Wilcox, J.
If the court below reject a juror regularly returned upon the panel, without any cause, it is error. But if they assign a cause in itself sufficient,’ this court cannot revise their decision upon the facts.
The case states that “ it appeared to the court” that the juror excepted to “ had strong feelings in relation to the case.” Then, of course, he did not stand indifferent between the parties, and was properly excluded. It is said that the court decided without any evidence, because the juror was interrogated, and denied that he was sensible of [376] any bias, and no other evidence was offered. Jurors who live in the neighborhood where the transaction occurred which they are to pass upon, and which has there been the subject of much excitement and discussion, are often excluded, although they declare that they are not sensible of any bias or prejudice. The court may be satisfied from the circumstances, from the nature of the transaction, and the examination of the juror, that he is subject to strong prepossessions in the ease, although he may not be aware of it. Jurors should be, as far as possible, free from the suspicion, even, of prejudice.
2. The testimony of the engineer was competent. Damages can scarcely ever be properly assessed before the construction of a railroad, without evidence as to the manner in which the road will probably or necessarily be constructed through the party’s land. Their amount may depend very essentially on the fact whether there is to be a deep cut, a high embankment, or a track upon the level with the land. The surveyor’s plan upon which the road is to be built may, therefore, be given in evidence, for railroads are necessarily built conformably to plans, and with great exactness. It is true that these are not certain and conclusive; they may be departed from for various reasons; difficulties may arise which were not foreseen; or another route may be deemed preferable. This shows that absolute certainty cannot be obtained, but does not prevent as close an approximation to be made as possible. It may, therefore, well enough be shown how the road must, or will probably, be constructed, and how the survey and location have been made; and these are matters for the jury to consider, remembering, at the same time, that the plan may be changed, and the road differently built, and awarding the damages upon the whole evidence.
3. To show the value of the land, evidence was admitted of the price obtained upon the sale of an undivided interest in the land; and this is objected to, upon the ground that [377] the sale of an undivided interest is no certain evidence of the value of the whole estate. It certainly is not a conclusive test; and it was pertinently inquired by the defendant’s counsel, where is any certain and infallible standard of the value of real estate to be found? We have been accustomed to regard actual sales of real estate as affording a fair criterion, of its value. The sale of an undivided interest is a less certain one, but still may be received and weighed by the jury.
4. The jury were instructed that the law in relation to highways applies generally to railroads; that a railroad corporation takes an easement only in the land, and that the owner retains all the rights of ownership, subject to the right of the company to use the land for the purposes of their road.
It is not a sufficient cause for setting aside a verdict, that the charge of the court may be open to verbal criticism, or that it is not in all respects correct. The error, if there be any, must be of such a character as to afford- a, probable presumption that the jury may have been led b-y-it to return a wrong verdict. Especially is this the case where the instructions were very general in their character, and somewhat in the nature of illustrations, and the court were not asked, at the time, to make them more definite and precise. In the case before us, there can be no doubt of the general resemblance or analogy between the law of highways and the law of railroads, as laid down by the court, though in many particulars the rules of law applicable to the two kinds of road are unlike. It does not appear, however, that there was any thing in the evidence calling upon the court for more definiteness in this particular, or that the appellant requested more precise instructions. The jury were correctly told that the rights retained by the land owners were subject to the right of the corporation to use the land for-the purposes of the road.
5. The jury were instructed that railroad corporations, [378] when their road passes through a tract of land, are not bound to provide suitable crossings for the land owner, but he must provide them for himself, and consequently is to be allowed for this expense, in the assessment of damages.
It is said that where a railroad corporation interrupts the communication between the different parts of a man’s land, it is not such an obstruction of a “ private way” that the corporation must provide the owner a substitute. Technically, there is some difficulty in having a “ private way” over one’s own land, and it would be especially difficult to recognize it where the owner is not accustomed to use any particular track, but to cross wherever he finds it most convenient. There is, however, room for question whether the term “ private way,” in railroad charters, is not used in a more common and liberal acceptation than the charge of the court implies; and whether it does not apply to all cases where the road interrupts the communication between the different parts of one’s land, so that the corporation will be obliged to construct suitable crossings at proper places, for the use of the land owner. This is a point not free from doubt, but need not be considered. The charge of the court was sufficiently favorable to the appellant in this particular. If there was any error, its effect would be to increase the damages he was to receive.
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Wilcox, J.
If the court below reject a juror regularly returned upon the panel, without any cause, it is error. But if they assign a cause in itself sufficient,’ this court cannot revise their decision upon the facts.
The case states that “ it appeared to the court” that the juror excepted to “ had strong feelings in relation to the case.” Then, of course, he did not stand indifferent between the parties, and was properly excluded. It is said that the court decided without any evidence, because the juror was interrogated, and denied that he was sensible of [376] any bias, and no other evidence was offered. Jurors who live in the neighborhood where the transaction occurred which they are to pass upon, and which has there been the subject of much excitement and discussion, are often excluded, although they declare that they are not sensible of any bias or prejudice. The court may be satisfied from the circumstances, from the nature of the transaction, and the examination of the juror, that he is subject to strong prepossessions in the ease, although he may not be aware of it. Jurors should be, as far as possible, free from the suspicion, even, of prejudice.
2. The testimony of the engineer was competent. Damages can scarcely ever be properly assessed before the construction of a railroad, without evidence as to the manner in which the road will probably or necessarily be constructed through the party’s land. Their amount may depend very essentially on the fact whether there is to be a deep cut, a high embankment, or a track upon the level with the land. The surveyor’s plan upon which the road is to be built may, therefore, be given in evidence, for railroads are necessarily built conformably to plans, and with great exactness. It is true that these are not certain and conclusive; they may be departed from for various reasons; difficulties may arise which were not foreseen; or another route may be deemed preferable. This shows that absolute certainty cannot be obtained, but does not prevent as close an approximation to be made as possible. It may, therefore, well enough be shown how the road must, or will probably, be constructed, and how the survey and location have been made; and these are matters for the jury to consider, remembering, at the same time, that the plan may be changed, and the road differently built, and awarding the damages upon the whole evidence.
3. To show the value of the land, evidence was admitted of the price obtained upon the sale of an undivided interest in the land; and this is objected to, upon the ground that [377] the sale of an undivided interest is no certain evidence of the value of the whole estate. It certainly is not a conclusive test; and it was pertinently inquired by the defendant’s counsel, where is any certain and infallible standard of the value of real estate to be found? We have been accustomed to regard actual sales of real estate as affording a fair criterion, of its value. The sale of an undivided interest is a less certain one, but still may be received and weighed by the jury.
4. The jury were instructed that the law in relation to highways applies generally to railroads; that a railroad corporation takes an easement only in the land, and that the owner retains all the rights of ownership, subject to the right of the company to use the land for the purposes of their road.
It is not a sufficient cause for setting aside a verdict, that the charge of the court may be open to verbal criticism, or that it is not in all respects correct. The error, if there be any, must be of such a character as to afford- a, probable presumption that the jury may have been led b-y-it to return a wrong verdict. Especially is this the case where the instructions were very general in their character, and somewhat in the nature of illustrations, and the court were not asked, at the time, to make them more definite and precise. In the case before us, there can be no doubt of the general resemblance or analogy between the law of highways and the law of railroads, as laid down by the court, though in many particulars the rules of law applicable to the two kinds of road are unlike. It does not appear, however, that there was any thing in the evidence calling upon the court for more definiteness in this particular, or that the appellant requested more precise instructions. The jury were correctly told that the rights retained by the land owners were subject to the right of the corporation to use the land for-the purposes of the road.
5. The jury were instructed that railroad corporations, [378] when their road passes through a tract of land, are not bound to provide suitable crossings for the land owner, but he must provide them for himself, and consequently is to be allowed for this expense, in the assessment of damages.
It is said that where a railroad corporation interrupts the communication between the different parts of a man’s land, it is not such an obstruction of a “ private way” that the corporation must provide the owner a substitute. Technically, there is some difficulty in having a “ private way” over one’s own land, and it would be especially difficult to recognize it where the owner is not accustomed to use any particular track, but to cross wherever he finds it most convenient. There is, however, room for question whether the term “ private way,” in railroad charters, is not used in a more common and liberal acceptation than the charge of the court implies; and whether it does not apply to all cases where the road interrupts the communication between the different parts of one’s land, so that the corporation will be obliged to construct suitable crossings at proper places, for the use of the land owner. This is a point not free from doubt, but need not be considered. The charge of the court was sufficiently favorable to the appellant in this particular. If there was any error, its effect would be to increase the damages he was to receive.
The instruction that if the corporation should construct upon the land taken crossings for the use of the land owner, they became his property, and could not be removed by the corporation unless it should become necessary to do so for the improvement of the road, and that the jury might consider and allow the expense of such crossings in assessing damages, we think was substantially correct. The damage 'to the land owner, by the interruption, depends much upon ¡the manner in which the railroad is built. Admitting that 'he must construct his own crossings, his damages will be more or less, according as the construction of the road makes the construction of the crossings more or less expensive ; and [379] if the road is so built that the land owner is at no expense for a crossing he can have no damages on that account. The only question then is as to the right of the company to remove such crossings erected by them. And we think they are like any other fixture placed upon the land of another for his benefit, and which cannot be removed without his consent. Especially would this be the result, when the erection of such crossings had been considered in the award of damages. If at the time of the original award, from which the appeal was taken, no such crossings had been constructed, it would be somewhat questionable, even if the corporation were not bound to provide crossings at their own expense, how far crossings made without the assent of the appellant, after the award, and especially after the appeal taken, could be considered in estimating the damages. But no such question is presented by the case as drawn, or has been raised upon the argument. The instruction which we are considering would seem to imply that, at the time of the trial, a crossing had been constructed; while the exception, and the instruction as to the testimony of the engineer, as strongly imply that, at that time, the road was not finished nor the crossings made. Perhaps there were several crossings. There is nothing, however, calling upon us for any expression of opinion upon the point suggested.
6. The instructions of the court as to the obligation of railroad corporations to provide suitable culverts and bridges, were correct. A railroad corporation has no right to interrupt or divert the natural flow and course of the water; to cut it off from those below, or to flow it back upon those above, their road. They must provide by culverts, bridges and other means that the water may flow uninterruptedly in its accustomed channels; and if they neglect so to do, they are liable to the party injured, in an action for damages. Towns, in the construction and repair of highways, are under the same obligations and subject to the same liabilities. If, however, it should be found impracticable in [380] any particular case to construct a railroad without obstruct" ing the natural course of a stream of water, private interest must then yield to public necessity, but compensation must be made to the sufferer. A railroad corporation have no more right to cover one’s land with water, without compensation, than they have to cover it with the' earth and rocks and rails of their track. They can no more take from an individual a stream of water, without compensation, than they can take the soil which he cultivates. And if they obstruct the natural flow of water, to the injury of another, without first making compensation, they are trespassers and wrong doers, and liable accordingly.
7. The amount awarded by the commissioners having been tendered to the appellant, be is not entitled to be allowed interest on that sum. The tender was necessary to authorize the construction of the road. If the appellant refused it, and took his appeal for the purpose of recovering larger damages, he did it at his own risk; and having failed to increase his damages, he cannot be allowed interest upon the amount tendered.
Judgment on the verdict.