is given to remove, so that business is not interfered with, there will be no damage for interruption. In a recent case in Illinois, the commissioners awarded as follows: "And if the said improvements shall be retained by the said owners for a period of three months, then we find that no damage has accrued to them (the said owners) by reason of the interruption of their said business; and if the said owners shall retain the possession for two months, then we fix the damage of interruption at sixteen hundred dollars; and if the said owners shall retain the possession one month, then we fix the damages at thirty-two hundred dollars; and for the removal of their tools and implements necessary to carry on their business, we fix the damages at two hundred dollars." The owners tendered the keys within one month, and claimed the $3,200. The court held that the company could take possession at any time it pleased, and that the owners could not dictate the time; and that if entry was not made within the three months, no damages could be recovered.1 § 178. On a taking subsequent to the improvement. It may become necessary to take other land than that originally taken, and, since the first taking, the land has been enhanced in value by the improvement already made. In such a case, the estimate should be of the value at the time of the subsequent taking, and should include the value added by the improvements. The owner might have sold his land, in the interval, at the enhanced value, and his purchaser could not be compelled, on the subsequent condemnation, to take only the original value before the original improvement was contemplated. The owner would be entitled to the same enhanced value as the purchaser. § 179. Taking part of a railroad. — The damage for 1 Glennon v. Milwaukee R. R., 79 Ill. 501. Stafford v. Providence, 10 R. I. 567. taking a part of a railroad cannot be estimated as of the value of the part taken alone, when the taking would render the rest useless until a new railroad could be erected. The damages should also include loss of time in erecting the new railroad.1 2 § 180. Plan of proposed improvement. It is proper to put in evidence the plan of the proposed improvement; and the engineer may be asked as to the cuts, embankments, culverts, etc., in order to give an additional idea as to the damages. If the proposed road requires excavation or filling, in order to be reached from adjoining land, that fact is admissible in evidence, to reduce benefits. The official record of the location is admissible. The company may show that a culvert was necessary to the safety of the road, and that such culvert would obviate damages apprehended from an embankment shown on the plan, although the culvert was not shown on the plan. It is presumed that the company will build bridges and culverts in the safest manner for the road; and it will not be presumed that they will be negligent, and make unnecessary damages. If the railroad is to be built in the street, according to a certain ordinance, it is proper to put the ordinance in evidence, as tending to show the probable amount of damages. It is not admissible to ask the engineer how he proposes to make a cut across one railroad for the use of another railroad, or whether the railroad company expected to keep the work in repair. Expectations or intentions of engineers and conductors are not binding on the company. 6 1 In re Poughkeepsie R. R., 63 Barb. 151. Case where a railroad used for bringing minerals from a mine was taken. 2 March v. Portsmouth R. R., 19 N. H. 372; Nason v. Woonsocket R. R., 4 R. I. 377; Rondout R. R. v. Deyo, 5 Lans. 298; Jacksonville R. R. v. Kidder, 21 Ill. 131; St. Joseph R. R. v. Orr, 8 Kan. 419. Plympton v. Woburn, 11 Gray, 415. Dwight v. Hampden, 11 Cush. 201. Nason v. Woonsocket R. R., 4 R. I. 377. Mix v. Lafayette R. R., 67 Ill. 319. The damage to the company whose road is crossed is such sum as will enable them to keep their track in repair, taking into consideration the changes occasioned by the new crossing.1 The actual plans are evidence, and must be strictly followed, or there will be a new inquiry of damages. If the company refuse to exhibit plans and profiles, the jury will be authorized to presume that the most injurious mode will be followed in which it might probably be done. The company may be compelled to disclose the proposed use, so that the award may be in reference to the same.1 The statements of the city engineer, as to the extent of a proposed change in the grade of a street, is competent to be given in evidence in an action for damages by the lotowner against the city, for injury occasioned by the improvement. A plat properly verified may be used in evidence, to show the situation of lots in controversy, and a witness acquainted with the land and the plat may point out their relative situations to the jury. 5 1 Chicago R. R. v. Springfield R. R., 67 Ill. 142. 2 Jacksonville R. R. v. Kidder, 21 Ill. 131; Peoria R. R. v. Birkett, 62 Ill. 332. 3 Jacksonville R. R. v. Kidder, 21 Ill. 131. Wilkin v. St. Paul R. R., 16 Minn. 271. 5 Youngstown v. Moore, 30 Ohio St. 133. In Ohio, damages are allowed for changes in grade, while the prevailing doctrine in other states is the reverse. See ?? 195, 196. Rippe v. Chicago R. R., 23 Minn. 18. 223 CHAPTER XVII. OF DAMAGES CONSIDERED CONSEQUENTIAL. 181. Consequential injury to private property. 182. Legislative authority does not preclude claim for damages - Private inconveniences for the general good. 183. Injury to individual where no land is taken. 184. Reasonable use of adjoining property. 185. Excavations on adjoining lands. 186. Blasting on adjoining lands. 187. Effect of structures on adjoining lands. 188. Cut through a natural barrier. 189. Interference with the flow of surface-water. 190. Discharging contents of sewer, or water-course, or of canal, on land. 191. Diversion of trade-Loss of profits. 192. Interruption of business. 193. Noise-Smoke-Frightening horses - Vibration. 194. Statutes allowing damages considered consequential. § 181. Consequential injury to private property. — The damages for the value of land taken have always been looked upon as due to the owner. The injuries resulting from the taking, outside of the value of the land, have been frequently denied to the owner, on the ground that such injuries were consequential, and that the sovereign, on a forced purchase of property, should only be held for the value of the land, and not for injuries resulting from the operation of the improvement. This doctrine has been pushed very far, in the early Massachusetts cases. It has been protested against on several occasions, and is not by any means the law of all of the states; or rather, many of the states are establishing a rule which includes, 1 Thurston v. Hancock, 12 Mass. 220; Callender v. Marsh, 1 Pick. 417. Same doctrine in Pennsylvania: West Branch Canal v. Mulliner, 68 Pa. 357. in the damages for which compensation must be paid, many items of damage which were at one time considered consequential. Judge Story, in the case of Charles River Bridge v. Warren Bridge,1 in commenting on the cases above cited, says: "With all possible respect for the opinions of others, I confess myself to be among those who never could comprehend the law of either of those cases, and I humbly continue to doubt if, upon principle or authority, they are easily maintainable." He strongly doubted whether injury to private property can be done, without compensation, and the owner told that the injury is consequential." § 182. Legislative authority does not preclude claim for damages · - Private inconveniences for the general good. The legislative authority to do an act resulting in damages to the property of an individual cannot be sustained, without the payment of damages, on the simple claim that the legislature cannot authorize that which is improper. It is beyond the power of the legislature to authorize the infliction of an injury without compensation. Charters should not be construed as evincing any legislative intention to authorize an injury, or to shield the corporation from a common-law action, in case compensation is not provided. The fact that compensation is not provided should not lead the court to suppose that all injuries not provided for were declared by the legislature to be consequential, and, therefore, not subject to compensation. The legislative authority is not to be extended by implication. Mere legislative authority to manufacture gas and buy land will not relieve a corporation from damages which might be considered consequential if the land had been taken under the authority of eminent domain. All injuries and inconveniences which the individual may suffer in consequence 1 11 Pet. 420. Eaton v. Boston & Maine R. R., 51 N. H. 504. 225 |