Willamet Falls Canal & Lock Co. v. Kelly

3 Or. 99

• Court: Clackamas County Circuit Court, Oregon
• Decided: October 15, 1869
• Status: Published

Opinion

Upton <T.,

instructed the jury as follows:

The defendants have admitted by their pleadings, that the plaintiff is entitled to take the land designated, upon making reasonable compensation to the defendant, and you have been called to determine what is reasonable compensation.

There are two distinct branches, or grounds of estimate, to be considered in arriving at your conclusions. One is the actual value of the strip or parcel of land, sixty feet wide, that the plaintiff proposes to take; and you are also to estimate such other damages, if any there be, as will result to the owners of the residue of the whole tract, in consequence of taking part of it.

Under any view that can be taken of the case, the defendants are entitled to recover the actual value of the parcel that is to be condemned to the plaintiff’s use. But whether the defendants recover, in addition to that, damages for injury that will be caused to the residue of their land, depends upon the question whether the injury thus done to the residue of the land will be greater than the benefits that will accrue to such residue, in consequence of the appropriation and use of the land taken.

In regard to damages, over and above the value of the land actually appropriated, the subject for your consideration is the reduction in value of the premises, by reason of the projecting and construction of the canal in the manner the plaintiff may pursue. Will the land and its appurtenances be worth less, and if any less, how much less. You will, therefore, see the necessity of keeping these two branches or grounds of your estimate distinct from each other. The plaintiff proceeds upon the theory that there is a public necessity for the projected canal, and it is upon that theory that the law permits private property to be taken without the owner’s consent. Under the constitution and laws, private property cannot be taken eVen for public use, without compensation, and the land actually taken must be paid for, independently of any advantage that may result to the defendants from the plaintiff’s proposed enterprise. But if, in your opinion, the other damages caused to the defendants will not be greater than the benefits to them, resulting from the plaintiff’s enterprise, you will not include in your verdict any other damages than the value of the land to be appropriated. Should you think such other damages will be greater than the resulting benefits, you will strike a balance between such resulting damages and benefits, and add iliat bulauce to tlie actual value of tlio land that the plaintiff seeks to appropriate, to make up tlie total of your verdict.

"Whatever water power the owner of the laud is entitled to because of Ms ownersliip of the land, must be treated by tlie jury as tlie property of the owner of the laud. And if tlie appropriate u asked for will carry with it arty water power, or render it less valuable, or interfere with, tlie defendants’ use of any water power, to which they would otherwise be entitled, sueb water power should be taken into consideration by you in making your estimates.

Tlie jury rendered a verdict in iavor of fcbe defendants ior $1400.

(b)

The final adjournment of tlio term occurred before the money was paid into court and judgment was not rendered until the May term, 1810. It being held that judgment could not be entered until after payment of the damages assessed by the jury.