
    The Rochester & Honeoye Valley Railroad Co., Resp’t, v. Thomas A. Myers et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    RmINENT DOMAIS—RAIX-BOADS—DAMAGES.
    Where the estimates of witnesses in a proceeding to condemn land for a railroad were, to a great extent, based on elements largely speculative, an .award by the commissioners of a smaller sum than the average of such estimates made by the commissioners after a view of the premises will not be disturbed, unless they have fallen into some error of procedure or have adopted some erroneous principle of estimate.
    Appeal by the land owners from an order of the Monroe special term confirming the report of commissioners of appraisal in a proceeding under the general condemnation act.
    
      E. E. Woodward, for app’lts ; J. W. Taylor, for resp’t.
   Dwight, P. J.

The proceeding was to acquire the right of way for a railroad over lands of the appellants. The award of $1,700, made by a majority of the commissioners, was somewhat-less than the average amount indicated by the testimony of the-witnesses, even of those called by the petitioner. But the estimates of the witnesses on both sides included many elements - which were largely speculative; such as the inconvenience of working land, due to the shape into which lots were divided by the railroad; the cutting off of the view from the house of a portion of the-farm; inconveniences in watering cattle and driving them from one portion of the farm to another; the nuisance of smoke and cinders, and the danger of fire from sparks. All these-are undoubtedly proper subjects of consideration, but they are-elements of damage for which it is impossible to fix an absolute equivalent in money, and in respect to which the independent testimony of witnesses would not be likely to agree, nor closely to approximate. The only element of damage in this case which was capable of ascertainment with anything like strictness, was the value of the four and a half acres of land, without buildings, taken for the right of way.

The largest estimate of the value of the farm (of 135 acres); with the buildings, was ninety dollars per acre: the buildings; were said to be worth $4,000, which reduces the value of the land, without buildings to. sixty dollars per acre, and this- would be reduced to fifty dollars by the lower estimates of the value of the-farm as a whole. At fifty-five dollars per acre the land appropriated is worth $250. All the rest of the damages are speculative,, they are matters of opinion, subject to estimate it is true, but in respect to which commissioners taking testimony would look for very wide divergence of opinion and would inevitably rely upon their own judgment rather than that of witnesses however apparently intelligent and fair. And that is, undoubtedly, the legal theory of these awards by commissioners. It is the commissioners’ who estimate damages; not the witnesses. The commissioners may be aided by the judgment of witnesses, but the "final judgment is their own. Accordingly the statute not only permits but requires their personal view and inspection of the premises. And the result of such inspection is as properly the basis of their judgment, as the testimony of the witnesses. Perkins v. The People, 113 N. Y., 660; 23 St. Rep., 266; Matter of B. & G. R. R. Co., 37 St. Rep., 343; Matter of S. I. R. T. Co., 47 Hun, 396; 14 St. Rep., 924; Matter of N. Y. El. R. R. Co., 35 St. Rep., 944.

Such being the importance attached to the judgment of the-commissioners themselves, it has become the rule that the courts will not interfere with their award unless it is very clear that they have misconceived the facts and erred in their estimate, or unless they have fallen into some error of procedure or have adopted some erroneous principle of estimate. See the cases above cited. There is no error of procedure disclosed by the record here. The only suggestion of ah erroneous principle or ground of estimate adopted by them is based upon statements contained in the affidavit of the attorney for the petitioner, upon which he applied ior and obtained an order to show cause abbreviating the period ■of notice of the motion for the confirmation of the report. From that affidavit it appears that on the hearing before the commissioners a question arose as to the right of the land owners to have farm crossings: and it is stated in the affidavit that the general railroad act contained provisions which secured to the landowner the right to have such crossings wherever necessary, but that the act of 1890, (Laws of 1890, chap. 565), repealed these provisions; that the last mentioned act was to take effect May 1, 1891, and therefore it was desirable that the report of the commissioners should be confirmed (if it was to be confirmed) before the last mentioned date. The affidavit also stated that the affiant was iniormed by the commissioners that their award was of a less sum than it would have been but for the understanding that the report would be confirmed before' the supposed repealing act took effect

There is no error or erroneous principle of estimate disclosed by this affidavit. On the supposition that the land owner would be entitled, as matter of right, to farm crossings wherever they were needed,, his damages would manifestly be less than if that Tight were to be denied him; and the award of the cómmission-ers would properly be less in the former than in the latter contingency. It now appears that the whole discussion in the affidavit was based upon a misapprehension of the effect of the act ■of 1890, which, it seems, did not repeal, but saved the provisions referred to of the general railroad act.

But the inquiry is entirely immaterial so far as this case is concerned. The award was in fact confirmed before the 1st day of May, 1891, so that whether the act of 1890 had a repealing effect or not, the right of the land owner to his farm crossings was secure.

We find no ground upon which the award in this case can be disturbed ; and we conclude that the order of confirmation must be affirmed, but without costs.

Order appealed' from affirmed, without costs of this appeal to ■either party.

Macomber and Lewis, JJ., concur.  