RodMAN, J.
I. The Judge below was of opinion that the rule for the measure of damages to an owner of land condemned for the use of the railroad, prescribed in the charter of the company, (Private Acts 1862-’63, chap.'26, sec. 7,) was different from, and controlled, that prescribed by the general law, (Bat. Rev., chap. 99, sec. 16,) and lie directed the jury in assessing the damages, to consider and deduct therefrom the benefits of the road to the defendant’s land. This opinion of the Judge was adverse to the defendant, and as he has not appealed, no question upon it comes to us for decision.
As the question, however, is of general importance and will necessarily arise upon a new trial, it may be useful to make some observations upon the opinion of the Judge on this point, although they are not necessary to a decision of the case.
It is an admitted rule that all special grants of special benefits and privileges, whether to corporations or to individuals, contrary tq the general law, are to be strictly construed, and will not be enlarged against the public by intendment. All such grants must be interpreted with and in subordination to the general law, unless it clearly appears that the Legislature intended to depart from the general law and to repeal it as-respects the particular grantee, and to confer on him peculiar privileges. An illustration of this rule of interpretation is found in
State
v. Krebbs, 64 N. C. Rep., 604.
The rule with respect to the assessment of damages to land taken for railroads upon the point under consideration, is settled in this State,
Freedle
v. N.
C. R. R. Co.,
4 Jones, 89, and has been recognized in so many States that it may now be taken as the general law of the United States. Cooley Con. Lim., 565;
Swaze
v.
N. J. Midland R. W. Co.,
N. J., 297;
Walker
v.
Old Colony, &c., R. W. Co.,
103 Mass., 10;
Elizabeth Town, &c., R. R. Co.,
v.
Helm,
8 Bush. 681, (Ky.);
Lee
v.
Tebo, &c., R. R. Co..
63 Mo., 178.
The rule, as gathered from the cases cited, is this: The jury shall not deduct from, or set off against, the damages special to the land, a part of which is taken, any benefits arising from the railroad under construction which are common to the owner and to all other persons in the vicinity, but may deduct or set off any benefits peculiar to the land. The charter may, without violence, be interpreted as meaning tO' express this rule, and if it does, it is in conformity to the gen eraf law.
II. It is difficult to reconcile all the cases in which it is attempted to declare more particular rules for estimating damages in cases like the present. The following are consistent with the current of authority, and seem just and reasonable. The land owner is entitled to the market value of the land taken by the company. In addition to this, he is entitled to> any damage accruing to the part not taken, by reason of its being separated into two sections by the road, under which will be considered the difficulty of getting to one from the other by reason of the elevation or depression of the road bed, and of the piles of earth and stone along the line of the road; the inconvenience, if any, of having a tract cut up into small or irregular sections; that arising from the deflection of the-public road crossing the railroad from its accustomed crossing-place to another one, and all other injuries incidental to the-, taking of the land. That these were properly to be con-considered in the estimation, does not seem to have been a. dispute on the trial. The jury were at liberty to consider-them under the instructions given by the Judge, and they seem to have done so.
There are three sources or grounds of damage which the Judge instructed the jury that they might consider, in respect to which his instructions are excepted to:
• ■ 1. The expense of the additional fencing made necessary by tiie road.
Every planter of cultivated land is required to keep it enclosed by a sufficient fence, and if the road makes necessary additional fencing to enclose the cleared land of the defendant, it is to be considered in estimating the damages to him from the road.
Freeale v. N.C. R. R. Co., ub. sup.
If by reason of the steepness of the railroad cut or embankment, prohibiting the access of cattle from the land occupied by the company, no additional fencing is made necessary, of course nothing will be allowed on that account.
As to the expense of fencing uncleared or uncultivated land, that should not be taken into consideration. The owner is not required by law to enclose such land, and it is not usually done. No damage in this respect is done to the land in its present condition, and any damage by reason of the necessity of fencing, in case the land shall at any future time be •cleared, is too remote and uncertain to be capable of estimation. Moreover, the Legislature has thought proper not to ■impose on railroads in this State, the duty of fencing their lines of road. If, however, it should be held that every owner •of wild land through which the road passes could recover as damages the cost of such fencing, a heavier burden would be imposed on the companies than if they were required to make -the fences themselves. And as the fences would rarely be built, neither the company nor the public would receive the benefit which their erection is intended to secure. With this ■qualification we concur with his Honor as to this element of the damages.
- III. The Judge instructed the jury that they might consider the ponding of water on the land of the defendant. In
Walker
v.
Old Colony, &c., R. W. Co ,
103 Mass., 10, a distinction is taken between cases in which the ponding is caused by the obstruction of a natural or artificial drain way; and
where it is caused by the alteration of the previous grade or slope of the land, by which the surface water on defendant’s land is prevented from running off as it was accustomed to do. In tiie first of these cases, it is held that the resulting damage should not be estimated in measuring the compensation to the land owner; but that in the second it should be. The distinction at first sight may seem over refined and unreal. But on reflection, it will be found to be a substantial one. In the first of these cases, it is the duty of the company in constructing its road bed to leave a space sufficient for the discharge of the water through its accustomed drain way, whether natural or artificial. If it fails to do so, any owner whose land is injured, whether he bo one a part of whose land is taken for the road or not, may compel the company to discharge its duty by opening the drain to its previous capacity. And so if the obstruction causes a nuisance, the corporation may be compelled to abate it. If the damage to the land of the defendant from this cause should' be assessed to him, the corporation would acquire against, him a right to- pond his land perpetually, but not against any adjoining or other person injured, or against the public if it creates a nuisance. These might deprive the corporation of its use of the defendant’s lands by reason of their right to compel it to open the drain.
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RodMAN, J.
I. The Judge below was of opinion that the rule for the measure of damages to an owner of land condemned for the use of the railroad, prescribed in the charter of the company, (Private Acts 1862-’63, chap.'26, sec. 7,) was different from, and controlled, that prescribed by the general law, (Bat. Rev., chap. 99, sec. 16,) and lie directed the jury in assessing the damages, to consider and deduct therefrom the benefits of the road to the defendant’s land. This opinion of the Judge was adverse to the defendant, and as he has not appealed, no question upon it comes to us for decision.
As the question, however, is of general importance and will necessarily arise upon a new trial, it may be useful to make some observations upon the opinion of the Judge on this point, although they are not necessary to a decision of the case.
It is an admitted rule that all special grants of special benefits and privileges, whether to corporations or to individuals, contrary tq the general law, are to be strictly construed, and will not be enlarged against the public by intendment. All such grants must be interpreted with and in subordination to the general law, unless it clearly appears that the Legislature intended to depart from the general law and to repeal it as-respects the particular grantee, and to confer on him peculiar privileges. An illustration of this rule of interpretation is found in
State
v. Krebbs, 64 N. C. Rep., 604.
The rule with respect to the assessment of damages to land taken for railroads upon the point under consideration, is settled in this State,
Freedle
v. N.
C. R. R. Co.,
4 Jones, 89, and has been recognized in so many States that it may now be taken as the general law of the United States. Cooley Con. Lim., 565;
Swaze
v.
N. J. Midland R. W. Co.,
N. J., 297;
Walker
v.
Old Colony, &c., R. W. Co.,
103 Mass., 10;
Elizabeth Town, &c., R. R. Co.,
v.
Helm,
8 Bush. 681, (Ky.);
Lee
v.
Tebo, &c., R. R. Co..
63 Mo., 178.
The rule, as gathered from the cases cited, is this: The jury shall not deduct from, or set off against, the damages special to the land, a part of which is taken, any benefits arising from the railroad under construction which are common to the owner and to all other persons in the vicinity, but may deduct or set off any benefits peculiar to the land. The charter may, without violence, be interpreted as meaning tO' express this rule, and if it does, it is in conformity to the gen eraf law.
II. It is difficult to reconcile all the cases in which it is attempted to declare more particular rules for estimating damages in cases like the present. The following are consistent with the current of authority, and seem just and reasonable. The land owner is entitled to the market value of the land taken by the company. In addition to this, he is entitled to> any damage accruing to the part not taken, by reason of its being separated into two sections by the road, under which will be considered the difficulty of getting to one from the other by reason of the elevation or depression of the road bed, and of the piles of earth and stone along the line of the road; the inconvenience, if any, of having a tract cut up into small or irregular sections; that arising from the deflection of the-public road crossing the railroad from its accustomed crossing-place to another one, and all other injuries incidental to the-, taking of the land. That these were properly to be con-considered in the estimation, does not seem to have been a. dispute on the trial. The jury were at liberty to consider-them under the instructions given by the Judge, and they seem to have done so.
There are three sources or grounds of damage which the Judge instructed the jury that they might consider, in respect to which his instructions are excepted to:
• ■ 1. The expense of the additional fencing made necessary by tiie road.
Every planter of cultivated land is required to keep it enclosed by a sufficient fence, and if the road makes necessary additional fencing to enclose the cleared land of the defendant, it is to be considered in estimating the damages to him from the road.
Freeale v. N.C. R. R. Co., ub. sup.
If by reason of the steepness of the railroad cut or embankment, prohibiting the access of cattle from the land occupied by the company, no additional fencing is made necessary, of course nothing will be allowed on that account.
As to the expense of fencing uncleared or uncultivated land, that should not be taken into consideration. The owner is not required by law to enclose such land, and it is not usually done. No damage in this respect is done to the land in its present condition, and any damage by reason of the necessity of fencing, in case the land shall at any future time be •cleared, is too remote and uncertain to be capable of estimation. Moreover, the Legislature has thought proper not to ■impose on railroads in this State, the duty of fencing their lines of road. If, however, it should be held that every owner •of wild land through which the road passes could recover as damages the cost of such fencing, a heavier burden would be imposed on the companies than if they were required to make -the fences themselves. And as the fences would rarely be built, neither the company nor the public would receive the benefit which their erection is intended to secure. With this ■qualification we concur with his Honor as to this element of the damages.
- III. The Judge instructed the jury that they might consider the ponding of water on the land of the defendant. In
Walker
v.
Old Colony, &c., R. W. Co ,
103 Mass., 10, a distinction is taken between cases in which the ponding is caused by the obstruction of a natural or artificial drain way; and
where it is caused by the alteration of the previous grade or slope of the land, by which the surface water on defendant’s land is prevented from running off as it was accustomed to do. In tiie first of these cases, it is held that the resulting damage should not be estimated in measuring the compensation to the land owner; but that in the second it should be. The distinction at first sight may seem over refined and unreal. But on reflection, it will be found to be a substantial one. In the first of these cases, it is the duty of the company in constructing its road bed to leave a space sufficient for the discharge of the water through its accustomed drain way, whether natural or artificial. If it fails to do so, any owner whose land is injured, whether he bo one a part of whose land is taken for the road or not, may compel the company to discharge its duty by opening the drain to its previous capacity. And so if the obstruction causes a nuisance, the corporation may be compelled to abate it. If the damage to the land of the defendant from this cause should' be assessed to him, the corporation would acquire against, him a right to- pond his land perpetually, but not against any adjoining or other person injured, or against the public if it creates a nuisance. These might deprive the corporation of its use of the defendant’s lands by reason of their right to compel it to open the drain. Under a rule which should subject the corporation to damages in cases of this sort, it would pay for a right which it could never get. And even if the ponding were entirely on the land of the defendant, so that this result would not follow, and the corporation would ■obtain a perpetual right to flood the land; yet it is contrary to public policy to give to one not the owner of the soil, a right to reduce any land to perpetual uselessness, without necessity and without a corresponding benefit to any one.
The case of surface water is different. Every one has a right to build on or otherwise improve his own land, subject to certain equitable limitations which it is not necessary now
to state. If, as an incidental consequence of this lawful use, the flow of the surface water from adjoining land is obstructed, the owner of such land cannot recover damages as for a tort. Wood on Nuisances, s. 383; W
affle
v
N. Y. Central R.
R.
Co.,
(N. Y. S. C.) 421;
Rawstrou
v
Taylor,
11 Exch. 369.
As tire defendant could not hereafter compel the corporation to remove the surface water thus ponded on his land by the lawful construction of the road, he is entitled to have any incidental damage from that cause, assessed to him in measuring his compensation for the land taken.
The case does not show the nature of the ponding on defendant’s land. The instructions of his Honor on this point were too general and not therefore strictly correct. But as they were not excepted to on that special ground, we should not be disposed to sustain the exception and to grant a new trial on that ground alone.
3. His Honor instructed the jury that they might allow to the' defendant damages on account of the possibility that his cattle might be killed by the trains on the road. He had previously instructed them that they might allow damages from the necessity for additional fencing, and we have said how far in our opinion his instructions on that point were cor-i-ect. It is clear that if the defendant is allowed as damages the expense of additional fencing on his cultivated land for preventing his cattle from straying on the road, he ought not to- be also allowed damages for the danger which his cattle may incur by doing so. That is a risk which he has received an indemnity for. And it might be a question, whether if after having the expense of fencing allowed him, he should fail to maintain a fence, by reason of which failure his cattle strayed from his cleared land upon the tract of the road and were there run over, and the. cars thrown from the track and the corporation thereby damaged, it could not reco.ver damages from him for the neglect. It is said however, that admitting
that the defendant has been allowed compensation for the additional fencing of his cultivated land, he has been allowed none for fencing his wild land; that he has a right to graze Ms stock upon that, and that they may stray from there upon the road and be injured, and therefore he is entitled to be -compensated for this risk which has not been allowed foi’, and that although it is true that if the cattle straying upon the road are injured by the negligence of the corporation their owner can recover damages, yet some cattle may be killed without negligence in the corporation, and for the increased danger of this sort the land owner is entitled to compensation. The answer to this is, that the danger that the cars may injure cattle without negligence and consequently without liability to an action, is not peculiar to the land owner a part of whose land is taken. It is common to all who own cattle near the line of the road, whether a part of their land is taken for the road or not. It is clear that those persons, no part of whose land is taken, cannot recover anything for this danger of possible loss, and as the defendant is not required to abate the damage proper to him by reason of any benefits which he may derive from the road in common with the whole neighborhood, so he is not entitled to be compensated for any damages which are in like manner common, such as this we are considering, or such as may arise from smoke, noise, &c. In
Presbery
v.
Old
Colony. &c., N. C.
W.
Co., 103, Mass. 1, and
Elizabeth town, &c., R. R. Co.,
v.
Helm,
8 Bush. (Ky.) 681, the court says,
“
such depreciation is not occasioned directly by any effect upon the land of wlfieh the construction or the maintenance of the railroad is the cause. It belongs to that ■class of results which necessarily arise from the exercise of the franchise granted to such corporations in consideration of the general advantage which the whole community are expected to derive from it. The annoyances to the land owner are the same in kind, with those which are suffered by the whole community.”
We
think the Judge substantially erred in holding that the danger of injury to cattle was an element in the damages to which the defendant is entitled.
Pick Cubiam.
Venire de novo.