other cause, which make him unwilling to part with the property on the estimate of his neighbors; but such reasons are incapable of being taken into account in legal proceedings, where the question is one of compensation in money, inasmuch as it is manifestly impossible to measure them by any standard of pecuniary value. Concede to the government a right to appropriate the property on paying for it, and we are at once remitted to the same standards for estimating values which are applied in other cases, and which necessarily measure the worth of property by its value as an article of sale, or as a means of producing pecuniary re turns. When, however, only a portion of a parcel of land is appropriated, just compensation may perhaps depend upon the effect which the appropriation may have on the owner's interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition in which it may leave the remainder in respect to convenience of use. If, for instance, a public way is laid out through a tract of land which before was not accessible, and if in consequence it is given a front, or two fronts, upon the street, which furnish valuable and marketable sites for building lots, it may be that the value of that which remains is made, in consequence of taking a part, vastly greater than the whole was before, and that the owner is benefited instead of damnified by the appropriation. Indeed, the great majority of streets in cities and villages are dedicated to the public use by the own[* 566] ers of lands, without any other compensation or expec tation of compensation than the increase in market value which is expected to be given to such lands thereby; and this is very often the case with land for other public improvements, which are supposed to be of peculiar value to the locality in 'which they are made. But where, on the other hand, a railroad is laid out across a man's premises, running between his house and his outbuildings, necessitating, perhaps, the removal of some of them, or upon such a grade as to render deep cuttings or high embankments necessary, and thereby greatly increasing the inconveniences attending the management and use of the land, as well as the risks of accidental injuries, it will often happen that the pecuniary loss which he would suffer by the appropriation of the right of way would greatly exceed the value of the land taken, and to pay him that value only would be to make very inadequate compensation. It seems clear that, in these cases, it is proper and just that the injuries suffered and the benefits received, by the proprietor, as owner of the remaining portion of the land, should be taken into account in measuring the compensation. This, indeed, is generally conceded; but what injuries shall be allowed for, or what benefits estimated, is not always so apparent. The question, as we find it considered by the authorities, seems to be, not so much what the value is of that which is taken, but whether what remains is reduced in value by the appropriation, and if so, to what extent; in other words, what pecuniary injury the owner sustains by a part of his land being appropriated. But, in estimating either the injuries or the benefits, those which the owner sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, should be altogether excluded, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken of such incidental benefits and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken.1 1 In Somerville and Easton R. R. Co. ads. Doughty, 22 N. J. 495, a motion was made for a new trial on an assessment of compensation for land taken by a railroad company, on the ground that the judge in his charge to the jury informed them "that they were authorized by law to ascertain and assess the damages sustained by the plaintiff to his other lands not taken and occupied by the defendants; to his dwelling-house, and other buildings and improvements, by reducing their value, changing their character, obstructing their free use, by subjecting his buildings to the hazards of fire, his family and stock to injury and obstruction in their necessary passage across the road, the inconvenience caused by embankments or excavations, and, in general, the effect of the railroad upon his adjacent lands, in deteriorating their value, in the condition they were found, whether adapted for agricultural purposes only, or for dwellings, stores, shops, or other like purposes." "On a careful review of this charge," says the judge, delivering the opinion of the court, "I cannot see that any legal principle was violated, or any unsound doctrine advanced. The charter provides that the jury shall assess the value of the land and materials taken by the company, and the damages. The damages here contemplated are not damages to the land actually occupied or covered by the road, but such damages as the owner may sustain in his other and adjacent lands not occupied by the company's road. His buildings may be reduced in value by the con [* 567] * The question, then, in these cases, relates first to the value of the land appropriated; which is to be assessed tiguity of the road and the use of engines upon it. His lands and buildings, before adapted and used for particular purposes, may, from the same cause, become utterly unfitted for such purposes. The owner may be incommoded by high embankments or deep excavations on the line of the road, his buildings subjected to greater hazard from fire, his household and stock to injury or destruction, unless guarded with more than ordinary care. It requires no special experience or sagacity to perceive that such are the usual and natural effects of railroads upon the adjoining lands, and which necessarily deteriorate not only their marketable but their intrinsic value. The judge, therefore, did not exceed his duty in instructing the jury that these were proper subjects for their consideration in estimating the damages which the plaintiff might sustain by reason of the location of this road upon and across his lands." And in the same case it was held that the jury, in assessing compensation, were to adopt as the standard of value for the lands taken, not such a price as they would bring at a forced sale in the market for money, but such a price as they could be purchased at, provided they were for sale, and the owner asked such prices as, in the opinion of the community, they were reasonably worth; that it was matter of universal experience that land would not always bring at a forced sale what it was reasonably worth, and the owner, not desiring to sell, could not reasonably be required to take less. In Sater v. Burlington and Mount Pleasant Plank Road Co., 1 Iowa, 393, Isbell, J., says: "The terms used in the constitution, just compensation,' are not ambiguous. They undoubtedly mean a fair equivalent; that the person whose property is taken shall be made whole. But while the end to be attained is plain, the mode of arriving at it is not without its difficulty. On due consideration, we see no more practical rule than to first ascertain the fair marketable value of the premises over which the proposed improvement is to pass, irrespective of such improvement, and also a like value of the same, in the condition in which they will be immediately after the land for the improvement has been taken, irrespective of the benefit which will result from the improvement, and the difference in value to constitute the measure of compensation. But in ascertaining the depreciated value of the premises after that part which has been taken for public use has been appropriated, regard must be had only to the immediate, and not remote, consequence of the appropriation; that is to say, the value of the remaining premises is not to be depreciated by heaping consequence on consequence. While we see no more practical mode of ascertainment than this, yet it must still be borne in mind that this is but a mode of ascertainment; that, after all, the true criterion is the one provided by the constitution, namely, just compensation for the property taken." See this rule illustrated and applied in Henry v. Dubuque and Pacific R. R. Co., 2 Iowa, 300, where it is said: “That the language of the constitution means that the person whose property is taken for public use shall have a fair equivalent in money for the injury done him by such taking; in other words, that he shall be made whole so far as money is a measure of compensation, we are equally clear. This just compensation should be precisely commensurate with the in * with reference to what it is worth for sale, in view of [* 568] the uses to which it may be applied, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it. Second, if less than the whole estate is taken, then there is further to be considered how much the portion not taken is increased or diminished in value in consequence of the appropriation.2 jury sustained by having the property taken; neither more nor less." And see Richmond, &c. Co. v. Rogers, 1 Duvall, 135; Robinson v. Robinson, 1 Duvall, 162; Holton v. Milwaukee, 31 Wis. 27; Root's Case, 77 Penn. St. 276; East Brandywine, &c. R. R. Co. v. Ranck, 78 Penn. St. 454. 1 Matter of Furman Street, 17 Wend. 669; Tide-Water Canal Co. v. Archer, 9 Gill & J. 480; State v. Burlington, &c. R. R. Co., 1 Iowa, 386; Parks v. Boston, 15 Pick. 206; First Parish, &c. v. Middlesex, 7 Gray, 106; Dickenson v. Inhabitants of Fitchburg, 13 Gray, 546; Lexington v. Long, 31 Mo. 369. 2 Denton v. Polk, 9 Iowa, 594; Parks v. Boston, 15 Pick. 198; Dickenson v. Fitchburg, 13 Gray, 546; Harvey v. Lackawanna, &c. R. R. Co., 47 Penn. St. 428; Newby v. Platte County, 25 Mo. 258; Pacific R. R. Co. v. Chrystal, 25 Mo. 544; Somerville and Easton R. R. Co. ads Doughty, 22 N. J. 495; Carpenter v. Landaff, 42 N. H. 218; Troy and Boston R. R. Co. v. Lee, 13 Barb. 169; Tide-Water Canal Co. v. Archer, 9 Gill & J. 480; Winona and St. Paul R. R. Co. v. Waldron, 11 Minn. 515; Nicholson v. N. Y. and N. H. R. R. Co., 22 Conn. 74; Nichols v. Bridgeport, 23 Conn. 189; Harding v. Funk, 8 Kan. 315; Holton v. Milwaukee, 31 Wis. 27. Compensation is an equivalent for property taken, or for an injury. It must be ascertained by estimating the actual damage the party has sustained. That damage is the sum of the actual value of the property taken, and of the injury done to the residue of the property by the use of that part which is taken. The benefit is, in part, an equivalent to the loss and damage. The loss and damage of the defendant is the value of the land the company has taken. and the injury which the location and use of the road through his tract may cause to the remainder. The amount which may be assessed for these particulars the company admits that it is bound to pay. But, as a set-off, it claims credit for the benefit the defendant has received from the construction of the road. That benefit may consist in the enhanced value of the residue of his tract. When the company has paid the defendant the excess of his loss or damage over and above the benefit and advantage he has derived from the road, he will have received a just compensation. It is objected that the enhanced salable value of the land should not be assessed as a benefit to the defendant, because it is precarious and uncertain. The argument admits that the enhanced value, if permanent, should be assessed, But whether the appreciation is permanent and substantial, or transient and illusory, is a subject about which the court is not competent to determine. It must be submitted to a jury, who will give credit to the company according to the circumstances. The argument is not tenable, that an increased salable value is no benefit to the owner of land unless he sells it. This is true if it be assumed that the [* 569] *But, in making this estimate, there must be excluded from consideration those benefits which the owner receives only in common with the community at large in [570] consequence of his ownership of other property, and price will decline. The chance of constructing of the railroad had occathis is estimated by the jury, in the sioned any benefit or advantage to amount which they may assess for the lands of the petitioner through that benefit. The sum assessed is which the road passed, or lands imtherefore (so far as human foresight mediately adjoining or connected can anticipate the future) the expo- therewith, rendering the part not nent of the substantial increase of the taken for the railroad more convenvalue of the land. This is a benefit ient or useful to the petitioner, or to the owner, by enlarging his credit giving it some peculiar increase in and his ability to pay his debts or value compared with other lands provide for his family, in the same generally in the vicinity, it would be manner and to the same extent as if the duty of the jury to allow for such his fortune was increased by an ac- benefit, or increase of value, by way quisition of property." Greenville of set-off, in favor of the railroad and Columbia R. R. Co. v. Partlow, company; but, on the other hand, 5 Rich. 437. And see Pennsylvania if the construction of the railroad, by R. R. Co. v. Reiley, 8 Penn. St. 445; increasing the convenience of the Matter of Albany Street, 11 Wend. people of the town generally as a 153; Upton v. South Reading Branch place for residence, and by its anticiR. R., 8 Cush 600; Proprietors, &c. pated and probable effect in increasv. Nashua and Lowell R. R. Co., 10 ing the population, business, and Cush. 385; Mayor, &c. of Lexington general prosperity of the place, had v. Long, 31 Mo. 369; St. Louis, &c. been the occasion of an increase in R. R. Co. v. Richardson, 45 Mo. 468; the salable value of real estate genLittle Miami R. R. Co. v. Collett, erally near the station, including the 6 Ohio, N. s. 182; Bigelow v. West petitioner's land, and thereby occaWisconsin R. R. Co, 27 Wis. 478. sioning a benefit or advantage to him, In Newby v. Platte County, 25 Mo. in common with other owners of real 358, the right to assess benefits was estate in the vicinity, this benefit was referred to the taxing power; but too contingent, indirect, and remote this seems not necessary, and indeed to be brought into consideration in somewhat difficult on principle. settling the question of damages to Sutton's Heirs v. Louisville, 5 Dana, the petitioner for taking his particular 30-34. parcel of land. Upton v. South Reading Branch R. R. Co., 8 Cush. 600. It has sometimes been objected, with great force, that it was unjust and oppressive to set off benefits against the loss and damage which the owner of the property sustains, because thereby he is taxed for such benefits, while his neighbors, no part of whose land is taken, enjoy the same benefits without the loss; and the courts of Kentucky have held it to be unconstitutional, and that full See 1 Dickenson v. Inhabitants of Fitchburg, 13 Gray, 546; Newby v. Platte County, 25 Mo. 258; Pacific R. R. Co. v. Chrystal, 25 Mo. 544; Carpenter v. Landaff, 42 N. H. 218; Mount Washington Co.'s Petition, 35 N. H. 134; Penrice v. Wallis, 37 Miss. 172; Palmer Co. v. Ferrill, 17 Pick. 58; Meacham v. Fitchburg R. R. Co., 4 Cush. 291, where the jury were instructed that, if they were satisfied that the laying out and |