up to the present time. We call this property "the leasehold property" in order to distinguish it from the lot 66. The two parcels we have described have long been used together as one property for milling purposes, and the chief means of communication between the mill and the public highway has been over lot 66."

From this description and the plan produced, it appears there is a public highway called Front street. To the east of this there is a range of lots; of which lot 66 is one, and then crosses a piece of land between this range of lots and the Welland Canal. "The leasehold property" is there separated from Front street by the range of lots and Mr. Norris used lot 66 as a roadway from Front street to his mill. The railway runs parallel to the Welland Canal, and consequently crosses lot 66. The company have not appropriated any part of lot 66, but have constructed a trestle bridge across the lot, leaving a free roadway below the bridge affording access to the mill.

It is for this easement and the other matters mentioned in the award referring thereto that the sum of $445 has been awarded, and against which no complaint is made. It is therefore manifest that no part of what is called "the leasehold property," has been affected. The loss complained of is for damage sustained by Norris from loss of custom, or presumed loss, by reason of farmers being afraid to drive to the mill under the trestle bridge; the approach itself has not been interfered with, or at any rate, if such a claim existed, it has been included in the amount of $445, as no reference is made to it in the award.

Statute.

enacts:

*

*

*

the owner of lands

*

*

The clause of the Railway Act, 51 Vic. chap. 29 (D), under which these proceedings have been taken in sec. 144, which "application may be made to * which may suffer damage from the taking of materials, or the exercise of any of the powers granted for the railway; and, thereupon, agreements and contracts may be made with such persons, touching the said lands or the compensation to be paid for the same, or for the damages, or as to the mode in which such compensation shall be ascertained."

It is plain that so far as "the leasehold property" is concerned this section has no application, I mean as to taking

"Leasehold property."

any portion thereof or materials from the same; and Mr. Collier admitted what in truth could not be denied, that if Mr. Norris had not been the proprietor of both lot 66 and the "leasehold property," he could have made no claim for the damages sought to be recovered; but his contention was that such being the case he was en

Damages for

titled to damages for injury done to him as such joint owner. It is manifest that no injury has been done to the mill as a building. It is not in any way affected by the construction of the railway; what is complained of is that the operation of the railway is calculated not to injure the mill property, but to interfere with the trade of the owner.

loss of cus

tom by mill.

This distinguishes the case from both the cases of the Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418, and Caledonian R. W. Co. v. Walker's Trustees, 7 App. Cas. 259, 6 Am. & Eng. R. Cas. 518.

In the former, which was relied on by Mr. Collier, the construction of the Thames embankment separated the garden of Montague House from the river Thames, and in consequence the House of Lords held that the property itself having been diminished in value the proprietor was entitled to recover damages.

In the case of Caledonian R. W. Co. v. Walker's Trustees, it was manifest that the property in question had been seriously affected by the closing of access to a principal thoroughfare in Glasgow; and in the case of Metropolitan Board of Works v. McCarthy, it was clear his property had been very much lessened in value.

In the case now before me no such damage was suggested. All that was urged before the arbitrators, or at any rate all on which their award is based, was that there was a speculative loss of local custom not arising from the construction of the railway, but from the user of it.

Mr. Aylesworth principally relied on the propositions of law laid down in the case of Hammersmith R. W. Co. v. Brand, L. R. 4 H. L. 171, as quoted by the Lord Chancellor in Caledonian R. W. Co. v. Walker's Trustees, 7 App. Cas. 259, 6 Am. & Eng. R. Cas. 518, at p. 276, where damage arises not out of the execution, but only out of the subsequent user of the work, there also is no case for compensation. I have already stated in that case in which this reference is made, compensation was allowed because the damage complained of was occasioned not by the user but by the actual construction of the work.

Apart from these considerations it appears to me that from the findings of the arbitrators themselves the damages are altogether too remote and speculative. In my opinion the award must be reduced to the sum of $445.

The appeal is allowed; but as the amount awarded is so much less than the amount tendered, there will be no costs of this appeal. I have no control over the costs of the arbitration. See section 154.

Eminent Domain-Construction of Railroad Near Mill-Damages for Loss of Custom. The case of Western Pennsylvania R. Co. v. Hill, 56 Pa. St. 460, is on all fours with the principal case, but the conclusion reached is directly opposite. In this case, it was held that in a question of damages for the construction of a railroad, evidence was proper that the construction of the road tended to decrease the business of a mill by making it unsafe to drive horses near it, and dangerous and inconvenient for persons going to and from it. The trial court charged the jury that such damage was not consequential and prospective, but immediate and direct. The supreme court held that this instruction was proper. THOMPSON, C. J., said: "I regard the testimony as but a mode of ascertaining a measure of damage, sanctioned by the court from Thoburn's Case, 7 S. & R. (Pa.), 411, down to Hornstein's Case, 51 Pa. St. 87, namely, the difference between the value of the property after the construction of the railroad and before; the amount of deterioration, when ascertained by proper tests, being the. amount the owner should be entitled to. This must almost always be arrived at through a variety of details in evidence, to enable the jury to find a result. When the deterioration results from actual and not speculative causes, and, to all human appearance, from causes which promise to continue, then it must be admitted as a ground of damage. At common law, depreciation of property by agencies that would destroy its value, would undoubtedly be a ground for the recovery of damages. The maxim sic utere tuo ut alienum non lædas, embodies the duty, and the law mus tenforce it, or the maxim would be idle. In 27 Pa. St. 99, repeated in 37 Pa. St. and other cases it was held that the construction which has been given to legislative charters for improvement companies generally, has been, that they are intended to secure compensation for such injuries as the common law recognizes as fit objects for compensation.' In this last case, a practical application of the rule is given, and it goes far to justify the ruling of the learned judge in this case. In the opinion of the court, my brother STRONG said: The exclusive appropriation of a part, the inconvenience arising from divisions or from increased difficulty of access, and the cost of additional necessary fencing, are alike the direct and immediate results of the construction of the railroad,' and entitled to be compensated. See also Patten v. The North Central R. Co., 33 Pa. St. 426. These cases would compensate the inconvenience to a landowner, whose property is taken to build a railroad. The direct and immediate result of the construction of a road over land taken, if injurious, gives title to damageseven to the extent of estimated inconveniences. The rule in its breadth applies generally, only to cases where there is an exclusive taking of a portion of the owner's property under the right of eminent domain. This is apparent from the Monongahela Nav. Co. v. Coons, 6 W. & S. (Pa.), 101, and subsequent cases. It is not necessary to elaborate much the nature of the injury here, or its direct character. It results solely from the taking a portion of the plaintiff's land, and the construction and use of the defendant's road. I see not much difference in the nature and certainty of the exclusion of the customers of this mill, between an absolute physical obstruction, directly in their way, and others which continually threaten their lives and limbs in the use of the ordinary means of getting there. Without enlarging, however, we think the testimony in regard to the loss of custom to the mill, from the construction of the road over the ground of the owner, and the reason for it, were properly received and properly submitted to the jury as grounds of compensation to be made to the plaintiff for the deterioration of their property."

ALBION RIVER R. Co.

V.

HESSNER.

(84 Cal. 435.)

Eminent Domain-Damages-Improvements Made by Trespasser.-A railroad company with bona fide intent to subsequently commence proceedings to condemn a right of way across certain land, entered upon such land and erected its track and a bridge. At the time of making the entry the company did not know positively who owned the land, nor did the landowner know that it was his land that was being intruded upon. Held, that, in the subsequent condemnation proceedings, the company was not required, in making just compensation, to pay the landowner the value of the track and bridge previously erected.

APPEAL from Superior Court of Monterey County. In

Bank.

F. M. Mannon and C. C. Hamilton, for appellant.

T. L. Carothers, for respondent.

Case stated.

FOOTE, C.-This action was instituted for the purpose of condemning to the public use a right of way for the plaintiff's railway track, over a portion of the defendant's land. Judgment of condemnation followed as prayed for, and the damages were assessed against the plaintiff in the sum of $175, as a just compensation for the property sought to be condemned, and as damages consequent to such condemnation. The defendant appeals from the judgment and order denying a new trial. The contention of the appellant is that the court erred in failing and refusing to make and give judgment in his behalf for $8,500 more than was awarded him. The ground upon which this claim is advanced is that the railroad corporation entered upon the land of the appellant, before any condemnation proceedings had been commenced, and erected thereon a bridge and railroad track, which had become permanently attached and affixed to the soil, which was of the value of $8,500; and, such being the fact, the defendant became the owner of these fixtures or permanent improvements upon his land, placed there by plaintiff as a trespasser, and, as a consequence, was entitled to have their value allowed to him as a part of his just compensation. The evidence shows that the corporation, at the time of its entry upon the land and the building of the bridge and track thereon, did not know positively who owned the land, nor

did the defendant know that it was his land that was being thus intruded upon until he got the field notes of it from San Francisco.

While the entry of the plaintiff may have been technically a trespass, it was not the act of a mere tort-feasor. It is,

Landowner

not entitled

to value of structures.

therefore, to be determined whether the bridge and track, placed upon the land under such circumstances, with the evident intention, in good faith, to put in operation the constitutional right to condemn for the public use the right of way over the land, is such an act as operates as a dedication, in law, of the materials or structures of the railroad placed upon the land to the owner of the land, so as to entitle him to include them in the assessment of his damages as a just compensation for the condemnation of the right of way over his land. In the case of California Pac. R. Co. v. Armstrong, 46 Cal. 85-90, the appellate court said: "The argument on behalf of the defendant on the first point is that the plaintiffs, in constructing the railroad track, were trespassers, and that the track, being attached to the soil, became a part of the realty, and belonged to the owner of the land. Hence he claims that its value ought to be included in the estimate of damages, in like manner as though the defendant had himself built the road. But this proposition cannot be maintained. Neither the constitution nor the statute contemplates that a person whose land is taken in the exercise of the right of eminent domain shall be entitled to anything beyond a 'just compensation.' He is to be paid the damage he actually suffers, and nothing more. But, to hold that, in addition to the fair value of the land taken, and such other damages as he may suffer by severing it from the remainder of his tract, he shall also recover the value of a railroad track, in the construction of which he never expended a dollar, and which was built by the plaintiffs at their own expense, would be to defeat the obvious intent of the statute by an over technical construction of it." Again, the supreme court of Pennsylvania, in the case of Justice v. Nesquehoning Val. R. Co., 87 Pa. St. 28-33, has said: "The very intent of an appropriation of land is to place upon it and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by the jurists, is its plasticity as a system of principles (and not merely of rigid rules) which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended