30 Ga. 43 | Ga. | 1860
By the Court.
delivering the opinion.
As to the appeal, not having been entered in time, the first point made in the bill of exceptions, t-hat point is settled against the plaintiff in error, in Armstrong against the Oglethorpe Bridge & Turnpike Company, (18 Ga. Rep., 609;) and The State vs. Dean, (9 Ga. Rep., 400.)
The main question to which our attention has been called by the learned counsel is, what shall be the rule in estimating the damages to be assessed against the Wills Valley Eailroad Company for seizing and appropriating the land of the citizen for the construction of their road ? He insists that the rule prescribed by the Supreme Court of Tennessee, in the case of Woodfolk against The Nashville & Chattanooga Railroad Company, (American Law Register, July number, 1853,) and sustained by several adjudications in Kentucky, (5 Dana, 28; 7 ib., 81, and 9 ib., 114. But See contra, 3 Moss. Rep., 489; 4 Cush., 471,) is the true criterion of compensation ; and that is the fair cash value of the land taken for public use, if the owner were willing to sell, and the company desired to buy that particular quantity, in that place and in that form, would be the measure of remuneration; and that this must be paid in money.
For myself, I confess I am strongly inclined to maintain this. But the Tennessee Court further held, and, I think, correctly, too, that if the owner of the land seeks to recover incidental damages beyond the actual value of the land taken, the road has a right to set off a counter-claim for the in
All our railroad charters contain this principle; and by irresistible implication, it is embraced in the charter of the Wills "Valley Road; for it provides expressly that the landowner is not, by the assessment of damages, to be brought in debt to the road — a result which is only possible, by setting off the benefits against the injuries.
The verdict in this case was clearly contrary to the evidence ; but as no motion was made for a new trial, the case cannot be sent back, on that account. But there is a ground upon which a rehearing can be awarded: The witnesses, in testifying to the increased value of the land do not state, whatever they may have intended, that it was owing to the location of the road. We know that there is not an acre of ground in the State, nor a foot of laud in any of our cities, towns or villages that has not steadily appreciated in value for the last ten years. To have warranted the instructions of the Court of the jury, it should have appeared, affirmatively, that the enhancement in price was attributable to the road, or at least, to what extent the road had contributed to produce this result.
We think that the ends of justice would be best subserved by sending this case back, with the opinion of this Court, by way of directions, that the jury first ascertain the value of the property appropriated by the road, add to this the damages which would result from its construction; the latter to be set off by the benefits conferred. If the latter equal the former, the verdict to be for the actual value only of the property used ; if less, the difference to be added to the price, and that, too, although the road should never be built. For it is the duty of the defendant in error to complete it, and put it, and keep it in operation; and the fault will be at the door of the company, if it be left unfinished.
The subject is one of difficulty and delicacy. It would seem that where the private property of a citizen is taken against his wish and will for a railroad, he should be paid its value in coin. If the owner, however, sets up a claim for apprehended evils and inconveniences, it may not, perhaps, be going too far to allow, by way of reduction for the damages so charged, all the incidental benefits which he receives from the location of the road upon his premises. This ap
