
    Rome, Watertown and Ogdensburg Railroad Company, Respondent, v. Orson C. Gleason and Others, Appellants.
    
      Eminent domain — replacement by a railroad company of a trestle by an embankment, before condemnation proceedings—consequential damages to the land not taken should be considered in making the award.
    
    Where a railroad company replaces a trestle, on which its tracks had been originally placed and were for some years maintained, with a solid embankment, and thereafter institutes proceedings to ascertain the compensation to be paid for the strip of land, constituting part of a farm upon which the tracks are, the commissioners appointed in the condemnation proceeding should, in making the award, take into consideration, not only the value of the land taken, but also the damages for consequential injuries resulting, to such portions of the farm as were not actually taken, from the manner in which the railroad was constructed at the time that the proceedings were instituted.
    Appeal by the defendants, Orson' C. Gleason and others, from an order of the Supreme Court, made at the OñQndaga Special Term and entered in the office of the clerk of the county of Onondaga on the 28th day of January, 1898, confirming the report and award of commissioners appointed to ascertain the .compensation to be made to the owners of the property described in the petition herein. \
    In the year 1870 the Syracuse Northern Railroad Company, built its road across a farm in.the town of Clay, Onondaga county, N. Y., owned by the American Peat Company, which farm contained 753 acres of laUd. The road was originally constructed, upon a wooden trestle which ran diagonally across the farm for a distance of -j®^ of a mile, and the strip of land thus occupied contained 6 acres. As thus severed there was left ¡of the farm upon the easterly or upper side of the railroad 387^ acres of land, and upon the westerly or lower side 355 acres, the farm buildings being upon that portion lying west of the trestle.
    In August, 1875, the property of the Syracuse Northern Railroad Company was sold to the Syracuse and Northern Railroad Company, and in October of the same year the latter corporation was consolidated with the plaintiff under the corporate name of the “ Rome, Watertown and Ogdensburg Railroad Company,” and this proceeding was initiated by the last-named corporation to condemn the land now occupied hy it, the petition herein expressly conceding that such condemnation could be accomplished only upon condition that the petitioner pay to the.defendants, who are the present owners of the land, 'such compensation as they are entitled to receive.
    When the plaintiff took possession of the land in question it proceeded to improve and complete its roadbed thereon by filling the trestle with earth, and in course of time, and prior to the commencement of this proceeding, it had constructed in place of the trestle an earthen embankment from five to eight feet in height,' which extended entirely across the farm. The effect of this permanent structure was to retain upon the premises the surface water which formerly had found its way either into a stream, known as “ Mud 'Creek,” or had flowed off in the direction of Seneca river.
    No answer was served by the defendants in this proceeding, but upon the trial before the commissioners appointed to appraise the value of the land taken much evidence .was given by both the petitioner and the defendants relative to the value of the land actually taken and bearing upon the question of consequential damages to the remaining portions of the farm. The commissioners determined that the land taken was worth $25 per acre, or $157.50 in the aggregate, and awarded the defendants that sum, but they declined to award any damage for injuries resulting to such portions of the land as were not actually taken. .The award thus made was subsequently confirmed at Special Term, and from the order of confirmation this appeal is brought.
    
      D. Raymond Cobb, for the appellants.
    
      Frank msooch for the respondent.
   Adams, J".:

Upon the hearing before the commissioners some evidence was given on behalf of the petitioner which tended to show that the Syracuse Northern Railroad Company entered upon this tract of land and constructed its road thereon in pursuance of a parol gift or license from the owner, and it is argued that by reason thereof the petitioner is entitled to a specific performance of the gift by the donor, or his successors in title, under the rule of law laid down in the case of Lobdell v. Lobdell (36 N. Y. 327) and other cognate eases.

We do not, however, regard this position as tenable, inasmuch, as the petitioner’s principal witness upon this subject testified that, the permission to cross the land in. question was upon the understanding, as he supposed, that remuneration should be paid the-owner of the land taken for that purpose. It is not pretended. that any compensation ever was paid, and consequently the commissioners, in awarding the same, allowed what they determined to be-the full value of tire land taken. Such value was determined after a personal inspection by the commissioners, and the information thus-obtained was largely supplemented by the evidence of various witnesses who were called to testify upon the subject. Under such circumstances the courts are loth to disturb the appraisal of commissioners, even though it may be made to appear that the amount-awarded is, to some extent, inadequate, which is by no means the-case in this instance. There remains, consequently, but a single-question for our consideration upon this review, and that is whether or not the commissioners have adopted correct principles in making; their award.

The commissioners accompanied their report in this proceeding-with a brief memorandum, stating the reasons governing them in-reaching -the conclusion they did, in which memorandum they say:: “We are of the opinion that the proposed use of the land taken by the railroad company, as the trestle and structure was originally constructed, did. not damage the portion of the land not taken. The-damage, if any, to the remainder has. been occasioned by independent: acts of the company in filling in under the tracks so as to create am embankment-. For such injury and damage we' think the defendants have an independent cause of action, and that this commission, cannot- consider such acts in determining the amount of damages in this proceeding.”

It may be assumed, for the purposes of this appeal, that the construction by the Northern Railroad Company of its track upon the-trestle, resulted in no appreciable injury to that portion of the land not actually taken, for the trestle: did' not deprive the owner of the-right of access to his land upon either side thereof, nor did it have-the effect to prevent the flow of -surface water, and probably it did. not injure the land for agricultural purposes; but when the open trestle was replaced by a. solid, embankment running across the-entire farm, a very different condition of affairs existed; and the evidence contained in the record before us will permit the finding that consequential damages, to a considerable, amount, thereby resulted to the premises upon either side of the embankment, for which damage the language above quoted would seem to imply that the commissioners would have awarded compensation to the defendants had they supposed they had the power so to do.

’ We understand it to he now well settled in this State that the principle upon which compensation is to be made to the owner of lands taken for railroad purposes by proceedings under the General Gondemnation Law, is that such owner shall receive not only the value of the land actually taken, but likewise a fair and adequate compensation for all injury to the residue of his lands resulting from the construction and operation of the railroad. (Newman v. M. E. R. Co., 118 N. Y. 623; Bohm v. M. E. R. Co., 129 id. 585; Matter of Grade Crossing Comrs., 6 App. Div. 327; Matter of Grade Crossing Comrs., 17 id. 54.)

The reason for this rule is obvious, for .it is just as much a taking of property within the spirit of the Constitution to deprive the owner of land of its free use, or to diminish its value by the construction of an embankment, as it is to enter into physical possession and occupation thereof; and, consequently, upon no other principle can the provision of the Constitution forbidding the taking of private property for public purposes without just compensation be satisfied.

In the case first above cited, it was said that The meaning of the expression ‘ just compensation ’ has not been limited to the value of property actually taken, but has been held to include all consequential injuries which the landowner may sustain by reason of depreciation of value in the residue of the property, by reason of the taking of a part and the construction thereon of the public improvement. The rule affords full indemnity to the property owner, and leaves him in as good condition as he was before the construction of the road.” (Newman v. M. E. R. Co., supra, 627.)

Had this proceeding been instituted before the railroad company had actually entered upon the land in question, and had it been made to appear, either by the petition itself or by the- evidence taken before the commissioners, that the plan of the petitioner contemplated the construction of a solid earthen embankment across-the land of the defendants upon which' to lay its tracks, the commisr sioners would undoubtedly have ¡been required to take into account the probable consequences to the lands not taken by the erection of such a structure, and to have awarded the owners such reasonable damages as in their judgment would result therefrom.

And if this be so, we fail to see why, having erected such a-structure before resorting to this proceeding, the same rule of damages should not be applied.

As has already been stated, when this proceeding was instituted the trestle as originally constructed had been replaced by the-embankment, and the petitioner being in possession and occupation thereof, is availing itself of the provisions of the Condemnation Law (Code Civ. Proc. chap. 23, tit. 1) to retain the premises of which it has taken possession, not .for the purpose of erecting an open trestle thereon, but as stated in its petition: “ For part of the roadbed and railroad track of that branch of its road which runs from Syracuse to Ogdensburg as aforesaid, and by which it has for many years-been occupied.”

Of course the petitioner did not and could not expect to retain the possession thus acquired without making just and adequate compensation to the owners of the land for whatever damages they sustained by reason thereof, and the only question raised is the extent and nature of those damages. Nobody questions the right of the owners to the value of the land actually taken, and that, as-we have seen, has been awarded! to them; but within the rule to-which we have adverted, should not the compensation awarded.. embrace damages which are consequential as well as those which are direct in their character? We are unable to see upon what theory this question can be answered in the negative, if the owner of land taken for a public use is, to receive that full, just and adequate compensation which is contemplated by the fundamental law ;of the land.

The rule which we think applicable to the present case has not only been clearly stated by the Court of Appeals and by this court in the cases above cited, but it is one which is universally recognized by text writers as an elementary principle of the law of eminent domain. - By one such writer- that rule is thus declared : “ What is to be considered a just compensation ’ should never be less than the loss the owner of the property has really sustained, but in the assessment should be included his damages, present and prospective.” (1 Harris Dam. by Corp. 39, 40.)

By another it is said that in order to arrive at the true rule of value, “* * * the jury may consider the damages by reason of the lot -or building being severed or disfigured on account of the taking of the strip and the use of it, and the effect of the proposed use of the strip upon the remainder of the lot; the fact that the improvement will separate a well, garden or highway from the house, or change the grades of crossings to reach the parts separated, . or make the crossings more inconvenient; or cut up the land inconveniently so as to interfere with watering stock, or to interrupt the flow of surface-water in the accustomed channels.” (Mills Em. Dom. § 166.)

By still another it is said that “ When the plan is given, the effect can be more accurately determined, and where compensation subsequent is granted or condemnation takes place after entry, the ti'ibunal of assessment has frequently before it a completed work with all its effects in evidence.” (Rand. Em. Dom. § 255.)

And in speaking of a case like this, where a railroad had been constructed through a farm, Lewis on Eminent Domain, at section 481, says : It may make a great difference whether it. (the railroad) is built at the natural grade or in a deep cut or on a high embankment or trestle. If the works have actually been constructed before the damages are assessed, it has been held proper to take imto consideration the actual condition of the works as affecting the damages!

The rule as thus stated by these several writers seems to us an eminently proper one, and no adequate reason suggests itself to our mind why the owner of lands who has suffered consequential damages- should be put to the annoyance and expense, of an independent action to recover those damages when they may be easily ascertained and adjusted in a proceeding of this character.

The views which we have thus expressed lead to the conclusion that the order appealed from should be reversed, and that the commissioners already appointed should be required to embrace in their report such consequential damages as the defendants have suffered, if any, by reason of the construction and "maintenance of the petitioner’s road across their farm in the manner in which it had been constructed and as it existed at the time this proceeding was instituted. i

All concurred, except McLennan, u ., not sitting.

Order reversed and matter remitted to the same commissioners to ascertain and report what, if any,: consequential damages the property owners are entitled to, with costs of this appeal to the appellants. ■  