EMINENT DOMAIN.
Exercise of Right-Continued.

to general law. Durham & N.
R. Co. v. Richmond & D. R. Co.
(N. Car.). 168.
Special charter. Railway com-
pany may resort either to special
charter or general law. Cory v. i
Chicago, B. & K. C. R. Co..
(Mo.), 183.

United States exercising right of
eminent domain need not ex-
press purpose for which act was
passed.
Cherokee Nation v..

So. Kan. R. Co. (U. S.), 26.

may exercise right anywhere
within its limits. Indian lands
are subject to this authority.
Cherokee Nation v. Southern
Kan. R. Co. (U. S.), 26.

may exercise right of emi-
nent domain, 42 n.
Public Use.

Private enterprise. Fact that rail-
way was started to develop coali
mines and is poorly constructed
does not deprive it of right of
eminent domain. Colo. E. R.
Co. v. Union P. R. Co. (C. C.),

IO.

Railway running regular trains

and a common carrier and ex-
pending large sums in building
road may exercise right. Colo.
E. R. Co. v. Union P. R. Co.
(C. C.), 10.

Resisting condemnation. Waiver

of rights, 26 n.
Small railroads promoted partially
as private enterprise; right to
exercise power, 25 n.
Right to Compensation.
Acquiescence by landowner in
construction of road for ten
years precludes him from seek-
ing relief against purchaser at
foreclosure sale. Cory v. Chi-
cago, B. & K. C. R. Co. (Mo.),
183.

Adequacy of provisions for com-
pensation for land taken, 42 n.
Foreclosure sale; liability of pur-
chaser at, to compensate land-
owner, 72 n.

Jury trial; constitutional provision
that compensation shall be ascer-
tained by, refers only to final
assessment. Ex parte Reynolds
(Ark.), 60.

right of landowner to demand
before vielding possession, 66 n.

EMINENT DOMAIN.

Right of Compensation-Contin-
ued.

Landlord and tenant; rights of,

59 n.

Tenant may recover for crops
injured although landlord has
been compensated for land
taken. Rome & C. C. Co. v.
Jennings (Ga.), 59.
Limitations. Grading right of
way without dispossessing land-
owner; statute does not run
against him until actual posses-
sion is taken. Midland R. Co.
v. Smith (Ind.), 222.

of proceedings to recover
compensation, 226 n.
Mortgage.
Foreclosure. Con-
demnation money held not a
fund within control of court so
as to satisfy mortgagee's debt
when proceeds of sale were in-
sufficient. Schermerhorn
Peck (Kan.), 219.
Mortgaged property, condemna-
tion of, 222 n.

Noise, smoke and vibration, prop-
erty damaged by; owner entitled
to damages under constitutional
provision. Gainesville, H. &
W. R. Co. v. Hall (Tex.), 51.
Operation of road; compensation
to be paid includes damages re-
sulting from as well as from
construction. Vezina . The
Queen (Can.), 73.

Party in possession of land under
oral agreement to purchase,

205 n.
Release, license or waiver of pre-
payment; construction of road
under, passes title from lard-
owner but subject to his right
to recover compensation. Cory
v. Chicago, B. & K. C. R. Co.
(Mo.), 183.

Succeeding company.

Foreclos-

ure sale. Judgment against
first company for right of way
taken rejected as a claim; land-
owner not prevented thereby
from recovering from company
purchasing road at sale. For-
mer judgment is measure of
compensation. Rio Grande &
E. P. R. Co. v. Ortiz (Tex.), 67.

Judgment in favor of land-
owner against one company
does not deprive him of right to
demand compensation from suc-

EMINENT DOMAIN.
Right of Compensation-Contin-
ued.

ceeding company when first
judgment has not been paid.
Rio Grande & E. P. R. Co. v.
Ortiz (Tex.), 67.
Waiver. Landowner permitting
entry and appropriation of his
land without compensation does
not waive his rights to have
damages assessed. Midland R.
Co. v. Smith (Ind.), 222.

of compensation in consider-
ation of agreement to employ;
landowner held estopped to
maintain action for damages.
Cory v. Chicago, B. & K. C. R.
Co. (Mo.), 183.

Right to enter on Lands.

Compensation in advance of oc-
cupancy; constitution does not
require. Cherokee Nation v.
Southern Kan. R. Co. (U. S.), 26.
Deposit. Constitutionality of
statutes authorizing entry by
railroad on making deposit
pending proceedings, 66 n.

Entry may be authorized on
payment into court of double
the amount of award of com-
missioners. Cheroke Nation v.
Southern Kan. R. Co. (U. S.),
26.

to

Statute giving company right
enter on making deposit
designated by court, held valid.
Ex parte Reynolds (Ark.), 60.
Tender of award, before appeal
therefrom; what constitutes, un-
der statute so as to protect com-
pany in making entry. Pomona
B. R. Co. v. Camden & A. R.
Co. (N. J.), 179.

- Statute contemplates reason-
able time for action after filing
of award in order that tender
may justify entry. Pomona B..
R. Co. v. Camden & A. R. Co.
(N. J.), 179.

Taking Land of Another Com-

EMINENT DOMAIN.

Taking Land of Another Com
pany-Continued.

Nat. Docks, etc., R. Co. (N. J.),

226.

Crossing authorized is one
where previously existing use of
spot as railroad continues.
United N. J. R. & C. Co. v.
Nat. Docks, etc., R. Co. (N. J.),
226.

66

Located route" of another
road can only be condemned
for purpose of crossing. United
N. J. R. & C. Co. v. Nat. Docks,
etc., R. Co. (N. J.), 226.

Proper crossing may be ef-
fected by tunnel, overhead
bridge, or grade crossing.
United N. J. R. & C. Co. v.
Nat. Docks, etc. R. Co. (N. J.),
226.

Report of commissioners.
Assessment of damages, 237 n.
Future use. Land held by one
company for five years without
being used is subject to condem-
nation although owner contem-
plates using it. Colo. E. R. Co.
v. Union P. R. Co. (C. C.), 10.
Route of another company; order
made on petition seeking to
condemn will be set aside.
United N. J. R. & C. Co. v. Nat.
Docks, etc., R. Co. (N. J.), 226.
Damages.

Benefits; admission of evidence as
to, and instruction thereon, held
erroneous; but error was not
prejudicial. San Jose & A. R.
Co. v. Mayne (Cal.), 58.

Consideration of general
benefits in estimating damages,
118 n.

as

In assessing damages to land
not taken, benefits are not to be
considered. Fremont, E. & M.
V. R. Co. v. Meeker (Neb.), 115.
Breaking close; where no special
damage is alleged, measure of
damages for, is such sum
will restore premises. Larsen
v. Oregon R. & N. Co. (Ore.), 92.
Church property; impairment of
usefulness of, by location of
road is element of damages
when such injury is direct cause
of act complained of. Durham
& N. R. Co. v Trustees of Bul-
lock Church (N. Car.), 151.

injury to by location of rail-

EMINENT DOMAIN.
Damages-Continued.
way works, 157 n.
Coal wharf;

constructing road

through, 114 я.
Commissioners' award held to be
the measure of damages which
the landowner could claim.
Cory v. Chicago, B. & K. C. R.
Co. (Mo.), 183.

Counsel fees paid to attorney not
recoverable as part of damages.
San Jose & A. R. Co. v. Mayne
(Cal.), 158.
Defendant's title; petitioner may
show and prove that defendant
has no equity and that damages
are merely nominal. Colo. C.

R. Co. v. Allen (Colo.), 193.
Evidence. Admissions of owner
as to value of land, 150 ".

Assessment list; admissibil-
ity of, as evidence of value,
150 n.

Assessment list including
landowner's sworn valuation is
admissible as evidence of value
of land and not merely to dis-
credit testimony. Birmingham
Mineral R. Co. v. Smith (Ala.),
148.

Assessment list not admissi-
ble as evidence of value, nor is
signing such list a declaration
as to value. San Jose & A. R.
Co. v. Mayne (Cal.), 158.

on

Building operations
neighboring land; admission of
evidence as to, held erroneous.
Schuylkill R. E. S. R. Co. v.
Stocker (Pa.), 137.

Character of fire preventing
apparatus, 163 n.

Cost of erecting other farm
buildings in place of those dam-
aged, 163 n.

Disturbance of worship in
church through lot of which
road is located so as to render
church less valuable; evidence
as to, is admissible. Durham
& N. R. Co. v. Trustees of Bul-
lock Church (N. Car.), 151.
-Effect of railway on insurance,
162 n.

Frightening horses hitched
in church lot along edge of
which railway runs; evidence as
to, is admissible. Durham & N.
R. Co. v. Trustees of Bullock
Church (N. Car.), 151.

EMINENT DOMAIN.
Damages-Continued.
Evidence. Opinion. Competency
of witness to give opinion evi-
dence as to value of land, 136 #.

Opinion evidence; admissi-
bility of, in condemnation pro-
ceedings as to value of land or
damages suffered, 147 ».

Opinion evidence as to value
of stone quarry and dwelling
house, 148 n.

Opinion evidence as to de-
crease in rental value of land,
147 n.

Opinion evidence. Extent
of damage to other farms.
Error not reversible, 148 m.

Opinion. Farmer having
general knowledge of land and
an old resident is competent to
give opinion as to value. Cur-
tin v. Nittany V. R. Co. (Pa.).

130.

Opinion. Instruction that
jury may ascertain value from
judgment of men acquainted
with property held proper. Cur-
tin v. Nittany V. R. Co. (Pa.),
130.

Opinion; presumption is that
witness expressing, as to value
of land, is qualified. Durham
& N. R. Co. v. Trustees of Bul-
lock Church (N. Car.), 151.

Opinion. Whole and not
part of tract should be valued
as it was before and after road
was built. Schuylkill R. E. S.
R. Co. v. Stocker (Pa.), 137.

Opinion. Witness should
not be allowed to select portion
of property affected and deter-
mine extent to which that alone
is damaged. Schuylkill R. E.
S. R. Co. v. Stocker (Pa.), 137-
Par value of land, 162 n.
Price at which land had been
offered for sale, 161 n.

Sales of other land in neigh-
borhood; evidence as to, not
admissible. Curtin . Nittany
V. R. Co. (Pa.), 130.

Trespass committed outside
of right of way, 163 n.

Valuation of land before lo-
cation of road may be shown
preparatory to showing what it
was worth after road was con-
structed. Durham & N. R. Co.
v. Trustees of Bullock Church

EMINENT DOMAIN.
Damages-Continued.
(N. Car.), 151.
Evidence.

Value of land at date
of trial; admission of evidence
as to, is erroneous where value
at date of summons is measure
of damages. San Jose & A. R.
Co. v. Mayne (Cal.), 158.

- Value of neighboring lands.
Instruction by court held not
expression of opinion that value
of other property should affect
estimate. Schuykill R. E. S.
R. Co. v. Stocker (Pa.), 137.

verdict supported by. Con-
flicting evidence. View of
premises, 163 n.

Excavations and embankments.
Consideration of manner in
which road cuts up land, 119 n.
Excavations and embankments.
Manner in which road cuts land
may be considered, and expos-
ure of property to particular in-
juries. Fremont, E. & M. V.
R. Co. v. Meeker (Neb.), 115.
Excessive damages. Damages

awarded for injury to two plan-
tations, held excessive and re-
duced. Shreveport & A. R. Co.
v. Hollingsworth (La.), 464.

Exception by company, and
not by landowner. Judgment
in court above for greater
amount than assessment. Dur-
ham & N. R. Co. v. Trustees of
Bullock Church (N. Car.), 151.
Farm crossing as an element in
assessing damages, 92 n.

right to have is not statutory
right. In awarding damages
want of crossing should be con-
sidered. Vezina v. The Queen
(Can.), 73.

Fences.

Burden of increased
fencing as an element of dam-
ages, 136 n.

Fact that statute makes

it duty of company to fence its
road does not relieve company
from payment of damages
caused by need of increased
fencing. Curtin v. Nittany V.
R. Co. (Pa.), 130.

Fire; danger from as an element
of damage, 114 n.

-

- Jury cannot consider in esti-
mating damages fact that fires
are liable to be set out without
distinguishing between what

|EMINENT DOMAIN.
Damages-Continued.

may be done negligently and
accidentally. Chicago, K. &
W. R. Co. v. Palmer (Kan.), 108.
Frightening horses. Liability of
horses to become frightened as
an element of damage, 100 11.

-

where there is no allegation
of special damages from, plaint-
iff can recover nothing from
that cause. Larsen v. Oregon
R. & N. Co. (Ore.), 92.
Gravelland. Where land is taken
for purpose of using gravel as
ballast, owner is only entitled to
compensation for such land as
farm land, where there is no
market for gravel. Vezina v.
The Queen (Can.), 73.
Improvements made by tres-
passer. Just compensation held
not to include value of track
and bridge erected by company
entering without proper pro-
ceedings. Albion River R. Co.
v. Hessner (Cal.), 125.
Improvements placed on land
prior to condemnation; whether
damages include, 129 n.
Interest is allowable on damages
only from judicial liquidation.
Shreveport & A. R. Co. v.
Hollingsworth (La.), 164.

on amount allowed as value,
from judicial demand, when
company has taken possession
and has not paid prior thereto.
Shreveport & A. R. Co. v. Hol-
lingsworth (La.), 164.

on award deposited.
rate action, 192 n.

Sepa-

on damages allowed, 166 n.
Judgment against company sold
out at foreclosure sale as meas-
ure of compensation in action
against succeeding company.
Rio Grande & E. P. R. Co. v.
Ortiz (Tex.), 67.
Killing stock; consideration of,
in assessing damages, 113 n.

Jury cannot consider dam-
ages for stock liable to be killed.
Chicago, K. & W. R. Co. v.
Palmer (Kan.), 108.

Lien of landowner for amount of
compensation, 192 n.

Loss of custom by mill near which
railway is constructed, 124 n.

by mill owing to building of
road across adjoining lot used

EMINENT DOMAIN.
Damages-Continued.

as access to mill; damages held
too remote and speculative. St.
Catharines R. Co. v. Norris
(Ont.), 119.

Married woman accepting as com-
pensation for right of way
amount of void award in emi-
nent domain proceedings held
bound. Colo. C. R. Co. v. Al-
len (Colo.), 193.

Measure of damages is actual
value of property at time of ap-
praisement. Colo. C. R. Co. v.
Allen (Colo.), 193.

Market value of property,
205 n.

where there are no special
damages is difference between
annual rental value, with and
without road. Larsen v. Oregon
R. & N. Co. (Ore.), 92,
Mineral contents of land; dam-
ages for, 114 n.

Mortgage on land; effect of on

assessment of damages, 115 n.
Obstruction of light; damages for,

114 n.
Particular use of land. Consid-
eration of special value of land
for particular purposes, 106 n.
Land suitable for building
lots, 114 .

Owner may recover fair price of
land for any use for which it has
value in present or in future.
Currie . Waverly & N. Y. B.
R. Co. (N. J.), 100.
Platted land. Jury should not
consider platted streets as
opened, but they may consider
fact that city streets are platted
upon it and may some day be
opened. Schuykill River East

Side R. Co. v. Stocker (Pa.), 137.
Presumption of payment of dam.
ages. Payment not presumed
after lapse of more than 20
years where railway did not
take possession. Chicago & N.

W. R. Co. v. Galt (Ill.), 43.
Residue of land; landowner is
entitled to such damages for
injury to as is equivalent to
diminution in value. Fremont,
E. & M. V. R. Co. v. Meeker
(Neb.), 115.
Separate tracts. Compensation

must be limited to tract a por-
tion of which is actually taken. i

EMINENT DOMAIN.
Damages-Continued.

Currie v. Waverly & N. Y. B.
R. Co. (N. J.), 100.

Separate tracts; mere plotting of
land on map is not division into,
within rule. Currie v. Waverly
& N. Y. B. R. Co. (N. J.), 100.

What are considered as sepa-
rate parcels and entire tracts of
land, 106 n.

Setting aside verdict. Where jury
have viewed premises their ver-
dict will not be set aside unless
clearly wrong. Fremont, C. &
M. V. R. Co. v. Meeker (Neb.),
115.

Special advantages of land to
party condemning it; when this
may swell landowner's compen-
sation. Currie v. Waverly & N.
Y. B. R. Co. (N. J.), 100.

Situation giving special value
for railway purposes; land-
owner may reap benefit of, when
compelled to part with land.
Currie v. Waverly & N. Y. B. R.
Co. (N. Y.), 100.

Special findings; allowance of
damages by jury inconsistent
with, should not be allowed.
San Jose & A. R. Co. v. Mayne
(Cal.), 158.

Waiver of compensation in con-
sideration of agreement to em-
ploy; landowner held estopped
to maintain action for damages.
Cory v. Chicago, B. & K. C.
R. Co. (Mo.), 183.
Riparian Rights.
Condemnation of upland em-

braces right to improvement
and occupancy of submerged
land although not specifically
mentioned. Hanford v. St. P.
& D. R. Co. (Minn.), 205.

Specific mention in petition
of riparian rights in respect to
lands belonging to others held
not to prevent acquisition of
such rights not specifically men-
tioned. Hanford v. St. P. &
D. R. Co. (Minn.), 205.
Damages for obstruction of ac-
cess to rights, 216 n.
Effect of condemnation, 216 n.
Parties.

Administrator and heirs of de-
ceased owner, 178 n.
Company selling road after com-
mencing construction held