In this case, the record contained the pleadings and a motion
for a new trial, which motion was authenticated by the trial judge
and set forth at length all the proceedings at the trial, including
the evidence, the exceptions to testimony, the instructions to the
jury, the exceptions to those instructions, a bill of exceptions in
due form, properly certified by the presiding judge, the verdict,
and the judgment on the verdict. This proceeding was in accordance
with the practice authorized by the Statutes of Montana.
Held that it was sufficient for the purposes of review
here.
Kerr v. Clampitt, 95 U. S. 188,
distinguished from this case.
In this Court inquiry is limited to matters presented to and
considered by the court below unless the record presents a question
not passed upon by that court which is vital either to the
jurisdiction or to the foundation of right, and not simply one of
procedure.
In a proceeding under the right of eminent domain to condemn,
for use in the construction of a railroad, an undeveloped
"prospect" in mineral land, the testimony of a competent witness,
familiar with the country and its surroundings, as to the value of
the land taken may be received in evidence, inasmuch as such
property is the constant subject of barter and
Page 137 U. S. 349
sale, although its absolute and intrinsic value may be uncertain
before development.
As it is difficult to lay down any exact rule as to the amount
of knowledge which a witness as to the value of lands condemned for
use in the construction of a railroad must possess, the
determination of that matter must rest largely in the discretion of
the trial judge.
This action was commenced by a petition filed by the Montana
Railway Company, upon which commissioners were appointed, to assess
the damages to the respondents for a right of way of the company's
line of road over a certain mining claim in Silver Bow County,
Montana, known as the Nipper Lode. The commissioners assessed the
damages at $1,552. From their award Warren appealed to the District
Court of the Second Judicial District of Silver Bow County, where
the case was tried before a jury who returned a verdict assessing
the damages at $7,000. A motion by the railway company for a new
trial having been overruled and denied and a judgment rendered on
the verdict, the railway company carried the case to the Supreme
Court of the Territory of Montana, where the judgment below was
affirmed. The company thereupon sued out this writ of error. The
case is stated in the opinion.
MR. JUSTICE BREWER delivered the opinion of the Court.
The plaintiff in error, desiring to construct its railroad
through a tract of land belonging to the defendants in error, the
same being a mining claim known as the "Nipper Lode," situated in
Silver Bow County, Montana Territory, took appropriate proceedings
for the condemnation of a right of way. The appraisers assessed the
damages at $1,552. From such appraisement the defendants appealed
to the district court, and on trial there the jury found the
damages to be $7,000, for which, with costs, judgment was entered
against the railroad
Page 137 U. S. 350
company. An appeal was taken to the supreme court of the
territory, which affirmed this judgment, which judgment of
affirmance has been brought before us for consideration. The
opinion of that court will be found in 6 Mont. 275.
A preliminary question is presented by the defendants in error.
They insist that no bill of exceptions was taken at the trial, and
that therefore no rulings of the trial court are before us for
consideration, citing as authority the case of
Kerr v.
Clampitt, 95 U. S. 188. In
that case, as in this, after the trial, a statement of the errors
alleged upon which a motion for a new trial was based was prepared
and filed, but although signed by counsel, it was held by this
court to be not the equivalent of a bill of exceptions, and to be
available only for the purpose expressed, to-wit, the motion for a
new trial. There was in that case no stipulation that the statement
should be treated as a bill of exceptions or be available for other
purposes than that of a new trial. It was not authenticated by the
trial judge. Lacking that authentication, it was adjudged available
only for the purpose named, and that it did not bring into the
record for review in this Court the questions presented. In this
case, the proceedings on the trial are embodied in a statement
prepared like that for the purpose of a motion for a new trial, but
in addition it is authenticated by the trial judge as a correct
statement of the proceedings. Further than that, at the trial, a
bill of exceptions was prepared in respect to the rulings of the
court on instructions, signed by the trial judge, and filed at the
time, which bill of exceptions was incorporated in the statement.
So that we have a separate and perfect bill of exceptions as to the
ruling of the court on the matter of instructions, and a statement
of all the proceedings in the trial, approved by counsel and
authenticated by the trial judge. This proceeding was authorized by
the statutes of Montana, and must be adjudged as sufficient for the
purposes of review here.
When the case was brought to the Supreme Court of Montana, no
new assignments of error were made. The only specifications of
error were in the statement prepared for the
Page 137 U. S. 351
motion for a new trial in the district court. Perhaps nothing
more was necessary, and all the questions arising on the trial may
have been open to consideration. Be that as it may, the opinion of
the supreme court opens by saying:
"There are assignments of error in the statement which are not
referred to in appellant's brief, and which will therefore not be
considered by this Court. Those relied upon are as follows."
It then discusses them, and closes with the statement that
"these are all the errors complained of and relied upon in
appellant's brief." The court also comments upon the character of
the record, and says: "It is certainly apparent that it is not such
a record as should be filed in this Court." The question now arises
whether our inquiry is limited to the matters presented to and
considered by that court, or should be broadened to all matters
that transpired at the trial. Obviously the former. Error is
alleged in the judgment of the supreme court of the territory, and
if in all matters presented to it its rulings were correct, it
cannot be affirmed that its judgment was erroneous because there
were in the record matters not vital to the question of
jurisdiction or the foundation of right, but simply of procedure,
to which its attention was not called, and in respect to which its
judgment was not invoked. All such matters must be considered as
waived by the complaining party. It would be an anomaly if a party
feeling himself aggrieved by the rulings of a trial court could
appeal to the supreme court of his territory and invoke its
judgment on certain alleged errors, and when defeated there could
transfer the judgment of that territorial supreme court to this and
ask a reversal here of its judgment on grounds involving mere
matters of procedure in the prior trial, to which its attention was
not directed. It is fundamental that when the judgment of a court
is challenged in error, its rulings alone are open to
consideration. Of course, if the trial court had no jurisdiction,
that is a matter which is always open, and the attention of the
court of last resort may be called thereto in the first instance;
but mere matters of error may always be waived and they are waived
when the attention of the reviewing court is not called to them.
Our conclusion therefore
Page 137 U. S. 352
is that our inquiry in this case is only in relation to the
matters presented to and reviewed by the supreme court of the
territory.
They are three in number. First, that the verdict indicates
passion and prejudice. Obviously, there is no foundation for this.
If the testimony admitted by the trial court was competent, there
was ample foundation for the verdict. If the witnesses were to be
believed and their testimony was competent, the verdict was not
excessive. And the second of the three points presented to the
supreme court, which was that the evidence was not sufficient to
justify the verdict, thus fails. There remains for consideration
but a single point -- that there was admitted in evidence on the
trial the opinions of witnesses as to the value of the land, which
were not based upon the sale of the same or similar property and
were not therefore the opinions of persons competent to so testify.
It appears that the land taken was a strip running through a mining
claim which had been patented and belonged to the defendants in
error. The claim adjoined the Anaconda mining claim, which had been
developed and worked, and demonstrated to contain a vein of great
value. The claim in controversy had been developed so far as to
indicate that possibly, perhaps probably, the same rich vein
extended through its territory. It had not been developed so far
that this could be affirmed as a fact proved. The strip taken ran
lengthwise through the claim, and upon the trial, witnesses were
permitted to testify as to their opinion and judgment of its value.
It may be conceded that there is some element of uncertainty in
this testimony, but it is the best of which, in the nature of
things, the case was susceptible. That this mining claim, which may
be called "only a prospect," had a value fairly denominated a
"market value" may, as the Supreme Court of Montana well says, be
affirmed from the fact that such prospects are the constant subject
of barter and sale. Until there has been full exploiting of the
vein, its value is not certain, and there is an element of
speculation, it must be conceded, in any estimate thereof. And yet,
uncertain and speculative as it is, such prospect has a market
value, and the absence of certainty
Page 137 U. S. 353
is not a matter of which the railroad company can take advantage
when it seeks to enforce a sale. Contiguous to a valuable mine,
with indications that the vein within such mine extends into this
claim, the railroad company may not plead the uncertainty in
respect to such extension as a ground for refusing to pay the full
value which it has acquired in the market by reason of its
surroundings and possibilities. In respect to such value, the
opinions of witnesses familiar with the territory and its
surroundings are competent. At best, evidence of value is largely a
matter of opinion, especially as to real estate. True, in large
cities, where articles of personal property are subject to frequent
sales and where market quotations are daily published, the value of
such personal property can ordinarily be determined with accuracy;
but even there, where real estate in lots is frequently sold, where
prices are generally known, where the possibility of rental and
other circumstances affecting values are readily ascertainable,
common experience discloses that witnesses the most competent often
widely differ as to the value of any particular lot, and there is
no fixed or certain standard by which the real value can be
ascertained. The jury is compelled to reach its conclusion by
comparison of various estimates. Much more so is this true when the
effort is to ascertain the value of real estate in the country,
where sales are few, and where the elements which enter into and
determine the value are so varied in character. And this
uncertainty increases as we go out into the newer portions of our
land, where settlements are recent and values formative and
speculative. Here, as elsewhere, we are driven to ask the opinions
of those having superior knowledge in respect thereto. It is not
questioned by the counsel for plaintiff in error that the general
rule is that value may be proved by the opinion of any witness who
possesses sufficient knowledge on the subject; but their contention
is that the witnesses permitted to testify had no such sufficient
knowledge. It is difficult to lay down any exact rule in respect to
the amount of knowledge a witness must possess, and the
determination of this matter rests largely in the discretion of the
trial judge.
Stillwell Manufacturing Co. v. Phelps,
130 U. S. 520;
Lawrence
Page 137 U. S. 354
v. Boston, 119 mass. 126;
Chandler v. Jamaica Pond
Aqueduct Corporation, 125 Mass. 544. The witnesses whose
testimony is complained of all testified that they knew the land
and its surroundings, and many of them that they had dealt in
mining claims situated in the district, and had opinions as to the
value of the property. It is true some of them did not claim to be
familiar with sales of other property in the immediate vicinity,
and the want of that means of knowledge is the specific objection
made in the supreme court of the territory to the competency of
those witnesses. But the possession of that means of knowledge is
not essential. It has often been held that farmers living in the
vicinity of a farm whose value is in question may testify as to its
value although no sales have been made to their knowledge of that
or similar property. Indeed, if the rule were as stringent as
contended, no value could be established in a community until there
had been sales of the property in question or similar property.
After a witness has testified that he knows the property and its
value, he may be called upon to state such value. The means and
extent of his information, and therefore the worth of his opinion,
may be developed at length on cross-examination. And it is fully
open to the adverse party, if not satisfied with the values thus
given, to call witnesses in the extent of whose knowledge and the
weight of whose opinions it has confidence.
We think the Supreme Court of Montana was right in holding that
no error was committed in permitting the testimony of these
witnesses. These are all the questions submitted to that court, and
its ruling in respect thereto being correct, its judgment is
Affirmed.