sideration all facts which contribute to produce damage to the land not taken, as they appear from the evidence, and was, therefore, not erroneous. In proceedings instituted by a railroad company to condemn a right of way, the court instructed the jury that in assessing damages they might consider "not only the value of the land taken, but all the facts which contribute to produce the damages to that not taken, as that the farm is put in worse shape for cultivation or pasturage, that some portions of it are more dangerous for use, that there is danger of fire from passing engines, and all other actual inconvenience and damages the property may sustain in its use, not only for the present, but for the future." Held, that this instruction was proper. Chicago, P. & St. L. R. Co. v. Nix, (Illinois, March 31, 1891,) 27 Ñ. E. Rep. 81.

In proceedings to condemn a right of way, the court instructed the jury as follows: "The court instructs the jury that the law is that, when a railroad condemns land for right of way, the jury, in assessing damages to the owner, may take into consideration not only the value of the land taken, but all the facts which contribute to produce the damages to that not taken, as that the farm is put in a worse shape for cultivation or pasturage; that some portion of it is more dangerous for use; that there is danger of fire from passing engines; and all other actual inconvenience and damages the property may sustain in its use, not only for the present, but for the future." Held, that the instruction was proper. The court said: "This instruction is sustained by the views of this court as expressed in Keithsburg & E. R. Co. v. Henry, 79 Ill. 290; Lake Shore & M. S. R. Co. v. Chicago & W. I. R. Co., 100 Ill. 21, 2 Am. & Eng. R. Cas. 454; and Chicago, R. I. & P. R. Co. v. Smith, 111 Ill. 363, 29 Am. & Eng. R. Cas. 558." Chicago, P. & St. L. R. Co. v. Blume, (Illinois, May 9, 1891,) 27 N. E. Rep. 601.

In a condemnation suit, the court instructed the jury that in estimating the damages to the coal mine of the defendants, they should consider as elements of damages any changes they may believe from the evidence to be made necessary, as well as all actual inconvenience and annoyances which the evidence shows would result to the defendants in the operation of their mine. The plaintiff contended, that this instruction assumed as a fact that each of the changes in the mining property and its appurtenances made necessary by the construction of the road would constitute an element of damage, while, as plaintiff contended, some of them might in their final results be of essential benefit. The court held, however, that there was no force in this objection, saying: "If by reason of the construction of the railway the defendants' switches and sidetracks must be taken up and relaid in whole or in part, their tramway remodeled or rebuilt, their scales taken up and removed to another place, and like changes made in other parts of their property, all involving the expenditure of money, as the evidence seems to show will be the case, there can be no doubt that such changes are proper matters to be taken into consideration by the jury in the estimation of damages. It may be that some of these,-as, for instance, the tramway, if rebuilt upon a better plan, of new materials, and with a double track,-may be more valuable and more serviceable than now, but that makes it none the less true that the defendants have a right to have such changes considered by the jury." Chicago, P. & St. L. R. Co. v. Wolf. (Illinois, March 31, 1891.) 27 N. E. Rep. 78.

Value of Improvements Placed on Land by Railroad as an Element of Damages. In an action to condemn a right of way for a railroad, commenced after the construction of the road, the landowner is not entitled to be paid the value of improvements placed upon the land by the railroad company, or its predecessor in interest, before the commencement of the condemnation proceedings. San Francisco & N. P. R. Co. v. Taylor, 86 Cal. 246.

1

In Newgass v. St. Louis, A. & T. R. Co., (Arkansas, Jan. 17, 1891,) 15 S. W. Rep. 188, it was held that the value of a railroad already constructed on the land by the railroad company or its vendors is not to be included in the damages assessed, and in determining the value of the land taken any appreciation or deterioration that may have resulted to it specially from the building of the road on it will be disregarded, but such as may thereby have resulted to it in common with other lands in the neighborhood will be considered. See, also, Albion River R. Co. v. Hessner (Cal.), 44 Am. & Eng. R. Cas. 125, and note p. 129.

Liability of Teams to Become Frightened as an Element of Damage.-In Florence, E. & W. V. R. Co. v. Pember, (Kansas, March 7, 1891,) 26 Pac. Rep. 1, it was held that in assessing damages done to land by reason of the appropriation of a right of way through it for a railroad, the liability of teams to become frightened, or that additional care by the landowner may be necessary in the future as to such teams, by reason of the proximity of the railroad, does not of itself constitute any basis for special compensation. Such damages are speculative, and not the proper subject of inquiry and

damage.

Noise Made by Trains as an Element of Damages. The noise made by passing trains is a proper incident to the operation of a railroad, and in so far as such noise will have a tendency to render farm land less desirable as a place of residence, and therefore, less valuable in the market, it is an element of damage which the jury may consider in assessing damages for a right of way taken by a railroad. Accordingly, it is proper for the court to refuse to instruct the jury that "in this proceeding you cannot allow any damages on account of the noise made by passing trains." Chicago, P. & St. L. R. Co. v. Nix, (Illinois, March 31, 1891,) 27 N. E. Rep. 81. Value of Farming Land if Divided into City Lots as an Element of Damage. -Where farming land is taken by a railroad for a right of way the jury ought to value such land as a whole, in the condition it was immediately before it was condemned, and are not to consider what it would bring if, divided into lots and blocks, and made a part of a city near by. Kansas City & T. R. Co. v. Splitlog. (Kansas, Dec. 6, 1890). 25 Pac. Rep. 202.

Consideration by Jury of Erection of Fences and Crossing by CompanyInstruction. The value of the owner's entire tract with the railroad location on it is to be estimated on the basis that the company will erect and maintain farm crossings as required by statute, and it is error to charge the jury not to consider any advantage arising from the erection of fences and farm crossings by the company. Chicago, M. & St. P. R. Co. . Baker, 102 Mo. 553. The court said:

บ.

The land owner should be al

lowed tract of land before and after the location of the railroad over and across the same; and in applying this rule the jury should consider, in favor of the owner, not only the amount and value of the land actually appropriated, but they should also take into consideration the inconveniences which will arise in going from one porand the shape in which the land not taken is left. On the other hand, the those benefits, if any, which are immediate and direct to the tract, arising from the construction of the road; but benefits which are common to other lands in the same vicinity should be excluded. If the railroad company is not required by law to fence its right of way, then the additional land not taken is a matter to be considered by the jury in favor of the land fencing rendered necessary to the reasonable use and enjoyment of the ciple applies in respect of farm crossings, where the company is not reLewis, Em. Dom. § 498; Mills, Em. Dom. § 212. The same prinquired to make and maintain them. But by our statute it is made the

owner.

duty of the railroad company to erect and maintain fences on the sides of its road, and to make and maintain all necessary farm crossings. Should the company, after three months from the completion of the road, fail to make and maintain such fences and crossings, the land owner may do the work himself, and the statute gives to him a cause of action against the company for the cost of the work, and for his time and trouble in doing it. As this duty of making and maintaining fences and farm crossings is imposed upon the company, and as a specific remedy is given by statute for a failure to perform that duty, it is clear that building fences along the sides of the road, and making farm crossings, do not constitute any part of the damages to be awarded the land owner. 3 Suth. Dam. 444; Jones v. Chicago & I. R. Co., 68 Ill. 380; Winona & St. P. R. Co. v. Waldron, 11 Minn. 515, (Gil. 392.) In the case before us, the company complied with the statute in respect of fences and farm crossings. Any loss, inconvenience, or damage resulting to defendant from a failure to make and maintain fences and farm crossings, after the expiration of the three months, should not be taken into account as augmenting the damages to be awarded. But it was the duty of the jury to take into consideration the fact that the company was bound to erect and maintain such fences and crossings, and they should estimate their damages on the supposition that the company would perform its duty in these respects. In the case last cited it was held that, where the railroad company is required by statute to construct such fences, the damages for taking the land should be assessed upon the basis of the construction of such fences by the company, in accordance with the statutory requisition. The instruction in question excludes from the consideration of the jury any advantage arising from the erection of fences and the making of the farm crossings and it was error to give it. We do not say that the cost of building fences and making farm crossings should be estimated, and the estimated amount deducted from the damages; for it is not true, as counsel for plaintiff seems to suppose, that these fences are built for the sole benefit of the land owner. What we say is this: that in estimating the value of the entire tract of land, with the railroad located over and across it, the estimate should be made on the basis that it is the duty of the company, and not the land owner, to erect and maintain fences and farm crossings. It must be apparent to any one that the damages will not be as great where the company makes and maintains fences and crossings as where that duty falls upon the land owner."

Additional Fences as an Element of Damages. In assessing compensation for the taking of land for a railroad, where there is no evidence that to use and enjoy the land as it would probably be used in the future, any additional fences would be necessary, there is no error in a charge that the landowner is entitled to nothing for fences. Newgass v. St. Louis, A. & T. R. Co., (Arkansas, Jan. 17, 1891), 15 S. W. Rep. 188.

Consideration of Increased Value of Land Owing to Construction of Bulk⚫ head by Railroad.-Where a landowner consents to the construction of a bulkhead by a railroad company, entirely outside of a strip of land taken for a right of way, on condition that the bulkhead should be without cost or expense to him, the increase in the value of the land by reason of the construction of the bulkhead cannot be taken into consideration in estimating the landowner's damages. Harris v. Schuylkill River E. S. R. Co., (Pennsylvania, April 6, 1891), 21 Atl. Rep. 590.

Former Trespass by Company not to be Considered in Estimating Com. pensation. In Canton, A. & N. R. Co. v. French, (Mississippi, Jan. 19, 1891), 8 So. Rep. 512, it was held that a railroad company will not be relieved of liability for a trespass consisting of an unlawful entry upon land, by subsequent proceedings to secure a right of way. Accordingly, in con

sidering what is due compensation for the easement so acquired subsequent to the trespass, the trespass itself is not involved, and is not to be considered. The court said: "The jury of inquest could only determine what injury would be sustained by the landowner by the continuance of the railway over the land as it then was, and could not properly inquire as to what damages the owner of the land had sustained by reason of injuries originally done her adjacent realty. Those injuries had long been done, and the then condemnation involved only a consideration of what the right of way was worth. The condemnation then could only refer to compensation for the loss of the land embraced in the right of way, for no injuries to the land, other than those already done by the original trespass, were to occur. The trespass had been committed, and the injuries resulting therefrom were not involved in second condemnation. The only compensation the jury of inquest could legally award was that for the right of way, pure and simple, and compensation for subsequent injury. The original trespass and its resulting injuries was wholly beyond the domain of that jury's consideration. The liability of the railroad for the trespass had been incurred and was fixed, and could not be affected by the subsequent condemnation, in which it acquired the right of way over the land in its then condition-the condition in which the jury found it when they viewed it."

Landowner Cannot Recover for Independent Trespasses Committed by Company Outside of Land Appropriated. The owner of land taken and appropriated by a railroad company for railroad purposes in condemnation proceed ings can recover in such proceedings only full and complete compensation for all his losses suffered by him, with respect to the entire tract of land, as a result of such appropriation and the construction and operation of the railroad in a legal and proper manner; and cannot recover in such proceedings for independent trespasses committed by the railroad company or its agents outside of the land appropriated by the railroad company. For the recovery of damages for any such independent trespasses the landowner must resort to some other action or proceeding. Leavenworth, N. &. S. R. Co. v. Herley, (Kansas, March 7, 1891), 26 Pac. Rep. 23.

Damages for Flooding Land Not Taken-Injuries Resulting from Improper Construction.--If the appropriation of a part and its use as a railroad results in flooding the land not taken, the damages so occasioned should be included in the assessment, but no account should be taken of injuries which may result from an improper construction or maintenance of the 15 S. W. Rep. 188. Newgass v. St. Louis, A. & T. R. Co., (Arkansas, Jan. 17, 1891),

roadbed.

Damages Resulting from Proper Construction of Road-Time to which Damages are Confined Instructions. In Chicago & I. C. R. Co. v. Hunter, (Indiana, May 1, 1891), 27 N. E. Rep. 477, it was held to be proper in condemnation proceedings for the court to refuse to instruct the jury that if the road has not been completed, they should, in estimating damages, only consider such as would naturally result from the proper construction of the road, and such as are confined to the time immediately after the appropriation of the land. The court said: "It may well be said, as an abstract proposition, that the damages proper to be awarded in such cases are only such as will result from a proper construction of the road. The presumption is that the road will be constructed in a proper manner. For injuries resulting from a negligent construction, or from any willful misconduct in its construction, an action will lie, notwithstanding the property has been regularly condemned and compensation awarded. Pittsburgh, Ft. W. & C. R. Co. v. Gilleland, 56 Pa. St. 445; Railroad Co. v. Daniel, 20 Gratt. (Va.) 344. The rule in condemnation proceedings is that all damages, present or prospective, that are the natural or reasonable in

cident of the improvement to be made or work to be constructed, not including such as may arise from negligence or unskillfulness, or from the wrongful act of those engaged in the work, must be assessed. Damages are assessed once for all, and the measure should be the entire loss sustained by the owner, including in one assessment all injuries resulting from the appropriation. Elliott, Roads & S. 199, and cases there cited; White v. Chicago, St. L. & P. R. Co., 122 Ind. 317, 43 Am. & Eng. R. Cas. 156. In instruction numbered 8, tendered by the appellant, and those numbered 2 and 3, tendered by the appellee, the court gave to the jury full and fair instructions relating to the measure of damages. Among other things, the jury were properly instructed that they might consider the manner in which the land was divided by the line of the railroad as affecting the size and shapes of the fields, as affecting the access of stock to water, as affecting the passage of stock from one part of the farm to another, as affecting the possible danger from fire emitted from the locomotives; to which might have been added many other things either annoying or hurtful, necessarily incident to the permanent location and operation of a railroad across one's premises. We think the tendency of the above instructions, numbered 10 and 11, if given to the jury, would have been to confuse, if not mislead them. The rule indicated, when addressed to a jury for their guidance, is too narrow, and, in our judgment, the court did not err in refusing to give them."

Improper Construction of Road or Negligent Management not to be Con sidered. In assessing damages for the taking of land for railroad purposes, what may or may not happen owing to an improper construction of the railroad, or owing to its negligent operation, are not matters that enter into the question of compensation. Louisville & N. R. Co. v. Asher, (Kentucky, Feb. 12, 1891), 15 S. W. Rep. 517.

Constitutional Provision Making Railroads Liable for Consequential Dam⚫ ages-Previous Charter Contract-Exemption from Future General Legisla tion. Neither the charter of the Pennsylvania R. Co., contained in an act of the legislature of Pennsylvania, passed April 13, 1846, (Laws of 1846, No. 262, p. 312), nor the acts supplementary thereto, nor the act of that legislature passed May 16, 1857, (Laws of 1857, No. 579, p. 519), constituted such a contract between the state and the company as exempted the latter from the operation of § 8 of art. 16 of the constitution of Pennsylvania of 1873, requiring that corporations invested with the privilege of taking pri vate property for public use should make compensation for property injured or destroyed by the construction and enlargement of their works, highways, or improvements; nor did such constitutional provision, as applied to the company, in respect to cases afterwards arising, impair the obligation of any contract between it and the state. The company took its original charter subject to the general law of the state, and to such changes as might be made in such general law, and subject to future constitutional provisions and future general legislation, since there was no prior contract with it exempting it from liability to such future general legislation, in respect of the subject matter involved. Exemption from future general legislation, either by a constitutional provision or by an act of the legis lature, cannot be admitted to exist, unless it is expressly given, or unless it follows by an implication equally clear with express words. Pennsylvania R. Co. v. Miller, 132 U. S. 75. BLATCHFORD, J., said: "The defendant took its original charter subject to the general law of the state, and to such changes as might be made in such general law, and subject to future constitutional provisions or future general legislation, since there was no prior contract with the defendant, exempting it from liability to such future general legislation in respect of the subject matter involved. This principle is well set forth in the opinion of the justices of the supreme