52 Colo. 527 | Colo. | 1911
delivered the opinion of the court.
The purpose of the testimony objected to, and the effect of the instruction given, was to permit the jury, in determining the damages to the residue of the land of respondent, to take into consideration the fact that petitioner had constructed the drain ditch, and that thereby seepage water which would otherwise find its way on-to the lands of respondent would be intercepted, and thus her damages on that account lessened. On this subject the trial court ruled and instructed to the effect that while petitioner was not entitled to any compensation for the construction of the drainage ditch, yet in assessing the damage to the lands of respondent, that would be caused by seepage from the intake canal, the existence of the drainage ditch and its effect in arresting or preventing seepage,, should be taken into consideration. So that, the onlysquestiofi presented for determination is, whether or not .respondent’s .damages could be lessened by a consideration of these matters. She is entitled to her damage
The law provides that certain benefits may be considered in assessing damages for land taken under- the Rminent Domain Act, but such benefits are those growing out of the improvement itself, and not those derived from some other independent improvement. Respondent is entitled to have the “just compensation" provided by law paid in money, and she cannot be required, in lieu thereof, to accept, in whole or in part, any benefit except she consents, which the law does not recognize-. The money she is entitled to receive as damages she may employ in any
But it is not necessary to discuss the subject further,because it is clear, from the decisions of this court in Burlington & C. R. Co. v. Schweikart, 10 Colo. 178, and Great Western Ry. Co. v. Ackroyd, 44 Colo. 454, that the trial court erred in admitting the testimony referred to, and in instructing the jury, as also by refusing to give the instruction requested. ' From these cases, the principle which controls the case at bar is deducible; which is to (he effect that the constitution and the Eminent Domain statute contemplate a compensation in money to One whose lands are taken under the Eminent Domain Act; that these requirements cannot be satisfied or dispensed with 'by requiring him to accept a plan, device or structure of the petitioner designed to lessen his damage, which is no part of, and entirely independent of the structure'or improvement for which the land is -taken, but that Ire is‘entitled to make such provision for Himself, and recover, as an element of his damage, what it would cost him.
' -Respondent’s damages should have been assessed without'regard to the seepage ditch.' We might acid; that
.,.!...,.Counsel .for..petitioner call attention..to authorities wherein it has been held that any fact which, by reason of tire conditions upon which the property1 is' taken, or the character of the .'improvements, or'the manner in which it is¡.ma.de,.-.or-:the nature and..situation of the land taken, or-'the ¡residue, tends to-reduce the damages otherwise-ac1 crulng to the land owner,'may properly be considered in favor of the appropriator in the assessment of damage. It is .not .necessary to go into .a discussion of .this proposition, for the very obvious reason that the ditch .which petitioner contended below should be considered in assessing • damages,•■ is in no sense connected with,' Or a part of, the intake canal. '■ . '
The judgment of the-district court is reversed and the cause remanded for further proceedings in harmony with- the views expressed in this opinion.. .
Reversed and remanded'.
