The opinion of the court was delivered by
Dixon, J.
Under “An act to enable street car or horse-railroad companies to provide better accommodation to the-[539]*539public by using what is now known as the cable system for motive power on elevated railroads,” approved March 26th, 1886 (Pamph L., p. 126), the North Hudson County Railroad Company obtained the appointment of commissioners to examine and appraise the easement and right of passage over-Oakland avenue, Jersey City, in front of two city lots, with apartment houses erected thereon, situate on the westerly side-of said avenue, and belonging to the plaintiff in error. The-railroad to be constructed was to be elevated at least thirteen feet in the clear above the street, to be supported by pillars set on each side of the avenue, not less than thirty feet apart longitudinally, and to have double tracks, over which passenger cars were to be drawn by a wire cable, put and kept in motion by stationary steam power located near the intersection of Palisade and Ravine avenues.
The commissioners appraised the value of the easement and right of passage at $25, and assessed the damages of the plaintiff at $20. The plaintiff thereupon appealed to the-Circuit Court of Hudson county, where an issue was framed,, a jury trial had, a verdict rendered for a somewhat larger aggregate of value and damages, and a judgment entered therefor, with costs, in favor of the plaintiff.
To review questions of law decided during that trial, the plaintiff has sued out the present writ of error. The defendant moves to dismiss the writ, on the ground that it will not lie in such a case.
Our constitution (art. VI., § 5, ¶ 3) declares “ that final: judgments in any Circuit Court may be brought by writ of error into the Supreme Court, or directly into the Court of Errors and Appeals.” The statute already mentioned requires the Circuit Court to enter judgment on the verdict of the jury and to award execution thereon ; the judgment so entered is-therefore final. It follows, from the very words of the constitution, that the writ of error was lawfully issued.
The same conclusion must be reached from previous-, decisions in this court. A writ of error will run from this-court to the Supreme or Circuit Court to bring up any decision [540]*540therein which is final, in the nature of a final judgment, and which has not proceeded from a matter resting in discretion. Eames v. Stiles, 2 Vroom 490; Adams v. Disston, 15 Id. 662.
We proceed, then, to consider the alleged errors :
The assignments of error mainly relied on by the plaintiff relate to the rulings of the court touching the measure of •damages, the plaintiff contending that the jury were required to set off benefits to land not taken against the damages ¡arising from the taking.
The benefits which may accrue to a landowner, by reason •of the construction and operation of a railroad across his land, are usually regarded as consisting of two classes: gen•eral benefits, being those which affect the whole community or (neighborhood, by increasing the facility of transportation, attracting population, and the like; and special benefits, being those which directly increase the value of the particular tract ■crossed, as if a cut required by the railroad should drain a swamp, or a necessary embankment should maintain a mill pond, or if a bridge, which the railroad .company had to build, •should afford a better way between portions of the tract. ■
Of special benefits, there are none in the present case. No advantage could possibly enure to the property of the plaintiff from the construction and operation of this railroad, which would not in greater or less degree be enjoyed by the entire neighborhood. The plaintiff’s counsel, in their brief, justly say: “ It is perfectly clear that any enhancement of value to •property either on or off Oakland avenue, from this elevated railroad, must arise from increased facilities of travel. There is not the slightest suggestion of benefit from any other cause.” The first question for decision, then, is, whether it is true ■that the judge instructed the jury to set off general benefits against the damages.
The matter of benefits arose early in the trial, when counsel for the company was cross-examining a witness of the plaintiff, with the view of showing that the elevated road rendered the street safer for children than an existing surface railroad. On objection, the judge excluded the inquiry, [541]*541saying: “ The rule undoubtedly is, that general benefits are not to be considered. * * * I have no doubt that the general benefit has to be eliminated.” Afterwards the defendant’s counsel proposed to ask one of plaintiff’s witnesses,, whether increased facilities of travel would not benefit the-plaintiff’s property, and on objection, the judge said : “ It is in the line of the previous objection and ruling of the court. I am quite clear in excluding everything that touches the-question of general benefits.” On defendant’s counsel asking, “ Do I understand your Honor to mean to the property right on the line of the street where it goes through ? ” The judge replied, “Yes; anything that rises from the general benefit is, not to be counted in this investigation.” Subsequently several questions were put to the defendant’s witnesses for the-purpose of presenting the character and extent of the general benefits resulting from elevated roads, and they were overruled. Then, at the close of the evidence, the court charged the jury as to the nature of the easement they were to value,, and the injuries for which they were to assess damag.es, without mentioning benefits; but, when the plaintiff’s counsel requested the judge to charge the jury directly that they could not deduct from the damages what might be considered' a general benefit, he replied, “Yes; I do not consider it necessary to remark at length on the subject. I have referred to it so frequently during the trial of the cause that the jury must understand my views on the subject. It is about this r Where a structure of this sort incidentally confers a general benefit on the property in the vicinity, and you are to estimate-the damage done to one who is specially affected by it, that consideration of incidental benefit is not to be regarded, * * * these general and incidental benefits that come to all alike, either on the particular street or outside of it, are not to be regarded in determining the amount of actual injury done.”
These statements of the law are clear beyond mistake, and accord with the rule for which the plaintiff in error contends.
[542]*542But he insists that their force was destroyed by other utterances of the judge during the trial.
Several of these expressions, used while the testimony was being taken, indicate that the judge had in mind the possibility of there being some advantage resulting to property along the line of Oakland avenue distinct from the general benefit; but the evident purpose of his words was to confine the attention of counsel and witnesses to the inquiry, whether ■such particular benefit could arise, and they could not have led the jury to believe that advantages of that nature were really shown. It also appears upon the record that, in answer to questions as to the effect of the railroad on the value of the plaintiff’s property, the defendant’s witnesses generally dilated on the growth of population and business which attended such improvements.
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The opinion of the court was delivered by
Dixon, J.
Under “An act to enable street car or horse-railroad companies to provide better accommodation to the-[539]*539public by using what is now known as the cable system for motive power on elevated railroads,” approved March 26th, 1886 (Pamph L., p. 126), the North Hudson County Railroad Company obtained the appointment of commissioners to examine and appraise the easement and right of passage over-Oakland avenue, Jersey City, in front of two city lots, with apartment houses erected thereon, situate on the westerly side-of said avenue, and belonging to the plaintiff in error. The-railroad to be constructed was to be elevated at least thirteen feet in the clear above the street, to be supported by pillars set on each side of the avenue, not less than thirty feet apart longitudinally, and to have double tracks, over which passenger cars were to be drawn by a wire cable, put and kept in motion by stationary steam power located near the intersection of Palisade and Ravine avenues.
The commissioners appraised the value of the easement and right of passage at $25, and assessed the damages of the plaintiff at $20. The plaintiff thereupon appealed to the-Circuit Court of Hudson county, where an issue was framed,, a jury trial had, a verdict rendered for a somewhat larger aggregate of value and damages, and a judgment entered therefor, with costs, in favor of the plaintiff.
To review questions of law decided during that trial, the plaintiff has sued out the present writ of error. The defendant moves to dismiss the writ, on the ground that it will not lie in such a case.
Our constitution (art. VI., § 5, ¶ 3) declares “ that final: judgments in any Circuit Court may be brought by writ of error into the Supreme Court, or directly into the Court of Errors and Appeals.” The statute already mentioned requires the Circuit Court to enter judgment on the verdict of the jury and to award execution thereon ; the judgment so entered is-therefore final. It follows, from the very words of the constitution, that the writ of error was lawfully issued.
The same conclusion must be reached from previous-, decisions in this court. A writ of error will run from this-court to the Supreme or Circuit Court to bring up any decision [540]*540therein which is final, in the nature of a final judgment, and which has not proceeded from a matter resting in discretion. Eames v. Stiles, 2 Vroom 490; Adams v. Disston, 15 Id. 662.
We proceed, then, to consider the alleged errors :
The assignments of error mainly relied on by the plaintiff relate to the rulings of the court touching the measure of •damages, the plaintiff contending that the jury were required to set off benefits to land not taken against the damages ¡arising from the taking.
The benefits which may accrue to a landowner, by reason •of the construction and operation of a railroad across his land, are usually regarded as consisting of two classes: gen•eral benefits, being those which affect the whole community or (neighborhood, by increasing the facility of transportation, attracting population, and the like; and special benefits, being those which directly increase the value of the particular tract ■crossed, as if a cut required by the railroad should drain a swamp, or a necessary embankment should maintain a mill pond, or if a bridge, which the railroad .company had to build, •should afford a better way between portions of the tract. ■
Of special benefits, there are none in the present case. No advantage could possibly enure to the property of the plaintiff from the construction and operation of this railroad, which would not in greater or less degree be enjoyed by the entire neighborhood. The plaintiff’s counsel, in their brief, justly say: “ It is perfectly clear that any enhancement of value to •property either on or off Oakland avenue, from this elevated railroad, must arise from increased facilities of travel. There is not the slightest suggestion of benefit from any other cause.” The first question for decision, then, is, whether it is true ■that the judge instructed the jury to set off general benefits against the damages.
The matter of benefits arose early in the trial, when counsel for the company was cross-examining a witness of the plaintiff, with the view of showing that the elevated road rendered the street safer for children than an existing surface railroad. On objection, the judge excluded the inquiry, [541]*541saying: “ The rule undoubtedly is, that general benefits are not to be considered. * * * I have no doubt that the general benefit has to be eliminated.” Afterwards the defendant’s counsel proposed to ask one of plaintiff’s witnesses,, whether increased facilities of travel would not benefit the-plaintiff’s property, and on objection, the judge said : “ It is in the line of the previous objection and ruling of the court. I am quite clear in excluding everything that touches the-question of general benefits.” On defendant’s counsel asking, “ Do I understand your Honor to mean to the property right on the line of the street where it goes through ? ” The judge replied, “Yes; anything that rises from the general benefit is, not to be counted in this investigation.” Subsequently several questions were put to the defendant’s witnesses for the-purpose of presenting the character and extent of the general benefits resulting from elevated roads, and they were overruled. Then, at the close of the evidence, the court charged the jury as to the nature of the easement they were to value,, and the injuries for which they were to assess damag.es, without mentioning benefits; but, when the plaintiff’s counsel requested the judge to charge the jury directly that they could not deduct from the damages what might be considered' a general benefit, he replied, “Yes; I do not consider it necessary to remark at length on the subject. I have referred to it so frequently during the trial of the cause that the jury must understand my views on the subject. It is about this r Where a structure of this sort incidentally confers a general benefit on the property in the vicinity, and you are to estimate-the damage done to one who is specially affected by it, that consideration of incidental benefit is not to be regarded, * * * these general and incidental benefits that come to all alike, either on the particular street or outside of it, are not to be regarded in determining the amount of actual injury done.”
These statements of the law are clear beyond mistake, and accord with the rule for which the plaintiff in error contends.
[542]*542But he insists that their force was destroyed by other utterances of the judge during the trial.
Several of these expressions, used while the testimony was being taken, indicate that the judge had in mind the possibility of there being some advantage resulting to property along the line of Oakland avenue distinct from the general benefit; but the evident purpose of his words was to confine the attention of counsel and witnesses to the inquiry, whether ■such particular benefit could arise, and they could not have led the jury to believe that advantages of that nature were really shown. It also appears upon the record that, in answer to questions as to the effect of the railroad on the value of the plaintiff’s property, the defendant’s witnesses generally dilated on the growth of population and business which attended such improvements. But, the questions being in themselves legal, it was impracticable to restrain these excursions of the witnesses, and so the understanding was reached, as is made evident by a remark of plaintiff’s counsel placed in the bill of exceptions, that in the charge the court would draw the distinction between general and special benefits. That understanding having been carried out, we should assume that the jury disregarded the testimony as to general benefits which had been given in spite of the judge’s effort to exclude it. Lastly, some expressions in the charge are cited as tending to confuse the j my on the subject of general benefits. The jury were told that they should consider the substantial injury to the value of the property, and that a fair measure of the damage was the difference between the value of the property, irrespective of the structure and the proposition to erect it, and its value after the structure was erected and put to legitimate use. Standing alone, this portion of the charge would have required the jury to deduct general benefits. But the whole charge must be looked at, and so regarded, it was right. "With the explicit direction to exclude from view the general benefits, it was not erroneous to instruct the jury that the depreciation in market value, to be caused by the construction and operation of the railroad, would fairly represent the dam[543]*543ages. With the same context must be interpreted the hypothetical questions of the judge: “If a man can sell his property for more after than before, how can he be injured ? How can he be damaged, if the alleged source of harm enures directly to his pecuniary advantage?” The sentence immediately following (“ But these general and incidental effects that come to all alike, either on the particular street or outside of it, are not to be regarded in determining the amount of actual injury done”) makes the meaning plain. .
From the whole charge, we think the jury must have understood that the general benefits should be kept out of view, and, no special benefits having been shown, they must have estimated simply the plaintiff’s injury. Consequently, we find no error upon this point.
The remaining exceptions discussed are based upon the instructions of the court touching the value of the easement taken by the company. The judge charged as follows: “ With respect to lands over which streets have been laid, the ownership for all substantial purposes is in the public; nothing remains in the original proprietor but the naked fee, which, on the assertion of the public right, is divested of all beneficial interest. Now, it would seem, if that be true, that the value of that easement which a road shall take must be nominal, or very nearly so; what you take from him, that you pay him for, that value and nothing more.” Being afterwards asked to charge “that if the jury believe it is to become a business street, they must consider the uses to which owners have a right to put the street over and above the public,” he said: “Any hindrance caused by the railroad in the uses of the property that, affect its value, will be matter of consideration in determining the damage.”
The first statement above quoted is an extract fl'om the opinion of this court in The Hoboken Land and Improvement Co. v. The Mayor, &c., of Hoboken, 7 Vroom 540, 551. With the sentences added by the judge below, it was not improperly applied to the present case. Aside from the damage to the .adjacent buildings and lots, the value to the landowner of the [544]*544right of way taken by the company must be nominal, or nearly so. The height of the railroad was to be thirteen feet at least in the clear’, and the pillars on which it was to rest were to be not less than thirty feet apart, so that there could be but two — there might be but one — on the plaintiff’s part of' the street. By such a structure, the owner’s peculiar use of the land in the street, either for vaults beneath the surface, or for loading and unloading goods, would scarcely be appreciably lessened; but if any such hindrance could be caused, the final charge of the judge required the jury to estimate it. His language, as we read it, embraced all of the request made by the plaintiff on this point.
We are not satisfied that there is any error in the record,, and the judgment should be affirmed.
For affirmance — The Chancellor, Chief Justice, Depue, Dixon, Garrison, Magie, Reed, Scudder, Van Syckel, Brown, Clement, Cole, McGregor, Smith,.. Whitaker. 15.
For reversal — None.