
    
      The Greenville & Columbia R. R. Com'py. vs. Wm. Partlow.
    
    In assessing the value of land taken by'the Greenville & Columbia R. R. Company, for the purposes of their road, the commissioners or jury, in estimating the ‘ benefit or advantage ’ to the owner, should take into consideration the speculative or sale-able increase in the value of the land attributable to the construction of the road.
    In estimating the ‘ toss or damage ’ to the owner, the expense of fencing along the line of the road, where it passes through fields, should be considered.
    So, also, in estimating the 1 loss or damage ’ the incidental depreciation of the value of the tract, by reason of the road’s passing through it, should be considered.
    If the owner has sold part of the tract at an enhanced price, but such enhanced price was not owing to the construction of the road, but to an accidental demand, then, the owner is not chargeable with it as an item of ‘benefit or advantage.’
    
      
      Before Frost, J. at Abbeville, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an appeal from the assessment of the commissioners appointed to appraise the damage sustained by the defendant by the construction of the Company’s road through his land.
    ‘• The commissioners had assessed against the Company the value of one hundred feet of land, on each side of the road, from its centre, amounting to forty acres. In estimating the damage done to the defendant’s tract, they assumed, on his statement, that before the location of the road, his land was worth $16 per acre, and since the location the value was reduced to $12 per acre. Two routes were, at first, surveyed through the defendant’s land; one of these was straight, and in the rear of the defendant’s settlement, the nearest point of which was about three hundred yards from his house. The other was located in a curved course, and passed between the house of the defendant and his stables, stable lots and spring. The first cost of this curved route, on the statement of the surveyor of the Company, they assumed would be $600 less than the cost of the straight route; and the cost of working and keeping in repair the curved route would be $125 less per annum. They also assumed, on the statement of the defendant, that he had agreed to give the right of way to the Company if they would construct the road on the straight route. They then measured the defendant’s damage by the saving in expense to the Company, in the construction of the road on the curved route, and gave the defendant $2,280 75, being the sum of $600 saved by the Company in the first cost, and $1,680 75, the principal sum which would yield an interest of $125 per annum.
    “ It appeared, in evidence, that the straight route was about 500 feet shorter than the curved, but would require more tressel work (or embankment instead of it) than the curved. The defendant’s tract was a long parallelogram, and the curved route made a serpentine course through the entire length of it. The spring was 250 yards from the defendant’s house, and the stables and horse lots were contiguous to it. The road was constructed about midway between the house and the spring. In front of the house, the road was constructed with a slight excavation, and beyond, for some distance, passed along an old field hill-side, and then was continued through the cultivated fields. The whole length of the road, through the defendant’s tract, (containing 580 acres,) was about 8,200 feet. For the greater part of this distance it passed through fields and cleared land.
    “ The two Assistant Engineers testified that, after the two routes had been surveyed, Major Bliss, the Chief Engineer, delivered to one of them, Mr. Griffin, a printed form of a release of the right of way through the land of the defendant, on the straight route, with directions if the defendant did not sign it, to proceed and construct the road on the curved route. Mr. Griffin made the survey for the location of the road, in the expectation that defendant would give to the Company the right of way. A written stipulation was annexed to the printed deed, that the Company would erect cattle guards at the entrance and exit of the road from the defendant’s land, and would construct crossings over the public road, (which passed in front of the defendant’s house,) and between it and the stable lots. The defendant was dissatisfied that cattle guards should not be put at all the crossings of his fences over the course of the road. This Mr. Griffin offered to supply in the written stipulation; but that was not done, because the defendant refused to release his claim for damages. The road was accordingly constructed on the curved route.
    “ The defendant’s tract was distant about a mile from Greenwood. The Greenwood depot was located about a mile from his line, at one end of the tract, and it was proposed to establish a cotton depot within one or two hundred yards from his line, on the other side of his tract.
    “ It was proved that village lots in Greenwood had greatly advanced in price since the location of the road. Captain Bird mentioned some sales of lots at a very advanced" price. Captain Bird also mentioned that he owned a tract of nine hundred and fifty acres, within four miles of Greenwood, and had, at one time, before the location of the road, offered it for sale for $6,000, including the lots in Greenwood, which he had sold, but could not effect a sale. Last spring he was offered $7,000 for seven hundred and twenty-five acres, and for the remainder of the tract $10 per acre ; he said he would take that price now ; he had formerly offered the tract for sale at $8 per acre, and could get no buyer; he has, since the location of the road, asked more. There was other evidence to shew that, before the road was located, lands in the neighborhood of Greenwood were not rated at more than seven or eight dollars an acre. Mr. Griffin bought a tract in 1844 for five dollars per acre, payable in one and two years, without interest, which he sold, since the location of the road, for six dollars per acre, cash. Arnold bought a tract, about two and a half miles from the Rail. Road, for five dollars and twenty-five cents per acre, and would not take twelve dollars per acre now. He said lands, in the neighborhood of Greenwood, had, appreciated three or four dollars per acre. Mr. Wardlaw was of opinion that lands near the Rail Road were appreciated two or three dollars per acre. Mr. Lipscomb stated the appreciation of land not to exceed two dollars and a half per acre. He bought land in 1845 for $6 per acre, and would hot take that now. Dr. Joseph Marshall bought a tract within one and a half miles of the road ; he would now ask two and a half dollars per acre more than he gave for it. Dr. Leland thought the defendant’s land was appreciated one hundred per cent. Evidence was also offered to shew that lands on the western side of the district, unaffected by the road, had advanced in price. Davis mentioned a purchase, five years ago, for $2,000, and a re-sale in December, 1850, for $6,600. Wells said lands on the Savannah side of the district had advanced twenty-five per cent. He had bought at ten dollars, five years ago, and was lately offered twelve dollars for the same tract. He had bought land at three dollars, and his offer of five dollars for similar land was lately refused. Leroy also stated that lands on the Savannah side had increased in value twenty-five per cent. He mentioned a purchase, ten years ago, for $10,000, and a sale this year of the same tract for $15,000.
    
      “ All the witnesses concurred in saying that a tract near the road was more enhanced in value than a tract on which the road was constructed. Under special circumstances, the road might increase the value of the tract on which it was built; as if village lots might be sold, or if a tract were well wooded. There was more than a usual quantity of timber on the defendant’s land. They generally said they would rather have a road on their own tract than not have a road at all in the district.
    “Respecting the disadvantage- of a Rail Road to a tract of land, generally, and particularly to the defendant’s tract, it was difficult to obtain from the witnesses any precise opinion or estimate. Capt. Bird said he would give two or three dollars more per acre for a tract near defendant’s, but not so much for defendant’s, on account of the disadvantage of the road. He would not say, that if he owned defendant’s tract we would give one thousand dollars to have the road away, but he would give five hundred dollars. Mr. Wardlaw said, that he would not give as much for the defendant’s tract by two or three dollars per acre as if the road was eight hundred yards off. He would not give one thousand dollars, but he would give five hundred dollars, to have the road off defendant’s land if he were the owner. Dr. Marshall said he would give more than one thousand dollars to have the road away. Lipscomb, that he would not, for $2,500, have the road, and be compelled to live on the tract. Shilitto said nothing could induce him to live on defendant’s tract with the road located as it is.
    “ Since the location of the road, the defendant sold a part of his tract to Dr. Lei and for $15 per acre. It was contiguous to other land of Leland’s, and this was one inducement to make the purchase. Lipscomb, who also owned adjoining land, bought a part; of this he sold a part to Mr. Wardlaw, who gave Lipscomb $20 per acre; he paid this price on account of the peculiar situation of his settlement, and would have given as much if there were no Rail Road. The defendant reserved the settlement and eighty acres of land. The dwelling house is large, and the settlement comfortable. In the sale to Leland and Lipscomb, the defendant disposed of his tract to a line on each side of the road, distant twenty-five feet from the centre of the road, except for a distance of three hundred feet, where the line was run thirty-three feet from the centre of the road.
    “ The jury were instructed that in making the assessment they should ascertain, first, the loss or damage the defendant had sustained by. the construction of the road through his land, and then the benefit or advantage derived from it, and find for the defendant the excess of loss or damage over the benefit.
    “ The defendant having sold the land as far as a line extending along the road at the distance of twenty-five feet from its centre, the jury were directed to appraise only ten acres, instead of forty, which had been allowed by the commissioners. They were further directed to appraise the expense of the fencing through the defendant’s cleared lands, on' each side of the road, which was necessary for their cultivation and for the protection and confinement of his stock. This, the senior counsel for the Company was understood to admit, was a fair subject of assessment in favor of the defendant. They were further directed to estimate the injury to the value of the defendant’s tract, in consequence of the construction of the road through his homestead. No exact calculation could be made of this injury. It would be variously estimated by different persons. The jury were referred to the estimation, in money, which the witnesses had made of this injury, to guide them in their assessment. On the "subject of the benefit to the tract by the road, their attention was directed to a conflict, in principle, between the Company and the defendant, respecting the allowance to be made in favor of the Company, on account of the enhanced price of land caused by the road. The Company contended that the saleable or speculative value of the land should be charged to the defend ant, while the defendant contended that this speculative or saleable value should not be charged against him, because it was of no benefit unless he sold his land. There was no certainty that the rise in the value of the land would continue; and if the defendant chose to retain his land and home, it was of no benefit to him if adjoining lands were held by the owners, or even sold, at two, three or four dollars more per acre, in anticipation of the construction of the road; and I told the jury, since there was no evidence that the defendant desired to sell his land when the road was located, but, on the contrary, it was affirmed that he desired to continue to live in the home he had established, that, in my judgment, the saleable or speculative rise of the adjoining lands should not be charged against the defendant. To be profited by this circumstance, he would be obliged to sell, and I did not think the Company could claim compensation for an advantage to be realised by the defendant only on such a condition.
    “It will appeal, by the evidence reported, that though the owners in the neighborhood of defendant hold their lands at a higher price than they formerly did, the only sale was that made by Griffin. The jury were advised that the circumstance that the owners of land adjoining the defendant’s tract desired to enlarge their tracts, and that the defendant had parcelled out his tract, so as to supply this demand, did not give (o the Company a claim to be allowed the benefit of his speculation.
    
      “ The omission to specify in the verdict the number of acres which were assessed, escaped attention at the time it was rendered. But there can be no dispute ; and the notes of the evidence will shew that the quantity was ten acres, included within the lines described in the report.
    “ The jury found for the defendant one thousand dollars.”
    The Company appealed, and moved for a new trial, on the following grounds:
    1. Because, it is respectfully submitted, his Honor erred in charging the jury that, in estimating the advantage the Rail Road had been to defendant, they should not consider the enhanced value of the land which had been caused by the Rail Road, but simply its estimated value at the location thereof.
    2. Because his Honor erred in charging the jury that, as some of the witnesses had said, that if they were the proprietors of defendant’s land, they would give $500 more for it not to have the Nail Road running over it, provided it were a short distance off, they would consider that, in their verdict, as an item of damages for defendant.
    3. Because his Honor erred in charging the jury that they should consider, as matter of damages, the expense necessary to erect a fence along the entire line of the road, on both sides, from its entrance upon to its departure from defendant’s land, as it was before the location of the road, although the proof was, that of the 580 acres he had sold all but 80 acres, and the road only passed over a short distance of the latter.
    4. Because his Honor erred in charging the jury that although the proof was the defendant had sold all but 80 acres of the 580 at $15 per acre, that enhanced price was merely a speculation of his, and should not be considered by the jury as an advantage which had been conferred upon the defendant by the Rail Road.
    o. Because, the evidence having been full and clear—
    That, before the location of the road, no land in that neighborhood had been valued at, or sold for, more than eight dollars per acre, and since the location thereof, none had been sold for less than fifteen dollars an acre, and that Partlow’s had been sold at fifteen dollars an acre, and that the enhanced value had been occasioned by the Rail Road ;
    That Partlow had been more benefited than injured by the Rail Road;
    That the spring is not injured;
    That the circular route is the best location for Partlow, and does him the least injury;
    That, before the location of the road, the land was not worth more than $4,640, and since the location, 500 acres thereof had. been sold by him for $7,500, besides his dwelling house and outbuildings and 80 acres, worth at least $1,200, leaving an excess against Partlow of $3,910 of benefit over and above the dam ages : — the verdict of the jury is contrary to the evidence and the law applicable thereto.
    
      ’ 6. Because the verdict is altogether too vague, uncertain and imperfect, in not finding the land for the Company, nor specifying how much land, nor the particulars of the damages.
    
      Gregg, Jones, for the motion,
    cited 11 Stat. 327; 8 Barr. 445 ; 8 Watts, 243 ; 5 Strob. 134.
    
      Marshall, Tillman, contra,
    cited Rice, 383; 1 Strob. 14; 3 Strob. 358 ; 1 Shepley R. 236 ; 11 Stat. 576, 320; 4 Rich. 107 ; 2 Har. N. J. R. 25 ; 35 Eng. C. L. R. 422,- 3 Hill, 266 ; 21 Pick. 215 ; 3 Railw. & Canal Ca. 138 ; 29 Eng. C. L. R. 176 ; 44 Id. 133 ; 13 Conn. R. 100 ; 4 Wharton R. 47.
   The opinion of the Court was delivered by

Frost, J.

On the trial of this case, the jury were instructed that they should not include in the assessment of the benefits and advantages incident to the location of the Rail Road through the defendant’s land, the speculative or saleable increase in value which might be attributed to the construction of the road. The first impression of the force of the arguments which induced this conclusion, has been removed by reflection; and 1 proceed to state the reasons why the Circuit decision should be reversed.

In the argument of the case, the effect of the terms of the charter has not been sufficiently weighed. That law must control the judgment of the Court, (11 Stat. 327). It directs that the commissioners or jury, “in making the valuation, shall take into consideration the loss or damage which may occur to the owner, in consequence of the land or right of way being taken; and also the benefit or advantage he may receive from the establishment or erection of the Rail Road or works, and shall state, particularly, the nature and amount of each; and the excess of loss or damage, over and above the benefit and advantage, shall form the measure of valuation of said land or right of way.”

What is a benefit or advantage to the owner of land, which he may receive by the construction of the road ? The only direct and immediate benefit of a Rail Road to an owner, through whose land it may pass, is the facility it affords in carrying the produce of the land to market, and the cheapness and expedition of travelling. The most important advantages are incidental. Of these, incomparably the greatest, in a pecuniary view, is the enhanced value imparted to real estate along the line of the road. It forms the chief inducement for subscriptions to the undertaking. It was prominently in the view of the Legislature, in granting the charter, as an expected benefit to the owner, whose land might be taken for the construction of the road, and could not have been overlooked. Yet it is not excepted from the benefits and advantages to be assessed. Any and every benefit and advantage, by the terms of the Act, is the subject of assessment. It is plain, by the assessment which is directed to be made, that it was intended to provide compensation to the owner of the land, and no more, tie was to make no gain or profit from the Company. Compensation is an equivalent for property taken, or for an injury. It must be ascertained by estimating the actual damage the party has sustained. That damage is the sum of the actual value of the property taken and of the injury done to the residue of the property, by the use of that part which is taken, less the benefit which accrues to the residue of the said property by the use of that which is taken. The benefit is, in part, an equivalent to the loss and damage. The loss and damage of the defendant is the value of the land the Company has taken and the injury which the location and use of the road, through his tract, may cause to the remainder. The amount which may be assessed for these particulars, the Company admits that it is bound to pay. But, as a set off, it claims credit for the benefit the defendant has received from the construction of the road. That benefit may consist in the enhanced value of the residue of his tract. When the Company has paid the defendant the excess of his loss or damage over and above the benefit and advantage he has derived from the road, he will have received a just compensation.

It is objected that the enhanced saleable value of the land should not be assessed as a benefit to the defendant, because it is precarious and uncertain. The argument admits that the enhanced value, if permanent, should be assessed. But whether the appreciation is permanent and substantial, or transient and illusory, is a subject about which the Court is not competent to determine. It must be submitted to a jury, who will give credit to the Company, according to the circumstances.

The argument is not tenable that an increased saleable value is no benefit to the owner of land unless he sells it. This is true, if it be assumed that the price will decline. The chance of this is estimated by the jury, in the amount which they may assess for that benefit. The sum assessed is, therefore, (so far as human foresight can anticipate the future,) the exponent of the substantial increase of the value of the land. This is a benefit to the owner, by enlarging his credit and his ability to pay his debts or provide for his family, in the same manner and to the same extent as if his fortune was increased by an acquisition of property.

But the argument most strenuously urged, is, that the public benefits, expected from the construction of the road, formed the consideration for the grant of the charter; and of these expected benefits, the most important was the enhanced value of the land along the line of the road : and as a public benefit is the aggregate of the benefit of individuals, the Company is precluded, by its contract, from claiming, against the defendant, any assessment for the increased value of his land. No such stipulation is found in the charter. On the contrary, it appears that the owner of the land taken by the Company, is to be assessed for any benefit, without exception, that he may receive from the construction of the road.

The only other argument which will be noticed is, that it is unjust and oppressive to the defendant to set off his damage and loss against the increased value of the land; because, thereby, his benefit is extinguished, while contiguous owners enjoy that benefit. The State has invested the Rail Road Company with its eminent power to take private property for a great public work. The Company is bound to make compensation. This is all the defendant can in reason demand. He cannot require a premium. If his neighbors are more benefited by the construction of the road than he may be, that is no loss to him.

It will be seen, by reference to the volumes of English Railway cases and the United States Digest, that, in England and many of the States, charters are granted frequently to Rail Road and Turnpike Companies, with provisions for compensation, on the same principle as that in the charter of the Greenville and Columbia Rail Road Company. In 8 Barr (Penn. Reports), will be found the case of the Pennsylvania Rail Road Co. vs. Reiley, in which the principle is recognised, (it was not made a point in the case,) as fulfilling the constitutional injunction, that just compensation shall be made for private property, taken for public purposes.

The expense of fencing along the road, when it passes through fields, is properly an item of damage. The necessity of it for the protection of the slock of the owner from injury by the trains, and for the security of the crop, results immediately from the construction of the road. It will be found assessed as “damages” in the cases of the Penn. R. R. Company vs. Reiley, (8 Barr, 445); The Queen vs. The South Holland Drainage Committee, 35 Eng. C. L. R. 422); and The Queen vs. The Eastern Counties Railway Company, (42 Eng. C. L. R. 713).

The jury were properly instructed, in estimating the damage to the tract by the construction of the road through the settlement and fields of the defendant, to have regard to the several varying estimates of the depreciation of the tract, by such location of the road. This is an incidental damage; but the benefit of the road, by increasing the saleable value of the land, is also incidental. The witnesses had appraised the increased value of the defendant’s land by the rise in price, per acre, of contiguous lands. That would be the measure of benefit to the defendant, if the road had not been constructed through his land. Al. the witnesses agreed that this was a damage, to the tract. In order to anive at a just conclusion of the benefit received by the defendant, it was necessary to set off, against the incidental appreciation of adjoining lands, the incidental depreciation of the defendant’s land by the construction of the road through it. How much this lessened the value of the defendant’s land, could not otherwise be expressed than by the effect it would have in diminishing the price, the witnesses would be willing to give for that tract.

The defendant had sold off three portions of his tract to as many adjoining owners. It was proved, that the situation or convenience of the adjoining tracts, made it very important for the owners to add to their tracts the pieces of land which they purchased from the defendant. One of them said, that the price paid for the portion he purchased was wholly unaffected by any consideration of the Rail Road. He would have given as much if the road had not been built. In reference to the sale of the portions of the defendant’s land, under these circumstances,' the jury were properly advised, that, if the prices obtained were caused by an accidental demand, unconnected with the construction of the Rail Road, the Company should not have credit in the assessment for an advantage not attributable to the road.

The motion is granted.

Evans, Wardlaw and Withers, JJ. concurred.

O’Neall and Whitner, JJ. being the President and a Director of the Company, neither heard nor gave any opinion.

Motion granted.  