The opinion of the court was delivered by
Ross, J.
This is a statutory proceeding for the ascertainment and recovery of damages occasioned by the taking of a part of the plaintiff’s promises for the railroad of the defendant, in the nature of a session proceeding, brought to this court on exceptions under the provisions of Act No. 90 of the laws of 1882, to be determined as though heard upon a petition for certiorari. Upon such a petition only questions affecting the essential rights of the parties will be considered. On these principles the only contention is whether the commissioners, in appraising the damages sustained by the plantiff for the land taken should be confined to their value for farming purposes, the only use to which the plaintiff has actually put them, or whether they might legitimately consider, in determining the damages sustained, the present availability of the tract, a part of which was taken, for building purposes. The rule is well established that when a railroad corporation takes a portion of a parcel of land, under the right of eminent domain, for the construction of its railroad, it must pay the owner such a sum in money as will fairly compensate him for the damage he sustains. This sum is not to be determined by whether the owner, at the time of the taking, is using the parcel of land profitably or unprofitably, or not using *49it at all. His present use may not be the best use to which the parcel can be put, nor is he bound to continue such use, or part with a part thereof, valuing the whole by such use alone. He is entitled to receive such a sum as will fully compensate him for the lessened market value of the premises occasioned by such taking. Its market value depends not wholly upon the use to which the owner is putting it, but upon the use or uses for which it is available at the time it was taken. If it is available for a marble or granite quarry, a coal or a gold mine, or for building lots, rather than pasturage, although not used for any of these purposes, or left unused by the owner, the use to which it may be put profitably must of necessity enter into consideration in determining the market value of the premises. The commissioners have found that the twelve-acre plot, a part of which was taken, was, at the time it was taken, available for building lots, and that the plaintiff purchased and was holding it with reference to that availability, although only using it for farming purposes. By this rule, mere prospective speculative values are not to be considered, but values fixed by present available uses. By the facts found by the commissioners, the parcel of land of which the defendant took a portion, at the time the part was taken, had a value beyond its value for farming purposes, because then available for building lots, the use, or one of the uses, for which the plaintiff was holding it. On these principles no substantial right of the defendant was invaded by the judgment of the County Court, and that
Judgment is affirmed.