, 1891-12-16
MOTION DENIED
TO DISMISS AN APPEAL In A
CASE
Because the Judge Who Fried 1T,
settled 1t After he Had
Left office.
CONTINUED from Fridays issue.
OPINION ON THE MERITS.

SGCG1ea 4C AFTER HE Had
Left office.
CONTINUED from Fridays issue.
OPINION ON THE MERITS.
This was a proceedin instituted by the
appellant for the appropriation Of certain
lands for right Of way for its line of rail
way, and to ascertain and determine the
compensation to be made for such taking.
The land proposed to be taken was a strip
one hundred feet wide through a larger
tract described in appellants petition, and
therein alleged to belong to the respond
ents. The respondents, in their amended
answer, set up title and asked for damages
to the identical parcels of land as described
in the appellants petition, and for none
other. Upon the trial respondents sought
to recover damages to an eighty acre tract
also owned by them, but which was not
described in the pleadings in any way, and
which the right of way in question did not
touch. The claim for damages being
based upon the fact that it adjoined the
land described through which the right of
way proposed to be taken did run, and that
it all constituted one farm tract
Upon the Offering Of testimony by re-
spondents relating to such damages, the
appellant objected to its Introduction on
the ground that the respondents by only
alleging in their answer that they were
damaied in the lands there described, had
Wd4N6Q dl1y IlSLlG Gl6y LulS4I 11dYG udQ 10
recover what damages they may have suf-
fered in the balance of the tract, and that
as no mention had been made or questions
raised as to any such damage in any of the
pleadings, such proof was inadmissable
hereunder.
The court overruled the objection, and
admitted the proof, and this is assigned as
error. The respondents contend that the
law does not require the petitioner to de-
scribe any land except that proposed to be
taken for the right OF way itself, and that
they were not required to answer at all,
and that consequently they were entitled
to offer proof of the damage to the whole
tract, but we think this claim is untenable,
under the circumstances of this case, how
ever the law may be as to the description
required to be set forth. or a. to the plead
ings required. Here the respondents did
answer and raise an issue as to the amount
in which they would be injured, resulting
from the damage to the particular tracts
described III the petition. and which they
described in their answer, and made no
claim of damages to any other tract. Under
such circumstances they should not have
been allowed to prove that they were dam
aged to further extent by reason of dam
ages resulting to this other undesciibed
tract of which the appellant had no notice
SO that they might be prepared to show
the character and value of such other land
and such other matters as would form a
basis for the estimation of the amount of
the damages resulting to it, if any.
A point is made As to the basis upon
which the respondents were allowed to re-
cover damages which was the value of the
land at the time Of its appropriation. The
appellant contends, and there was testi-
mony to show, that this land was consider
ably enhanced in value in consequence of
this projected line Of railway which was
then in process of construction. The APP
pelIant contends that this increased value
which was due to the building of the very
road for which the right of way through
this land was sought, and to nothing else,
should not have been taken into considera-
tion in estimating the damages. While
the respondents claim that they were en-
titled to have this considered by virtue of
Section 16, Article of our state constitu-
tion which provides that compensation in
such cases shall be ascertained "irrespect-
i've Of any benefit from any improvement
proposed by such corporation" The
position taken by appellant is the cor
rect one. The basis for the estimation of
the damages is the value Of the land as it
would be at the time Of the approximation
if the road was not to be built. TIE CON
stitutional provision referred to only pro-
vides that the benefits, if any, of the
proposed Improvements shall not be al
lowed to offset or diminish the damages
sustained. If the prospect OF this pro-
posed road had greatly enhanced the value
of the respondents land, as claimed, it
would be highly inequitable to require the
appellant to pay damages upon the basis
of this increased value when it would not
be entitled to have the benefit, if any, to
the land eft taken from the value of the
land appropriated. The reason for allow
ing the lanu owner in such cases the bene-
fits arising to the land not taken because
he only receives such benefits in common
with other land owners in the vicinity can
hardly be allowed to extend to the length
of allowing him to recover the increased
value Of the land taken, or of damages es-
timated upon that basis, to the land left,
in consequence Of the taking of the par
ticular strip The measure of damages
would be the difference in amount between
the value of the tract as a whole, not in
Guiding therein the increased value, II any,
occasioned blythe proposed improvements,
and the value of the land left, and not in
Guiding therein such increased value.
Judgment reversed. SCOTT, Judge.
We concur: Anders, 9. j.; Hoyt, j.;
Stiles, j.
L ann unable to agree with the reasoning
of the majority or with the CONCLUSION
reached by them. | think that the dis
tinctions sought to be made are more fam
ciful than real The code provides that
the court shall in every stage of an action
disregard any error or defect in pleadings,
or proceedings, which shall not effect the
substantial rights Of the adverse party,
and that before the prevailing party shall
be put to the trouble and expense Of trial
of his cause in the Supreme Court, that
the statement Of facts shall be settled, and
prescribes the manner in which 1t shallbe
settled. This is a protection given by law
to the respondent, and he is as much Just1-
fed i'll insisting on this right as any other
If a complaint does not state facts sutfi-
cient to constitute a cause Of action, the
party defendant has perfect right to
demur to it, albeit it tends to prevent
a hearing on the merits, and the
demurrer will be subjected to the same test
under the code that any other pleading
will, for the law makes them equally
proper pleadings. When demurrer Is
waged, a liberal construction it is true will
be given to the complaint, but it does not
follow that an illiberal construction must
be given to the demurrer; and SO with re-
gard to motion. If the law has been
substantially complied with, the motion
must be denied, but there is no back action
influence supposed to operate against the
motion, and if it substantially complies
with tbs requirements Of the statute, and
the opposite party has not been mlslead,
must be held sufficient for it is proceed
ing in a certain stage of an action, add
falls consequently within the provisions OF
the code. In this, instance II can
not be said that the appellant was
misled, It was evident by the motion that
respondents objected to a hearing on the
merits for the reason that an eX-ludge had
signed the certificate to the statement OF
facts, instead of the de facto judge. 1t is
true that the respondents ask to have the
appeal dismissed, but the thing objected to
vas a consideration by this court of an al
Ieged statement of facts. This was the sub
iect discussed, this was the point on which
authorities were cited. The reasons given
in the motion itself notify the appellant as