Colusa County v. Hudson

Beatty, C. J. This is a proceeding to condemn a right of way for a public road. After the usual proceedings for viewing and laying out the road, and refusal of the defendant to accept the compensation awarded by the commissioners and board of supervisors, this action was commenced by the district attorney, and tried by the court and a jury, to which were submitted several special issues concerning the question of damages and benefits. The jury awarded fifty dollars for the value of the land to he taken for the proposed road, one hundred dollars as damages to the land not taken, and found that the land not taken would be benefited in the amount of fifty dollars. Upon this verdict and additional findings by the court, a decree was entered condemning the land for the right of way, awarding the defendant one hundred dollars damages; and that being the precise sum previously awarded by the board of supervisors and refused by the defendant, the plaintiff had judgment for the costs of the proceeding, amounting to over two hundred dollars. Defendant moved for a new trial. His motion was overruled, and the appeal is from that order.

It appears from the bill of exceptions that the defendant's land is a mile in length, by a quarter of a mile in width, containing one hundred and sixty acres, and extending across a high ridge of hills; that prior to the [635]laying out of the proposed highway the defendant had a private road graded through his land from end to end, and crossing the ridge on the same route; that the highway was laid out twenty feet in width, on each side of the center of said private road. The evidence as to the character and value of defendant’s land, the uses to which it is adapted, and the necessity of fencing it for any use of which it is susceptible, is very conflicting. Some of the witnesses for the plaintiff think the land is not worth more than a dollar and a quarter an acre; others put it higher, some estimating it at four dollars. But those who put this valuation upon it base their estimate upon the value of the timber, for which it is wurth as much without as with an inclosure. The plaintiff himself values the land at seven dollars an acre for agricultural and horticultural purposes, to which he says it is adapted, and says that it is necessary for these purposes, as well as for grazing, to fence it.

It appears, however, that although he had resided on the land four years he had never attempted to inclose more than two or three acres prior to the service of summons in this proceeding, though about that time he commenced, and at the date of the trial had partially completed, the inclosure of forty acres more. He says that it is and has been his intention to inclose the entire tract; that the cost of such exterior fence would be from twelve to fifteen hundred dollars; and that the cost of the additional fencing which would be rendered necessary by the opening of a public road through the land would be at least one thousand dollars. The plaintiff’s witnesses generally say that defendant’s land is valuable only for grazing and the timber that may be cut from it; that for grazing purposes it might be useful to fence it, but that the owner could afford none but the cheapest kind of a fence. And several of them testify that any fence sufficient to turn stock would cost more than the land is worth, and consequently that with or