*10. Where the claim for damages consists of several items, it is more conducive to a final disposition of the case to state the finding upon each item. In such case any objectionable item may be remitted or deducted without the necessity of a rehearing.1

11. But where the petition alleges several distinct causes of damage, and a general verdict is rendered, if one or more of the causes is insufficient, it will not be presumed the jury gave any damages, on such insufficient claims, in the absence of any instructions by the sheriff in relation to them.15 But it is not necessary to apportion the damages to several joint-owners, and a tenant for life may take proceedings to obtain damages done to his estate by the construction of a railway, without joining the remainder

man.16

12. The character of the proof admitted to enable the triers to learn the value of land is so various, that it is not easy to fix any undeviating rule upon the subject. It seems to have been the intention of the courts to allow only strictly legal evidence to be received, such as would be admissible in the trial of similar questions before a jury in ordinary cases.17

13. It has been allowed to show what price the company had paid by voluntary purchase for land adjoining, but in the same case it was held not competent to inquire of adjoining land-owners, who were farmers, and had occasionally bought and sold * land, what was the value of their own land adjoining.18 Nor is

Penn. St. 331. See also Shoenberger v. Mulhollan, 8 Penn. St. 134. See also Cleveland & Toledo Railw. v. Prentice, 13 Ohio N. S. 373; Strang v. Beloit & M. Railw. Co., 16 Wis. 635. It is here said that the description, by way of an approximating diagram, may be sufficient without an actual survey.

14 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58; s. c. 1 Am. Railw. C. 508.

15 Parker v. Boston & Maine Railw., 3 Cush. 107.

16 Railroad v. Boyer, 13 Penn. St. 497; Directors of Poor v. Railw., 7 Watts & Serg. 236; Pittsburgh & Steuben Railw. v. Hall, 25 Penn. St. 336. In one case it was said to be the duty of the commissioners to assess damages to joint owners jointly. Ross v. Elizabethtown & Somerville Railw., Spencer, 230. See also Colcough v. Nashville & N. W. Railw. Co., 2 Head. 171.

17 Troy & Boston Railw. v. Northern Turnpike Co., 16 Barb. 100; Johnson, J., in Rochester & Syracuse Railw. v. Budlong, 6 How. Pr. 467; Lincoln v. Saratoga & Schenectady Railw., 23 Wend. 425, 432.

18

15 Wyman v. Lexington & West Cambridge Railw., 13 Met. 316. But in Roberts v. Knapp, 35 N. Y. 91, it was held, that farmers and residents of the

it competent to show for what price one had contracted to buy land adjoining.19 Nor can the claimant prove, what the company have offered him for the land;20 nor what the company have been compelled to pay for land adjoining, which was taken compulsorily.21

immediate neighborhood are competent to fix the price of land in their vicinity; one who had been a farmer, but had changed his occupation to that of a mechanic, was nevertheless held a competent witness to testify to the value of land in the neighborhood. And in Shattuck v. Stoneham Branch Railw., 6 Allen, 115, it was held, that in such proceedings the land-owner, being a competent witness, may testify to his opinion of the amount of damage which he has sustained, and may prove recent sales of other lands in the vicinity, similarly situated, and about the same time; but he cannot give evidence of the opinions of others, as to the value of other lands in the vicinity. But it is rather matter of discretion with the court, whether sales of other lands were sufficiently recent, or the land sufficiently like that in question, to afford aid to the jury. And on such hearing the company may prove that they have located a passenger station, since the hearing began, near the petitioner's land over which the railway passed.

19 Chapin v. Boston & Providence Railw., 6 Cush. 422.

20 Upton v. South Reading Railw., 8 Cush. 600.

21 White v. Fitchburg Railw., 4 Cush. 440. Only such damages as are peculiar to the owner of the land taken, and not those which are common to all land in the vicinity, can be considered. Freedle v. North Carolina Railw., 4 Jones Law, 89. It has been held that the benefits resulting to the land-owner from the construction of the road are to be deducted, in estimating damages for land taken for a railway; and that consequently a statute providing for such deduction is not thereby rendered unconstitutional. C. P. & Ind. Railw. v. Simpson, 5 Ohio N. S. 251. But as the constitution of this state expressly required that compensation to the land-owner should be made in all cases when land is taken for public use in money, it seems scarcely consistent to say that the benefits to the land-owner can in all cases be deducted, since in some cases the benefits to the particular piece of land, a portion of which is taken, might more than compensate for that which is taken, thus leaving nothing to be compensated "in money."

The force of this embarrassment was felt by the court in a highway case in Vermont, where the constitution requires, that "whenever private property is taken for public use, the owner ought to receive an equivalent in money." The court escaped from the embarrassment here by a device, which some might possibly regard as more ingenious than ingenuous, by saying, that as the constitution only applied to property "taken for public use," this could not reach cases where only an easement in property was taken. The court might, with almost equal propriety, have said, that the provision of the constitution" ought to receive," being in the optative mood, did not imply an imperative duty, as few persons expect to obtain by process of law all which they "ought to receive." Livermore v. Jamaica, 23 Vt. 361, Redfield, J. dissenting, sub silentio. Ante,

14. And it has been held that witnesses cannot be allowed to give their opinion of the value of the land or materials taken.22*This inquiry leads to the discussion of the general question, of what matters may be proved, by the opinion of witnesses who are not possessed of any peculiar knowledge, skill, or experience upon the subject.

15. And it must be admitted the cases are not altogether reconcilable upon the subject. the subject. Experts are admitted to express their opinions, not only upon their own observation, but upon testimony given in court, by other witnesses, and where the testimony is conflicting, upon a hypothetical state of facts.23 The testimony of such witnesses is intended to serve a double purpose, that of instruction to the jury upon the general question involved, and elucidation of the particular question to be considered by them.23 The resort to the assistance and instruction of persons skilled in particular departments of art or science is constantly adverted to, as of great advantage in enabling the triers to properly comprehend those subjects out of the range of their general knowledge, § 71, pl. 6. See also C. & P. Railw. v. Ball, 5 Ohio N. S. 568; Kramer v. Clev. & Pittsb. Railw., id. 140.

22

Montgomery & West Point Railw. v. Varner, 19 Ala. 185; Concord Railw. v. Greely, 3 Foster, 237; Buffum v. New York & Boston Railw., 4 Rh. I. 221; Cleve. & Pittsb. Railw. v. Ball, 5 Ohio N. S. 568. But the witness may give an opinion as to the value of the whole land, both before and after the location of the road. Ib. And so also in Illinois & Wisconsin Railw. v. Van Horn, 18 Ill. 257. See also Dorlan v. E. Br. & Way. Railw. Co., 46 Penn. St. 520. In a case in Pennsylvania (East Penn. Railw. Co. v. Hiester, 40 Penn. St. 53), it is said that the only proper test of the value of land so taken is the opinion of witnesses as to the value of the land taken, in view of its location and productiveness, its market value, or the general selling price of land in the neighborhood. And this seems to us exceedingly sensible and free from refinement or conceit. See also Same v. Hottenstine, 47 Penn. St. 28.

23

1 Greenleaf Ev. § 440. Thus the testimony of persons employed in making insurance of buildings against fire, may, in actions against railways for consequential damages to buildings, by the near approach of the track, express their opinion of the effect thereby produced upon the rent, or the rate of insurance of such buildings. Webber v. Eastern Railw., 2 Met. 147. See also Henry v. Dubuque & Pacific Railw., 2 Clarke, 288. And in the case of Brown v. Providence, Warren, & Bristol Railw., 5 Gray, 35, it was held, that the company could not show that liquors were sold, or to be sold, upon land, as a part of the inducement to pay so high a rent, or that it was contemplated" having a station near the point; such testimony being too indefinite and remote.

66

or the particular studies of judges, or jurors, in some of the best-considered English cases, within the last few years.2 24 But the testimony of scientific witnesses will not establish facts in conflict with the axiomatic principles of science and philosophy, or those which contradict the evidence of the senses, or of consciousness.24

*16. But there is certainly a very considerable number of subjects, in regard to which the jury are supposed to be well instructed, and altogether capable of forming correct opinions, and in regard to which the testimony of experts is not competent, or not requisite, but which it is more or less difficult for the witnesses to describe accurately, so as to place them fully before the minds of the jury, as they exist in the minds of the witnesses. Among these are inquiries in regard to the extent of one's property, solvency, health, affection, or antipathy, character, sanity, and some others. In such cases the witnesses' knowledge is chiefly matter of opinion, and it is impossible to enumerate each particular fact. Of this character seem to us to be questions in regard to the quality and value of property. One may enumerate some of the leading facts upon which such an opinion is based; but after all, the testimony, as to facts, is excessively meagre, without the opinion of the witness, either upon the very subject of inquiry, or some one as near it as can be supposed. Hence in those courts where the opinion of witnesses, in regard to the value of property, real or personal, is not admitted, it leads to sundry shifts and ・ evasions, in the course of the examination of witnesses upon that subject, which, while it is not a little embarrassing in itself, at the same time illustrates the inconsistency, not to say absurdity, of the rule.25

24 Broadbent v. Imperial Gas Co., 7 De G. M. & G. 436, 466, opinion of Lord Chancellor Cranworth.

25 Opinion of the court in Concord Railw. v. Greely, 3 Fost. 237. "A witness may state what was the cost of property of a particular description at a given place, in order to ascertain the value of property of a similar description. Whipple v. Walpole, 10 N. H. 130. But evidence of the price for which the corporation offered to sell a tract adjoining Greely's, and how much they refused to take for it, is certainly of doubtful competency. We have held at this term, in the case of Hersey v. The Merrimack County Mutual Fire Insurance Company, in Merrimack county, that what the owner of a piece of real estate said he would sell the same for, was competent evidence against him, as tending to show its value. But that was a statement in regard to the value of the land itself, while the evidence admitted here was going one step further; it was a

*17. In regard to costs, in such proceedings, the more general rule is not to allow them, unless specifically given by statute.26 statement in regard to other lands; and it is quite questionable whether it could have any legitimate tendency to prove the value of Greely's land.

"On questions of science, skill, or trade, or others of a like kind, experts may not only testify to facts, but are permitted to state their opinions. 1 Greenl. Ev. § 440. But upon subjects of general knowledge, which are understood by men in general, and which a jury are presumed to be familiar with, witnesses must testify as to facts alone, and the jury must form their opinions. In such cases, the testimony of witnesses, as experts merely, is not admissible."

If an inquiry arose in regard to the value of a cargo of flour, it would certainly sound strange to hear witnesses testify what precisely similar flour is worth, and at the same time be gravely told, that they were studiously to avoid expressing any opinion of the value of this very flour, which they had seen and examined, and in regard to which the whole testimony was received. Yet such is, from necessity, the course resorted to, under the rule. The more general course is, we think, to receive the opinion of witnesses, acquainted with the property and the state of the market, as to the value of the particular property in question. White v. Concord Railw., 10 Foster, 188. But in New Hampshire, in a late case, it is held that the opinion of witnesses, in regard to apparent health, is competent to be given; and this seems to be yielding the main point of exclusion before insisted upon. Spear v. Richardson, 34 N. H. 428. In this same case the opinion of witnesses, whether a horse was sound, or had a particular disease, the heaves, was excluded because the witness was not shown to be an expert. We are not surprised that the judge regarded the distinction as "somewhat nice." And in Currier v. Boston & M. Railw., 34 N. H. 498, it was held that a witness could give an opinion in regard to the occurrence of hardpan in an excavation; and in Hackett v. Boston, Con. & Mont. R., 35 N. H. 390, it was held that a witness might express an opinion in regard to distances, dimensions, and qualities. See also Roch. & Sy. Railw. v. Budlong, 6 How. Pr. 467.

And in Illinois & Wisconsin Railw. v. Van Horn, 18 Illinois, 257, it is held that it is proper to have the opinion of witnesses in regard to the value of city lots, as they have no stated value." Skinner, J. said: "To describe to a jury a piece of ground, however minutely, with its supposed adaptations to use, advantages and disadvantages, and demand of them, upon this information alone, a verdict as to its value, would be merely farcical; and this, indeed, is all that can be done to enable them to arrive at a conclusion as to the value, unless the witnesses are allowed to state their judgment or opinion, together with the facts upon which such opinion is founded. Butler v. Mehrling, 15 Ill. 488; Kellogg v. Krauser, 14 Serg. & Rawle, 137." In Cleve & Pittsb. Railw. v. Ball, 5 Ohio N. S. 568, it is said, witnesses may be allowed to express an opinion as to the value of the land taken, but not as to the extent of damages which the landowner will sustain by the appropriation of the land to public use, that being the very question to be settled by the triers. This seems to us placing the matter

26 Herbein v. The Railroad, 9 Watts, 272.