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value was, or to increase or diminish the same; but it involved all these things, and a great deal more. Upon the questions involved in this case we would refer generally to the following authorities : 3 Suth. Dam. chap. 16; Union R. Transfer & Stock-Yard Co. v. Moore, 80 Ind. 458, 5 Am. & Eng. R. Cas. 352, note and cases there cited; McReynolds v. Burling. ton & O. R. R. Co., 106 Ill. 152, 14 Am. & Eng. R. Cas. 175, note and cases there cited ; Neilson v. Chicago M. & E. W. R. Co., 58 Wis. 516, 14 Am. & Eng. R. Cas. 244, note, and cases there cited; Grafton & G. R. Co. '. Foreman, 24 W. Va. 662, 20 Am. & Eng. R. Cas. 225, note and cases, there cited.” We can see no very great distinction between the two questions. Each calls for the opinion and conclusion of the witness, and, upon the authority of the case supra, it was error to permit the question and answsr. Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 44 Am. & Eng. R. Cas. 51; Elliott, Roads & S. 198; Mills, Em. Dom. S 165; Ohio & M. R. Co. v. Nickless, 21 Ind. 271: Dalzell v. Davenport, 12 Iowa, 437; Hosher v. Kansas City, St. J. & C. B. R. Co., 60 Mo. 329; Tingley v. Providence, 8 R. I. 493; Rockford, R. I. & St. L. R. Co. v. McKinley, 64 Ill. 338; Railroad Co. v. Burkett, 42 Ala. 83; Cleveland & P. R. Co. v. Ball, 5 Ohio St. 568 ; City of Omaha v. Kramer, 25 Neb. 489, 27 Am. & Eng. Corp. Cas. 73.

2. In the cross-examination of the plaintiff, the question was asked as to what sales had been made in the neighbor

hood, upon which he based his judgment as to Witness vol- values, and, without being asked, he volunteered unteering

this statement: “A neighbor of mine right north to value. of me has one hundred and twenty acres, and was

offered six thousand dollars." The defendant in error moved that this statement of the witness be stricken out. The request was denied, and a proper exception made. This, we think, was error, and the court should have withdraw the statement from the jury. The plaintiff in error complains of certain instructions given and refused, but we see nothing prejudicial in these. While the thirteenth instruction, in relation to damages for the accidental setting out of fires, or the accidental killing of stock, may not have been applicable and supported by the evidence, the defendant below was not prejudiced thereby, as the jury allowed nothing for such injuries. For the reason indicated as to the admission of evidence, we recommend a reversal of the judg. ment.

statement as

Per CURIAM.-It is so ordered.
HORTON, C. J., and VALENTINE, J., concur.

JOHNSTON, J.--I agree that there must be a reversal, but I base my conclusion solely on the second ground of error stated in the commissioner's opinion.

Eminent Domain-Opinions of Witnesses Estimating Damages.—See ante Chicago, K. & N. R. Co. v. Neiman, and note, pp. 186, 187.

Damages to Land not Taken-Evidence as to Worth of improvements to Land.--In proceedings by a railroad company to condemn a right of way through a farm, certain witnesses were allowed to state how much the improvements upon the portion of the farm not taken for the right of way were worth to the land. Held, that it could not be said that such evidence was improper. The court said: “Where certain evidence shows the value of the land not taken with the improvements thereon, as such value is before the construction of the road, and other evidence shows the reduced value thereof as it will be after the construction of the road, the jury are enabled to determine the extent of the depreciation, and consequently, the amount of damages caused by the improvement. The point decided in Jacksonville & S. E. R. Co. v. Walsh, 106 111. 253, that the cost of the improvements is not a true test of the value of the premises, does not arise in-this case.” Chicago, P. & St. L. R. Co.v. Eaton, (Illinois, Jan. 24, 1891), 26 N. E. Rep. 575.

Evidence as to Damages Arising from Railroad Remaining Unfenced.-In proceedings to condemn land for railroad purposes, it is proper to allow witnesses to state what damages will arise from the railroad remaining un. fenced for a period of six months, during which the law does not compel the company to fence its track. Chicago, P. & St. L. R. Co. v. Eaton, (Illinois, Jan. 24, 1891), 26 N. E. Rep. 575.

Condemnation of Farming Lands-Evidence as to Size, Number, and Value of City Lots Near By.-In an action to recover the value of a tract of land appropriated by a railway company for right of way, which, at the time of its condemation, was not platted as a part of a city but was in use as farming land, it is erroneous to permit witnesses to testify to the value of lots on the principal business street of a city near by. The value of such lots furnishes no proper measure by which to ascertain the value of the land taken,, In such a case, it is also error to permit a witness to testify to the size of lots upon said business street, the number of such lots contained in an acre, and the value of such lots. Kansas City & T. R. Co. v. Splitlog, (Kansas, Dec. 6, 1890), 25 Pac. Rep. 202.

Evidence as to How Many Lots Tract Could be Divided into.- In testifying as to the value of land, witnesses may consider its location, and the effect of its location upon its value as a whole ; but they cannot testify as whow many building lots the tract of land would make ; such evidence is wholly improper. Kansas City & T. R. Co. v. Vickroy, (Kansas, May 19,

1891), 26 Pac. Rep. 698.

Evidence as to Necessity for Driving Stock over Track.--In railroad condemnation proceedings evidence is admissible on defendant's behalf to tillable land on the other side, so that it would be necessary for defendant St. P. R. Co. v. Baker, 102 Mo. 553.

Evidence as to Danger to Stock as an Element of Damages.-In proceedinstructed the jury, that in assessing damages the landowner was not to be

a railroad company to condemn land for a right of way, the court allowed anything for possible damage to stock from the use of the right of way. Some of defendant's witnesses in giving their reasons for placing the damages at a certain figure made reference to danger to stock. Held

ings by

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that the error was harmless. Chicago, P. & St. L. R. Co. v. Blume, (Illinois, May 9, 1891,) 27 N. E. Rep. 601.

Evidence as to cost of Rebuilding Tramway made Necessary by Railroad Track.-Where, in a condemnation suit, it appears from the evidence that the construction and operation of the proposed railroad will necessitate the rebuilding of a tramway leading from a coal mine to a railroad track, evidence of the cost of rebuilding such tramway is admissible in proof of damages, although it appears that the tramway when so rebuilt will be worth more than before. Chicago, P. & St. L. R. Co. v. Wolf, (Illinois, March 31, 1891), 27 N. E. Rep. 78. The court said : It appears that the coal company had, in connection with its coal mine, a tramway running from its coal-shaft to the coal-chutes of the other railroad company, and was, and for several years had been, using said tramway for the purpose of conveying coal from said shaft to and loading it upon the cars and engines of said railroad company. The evidence tends to show that said tramway was sufficient for all the then present requirements of the coal company's business, and also that such tramway was absolutely necessary to the proper operation of said mine and the shipment of coal therefrom. The construction and operation of appellant's railway will make it necessary to raise said tramway about eight feet, or to tear it down, and erect another in its stead. One of these things the coal company will be compelled to do in order to restore its mine to its present state of efficiency. We think it clear, then, that for the purpose of making an intelligent estimate of the damages to the mining property which will be the necessary and proximate result of the construction and operation of the railway, the cost of raising the present tramway to the proper height, or of constructing a new one in its place, was a proper matter for the consideration of the jury."

Evidence as to what Landowner Paid for Land. — The inquiry, in an action to try title to land over which a railroad company has constructed its road, and in which the company by its answer seeks to condemn the land, should be confined to the value of the land at the time of the trial. Accordingly, it is not error to exclude evidence of what the owner paid for the land. San Antonio & A. P. R. Co.v. Ruby, (Texas Sup. Ct., March 10, 1891), 15 S. W. Rep. 1040.

Evidence as to what Owner Would Sell Property For.—The plaintiff brought trespass against a railroad company to recover damages for consequential injuries to his property, arising from the construction and operation of defendant's siding upon a public street in front of it. Held, that in such case, it was not error to refuse the defendant's inquiry of the plaintiff, whether he would take a certain sum for the property as affected by the siding, and of its own witness, whether the latter would give a certain sum for the property thus affected. Auman v. Philadelphia & R. R. Co., 133 Pa. St. 93.

Evidence as to Bona Fide Offers made for the purchase of a lot not taken abutting land taken under the right of eminent domain is admissible to prove the value of the land not taken upon the issue of damages, the weight of such evidence and the bona fides of the offer being questions of fact for the jury. Muller v. Southern Pac. B. R. Co., 83 Cal.

240. Evidence as to Discharge of Sewage on Land Affecting its Value.-In an action for the taking of land for a railroad right of way, in considering the damages to be allowed the landowner, evidence that a city sewer, even though without right, discharged its contents on the land, is admissible, as affecting its value at the time of the taking. Harris v. Schuylkill River E. S. R. Co. (Pennsylvania, April 6, 1891), 21 Atl. Rep. 590.

Evidence as to Greater Price where Land is Taken Without Owner's Con. sent.-In Chicago, P. & St. L. R. Co. v. Graney, (Illinois, Nov. 5, 1890), 25 N. E. Rep. 798, which was a proceeding to condemn a right of way for a an action to recover damages for the taking of land by a railroad company, consisting of part of a city lot situated on a public street, evidence of common reputation or hearsay, existing before the controversy arose, as to the initial point of the survey of the street, to show the line of

Rep. 798.

railroad company, it was objected on appeal that evidence was admitted tending to prove that because a small strip of land was taken, and that against the landowner's consent, a greater price proportionately should have been awarded, than if the entire body of land had been taken with his consent. The verdict assessed the damages for the land taken at a less rate per acre than the entire farm was shown by the evidence to be worth; and the damages for land not taken was assessed at one-half the amount testified to by the owner's witnesses. The jury were instructed that they could not add anything to the damages because the land was taken without the owner's consent. Held, that the admission of the evidence was harmless error.

Evidence as to Buildings on Land Separated from Farm.—Where, in condemnation proceedings, a railroad company has offered evidence to show that the land separated from the farm buildings might be sold to adjoining owners at but little loss, it is proper in rebuttal to show that the buildings are too large and valuable to be suited to the farm if such land were sold. Chicago, P. & St. L. R. Co. v. Graney, (Illinois, Nov. 5, 1890), 25 N. E.

Evidence as to Value of Land Before and After Road Crossed It.-In condemnation proceedings it is proper to prove by competent witnesses the value of the land without the road across it, and the value if divided by the road into parcels; and it is proper for the jury to consider such evidence in assessing the

damages. Evansville & R.R. Co. v. Swift, (Indiana, April 8, 1891), 27 N. E. Rep. 420.

Evidence as to Assessed Value of Land.-Estoppel of Plaintiff Who is One of the Assessors.-In Smith v. Pennsylvania S. V. R. Co., (Pennsylvania, March 23, 1891), 21 Atl. Rep. 505, it was held that the fact that the plaintiff in a suit to condemn a right of way for a railroad, was one of the assessors for the township in which the land was situated, does not estop him from asserting that the land is of far greater value than its assessed value, where it appears that his property was assessed by the other two assessors, without his taking any part in the matter. And, in such case, it is permissible to show that the plaintiff took no part in the assessment of his own property, but left it entirely to the other two assessors.

Construction by Railroad of ice House in Place of One Destroyed.--Evidence as to Use of New Ice House.--An ice company's storage house was in part.destroyed by the construction of a railroad. The railroad company and the ice company agreed that the former should erect a new ice house

. and that the latter might take it at cost, allowing the same “as an offset to the damages awarded to them," this agreement not to prejudice the rights of either party. It was further agreed that if the ice company

should regard the bill for the cost of the house as excessive, experts should be appointed to fix its just cost and decide whether said company's business could conveniently be carried on in it. The ice company accepted the house when built

, and used it, without disputing the bill for its cost. Upon the assessment of damages for the construction of the railroad, it was proper to show that the use of the house in the ice business was inconvenient and expensive, not by reason of defective construction of the house, but in consequence of the presence of the railroad track, and that the value of the River, É, S. R. Co., 135 Pa. St. 629. property was depreciated by such inconvenience. Rees v. Schuylkill Taking Lot Abutting on Street-Evidence as Line of Street --Common

47 A. & E. R. Cas-13

Reputation. In

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establish a boundary line of general or public interest, provided it existed before the controversy arose. Muller v. Southern Pac. B. R. Co., 83 Cal. 240.

MONTANA R. Co.

V.

WARREN et al.

(137 United States, 348.) Eminent Domain-Damages-Opinion Evidence as to Value of Land.—In an action to recover compensation for land taken for railroad purposes, consisting of an undeveloped "prospect” in mineral lands, the opinion of a competent witness, familiar with the country and its surroundings, as to the value of the land taken, may be received in evidence.

Same-Competency of Witness to give Opinion as to Value.—No exact rule can be laid down as to the amount of knowledge which a witness, as to the value of land condemned for railroad purposes, must possess; the determination of that matter must rest largely in the discretion of the trial court.

ERROR to the Supreme Court of the Territory of Montana.

Action by the Montana Railway Company to condemn a right of way over a certain mining claim in Silver Bow County, Montana, known as Nipper Lode. A motion by the railway company for a new trial in the district court of Montana, was overruled and denied, and the judgment entered upon a verdict assessing the damages at $7,000. The railway company then carried the case to the supreme court of the territory of Montana, where the judgment below was affirmed. The company thereupon sued out this writ of error. John F. Dillon and Harry Hubbard, for plaintiff in error. S. S. Burdett, for defendant in error.

BREWER, J.—The plaintiff in error, desiring to construct its railroad through a tract of land belonging to the defendants

in error, the same being a mining claim known as Case stated.

the“ Nipper Lode," situated in Silver Bow county, Montana territory, took appropriate proceedings for the condemnation of a right of way. The appraisers assessed the damages at $1,552. From such appraisement the defendants appealed to the district court, and on trial there the jury found the damages to be $7,000, for which, with costs, judg. ment was entered against the railroad company. An appeal was taken to the supreme court of the territory, which af. firmed this judgment; which judgment of affirmance has been brought before us for consideration. The opinion of that court will be found in 6 Mont. 275.

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