that in awarding damages to the owner of lands taken for a railroad, the exposure of the remaining land to fire from the railroad engines may be taken into consideration notwithstanding the company is by statute liable for any fire so caused. But it is held that in proceedings to condemn land for the laying of pipes to convey natural gas that damages should not be allowed for probable future losses by fire and explosions as independent items and disconnected from the diminished value of the land.88

§ 2193. Injury to business, etc.-The measure of damages in condemnation proceedings should not, it has been determined, include an allowance for injury to business or loss of profits. And it is held that the recovery should not include an allowance for damages resulting from the removal of goods to

91

90

another place of business. Evidence of loss of profits is in some cases, however, admitted for the purpose of showing value. And in condemnation proceedings for the appropriation of springs by which the water power of a mill was impaired, it was held proper to show what the profits would be upon the grinding of grain by the water diverted. Again, in a Canadian case it is declared that where the land upon which a trade is carried on is condemned, there may be a recovery for damage to the good will.

93

§ 2194. Injury to crops and trees.-For the purpose of estimating the damages for the taking of land for a public use, evidence may be admitted of the value of crops which have been destroyed or injured," or of the value of trees.

93

§ 2195. Franchise as an element.-Where the taking of property of a company prevents or destroys the exercise of its franchise the damages for the taking should include an allowance for the franchise. So where property of a navigation company is condemned the value of a franchise which it possesses to receive tolls for the use of a lock and dam is an element for which compensation must be paid as such franchise is as much a right of vested property as is the ownership of tangible property. It was said by Mr. Justice Brewer in this case: "The theory of the government seems to be, that the right of the navigation company to have its property in the river and the franchise given by the state to take tolls for the use thereof, are conditional only, and that whenever the gov

96

90 Becker v. Philadelphia & R. T. R. Co., 177 Pa. St. 252; 35 Atl. 617; 35 L. R. A. 583; 39 W. N. C. 150. But see Patterson v. Boston, 20 Pick. (Mass.) 159.

91 Laflin v. Chicago, W. & N. R. Co., 33 Fed. 415; Dupuis v. Chicago & N. W. R. Co., 115 Ill. 97.

92 Port Henry v. Kidder, 39 App. Div. (N. Y.) 640; 57 N. Y. Supp. 102. 93 In re McCauley, 18 Ont. Rep. 416; 35 Am. & Eng. Corp. Cas. 175.

94 Lance v. Chicago, M. & St. P. R. Co., 57 Iowa, 636; Penney v. Com.,

173 Mass. 507; 53 N. E. 95; Seiferer v. St. Louis, 141 Mo. 586; 43 S. W. 163; Lafferty v. Schuylkill River E. S. R. Co., 124 Pa. St. 297; 16 Atl. 869; 3 L. R. A. 124; 23 W. N. C. 334; 46 Phila. Leg. Int. 110; 19 Pitts. L. J. N. S. 382.

95 St. Louis &c. R. Co. v. Millett, 59 Ill. 235.

96 Monongahela Nav. Co. v. United States, 148 U. S. 312; 37 L. Ed. 463; 13 Sup. Ct. 622. See sec. 2199, herein.

ernment, in the exercise of its supreme power, assumes control of the river, it destroys both the right of the company to have its property there, and the franchise to take tolls. But this is a misconception. The franchise is a vested right. The state has power to grant it, it may retake it as it may take other private property, for public uses, upon the payment of just compensation. A like, though a superior, power exists in the national government. It may take it for public purposes, and take it even against the will of the state; but it can no more take the franchise which the state has given than it can any private property belonging to an individual. . . . Our conclusions are, that the navigation company rightfully placed this lock and dam in the Monongahela River; that with the ownership of the tangible property, legally held in that place, it has a franchise to receive tolls for its use; that such franchise was as much a vested right of property as the ownership of the tangible property; that the right of the national government, under its grant of power to regulate commerce, to condemn and appropriate this lock and dam belonging to the navigation company, is subject to the limitations imposed by the fifth amendment, that private property shall not be taken for public uses without just compensation; and that just compensation requires payment for the franchise to lake tolls as well as for the value of the tangible property."

§ 2196. Entry without proper proceedings-Right to recover for improvements.-Where an entry is made upon the lands of a person, without condemnation proceedings or the consent of the owner, and structures or other improvements are constructed thereon, it has been determined that the measure of damages to which the owner will be entitled in condemnation proceedings will be subject to the same principles as control in other cases, and that in determining the value of the land or estimating the damages he cannot recover for such structures or improvements. In a case in Indiana, however, 97 Examine in this connection, | Me. 189; In re Flatbush Ave., 1 Fidelity Trust & Safety Vault Co. Barb. (N. Y.) 286. v. Mobile St. Ry. Co., 53 Fed. 687; East Hartford v. Hartford Bridge Co., 17 Conn. 79; State v. Noyes, 47

98 Jones v. New Orleans R. Co., 70 Ala. 227; San Francisco & N. P. R. Co. v. Taylor, 86 Cal. 246; 24

where a railroad company entered upon land and erected buildings two years before proceedings were begun by it for the appropriation of such land, it was decided that the owner of the land was entitled to compensation for its value with the improvements thereon at the time the proceedings to appropriate were instituted and not at the time the land was entered."

§ 2197. Allowance of interest.—Where property has been appropriated for a public use it has been determined that the owner is entitled upon the assessment of the damages to an allowance of interest from the time of the taking or entry,10 or from the date of the confirmation of the commissioner's report; or from the time of the demand. So it has been decided that interest may be properly allowed from the date of the award unless a tender or deposit of the amount in court has been made. But if there has been a tender of the amount Pac. 1027; Jacksonville, T. & K. W. | 1116; Longworth v. Cincinnati, 48 R. Co. v. Adams, 28 Fla. 631; 10 So. Ohio St. 637; 29 N. E. 274; 35 Am. 465; 14 L. R. A. 533; Chicago & A. R. & Eng. Corp. Cas. 152; 27 Ohio L. Co. v. Goodwin, 111 Ill. 274; Graham J. 7; Bellingham Bay & B. C. R. Co. v. Pittsburgh & L. E. R. Co., 145 v. Strand, 14 Wash. 144; 44 Pac. Pa. 504; 22 Atl. 983; 22 Pitts. L. J. 140; 3 Am. & Eng. R. Cas. N. S. N. S. 164; 48 Phila. Leg. Int. 538; 171. But examine In re East 169th International Bridge & T. Co. v. St., 40 App. Div. (N. Y.) 452; 58 N. McLane (Tex. Civ. App.), 28 S. W. Y. Supp. 819, aff'g 26 Misc. 257; 56 454; St. Johnsbury & L. C. R. Co. v. N. Y. Supp. 819; Becker v. PhilaWillard, 61 Vt. 134; 17 Atl. 38; 21 L. delphia & R. T. R. Co., 177 Pa. St. R. A. 528; Lyon v. Green Bay & M. 252; 35 Atl. 617; 35 L. R. A. 583; 39 R. Co., 42 Wis. 538. W. N. C. 150; Klages v. Philadelphia & R. T. R. Co., 160 Pa. St. 386; 28 Atl. 862; 57 Am. & Eng. R. Cas. 485; 34 W. N. C. 171; Morris v. Coleman County (Tex. Civ. App.), 35 S. W. 29.

99 Graham v. Connersville & N. C. J. R. Co., 36 Ind. 463; 10 Am. Rep. 56. See Philadelphia, R. & N. E. R. Co. v. Bournan, 23 App. Div. (N. Y.) 170; 48 N. Y. Supp. 901; New York, West Shore & B. R. Co. v. Gennett, 37 Hun (N. Y.), 317.

100 Phillips v. South Park Comrs., 119 Ill. 626; Missouri, F. S. & G. R. Co. v. Owen, 8 Kan. 409; Bangor & P. R. Co. v. McComb, 60 Me. 291; Imbescheid v. Old Colony R. Co., 171 Mass. 209; 50 N. E. 609; Hampton v. Kansas City, 74 Mo. App. 129; 1 Mo. App. Repr. 151; In re City of New York, 167 N. Y. 627; 60 N. E.

1 Devlin v. New York, 131 N. Y. 123; 30 N. E. 45; 42 N. Y. St. R. 744; In re Opening & I. Bd., 21 App. Div. (N. Y.) 357; 47 N. Y. Supp. 564; In re Second Avenue, 7 Pa. Super. Ct. 62; 42 W. N. C. 104; 15 Lanc. L. Rev. 191.

2 Clough v. Unity, 18 N. H. 75. & Concord R. R. Co. v. Greely, 23 N. H. 237.

awarded to the landowner and the award is not increased on appeal, it is held that interest is not allowable.' If, however, a larger sum is awarded on appeal, interest may be allowed from the date of appropriation, even though the money may have been paid into court as provided for by statute.

§ 2198. Effect of verdict-Whether excessive. That improper elements have been included by the jury in their estimates of damages or benefits will not be presumed on appeal.' And it has been determined that a verdict will not be disturbed on appeal unless it is so clearly at variance with the evidence as to indicate that it was the result of passion, prejudice or undue influence, or unless the jury were palpably mistaken; or that the court has erred on questions of law to the prejudice of the appealing party.10 So a verdict will not be disturbed where it is supported by substantial evidence," or where the evidence is conflicting and the jury viewed the premises. And it has been determined in New York that unless an erroneous rule of law has been followed by the court below, the finding of such court as to the amount of compensation where property has been condemned will be binding on

* March v. Portsmouth, etc., R. R. | 11 Byrnes v. Douglass, 83 Fed. 45; Co., 19 N. H. 372. 27 C. C. A. 399; 48 U. S. App. 526;

5 Chicago, R. I. & P. R. Co. y. Buel, United States v. Seufert Bros. Co., 56 Neb. 205; 76 N. W. 571.

Neilson v. Chicago & N. W. R. Co., 91 Wis. 557; 64 N. W. 849. See Chicago, S. F. & C. R. Co. v. Eubanks, 130 Mo. 270; 32 S. W. 658.

7 Haynes v. Duluth, 47 Minn. 458; 50 N. W. 693.

8 Metropolitan W. S. Elev. R. Co. v. Johnson, 159 Ill. 434; 42 N. E. 871; Snodgrass v. Chicago, 152 Ill. 600; 38 N. E. 790. See In re Brook Ave., 8 App. Div. (N. Y.) 294; 40 N. Y. Supp. 949.

78 Fed. 520; United States v. Taffe, 78 Fed. 524; Chicago General R. Co. v. Murray, 174 Ill. 259; 51 N. Ę. 245; Davis v. Northwestern Elev. R. Co., 170 Ill. 595; 48 N. E. 1058; 9 Am. & Eng. R. Cas. N. S. 452; Chicago, P. & M. R. Co. v. Mitchell, 159 Ill. 406; 42 N. E. 973; Anderson v. Decoria Supers., 74 Minn. 339; 77 N. W. 229; Chicago, R. I. & P. R. Co. v. George, 145 Mo. 38; 47 S. W. 11; Howard v. Clay County Supers., 54 Neb. 443; 74 N. W. 953; In re Daly, 26 App. Div.

Allmon v. Chicago & P. M. R. Co., | (N. Y.) 326; 49 N. Y. Supp. 795. 155 Ill. 17; 39 N. E. 569.

10 Board of Trade Teleg. Co. v. Blume, 176 Ill. 247; 52 N. E. 258; Kingston v. Terry, 24 Misc. (N. Y.) 616; 53 N. Y. Supp. 652.

12 Cook & R. Co. v. Sanitary Dist. of Chicago, 177 Ill. 599; 52 N. E. 870; Rock Island & P. R. Co. v. Leisy Brew. Co., 174 Ill. 547; 51 N. E. 572 ; Metropolitan W. S. Elev. R. Co. v.