pensation for such injuries by a consideration of a supposed reservation of power to take, injure or destroy, in the original dedication of streets to the public use. I fully concur in the foregoing opinion.

CLOPTON, J.-I concur in the affirmance of the judgment, on the principle declared in Townsend's Case, 80 Ala. 489, but not in the modification of the rule laid down in that case.

STONE, C. J.-I concur with Judge Clopton.

ANNOTATIONS.

Sec. 158. Consequential damages. Under a provision of the Missouri constitution to the effect that private property shall not be taken or damaged for public use without just compensation, it is held that, where property is damaged by the establishment of the grade of a street or by raising or lowering the grade of a street previously established, it is damaged for public use within the meaning of the constitution; and that the municipality is liable for such damages to the abutting owner; and that the same rule will apply to a change of grade in a street made by a railroad company with the permission of the city. Sheehy v. Kansas City Cable Ry. Co., 94 Mo. 574 (7 S. W. Rep. 579; 4 Am. St. Rep. 396 and note). Mere possible speculative or remote damages cannot be recovered. Chicago & Pac. Ry. Co. v. Hildebrand, 27 N. E. Rep. 69.* The damages must be such as could reasonably be expected to result from the appropriation or use of the land. Indiana, B. & W. Ry. Co. v. Allen, 113 Ind. 308 (15 N. E. R. 446; 3 Am. St. Rep. 650). Where one railroad crosses another, the company of the road that is crossed may recover the additional expenses created in the ordinary use of its road, damage to its track, right-of-way, or franchise, which may naturally be considered as the necessary and approximate result of the crossing. Toledo, etc. Ry. Co. v. Railroad Co., 62 Mich. 564 (29 N. W. Rep. 500; 4 Am. St. Rep. 875). The land-owner cannot recover the value of his attorney's fees as part of his compensation, in condemnation proceedings. San Jose & A. R. Co. v. Mayne, 83 Cal. 566 (23 Pac. Rep. 522).

Sec. 159. Measure of damages. In determining the measure of damages, where land is condemned for railroad purposes, its value considered in the form in which it was taken and with regard to the entire property and the uses to which was or it might be adapted, together with everything that enhances or de

preciates its worth, should be taken into consideration. Alloway v. Nashville, 88 Tenn. 510 (13 S. W. Rep. 123; 8 L. R. A. 123); Asher v. L. & N. R. R. Co. 87 Ky. 391 (8 S. W. Rep. 854); Kersey v. R. R. Co., 133 Pa. St. Rep. 234 (19 Atl. Rep. 553; 19 Am. Stat. Rep. 632). In the last case the court says:

"It is well settled that the proper measure of damages is the depreciation in the market value of the property, caused by the location and construction of the railroad. But the elements to be considered in the ascertainment of this depreciation are as varied as the properties affected, and the uses to which they are applied. A specification of all these elements is impossible, because they cannot be anticipated, and many of them remain to be developed in the course of the litigation consequent upon the taking of property by eminent domain. In the ordinary case of the appropriation of land for railroad purposes, the opinions of witnesses who are conversant with the property, and the general selling price of land in the vicinity, are received on the question of its value unaffected by the road, and its value as affected by it. But this is not exclusive of other, and in some cases better, methods of proof. It may be stated as a general principle applicable to cases of this sort, that whatever injuriously affects the property, as the direct and necessary result of the location of the road upon it, may be considered in the assessment of damages".

In Little Rock J. R. R. Co. v. Woodruff, 49 Ark. 381 (5 S. W. Rep. 792; 4 Am. St. Rep. 51), it is held that the land-owner is entitled to the market value of the land taken, and that by market value is not meant the price that could be obtained at a forced sale. Where land is taken for a public road and additional fencing is thereby made necessary, the expenses for such fencing shall be included in the damages; and where a private way is taken for the public road, the value of the private way is a part of the damages. Colusa County v. Hudson, 85 Cal. 633.

In the absence of a statute requiring a railroad company to fence its right-of-way, the expense of the additional fencing forms an element of damages to be recovered by the land-owner. Winona etc. R. R. Co v. Waldron, 11 Minn. 515 (88 Am. Dec. 100).

As a general rule, where property is taken for the use of a private corporation, no benefits to the land-owner can be considered for the purpose of diminishing his damages on account of the taking of the land, but in some cases it is held that such benefits

may be considered for the purpose of diminishing consequential damages. And in most states this rule is fixed by constitutional provisions and statutory enactments. 9 Am. St. Rep. 546 note; San Jose ete. R. R. Co. v. Mayne, 83 Cal. 566 (23 Pac. Rep. 522); Henderson & N. R. R. Co. v. Dickerson, 17 B. Monroe 173 (66) Am. Dec. 148).

ALBION RIVER R. R. CO. V. HESSER.
(84 Cal. 435.)

Eminent domain-Improvements before right of entryCompensation therefor. Where a railroad company, clothed with the power of eminent domain, enters without right upon the lands of the citizen and constructs valuable bridges and track upon its surveyed right of way, and subsequently condemns said right of way according to law in estimating the amount of compensation due the land owner, the improvements cannot be treated as his property, on the theory that they were placed upon his land by a tortfeasor.

FOOTE, C.

The

Sec. 160. Facts stated. This action was instituted for the purpose of condemning to the public use a right of way for the plaintiff's railway track over a portion of the defendant's land. Judgment of condemnation followed, as prayed for, and the damages were assessed against the plaintiff in the sum of $175, as a just compensation for the property sought to be condemned, and as damages consequent to such condemnation. The defendant appeals from the judgment, and order denying a new trial. The contention of the appellant is, that the court erred in failing and refusing to make and give judgment in his behalf for eight thousand five hundred dollars more than was awarded him. ground upon which this claim is advanced is, that the railroad corporation entered upon the land of the appellant before any condemnation proceedings had been commenced, and erected thereon a bridge and railroad track, which had become permanently attached and affixed to the soil, which was of the value of eight thousand five hundred dollars. And such being the fact, the defendant became the owner of these fixtures or permanent improvements upon his land, placed there by plaintiff as trespassers, and, as a consequence, was entitled to have their value allowed to him as a part of his just compensation.

The evidence shows that the corporation, at the time of its entry upon the land and the building of the bridge and track thereon, did not know positively who owned the land, nor did the defendant know that it was his land that was being thus intruded upon until he got the field notes of it from San Francisco.

Sec. 161. Eminent domain-Improvements before right of entry-Compensation therefor. While the entry of the plaintiff may have been, technically, a trespass, it was not the act of a mere tort-feasor. It is therefore to be determined whether the bridge and track, placed upon the land, under such circumstances, with the evident intention, in good faith, to put in operation the constitutional right to condemn, for the public use, the right of way over the land, is such an act as operates as a dedication, in law, of the materials or structures of the railroad placed upon the land to the owner of the land, so as to entitle him to include them in the assessment of his damages as a just compensation for the condemnation of the right of way over his land.

In the case of Cal. P. R. R. Co. v. Armstrong, 46 Cal. 8590, the appellate court said: "The argument on behalf of the defendant on the first point is, that the plaintiffs, in constructing the railroad track, were trespassers, and that the track being attached to the soil, became a part of the realty, and belonged to the owner of the land. Hence he claims that its value ought to be included in the estimate of damages, in like manner as though the defendant himself had built the road. But this proposition can not be maintained. Neither the constitution nor the statute contemplates that a person whose land is taken in the exercise of the right of eminent domain shall be entitled to anything beyond a 'just compensation.' He is to be paid the damage he actually suffers, and nothing more. But to hold that, in addition to the fair value of the land taken, and such other damages as he may suffer by severing it from the remainder of his tract, he shall also recover the value of a railroad track, in the construction of which he never expended a dollar, and which was built by the plaintiffs at their own expense, would be to defeat the obvious intent of the statute by an over-techinical construction of it."

Again, the supreme court of Pennsylvania, in the case of Justice v. N. V. R. R. Co., 87 Pa. St. 28-33, has said: "The very intent of an appropriation of land is to place upon it and

own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by jurists, is its plasticity as a system of principles, and not merely of rigid rules, which can be adopted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the conditions of former times that to apply the rule as to a mere trespasser, whose entry is a tort pure and simple, to the case of one authorized to enter for a great public purpose, merely because of an irregularity in the manner of proceeding, would be as vain as to attempt to dress a full-grown man in the garb of his childhood. This is not a case of mere trespass by one having

no authority to enter but of one representing the state herself, clothed with the power of eminent domain, having a right to enter and to place these materials on the land taken for public use materials essential to the very purpose which the state has declared in the grant of the charter. It is true, the entry was a trespass by reason of the omission to do an act required for the security of the citizen; to-wit, to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him? In the case of a common trespasser, the owner of the land may take and keep his structures, nolens volens; but not so in this case, for though the original entry was a trespass, it is well settled that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon. (Harrisburg v. Crangle, 3 Watts & S. 460; McClinton v. Railroad Co., 16 P. F. Smith, 409; Railroad Co. v. Buoson, 11 P. F. Smith, 379).

In Illinois it is said in the case of Chicago etc. R. R. Co. v. Goodwin, 111 Ill. 202 (53 Am. Rep. 622, 623): "Even if the entry had been without license or permission of any one authorized to grant the same, so that it was a trespass at the time, the