Rondout & Oswego Railroad v. Deyo , 5 Lans. 298 ( 1871 )

By the Court

Miller, P. J.

The printed papers upon this appeal contain the report of the commissioners and the testimony taken on the hearing, which purports to be annexed to the report. ' In reviewing the proceedings, I am inclined to think that the testimony must be considered as a part of the report. Such seems to have been the practice in several cases. (N. Y. and E. R. R. Co. v. Corey, 5 How., 177; The Same v. Coburn, 6 id., 223; R. and S. R. R. Co. v. Budlong, 6 id., 467; R. and G. R. R. Co. v. Beckwith, 10 id., 168; T. and B. R. R. Co. v. N. T. Co., 16-Barb., 100.)

Assuming that the testimony is to be taken into consideration in reviewing the proceedings, it is proper to examine the questions which are presented thereby in connection with the report. The railroad company applied to the court to acquire title to the land described in the report, for the purpose of constructing or operating the proposed road. No objection was made to the application, and the commissioners were appointed to appraise the value of the land, and the compensation to be made to the owner or owners. The only questions, then, which can properly be made, are as to the proceedings of the commissioners on the appraisal. We have nothing to do, upon this appeal, with any question as to the propriety of taking the land for the purposes intended, or with any question which may hereafter arise as to the right of the company to lay their track beyond the bounds of the land which they may acquire by this proceeding.

it is objected that the evidence of value was incompetent. Only one witness was sworn before the commissioners as to the actual value of the lot, and no objection was made to his evidence, them being no appearance by the appellant. He testified that he lived in the vicinity of the premises, and he knew, from what others said, the value of real estate in the vicinity; that one Oassidy had paid $1,000 for his lot, and the market value of lots, 50 by 100 feet, was about $400; but the lot in question in this matter was not worth quite as much. Conceding that the appellant was entitled to the benefit of all legal objections, the same as if he had been present and made them, I am inclined to think that the evidence was competent. It is manifest that the witness, living in the vicinity, had some knowledge of the value of lots there, as he testified; and it was not, in my opinion, essential that that knowledge should be derived from actual experience in buying and selling, or being present at a sale, but it was sufficient that it was derived from the opinion of others, in connection with an acquaintance with the locality. The evidence was not hearsay, but the expression of an opinion derived from knowledge as well as information from others. This is, I think, competent upon a question of value, which is generally a matter of opinion, derived from knowledge, in part, but mainly from information received from other parties. It may be added, that the testimony of witnesses, in proceedings of this character, as to Value, is not controlling. The commissioners, after all, must decide according to their own judgment ; and even an award made without testimony is regular. (Rondout and O. R. R. Co. v. Field, 38 How., 187.)

Hor was there any error in the evidence given by the engineer as to the intended use of the land to be taken. It was proper to show the circumstances under which the land was taken, and its situation when appropriated, as a part of the res gestos. This is not testimony affecting compensation, but for the purpose of showing the actual state of the matter; and there is nothing in the case which shows that it had any effect whatever upon the commissioners in awarding damages.,

The testimony that the railroad going through would damage the lot, but the taking of the fifteen feet would not much depreciate the value of the property, as it was left open for a road, is very remotely material, if of any importance, as consequential damages could not be allowed. I am not prepared to say that this expression of opinion, which immediately followed the evidence of the witness, as to the value of the lot, was erroneous, and would justify a reversal of the proceedings.

I think there is no force in the objection urged, that the proceedings are void because the last section of the act of 1866, chapter 648, under which the original petition was framed, embraces two subjects, one of which is not expressed in its title. The section referred to relates to the same subject-matter, and there is no such discrepancy between this and the other purposes of the act as would authorize this court to hold that the act, or any portion of it, was void and in violation of the Constitution.

I have examined the other questions raised, and am of the opinion that there was no error in the report and proceedings, and that the order appealed from should be affirmed, with ten dollars costs of appeal.

Judgment affirmed.