Bradley Parkhurst, for the defendant, in support of the motion. I. Land taken for public use should be appraised at its value, independent of the effect upon it of the proposal to take it for such purposes, and also independent of the effect upon it caused by taking adjacent land for the same purpose. Cooley's Const. Lim. 565; Giesy v. C.W. Z.R.R. Co. 4 Ohio State, 308; Pacific R.R. Co. v. Chrystal, 25 Mo. 544; Woodfolk v.Nashville R.R. Co. 2 Swan, 422; Alabama Florida R.R. Co.
v. Burkett, 42 Ala. 83; Parks v. Boston, 13 Pick. 198;Henry v. Dubuque R.R. Co. 2 Iowa, 288; Troy Boston R.R.Co. v. Lee, 13 Barb. 169; Canandaigua Niagara Falls R.R.Co. v. Payne, 16 Barb. 273; In re Furman Street, 17 Wend. 649; Richmond Lexington R.R. Co. v. Rogers, 1 Duvall, 135;Somerville R.R. Co. v. Doughty, 2 Zab. 495; Isom v. Miss.Central R.R. Co. 36 Miss. 300; Deaton v. County of Polk, 9 Iowa, 596; Israel v. Jewett, 29 Iowa, 476; Sater v.Burlington Mount Pleasant Plank Road, 1 Iowa, 386; Penn.R.R. Co. v. Heister, 8 Pa. State, 443; Weston v. PittsburgR.R. Co. 39 Pa. State, 478; Henricton v. Atlantic G.W.R.R.Co. 51 Pa. State, 90; Schuylkill Navigation Co. v. Thoburn,
7 S. R. 415; Harvey v. Lackawanna Bloomsburg R.R. Co. 11 Pa. State, 434; Meacham v. Fitchburg R.R. Co. 4 Cush. 291;Upton et al. v. South Reading Branch R.R. Co. 8 Cush. 600;Dwight et al. v. County Commissioners of Hampden, 11 Cush. 201; Battey, Executor, v. Holbrook, 11 Gray, 212.
II. The evidence of Mr. Bailey, that he and others had appraised land at threefold the former price of same, because in his opinion and that of his co-appraisers the land had been thus enhanced in value in consequence of the location of a water reservoir, other than the one in question in the vicinity of the land so appraised, was inadmissible, because it was res interalios acta, and would oblige parties to try another case in this, and because a single opinion expressed in a private appraisal, of the effect of some other reservoir upon some other land, is not evidence of the general effect of such locations, and because there was no pretence that Mr. Bailey was an expert upon such subjects.
The evidence was material in connection with the admitted fact that the effect of the location of such water-works upon the value of adjoining lands was allowed by the judge to be considered by the jury as a proper element in the assessment of damages, and was, from the nature of the case, the controlling element in the assessment of value; and still further, because the judge stated to the jury that such location enhanced such property as stated by the witness threefold its former value.Somerville R.R. Co. v. Doughty, 2 Zab. 495.
James Tillinghast, for the plaintiff, contra. I. The testimony objected to in the exception allowed was entirely relevant and pertinent to the issue.
II. The affidavits do not show any exception taken in the matters there referred to. Those matters are not therefore now before the court for review. But if they were, the ruling complained of was entirely right and eminently just. This farm — the whole of which was taken — was not seized till seven months after the reservoir had been located, and nearly fifteen months after the popular vote to take the supply of water from the Pawtuxet River; and all the cases agree that where the whole land is taken, the owner is entitled to its full fair market value atthe time it is taken, whatever may have contributed to make up that value, — even although derived in part from the fact that the particular improvement for which it is taken is contemplated.A fortiori where, as here, the improvement itself has for months preceded the seizure. Dillon's Munic. Corp. §§ 487, 488;Vanblaricum v. State, 7 Blackf. 209; Giesy v. C.W. Z.Railroad Co. 4 Ohio State, 308; Whitman v. Boston MaineR.R. Co. 7 Allen, 313; Parks v. Boston, 15 Pick. 208, 209;Somerville Eastern R.R. Co. v. Doughty, 2 Zab. 503;Meacham v. Fitchburg, 4 Cush. 299.
Two exceptions are taken in this case. First. That the evidence of Mr. Bailey that he and others, who had been appointed to divide an estate, had appraised certain land at three times its former value, because its value had been enhanced by the location of a reservoir in its neighborhood, was improperly admitted. The witness was not offered in this case as an expert to give an opinion, but merely to state a fact; and we think it was within the discretion of the judge to admit it.
The second and most important exception is, that the judge was requested to charge, "that its fair market value in cash, at the time it was taken, must be paid to the owner; and the jury in assessing the amount have no right to consider or make use of the fact that it has been increased in value by the proposal or construction of the improvement," but he declined to charge in those words. The first part of the request was substantially charged by the court. We think the latter clause of the request objectionable from its ambiguity and want of precision. In the present case it is to be remarked that the contemplated improvement had been located and actually constructed, or nearly so, before this land was taken, and it seems to be assumed that this
construction has added to the value of the property taken; and the question is, who is to have the benefit of this increase in value. Now if the request is to be considered as meaning that whether a part or the whole of a man's land is taken, the jury are not to consider at all any increased value from proposed improvement, but are to value it as if no such improvement had ever been suggested, then the proposition is too broad and unjust to the land-owner. The market value of land is made up of a great many items, — its productiveness, its pleasantness, its nearness to markets, mills, or even a mill privilege not yet occupied, c. The expectation or certainty to a reasonable intent that a highway or railroad will be called for by the public interest, and that from the physical confirmation of the country it must follow a certain route, adds an appreciable value to the land along the probable route. To take an instance: the knowledge that the western trade must have a route to the Atlantic, that the city of Baltimore would contend for this trade, and that the only practicable route for a canal or railroad to bring that trade to Baltimore, was by the way of the narrow pass at Harper's Ferry, would for years before such an improvement was made add an appreciable value to all the land near that pass, and would be taken into consideration by every one who bought and sold. This may be an extreme case, because there was only one possible route, but it is still a fair illustration of what takes place in a less degree in other localities. In purchasing land in our new states, the fact that before long a railroad must be made, to accommodate the business of particular sections, is taken into consideration by everybody in purchasing.
Says Judge Dillon (Munic.
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Bradley Parkhurst, for the defendant, in support of the motion. I. Land taken for public use should be appraised at its value, independent of the effect upon it of the proposal to take it for such purposes, and also independent of the effect upon it caused by taking adjacent land for the same purpose. Cooley's Const. Lim. 565; Giesy v. C.W. Z.R.R. Co. 4 Ohio State, 308; Pacific R.R. Co. v. Chrystal, 25 Mo. 544; Woodfolk v.Nashville R.R. Co. 2 Swan, 422; Alabama Florida R.R. Co.
v. Burkett, 42 Ala. 83; Parks v. Boston, 13 Pick. 198;Henry v. Dubuque R.R. Co. 2 Iowa, 288; Troy Boston R.R.Co. v. Lee, 13 Barb. 169; Canandaigua Niagara Falls R.R.Co. v. Payne, 16 Barb. 273; In re Furman Street, 17 Wend. 649; Richmond Lexington R.R. Co. v. Rogers, 1 Duvall, 135;Somerville R.R. Co. v. Doughty, 2 Zab. 495; Isom v. Miss.Central R.R. Co. 36 Miss. 300; Deaton v. County of Polk, 9 Iowa, 596; Israel v. Jewett, 29 Iowa, 476; Sater v.Burlington Mount Pleasant Plank Road, 1 Iowa, 386; Penn.R.R. Co. v. Heister, 8 Pa. State, 443; Weston v. PittsburgR.R. Co. 39 Pa. State, 478; Henricton v. Atlantic G.W.R.R.Co. 51 Pa. State, 90; Schuylkill Navigation Co. v. Thoburn,
7 S. R. 415; Harvey v. Lackawanna Bloomsburg R.R. Co. 11 Pa. State, 434; Meacham v. Fitchburg R.R. Co. 4 Cush. 291;Upton et al. v. South Reading Branch R.R. Co. 8 Cush. 600;Dwight et al. v. County Commissioners of Hampden, 11 Cush. 201; Battey, Executor, v. Holbrook, 11 Gray, 212.
II. The evidence of Mr. Bailey, that he and others had appraised land at threefold the former price of same, because in his opinion and that of his co-appraisers the land had been thus enhanced in value in consequence of the location of a water reservoir, other than the one in question in the vicinity of the land so appraised, was inadmissible, because it was res interalios acta, and would oblige parties to try another case in this, and because a single opinion expressed in a private appraisal, of the effect of some other reservoir upon some other land, is not evidence of the general effect of such locations, and because there was no pretence that Mr. Bailey was an expert upon such subjects.
The evidence was material in connection with the admitted fact that the effect of the location of such water-works upon the value of adjoining lands was allowed by the judge to be considered by the jury as a proper element in the assessment of damages, and was, from the nature of the case, the controlling element in the assessment of value; and still further, because the judge stated to the jury that such location enhanced such property as stated by the witness threefold its former value.Somerville R.R. Co. v. Doughty, 2 Zab. 495.
James Tillinghast, for the plaintiff, contra. I. The testimony objected to in the exception allowed was entirely relevant and pertinent to the issue.
II. The affidavits do not show any exception taken in the matters there referred to. Those matters are not therefore now before the court for review. But if they were, the ruling complained of was entirely right and eminently just. This farm — the whole of which was taken — was not seized till seven months after the reservoir had been located, and nearly fifteen months after the popular vote to take the supply of water from the Pawtuxet River; and all the cases agree that where the whole land is taken, the owner is entitled to its full fair market value atthe time it is taken, whatever may have contributed to make up that value, — even although derived in part from the fact that the particular improvement for which it is taken is contemplated.A fortiori where, as here, the improvement itself has for months preceded the seizure. Dillon's Munic. Corp. §§ 487, 488;Vanblaricum v. State, 7 Blackf. 209; Giesy v. C.W. Z.Railroad Co. 4 Ohio State, 308; Whitman v. Boston MaineR.R. Co. 7 Allen, 313; Parks v. Boston, 15 Pick. 208, 209;Somerville Eastern R.R. Co. v. Doughty, 2 Zab. 503;Meacham v. Fitchburg, 4 Cush. 299.
Two exceptions are taken in this case. First. That the evidence of Mr. Bailey that he and others, who had been appointed to divide an estate, had appraised certain land at three times its former value, because its value had been enhanced by the location of a reservoir in its neighborhood, was improperly admitted. The witness was not offered in this case as an expert to give an opinion, but merely to state a fact; and we think it was within the discretion of the judge to admit it.
The second and most important exception is, that the judge was requested to charge, "that its fair market value in cash, at the time it was taken, must be paid to the owner; and the jury in assessing the amount have no right to consider or make use of the fact that it has been increased in value by the proposal or construction of the improvement," but he declined to charge in those words. The first part of the request was substantially charged by the court. We think the latter clause of the request objectionable from its ambiguity and want of precision. In the present case it is to be remarked that the contemplated improvement had been located and actually constructed, or nearly so, before this land was taken, and it seems to be assumed that this
construction has added to the value of the property taken; and the question is, who is to have the benefit of this increase in value. Now if the request is to be considered as meaning that whether a part or the whole of a man's land is taken, the jury are not to consider at all any increased value from proposed improvement, but are to value it as if no such improvement had ever been suggested, then the proposition is too broad and unjust to the land-owner. The market value of land is made up of a great many items, — its productiveness, its pleasantness, its nearness to markets, mills, or even a mill privilege not yet occupied, c. The expectation or certainty to a reasonable intent that a highway or railroad will be called for by the public interest, and that from the physical confirmation of the country it must follow a certain route, adds an appreciable value to the land along the probable route. To take an instance: the knowledge that the western trade must have a route to the Atlantic, that the city of Baltimore would contend for this trade, and that the only practicable route for a canal or railroad to bring that trade to Baltimore, was by the way of the narrow pass at Harper's Ferry, would for years before such an improvement was made add an appreciable value to all the land near that pass, and would be taken into consideration by every one who bought and sold. This may be an extreme case, because there was only one possible route, but it is still a fair illustration of what takes place in a less degree in other localities. In purchasing land in our new states, the fact that before long a railroad must be made, to accommodate the business of particular sections, is taken into consideration by everybody in purchasing.
Says Judge Dillon (Munic. Corp. § 487), the fair value of the property "includes, and justly so, the full value at the time it is taken, no matter what may have caused that value, and although it may have shared with other property in the benefits of the proposed improvement."
Most of the cases which discuss the subject of these benefits, or that increase in value which land taken shares in common with all the land around it, have related to the question whether any such benefit or increased value shared be set off against or deducted from the value of the land taken.
If the request to charge means only that the jury are not to
undertake to speculate on the future, and to calculate the increase of business or value which might accrue to the land taken from the proposed improvement, then it would be unobjectionable; if on the other hand it means that the jury are to exclude all consideration of any increase of value, which owners may have rightfully expected from any agitated or future possible improvement, or from any improvement determined on, then it is objectionable, because it excludes one of those elements which enter into the estimate of value of land everywhere. The jury, while on the one hand they should not attempt to speculate on it, on the other hand should not attempt to fix a value irrespective of such proposed improvement. In other words, if the probability of the making of certain roads or certain improvements has entered into and made a part of the value, and which a purchaser would have paid for it, the jury should not undertake to calculate that portion of the value and exclude it.
Where a part of the land is taken, there is no difficulty as to the rule; and where the whole is taken, we think there ought to be none; but the remarks we have made may aid us in deciding the present case, the peculiarity of which is that a public improvement was determined on and a quantity of land taken, but no land belonging to the present complainants, and sometime afterwards the commissioners of the water-works decided that it was necessary to take more land, viz., the land now in question. The question is, is the value to be estimated at the time of the location of the works, or at the time the land is condemned? Obviously the latter, otherwise this gross injustice would ensue, if the first location had increased the value of the land in the neighborhood, and the then owner sold for this increased value, and the land was subsequently condemned, the purchaser would lose the difference. Upon any principle of justice, the person whose land is taken, whether in whole or in part, should be no worse off than his neighbors whose land is not taken, otherwise he does not receive that just compensation the Constitution provides for.
"The transaction (says Judge Dillon, § 487) is a compulsory purchase, the compulsion, however, coming from the public; and the amount to which the owner is entitled is not simply the value of the property at a forced sale, but such sum as the property is
worth in the market, if persons desiring to purchase were found, who were willing to pay its just and full value and no more." Same rule in Somerville, c. R.R. Co. v. Doughty, 2 Zab. 495.
But, says counsel for the city, in effect, we have caused this increase in the value of this land, and we should be entitled to the benefit of it. A man who builds an expensive house on one of a number of city lots thereby adds to the marketable value of all the adjoining lots. But he does not do it at the request of the owners of those lots, or with any special view to benefit them. And if afterwards he should desire to purchase one of those adjoining lots, he could with no justice claim any deduction for the increased value he had given to it. So here the city improvement has probably added to the value of all the neighboring land. It is a necessary consequence of the improvement. Why should the owner of the land now taken be deprived of the benefit which he has received from this increase of value, more than the owners of the other neighboring land? We must therefore conclude that in case of land taken subsequently to the erection of a railroad or improvement, from a person, none of whose land had been taken before, the rule must be the value at the time of taking, of whatever items it might be composed, the same which other persons would give for it in the market; and in no case are we to consider on the one hand the necessity of taking it, nor on the other any attachment to the land or unwillingness to sell, growing out of local or family associations.
New trial denied.
After the rendition of the foregoing opinion the case came up again on the respondent's application for a rehearing.