eral damages; that he can claim and receive compensation only for the special and particular damage which he alone has suffered because of the appropriation of the property under the power of eminent domain.499 § 793. The question of benefits. It is not within the province of this work to consider in detail the constitutional provisions or different judicial rulings relative to either the question of damages or of benefits. The general principles alone it is proper to give, and for a full and detailed consideration of the subject, the works to which reference is made must be consulted.500 As already stated, the consideration of compensation where the whole of property is taken is the simplest condition. Where part is appropriated of the interest, not only must the question of damage to the remainder be considered and made a part of just compensation, but in the determination of this, other elements than the market value of the property enter. The fact that the property left may be benefited by the taking of a part and the construction of the improvement is to be considered and the resulting benefit taken in connection with the total damage will form a basis for the estimation of what may be termed net damages, or to state the principle more concisely, benefits received may lessen the damage to the remainder.501 The 499 Appeal of Campbell (Pa.) 12 Atl. 843. 500 Mills, Em. Dom.; Lewis, Em. Dom.; Am. & Eng. Enc. Law. (2d Ed.) tit. Eminent Domain. 501 Bauman v. Ross, 167 U. S. 548. "The just compensation required by the constitution to be made to the owner is to be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public. Consequently, when part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of the compensation or damages to be paid the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition, as to be in itself of less value than before, the owner is entitled to additional® damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened. If, for example, by the widening of a street, the part which lies next the street, being the most valuable part of the land, is taken for the public use, and what was before in the rear becomes the front part, and upon a benefits thus to be considered are usually those termed "special.” The general benefit and advantage that property may receive as a part of a community from the construction of local improvements is not usually regarded but only the particular and the special advantages which a tract of land may receive or enjoy is to be considered in a determination of the compensation to which the owner is entitled.502 wider street, and thereby of greater value than the whole was before, it is neither just in itself, nor required by the constitution, that the owner should be entitled both to receive the full value of the part taken, considered as front land, and to retain the increase in value of the back land, which has been made front land by the same taking." Piper's Appeal, 32 Cal. 530; Trinity College v. City of Hartford, 32 Conn. 452; Peck v. Borough of Bristol, 74 Conn. 483, 51 Atl. 521; Village of North Alton v. Dorsett, 59 Ill. App. 612. The measure of damages for injury to private property from a public improvement is the depreciation in market value less the benefit conferred. Rassier v. Grimmer, 130 Ind. 219, 29 N. E. 918; Hire v. Kniseley, 130 Ind. 295, 29 N. E. 1132; Hagaman v. Moore, 84 Ind. 496; Grove v. Allen, 92 Iowa, 519; In re Penley, 89 Me. 313, 36 Atl. 397; Commonwealth v. Blue-Hill Turnpike Corp., 5 Mass. 420; Wood v. Inhabitants of Hudson, 114 Mass. 513; Fairchild v. City of St. Paul, 46 Minn. 540; 49 N. W. 325; Lingo v. Burford (Mo.) 18 S. W. 1081; Jackson County v. Waldo, 85 Mo. 637. The special benefits may equal the damages. State v. Miller, 23 N. J. Law, 383. The benefits and damages should be ascertained and paid separately. Betts v. City of Wil liamsburgh, 15 Barb. (N. Y.) 255. But see Frederick v. Shane, 32 Iowa, 254. Construing Iowa Const. art. 1, § 18, which provides that on assessment of damages for property taken for a public use, the jury shall not take into consideration any advantage that may result to the owner on account of the improvement for which it is taken. McKusick v. City of Stillwater, 44 Minn. 372, 46 N. W. 769; Williamson v. Inhabitants of East Amwell, 28 N. J. Law, 270; Fowler v. Larabee, 59 N. J. Law, 259, 35 Atl. 911; Lewis, Em. Dom. § 471a. 502 District of Columbia v. Armes, 8 App. D. C. 393; State v. Evans, 3 Ill. 208; Town of Geneva v. Peterson, 21 Ill. App. 454; Brokaw v. Com'rs of Highways, 99 Ill. App. 15; Waggeman v. Village of North Peoria, 155 Ill. 545, 40 N. E. 485. distinguishing City of Bloomington v. Latham, 142 IL 462, 32 N. E. 506, 18 L. R. A. 487; Gordon v. Highway Com'rs of Road Dist. No. 3, 169 Ill. 510, 48 N. E. 451; City of Chicago v. Spoor, 190 III. 340, 60 N. E. 540; Rassier v. Grimmer, 130 Ind. 219; Goodwin V. Warren County Com'rs, 146 Ind. 164; Pottawattomie County Com'rs v. O'Sullivan, 17 Kan. 58. In the opinion of the court Mr. Justice Brewer said: "Outside of any special constitutional or statutory restrictions, the right of the state to take private property for public use, and the The courts recognize the existence, therefore, of both general and special damages as well as general and special benefits and the authorities are widely at variance in regard to the extent to which these various elements must be considered in determining But this compen corresponding right of the individual to receive compensation for the property thus taken, may be assumed. * sation is secured if the individual receive an amount which, with the direct benefits accruing, will equal the loss sustained by the appropriation. We of course exclude the indirect and general benefits which result to the public as a whole, and therefore to the individual as one of the public; for he pays in taxation for his share of such general benefits. But if the proposed road or other improvement inure to the direct and special benefit of the individual out of whose property a part is taken, he receives something which none else of the public receive, and it is just that this should be taken into account in determining what is compensation. Otherwise, he is favored above the rest, and instead of simply being made whole, he profits by the appropriation, and the taxes of the others must be increased for his special advantage. Upon general principles then, and with due regard to right and justice, it should be held, that the public may show what direct and special benefits accrue to an individual claiming road damages, and that these special benefits should be applied to the reduction of the damages otherwise shown to have been sustained. * word 'damages' is of general import, and is equivalent to compensation. It includes more than the mere value of the property taken, for often the main injury is not The in the value of the property absolutely lost to the owner, but in the effect upon the balance of his property of the cutting out of the part taken. He is damaged, therefore, more than in the value of that which is taken. Conversely, the appropriation of the part taken to the new uses for which it is taken may operate to the direct and special improvement and benefit of that not taken. Surely, this direct increase in value, this special benefit resulting from the improvement the public is making, and for which it must be taxed, reduces the damages he has sustained." Roberts v. Brown County Com'rs, 21 Kan. 247. "That is, the increased value must be founded upon something which affects the land itself directly and proximately. It must be founded upon something which increases the actual or usable value of the land, as well as the market or salable value thereof, and not such as increases merely the market or salable value alone. Increased value founded upon merely increased facilities for travel and transportation by the public in general, is not the kind of increased value which may be taken into consideration in reducing the damages to be awarded to the landowner. That kind of increased value is too indirect and too remote from the original cause, which cause is the laying out of the road. Besides, it is a kind of increased value which is common to the whole community in general, and to each individual thereof to a what is just compensation.50 The local decisions of each state must settle the question for the local practitioner, as no general rule can be given. greater or less extent; and it has no relation to the use of the land as land, but it is merely an increased market value founded upon the extraneous circumstances of increased facilities for public travel and transportation." Trosper v. Saline County Com'rs, 27 Kan. 391; Nand v. City of Newton, 58 Kan. 229; Chase v. City of Portland, 86 Me. 267, 29 Atl. 1104; Friedenwald v. City of Baltimore, 74 Md. 116, 21 Atl. 555; Boston & M. R. Co. v. County of Middlesex, 83 Mass. (1 Allen) 324; Dwight v. Hampden County Com'rs, 65 Mass. (11 Cush.) 201; Farwell v. City of Cambridge, 77 Mass. (11 Gray) 413; Janvrin v. Poole, 181 Mass. 463, 63 N. E. 1066; Whitney v. City of Boston, 98 Mass. 312; Uphan v. City of Worcester, 113 Mass. 97; French . City of Lowell, 117 Mass. 363; Clark v. City of Worcester, 25 Mass. 226; Webster v. Inhabitants of Melrose, 168 Mass. 5; Arbrush v. Town of Oakdale, 28 Minn. 61; Miller v. Towns of Beaver & Le Roy, 37 Minn. 203, 33 N. W. 559; Minnesota Transfer R. Co. v. District Court, 68 Minn. 242, 71 N. W. 27; Kent v. City of St. Joseph, 72 Mo. App. 42; State v. City of Kansas, 89 Mo. 34, 14 S W. 515; Lingo v. Burford, 112 Mo. 149, 20 S. W. 459, affirming 18 S. W. 1081; Kansas City v. Ward, 134 Mo. 172; Wagener v. Gage County, 3 Neb. 237. The measure of damages to be awarded the landowner through whose property a public highway is constructed is the fair market value of the land actually taken while special damages may be set off against inciden tal injury to the residue of the tract. Kirkendall v. City of Omaha, 39 Neb. 1, 57 N. W. 752; City of Omaha v. Howell Lumber Co., 38 Neb. 633, 46 N. W. 919. Special damages to the remainder of a tract cannot be set off against the value of the land taken but only against incidental damages to the remainder. Woodman v. Town of Northwood, 67 N. H. 307, 36 Atl. 255; Carpenter v. Landaff, 42 N. H. 218; Whitcher v. Benton, 50 N. H. 25. Access resulting from the opening of a highway is not a special benefit, but one enjoyed by the community at large. Asheville Com'rs v. Johnston, 71 N. C. 398; Parker v. Burgett, 29 Ohio St. 513; Beekman v. Jackson County, 18 Or. 283, 22 Pac. 1074; City of Allegheny v. Black's Heirs, 99 Pa. 152; Blair v. City of Charleston, 43 W. Va. 62, 26 S. E. 341, 35 L. R. A. 852; Dickson v. City of Racine, 65 Wis. 306. 503 City of Kansas v. Morse, 105 Mo. 510, 16 S. W. 893; Covert v. Hulick, 33 N. J. Law, 307; Lewis, Em. Dom. (2d Ed.) § 465. "The decisions may be divided into five classes, according as they maintain one or the other of the following propositions: "First. Benefits cannot be considered at all. "Second. Special benefits may be set off against damages to the remainder, but not against the value of the part taken. "Third. Benefits, whether general or special, may be set off as in the last proposition. 794. Discontinuance of proceedings. It is optional with the one exercising the power of eminent domain to proceed with the proposed improvement and he may voluntarily discontinue the proceedings at any time.504 A liability to the landowner under these circumstances is largely a question of local statutes or decisions.505 798. 799. Legislative control. "Fourth. Special benefits may be set off against both damages to the remainder or the value of the part taken. "Fifth. Both general and special benefits may be set off as in the last proposition. It will be observed that these propositions pass from one extreme to the other." 504 Brokaw v. City of Terre Haute, 97 Ind. 451. Proceedings to widen a street may be discontinued by a city although it had taken possession of the land sought to be appropriated. City of St. Louis v. Weber, 140 Mo. 515, 41 S. W. 965; Hawkins v. Trustees of Rochester, 1 Wend. (N. Y.) 53. A city has no authority to discontinue condemnation proceedings after the award has been made and confirmed by the lapse of time in which an appeal may be taken. People v. Village of Brooklyn, 1 Wend. (N. Y.) 318; Washington Park v. Barnes, 2 T. & C. (N. Y.) 637; In re Canal St., 11 Wend. (N. Y.) 154; In re Corporation of New York, 18 Johns. (N. Y.) 506; In re Anthony St., 20 Wend. (N. Y.) 618; People v. Syracuse Common Council, 78 N. Y. 56. Proceedings by municipal authori ties to condemn land for public purposes cannot be discontinued by them after the amount of compensation has been fixed as finality. 505 In the following case a liability was imposed: Brown v. Robertson, 23 Ill. 631; Black v. City of Baltimore, 50 Md. 235; Harrington V. Berkshire County Com'rs, 39 Mass. (22 Pick.) 263; Wheeler v. City of Fitchburg, 150 Mass. 350, 23 N. E. 207; Pearsall v. Eaton County Sup'rs, 74 Mich. 558, 42 N. W. 77, 4 L. R. A. 193; Clark v. Town of Hampstead, 19 N. H. 365; Thurston v. Town of Alstead, 26 N. H. 259; In re Trustees of White Plains, 65 App. Div. 417, 72 N. Y. Supp. 1026. The discontinuance of proceedings is within the discretion of the board as to its terms and is not limited to the payment of ordinary taxes, costs and disbursements. Highland v. City of Galveston, 54 Tex. 527. As to no resulting liability see the following cases: Carson V. City of Hartford, 48 Conn. 68; Stevens v. Borough of Danbury, 53 Conn. 9; City of New Bedford v. Bristol County Com'rs, 75 Mass. (9 Gray) 346. |