§ 814. Of compensation for the condemnation of buildings. § 81. § 816. CHAPTER XXXI. OF THE MEASURE OF COMPENSATION AND OF DAM AGES. § 813. The measure of compensation for lands appropriated. Peculiar a laptability or prospective use as affecting market value. $829. Compensation to be made in "money" in some States. § 821 Of the measure of damages in an action for trespass. 813 The measure of compensation for lands appropriated.—For such land as is actually taken by a railway for the construction of its road, the owner is entitled to compensation to the full' amount of its cash market value,' at the time of the ap propriation, with due reference to the uses to which it is ordinarily best adapted, or to which, by reason of peculiar circumstances, it may be most suited; that is, the price for which a prudent man 4 8 6 would sell it, after having reasonably ample time to dispose of it.' The owner cannot be compelled to accept the amount at which it is assessed for taxation, nor the price which it would probably bring at a forced sale; nor is the value to be determined by the price paid therefor by the owner.1o Market value is, ordinarily, to be proven by the opinion of witnesses, and in support of their estimates they may describe property, giving its location, advantages and surroundings.' 1 Virginia etc. R. R. Co. v. Henry, 8 Nev. 165. 11 2 Springfield etc. R'y Co v. Rhea, 44 Ark. 258; Brown v. Beatty, 34 Miss. 227; 69 Am. Dec. 389; Chapman v. Oshkosh etc. R. R. Co. 33 Wis. 629; Low v. Railroad Co. 63 N. H. 557. 3 Little Rock etc. R. R. Co. v. Woodruff, 49 Ark. 381; Wilson v. Rockfor etc. R. R. Co. 59 Ill. 273. Its value prior to the time the road was projente is not admissible in evidence: Texas etc R'y Co. v. Cella, 42 Ark. 528. The inquiry as to value must be limited strictly to the time of tak ing: Morin v. Minneapolis etc. R'y Co. 30 Minn. 100; Stafford v. City of Providence, 10 R. I. 557; 14 Am. Rep. 710; Sweaney v. United States, 62 Wis. 336; Logansport etc. R'y Co. v. Buchanan, 52 Ind. 163; Tidewater Cana! Co. v. Archer, 9 Gill & J. 479; Parks v. City of Boston, 15 Pick. 198, 10 Am. Dec. 322; Burt v. Wigglesworth, 117 Mass. 302; Squire v. City of Somerville, 120 Mass. 579; Carli v. Stillwater etc. R. R. Co. 16 Minn. 260; Jones v. New Orleans etc. R. R. Co. 70 Ala. 227; Texas etc. R'y Co. v. Cella, 42 Ark. 528; Young v. Ha rison, 17 Ga. 39; Selma etc. R. R. Co. v. Keith, 53 Ga. 178; Cook v. South Park Comm'rs, 61 Ill. 115; Dupuis v. Chicago etc R'y Co. 115 Ill. 97; Indiana Central R. R. Co. v. Hunter, 8 Ind. 74. The compensation is to be estimated as of the time of the award, even though the land has been already improperly taken by the company: Blue Earth Co. v. St. Paul etc. R. R. Co. 28 Minn. 563; 10 Am. & Eng. R. R. Cas. 203. Cf. Morin v. St. Paul etc. R. R. Co. 30 Minn. 100. 4 King v. Minneapolis Union R'y Co. 32 Minn. 224; and cases cited infra, 815. 5 Johnson v. Freeport etc. R'y Co. 111 Ill. 413; Dupuis v. Chicago etc. R'y Co. 115 fil. 97; and cases cited infra, 815. Where land possesses no market value, and an important factor in determining its value is the use to which it is to bo applied, it is erroneous to give the jury a mers naked instruction that compensation should be measured by market value: Chicago etc. R'y Co v. Chicago etc. R. R. Co. 112 Ill. 589. 6 Mills on Eminent Domain, § 168. 7 Little Rock etc. R. R. Co. v. Woodruff, 49 Ark. 381. 8 New Orleans Pacific R'y Co. v. Murrell, 36 La. An. 344; Bowen v. Providence etc. R. R. Co. 5 Gray, 35; Virginia etc. R. R. Co. v. Henry, 8 Nev. 165; Springfield etc. R'y Co. v. Rhea. 44 Ark. 359. Nor is its assessed value adinissible in evidence to influence the appraisement: Texas etc. Ry Co. v. iddy, 4 Ark. 527. 9 Everett v. Union Pacific R. R. Co. 59 Iowa, 243. 10 St. Louis etc. R'y Co. v. Smith, 42 Ark. 265; Cincinnati etc. R. R. Co. v. Mims, 71 Ga. 240; Jacksonville etc. R. R. Co. v. Walsh, 106 TII. 253; Robb v. Maysville etc. Co. 3 Met, (Ky.) 117; Lawrence v. Boston, 119 Mass. 126; Somervilie etc. R. R. Co. v. Doughty, 22 N. J. 435; Memphis v. Bolton, 9 Heisk. 508. 11 Little Rock etc. R. R. Co. v. Woodruff, 49 Ark. 381; S. C. 33 Am. & Eng. R. R. Cas. 169. § 814. Of compensation for the condemnation of buildings. Unless prohibited by its charter, or by some general law of the State, a railway company may condemn dwelling-houses and other buildings, as well as lands, the right to appropriate the former being an incident to its power to condemn the latter.1 But the owner must be paid in full for the building, as well as for the land. And the jury may take into consideration the inconvenience and loss resulting to the owner from being deprived of his home and established place of business. When, however, the owner of laud taken with a building upon it has received compensation for both land and building, he cannot afterwards sue the company for the value of the building.* When the railway company is forbidden to appropriate dwelling-houses, occupied by the owners, without their consent, the prohibition is held to extend not only to a dwelling-house itself, but also to such curtilage as is necessary for its reasonable enjoyment as a residence by the owner and his family. And where a railroad company, authorized by its charter to condemn a certain number of feet for a right of way, so long as it should not disturb any building, constructed its road through a piece of land without instituting proceedings for condemnation, and the owner of the land erected a house near the track and maintained it for a number of years, the company was held barred from its privilege of condemning the land on which the house stood." 1 Forney v. Fremont etc. R. R. Co. 23 Neb. 465; S. C. 33 Am. & Eng. R. R. Cas. 162; Brackett v. Ohio etc. R. R. Co. 14 Pa. St. 241. Wells v. Somerset etc. R. R. Co. 47 Me. 315; Cleveland etc. R. R. Co. v. Speer, 56 Pa. St. 325; 94 Am. Dec. 84. 2 Forney v. Fremont etc. R. R. Co. 23 Neb. 465; S. C. 33 Am. & Eng. R. R. Cas. 162. 3 Covington etc. R. R. Co. v. Piel, 87 Ky. 267; S. C. 33 Am. & Eng. R. R. Cas. 207. 4 Forney v. Fremont etc. R. R. Co. 23 Neb. 465; S. C. 33 Am. & Eng. R. R. Cas. 162. 5 Swift and Given's Appeal, 111 Pa St. 516, construing Pa. Act of Feb. 19, 1849, Pa. Laws, 83. 6 Alabama etc. R. R. Co. v. Gilbert, 71 Ga. 591. § 815. Peculiar adaptability or prospective use as affecting market value.-When land is taken under the power of eminent domain, the award should not be limited to its value for cultivation or habitation. It is proper to consider its adaptability to any peculiar use to which it may have been applied or its prospective value with reference to any use to which it might otherwise be peculiarly suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. Thus, evi dence to show that land required for a railroad bridge possesses especial advantages as a bridge site, is admissible as affecting the question of market value. So, where sending logs down a river is a regular business, the adaptability of islands in the river in connection with the opposite bank of the river to form a boom of large dimensions and for holding logs in safety, is a proper element for consideration in estimating the value of lands on the islands when appropriated for a public use. And in determining the amount of the award, it has 3 4 8 been held proper to take into consideration the peculiar or prospective adaptation of the land for a ferry landing, or for coal mines, or for handling and storing coal,' or for suburban residences, or for warehouses, grain elevators or manufacturing purposes. So, also, the fact that land was used as a training track, and that its availability for that purpose will be destroyed, may be considered.10 But the value of unopened mines cannot be considered,11 nor the prospective value of land as laid out in city lots, and the possible or probable profits of the owner that might result from his enjoyment of the property cannot be considered. 13 Neither should it be considered an element of damage, that the building of the railway will prevent the dredging of a canal, whereby the land would be improved, it appearing that a connection with an extension would have to be effected in order to make the canal, and that its construction in any event is doubtful and contingent.1 12 1 Littlerock etc. R'y Co. v. McGehee, 14 Ark. 202; Harrison v. Young, 9 Ga. 359; and cases cited in the following note. 2 Boom Co. v. Patterson, 93 U. S. 403, 407; Calumet River R. R. Co. v. Moore, 124 Il. 329; S. C. 13 Am. & Eng. R. R. Cas. 179; McClean v. Chicago etc. R'y Co. 67 Iowa, 568; Sherman v. St. Paul etc. R. R. Co. 30 Minn. 227; Chicago etc. R. R. Co. v. Jacobs, 110 Ill. 414; Russell v. St. Paul etc. R'y Co. 33 Minn, 210; Missouri Bridge Co. v. Ring, 58 Mo. 491; Amoskeag Manuf. Co. v. Worcester, 60 N. H. 522; Somerville etc. R. R. Co. v. Doughty, 22 N. J. 495; Trustees of College Point v. Dennett, 5 Thomp. & C. 217; Goodin v. Cincinnati etc. Co. 18 Ohio St. 169; 98 Am. Dec. 95; Chicago etc. R'y Co. v. Chicago etc. R. R. Co. 112 Ill. 539; Dupuis v. Chicago etc. R'y Co. 115 Ill. 97; Chicago etc. R. R. Co. v. Blake, 116 Ill. 163; Robb v. Maysville etc. Co. 3 Met. (Ky.) 117; Boston etc. R. R. Co. v. Old Colony R. R. Co. 12 Cush. 605; King v. Minneapolis etc. R'y Co. 32 Minn. 224; Cincinnati etc. R'y Co. v. Longworth, 30 Ohio St. 108; Shenango etc. R. R. Co. v. Braham, 79 Pa. St. 447; Little Rock etc. R'y v. McGehee, 41 Ark. 202; Harrison v. Young, 9 Ga. 359; Young v. Harrison, 17 Ga. 30; Johnson v. Freeport etc. R'y Co. 111 Ill. 413; Mills on Eminent Domain, § 173. 3 Little Rock etc. R. R. Co. v. Woodruff, 49 Ark. 381. 4 Boom Co. v. Patterson, 98 U. S. 403. 5 Little Rock etc. R'y Co. v. McGehee, 41 Ark. 202; although the owner and not yet established any ferry at that place 6 Doud v. Mason City etc. R. R. Co. 76 Iowa, 438. |