commissioners to appraise lands to be taken for a railroad was set aside, because the son of one of the commissioners was taken into the employ of the railroad company, before the hearing. The court said: "We do not say that this appointment had any influence on the decision. We do not question the commissioners' integrity; but these proceedings must not be open to suspicion.'

It is not illegal for commissioners to assess damages, to agree with the railroad company, whose duty is to pay for their services, upon a just and equitable compensation. The land owner has ground of complaint only when the amount agreed upon is exorbitant, or so large as to create suspicion of corruption. State v. Dover & R. R. Co., 43 N. J. L. 528. And it has been held that there is no impropriety in a highway committee stating to both parties at the close of the hearing that they should not deliver their report to the party in whose favor it should be made, until their fees were paid. Nor is there any impropriety in the counsel for either party stating that, if the report was in favor of the highway, his clients would at once pay their fees. Williams v. Town of Stonington, 49 Conn. 229.

In the case of the application of the Staten Island Rapid Transit R. Co,, 41 Hun, (N. Y.) 392, a motion to confirm the report of commissioners appointed to appraise the damages to be awarded to the owners of the land taken for railroad purposes was denied and the report was set aside, upon the objection of certain of the property owners that the commissioners had received from the railroad company compensation for their services exceeding that prescribed by the statute. It did not appear that the commissioners required any stipulation in advance respecting their fees, or that there was any agreement on the subject at any time. After their services were completed they made out a bill which was presented to and paid by the company. Held, that the court erred in setting aside the report. Receiving Entertainment from One of the Parties. The entertainment of a committee to lay out a highway by one of the parties, during the trial, is prima facie, irregular and improper. Greene v. East Haddam, 51 Conn. 547. Where, however, it appears that there was no public house in the village where the hearing was had, and the petitioners and the selectmen of the respondent town agreed that the committee might be entertained at the private house of one of the petitioners, and that counsel on both sides should be accommodated at the same place, there was held to be nothing illegal or improper in it. And this, although the committee was there handsomely entertained, and were carried to and from the place of hearing by the person entertaining them, and no charge for this service was made by him against the committee or the town. Beardsley v. Town of WashingConn. 265. If the attentions paid by one of the parties are not

ington, 39

actually improper, their conduct will not vitiate the proceedings. Greene 7. East Haddam, 61 Conn. 547. The fact that a petitioner for the location of a highway, furnished during the proceedings, luncheons to the commissioners, and all others interested, is not a ground for quashing a proceedsuch cases should furnish such luncheons. Blake v. Norfolk Co., 114 Mass. 583. And the verdict of a commissioners' jury, assessing damages to land

I will not be set aside, because a deputy sheriff, having charge of them, while they were deliberating on their verdict at the house of the petitioner where the hearing was had, upon their request for refreshments, furnished a pitcher of cider belonging to, but without the knowledge of the petitioner, if no injury to the respondents was caused thereby. Tripp v. Bristol Co., 2 Allen (Mass.) 556. Nor is it sufficient to set aside the return of freeholders to lay out a public road that the caveators furnished them their din

ners.

State v. Justice, 24 N. J. L. 413. And see State v. Reckless, 38 N.

J. L. 393.

Where, during a hearing before a committee in a highway case, one of the committee was entertained over night by one of the selectmen in the defendant town, and the counsel for the petitioners knew of the fact, but went on with the hearing the next day and through the trial without making objection, it was held that it was too late to make the objection after an adverse report of the committee. Williams v. Town of Stonington, 49 Conn. 229.

But the furnishing of spiritous liquors by the petitioners for a highway, to the county commissioners while engaged in the hearing, of which they repeatedly drank, is an abuse, for which the court will ordinarily set aside. a report in favor of such petitioners, without inquiring how far the commissioners were affected by it. In re Highway in Newport, 48 N. H. 433In Pennsylvania any entertainment or refreshments supplied by a party in interest to road jurors will be regarded as sufficient ground for setting aside the report. Matter of Magnolia St., 8 Phila. (Pa.), 468. But the rule appears to be otherwise, where there is no proof of abuse. Road in Plymouth, 5 Rawle (Pa.), 150.

Ex parte Communications with Jurors and Commissioners.—In New Hampshire, it is held that an objection to the conduct of a petitioner and one of the commissioners in viewing together a part of the proposed way before the meeting of the commissioners, is addressed to the discretion of the court below, and the supreme court will not revise the exercise of such discretion in that respect. Patten's Petition, 16 N. H. 277. But where it was shown that commissioners have themselves introduced or encouraged conversations or discussions relative to the laying out of a new highway referred to them with one party in the absence of the other, their report will be set aside. And where it is shown that one of the parties has made representations in relation to the highway to one or more of the commissioners in the absence of the other party, or has engaged in conversations or discussions calculated to influence their judgment, a report favorable to such party will be set aside. Peavey v. Wolfborough, 37 NÑ. H. 286.

In Harris v. Woodstock, 27 Conn. 567, it is held that a committee to whom a highway petition had been referred were guilty of conduct “irregular and improper," where one of the parties, in the absence of the other side, laid before the committee a survey of the land, through which the road was to be run, to which survey was appended certain remarks in regard to the difficulty and expensiveness of the proposed road.

In the case of In re Buffalo, N. Y. & P. R. Co., 32 Hun (N. Y.), 289, the second report of commissioners appointed to appraise damages to be paid for land for railroad purposes was set aside, because of their improper conduct, in going upon the lands to be taken, in company with the landowner and his attorney, and their examining a map proposed by the former and listening to his explanation thereof, in the absence of the agent and company and its attorney, who were then, to the knowledge of the commissioners, on their way to meet the commissioners and view the premises. It also appeared in this case that one of the commissioners rode from a village to the farm to be viewed with, and in a carriage provided by the land owner; that one of them took supper at the latter's house, and was sent home in a carriage provided by him, and that another accepted from the landowner a sum of money for his services and expenses, in excess of the amount allowed by statute, and which was understood to be so at the time.

In proceedings by a city to open a highway, the city is a mere party litigant, and its relations to the jury and those of its attorney should be governed by the particulars which govern the like relations of any other party; accordingly, the provisions of a city charter requiring the city attorney to give the jury, in such a case, legal advice and counsel during their duties, whenever requested, and to draw up their verdict in the form

of a report for their signatures, when they have agreed on it, are a plain violation of the rule requiring jurors to be absolutely free from the influence of any party or the counsel of any party on whose affairs they are to act. Paul v. Detroit, 32 Mich. 108.

But the fact that a petitioner, after a hearing before commissioners upon an application for laying out a highway, urged upon them in private the importance of the way, and strove to hasten their action, is not a ground for quashing their proceedings in laying out the way, when it expressly appears that he acted without improper motives, and that the commissioners were not influenced by him. Blake v. Norfolk Co., 114 Mass. 583. Nor will the report of commissioners appointed to appraise damages for land taken for railroad services be set aside for their improper action in receiving, after the submission of the case, and without the knowledge of the landowner, a written statement from the counsel of the railroad, containing certain computations of the value of the premises to be taken, which computation had been made orally by the said counsel, before the commissioners at the hearing. New York, W. S. & B. R. Co. v. Church, 31 Hun (N. Y.), 440.

On

In a case where it was objected that a committee to lay out a highway acted improperly, and were subjected to improper influences, the following facts appeared: The committee during the greater part of the trial boarded at the Champion House, a hotel situated at the southern terminus of the proposed highway. The proprietor of the hotel used in connection with it a small steamboat or yacht, which the committee understood to be kept for the common convenience of all his guests. The place of the hearing was at a lower village on the river, about three quarters of a mile from the hotel, and on some occasions the committee were carried to and from the place of trial on the steamboat, and sometimes went back and forth on foot or by the hotel wagon. On some occasions some of the petitioner's counsel or witnesses were also upon the steamboat, and sat at the same table with the committee at the hotel while dining. two occasions the hotel proprietor took the committee, with other persons, upon the steamboat for short pleasure sails. One of such pleasure sails was through Salmon Cove and up Salmon River. At this time Augur was present. While on this sail the boat ran aground at a point just above a wharf. This sail was made during a freshet, and the boat was run without reference to the channel of the stream and across the meadows. No allusion was made during this trip to any matter connected with this litigation. This sail was had before the defendants had made the claim now to be stated. The defendants subsequently on the trial claimed that common convenience and necessity did not require the proposed road, and one of the reasons given by them was that the business people of Moodus, at the northern terminus of the road, could be well accommodated by transporting their freights over a water route up Salmon Cove to a wharf and road already built leading to the Moodus; the wharf being the one above referred to. The plaintiff claimed, in reply, that there was diffinary stage of the water. The defendant's counsel now claims that the pleasure sail and grounding of the boat was a preconcerted plan to influence the committee upon this question; but this claim as matter of fact was not sustained. On one occasion during the trial, in presence of Mr. Woodruff and Mr. Newton, of the committee, others being present, and the remark being heard by Mr. Newton, the wife of the proprietor of the hotel said she did not know anything about the reasons for or against the road, but that she was sure that those who wanted the road had good reasons, and those who opposed it had bad reasons. This remark was not addressed to any member of the committee. When it was made her hus

47 A. & E. R. Cas.-12

band said to her that it was not proper for her to remark about the road in the presence of the members of the committee, and she replied that she must talk or die. Mr. Newton testified that he understood the whole conversation to be in jest, and not intended for serious consideration. After the committee had decided to make the layout, the same lady said in the hearing of Mr. Newton that she should be mad if they did not get the road, but should think more of the committee if they decided as they thought right. During the trial the members of the committee on two or three occasions accepted social invitations to private houses, and on one occasion at the house of D. B. Warner during a game of whist, in which one of them participated, his partner, a young lady, said as they won a game, "I cannot but think we are playing for the road." Her sister immediately said to her, “You know nothing was to be said about the road." It did not appear that the other members heard the remark or knew of its being made. Mr. Warner was a witness for the petitioner, and owned some property near the southern terminus of the road, and favored the proposed layout. No member of the committee did or said anything to invite or encourage any of these remarks, made no reply to them, and did not permit or allow them to be made. The court held that it could not infer as a matter of law from these facts that the committee had been guilty of irregular and improper conduct, which would vitiate their proceedings. Greene v. Town of East Haddam, 51 Conn. 547.

CHICAGO, KANSAS & WESTERN R. Co.

v.

DRAKE.

(Kansas Supreme Court, June 6, 1891.)

Eminent Domain-Damages-Opinions of Witnesses as to Value.-In an action to determine the value of certain town lots condemned for the right of way of a railroad, the opinions of witnesses, as to the value of the lots at the time they were condemned, will not be deemed conclusive, but the jury may consider such opinions in connection with all the other testimony in the case, and then, for itself, determine from all the testimony the value of such lots.

COMMISSIONERS' decision. Bourbon County.

Error from District Court,

Geo. R. Peck, A. A. Hurd, and Robt. Dunlap, for plaintiff in

error.

A. A. Harris and Henry E. Harris for defendant in error.

Case stated.

GREEN, C.-The plaintiff in error condemned three lots in block 8 of Carroll's plaza, in the city of Ft. Scott, in Bourbon county for railroad purposes. All the lots were appropriated, and the commissioners awarded as compensation for them $240. The defendant in error appealed from the award. The case was tried in the district court, and the jury returned a verdict in favor of the owner

of the lots for the sum of $881.93. A motion for a new trial was overruled, and judgment was entered in accordance with the verdict. The plaintiff in error contends that the jury disregarded the evidence in arriving at their verdict, and that it is contrary to and unsupported by the evidence. Six witnesses testified for the plaintiff, upon the trial in the district court, that the lots were worth $1,500. Five witnesses, in behalf of the defendant below, fixed the value of the lots at from $240 to $375. There was no evidence from any witness fixing the value of the property at the amount returned by the jury. The defendant below requested the court to permit the jury to view the premises, but this request was denied. It is claimed that the verdict is neither in accord with the plaintiff's nor defendant's witnesses, and hence is unsupported by any evidence. It was the particular province of the jury to determine the value of the lots. Their value was purely a question of fact, to be determined from all of the evidence before them. They had the testimony of the witnesses, upon the part of the plaintiff and defendant, giving their opinions as to the value of these lots. There was evidence, too, of the location and condition of the lots, as well as the purpose for which they might be utilized. The testimony as to the value of the property condemned was opinion evidence. The witnesses gave their best judgment as to the value of the lots, and this evidence depended upon a knowledge of the value of real estate at the time the property was taken. Now, an opinion as to the value of a piece of property is not, strictly speaking, a fact, but is received in evidence upon the same conclusive. principle as that on which the opinions of experts are admitted. In a well considered case, decided by the supreme court of the United States, Mr. Justice FIELD observed: "The evidence of experts as to the value of professional services does not differ, in principle, from such evidence as to the value of labor in other departments of business, or as to the value of property. So laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed, and it was only in that way that they could arrive at a just conclusion. While they cannot act in resting in their private knowledge, but should be governed any case upon particular facts material to its disposition by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry."

Head v.

Hargrave, 105 U. S. 45.

Opinions as

to value not

The same court quotes