that the party claimed the right is no evidence of the exist ence of the necessary facts to confer it. But there is one other objection which, owing to its importance, I think proper to notice. It appears from the bill of exceptions that the plaintiff settled on the land in controversy as a homestead in the month of December, 1886, or January, 1887, and in the month of February, 1887, made the necessary filing, in the proper land office, of its said settlement and claim. Inasmuch as no patent had been issued for said land, and the plaintiff's right thereto was still possessory, the five years not having expired from the date of the commencement of his residence, the appellant claims that at the time of its entry thereon the same was public land, and within the power of congress to dispose of as it might think fit, and that the grant made by said act of March 3, 1875, is such disposition; and counsel cites the Yosemite Valley Case, 15 Wall. 77. and Frisbie . Whitney, 9 Wall. 189. Waiving for the present the particular objections to the defendant's claim already pointed out, I do not think the authorities cited support the defendant's contention. I have no doubt that when, in compliance with the act of congress granting homesteads to actual settlers upon the public lands of the United States, a person qualified under the act makes a settlement thereon, and then complies with said act, the land claimed by the settler ceases to be public lands of the United States, and that congress has not the power, without the consent of such settler, to appropriate said lands to any other public use whatever; nor has it in the instance assumed to exercise such authority in this case. Such settlement and compliance with the act severs the land claimed as a homestead from the mass of public lands, and it is taken out of the act of congress of March 3, supra. This is the effect of the doctrine of Wilcox v. Jackson, 13 Pet. (U. S.), 498, and Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 40 Am. & Eng. R. Čas. 426, and such is the construction given to this act in Red River & L. W. R. Co. v. Sture, 32 Minn. 95. And this conclusion seems clearly deducible from the act itself, for the reason it does not assume to grant the possessory claims of those who had acquired them prior to the time of compliance with the act by a railroad company claiming the benefit of the act, for the reason that the third section of the act provides for the condemnation of such possessory claims. This provision is a clear recognition of such claims as against any corporation claiming by title subsequent to their acquisition. But counsel contend that these views cannot be correct, for the reason the United States have in a large number of cases maintained actions of trespass against homestead claimants for cutting 44 A. & E. R. Cas.-7 timber off the lands claimed by them, and he cites U. S. v. Taylor, 35 Fed. Rep. 486; U. S. v. Stores, 14 Fed. Rep. 824; U. S. v. Smith, 11 Fed. Rep. 487; and U. S. v. Cook, 19 Wall. (U. S.), 591. It is true that after settlement by a homestead claimant, and his incipient compliance with the act, his title is inchoate. He has that which will ripen into a perfect title by a complete compliance with the act, and in the meantime he is in under the right which has been conferred upon him by the United States. Neither the right to destroy the timber growing upon the land, nor to use it for speculative purposes, is conferred; and, should he transcend the power conferred upon him by his grantor before his title has matured and become perfect, no reason is perceived why he might not be required to respond in damages for an act which is in its nature waste. cessive-New trial-Prejudice. 2. It appeared upon the trial in the court below that the plaintiff's entire claim was worth from $800 to $1,200. The jury gave him a verdict of $600 damages. A moDamages ex- tion was made for a new trial, which was overruled by the court, in passing upon which the learned circuit judge said: "I am satisfied that, in all cases where a corporation is a party, more or less prejudice exists, sometimes for, but more frequently against, the corporation, and that juries frequently render unjust verdicts in such cases. In this case, I am satisfied that the jury were prejudiced, and that the verdict is excessive; but I do not know it, and therefore overrule the motion for a new trial." It would seem that this was enough to have given the defendant a new trial under subdivision 5 of section 235, Hill's Code. That provision allows a new trial when excessive damages have been allowed, appearing to have been given under the influence of passion or prejudice, and, while the finding of the court brings the case substantially within the provision, he saw proper to disallow the motion for a new trial; and we will not interfere with the action of the court in this particular case, for the reason that a new trial must be awarded for other reasons, presently to be adverted to. Still, I am strongly inclined to think that when it does appear from the record that the damages are excessive, and when passion or prejudice influenced the jury in reaching the conclusion, the party injured is entitled to a new trial as a legal right, and to refuse it is reversible error. These facts would very rarely appear in the record, as they do in this case. But, while we have determined not to award a new trial in this case on account of such excessive damages and prejudice found by the court, their existence makes it all the more imperative on this court to look carefully into the record, so far as errors are assigned, to as certain if any errors occurred at the trial prejudicial to the appellant. I damagesSpecial dam ages. 3. In this case no especial damages are alleged. The plaintiff was therefore only entitled to recover such damages by reason of the unauthorized laying of the defendant's railroad track across his premises, and the Measure of operation of the road, as well as the actual damages he sustained by the breaking of his close. In such case the correct measure of damages is said to be the difference between the annual rental value of the premises with the railroad track down and operated, as it is, and what the rental value of the premises would have been if the road had not been there. Blesch v. C. & N. R. Co., 43 Wis. 183. Of course this rule would not include special damages in a case where such damages are pleaded, and in this case it does not include the damages for the breaking of the plaintiff's close; but the latter item would only be such sum as would restore the premises to such a condition of safety for use as they were in before the breaking. In this case no special damages are alleged, and therefore none are recoverable. The general tenor of instructions 1 and 2, which were asked by the defendant, and refused by the court, is in harmony with what is here said, and the substance ought to have been given; but, in the particular form in which they were asked, they left it to the jury to find out what was or was not specially pleaded. This was the province of the court, and it did not err in refusing to give an instruction which, in effect, left that question to the jury. But the defendant also asked. the court to give the jury the following instruction, which was refused: "The plaintiff having neither pleaded nor proved any special damages resulting from the alleged frightening of his horses, he can recover nothing from that cause." This instruction was refused, and such refusal was clearly error. It impliedly conceded more to the plaintiff than he was entitled to; that is, it seems to assume that, if the plaintiff had alleged and proved something of that kind, it would have formed a proper basis for a recovery, which may well be doubted. But, whether that is so or not, such a claim was not included in the pleadings, and could not be considered by the jury. Evidence which was properly excepted to was also allowed to go to the jury on this subject, which was also error. The case seems to have been tried, so far as appears, without any very definite rule as to its scope under the pleadings, or the measure of damages, and entirely at variance with what is here said. The judgment appealed from will therefore be reversed, and the cause remanded to the court below for a new trial. Right of Way Through Public Lands –Rights of Homestead Claimants.—See Savannah, F. & W. R. Co. v. Davis (Fla.), 43 Am. & Eng. R. Cas. 542, note 549. Eminent Domain-Liability of Horses to Become Frightened as an Element of Damage. See Fayetteville & L. R. R. Co. v. Combs (Ark.), 39 Am. & Eng. R. Cas. 140, note 143. CURRIE v. WAVERLY & NEW YORK BAY R. Co. (New Jersey Court of Errors and Appeals, June 21, 1890.) Eminent Domain Damages Separate Tracts of Land.—It is an established rule in the condemnation of lands that the just compensation which the landowner is entitled to receive for his land and damages thereto must be limited to the tract a portion of which is actually taken. The Mere Plotting of Land upon a Map, without more, is not such a division of it into separate tracts that the owner's damages must be limited to the particular block, a portion of which, as shown on the map, is actually taken. Value of Land for Particular Use. The law gives as compensation to the owner of lands taken for a public use its fair price for any use for which it has a commercial value of its own in the immediate present, or in reasonable anticipation in the near future. Same Special Advantages of Land. The rule that the special advantages of the land to the party acquiring it by condemnation shall not swell the compensation of the landowner applies to cases where the taking which is advantageous to the purchaser is not pecuniarily disadvantageous to the seller. If, however, the advantageous feature is of such a nature that it has a commercial value in the hands of either, then a fair estimate of such value is a proper part of the just compensation which the owner is entitled to receive. Same The Situation and Surroundings of land sought for railroad purposes may impart to it a special value for such purposes generally. Where such a value is shown, the owner may reap the benefit of it when compelled to part with his land by condemnation. ERROR to Circuit Court, Hudson County. Randolph, Condit & Black, for plaintiff in error. GARRISON, J.-This writ of error brings up the circuit record of an issue tried upon an appeal from the award of commissioners appointed to condemn the lands of Case stated. Mungo J. Currie, upon the application of the Waverly & New York Bay Railroad Company. The landowner is the plaintiff in error. The land taken for railroad purposes is a strip 100 feet in width and 770 feet in length, lying near, but not fronting upon, New York bay. The strip in question is part of a tract of several acres belonging to the same owner. This tract had been plotted by its owner into avenues. town lots, and delineated upon a map, showing streets and In 1885 lots were offered at public sale by this map, but no lots abutting upon the avenues adjacent to the strip in question have been sold. The route selected by the railroad runs parallel with, and in immediate adjacency to, an avenue marked upon this map as "Fifty-Second Street." The block upon which the route is located is bounded upon this map by Fifty-Second street upon one side, and by Fifty-Third street upon the other, and is the only block any portion of which is actually taken by the railroad. In this situation of affairs the jury were instructed by the trial court that the damages to be awarded to the landowner must be limited to the particular block a portion of which, as shown upon the map, was actually taken, unless it appeared from the evidence that the owner was using that block in common with the rest of his lands for a single use. In explaining this instruction to the jury the court used two illustrations. The jury was told that if the owner had a factory that covered three or four of these blocks, and was using that factory as an entirety, then the block taken would not be the limit for assessing damages. The other illustration was that of a farmer, who having mapped his farm into blocks, continued to cultivate it as a unit. The propriety of the rule of damages thus laid down is the subject of a specific exception to the judge's charge. Single tract of landWhat constitutes. It is an established rule of law in proceedings for condemnation of land that the just compensation which the landowner is entitled to receive for his lands, and damages thereto, must be limited to the tract a portion of which is actually taken. The propriety of this rule is quite apparent. It is solely by virtue of his ownership of the tract invaded that the owner is entitled to incidental damages. His ownership of other lands is without legal significance. Within the tract thus owned his rights are twofold-First, he is to be paid the value of the land included in the petition of the condemning agent; and secondly, he is entitled to an award of such damages as result to the residue of his tract. In the application of this rule no practical difficulty can arise where the tract is bounded by the lands of others. The difficulty, in so far as it has arisen hitherto, is in those cases in which the owner of several blocks of land, separated from each other by public highways, has claimed compensation for land taken in one block, and also incidental damages to his adjacent parcels. The question thus presented is said to have been decided adversely to the claim of the landowner in the Case of the New York Cent. R. Co., 6 Hun (N. Y.), 149. That case de |