if an executor of one of the devisees commits waste he is liable personally, or in his representative capacity, for damages. So a recovery may be had by one tenant in common against another to the extent of the former's right and the injury done, where the waste consists in taking petroleum oil from the land." And a widow is liable in an action for waste where she sells standing timber to the injury of the freehold, and such sale is not essential to the legitimate use of the land for homestead joint tenants and tenants in common, | treble damages, as specified in the see Cecil v. Clark and Hall v. Clark last section, or to have partition of (W. Va. 1900), 35 S. E. 11; Code, the property, as prescribed in the 1891, ch. 100, sec. 14. next two sections." Sec. 1657, id., provides as to interlocutory judgment for partition. Sec. 1658, id., provides that "the plaintiff may elect to take final judgment for the single damages awarded to him, or that, in making the partition, or in dividing the proceeds of a sale, so much of the share of the defendant in the real property, or the proceeds thereof, as will be sufficient to com

The N. Y. Code Civ. Proc. (Stover's 5th ed.), sec. 1652, provides for an action against the heir, devisee or grantor of reversion; sec. 1653, id., provides for action by ward against guardian; sec. 1654, id., provides for action by a grantee of real property sold under execution; sec. 1655, id., provides that "if the plaintiff recovers in an action for waste, other than an action brought as pre-pensate the plaintiff for his single scribed in the next section, the final judgment must award to him treble damages. Where the action brought by the person next entitled to the reversion, and it appears, in like manner, that the injury to the estate in reversion is equal to the value of the tenant's estate or unexpired term, or that it was done maliciously, the final judgment must also award to the plaintiff the for-terests." And sec. 1659, id., provides feiture of the defendant's estate and the possession of the place wasted." Sec. 1656, id., provides that " an action for waste may also be maintained, by a joint tenant or tenant in common, against his co-tenant, who commits waste upon the real property held in joint tenancy or in common. If the plaintiff recovers therein, he is entitled, at his election, either to a final judgment for

damages, and the costs of the action, other than the expenses of making is the partition or sale, be laid off or paid, as the case may be, to the plaintiff. The residue of the property or proceeds, not laid off or distributed to the plaintiff or the defendant, must be laid off or paid to the persons entitled thereto, according to their respective rights and in

as to view by the jury, and when unnecessary, and when and how made. 40 Lilly v. Menke, 126 Mo. 190; 28 S. W. 643.

41 Williamson v. Jones, 43 W. Va. 562; 27 S. E. 711; 38 L. R. A. 694; 19 S. E. 436; 25 L. R. A. 222. See Marshall v. Mellon, 179 Pa. 371; 27 Pitts. L. J. N. S. 214; 36 Atl. 201; 36 L. R. A. 816; 17 Pa. Co. Ct. 366; 26 Pitts. L. J. N. S. 290.

purposes." In the case of waste by the wrongful removal of timber from land, the damages will be admeasured by the value of such land as diminished by such waste.

Again, in

an action for waste, the damages are the permanent injury to the inheritance and the value of the timber removed," although the damage to the value of the inheritance owned by the reversioners must be considered in an action for waste against a life tenant, and not the particular value of the property or timber removed. And if timber is wrongfully removed from land, its market value as manufactured, in connection with the cost of manufacturing and marketing the same, may be shown, where special damages for waste are claimed in an action of ejectment. If no damages for injury to the land, occasioned by cutting timber, are demanded, there can be no recovery, and after its severance the action should be for mesne profits or for an injury to the freehold, and not for the value of the timber." And where the alleged waste consists in the cutting, by the mortgagee in possession, of sufficient timber to make necessary repairs, no recovery can be had therefor.48

46

42 Smith v. Smith, 105 Ga. 106; 31 S. E. 135.

48 Nelson v. Churchill (Wis. 1903), 93 N. W. 799. Examine Longfellow v. Quimbly, 33 Me. 457; Byrom v. Chapin, 113 Mass. 308; Achey v. Hull, 7 Mich. 423; Morehouse v. Cotheal, 22 N. J. L. 521; Harder v. Harder, 26 Barb. (N. Y.) 409; secs. 1192-1201, herein; N. Y. Code Civ. Proc. (Stover's 5th ed.) sec. 1668. But see Bubb v. Yelverton, 10 L. R. Eq. 465; 40 L. J. Ch. 38. 44 Robinson v. Kime, 70 N. Y. 347.

2236

45 Morris v. Knight, 14 Pa. Super. Ct. 324.

46 Nelson v. Churchill (Wis. 1903), 93 N. W. 799. See Foote v. Merrill, 54 N. H. 490; 20 Am. Rep. 151; secs. 1192-1201, herein.

47 White v. Fox, 125 N. C. 544; 34 S. E. 645. Examine Prescott v. Adams (U. S. C. C. A. 3d C.), 60 U. S. App. 423; 32 C. C. A. 255; 89 Fed. 474.

48 Chase v. Driver (U. S. C. C. A. 8th C.), 34 C. C. A. 668; 92 Fed. 780. See Minneapolis Trust Co. v. Verhulst, 74 Ill. App. 350.

TITLE XI.

EMINENT DOMAIN.

CHAPTER LXXV.

EMINENT DOMAIN AND PUBLIC IMPROVEMENTS.

§ 2183. Damages for injury to land from public improvement -Generally.

2184. Measure of damages generally where property is taken.

2185. Use of land as affecting estimate.

2186. Where part of tract of land taken.

2187. Entire tract-What may be
considered as.

2188. Allowance for benefits.
2189. Date when value is to be de-
termined.

2190. Speculative damages-Ele-
ments not to be consid-
ered.

2191. As to noise, smoke, etc.
2192. As to danger from fires-
Railroad fires.

2193. Injury to business, etc.
2194. Injury to crops and trees.
2195. Franchise as an element.
2196. Entry without proper pro-
ceedings-Rights to re-
cover for improvements.

2197. Allowance of interest.
2198. Effect of verdict-Whether
excessive.

2199. Taking of bridges.
2200. Taking of property for
streets and highways.
2201. Change of grade of street.
2202. Taking railroad right of
way for street crossing.
2203. Same subject-Particular

elements.

2204. Telegraph over railroad right of way.

2205. Property of turnpike company.

2206. Viaducts, embankments and obstructions in street. 2207. Use of streets for railway purposes-Elevated rail

roads.

2208. Injury to or taking of water

rights.

2209. Recovery by tenants and lessees.

2210. Evidence as to damages in condemnation proceed

ings.

§ 2183. Damages for injury to land from public improvements-Generally.-Where land is injured or damaged by the construction of a public improvement it has been determined that the measure of damages is the difference in the market

value of such land before and after the injury.1 So where property has been rendered useless for the purpose for which it was designed by the condemnation of a right of way of a railroad, it has been decided that the measure of damages should not be the full value of the property but the depreciation in value. And the impairment of church property in respect to its usefulness for the purpose to which it is devoted by the exercise of the right of eminent domain is declared to be an element of damage for which recovery may be had where the injury flows directly from the act complained of as a consequence thereof. Again, in estimating the damages in such a case all the elements of damage caused thereby and which tend to diminish the value of the property should be considered.* And where none of the property has been taken for a public improvement it has been determined that in estimating the damages therefrom, the entire improvement made by the city should be considered and not merely a part of it."

§ 2184. Measure of damages generally where property is taken. The measure of damages where property is taken for a public use is generally the market value of such property. Such value is declared to be the amount for which the

2 Chicago, S. F. & C. R. Co. v. McGrew (Mo.), 15 S. W. 931.

3 Durham & N. R. Co. v. Bullock Church, 104 N. C. 525; 10 S. E. 761. 4 Wichita & W. R. Co. v. Kuhn, 38 Kan. 104; 16 Pac. 75; Chicago, R. I. & P. R. Co. v. O'Neill, 58 Neb. 239; 78 N. W. 521; 13 Am. & Eng. R. Cas. N. S. 371; Blakely v. Chicago, K. & N. R. Co., 25 Neb. 207; 40 N. W. 956; Weyer v. Chicago, W. & N. R. Co., 68 Wis. 180; 31 N. W. 710. Chicago v. Anglum, 104 Ill. App.

1 Allmon v. Chicago, P. & M. R. | pipe line in the street is the loss of Co., 155 Ill. 17; 39 N. E. 569; rental value. Chicago v. Anglum, 104 Ill. App. 188; Jacksonville v. Loar, 65 Ill. App. 218; Centralia v. Wright, 58 Ill. App. 51; Paducah v. Allen, 23 Ky. L. Rep. 701; 63 S. W. 981; Chicago, R. I. & P. R. Co. v. O'Neill, 58 Neb. 239; 78 N. W. 521; 13 Am. & Eng. R. Cas. N. S. 371; Omaha Belt R. Co. v. McDermott, 25 Neb. 714; 41 N. W. 648; Shano v. Fifth Ave. & H. S. B. Co., 189 Pa. St. 245; 42 Atl. 128; 43 W. N. C. 387; 29 Pitts. L. J. N. S. 270; In re Chatham St., 16 Pa. Super. Ct. 103. But see Hartman v. Tully Pipe Line Co., 71 San Diego Land & T. Co. v. Hun (N. Y.), 367; 25 N. Y. Supp. Neale, 88 Cal. 50; 25 Pac. 977; 11 L. 24; 55 N. Y. St. R. 28, wherein it is de- R. A. 604; Muller v. Southern Pac. cided that the measure of damages R. R. Co., 83 Cal. 240; 23 Pac. 265; for the construction of a salt water | Colorado C. R. Co. v. Allen, 13 Colo.

5

188.

property could be sold in the open market, not at a forced sale or under special or extraordinary circumstances, but under ordinary circumstances, such as if the owner were to go upon the market voluntarily and offer the property for sale," with a reasonable time to effect the sale. Again, it has been determined that such value is to be estimated on the basis of what a present purchaser would be willing to pay for the property in the condition in which it is in, or the amount for which it would sell at a private sale. And where, owing to peculiar circumstances affecting the property taken, such as its peculiar shape, surroundings or limited uses to which it may be applied, it has no general market value, it is held that

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