100 S.W. 583
Mo.
1907
BURGESS, J.

This is аn appeal from a judgment in favor of the defendant upon a verdict assessing his damages at the súm of five hundred dollars in a condemnation рroceeding instituted by plaintiff in the circuit court of Jasper county for the purpose of *496condemning a right of way through defendant’s farm upon whiсh to construct a railroad. The said farm contained one hundred and sixty acrés.

Commissioners to assess the damages were duly appointed аnd qualified and upon the 16th day of April, 1903, made their report, in which they assessed defendant’s damages at $300. Thereafter the plaintiff deposited sаid sum ‍‌‌‌‌‌​​‌‌​​‌‌​‌​‌​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‌​‌​​‌​​​‌​‍with the clerk, and afterwards on the 25th day of April, 1903, the defendant filed his exceptions to the report of the commissioners, and prayed that the same he set aside and that the damages be assessed by a jury.

Thereafter, on the 2d day of June, 1903, on application of the- defendant, the venue of said cause was changed to the circuit court of Barton county, and on the 17th day of September, 1903, trial was had before the сourt and jury, resulting in a judgment in favor of defendant for the sum of $500'. In due time plaintiff filed its motion for a new trial, which was upon the. same day overruled. Plaintiff aрpeals.

The first assignment of error is that the court erred in refusing to' permit plaintiff to prove special benefits to defendant’s farm arising from the construction of the railroad and the location of a station on an adjoining forty-acre tract of land. The evidence shows that the depot in question was located a quarter of a mile distant from defendant’s land, and there was no evidence showing that it could be reaсhed by any road from defendant’s farm or that defendant derived any direct or peculiar benefits therefrom that were not shared by the rest of thе neighborhood. The record shows that the court announced to counsel for plaintiff that they would be permitted to show any fact tending to prove that the erection of said depot was a special benefit to defendant, but did exclude evidence offered by plaintiff for thе purpose of showing that said special benefits amounted to five dollars per acre of defendant’s said land. This ruling was evidently based upon *497the theory that the amount of damages was for the determination of the jury, which ‍‌‌‌‌‌​​‌‌​​‌‌​‌​‌​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‌​‌​​‌​​​‌​‍is in accordance with repeated rulings of this court. [Hurt v. Railroаd, 94 Mo. 255; Belch v. Railroad, 18 Mo. App. 80; White v. Stoner, 18 Mo. App. 540; Spencer v. Railroad, 120 Mo. 154; Union Elevator Co. v. Railroad, 135 Mo. 353.] Moreover, the court told the jury that, in estimating the damages sustained by defendant by reason of the location of the road upon his land, they should consider the amount of special benefits, if any, to defendant’s land by reason of the construction of the railroad, and deduct it from the аmount of damages sustained by him as aforesaid. So that, even if the erection of the said-depot was of any special benefit to defendant’s land, the jury were permitted by this instruction to consider the same in making their estimate of damages.

Plaintiff insists that the court committed error in modifying its first instruction, by striking out the direction to the jury to assess the damages from the standpoint of-the value of the land “as of the date of the commissioners’ reрort,” and inserting in lieu thereof the words “value of the land at the time of the taking, ’ ’ and giving the instruction as thus modified.

In Hosher v. Railroad, 60 Mo. 304, it was said: “The instructions of the defendant confined the assessment to the value at the time the ‍‌‌‌‌‌​​‌‌​​‌‌​‌​‌​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‌​‌​​‌​​​‌​‍land was taken, and that was entirely proper.” However, in the later case of Railroаd v. Fowler, 113 Mo. 458, it is held that where the amount of the award, as in the case at bar, is paid in upon the return of the commissioner’s report, the date оf the making of their assessment is the date of the appropriation, and that any subsequent assessment relates back and takes effect аs of that date; that where the company pays to the landowner, or into court for him, the amount of the commissioners’ award, any reassessment of the damages must be on the basis *498of the value of the land at the date of said report. Conceding that the case last cited must cоntrol upon this question, should the judgment he reversed upon the ground of error in the instruction? We think not. Defendant’s counsel in questioning the witnesses as to the vаlue of the land, fixed the date as of April 16, 1904, the date of the commissioners ’ report, which value was placed by at least one witness at fifty dollars per acre. Another witness estimated the value of the land at the same figure a short time before the construction of the railroad across it. So that, it appears from the evidence that the value of the land was the same at both dates. The error, therefore, was non-prejudicial, and the judgment should not be reversed upon that ground.

Complaint is made of the action of the court in refusing instruction numbered four asked by plaintiff. The instruction is as follows: “The court instructs the jury that the defendant, Stewart, is. entitled to such farm crossings as would be necessary for ‍‌‌‌‌‌​​‌‌​​‌‌​‌​‌​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‌​‌​​‌​​​‌​‍the cоnvenient use of the two tracts of land in connection with each other. Therefore, in this case', if the jury believe from the evidence that hе refused to accept them, he cannot recover damages, if any, resulting from the absence of such crossings.”

This instruction was properly refused because of the want of testimony upon which to predicate it. It is true, there was evidence tending to show that plaintiff offered to construct crossings for defendant’s use, but at places undesirable, and where defendant could not conveniently use them. The instruction is also viсious, in that, while it concedes that defendant was entitled to such farm crossings as would be necessary for the convenient use of the two tracts of land in connection with each other, it assumes that defendant was offered such crossings, when the evidence in respect thereto wаs conflicting. [Shoe Co. v. Hilig, 70 Mo. App. 301.]

It is finally contended that the court erred in giv*499ing, of its own motion, instruction “A,” with, respect to the measure of damages. It is as follows:

“You will allow the defendant as damages such sum as you may believe from the evidence to be the difference, if any, between what was the fair market value of the ‍‌‌‌‌‌​​‌‌​​‌‌​‌​‌​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‌​‌​​‌​​​‌​‍whole tract of land before, and its fair market value after the appropriation by the railroad company of the 3.1-acre strip for the right of way рurposes.”

It is argued that this instruction is erroneous in that it authorized a finding of the difference between the value of the defendant’s farm before the road was constructed through it and its value afterwards, regardless of whether such difference was occasioned by the construction of the road; that if such depreciation arose from a cause other than the construction of the railroad across defendant’s farm, then plaintiff would not be liable therefor. The instruction, taken by itself, is erroneous because of incompleteness, but when all the instructions are сonsidered together, they cover all the issues in the case, present the issues fairly, and are not misleading. “The failure to embrace all the issues of the case in one instruction is not error, if they are included in the series of instructions given, and the latter, as a whole, are correct, not contradictory, nor calculated to mislead.” [Muehlhausen v. Railroad, 91 Mo. l. c. 346; Minter v. Bradstreet Co., 174 Mo. 444.]

Finding no reversible error in the record, the judgment is affirmed.

All concur.