By the Gowrt
McMillan, J.
This is a proceeding under sections 4 and 5, of chapter 21, of the Sess. Laws of 1865, to assess the damages sustained by the respondents — the owners of certain lands — by reason of the construction of the appellant’s road through them premises.
An appeal from the report of the commissioners was taken by the respondents here, to the District Court, and the cause tried and damages assessed for the respondents; whereupon the appellants moved for a new trial, which was denied. From the order denying this motion, this appeal is taken. Several exceptions to the rulings of the court on the admissi[530] bility of testimony, and to tbe instructions of tbe court to tbe jury, were taken, which we proceed to dispose of.
Hiram T. Horton, a witness for the respondents, having been sworn, in the course of his examination, was asked by the respondents, “ What was the market value per acre of the respondents’ land taken by the railroad company in the forepart of January, 1865,” which was objected to by the appellant : 1st, That it is a cross-examination of the parties’ own witness ; 2d, The correct rule for ascertaining the damages, if any, in such a case as this, is to ascertain the market value per acre of the whole farm, a part of which is taken, without the construction of the railroad, and then with it, and the party? on the direct examination of his witness, should be confined to such rule, and not be permitted to examine as to the amount of damages occasioned by particular matters separately, as upon cross-examination. The objections were overruled, and the appellant excepted. We see no error in this ruling. The same point was fully considered and determined in Winona & St. P. R. R. Co. v. Denman, 10 Minn. 267. The witness was further asked to “state to the jury in what manner the road runs through the land, and in what manner is the market value of the farm injured by the road.” The latter part of the question was objected to by the appellant, on the ground that it asks for the opinion of the witness as to what affects the market value of the farm, instead of the facts. The court overruled the objection, and appellant excepted. We think the question was proper. The market value of the farm is the standard by which the injury to the farm is determined, and is here used as synonymous with the farm. The manner in which the road runs through the farm, evidently embraces the course and character of the track of the road with reference to this land, and the portion of the question objected to, we think, calls upon the witness to state in what manner — that is, by reason of what facts or circumstances, in his opinion, this injures the value of the farm; or, in other [531] words, how does this road render the farm less valuable, and the witness so understood it, and states purely matters of fact in reply. Dwight and others v. Co. Com’rs. of Hampden, 11 Cush. 204. The respondents then proposed to prove by this witness that, during some portions of the year, Waldron hauls his wheat and produce out to market, and his lumber and heavy articles back, by a route which crosses the appellant’s railroad track in his field on this farm, and that, by the construction of the railroad, the occupant of the farm is inconvenienced, and the market value thereby affected; which was objected to on various grounds. The court sustained the objections, so far as the number and location of the crossings are concerned, but overruled the objections, so far as crossing the track in going to and returning from market is concerned, to which the appellant excepted, and the witness answered: “ So far as I know, he has been in the habit of crossing the railroad, and coming north with grain to market; comes the north road because it is best; there is a marsh on the other road.”
The court, however, at the appellant’s request, charged the jury that the respondents are in no event entitled to recover any amount as damages against the appellant for mere inconvenience in crossing the track of the railroad in going to, or returning from, the respective sides of their farm divided by the same, and further charged, “You must not consider any inconvenience from * * * crossing the track.”
If it clearly appears that, notwithstanding the admission of testimony which is immaterial, no injury resulted therefrom, the admission of such testimony will not be a sufficient ground for a new trial. In view of the instruction of the court to the jury, which we have noticed, we think no injury resulted to the appellant from the testimony referred to, and we do not feel called upon to disturb the verdict for this reason.
The third point raised by the appellant is of a more serious character. The court allowed the witness Horton, and other [532] witnesses, to testify as to additional fences made necessary by tbe -construction of tbe railroad, and tbe cost of building and maintaining tbe same, as an item of damages to tbe respondents, wbicb was regularly excepted to by tbe appellant. Tbe appellant also requested tbe court to charge tbe jury “ tbat, by reason of tbe special law passed by tbe Legislature of this State in 1865 (Ch. 10, Sec. 4, Sp: Laws 1865) wbicb has been put in evidence, by which tbe appellant is required to fence on botb sides of its road, witbin two years after tbe same is constructed through enclosed lands, no damages should be allowed tbe respondents in this case on account of such fences,” wbicb tbe court refused, and tbe appellant excepted. Tbe court also charged tbe jury as follows : “ Fencing is a proper subject for your consideration, in so far as it affects tbe market value of tbe farm.”
It is manifest from tbe whole ease tbat tbe question of damages on account of fencing entered into tbe consideration of tbe jury, and materially affected their finding. It is evident, also, tbat tbe damages were assessed with reference to tbe rights and obligations of tbe parties as they existed, independent of section 4, of chapter 10, of tbe Special Laws of 1865, wbicb provides, tbat “ section 4, of chapter 19, of tbe Special Laws of 1862, being an act to facilitate tbe construction of a railroad from Winona westerly by way of St. Peter, be amended so as to read as follows : “Said company, or any railroad company, formed by any consolidation with tbe Winona and St. Peter Railroad Company, shall construct and maintain a good and legal fence pn botb sides of their road wherever it may run through enclosed lands, witbin two years after tbe commencement of tbe operation of their road across said lands, and during said period of two years, shall construct and maintain good and sufficient cattle guards at points of crossing such lands, and shall also construct all necessary farm crossings over tbe track of their road.” This section, it is manifest, materially changes the obligations of tbe railroad company [533] as to building fences, and, if it is applicable to this case, must establish a rule of damages as to the matter of fencing, essentially different from that which was adopted on the trial of the cause, and governed the jury in their finding. The validity of the act, and its applicability to this case, are denied by the respondents. There are two distinct views of the rights and obligations of the railroad company with reference to the owners of improved land through which the road passes, which are to be distinguished: one is the liability of the railroad company with reference to the question of compensation to the owner for damages in taking the land for the road; the other to the liability of the parties to each other for injmies to cattle, or live stock, etc., upon the road. The first is the only question for us to consider here. We think it should admit of no doubt that, in the absence, at least, of different statutory legislation, where a railroad company passes through improved land, the cost of constructing additional fencing, rendered necessary by the road, is a proper element of damage to the owner of land taken, i/n vn/oit/um, for the purpose of the road. W. &. St. P. R. R. Co. v. Denman, 10 Minn. 267; Morse v. Bos. & Maine Railway, 2 Cush, 536; Quincy v. Vt. C. R. R. Co., 23 Vt. 387, (see 4 Paige 553) Pet. of Mt. Wash. R. R. Co., 35 N. H. 145; Comm. v. Bos. & Maine R. R. Co., 3 Cush. 25; (See 14 Gray 162.)
But when the railroad company, whether as a condition or limitation of its right to take land for its road, or as a police regulation, is required by statute to construct such fences, the damages for taking the land should be assessed upon the basis of the construction of such fences by the company, in accordance with the statutory requisition. The original charter of the company in this instance, which provides the manner in which lands may be taken, and the mode of compensation, is silent on the subject of fencing. Sec. 4, Ch. 19, of the Laws of 1862, is an independent provision, and has no connection with the taking of lands, or the damages to be assessed there[534] for. Sec. 4, of Ch. 10, of Sp. Laws of 1865, is of the same character, and is an' amendment of and substitute for Sec. 4, of the Laws of 1862. If it were admitted, therefore, that the terms prescribed in the charter with reference to the mode and condition of taking lands, and assessing damages, were in their nature vested rights, and therefore not capable of being changed without the consent of the company, it would not affect this question, since fencing is not embraced within these terms, and is not by the terms of the charter a condition or limitation of the company to take the land for the construction of the road. That the charter of a private corporation is a contract there is no doubt, and that in the absence of express limitation or restriction, the corporation takes the franchises with all reasonable and necessary incidents to accomplish the object of its existence granted by the charter as vested rights will not be doubted; but that the Legislature may control and regulate the action of these artificial beings in the exercise of their rights just as a natural person may be controlled and regulated, is as well settled. These rights of the individual citizen are the object of jmotection by the Government, but they are qualified by his relation to the public, and must not be exercised to the public injury. ’Whatever regulation therefore of individual rights is necessary to be prescribed for the public welfare is not only within the power of the Legislature, but is incumbent on it to enact. This principle constitutes the police power of the State. To this source the right of the Legislature to impose upon existing railroad corporations the duty of fencing them roads, making cattle guards, regulating the speed of their cars, the use of signals, &c., is traced, and on this principle it is sustained. Ohio & Miss. R. R. Co. v. McClelland, 25 Ill. 140; Galena & C. R. R. Co. v. Loomis, 13 Ind. 548; Nichols v. T. & R. R. R. Co., 43 Maine, 356; Redfield on Hallways, p. 549, 554, and note and authorities cited. If the Legislature can deprive itself of this power in any instance, it certainly can only be done by [535] express grant, and not by implication. Providence Bank v. Billings et al., 4 Peters, 514. This cannot be claimed in this instance, for the right to amend, saving only vested rights, is expressly in the original charter. Laws 1855. The section of the act of 1862, relative to fencing, therefore, was a mere police regulation, and the company, so far as the act itself is concerned, had no vested rights thereunder. Sp. Laws 1862, Ch. 19, Sec. 4. It was, therefore, entirely competent for the Legislature to alter, amend or repeal it, and the consent of the company was not necessary. It follows that the act of 1865, so far as this question is concerned, is valid for the same reason. Sess. Laws 1865, Ch. 10, Sec. 4, p. 48.
But it is further tu’ged that the act of 1865 is in conflict with Sec. 21 of Art. 4 of the constitution. The article is as follows: “No law shall embrace more than one subject, which shall be expressed in its title.” The majority of the court are of opinion that this objection to the law must be sustained. My own opinion is that the law comes within the principle laid down by the Supreme Court of this State in Tuttle v. Strout, 1 Minn. 465, and is valid. See also, Board of Supervisors of Ramsey County v. Heenan, 2 Minn. 330.
There are two other questions which embrace the substance of the remaining points of the appellant: 1. Are general benefits conferred on the owner of the land taken, that is, such benefits as result from the construction of the road to property holders generally in the same vicinity through whose land the road does not pass, to be deducted from the compensation due to the owner through whose land the road passes for Ms damages? 2. Can special benefits accruing to the owner of the land taken, that is, local, incidental benefits resulting to the premises (a part of wMch is taken,) directly from the construction of the road, be deducted from the value of that portion of the land actually taken for the road, or must they be recouped, if at all, from the damages resulting to the [536] remaining portion of the premises, by reason of the taking of the land for the construction of the road ?
There is great conflict in the decisions of the courts of the the different States of our country upon these questions. It is useless to attempt to lay down any one rule as settled by uniform authority, or perhaps by a decided weight of authority. We are compelled, in establishing a rule for our own State, to adopt that, which in view of the important results to public improvements and to private rights, seems most in accordance with settled principles of law in analogous cases.
The charter of the railroad company in this case provides the manner in which compensation for lands taken for the road shall be ascertained and determined. “ In estimating damages or compensation to be paid to any claimant to lands, or interest in lands so proposed to be taken, the said commissioners shall take into consideration the benefits to accrue to the claimant by the construction of said railroad, and allow such benefits by way of recoupment against the damages which such claimant may sustain thereby, and report only the balance of damages which shall remain after applying such benefits in recoupment thereof, but no balance shall be in any case reported in favor of the company.” This language does not aid us in determining what elements are to constitute the damages for which compensation is to be allowed, or the benefits which are to be recouped therefrom, but leaves these questions to be determined by other principles of law.
The court charged the jury “that any general benefits arising from the construction or operation of the railroad, shared by the defendants in common with the whole country in this vicinity, and not peculiar to them, or to other lands actually crossed by the road, you will exclude, and not consider in ascertaining their damages; as for instance, such benefits as defendants would receive if the railroad should be constructed through the country, but not crossing this farm.” The court also charged the jury that “if the farm would sell for as much, as [537] it now is, with the road constructed through it, less the vahie of the land actually taken, as it would bring if the road ran through the country but not crossing this farm, then defendants have sustained no damage whatever. If it will not, then that reduction in the market value of the lands not taken is the measure of defendants’ damages.” .To these instructions to the jury the appellant excepted. We think this charge was correct. The benefits which result to the country generally, or to particular communities, by reason of the construction and operation of railroads, and other internal improvements prosecuted by private enterprise, although for public use, are to be shared equally by the citizens affected by them. The railroad company, the appellant, is a private corporation, and possesses only the rights conferred by the statute. The State has granted to it important and valuable rights and franchises, among them a corporate existence, the right to take, m mvihiim, the land of the private citizen for the construction and operation of a railroad, and the right to take fare, freight and tolls for carrying passengers and merchandise. In the consideration of these and other privileges, the company contracts to build -and operate the road in accordance with the terms of the act. The charter gives it no right to assess upon lands benefitted by the road through which it does not pass, any sum to aid in the construction, pay damages or otherwise; and whatever may be the case when a public improvement is prosecuted ly the pulUe, in this instance no such right exists. It would scarcely be claimed by the appellant here that it could maintain an áction against a land holder through whose land the road does not pass to recover any sum for general benefits accruing to him from the construction of the road. This principle being established, it follows that if benefits of this character are to be recouped from damages suffered by the owner of the land through which the road passes, the operation of the law must be very unequal and unjust.
[538] These allowances will fall upon but a small portion of those receiving benefits, and that portion those whose lands have been taken and injured without them consent; thus requiring them to bear the whole public burden, and at the same time denying to them advantages conferred upon others. Such construction of the charter would be unreasonable; the benefits to be deducted must be those resulting directly to the land, a part of which is taken, from the construction of the road, not through the vicinity, but through the land. Meacham v. Fitchburg R. R. Co., 4 Cush 295; Proprietors of Locks & C. et al. v. N. & L. R. Corp. 10 Cush. 388, 392; Dwight et al. v. Co. Comrs. Hampden, 11 Cush. 204; Davis et al. v. C. R. R. Co., Ib. 509; Pet. of Mt. Wash. R. Co., 35 N. H. 147; The State v. Miller, 3 Zabr. 385; Red. on Railways, 134; Palmer Co. v. Ferrill, 17 Pick. 63, 66.
The court also charged the jury as follows: “against this market value of the land actually taken, you will offset nothing whatever;” to which the appellant excepted. There seems to be a distinction made here between the value of the land taken for the road and the injury done to the remaining land by taking it. It would seem to be implied by the charge, and conceded by the respondents, that special benefits to the remainder of the land may be recouped from the damages thereto incurred by the owner, as distinguished from the value of the land actually taken for the road; and such seems to be the position of the authorities, which hold that the value of the land taken must be paid in money. Robbins v. M. &. H. R. R. Co., 6 Wis. 641-2. I am unable to see a ground for any such distinction. It seems to me the right to compensation for both elements of damage is found in the same source, the fundamental right of the citizen to just compensation when his private property is taken for public use. The compensation is for the taking and its proximate consequences; otherwise it leaves the right of the citizen to redress for these consequences at the option of the Legislature, to which I do not [539] assent. To take land of the citizen for public use by the State when necessary, is an essential incident to sovereignty. The right of eminent domain is not conferred by the constitution; but, if affected at all, is limited thereby, and only to the extent of the limitation can the citizen obtain any redress. If, therefore, the limitation extends only to requiring compensation for the land taken, any other injury being done under the power of eminent domain, and in pursuance of statute, must be damnum absque inju/ria, and the citizen has no redress. This would take from the principle contained in the constitutional provision half its virtue, and in many, if not in most cases, render the citizen comparatively without remedy. Por in this day we know that, in many cases, the value of the strip of land actually taken for a railroad, is but a small portion of the actual damage to the owner by the construction of the road through his land. Nor can I discover that the nature of the injury is more aggravated, or the right infringed more sacred, in one case than the other. In one instance the possession of a small part of a tract of land may be taken, and in the other the whole tract or parcel may be rendered comparatively useless or valueless. The constitution should receive no such narrow and technical construction. It was intended to declare a fundamental principle of government, that when the public exigency requires the government to take for public use the property of the citizen, full compensation shall be made for the injury; not only the value of the portion of land taken, but the damages caused by taking it. Const. Art. 1 Sec. 13; Ib. Art. 10, Sec. 4; Pet. of Mt. Wash. R. Co., 35 N. H. 146. If this view is correct, then the damages are a unit, although composed of integral parts, and if benefits are to be deducted at all, they must be deducted from the aggregate sum; and it would seem but just and equitable that if the same act at the same time inflicts injury and confers benefits, the one should be set off against the other in determining the compensation due for the injury; then a just and full compensation is aseer[540] tained, and thus ascertained, must be paid in money. In some of tbe States a different rule is prescribed by tbe constitution, as in the present Constitution of Ohio, Art. 1, Sec. 19; Art. 13, Sec. 5. Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. Rep. 309. But see L. M. R. R. Co. v. Collet et al., 6 Ohio St. Rep. 182; and the Constitution of Termont, Secs. 2, 9, Bill of Rights. The decided weight of authority in our country we think sustains this conclusion, whatever may be the reasoning by which it is arrived at. Symunds v. Cincinnati, 14 Ohio Rep. 147; Kramer v. C. &. R. R. Co., 5 Ohio St. Rep. 140; McMasters v. The Com., 3 Watts, 294; R. R. Co. v. Heister, 8 Penn. St. Rep. (Barr) 450; Livingston v. Mayor of N. Y., 8 Wend. 85; Mecham v. Fitchburg R. R. Co., 4 Cush. 297, 8; Dwight et al. v. Co. Com’s of Hampden, 11 Cush. 204; Davis et al. v. C. River Br. R. Co., Ib. 509; Palmer Co. v. Ferrill, 17 Pick. 64; McIntire v. The State, 5 Blackf. 384; The State v. Digby, Ib. 543; Ind. C. R. R. Co. v. Hunter, 8 Ind. 78; The Alton & S. R. R. Co. v. Carpenter, 14 Ill. 190. This portion of the charge, therefore, we think was erroneous. The third, fourth, and fifth grounds, urged in support of the appellant’s. sixth point, have been considered and determined by this court, in the case of the Winona & St. P. R. R. Co. v. Denman et al. 10 Minn. 283. It is there said, “ whether the Legislature were of the opinion that the company should be allowed to take the fee or an easement, the provision requires compensation for the interest or estate of those interested in the land, without reference to the quantity or quality of such interest or estate, and it may be suggested that even if the company could take only an easement, what would be left to the land owner consistent with the enjoyment of the easement by a railroad company, and even his reversion would ordinarily be of inconsiderable or no appreciable value, and the Legislature might with perfect fairness provide for compensation for the whole interest or estate of those claiming any rights to the [541] lands.” In this we entirely concur, and see no error in the views expressed upon this subject by the court below.
The order denying the motion for a new trial should.be reversed, and a new trial granted.