76 Iowa 438 | Iowa | 1888
— Plaintiff is the owner of a tract of land containing about forty-one acres, which is situated near the town of Lehigh. Defendant has located and constructed a railway across a portion of this tract, and for that purpose appropriated nearly five acres for its right of way. The question involved in the case is the amount of damages to which plaintiff is entitled by reason of such appropriation. '
soil was removed outside the right of way to a depth of four feet, and for a width, including the right of way, of two hundred and twenty-one feet. In ruling upon this evidence the court remarked that it “ must be taken into consideration in estimating the difference in value before and after the building of the road.” We think this was erroneous. The proceedings were brought to ascertain the damage caused to plaintiff by the taking of a right of way one hundred feet wide for railway purposes. The damages which can be considered in such a proceeding are those which will result from a proper use of the land appropriated in the construction and operation of the railway. Miller v. Keokuk & Des M. Ry. Co., 63 Iowa, 685. Damages which result from an improper construction of the road canndt be considered in such proceeding. King v. Iowa Midland Ry. Co., 34 Iowa, 458. If a railway company, in constructing its road, goes upon land outside its right of way, and removes therefrom earth or other
It is claimed that the error in question was cured by the instructions, but we do not find this to be the case. ' It- is true, the jury were told that it was the intention of the law to give the land-owners the value of the land actually taken, and in addition thereto the depreciation in value of his adjoining land by reason of the right of way, irrespective of benefits. Also that the railroad company acquired by proceedings of this nature the right to a strip of land one hundred feet in width to locate, build and operate therein its road, and that ‘ ‘ such right extends no further than the right of location, construction and convenient use of its railway, and to take and remove and use any earth, stone, timber, etc., on or from the land so taken, which may be necessary for the purpose.” But the evident intent of the paragraph in which the portion of the charge just quoted appears, was to explain the nature of the right acquired by the defendant; and the fact that it was a surface right only, and that it did not extend to mineral deposits below the surface was made especially prominent. The jury were also charged that it was their sole duty “to ascertain and assess the damages sustained by the plaintiff by reason of the location and construction of” the railway of defendant across the land in controversy. Also that in determining these damages they should first ascertain the fair market value of the premises before the location and construction of the road, and the like value after its location and construction, disregarding benefits. The evidence as to the amount of damages fixed it as the difference between the value of the land before the building of the road and after it was built. That difference necessarily included the damage caused by the removal of the soil from that portion of the land outside the right of way. The jury were not, in terms, told to disregard the damage last named, while some portions of the charge require them to allow for it.. The theory of the court
use, and another portion of the same to a different use, and only one of such portions is covered by the right of way of defendant, the portion not so crossed cannot be taken into consideration in determining the damages done to the land.” We think this instruction was rightly refused. It does not appear that any division of the land has been contemplated by plaintiff, nor that such a division is necessary. The land has been treated as an entirety, and, while different portions might be devoted with greatest advantage to different purposes, yet that has not been done, and plaintiff was entitled to have the entire tract considered in the assessment of damages. The facts in this case are materially different from those involved in the case of Haines v. St. Louis, Des M. & N. Ry. Co., 65 Iowa, 216. For the error specified the judgment of the district court is
Reversed.