
    The Little Miami Railroad Company v. Daniel Collett and others.
    In a proceeding by a railroad corporation for an appropriation of a right of -way under the act of April 30, 1852, the jury, after allowing for the full value of the land actually appropriated for the right of way, in view of all its uses and relations, without deductions for benefits of any kind, in their estimate and assessment of the incidental damages accruing to other lands of the owner, can not legally take into consideration and make allowance-for general benefits — or such as accrue to the community and vicinage at: large — from the construction of the work proposed.
    
      'Whether special benefits, or such as accrue directly and solely to the owner of the lands appropriated, may be taken into consideration and allowed for— quaere.
    
    .In order to the reversal of a judgment, error must appear affirmatively on the face of the record on which error is assigned; it will not be presumed.
    This is a petition in error to reverse the judgment of thecourt •of common pleas of Warren county, affirming a judgment of the probate court of said county.
    The record shows the following state of facts :
    In August, 1854, the Little Miami Railroad Company instituted • certain proceedings in the probate court of Warren county against the defendants, heirs of Moses Collett, deceased, for the purpose of appropriating to and for the use of said company about five acres -of land.
    The cause was submitted to a jury in said probate court, pursuant 183] to the act of April 30, 1852, “ to provide compensation *to ■owners of private property appropriated to the use of corpora■tions,” and the acts amendatory thereto.
    The bill of exceptions, taken by the plaintiff at the trial, to the .ruliug and charge of the court, shows the following facts : The defendants, who, under the law then in force, held the affirmative, proceeded to offer testimony to the jury, by which it was shown ■that the premises sought to be ajipropriated for the use of the plaintiff, consisted of about five acres; and the quantity of land owned by the defendants in the tract out of which said five acres were taken contained about 393 acres. Defendants then offered testimony tending to show the cash value of the five acres sought to be appropriated, and offered testimony tending to show also that the residue of said tract of land owned by the defendants would' be incidentally injured and rendered less valuable by reason of the .actual appropriation of said five acres to the use of the company.
    The plaintiff, by its counsel, conceding that, under the law of April 30, 1852, under which the proceedings were commenced and -conducted, the defendants would be entitled to a verdict for damages or compensation to the amount of the actual cash value of the land sought to be appropriated, contended that so far as respected the claim of the defendants to incidental or consequential damages to the residue of their said tract of land (resulting, as defendants ■claimed, from said appropriation of the five acres), that, if they were entitled to recover for such damages, it was competent for the plaintiff, under the act incorporating said company, to offer and. prove to the jury, and that said company was not precluded by the-present constitution nor the act of April 30,1852, under which these-proceedings were had, from offering testimony and proving to the-jury that the residue of said tract of land would be enhanced in-value by the location and construction of the Little Miami Railroad-^through and on the five acres sought to be appropriated, [184 and proposed and offered to establish the fact of such enhanced, value by testimony; the court, however, decided and so charged the jury that the defendants • might legally recover for any incidental or consequential damages to the residue of said premises - that they could prove ; and that the plaintiff was not entitled, as an answer or set-off to such claim for incidental damages, to show that the residue of said defendants’ land was enhanced and increased in value by the location and construction of plaintiff’s road on the five acres sought to be appropriated, and would not permit-the plaintiff to offer to the jury any evidence tending to establish the fact of such enhancement of value. To which opinion and ruling of the court the plaintiff excepted.
    The jury returned a verdict for the defendants, and assessed-their damages at one thousand dollars.
    Judgment was entered on the verdict.
    A copy of the record and judgment of the probate court was-taken to the common pleas of Warren county on certiorari; and-at the December term, 1854, of said common pleas, said judgment: was affirmed.
    To reverse this judgment of affirmance the present petition in-error is prosecuted.
    
      George J. & John E. Smith, for the plaintiff in error.
    
      Thompson & Collett, for the defendants in error.
   Brinkerhoff, J.

The fifth section of the thirteenth article of the constitution of the state provides that no right of way shall" be appropriated to the use of any corporation until full compensation therefor be first made in money, or first secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by *such corporation; which compensa- [185 tion shall be ascertained by a jury of twelve men, in a court of as shall be law.” The nineteenth section of' the bill of rights has a provision substantially similar, its language :being: “Such compensation shall be assessed by a jury, without . deduction for benefits to any property of the owner.”

The act of April 30, 1852 (Swan’s Stat. 233), under which these proceedings were had, and by which they must be governed in prescribing the juror’s oath, and the manner in which his assessment of compensation shall be made, embodies the very language of the fifth section of the thirteenth article of the constitution above quoted.

Benefits accruing, from the construction of a railroad, to an owner of lands through which it passes, may properly and conveniently bo divided into two classes, to wit:

1. General benefits, or such as accrue to community, or the vicinage at large, such as increased facilities for transportation and travel, and the building up of towns, and consequent enhancement of the value of lands and town-lots..

2. Special benefits, or such as accrue directly and solely to the owner of the lands, from which the right of way is taken; as when the excavation of the railroad track has the effect to drain . a morass, and thus to transform what was a worthless swamp into valuable arable land, or to open up and improve a water-course.

Now, as to the first of these classes, we know from the debates ■ of the convention which formed the constitution (1 Debates Ohio Convention, 446), and from the discussions which preceded and followed the calling of that convention, as well as from the language ■ of the constitution itself, that it was the express design of the framers of the constitution, to exclude that class of benefits from the consideration of jurors in their assessment of compensation for 186] *’rights of way appropriated by corporations; and we are not aware that the contrary has ever been claimed. It has, however, been made a question at least in speculation, whether, after .allowing full compensation for the land actually appropriated for the fight of way, in view of all its uses and relations, without deducting for benefits of any kind, the jury may not, in their estimate and assessment of the incidental damages accruing to other lands of the owner from the construction of the work proposed, take into consideration, and make allowance for, incidental bene- ■ fits of the second class ? And this question has been ably argued, ■ on the part of the plaintiff in error, in the case before us; but the question is not made in the record, and we prefer not to pass upon it until it shall be distinctly presented in an actual case.

It is shown in the bill of exceptions taken in the probate court, and assigned for error, that the plaintiff in error was precluded by that court from giving testimony to the jury to show that the residue of the lands of the defendants in error, not covered by the right of way appropriated, “ would be enhanced in value by the location and structure of the road.” How enhanced in value? and by what means ? By means of what we have designated as general benefits ? or by means of what we have designated as special benefits? The bill of exceptions does not inform us. The presumption is quite as great that they were the former, as that they were the latter. If the former, then there was clearly no error. If the latter, then the action of the probate court was, perhaps, questionable; but the fact ought to be distinctly shown in the record. We can not presume that it was the latter class of benefits rather than the former, which were offered in evidence; for then we might presume the existence of error, and this a court of error will never do. Error *must appear affirmatively in the record [187 on which error is assigned, and will not be presumed.

Judgment affirmed.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.  