40 Kan. 598 | Kan. | 1889
The opinion of the court was delivered by
Ross & Packer are the owners of the S. W. J of sec. 25, T. 29, R. 2 W., in Sedgwick county. On the 15th day of March, 1886, the district judge of that county appointed commissioners to appraise the lands along the line ofi the Leroy & Western Railroad Company through the county] and to assess the damages for the right-of-way of the road! On the 26th day of April, 1886, the commissioners, after viewing the said S.W. J, and the proposed route of the rail
“You are instructed, in assessing the amount of plaintiff’s recovery, that you may take into consideration any benefits by reason of construction of railroad through the premises of plaintiff, which may be special and peculiar to the tract of land in question; that is, benefits different from and in excess of benefits resulting to other adjoining land not intersected by the railroad.”
; The court refused the request, holding that benefits, although ¡special, could not be set off against the value of the strip ¡taken for the right-of-way, or against the damages to the re- , mainder of the land. It is conceded by all the parties that neither general nor special benefits can be set off against the ' value of the strip or part taken for the right-of-way. The question is therefore presented, whether special benefits from the construction of the railroad, or any improvement thereby, may be set off against the damages to the remainder of the land. If it were not for the provisions of the constitution of the state, as a matter of justice, the benefits, direct and special, to the land-owner should be charged in making the estimate of the amount to which he is justly entitled for the appropriation of the right-of-way. (Railroad Co. v. Kuhn, 38 Kas. 675-8.) Under the constitution, are such benefits to be deducted or allowed from the compensation required to be paid ? Section 4, art. 12 of the constitution ordains:
“No right-of-way shall be appropriated to any corporation until full compensation therefor be first made in money, irre-
“The plaintiff in error offered evidence to show that benefits accrued to the land of appellant by reason of building the road. The court refused to permit any evidence on that point to go to the jury, and correctly. Section 4 of art. 12 of the constitution is conclusive on this point.”
The writer of that opinion was KiNG-maN, late Chief Justice. As he was a member of the constitutional convention of 1859, and the chairman of the committee upon judiciary in the convention, this decision is entitled to great consideratiou.
In Hunt v. Smith, 9 Kas. 137, Mr. Justice VALENTINE, following the case of Railroad v. Orr, supra, said :
“The commissioners must appraise the value of the land appropriated, and assess the damages to that not appropriated [not aétually taken], irrespective of any supposed benefits to that not appropriated [not actually taken.]”
In Reisner v. Union Depot & Rld. Co., 27 Kas. 382, it was said:
“Under the provisions of §4, art. 12 of the constitution of the state, a railway company must pay for the right-of-way, irrespective of any benefit from the proposed improvement of the company, and the compensation for such right-of-way appropriated to the use of the company includes not only the value of the property taken, but also the loss the land-owner sustains in the value of his property by being deprived of a portion of it.”
This construction of the constitution is fully sustained by the decisions of other states having similar constitutional provisions. In Pierce on Railroads, 222, it is said:
“The deduction of benefits in the assessment of damages is prohibited by the constitutions of some states — as Ohio, Kansas, and Alabama; and by statutes in other states.”
Section 18, art. 1 of the Iowa constitution, in force in 1871, is in the following words:
“Private property shall not be taken for public use with
In Frederick v. Shane, 32 Iowa, 254, it was held that —
“In the assessment of damages an individual sustains in the location of a road over his lands, the jury cannot, under article 1, §18 of the state constitution, take into consideration any advantage or benefit that may result to the owner by reason of the establishment of the road, as that it would tend to drain and improve the land.” (See also to the like effect, Brooks v. Railroad Co., 37 Iowa, 99.)
In Arkansas, § 9, art. 12 of thé constitution of 1874 provides that compensation must be máde in money, and be ascertained irrespective of any benefits from the proposed improvement. Under that provision, in Railroad Co. v. Anderson, 39 Ark. 167, it was said:
“The owner’s damages for the right-of-way to a railroad over his land cannot be diminished by the estimated benefit likely to accrue to his remaining property by the building of the road.”
In Indiana, in 1858 and also in 1873, the statute declared that, “in estimating any damages [for the appropriation of land for the right-of-way of a railroad] no deduction shall be made for any benefit that may be supposed to result to the owner from the contemplated work.”
In Railroad Co. v. Fitzpatrick, 10 Ind. 120, the court decided that —
“Under the statute, the jury in determining the amount of damages resulting from the construction of a railroad are to exclude from their consideration all future benefits that may accrue to the owner of the land.” (See also Railroad Co. v. Horn, 41 Ind. 479.)
It is claimed that as the provisions of our constitution concerning right-of-way were taken from the constitution of Ohio, the decisions of that state, prior to the adoption of our con
In Giesy v. Railroad Co., 4 Ohio St. 308, it was said:
“That the jury in assessing the market value of the property appropriated to a public use, have no right to consider or make any use of the fact that it has been increased in value by the proposal or construction of the improvement.”
The opinion in that case was delivered by Ranney, J., one of the ablest of the Ohio judges. He said, among other things:
“The word ‘irrespective’ in the constitution relates to this full compensation, and binds the jury to assess the amount, without looking at or regarding any benefits contemplated by the construction of the improvement. When this is done, and this .consideration wholly excluded, the jury have nothing to do but ascertain the fair market value of the property taken, which is but saying that nothing shall be deducted from that value on account of such benefits.”
In Railroad Co. v. Ball, 5 Ohio St. 568, it was said:
“After the testimony was closed, the court was requested by the counsel for the plaintiff in error to charge the jury, among other things, as follows: ‘3. That it is proper for the jury to consider the benefits, by reason of the appropriation, to the residue of the tract through which the appropriation is made, for the purpose of-determining whether such, residue is injured by the appropriation. 4. That if the jury are of opinion that the whole of the residue of the tract through which the appropriation is made is not diminished in value by the appropriation, that no damages are to be assessed for any injury which it may be claimed is done by the appropriation to such residue.’
“These instructions the court refused to give to the jury; and as to the third point requested, the court charged the jury — ‘That by the constitution of the state, and their oaths, they were required to assess the defendant’s damages or the amount of his compensation, irrespective of any benefit proposed by the plaintiff as a railroad company, and that they were to exclude all real or imaginary benefits from their consideration.’
“As to the fourth point requested, the court charged the jury — ‘That the constitution of the state provides that the
The supreme court, Bartley, C. J., delivering the opinion, said there was no error in the instructions of the court to the jury. There was something said in the opinion, that where a local benefit or advantage was blended with a local incidental injury, the jury might consider the same; but it was not decided in that case that the owner, for local incidental injury to the residue of his land, could be allowed any deduction for the separate local benefit. Both of the Ohio decisions referred to were rendered only a few years prior to the adoption of our constitution.
The case of Kramer v. Railroad Co., 5 Ohio St. 140, cited as supporting the allowance of special benefits, was made under the Ohio constitution of 1802, and not the constitution in force at the time of the adoption of our own. The Ohio constitution of 1802 permitted the railroad to set off against the value of the property taken for public use, the increased benefits arising from the improvement; and it therefore differed widely from the Ohio constitution in force in 1859.
It is contended, however, by the railroad company that as this court, in Railroad Co. v. Blackshire, 10 Kas. 477, recognized that the fair way of determining the injury for the appropriation of a right-of-way is to determine the market value of the premises before the right-of-way is set apart, and then again after; and that the difference will be the true measure of damages; and as this rule has also been followed by the court in many cases, that this permits benefits to be considered; and therefore that the construction given to the constitutional provisions already referred to cannot be sustained. If this latter rule permitted separate benefits to be considered, so far as they affect the value of the premises injured, we suppose the rule must give way to the provisions of
We have already held that farmers living in the neighborhood of the land in question, well acquainted with its situation and fertility, its advantages and disadvantages, are qualified
Several of the witnesses who were farmers were permitted to testify the amount, in their judgment, per acre that the land would be depreciated by reason of the location of the road across it. This class of evidence is not to be commended, and falls very nearly within the objections stated in Railroad Co. v. Kuhn, 38 Kas. 675-7. The opinion filed upon a motion for a rehearing in that case corrected the sec
It is objected that the court instructed the jury that they might take into consideration the increased risk or exposure by fire on the plaintiffs’ premises, which might accidentally result from the operation of the road through the same; and also that they might consider the increased risk or probability of stock upon the premises being killed or injured as the result of accident for which the company would not be responsible. The design of the law is to fully compensate the land-owner for all injury he may sustain by reason of the appropriation of his land to the use of the road, and which shall grow out of or be occasioned by its location and use at that place. This being true, it follows that it is proper for the jury to consider whether his stock would be liable to be accidentally killed, or his crops, fences and buildings destroyed by fire, without fault on the part of the railroad company. If there was a liability to such injuries, its tendency would be to depreciate the value of the farm in its use, as well as in the market. It must be borne in mind that these things are proper to be considered so far only as they tend to depreciate
But instructions concerning the danger to which the stock thereon will be exposed, so far as the same affects the value of
The danger or exposure of buildings, fences, timber or crops, from fire, is an entirely different question from that involved in its destruction by fire without fault of the company. In the one case, while the risk or exposure may somewhat decrease the value of the property, and is a legitimate consideration for what it may be worth in fixing the compensation to the owner, in the other case the destruction of buildings^ fences, timber or crops by fire is a field of inquiry so remote and contingent as to be without and beyond any range of damages known to the law. (Lance v. Railroad Co., 57 Iowa, 636.)
Eor the errors referred to, the judgment of the district court will be reversed, and the cause remanded for a new trial.