
    Krier and another, Respondents, vs. Milwaukee Northern Railway Company, Appellant.
    
      April 2—April 20, 1909.
    
    
      Evidence: Trial: Expert witnesses: Mode of examination: Eminent domain: Compensation: Appeal and error: Invited error: Waiver: Right to compensation: Values: Excessive damages.
    
    1. In determining the compensation for land taken by condemnation, objection to the form of a question as to the depreciation in value of the land not taken, “What is' the depreciation,” etc., instead of “What is the depreciation, if any,” etc., is hypercritical and without merit, especially when the objector used the same form of interrogation and-several witnesses answered there was no depreciation.
    2. A question as to the value of land taken by condemnation must call for the value of the land as á portion of the tract of which it forms a part.
    2. A party cannot complain of the form of questions asked witnesses by the adverse party where the questions he asked his own witnesses were of the same nature.
    •4. One may purchase or improve real estate in anticipation of and regardless of any probability of part or all of it being subse- ■ quently appropriated for public purposes. To do so is not evidence of bad faith.
    b. In condemnation proceedings evidence on the one side of value of the strip taken as high as $6,000, and damages to the remainder not taken as high as $3,000, and on the other that the value of the strip taken did not exceed $300 and that the residue was not damaged, presents credible evidence which justifies the appellate court in refusing to set aside'a verdict of $1,800 as excessive.
    Appeal from a judgment of the circuit court for Ozaukee -county: Martin L. Lueok, Circuit Judge.
    
      Affirmed.
    
    Action to determine the compensation due plaintiffs for land talien for railway purposes and depreciation of that part -of the entire parcel from which it was taken by reason of the appropriation.
    There was evidence on plaintiffs’ part fixing the value of the strip taken as high as $6,000, and the depreciation of the-remainder of the parcel, by reason of the talcing, at $3,000. There was evidence on defendant’s part that the value of the-strip taken was $300 and the residue of the parcel was not. damaged at all. Both sides asked questions in substantially the same form as to the strip taken. The jury found in-plaintiffs’ favor, $1,800. Similar proceedings occurred after verdict as in American States S. Co. v. M. N. B. Co., ante, p. 199, 120 N. W. 844. Defendant appealed from the judgment. .
    Eor the appellant there was a brief by Winkler, Flanders, Bottum & Fawsett, and oral argument by C. E. Monroe.
    
    
      Wm. F. Schanen, attorney, and James D. Shaw, of counsel^ for the respondents.
   Marshall, T.

Questions of practice and as to the meaning of “fair market value” are raised in this case as in American States S. Co. v. M. N. R. Co., ante, p. 199, 120 N. W. 844, and are ruled by what is there said. The case was submitted! to the jury, as to law, substantially the same in both cases. Therefore the opinion in the first case is to be deemed repeated here so far as applicable.

Error is assigned because of the form of the question reflating to depreciation in value of the land not taken, in that the witnesses were asked, “What is the depreciation,” etc., instead of “What is the depreciation, if any,” etc. The complaint, at this point, strikes us as rather hypercritical and far from being meritorious. Witnesses and jurors must be considered to be men of ordinary common sense. A witness-would not, ordinarily, be influenced to testify to depreciation in fact, merely by reason of the form of the question, in case of his judgment being otherwise. That is demonstrated by the fact that the same form was used on both sides, and several witnesses answered there was no depreciation.

Further complaint is made of the form of questions allowed on the part of respondents as to the value of the strip of land taken, in that it referred to the strip without adding the words “as a part and parcel of the tract of which it formed a part” or similar words. Technical accuracy required the questions to include such words. Refusal to permit proof of the fair market value on the base of questions so accurately framed has been held harmful error (Barker v. M. & L. W. 22. Co. 59 Wis. 364, 375, 18 N. W. 328), the error being regarded as prejudicial because the court ruled that the value of the strip was to be ascertained without reference to the balance of the land, and, presumably, would be less in such case than by the true rule, and, so, not afford the landowner the full and just compensation which is his constitutional right. .

The court did not make any such mistake in this case. The submission to the jury was by the proper rule. Moreover, if there were infirmity in the mere form of the question — ■ prejudicial at all — it was to respondents rather than appellant. Eurther, the latter is not in good form in making the criticism because the questions to its witnesses were of the same faulty nature.

There was evidence that respondents purchased the premises shortly before the appropriation of part thereof by appellant and, may be, with the knowledge of probability of the appropriation which occurred. . In respect to that the jury were instructed:

“In arriving at the sum that is to be allowed and awarded the plaintiff, you are not to consider whether the plaintiff or his grantor had, or had not, any knowledge as to where the line was going to be located.”

The jury were not told that the circumstance referred to could not be considered as bearing on the credibility of respondents’ evidence, but that it could not, legitimately, affect the recoverable damages. We are unable to discover any error in that. It was perfectly competent for respondents to deal with the property regardless of any probability of a part of it being subsequently appropriated for public purposes. They had a right to assume that if any invasion of the premises under the right of eminent domain should occur it would be without prejudice to them, in th^t for every dollar in value of - property taken or damaged they would receive a full equivalent. The learned court prudently phraábd the instruction with Driver v. W. U. R. Co. 32 Wis. 569, 580, before him, where the principle embodied therein is declared. '

A person has the undoubted right to buy or improve realty in the face of a probability that it may be invaded, as in this case. To do so is not evidence of bad faith. Furthermore, the property owner owes no .duty, to the prospective appropriator to consider its interests in what he shall do with his own. Whether, in any given case, he proceeds with the idea that the value of improvements made in the face of probable appropriation will enhance the damages he will contingently suffer or not, has nothing to do with the abstract question as to his right to full compensation if appropriation occurs. It is his constitutional right to buy, hold, and improve property as he sees fit and rely upon the fundamental guaranty that, to the extent he shall be deprived thereof under the power of eminent domain, he will, as a condition precedent, receive a full equivalent.

It is suggested that the amount of recovery is excessive. On this observations made, going to the weight of evidence, we shall not discuss. There was evidence on both sides taking quite a wide range. On tire side of respondents the value and damages were placed as high as $3,500. The depreciation in fair market value of the part not taken was placed as high as $3,000. There was evidence on the part of appellant placing the recoverable amount as low as $300, and evidence tending to show that the fair value of the entire property before the taking was $1,000 to $8,000, and such value of the part remaining after the taking $4,000 to $5,000. On the whole, it is quite clear from the record, that the jury, from competent evidence, as was said in Esch v. C., M. & St. P. R. Co. 72 Wis. 229, 39 N. W. 129, determined, in general effect at least, the fair market Value of the whole property before the strip was taken and the fair market value of what remained after the taking and rendered their verdict for the difference. They were plainly instructed by the court that, in general, that was the proper basis for the recovery. True, some of the expert evidence is not very satisfactory. True, witnesses on one side suspiciously exaggerated the value and damages, but on the other side there are indications that the same were understated. However, so far as we can discover, all seems to have been clearly within, or so near, the boundary of competency that we cannot well say anything thereof was improperly admitted. Beyond that is the field of weight and credibility in which the jury were substantially supreme. Their findings must be taken as the indisputable truth, if at all reasonable from any fair view of any credible evidence. They seem to have proceeded within the boundaries of reason, making the finding only about one half the amount claimed foy respondents.

By the Court. — The judgment is affirmed.  