury should find for the landowner the

amount of such decrease in addition to the value of the land taken. Held, that when considered with reference to the charge of the court, there was no error in the

Directly as to Amount of Damages Sustained.-In Leavenworth, N. & S. R.Co.v. Herley, (

Kansas, March 7, 1891.

) 26 Pac. Rep. 23, the court, without deciding anything, considered the point to testify directly as to the amount of damages sustained, and said: “We witness sufficiently coinpetent may testify as to the value of the land before the taking of the right of way and the value of the land afterwards, and inthe case; and that he may also testify in detail with regard to the situa

admission of the testimony.

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tion of the land, and with regard to all things connected therewith which might tend to render the land more valuable or less valuable, or which might constitute elements of value or want of value, or that might tend to prove value or want of value; and that the witness might also testify as to every fact which might constitute an element of damage or tend to prove damage. See the cases of Kansas City & S. W. R. Co. v. Ehret, 41 Kan. 22, and cases there cited; Commissioners of Smith Co. v. Labore, 37 Kan. 480, 484, 485. But the railway company claims that a witness cannot testify in comprehensive terms to the amount of damages which he may think the landowner has suffered or may suffer by reason of the appropriation of the right of way. It has been suggested in favor of a witness giving direct testimony as to the amount of damages to be recovered, that as the amount of the damages to be recovered is the final result to be reached upon the testimony of all the witnesses, each witness should be permitted to state in direct and explicit terms just how much he thinks the damages are. The railway company answers that this cannot be done, for the simple reason that the amount of damages to be recovered is the final result to be reached in the action,—the final fact to be ascertained by the jury; and that the jury alone, and not the witness, is the proper tribunal to determine this fact, which is generally an exceedingly comprehensive and complex fact, depending upon and including innumerable details. Suppose that the plaintff in an action for personal injuries an action for assault and battery for instance-should be a witness, would it be proper to ask him such questions as these : How much were you damaged? What is the amount of your damage? What amount are you entitled to recover? We do not think it is necessary to determine whether the court below committed any material error in permitting witnesses to testify directly as to damages or not, and we shall therefore pass to the next question.

CHICAGO, KANSAS & WESTERN R. Co.

v.

MULLER.

(Kansas Supreme Court, Dec. 6, 1890.) Eminent Domain-Opinion Evidence. In the trial of a case, upon appeal from an award of damages in condemnation proceedings, the court permitted the plaintiff, as a witness, to answer the question: "How much less was the farm worth immediately after the railroad went through, per acre, than it was before?Held, that it was error, as it involved substantially the subject matter the jury were called upon to determine. JOHNSTON, J., dissenting.

Same -Expert Evidence as to Value-Witness Volunteering Statement as to Amount of Damages-Where a witness is asked, upon cross-examination, a question as to his knowledge of values, and volunteers the following statement: “A neighbor of mine right north of me has one hundred and twenty acres, and was offered six thousand dollars,”—and the court refused the request of the defendant to withdraw such statement from the jury, held error.

COMMISSIONERS' decision. Error from District Court, Sedgwick County.

Case stated.

evidence as to amount of

George R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. Sluss & Stanley, for defendant in error.

GREEN, C.-George Muller owns the N. W. 1 section 28, township 29 S., range 2, in Sedgwick county. The plaintiff in error condemned a right of way for a rail· road over said land, and 5 do acres were taken for which the commissioners allowed $439.40. The defendant in error appealed from this award to the district court, and a jury assessed his damages at $800, and a judgment was rendered accordingly. The railroad company excepted and brings the case here.

1. The first error alleged is in the admission of evidence. The plaintiff was asked how much less the land was worth immediately after the railroad went through, per acre, than it was before. An objection to this question, on the ground that it called for a conclusion, was Opinion overruled, and the witness was permitted to answer:“Five dollars less an acre.' This with simi.

damages. lar evidence, it is claimed, is clearly prejudicial, because it is a statement of the judgment and conclusion which the jury should reach and not the witness; that it was improper to permit the witness to usurp the province of the jury and give his own opinions and conclusions. In the case of Wichità & W.R. Co. v. Kuhn, 38 Kan. 675, 33 Am. & Eng. R. Cas. 159, the following question and answer were held to be erroneous : Question.

" Question. How much less, in your opinion, is this farm worth after the railroad company had established its track through it, irrespective of any benefits from any improvement proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences, and damages, present and prospective, which may reasonably be expected or shown to exist from the maintaining of said railroad track, to be continued permanently? Answer. About $2,100." The court said, with reference to this evidence : « The court below certainly should not have permitted this evidence to be introduced. It involved substantially everthing that the jury were called upon to determine, and left nothing for the jury to decide. It invaded the province of the jury. It really amounted to letting the witness himself determine by his own opinion what the plaintiff's damages were, and the amount which the plaintiff should recover in the action. It had no reference particularly to the market value of the land, either before or after the right of way was taken ; nor any reference to any specific fact which might tend to show what such market

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