but counsel in their printed argument have very considerately abandoned most of them. This practice is to be commended. In the hurry of a trial at nisi Assignments prius many exceptions are often taken which coun of error. Statement of case. sel find are of no avail when they come to prepare briefs for the appellate court. By frankly withdrawing all assignments except such as are seriously relied on, counsel save themselves and the court of review much unnecessary labor, and secure attention more readily to the important matters involved in the record. It is often hard to find a kernel of wheat in a bushel of chaff. The matters discussed in the brief of counsel relate solely to the admission and rejection of evidence. From the evidence it appears that the premises through which appellant sought to condemn a right of way were situated on the Roaring Fork river, and were occupied and used by appellees for a planing mill and lumber yard, and that it was necessary to keep large quantities of lumber stored upon the premises. The location was peculiarly available and valuable as a millsite on account of its water power, which could be used for operating different kinds of machinery. Appellees were permitted to show the market value of the water power, and its adaptability to the operation of mining machinery and electric motors in and about the city of Aspen, although such uses had not been actually arranged for at the time. They were also allowed to show the cost of making certain changes in the flume which it was claimed would be rendered necessary by the construction of the railroad at the place designated, and also to show the loss which would be thereby occasioned to the water power. Evidence was also admitted showing the quantity and value of the lumber stored on the premises, and the cost of removing the same to a place less exposed to the increased danger from fire which the construction and operation of the railroad would occasion. To the admission of these several matters of evidence objections were interposed by counsel for appellant on the ground that the same were entirely speculative, and furnished no proper criterion for the assessment of compensation and damages. Landowner's measure of In proceedings under the act of eminent domain in this state, the owner's recovery is not limited to the value of the property for the special use to which it is devoted at the time of the taking or trial, nor to any particular use. The value of property must necessarily be a matter of opinion, and is, therefore, always somewhat speculative. The proper measure of the owner's recovery is: (1) Compensation for the land or prop. damages. erty actually taken equal to the true and actual value thereof at the time of the appraisement. (2) Damages to the residue of the land or property not taken, equal to the actual diminution of its market value, if any, for any use to which the same may reasonably be put; and in determining such damages the use to which the property taken is subjected, and the loss and inconvenience thereby occasioned, may be taken into consideration, as the construction and operation of a railroad. Eminent Domain Act, (approved February 12, 1877), § 17: City of Denver v. Bayer, 7 Colo. 113, 2 Am. & Eng. Corp. Cas. 465; Colorado Cent. R. Co. v. Allen, 13 Colo. 229, 44 Am. & Eng. R. Cas. 193; Lewis, Em. Dom. $$ 478-487; Pittsburgh, V. & C. R. Co. v. Vance, 115 Pa. St. 331; Johnson v. Freeport & M. R. R. Co., 111 Ill. 413, 25 Am. & Eng. R. Cas. 192; Weyer v. Chicago, W. & N. R. Co., 68 Wis. 180.' From the foregoing rules and decisions it will be observed that in arriving at the value of the property taken, and the damages, if any, to the residue, a wide range of evidence is admissible. It must be conceded that the matters admitted in evidence on the trial of this case, as above stated, have some bearing upon the compensation and damages to be awarded by the jury, though, without proper instructions from the court, the jury might be misled by such evidence. But as counsel do not urge in argument anything against the charge, and as upon examination the instructions appear to be full and fair, we must presume that the jury did not draw improper inferences from the evidence. Damages to residue not taken-Evi dence. It was shown in evidence in behalf of appellees that appellant, while constructing its roadbed, rolled or deposited Declaration of intention to repair damages. certain large boulders upon the land of appellees, some of them so large that it took six mules to move them out of the excavation. The amount of appellees' land covered by the deposit of the boulders is not shown in the record, though it was pointed out on the map at the trial. On the part of appellant, one witness testified that these boulders were deposited outside "temporarily, waiting for the track to be laid in order to take them off." The withdrawal of this latter testimony from the jury on motion of appellees is assigned for error. It would be an unsafe rule to prevent the owner from recovering the actual damages done to the residue of his premises by the mere declaration of a witness that it was the intention of the party doing the injury to repair the damage at some future time. No injustice was done by striking out this testimony. It was not shown nor offered to be shown that the boulders were ever removed by appellant. and, if appellees are allowed to recover for such damage, appellant cannot be required to remove the boulders. Dorlan v. East Brandywine R. Co., 46 Pa. St. 520. It has been suggested, though not in the briefs of counsel, that the damage occasioned by depositing the boulders upon the lands of appellees is not recoverable in a pro ceeding of this kind on the ground that such dam- Admission of age cannot be reasonably foreseen or anticipated evidence as a consequence from the construction or opera- without obtion of the railroad. Water Co. v. Middaugh, 12 Jection-ApColo. 438, 29 Am. & Eng. Corp. Cas. 358. Un- peal. doubtedly, if the trial and assessment of damages in the proceeding had taken place before the construction of the road, and the boulders had afterwards been thrown upon the land, appellees would not have been precluded from maintaining an independent suit for the trespass. But, as the damage was thus occasioned before the trial, it is not so clear that appellees must resort to a separate action therefor. It is unnecessary, however, to determine this question, for the evidence in relation to the boulders having been admitted. in behalf of appellees in the court below, without objection or exception, the propriety of including such damage, if any, in the assessment, cannot be questioned on this appeal. Counsel doubtless desired that whatever liabilities appellant was responsible for should be settled in one suit, and so did not raise the question above suggested. The judgment of the district court is affirmed. Measure of Damages for Taking Land-Difference in Values-What Values are to be Considered.-The true test of damages for the taking of land for railroad purposes, is the difference between the value of the entire lot as it was just before the taking, and the value of what is left after the taking. The value of the lot at the time of the taking is the value as it was, and not as it might have been with improvements, although the availability of the land for these is an element in its value as it is. And the value of the rest of the lot after the taking is also its value as it then is, not as it is when improved. The both values before and after the taking are the general market values of the particular lot, considering such advantages and disadvantages as are special and peculiar to it, without reference to the general rise and fall, common to it with other property in the neighborhood, consequent on the coming of the railroad. Harris. Schuylkill River E. S. R. Co., (Pennsylvania, April 6, 1891), 21 Atl. Rep. 590. In Kentucky, the rule in condemnation proceedings is to ascertain the value of the entire tract through which the road is to run, and then find the value of the whole tract after the appropriation of the strip necessary for the road; and the difference is the compensation to which the owner is entitled, excluding all enhancement in value resulting from the proposed improvement. Louisville & N. R. Co. v. Ingram, (Kentucky, Oct. 14, 1890), 14 S. W. Rep. 534. Where a railroad company condemns a right of way through a tract of land, the measure of damages is the value of the land taken, together with the difference on the day of the assessment of the damages, between the value of the land not taken with the railroad constructed through the tract, and its value, without the railroad, no regard being had to any enhancement in value by reason of the construction of the road. Louisville & N. R. Co. v. Asher, (Kentucky, Feb. 12, 1891), 15 S. W. Rep. 517. In Illinois, where land is condemned for railroad purposes, in proving the damage to that part of the land not taken, the measure of such damages is the difference in the market value of the land before and after the construction of the road. Chicago, P. & St. L. R. Co. v. Eaton, (Illinois, Jan. 24, 1891), 26 N. E. Rep. 575. Rental Value of Land as the Measure of Damages-Instructions.-In Baltimore & O. R. Co. v. Boyd, (Maryland, Dec. 5, 1890), 20 Atl. Rep. 902, it appeared that the appellees owned a small parcel of land, a portion of which was occupied by appellant for the construction of its railroad tracks. For this occupancy, which was not accompanied by any act indicating wantoness or malice, actions were brought covering different periods of time. The court instructed the jury, that reasonable damages for the occupation of the land would be the fair rental value of the ground during the time, and for the purpose it was occupied. The court further instructed the jury not to include in their assessment damages for the original construction of the roadbed, nor damages for the fee simple value of the land, nor to consider the peculiar value of the land to the railroad company, nor its necessity as a part of its line, nor the profits derived from its use. Held, that the instruction could not be considered as misleading. Held, also, that in such case the damages could not be confined to the rental value of the land at market rates to other parties. Right of Purchaser of Land to Compensation Subsequent to its Occupation by a Railroad but before Condemnation.-One who purchases, subsequent to the occupation of a railroad, land which it entered upon without consent of the owner, and which had not been condemned to its use, is entitled on condemnation to the same compensation that the owner could have recovered had he continued in ownership. San Antonio & A. P. R. Co. v. Ruby, (Texas Sup. Ct. March 10, 1891), 15 S. W. Rep. 1040. Damages Resulting from Overflow-Amendment of Articles to show that Overflow would be Prevented-Finding of Jury-Instructions.-In Chicago, & I. C. R. Co. v. Hunter, (Indiana, May 1, 1891), 27 N. E. Rep. 477, which was a proceeding by a railroad company to take certain land for a right of way, the landowner claimed that he would be permanently damaged by the overflow of water on his land caused by the construction of the railroad; but the jury found that he would not be so damaged. Held, that the refusal of the court to allow the company after the trial had begun to amend the articles of its incorporation so as to show that it agreed to construct such an embankment as would prevent any overflow, was not prejudicial error. And the action of the court in giving and refusing instructions in regard to damages growing out of such alleged overflow was not assignable as error, since it could not have damaged the plaintiff. View by Jury of Land Taken-Instruction to Estimate Damages from the Evidence. Where, upon the trial of an issue to assess damages to land arising from the construction of a railroad, the jury empaneled are sent to view the land, the purpose of the view is to enable them the better to understand the testimony, and not that they should make up their verdict from the view in disregard of the evidence adduced. Flower v. Baltimore & P. R. Co., 132 Pa. St. 524. Interest on Damages. Where it appears in proceedings to condemn land, and for damages assessed, that the railroad company has been in the enjoyment of the land, the damages assessed will bear interest from the time of the filing of the petition. Newgass v. St. Louis, A. & T. R. Co., (Arkansas, Jan. 17, 1891), 15 S. W. Rep. 188, LOUISVILLE, ST. LOUIS & TEXAS R. Co. ข. BARRETT et al. (Kentucky Court of Appeals, April 18, 1891.) Eminent Domain-Misconduct of Commissioners Discussion of Case With One Party.-In proceedings to take land for railroad purposes, it appeared that a person who was the guardian of one of the landowner's and agent of another, went upon the land with the commissioners, the other side not being represented, and pointed out the route of the proposed road, and the damage that would be done by its construction. Held, that a motion to quash the report of the commissioners should be denied, where it appeared that there had been two jury trials and verdicts for the defendants, without reference to the report of the commissioners, and the appeal is taken from judgment upon the last verdict. Same Damages-Giving Double Damages for the Same Thing-Instruc tions. In a condemnation suit, the jury were instructed that in fixing the amount of the direct damages, they should not only consider the value of the land taken, considering its relation to the entire tract, but also the injuries, if any, directly resulting from the taking to the remainder of the tract; the injuries contemplated being those which depreciate the value of the land by reason of the shape in which it may be left, the easements impaired or destroyed, and any such additional improvements, if any, as may be necessary to its reasonable enjoyment; such injuries to be considered, however, only so far as they depreciated the value of the land; the finding for direct damages not to exceed the difference in the actual value of the land immediately before and after the appropriation. Held, that the jury were not authorized by these instructions to find damages twice for the same thing, viz.: to give the value of the strip taken considering its relation to the balance of the tract, and also damages on account of the awkward shape into which the land left must be thrown. Same-Damages for the Cost of Fencing. It is proper for the jury, in assessing damages for a right of way appropriated for a railroad, to include in their verdict damages for the cost of fencing, where it is provided by statute (Gen. St. Ky. p. 759) that where a railroad has been built ten years, owning its right of way, and is operated and assessed for taxes, it must erect and maintain division fences equally with other landowners, but that the provision of the act shall not apply where it has condemned its right of way and paid the vendor damages, in which the cost of fencing was considered and allowed. APPEAL from Daviess Circuit Court. Sweeney, Ellis & Sweeney, for appellees. HOLT, C. J.-In this proceeding to condemn a right of way through the land of the appellees a total damage of $7,914.20 was allowed by the commissioners appointed by the county Exceptions having been filed, a trial by jury resulted court. |