given above of market value it will be noted that the financial condition or necessities of either party to the transaction is not an element 484 and a characteristic definition also excludes any value based upon purely sentimental or psychological reasons," or that which follows from the construction of the improvement itself.48 Remote, speculative or fictitious values are also excluded and evidence relative to the profits or income of the property for the purpose of promoting its market value is inadmissible. 487 § 792. Measure of damages when a part only is taken. The compensation to which one may be entitled in case a part only of the property is taken is not limited to the market value of the part taken but includes any depreciation of or damage to the remainder because of the fact that a part of property considered. as a whole is taken; this doctrine is thoroughly established by an overwhelming weight of authority.488 The damage to the prop 484 Moulton v. Newburyport Water Co., 137 Mass. 163; Heiser v. City of New York, 104 N. Y. 68; Lewis, Em. Dom. § 478. 485 Whitney v. City of Lynn, 122 Mass. 338. No recovery can be had for the disquietude, vexation and annoyance experienced by the owner because of the proceedings. 486 Kerr v. South Park Com'rs, 117 U. S. 379; Sanitary Dist. of Chicago v. Loughran, 160 Ill. 362, 43 N. E. 359; Gordon v. Highways Com'rs of Road Dist. No. 3, 169 Ill. 510, 48 N. E. 451; Benton v. Inhabitants of Brookline, 151 Mass. 250, 23 N. E. 846; Sullivan v. Lafayette County Sup'rs, 61 Miss. 271; In re Condemnation of Land for New State House, 19 R. I. 382, 33 Atl. 523. But see Staggord v. City of Providence, 10 R. I. 567. 467 Shoemaker v. United States, 147 U. S. 282; Monongahela Nav. Co. v. United States, 148 U. S. 312; Pause v. City of Atlanta, 98 Ga. 92; Burke v. Sanitary Dist. of Chicago, 152 Ill. 125; Prosser v. Wapello County, 18 Iowa, 327; Cobb v. City of Boston, 109 Mass. 438; Fairbanks v. Inhabitants of Fitchburg, 110 Mass. 224; Burt v. Wigglesworth, 117 Mass. 302; Gardner v. Inhabitants of Brookline, 127 Mass. 358; Chosen Freeholders of Hudson County v. Emmerich, 57 N. J. Eq. 535, 42 Atl. 107; Van Buren v. Fishkill & M. W. W. Co., 50 Hun, 448, 3 N. Y. Supp. 336; Eddings v. Seabrook, 12 Rich. Law. (S. C.) 504; Stadler v. City of Milwaukee, 34 Wis. 98. 488 Colbert County Com'rs V. Street, 116 Ala. 28, 22 So. 629. A proper compensation is the difference in value of a tract before and after the establishment of a highway including the value of the land appropriated. Colusa County v. Hudson, 85 Cal. 633, 24 Pac. 791; City of Durango v. Luttrell, 18 Colo. 123; Shawnee County Com'rs v. Beckwith, 10 Kan. 603. Damages may be recovered for interference erty or to the remainder includes not only the land itself, but also the improvements, if any,489 or special franchises, easements or appurtenant privileges and in some cases fixtures.490 The additional compensation which can thus be recovered not only includes payment for the damage sustained because a part is taken, but also any damage suffered by reason of the use of the part which is taken by the one appropriating it 491 or the construction with a hedge. Dickinson County Com'rs v. Hogan, 39 Kan. 606, 18 Pac. 611; Van Bentham v. Osage County Com'rs, 49 Kan. 30, 30 Pac. 111. The cost of maintaining new fences rendered necessary by the opening of a highway is a proper element of damages. Richmond & L. T. R. Co. v. Rogers, 62 Ky. (1 Duv.) 135; In re Penley, 89 Me. 313, 36 Atl. 397; Cushing v. City of Boston, 144 Mass. 317, 11 N. E. 93. The probability that a sidewalk must be built involving expense in the construction is a proper element of damages on the taking of land for a street. First Church in Boston v. City of Boston, 80 Mass. (14 Gray) 214; Patterson v. City of Boston, 37 Mass. (20 Pick.) 159; City of Grand Rapids v. Luce, 92 Mich. 92, 52 N. W. 635; City of Detroit v. Brennan, 93 Mich. 338, 53 N. W. 525; Moritz v. City of St. Paul, 52 Minn. 409; Sullivan V. Lafayette County Sup'rs, 58 Miss. 790, 61 Miss. 271; Second Congregational Church Soc. v. City of Omaha, 35 Neb. 103; City of Omaha v. Hansen, 36 Neb. 135; Dalrymple v. Witingham, 26 Vt. 345. See, also, Lewis, Em. Dom. (2d Ed.) § 464. 489 Newburyport Water Co. v. City of Newburyport, 85 Fed. 723; Id., 168 Mass. 541, 47 N. E. 533; Dalzell v. City of Davenport, 12 Iowa, 437; Briggs v. Labette County Com'rs, 39 Kan. 90; Ford v. Lincoln County Com'rs, 64 Me. 408; Hyde v. Middlesex County, 68 Mass. (2 Gray) 267. The damages caused by the removal of portions of a building are to be included in an assessment of damages. Tufts v. City of Charlestown, 70 Mass. (4 Gray) 537; Central Park Bridge Corp. v. City of Lowell, 81 Mass. (15 Gray) 106; Patterson v. City of Boston, 37 Mass. (20 Pick.) 159; City of Boston v. Robbins, 126 Mass. 384; Kuschke v. City of St. Paul, 45 Minn. 225, 47 N. W. 786; City of St. Louis v. Connecticut Mut. L. Ins. Co., 90 Mo. 135; In re Alexander Ave., 63 Hun, 630, 17 N. Y. Supp. 933; In re Reynolds, 48 State Rep. 627, 21 N. Y. Supp. 592; In re City of New York, 33 App. Div. 640, 54 N. Y. Supp. 1066; City of Portland v. Lee Sam, 7 Or. 397; Little Nestucca Road Co. v. Tillamook County, 31 Or. 1; City of Philadelphia v. Linnard, 97 Pa. 343; Pusey v. City of Alleghany, 98 Pa. 522; Mongomery County v. Schuylkill Bridge Co., 110 Pa. 54, 20 Atl. 407; Westchester & W. Plank Road Co. v. Chester County, 182 Pa. 40. 490 Edmands v. City of Boston, 108 Mass. 535; Williams v. Com., 168 Mass. 364; Shaw v. City of Philadelphia, 169 Pa. 506, 32 Atl. 593. See, also, Matter of Department of Public Rules, 53 Hun, 280, 6 N. Y. Supp. 750. 491 District of Columbia v. Robin of an improvement.492 The latter element, however, does not include damages accruing from a wrongful construction of the im son, 14 App. D. C. 512; Town of Longmont v. Parker, 14 Colo. 386, 23 Pac. 443; City of Atlanta v. Hunnicutt, 95 Ga. 138; City of East St. Louis v. Wiggins Ferry Co., 11 Ill. App. 254; City of Baltimore v. Rice, 73 Md. 307, 21 Atl. 181; Taylor v. City Council of Baltimore, 45 Md. 576; Damon v. Inhabitants of Reading, 68 Mass. (2 Gray) 274; First Parish in Woburn v. Middlesex County, 73 Mass. (7 Gray) 106; Old Colony & F. R. R. Co. v. Inhabitants of Plymouth, 80 Mass. (14 Gray) 155. Where a public highway is laid out across a railroad the company is entitled to damages for the land taken and for the expense of erecting and maintaining signs and cattle guards at the crossing, but not for any increased liability from accidents. In re Endicott, Petitioner, 41 Mass. (24 Pick.) 339; Bailey v. Inhabitants of Woburn, 126 Mass. 416; Stone v. Inhabitants of Heath, 135 Mass. 561. Evidence of the cost of fencing is admissible on the question of damages for taking land for a highway. Lincoln v. Com., 164 Mass. 368; Harper v. City of Detroit, 110 Mich. 427; City of Albany v. Gilbert, 144 Mo. 224, 46 S. W. 157; City of Plattsmouth v. Boeck, 32 Neb. 297, 49 N. W. 167. A city is liable to a property owner for the depreciation in the value of his property caused by the location and construction of a public sewer built near his lot. Petition of Mt. Washington Road Co., 35 N. H. 134. Compensation should be given to a landowner not only for the value of the land actually taken but for all damages arising from an inconvenient div ision of the tract and the necessity for additional fencing. New York & L. B. R. Co. v. Capner, 49 N. J. Law, 555, 9 Atl. 781; Griffin v. Martin, 7 Barb. (N. Y.) 297. Damages allowed are presumed to embrace all the uses of the land for a highway which the law permits. Van Brunt v. Town of Flatbush, 59 Hun, 192, 13 N. Y. Supp. 545. Sewers can be constructed under a public street without the payment of compensation to the abutting owner. In re Lexington Ave., 63 Hun, 630, 17 N. Y. Supp. 872; In re Pugh, 22 Misc. 43, 49 N. Y. Supp. 398. The cost of fencing a highway about to be laid out is an element of damage to the owner. Dodson v. City of Cincinnati, 34 Ohio St. 276; Gray v. City of Knoxville, 85 Tenn. 99; Pettigrew v. Village of Evansville, 25 Wis. 223; Pittelkow v. Herman, 94 Wis. 666, 69 N. W. 803. 492 City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Wilcox v. City of Meriden, 57 Conn. 120, 17 Atl. 366; Estes v. City of Macon, 103 Ga. 780, 30 S. E. 246; Tinker v. City of Rockford, 137 Ill. 123, 27 N. E. 74; Hoag v. Switzer, 61 Ill. 294. One is not entitled to recover damages for the construction of a highway adjoining his premises where no part thereof has been taken. Plympton v. Inhabitants of Woburn, 77 Mass. (11 Gray) 415; Brown v. City of Worcester, 79 Mass. (13 Gray) 31. The expense of removing buildings is a proper element of damages. Hartshorn v. Worcester County, 113 Mass. 111; Marsden v. City of Cambridge, 114 Mass. 490. In laying out highways, the owner of a part of a building provement or use of property appropriated.493 When property is taken for a highway which is already subject to a public easement by a dedication or prescription, the owner is ordinarily entitled to only nominal damages. 194 If subject to a private way, can recover for the loss of support and of shelter caused by a removal of the part he does not own. Howe v. Inhabitants of Weymouth, 148 Mass. 605, 20 N. E. 316. Joplin Consol. Min. Co. v. City of Joplin, 124 Mo. 129, 27 S. W. 406. The discharge of sewage into a stream running through a farm affords a proper claim for damages as well as the value of the strip of land taken for the actual construction of the sewer. Waldron v. Kansas City, 69 Mo. App. 50; Richardson V. Levee Com'rs, 68 Miss. 539, 9 So. 351; City of Plattsmouth v. Boeck, 32 Neb. 297, 49 N. W. 167; Churchill v. Beethe, 48 Neb. 87, 66 N. W. 992, 35 L. R. A. 442; Inhabitants of Readington v. Dilley, 24 N. J. Law (4 Zab.) 209; Van Riper v. Essex Public Road Board, 38 N. J. Law, 23. Putnam v. Douglas County, 6 Or. 328. The measure of damages to which the owner is entitled on the opening of a public highway includes the value of the land taken, the estimated cost of extra fences and the inconvenience caused to the remainder of the premises. City of Portland v. Kamm, 10 Or. 383; Pusey v. City of Allegheny, 98 Pa. 522; Patton v. City of Philadelphia, 175 Pa. 88, 34 Atl. 344. The damage caused by the construction of a street at a grade which leaves the remainder of the property in a depression is a damage for which compensation must be made. Darlington v. Allegheny City, 189 Pa. 202, 42 Atl. 112; Cooper v. City of Dallas, 83 Tex. 239, 18 S. W. 565; Leonard v. Village of Rutland, 66 Vt. 105, 28 Atl. 885; Bridgeman v. Village of Hardwick, 67 Vt. 653, 32 Atl. 502. But see Deaton v. Polk County, 9 Iowa, 594; Taft v. Com., 158 Mass. 526, 33 N. E. 1046; Rand v. City of Boston, 164 Mass. 354, 41 N. E. 484; In re Ridge St., 29 Pa. 391; Parke v. City of Seattle, 5 Wash. 1, 31 Pac. 310, 32 Pac. 82, 20 L. R. A. 68. A lot owner can not recover consequential damages arising from a change in the surface of the street through its improvement. Dodge v. Ashland County, 88 Wis. 577, 60 N. W. 830. 493 Tearney v. Smith, 86 Ill. 391; White v. City of Medford, 163 Mass. 164, 39 N. E. 997; Alloway v. City of Nashville, 88 Tenn. 510, 8 L. R. A. 123; Stewart v. Village of Rutland, 58 Vt. 12. But see Bastian v. City of Philadelphia, 180 Pa. 227, 36 Atl. 746. 494 Sherer v. City of Jasper, 93 Ala. 530, 9 So. 584; Stetson v. City of Bangor, 60 Me. 313; Bartlett v. City of Bangor, 67 Me. 460; Danforth v. City of Bangor, 85 Me. 423, 27 Atl. 268; Valentine v. City of Boston, 39 Mass. (22 Pick.) 75; Walker v. City of Manchester, 58 N. H. 438; Clark v. City of Elizabeth, 37 N. J. Law, 120; In re Thirty-Second St., 19 Wend. (N. Y.) 128; Baldwin v. City of Buffalo, 35 N. Y. 376; In re City of Brooklyn, 73 N. Y. 179; In re Adams, 141 N. Y. 297, 36 N. E. 318; Village of Olean v. Steyner, 135 N. Y. 341, 32 N. E. 9, 17 L. R. A. 640. See, also, ante. this fact should be considered in mitigation of damages.495 If an easement has not been acquired, the owner is entitled to full damages, although the land or part of it may be used by the public as a way. 496 (a) The measure of damages when property is injuriously af fected but no part taken. Constitutional provisions may give a right to a property owner to recover damages when no part of his property is taken but when it is damaged, injured or injuriously affected by the construction or maintenance of the work of improvement.497 The doctrine of benefits applies in these instances. (b) Special damages only considered. The damages resulting from the appropriation of property for a particular and public use, as well as benefits, may be either general or special in their nature. General damages are those which are suffered by the community at large; no one individual being able to show that he has been injured in any manner or to any extent different or in excess of the injury suffered by the public at large. Special damages, on the contrary, are those which an individual may have received not only in excess of the damages suffered by the public at large, but also by himself peculiarly and alone.498 The rule applies that the property owner is not entitled to recover for gen 490 Green v. Bethea, 30 Ga. 896; Town of Princeton v. Templeton, 71 Ill. 68; Ayres v. Richards, 41 Mich. 680; In re One Hundred & SeventyThird St., 78 Hun, 487, 29 N. Y. Supp. 205; City of Buffalo v. Pratt, 131 N. Y. 293, 30 N. E. 233, 15 L. R. A. 413; In re Opening of Wayne Ave., 124 Pa. 135, 16 Atl. 631; In re Opening of Brooklyn St., 118 Pa. 640, 12 Atl. 664. 497 City Council of Montgomery v. Maddox, 89 Ala. 181; Smith V. Floyd County, 85 Ga. 420, 11 S. E. S50; City Council of Augusta v. Schrameck, 96 Ga. 426, 23 S. E. 400; Osgood v. City of Chicago, 154 Ill. 194, 41 N. E. 40; Parker v. City of Atchison, 46 Kan. 14, 26 Pac. 435; Chase v. City of Portland, 86 Me. 367, 29 Atl. 1104; Washburn & Moen Mfg. Co. v. City of Worcester, 153 Mass. 494, 27 N. E. 664; Markowitz v. Kansas City, 125 Mo. 485, 28 S. W. 642; City of Omaha v. Kramer, 25 Neb. 489, 41 N. W. 295; City of Plattsmouth v. Boeck, 32 Neb. 297, 49 N. W. 167; Chambers V. South Chester Borough, 140 Pa. 510; Riddle v. Delaware County, 156 Pa. 643, 27 Atl. 569; Dawson v. City of Pittsburgh, 159 Pa. 317. 498 In re Beekman St., 4 Bradf. (N. Y.) 503. When a place of burial is taken for a public street, the expense of removing and re-interring the remains of those buried there is a damage for which compensation can be recovered. |