
    The Charleston and Savannah Railroad Company vs. Daniel Blake.
    
      Practice — Evidence—Admissions—President—Railroads —Conditions and, Restrictions — Damages for Lands talcen.
    
    Where an appeal is taken from the assessment of commissioners appointed to value land or a right of way taken by a railroad company, it 'is within the discretion of the Judge, who may order the matter to be tried by a jury, to direct which party shall have the right to open and reply in evidence and argument; but in the absence of such direction, the owner of the land should be considered as the actor, and entitled to open and reply.
    The admissions of a party may always be given in evidence against him, and the president of a railroad company sufficiently represents his corporation to make his admissions evidence against the company.
    A letter written by a land owner in reply to a demand on him by a railroad company for a right of way, is competent evidence for the land owner, when the question as to the value of the land is submitted to a jury
    Under the charter of the Charleston and Savannah Railroad Company, the whole matter as to the terms and conditions on which lands, or the right of way, may be taken, is vested in the company, and the land owner has no right to reject such terms and conditions as the company may see fit to impose.
    "Where the conditions and restrictions on which the Charleston and Savannah Railroad Company proposed to take the right of way over B.’s land, were reduced to writing and signed by the attorneys of the company and of B.: Meld, That B. was not thereby precluded from recovering damages by the assessment of commissioners, or on appeal, by a jury, over and above the value of the land taken by the company, for the injury sustained by the plantation by reason of the erection of the road.
    BEFORE MUNRO, J., AT COLLETON, SPRING TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an appeal by the Railroad Company from an assessment made by a majority of Commissioners appointed to assess the amount of damages due to the land owner, for the right of way through his land, taken by the company. See Charter of road, Act of 1853, sect. 9, 12 Stat. p. 274.
    “The defendant is the proprietor of a large.body of lands, containing about ten thousand acres, situate in St. Bartholomew’s Parish. It consists partly of high land, and partly of inland swamp; tbe latter is used in the cultivation of rice, and has been so employed for many years.
    “The road passes through the centre of defendant’s plantation, and extends a distance of four miles, less six hundred yards. The quantity of land taken for the site of the road is eleven and a half acres of rice land, four and a half acres of permanent reserve, seventy-eight and a half acres of high land, making in the whole ninety-four and a half acres.
    “ It appeared that some time in the year 1858, the parties being unable to agree on the terms upon which the road was to pass through defendant’s land, Commissioners were appointed, in conformity with the provisions of the Charter, to assess compensation for the injury the defendant had sustained. The Commissioners so appointed went upon the land, but being unable to agree, as was stated by one of them who was examined as a witness, ‘ they broke up in a row.’
    "Subsequently five other Commissioners were appointed for a similar purpose, namely: Charles Hanckel and H. E. Young, on behalf of the company — Joel Lariscy and Burrell Sanders on behalf of the defendant, and the fifth Commissioner, Elias Yanderhorst, was appointed by one of the Law Judges.
    “ On the 9th of March, 1859, these Commissioners went upon the land, and on the following day, the 10th, made their assessment or award; that is to say, a majority of them, namely: Messrs. Yonderhorst, Sanders and Lariscy assessed the defendant’s damages, “subject to the conditions, restrictions and stipulations set forth in the paper annexed to their report, and marked A,” at forty thousand dollars.
    “The other'two Commissioners, Messrs. Hanckel and Young, estimated the damages at two thousand and fifty dollars. See the. Commissioner’s award, marked A, and the document accompanying it, marked B. 
    
    
      “ As tbe document last referred to occupies somewhat' of a-, conspicuous place in this proceeding, it is proper I should refer to it at once.
    “ It purports to contain ‘ conditions, restrictions and agreements, relating to the land of Daniel Blake, required by the said company for tbe site of tlreir road.’ It bears date the 9th of March, 1859, the day the Commissioners went upon, the land to assess the damages, was signed and agreed to by J. L. Petigru, Esq., on behalf of the road, and by C. Cf. Memminger, Esq., on bebalf of the defendant, and contains twelve distinct covenants or stipulations, embracing a variety of matters and things therein specifically enumerated.
    
      “ If, upon the opening of the case, the provisions of this instrument had been distinctly brought to my notice, the effect would have been to have spared the Court and myself a vast amount of unnecessary labor, for I feel no hesitation in saying that, with the views which I entertained of its provisions after I had acquired some knowledge of them, I would have excluded a very large proportion of the testimony that was introduced on both sides, either upon the ground of its incompetency or its irrelevancy.
    “The result of such a course would have been, to have narrowed the case down to a single point, namely, the proper construction of this agreement, and its effect upon the defendant’s right to compensation.
    “ I will now proceed briefly to state when it was that, for the first time, I acquired any thing like a distinct understanding of the terms of this agreement.
    “ In accordance with my ruling, the case was opened by the company; but it 'was not until the close of the examination in chief of the first witness, Mr. Young, that the Commissioners’ report and the document in question were introduced and read.
    "Not being furnished with a copy of it, the impression made upon my mind upon hearing it read, was soon effaced by the necessity of turning my attention to the cross-examination of the witness, which immediately followed the reading of the paper. The examination of the plaintiff’s witnesses occupied the balance of that day.
    “ On the following day, the defendeut went into his defence, which occupied the entire day. In the course of that day I obtained a copy of the stipulations, but it was not until the Court had adjourned in the evening that I had an opportunity of examining its provisions. But by this time nearly the whole of the testimony had been gone through.
    “Now, whatever difference of opinion may exist as to the proper construction of this instrument, whether it was the intention of the parties to it, that its several stipulations should extend to every matter or thing from which injury might result to the defendant from this structure, and whether or not it should have relation back to the period when the suit commenced, so as to exclude him from claiming any damages he may have sustained between that period and the date of tbe agreement, leaving to the Commissioners nothing else to do than merely to assess tbe value of the land taken for the site of the road; there is one thing, however, about which there can bardly exist the slightest diversity of opinion, and it is tbis: That for tbe violation or breach of-one or of all of these several stipulations, on the part of the company, from the time of its date, the defendant’s only remedy was by action on the instrument.
    “Now, whether we look to tbe defendant’s claim for damages,  or to the testimony of bis witnesses, it will be seen that, so far as concerns the items included in the stipulations, there was no attempt to confine the testimony to whatever damages may have accrued antecedent to their date. Nor was any attempt made to distinguish between those matters included within the stipulations and those that may be outside of them; but on the contrary, the defective or insufficient nature of many of the items actually embraced within the stipulations have been made the subject matter of damage— for example, namely, all the defendant’s witnesses testified to the insufficiency of the cattle guards, the culverts, the ramps, the ditches, the defective character of the trestle work, and its tendency to obstruct the drainage, the main force of the testimony being directed against this item, the extension of the embankment into the rice fields further than.it was at the date of the agreement, &c. That these are matters falling within the very letter of the agreement no one can doubt.
    “I now propose to submit a few remarks on the defendant’s claim for damages. If it had been defendant’s purpose to have limited his claim for damages to injuries done to matters outside of the agreement, or for injuries done to such things as are embraced within its provisions, but antecedent to its date, such matters should have been specially designated, and the evidence adduced to sustain them strictly confined to those points. But his claim is couched in terms as general and comprehensive as if no such agreement had ever existed. But in looking at the several items in this document, it is quite apparent that, with the exception of cutting the plantation in two, there is not another item that is not, either in the whole or in part, covered by the stipulations.
    “As regards the first'item, the claim for the value of the land taken for the site of the road, this is entirely unobjectionable. As regards the second item, ‘three hundred and thirty acres of high land, damaged for agricultural purposes,’ it will be seen by reference to the second specification that provision is there made for the drainage of this portion of land by means of a culvert, and ditches to lead the water into it. This portion of land is still uncleared, and no attempt has as yet been made to bring it under cultivation. When the Commissioners went upon the land to assess the damages, they found that, the embankment thrown up by the Company at this point had obstructed the natural flow of the water, so that there was a considerable part of it overflowed, but so soon as the culverts were constructed, and the ditches cut, although the Chief Engineer said that the drainage at this point was not yet completed, the water passed off. Some time during last March, Mr. Michel made a survey and plat of the premises, the object of which was to show that, in the then condition of things, the culvert and ditches were wholly inadequate to the purposes of complete drainage, and to the same effect was the testimony of all the witnesses examined to this point. But assuming the drainage at that point to be insufficient and inadequate; is this not already a breach of the agreement on the part of the Company, and which can only be redressed by an action on that instrument ? .
    “ The third and fourth items may be considered together. The claim is for damage done to these two portions of rice land, occasioned principally, if not entirely, by the trestle work. It will be seen that at the date of the agreement between the Company and the defendant, no trestle work had been put up. By the fourth and eighth stipulations, provision is made for the drainage of the rice lands — the fourth is in these words: ‘ The spring ditches on the sides of the rice fields at the embankments, and carried into the said rice fields, are to be restored and carried through the said embankments by the Company,, of sufficient width and capacity to satisfy the proprietor of the land; the trestle across the rice fields is to be a pile driven into the mud on each side of the track, at the proper distance, but without any mud sill, and the embankment to extend no further into the two rice fields,’ &c. The eighth stipulation is as follows: ‘ In the large rice fields next reached by the road to the west, the trestle work shall be made as already stipulated, and the Company may run their embankment through the entire field, leaving four hundred feet on trestle work for the drainage.’ On the part of the defendant a great many witnesses were introduced, and opinions expressed by them, going to show that the tendency of the trestle work in its present condition is materially to obstruct the drainage, while a contrary opinion was expressed by those introduced on behalf of the Company. Now, if the tendency of trestle work, in any way or form in which it can be put up, is to obstruct the drainage of land at all, why, it may be asked, did the defendant consent that the trestle work should be placed there ? But having consented that it should be placed there, if injury has already resulted to him, or shall hereafter accrue to him, whether from the mode or manner of its construction or otherwise, the remedy is clearly by action for a breach of the stipulations.
    “ The fifth item is for breaking up the pasturage, &c. For the protection of this portion of the premises, the Company is bound by the first stipulation in the agreement to erect cattle-guards at the fenbes which cross the track of the road; the fences are to be put up and kept in repair by the defendant. Nearly all the defendant’s witnesses testified as to the injury done to the pasturage by the Road, but those who testified' more particularly than the others, were Messrs. Sanders and Lariscy.
    “ At the date of the agreement, the Road was not yet in existence; that is, it was not in running condition. Consequently none of the causes assigned by the witnesses for the breaking up of the pasturage, • such as the frightening of cattle, occasioned by the noise of the cars, the damage to stock, the necessity of employing additional stock-minders, &c., CQuld possibly have existed. If this be so, then it is manifest that whatever injury may have accrued, must have accrued since 'that period, and it must necessarily have accrued from one of two causes; that is, either from defective or improper fencing, — and which, by the way, devolves upon the defendant by the terms of the stipulation, — or from imperfect or insufficient cattle guards. If, on the latter, then it is clear the remedy is on the agreement.
    “ The sixth and last item is for cutting the plantation in half, cutting off all canalling and future improvements, interrupting communication, &c.
    
      “ To enable the defendant to keep up communication with the different parts of his plantation, provision is made by the twelfth stipulation, and is as follows: ‘ The proprietor of the land is to retain his right to all roads and avenues across the railroad trackand, to facilitate the crossings at the railroad, ramps are to be constructed by the Company. At the date of this agreement, I think it was stated by several of the witnesses, that the defendant had five roads. If the defendant did not think five roads sufficient to enable him to keep up communications with the different portions of his plantation, why, it may be asked, did he not insist upon a greater number? and is not the inference almost if not absolutely irresistible, that he considered five roads sufficient for all purposes of communication? But whether he considered five roads sufficient or not, his neglect or omission to insist upon having more than five, was not a matter proper to be passed upon by a jury empanneled to try an issue on an appeal from an award by commissioners.
    
      “ My principal object in referring to these matters has been to show the vast amount of collateral and irrelevant matters that were introduced into this issue, and the equally vast amount of incompetent and irrelevant testimony that was introduced to sustain them. For example — look at the array of witnesses introduced on both sides, not with the view of proving damage to matters or things not included within the stipulations, nor with the view of showing the actual condition of the road at the date of the stipulations, and the injury that had accrued therefrom to things embraced within the agreement, but antecedent to its date. Eor it will be seen that many of these witnesses, for the first time in their lives visited the premises, some only a few months, others a few weeks, previous to the trial, and were brought forward to testify to the condition of the premises at the time of their respective visits.
    “ I will now proceed briefly, and I may well add hurriedly, to notice the several grounds of appeal, and in doing so, shall take them up in the inverse order in which they are taken. I shall consider the fifth and sixth grounds together. If I had instructed the jury that the defendant could claim no damages except upon an action for a breach of the stipulations, all that would have been necessary for me to have done, would have been to have directed them to find nothing more than the value of the land taken for the site of the road. Among the first things I did, however, was to endeavor to explain to them the distinction between actual and speculative damages, and to admonish them that the former was the only kind of damages they could take into their consideration. All this would have been quite superfluous if I had expressed the opinion attributed to me. I then proceeded to take up the defendant’s claim for damages, item by item, and the corresponding stipulations. In regard to the second item, the damage to the three hundred and thirty acres of high land, I told' them that if any injury had accrued to the defendant from a defective culvert or insufficient ditches, since the date of the agreement, or if defendant should see proper to clear the land and bring it into cultivation, and damage should result to him from its defective drainage, his only remedy was for a breach of the stipulations.
    “As regards the rice lands referred to in the third and fourth items, I told them that no merely speculative opinions as to the tendency of trestle work, or any other works, stipulated for by the Company, to, affect the drainage of the land could be taken into their consideration, but if any injury resulted therefrom, whether from imperfections in its structure or any other cause, the remedy was on the covenants.
    “As regards the fifth and sixth grounds, I expressed to them similar views to those I have already expressed in a preceding part of this report.
    “ After going over these several items in the way I have stated, I then told them that if in the testimony they could find proof of damage, actual, not speculative, to any thing outside of the agreement, or that had accrued anterior to its date, it was their province to award it.
    “As regards the fourth ground, I did say to the jury that the defendant was at perfect liberty to have rejected the whole of the stipulations, and, like any other land owner, under similar circumstances, to have rested his claim to compensation upon the general law; that I was not aware of any thing in the charter of the road that authorized the Company to force stipulations upon the land owner.
    “In answer to the third ground it is necessary to refer to the testimony of Mr. Hanckel, a witness examined in behalf of the Eoad. Mr. H. stated, in substance, that in December, 1855, being in the1 employ of the Eoad, he called upon defendant to make application for the land; defendant, he said, was very averse to the road’s passing through that part of his land, and said he would not take less than ten thousand dollars for it. In his cross-examination he stated that defendant said he would much prefer it should go on the. other side of the Savannah road; that if the Company would take that route he would give them the right of way, and also subscribe to the Eoad. As no other testimony had been offered by the Company, showing that any other demand had been made of defendant than that proved by Mr. Hanckel, I therefore thought the letter incompetent.
    “ The second ground has also reference to the portion of Mr. Hanckel’s testimony above referred to. Mr. Hanckel, as we have seen, said that upon his demanding defendant’s land, the latter replied he would not take less than ten thousand dollars for it. Now the object of Mr. O’Bryan’s testimony, as I understood it, was to show that in a subsequent conversation with the President of the Road, the latter had stated that the defendant had offered, if the Company would take another route, to give the right of way, and subscribe ten thousand dollars. If the conversation between O’Bryan and the President had been in reference to Hanckel’s conversation with the defendant, the competency of the evidence offered would hardly admit of a doubt, but I did not so understand it. I am free to confess, however, that on the question in hand I have no settled opinion, one way or the other-.
    “ As regards the first ground, my ruling was in conformity to what I supposed had been the practice on Circuit in similar cases.
    “The jury found for the defendant four thousand seven hundred and twenty-five dollars.”
    The respondent appealed, and now moved this Court for a new trial, upon the grounds:
    1. Because it was erroneously ruled that the owner claiming damages is not the actor, and has not the right to open in evidence and argument.
    2. Because his Honor erred in rejecting the testimony of Lewis O’Bryan, who was introduced to prove facts inconsistent with the evidence of one of the witnesses for the Road.
    3. Because his Honor ruled that it was incompetent for the respondent to-introduce, in evidence, the letter of Mr. Blake, written in reply to the demand made upon him for his land by the Railroad Company.
    
      4. Because his Honor erred in charging the jury that Daniel Blake, the proprietor, had the right to reject the conditions upon which the Bailroad Company demanded his land, and could insist that the road must take the fee simple without restriction.
    • 5. Because his Honor erred in charging the jury that the stipulations covered every subject-of damage claimed by Mr. Blake, and that he could claim no damage except upon an action for breach of the stipulations.
    6. Because it was proved by the Commissioners and by their award, that the damages assessed by them were upon the assumption thatthe stipulations of the Bailroad Company would be performed, and that .upon that assumption the plantation of .Mr. Blake was lessened in value by the sum of forty thousand dollars; but his Honor charged the jury that they could not assess the said damages or any part thereof.
    Memminger, Mitchell, Tracey, for appellant.
    
      I)e Treville, Pope, contra.
    
      
      
         The papers referred to are as follows:
      EXHIBIT A. — AWARD OF COMMISSIONERS.
      The Charleston and Savannah Railroad Company vs. Daniel Blake.
      We, the undersigned Commissioners, appointed by the Court of Common Pleas, to make a valuation of the land or right of way which may be required by the said Company of the said Daniel Blake, in the Parish of St. Bartholomew’s, for the site on or along which to locate and establish the railroad, which the said Company are authorized to construct by their charter, do hereby certify and return to the said Court that we, having been first severally and duly sworn, faithfully and impartially, to discharge the duty assigned to us, and having warned the said Company and Daniel Blake to be present if they would, did, on the ninth day of March, in the year one thousand eight hundred and fifty-nine, enter upon and proceed to examine and inspect the said lands of the said Daniel Blake, and thereupon the said Commissioners called rrpon the said Company to declare wliat part or what rights in the land of the said Daniel Blake they required. That thereupon the said Company required two hundred feet in width through the entire tract of the said Daniel Blake, subject to the conditions, restrictions and stipulations set forth in the paper annexed to this return and marked Exhibit A, and which paper is part and parcel of this return; that the said land measures and contains near one hundred acres, and hath such shape, lines and boundaries as are delineated in a plat thereof accompanying this return, and we then and there proceeded to make a valuation of the said land so required as aforesaid, and subject to the conditions and stipulation aforesaid; and also, the damages .sustained by the said Daniel Blake, taking into consideration the loss and damage which may accrue to the said Daniel in consequence of the. said land being taken as aforesaid, and also the benefit or advantage which the said Daniel may receive from the establishment or right of the said railroad, and that we then and there valued and do value the said land of the said Daniel Blake, so required by the Company, as aforesaid, and the loss or damage which will of may accrue to him in consequence of its being so taken as aforesaid for the purpose aforesaid, at the sum of forty thousand dollars, which is made up as follows, that is to say,
      Eor the damage done to five hundred and eighty-three acres of rice land, at first and second embankment, ten thousand dollars.
      For damage to five hundred acres of rice land, at the rice fields, where four hundred feet of trestle is to be put, seven thousand dollars.
      Injury done to the whole plantation by cutting it in half for its whole length, and injuring the passing along every avenue and crossing, preventing grazing, and all incidental injuries, twenty thousand dollars.
      Value of land taken for the site of Road, three thousand dollars.
      And the benefit or advantage he may or will receive from the establishment or erection of the said Road, we set down as worth nothing ; and the excess of the said loss or damage over the said benefit or advantage we return, therefore, at the sum of forty thousand dollars ; which said last mentioned sum forms the measure of and is the valuation of the said land so required as aforesaid, snbject to the conditions, restrictions and agreements above set forth.
      Given under our hands and seals, at Palmetto Hill, in St. Bartholomew’s Parish, this tenth day of March, in the year of our Lord one thousand eight hundred and fifty-nine. . (Signed.)
      E. VANDERHORST, [Seal.]
      JOEL LARISCY, [Seal.]
      BURRELL SANDERS, [Seal.]
      We dissent, estimating the damage at $2050.
      (Signed.)
      CHARLES HANCKEL, [Seal.]
      H. E. YOUNG, [Seal.]
      STATE OP SOUTH CAROLINA, ) Colleton District. )
      Before me, Henry W. Cannon, a magistrate, duly appointed and commissioned in the District and State aforesaid, personally appeared Elias Vanderhorst, Burrell Sanders, Joel Larisey, Charles P. Hanckel and Henry E. Young, the Commissioners named in the within return, and in the order of court authorizing the same, who being duly sworn, severally make oath and depose that they will faithfully and impartially discharge the duty assigned to them.
      (Signed,)
      E. VANDERHORST,
      CHAS. P. HANCKEL,
      HENRY E. YOUNG,
      BURRELL SANDERS,
      JOEL LARISCY.
      Sworn to before me, this 9th day of March, A. D. 1859.
      H. W. Cannon, Magistrate.
      
      EXHIBIT B.
      Charleston and Savannah Railroad Co. vs. Daniel Blake.
      Document'A., accompanying return of Commissioners.
      Conditions, restrictions and agreements relating to the land of Daniel Blake required by the said Company for the site of their Railroad, and-subject to which the said land is to be taken.
      1. Cattle guards are to be placed, by the Company, at the fences which cross the track of the Railroad, and the fences are to be made by Mr. Blake up to those guards on each side, and to be repaired by him. He is, also, to have the privilege of changing the location and increasing the number of these fences, and eattle_ guards are to be made by the Company and kept in order at each fence so crossing the track.
      2. A sufficient culvert is to be made, by the Company, through the embankment between the wire fence and the first rice field east, at same point where there is a natural drain, and the water is to be led, by ditches, into the culvert.
      3. Two crossings or ramps are to be made by the Company for the use of this piece of land.
      4. The spring ditches on the sides of the rice fields at the embankments carried into the said rice fields, are to be restored and carried'through the said embankments, by the Company, of sufficient depth and capacity to satisfy the proprietor of the land; the tressel across the rice fields is to be a pile driven into the mud on each side of the track at the proper distance, but without any mud sill, and the embankment to extend no further into the two rice fields, in which it is already made, than that n,ow standing.
      5. One ramp is to be provided for the corn fields, between the two rice fields above mentioned, but its slope to be increased to one foot in twelve or fifteen, and the width to be increased.
      6. The reserve or back-water is to have a water way left, by the Company, across their land, of one hundred feet in width.
      7. An adequate culvert to be constructed, by the Company, for the passage of water on the piece of land between the rice field and the reserve.
      8. In the large rice fields, next reached by the road, to the west, the tressel work shall be made as already stipulated; and the Company may run their embankment through the entire field, leaving four hundred feet on tressel work for the drainage.
      9. There shall be two sufficient culverts in the piece of upland next adjoining this rice field.
      10. There shall be a culvert on each of the leads of water on each side of the island next beyond in the track of the Railroad.
      11. The canal which has been obstructed by the embankment of the Railroad shall be re-opened, and a sufficient water-way made for it, by the Company, through their embankment and site.
      12. The proprietor of the land is to retain his right to all roads and avenues across the Railroad track.
      Agreed to 9th March, 1859.
      (Signed.)
      J. L. PETIGRU,
      C. G. MEMMINGER.
    
    
      
      
         The claim referred to is as follows :
      EXHIBIT C. — DEFENDANT’S CLAIM FOR DAMAGES.
      Blake vs. Charleston & Savannah Railroad Company.
      Claim fob Damages.
      1. For the value of 94J acres taken for site of road, at $30 per acre......$2,835
      2. For 330 acres of high land damaged for agricultural purposes :
      Original value.................................... $30
      Present say one third.......................... 10
      Damage............................................. 20 per acre.............. 6,600
      3. For 236 acres of rice land reduced from, value of planting land:
      Worth say per acre..............................$50
      To pasturage, worth say one fifth............ 10
      Damage per acre................................. 40 ....................... 9,440
      4. For 515 acres of rice land, damaged in same manner, say $40 per acre................................................................... 20,600
      5. For damage done in breaking up the pasturage and raising of stock cattle, hogs and sheep, say.............................. 20,000
      6. For damage done to the whole plantation, by cutting the same in half, and dividing, by a strip belonging to Railroad; cutting off all eanalling and future improvements, interrupting communications, &e., say.......................................................15,000
      $74,475
    
   The opinion of the Court was delivered by

Wardlaw, J.

The first question made by the appeal is one of mere procedure, and hardly of sufficient importance by itself to justify a grant of new trial. It is, whether the owner of the land claiming damages for the excess of injury over advantage where his. land or a right of way upon it is taken by a railroad company, or the appealing party, in case of appeal to a jury from the assessment of commissioners, is entitled to open and reply in evidence and argument. The practice on Circuit has been hitherto conformable to the ruling of the Judge, in favor of the appealing party, but no determination has been made by the Court of Appeals. It may be to some extent a question of circumstances dependent on tbe subordinate question, which party has really the gravamen of complaint, the affirmative of proposition and proof; and if the enactments of the Legislature in this matter were properly pursued, the course of trial might be left safely to the Judge authorizing a jury, according to the varying circumstances of the several cases. An appeal to a jury from the assessment of commissioners is not a matter of course and strict right, but is granted by the Court in judicial discretion, on adequate showing that injury has been sustained in the valuation by the complaining party; and when granted, an immediate and summary trial seems to be contemplated by the Legislature, but a trial altogether de novo, in which the jury may increase or diminish, according to the proof, the valuation of the commissioners. All this is sufficiently expressed and vindicated in the case of N. E. R. R. Co. vs. Sineath, 8 Rich. 185, We are of opinion, however, that in general, in the absence of contrary direction by the Judge ordering the issue, the owner claiming damages has the right to open and conclude. This is required by principle, as he is substantially the affirmant; it is supported by our practice in the analogous case of appeals from the Ordinary as to wills, Floyd vs. Floyd, 3 Strob. 44; and follows the course on the indentica-1 point, ruled in the case of Con. Riv. R. R. Co. vs. Clapp, 1 Cushing, 559 ; 1 Am. R. R. Ca. 450.

As to the second ground of appeal, imputing error to the Judge in rejecting the testimony of a witness as to the admissions of the president of the company, we think unhesitatingly that proof of admissions of a party in opposite interest is always competent, and that the president for this purpose sufficiently represents the company opposed to the claim of the land owner. The province of the Judge is to decide as to the competency mostly, sometimes the relevancy of testimpny, but he has little control oyer the motive of the party in offering testimony, inasmuch as it is for the jury to determine the effect of evidence.

The third ground of appeal depends on facts not brought specially to our attention. If it be true, as suggested in the ground, that the letter of Mr. Blake was in reply to a demand on him for his land, this letter is competent evidence for him as part of the res. gestee, although it may be entitled to very slight influence, as if it consist of sophistical arguments, suggestions of facts unproved, or claims for damages not flowing proximately from the acts of the company concerning his land. We know nothing of the letter and little of the circumstances under which it was written, and can pronounce only an indefinite opinion contingently.

The fourth ground imputes error to the Judge, in instructing the jury that the proprietor of the land had the right to reject the conditions upon which the company proposed to take his land, and might insist that the company should take the unrestricted and absolute fee, and the Circuit Judge reports that he did say to the jury, that Mr. B. might reject the whole of the stipulations proposed, and that the company could not force them on him. In this respect, we conclude that there was error in the instructions. The charter of the company, in the 9th sect., 12 Stat. 274, authorizes the company to take any lands for the site of the road in fee, or for years, of such dimensions (not exceeding one hundred feet on each side of the track as appears by other portions of the Act,) as they shall see fit, or to purchase private rights of way or water-course; and the tenth section provides, that, where the company cannot purchase the lands or rights of way for lack of agreement as to price or other cause, the same may be taken by the company at a valuation to be made "by commissioners appointed by the Court, the measure of which valuation shall be the excess of loss or damage above the benefit or advantage derived from the course of the road by the proprietor.

The vesting of discretion in the company as to the diminishable extent of land to be taken, was probably derived from the amendment of the charter of the Greenville and Columbia R. R. Co., in 1849, 11 Stat. 576. Whatever may be the origin of the provision in this respect, it is considered that the whole extent of discretion as to lands and rights of way to be taken by the cpmpany, is in the company, and not in the, proprietor.' The greater contains the less. The right to take the fee involves the right to take a less estate, or to take on any terms or conditions the company may, propose. As they,may not need the whole extent of, one hundred feet on each side, of the track, so they may not need any interest in .the soil beyond some point of .time, and cannot be required to take more than 'they need. It might be that the taking under the limitations of tenure and quantity contained in their proposals, would be as injurious to thé owner, as taking absolutely the whole soil or easement they had privilege to take; but it devolves on the, commissioners, or alternatively the jury, to assfess in the various cases'the damage to the proprietor. So, on the other hand, the company might propose to take nothing except on terms that would produce- advantage to the owner.

The fifth ground alleges that the judge charged that the stipulations covered every subject of damage claimed by Mr. Blake, and consequently that he could claim. no damages except on suit for breach of the stipulations; and the sixth ground in substance alleges that the Judge charged that the jury could not assess damages subject to the stipulations, or , assuming them to be executed fairly., His Honor partially ,repudiates and qualifies the instructions imputed to him, and no analysis will be attempted of his' instructions as stated by himself, but the result of our deliberations on the matters in these, grounds will be briefly expressed. What are called stipulations seem hardly to amount to any agreement or covenant upon which Mr. Blake could maintain any action against the company, and are rather the terms and conditions reduced to writing by counsel, on which the company proposed to take .- any interest in the lands of the- owner. . But regarding them as stipulations, they do not exclude the assessment of damages to the owner of the land, on the assumption that they are or will be faithfully executed, nor of damages, because they have not been fully and fairly performed. Suppose, for example, that the trestle-work proposed to be built by the company) would be so inadequate to the drainage of the owner’s swamp, that the consequence must follow of converting arable into grazing land, surely the owner is entitled to some compensation, however faithfully the trestle work, occasioning obstruction to the flow of water, may be erected. Suppose the company contracted to erect two hundred feet of trestlework, and in fact erected only fifty feet, the disadvantage of this diminution of work is a proper subject of assess ment. We do not propos to discuss the different sorts of damage or loss for which compensation should be made, nor to lay down rules distinguishing between remote possibilities and proximate consequences; but we do mean to assert that the assessment by the jury is to be made on comparison of the loss and advantage to the owner, created by the acts of the company on his soil. The injury may be much lessened by the forbearance of the company to take everything, and to every extent, they might take, and still injury may necessarily follow from any qualified taking. On this principle the Commissioners acted in their assessment, and the company in their suggestion, by way of appeal to the Court, make no complaint as to the principle. It may be that the valuation of the Commissioners is altogether exorbitant, but we agree that they, and the jury on appeal, were not excluded from considering all the facts, and making estimates as to items named in the stipulations, of course reducing the valuation on account of the company’s compact not to exercise all the rights of a proprietor over the whole parcel of land taken.

Ordered that a new trial be granted.

O’Neall, C. J., and Johnstone, J., concurred.

Motion granted.  