
    In the Matter of the Application of the Norwood and Montreal Railroad Company to Acquire Lands for Railroad Purposes.
    
      (Supreme Court, General Term,
    
    
      Filed February, 1888.)
    
    1. Railroad—real property—Method op ascertaining damage to.
    In proceedings to acquire lands, for railroad purposes, the proper method of ascertaining damages for land taken is to ascertain the value of contiguous lands prior to the taking of the lands, and those subsequent thereto.
    3. Same—Proceedings to acquire _ or railroad purposes—Strict rules OP EVIDENCE NOT APPLICABLE.
    In such proceedings, the strict riñes of evidence are not to be enforced, and the determination of commissioners based not only on the evidence, but upon personal observation, will be upheld, if correct.
    3. Same—What the owners op land are not entitled to compensation por.
    When pending such proceedings the railroad company entered upon the land under a license, and laid a portion of their track, Meld, that the owners of the land were not entitled to compensation for the track thus laid.
    Appeal from an appraisal made by commissioners duly appointed on the petition of the above railroad company, to appraise lands belonging to the appellants, William H. D. Grant, Albert R. Grant, Edward E. Grant, Edith E. Grant and Jacob N. Grant, and from the order of the supreme court confirming said appraisal. The appeal is taken under and pursuant to the provisions of section 18 of chapter, 140, of the Laws of 1850 (the general railroad act), as amended by section 1 of chapter 198, of the Laws of 1876, and is based upon errors made by the commissioners in the admission and rejection of evidence, and in adopting an improper measure of damages. Two of the appellants, Edith E. Grant and Jacob N. Grant, are infants, and appear by Charles N. Bixby, Esq., their guardian ad litem. The other appellants are adults. The appellants are the owners of a farm in the town of Norfolk, St. Lawrence county, containing 454 acres. They used and occupied itas tenants in common, their respective interests in it being slightly different, however, the two infants each owning an undivided sixth part thereof, and the other three appellants the undivided four-sixths, and a dower interest which they acquired by purchase. The farm consists of a number of pieces of land purchased at different times, but all contiguous, and used and occupied together as one farm. The petition of the railroad company describes four parcels of this land separately, the first parcel containing one and 46-100 acres of land; the second six and 82-100 acres; the third, one and 45-100 acres, and the fourth, two and 32-100 acres ; in all, twelve and 82-100 acres, of which nine 73-100 acres are for roadway, and two 32-100 acres adjacent to roadway for sand pits. The part taken by the company, divides the farm nearly equally, the house and barns being on one side and pasture and meadow and wood land on the other.
    The respondent took possession of the land, and went on and completed its railroad which was in operation October 1, 1886, but filed no petition for condemnation until January, 1887. There is a conflict of testimony as to whether permission was given to the railroad company by William Grant, one of the appellants, to enter upon construction be ■ fore the damages were agreed upon, witnesses for the company testifying that he consented, while he denies it, but there is no evidence that any of the other appellants consented. There was no special or general guardian of the infants ever appointed, for any purpose, until Mr. Bixby was appointed in this proceeding. It was proved and not controverted that the value on. the ground, as laid of the rails, ties, and spikes, as put down by the respondent on the land of the appellants was $4,582.09, but the commissioners expressly refused to take that" into consideration in asssessing the damages. The witnesses for the appellants placed the difference in the market value of the whole farm, with and without the railroad, as from $900 to $1,700 irrespective of the rails, etc. The commissioners appraised the compensation at $596.86, the result of which was to-throw the costs upon the appellants.
    
      Louis Hasbrouck, for app’lt; N. M. Claflin, for resp’t.
   Per Curiam.

We think that the form of question put by the counsel for the Railroad Company was not correct. The proper question is pointed out in N. Y. L. and W. R. R. Co. v. Arnot, 27 Hun, 151.

The witness should have testified to the value of the farm before the railroad property was taken, and then to its value as it would be after that had been taken.

But in proceedings like this, we are not bound to enforce the strict rules of evidence. The conclusion to which the commissioners came depended not solely on the testimony given, but partly on their own observation and knowledge. Unless, therefore, we think their conclusion erroneous, we ought to disregard the violation of rules of evidence.

In this case on all the facts we cannot see that the commissioners erred in their conclusions as to the value of the land.

The next question is, as to their exclusion of proof of the value of rails and ties put on the land by the railroad company. The principle laid down in Long Island R. R. Co. (6 Thompson & Cook, 298) and In re N. Y. W. S. and B. R. R. Co. (37 Hun, 317), ought not to be extended. It is not «equitable, and at most should apply only to the case where the putting of the rails, etc., on the land was a trespass.

How in this case, plainly the rails were put on the land under a license. The railroad and the parties were expecting to make an arrangement as to the sale of the land.

But it may be said that some of the owners were infants, and that the act of the railroad company was a trespass as to them. These defendants are tenants in common. William H. D. Grant lived on the land with the others and acted for them. The entry on the land was certainly with the consent of the adults, and thus with the consent of at least a part of the co-tenants. So far as this was possible, it was also with the consent of the infants. Under these «circumstances, it would be unjust that the railroad company should pay for the rails, etc., which they had placed on the land.

We see therefore, no reason why, on the merits, the order should not be affirmed.

Ho costs were allowed against the infants, whether costs against adults can ever be allowed consistently with the constitutional provisions as to taking private property, is a question not argued before us and therefore, not decided.

The order is affirmed, without costs to either party.  