The following opinion was filed September 2, 1879.
TayloR, J.
This case comes before this court a second time upon appeal by the defendant; and, by consulting the arguments of counsel on the former appeal, and the decision of the court, it will be seen that the same questions as to the rule of damages applicable to the case were discussed upon the former appeal that were discussed upon this. So far, therefore, as the decision in the former appeal settled any question as to the extent of damages which the plaintiff may recover in this action, it is res adjudieata in this case.
vOn the former appeal it appears that the learned circuit judge charged the jury, among other things, “ that the jury could not apportion the damages for these injuries according to the width of the strip actually taken and occupied by the railroad, but must award damages to compensate the plaintiff for the whole amount of injury sustained;” and that the court refused to give the jury the following instruction: “ Plaintiff can recover only such amount of damages as he has sustained by reason of the operation of defendant’s road on that portion of the street lying west of the center line and in front of his premises. The company had a right to use and operate their railway on the eastern side of the street.”
This court held that such instruction given was a proper instruction as to the rule of damages, and that the instruction requested by the defendant was properly refused. In commenting upon this question of damages, Justice Cole, who delivered the opinion of the court, says:
“ In constructing its track upon the plaintiff’s land without [185]*185Ms consent, and without making compensation, the company was clearly a wrongdoer, and is liable for all the certain, direct and natural damages resulting to the plaintiff from its unlawful act. The damages recoverable in the action are, of course, for past injury to the freehold and possession; that is, the pecuniary loss which the trespass had caused the plaintiff in the use and enjoyment of his property when the suit was commenced. Laying out of view' collateral questions, for the purpose of this case it seems to be sufficiently accurate to say, that the measure of damages would be the difference between the annual rental value of the premises with the railroad track where it was, and the road operated as it was, and what the rental value of the premises would have been had not the road been upon his land.
“ The counsel for the company argued that the plaintiff should recover such damages only as resulted from the six-inch road-bed encroachment upon his premises; such damages as the plaintiff sustained by reason of the operation of the road on that portion of the street lying west of the center line thereof and in front of his premises. If by this it is meant that the plaintiff could recover only a fractional part of the damages which the construction and operation of the road worked to his premises, a bare statement of the proposition is sufficient to show its unsoundnes's. A railroad is ah entire thing, and it is impossible for any human intelligence to separate the loss or injury which its operation causes,, apportioning so much to one portion and so much to another. But we suppose the plaintiff was entitled to recover all the loss which he had sustained by reason of the trespass of the company, and in consequence of the road being operated on his land, according to the rule above stated.” •
This clearly settles the question for this case, that the plaintiff is entitled to recover all the damages he has sustained by reason of the trespass of the company and in consequence of the road being operated on his land, and that the court or jury [186]*186cannot take into consideration, for the purpose of lessening such damages, the fact that a part of the road was at the same time operated upon adjoining lands not owned by the plaintiff.
ISTo new authorities have been cited upon this point on the present argument, and but one has been found by the court bearing directly upon the question. In the case of Kucheman v. Railway Co., 46 Iowa, 366-377, two of the judges concur in holding to the doctrine contended for by the appellant in this case. Justice Beck dissented from this opinion of the two judges, and the other two judges held that the owner of land adjoining a - street could not recover any damages on account of the location and use of a railroad along the street, whether the same was ou the side of the street adjoining the plaintiff’s land or not. The two learned judges who held that when the whole railroad is not located upon the plaintiff’s land the damages must be apportioned, admit the difficulty of such apportionment. They say: “ There is great difficulty in separating the damages for which a recovery is allowable from those for which it is not, yet such separation must be made. . . . "We can lay down no rule for'its ascertainment which we think would be of any practical benefit.”
.Justice Beck, in dissenting from this part of the opinion of his two associates, says: “The last part of the second point I cannot approve. It is too nice, too theoretical, for practical application. It raises an objection which does not, in fact, exist, and fails to give a satisfactory answer thereto. It imagines a disease, and provides no cure for it. The railroad cannot be built with one rail; the two are necessary to its construction. It is a unity composed of two rails, the ties, the ground it occupies, etc. How this unity injures plaintiffs’ property. The injury is not from the rail on plaintiffs’ land, but from the entire road regarded as one thing. Plaintiffs may recover, in view of Mr. Justice Adams’ opinion, because the road is partly on their land. The road, as a [187]*187irnity, injures plaintiffs’ property. The rail on their land is not the cause of the injury. They ought to recover for all. the injury sustained on account of the road. But the rule of the opinion prevents recovery for the full amount of damages they have sustained. It is in conflict, with the fundamental-rule which secures the recovery of damages which will fully compensate the injuries sustained.”
The reasons of the dissenting justice harmonize with the reason given by this court upon the former appeal above quoted, and commend themselves to our judgment as the better reasons. The learned counsel for the .-appellants, seeing, per-, haps, the difficulties which intervene in apportioning the damages according to the quantity of land taken from the plaintiff and that taken by the company from the adjoining-owners, and considering that such rule had been discarded by this court in its former opinion, now attempt to reach a like result by insisting that the plaintiff shall not recover any damages which result from the mere proximity of the defendant’s railroad to the plaintiff’s lands, except so far as such damages are increased by the taking of plaintiff’s land; and they have introduced evidence to 'show that the plaintiff’s injuries would have been just as great if the railroad had been operated in the street, but entirely off of his lands, and |he jury have so found the fact. Upon this theory of the case, if the railroad is located along the middle, of a public street, none of the owners on either side would be entitled to recover beyond nominal damages for the actual occupation permanently of the lands in the street, as it is probable that a jury would in each case find, as they did in this, that the removal of the track a few feet one way oí- the other, in the middle part of the street, would not materially enhance or diminish the damages to the adjoining property.
The same result would follow where the line of the railroad was on the line between' two adjoining owners, half the track on one and half on the other. In such case neither could [188]*188recover beyond tbe value of the lands actually taken, as all other damages would generally result from what the counsel properly calls proximity of the railroad, and they would be the same, or nearly so, if the road were all upon one side of the dividing line. If the road were all on one side of the dividing line, the man upon whose land the x’oad did not lie could not recover any damages because none of his land would betaken; and the man whose land was taken could recover only the value of the land actually taken, because his damages arising from the maintenance of the road ’ would be nearly or quite the same had the road been located just off his land on the lands of the adjoining owner. None of the decisions of this court have recognized the distinction sought to be raised in this case. The statute provides that railroads may exercise the right of eminent domain upon certain conditions. They may take the lands of any citizen for the legitimate purposes of their corporations, upon making the just compensation provided for in the constitution, and this just compensation has been declared by the statutes to be “ the value of the lands actually taken, and the damages sustained .by the owner by reason of the taking thereof.” See section 1818, R. S. 1878. And this court held in Bigelow v. Railway Co., 27 Wis., 478; Parks v. Railroad Co., 33 Wis., 413, and Bohlman v. Railway Co., 40 Wis., 157, that nothing less than the allowance of such damages as are allowed by this statute would be a compliance with the requirement of the constitution that a “just compensation” shall be paid to the owner for his property taken for a public use. When, therefore, a railroad corporation takes the land of a citizen, it must comply with the conditions fixed by the constitution and the law; and if the constitution and the law requires that it shall pay the owner the value of the lands actually taken, and all other damages sustained by him by reason of such taking, then it must so pay or not take the land. The only question is, whether damages by reason of the proximity of the railroad [189]*189are a part of the damages which the owner sustains by reason of the taking of his land for the purpose of operating a railroad thereon. We are not discussing the question as to whether a man whose property is not actually taken for the purposes of a railroad can recover damages by reason of the proximity of the road to his land. We may admit, for the purposes of this discussion and of this case, that he cannot. The fact that a man whose land is not taken cannot recover any consequential damages which he may sustain by reason of the building and operating the road near his land, does not prove that the party whose land is so taken cannot recover damages of a like nature. The right of the latter depends upon the constitution and the statute giving him the right to recover damages, and the right of the former depends upon the principles of the common law, the statute being entirely silent on the subject. If the “just compensation ” spoken of in the constitution would not require the corporation taking the lands of the citizen for a public use to pay the consequential damages resulting from0 operating the railroad upon his land, still it would be entirely competent for the legislature to require the corporation to pay such damages as a condition of granting the light to take the property. The constitution clearly does not prevent the legislature from attaching other conditions beyond the payment of a just compensation to the right to take the property of the citizen for a public use, especially when such right is .granted to a corporation which is not, in all its purposes, a mere public institution. It is, we think, settled in this state, that a person whose lands are actually taken for the uses of a railroad may recover the value of the lands taken, and for any other injury to his lands not taken, being a part of the tract used, together with that which is taken, and that no deduction can be made from such'damage upon the pretext that his injury would have been just as great had the road been constructed in any other place, and just off his land. I suggest that it may be a sufficient reply to this [190]*190claim, that the plaintiff would have been equally injured if the railroad had been built in another place, and just adjoining his lands, that there is no presumption that the railroad would have been built in any other place than where it was built, in the immediate vicinity of the lands injured. The court and j ury have no right to guess that if the road had not been built on the plaintiff’s land it would probably have been built very near it, and so he would have been equally injured, whether his lands were taken or not, except as to the mere value of the lands so taken.
It may be said that the law is unequal and unjust which allows the person whose lands are taken not only the value of his lands, but his damages resulting from the use of the lands so taken for railroad purposes, and makes no provision for making any compensation to the adjoining owner whose lands are not taken, but suffers in the same degree as his neighbor from the operation of the road. There may be some force in this argument when addressed to the legislature; but it can have but little force when addressed to the court, whose duty it is, not to make the laws, but to administer them as made.
The decisions of this court fully establish the rule, that the owner whose lands are taken for the use of a railroad is entitled to recover the actual value of the lands taken, and all other damages which he sustains by reason of the taking' and use of his lands for the purposes of a railroad, and that, in fixing the amount of the same, the court or jury must estimate such damages as ai’ise from and are directly attributable to, the construction, maintenance and operation of the road in the place where the same is located across his lands, without making any deduction based upon the guess that if the road had not been built across his land it would have been built near it, and consequently he would have been injured to nearly the same extent. Railroad Co. v. Eble, 3 Pin., 334; Robbins v. Railroad Co., 6 Wis., 636; id., 605; Janesville v. Railroad [191]*191Co., 7 Wis., 484; Ford v. Railway Co., 14 Wis., 609; Pomeroy v. Railroad Co., 16 Wis., 640; Snyder v. Railroad Co., 25 Wis., 60; Thompson v. Railway Co., 27 Wis., 93; Price v. Same, id., 98; Welch v. Railway Co., 27 Wis., 108; Bigelow v. Railway Co., id., 478; Hegar v. Railway Co., 26 Wis., 624; Farrand v. Railway Co., 21 Wis., 435; Parks v. Railroad Co., 33 Wis., 413; Chapman v. Railroad Co., id., 629; Sherman v. Railroad Co., 40 Wis., 645; Bohlman v. Railway Co., id., 157; Blesch v. Railway Co., 43 Wis., 183; and Carl v. Railroad Co., 46 Wis., 625.
The rule of damages above discussed applies to proceedings to condemn and take lands for a railroad under the statute; and certainly an equally liberal rule should be adopted in estimating the damages to be recovered against a corporation which has taken and used the lands of the plaintiff as a mere trespasser. On the whole, we think, the charge of the learned circuit judge upon the question of damages was in accordance with the statute and the decisions of this court upon the subject, and that there .was no error committed by him in that part of his charge.
If the judge erred in charging the jury that it was immaterial, as affecting the plaintiff’s right to recover, whether any part of the defendant’s track was upon his land or not, such error could not affect the judgment in this case, as the special verdict finds that the road was in park located and operated upon his lands.
We have examined the exceptions taken to the admission of evidence, and do not think the judge erred in this respect. Upon the whole record we are satisfied that the case was fairly tried upon its merits up to the point when the same was submitted to the jury; and we regret that we are compelled to reverse this judgment on account of irregularities which occurred in procuring the final verdict of the jury. This case presents a gross perversion of the statutory right of a party to a special instead of a general verdict. In this case there were [192]*192but two litigated questions: First, Was the defendant’s railroad, or any part of it, located and operated upon the plaintiff’s land? and second, If it was so located upon his land, what damages had he suffered in consequence of such location and operation? Tet upon this question of damages, which was in its nature indivisible, and any attempt to analyze the same and fix the amount which should be charged for each element which went to mate up the whole damage would at best be an uncertain guess, the jury were required by the plaintiff to answer five questions, by the defendant seven, and by the court one. The third question put by the court and the fifth one put by the plaintiff covered the whole question of damages. All the others, by both the plaintiff and defendant, were questions strictly in the nature of an examination of the'jury to ascertain what elements of damage they considered in making up the gross damage, and requiring them to fix a definite sum allowed by them for each of those elements. This examination of the jury tended only to confuse and embarrass, without in any manner aiding them or the court in arriving at a true verdict. The result of the process in this case is a clear demonstration of the perniciousness of the practice.
When the jury returned into court the first time, they submitted a verdict, and had attempted to answer, and did in fact answer, all the questions submitted; but the cross examination had effected the confusion it necessarily tended to, and the answers were apparently contradictory. In attempting to analyze the damage into its various elements, and affix a sum to each element, and also to fix the amount of the damages in gross, the gross damages found did not agree with the total of the sums fixed to the several elements of damage. The verdict as first returned showed that the several sums given in answer to the questions calling for the amount of damage they found resulting from particular causes, amounted to the sum of $2,165.85; and in answer to question 5, as to what the gross damage was, they say $3,090, composed of the items which, [193]*193according to their previous answers, amounted to the said sum of $2,163.85, and the item fixed to the third question proposed by the court. The answer to such third question was as follows:
'Answer. $5,100, less $2,010 in questions 2, 3 and 4— $3,090.
, Questions 2, 3 and 4, above referred to, were probably intended for 1,3 and 4, mentioned in the answer to the 5th question of the plaintiff. These answers staggered the presiding judge, and, as it seemed to him impossible to determine what the jury meant to find as the plaintiff’s gross damages, he further instructed the jury, and sent them out again to explain their verdict. They came in the second time with the same answers as at first, except that the answer to plaintiff’s fifth question, instead of being $3,090, was now $3,251.96; and the answer to the third question propounded by the court was changed by striking out all the first answer, and inserting in its stead $1,086.11. This answer was more inexplicable than the first, as the answer to the court’s third question called, for the same amount of gross damages as the answer to the plaintiff’s fifth. The judge then further instructed the jury, and prepared three more questions for them to answer; and the jury retired for the third time, and then returned their answers as follows: The answers to the first, second and third questions of the plaintiff were the same as they returned the first and second times. The answer to the fourth question of the plaintiff was changed from the sum $271.52, as answered the first and second times, to the sum of $1,357.62. The answer to the fifth question of plaintiff was the same as returned the second time, viz.: $3,251.96, and the answer to the third question of the court was now made $3,251.96, the same as the answer to the fifth question by the plaintiff. All the- other questions were answered as at first, except the additional questions propounded after the jury had returned into court the second time. The verdict had now become consistent with itself, and the jury were discharged.
[194]*194We think it would be a dangerous precedent to permit a verdict obtained in this manner to stand. It will be seen that the jury at first returned, in answer to the third question of the plaintiff, that they estimated the damages by reason of the injury to the plaintiff’s premises as a residence for himself and family, at the sum of $25 per year, or a total of $272.52; and that, on their returning their verdict for the third time, they estimate this same item of damages at $125 per year, or a total of $1,357.62; that they first returned their verdict for the total damages in answer to the plaintiff’s fifth and the court’s third question at the sum of $3,090; and that by their second verdict they fix this total damage, in answer to plaintiff’s question, at $3,251.96, and in answer to the court’s question on the same subject at $1,086.11, and by their third verdict, to both questions, at $3,251.96.
The power of the court to refer the verdict of a jury back to them for further consideration must have some limits; and the exercise of this power has always been looked upon with disfavor, except in those eases where it is exercised for the purpose of allowing the jury to perfect a verdict which is imperfect by reason of their omission to make some necessary computation of interest, or the amount due upon some instrument upon which they have found a party entitled to recover. But when the jury have found upon all the issues submitted to them, it would seem improper for the court to recommit the matter to them again for the reason "that in. the estimation of the court there is some inconsistency in the same. If there should be an inconsistency so glaring that it was evident the jury had made a mistake, it might be permissible for the court to call the attention of the jury to such mistake, and permit them to retire and correct the same, if they desired to do so. But we do not think it permissible to allow a jury, under pretense of correcting a mistake in their verdict, to render a verdict essentially different from that which was first rendered. A jury, having once fixed the amount of damages they find the [195]*195plaintiff entitled to recover, ought not to be permitted to change such amount to the prejudice of either party, unless it clearly appears that the amount first inserted in the verdict was not the amount intended by the jury to be given, and the sum so inserted had been placed there by mistake, contrary to their intention. In this case the jury changed both the amount of damages in gross and the damages arising from a particular cause, after their first verdict was returned to the court, without giving any appai’ent reason for so doing, except, perhaps, that it was done in order to make the verdict consistent with itself. We are not satisfied with the verdict of a j ury which, after mature deliberation, deliberately finds that the plaintiff is entitled to recover the sum of $3,090, and then, upon the matter being again submitted to them, finds he is entitled to recover the sum of $3,251.96, without rendering any excuse for the addition; nor with a verdict that first finds that plaintiff’s damages to his premises as a dwelling-house is twenty-five dollars per year, and then, upon reconsideration, finds the-same damages to be $125 per year, giving no reason for the change of opinion except that such last finding will make it consistent with the final general verdict as to damages.
Proffatt, in his work on Jury Trial, § 457, says: “ When the jury return a general verdict settling the rights of the parties, and upon which judgment can be entered, or when they return a special verdict finding the facts of the case, and leaving the questions of law ai’ising upon those facts to the court, it would be improper for the court to send them out again for further consideration.” Whittaker, in his Practice, vol. 2, 395, says: “ If the verdict be returned in open court, and in the presence of counsel, and the jury, as is often the case, have fallen into manifest error, the present is the proper period for correction. Py a reconsideration of such errors, under the direction of the judge, much subsequent trouble, and possibly the necessity of a new' trial, may be obviated. This observation, of course, as[196]*196sumes that the errors in question have arisen from a manifest misapprehension, on the part of the jury, as to the extent of their functions or as to the real nature of the question submitted to them; and it cannot be changed in substance, however erroneous it may be.” See also Trust Co. v. Harris, 2 Bosw., 75, and Sutliff v. Gilbert, 8 Ohio, 405.
The appellant having objected to committing the case the second and third times to the jury, and in view of the fact that the final verdict as rendered by the jury was substantially different in its material parts from that first rendered, we are of the opinion that the judgment must be reversed, and a new trial granted.
Before closing this opinion, we are constrained to again remark that the necessity for a new trial in this case grows out of the fact that the question as to the amount of damages which the plaintiff was entitled to recover was unnecessarily and improperly embarrassed by requiring the jury to answer a lai’ge number of questions relating to circumstances which they miglit be supposed to consider in arriving at the amount of damages which the plaintiff ought to recover. Under the circumstances, the jury were less to blame for being unable to give a consistent and wholly satisfactory verdict, than the parties for demanding that they should give an analysis of the elements of damage which made up the gross damage, and fix a certain sum as the amount' allowed for each such element. The right to demand a special verdict of a jury is in many cases a valuable one; and when this right is properly limited to the ascertainment of such facts, and such alone, as are material to the rights of the parties, it cannot but aid in the attainment of just verdicts. The statute upon this subject, section 2858, R. S. 1878, directs that when a special verdict is demanded, “ such verdict shall be prepared by the court in the form of questions in writing; relating only to material issues of fact, and admitting a direct answer, to which the ju/ry shall make answer in writing.” We suggest that the learned [197]*197circuit judges, in taking special verdicts, should adhere to the directions of this statute, and, while they avail themselves of the reasonable suggestions of learned counsel for the respective parties as to what questions should be submitted, submit only such as relate to the material issues, „and rigorously exclude all questions which have no other" object than to obtain from the jury the reasons which actuate them in finding such material facts. In this case, the one question put to the jury by the court upon the subject of damages covered completely the issue in the case upon that point, and, in our estimation, should have been the only question submitted to them upon that issue; and all the other questions upon that subject, put by the plaintiff and defendant, might with great propriety have been excluded by the court as immaterial and impertinent. It is now evident that if such course had been taken by the learned judge, it would have saved both parties the expenses of a new trial in the action. The learned circuit judge had, in his instructions to the jury, very clearly pointed out what facts and circumstances they might consider as going to. the question of damages, and what they should not consider in estimating them. It is to be presumed that the jury gave-proper attention to these instructions of the court; and neither party to the action had an absolute right to compel them to answer questions propounded for the mere purpose of ascertaining whether they in fact followed the instructions given.
We have been constrained to make these strictures upon the manner of taking the special verdict in this case, not so much for the reason that it is more objectionable than many others which have come under • the consideration of this court, but because the vicious practice in this case has been highly prejudicial to the interests of the parties litigant, and furnishes a favorable opportunity to urge upon the bench and bar the necessity of a greatly needed reformation of the practice in this particular.
[198]*198By the Gourt. — The judgment of the circuit court is reversed, and the cause remanded for a new trial. •
A motion for a rehearing was denied on the 3d of February, 1880.