was before the laying out of the road, the party is entitled to no compensation.6

*7. This is certainly not in conformity with the general course of decision upon this subject. It is the only case, probably, where an attempt is made to escape from such a constitutional provision, in this manner. Some will doubless regard it as too refined to be sound. And if it is true, as is sometimes claimed, that the legislature had no right to resume the fee of land for highways and railways, such a constitutional provision, with such a construction, would have little application to the taking of land for such uses.7

• Livermore v. Jamaica, 23 Vt. R. 361. This case has been questioned. 1 Bennett's Shelford on Railways, 441. See also Reitenbaugh v. Chester Valley Railw., 21 Penn. St. 100. Contra, McMahon v. Cincinnati Railw., 5 Ind. R. 413; 3 Id. 543.. Benefits arising to the owner of the land "by the construction of the road" held not to have reference to the whole work, but to that particular portion which runs through the party's land. Milwaukee & Mis. R. v. Eble, 4 Chand. 72. An act which provides for setting off the advantages to other land against the value of the land taken, is not, on that account, unconstitutional. McMasters v. Commonwealth, 3 Watts, 292. But it has very often been held, that such accidental advantages, especially where they are not peculiar to the particular land-owner, cannot be set off against the specific value of the land taken. State v. Miller, 3 Zab. 383; Woodfolk v. Nash. & Ch. Railw., 2 Swan, 422; Hill v. M. & H. Railw., 5 Denio, 206; Keasy v. Louisville, 4 Dana, 154; Sutton v. Louisville, 5 Dana, 28; People v. Mayor of B., 6 Barb. 209. But many cases hold the contrary. People v. Mayor of Brooklyn, 4 Comst. 419, where s. c. 6 Barb. 209, is reversed; Rexford v. Knight, 15 Barb. 627. But where profits are to be taken into the account, the title to have them considered obtains, at the time the servitude is located. Palmer Co. v. Ferrill, 17 Pick. 58. Benefits by increase of business and population, markets, schools, stores, and other like improvements, cannot be considered, in estimating damages, for flowing land, by a mill-dam. Ib.

In a recent case in New Hampshire, petition of the Mount Washington Road Company, 35 N. H. R. 134, it was decided, that in assessing damages for land taken for a turnpike, or free highway, compensation is to be given for the actual value of the land taken, without regard to any speculative advantages or disadvantages to the owner from the making of the highway. See Cushman v. Smith, 34 Maine R. 247. But in Indiana Central Railw. v. Hunter, 8 Ind. R. 74, the same rule is adopted, as in the case first cited in this note.

7 Hatch v. Vermont Central Railw. Co., 25 Vt. R. 49; Reitenbaugh v. Chester Valley Railw., 21 Penn. St. 100. Contra, Little Miami Railw. v. Naylor, 2 Ohio R. N. S. 235. And in a case in Mississippi, Brown v. Beatty, 34 Miss. R. 227, where the constitution required "compensation first to be made ” for land

8. The English statute provides, that, in estimating compensation for land damages "regard shall be had not only to the land taken, but also to damage, by reason of severance from other lands, or otherwise injuriously affecting such lands." There are, too, in the English statute, provisions for compensation to sundry subordinate interests in lands, as to lessees for years, and to tenants from year to year. And also in regard to mines. The company are not entitled to mines or minerals under lands, except such parts as shall be necessary to use in the construction of the road, unless expressly purchased. It has been held that stone got from quarries are * minerals, and that mines are quarries, or places where anything is dug. By the English statute,

9

8

taken, it was held the provision secured to the owner the right to receive the cash value in money, and, in addition, full indemnity for all damages by means of severance, and that no enhanced value of the portion of land not taken could be taken into the account. See also Branson v. Philadelphia, 47 Penn. St. 329. Henry v. Dubuque & Pacific Railw. Co., 10 Iowa, 540. It is said in one case, what is very nearly a truism, that corporate existence and the right of eminent domain can only be derived from legislative grant, and that both must be shown to justify taking lands compulsorily, and also compliance with all conditions of the grant, Atkinson v. Marietta & Cin. Railw. Co., 15 Ohio St. 21. Post, § 76. The dedication of land to the use of a street will not authorize the legislature to appropriate it to the use of a railroad track without compensation to the owner, and if this is attempted it may be restrained by injunction. Schurmeier v. St. Paul & P. Railw., 10 Minn. R. 82. And in Whitman v. Boston & Maine Railw., 3 Allen, 133, it was decided, that if, by means of the location of a railway over a part of a lot of land, and the filling up of a canal in which the owner had a privilege, the value of the lot was so enhanced that what remained was worth more than the entire lot was before, the owner had no claim for damages, - proof of all the business done upon land is not competent to show its value. Ib. 8 Micklethwait v. Winter, 5 Eng. L. & Eq. 526.

9

Hodges on Railways, 238, note (y). The more common mode of estimating land damages unquestionably is, to give the company the specific benefit caused to land, a portion of which is taken, in the enhancing the value of the same, and only to allow the land-owner such a sum as will leave him as well off in regard to the particular land as if the works had not been built, or his land taken. This is done by giving the land-owner a sum equal to the difference between what the whole land would have sold for before the road was built, and what, the remainder will sell for after the construction. Harvey v. Lack. & Bloomsburg Railw., 47 Penn. St. 428. But this rule will, in many cases, prove entirely inadequate and unsatisfactory, and where it has been adopted it may be regarded as only extending to other cases of a very similar character. Win. & St. Peters' Railw., v. Denman, 10 Minn. R. 267.

the company may remove or displace gas or water pipes, making compensation to all parties injured.

9. And where commissioners appraise the damages upon the basis of the railway making and maintaining certain works for the accommodation of the land-owner, as a culvert and wasteway, etc., it was held this portion of the award was not void, but if acquiesced in by the company, and the land taken, and compensation made upon that basis, they thereby become bound by its provisions.10 But where it was referred to arbitration to estimate the damages caused to the plaintiff, and the company by the express terms of its charter was bound to make suitable crossings for the accommodation of land-owners through whose land the right of way was taken, and the land-owner told the agents of the company, at the hearing before the arbitrators, that he should require a crossing to be provided for his convenience; and the agents claimed that the arbitrators had nothing to do with this matter, and that claim was acquiesced in by the arbitrators and the parties, and the award only embraced the damage to the land, and subsequently the land-owner was induced to convey to the company the right of way, without annexing a condition binding the company to maintain a crossing for his accommodation; upon the assurance of the counsel of the company that such deed would not affect his right to claim a crossing, it was held, upon a bill to reform the deed and to establish his right to the crossing, that he was entitled to the relief sought, and an injunction was granted accordingly.1 11

But where a private way crossed the line of railway obliquely, and the award of land damages only indicated the point at which the company were to supply a crossing, it was held a sufficient compliance with the obligation of the company to give a crossing at right angles, although this did not connect with the termini of the road or afford any access to it.12

10. In some of the states in this country, the advantages and disadvantages of taking land for a railway are required to be stated in the report of appraisal, and the omission to make such

10 Morse, Petitioner, 18 Pick. 443.

11 Green v. Morris & Essex Railw. Co., 1 Beasley, 165.

12 Mann v. Great S. & W. Railw. Co., 9 Ir. Com. L. Rep. 105.

specific statement was held a fatal omission.13 So too, where additional *expense of fencing is allowed in improved land, the report must specify that fact.14

13 Ohio & Pennsylvania Railw. v. Wallace, 14 Penn. St. 245; Reitenbaugh v. Chester Valley Railw., 21 Penn. St. 100; R. R. Co. v. Gilson, 8 Watts, 243; Zack v. Penn. Railw. Co., 25 Penn. St. 394. But it has been held, in some cases, where the advantages resulting to the land-owner were to be taken into the account, that the value of the land need not be stated separately from the damage, in an award of arbitrators, but only the amount of the whole injury. At all events, such amendments will be allowed, as to cure such defects. Greenville & Columbia Railw. v. Nunnamaker, 4 Rich. 107.

Questions have sometimes been made, in regard to which party, in proceedings of this character, is entitled to go forward, in the proofs and argument. Upon principle, and in analogy to similar proceedings upon other subjects, we think there can be little doubt this right is with the land-owner, in the proceedings before the jury and the commissioners or arbitrators, where he is to all intents actor. But after having obtained an award, it has been more usual, in practice, to allow the excepting party to go forward. 1 Greenleaf's Ev. §§ 76, 77; Connecticut River Railw. v. Clapp, 1 Cush. 559; s. c. 1 Am. Railw. C. 450; Mercer v. Whall, 5 Q. B. 447.

But see Albany N. Railw. Co. v. Lansing, 16 Barb. 68, where the court say, "The commissioners have the right and power to exercise their own discretion in reference to the order that they take in appraising the land. They may view the land first and hear the proofs and allegations afterwards, or vice versâ. So whether one party or the other should first be heard is for them to determine. Having decided that the railway corporation might open and close the hearing, the defendant was concluded by their decision, as also would their decision have been conclusive on the company had the same privilege been awarded to the owner of the land." But where the error in the exercise of this discretion does manifest wrong, at nisi prius, the verdict will be set aside for this reason alone in the full bench. 1 Greenleaf's Ev. 104 and note, § 76.

But awards of land damages have been set aside for excessive damages. Somerville & Easton Railw. v. Doughty, 2 Zab. 495. But this subject was somewhat considered in Troy & Boston Railw. v. Lee, 13 Barb. 169; Same v. Northern Turnpike Co., 16 Barb. 100; and it was held that such award should not be set aside, unless it appeared that the commissioners erred in the principles by which their judgment should be guided, or were clearly mistaken in the application of correct principles. This is putting them much upon the same ground as awards in other cases. And in Walker v. Boston & Maine Railw., 3 Cush. 1, it was held, that the common pleas, to whom the verdict of a sheriff's jury is to be returned, and who may set the same aside, for any good cause, were justified in doing so, for irregularity in impanelling the jury; or in the conduct of the jury; or in the instructions given the jury by the sheriff; or for facts affecting the

14 New Jersey Railw. v. Suydam, 2 Harrison, 25.

11. But in general there is no discrimination made in the report estimating damages for taking land for public works, between the value of the land appropriated and the incidental injury from severance and otherwise; and unless specially required by the charter of the company or some other legislative act, such discrimination does not seem indispensable to the validity of the report, but would unquestionably, in the majority of cases, tend to render the report more satisfactory.15

12. In contracts between railway companies and land-owners, in regard to farm accommodations, if the company desire to retain any special distinction conferred by statute, they must incorporate the statute, either in terms or by reference, into the contract. Otherwise the company will be held strictly to the terms of the contract as applied to the subject-matter.16

13. Where there is any controversy in regard to the mode of crossing highways and turnpikes by railway companies, the court will refer the matter to men of experience and skill in such questions.17

14. A permission in a railway charter to cross a street or highway by a level crossing, by making a bridge over the street for the accommodation of foot passengers, is not peremptory upon the company. They may still be permitted to cross the street otherwise than on a level on their undertaking to abide by any order the court might make as to damages.18

15. Where land is sold to a railway company upon condition of furnishing such farm accommodations as the land-owner should notify to the company within one month, time is regarded as of the essence of the condition, and if notice is not given within the time limited the court will neither order the company to make such accommodations as are demanded, or even such as are proper.19 purity, honesty, or impartiality of the verdict; such as tampering with the jury or other misconduct of the party; or any irregularity or misconduct of the jurors. But in a court of error the verdict can only be set aside for error appearing of record. But see § 72, post; Nicholson v. New York & New Haven Railw., 22 Conn. R. 74.

15 Trenton Water Power Co. v. Chambers, 2 Beasley, 199.

16 Clarke v. M. Sh. & L. Railw. Co., 1 Johns. & H. 631.

17 Atty.-Genl. v. Dorset Railw. Co., 3 Law T. N. S. 608.

18 Dover Harbor v. L. C. & Dover Railw. Co., 7 Jur. N. S. 453.

19 Darnley v. London, Chatham, & Dover Railw. Co., 11 Jur. N. S. 520 ; s. c.

9 Id. 148, where the Vice-Chancellor decided otherwise.