
    MINNEAPOLIS, ST. PAUL, ROCHESTER & DUBUQUE ELECTRIC TRACTION COMPANY v. BETSEY E. FORSTROM and Others.
    
    July 23, 1909.
    
    
      Nos. 16,141—(143).
    Proceeding in the district court for Dakota county to condemn a right of way over certain land in that county for an electric traction railway under the power of eminent domain. Commissioners were appointed as provided by statute and awarded $1,000 to the owners of the lanjl as damages. From this award the traction company appealed to the district court. The case was tried before Ci’osby, J., and a jury which rendered a verdict assessing respondents’ damages at $1,200. From an order denying the company’s motion for a new trial, it appealed to this court.
    .Reversed and new trial granted.
    
      M. H. Boutelle and R. T. Boardman, for appellant.
    
      Hodgson & Lowell, for respondents.
    
      
       Reported in 122 N. W. 451.
    
   Per Curiam.

Appeal by the traction company from an order of the district court of the county of Dakota denying its motion for a new trial in proceedings to acquire a right of way over the respondents’ farm. The only question submitted to the jury related to the amount of damages to be awarded to the respondents for the taking of their land.

The trial court gave to the jury this instruction: “Now, you will determine at the time the railroad took possession what would be the value of the one hundred sixty acres of land, taken as a whole, without the railroad upon it, but with the railroad near it. That, you see, will give the landowner the benefit of these general benefits which he is entitled to with his neighbors there who didn’t have the railroad running across their farms. Determine that question. Then determine the question of what is the value of the farm with the railroad upon it. The difference between those two sums is the true measure of damages in cases of this kind.”

The giving of this instruction is assigned as error. It was. Minneapolis, St. Paul, Rochester & Dubuque Electric Traction Co. v. Harkins, supra, page 478, 122 N. W. 450.

Order reversed and a new trial granted.  