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.),
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.
Right of Compensation-Contin- ued.
Landlord and tenant; rights of,
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.
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.
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-
Taking Land of Another Com pany-Continued.
Nat. Docks, etc., R. Co. (N. J.),
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.
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.
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.
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.).
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.
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.
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
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