struction of a right of way appurtenant to land outside of the location; and injuries to property in wharves and flats.2 But the depreciation in the value of land not taken, resulting, not from any works of the company so near as to cause direct physical damage, but from inconveniences common to the community, as where a railroad is laid across a highway leading to the estate, -is not an injury within the statute.3

English Statutes.-The liability of railway companies in England for land taken and injuries done in the lawful execution of their works is determined by two acts of Parliament, passed in 1845, which prescribe a special remedy for injuries sustained thereby. The first, "The Lands Clauses Consolidation Act," ch. 18, 8 & 9 Vict., provides, § 68, a remedy for "any party" who "shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works." The second, "The Railway Clauses Consolidation Act," ch. 20, 8 & 9 Vict., provides, § 6, that in exercising the power given to the company by the special act to construct the railway, and to take lands for the purpose,... the company shall make to the owners and occupiers of, and all other parties interested in, any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken. or used, and for all damage sustained by such owners, occupiers, and other parties, by reason of the exercise, as regards such lands, of the powers by this or the special act, or any act incorporated therewith, vested in the company;" and further, § 16, that the company may do all other acts necessary for making, maintaining, altering, or repairing and using the railway, provided always that, in the exercise of the powers by this or the special act granted, the company shall do as little damage as can be, and shall make full satisfaction in manner herein, and in the special

66

1 Parker v. Boston & M. R., 3 Cush. 107; Boston Gas Light Co. v. Old Colony & N. R. Co., 14 Allen, 444.

2 Ashby v. Eastern R. Co., 5 Met. 368; Commonwealth v. Boston & M. R., 3 Cush. 25; Boston & W. R. Co. v. Old Colony R. Co., 12 Cush. 605; Boston r. Richardson, 105 Mass. 351, 363; Drury v. Midland R. Co., 127 Mass. 571, 583.

3 Proprietors of Locks & Canals v. Nashua & L. R. Co., 10 Cush. 385; Presbrey v. Old Colony & N. R. Co, 103 Mass. 1; Walker v. Old Colony & N. R. Co., 103 Mass. 10; Caledonian R. Co. v. Ogilvy, 2 Macq.229. See Boston & M. R. v. Old Colony R. Co., 12 Cush. 605; Gear v. C. C. & D. R. Co., 43 Iowa, 83.

act, and any act incorporated therewith, provided to all parties interested for all damage by them sustained by reason of the exercise of such powers." 1

These acts are construed as securing, but not enlarging, existing rights, and as supplying a new remedy only where one would have been available at common law if the act complained of had not been authorized by Parliament. In determining whether land, not taken, has been "injuriously affected," so as to entitle the owner to compensation, such injuries are to be considered, and such only as would have been actionable if the company had proceeded without statutory powers.2 Thus, the overlooking of the premises from the railway and the obstruction of a view, or the vibration, smoke, and noise caused by passing trains, although depreciating the market value of land, are held not to "injuriously affect" it in the sense of the statute. But the obstruction of a private right of way, appurtenant to an estate, by means of gates erected by the company, was held to entitle the owner of the estate, though it was not crossed by the railway, to compensation. If, however, land is taken under the act, the owner's compensation is not limited to injuries actionable at common law; but he is, in such a case, entitled to compensation for the depreciation in the value of his estate arising from the vibration, smoke, or sparks caused by or issuing from the engines, or from loss of the "amenities," as of view and privacy.

The peculiar terms used in the acts, as "the execution of the works," "the construction" of the railway, and "the exercise of

1 There is a difficulty in stating the construction of these acts, growing out of the conflicting cases, the dissenting opinions, and the reversal of judgments. In Rickett v. Metropolitan R. Co, L. R. 2 H. L. 175, where the cases are reviewed, the Lord Chancellor, Chelmsford, confessed, "It appears to me to be a hopeless task to attempt to reconcile the cases upon the subject."

2 Glover v. North Staffordshire R. Co., 16 Q. B. N. s. 912; Ricket v. Metropolitan R. Co., L. R. 2 H. L. 175, 5 B. & S. 149, 156; Hammersmith & C. R. Co. v. Brand, L. R. 4 H. L. 171, L. R. 2 Q. B. 223, L. R. 1 Q. B. 130; Senior v. Metropolitan R. Co., 2 H. & Colt. 258; Chamberlain v. West End of London & C. P. R. Co., 2 B. & S. 605; Broadbent v. Im

perial Gas Co., 7 De Gex, M. & G. 436, 456. See ante, p. 199.

3 Penny's Case, 7 El. & 'B. 660.

4 Hammersmith & C. R. Co. v. Brand, L. R. 4 H. L. 171, L. R. 2 Q. B. 223, L. R. 1 Q. B. 130.

5 Glover v. North Staffordshire R. Co., 16 Q B. N. s. 912.

6 Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418, L. R. 5 Exch. 221, L. R. 3 Exch. 306; Stockport, T., & A. R. Co., In re, 33 Law Jour, N. s. 251; Hammersmith & C. R. Co. v. Brand, L. R. 4 H. L. 171, L. R. 2 Q. B. 223, L. R. 1 Q. B. 130; post, p. 216. See Patton v. Northern Cent. R. Co., 33 Pa. St. 426. As to injuries to mineral property, see Smith v. Great Western R. Co., L. R. 3 App. Cas. 165.

the powers," have been thought by some judges to limit the compensation to injuries occasioned by the construction of the railway to the exclusion of those occasioned by its mere use; but other authorities have rejected this narrow construction.1

The remedy provided by these statutes, while including only actionable injuries as an independent ground for compensation, has been considered not to extend to all such injuries. It does not apply to injuries from the company's works which, if committed without the authority conferred by statute, would be a public nuisance causing special damage and giving a private right of action. Thus, the land-owner was held not entitled to compensation where, without any of his land being occupied, a railway under due authority was constructed with gates across a public road, which was the principal access to his estate, thereby subjecting him to interruption in passing to and fro, to the frightening of his horses,2 or to the loss of business and good-will. A distinction is taken in some cases between an injury to land which is within the statute and an injury to the owner in the way of inconveniences essentially personal in their nature, which is not within it. The statute remedy excludes actions at law for injuries to which it applies.5 It does not extend to any acts not authorized by the statute; or to injuries arising from the negligent or unskilful construction of the company's works, or from default in not complying with the statute.7

Damages, of what Time assessed.

The damages are assessed as of the time of the taking. In different jurisdictions the act of taking

8

1 Hammersmith & C. R. Co. v. Brand, L. R. 4 H. L. 171, 186, 198, L. R. 2 Q. B. 223, L. R. 1 Q. B. 130; Penny's Case, 7 El. & B. 660.

smith & C. R. Co. v. Brand, L. R. 4 H. L. 171, 198.

5 Vaughan v. Taff Vale R. Co., 5 H. & N. 679, 3 H. & N. 743; Hammersmith & C.

2 Caledonian R. Co. v. Ogilvy, 2 Macq. R. Co. v. Brand, L. R. 4 H. L. 171, L. R. 229.

3 Ricket v. Metropolitan R. Co., L. R. 2 H. L. 175, 5 B. & S. 149, 156; Cameron v. Charing Cross R. Co., 19 C. B. N. s. 764, 16 C. B. N. s. 430. But see Chamberlain v. West End of London & C. P. R. Co., 2 B. & S. 605; Senior v. Metropolitan R. Co., 2 H. & Colt. 258.

✦ Chamberlain v. West End of London & C. P. R. Co., 2 B. & S. 617; Ricket v. Metropolitan R. Co., L. R. 2 H. L. 175, 5 B. & S. 149, 156; Hammer

2 Q. B. 223, L. R. 1 Q. B. 130; ante, p. 177. 6 Lawrence v. Great Northern R. Co., 16 Q. B. 643; Broadbent v. Imperial Gas Co.. 7 De Gex, M., & G. 436; ante, p. 179.

7 Bagnall v. London & N. W. R. Co., 7 H. & N. 423; Broadbent v. Imperial Gas Co., 7 De Gex, M. & G. 436; ante, p. 179.

8 Parks v. Boston, 15 Pick. 198; Edmands v. Boston, 108 Mass. 535; Old Colony R. Co. v. Miller, 125 Mass. 1; Daniels v. C. I. & N. R. Co., 41 Iowa, 52; Cook v. South Park Com'rs, 61

is fixed at different stages in the proceedings for condemnation, -as at the time of the filing of the location in some public repository, as required by statute, though on a failure to comply with the statute other acts may be deemed a taking; 2 the time of making the assessment or award; the filing or approval of the award;4 the commencement of proceedings to condemn; 5 the filing of the petition to condemn; 6 the beginning of the construction; and the trial of the question of damages on appeal.8

Measure of Damages.

3

General Rule. Difference in Market Value of the Tract or Lot before and after the Taking. Where the owner's whole tract or lot is taken, its market value at the time of the taking is the measure of compensation. Where only a part of the same tract or lot is taken, it must be treated not as a separate and independent piece, but in its relation to the part not taken. The injury to the remaining tract or lot may be far greater than the value of the strip appropriated for the location, if estimated by the proportion its superficial area bears to that of the whole tract or lot. The company can rarely consult individual convenience, or harmonize with the owner's plan of utilizing his estate, but it must determine its route and grade with reference chiefly

Ill. 115; Chicago & I. R. Co. v. Hopkins, 90 Ill. 316; Robbins v. Mil. & H. R. Co., 6 Wis. 636; Isom v. Miss. Cent. R. Co., 36 Miss. 300; Graham v. Connersville & N. C. J. R. Co., 36 Ind. 463.

1 Charlestown Branch R. Co. v. County Com'rs, 7 Met. 78; Davidson v. Boston & M. R., 3 Cush. 91; Boynton v. Peterborough & S. R. Co., 4 Cush. 467; Boston & M. R. v. Midland R. Co., 1 Gray, 340, 360; Hazen v. Boston & M. R., 2 Gray, 574; Whitman v. Boston & M. R., 7 Allen, 313, 326; Ham v. Salem, 100 Mass. 350; Bemis v. Springfield, 122 Mass. 110; Old Colony R. Co. v. Miller, 125 Mass. 1; Morris & E. R. Co. v. Blair, 1 Stock. 635; Logansport, C., & S. R. Co. v. Buchanan, 52 Ind. 163; Lafayette, M., & B. R. Co. v. Murdock, 68 Ind. 137. See San Francisco & S. J. R. Co. v. Mahoney, 29 Cal. 112; ante, p. 171.

2 Davidson v. Boston & M. R., 3 Cush. 91, 106; Boston & P. R. Co. v. Midland R. Co., 1 Gray, 340, 361; Troy & B. R. Co. v. Potter, 42 Vt. 265.

3 Winona & St. P. R. Co. v. Denman, 10 Minn. 267; Carli v. Stillwater & St. P. R. Co., 16 Minn. 260; Warren v. St. P. & P. R. Co., 18 Minn. 384; St. Paul & S. C. R. Co. v. Murphy, 19 Minn. 500; Sherwood v. St. Paul & C. R. Co., 21 Minn. 122; Whitacre v. St. Paul & S. C. R. Co., 24 Minn. 311; Metler v. Easton & A. R. Co., 8 Vroom, 222; Dearborn v. Boston, C., & M. R, 24 N. H. 179.

Driver v. Western Union R. Co, 32 Wis. 569; Lyon v. Green Bay & M. R. Co., 42 Wis. 538; St. Joseph & D. R. Co. v. Orr, 8 Kan. 419; Neal v. Pittsburg & C. R. Co., 31 Pa. St. 19; Beale v. Penn. R. Co., 86 Pa. St. 509; Hudson River R. Co. v. Outwater, 3 Sand. 689.

5 Oregon & C. R. Co. v. Barlow, 3 Oreg. 311.

6 South Park Com'rs v. Dunlevy, 91 Ill. 49.

7 Indiana Cent. R. Co. v Hunter, 8 Ind. 74; Logansport, C., & S. R. Co. v. Buchanan, 52 Ind. 163.

8 Arnold v. Covington & C. Bridge, 1 Duvall, 372.

1

to its general scheme and the safe and profitable working of the railroad. The particular use, also, to which the part taken is to be devoted may interfere with the enjoyment and affect the value of the remaining land to a far greater degree than if the part taken was to be devoted to the ordinary purposes for which the whole tract was available before the taking. The owner may therefore be injured not merely by the subtraction of so many feet or acres from his estate, valued as if sold for an ordinary purpose and according to a plan devised for the most profitable use of the whole, but still more by the mode of the taking and its effect on the property which is left, viz., the way in which the railroad cuts the tract or lot, as diagonally, by a curve, or otherwise; the inconvenient shape. in which the remaining part is left; the depth of excavations or height of embankments; the obstruction or entire interruption of access to public or private ways; the division of the tract or lot into different parts, so that persons or cattle cannot pass from one to the other, or, if at all, only with greater or less difficulty and danger; and the exposure of the owner's property, as buildings, forests, and crops, to particular injury from proximity to the railroad. Accordingly, in the interpretation of statutory and constitutional provisions which require compensation for the value of land taken, or for damages occasioned, or for the injurious affecting of property, or which use other like terms, the owner is held entitled not only to the value of the part applied to the exclusive use of the company, but to compensation for injury to the remaining portion of the same lot or tract. The general rule of damages, which covers the part taken and the injury to the remaining land, is, that the owner is entitled to the difference between the market value of the whole lot or tract before the taking, and the market value of what remains to him after such taking. Damages to the owner's remaining property are recoverable, though not specially alleged.2

1 Henderson v. New York Cent. R. Co., 78 N. Y. 423, 17 Hun, 344; Furman Street Case, 17 Wend. 649; William & A. Streets, In re, 19 Wend. 678, 690; Troy&B. R. Co. v. Lee, 13 Barb. 169; Canandaigua & N. F. R. Co. v. Payne, 16 Barb. 273; Albany & N. R. Co.

v. Lansing, 16 Barb. 68; Rochester & S. R. Co. v. Budlong, 6 How. Pr. 467; Utica, C., & S. R. Co., In re, 56 Barb. 456; Poughkeepsie & E. R. Co., In re, 63 Barb. 151; Black River & M. R. Co. v. Barnard, 9 Hun, 104; Prospect & C. I. R. Co., In re, 13 Hun, 345, 16 Hun,

2 Drury v. Midland R. Co., 127 Mass. 571, 581. But see Chicago & I. R. Co. v. Hopkins, 90 Ill. 316.