On appeal from the Hudson County Circuit Court.
For the appellant, William A. Stevens, attorney-general, Walter H. Bacon, Jr., and George T. Vickers.
For the respondent, Arthur T. Vanderbilt and John Milton.
The opinion of the court was delivered by
CASE, J. The state highway commission appeals from a judgment entered upon a jury verdict of $375,000 in the Hudson County Circuit Court before Judge Thomas Brown. That trial was on an appeal from a report and award of commissioners on the condemnation of lands owned by Lincoln Terminal Corporation and taken by the state highway commission for the purposes of the highway construction known as the "viaduct." The lands bound on the Passaic river and extend longitudinally in an easterly direction through remaining lands of the owner.
Appellant's first point is that there is no evidence in the case to support the verdict of the jury. The point thus sought to be made is not the subject of an appeal. As was said by our present Chief Justice in Van Sciver v. Public Service Railway Co., 96 N.J.L. 13: "The only matters properly coming before it (viz., an appellate tribunal on appeal) for determination are alleged errors committed by the court during the trial of the cause." Appellant cites Ratz v. Hillside Bus Owners' Association, 103 Id. 502, in support, and the opinion in that case does contain the following expression: "The fifth ground of appeal, that there was no evidence to support the verdict of the jury, which is cognizable in this court, was not argued at all." That observation, however, was an obiter dictum inasmuch as the ground concerning which the remark was made was not argued by counsel and was not considered by the court in arriving at its conclusion. In Klein v. Shryer, 106 Id. 432, Mr. Justice Parker, speaking of a ground that was almost precisely the same, namely, that "there was no legal evidence to support the judgment," disposed of the argument by saying: "Such a reason points to no judicial action to be reviewed." It is also to be observed that the Ratz opinion, notwithstanding the obiter above mentioned, quotes with approval the language of the Chief Justice in the Van Sciver case, supra.
Neither is there merit in the argument advanced, which is that because the various figures estimated by the witnesses to be the value of the property taken, plus the damage to the remaining
property, are neither higher or lower than the finding by the jury, there is no evidence to support the verdict. This court found contrary to that contention in State Highway Commission v. Mayor, &c., of Dover, 109 N.J.L. 303. There was much evidence before the jury other than the opinion testimony by the real estate experts: evidence of the physical aspects of the property; the volume of business done; the arrangements of the tracks and storehouses and of the loading and unloading devices; the relationship of land transportation to water transportation; the interference by the proposed improvement and particularly by certain of the piers with the load movements; the leases and rentals; all of which was seasoned by the jury's view of the premises. A jury, under such circumstances, need not find in the precise figures of an expert's estimate. See Somerville and Easton Railroad Co. ads. Doughty, 22 N.J.L. 495, (at p. 499). The greater includes the less. When a witness testifies that in his opinion an owner is damaged in a certain sum, he necessarily is understood to testify that the owner is damaged in every lesser amount. It is for the jury, within reason, to decide whether all or some part of the figure that springs out of the witness' opinion is the actual damage.
The appellant's second point is that the jury disregarded and rejected all of the testimony and evidence received in the case but nevertheless rendered a verdict. This point, for the reasons already given, is not properly before us; also, it has, in our opinion, no merit.
The third point is that the verdict of the jury is contrary to the charge of the court. It would serve no purpose to review that portion of the charge to which it is said the verdict is contrary. The language is not excepted to, no ground was assigned with respect thereto and no error is alleged. That which appellant calls error and attempts now to present was not a judicial action and is not properly before us for review. We may note, however, that we have discovered no contrariety between the verdict and the charge.
The fourth and last point is that the trial court committed harmful error in ...