#### Murdock, Respondent, vs. Beloit, Delavan Lake & Janesville Railway Company, Appellant.

*October 3*

October *24, 1911.*

*Interurban railways: Condemnation of land: Use of streets: Damages: Appeal.*

In condemnation proceedings to determine the compensation to be paid to tbe owner of abutting land on account of tbe operation of an interurban railway on streets already used by an urban railway, an award made by tbe jury and sustained by tbe trial court should not be disturbed on appéal if tbe evidence, in any fair view of it, afforded a legitimate basis for sucb award.

Appeal from a judgment of tbe circuit court for Rock county: Geoege Gbimm, Circuit Judge.

*Affirmed.*

Proceedings to determine compensation for taking plaintiff’s real estate for interurban electric railway purposes, under tbe power of eminent domain.

Commissioners, in due course, awarded plaintiff $/T50. Tbe company appealed and, in due course, tbe litigation was closed by a verdict fixing tbe amount at $1,320, and rendition of judgment tberefor with costs. Questions were saved for review discussed in tbe opinion.

Tbe following appeared by tbe evidence: Under a franchise permitting use of tbe premises for electric street railway purposes, tbe tracks, substantially as contemplated later in tbe more extensive use leading to tbis litigation, were laid in 1902 and used up to tbe latter time under a fifty-year franchise. Tbe service required cars to pass frequently. In July, 1908, a franchise was granted to use tbe tracks for interurban as well as urban purposes. It was contemplated that tbe cars doing interurban business would also do urban business while operated inside tbe city limits. Tbe former required somewhat larger cars than tbe latter. Tbe later franchise permitted use of cars for carrying freight and sucb are used to *101some extent. The substance of the evidence in support of the verdict is this:

Mr. Pember: I think the interurban railway damages plaintiff’s property $1,500 to $2,000. It interferes with the use of the street a good deal by horses. It interferes particularly in winter.

Mr. Carter: I think the railroad, with its two tracks and cars running as they do, damages the property twenty-five per cent: In winter they shovel snow on the side and block up the road. The company forces the snow clear up on the sidewalk. I do not know of that having occurred except last winter. I do not consider a street railway on any street an inconvenience. The tracks in question are an inconvenience because there are so many of them. The property is right on the street and you cannot get to it conveniently. Plaintiff’s business has fallen off half from what it used to be.

Mr. Conrad: I think the presence of the tracks and accessories and use thereof affects the value of the property. A street railway or interurban railway might be beneficial or otherwise to property. Sometimes one and sometimes the other, according to circumstances. The more people you bring to some kinds of property the better.

Mr. Kelley: I think the location of those tracks and running of cars frequently and tracks around both sides of that place, double- tracks on one side, affect the property twenty to twenty-five per cent. I think plaintiff’s property worth $10,000. It is the presence of the interurban tracks on two sides of the property which reduces the value of the property in my estimation twenty-five per cent.

Mr. Eller: In my judgment the railway damaged the property twenty-five per cent. The cars frighten horses. I cannot say that of the interurban more than ordinary street railway cars. I do not think the interurban railway injures my property any more than a street railway on the street in the same way.

*102Mr. Schmidley: Tbe laying of tracks and accessories and running of cars injures the value of the property twenty to twenty-five per cent. The railway cuts up the street. I would dislike to have it go by my place. A man is afraid to hitch a horse by plaintiff’s property. The farmers are afraid to drive their horses along there. The railway injures the property as a place of business.

Mr. Austin: The presence of the interurban injures plaintiff’s hay-scale business. I have a number of farms and have withdrawn my patronage, partly, from plaintiff on account of the railroad.

Mr. Scott: I have withdrawn my patronage, somewhat, from plaintiff since the interurban was established. The railroad damages the property. Oars frighten horses. *Mur-dochs*business has fallen off half. If the railway was not there he would get more business.

Mr. Owen: The railway causes more or less of a jam by plaintiff’s property. It is noisy there. When you want to telephone you cannot hear. Horses get frightened.

*Mr.*Murdoch, the plaintiff: The railway was put in about six years ago. Before that I did business of weighing with my scales to the amount of twenty-five to thirty loads a day. As soon as the railway was put in there was a change. I have carried on grain business on the property for many years. The running of cars in front of my property has injured my business. I will not say the railway has not been in eight years. I do not know of any one who has ceased to patronize my scales on account of the railroad, but before the track was put down I used to do a good share of the weighing.

There was other evidence to the effect that plaintiff used the property for a home, for renting rooms in a structure thereon, for maintaining bay-scale business, and for a hay and chicken barn. He testified that the railroad did not interfere with his rooming business, but greatly injured his weighing business. There was much evidence tending to show that the *103interurban business did not change the situation materially from what it would be with the urban business only.

The court instructed the jury that the limit of plaintiffs right to recover was the difference between the fair market value of his property before being used for interurban railway purposes, and the value under the conditions created by such use. The jury were admonished that if it were not for interurban business “defendant would still have the right, without compensation to plaintiff, to maintain tracks, poles, and wires thereon for operating a street railway;” that the only damage to be considered was such as the evidence showed was caused by the additional use for interurban business.

The cause was submitted for the appellant on the brief of *Charles E.*Pierce, and for the respondent on that of *Thos. 8. Nolcm.*

Maushall, J.

The court, in the instruction referred to in the statement, properly informed the jury as to the rule of damages. Counsel for appellant makes no complaint in respect thereto. No claim of error as to matters of law is made except that the evidence was wholly insufficient to support so large a verdict as the one rendered. Counsel appreciates that if the evidence, in any fair view of it, afforded the jury a legitimate basis for their conclusion, it cannot be disturbed •on appeal. The rule in that regard is elementary, and about as unbending as any regulation of litigation could well be. We must be mindful that the court below passed upon the matter under circumstances more favorable for arriving at a just result than are afforded here. To disturb the result would require overriding the conclusion of the jury, reinforced by that of the trial judge. Only a very clear case of error would justify doing so. Such is not, in the judgment •of the court, presented by the record before us.

*By the Court.*— The judgment is affirmed.