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department had the question before it in Keller v. Paine, 34 Hun, (N. Y.) 167, 177. And in discussing the question the court said: 'It has been intimated in some cases that offers are some evidence of value. But it is a class of evidence which it is much safer to reject than to receive. 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 purpose of a cause, and the bad faith in which they were made would be difficult to prove.' The reasons thus assigned in support of the decision made we fully approve. That decision has been followed in Leale v. Metropolitan El. R. Co., (Sup.) 16 N. Y. Supp. 419; Lawrence v. Metropolitan El. R. Co., (Com. Pl. N. Y.), 8 N. Y. Supp. 326. The proposition has been asserted in Ross v. Manhattan El. R. Co., (Super. N. Y.), 8 N. Y. Supp. 495: Kuh v. Metropolitan El. R.Co., (Super. N. Y.) 9 N. Y. Supp. 710. It has also been applied to offers relating to personal property. Young v. Atwood, 5 Hun, (N. Y.) 234; Linde 7. Republic F. Ins. Co., 50 N. Y. Super. Ct. 362; Weld v. Reilly, 48 N. Y. Super. Ct. 531. It is so held in other jurisdictions. Fowler v. County Com 'rs of Middlesex, 6 Allen (Mass.) 92-96; Whitney v. Thatcher, 117 Mass. 523-527; Wood v. Firemen's F. Ins. Co., 126 Mass. 316-319: Louisville, N. O. & T. R. Co. v. Ryan, 64 Miss. 399-404; St. Joseph & D. C. R. Co. v. Orr, 8 Kan. 419-424. In the few cases which may be found holding the other way the question does not seem to have received much consideration from the courts rendering the decisions, and the absence of argument in their support renders unnecessary any special reference to them. Respondent's counsel insists that Harrison v. Glover, 72 N. Y. 451, is an authority against the position here approved; but we do not so read it. There the plaintiff employed the defendants to sell blankets at a price not less than the manufacturing corporation of D. & Co. marketed blankets of their manufacture. The question was, what did the parties intend by this contract? Did they intend to make the actual sales by D. & Co. of their blankets the test, or the price at which they held them? Judge ANDREWS said: 'It was competent for the parties to provide that the price of D. &. Co.'s blankets, as ascertained by the actual sales, only, should govern the price of the plaintiff's blankets. But the parties did not understand this to be the meaning of the contract;' and this statement is followed by an argument on the part of the learned judge to show that the contract which the parties intended to make, and did, was that the defendant should be governed by sales, or by ascertained bona fide offers to sell. The discussion had reference solely to the test which the parties had established by their contract, and was not intended to and does not affect the question before us. While we agree with the general term in the view expressed touching the question so far considered, we cannot indorse the position taken that a reversal should not be had because such testimony did not affect the result. We do not well see how this court can ascertain or determine what weight it had. The question of value was sharply contested, and, if we cannot say that this testimony did not influence the decision of the court, the appellant is entitled to have its admission declared to constitute reversible error. The presumption necessarily arises from the situation presented by the evidence and the decision of the court that the evidence was considered, and it is strengthened by the fact that the trial court, after passing on the admissibility of the testimony, and listening to the answer of the witness, asked the plaintiff how long before the building of the road the offer of $55,000 was made."

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Evidence as to Sales of Land in Vicinity of Land Taken.-Where in condemnation proceedings the deed of a person not connected with the parties to the suit, conveying land in the vicinity of the land sought to be taken, was offered in evidence by appellant for the purpose of showing the value of the land to be taken, and not accompanied by evidence showing, or tending to show, that the sale was voluntary or in good faith, or that the lands so sold were similar in locality and character to the lands in question, held, that such deed was properly excluded from the evidence. The court said: It is urged that the court erred in excluding a deed offered in evidence by appellant for the purpose of showing a sale of property in the locality of the premises sought to be condemned. The instrument offered purported to be a deed from one Gahan to Jefferys conveying lots 1 and 2 in Murray's subdivision of part of the S. fraction of the N. W. quarter section 28, township 39 N., range 14 E., of the third P. M. The property in dispute was lot 6, Healey's subdivision of lot 7, block 1, Canal Trustee's subdivision of section 29, in the same township and range. evidence was offered showing, or tending to show, that the sale was voluntary or in good faith, or whether the premises were improved or not, or if improved, the nature and character of the improvements. Evidence of voluntary sales of other lands in the vicinity, and similarly situated, as affecting their value, is admissible in evidence to aid in estimating the value of the tract to be condemned. St. Louis, V. & F. H. R. Co. v. Haller, 82 Ill. 211; Chicago & W. I. R. Co. v. Maroney, 95 Ill. 182, 5 Am. & Eng. R. Cas. 360. But it is incumbent on the party offering such proof to show that the lands so sold were similar in locality and character to the lands in question. King v. Iowa Midland R. Co., 34 Iowa. 458; Cummins v. Des Moines & St. L. R. Co., 63 Iowa, 397, 17 Am. & Eng. R. Cas. 26. While the jury may, under the statute, inspect the property sought to be taken for the designated public use, there is no warrant for their viewing other property mentioned in the evidence of the witnesses. It is manifest, therefore, that, to render the evidence competent, it should be accompanied by evidence or offer of evidence that will convey to the jury some intelligent idea of the relative value of the properties. If they are not similar in character, in location, and improvements, and no basis is furnished by which a comparison may be made, the evidence could not aid in fixing the value, of the particular property. Moreover, the only purpose of introducing this deed was to prove the price of the lots therein mentioned, as tending to establish the value of the lot in controversy, and this was to be done solely by the consideration expressed in the deed. The recital of the consideration in the deed would, as between the parties to the deed, be admissible evidence as tending to show the amount paid; but even as between them it is not conclusive. As to strangers to the deed,that is, those not parties to it, or in privity with the title, the recital of consideration is an ex parte statement of the parties to the deed. It is, at most, an admission of the grantor and grantee in the deed, and therefore hearsay, when offered against a stranger to the deed. Seefeld v. Chicago, M. & St. P. R. Co., 67 Wis. 97, 27 Am. & Eng. R. Cas. 428. The deed was properly excluded." O'Hare v. Chicago, M. & N. R. Co. (Ill., Oct. 31, 1891), 28 N. E. Rep. 923.

In ascertaining the value of land sought to be appropriated by a railroad for a right of way, evidence is admissible to show the price at which similar land, in or near the vicinity of the land taken, was sold at the time of the appropriation. The court said: Upon the trial one Cardinell, a witness for the petitioner, testified that he had sold land similar in character to that of the respondents, and in the same vicinity, at about the time of the filing of the petition in this proceeding. The witness also testified that the land was nearer to the town of Stanwood than that of the respondents,

and that it was purchased for the purpose of being divided and platted into town lots. When asked the question, How much did you sell that land for per acre?' an objection was interposed by counsel for respondents, on the ground that it was incompetent, irrelevant, and immaterial. The objection was sustained, and an exception allowed. That action of the court is assigned as error. Whether, in determining the market value of a particular tract of land, it is proper to allow proof of the sale of similar property, at or near the time of the taking, is a question upon which the authorities are not at all harmonious. The market value of land, or other property, is the price it will bring when offered for sale in the ordinary way. Knowledge of value is generally derived from actual sales. Why, then, is it not competent to show sales of similar property in the same neighborhood, when made at or near the same time? The reason usually assigned for holding such testimony inadmissible, that it raises collateral inquiries which the jury should not be called upon to consider, is, to our minds, unsatisfactory. No witness is competent to testify as to a particular sale who is not personally cognizant of the fact, and, this being so, the character and situation of the land, and all the circumstances surrounding the transaction, may be brought out on the examination of such witness, thus enabling the jury, without difficulty, to determine whether or not such sale should be considered a fair criterion of value. Upon principle we can perceive no valid reason for rejecting such testimony, and we think the preponderance of authority is also in favor of its competency. See Town of Cherokee 2. Sioux City & I. F. Town Lot & Land Co., 52 Iowa, 279; Culbertson & B. Packing & Provision Co, v. Chicago, 111 Ill. 651; Gardner v. Brookline, 127 Mass. 358; Sawyer v. City of Boston, 144 Mass. 470; March v. Portsmouth & C. R. Co., 19 N. H. 372; Concord R. Co. v. Greely, 23 N. H. 237; Washburn v. Milwaukee & L. W. R. Co., 59 Wis. 364, 20 Am. & Eng. R. Cas. 225; Roberts v. City of Boston, 149 Mass. 346; Hunt v. City of Boston, 152 Mass. 168.

"The degree of similarity that must exist between the property sold and the property whose value is to be determined, as well as the nearest in respect to time and distance, are matters resting largely in the discretion of the trial judge. Lewis, Em. Dom. § 443; Watson v. Milwaukee & M. R. Co., 57 Wis. 332, 10 Am. & Eng. R. Cas. 168. But still that discretion will, in proper cases, be reviewed by the appellate court; and in this instance, but for the fact that appellant could not have been prejudiced by the exclusion of the testimony offered, we would be inclined to criticise the ruling of the court. The same witness testified that he knew the market value of the land in question, and stated its value to the jury, and there was therefore no occasion, so far, at least, as that witness was concerned, for resorting to proof of specific sales of similar property, and appellant was in no wise injured by the ruling of the court.

The ruling of the court rejecting the testimony of the witness Foster, as to what he testified was the value of McDonald's land adjoining that of the respondents, in a probate proceeding, in the same court, the day before, is not open to criticism. What the witness said or did on the day previous, and in another proceeding, was entirely immaterial. If he knew the market value of respondents' land, he could have so stated. If he did not know it, he was not competent to testify as to its value at all." Seattle & Montana R. Co. v. Gilchrist et ux. (Wash. July 7, 1892) 30 Pac. Rep. 738. Evidence as to Increase in Value of Other Land Along the Road. In assessing damages for land taken by a railroad company for a right of way the question for the jury to determine is the value of the land at the time of the appropriation, and it is immaterial as affecting the question of damages that the market value of lands in other counties through which the railroad runs has increased in value" within the last six months."

The court said: "At the trial, counsel for appellant propounded to a witness this question: Has not the market value of real estate through Skagit and Snohomish counties, where the Seattle & Montana Railroad runs, increased within the last six months?' The question was objected to as irrelevant and immaterial, and the objection was sustained, and we think rightly. In a new country like this, values are likely to increase rapidly, even in localities remote from railroads. If counsel had offered to show to the court by proper proof that such enhancement of value was directly due to the proposed building of the road, and that such appreciation of value should therefore be excluded, the case would be different. But disconnected from anything, showing that the real market value of respondents' land, at the time of the taking, should not be considered in the assessment of damages, the question was clearly objectionable. As an independent proposition, it was quite immaterial whether or not the price of land through those counties had risen or fallen within six months. The value at the time of the appropriation was what the jury were to determine, and not the cause of that value." Seattle & Montana R. Co. v. Gilchrist et ux. (Wash. July 7, 1892) 30 Pae. Rep. 738.

Evidence as to Elements of Special Damage.-Where, in condemnation proceedings, evidence of the value of the land taken for all purposes to which it was or might be devoted, was permitted to go to the jury, a defendant cannot complain, of evidence offered by the petitioner as to the value of the land per acre, on the ground that it was an attempt to prove the value of the land taken without regard to its special surroundings, or to the special uses to which it had been devoted. The court said: "It is objected that the court erred in permitting appellee to prove the value of the land taken, without regard to its special surroundings, or to the special uses to which it had been devoted by appellant. The objection is not well taken. The value of the land is an element always proper to be shown and considered, for any purpose to which it is or is susceptible of being devoted. It is undoubtedly true that evidence of its value as land merely, independently of the purposes to which it is or may be appropriately put, will not be of controlling importance. If the property has a special value for any cause, that special value belongs to the owner, and compensation must be made to him for the value of his land. It is the value which he has, and of which he is deprived, that must be made good to him. Chicago & E. R. Co. v. Blake, 116 Ill. 163, 24 Am. & Eng. R. Cas. 288; St. Louis, J. & S. R. Co. v. Kirby, 104 Ill. 345, 10 Am. & Eng. R. Cas. 214. It cannot, however, be doubted that evidence of the value of the land as such is competent evidence. But the recovery must, at least, be had upon the basis of the actual value taken from the owner. We see no objection to the question propounded by appellee's counsel as to what was the value of the land per acre. It may have afforded one means of determining the compensation to be paid, and in many cases, perhaps, the only one. But in this case appellant is in no condition to complain. The value of its land for all purposes to which it was or might be devoted, so far, at least, as counsel saw fit to investigate, was permitted to go to the jury." Hercules Iron Works v. Elgin J. & E. R. Co. (III. May 12, 1892) 30 N. E. Rep. 1050.

BELLINGHAM BAY & BRITISH COLUMBIA R. Co.

υ.

STRAND et ux.

(Washington Supreme Court, May 12, 1892.)

Eminent Domain-Right of Petitioner to Open and Close. In proceedings to condemn land for railroad purposes the statutes (Washington) make it incumbent upon the railroad company to establish the necessity of the taking, and the sum necessary to actually compensate the party whose property is taken, consequently the company has the right to open and

close.

Prospective Rights as Element of Damages-Shore Lands.-In the condemnation of shore lands, no damages should be allowed for any prospective rights which may possibly be granted by the legislature in such lands below the line of ordinary high tide. Even though such rights would enure to the benefit of the corporation, they are too remote to constitute an element of damage in such proceedings.

Right of Jury to View Premises.-In proceedings to condemn land for railroad purposes, it is within the discretion of the trial court to allow the jury to view the premises.

APPEAL from Whatcom Superior Court. Condemnation proceedings.

Door & Finch, for appellant.

Fairchild & Rawson, for respondents.

HOYT, J.-This was a proceeding to condemn property for corporate uses, under the act of February 1, 1888. Upon

Statement of case.

the trial, petitioner claimed the right to open and close in the introduction of testimony and argument to the jury. The court refused to allow it so to do, and this refusal is assigned as error. Petitioner contends that, as this was a trial on appeal from the award of damages by commissioners, and as petitioner was the appellant, the question presented for the determination of the jury was as to whether or not the award of damages made by the commissioners could be reduced; and that it, as the appealing party, had the affirmative. It further contends that, if the trial in the district court was unaffected by the proceeding before the commissioners, so far as this question. is concerned, still, under the provisions of our statute, the petitioner has the right to open and close. A discussion of the first proposition would be of no general value, for the reason that, under our present statute, a case in which the question could arise is no longer possible; and the conclusion to which we have come in regard to the other contention

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