
    John E. Eddings vs. E. M. Seabrook and H. F. Bailey.
    
      Land iahenfor Public Use — Compensation.
    A. was the owner-of a plantation on which was a private wharf and landing, from whjch he derived large profits. The Legislature authorized a public wharf, landing and road to be made on A.’s land, and directed an assessment to be made “ for the value of the premises taken for public ase, as well as for damages generally to the same —Held, that A. was entitled to no more than the value of the land taken for the wharf, landing and road — to compensation for such additional fencing as the making of the road rendered necessary to his plantation, and to compensation for such inconvenience to the plantation as the road occasioned ; and that he was not entitled to compensation for the loss of profits arising from his private wharf.
    An acre was taken for the wharf and landing, and its value was assessed by the jury at three thousand dollars, the evidence being that the land was worth about seventy dollars an acre : — Held, that the verdict was without evidence to sustain it.
    BEFORE WITHERS, J., AT CHARLESTON, MAY TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows :
    “This case appeared upon the docket, as represented aboye. It is the case of E. N. Fuller et al. vs. J. E. Eddings et al., 11 Eich. 239.
    “ The defendants became liable to respond to Eddings for about five acres of land, taken from bis premises for a public road and a public boat landing, according to an Act of Assembly of 1856, which required an assessment to be made by the following rule, to wit: ' for the value of the premises taken for public use, as well as for damages generally to tbe same, to be assessed in the same manner, and subject to the same right of appeal, as is provided in case of lands taken for the construction of railroads authorized by law.’ The Act empowered the defendants, and their associates, to build and construct a road and' wharf, and ' appropriate, for a landing-place, connected with such wharf, such quantity óf land, not exceeding one acre, as they may think fit.’ This acre, selected by the defendants, was within about half a mile of a private wharf and landing on the premises of Eddings, which was rented for a value, per annum, of perhaps eight hundred dollars, prior to the construction of the public road, wharf and landing, which latter would, of course, destroy that income to the plaintiff. The point of great contest was, whether the plaintiff should have compensation for such loss.
    
      “ The commissioners, appointed by the Court to make the 'assessment authorized and required by the Act, all agreed upon the following, to wit:
    Eor 5 acres of land, at $70 per acre, .... $350 00
    Eor 1552 yards fencing, at $350 per mile, . . 308 63
    Eor-to keep up fencing every ten years, . 440 80
    $1099 50
    which, (as I am informed,) has been paid. The commissioners differed, three to two, as to whether any compensation at all should be allowed for the loss to the plaintiff of the income from his private wharf and landing; the majority being in the affirmative, but disagreeing as to the amount and the basis of the reckoning. The case came before the Circuit Court, heretofore, upon such report of the commissioners, and went to the Court of Appeals, (vide 11 Bich. 239.) The judgment of that court'was, that the assessment, amounting to one thousand and ninety-nine dollars, as above stated, should be taken as the report of the commissioners, and filed accordingly, -reserving the right of appeal from it, and excluded the claim for compensation for loss of income from the private wharf and landing, as not being a proper element in the assessment,
    
      “The plaintiff, Eddings, appealed; and addressing as a petitioner, the justices of the State, set forth, at considerable length, the history of the disputes arising among the inhabitants on Edisto Island, touching the public road and landing, appeals to the Legislature and proceedings thereupon, and finally presented the following points in the following language, to wit:
    1. “The wharf and landing site taken from your petitioner, while his private property, enhanced the value of his plantation more than ten thousand dollars; and this is valued, as planting land, onlyo at seventy dollars per acre; whereby he is damaged in this single particular more than ten thousand dollars beyond any compensation allowed him.
    2. “The valuation disallows any compensation for the ‘right of landing,’ which the commissioners, under the joint resolution of December, 1855, estimated at five hundred dollars, with the consent and approbation of the promoters themselves. And it was always intended, between the executor of William Seabrook and the promoters, and was agreed apon, that the said right of landing should be considered and ■ valued under the provisions of the Act of Assembly of December, 1856. And proof of the annual income said right of landing has hitherto yielded, is evidence of its actual value.
    
      3. “ The valuation allows three hundred and fifty dollars only for five acres of land taken, and this valuation is one hundred and fifty dollars less than the estimate of the commissioners under the Resolution of 1855, and one hundred and eighty-six dollars, seventy-five cents less than the actual cost of the petitioner.
    é. “The valuation allows nothing for the general damage to the plantation by reason of converting a private into a public landing, and thereby, and by the establishment of a public road, making the petitioner’s plantation a thoroughfare.
    5. “ The valuation takes from your petitioner a valuable ' private right of way,’ and property, without any compensation, and gives to the public and the promoters nothing which he was not willing to give; and the only beneficiaries are the owners of the boats trading to the island, who are thereby discharged from the payment of the usual rent heretofore willingly paid; and the gain to them is the loss to your petitioner.”
    “The defendants insisted that the plaintiff was estopped, as to the 1st, 2d and 4th of the above positions, by the opinion and judgment of the Court of Appeals. I so ruled. And they traversed the 3d and 5th.
    “The plaintiff offered witnesses, and propounded to them questions in a great variety of forms, to prove the allegations in his first, second, and fourth grounds; but such evidence was overruled; although one or two answers were given touching the damage done to the plaintiff by the loss of his wharf rent, or the value of the landing taken, based, however, upon the rent which the plaintiff' would have received if the public road and landing had never been made and established. The jury were instructed to disregard what they had heard on this subject, in any form, whether from witnesses or on statement at bar, inasmuch as that sort of loss, according to the authority of the opinion of the Appeal Court, was not a proper element to enter into the assessment or valuation. I held this: that it was open to inquiry whether the land taken for a wharf landing has more than an average value from any causes exclusive of the loss to Eddings of the rent of his wharf, and of the value that might have been given to that landing by the public work or improvement.
    “ Witnesses were examined as to the value of the land taken as parcel of the plantation, who estimated it at seventy dollars an acre, one placing on it the value of eighty dollars, or between seventy and eighty dollars an acre.
    “ It was in evidence, that the road established- by the defendants, and the fence made necessary by it, had to be passed by tbe plaintiff’s carts used in hauling marsh mud as manure, which was required for the planting lands in that portion of his plantation. They considered this to be an inconvenience and damage, requiring either many crossing-places to be made and kept up, or additional labor and loss of time if one or a few were used. No money value was placed on this matter; the ditches on either side of the road were shallow, but needed something over them to make them passable by wheels.
    “As to the proposition, that the road and the public landing subjected the plantation of plaintiff to a thoroughfare, the jury were instructed,, that what the Legislature had authorized could not be considered as a nuisance or a ground of damages generally.
    “ The verdict rendered was this: ‘We find for the plaintiff, three thousand dollars, for the one acre at the landing; for the four acre roadway, at seventy dollars per acre; for the fencing, and keeping up fence, as per award of commissioners; for obstructing the manuring of land, five hundred dollars.’
    “I conceived the valuation in this verdict of ‘the one acre at the landing,’ at three thousand dollars, to be without warrant in the evidence, and in disregard of the law as laid down to the jury, derived from the opinion of the Court of Appeals.’ ”
    The defendants appealed on the grounds:
    1. That the verdict, on the face of it, is uncertain.
    2. That it is the duty of the jury to find a verdict according to the evidence, and the rightful province of the Judge to confine the evidence to the matter in issue; but here the jury, in violation of their duty, have found their verdict upon the evidence ruled out and excluded by the judge.
    
      3. That the finding of five hundred dollars as damages for the appellant, for having to cross a road and pass through his own fence with his carts, when employed in hauling mud from the marsh, is neither within the issue tendered by appellant, nor supported by evidence.
    4. That the verdict is in contempt of the Court, and in violation of the oath of the jury to find according to the evidence.
    
      Petigru & King, for appellants.
    Campbell, McOrady, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

Beyond all doubt, the Court, in this case, under the name of Fuller et al. vs. Eddings et al., 11 Rich. 239, very properly held that Mr. Eddings could not have mere speculative damages assessed, as part of his compensation for his land taken for the public improvement authorized by the Act of December, 1856. I concur, fully, in the ruling by my brother Withers in this case, when presented below.

The finding of “ three thousand dollars for the one acre at the landing,” is without the warrant of law. The Court of Appeals, on the former occasion, decided fully, that the injury supposed to be done to Mr. Eddings, by the establishment of the public landing, was not to be estimated by the consequence, that his private landing would lose custom and tolls; and yet the jury allow the sum of three thousand dollars for the acre at the landing, for no other reason than-this very supposed loss of custom and tolls. For, turn the matter in every conceivable way, and it must so result. The questions propounded and over ruled are all addressed to the same end. Take, for example, that which would, seem on its face to be least objectionable. “ 5th. What is the value of the right of landing- and wharf site acquired by the public from Mr. Eddings ?” and when its object is seen, no one can believe it ought to be answered. For the Legislature have directed that the value of the premises taken for public use, and damages generally should be estimated. What are the premises taken? Unquestionably the land taken for the road and landing. The right of landing follows the acquisition of the premises, as they are susceptible of that improvement. There was no landing there before the land was acquired: it was only a spot of ground capable of being so improved. So it may be remarked of the wharf site. There was no wharf in existence, and it is as absurd to talk about so estimating it, as it would be to value a piece of land upon which no house existed upon the same foot, as it might be, after a fine residence had been erected. What other damages beyond the value of the premises taken ought to be allowed ? Such as are the necessary and immediate consequences of such an improvement. The fencing necessary to be kept up, in consequence of the road-way through the plaintiff’s plantation, may be damages properly allowable. So, too, it may be that a reasonable sum may be allowed for the inconvenience of carting the marsh mud across the road. For it separates Mr. Edding’s field from this necessary supply of manure. But beyond these I do not perceive any other items which ought to be allowed, and when the case is thus understood, there can be little difficulty in fixing the damages. The allowance of five hundred dollars for carting the marsh mud, seems to us to be entirely too much, and to be unsupported by evidence. The witnesses merely spoke of it as an inconvenience. They fixed no money value. As the case has to go back to reassess the damages of Mr. Eddings, this matter must again be considered by the jury. Some reasonable allowance for such an inconvenience may be allowed.

The case must go down, with instructions to the jury to, find the value of the land taken for the improvement, and damages for fencing, and for carting the marsh manure across the road. When these matters are fixed by a reasonable and not a capricious assessment, neither Mr. Eddings nor the defendants will have cause to complain.

The motion for a new trial is granted.

Wardlaw, J., concurred.

Motion granted.  