Kishlar v. Southern Pacific R.R. Co.

THE COURT.

Action plaintiff. He appeals from the judgment, from the order denying new trial, and from the judgment disallowing him his costs. Plaintiff was the owner of a leasehold interest in a certain lot in White’s Addition to Riverside, the lease being for three years from November 13, 1895, with privilege of renewal at same rental for two years. The lot was 25 feet wide and 120 feet long, entirely occupied by a warehouse. Pachappa Avenue bounded the lot on the west, and was occupied by the tracks of the Santa Fé Railroad Company, so close to the building as to preclude the loading and unloading of teams at that end of the building, and it was used only to receive and discharge freight by rail. The east end of the warehouse fronted on an alley, through which alone plaintiff could receive and discharge freight by wagons. He was engaged in selling fertilizers, and it was necessary to his business that he should have unobstructed ingress and egress to and from his warehouse by this alley. On June 19th, defendant, without plaintiff’s consent, but under license of the city authorities, duly given by ordinance, built its track through this alley, necessarily so near to plaintiff’s building as to render it no longer of use to him, and he was compelled to vacate it, and it stood idle from about July 1,

[638]

1896, to April 16, 1897, when he surrendered the lease to the lessor.

1. Plaintiff was a witness in his own behalf. He had testified quite fully and specifically to the injury to his leasehold by the track in the alley, and had fixed the amount of the damage. He had testified, on cross-examination, to the value of the lot; also, what he paid as rental, and what the market value of the rental was, regardless of what he paid. He was further asked the market value of money in June, 1896, or about that time. The question was objected to by plaintiff as immaterial, irrelevant, and'incompetent; the objection, was overruled, and plaintiff excepted, and now urges the ruling as error. The witness answered, stating what interest he paid on borrowed money at that time. This evidence as to the rate of interest on the money was not admissible as tending to show the rental value of the land. Whether or not it was admissible on cross-examination to test the general knowledge of the witness as to business and values, need not be determined, for we think it could not have been prejudicial to appellant. The witness testified directly to the value of the land and the value of his lease, and the court instructed the jury that the measure of damages was the market, value of the lease, — what, upon the evidence, it would bring if the plaintiff desired to sell, and a purchaser desired to buy and paid a fair price for it; and in view of this condition of the case, the error, if it was an error, was without injury.