CHARLESTON.

#### County Court of Calhoun County *v.*Lillian Sturm Force *et al.*

(No. 6278)

Submitted January 15, 1929.

Decided January 22, 1929.

*R. F. Kidd,*for plaintiffs in error.

*Bruce Ferrell,*Prosecuting Attorney, for defendant in error.

Maxwell, Judge:

The effort of plaintiffs in error to obtain compensation for two and a fraction acres of.their tract of about 102 acres of land in Calhoun county, which small parcel was taken by the county court for a public highway, and for damages to the residue, resulted in a verdict in favor of the county court.

The case was not tried in conformity with settled rules determinative of such matters. Over the obejetion of counsel for plaintiffs in error the court permitted numerous witnesses for the county court to. express their opinions on questions propounded by counsel for the county court as to whether the *582value of the farm of plaintiffs in error had been increased or decreased by reason of the construction of the improved highway. Their answers were to the effect that the value of the farm had been increased. This was error because it lost sight of the fact that the plaintiffs in error are entitled to recover the reasonable value of so much of their land as was actually taken without regard to whether there were special benefits or not. Special benefits, if any, may be set off against the damages to the residue of the tract, but not against the value of' the land taken. *Morrison*v. *Fairmont & Clarksburg Traction Co.,*60 W. Va. 441. “Two elements enter into the question of remuneration to a party whose private property is condemned for a public road, namely, just compensation for the land actually taken, and also a fair recompense for damage to the residue of the tract; beyond the peculiar benefits to be derived in respect to the residue of the land from the road to be established.” *Williamson et al.*v. *Read et al.,*106 Va. 453, 56 S. E. 174. This is hornbook law. 10 *R.*C. L. 153.

Another difficulty with the line of questions indicated is that it carried the implication that the plaintiffs in error had received special benefits when as a matter of fact there was no proof of such special benefits. The burden of proving special benefits rests upon the party charged with the injury. *Jones*v. *City of Clarksburg,*84 W. Va. 257.

Instruction number one of plaintiffs in error, refused, reads:

> “The court instructs the jury that you shall ascertain what will be a just compensation to the defendants for so much of their land as is taken by this proceeding, and that you shall ascertain and find the value of such lands from the evidence in this case without diminution by reason of anything appearing in the evidence, that is, the defendants are entitled to the value of the land taken without regard to either general or special benefits, and that value you shall ascertain from the evidence. And in addition to the compensation for the land taken, the defendants are likewise entitled to damages to the residue of their lands, if there appear any from the evidence, less, however, any special but not general benefits that may accrue to the *583residue of the land by reason of the work done or proposed to be done, and that special benefits can only be off-sets against damages to the residue, that is you shall ascertain what damage has been done to the residue of the said land, if any, by the work done or proposed to be done, and if you find such damage to the residue, you may then ascertain and find and set off against such damages to the residue so much as you believe from-the evidence has been established as special benefits to the property.”

It was error not to give this instruction which concisely and. correctly states the law. Other assignments of error are incident to the matters which we have discussed and are secondary thereto. It is not necessary that they be elaborated.

For the reasons aforesaid, the judgment of the trial court is reversed, the verdict set aside, and the case remanded for a new trial.

*Reversed.*