in possession, the land was still the property of plaintiff, and it cannot be appropriated to the public use without adequate compensation first made, unless this be done with his consent. If defendant is now compelled to pay more for right of way than it would have been compelled to pay had condemnation been made at an earlier day, this results from its own failure to take such steps at an earlier period at it might and ought to have taken before taking possession of the land.”

In San Antonio & A. P. R. Co. v. Ruby, (Tex. March 10, 1891,) 15 S. W. Rep. 1040, the same position was taken. Referring to the rule laid down in the Cave case, supra, the court said: "We hold this to be the correct rule, under the constitution of this state, which provides that no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and when taken, except for the use of the state, such compensation shall be first made or secured by a deposit of money.' Const. art. 1, § 17. The rule is believed to be universal that compensation must be estimated by facts existing at the time the land is taken, though there is some diversity of opinion as to whether this occurs when the proceedings to condemn are instituted or at time of trial. The latter view we think correct in its practical application, though strictly there can be no 'taking,' within the meaning of the law, until the party seeking to condemn has been adjudged to be entitled, and has paid or secured the compensation fixed. Railway Co. v. Lyons, 2 Civil Cas. Ct. App. 133: St. Joseph & D. C. R. Co. v. Orr, 8 Kan. 422; Winona & St. P. R. Co. v. Denman, io Minn. 267, (Gil. 208;) Metler v. Easton & A. R. Co., 37 N. J. Law, 224; Driver v. Western Union R. Co., 32 Wis. 578; Arnold v. Covington & C. Bridge Co., 1 Duv. (Ky.), 372; County of Blue Earth v. St. Paul & S. C. R. Co., 28 Minn. 509, 10 Am. & Eng. R. Cas. 209; Morin v. St. Paul, M. & M. R. Co., 30 Minn. 100, 10 Am. & Eng. R. Cas. 223; Lyon v. Green Bay & M. R. Co., 42 Wis. 538. Authorities bearing on this question will be found cited in these cases, and in Lewis, Em. Dom. 477."

In Newgass v. St. Louis, A. & T. R. Co., 15 S. W. Rep. 188, the supreme court of Arkansas take the same position. It is there held that on the condemnation of land taken by a railroad company for its right of way, the damages are to be assessed as of the time of the filing of the petition, and not the time of the original entry, nor of the award. There being evidence that the land had advanced in value between the entry and the filing of the petition, error in assessing the damages as of the earlier date was prejudicial to the landowner. The court said: "It is insisted that compensation should have been assessed with reference to the value of the land taken as of the time of filing the petition, and not as of the time of the entry upon the land by the corporation. Upon this question the courts in different states have established different rules. It is held by some that the assessment should be made with reference to the time of entry; by others with reference to the time of filing the petition; and by still others with reference to the time of the award. Lewis, Em. Dom. § 477, and cases cited. The court below adopted the first rule, against the objection of the appellant, who contended for the second one. We recall no case in which the question has been presented for the decision of this court; but there are references by the court to it, and in so far as they indicate an opinion it is favorable to the contention of appellant. Either rule is liable to operate harshly in special cases, -as well against the landowner as the corporation; but we see nothing in the one contended for which indicates that it would more often work harshly than either of the others, and it has the advantage of fixing a certain and definite time with reference to which the estimate must be made. Besides, the corporation has the right to acquire the land.

When it files its petition it declares its purpose to appropriate

it, and to render just compensation to the owner. Until it has done that it is in default, but afterwards it can do nothing more until, in the regular course of procedure of the courts, a legal ascertainment of the amount to be paid is made. As the filing of the petition is the attempt to assert the right of condemnation, and subsequent delay is without default of either party, it seems fair to each alike that the assessment should be made with reference to value as of that date. Lewis, Em. Dom. § 477, and cases cited; Burt v. Merchants' Ins. Co., 115 Mass. 1; South Park Com'rs. v. Dunlevy, 91 Ill. 49. There was evidence tending to prove that the land had advanced in value between the time of entry and that of filing the petition, and we cannot hold that the error of the court in making its assessment with reference to the earlier date did not prejudice the appellant. For this error the judgment must be reversed, and as the other points raised will be presented in the future trial of the cause it is proper that we determine them."

In Twin Lakes Hydraulic G. M. Syndicate v. Colorado Midland R. Co., (Colorado, June 5, 1891,) 27 Pac. Rep. 258, it was held that an instruction that the value of land and damages to the residue was to be assessed in accordance with the situation of the property and the conditions existing at the date the petition for condemnation is filed is reversible error, since it is provided by statute (Colo. Code Civ. Proc. § 253) that the value of property taken in condemnation proceedings is the actual value thereof at the time of the appraisement.

In a proceeding to assess compensation for injuries caused by the location and construction of a railroad, the question whether one date or another is the proper one, as of which the witnesses should estimate the market value, is immaterial when it is undisputed that there was no change in the occupation, use, or value of the property between the two dates. Rees v. Schuylkill River, E. S. R. Co., 135 Pa. Št. 629.

CHICAGO, SANTA FE & CALIFORNIA R. Co.

v.

MCGREW.

(Missouri Supreme Court, Division No. 2, March 17, 1891.)

Eminent Domain-Right of Way Across Mining Land-Interruption of Bus iness-Elements of Damages. The plaintiff railroad company condemned a right of way across certain coal lands owned by the defendant and upon which he was operating a coal mine with its attendant engine, shaft, and other appliances. The road was so constructed that it separated defendant's engine from his mining shaft and machinery at the top of the pit. The road was also so constructed as to cut off connection of the mine with another railroad, though the switch, chute, pit top and other connections were not actually taken. In estimating the damages to which the defendant is entitled: Held, (a) that it was proper for the jury to consider the number and speed of passing trains, the danger of accidents to defendant's employes, and the risks of damage by fires from passing locomotives; (b) that if it was necessary to change the railroad connection or make a new one, the reasonable expense thereof should be allowed; (c) that if it became necessary to wholly abandon the shaft, its value should be allowed as damages, and not the expense of a new one; (d) that defendant is entitled to damages from the loss of business owing to its railroad connec

tion being cut off, from the time of the filing of the commissioner's report to the completion of the plaintiff's road; (e) that defendant cannot be required to accept as compensation licenses and privileges to go upon and use the right of way, or a release of a part of it to be used for another shaft; compensation must be made in money; (f) that it was error to instruct the jury to allow damages to the extent of the full value of the switch, chute, pit top, and other connections; although they may have been rendered valueless for the purposes for which they were designed, they may still have been useful for some purpose, and the jury should have allowed only the amount of their depreciation; (g) that it was error for the court to instruct the jury that the company, after taking the property, could not insist upon defendant using it either by a superstructure or by means of a subterranean device, or by other means which would tend to increase the danger to his employes or the inconveniences or dangers of operating the shaft and which would make it difficult to get careful and prudent men to work in the mine. This instruction in effect denied the company the right to show that the value of the property was not totally destroyed, and that the mine could still be operated.

APPEAL from Ray Circuit Court.

This is a suit to condemn a right of way 30 feet wide over lot 939, in block 122, out lot 19, in the town of Camden, Ray county, the property of defendant. Commissioners were appointed by the judge in vacation. They made an assessment of $3,000 damages, and filed their report. This report was afterwards set aside by the court upon exceptions filed by defendant. The case was tried by a jury, and a verdict of $7,000 returned, upon which judgment was rendered against plaintiff. The evidence shows that this lot was about 150 feet in length north and south, and 50 feet in width. Defendant also owned lots 938 and 940, adjoining and on either side. of lot 939, being of the same dimensions. At the point where these lots are located the Missouri river runs nearly east and west. The track of the Wabash Railroad extends along the bank of the river near the water's edge. On the north side of and adjacent to the right of way of the Wabash Railroad a public street was located. These lots abutted on this public street. Plaintiff located its railroad adjacent to and parallel with the Wabash road, occupying the street by consent of the town, and providing another street north of its located line. Defendant also owned a large track of coal land lying north, northeast, and northwest of these lots. About the center of lot 939 defendant had sunk a coal shaft, by means of which his coal field was worked. North of the shaft about 45 feet, and on the same lot, defendant had located his engine house and engine by which the shaft was operated. Through lots 938 and 940 defendant had condemned its right of way to the vacated street on the south. From the river north the land ascended into the hills beyond the railroads. From a switch of the Wabash Railroad a spur or side track extended

opposite the shaft. At the entrance of the shaft was a superstructure, called a "pit top." From this two trestles, one above the other, extended towards the river. These trestles were provided with tracks, and, by means of small cars, the debris of the mine were carried over the upper one and dumped into the river, and the coal was carried over the lower one to the side track of the Wabash road, and loaded into its cars. The shaft was about 14 feet in dimensions east and west and 7 feet north and south. The coal and debris were brought up through the shaft by means of two cages, one on the east and one on the west side of the shaft, which were lowered and raised by means of a wire cable extending from the engine over a pulley at the top of the pit top. From the bottom of the shaft small rail tracks diverged to different parts of the mine, by which the coal was carried from the mine to the shaft, and raised by the cages. Plaintiff's railroad was located between this shaft and the engine house, somewhat nearer the engine than the shaft, thus separating them. In order to operate the mine it was evident that some readjustment of the existing arrangements would have to be made. Several plans were proposed, and evidence offered to prove their practicability, the expense necessary to make the changes and readjustment thereunder, and the time necessarily consumed in so doing. The land actually taken was of insignificant value. The damage claimed by defendant, and not controverted, by plaintiff, was on account of interruption of the mining business of defendant, the expense of readjustment, and the loss while necessarily engaged in making changes. The theories upon which plaintiff insisted the changes could be made, and upon which evidence was offered, were as follows: That the work could be operated without relocating either the engine or shaft, by what was denominated either an over pull or under pull. The former plan was to erect a superstructure at the engine, and operate the mine by a cable through this superstructure over the right of way to the pit top; the latter was to tunnel under the track, and make the connection through the tunnel. Another plan was to move the engine up the hill to the north, and pass the cable over the track to the pit top. Plaintiff's evidence tended to prove the practicability of these theories, and defendant's evidence tended to prove their impracticability. Defendant insisted' that the only feasible arrangement that could be made was to abandon entirely the new shaft, sink another further up the hill, north of the location of plaintiff's railroad, and move the engine and engine house also north. This plan, it was contended, would necessitate the abandonment also of the connection with the Wabash Railroad, and delay the business of

defendant until a new connection would be made with plaintiff's road when built. Evidence was offered tending to prove the practicability of this readjustment, and the expense thereof, the time it would take to complete the change, and of damages for loss of the use of the mine until working arrangements could be perfected by connection with plaintiff's road. Plaintiff also advanced a theory for readjustment, which, it insisted, was practicable, and would entail much less expense than any of those proposed. This was to remove the engine to the south side of the location of its road, on the south end of either lot 938 or 940, which it had already condemned for its right of way. To prove the practicability of this plan plaintiff offered to prove that it had tendered to defendant a release to the south part of these lots to be used for locating the engine house and engine. This evidence was excluded. Over plaintiff's objection evidence was offered by defendant and admitted by the court tending to prove that there would be liability of fire escaping from locomotives and igniting the engine house and machinery and the superstructure to the shaft while in such near proximity to the railroad, and there would be also increased risk to laborers should the engine and shaft be separated by the railroad. Defendant filed a bill of the items of his damage as follows:

Damages for being cut off from the Wabash Railroad until completion of the plaintiff's road....

Permanent damages for being cut off from the Wabash switches,

etc......

Value of present shaft....

$30,000 00

5,000 00

Changes at bottom of mine...

Cost of moving and altering engine, new engine house, and pit top...

Damages to mining property, arising from uncertainty of sinking new shaft and danger of water and sand flowing in and damaging mines...

5,000 00

5,000 00

2,000 00

Damages to mines, arising from having to cross and recross railroad in going to and from same..

1,000 00

1,000 00

$49,000 00

The court gave the jury a number of instructions asked by plaintiff, and also refused a number. Several were also given on request of defendant, and the court on its own motion gave instructions covering the whole case.

Gardiner & Lathrop and C. T. Garner, Sr., for appellant. J. D. Shewalter, for respondent.

MACFARLANE, J.-It would be impossible to review these instructions in detail within a reasonable limit, and without attempting to do so we will merely consider the legal propo