190 P. 159 | Or. | 1920
In arriving at the amount of appellant’s damages, it might
“consider the necessity of the improvements and expenditure of money and labor which the defendants will be required or compelled to make on account of the appropriation or construction of the highway in order to enjoy reasonably such lands to the same extent as before the appropriation, such as the building and maintaining of fences and gates, the reopening or restoring of the passageways upon the land in going to and from one part to another. ’ ’
Thereafter, upon the question of resulting damages, the court told the jury that the defendants would be entitled to recover “the reasonable cost of the construction of a reasonable fence on each side of the right of way, as part of the damages.”
When the court had given its charge and before the jury had retired, the following dialogue occurred between the court and counsel for the appellants:
“Counsel. — The court instructed the jury that they are entitled to consider the cost of the construction of the fence, but there was nothing said about the maintenance of the fence after it was constructed.
“Court. — I do not think the maintenance of the fence would be an element of damages. I think the cost of construction is an element of damages, but not the maintenance.
“Counsel. — We except to the court’s refusal to instruct the jury that the cost of maintenance of the*627 fence, after construction along the right of way, would be an element of damages in the case. And to the instruction of the court that it would not be an element of damages.”
The first portion of the charge was correct. Lewis on Eminent Domain, Volume 2, Section 498, says:
“Where, by taking a part of a tract, additional fencing will be rendered necessary in order to the reasonable use and enjoyment of the remainder, as it probably will be used in the future, and the burden of constructing such additional fence is cast upon the owner of the land; then the burden of constructing and maintaining such fence in so far as it depreciates the value of the land, is a proper element to be considered in estimating the damages. * * It is a question of damage to the land, as land. If, in view of the probable future use of the land, additional fencing will be necessary, of which the jury or commissioners are to judge, and the owner must construct the fence if he has it, then the land is depreciated in proportion to the expense of constructing and maintaining such fencing. Nothing can be allowed for fence, as fence. The allowance should be for the depreciation of the land in consequence of the burden thus cast upon it.”
The effect of the second instruction and the subsequent proceedings between court and counsel was to nullify the first instruction and take from the jury consideration of the cost of maintaining the fences. Under proper pleadings, this would have been reversible' error.
.The judgment is affirmed.
Aeeirmed. Rehearing Denied.