
    CASE 81 — TRAVERSE
    FEBRUARY 19.
    Louisville and Nashville Railroad Company vs. Glazebrook.
    APPEAL EBOM TAYLOR CIRCUIT COURT.
    To entitle a railroad to a right of way, the Constitution requires the payment of the value of the use of the land taken without any regard to consequential advantages resulting to the owner from the construction of the railroad. In addition to that value as so assessed, in favor of the owner of the land, he is entitled by the charter of the road to consequential damages resulting from the construction and use of the railroad through his land, subject to a set-off of consequential advantages. The cost of fencing rendered necessary by the construction and use of the road is a consequential damage, and against which the consequential advantages may be set-off.
    L. H. Noble, For Appellant,
    CITED—
    
      Redfield on Railways, pp. 137-8,368.
    18 Pick., 443.
    1 Starkie on Evidence, p. 363.
    
      Sedgwick on Measure of Damages, p. 620.
    14 B. Mon., 76; Louisville and Frankfort Railroad vs. Milton.
    
    2 Metcalfe, 177-84; Louisville and Frankfort Railroad vs. Ballard.
    
    W. B. Harrison, For Appellee,
    CITED—
    1 Starkie on Ev., sec. ed.,page 363.
    
      Redfield on Railways, 138, 369.
    
      Sedgwick on Damages, 620.
    
      1 Cushing, 559; R. R. Co. vs. Clapp.
    
    14 B. Mon., 76 ; Louisville and Frankfort R. R. vs. Milton.
    
    2 Clark's Rep., 288; Henry vs. Dubuque R. R.
    
    12 Barb., 227.
    4 Ohio Rep., 308; Gusey vs. Cin., Wil. and Zanesville R. R. Co.
    
    6 Ohio, 182; Little Miami R. R. vs. Cottell.
    
   JUDGE ROBERTSON

delivered the opinion of the court:

To entitle the appellant to the right of way through the appellee’s land, the Constitution, as often interpreted by this court, required the payment of the value of the use of the land taken, without any regard to consequential advantages resulting to the owner from the construction of the railroad. In addition to that value, as so assessed, the appellee was entitled by the charter to consequential damages resulting from the construction and use of the railroad through his ¡land, subject to set-off of consequential advantages. The case of fencing rendered necessary by the construction and use of the road is a consequential damage, and the circuit court properly so decided. In assessing the total damage at $650, the jury estimated not only the value of the right of way, but the cost of increased fencing and other inconveniences, and also all consequential advantages; and, on the facts exhibited in the record, this court cannot adjudge that assessment excessive.

The commissioners appointed to assess damages made two reports, differing $100 in amount, and neither of them including the cost of fencing, for which the jury must have allowed more than $600; and, as both reports were traversed, and the jury greatly exceeded each, the quashal by the court of the first report, and requisition of the second, were not prejudicial to either party, because, whichever of them might have been made the basis of the assessment by the jury, that assessment would have been the same on the same facts.

We perceive no error in admitting or rejecting testimony, nor in giving or refusing instructions.

Wherefore, the judgment is affirmed.  