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commissioners but should confine themselves ex- except the Bridger Coal Company-as to clusively to the testimony at the hearing was which, because of an adjustment made by it correct where the award was not introduced in evidence.

with plaintiff before the hearing in the dis14. APPEAL-REVIEW-QUESTIONS OF FACT

trict court, the proceeding was dismissedCONFLICTING EVIDENCE.

but filed no answers or other pleadings. The Where the evidence gives substantial sup- hearing was had and the order of condemnaport to the finding of the jury, it will not be

tion was made as if issue had been joined disturbed.

by defendants. The commissioners appointed [Ed. Note.For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 8 3928.]

in pursuance of the statute to assess the dam

ages (Code Civ. Proc. § 2220) did so after a Appeal from District Court, Carbon Coun

hearing and examination of the lands, and ty ; Frank Henry, Judge.

made their report. The plaintiff, being disCondemnation proceedings by the Yellow

satisfied with the award, appealed to the disstone Park Railroad Company against the

trict court. Code Civ. Proc. § 2224. ThereBridger Coal Company and others. From

after, upon a trial, a jury returned a verdict the judgment, and from an order denying a

awarding damages as follows: To defendnew trial, plaintiff appeals. Affirmed.

ants Hanson, for land taken, $214.80; and W. M. Johnston, for appellant. Sydney incidental damages, $725; to Kuecking, for Fox and W. F. Meyer, for respondents. land taken, $216, incidental damages, $725;

to Clark and wife, for land taken, $285.52, BRANTLY, C. J. Proceeding under the incidental damages, $1,500; and to Dew and statute (Code Civ. Proc. pt. 3, tit. 7, § 2210 wife, for land taken, $328.20, incidental et seq.) to condemn lands owned by defend- damages, $1,295. The jury found that there ants by separate rights, for the use of plain- were no benefits to any of the lands. From tiff as a right of way. The lands are all the judgment entered upon the verdict and used for agricultural and stock-raising pur- from an order denying a new trial, plainposes. Those owned by defendant Hanson tiff has appealed. and wife consist of 160 acres in a square 1. At the beginning of the trial, the debody. Two 40-acre subdivisions are cut in fendants having assumed the burden of proof, two diagonally by the line of road from the plaintiff objected to the introduction of northeast to southwest. The area taken any evidence by them "for the reason that covers 3.58 acres. The defendant Kuecking no answer, counterclaim or any kind of a has 15112 acres in a compact body nearly claim in damages has been filed in this acsquare. The right of way runs through it tion." The objection was overruled and in the same direction, cutting diagonally plaintiff assigns error. It is the rule in three 40-acre subdivisions, taking an area of many of the states that the defendant in 3.6 acres. The defendants Clark own 305 condemnation proceedings is not required to acres in one compact body. The right of make formal appearance either by answer way runs into this tract from the north near or otherwise. The complaint is treated as the middle of one 40-acre subdivision and denied, and the hearing proceeds as if formal passes through it on a curve to the south- issue had been made. This is the rule in west to a point near the line of the western Minnesota, Illinois, North Carolina, Iowa, tier of 40's on the south line of this 40, and and Arkansas. Sheldon v. Min. & St. P. Ry. thence due south, cutting two other 40's Co., 29 Minn. 318, 13 N. W. 134; Smith v. from north to south, and takes an area of Chicago & W. I. Ry. Co., 105 Ill. 511 ; Caro6.345 acres. The defendants Dew and wife lina C. R. R. Co. v. Love, 81 N. C. 434; own 160 acres in a parallelogram extending Corbin v. Wisconsin, etc., Ry. Co., 66 Iowa, north and south. The right of way runs 269, 23 N. W. 662; Bentonville R. R. Co. v. through them from northeast to southwest Stroud, 45 Ark. 278. It was formerly the on a wide curve, cutting three of the 40-acre rule in Colorado (Denver & Rio Grande R. subdivisions and taking 5.47 acres. All of R. Co. v. Griffith, 17 Colo. 598, 31 Pac. 171), these lands lie adjoining in the order named, but it seems that the rule has been changed along Clark's Fork river in Carbon county. by a later statute. Whitehead v. Denver, 13 Considerable areas of all of them are cul- Colo. App. 131, 56 Pac. 913. The procedure tivable and produce grain and alfalfa hay. in such cases is regulated by the statutes of On the Clark lands is an orchard of 30 acres. the particular states, and decisions made The line of road over most of the way through under them are generally of little aid in them is upon areas usually cultivated. The the interpretation of our own statute. In such Clarks are also engaged in sheep raising proceedings the court acquires jurisdiction and use their place as a home ranch. The of the subject-matter and the parties by the Hanson and Kuecking lands are almost all filing of the complaint in conformity with the cultivated. All of the defendants have water requirements of section 2217, and the issurights, and the taking of the right of way ance and service of summons as directed by disturbs in a greater or less measure the section 2218. The latter section provides : ditches of the respective owners, and will “The clerk must issue a summons which entail additional labor and expense in chan- must contain the names of the parties, a ging them as well as the secondary ditches description of the lands proposed to be and laterals. All of the defendants ap- taken, a statement of the public use for peared in obedience to the summons issued, which it is sought, and a notice to the defendants to appear before the court or judge, are not in default, for, if they must, notat a time and place therein specified, and withstanding their default, be heard by the show

why the property described commissioners, they may appeal (section should not be condemned as prayed for in 2224) and still have a jury trial as to the the complaint. Such summons

must, in amount of damages—a situation which, in other particulars, be in form of a summons view of the provisions applicable to ordiin a civil action, and must be served in like nary actions, would be absurd. But this manner upon each defendant named therein conclusion does not involve the idea that the at least ten days previous to the time desig- court is not bound to proceed in conformity nated in such notice, for the hearing, and with the other requirements of this title in no copy of the complaint need be served. the performance of its duties. The only efBut the failure to make such service upon fect of a default is to shut out the defenda defendant does not affect the right to pro- ants from participating in the proceedings. ceed against any or all other of the defend- The court must, nevertheless, determine ants, upon whom service of summons had whether the use for which the property is been made.”

sought to be appropriated is a public use, Sections 2219 and 2231 provide:

limit the amount taken to the necessities of "Sec. 2219. All persons named in the com

the case, and ascertain the damages under plaint, in occupation of, or claiming an inter- the procedure and in accordance with the est in, any of the property described in the standard provided therefor in sections 2220, complaint, or in the damages, for the taking 2221, and 2224. But, while this is true, the thereof, though not named, may appear, an- plaintiff in this case may not now be heard swer or demur, each in respect to his own to say that he has been prejudiced by the property or interest."

ruling complained of. It failed to take de"Sec. 2231. Except as otherwise provided

fault against the defendants. They were in this title, the provisions of part 2, of this

permitted to appear at the hearing when the Code, are applicable to and constitute the

order of condemnation was made, plaintiff's rules of practice in the proceedings men.

counsel thinking, doubtless, that they were tioned in this title."

not required to file any pleading. No fault While sections 2218 and 2219, supra, do

was found with any of the proceedings until not require, but permit, an answer to be filed,

the opening of the trial on appeal. Upon yet, since section 2231 declares that the pro

inspection of section 2217, supra, it will be visions of part 2 of the Code of Civil Pro- seen what issues may be made and tried cedure shall, except where otherwise pro

upon the pleadings. The case having provided, be applicable and constitute the

ceeded to the making of the order of conrules of practice in the proceedings men

demnation without objection, as if issues tioned in this title, it must follow that an

had properly been made, it must be presumed appearance, either by demurrer or answer, that they were made, and, since there is no must be made by the defendants in order to complaint of any error in regard to them, it give them any standing in court for any

must be presumed that they were properly purpose; for section 632, part 2, declares

determined. But counsel says that the dewhat the summons must contain, in addition

fendants' claims for damages should have to what is required by section 2218, supra.

been set up in their answers by way of Among other things, it must contain a notice

counterclaim, thus giving plaintiff notice of that, if the defendant fails to appear or

their character and amount so that it could answer, judgment will be taken against him be prepared to meet them. The answer by default for the relief demanded in the

to this contention is that there is no procomplaint. Section 1020 declares that judg

vision in the title touching condemnation ment may be had if the defendant fails to proceedings, requiring defendants to set up answer: (1) in actions arising on a contract, their claims for damages in their pleadings by the clerk upon entry of default; (2) upon in any form. And when we examine the a hearing, by the court after the entry of provisions of part 2 relating to the forms of default by the clerk; and (3) in a case where pleadings and declaring what may be set up service of summons has been had by publica- as counterclaims, we find that they clearly tion, upon a hearing, by the court after proof exclude damages awarded in such cases. of the required publication. Construing

The counterclaim permitted by section 691 these provisions together, it is apparent that must tend in some way to diminish or defeat the defendant is required to appear and make the plaintiff's recovery, and must be one of his defense as in ordinary actions. And, a designated class of causes of action against if he fails to appear and save default by one the plaintiff, or, in a proper case, against the of the modes provided, he has no right to be person whom he represents, and in favor of heard in the subsequent proceedings. This the defendant or of one or more defendants is so notwithstanding the provisions of sec- between whom and plaintiff a separate judgtion 2221, which requires the commissioners ment may be had in the action. It must also appointed to assess the damages, to hear the be matured and exist at the time the action allegations and evidence of all persons in- is brought. When this proceeding was comterested. The latter provision evidently con- menced, the defendants had no cause of templates cases where the parties defendant action against the plaintiff, and a recovery

of the damages to which they are entitled tends in no way to defeat plaintiff's right to have the land condemned for a roadbed, whatever may be the amount of recovery. Indeed the purpose of the whole proceeding is to enforce the sale of a portion of defendants' lands to plaintiff, to ascertain the damages—the

damages—the purchase price and to compel payment of them. And, since the statute does not require, either expressly or by implication, that the defendants must plead their damages present any other issues than those which go to the truth of the petition itself, they may not be required to do so, no matter whether the damages are general or special, and, in determining the amount which they are entitled to recover, the court is bound to take into consideration every element of value which would be taken into consideration if the plaintiff were negotiating a sale with the defendants as a willing purchaser and the defendants

defendants were willing sellers. Mississippi & Rum River Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206; Webster v. Kansas City & Southern Ry. Co., 116 Mo. 114, 22 S. W. 474; Denver & Rio Grande R. Co. v. Griffith, supra. In other words, it must ascertain the market value of the lands after the right of way is taken.

2. Objection was made to certain evidence tending to show damage to portions of defendants' lands not actually traversed by the railroad and not described in the petition. It is said now that the claims for damages in this behalf should have been specially pleaded, and plaintiff cites several Illinois cases in support of his contention, among them: Stetson v. C. & E. R. Co., 75 Ill. 74; Chicago & !. R. Co. v. Hopkins, 90 Ill. 316; Johnson v. Freeport & M. R. Co., 111 Ill. 413. It will be seen on examination of these cases, however, that the Illinois statute permits the defendant in such cases to file a cross-petition in order to set forth more fully and accurately his claim. But our statue contains no such provision. Besides, as we have seen, the lands of the different defendants in this case are all compact bodies, and it is clearly within the purview of the court's duty to ascertain what damages have accrued, not only as to the part described in the complaint, but also to the whole of the body, a part of which only is taken. Such damages are not special in the proper meaning of that term. Northern P. R. Co. v. Reynolds, 50 Cal. 90; Sheldon v. Minn. & St. P. R. Co., supra; Sherwood v. St. Paul & C. R. Co., 21 Minn. 122: Fayetteville & Little Rock Ry. Co. v. Hunt (Ark.) 11 S. W. 418. The plaintiff should not, after describing only so much of the entire tract as suits its convenience, be heard to say that the detriment to the part not described is special and must be pleaded by the defendants in order to make it incumbent upon the commissioners or the court to consider defendants' claims.

3. The plaintiff, for the purpose of showing

that all the lands along Clark's Fork river had been enhanced in value by the building of the road, tendered evidence to prove that offers had been made by various persons to the owners of selected parcels of land in the vicinity of the lands of defendants of $100 per acre. All these offers but one, which will be hereafter noticed, arose out of negotiations between persons none of whom are parties to this proceeding or were witnesses on the trial. The evidence having been excluded, counsel for plaintiff insists that the ruling was erroneous. There is no merit in this contention. The offer was an attempt to get before the jury hearsay declarations of third parties as to value not supported by oath, without the right of crossexamination by the defendants. The right mode of proving value is to take the sworn opinions of those who are shown to be competent to give opinions on the subject, and let them be cross-examined as to the foundation of their opinions, their means of knowledge and the motives prompting them. Furthermore, the value of such evidence depends upon the determination of so many collateral issues that it cannot be relied on with safety. With reference to it the Supreme Court of New York has well said: “Its value depends upon too many circumstances. If evidence of offers is to be received it will be important to know whether the offer was made in good faith, by a man of good judgment, acquainted with the value of the article and of sufficient ability to pay; also whether the offer was cash, for credit, in exchange, and whether made with reference to the market value of the article, or to supply a particular need or to gratify a fancy. Private offers can be multiplied to any extent for the purposes of a cause, and the bad faith in which they were made would be difficult to prove. The reception of evidence of private offers to sell or purchase stands upon an entirely different footing from evidence of actual sales between individuals or by public auction, and also upon a different footing from bids made at auction sales. Young v. Atwood, 5 Hun (N. Y.) 234. The reception of this class of evidence would multiply the issues upon questions of damages to an extent not to be tolerated by courts aiming to practically administer justice between litigants." Keller V. Paine, 34 Hun (N. Y.) p. 177. In Hine v. Manhattan Ry. Co., 132 N. Y. 477, 30 N. E. 985, 15 L. R. A. 591, the inquiry was, what was the market value of the premises in controversy prior to the building of the defendant's railroad. On the trial in the lower court evidence of offers made to the owner had been received. The Appellate Court held this error, on the ground that it was objectionable as hearsay, and on the further ground stated by the Supreme Court in Keller V. Paine, supra. On both the grounds we think the evidence was properly 'excluded. The rule stated in these cases has been followed quite generally by the courts, , whether the particular offer was made to third persons for other lands in the vicinity or to a party for the lands in question, either by third persons or the condemning party. Chicago, Kansas & Western R. Co. v. Muller, 45 Kan. 85, 25 Pac. 210; Winnisimmet Co. v. Grueby, 111 Mass. 513; Davis v. Charles River Branch R. Co., 11 Cush. (Mass.) 506; Selma, Rome & Dalton R. Co. v. Keith, 53 Ga. 178; Parke v. Seattle, 8 Wash. 78, 35 Pac. 591; Lehmicke v. St. Paul & Stillwater R. Co., 19 Minn. 464; (Gil. 406); Concord R. Co. v. Greely, 23 N. H. 237; Watson v. Milwaukee & Madison R. Co., 57 Wis. 332, 15 N. W. 468; 2 Lewis on Eminent Domain, 446. The other offer referred to above, was made to defendant Clark himself of $10 per acre of all the land owned by himself and wife, which Clark signified his willingness to accept. This evidence was admitted without objection. Under the circumstances plaintiff cannot complain, for, whether right or wrong, the ruling of the court was in its favor.

4. In assignments 8. 10, 11, 12, 13, and 14 error is alleged in that the court permitted different witnesses to give their opinions as to the damage sustained by the defendants to lands not taken, after deducting all benefits. The argument is that, since the statute (Code Civ. Proc. $$ 2221 and 2224) requires the commissioners in the first instance to assess the damages and benefits separately, the witnesses should have been required to state the damages and benefits separately,

and, since this was not done, the evidence . confused rather than aided the jury. There

is much conflict in the decisions of the courts as to whether a witness should be allowed to state his opinion as to the amount of damages or benefits accruing to the defendant in condemnation proceedings. The cases are collected in the foot notes to sec. tion 476 of Mr. Lewis' work on Eminent Domain. The conflict of opinion, however, seems more apparent than real, for in all the states the opinions of witnesses must be resorted to to determine (1) the value of the land taken; (2) the detriment, if any, to the portion not taken, or, in other words, the value of that not taken; and (3) the benefits, if any, to the portion not taken. If the witnesses state the items separately, it requires only an arithmetical calculation to reach a determination of the net result. Does it really matter whether this is done by the witnesses or by the jury? When the witness has stated the facts upon which his opinion is based—thus furnishi:g the jury the means of judging of its trustworthinessthe mental process necessary to arrive at the net result may as well be that of the witness as of the jury. In effect, the expression of opinion as to the items of value is an expression of opinion as to the net result. After commenting on the diversity of opinion on this subject, Mr. Lewis says: "The law is supposed to discourage all in

direct and circuitous methods. Why a witness should not be allowed to state at once and directly his opinion of the amount of damages or benefits in answer to a single question, instead of stating it indirectly in answer to two questions, we are unable to perceive. The distinction attempted to be maintained between the two methods is without any substantial difference and must eventually be abandoned.” 2 Lewis on Eminent Domain, § 436. In this case the witnesses were questioned fully as to the bases of their opinions. The jury, under the instructions of the court, assessed the damages as required by the statute, finding the items well within the extreme limits of the testimony. Even if, therefore, it be conceded that the questions were not technically correct in form, we do not see how any prejudice was suffered.

5. On redirect examination the following question was asked one of the defendants' witnesses: “I will ask you if Mr. Dew's land has increased in value to any greater extent than any other lands of similar character and quality of his in the Clark's Fork valley since the building of the railroad?” An objection that this was immaterial testimony and was not proper re-examination was overruled, whereupon the witness answered that it had not. While this ruling is assigned as error, the argument in the brief is devoted to the question whether or not an increase in the market price of defendants' lands, generally or specially, by reason of the building of the road should not be set off against any damages accruing to the portion not taken, counsel arguing that the set-off should be allowed. Whether the question presented by counsel should be resolved in favor of plaintiff we need not now decide. If the set-off should be allowed, the evidence was material, for, if the plaintiff had a right to a set-off on account of the alleged enhancement of value, the defendants had the right to show that there was none. The argument of counsel tends to support the view that it was material. Evidently the court thought that it was, for the instructions submitted to the jury were formulated on the theory that credit should be allowed for such benefits. In any event, counsel has ilsswned a position in this court which does not entitle him to complain, because it is exactly the reverse of the position which he assumed in the district court.

6. Complaint is made that the instructions were not sufficiently specific in laying down the rule to be pursued by the jury in assessing the damages. Considering the charge as a whole, it was as fair as the plaintiff could ask. That the jury were not misled is clear írom the fact that they followed the rule laid down in the statute, finding separately upon the different items of damages and benefits as is therein prescribed. While paragraph 21, 0: which particular mention is made, might have been stated with more clearness, it follows the statute in substance and is correct.

Criticism is made of paragraph 24 of the charge, because the court therein told the jury that they must not consider the award theretofore made by the commissioners, but should confine themselves exclusively to the testimony of the witnesses examined at the hearing. This was clearly correct for the reason that the award was not introduced in evidence. The only reference to it was made during the cross-examination of two of the commissioners who were sworn as witnesses at the trial. Being asked as to the amounts fixed by them in their award, they stated amounts which agreed with those fixed by them at the trial. The trial was de novo as to the damages. The award of the commissioners could not be competent for any purpose, except to impeach the statements of those commissioners who were sworn as witnesses, in case their opinions expressed at the trial differed from their findings. The (aution contained in this paragraph was perhaps not necessary, but it is not erroneous.

7. It is said that the evidence is not suffirient to sustain the verdict. It would be a bootless task to take up and analyze the evi. lence and undertake to reconcile the statements of the various witnesses. Most of them were practical farmers and business men who knew the lands in controversy, and, while their statements are conflicting and unsatisfactory upon material points, we cannot say that the evidence all together does not give substantial support to the findinys of the jury. That this court must, under these circumstances, accept them as final is too well settled to permit further discussion.

8. Finally, it is said that the award of the jury for damages to the lands not taken is excessive, as is apparent from the fact that the evidence conclusively shows that the lands of all the defendants have been increased in value by the building of the road, because it not only furnishes easier access to market, but also, for the same reason, it makes them available for other products for which until the road was built there was no market. This matter was agitated at the trial, and there was a sharp conflict in the opinions of the witnesses as to what effect upon the value of the lands along the line of road and in the community generally tre building of the road has had. The question was fairly submitted to the jury. They found that there were no benefits. Their findings were re-examined by the court upon the motion for a new trial. While the verdict is, in case of each defendant, for

larger sum than the amount awarded by the commissioners, the jury might have found a larger amount and still kept well below the highest estimate of any witness. The fact that they found that there were no benefits, though some of the witnesses

were of a contrary opinion, does not of it. self conclusively show that they were controlled by sentiments of passion and prejudice. It merely shows that they regarded the opinions of the defendants' witnesses as more trustworthy than those of plaintiff.

It may be conceded that the building of the road' has improved market facilities for all the defendants. Yet this does not necessarily compel the conclusion that the market value of their lands has been appreciably enhanced, even though it should be accepted as the correct doctrine that such enhancement of value may be offset against the damages. The real inquiry is “whether the verdict is fair and reasonable, and in the exercise of sound discretion, under all the circumstances of the case, and it will be so presumed, unless the verdict is so ex. cessive or outrageous with reference to those circumstances as to demonstrate that the jury have acted against the rules of law, or have suffered their passions, their prejudices, or their perverse disregard of justice to mislead them.” 13 Cyc. 122.

Upon the evidence before us we cannot say that the findings of the jury in the particulars referred to are so obviously and palpably out of proportion to the injury done the defendants as to be in excess of what is meant by the expression “just compensation" as used in the Constitution.

The plaintiff has, we think, had a fair trial and the judgment and order must be affirmed.


MILBURN and HOLLOWAY, JJ., concur.

(34 Mont. 530) KELLY V. CITY OF BUTTE. (Supreme Court of Montana. Dec. 8, 1906.) 1. DAMAGES-INSTRUCTIONS.

In an action for personal injuries, an instruction that, if the jury found for plaintiff, they should find in such sum as would compensate him for any pain or suffering which he had endured as a result of any injury which he had sustained up to the present time, if they found that he had sustained injury, and that he had suffered any pain, was not objectionable as directing the jury to compensate plaintiff for any injury sustained prior to the trial, whether or not through the negligence of the defendant. -2. APPEAL-RECORD-REVIEW-ExcLUSION OF EVIDENCE.

The Supreme Court will not review the evidence if the record does not show affirmatively that it is in substance all before it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2916.] 3. SAME-REVIEW-SUFFICIENCY OF EVIDENCE -DAMAGES.

Where the evidence showed that plaintiff fell a distance of seven or eight feet, was severely cut on the head, that he had one tooth knocked out and another broken, and that he was bruised in the hips and suffered other like injuries, he was entitled to more than nominal damages, and, as the defendant did not insist that the amount was excessive, the judgment

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