MEASURE OF DAMAGES.

349

to compensation, which was so closely related that both should be regarded as parts of one and the same principle. It follows that if the Constitution is silent, and the statute makes no provision for compensation, it will be implied; or if the language excludes such a supposition, the act will be void.1

The measure of the compensation due for the appropriation of property to public use is prima facie its market value, or what it would have brought at a fair public or private sale, due regard being had to all the uses for which it was available, and that tended to enhance its price.2 The question is more complicated where the appropriation is partial; and it may then be necessary to consider not only the value of what is taken, but the effect on what remains, and allow for the detriment or advantage in assessing the damages.4

If one half of a lot is so much enhanced in value by the opening of a street over the other half that it will sell for more than the whole would have brought previously, the owner will have no right to indemnity, and may be compelled to pay the excess as an indemnification for any loss that may be occasioned to the adjacent lots.5 In such cases the power of eminent domain and the power of taxation are both exercised, the first in taking the land for use as a street, and the second in requiring contributions from those who are especially bene

1 Gardner v. Newburgh, 2 Johnson's Ch. 162, 168; Sinnickson v. Johnson, 2 Harrison, 129; Raleigh & Gaston R. R. Co. v. Davis, 2 Dev. & Bat. 451.

2 Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Watson v. Pittsburg R. R. Co., 37 Pa. St. 469; East Pennsylvania R.R. Co. v. Hottenstine, 47 Id. 28; Boom Co. v. Patterson, 98 U. S. 403; Hornstein v. The Atlantic R. R. Co., 51 Pa. St. 87.

• Hatch v. Vermont Central R. R. Co., 25 Vt. 49, 66; Watson v. The Pittsburg R. R. Co., 37 Pa. St. 469; Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Symonds v. The City of Cincinnati, 14 Ohio St. 147.

4 Shawneetown v. Mason, 82 Ill. 337; Bloomington v. Miller, 84 Id. 621; Hornstein v. The Alantic & Great Western R. R. Co., 51 Pa. St. 87.

Livingston v. Mayor of New York, 8 Wend. 85; Owners of Ground v. Mayor of Albany, 15 Id. 374.

fited, and who consequently ought to bear a corresponding share of the burden.1

The material inquiry is not what the owner will lose by the interruption of his business, or whether the property will be unfitted for the particular use to which he applied it, but what the effect will be on that general adaptability or fitness for the needs of life and trade which is at once the cause and test of value.2

In determining this point, the jury may hear and be guided by the testimony of experts as to the intrinsic value of the portion which is actually appropriated to public use. But it is also proper to consider the injurious or beneficial consequences to what is left, including the alteration that has been made in the configuration, depth, and frontage; the effect of a change of grade or embankment in rendering the property less suitable for trade or occupancy; whether the owner is shut out from a navigable stream or highway; does the advantage resulting from the street or railway compensate the detriment, in short, whatever would influence the mind of a purchaser, and induce him to give more or less than before the power of eminent domain was exercised.3

-

Such a method of assessment is not necessarily dependent on the right to charge the owners of the property with "benefits," or tender a payment which is not pecuniary, but depends on the broad principle that compensation is to be gauged, in the absence of intentional wrong, by the loss resulting from the transaction as a whole.4

Accordingly, where a railroad was laid out across the plaintiff's land, and so near to his mill and to the highway leading

1 The People v. Mayor of Brooklyn, 4 Comstock, 418; ante, p. 302. 2 Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Shenango & Alleghany R. R. Co. v. Braham, 79 Pa. St. 447, 452.

8 Watson v. Pittsburgh R. R. Co., 37 Pa. St. 472, 476; The East Pennsylvania R. R. Co. v. Hottenstine, 47 Id. 28; Hornstein v. Atlantic R. R. Co., 51 Id. 87; Western Pennsylvania R. R. Co. v. Hill, 56 Id. 460, 465; Paige v. Chicago R. R. Co., 70 Ill. 324; Hyde Park v. Dunham, 85 Id. 575; Shawneetown v. Mason, 82 Id. 337.

4 Hyde Park v. Dunham, 85 Ill. 575; Paige v. Chicago R. R. Co, 70 Id. 324.

FOR PARTIAL TAKING.

351

to it, that his customers could not drive with safety to the mill, or fasten their horses when there, the court held that the consequent loss of custom might properly be submitted to the jury as an item in the assessment of damages. So the location of a railway in such proximity to a barn that the owner is in common prudence obliged to take it down, in order to avoid the risk of fire, and build it elsewhere, is a sufficient ground for compensation ;2 and an incidental injury to waterpower is governed by the same principle. So also when the appropriation of part of the land for use as the bed of a railroad will compel a tenant for life or years to carry on his trade or business in another place, the jury may take into consideration the cost of the removal of his machinery and the depreciation in value which it will undergo from being put up elsewhere, or applied to a different use. In these instances the consequential damages were taken into view because part of the plaintiff's land was taken, and would, agreeably to the general current of decision, have been inadmissible had they arisen from acts done on the land of third persons, though equally injurious to the plaintiff, because there would then be no taking within the constitutional provision. It was at the same time held in Hornstein's Case 5 that the court below was right in instructing the jury not to consider the smoke, sparks, or light emitted by the locomotives, or their injurious consequences, including the effect which they might have in setting fire to the premises which the plaintiff used as a distillery, or frightening the horses which he employed for hauling. The reason assigned was that such damages were consequential; but the true ground seems to be that they were too remote and contingent to be ascertained with certainty.

It is established, in accordance with this decision, that in awarding compensation for the construction of a railroad,

1 The Western Pennsylvania R. R. Co. v. Hill, 56 Pa. St. 460.

2 Wilmington R. R. Co. v. Stauffer, 60 Pa. St. 374.

Barclay R. R. Co. v. Ingham, 36 Pa. St. 194.

Getz v. Philadelphia R. R. Co., 105 Penn. 547; 113 Id. 214. 551 Pa. St. 87.

regard cannot be had to the risk of fire, although the road passes through the plaintiff's premises and will enhance the rate of insurance, because the use of such means being lawful, there is no liability for the consequences, save on the ground of negligence; and if that is shown, a recovery may be had subsequently in the proper form of action. The inquiry in such cases, nevertheless, is what will the property sell for after the road is built, as contrasted with what it was worth before, due regard being had to all the circumstances; and in answering this question the jury may, as it would seem, consider every natural and probable consequence that would weigh adversely or favorably with a purchaser, as, for instance, the risk, discomfort, and inconvenience arising from the proximity of the road, on the one hand, and the increased facility of transportation and access on the other.2 As was said in these instances, taking one third of a tract may by reason of its situation or slope render the rest unmarketable; and it is not an answer that only so much is taken as the State actually requires. The jury are to consider not a partial effect only, but the whole, and take all the circumstances into view in arriving at a conclusion. This is not deducting benefits or advantages, or substituting compensation in land for money, but ascertaining whether the complainant is really damaged, and to what extent. The judgment in Watson v. The Pittsburg & Connelsville R. R. Co. is to the same effect.

1 Philadelphia & Reading R. R. Co. v. Yeiser, 8 Pa. St. 366; Lehigh Valley R. R. Co. v. Lazarus, 28 Pa. St. 203; Huyett v. Philadelphia & Reading R. R. Co., 23 Pa. St. 373.

2 Hyde Park v. Dunham, 85 Ill. 575; Paige v. Chicago R. R. Co., 70 Id. 328; Shawneetown v. Mason, 82 Id. 337.

8 37 Pa. St. 472.

LECTURE XIX.

Eminent Domain (continued).

The Property which may be the Subject of the Right. — Land. — Chattels. -Money.- Franchises. — Future or Contingent Interests. Easements. Diversion of Property from one Use to Another. - Power of the State over the Highways. — Railroad Tracks in Highways. - Vacation of Highways.

EVERY species of property, including money, may seemingly be appropriated by virtue of the right of eminent domain. The State may as well take the cash of a banker to pay its soldiers or enable thein to march against the enemy, as woollens for clothing, or corn for food. It has been suggested that such a course would be futile, because compensation must be pecuniary, and the government would be obliged to render with one hand what it took with the other.2 The reason can hardly be deemed satisfactory, because payment need not be made forthwith or, in the case of the Commonwealth, secured; and the government may consequently wait for a reasonable time before returning what it has appropriated, with the interest which justice demands.3 Such a taking would nevertheless be equivalent to a forced loan, and if not unconstitutional, should only be resorted to when the need is extreme, and supersedes ordinary rules.

Property which has been taken in the exercise of the right of eminent domain, may be appropriated by virtue of the same right to a different use, although it is held by a municipal or private corporation as a means of profit, and not merely for the general good. Such a franchise is property, or is con

1 Hatch v. The Vermont Central, 25 Vt. 49, 65; Vanhorne v. Dorrance, 2 Dallas, 304; ante, p. 304.

2 Burnett v. Sacramento, 12 Cal. 76; The People v. The Mayor, 4 Comstock, 419; Cooley on Limitations, 526.

3 Hammett v. Philadelphia, 65 Pa. St. 146, 153.

VOL. I.-23