The' opinion of the court was delivered by
An аppeal was taken to the district court from an award of damages by commissioners for taking a leasehold of the plaintiff upon a business house for depot grounds. The only question presented here is whether the district court applied the correct measure of damages.
The property held under the lease was occupied by the plaintiff for the sale of new and second-hand furniture. After acquiring the lease he put in extra decking, light plant and fixtures, extra shelving, hooks and rug rаcks, at an expense of about $200. The lease had eleven months to run at a rental of $45 per month. The court instructed the jury that the measure of damages was the difference between the market value of the lease for the unexpired term and the rent the plaintiff was required to pay, and said:
“In estimating the market value of the lease in question you may take into consideration, the desirableness of the location of the premises for this or any other legitimate business, whether the leasehold property was improved for a special purpose for which it was specially suited, whether the business which the plaintiff established thereon and conducted has enhanced the market value of the leasehold prоperty as a site for carrying on. such business; but you can not take into consideration any specific or independent damages apart from the lease itself on account of injury to his personal property while being removed, nor that he has been compelled to surrender the rooms for the right of way of the railroad, nor for any damages because of loss of profits or damage to his business or good-will, nor for expense in storing his goods. . . . In estimating the value of the leasе you may take into consideration the expense to Bales of moving his stock of goods and fixtures to a new location or damage to the*773 same resulting from the removal, and the increased value of the premises for rent in consequence of putting in such fixtures and improvements as showing the value of the unexpired portion of the lease, but not as showing a specific claim for damages for the expense of moving his stock of goods and fixtures to a new location or dаmage to the same resulting from their removal or for putting in such fixtures and improvements. ... In arriving at the value of the plaintiff’s lease, you may take into consideration the fact, if you find it to be a fact, that the building included in this lease had been used for a second-hand and new furniture store for a number of years; and if you find that the buildings had been so used added to the value of the plaintiff’s lease, you will take that fact into consideration in arriving at your verdict.”
The jury found in answer to a special question that the market value of the lease was made up of the following items:
“Extra decking, floor space, light plant and fixtures, extra shelving, hook & rug rack, $120.00
Extra rent, $5.00 per month............. 55.00
Ten per cent on net profits.............. 300.00
$475.00”
and that the rental value of the property was $50 per month.
The rent being $45 per month and the rental value being $50 per month, the difference for eleven months makes up. the $55 item.
After hearing testimony which took a wide range, the abstract shows that on motion of the defendant the court said to the jury:
“You will disregard all testimony of the witness showing that his opinion as to the value of this lease was based on the fact that the business was a going concern and that there was a loss of time in moving and that there was a depreciation of the stock in moving and that there was a loss of profits by reason of moving, and you will nоt consider that testimony at all.” '
When the plaintiff put in the decking, shelves and other conveniences, the value of his unexpired term was thаt of the property as he received it, plus the added value caused by these additions; that is, the rental value of the property in the condition it was when taken for public use. '
. . The jury were asked to state the elements making up the aggregаte value of the lease, and gave as one of these elements the extra decking and other things mentioned. The amount of $120 for these fixtures or additions should, in harmony with the instructions and the question, be interpreted to mean the increase in the vаlue of the unexpired term by attaching them to the property. So understood, no good reason is perceived why the amount should be stricken out. In Pause v. City of Atlanta,
The item of ten per cent on net profits, also contained in thе answer to the special question, appears to be based on the testimony of a witness who said that the value of this lease was $45 per month, plus ten per cent of the net profits of the business, for the value of the location for an еstablished business. The plaintiff having testified that his net profits for the preceding year were $3000, the basis of the finding appears. The question is therefore presented, whether, conceding the evidence sufficient upon which to estimate profits, they shоuld be allowed as an element in arriving at the value of the lease.
“The only question was as to the value of his unexpired lease, and not as to the profits of his business or the inconvenience of removing it to some other place.”
It was observed in Becker, Appellant, v. Phila. & Reading R. R., 177 Pa. St. 252,
“We hаve so often said that the profits of business could not be recovered in condemnation proceedings that it seems like a waste of time to cite the decisions. As far back as Thobwrn’s Case, 7 S. & R. 411, it was held that, in estimating the damages done to the landowner, the jury are to value the injury to the property at the time the injury was suffered, without reference to the person of the owner or the state of his business.” (p. 258.)
In St. L., K. & W. Ry. Co. v. Knapp-Stout & Company,
“Inj ury to business, loss of profits, inconvenience to the owner, damage to personal prоperty or the expense of removing it, are not to be estimated as distinct elements of damages.” (p. 412.)
The rule in New Hampshire, as stated in Ranlet v. Railroad, 62 N. H. 561, is:
“The expense of removing the plaintiffs’ property from the land taken and from the land of the railroad, the value of the lumber after removal, the amount of the depreciation in value of the coal on account of taking the land, and the annual profits and income of the plaintiffs’ business under the lease, were immaterial matters, and the evidence upon these points was properly excluded. The land covered by the plaintiffs’ lease was taken by the defendants in the legitimate exercise of the power of eminent domain. The measure of the plaintiffs’ damages was the market value of the unexрired lease, and the excluded evidence could furnish no aid in the determination of that question.” (p. 564.)
It was held in Washington that the same general rule applies to leases as in other cases.
*776 “In other words, the amount of diminution in value of their leаse because of the appropriation.” (Seattle, etc., Ry. Co. v. Scheike,3 Wash. 625 , 628,29 Pac. 217 .)
In In re Petition of New York & Brooklyn Bridge,
“The measure of damages in cases of this character is well settled to be the value оf the unexpired term of the lease, less the rent reserved. The tenant is not entitled to be awarded damages caused by the necessity of removal of personal property, nor consequential damages arising from interruption of business.”
The rule in Massachusetts is further stated in New York, &c. Railroad v. Blacker,
It will be observed that the instructions in this case are in harmony with the views of the Massachusetts court. Other citations to the same effect might be given.
The ordinary rule of damages for the appropriation of land for public uses (railroad purposes)' is the difference in market value before the appropriation and immediately thereafter. (W. & W. Rld. Co. v. Kuhn,
“The evidence of the value of the plants, flowers, and potted soil of the petitioner on the premises, and of the amount of business done by him, was admitted only for a single purpose, and was carefully limited in thе instructions to the jury. The jury were told that no damage could be allowed for the good will, or for injury to the business or to the plants or flowers, and that this evidence was admitted only as bearing upon the question of the capacity of the real estаte for use.” (Pegler v. Hyde Park,176 Mass. 101 , 102,57 N. E. 327 .)
It will be noticed that an opinion of a witness was given that ten per cent of the net profits of the past year’s business entered into and augmented the value of the lease to that amount for the next year. This is a precarious foundation for a verdict in any event. Anticipated profits as an element of damages are only allowed where reasonably certain; when speculative, remote and contingent they are excluded. (Railway Co. v. Thomas,
The instructions allowed the jury to consider the desirableness of the location and the enhancement of value of the lease by the business he had conducted there in determining the value of the lease. Incidental to these considerations was the fact that the plaintiff had made profits, in the business.. Thus he secured the benefit of these considerations so far as they affected the value of the lease, and this, as we are con
It has been held in Michigan that profits of a business carried оn on the property, when reasonably certain, may be allowed as an element of damage for its appropriation for public use. (Commissioners of Parks v. Moesta,
It will be noticed that the jury were instructed that the cost of removal of the goods and fixtures might be considered in determining the value of the unexpired portion of the lease. Whether such an element should be considered or not the plaintiff can not complаin of the instruction for it is in his favor.
Instructions asked by the plaintiff fairly presented his claim to recover the separate items of damage already considered.
The cause is remanded With directions to modify the judgment accordingly.