accordingly held that in the estimate of damages must be included exposure to fire, injury to access, and depreciation through noise, smoke, and increased danger. It has also been said that the rule is the difference in value between what the property is worth without, and what it will be worth with the improvement.(") And in one of the latest cases () in the Court of Appeals it is laid down that the rule is, first, the value of the land taken, and second, compensation for all the injury sustained through the improvement. It is obvious that none of these rules wholly excludes benefits "real or supposed." But the first does it as nearly as may be. If attention is confined to the depreciation caused by the taking, no benefits would be allowed for which came from the use of the improvement itself, and this was no doubt the design of the statute. If it be said that benefits from the taking itself (as by leaving the parcel of land in an improved condition) were nevertheless to be taken into account, the answer is that it is not to be supposed that the legislature intended to guard against this, for we cannot ascertain the damage caused by a taking without allowing for benefits proceeding from the same cause. The object of the statute was that the exclusion of benefits should be a sort of offset to the burden imposed by the rule of damnum absque injuria. The moment the market value of the land as affected by the improvement (i. e., by the use) is resorted to as a standard, benefits intended by the statute to be excluded, are in some way or other allowed for, and now lest the () Matter of Furman St., 17 Wend. 649; Troy & Boston R.R. Co. v. Lee, 13 Barb. 169; People v. Eldredge, 3 Hun 541; Matter of New York, L. & W. Ry. Co., 27 Hun 151; Black River & M. R.R. Co. v. Barnard, 9 Hun 104. Henderson v. New York C. R.R. Co., 78 N. Y. 423, 433. statute should be deprived of all force and effect, the distinction between general and special benefits is resorted In the first place, the land-owner may recover the full value of the part taken, notwithstanding its value may have been enhanced by the improvement, and then the enhancement in value of the part not taken, so far as it is due to general benefits, is to be disregarded, while special benefits must be allowed for. If we simply subtracted the value of the entire tract as it will be when affected by the improvement from the value of the entire tract as it stands at the time of the taking, we should get the real damages, which might of course be merely nominal, and in this way we should nullify at once the statute and the old rule with regard to consequential damages, so-called. The courts of New York have hesitated to take this extreme step, and still give some effect to the statute, although they have materially modified the rule on account of which the statute was enacted. We shall return to this subject again when we come to examine the decisions turning on the elevated railroad statutes. 1146. Kentucky.-In Kentucky the land taken must be paid for without reference to benefits, and the measure of damages for this is the difference between the value of the entire tract (excluding the enhancement resulting from the contemplated improvement) and its value (still excluding the enhancement) after the appropriation of the part taken. Benefits both general and special may by statute be set off against the "incidental" damages, but not against the value of the part taken.(^) (*) Sutton's Heirs v. Louisville, 5 Dana 28; Rice v. Danville, L. & N. T. R. Co., 7 Ib. 81; Jacob v. Louisville, 9 Ib. 114; Henderson & Nashville R.R. Co. v. Dickerson, 17 B. Mon. 173; Louisville & N. R.R. Co. v. Thompson, 18 B. Mon. 735: Louisville & N. R.R. Co. v. Glazebrook, I Bush 325; Elizabethtown & P. R.R. Co. v. Helm's Heirs, 8 Ib. 681. Under these decisions the result reached in Kentucky is somewhat peculiar. The value is not estimated by determining the value of the strip taken for actual use, but its value when considered in its relation to the entire tract, which includes actual injury to improvements, and every direct damage tending to diminish in value the entire tract by reason of the use and appropriation of the strip for the purpose contemplated, the diminution in value of the entire tract being regarded as being as much a taking within the meaning of the constitution as the appropriation of the land on which the road-bed lies. When the owner is thus compensated, the ordinary inconvenience and damage that results from the operation of the road may be set off by the benefits and advantages.(*) In Jeffersonville M. & I. R. R. Co. v. Esterle () the question of benefits when no land was taken, but the easements in a street were injured, was fully considered. The following extract will show the view taken in Kentucky: "The measure of the damages which the appellee may recover, if entitled to recover at all, is the diminution in the value of his house and lot, occasioned by the location of appellee's tracks, and the uses to which they were authorized to put them by the grants from the city authorities. "This seems to be the theory of the appellee, and also of the court below. But the rights of the appellants were prejudiced by the failure of that court to prescribe the rule by which the jurors were to estimate this diminution. If the location and operation of the roads in front of appellee's house diminished its value say twenty per centum, then the diminution should be proportioned to its value just preceding the time at which it became generally known that Fourteenth Street had been selected as the line of the road, for the reason that if the location of the road increased the value of the property, appellants (^) Asher v. Louisville & Nashville R. R. Co., 87 Ky. 391. ought not to be required to pay appellee twenty per centum of the enhancement resulting therefrom. Upon the other hand, appellants contend that this supposed enhancement of vendible value is, or ought to be, a controlling element in the estimation of damages, and that if the house and lot of appellee had a greater vendible value immediately after the occupation of the street than it had immediately before, then there was no diminution, and nothing ought to be recovered. rule is incorrect. The jury should ascertain what the value of the property was just before it became generally known that the appellant's roads were to be located in front of it, and then determine what proportion of that value was taken from the house and lot by the obstruction of the street, and the annoyances incident to the movement of engines and trains of cars along and over appellants' roads. This rule is simple, and it strips the question of the complication and confusion which must necessarily arise in an attempt to distinguish between the natural increase of the value of the particular piece of realty and the increase attributable to the location of the line of railway. "Benefits arising directly from or out of an unauthorized act may sometimes be considered in the determination of the sum to be recovered by the injured party, but in all cases these benefits must be direct and immediate. They must be confined to the proximate consequences of the act complained of, and be of like kind with the opposite injuries for which the recovery is sought. "In a case where land had been overflowed, by the erection of a mill-dam, the Supreme Court of Massachusetts aptly said, 'The damages are given only for the injury done to the land by flowing, and any reduction or set-off to that damage must consist of benefits arising from the same cause, that is, from flowing the land.' So in this case, if the railway affords appellee increased or additional facilities for ingress or egress to and from his house and lot, or for the movement of articles in which he may deal, or supplies which it is necessary he shall procure, this benefit may be taken into consideration in estimating the damages he has sustained. But supposed benefits arising from the increased general prosperity of the neighborhood, and the enhanced vendible value of real estate in the particular locality, even if it be a recognized incident to the location of the public work, are too remote and contingent to be taken into considera tion in the question of damages to appellee's houses and lot resulting from the special injuries to which he has been subjected. Such supposed benefits flow not immediately from the railways obstructing the street, nor from the movement of the cars over them, but from the investment of capital in a work of general public utility, and the enterprise and activity of persons attracted, and specially benefited by their proximity to the line of railways. "These benefits and advantages the appellee shares in common with persons owning lands near enough to be influenced by the general prosperity, and yet not upon the immediate line of the roads, or not injuriously affected by the causes operating to his prejudice. And his right to be compensated for the special injuries he may sustain, cannot be denied him because of the mediate and consequential benefits resulting to him in common with the local community at large." § 1147. Massachusetts.-In Massachusetts special benefits only may be set off against both the value of the part taken and the damages to the remainder.(*) At the same time the benefit which accrues to the owner from the increase of the value of the residue of the lot is offset,. notwithstanding that other lots in the immediate vicinity receive a similar benefit.(") In Massachusetts it has been held that in widening and laying out a street, the legislature may provide that (^) Commonwealth v. Coombs, 2 Mass. 489; Same v. Middlesex, 9 Mass. 388; Avery v. Van Deusen, 5 Pick. 182; Palmer Co. v. Ferrill, 17 Pick. 58; Meacham v. Fitchburg R.R. Co., 4 Cush. 291; Upton v. So. Reading Branch R.R. Co., 8 Cush. 600; Heard v. Middlesex Canal, 5 Met. 81; Farwell v. Cambridge, 11 Gray 413; First Church v. Boston, 14 Gray 214; Whitman v. Boston & Me. R.R. Co., 7 All. 313; Dorgan v. Boston, 12 All. 223; Whitney v. Boston, 98 Mass. 312; Chase v. Worcester, 108 Mass. 60; Allen v. Charlestown, 109 Mass. 243; Howe v. Ray, 113 Mass. 88; Upham v. Worcester, 113 Mass. 97; Green v. Fall River, 113 Mass. 262; Wood v. Hudson, 114 Mass. 513; Bancroft v. Boston, 115 Mass. 377; French v. Lowell, 117 Mass. 363; Hilbourne v. County of Suffolk, 120 Mass. 393; Parks v. County of Hampden, 120 Mass. 395; Clark v. Worcester, 125 Mass. 226; Cross v. Plymouth Co., 125 Mass. 557. () Whitman v. Boston & Me. R.R., 3 All. 133. VOL. III.-26 |