
    Sater v. Burlington and Mount Pleasant Plank Road Company.
    The terms “just compensation,” in the eighteenth section of the first article oí the constitution of Iowa, are not ambiguous. They mean that the person whose property is taken, shall receive a fan- equivalent, and be made whole.
    In ascertaining what that compensation shall be, we see no more practical rule, than first to ascertain the fair- marketable value of the premises over which the proposed improvement is to pass, irrespective of such improvement; and, also, a like value of the promises, in the condition in which they will be, after the land for the improvement has been taken, irrespective of the benefit which will result from the improvement, and the difference in value to constitute the measure of compensation.
    But, in ascertaining the depreciated value of the premises, after deducting- that part which has been taken for public use, regard must be had only to the immediate, and not remote, consequences of the appropriation. The value of the remaining premises, is not to be depreciated by heaping consequence upon consequence.
    In such cases, the plaintiff may interrogate a witness generally, as to the value of the land'before and after the appropriation; leaving to the opposite party, by cross-examination, to learn the ability of the witness to judge in the premises, and what he takes into consideration in making up his judgment.
    And in case it should appear that such cross-examination, that the witness-assumed a false basis of computation of value — that in appraising the land left, he took into consideration remote consequences of the appropriation — it would be the duty of the court, especially on objection made, to inform the jury, that the estimate based upon such considerations must not be regarded by them.
    where it does not clearly appear from the record, that the evidence complained of, was drawn out in answer to any special interrogatory of the appellee, but it appears, inferentially, that it was drawn out by the appellant on cross-examination, the judgment will not be reversed, although the evidence may • ’have been inadmissible.
    
      Appeal from the Lee District Gourt.
    
    This was a proceeding under a special statute, to recover compensation for the right of way over the land of the plaintiff, and conies up on the following bill of exceptions:
    “ Be it known that on the trial of this cause, evidence was given by the plaintiff tending to show, that the defendants had taken the right of way through plaintiff’s farm to build their plank road upon, in quantity between five and six acres; that it passed through the cultivated part of his farm, about one hundred and fifty-five rods, and sixty feet wide; that it divided an orchard of one or two years growth;— that about forty trees were standing on the ground taken;— that it threw open the field, and passed. diagonally through the farm, as shown by a diagram given in evidence to the jury as follows: [Here follows a copy of the diagram, not necessary to insert] ; that there were several witnesses examined by plaintiff as to the damages sustained by the plaintiff' ; that plaintiff interrogated said witnesses as to the damages, and they did state before the jury a general sum of damages, which in their opinion, covered the inconvenience of plaintiff, by having the field thrown open, having to cross the road, and pass through two fences to get from one part of the farm to another; the awkward shape it left the farm and buildings; the danger of depredation upon the orchard; the inconvenience of plowing and cultivating the land left. The witnesses varied as to the actual value of the land, independent of the manner said farm was divided, stating va„ riously the value to be from ten to thirty dollars per acre, and assessing the damages -variously from three to six hundred dollars. This evidence was all heard by the jury, but the court stated to the jury, as the witnesses severally testified, that they must not consider that part of the statement of the witnesses, which went to prove the incidental damages, as stated by the court in the final charge to the jury, which is as follows:
    “ This is a proceeding under a special statute, against the Burlington and Mount Pleasant Plank Road Company, to recover a damage, or a compensation, for five or six acres of land, taken and appropriated by said company, for the purposes of a plank road. In taking this land, the company is not deemed in law a trespasser or wrongdoer; but as appropriating the-land in virtue of, or by authority, both of constitutional law, and legislative enactment. The law regards the plaintiff as- assenting to its provisions, and willing to part with his land, for a just compensation, if taken for public uses, and the defendant as willing to pay him such compensation for the object proposed. This compensation must cover the entire and full value of the property taken, without any regard whatever to the benefits and advantages resulting to the plaintiff, by the construction of the road, on the one hand, and without any regard whatever, on the other hand, to the incidental injuries, the subsequent inconveniences and expenses in using and improving the land that is left, occasioned by the location and construction of said road. The establishment of this road through the plaintiff’s land, undoubtedly has, and would, subject him to much inconvenience and extra expense in refitting up his farm, and adapting it to the road; and if the defendants, in contemplation of law, were wrong;* doers, they would, and ought to be, responsible for injuries of this description, but they are not regarded in this light, and a different rule, I think, should be adopted; and that is, leaving them entirely out of your consideration in this proceeding, and considering them as settled, or set off by the benefits and advantages of the public improvement. It cannot be disguised, that these improvements do bestow advantages, and impart an additional value to the property through which they pass ; but tbe law of this state especially forbids, that tbe court or jury shall consider these advantages in awarding a just compensation for the property taken. In excluding from our consideration, these advantages, I think the law intends also to exclude from our consideration, the incidental inconveniences and injuries resulting to the property holder, and that in legal estimation, the benefits should stand off as a fair and just equivalent for the injuries.
    “ It is understood in a number of the states, that a different rule of practice obtains, where the jury and the court are to consider all the damages which the plaintiff, in cases of this kind, has sustained, including the value of the property taken, and, to deduct therefrom the advantages and benefits of the improvement; but in no case, it is believed, have the legislature, and the courts, gone so far as to make the companies constructing these improvements, pay not only the full value of the property taken, but also all the incidental inconvenience and damages which the party has sustained, without allowing anything for the benefits bestowed; this would be against natural justice.
    The true rule to be adopted, in the opinion of this court, and the one which is authorized by the language and terms of the constitution of the state, and the special statute law under which this proceeding is had, is to require the company to pay a fair equivalent for the property appropriated for the road. The language of the constitution is, a just compensation; that of the legislature, a fair equivalent for the property taken. It is true, afterwards, in the same law, the legislature, in defining the duty of the jury in ascertaining the value, use the words, ‘ assess the damages of. the plaintiff.’ The word damages, here, is. evidently to.be taken in a limited sense; not in the sense ordinarily applied to trespassers and tort feasors, but in the qualified sense expressed in the second section of the act — meaning a fair and full equivalent for the land taken. Then, what should be the criterion by which you should be governed in assessing this damage, ox this compensation, which you are to give the plaintiff? I have adopted the rules and principles laid down recently in tbe Supreme Court of tbe state of Tennessee, in tbe case of Woodfolk v. The Nashville and Catta-nooga Railroad Company, as commending itself to tbe practical good sense of every business mind. Tbe quality, tbe place where it lies, tbe form or manner in wbicb it is taken, with reference to intrinsic circumstances, sucb as tbe effect it would bave on tbe intrinsic value of tbat wbicb is left — tbe awkward shape it would leave tbe remainder in for cultivation — whether it embraced any of tbe permanent improvements, or buildings, or tbe orchard — these, and like circumstances, must énter into tbe estimate in fixing tbe value. Tbe market value of lands at tbe time, by the quarter or half section, would not be tbe true criterion. No business man would sell a few acres from bis farm, on tbe same terms that be would sell tbe whole farm; nor would be sell a strip through tbe farm, on tbe same terms tbat be would sell tbe same quantity on tbe outer line of bis farm; and in determining this matter, you are to make an application of your common sense; look at it in a business, practical point of view, without wbicb tbe controversy cannot be projoerly adjusted, and with wbicb you cannot go very wide of tbe truth, and tbe demands of justice. It is one of those questions wbicb it is peculiarly tbe province of ajuryto settle, and wbicb they can settle better than any court in tbe world, and which is very properly referred to your determination.
    “Tbat tbe defendant objected to sucb evidence being given to tbe jury, but tbe court admitted tbe inquiry to be made, saying tbat be would instruct tbe jury to disregard it, and confine tb'eir inquiry to tbe subject as stated in tbe general charge, to all of which defendant excepts.
    “ Re it further known, tbat tbe court, in their final charge, at tbe instance and on tbe request of plaintiff, charged tbe jury as follows:
    “1. If they find for tbe plaintiff, they must assess for damages what would be a just compensation for tbe land taken, with interest, and not take into consideration any benefits tbat might result by reason of any improvement wbicb might be placed upon said land.
    
      “ 2. That tbe mere naked value of tbe land for farming purposes, is not necessarily tbe true measure of sucb compensation.
    “ 8. But in arriving at wbat would be a ‘just compensation,’ tbe jury are to take into consideration; 1. Tbe ■quantity of tbe land taken; 2. Tbe place where, and tbe place from whence, it is taken, having reference to all tbe external circumstances. These circumstances may be, amongst others, tbe manner in which tbe piece taken divides tbe farm — tbe road going between tbe bouses and buildings, and tbe cropping part of tbe farm — its going through tbe orchard, destroying a part thereof, and dividing ■it in an awkward and undesirable manner, and leaving a portion on tbe opposite side from tbe said buildings — its leaving tbe remaining land in an awkward and inconvenient form — its rendering an improved farm in a measure unimproved, by reason of its throwing it open to common.
    “4. That if they find for plaintiff, they should find tbe amount of damages wbieb tbe evidence shows was occasioned to tbe plaintiff, by reason of tbe taking and appropriating of said land; and in no event are they to take into consideration, in making up sucb damages, tbe benefits wbieb said plank road might have conferred upon plaintiff or bis lands. This is true, but tbe word damages is to be taken in tbe sense given in my written charge.
    “ 5. That in considering tbe testimony, tbe jury are to look to tbe number of witnesses, for and against any mooted point, their intelligence, and tbe credibility of their testimony, and are to decide sucb points' according to tbe preponderance of testimony thus considered.
    “ 6. That if the jury are satisfied from the testimony, that said farm would be less valuable, by reason of tbe fact, that tbe owner would be under tbe necessity of building said fences, and of maintaining and ultimately removing tbe same, at a great expense, at sucb points as would result in little if any benefit to tbe farm, or in an inconvenience to tbe same, and being only useful as protection against said road, then, and in that case, tbe jury should take sucb faets into consideration in making np tbeir verdict. To tbe giving of wbicb defendant excepted.
    “Be it farther known, that after tbe jury bad returned tbeir verdict, defendant moved tbe court for a new trial, as follows: And now comes tbe defendant, and moves tbe court for a new trial, on tbe following grounds:
    “ 1. Tbe verdict of tbe jury is against law and evidence, and tbe instructions of tbe court.
    “2. That during tbe trial, evidence was given to the jury of tbe value of tbe incidental damages aceruing to tbe plaintiff; and tbe jury, in considering tbe case, took into consideration that part of tbe evidence of tbe witnesses.
    “ 3, Tbe jury did consider and allow, as a part of the value of tbe land, incidental damages to tbe land not taken.
    “ 4. That tbe jury, in estimating tbe value of tbe land, considered tbe evidence of witnesses, as to-tbe value, based upon incidental- damages, and wbicb were shown to be such by tbe cross-examination of said witnesses.
    
      “ 5. That a large part of tbe value of tbe land, as found' by tbe jury, was made up of inconvenience and incidental damages; and was not tbe value of tbe land taken.
    “ 6. That tbe court erred,. in giving-the 2d, 4th and 6th. instructions, as prayed for by plaintiff, and given by the court, tbe effect of wbicb instructions was, to allow tbe jury to consider external circumstances, in fixing tbe value of the-land; and in this, the court erred in tbe law of tbe case.
    “ "Wbicb motion was overruled by tbe court, to wbicb the defendant excepted at tbe time.
    “ R. P. Lowe, Judge, &c.”
    Tbe motion for a new trial being overruled, judgment was entered on tbe verdict. To reverse this judgment, tbe defendants- appeal, and assign for error, tbe various matters excepted to, as set forth in tbe bill of exceptions.
    
      J. 0. Hall, for tbe appellants.
    
      F. Sémple, for tbe appellee..
   Isbell, J.

Tbe question now, for tbe first time, arises in tbis court, namely, wbat is tbe true criterion of compensation, in cases like tbe present? Eor, we assume, that wben tbe statute uses tbe word damage, it bas reference to tbe just compensation required- by tbe constitution. It can but be anticipated, that, in tbe progress of improvément in our state, like cases will frequently come before tbe judicial tribunals; and at tbis early period, it is desirable that some-plain, just rule, if possible, should be established, to guide in their determination. But it is quite obvious, that from tbe variety of circumstances attending such cases, that it will be impossible to lay down any very specific rule, which will not be subject to so many exceptions, as to serve to perplex, rather than to be a practical aid. We can, in fact, do little more than to enunciate a principle, upon which such assessment should be made.

Tbe terms used in tbe constitution, “just compensation,”' are not ambiguous. They, undoubtedly, mean a fair equivalent; that tbe person whose property is taken, shall be-made whole. But while tbe end to be attained is plain, tbe mode of arriving at it, is not without its difficulty. On due consideration, we see no more practical rule, than to first ascertain tbe fair marketable value of tbe premises over which the proposed improvement is to pass, -irrespective of such improvement, and also a like value of tbe same, in tbe condition in which they will be immediately after tbe land for tbe improvement bas been taken, irrespective of tbe benefit which will result from tbe improvement, and tbe difference-in value, to constitute tbe measure of compensation. But in ascertaining tbe depreciated value of tbe premises, after that part which bas been taken for public use, bas been appropriated, regard must be bad only to tbe immediate, and not remote, consequence of tbe appropriation; that is to say, the value of tbe remaining premises, is not to be depreciated by heaping consequence on consequence. While we-see no more practical mode of ascertainment than tbis, yet it must still be borne in mind, that this is but a mode of ascertainment; that after all, tbe true criterion is,, tbe one, provided bj the constitution, namely, just compensation for the property taken.

"We come now to the inquiry in the case before us: Did the court err in the particulars contended for by appellant ? .The bill of exceptions shows, that the plaintiff interrogated the witnesses as to his damages - and that they stated a general sum, which, it appears, included various items of incidental damage. How it was made to appear, that this general sum included the various items of incidental damage; whether by the examination in chief, on the part of the plaintiff; or whether it became apparent by the cross-examination of the defendant; and, again, whether the objection to the testimony, was on account of the generality of the question propounded to the witnesses, or because of the incidental circumstances of which they testified, is not made very clear by the bill. That the plaintiff may inquire generally as to the value of the land, before and after the appropriation, leaving the opposite party, by his right of cross-examination, to learn the ability of the witness to judge in the premises, and what he takes into consideration, in making up his judgment, we have no doubt. Neither have we any doubt, in ease it should appear by such cross-examination, that the witness assumed a false basis of computation of value — that in appraising the land left, he took into consideration remote consequences of the appropriation— that it would be the duty of the court, especially on objection made, to inform the jury, that the estimate based upon such considerations, was not to be considered; and in all of this, there would be no error.

Does this record disclose that anything more than substantially this, was the fact in relation to the admission of testimony in this case? We conclude that it does not. Eirst, for the reason, that it nowhere ajapears that the particular matter complained of, was drawn out in answer to any special interrogatory of the plaintiff, but the language of the bill is, “ Plaintiff interrogated said witnesses as to the damages, and they did state before the jury a general sum of damages which, in their opinion, covered the inconvenience,” &c.; but by whose interrogation it was made to appear, that this sum covered these inconveniences, is not stated. But, secondly, it does appear, at least inferentially, that the evidence was .drawn out by the defendant on cross-examination, from the fourth ground set forth by him in his motion for a new trial. If it satisfactorily appeared, that plaintiff was permitted to specially inquire as to some of these items of inconvenience, after objection taken; as for instance, as to the damage he would sustain on account of dangers of depredations on his- orchard, we should have no hesitancy in pronouncing it erroneous. Whether the court could cure such error, by instructing the jury to disregard such evidence, is not necessary now to decide.

With regard to the other ground assumed on error, after a careful examination of all the instructions, we conclude that taking them together, as they went to the jury, the principle of the above rules was not materially departed from by the court. It is true, that taking the second clause of the third instruction by itself, it would tend to an erroneous measure of compensation. But this is so distinctly .-qualified by the whole tenor of the instructions, that it would be presuming too much on the ignorance of the jury, to conclude that they could have been misled by it. In view of all the instructions, we conclude that if there existed any just ground of complaint, as to the measure of compensation, or the relation to that for which compensation should be given, it lay with the plaintiff rather than defendant.

Judgment affirmed.  