Dr. Biddle called upon Dr. Mills, an expert on insanity, and together they made an examination of Mr. Streeper in Philadelphia, at an insane asylum where he was then confined. They made a report in writing, and Dr. Biddle presented it to the court at the hearing upon the habeas corpus. Dr. Biddle was also present at a subsequent hearing of the case. These proceedings were prior to the inquisition in lunacy, by which the relator was adjudged insane. The claimant did not appear before the commission. The court allowed claimant $60 and the committee of the person and estate of the lunatic appeals.

D. Ogden Rogers, for appellant. Henry C. Boyer, for appellee.

CLARK, J. In Wier v. Myers, 34 Pa. St. 377, it was held that the committee of a lunatic ought not to be subject to action for any of the expenses of the process by which the lunatic and his estate are put into the custody of the law. "All these expenses," says this court in that case, "ought to be carefully supervised by the court, and, considering the helpless condition of the lunatic, none ought to be allowed except such as are manifestly just and moderate. If the committee is liable to action, he may be sued anywhere, and thus put to very unjust inconvenience and expense, under the forms of law. The court that has the final settlement of the committee's account ought to have the control of the committee's expenditures." But the services of Drs. Biddle and Mills were not rendered in the proceed.ng de lunatico inquirendo. Streeper had been arrested, and was in prison for crime. In order to be relieved from imprisonment he sued out a writ of habeas corpus, and it was in connection with this the alleged services were rendered. It may be said that the criminal act, the arrest, and the issuing of the habeas corpus led up to the proceedings in lunacy, and that Biddle and Mills became witnesses in the lunacy case, because of the professional knowledge of the case they had acquired in their previous examination; still the fact remains that the services were not rendered in the lunacy case. Their charges cannot be considered as part of the expenses thereof. As well might we embrace the costs of the criminal proceeding, and of the habeas corpus, and the attorney's charges in both. The doctors' charges stand upon the footing of an ordinary debt or demand on the lunatic's estate. If their services were reasonably proper and necessary under the circumstances, and were rendered in good faith, at the instance of the attorney issuing the habeas corpus, the lunatic would be liable therefor, as for any other necessary and valuable thing, done or furnished him. If the liability of the lunatic's estate had been conceded by his committee, and the price or value of the services had been agreed upon, or otherwise lawfully ascertained, the court might have required the committee to raise the nece@ary funds to discharge the debt. But the demand was disputed by the committee, who alleged that the services, if they were rendered at all, were wholly unauthorized, and that the estate of the lunatic was in no way liable therefor. Under such circumstances the court would not assume to settle the dispute, or to order the payment of a debt which the committee denied. It was the undoubted right, not only of the creditor, but of the lunatic debtor, through his committee, to have the validity of the claim, and its amount, ascertained by due course of law; and a suit brought with notice to the committee, and prosecuted to judgment, bona fide, would be conclusive as to the amount and merits of the plaintiff's demand. The judgment thus obtained would, of course, give the creditor no preference, by way of lien, nor would it enable him to enforce payment in the ordinary form of execution. The validity of his claim being thus established, and the true amount thereof ascertained, he was entitled to lay it before the court, and ask that its payment should be provided for. The debts of a lunatic are to be paid according to their character, at the time of the finding of the inquisition. No preference can be acquired after the property passes in custodia

legis. The order and decree of the common pleas, made May 16, 1887, requiring the committee to pay to Dr. A. W. Biddle the sum of $60, for professional services rendered by Drs. Biddle and Mills, is therefore reversed, and it is ordered that the appellee A. W. Biddle pay the cost of this appeal.

O'BRIEN v. PENNSYLVANIA S. V. R. Co.

(Supreme Court of Pennsylvania. March 12, 1888.)

EXECUTORS AND ADMINISTRATORS-ACTIONS BY-RAILROAD COMPANIES-OCCUPATION OF STREET-WHEN CAUSE OF ACTION ACCRUES.

Under Const. Pa. 1874, art. 16, § 8, providing that when private property is taken for public use compensation shall be made before the taking, a right of action for obstructing a street by excavations for railway purposes accrues when the work is undertaken; and an executor may sue for damage to property caused by such work, though it was not completed at the testator's death.

Error to court of common pleas, Montgomery county; AARON S. SWARTZ, Judge.

Johanna O'Brien, executrix of the estate of Jeremiah O'Brien, deceased, brought this action against the Pennsylvania Schuylkill Valley Railroad Company for injury arising from excavations made through a street for the purposes of defendant's track, whereby property owned by deceased depreciated. Jeremiah O'Brien died before the work causing the injury was finished, and at the trial the learned judge instructed the jury that the right of action did not accrue to any one until the road was fully completed at that point of the roadway at which the injury complained of was done. The verdict was for defendant, and plaintiff brings error.

Henry M. Tracy and Charles Hunsicker, for plaintiff in error.

Right of action accrued as soon as the work of grading the street had so far progressed as to prevent its use as a public thoroughfare. When the road was located, the deceased was entitled to sue for damage that might result from the construction. Wadhams v. Railroad Co., 42 Pa. St. 310; Beale v. Railroad Co., 86 Pa. St. 509; Neal v. Railroad Co., 2 Grant, Cas. 137. Compensation must be before taking. Const. Pa. 1874. art. 16, § 8.

Charles H. Stinson, for defendant in error.

The judgment will be affirmed, as the jury found that decedent's property suffered no damage in his life-time. The instruction that no right of action accrued till the work was completed, was correct. Navigation Co. v. Thoburn, 7 Serg. & R. 422.

CLARK, J. This action on the case was brought by Johanna O'Brien, executrix of the last will and testament of Jeremiah O'Brien, deceased, to recover damages for an alleged consequential injury to certain real property of said Jeremiah O'Brien in Conshohocken, arising out of the location and construction of the Pennsylvania Schuylkill Valley Railroad. The railroad, which was located upon the company's own ground, runs through Conshohocken, in a north-westerly direction, parallel with, but north of, Marble street, crossing at right angles Maple, Oak, Forest, and Fayette streets. O'Brien's property consisted of a lot on the corner of Marble and Forest, and other lots adjoining on the south; also another lot on Oak street, some distance south of Marble. Thus it will be observed the railroad was north, and O'Brien's properties were all south, of Marble street. The grade of the railroad required an excavation of some 13 or 14 feet to be made at the several street crossings. When the work was commenced, a temporary bridge was thrown over Oak street, until the entire excavation was complete, when a permanent bridge was built over Forest; then the temporary structure over Oak was removed, the street fenced across, and it so remains. The bridge over Forest is ele

vated several feet above the grade line of the street, and the approach is so steep and difficult as to greatly impede and obstruct travel over it. The plaintiff, in her declaration, complains, in substance, that by reason of the premises the streets and highways mentioned are obstructed, reasonable access to the plaintiff's property prevented, the property rendered inconvenient for use as a habitation, and the value thereof greatly depreciated; and, although no part of her property has been taken, yet she alleges that in consequence of the construction of the road it has been injured, and in great measure destroyed. Jeremiah O'Brien died on the 17th November, 1883, and it seems to be conceded that the railroad had been located, and the excavation of these streets commenced, before that date, but the work was not completed until about the 1st April, 1884.

The court instructed the jury, if they should find that the excavation was made, and the bridge built, after the death of O'Brien, the plaintiff could not maintain her suit as executrix. "I instruct you," says the learned judge, "that the person who was the owner of the property at the time the railroad company constructed its railway over Oak street and over Forest street is the party who is entitled to recover the damages; and by that I mean the party who owned the property at the completion of that part of the railway that caused the injury, whereof complaint is now made. * * * It will be important for you to determine, under this ruling of the court, who was the owner of the property at the time the railroad was completed at Oak street and at Forest street, in such manner as to occasion the damages for which the complaint is brought. * * * If you find that the obstruction or excavation in Oak street which caused injury to these properties was not completed on the 17th day of November, 1883, then the plaintiff cannot recover any damages for the obstruction of Oak street in this case." This instruction of the court is the only error assigned. No other question affecting the plaintiff's right to recover is raised on this record. The right of action is based on the eighth section of the sixteenth article of the new constitution, which provides that "municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements; which compensation shall be paid or secured before such taking, injury, or destruction." The provision for an actual taking, it will be observed, is precisely the same as for a consequential injury to property; the section applies equally and alike in both cases. If O'Brien's property has been injured within the meaning of this section of the constitution, it is plain that the compensation was payable before the injury was done, and the right of action certainly accrued at the time the compensation was to be made. The provisions of the constitution are, in this respect, analogous to those of the general railroad law of 19th February, 1849, which provides "that before such company shall enter upon or take possession of any such lands or material, they shall make ample compensation to the owner or owners thereof, or tender adequate security therefor." It has been repeatedly held, construing this act of 1849, that, when the railroad has been located, the land has been taken and appropriated for public use; that the right of the land-owner to sue for his damages is complete, and he may recover all which may be caused by the location, and by the subsequent construction; that he can have but one action; and that the damages cannot be severed. Wadhams v. Railroad Co., 42 Pa. St. 310; Beale v. Railroad Co., 86 Pa. St. 509. The constitutional provision must, we think, receive a similar construction. If the damages must be paid or secured before the injury, it follows that as soon as the work is actually undertaken at the point where the injury is done, according to the plans and purposes of the company, as defined by their location, grade, and general scheme of construction, the injury is complete; and, if the damages are neither paid nor secured, an action may be

maintained for the damages consequent upon the completion of the road in accordance therewith. The action is not for an ordinary trespass; no actual trespass was committed. The injury, if any, is purely consequential. It is an injury arising from the proposed construction and completion of the road, which has been already undertaken. It is a single injury, entire and indivisible, and the damages cannot be severed. There can therefore be but one action, and that action, as we have said, may be brought as soon as the work which results in the injury complained of is undertaken. It is not in conformity with either the letter or the spirit of the constitution, to hold that the right of action shall be postponed until the injury is complete, for the provision is plain that "the compensation shall be paid or secured before the taking, injury, or destruction." Moreover, if the right of action be thus postponed, it would be in the power of the company, by a tardy performance, to delay the action indefinitely. The action is for consequential damages, on the principles of the common law; but the right of action, in advance of the injury, is conferred by the provisions of the constitution, and in this respect the present case differs from Navigation Co. v. Thoburn, 7 Serg. & R. 410. The case of Buckwalter v. Bridge Co., 38 Pa. St. 281, is more in accord with the facts and principles of this case. In that case, the charter of the bridge company provided, in a certain contingency, for the payment of consequential damages to the owner of a ferry over the stream upon which the bridge was to be built. It provided for the assessment of all damages which the owner of the ferry “shall sustain by reason of the erection of the said bridge;” which damages, it was provided, should "be paid by the said company before the erection of said bridge.' The damages were assessed before the work began, but were estimated according to the injury which the ferry-man would sustain when the work was complete.

Whether Jeremiah O'Brien, by the construction of this railroad, suffered any injury peculiar to himself, and different in kind and degree from that which is sustained by the general public, is a question not raised by the assignments of error. That question is therefore not before us. All that we do decide is that, if the injury is such as was contemplated by the constitution, the right of action accrued when this particular part of the work was actually undertaken. The judgment is therefore reversed, and a venire facias de novo awarded.

BALTIMORE & P. R. Co. v. SPRINGER.

(Supreme Court of Pennsylvania. March 12, 1888.)

1. EMINENT DOMAIN-COMPENSATION-ELEMENTS OF DAMAGES.

In estimating damage owing to the taking of land for railway purposes, when a part of the lot in question has been temporarily leased as a separate holding, but divided from the rest only by a surveyor's line, the owner cannot exclude such portion from consideration, treating it as a separate lot, and recover for the remainder being cut off from the public road, but the lot is to be treated as a whole, and benefit to one portion owing to proximity to a station may be considered with disadvantage resulting to another.1

2. SAME-VALUE OF PARTICULAR PORTION.

In estimating damages referable to the taking of land for railway purposes evidence of an offer, made before the road was built, for a particular portion of a farm as a building lot, is not admissible to show what the value of the farm then was, the question being the value of the whole lot before and after the road passed through. Error to court of common pleas, Delaware county; THOMAS J. CLAYTON, Judge.

Edward K. Springer brought this action against the Baltimore & Philadelphia Railroad Company to recover damages resulting from the condemna

As to what elements of damage may be considered in awarding damages to the owner of land taken for a railroad, see Railroad Co. v. Kuhn, (Kan.) 16 Pac. Rep. 75; Railroad Co. v. Kregelo, (Kan.) 5 Pac. Rep. 15; Railroad Co. v. Delaney, (Kan.) 16 Pac. Rep. 343.

tion of land for the use of defendant's road. Plaintiff's land embraced 46 acres, part of which he leased as a "truck patch," which portion had been benefited by proximity to the station, but it was acquired by plaintiff in connection with the adjoining land, and was separated only by a surveyor's line. Considering this patch as separate, the remainder of the tract was cut off from the traveled road by the railroad, and plaintiff sought to recover for deterioration thus caused. At the trial, plaintiff was allowed to give evidence as to an offer he had received for a portion of the property, the admission of which was the subject of the third assignment of error. Judgment for plaintiff. Defendant brings error.

W. B. Broomall, for plaintiff in error.

There is only one lot which is to be considered as a whole in computing damages and benefits. Railroad Co. v. Moore, 4 Wkly. Notes Cas. 532. Evidence of an offer to purchase part of the lot in question was not admissible prove the value of the land, the only proper test being the opinion of witnesses. Railroad Co. v. Hiester, 40 Pa. St. 53.

Geo. B. Lindsay and V. G. Robinson, for defendant in error.

The lot known as the "Truck Patch" was distinct, and the company cannot offset benefit to this against damage done to the remainder. Railroad Co. v. Moore, 4 Wkly. Notes Cas. 532; Todd v. Railroad Co., 78 Ill. 530; State v. Digby, 5 Blackf. 543; Railroad Co. v. Brown, 58 Ill. 61.

WILLIAMS, J. The facts disclosed by an examination of the testimony in this case are as follows: The plaintiff in the court below is the owner of a farm containing 46 acres, which is used and controlled by him. Part of it is let to others to cultivate, and part is cultivated by the plaintiff and his employes. It is not divided by any natural or artificial boundaries that are visible on the ground; but a surveyor's line has been run across it, and its position indicated upon a draft that was placed before the jury by a dotted line. The surveyor testifies that when the line was run by him there was no fence, no hedgerow, no monuments of any sort on the ground to indicate its location. The plaintiff testified that at one time there had been a hedgerow of brush on or near the line run by the surveyor, but that he had cleared it away. The part of the farm lying between the surveyor's line and the Springfield road contains about 13 acres and has been used for some years as a "truck patch." It was contended on the trial that this part of the farm should be treated as a distinct and separate property and left wholly out of view in the assessment of the plaintiff's damages. Whatever advantages accrued to this part of the farm the plaintiff contended belonged to him, and whatever disadvantages were suffered as to the balance of his farm thus divided he claimed a right to recover for. In this way he cut off all the balance of his farm from the Springfield road, by the surveyor's line, and asked to be paid for the inconvenience thus created.

The general principles applicable to this case have been declared by this court with such frequency and clearness as to make a discussion of them at this time unnecessary. They are these: (1) The proper measure of the injury sustained by a land-owner by reason of an entry upon and appropriation of any portion of his land is the difference between the market or selling value of his land before and after such entry and appropriation. (2) In determining this difference in market or selling value the advantages and the disadvantages resulting from the appropriation are to be taken into consideration. (3) The advantages and disadvantages are to be estimated upon the farm or tract as a whole, and not upon each separate field as though it was a separate property. (4) An advantage accruing to one farm or tract by reason of the construction of the railroad near or through it cannot be set off against an in