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The question, then, in these cases, relates first to the [*567] value of the land appropriated; which is to be assessed

road company, on the ground that the judge in his charge to the jury informed them that they were authorized by law to ascertain and assess the damages sustained by the plaintiff to his other lands not taken and occupied by the defendants; to his dwelling-house, and other buildings and improvements, by reducing their value, changing their character, obstructing their free use, by subjecting his buildings to the hazards of fire, his family and stock to injury and obstruction in their necessary passage across the road, the inconvenience caused by embankments or excavations, and, in general, the effect of the railroad upon his adjacent lands, in deteriorating their value, in the condition they were found, whether adapted for agricultural purposes only, or for dwellings, stores, shops, or other like purposes."

"On a careful review of this charge," says the judge, delivering the opinion of the court, "I cannot see that any legal principle was violated, or any unsound doctrine advanced. The charter provides that the jury shall assess the value of the land and materials taken by the company, and the damages. The damages here contemplated are not damages to the land actually occupied or covered by the road, but such damages as the owner may sustain in his other and adjacent lands not occupied by the company's road. His buildings may be reduced in value by the contiguity of the road, and the use of engines upon it. His lands and buildings, before adapted and used for particular purposes, may, from the same cause, become utterly unfitted for such purposes. The owner may be incommoded by high embankments or deep excavations on the line of the road, his buildings subjected to greater hazard from fire, his household and stock to injury or destruction, unless guarded with more than ordinary care. It requires no special experience or sagacity to perceive that such are the usual and natural effects of railroads upon the adjoining lands, and which necessarily deteriorate not only their marketable but their intrinsic value. The judge, therefore, did not exceed his duty in instructing the jury that these were proper subjects for their consideration in estimating the damages which the plaintiff might sustain by reason of the location of this road upon and across his lands." And in the same case it was held that the jury, in assessing compensation, were to adopt as the standard of value for the lands taken, not such a price as they would bring at a forced sale in the market for money, but such a price as they could be purchased at, provided they were for sale, and the owner asked such prices as, in the opinion of the community, they were reasonably worth; that it was matter of universal experience that land would not always bring at a forced sale what it was reasonably worth, and the owner, not desiring to sell, could not reasonably be required to take less. In Sater v. Burlington and Mount Pleasant Plank Road Co. 1 Iowa, 393, Isbell, J., says: "The terms used in the constitution, just compensation,' are not ambiguous. They undoubtedly mean a fair equivalent; that the person whose property is taken shall be made whole. But while the end to be attained is plain, the mode of arriving at it is not without its difficulty. On due consideration, we see no more practical rule than to first ascertain the fair marketable value of the premises over which the proposed improvement is to pass, irrespective

[*568] with reference to what it is worth for sale, in view of the uses to which it may be applied, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it. Second, if 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.2

of such improvement, and also a like value of the same, in the condition in which they will be immediately after the land for the improvement has been taken, irrespective of the benefit which will result from the improvement, and the difference in value to constitute the measure of compensation. But in ascertaining the depreciated value of the premises after that part which has been taken for public use has been appropriated, regard must be had only to the immediate, and not remote, consequence of the appropriation; that is to say, the value of the remaining premises is not to be depreciated by heaping consequence on consequence. While we see no more practical mode of ascertainment than this, yet it must still be borne in mind that this is but a mode of ascertainment; that, after all, the true criterion is the one provided by the constitution, namely, just compensation for the property taken." See this rule illustrated and applied in Henry v. Dubuque and Pacific R.R. Co. 2 Iowa, 300, where it is said: "That the language of the constitution means that the person whose property is taken for public use shall have a fair equivalent in money for the injury done him by such taking; in other words, that he shall be made whole so far as money is a measure of compensation, we are equally clear. This just compensation should be precisely commensurate with the injury sustained by having the property taken; neither more nor less." And see the recent Kentucky cases of Richmond, &c., Co. v. Rogers, 1 Duvall, 135; Robinson v. Robinson, ib. 162.

Matter of Furman Street, 17 Wend. 669; Tide-Water Canal Co. v. Archer, 9 Gill & J. 480; State v. Burlington, &c., R.R. Co. 1 Iowa, 386; Parks v. Boston, 15 Pick. 206; First Parish, &c. v. Middlesex, 7 Gray, 106; Dickenson v. Inhabitants of Fitchburg, 13 Gray, 546; Lexington v. Long, 31 Mo. 369.

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2 Denton v. Polk, 9 Iowa, 594; Parks v. Boston, 15 Pick. 198; Dickenson v. Fitchburg, 13 Gray, 546; Newby v. Platte County, 25 Mo. 258; Pacific R.R. Co. v. Chrystal, ib. 544; Somerville and Easton R.R. Co. ads. Doughty, 2 Zab. 495; Carpenter v. Landaff, 42 N. H. 218; Troy and Boston R.R. Co. v. Lee, 13 Barb. 169; Tide-Water Canal Co. v. Archer, 9 Gill and J. 480; Winona and St. Paul R.R. Co. v. Waldron, 11 Minn. 515; Nicholson v. N. Y. and N. H. R.R. Co. 22 Conn. 74; Nichols v. Bridgeport, 23 Conn. 189. Compensation is an equivalent for property taken, or for an injury. It must be ascertained by estimating the actual damage the party has sustained. That damage is the sum of the actual value of the property taken, and of the injury done to the residue of the property by the use of that part which is taken, The benefit is, in part, an equivalent to the loss and damage. The loss and damage of the defendant is the value of the land the company has taken, and the injury which the location and use of the road through his tract may cause to the remainder. The amount

But, in making this estimate, there must be excluded [*569] from consideration those benefits which the owner receives only in common with the community at large in consequence of his ownership of other property,1 * and also those [*570]

which may be assessed for these particulars the company admits that it is bound to pay. But as a set-off, it claims credit for the benefit the defendant has received from the construction of the road. That benefit may consist in the enhanced value of the residue of his tract. When the company has paid the defendant the excess of his loss or damage over and above the benefit and advantage he has derived from the road, he will have received a just compensation. It is objected that the enhanced salable value of the land should not be assessed as a benefit to the defendant, because it is precarious and uncertain. The argument admits that the enhanced value, if permanent, should be assessed. But whether the appreciation is permanent and substantial, or transient and illusory, is a subject about which the court is not competent to determine. It must be submitted to a jury, who will give credit to the company according to the circumstances. The argument is not tenable, that an increased salable value is no benefit to the owner of land unless he sells it. This is true if it be assumed that the price will decline. The chance of this is estimated by the jury, in the amount which they may assess for that benefit. The sum assessed is therefore (so far as human foresight can anticipate the future) the exponent of the substantial increase of the value of the land. This is a benefit to the owner, by enlarging his credit and his ability to pay his debts or provide for his family, in the same manner and to the same extent as if his fortune was increased by an acquisition of property." Greenville and Columbia R.R. Co. v. Partlow, 5 Rich. 437. And see Pennsylvania R.R. Co. v. Reiley, 8 Penn. St. 445; Matter of Albany Street, 11 Wend. 153; Upton v. South Reading Branch R.R. 8 Cush. 600; Proprietors, &c. v. Nashua and Lowell R.R. Co. 10 Cush. 385; Mayor, &c., of Lexington v. Long, 31 Mo. 369; St. Louis, &c., R.R. Co. v. Richardson, 45 Mo. 468; Little Miami R.R. Co. v. Collett, 6 Ohio, N. s. 182. In Newby v. Platte County, 25 Mo. 358, the right to assess benefits was referred to the taxing power; but this seems not necessary, and indeed somewhat difficult on principle. See Sutton's Heirs v.

Louisville, 5 Dana, 30-34.

1 Dickenson v. Inhabitants of Fitchburg, 13 Gray, 516; Newby v. Platte County, 25 Mo. 258; Pacific R.R. Co. v. Chrystal, ib. 544; Carpenter v. Landaff, 42 N. II. 218; Mount Washington Co.'s Petition, 35 N. H. 134; Penrice v. Wallis, 37 Miss. 172; Palmer Co. v. Ferrill, 17 Pick. 58; Meacham v. Fitchburg R.R. Co. 4 Cush. 291, where the jury were instructed that, if they were satisfied that the laying out and constructing of the railroad had occasioned any benefit or advantage to the lands of the petitioner through which the road passed, or lands immediately adjoining or connected therewith, rendering the part not taken for the railroad more convenient or useful to the petitioner, or giving it some peculiar increase in value compared with other lands generally in the vicinity, it would be the duty of the jury to allow for such benefit, or increase of value, by way of set-off, in favor of the railroad company; but, on the other hand, if the construction of the railroad, by increasing the convenience of the

incidental injuries to other property, such as would not give to other persons a right to compensation, while allowing those which directly affect the value of the remainder of the land not taken; such as the necessity for increased fencing, and the like.2 And if an assessment on these principles makes the benefits equal the damages, and awards the owner nothing, he is nevertheless to be considered as having received full compensation, and consequently as not being in position to complain.3

people of the town generally as a place for residence, and by its anticipated and probable effect in increasing the population, business, and general prosperity of the place, had been the occasion of an increase in the salable value of real estate generally near the station, including the petitioner's land, and thereby occasioning a benefit or advantage to him, in common with other owners of real estate in the vicinity, this benefit was too contingent, indirect, and remote to be brought into consideration in settling the question of damages to the petitioner for taking his particular parcel of land. Upton v. South Reading Branch R.R. Co. 8 Cush. 600. It has sometimes been objected, with great force, that it was unjust and oppressive to set off benefits against the loss and damage which the owner of the property sustains, because thereby he is taxed for such benefits, while his neighbors, no part of whose land is taken, enjoy the same benefits without the loss; and the courts of Kentucky have held it to be unconstitutional, and that full compensation for the land taken must be made in money. Sutton v、 Louisville, 5 Dana, 28; Rice v. Turnpike Co. 7 Dana, 81; Jacob v. Louisville, 9 Dana, 114 And some other States have established, by their constitutions, the rule that benefits shall not be deducted. See Deaton v. County of Polk, 9 Iowa, 596; Giesy v. Cincinnati, W. and Z. R.R. Co. 4 Ohio, N. s. 308; Woodfolk v. Nashville R.R. Co. 2 Swan, 422. But the cases generally adopt the doctrine stated in the text; and if the owner is paid his actual damages, he has no occasion to complain because his neighbors are fortunate enough to receive a benefit. Greenville and Columbia R.R. Co. v. Partlow, 5 Rich. 438; Mayor, &c., of Lexington v. Long, 31 Mo. 369.

1 Somerville, &c., R.R. Co. ads. Doughty, 2 Zab. 495; Dorlan v. East Brandy wine, &c., R.R. Co. 46 Penn. St. 520; Proprietors, &c. v. Nashua and Lowell R.R. Co. 10 Cush. 385; Louisville and Nashville R.R. Co. v. Thompson, 18 B. Monr. 735; Winona and St. Peter's R.R. Co. v. Denman, 10 Minn. 267.

2 Pennsylvania R.R. Co. v. Reiley, 8 Penn. St. 445; Greenville and Columbia R.R. Co. v. Partlow, 5 Rich. 439; Dearborn v. Railroad Co. 4 Fost. 179; Carpenter v. Landaff, 42 N. H. 220; Dorlan v. East Brandywine, &c., R.R. Co. 46 Penn. St. 520; Winona and St. Peter's R.R. Co. v. Denman, 10 Minn. 267; Mount Washington Co.'s Petition, 35 N. H. 134. Where a part of a meetinghouse lot was taken for a highway, it was held that the anticipated annoyance to worshippers by the use of the way by noisy and dissolute persons on the Sabbath could form no basis for any assessment of damages. First Parish in Woburn v. Middlesex County, 7 Gray, 106.

3 White v. County Commissioners of Norfolk, 2 Cush. 361; Whitman v. Boston and Maine R.R. Co. 3 Allen, 133; Nichols v. Bridgeport, 23 Conn. 189.

The statutory assessment of compensation will cover all consequential damages which the owner of the land sustains by means of the construction of the work, except such as may result from * negligence or improper construction,1 and for which [*571] an action at the common law will lie, as already stated.

But it is not competent for the commissioners who assess the compensation to require that which is to be made to be in whole or in part in any thing else than money. An award of "one hundred and fifty dollars, with a wagon-way and stop for cattle," is void, as undertaking to pay the owner in part in conveniences to be furnished him, and which he may not want, and certainly cannot be compelled to take instead of money. Central Ohio R.R. Co. v. Holler, 7 Ohio, N. s. 225.

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Philadelphia and Reading R.R. Co. v. Yeiser, 8 Penn. St. 366; Aldrich v. Cheshire R.R. Co. 1 Fost. 359; Dearborn v. Boston, Concord, and Montreal R.R. Co. 4 Fost. 179; Dodge v. County Commissioners, 3 Met. 380; Brown v. Providence, W. and B. R. R. Co. 5 Gray, 35; Mason v. Kennebec and Portland R.R. Co. 31 Me. 215.

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