could only be appropriated by plaintiff for the purpose of building its road thereon. The court had the right to assume that it would do so in a reasonable time thereafter. Plaintiff could have given the court and jury approximately the time at which it would be completed. The rule given by the court was as definite and certain as any that could have been given, and at the same time allow plaintiff the advantage of the benefits of its road in reduction of damages.

on basis of company's ex

5. The court also gave the jury the following instruction on the request of defendant. That, except at public, or private crossings, a railroad company is entitled to Compensation the exclusive possession of its right of way, and no person has the right to go upon such railroad clusive right track, nor use the surface of the right of way, for to possession. any purpose, nor can any railroad company either grant or consent to any such use; this rule being not alone for the benefit of the railroad, but also of the public. And if the jury believe from the evidence that none of the devices or means introduced in evidence could be erected or made, or, if erected or made, could be successfully operated or used, without the agents or employes of defendant going on the right of way of plaintiff, then the jury are instructed defendant would not be permitted to erect or maintain the same; or if, on the other hand, the jury should believe from the evidence that the erection, making, or maintenance of any such devices under or over the track would in any degree endanger the operation of such railroad, or the safety of the traveling public, no matter how slight the danger or how improbable the occurrence might be, the defendant would have no right to erect, make, or maintain the same, or the railroad company any authority to consent to any such erection." Though the interest acquired by a railroad company to its right of way through condemnation proceedings is regarded as a mere easement, yet the law contemplates the right to an absolute and exclusive possession and control thereof as against the private rights of the owner of the fee, the proprietors of adjacent land, and all others; the only exception made by the statute being for the benefit of the owner of a farm divided by the road, who is entitled to a private way or farm crossing under § 809, Rev. St. 1879. In view of the nature of the business of a railroad company, and its obligations to the public, such exclusive possession is necessary and proper in order that it may perform fully the purposes for which it is authorized and used. Judge REDFIELD, in Jackson v. Rutland & B. R. Co., 25 Vt. 159, says: "The railroad company must have the right at all times to the exclusive occupancy of the land taken, and to exclude all con

current occupancy by the former owner in any mode and for any purpose." So, in this state, one in no manner connected with the railroad company, who goes upon its track at a place other than a public or private crossing, is a trespasser. Rev. St. 1879, § 809; Rine v. Chicago & A. R. Co., 88 Mo. 398. No sufficient reason can be seen why, by agreement between the parties interested, certain rights, not inconsistent with the public interest, might not have been reserved by the landowner, so as to secure to himself a limited use of the right of way under such circumstances as existed in this case. Yet such a reservation must have been by consent of both parties; neither could have been required to grant or accept them. Defendant was entitled to compensation in money, and could not, without his consent, have been required to accept in lieu thereof licenses or privileges, however beneficial to him they may seem to be. After a failure to agree on the compensation or other arrangements mutually satisfactory, the parties go into court, not as contracting parties, but as antagonists, and each has the right, if he sees fit to do so, to stand on his legal rights, and insist on his legal remedies, and yield nothing of either. So the parties stood in the trial of this case; plaintiff demanding the unrestricted right of way, and defendant insisting on just compensation in money for his land appropriated. Efforts to agree which were required to be made before legal proceedings could be instituted having failed, all previous negotiations or offers were at an end, and could only be viewed in the light of efforts to compromise; and evidence of their character and extent was not admissible Plaintiff had no more right to tender, or to prove that he had tendered, defendant certain privileges, than defendant had to offer to donate, or prove that he had offered to donae, the right of way if a different location should be adopted. Mills, Em. Dom. § 112; Presbrey v. Old Colony & N. R. Co, 103 Mass. 4; Hill v. Mohawk & Hudson River R. Co., 7 N Y. 155; Chicago, M. & St. P. R. Co. v. Melville, 66 Ill. 329; Central Ohio R. Co. v. Holler, 7 Ohio St. 220; Chesapeake & O. R. Co. v. Halstead, 7 W. Va. 302; Lewis, Em. Dom. $505.

6. What has been said substantially disposes of the question raised on the trial by the offer of plaintiff to prove a tender to defendant of a release of part of its right of way on the south end of lots 938 and 940 for the Tender by location of his engine. This tender was made company of pending negotiations, prior to the institution of lon. proceedings, or pending the inquiry of damages by the commissioners. For the reasons above stated defendant. could not be required to accept anything but money in com

another loca

pensation for his land. While the tender was ostensibly gratuitous, the purpose of it unquestionably was with a view of reducing the damages, and was nothing more than the offer of privileges as part compensation. While duty may require of one sustaining damage from the act of another to use all reasonable exertion and expense to avert as far as practicable the injurious consequences of such act, yet in a case of this character, in which property is taken for public uses without the consent of the owner, no recognized principle can be imagined which would require the landowner to accept other land in exchange as compensation in part or in whole for the land appropriated. We are cited to no authority, nor have we been able to find any, sustaining such a doctrine. It may also be seriously questioned whether, after land has been appropriated to public uses, it can be transferred unconditionally to another for a private use. The authorities are against such right. Mills, Em. Dom. § 57; Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 101 Mo. 209, 29 Am. & Eng. Corp. Cas. 400; Strong v. Brooklyn, 68 N. Y. I. If the offer was that of a mere license, it would have been revocable at the pleasure of the licensor, and the right to revoke may have been exercised before any benefits were received from the license. In any event, defendant could not, against his consent, be required to accept the offer of a license while it was questionable whether the power to confer it existed, and while it was doubtful whether, if accepted, it would have subserved the practical purpose for which it was designed. We think there was no error in excluding the evidence.

switch, chute,

7. Defendant's second instruction was as follows: "If the jury believe from the evidence that defendant has, in connection with the Wabash Railroad, a switch and Damages for coal chutes; that by the taking of his strip between pit top, etc. the engine house and shaft he will be compelled to sink a new shaft, and that this will cut him off from the Wabash, then the plaintiff is required to erect and build for the defendant, on demand therefor, a switch and switch connection with its road, defendant paying the cost thereof; and if the jury should believe from the evidence that by sinking such shaft defendant will be cut off from the Wabash Railroad, with the right of way of plaintiff's road between the new location and said Wabash Railroad, then the jury' will find for the defendant on the second item of damages claimed for such sum, not exceeding five thousand dollars, as they may believe from the evidence was the value of the switch, chutes, pit top, and other connections, thus rendered useless for the purposes for which they were erected, such

value to be estimated at the time of taking said strip." We think there was error in this instruction. From the fact that the switch, chutes, pit top, and other connections may have been rendered valueless for the purposes for which they had been designed, it does not follow that they were valueless for all other purposes. This property was not actually taken. It still belonged to defendant. When property is taken its value should be paid. When not taken, but only injured, its depreciation in value only should be allowed. Values should not be estimated exclusively for any particular use. Everything which gives it intrinsie value should be taken into consideration, and its capabilities for any use to which it may be put. 3 Suth. Dam. 414; Lewis, Em. Dom. § 464. The damages on this item would have been the depreciation in the value of the property mentioned, and not the full value.

possible

8. The third instruction given for defendant was as follows: "The jury are instructed that in condemning a right of way through or over defendant's property the plaintiff has no right to take the same, and, after Right of jury so taking it, insist upon the use of the strip by the to consider defendant in the necessary running of his business changes avoideither by a superstructure, ropes, and pulleys over- ing total loss. head, together with a bridge, or by means of subterranean device, or by any means whatever, provided any such means or device in any degree increases the dangers to the lives and limbs of his employes, or so increases the inconveniences or dangers in running and operating the shaft as for that reason he would be unable to get careful and prudent men to work in said mine, or if from any causes any such system would be impracticable, and he, the defendant, could not, for any such reasons, compete with other persons engaged in the same business." This instruction may also have misled the jury. The object of the trial was to ascertain the damage to the property of defendant by the appropriation. In order to prove the damage it was competent for defendant to offer evidence which might tend to prove a total loss of the use of his lands for mining purposes, and, on the other hand, plaintiff had the right to show that the property could still be used and the mine operated by certain changes of the appliances necessary to its operation. The jury was to determine the damage from all the evidence. If the mine could be worked by means of the changes proposed by plaintiff, then the expense of the change and the value of the property thereafter should have been considered by the jury, though greater expense and inconvenience might attend its operation on account of the changed condition. The difference in value should have been estimated, and compensated for in money.

one.

9. We are not able to see that the fourth instruction authorized an estimation of the value of the old shaft and also the cost of a new one, as contended by plaintiff. Value of shaft That instruction is as follows: "If the jury believe -Cost of new from the evidence that by reason of the taking of the strip of ground thirty feet wide by plaintiff it is necessary for the defendant, in safely or properly conduct. ing his business, to sink a new shaft as declared in other instructions, then they will find for the defendant as to such items; and if the jury believe from the evidence that in sinking a new shaft there are elements of uncertainty which make the same hazardous, and which increase the value of a shaft already successfully sunk and in successful operation over the actual cost of sinking it, then the jury are instructed that in arriving at the value of the present shaft they are not confined to its actual cost merely, but should add thereto such further or additional sum as will represent the true value of the shaft already sunk and in operation, and for that sum you should find for the defendant, in that case, under the third and fourth items, not exceeding ten thousand dollars on both items; and in arriving at the value of the shaft, it is not to be fixed at a forced sale, but its value in and in connection with the business it was used for." The reference in this instruction to the third and fourth items of damages contained in defendant's bill of particulars did not probably mislead the jury, though such a reference should not have been made. Instructions should be complete in themselves, and not remit the jury to the pleadings to ascertain their scope or meaning. On account of the misdirection contained in instructions 2 and 3 the judgment is reversed, and the cause remanded. All the judges of this division concur.

Condemnation of Right of Way Across Mining Lands--Damages.—See Midland R. Co. v. Miles (Eng.), 24 Am. & Eng. R. Cas. 137, note 142; note 17 Id. 116, Jenkins v. Central Ontario R. Co., 17 Id. 116.

Condemnation of Placer Mining Land-Instructions as to Damages Owing to Presence of Mineral.-In proceedings to acquire a right of way for a railroad over placer mining property, the court charged the jury "that the fact that the land is designated as 'placers' and that the title thereto was acquired under the mining laws of the United States, constitute no evidence either that the ground in question contains valuable deposits of gold or other mineral, or that the same is valuable for placer purposes. This instruction was preceded by the following: "That in determining the compensation for the land taken, and the resulting damages, if any, to the remaining land, they may consider not only the uses and purposes to which it is now applied, but also any other reasonable use to which it may be adapted or might be appropriated by men of ordinary prudence and judgment. That, if they believe from the evidence the land contains deposits of gold, they may consider that fact as bearing upon the question of the value of the premises; and that, if the presence of gold enhances either