market value of the entire premises, part of which is proposed to be taken, not necessarily irrespective of such improvement, but irrespective of the causes which have contributed to that value; then ascertain the like value of the premises in the condition in which they will be after the part is taken, without deduction for any general benefit which will result from the proposed improvement, but, unless specially excluded by positive law, deducting special benefits as above defined; and the difference in value, be it more or less than the value of the part taken, will constitute the measure of compensation.1 Even without an express provision of pal authority to assess is not referable to v. Heister, the right of eminent domain, but inheres in the taxing power alone. Ib. In assessing damages to a land-owner for land taken to widen a street, the jury may consider an agreement made by him with the city, just before institution of the proceeding, and not for compromise or to avoid litigation, to take a certain sum for the strip of land required. Springfield v. Schmook, 68 Mo. 394; Miss. River Br. Co. v. Ring, 58 Mo. 491. In such proceeding, consequential damages are not to be regarded. Springfield Schmook, supra. The va cation of a street, the use of which has been granted to a railroad, does not render a city liable to an owner of a lot, which does not adjoin the street, and whose damage is the same as that sustained by all other property owners though greater in degree. East St. Louis v. O'Flynn, 119 Ill. 200. 1 See Sater v. Burlington & Mt. P. Pl. R. Co., 1 Iowa, 393, decided under the Constitution of 1846. The rule, as there laid down, does not fully accord with that stated in the text, since it requires the marketable value of the premises proposed to be taken to be ascertained irrespective of the proposed improvement, and does not distinguish between general and special benefits. By the Iowa Constitution of 1857, benefits are excluded. Deaton v. Polk County, 9 Iowa, 594; Israel v. Jewett, 29 Iowa, 475. Other like constitutional provisions, see supra, secs. 587, 616; Mills Em. Dom. secs. 149-158, 204 a; Lewis Em. Dom. sec. 472. Pennsylvania rule is similar to the one in Sater v. Mt. P. Pl. R. Co., supra. Watson v. Pittsburgh & C. R. R. Co., 37 Pa. St. 469; Pennsylvania R. R. Co. VOL. II. 6 Pa. St. 445; Hornstein v. Atl. & Gt. W. R. R., 51 Pa. St. 87; Harrisburg & Pot. R. R. Co. v. Moore, 4 W. N. C. 537 (1877); Philadelphia v. Linnard, 97 Pa. St. 242. As to general and special benefits. Little Miami R. R. Co. v. Collett, 6 Ohio St. 182 (1856); Cleveland & P. R. R. Co. v. Ball, 5 Ohio, St. 568; State v. Digby, 5 Blackf. (Ind.) 543; Robbins v. Milw. & H. R. R. Co., 6 Wis. 636; Hornstein v. Atl. Gt. W. R. R. Co., 51 Pa. St. 87; Woodfolk v. Nashville & C. R. R. Co., 2 Swan (Tenn.), 422; McIntire v. State, 5 Blackf. (Ind.) 384; Ind. Central R. R. Co. v. Hunter, 8 Ind. 74; Vanblaricum v. State, 7 Blackf. (Ind.) 209; McMahon v. Cinc. & C. S. L. R. R. Co., 5 Ind. 413; Isom v. Railroad Co., 36 Miss. 300; Pacific R. R. Co. v. Chrystal, 25 Mo. 544; Newby v. Platte County, 25 Mo. 258; Sutton's Heirs v. Louisville, 5 Dana (Ky.), 28; Jacob v. Louisville, 9 Dana (Ky.), 114; Arnold v. Cov. & Cinc. Br. Co., 1 Duvall (Ky.), 372; Robinson v. Robinson, lb. 162; Shipley v. Balt. & P. R. R. Co., 34 Md. 336 (1871). In Mississippi even incidental benefits cannot be set off against incidental damages. New Orleans, J. & Gt. N. R. R. Co. v. Moye, 39 Miss. 374 (1860). Georgia benefits are excluded. Savannah v. Hartridge, 37 Ga. 113 (1867). Rule in Minnesota when land is taken by railway company. Curtis v. St. Paul, S. & T. F. R. R. Co., 20 Minn. 28 (1873), and cases cited. Rule in Missouri is, the reasonable value of the land taken. Jamison v. Springfield, 53 Mo. 224 (1873). California, no benefits. Ventura County v. Thompson, 51 Cal. 577. Rule in Kan sas: For the purpose of reducing damages, all conveniences and benefits accruing can In law requiring that there shall be no deduction for benefits, it seems to the author unjust to require that the value of the land shall be not be considered, but only such as are a direct and special benefit to the owner and his land, and such as are the direct, certain, and proximate result of the establishment of the road, not benefits received by him in common with the whole community. Roberts v. Brown Co. Comm'rs, 21 Kan. 247; Pottawatomie Co. Comm'rs v. Sullivan, 17 Kan. 58. In Massachusetts, upon an assessment of damages for land taken to widen a street, a benefit to be deducted may be direct and special, although other estates on the same street, similarly situated, are similarly benefited. Cross v. Plymouth County, 125 Mass. 557. On a petition for damages to the abutters from raising the grade of the street, benefits derived from the situation of the petitioner's lands as to the street are direct and special, and may be set off, although common to all the property on the street. Donovan v. Springfield, 125 Mass. 371. Benefits classified. Upham v. Worcester, 113 Mass. 97. The opinion of Ranney, J., in Giesy v. Cinc. W. & Z. R. R. Co., 4 Ohio St. 308 (1854), contains an able exposition of the principles upon which damages should be assessed under the Constitution of Ohio, which contains a provision that the " 'compensation shall be assessed by a jury, without deduction for benefits to any property of the owner." In the course of his opinion he says: "Whether property is appropriated directly by the public or through the intervention of a corporation, the owner is entitled to receive its fair market value at the time it is taken, as much as he might fairly expect to be able to sell it to others for, if it was not taken; and this amount is not to be increased from the necessity of the public or the corporation to have it, on the one hand, nor diminished from any necessity of the owner to dispose of it on the other. It is to be valued precisely as it would be appraised for sale upon execution, or by an executor or guardian, and without any regard to the external causes that may have contrib uted to make up its present value. The To jury are not required to consider how much, nor permitted to make any use of the fact that it may have been increased in value by the proposal or construction of the work for which it is taken. allow this to be done would not only be unjust, but would effect a partial revival of the very abuse which it was a leading purpose of these constitutional provisions to correct. It would be unjust, because it establishes for a corporation what is done for no one else, a sort of right in the property of others to the reflected benefits of its improvement, itself submitting to no reciprocity by affording others a compensation for the effect of their improvements upon the property of the corporation. And it is doubly unjust, where, as must very often happen, the increase in value accrued to the benefit of a former owner, and has been bought and paid for by the present holder, from whom the property is taken at a diminished price." In a proceeding to condemn a right of way for a railroad through a tract of land, the jury should assess the compensation due the owner for the land to be appropriated, irrespective of benefits, and also his damages by reason of the diminished value of the remainder of the tract, in consequence of such appropriation. In ascertaining these amounts, the jury are to take into consideration the real value of the land taken, and the diminished value to the remainder, and may for that purpose take into account, not only the purposes to which the land has been or is applied, but any other beneficial purpose to which it may be applied, which would affect the amount of compensation of damages. Cinc. & Spr. Ry. Co. v. Longworth, 30 Ohio St. 108 (1876). So, in Somerville & E. R. R. Co. v. Doughty, 22 N. J. L. 495 (1850), the Supreme Court of New Jersey expresses its opinion to be, that in estimating the value of land taken for the purpose of a public improvement the present value of the lands, not at a forced sale, but at a sale which a prudent holder would make if he had the power to choose his own time and terms, is to be given. ascertained irrespective of those general benefits which are common to all land in the vicinity, and which arise out of the proposed improvement. And the rule held by some courts, that these benefits shall be excluded in ascertaining the value of the whole land in the first instance, and then allowing to be deducted from this sum the value of the remaining portion after the improvement is made, is still more indefensible, and it was the general conviction of the injustice of such a rule that has led to so many constitutional provisions and legislative enactments prohibiting the land-owner from being charged with benefits. But for benefits, direct and special to him, he should be charged in making the estimate of the amount to which he is justly entitled, unless, by the Constitution or statute, even such benefits are not to be considered.1 In the case of Paul v. Newark, at the Essex (N. J.) Supreme Court circuit, Depue, J., held that a house wholly within the line of the proposed street must (if the owner so wishes) be taken and paid for in full by the city, and the city cannot compel him to move it by merely paying costs of removal and restoration, even although the owner has immediately adjacent land, sufficient to accommodate the house. When statutes provide for taking “lands,” the word is used in its broad signification, and includes all things affixed to lands. In Meyer v. Newark, where only a part (about one half) of a house was within the lines of proposed street, the question was left for review before the court in banc, whether the city was compelled to take the whole, or merely to pay for the damages incident to the destruction of the half of the house. The court, however, strongly intimated that in cases where the house was not entirely destroyed, it was only necessary to pay damages sufficient to compensate the owner, and the whole need not be taken or paid for. Ib.; 6 Am. Law Review, 576, from which the above is extracted. Compensation for buildings upon the lands taken. Schuchardt v. New York, 53 N. Y. 202 (1873); Portland v. Lee Sam, 7 Oreg. 397; Portland v. Kamm, 10 Oreg. 383. Measure of compensation to lessor and to lessee. Dyer v. Wightman, 66 Pa. St. 425 (1870). A purchaser of land through which a public sewer had been previously built, without right, can recover damages in respect to it, only for such injuries as have resulted to the land since his purchase. Alexander v. District of Columbia, 3 Mackey, 192. In Vermont, it is held that commissioners to appraise damages for taking land for a sewer can make award only for the actual taking of the land, and cannot include consequential damages, as for a nuisance caused by the discharge of sewage. Stewart v. Rutland, 58 Vt. 12. 1 "The question of damages is to be determined with reference to special benefits to property not taken. Village of Hyde Park v. Dunham, 85 Ill. 569. Any mere general and public benefit, or increase of value received by the land, in common with other lands in the neighborhood, is not to be taken into consideration in estimating compensation. Page v. Chicago, M. & St. P. Ry. Co., 70 Ill. 324." Per Magruder, J., in Hyde Park v. Washington Ice Co., 117 Ill. 233. Supra, secs. 617, 618, and notes. In estimating the damage done to private property by a public improvement, evidence to show that the improvement, when completed, was nuisance and a continuing damage to the property is not admissible; the owner has a separate right of action therefor. Badger v. Boston, 130 Mass. 170 (constructing a public urinal). See, also, Eames v. New Engl. Worsted Co., 11 Met. 570; Staple v. Spring, 10 Mass. 72. a Measure of damages for land taken for public park by right of eminent domain: Evidence is not admissible to show prices at which lands adjoining the proposed park were sold after the boundaries of the park had been determined. Kerr v. South Park Comm'rs, 117 U. S. 379 (1885), approving rule of damages in Cook v. South Park Comm'rs, 61 III. 115 (1871), by which the value of the land is to be estimated as of the date of the condemnation. CHAPTER XVII. DEDICATION. § 626 (489). This chapter will treat of the doctrine of the dedication of land to public uses, so far as relates to municipalities, under the following arrangement: 1. Importance of the Doctrine of Dedication - sec. 627. 2. Statutory and Common-Law Dedications - secs. 628, 629. 3. Common-Law Dedication-Rationale and Requisites secs. 630-632. - 4. Extent of Dedication as respects the Donor secs. 633, 634. 5. Who may dedicate Intent How established 636. secs. 635, 6. Effect of Long User and Acquiescence- secs. 637-639. 7. Effect of Platting and Sale of Lots secs. 640, 641. 8. Acceptance by the Public-When and for What Purpose Necessary sec. 642. 9. Dedication of Public Squares and Their Uses-secs. 643647. 10. Dedications for Other Purposes 11. Alienation and Change of Use secs. 648, 649. secs. 650-652. Importance of the Doctrine of Dedication. That § 627 (490). Dedication founded in Public Convenience. property may be dedicated to public use is a well-established principle of our jurisprudence. At common law a definite and certain grantee is necessary to take lands by grant or conveyance, and hence a grant or conveyance to the general public could not take effect.1 The law meets this difficulty by the doctrine of dedication, which recognizes the rights of the public thus acquired by estopping the dedicator from disputing them. The principle is founded in public convenience, and has been sanctioned by long experience. Indeed, without such a principle, it would be difficult, if not impracticable, for society to enjoy those advantages which belong to a state of 1 Ante, sec. 560; infra, sec. 631. |