allowed to prove by a witness what he had offered for like property opposite that in question. Held error, THOMAS, J., saying: The mere offer * was not competent evidence of value. The rule admitting evidence of this character is confined, and rightly, to actual sales as acts done. The limitation is founded in obvious good sense.' In Winnisimmet Co. v. Grueby, 111 Mass. 543, it was said, in a proceeding to assess damages for the taking of land by a ferry company: The company cannot introduce evidence of the amount for which an owner of land in the neighborhood has offered to sell his land.' In Montclair R. Co. v. Benson, 36 N. J. Law 557, a real estate agent was called as a witness, and asked at what price he had offered for sale property adjoining that being condemned. Held, the evidence was properly excluded. In Lehmicke v. St. Paul, S. & T. F. R. Co., 19 Minn. 464, (Gil. 406,) a witness testified that he knew what certain property in the vicinity had been offered for, and was then asked to give the rates of sales and offers, to which an objection was sustained; and held properly, because it called for evidence of offers, as well as actual sales. Numerous other decisions to the same effect might be cited. We have found none to the contrary. The only authority to which we have been referred by counsel for defendant in error as sustaining the ruling of the court below, is Chicago & W. I. R. Co. v. Maroney, 95 Ill. 179, 5 Am. & Eng. R. Cas. 360. That case cannot be fairly construed as holding such evidence competent. There, after both parties had closed their evidence, the petitioner offered to prove that an adjoining tract had been sold for $24 per foot, and that other lots in the neighborhood were offered for sale at $25 per foot. The evidence was rejected by the trial court, and its ruling sustained in this court, on the ground that the offer was made too late. The competency of the evidence was not discussed. The language in the opinion, The offered testimony as evidence in chief was doubtless competent,' etc., is not said by way of deciding upon the competency of evidence of offers of sales, of even actual sales, but with reference as to when the evidence should have been offered. The evidence of a mere offer, allowed in this case, was incompetent, and should have been excluded."

Evidence as to Value Per Acre of Land Taken. In condemnation proceedings it is proper to introduce evidence of the value per acre of the land included in the right of way, since this constitutes one of the elements of the damages to be allowed. Pingrey v. Cherokee & D. R. Co., Iowa Sup. Ct., Oct. 12, 1889.

Evidence as to Effect of Railway on Insurance. In an action for the condemnation of certain lands for the right of way for a railway, evidence as to the effect of the railway upon the rate of insurance required to keep a barn near by insured, is inadmissible since it has no bearing on the danger from fire. The court said: "The question has to do only with the rates of insurance companies. We know of no law-barring, perhaps, that of a business character-requiring the plaintiff to keep her barn insured. Risk to property by the operation of trains, whereby fires are likely to occur, is a proper element in fixing damages, but it is not the law that this element of damage is to be considered on a basis that property, if insurable, must be kept insured. We are referred to the case of Johnson v. Chicago, B. & N. R. Co., 37 Minn. 519, in support of appellant's theory. Referring to the case, it has not a remote reference to insurance. It sustains the doctrine that increased risk of fire is an element of damage in this class of cases, and proper for the jury to consider. The risk there mentioned is the risk of the owner, and not that of an insurance company. Lance v. Chicago, M. & St. P. R. Co., 57 Iowa 638, 5 Am. & Eng. R. Cas. 617, is cited in support of a rule that, as showing the danger of risk, it is proper to show the jury the exact situation, and allow it to consider such

facts in passing upon the estimates of the witnesses as to the depreciation in value. The case sustains the rule, but again the argument is without force as to the point ruled upon. In this case the distances and surroundings are shown by the testimony, so that the jury under the rule of Lance v. Chicago, M. & St. P. R. Co., could consider the increased risk; but neither in the light of reason nor of the authorities cited do we see the bearing of the rates of insurance companies upon the issues of the case." Pingrey. Cherokee & D. R. Co., Iowa Sup. Ct., Oct. 12, 1889.

Evidence as to Character of Fire-Preventing Apparatus.-In condemnation proceedings instituted by a railway company, the company offered to show by the testimony of a civil engineer in its employ the character of netting and screens used in the smoke stacks of its engines, and that coals or sparks that could escape from such screen could not live to reach the distance of plaintiff's barn from the track. The offer was refused. Held, that this refusal was not error. The court said: "These damages can best be assessed in the light of known facts or results as to the operations of trains, and it is these facts or results, as thus disclosed and known, that impress the market and fix the depreciation as to values. It is not the mere fact of a new and safe appliance that impresses the market. It is the knowledge of the public as to its merits; and this knowledge is practically desirable only from observation in its use." Pingrey v. Cherokee & D. R. Co., Iowa Sup. Ct., Oct. 12, 1889.

Evidence as to Cost of Erecting Other Farm Buildings in Place of Those Damaged. Where an appeal is taken from an award of damages by commissioners in condemning a right of way for a railroad, and where it is shown that certain buildings on the plaintiff's premises were greatly damaged by reason of the proximity of the road thereto as an element of damages, it is error for the court to permit plaintiff to show what it would Cost to erect other buildings at other suitable places on the farm, and adequate to the use of the farm. The evidence in such a case must be confined to the injury to the improvements, without regard to what it would cost to erect others suitable and adequate. Council Grove O. C. & O. R. Co. v. Center, 42 Kan. 438. .

Evidence Outside of Right of Way.—In condemnation proceedings for the assessment of damages occasioned by the

procuring of a

right of way for a railroad company, the owner of the land may recover damages only for his loss in surrendering to the railroad company such right of way, and cannot recover in such a proceeding for indeof the right of way. And therefore, in such a case, where the landowner pent trespasses committed by the railroad company or its agents outside offers evidence on the trial tending to prove that the railroad company other land of the landowner, and used the earth taken therefrom in makwent outside of the right of way appropriated by it, and excavated on its road bed, and such evidence was admitted by the trial court, over the objection and exception of the railroad company, held error, although the objection and exception were general. Leavenworth, N. & S. R. Co. v. Evidence to Support Verdict-Conflicting Evidence-View of Premises.

ing

Usher, 42 Kan. 637·

Where on

poses, there is no question of law presented for decision, and the only contention of the plaintiff in error is that the verdict of the jury is not supported by the evidence, and where it appears that the oral evidence submitted to the jury was conflicting, and that the jury were sent to examine the premises, their verdict will not be set aside as not supported by the

appeal, in an action to condemn a right of way for railway pur

evidence.

Frink v. Republican Valley R. Co., Neb. Sup. Ct., Oct. 22, 1889.

SHREVEPORT & A. R. Co.

ย.

HOLLINGSWORTH et al.

(Louisiana Supreme Court, May 26, 1890.)

Eminent Domain-Expropriation for Railways.-The constitution authorizes the expropriation of lands for railroad necessities, on previous payment of the value thereof and of damages, when any have been sustained. Excessive Damages. The lower court assessed the damages to the two plantations affected by the construction of the railway at $3,750 and $1,000, respectively. Held, that the awards were excessive, not being warranted by the evidence, and should be reduced to $2,800 and $750.

Interest is Allowable on the amount allowed as the value, from judicial demand, when the company has taken possession, and has not paid prior thereto, but on the damages only from judicial liquidation.

APPEAL from District Court, Parish of Brown.

Young & Thatcher and Alexander & Blanchard, for appellants. T. C. Barrett, for appellee.

Case stated.

BERMUDEZ, C. J.-The object of this suit is the expropriation of certain land of the defendants for the roadway of the company. The defense is a denial of the right of expropriation of the ownership, and the admission of such right to the extent of a servitude only. By reconventional demand, the defendants claim the value of the land, some special damages, and general, actual, and prospective damages. The controversy was developed, argued, and submitted to two juries, who failed to agree. In order to end it, the parties consented to have it determined by the court. The district judge allowed to the owners of the Hollingsworth place $1,000, as the value of the land, some 10 acres, $375 for a lost crop and the removal of a fence, and $3,750 general damages, and to the owners of the Williams place $500 for the value of the land, some five acres, and $1,000 general damages, with interest on all amounts allowed to the defendants from the filing of their answer, considered as the date of the judicial demand. The plaintiffs appeal, contending that all the amounts should be reduced by 50 per cent. The defendants, on the other hand, while contending that the same ought to have been much larger, enter an appearance of resignation, should the judgment be affirmed. Some 20 witnesses, in chief and in rebuttal, have been heard, and documentary evidence has been adduced. The lands are at

a short distance from the city of Shreveport, prospering and to prosper. They front on the Red river, draining from it to the rear. They are sandy, high, and dry. The center, or about, is the portion judiciously selected for the building of the road. The principal improvements have been put up on the transition soil. The road apparently divides the lands into halves.

Expropria

tion for rail. ways.

1. The right of the company to expropriate is recognized by law and jurisprudence, and cannot form the subject of serious contention. From the days of Rome, when landowners could prevent the construction of aqueducts to supply the city with water, and otherwise resist the divestiture of their property, to our times, the right of power and expropriation has undergone . such radical changes, required by public exigencies, for the greater good of the people, that the owner may be dispossessed of the ownership; but with the condition of equitable indemnity previously made, not only for the value of the property, but also, when the contingency arises, for the damage which may consequently be sustained by him. Const. art. 156; Carrollton R. Co. v. Avart, 11 La. 190; Mayor, etc., of Jefferson v. v. Delachaise, 22 La. Ann. 26; Bourdier v. Morgan's L. & T. R. Co., 35 La. Ann. 947; Vicksburg, S. & P. R. Co. v. Dillard, Id. 1045; Payne v. Morgan's L. & T. R. & S. Co., 38 La. Ann. 164; Rev. Civil Code, art. 497: Cooley, Const. Lim. 670 et seq., Id. *537 et seq. In such cases the owner is assimilated to a debtor to society, in certain emergencies, as in ordinary matters a debtor is to his creditor; the use of his property, in the one case, for public utility, being subjected in satisfaction of it, as in the other it is made liable to the payment of an individual claim by the arm of the law. 2: The value of the land is established by a number of intelligent, disinterested, experienced, unbiased, and reliable witnesses, whose testimony is not counter balanced. It is fixed by them at $100 per acre. Value of land. 10 acres from the Hollingsworth place are shown to yield an annual rental of $100 at least, which, however, reduced by the payment of taxes and repairs, could not be realized by usual interest on the allowed amount, were it loaned out. Much is said, to like effect, of the 5 acres from the Williams place to show its value; both lying in the proximity of a rapidly flourishing city.

3.

The

The

proof in the record touching the quantum of dam

ages sustained is contradictory, and, as usual, unsatisfactory.

will in no way be damaged, while others are posi

Some witnesses say that the lands

tive

Excessive damages.

place, and that it is quite considerable as to the Williams place. The two plantations are represented as planned, disposed, and drained symmetrically, so as to promote profitable management, and as being in a high state of improvement and cultivation. The great damages complained of are that they are cut into two parts, and that communication from the one to the other by laborers, vehicles, etc., is obstructed; that the owners are deprived of the free use and enjoyment of their property, and also of the increase of value of the same owing to its vicinity to a prosperous city. The district judge has valued the damages to the Hollingsworth place at $3.750, and those to the Williams place at $1,000, without, however, undertaking to claim for such adjustment absolute accuracy. When the testimony of credible witnesses is considered, coupled with the claim of the plaintiffs for a reduction of all allowances to half the satisfaction of the defendants, who ask no increase, we incline to the belief that, while the valuation put to the expropriated land and the special damages may remain untouched, the adjustment of the general damages may be justly interfered with by reducing them, so as to give $2,800 to the Hollingsworth place, and $750 to the Williams place. It is difficult to conceive how, notwithstanding the speculative testimony adduced, more damage can be sustained by the diverted owners.

4. Considering the fact that the company had taken previous possession without anterior indemnity, we think that interest is allowable on the value of the lands from

damages.

Interest on judicial demand, which is the date of the claim in reconvention, namely, the 11th July, 1888: but we do not consider that interest should run on the amount of damages, unless from the date of the final liquidation thereof by the judgment of this court, which is the only time when the plaintiffs know the precise extent of their liability for the same, after which they can be delinquent. It is therefore ordered and decreed that the judgment appealed from be amended so as to allow to the owners of the Hollingsworth place $2,800, and to the owners of the Williams place $750, to be divided according to their respective rights, with interest on the value of the lands from July 11, 1888, and on the general damages from the finality of the present judgment; appellees to pay costs of appeal, and appellants those of the lower court.

Eminent Domain-Interest on Damages Allowed.-In Burlington & M. R. R. Co. v. White, Sup. Ct., Neb., Dec. 4, 1889, the court say that where the amount of the verdict exceeds the award of the commissioners, the jury should be instructed to allow interest on the value from the time of condemnation. Where, however, such instruction was withheld by the judge