sitions enunciated by them, and undertake to ascertain the law that should govern in determining the rule of damages. as applied to the facts in this case.

1. The constitution, as well as common right and justice, requires that when a railroad corporation exercises the extraordinary power of appropriating to its own use the property of another, just compensation should General prinbe first paid. Just compensation implies adequate pensation. compensation, a fair equivalent, a just indemnity.

ciples of com

On the other hand, some of the private rights of citizens must give way to great public enterprises; and, while the citizen is entitled to just compensation, he is entitled to no more than what is just and adequate. In ascertaining the compensation in such cases the ordinary rules for measuring damages, as far as practicable, have been applied. It has therefore been held that "the correct rule to be applied relates to the value of the land to be appropriated, which is to be assessed with reference to what it is worth for sale, in view of the uses to which it may be put, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it; and when less than the whole estate is taken then there is further to be considered how much the portion not taken is increased or diminished in value in consequence of the appropriation. The benefits derived, which are to be taken into consideration in the assessment of damages, are the direct and peculiar benefits resulting to the land in particular, and not the general benefits accruing to it in common with other land, which is enhanced in value by the erection of the improvements." Mississippi River Bridge Co. v. Ring, 58 Mo. 496; St. Louis & St. J. R. Co. v. Richardson, 45 Mo. 466; Cooley, Const. Lim. 567; Pacific R. Co. v. Chrystal, 25 Mo. 546; Wyandotte, K. C. & N. W. R. Co. v. Waldo, 70 Mo. 632. These rules have been acted upon in this state from the time the question first came before the courts. It has ever been regarded as eminently 'just and fair, and, in most cases, of easy practical application. No reason can be seen why it should not be used as the basis for estimating plaintiff's compensation in this case. The peculiar character of defendant's property, the underlying coal beds, which give it value, the machinery and appliances in use, necessary in making the property productive, the railroad connections, which facilitate the commerce of the productions, and the complications arising from all these, make the application of these simple rules exceedingly difficult in this case. The damages to be paid are to compensate for the injury to the whole of the property as it was left at the time the appropriation was made, in view of the uses to which the land appropriated was to be

applied. Any benefits the construction and operation of plaintiff's road would add to the property by way of increased facilities for marketing coal should have been deducted from the damage. Such benefits would be peculiar to this property on account of the uses made of it. It is evident the damage to the property should not be confined to the surface of the land and the machinery in use in the business, but should also apply to the internal arrangement of the mine, and the appliances therein provided for its economical and successful operation, and to all external arrangements which add to its value. If the shaft in use when the condemnation was made could no longer be used the damage would not be confined to the loss of the shaft, but should include such damage to the internal arrangement of the mine as would result from the necessary abandonment of any part of such appliances, or their readjustment to necessary changes. The facilities for transportation of coal and railroad connection with the mine. is a valuable property right, which belongs to the owner of the land, and, if injured by the appropriation of the land, this would constitute a damage to the remaining property, for which defendant should be compensated, though the railroad switches and tracks making the connection belonged to the railroad company. 3 Suth. Dam. 441; Lewis, Em. Dom. § 235: Rigney v. Chicago, 102 Ill. 64. It is the duty of one sustaining damages by reason of the act of another to use all reasonable exertion to protect himself, and avert, as far as practicable, the injurious consequences of such act. Douglass 2. Stephens, 18 Mo. 366; Haysler v. Owen, 61 Mo. 270; Waters 2. Brown, 44 Mo. 303; 1 Suth. Dam. 148. It was therefore plaintiff's duty to adjust his property to its changed condition. as soon as it could reasonably be done, and in such manner as would avert such damages as could be avoided by reasonable endeavors and expense. The damages should have been estimated as of the date of the assessment by the commissioners, and on the assumption that plaintiff had or would incur every reasonable expense and use every reasonable exertion in the management and readjustment of his property, to protect himself from damage. If the business of defendant was necessarily interrupted by reason of the appropriation of a portion of his land, compensation should have been allowed for the reasonable value of the use of the mine during the period of such necessary interruption. In estimating the damage for this cause it would have been proper to have consid ered the probable length of time the business would necessarily have been suspended, the season of the year, and all circumstances that would tend to increase or diminish the value of the business interrupted, and the consequent loss therefrom.

Mills, Em. Dom. § 192; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Patterson v. Boston, 23 Pick. (Mass.), 425; St. Louis, V. & T. H. R. Co. v. Capps, 72 Ill. 188. Conjectural profits of the business in the future are too speculative and uncertain to be allowed as damages. Mills, Em. Dom. § 177; Pittsburgh & W. R. v. Patterson, 107 Pa. St. 464; Jacksonville & S. E. R. Co. v. Walsh, 106 Ill. 255, 14 Am. & Eng. R. Cas. 245. These principles were generally adopted and applied by the court throughout the trial, and the general instructions given fairly presented the rule of damage governing the facts and circumstances in the case. There are some special exceptions urged by appellant which deserve separate consideration.

damage Fre

quency of

fire.

2. The court instructed the jury, by amendments to some of those asked by plaintiff, in substance, that in determining the practicability of such proposed changes as required the operation of the shaft on one side of the Elements of road by means of the engine on the other side, they might consider the frequency of trains passing over trains-Danthe road, and the rapidity of their movements, the ger from acincreased liability of injury to employes of defend- cidents and ant from accidents, and the risks of damage by fires from passing locomotives. Appellant insists that the court erred in so amending these instructions. It is true, as a general proposition, damages should be assessed on the assumption that the road will be properly constructed and operated, and that it will comply with all the laws of the state regulating its construction, management, and operation. For failure of duty in these respects, it will be liable to an action at common law, or the landowner will have such remedy as may be provided by statute. Chicago, M. & St. P. R. Co. v. Baker, 102 Mo. 553 (decided at this term ;) Lyon v. Green Bay & M. R. Co., 42 Wis. 538; Fremont, E. & M. V. R. Co. v. Whalen, 11 Neb. 590, 5 Am. & Eng. R. Cas. 364. Notwithstanding these settled principles, which apply generally, we are of the opinion that the facts in this case are exceptional, and that the instructions as limited by the court were proper. When we remember the close proximity of the railroad to the engine on one side and the shaft and superstructure on the other, and that employes of defendant would necessarily be engaged over and about the track of the road, it will be readily seen that damage from accident may occur for which the railroad company would not be liable. It is clear that persons exposed to danger, as defendant's employes would necessarily be, could not perform their labors with the same degree of efficiency, and, at the same time, exercise the care to avoid danger which the law imposes on them, as they could if not

so exposed. The extra risk might also cause a demand for higher wages. Neither can a railroad company be held liable for all fires that may originate from its locomotives. They may occur through no fault of the company. Defendant would also be under obligation to exercise care and watchfulness, under the circumstances, to avoid and prevent damage from fires, and this duty might impose additional expense upon him. So it will be seen that the general rule cannot, in justice, be applied to its full extent under the facts in this case. It would not be proper to estimate the possible damage from fires or injuries to persons. Neither may ever occur, and to take them into the estimate would be mere speculation. We think they may properly be considered, however, in so far as they tend to depreciate the value of the whole property, and to affect the proposed changes, but no further. Lewis, Em. Dom. § 497; Mills, Em. Dom. § 163, 166; Bangor & P. R. Co. 7. McComb, 60 Me. 290; Ham v. Wisconsin, I & N. R. Co., 61 Iowa, 716, 14 Am. & Eng. R. Cas. 204; St. Louis, A. & T. R. Co. v. Anderson, 39 Ark. 167, 17 Am. & Eng. R. Cas. 97; Keithsburg & E. R. Co. v. Henry, 79 Ill. 290; Pierce v. Worcester & N. R. Co., 105 Mass. 199; White v. Charlotte & S. C. R. Co., 6 Rich. Law (S. Car.), 47.

with Wabash road-Dam. ages for

3. As has been stated, the connection of the mine with the Wabash Railroad was a valuable property right which belonged to defendant, and was a part of the property Connection that may have been affected by the appropriation. Whatever damage was occasioned by the interference with this right should have been allowed destruction, in the estimate. If necessary changes and readjustment of engine, shaft, and other appliances for conducting the business rendered it necessary to change or modify the railroad connection, or to make a new one, then the reasonable expense of making such changes or making a new connection should have been allowed, and there was no error in the court. so instructing the jury. If the appropriation rendered it necessary to wholly abandon the shaft, then its value should have been allowed as damage, and not the expense of making a new one. But in the consideration of a general scheme of readjustment of the appliances for working the mine, evidence of the cost of a new shaft would be proper enough. In considering the cost of a new shaft, mere speculations as to possible difficulties in the way of doing so should not be made. Such difficulties should be considered much as a contractor would regard them in estimating the cost, and allowances therefor should be made accordingly. The rulings of the court on this subject were substantially correct.

4. At the request of defendant the court gave the jury the

following instruction: "If the jury believe from the evidence that the strip sought to be taken lies immediately between the engine house and the shaft of defendant; that defendant had also, a switch and connection with the Wabash Railroad, by means of which, and of tracks and tramways leading from the shaft, cars on said switch were loaded; and if the jury further believe from the evidence that by the location of the plaintiff's road and the taking of the said strip the shaft of defendant cannot be operated with the engine on the opposite side of the track with safety, and that for that reason he, the defendant, has been unable since the location of the plaintiff's road to operate his coal-shaft, then the defendant is entitled to recover all the damages, if any, the jury believe from the evidence he has sustained thereby from the date of the filing of the report of the commissioners and the payment of the money into court by the plaintiff up to the completion of the plaintiff's road; such amount of damages to be determined by the rule hereinafter stated." Plaintiff objects to this instruction on the ground that the period for which it is to be held liable for loss of business is too indefinite and uncertain to form a basis for calculating damages. If the entire use of the Wabash road as a means of transportation was destroyed by the appropriation of defendant's land, and no rearrangement could have been made, then the damage on this account should have been the entire value of such connection, which should have been reduced by the benefits that might thereafter have been derived from the operation of plaintiff's road. The damage to which defendant was entitled was the difference between what was the fair value in the market of his whole property before and its value after the appropriation, in view of the uses to which the land condemned should thereafter be applied. The schemes for readjustment, and the evidence of the practicability and cost thereof, were only allowable as what seems to be a reasonable and practical method of estimating such difference of value. Both parties seem to have agreed upon the theory for estimating the damage and benefits upon the basis of the cost of certain readjustments of the works, and the loss of business until they could be effected. The instruction complained of was only following out the theory adopted by the parties. Plaintiff was entitled to have the damage reduced by the value of the benefits of its road when completed. These benefits would consist of the means for transportation of defendant's coal to market. There would be the same difficulty and uncertainty in determining when these benefits would begin, as in determining when defendant's losses from being deprived of his connection with the Wabash road would end. Defendant's property