Hubbell, O. J.
This case presents several points of interest, both to the public and to the parties concerned; and it has been examined, with a corresponding degree of care and attention.
[355]*355"While admitting, however, that particular rights may be more important than others, it is not designed to be intimated that the rights and interests of all parties coming before this court for adjudication, are not equally sacred.' The law is the only rule and guide of the court. What the law authorizes or directs, must be enforced, as a legal right. Public and private rights, sanctioned by law, are equal; and by the law, is meant constitutional law. Should the legislature, in its discretion, pass an act, as the counsel for the defendant in error supposes it has done, in the present instance, which tolerates or permits the invasion of private rights it would be the duty of this court, to pronounce it unconstitutional. No rights could be acquired or maintained under such a law.
But when ah act is passed, in conformity to that controlling instrument, from which alike legislative and judicial powers are derived, this court would fail in its duty, and would forfeit all public respect, could it be induced to pause in any particular case, and look at the parties, whether natural persons or corporate bodies, or at their rights, whether public or private, in determining the extent to which such law should be maintained or such rights enforced. To all such invitations, we must reply: We have not so learned our duty.
The charter granted to the plaintiffs in error (Sess. Laws, 1847, p. 194), is the foundation of all their rights, and of most, if not all the rights of the defendant in error, which will come under examination in the present case. Much learning and research were exhibited by counsel, in refreshing the mind of the court upon general constitutional principles, relating to the exercise of the right of eminent domain, on one side, and the correlative rights of private persons, on the other. Very little difference of opinion probably exists upon these questions, and it would be immaterial if it did. The plaintiffs in error contend : 1. That the court below erred in instructing the jury “to estimate the value of the land of. the defendant in error, taken by the company, at the time of the appraisment by the [356]*356commissioners, and not at the time of the location of the road, and the actual taking possession of the track by the company.” And also in saying “ that a law authorizing possession by the company before actual payment of damages, would be unconstitutional.”
As there is no question with any member of this court, that the company’s charter required payment in fact, before any permanent occupation or possession could be had, and as the jury were so instructed, the general dictum of the judge, in regard to a law of a different character, was wholly immaterial. The other branch of the error assigned, requires an examination of several sections of the charter. The tenth section contains two distinct and important provisions, designed, as well as adapted, to accomplish distinct purposes. The first enables the company to explore, survey and locate the track of their road; and for that purpose, authorizing them, their agents, etc., to enter upon any land, “ doing thereto no unnecessary damage.” This purpose was temporary, and hence the right of entry was general, without provision for payment of any kind, and without restriction, except the doing of no unnecessary damage. It was a grant of license to enter upon private property, in as broad and general terms as the sovereign state .had power to confer it.
The second clause of the section authorizes the company, when the route is selected and determined, to take permanent possession thereof; and prescribes the manner and fixes the conditions upon which this may be done. It is as follows:
“ And when the said route shall be determined by the said company, it shall be lawful for them, their agents, etc., at any time to enter upon, take possession of, and use such lands, not exceeding four rods in width, along the line of said route, subject, however, to the payment of such compensation as the company may have agreed to pay therefor, or as shall be ascertained in the manner hereinafter directed and provided for in such cases, respectively.”
[357]*357Here is a general right to enter, to take possession, and to use, at anytime; but made subservient to and dependent upon payment for the land, either as “ the company may have agreed,” or as the charter subsequently specifies. This view of the subject is made clear and imperative, by the last clause of the eleventh section. In the preceding part, provision is made for an appraisement by commissioners, and an appeal from their report, by either party, to the circuit court; but to prevent the delay in the prosecution of the road, incident to the appeal and judgment thereon, by which title to the property is to be effected by the company, the act declares “ that upon the making and filing of any report, as aforesaid, and payment or legal tendér of the amount of any valuation or appraisal specified therein,'to the owner or owners of any such land, his, her, or their legal representatives, the said company, their agents, or the contractors, for making or repairing said railroad, may immediately take and use the same, without awaiting the issue of any appeal brought thereon.” This clause would be quite superfluous, if the right were conferred by the tenth section to enter and permanently occupy the lands, before any appraisal, and before the payment or tender of any part of the damages or value of the land. But construing both clauses together, it is quite manifest that the legislature intended to confer no right of possession, except for the mere examination and determination of the route, until after the actual payment or tender of such compensation as may have been agreed to be paid, or found and reported by the commissioners appointed under the act
1. As to the value of the land ; it has been already seen that this was to be a separate finding, not subject to deduction for benefits. The only case cited for the plaintiffs in error which bears against this construction is, Phil. & Wil. R. R. Co. v. Trimble, 4 Whar., 47, but the authority of that case, as applied to this question, is completely overborne by a case decided twelve years after by the same court, which strongly confirms [358]*358our construction. Ohio & Penn. R. R. Co. v. Wallace, 2 Harris, 245. See also 2 Harrison, 28; 1 Spencer, 234.
Two cases in New York and one in Indiana are cited to show that benefits may be deducted from the value ; but those cases go apparently upon statutes very different from this. Rut as the jury in this case found an excess of damages over benefits, the question whether the value of the land is subject to deduction cannot arise now.
2. As to the rule of benefits, the court was correct in charging that the common advantages to the neighborhood were not chargeable as benefits to the defendant in error, but only such as were peculiar to his land.
No case is cited, and it is believed that none can be found giving a different rule, except some loose and pernicious dicta in Railroad Co. v. Heister, 8 Barr, 450.
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Hubbell, O. J.
This case presents several points of interest, both to the public and to the parties concerned; and it has been examined, with a corresponding degree of care and attention.
[355]*355"While admitting, however, that particular rights may be more important than others, it is not designed to be intimated that the rights and interests of all parties coming before this court for adjudication, are not equally sacred.' The law is the only rule and guide of the court. What the law authorizes or directs, must be enforced, as a legal right. Public and private rights, sanctioned by law, are equal; and by the law, is meant constitutional law. Should the legislature, in its discretion, pass an act, as the counsel for the defendant in error supposes it has done, in the present instance, which tolerates or permits the invasion of private rights it would be the duty of this court, to pronounce it unconstitutional. No rights could be acquired or maintained under such a law.
But when ah act is passed, in conformity to that controlling instrument, from which alike legislative and judicial powers are derived, this court would fail in its duty, and would forfeit all public respect, could it be induced to pause in any particular case, and look at the parties, whether natural persons or corporate bodies, or at their rights, whether public or private, in determining the extent to which such law should be maintained or such rights enforced. To all such invitations, we must reply: We have not so learned our duty.
The charter granted to the plaintiffs in error (Sess. Laws, 1847, p. 194), is the foundation of all their rights, and of most, if not all the rights of the defendant in error, which will come under examination in the present case. Much learning and research were exhibited by counsel, in refreshing the mind of the court upon general constitutional principles, relating to the exercise of the right of eminent domain, on one side, and the correlative rights of private persons, on the other. Very little difference of opinion probably exists upon these questions, and it would be immaterial if it did. The plaintiffs in error contend : 1. That the court below erred in instructing the jury “to estimate the value of the land of. the defendant in error, taken by the company, at the time of the appraisment by the [356]*356commissioners, and not at the time of the location of the road, and the actual taking possession of the track by the company.” And also in saying “ that a law authorizing possession by the company before actual payment of damages, would be unconstitutional.”
As there is no question with any member of this court, that the company’s charter required payment in fact, before any permanent occupation or possession could be had, and as the jury were so instructed, the general dictum of the judge, in regard to a law of a different character, was wholly immaterial. The other branch of the error assigned, requires an examination of several sections of the charter. The tenth section contains two distinct and important provisions, designed, as well as adapted, to accomplish distinct purposes. The first enables the company to explore, survey and locate the track of their road; and for that purpose, authorizing them, their agents, etc., to enter upon any land, “ doing thereto no unnecessary damage.” This purpose was temporary, and hence the right of entry was general, without provision for payment of any kind, and without restriction, except the doing of no unnecessary damage. It was a grant of license to enter upon private property, in as broad and general terms as the sovereign state .had power to confer it.
The second clause of the section authorizes the company, when the route is selected and determined, to take permanent possession thereof; and prescribes the manner and fixes the conditions upon which this may be done. It is as follows:
“ And when the said route shall be determined by the said company, it shall be lawful for them, their agents, etc., at any time to enter upon, take possession of, and use such lands, not exceeding four rods in width, along the line of said route, subject, however, to the payment of such compensation as the company may have agreed to pay therefor, or as shall be ascertained in the manner hereinafter directed and provided for in such cases, respectively.”
[357]*357Here is a general right to enter, to take possession, and to use, at anytime; but made subservient to and dependent upon payment for the land, either as “ the company may have agreed,” or as the charter subsequently specifies. This view of the subject is made clear and imperative, by the last clause of the eleventh section. In the preceding part, provision is made for an appraisement by commissioners, and an appeal from their report, by either party, to the circuit court; but to prevent the delay in the prosecution of the road, incident to the appeal and judgment thereon, by which title to the property is to be effected by the company, the act declares “ that upon the making and filing of any report, as aforesaid, and payment or legal tendér of the amount of any valuation or appraisal specified therein,'to the owner or owners of any such land, his, her, or their legal representatives, the said company, their agents, or the contractors, for making or repairing said railroad, may immediately take and use the same, without awaiting the issue of any appeal brought thereon.” This clause would be quite superfluous, if the right were conferred by the tenth section to enter and permanently occupy the lands, before any appraisal, and before the payment or tender of any part of the damages or value of the land. But construing both clauses together, it is quite manifest that the legislature intended to confer no right of possession, except for the mere examination and determination of the route, until after the actual payment or tender of such compensation as may have been agreed to be paid, or found and reported by the commissioners appointed under the act
1. As to the value of the land ; it has been already seen that this was to be a separate finding, not subject to deduction for benefits. The only case cited for the plaintiffs in error which bears against this construction is, Phil. & Wil. R. R. Co. v. Trimble, 4 Whar., 47, but the authority of that case, as applied to this question, is completely overborne by a case decided twelve years after by the same court, which strongly confirms [358]*358our construction. Ohio & Penn. R. R. Co. v. Wallace, 2 Harris, 245. See also 2 Harrison, 28; 1 Spencer, 234.
Two cases in New York and one in Indiana are cited to show that benefits may be deducted from the value ; but those cases go apparently upon statutes very different from this. Rut as the jury in this case found an excess of damages over benefits, the question whether the value of the land is subject to deduction cannot arise now.
2. As to the rule of benefits, the court was correct in charging that the common advantages to the neighborhood were not chargeable as benefits to the defendant in error, but only such as were peculiar to his land.
No case is cited, and it is believed that none can be found giving a different rule, except some loose and pernicious dicta in Railroad Co. v. Heister, 8 Barr, 450. But it must be borne in mind that this doctrine, such as it is, is used in a state where it is held that under the grants from the Proprietor of Pennsylvania and from the state, every man has an express grant of six acres in one hundred for roads, which he holds in trust for the state, to be reclaimed at her will; and that compensation for lands taken for roads is a gratuity, Harvey v. Loyd, 3 Barr, 236, 242. In all other states, it is believed the decisions will be found confined to the particular benefits to the particular land. And this is the just rule. Lands, through which a railroad runs, are generally less benefited by the work than those lying near but not upon it. And it would be a peculiar injustice to make lands less benefited pay for the same benefits more largely conferred on others not liable to pay for them. Railroads may, and often do, confer large benefits on lands in the vicinity; but the railroad company, undertaking a public enterprise for private profit, ought not to be permitted to tax those whose lands they take by a compulsory process, for a common, public advantage.
The true rule of compensation was fairly stated by the court below, in instructing the jury “ to give the appellant so much [359]*359money as will make him as good as if the railroad had not been located on his land.” ° But the point does not arise on the testimony. There was no evidence given or offered, by the plaintiffs in error, on which the rule they claim could have applied.
3. As to fencing: the charter of the corporation does not oblige them to maintain any fence along the line of this railroad; consequently, that expense devolves on the adjacent land owner, and is a proper subject of compensation. All injuries and expenses consequent on the taking of the land, and the use of it for a railroad, are a proper subject for damages. Webber v. Eastern R. R. Co., 2 Met., 147; Dodge v. Essex, 3 Met., 380; Railroad Co. v. Yeiser, 8 Barr, 366, 375.
"With respect to the rule of damages here laid down for the jury, two grounds of objection were urged in argument: 1st. The allowance of anything for fences was improper; 2d. General as well as special benefits ought to have been taken into account. Now the railroad company were not required by their charter to fence the line of their track, but they were authorized to cut through the fields or forests of private persons, and take the land in their own way and time, subject only to the payment of “ the value of the land so taken or required, and the damages which the owner or owners thereof shall have sustained, or may sustain, by the taking of the same, over and above the benefits which will accrue to such owners from the construction of such railroad.” The expense of fencing the land which remained to the appellant was certainly no part of the value of the land taken ; and inasmuch as the necessity for such fencing was created by the company by their act of taking, the expense of erecting and maintaining a suitable fence along the line of the road across the appellant’s land, was properly included in his damages. The question whether any fence was necessary, and, if any, what kind of one, was properly left to the jury. As to the other ground of objection, it is true the charter furnishes no absolute rule for estimating benefits. The court must infer that a just and reasonable rule was [360]*360intended. If general benefits accruing to landholders from the construction of this extensive improvement were to be regarded, then those who are-subjected to a forced sale of their property to furnish the track, must suffer greater losses and inconvenience than the rest of the community. It is a poor argument to say the legislature had the constitutional power to inflict this injury upon particular individuals, and that it has happened in many other cases where private property was taken for public use. The question is, was such the design of the law making power in the present case? It is believed not. It is due to the legislative wisdom of the state, to impute to it a design in accordance with general principles of justice and equity ; and such a design is consistent only with the limiting of the benefits, to be set off against damages, to such special advantages as each proprietor shall be found to have derived from the making of the road across his land. Looking at the entire clause of the charter, I think we must arrive by construction at the same conclusion. We must hold that the phrase, “ the construction of the road,” as there used, does not mean the completion of the whole work, but the construction of that particular portion which occupied the appellant’s land. The benefits were to be deducted from the damages. In estimating damages, the jury were expressly limited to such as resulted from the taking of the appellant’s land, and it is but reasonable to suppose that general benefits were not to be offset against special damages. In every view of the case, the charge of the circuit judge upon this point must be held correct. But again: it is claimed that the court erred as to the rule of damages'and valuation. If it is intended that a separate and distinct valuation of the land was not required, then clear and definite language thrice repeated is without force and effect.
Beyond a question, the jury were first to estimate and determine the value of the land taken aud then further, the damages which the owner might sustain by the taking of the same.” And to preserve the constitutional rights of the indi[361]*361vidual- to compensation for his property thus taken for public use, the company were required to pay such value in full without deducting therefrom any portion of the benefits estimated or calculated to be likely to flow to him, from the construction of the road. This construction alone is consistent with the requirements of the constitution, and with the spirit and letter of the company’s charter.
3. The third and fourth assignments of error will'be considered together. (1.) The court erred, in admitting the opinion of witnesses, as to the effect of the construction of the road. (2.) The court erred in not allowing the witness to testify, as to the effect of the stream in leaving a fertilizing deposit.
The appellant proposed the following question: “ Can you state any reason why the running of the railroad track through the appellant’s farm makes it more or less valuable? ” Objection was made, that the witness should state facts, and should not be permitted to assign reasons, or give in evidence mere matters of opinion. This objection was overruled, and the witness permitted to answer the question. The court are referred to 7 Wend., 72, and 1 Chand., 178, 264 (2 Pin., 215, 284), for authorities sustaining this objection. We here have two cases in this court where the opinion of witnesses was asked upon matters of skill, and the questions were held improper because the witnesses were not experts. The case in Wendell is where the questions were held improper, because it “ was not a matter of skill or science, so as to justify this species of evidence.” The rule is universal, that mere opinion cannot be received except when given by experts, in the proper cases. But this rule must not be so construed as to exclude all the results of reason, judgment and observation on the part of a witness; the answers given by the witness in the present case illustrate the rule. He stated that the land would require more fencing, on account of the railroad; and the .fences, if crooked, would cover part; that there is a waste with any fence; a part of the way along the railroad line the fence would float [362]*362off; thinks about three-eighths of the way; a post and board fence would be most secure; the materials or wood would cost from fifty to sixty cents for every twelve feet; the putting up would cost ten cents per rod.” Now, these are all legitimate reasons why the location of the railroad on the appellant’s farm would make it less valuable. They are not statements strictly of existing facts, but of facts blended with the deduction of common sense and observation applied to the matter in question ; and hence they are not mere matters of opinion. The jury were to find whether the appellant’s farm had or had not received damage; and, if any, how much ? They were to to make up an opinion founded on the evidence. This evidence was the best, in the nature of things, which could be had. It was well adapted to shed light on the subject, and enable the jury to form a correct opinion; and hence it was competent and proper, and was properly allowed.
' The other objection arises upon a question put by the ap-pellees, and excluded by the court. In the bill of exceptions it is thus stated: ‘'Charles Hart, being called in behalf of the defendant below, testified that he was acquainted with the land, and the flow of the stream spoken of. Whereupon the counsel for the plaintiff in error put the following question to the witness : ‘ Would the flowing of the water upon the land, and its being stopped by the railroad, have a tendency to convey the alluvium and to enrich the land ? ’ To which question the defendant in error objected. The objection was sustained,” etc. A majority of the court think the judge below erred in supposing this question called for a mere opinion, and hold that the answer of the witness was admissible under the rule already laid down. Yielding to their better judgment, I have concurred in the result, which is, that the judgment of the circuit court must, for this error, be reversed with costs.
Judgment reversed.
Mote. — A railway company cannot enter upon and permanently occupy land owned by a private person without first having had the compensation [363]*363to he paid therefor ascertained by some legal proceeding and tendered to the owner. Shepardson v. Mil. S Bel. R. R. Co., 6 Wis., 605; Robbins v. Mil. & Hor. R. R. Co., 6 id., 686; Powers v. Bears, 12 id., 213; Loop v. Chamberlain, 20 id., 135; Bohlman v. Green Bay & Lake Pepin R’y Co., 30 id., 105.
The mode prescribed in the charter is the only one to be pursued. Pettibone v. La Crosse & Mil. R. R. Co., 14 Wis., 443; Ford v. Chicago & N. W. R. R. Co., id., 609. See Davis v. La Crosse & Mil. R. R. Co., 12 id., 16.
Principles upon which compensation is to be ascertained, and for what deductions may be made from damages, as benefits. See Robbins v. Mil. & Hor. R. R. Co., 6 Wis., 636; Bigelow v. West Wisconsin R’y Co., 27 id., 478; Welch v. Mil. & St. Paul R'y Co., id., 108; Thompson v. Mil. & St. Paul R’y Co., id., 93; Price v. Mil. & St. Paul R’y Co., id., 98.
Title to lands taken vest, when the amount of compensation to be paid has been ascertained, in the mode prescribed by the charter, and the amount has been paid or tendered. No deed is necessary. La Crosse & Mil. R. R. Co. v. Seeger, 4 Wis., 268.
The necessity of taking land for the purposes of its track, and the question whether one strip shall be taken rather than another, are not judicial questions, but are committed entirely to the discretion of the company. Ford v. Chicago & N. W. R’y Co., 14 Wis., 609.