street improvement may be charged against a railroad company, and be assessed against the track, the property benefited. The fact that no one might wish to purchase a portion of a railroad track is no argument against the right to sell.1

§ 155. From what time shall benefits be calculated. Following the analogy of damages, benefits should be considered as of the time of taking, as benefits are deducted from damages in order to find the just compensation. However, if the benefit is one arising after the taking, as the construction of a depot near the ground, or, on the contrary, the refusal to construct a depot according to stipulation, the matter may be considered according to the condition of affairs at the time of the trial.2

§ 156. Privilege of giving up entire lot and escaping assessment. To obviate the seeming injustice and frequent hardships of assessment of benefits on remaining lands, statutes have been passed allowing the owner to give up his whole lot, and receive the value in money, rather than to keep the remainder charged with the assessment. This cannot be done against the will of the owner, as the excess over the needs of the public would be taken for a use not public; but it is proper to give the election to the owner, whether or not he should keep the remainder, or allow the public to take it at a valuation.*

- Increase of

§ 157. Where use of property is limited business Expert testimony. Land devoted to a particular use, such as a church, cemetery, or water-works, and which cannot be changed from that use, should not be

1 Troy R. R. v. Kane, 16 N. Y. Sup. Ct. 506.

2 Hayes v. Ottawa R. R., 54 Ill. 373.

Dorgan v. Boston, 12 Allen, 223.

♦ Baltimore v. Clunet, 23 Md. 449; Dunn v. Charleston, Harp. 189.

charged with benefits as property open to sale for general purposes.1

As no damages will be allowed on account of diversion of business, caused by a public improvement, the converse is also true, and no benefit will be allowed on account of increase of business, occasioned by the improvement.2

Expert testimony is admissible to show the benefits to an estate by a public improvement. A witness may be asked the increased value per foot of a lot on a street as wide as the one proposed."

§ 158. Setting off benefits against disadvantages. The fairest rule in dealing with benefits and disadvantages is to set off the benefits against the disadvantages only, allowing the owner to recover any excess of disadvantages over benefits, but not allowing the excess of benefits to reduce the claim for the actual value of the land and materials taken. This is the doctrine of many of the states.* This doctrine is generally the result of legislation to that end. If the jury should find no damages, it would be presumed that they had set off benefits against the value of lands, and hence their reports would be quashed. The doctrine is denied in Mississippi, on the general principle of rejecting all benefits." The doctrine is upheld in Tennessee,

1 Owners v. Mayor of Albany, 15 Wend. 374.

2 Brown v. Providence R. R., 5 Gray, 35.

3 Shaw v. Charlestown, 2 Gray, 107.

Shipley v. Baltimore R. R., 34 Md. 336; Mitchell v. Thornton, 21 Gratt. 164; Railroad Co. v. Tyree, 7 W. Va. 693; Raleigh R. R. v. Wicker, 74 N. C. 220; Mayor v. Central R. R., 53 Ga. 120; Jones v. Wills Valley R. R., 30 Ga. 43; Newcastle R. R. v. Brumback, 5 Ind. 543; Todd v. Kankakee R. R., 78 Ill. 530; Wagner v. Gage County, 3 Neb. 237; Sutton's Heirs v. Louisville,

5 Dana, 28; Robinson v. Robinson, 1 Duv. 162; Louisville R. R. v. Glazebrook, 1 Bush, 325; Buffalo R. R. v. Ferris, 26 Texas, 588; New Orleans R. R. v. Lagarde, 10 La. An. 150; Vicksburg R. R. v. Calderwood, 15 La. An. 481; Memphis v. Bolton, Heisk. 508.

5 Augusta v. Marks, 50 Ga. 612; Young v. Harrison, 17 Ga. 30; Elizabethtown R. R. v. Helm, 8 Bush, 681; Hayes v. Ottawa R. R., 54 Ill. 373.

6 Mitchell v. Thornton, 21 Gratt. 161.

Isom v. Mississippi R. R., 36 Miss. 300.

as a proper construction of "just compensation."1 In Kentucky, the incidental damages for separating a part from the remainder must be paid in money, and benefits cannot be set off against such damages,' but they may be set off against consequential damages.3

1 Woodfolk v. Nashville R. R., 2 Swan, 422.

2 Elizabethtown R. R. v. Helm, 8 Bush, 681; Louisville R. R. v. Glazebrook, 1 Bush, 325 (qualifying Jacob v. Louisville, 9 Dana, 114).

3 Henderson R. R. v. Dickerson, 17 B. Mon. 173. Same doctrine, Chapman v. Oshkosh R. R., 33 Wis. 629.

13

193

CHAPTER XVI.

OF THE NATURE AND AMOUNT OF DAMAGES.

159. Adequacy of damages.

160. Title a proper subject of inquiry in determining damages.

161. Condemning party cannot dispute title.

162. Direct damages - Disadvantages.

163. Exposure to fire.

164. Jury or commissioners to determine the damages.

165. Testimony as to the amount of damages.

166. Effect of taking a part on the land left.

167. Damage to tract- Extent of tract 168. Market value.

- Separate blocks.

169. Expert witnesses.

170. Sales of similar property.

171. Rents of similar property.

172. Evidence of assessment for taxation Of commissioners' report

Admissions of owner.

173. Value not estimated solely from present use.

174. Assessment should be of the value at the time of taking.

175. Interest on award.

176. Interference with the use before taking.
177. Interference with use during construction -
178. On a taking subsequent to the improvement.
179. Taking part of a railroad.

180. Plan of proposed improvement.

Loss of profits.

§ 159. Adequacy of damages. - Damage, when arising from an exercise of eminent domain, is an actual diminution in present value or of price of property, caused by construction of a public improvement; or a physical injury to the property, that renders it less valuable in the market if offered for sale or for rent. Hence the value of premises as a building must be given, and not of the materials only. The

1 Chicago R. R. v. Francis, 70 Ill. 238; Snyder v. Western R. R., 25 Wis. 60. St. Louis R. R. v. Capps, 67 Ill. 607.

Lafayette R. R. v. Winslow, 66 Ill. 219.

compensation for the damages should not be restricted to the actual value of the land taken, nor to the depreciation in value caused by the separation of the piece from the whole, but to the difference in value of the property before and after the improvement, and should not include any prospective damages. The cost of replacing erections or improvements elsewhere is not the measure of damages, but the difference in value before and after the taking is complete. The expense of removing personal property from the premises is not to be included. It is not proper to consider the difference in value between the land with the railroad on it, and with the railroad running near, but not on it, as owners near are not compelled to account for benefits. Where a railroad used a part of a wall made to protect land from washing, and the wall still answered the purpose, the damage would not be what the wall cost, but what would make the owner whole. The question of the adequacy of the damages allowed is generally one for the viewers or the jury, and not for the appellate court, except where the error is of such a gross nature that the court would, if the matter were an ordinary suit at law, set aside the finding as against the evidence. Some of the states,

5

1 San Francisco R. R. v. Caldwell, 31 Cal. 367; Matter of Utica R. R., 56 Barb. 456; Rochester R. R. v. Budlong, 12 N. Y. Leg. Obs. 46; Bangor R. R. v. McComb, 60 Me. 290; Pennsylvania R. R. v. Bunnell, 81 Pa. 414; Shenango R. R. v. Braham, 79 Pa. 447; East Pennsylvania R. R. v. Hottenstine, 47 Pa. 28; Schuylkill Nav. Co. v. Farr, 4 Watts & S. 362; Schuylkill Co. v. Thoburn, Serg. & R. 411; Tide-Water Co. v. Archer, 9 Gill & J. 479; Selma R. R. v. Keith, 53 Ga. 178; Sidener v. Essex, 22 Ind. 201; Chicago R. R. v. Stein, 75 Ill. 41; Eberhart v. Chicago R. R., 70 Ill. 347; Bigelow v. Wisconsin R. R., 27 Wis. 478; Gear v. Railroad, 39 Iowa, 23; Brooks v. Davenport R. R., 37 Iowa, 99; Harrison v. Iowa R. R., 36 Iowa, 323; Simmons v. St. Paul R. R., 18 Minn. 184; Virginia R. R. v. Henry, 8 Nev. 165; Cummings v. Williamsport, 84 Pa. 478; Putnam v. Douglas County, 6 Oreg. 328.

2 Canandaigua R. R. v. Payne, 16 Barb. 273; Brooks v. Davenport R. R., 37 Iowa, 99.

3 Schuylkill Nav. Co. v. Farr, 4 Watts & S. 362.

• Central Pacific R. R. v. Pearson, 35 Cal. 247.

Carli v. Stillwater R. R., 16 Minn. 260.

• Gear v. Railroad, 39 Iowa, 23.

Hannibal R. R. v. Morton, 27 Mo. 317.