other cases, and which necessarily measure the worth of property by its value as an article of sale, or as a means of producing pecuniary returns. When, however, only a portion of a parcel of land is appropriated, just compensation may perhaps depend upon the effect which the appropriation may have on the owner's interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition in which it may leave the remainder in respect to convenience of use. If, for instance, a public way is laid out through a tract of land which before was not accessible, and if in consequence it is given a front, or two fronts, upon the street, which furnish valuable and marketable sites for building lots, it may be that the value of that which remains is made, in consequence of taking a part, vastly greater than the whole was before, and that the owner is benefited instead of damnified by the appropriation. Indeed, the great majority of streets in cities and villages are dedicated to the public use by the owners of lands, without any other compensation or expectation of compensation than the increase in market value which is expected to be given to such lands thereby; and this is very often the case with land for other public improvements, which are supposed to be of peculiar value to the locality in which they are made. But where, on the other hand, a railroad is laid out across a man's premises, running between his house and his out-buildings, necessitating, perhaps, the removal of some of them, or upon such a grade as to render deep cuttings or high embankments necessary, and thereby greatly increasing the inconveniences attending the management and use of the land, as well as the risks of accidental injuries, it will often happen that the pecuniary loss which he would suffer by the appropriation of the right of way would greatly exceed the value of the land taken, and to pay him that value only would be to make very inadequate compensation. It seems clear that, in these cases, it is proper and just that the injuries suffered and the benefits received by the proprietor, as owner of the remaining portion of the land, should be taken into account in measuring the compensation. This, indeed, is generally conceded; but what injuries shall be allowed for, or what benefits estimated, is not always so apparent. The question, as we find it considered by the authorities, seems to be, not so much what the value is of that which is taken, but whether what remains is reduced in value by the appropriation, and if so, to what extent; in other words, what pecuniary injury the owner sustains by a part of his land being appropriated. But, in estimating either the injuries or the benefits, those which the owner sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, should be altogether excluded, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken. of such incidental benefits and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken.1 1 In Somerville & Easton R. R. Co. ads. Doughty, 22 N. J. 495, a motion was made for a new trial on an assessment of compensation for land taken by a railroad 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 and 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 & Mount Pleasant Plank Road Co., 1 Iowa, 386, 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 of such improvement, and also a like value of the same, in the condition The question, then, in these cases, relates first to the value of the land 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 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 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 & 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 Richmond, &c. Co. v. Rogers, 1 Duvall, 135; Robinson v. Robinson, 1 Duvall, 162; Holton v. Milwaukee, 31 Wis. 27; Root's Case, 77 Pa. St. 276; East Brandywine, &c. R. R. Co. v. Ranck, 78 Pa. St. 454. [The compensation to which owner is entitled for land taken for a street includes in addition to the value of land taken such expenses as are naturally incident to the taking, like cost of moving fence and the like. City of Detroit v. Beecher, 75 Mich. 454, 42 N. W. 986, 4 L. R. A. 813; but not future and contingent expenses like assessments for improvements, nor for removing snow from sidewalks, for grading or paving. Id.] 1 Matter of Furman Street, 17 Wend. 649; Tidewater Canal Co. v. Archer, 9 Gill & J. 479; Sater 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; Moulton v. Newburyport Water Co., 137 Mass. 163. The compensation should be the fair cash market value of the land taken: Brown v. Calumet R. Ry. Co., 125 Ill. 600, 18 N. E. 283; including that of appurtenances used in connection with it: Chicago, S. F. & C. Ry. Co. v. Ward, 128 Ill. 349, 18 N. E. 828, 21 N. E. 562; but not the value of an illegal use: Kingsland v. Mayor, 110 N. Y. 569, 18 N. E. 435. While its value as mineral land may be considered: Doud v. Mason City, &c. Ry. Co., 76 Iowa, 438, 41 N. W. 65; the estimated specific value of minerals in it may not. Reading & P. R. R. Co. v. Balthaser, 119 Pa. St. 472, 13 Atl. 294. Where railroad land is taken, the reasonable expectation of future use is to be considered. Portland & R. R. R. Co. v. Deering, 78 Me. 61, 2 Atl. 670. The availability of land for a bridge site or ferry landing may be considered: Little Rock Junc. Ry. Co. v. Woodruff, 49 Ark. 381, 5 S. W. 792; Little Rock & F. S. Ry. Co. v. McGehee, 41 Ark. 202; but not the enhanced value due to the proposed improvement. Shenandoah V. R. R. Co. v. Shepherd, 26 W. Va. 672. Nor can the damage to the ferry privilege by building a bridge be compensated for. Moses v. Sanford, 11 Lea, 731. Compare Mason v. Harper's Ferry B. Co., 17 W. Va. 396. 2 Deaton v. Polk, 9 Iowa, 594; Parks But, in making this estimate, there must be excluded from consideration those benefits which the owner receives only in common v. Boston, 15 Pick. 198; Dickenson v. Fitchburg, 13 Gray, 546; Harvey v. Lackawanna, &c. R. R. Co., 47 Pa. St. 428; Newby . Platte County, 25 Mo. 258; Pacific R. R. Co. v. Chrystal, 25 Mo. 544; Somerville & Easton R. R. Co. ads. Doughty, 22 N. J. 495; Carpenter v. Landaff, 42 N. H. 218; Troy & Boston R. R. Co. v. Lee, 13 Barb. 169; Tidewater Canal Co. v. Archer, 9 Gill & J. 479; Winona & St. Paul R. R. Co. v. Waldron, 11 Minn. 515; Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn. 74; Nichols v. Bridgeport, 23 Conn. 189; Harding v. Funk, 8 Kan. 315; Holton v. Milwaukee, 31 Wis. 27. If the whole tract is not taken, the value of the part taken as part of the whole should be allowed. Chicago, B. & N. R. R. Co. v. Bowman, 122 Ill. 595, 13 N. E. 814; Balfour v. Louisville, &c. R. R. Co., 62 Miss. 508; Asher v. Louisville, &c. R. R. Co., 87 Ky. 391, 8 S. W. 854. As to how far different lots or subdivisions used as one tract are to be held one parcel within this rule, see Port Huron, &c. Ry. Co. v. Voorheis, 50 Mich. 506, 15 N. W. 882; Wilcox v. St. Paul, &c. Ry. Co., 35 Minn. 439, 29 N. W. 148; Cox v. Mason City, &c. R. Co., 77 Iowa, 20, 41 N. W. 475; Ham v. Wisconsin, &c. Ry. Co., 61 Iowa, 716, 17 N. W. 157; Northeastern Neb. Ry. Co. v. Frazier, 25 Neb. 42, 53, 40 N. W. 604, 609; Cameron v. Chicago, &c. Ry. Co., 42 Minn. 75, 43 N. W. 785; Potts v. Penn. S. V. R. R. Co., 119 Pa. St. 278, 13 Atl. 291. "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 which may be assessed for these particulars the company admits that it is bound to pay. Bu, 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 & Columbia R. R. Co. v. Partlow, 5, Rich. 428. And see Pennsylvania R. R. Co. v. Heister, 8 Pa. St. 445; Matter of Albany Street, 11 Wend. 149, 25 Am. Dec. 618; Upton v. South Reading Branch R. R., 8 Cush. 600; Proprietors, &c. v. Nashua & 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. 466; Little Miami R. R. Co. v. Collett, 6 Ohio St. 182; Bigelow v. West Wisconsin R. R. Co., 27 Wis. 478. In Newby v. Platte County, 25 Mo. 258, 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. Louis with the community at large in consequence of his ownership of other property,1 and also those incidental injuries to other property, ville, 5 Dana, 28. [In measuring compensation for a taking it is not competent to increase compensation by any amount as the increase of value caused by the projected improvement. Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. Rep. 861.] 1 Dickenson v. Inhabitants of Fitchburg, 13 Gray, 546; Childs v. New Haven, &c. R. R. Co., 133 Mass. 253; Newby v. Platte County, 25 Mo. 258; Pacific R. R. Co. v. Chrystal, 25 Mo. 544; Carpenter v. Landaff, 42 N. H. 218; Mount Washington Co.'s Petition, 35 N. H. 134; Penrice v. Wallis, 37 Miss. 172; Haislip v. Wilmington, &c. R. R. Co., 102 N. C. 376, 8 S. E. 926; Omaha v. Schaller, 26 Neb. 522, 42 N. W. 721; Railroad Co. v. Foreman, 24 W. Va. 662; 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 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. See Pittsburgh, &c. R. R. Co. v. Reich, 101 Ill. 157; Chicago, B. & N. R. R. Co. v. Bowman, 122 Ill. 595, 13 N. E. 814. [This rule is applicable as well where the claim is for a "damag ing" of property where such constitutional provisions exist as where it is for a "taking." Hickman v. Kansas City, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658; Randolph v. Board of Freeholders, 63 N. J. L. 155, 41 Atl. 960. See Wagner v. Gage County, 3 Neb. 237.] Remote and speculative benefits are not allowed. Whitely v. Miss., &c. Co., 38 Minn. 523, 38 N. W. 753. Locating a depot near a lot is not a special benefit. Washburn v. Milwaukee, &c. R. R. Co., 59 Wis. 364, 18 N. W. 328. 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. So in Mississippi. Natchez, J. & C. R. R. Co. v. Currie, 62 Miss. 506. And some other States have established, by their constitutions, the rule that benefits shall not be deducted. See cases, note 4, 825. That the damage and benefits must be separately assessed and returned by the jury where part only of the land is taken, see Detroit v. Daly, 68 Mich. 503, 37 N. W. 11. 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 & Columbia R. R. Co. v. Partlow, 5 Rich. 428; Mayor, &c. of Lexington v. Long, 31 Mo. 369. Benefits to the adjacent property owned in severalty may be deducted from damage to property owned jointly. Wilcox r. Meriden, 57 Conn. 120, 17 Atl. 366. |