
    (40 South. 602.)
    No. 15,547.
    LOUISIANA RY. & NAV. CO. v. KOHN.
    (Feb. 12, 1906.)
    1. Eminent Domain—Damages—Assessment.
    The value of the land expropriated and the damages occasioned could easily be taken as one item. There was “oneness” between the two, and it was not illegal to consider them together.
    [Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 571.]
    2. Evidence—Expert Testimony—Value op Lands.
    Expert can appraise lands after having-heard the evidence, without going to the locus in quo.
    [Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2357.]
    3. Trial—Quotient Verdict.
    Charge brought against the jury fixing the amount returned is not sustained by legal proof.
    On the Merits.
    4. Eminent Domain—Damages.
    An examination of the evidence resulted in convincing the court that the amount found by jury should be reduced to a limited extent.
    5. Same.
    In considering each item and fixing value and damages, the court considered that it should adhere to its own views regarding value and damages of each.
    [Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 685.]
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.
    Suit by the Louisiana Railway & Navigation Company against Eveleen Kohn, widow of Victor Meyer. Judgment for defendant, and plaintiff appeals.
    Amended and affirmed.
    Carroll & Carroll and Wise, Randolph & Rendall, for appellant Farrar, Jonas & Kruttschnitt, for appellee.
   BREAUX, C. J.

This is a suit by plaintiff to expropriate a corner of square No. 571, and a strip extending diagonally through square No. 598, in the Seventh district of New Orleans, necessary for plaintiff’s right of way. The defendant is owner of the property. She was not anxious to sell it as it was-enhancing in value. Besides she avers that it has been held by her and her ancestors for future rise in value, in the portion of the city where it is situated. She asks that plaintiff’s demand be rejected, or if granted, that she be allowed $4,000 therefor.

The case was tried before a jury. It found a verdict for the defendant and assessed the value of the property, together with the damages in the sum of $2,400.

Plaintiff appeals.

Plaintiff’s first complaint on appeal is that the verdict is worthless, because the jury did not set forth in separate items the value of the property and the damages granted. It does not appear to us that by lumping in one sum the value of the property and the damages, plaintiff presents an issue requiring the ease to be remanded, in order that the jury may be given an opportunity of considering and fixing the amount of each item. We have no reason to infer that the jury did not consider each item and that the jury did not fix the value of each, .although each item is before us in one sum, that is $2,400. The amount of the jury’s finding was, as before stated, for the value of the property and the damages taken together.

Civ. Code, art. 2632, requires that the jury shall determine the value of the land and the damages. This article does not separate the value of the land from the damages, or indicate that each must be fixed separately before the total is added. Where there are a number of items and the property is of considerable value it may be of some assistance in ascertaining the amount to be fixed, if each item is considered separately. Here the property is of no great value and the damages small.

This court held in the Hinds Case, 50 La. Ann. 785, 24 South. 287, that witnesses should not be confused by an examination touching the value of the land and the damages as one element of damages. There were, we infer, a number of items of damages. Here it is different, it was easy, convenient, and almost unavoidable to consider both value and damages together.

The damage was quite limited as compared to the value of the property.

Moreover, the ease is before us. We are reminded by an old maxim that there should be an end to law suits. “Debet esse fini litium.”

If there was error (we do not think there was), this court can render the verdict which the jury should have done.

The next ground of objection urged by plaintiff is • that the jury declined to examine the land.

True, it would be best if the expert examined the object he appraises and visited and inspected the property. But the rule is not imperative in all instances. In this case large photographs had been taken and were placed before the jury; also the plats of surveys which gave a correct idea of the locus in quo as complete as if the jurors had gone to the place and inspected the property. The lands in question are suburban and open grounds.

It may be that the jurors were as familiar with the two small strips of land as they were with the apartments of their respective homes.

Plaintiff’s next contention is that the verdict was improperly reached; that the jury’s improper conduct was complained of in the lower court in a motion for a new trial. In overruling this motion, the trial court states that which the record renders evident that the motion for a new trial is not sworn to. That it was not made to appear with reasonable certainty that each juryman wrote down the amount which he considered should be allowed, and that this amount was divided by 12 and the quotient was accepted and returned as the body’s verdict.

In other words, “fortunara faciunt judicem;” they made fortune the judge by casting lots as to the amount to return, was substantially plaintiff’s charge. '

The trial court said, quoting, in substance, that no name was given of any one by whom the charge could be proven. The court states further that the allegation of plaintiff’s counsel “was based upon information received, that they, in consequence, could not have been heard as witnesses.”

We have this to say in regard to this serious charge, that although made in the utmost good faith by able and favorably known counsel, we do not think for reasons given by the-court a qua that we should remand the case on that account. We have concluded that the court’s action, in overruling the motion for a new trial, should not be disturbed.

This brings us to a consideration of the issues.

On the Merits.

We state at the outset that there was a dís¿ position on the part of some of the witnesses to the most hopeful view of values, present and in the near future; while others were very much less inclined to so hopeful a view of things. The expropriated value of the property varies greatly. The minimum value testified to by some of the witnesses for plaintiff would allow plaintiff only a very few hundred dollars for the property. Other witnesses, one in particular, an expert for plaintiff, valued at $1,225 the land and the' damages. There are here and there in the-testimony statements of witnesses who, though inclined to a low estimate, none the less lead to the inference that the property is not of such little value. For instance, plaintiff’s general agent, who had not placed a very high value on the property and seemed to think that it had very little value, nonethe-’ less stated as a witness, quoting his words-when referring to some drainage canal:

“In one respect, it (the drainage canal) adds greatly to the value, that is in matter of drainage.” (Words in parentheses ours.)

True, the quoted words are preceded and followed by statements at variance with that favorable view, which we do not overlook. Plaintiffs in support of their contention for a low estimate introduce proof of the value of other lands at or near the line of plaintiff’s road.

We will state, in this connection, that the amount which others have, chosen to accept for their land from plaintiff cannot be considered of the greatest weight in fixing values, although it is worthy of some consideration.

There are owners who part with their 'land just at the inopportune time. They ••do not succeed in selling their property to : advantage even in a favorable market. 'They are of the number who sell “a skin for

groat and buy the tail for a shilling.” 'There are others who, for one reason or another, are generally fortunate. They obtain the most that can be had. Neither should toe closely followed in laying down a standard to be followed.

We .are further informed by the record that •other lands, near defendant’s, had been expropriated. Plaintiff invites our attention to the amount which was allowed in the expropriation proceedings, which were affirmed by this court. Here again we find nothing •of itself conclusive in estimating the value of the property, especially in view of the fact that plaintiff’s brief contains the following:

“Now the Meyer squares, property in question, are better property than those in controversy. Cleared, higher, and near by Palmetto street, the only open road; and if they are worth $1,000 each, defendant’s square should be worth less, the'value diminishing as one goes deeper in the swamp, say from $600, to $400.”

The foregoing is contained in an appendix of plaintiff’s brief. It is part of a former brief in another case. We infer that the former case was tried in the district court after the case now before us was tried. The appeal in the former case, to wit, the Xavier company, is reported in 115 La. 328, 39 South. 1.

Here again we do not attach the greatest importance to the statement quoted except to that portion which speaks of the Meyer property as better property than that in controversy. It follows that it- had more value.

We pass to a consideration of the testimony for the defendant, and here, also, we find estimates varying in amount from $1,000 a square to several thousand a square.

One of the fortunate owners of several squares near the land of the defendant testified as a witness that his land did not cost very much, and yet he was hopeful enough to think that he would find some one who would pay him $5,000 a square for his property. It is nearly always the misfortune of these hopeful owners that they cannot find any person to agree with them sufficiently to buy their lands, although it must be said that these extreme views are conducive to a happy frame of mind.

We have considered the facts as closely as we could, and have concluded that $2,000 is a fair valuation; divided as follows: $1,-500 for the land expropriated and the damages in the square No. 598; $500 for the value and damages in square No. 571. In reviewing the testimony, we were lead to take a basis for fixing the value and damages. The result has taken us to a different amount. A few hundred dollars less than that found by the jury. We do not think that we should abandon our estimate for the jury’s verdict although we know that it is entitled to the greatest weight in expropriation proceedings. New Orleans & W. R. Co. v. Morere, 48 La. Ann. 1277, 20 South. 733; New Orleans, Ft. J. & G. I. R. R. v. McNeely, 47 La. Ann. 1298, 17 South. 798; Postal Telegraph Cable Co. v. Louisville, N. O. & T. Ry. Co., 43 La. Ann. 524, 9 South. 119.

In this case we are not favored with the items going to make up the amount found by the jury. In consequence, we find ourselves •compelled to adhere to our own estimate.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the amount from $2,400 to $2,000. With this amendment, the judgment of the lower court is affirmed, at appellee’s cost.  