the market value or the intrinsic value thereof, due weight must be given to that fact." Held, that the instruction first set out could not be considered as objectionable in view of the modifications imposed by the instruction preceding it. Twin Lakes Hydraulic G. M. Syndicate v. Colorado Midland R. Co., (Colorado, June 5, 1891), 27 Pac. Rep. 258.

CHICAGO & PACIFIC R. Co.

บ.

HILDEBRAND et al.

(Illinois Supreme Court, March 30, 1891.)

Eminent Domain-Damages-Borrowing Earth-Instructions as to Payment of Taxes on Land Taken. The easement of a railroad company in land taken for the purpose of obtaining material for the construction of its road, by the exercise of the right of eminent domain, is treated as an estate or an interest in the land, and it is error for the court, in condemnation proceedings, to instruct the jury that the railroad company will not be required to pay taxes on the land so used by it.

Right of Railroad Company to Create Nuisance on Land Taken for Purpose of Obtaining Material-Instructions. Where a railroad company takes land for the purpose of obtaining material for the construction of its road, it is error for the court to give an instruction implying that the railroad company acquires the right to create a nuisance on such land by leaving holes therein, and grass and other combustible materials thereon, and neglecting to drain the same, whereby the owner of the dominant estate may be injured in his rights without any right to recover therefor from the railroad company.

Damages for Iconveniences Which Are "Largely Conjectural "-Instructions. It is error for the court, in condemnation proceedings, to instruct the jury that in estimating the landowner's compensation, they should consider all appreciable injuries and inconveniences to land not taken "although such injuries and inconveniences may be largely conjectural. The words "largely conjectural" are misleading, since the jury may infer therefrom that speculative damages are recoverable.

"Contiguous Property "-What Constitutes.-Where a railroad company condemns an additional strip of land on one side of its track where it passes through the compact body of a farm, that part of the farm on the other side of the track is “contiguous" to the strip of land so taken. APPEAL from Ogle Circuit Court.

Ed. F. Dutcher, for appellant.

J. C. Seyster and Frost & McEvoy, for appellees.

Case stated.

SCHOLFIELD, C. J.-This is a proceeding instituted by appellant in the circuit court of Ogle county, to condemn four tracts of land, consisting of long strips parallel with the appellant's right of way, for use in constructing an additional track in maintaining appellant's road. The tracts are designated as Nos. 1, 2, 3, and 4-,No. 1 belonging to the estate of John Hildebrand deceased, subject to a mortgage to Lewis Hildebrand, Sr., No. 2 belonging to 47 A. & E. R. Cas.-10

Liability of company to pay taxes on land taken.

the legatees of Frederick Nashold, deceased, No. 3 belong. ing to Isaac Crill, and No. 4 to John I. Crill. Proper parties were made defendants, and brought before the court, and judgment was rendered in favor of the separate owners for compensation for land taken, and damages to lands not taken. A single appeal was taken by the appellant, that brings the entire record of condemnation of each tract before us for review. The judgment, however, as to each tract, is, in effect, a separate judgment, as much as if rendered in distinct proceedings, and therefore a reversal of the judgment as to one tract does not necessitate a reversal as to the other tracts. Upon the trial of the case, evidence was given of the value of the lands taken, and also of the damages to result from the use of the lands for the purpose for which they are taken to other lands of the several owners not taken; and at the instance of the owners of tracts No. 1 and No. 2-Nashold's and Hildebrand's-the court, over appellant's objection, instructed the jury as follows: "No. 2. The court instructs you that the Chicago & Pacific Railroad Company desires to have the right to use certain lands belonging to the Nasholds and Hildebrands for the purpose of borrowing earth therefrom to construct an embankment on their right of way, and in exercising its right to borrow earth it will be at liberty to borrow therefrom all it desires that may be necessary to construct such embankment. It will not be required to so borrow such earth or drain the land borrowed from as to prevent water from standing in the places from which the earth will be borrowed, so long as it does not interfere with any existing or natural means of drainage. It will not be required to pay taxes on the lands so used by the company. It will not be required to fence the same, and will not be required to keep the same clear from weeds, or brush, or any material that may grow thereon." It is not true that the appellant will not be required to pay taxes upon these tracts of land. The petition represents that it is necessary that appellant "shall have and immediately possess for use in constructing said additional track and maintenance of said railroad" these tracts of land, and it concludes by praying that "the compensation to be made to each, respectively, be ascertained, and such proceedings be had therein as by the statute in such case made and provided_are_required." The statute provides (section 10, chap. 47, Rev. St. 1874) that, in such cases, the court shall adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such prop. erty, and have the use of the same, upon payment of full compensation; * and such order, with evidence of

* * *

such payment, shall constitute complete justification of the taking of such property." The judgment here is that the said petitioner, the Chicago and Pacific Railroad Company, do enter upon the following tract of land in said petition described, and take therefrom material necessary for the construction of its railway. This vested an easement in the tracts in the railroad company. Wiggins Ferry Co. v. Ohio & M. R. Co., 94 Ill. 83; 1 Redf. Ry. p. 251, par. 8 and note II, 6 Am. & Eng. Ency. Law, p. 142; Huntington v. Asher, 96 N. Y. 604. And, the easement being in gross, it is so far of the character of an estate or interest in the land that it is treated as such. 6 Am. & Eng. Ency. Law, and Huntington v. Asher, supra. The statute requires the appellant to pay tax on all real estate held for right of way, (section 41, chap. 120, Rev. St. 1874); and on all other real estate belonging to it, (section 46 of the same statute.) Nor is it true, as is to be implied from this instruction, that appellant by this easement acquires the right to create a nuisance Right to crethereon by leaving holes therein, and grass and on land. other combustible materials thereon, whereby the owner of the dominant estate may be injured in the enjoy. ment of his legal rights without any right of recovery there

ate nuisance

from appellant. The duty and liability of appellant in respect to such nuisances are precisely the same in respect of the land not taken as that of any other owner of land adjacent to that of the owner of the dominant estate in these tracts. The instruction was therefore erroneous, and it was calculated to mislead the jury.

Speculative

damages-In

Another instruction given at the instance of the owners of the tracts Nos. 1 and 2 is as follows: "No. 3. The jury are instructed that in estimating just compensation to bo paid to the defendants in this case on account of the use described in the petition, as therein men- struction. tioned and described, and the damages, if any, to the residue of the farms in question, you should take into consideration all injuries and inconveniences which are appreciable, and which you believe from the evidence are reasonably probable and likely to result from the use of the land as Sought in this case, although such injuries or inconveniences may be largely conjectural, and not susceptible of definite ascertainment. Such damages are neither imaginary nor speculative, but are legitimate items of damage to be considered, and you, upon the consideration of all such damages as shown by the evidence, should determine what amount will be a just Compensation to the owners of the premises in question." We think the words "largely conjectural" render this instruction misleading, and that the instruction therefore ought

not to have been given. We have frequently held that mere possible, speculative, or remote damages do not form the proper basis for a recovery in such cases, (Chicago, B. & N. R. Co. v. Bowman, 122 Ill. 595; Kiernan v. Chicago, S. F. & C. R. Co., 123 Ill. 188;) and as between these and damages "largely conjectural" the common mind will fail to perceive any tangible distinction. For the giving of these instructions, the judgment in favor of Pauline Hildebrand, Emma L. Hildebrand, Lewis J. Hildebrand, and Alfred E. Hildebrand, for the taking of lot No. 1, and for damages to other property belonging to them not taken; and the judg ment in favor of Mengo Nashold, Wellington Nashold, Alice Nashold, Martin Nashold, Emma Nashold, Laura Lines, Thomas H. Lines, Rosella Nashold, Charlotte Thompson, Carroll Thompson, Daniel E. Nashold, Jennie Nashold, Carrie Nashold, Minnie Nashold, Margaret Nashold, and Jacob Martin, executors of the last will and testament of Frederick Nashold, deceased, for taking No. 2, and for damages to other property belonging to them not taken,-are reversed, and the causes as to them are remanded to the court below for another trial.

ous property.

It is objected against the remaining judgments that the jury were instructed to render a verdict for damages to prop. erty not taken, not contiguous to that taken, being "Contigu- on the opposite side of the railroad, whereas, by stipulation between the parties made and filed to obviate the necessity of filing cross bills, it was only stipulated that damages should be assessed as to "contiguous property." The objection is, in our opinion, susceptible of two answers, either of which is sufficient. In the first place, where a single compact body of a farm is crossed by a railroad disconnecting the body into two parts, each part is "contiguous" to the railroad so crossing it; and the taking of additional lands subsequently for right of way, or for constructing, as here, an additional track, is to be regarded only as an enlargement of the original quantity of land taken, and as fairly within the scope of design of the original taking, and so each of the several parts of the farm is to be regarded as contiguous to it. The farm may still be used by the means of crossings, as a unit, and therefore an injury to one part is an injury to, because a depreciation of value of, the whole; and if contiguity to any part of it causes this depreciation it will be sufficient. In the second place, it is not made to appear here that any appreciable damages were or could have been awarded for injury to land on the north side of the railroad, for it is not made to appear that any definite, substantial part of the farm lies on that side of the railroad.

Objection is urged that the damages assessed as to these two tracts are excessive. We are unable to concur in this. There was evidence, if believed, fully sustaining the amount of the verdict. Objection is also urged that the court erred in refusing and modifying instructions. Our attention is called to no specific rule in this respect which we regard as erroneThe instructions, as given at the instance of appellant, seem ample for the purposes of the case. The judgments in favor of Isaac Crill, John I. Crill, and Peter Jones are affirmed. The clerk will tax the costs in this court as to each of the judgments separately. Where the judgments are reversed they will be taxed against the appellees, and where they are affirmed against the appellant.

ous.

Affirmed in part, and reversed in part.

Damages Where Land is Condemned for Purpose of Obtaining Earth and Gravel. See Vezina v. The Queen (Can.), 44 Am. & Eng. R. Cas. 73.

What is to be Considered as a Single Tract of Land-Contiguous Lands.In an action for damages for injuries to lands by reason of the appropriation of a right of way for a railroad company across the same, damages must be confined to the tract of land over which the right of way is condemned, unless the owner has other lands contiguous thereto, and so situated with respect to the same that the value is appreciably augmented by their use in connection therewith as a single farm, and the appropriation of said right of way has destroyed or seriously interfered with such use. Leavenworth, N. & S. R. Co. v. Wilkins, (Kansas, March 7, 1891,) 26 Pac. Rep. 16. See also Currie v. Waverly & N. Y. Bay R. Co. (N. J.), 44 Am. & Eng. R. Cas. 100, note 106. Damages to Land as a Whole-Effect of Government Subdivisions. The damages allowed the landowner are such as are done to the body of his land as a whole. Such damages are not limited to the minor government subdivisions over which the road may pass, and the company cannot avoid payment of damages done the owner's entire farm by selecting out and describing in its petition the forty-acre tracts through which the road is Chicago, M. & St. P. R. Co. v. Baker, 102 Mo. 553,

located.

Facts Which Jury May Consider in Assessing Damages Inconvenient Shape of Land-Liability of Stock to be Killed-Fires from Passing Engines, etc.In Chicago, P. & St. L. R. Co. v. Graney, (Illinois, Nov. 5, 1890,) 25 N.E. Rep. 798, which was a proceeding to condemn a right of way for a railroad company, the court instructed the jury that

"in assessing the

damages to the owner of the land, they are justified in taking into consideration not only the value of the land actually taken, but all facts which contribute to produce damages to that not taken. As, if it appears from the evidence that the farm is cut in an inconvenient shape for cultivation or other farming purpose; or that the land is divided or cut off from the water, pastures, or improvements; or that any spring, well, or water supply. is destroyed or cut off from the dwelling house; or that there is danger from killing or injuring stock; or damage from fire from passing engines; or that there will be inconvenience in crossing or recrossing the right of if any, by reason of the field or farm being thrown open until the comway and track in going from one part of the farm to another, the injury, pany fences the right of way, and all damages that are reasonably probable that the effect of the instruction was that the jury were to take into con