
    Rudolph Miller vs. Towns of Beaver and Le Roy.
    July 8, 1887.
    Eminent Domain — Highways—Damages—Supposed Benefits. — Upon a trial to determine the amount of damages to which a land-owner is entitled for the taking of his land for a highway, when the fact appears un-contradicted that no special benefits accrued to the land from the laying of the road, and that the land taken is valuable, the bare unexplained opinions of witnesses that the land-owner had suffered no damage is not sufficient to justify setting off, against the actual, damage from the taking of the land, anything upon the ground of special benefits.
    In laying out a highway between the towns of Beaver and Le Roy a portion of plaintiff’s land was taken, and the supervisors in their order and determination refused to allow him any damages, upon the ground that the benefits equalled the damages. Plaintiff appealed to the district court for Fillmore county, where a trial was had before Farmer, J., and a jury, and the plaintiff had a verdict of $100. The defendants appeal from an order refusing a new trial.
    
      Burdett Thayer, for appellants.
    
      H. B. Wells, for respondent.
   DicKinson, J.

The court in effect instructed the jury that the evidence showed no special benefits accruing to the respondent’s land from the laying of this road which should be deducted from the damages for the taking of the land, excepting the benefit of drainage. The only question upon this appeal is whether there was any evidence of other special benefits. A witness (Gates) testifying on the part of the towns gave it as his opinion that the benefits were equal to the damages; but, upon further examination, it appeared that, except as to the element of drainage, the benefits which he referred to were of that general kind which should not be set off against the damages. Then several witnesses were called on the part of the towns, who, being asked to state their opinions as to how much less the respondent’s farm was worth with this road than it would be without it, answered that they thought it was worth no less, and that it was not damaged by the laying of the road. They were not asked whether any special benefits entered into their estimation.

The court are of the opinion that it is sufficiently apparent from the case that the whole of the facts as to the beneficial effects of the road had been shown by the former witnesses, and that the unexplained opinions of the witnesses above referred to were undoubtedly based upon the same facts which had been before fully detailed, and which included no element of special benefit excepting that of drainage. This being the case, the court did not err.

Order affirmed. 
      
       Berry, J., because of illness, took no part in the decision of this ease.
     