The appellee is the owner of a farm of 154 acres, in Sioux County. Prior to the proceedings involved in this action, there was a roadway extending along the west side of said farm, and one also on the south side. The right of way of the Great Northern Railway Company passes through the farm from north to south, a distance of about 75 rods from the west line of the farm. ' A small creek crosses the farm from the northwest to the southeast, and 'the railroad crosses said creek on a trestle about 80 feet in length, the piles of which are about 12 feet apart. There is pasture land on both sides of the railroad right of way near the trestle. The crop land on the farm lies chiefly east of the railroad track, being divided by the creek into two parcels. Access to the portion of the farm east of the railroad track by stock and teams was by passage under the railroad trestle, except at times when the water in the creek prevented. There was a private crossing over the railroad track some distance south of this trestle. The buildings are located on the west side of the farm. In 1919, the board of supervisors
I. It is urged by the appellant that the verdict is excessive, and is the result of passion and prejudice.
The amount of damages to be awarded in cases of this kind is, of necessity, largely an approximation. We cannot substitute' our own judgment for that of the jury in eases of this kind, upon such a record as is here set forth. As bearing on this question, see Bracken v. City of Albia, 194 Iowa 596.
The question was objected to as immaterial. Counsel for the appellee stated:
“The point is, there is a claim that the cattle pass is too small, and has too small an opening, and we contend that there should be an adequate cattle pass for the cattle to pass through, and our contention is that we are entitled to what the damages to us are for a cattle pass, the damage to which we have been put by this wholly inadequate pass, and the cost of an adequate one, built either by ourselves or someone else.”
The objection was overruled, and the witness answered, “Approximately $2,200.” Appellant’s attorney moved to
In determining the amount of damages, it was proper for the jury to take into consideration all pertinent facts pertaining to the condition of the farm before and after the construction of the road. The award of damages is not to be made, however, by the assessment of a series of specific items. In Henry v. Dubuque & P. R. Co., 2 Iowa 288, we held that the owner of premises taken should not be allowed for “a fence as fence” in the assessment of damages, and that it would not do to say that the proprietor would have to fence his land, and therefore he should be allowed some definite price for some particular kind of fence; that if, by the establishment of the road, the land is thrown open and left in a mere unfenced condition, this fact might enter into the consideration in arriving at the depreciated value of the remaining premises. See, also, Hanrahan v. Fox, 47 Iowa 102. And so in the instant case, the appellee could not recover the sum total of various specific items, such as the cost of fence, the cost of a passageway, and- other similar items. The damage is to the farm as a whole, and must be awarded in a lump sum. The court properly instructed the jury in regard to the true measure of damages. The challenged question was whether the witness could give an estimate as to what the cost of a cattle pass would be, 8 feet high and 10 feet wide. The objection thereto was that the question was immaterial. The question should have been answered by "yes” or "no,” but it was not so answered. The witness gave a specific sum as his estimate of the cost of construction of " a cattle pass 8 feet high, 10 feet wide.” Nothing was disclosed as to the kind of passageway the witness had in mind, whether it was to be constructed with cement walls or walls of plank, or whether it was to have a cement floor or no floor. No particulars were gone into.
Paraphrasing what we said in Henry v. Dubuque & P. R. Co., supra: As soon as it is determined that a cattle passageway must'be paid for, the questions arise, What kind of passageway? Who is to keep it in repair?- Shall it have walls of plank, dirt, or cement? Shall the county keep, it in repair, or
‘ ‘ If the remarks were as claimed by counsel for the defendant, they were improper, but if they were along the line indicated by counsel for plaintiff, ther,e is nothing improper; but the jury should determine that. The court did not hear it. The jury, of course, understand what is said to them in argument by counsel is not evidence, and cannot be so considered. ’ ’
In the instructions to the jury, the court said:
“In determining the difference in the market value of the farm in question before and after the condemnation proceedings, you may and should take into consideration the amount in value of the land actually condemned and taken by the defendant, and also the effect, if any, of the taking for the purposes intended upon the value of the remainder of plaintiff’s farm, so far as the same can be ascertained from the evidence, and from a consideration of these matters, and of all the facts and*220 circumstances shown upon the trial, and applying the rules for the measure of damages given you in these instructions, allow the plaintiff such damages as he has proven to you by a preponderance of the evidence that he has sustained, not exceeding the sum of $7,500, using your sound discretion and judgment in arriving at your conclusion. ’ ’
It will be observed that, in said instruction, while the court defined to the jury the true measure of damages, it also told the jury that the difference in value of the farm before and after the taking was to be ascertained, not only from the proof of the value of the land actually contemplated and taken, but also from the effect, if any, of the taking upon the value of the remainder of the farm, so far as'the same could be ascertained from the evidence; and that, from a consideration of these matters, and of all the facts and circumstances shown upon the trial, and applying the rules for the measure of damages given by the instruction, they should allow the plaintiff such damages as, he had proved by a preponderance of the evidence.
In view of the colloquy which took place at the time this evidence was offered and admitted, and, coupled with it, the colloquy during the argument, we 'cannot say that the admission of this testimony as to the cost of the construction of an adequate cattle pass was without prejudicial error. The court told the jury that they might take into consideration all the facts and circumstances proved by the testimony, in fixing the amount of damages sustained to the farm. Here was specific proof of a particular item of damages which should not have been allowed, and which was a '‘fact and circumstance” shown by the evidence which the jury should not have been allowed to take into consideration, in determining the difference in the value of the farm before and after the taking. We think that the argument of counsel, to which objection was interposed, and what took place in connection therewith, rather magnified than minimized the error that had been committed in the admission of this testimony. The testimony with regard to the cost of this specific item for the construction of a cattle pass should have been stricken from the record, or the jury should have been properly instructed not to consider the same. This, however, was not done, and the further proceedings in the case in regard to said
For the error pointed out, the judgment of the district court must be, and it is,&emdash;Reversed.