cannot be removed except by his consent, or when necessary for the improvement of the road. Where the railroad company make the crossings at their own expense, no damages for them should be allowed to the owner. The erection of farm-crossings is under the control of the railroad, and the owner has no right to make them when and where he pleases. His convenience must yield to the public safety. The company are bound to erect crossings according to the plan of their road, because on that basis it is presumed that the damages have been assessed. The company is not bound to construct bridges or viaducts, except as stated on their plan.3 Crossings include crossings under as well as over a railroad, and if a crossing under is necessary and proper, the jury are bound to assess the damages, on the theory that the proper crossings should be forever maintained. The owner is entitled to crossings when the railroad separates the house from the highway; and the crossings should be suitable, and heavy gates are not of that nature." § 214. Failure of company to make crossings. The remedy for failure to make crossings is, to sue for penalty given by statute, or by bill in equity to compel the construction, but not by assessment of damages under the statute." For failure to make crossings over public roads, the remedy is by indictment. Where the company is compelled by statute to make crossings, the interest and convenience of the owner should be first considered; and if the places are not designated on the map, it is presumed that the company 1 March v. Portsmouth R. R., 19 N. H. 372. 2 Connecticut River R. R. v. Holton, 32 Vt. 43; Presbrey v. Old Colony R. R., 103 Mass. 1; Alton R. R. v. Baugh, 14 Пl. 211. 3 Kyle v. Auburn R. R., 2 Barb. Ch. 489. will make them in their proper places for the owner, and for a failure to make them in proper and convenient places the company would be liable in damages. The company cannot be compelled, without compensation, to make new crossings for streets instituted after the condemnation has been had. The English Lands Clauses Consolidation Act provides that owners and occupiers of adjoining lands may cross the track of the railroad at any point, until the company provides a communication, without interfering with the operation of the railway.3 § 215. Bridges over cuts - - Ditches. If the railroad company is compelled by statute to erect bridges over cuts, it is error to assess as part of the damages the cost of a bridge over the cut. The duty of the railroad company can better be enforced in another manner. The railroad company cannot be compelled to make ditches, but damages may be allowed for the expense of ditches rendered necessary by the construction of the railroad.5 1 Wheeler v. Rochester R. R., 12 Barb. 227. 2 Illinois Central R. R. v. Bloomington, 76 Ill. 447. 38 Vict., c. 20, % 74. Philadelphia R. R. v. Trimble, 4 Whart. 47. 5 St. Louis R. R. v. Mollett, 59 Ill. 235. 262 CHAPTER XX. OF THE VARIOUS DAMAGES PRESUMED TO BE INCLUDED IN THE ASSESSMENT. 216. All damages presumed to have been considered in the assessment. 217. Damages arising afterward Unforeseen damages. 218. Assessment after construction of the improvement. 219. Change in plan after assessment. 220. No compensation for damages caused by negligent or tortious acts. 221. Damages while land is unlawfully occupied. 222. Trespasses on lands adjoining. 223. Value of erections on land condemned - Ownership of buildings. 224. Continuing buildings already commenced. § 216. All damages presumed to have been considered in the assessment. - All elements of damages should be presented to the commissioners or jury assessing the damages. The appraisement embraces all past, present, and future damages which the improvement may thereafter reasonably produce.1 Damages resulting from tearing down fences, or expense in construction of new fences, or, in fact, any damage not resulting from negligent or unskilful construction, is presumed to be included in the assessment. The fact that the land over which the road passed was mineral land is presumed to have been considered, and Sawyer v. Keene, 47 N. H. 173; Waterman v. Connecticut R. R., 30 Vt. 610; Furniss v. Hudson River R. R., 5 Sandf. 551; Van Schoick v. Delaware Canal, 20 N. J. L. 249; Trenton Water Co. v. Chambers, 13 N. J. Eq. 199; Chesapeake Canal v. Grove, 11 Gill & J. 398; Baltimore R. R. v. Magruder, 34 Md. 79; Montmorency Road v. Stockton, 43 Ind. 328; Lafayette Plank-Road v. New Albany R. R., 13 Ind. 90; Missouri R. R. v. Haines, 10 Kan. 439; Caledonia Rail. Co. v. Lockhart, 3 Macq. H. L. Cas. 808; Lawrence v. Great Northern Rail Co., 16 Q. B. 643; Perley v. Railroad, 57 N. H. 212. 2 Clark v. Hannibal R. R., 36 Mo. 202; Sabin v. Vermont Central R. R., 25 Vt. 363; Steele v. West Lock Nav. Co., 2 Johns. 283; Pittsburgh R. R. v. Gilleland, 56 Pa. 445; Tucker v. Erie R. R., 27 Pa. 281. that the corporation condemning would be entitled to the excavations made by it, whether or not they were necessary in the construction of the road.1 When the statute allows damages for inconveniences resulting from cuttings and embankments, which render passage to and from different parts of a farm difficult, such damages are presumed to have been considered. The assessment embraces damages by causing a spring to disappear on account of an excavation, notwithstanding, as a matter of fact, the damages could not have been anticipated." Although rights of excavating and blasting are included in the rights obtained by condemnation of a right of way, yet when the company comes with its application for a right of way across land which is crossed by a stream of water, the company does not indicate to the owner, by necessary implication, that it wants to take and pay for the privilege of diverting the stream, when such diversion would destroy a mill-privilege or the land-owner's stock-water. It cannot be known to the commissioners, in ordinary cases, that a diversion of the stream will be necessary; for the question of diverting a stream, and filling to save the cost of bridging, is a question of civil engineering, and because there is no necessity, in any case, of diverting a stream to save bridging, except in view of greater economy and safety. In order to allow the diversion of a stream, there should have been an assessment with a view to finding the damages which would accrue on such diversion.a § 217. Damages arising afterward Unforeseen damages. The damages estimated in the assessment are those resulting from the construction of the road on the land 1 Evans v. Haefner, 29 Mo. 141; Baker v. Johnson, 2 Hill, 342. 2 Mason v. Kennebec R. R., 31 Me. 215. The damage should be estimated. There should not be a determination as to future access to the land so cut off. Ware v. Regent's Canal Co., 23 L. J. (Exch.) 145. 3 Aldrich v. Cheshire R. R., 21 N. H. 359; Lafayette Plank-Road v. New Albany R. R., 13 Ind. 90. Stodghill v. Chicago R. R., 43 Iowa, 26. taken from the owner, but cannot include damages resulting from construction on the land of others. If the public improvement removes, on the land of others, a natural barrier which previously prevented the flooding of water upon the land of plaintiff, there is a valid claim for damages. The fact that the parties making the assessment did not, or could not, anticipate the damages, does not exclude the right to damages. Such damages may be recovered by common-law action, if not within the purview of the parties making the assessment. The fact that the legislature did not provide for damages arising afterward, does not prove that the damages are not recoverable. The omission would indicate that the legislature left that to be covered by a common-law action. The fact that the loss was not suffered within a short time after the construction of the road, does not make it any the less a taking. The taking must depend on the injurious effect, and not on the length of time necessary to produce the effect. The limitation on bringing of actions would run, although such damages could not have been foreseen." This doctrine is denied in the earlier case of Heard v. Middlesex Canal,6 where Chief Justice Shaw holds that the damages must be assessed once for all, and cannot be determined by any after use, and that subsequent suits should not be sustained. The limitation against such actions would be the ordinary limitation on actions, and not the special one provided by statute on actions for assessing damages. The English doctrine is, that the ordinary damage is included, but that "any future extraordinary 1 Eaton v. Boston & Maine R. R., 51 N. H. 504. 2 Ibid.; Calhoun v. Palmer, 8 Gratt. 88; Whitworth v. Puckett, 2 Gratt. 528 3 Wabash Canal v. Spears, 16 Ind. 441. Ibid.; Eaton v. Boston & Maine R. R., 51 N. H. 504. 5 Call v. Middlesex, 2 Gray, 232. 65 Metc. 81. 7 Wabash Canal v. Spears, 16 Ind. 441 (qualifying Lafayette Plank-Road v. New Albany R. R., 13 Ind. 90). |