, 1892-06-30
NEW TRIALORDERED
(Concuded from Wednesday,


have been prejudiced thereby, for the
court, on motion of appellants counsel,
struck out all of the Objectionable testi-
mOny, for the reason that that matter was
covered by a stipulation between the par
ties which was on file in the cause.
Appellant further contends that the
court erred in permitting witnesses to tes-
tify as to the cost Of building fences along
the line OF the right OF way and of a wagon
crossing over the same, and in its inStruc-
t1on to the jury in regard thereto. The in
structiOns complained of are as follows:
"Now on the question of building fence,
II you ind that 1t would be necessary for
respondents or defendants in this case, in
order to continue using this land for the
purpose to which it is devoted now, for
them to have a fence along the track, or
on both sides of the track, then you will
allow him whatever it is reasonably worth
to put up substantial fence along either
or both sides Of the track as the testimony
has shown"
"And further, if you find from the evil
dence that 1T is necessary for respondents
to have a railroad crossing across the
track and right of way of the railroad and
that it is necessary for them to have this
for use for the purposes for which the land
is devoted then you will say how much it
will take to build a substantial crossing,
and In case that fact has not been estab-
hshed, you can allow a reasonable amount
for the building of such crossing, if you
ind such crossing is necessary"
While the first of these instructions of
the learned judge is not unsupported by
authority, we nevertheless think it is
justly open to criticism, and should not
have been given. The amount of damages
the owner of the land is entitled to recover
is the market value of the land actually
taken, irrespective Of any benefit from any
proposed improvement, together with any
depreciation in the market value of the re-
mainder caused by the taking Of the right
of way.
If, by reason of such taking, additional
fencing is made necessary, i'll order that
the residue of the land may be convent
emily used as the owner may desire to use
it, the burden of constructing such fence,
in so far as it depreciates the market value
of the land, is a proper element to be con-
sidered in estimating the damages. Lewis
on EN-. Dom. S498. The damages should be
estimated in respect to the land, as land,
and whatever casts a burden upon it, and
thereby detracts from its market value
should be taken into consideration. The
cost Of necessary fencing and crossings
may be shown to aid the jury in determin-
ing the extent of the burden thereby i'm
posed upon the land. Lewis on Eminent
Domain supra. Stone v. Heath, 1876 Mass.
COL.
But as it is not certain in all cases, and
perhaps not in any case, that the land will
be deprecated in value in the exact proper
ton to the cost of fencing and crossings,
no specific sum should be allowed for
fences or crossings as distinct items of dam
age, but the allowance should be made
only to the extent of the depreciation of
the value of the land, See Lewis on EN-.
Domain S498. Henry VS.. Dubuque & Pa
cihc r. r. Co., 2 Cole (Iowa) 228. Ken
nedy VS.. Dubuque & Pacific r.
R. Co., 2 Cole Iowa 521. Han
rahan VS.. Fox ct al, AZ Iowa 102 Penn &C.
Canal Co. VS., Bunnell, 81 Penn. Ala. Pitts
burg B. & B. r. Co. VS.. McClOskey, 1 At
lantic R. 500. Pittsburg V. & G. Ry. Co.
VS.. Vance, Atlantic r. 764 Curtin VS..
Nittany Val. r. Co., 10 Atlantic Rep. 740.
Under some circumstances the value of
the premises might be greatly enhanced by
the building of fence, and, in such cases,
it would be manifestly unjust to compel
the railroad company to build, or, which
amounts to the same thihg, pay for build
ing it in the absence Of any statute requir-
ing it to do so.
The judge charged the jury, in effect,
that the measure of damages would be the
difference between the market value of the
premises Immediately before and after the
appropriation of the right of way, IRE
spective of any benefits from the proposed
improvement. He should then have told
the jury that in order to arrive at this
difference in value, they might take into
COuSlQcTdllOu bQb DuIOB0 OF Increased
fencing insofar as the value of the land
was thereby deprecated, instead of charg-
ing them to allow whatever the evidence
showed it was reasonably worth to put up
a substantial fence along either or both
sides of the track. The instruction respect
ing the crossing is especially Objectionable
for the jury were thereby directed to find
the reasonable cost of constructing cross
ing if found to be necessary, even although
the same had not been established by the
evidence. The jury was not at liberty to
determine that or any other question upon
mere conjecture without proof.
Appellant also complains of the ruling
of the trial judge in permitting the ques.
ton "Whatis the value of this land for the
purpose Of raising hops" to be propOunded
to and answered by a witness. 1t is
claimed that this evidence was inadmissi-
BILE and misleading for the reason that the
land had never been used for rails
ing hops and that the value put
upon it for that purpose was in
excess of the real value. Before this
question was asked it had been shown that
this land was very fertile and productive,
and that it was underdrained and thor
oughly prepared for agricultural purposes.
1t had been devoted to raising hay for sew
eral previous years, not because nothing
else would grow upon it, but because the
hay crop was more profitable than any
other, The witness answered that the
land was worth three hundred dollars an
acre for raising hops; but other witnesses
had already testified that it was worth that
sum for general agricultural purposes and
especially for raising hay. Appellant
could not, therefore, have been prejudiced
by the answer to the question, even if we
concede that the question itself was i'm
proper, which we do not.
The market value of property is its value
for any use to which it may be adapted; ;
and in estimating its value all the uses of
which the property is susceptible should be
considered and not merely the condition in
which it may be at the time and the use to
which it may have been put by the owner
Lewis on En-. Domain 478.
In San Diego Land & Town Co. VS.. Neal
20 Pac R., 372 this question was thor
oughly discussed and many authorities
cited and reviewed, and it was there held
that it was proper to show the value of the
land sought to be condemned "as a reser-
vOir SITE"
In Boom Co. v. Patterson, 98 U. S. 4O3,
three islands in the Mississippi river were
sought to be appropriated for the purpose
of boom. The boom had never been
used for such purpose, and for any other
purpose was of little value But in view
of its peculiar adaptability to boom pur-
poses it was found to have a great value.
The supreme court of the United States
sustained verdict for $9353.83, although
the value of the property for general uses
was but $500. With reference to the ques-
ton of value where land is taken by the
exercise of the right of eminent domain,
the court, by Field, j.. said: "In deter
mining the value of land appropriated for
general public purposes, the same consid-
erations are to be regarded as in the sale Of
property between private parties. The in
quiry in such cases must be what is the
property worth on the market, viewed not
merely with reference to the uses to which
it is at the time applied, but with reference
to the uses to which it is plainly adapted
that is to say, what is it
worth from its availability for val
liable uses. Property is not to
be deemed worthless because the owner al
- - oofo To no 4 ae