Notes

In 1852 an act was passed which provided for commissioners in condemnation proceedings, to fix the compensation under the statute. Compensation was required to be made for the full value of the land taken without regard to the benefits to the remaining land not taken. But in assessing damages to the residue of the land which was not taken, only special benefits to the part not taken, and not common to adjoining land through which the improvement passed, could be set off. Emerson v. Western U. R. Co., 75 Ill. 176.

The constitution of 1848 provided only that land should not be taken for public use without just compensation. As held in construing this provision, it was a limitation upon the exercise of the sovereign power of eminent domain. Yet it was competent for the legislature to impose further limitations upon its exercise, which was sought to be done by the act of 1852.

In a later constitution, 1870, it was provided that land should not be taken or damaged for public use without just compensation. After this the legislature passed a statute repealing the act of 1852, and providing that no benefits or advantages, which may accrue to land or property affected, shall be set off against or deducted from such compensation in any case. Page v. Chicago, M. & St. P. R. Co., 70 I11. 328.

Subsequent to the adoption of the constitution of 1870, but prior to the passage of the statute of 1872, above referred to, a case arose which was decided under the former constitution,-it being held, that the damage contemplated by the constitution must be an actual diminution of present value or price, caused by the construction of a railroad, for instance, or a physical injury to the property, that renders it less valuable in the market, if offered for sale. Chicago & P. R. Co. v. France, 70 Ill. 238.

Following this case Page v. Chicago, M. & St. P. R. Co., 70 I11. 328, was decided, arising as it did after the statute of 1872. This case, also, held that the test of whether damages had accrued to the land not taken was whether there had been a diminution in the market value of the land by reason of the proposed improvement, and that the effect upon the whole tract remaining after part is taken must be considered. The argument was interposed, and insisted upon, that benefits to the land not taken could not, under the statute, be set off against damages. It was decided, however, that the consideration of benefits by which land was increased instead of being diminished in value, was not deducting benefits or advantages from the damages, "but it is ascertaining whether there be damages or not. It is but the estimation of damages, and seems to be the only fair and just mode of estimating them." Accordingly, it was held, "If the market value of the tract will not be diminished by the construction and the operation of the road, the land cannot be said to be damaged thereby."

Following this decision in Eberhardt v. Chicago, M. & St. P. R. Co., 70 I11. 347, in which the issue was as to the damages resulting to lands not taken, an instruction given by the town court was approved, which directed that, "as to lots not taken, you will find, as damages, the depreciation in market value of the same by reason of the construction and maintenance of the said railroad.” See Chicago P. R. Co. v. Stein, 75 Ill. 41; St. Louis, V. & T. H. R. Co. v. Hallow, 82 Ill. 208. See and compare Elgin v. Eaton, 83 Ill. 535, 25 Am. Rep. 412; Hyde Park v. Dunham, 85 I11. 569.

In the later case of Chicago, M. & St. P. R. Co. v. Hall, 90 I11. 42, it was decided that damages to property not taken for public use must be real and not speculative, and must appreciate the price or its use, and the depreciation is determined by comparing its value before and after the structure is made which produces the injury. Any benefits thus conferred should be considered, as well as injury inflicted by the structure in estimating the damages. Subsequently, the case of St. Louis, J. & S. R. Co. v. Kirby, 104 Ill. 347, arose, and an instruction was approved which directed the jury "that, in estimating the dam

Notes

ages to the balance of the farm through which the railroad ran, you should consider this railroad as running only through this farm and should not consider any general benefit which the road might be, in making a better market or convenience of travel." Remarking upon this decision in Metropolitan West Side El. Ry. Co. v. Stickney, 150 Ill. 362, 37 N. E. 1098, 26 L. R. A. 773, the court said: "There was no discussion of the question, and it is evident that the view taken was that the instruction was proper, as excluding those general benefits which flow to the public generally, and not such as would appreciate the market value of the particular tract of land."

When McReynolds v. Burlington & O. R. Co., 106 Ill. 152, arose, the jury were instructed that, if by the construction of the railway, the land would be specially benefited to the extent, or greater, than it would be damaged, then the jury should only find the verdict for the compensation for the strip of land taken. The argument was urged that this instruction was in conflict with the Eminent Domain Act, 9; and directly opposed Keithsburg & E. R. Co. v. Henry, 70 Ill. 290.

Without citation of authority the court held that the instruction was proper. Commenting on this point in Metropolitan West Side E. R. Co. v. Stickney, 150 Ill. 362, the court said, that in approving this instruction, the court was in entire harmony with all of its former rulings, since the adoption of the present constitution, except the Henry Case (Keithsburg & E. R. Co. v. Henry, 79 Ill. 296), and as will be seen in direct conflict with that case. See Dupuis v. Chicago & N. W. R. Co., 115 Ill. 97, 3 N. E. 720; Chicago & E. R. Co. v. Blake, 116 Ill. 163, 4 N. E. 488; Concordia Cemetery Ass'n v. Minnesota & N. W. R. Co., 121 Ill. 199, 12 N. E. 536; Chicago B. & N. R. Co. v. Bowman, 122 I11. 595, 13 N. E. 814; Kiernan v. Chicago S. F. & C. R. Co., 123 I11. 188, 14 N. E. 18. See and compare Harwood v. Bloomington, 124 I11. 48, 16 N. E. 91.

The question was again decided in Wabash, St. L. & P. R. Co. v. McDougall, 126 Ill. 111, 18 N. E. 291, 1 L. R. A. 207, in which the doctrine was declared that the measure of damages to the land not taken is the difference between the value of the land as a whole, before and after the construction of the road built according to the plan proposed. See Chicago, P. & St. L. Ry. Co. v. Aldrich, 134 Ill.

9, 24 N. E. 763. The case of Keithsburg & E. R. Co. v. Henry, 79 Ill. 294, is wholly out of line with the other decisions in Illinois. This case holds that under the statute (Acts of 1872), benefits cannot be considered and deducted either from the damages to the residue of the land, or as an offset against the value of the part actually taken. Commenting on this case the court, in Metropolitan W. Side El. Ry. Co. v. Stickney, 150 I11. 362, 37 N. E. 1098, 26 L. R. A. 773, said: "None of the cases previously decided, as before shown (nor indeed is any further authority referred to), sustain the doctrine of that case (Keithsburg E. R. Co. v. Henry, 79 Ill. 294). And we have been unable to find any subsequent case in which it has been cited, except McReynolds v. Burlington & O. R. Co., 106 Ill. 15, where it is referred to by counsel as before shown. But it is not referred to in the opinion, and a holding contrary to it is made." Quoting further from this opinion the court says: "By a practically unbroken line of authority in this state, it is well settled that the test, under the present statute, as to whether land not taken is damaged, is the effect of the improvement upon the value of the land. Under the rule the land is said to be damaged only when there is a diminution in value occasioned by the construction and operation of the railroad or improvement. Special benefits are such benefits flowing from the proposed public work as appreciably enhance the value of the particular tract of land alleged to be benefited. Wilson v. Sanitary District Trustees, 133 I11. 443, 27 N. E. 203; Bohm v. Metropolitan El. Ry. Co., 129 N. Y. 576, 29 N. E. 802, 14 L. R. A. 344; Rigney v. Chicago, 102 Ill. 64. As it has already been said, the fact that other property in the vicinity

Notes

is likewise increased in value from the same cause-that is, also specially benefited by the improvement-furnishes no excuse for excluding the consideration of special benefits to the particular property, in determining whether it has been damaged or not, and, if it has, the extent of the depreciation in value. On the one hand damages must be real and substantial; on the other, the benefits must be such as affect the market value or use of the land, and such as are capable of measurement and computation. Hence, all imaginary and merely speculative damages for benefits are excluded from consideration. Consideration of such benefits as tend specifically to enhance the value of the particular property is not setting off benefits against the damage to the property, but is simply an ascertainment of whether the land has been in fact depreciated in price or worth,— that is, whether loss or damage has resulted to the owner; for, if his property is of the same value after as before the improvement, he has sustained no loss. If he has lost nothing-or his property has not been depreciated in price, worth or value, it is not damaged, within the meaning of the constitution, and there can be no recovery. There can be no damage to property without pecuniary loss or injury which lessens its value."

INDIANA.

In the early case of McIntire v. State, 5 Black 384, decided in 1840, the court in discussing the question of compensation in the light of statutory and constitutional provisions in force in Indiana, said: "From this review of the statutes bearing on the question before us, and embracing the very time of the adoption of the constitution, we cannot doubt that its authors, in providing that just compensation should be made for private property taken for public use, designed to convey the meaning which had been attached to that phrase for more than seventeen years, and which has since remained unquestioned for a longer period of time.

"That meaning is not that property thus taken shall be valued and its price paid in money, but that the individual who claims to be a sufferer in consequence of the exercise of the right of eminent domain over his property shall be recompensed for the actual injury which he may have sustained, all circumstances considered, by the measure of which he complains.

"In ascertaining the extent of the injury, undoubtedly, an estimation of the value of the property taken at the time of taking is a necessary step; but, if the benefits really and substantially resulting to the claimant equal in pecuniary value the value of that of which the public has deprived him, we conceive they constitute a just and constitutional compensation for the deprivation to which he has been subjected."

But under statutory provisions it is now provided that when land is taken for railroad purposes no benefits are to be considered in estimating the compensation due the owner.

Thus, in McMahon v. Cincinnati & C. S. & L. R, Co. (1854), 5 Ind. 413, it is held, that in the assessment of damages against a railroad company for the appropriation of lands, no deduction can be made for any benefits which may be supposed to result to the owner of the land to be appropriated. See Newcastle & R. R. Co. v. Brumback, 5 Ind. 543; Evansville, I. & C. Straight Line R. Co. v. Fitzpatrick, 10 Ind. 120; Evansville, I. & C. Straight Line R. Co. v. Cochran, 10 Ind. 560; Grand Rapids R. R. v. Horn, 41 Ind. 479.

And in White Water Val. R. Co. v. McClure, 29 Ind. 536, decided in 1868, it is held that, in a proceeding under the general railroad law for an assessment of damages for taking land, evidence that the farm is worth as much, or more, with the road than without it, is inadmissible. No deduction is to be made for any benefit. But see and compare Hagaman v. Moore, 84 Ind. 496; Rassier v. Grimmer, 3R RR-7

Notes

130 Ind. 219, 29 N. E. 918; Goodwine v. Evans, 134 Ind. 262, 33 N. E. 1031.

IOWA.

In Iowa the rule as to the deduction of advantages which may accrue to property by reason of a portion of it being subjected for public use under eminent domain proceedings is settled by the constitution of that state. The Constitution, sec. 18, art. 1, provides that the jury "shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken." This is held to include all benefits and advantages; ; none being excluded.

The rule formulated by the courts in accordance with this provision is, that the compensation awarded should be for the difference in the value of the land immediately before and after the appropriation of the land for the public use, without considering the benefits that might accrue to the owner by the use or purpose for which the land taken is devoted; and, further, that prospective damages by reason of such user should be disregarded. Sater v. Burlington & Mount P. P. R. Co., 1 Iowa 386; Deaton v. County of Polk, 9 Iowa 594; Israel v. Jewett, 29 Iowa 475; Brooks v. Davenport & St. P. R. Co., 37 Iowa 99; Koestenbader v. Peirce, 41 Iowa 204; Britton v. Des Moines, O. & S. R. Co., 59 Iowa 540, 13 N. W. 710.

KANSAS.

The Constitution of Kansas, sec. 4, art. 12, provides that no right of way shall be appropriated to any corporation until full compensation therefor be first made in money, irrespective of any benefit from any improvement.

In St. Josephs R. Co. v. Orr, 8 Kan. 419, it was sought to offer evidence to show that benefits had accrued to the land by reason of building a railroad. But the court refused to permit any evidence on that point to go to the jury, in view of the constitutional provision above referred to. Later, in Hunt v. Smith, 9 Kan. 137, this rule was approved, Mr. Justice Valentine saying: "The commissioners must appraise the value of the land appropriated and assess the damages to that not appropriated (not actually taken), irrespective of any supposed benefits to that not appropriated (not actually taken).’ Subsequently, in Reisner v. Atchison, Union Depot & R. Co., 27 Kan. 382, it was said: "Under the provision of sec. 4, art. 12 of the Constitution of the state a railroad company must pay for the right of way irrespective of the proposed improvements of the company; and the compensation for such right of way appropriated to the use of the company includes, not only the value of the property taken, but also the loss the landowner sustains in the value of his property by being deprived of a portion of it." See Leroy & W. R. Co. v. Ross, 40 Kan. 598, 20 Pac. 197, 2 L. R. A. 217. See also, Leroy & W. R. Co. v. Hawk, 39 Kan. 638, 18 Pac. 943; Atchison R. Co. v. Blackshire, 10 Kan. 477; Interstate Con. R. T. R. Co. v. Simpson, 45 Kan. 714, 26 Pac. 393; Florence E. D. & W. V. R. Co. v. Shepherd, 50 Kan. 438, 31 Pac. 1002; Chicago K. & W. R. Co. v. Emery, 51 Kan. 16, 32 Pac. 631.

But in all other cases the rule is that in the appropriation of land for public improvements benefits to the land which is not taken may not only be deducted from the damages to such remainder, but also from the compensation which is to be made for the part actually taken. See Pottowatomie Co. v. O'Sullivan, 17 Kan. 58; Trosper v. Saline County, 27 Kan. 391.

KENTUCKY.

In Jacob v. City of Louisville, 9 Dana 114, the city of Louisville procured a writ of ad quod damnum, which directed an inquisition as to the damage certain property, which it desired for the extension of a street, would sustain by the extension of such street, after deducting the estimated value of advantages which would accrue to

Notes

him from the proposed extension. Upon the inquisition it was proven that so much of his ground as would be covered by the street when extended, was worth three thousand dollars. But when a verdict was rendered it appeared that the jury assessed damages at only twenty-eight dollars, after deducting the value of advantages, according to their estimate of them. Upon appeal the property owner sought to repeal the order of the city judge, for opening the street through his grounds, upon the payment to him of the twenty-eight dollars as assessed. Citing a leading case in that state, Sutton v. City of Louisville, 5 Dana 28, the court said: "In that case (Sutton's Case) it was decided that the constitutional guaranty of a just compensation to every person whose property shall be appropriated to public use without his consent, entitles the owner of the property so appropriated, to the money value thereof, at least, and we are not only not inclined to disturb the doctrine thus settled, but are still perfectly satisfied that it recognizes the true and only effectual exposition of the constitution. A just compensation for property applied to public use clearly implies, as we think, the value of the property in money. If the owner derive any incidental advantage or benefit from the manner in which it is applied to public use, others participate in some degree, and perhaps equally, in the same or similar advantages resulting to them also; and it would be unjust to exact from the one an equivalent for his incidental benefits, while the others enjoy theirs without the like exactions. In paying for the value of his land, he will be required to make his individual contribution as a citizen of Louisville, and the amount of that contribution may be augmented by the enhanced value of his ground arising from the extension of the street. This is the utmost that should be exacted from him for opening a street for the public use and benefit."

* * *

The principle declared may be formulated thus: "Where land is taken under a constitutional guaranty of a just compensation to every person whose property shall be appropriated to public use without his consent, it entitles the owner to the money value thereof at least, by way of compensation, estimated advantages accruing from the proposed improvement, being disallowed as offsets from such value. But the value of any advantages resulting to an owner may be set off as against any disadvantages resulting from the same public act. See Rice v. The Nicholasville, Danville, and Lancaster Turnpike Co., 7 Dana 81; Robinson v. Robinson, 62 Ky. (1 Duv.) 162; Henderson & N. R. Co. v. Dickerson, 56 Ky. 173; Louisville & N. R. Co. v. Glazebrook, 64 Ky. (1 Bush) 325.

LOUISIANA.

The rule prescribed in Louisiana is, that benefits may be set off against the damages to the part of the land not taken, but cannot be deducted from the value of the part actually taken. Thus, in New Orleans Pac. Ry. Co. v. Gay, 31 La. Ann. 430, it was held, that in determining the amount of damage, an owner of land suffers by an expropriation of a part of it in favor of a railroad company, the enhanced value of the balance of the land, caused by the building of the railroad, should be allowed as an offset to the damages. New Orleans Pac. Ry. Co. v. Gay, 31 La. Ann. 430; New Orleans O. & G. W. R. Co. v. Lagarde, 10 La. Ann. 150.

And in accordance with this principle it was held in Vicksburg S. & T. R. Co. v. Calderwood, 15 La. Ann. 481, a suit brought by a railroad company to expropriate land, that the defendant had no right, in addition to the price of the land expropriated, to claim payment for damage which may be done the rest of the property, when it is shown that such damage is more than compensated by advantages derived from the project.

MAINE.

In Maine special, but not general benefits, which accrue to the remainder of a parcel of land may be set off as against both the value