| Ill. | Jan 15, 1868
delivered the opinion of the Court:
It was held in the case of T. & P. R. R. Co. v. Unsicker, 22 Ills., 223, that the cost of erecting and maintaining a fence was'a proper element of damages in condemning land for railway purposes. The same principle was applied in R. Island & Alton R. R. Co. v. Lynch, 23 Ills., 645. These cases must be considered as settling the construction of the statute. The 2d section of the law of 1855 in regard to fencing railways, evidently contemplates that the cost of fencing may be assessed as damages, and when these damages are paid, the company may maintain an action against the owner if he neglects to fence, and this obligation becomes a covenant running with the land.
But it was also held, in the case of the Jacksonville & Savanna R. R. Co. v. Kidder, 21 Ills. 134, that in assessing damages for the condemnation of land, the plans of the company for the construction of the road were admissible in evidence, to enable the jury to fix the damages with more precision, and if afterward the company should so change its plans as to inflict greater injury on the land owner, he could bring his action on the case, and recover the increased damages. Under this ruling, the evidence offered in this case, showing the company had contracted for the building of the fence through the appellee’s land in two weeks, and provided the lumber, should have been admitted. The appellee, under this evidence, would have been entitled, in regard to the fence, only to such sum as would cover the cost of keeping it in repair, and if the company should fail to fence, the appellee could recover the cost of building it hereafter. The finding of the jury should show on what basis the damages are assessed, in order that the record may show hereafter the rights of the parties.
Judgment reversed.