Oregon Short Line R. Co. v. Fox

• Citation: 28 Utah 311,78 P. 800
• Decision Date: 08 December 1904
• Docket Number: 1569
• Court: Utah Supreme Court
• Parties: OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant, v. MOYLAN C. FOX, Trustee, and F. M. HAYDEN, Respondents

78 P. 800

28 Utah 311

OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant, v. MOYLAN C. FOX, Trustee, and F. M. HAYDEN, Respondents

No. 1569

Supreme Court of Utah

December 8, 1904

Appeal from the Third District Court, Salt Lake County,--Hon. S.W Stewart, Judge.

Action to condemn a right of way. From a judgment, the railroad company appealed.

AFFIRMED.

Messrs Whittemore & Cherrington for appellant.

The only question involved in this appeal is whether the appellant was entitled at the trial of this case in the court below to show that it had abandoned its old line through the property of the respondents and by reason of such abandonment, that aside from the taking of the land desired for the right of way for the new line, it was no more of a detriment or inconvenience or damage to the respondents, as owners of the land described in the petition, for appellant to construct and operate its railroad along the new line than it would have been for appellant to have continued to maintain and operate its railroad along the old abandoned line through said land.

A map was offered in evidence by appellant, showing the tract of land described in its petition and the location of the old abandoned line of railroad and boundaries of the right of way through said tract of land and the new line of railroad being constructed, and the boundaries of the right of way sought to be acquired in this action, which map was received in evidence and marked "Plaintiff's Exhibit 1."

Evidence is material and relevant which tends to show special benefits to property claimed to be damaged, but not taken, for the purpose of reducing, or, rather, to the extent of the special benefits, of showing that there are no damages. Cemetery Ass'n v. Railroad, 121 Ill. 199; Page v. Railway Co., 70 Ill. 328; Railroad v. Francis, Id. 238; Railroad v. Hall, 90 Ill. 42

In a Massachusetts case, similar to the one under consideration the jury was instructed that if it were satisfied that the laying out and construction of the railroad had occasioned any benefit or advantage to the lands of the petitioner through which the road passed, rendering the part not taken more convenient or useful to the petitioner, it would be the duty of the jury to allow for such benefit by way of set-off in favor of the railroad company. This instruction was sustained by the appellate court. Meachem v. Railroad, 4 Cush. 291; Upton v. Railroad 8 Cush. 600.

In the case of French v. City of Lowell, 117 Mass. 363, it was held that the special benefit derived by the release of the owner's land from the maintenance of an ancient sewer, for the convenience of adjoining estates, was properly considered as a set-off in the assessment of the owner's damages for the taking of his land for a new sewer.

In the case of Israel et al., v. Jewett et al., 29 Iowa 475, the court announces the correct rule, in a case similar to the one at bar, to be "to determine the amount by which the damage for the new or relocated line would exceed the damages sustained by reason of the old one and allow that sum to the claimant." The court in that case held, as it should have been held in this case, that there was but one road in the case; it was simply a change of route for the road so that it ran over a new line, but it continued to be the same road, and that additional damages caused by the change should be allowed, and no more. If this rule had been recognized and followed by the court below, the jury, in awarding damages to the respondents, would never have allowed more than the value of the land taken for the right of way for the new line. A change of line of a railroad amounts to an abandonment of the original line. Stacey v. Railroad, 27 Vt. 39.

The old abandoned right of way through the lands of the respondents was two hundred feet wide, and comprised 25.49 acres, while the right of way for the new line is one hundred feet wide and comprises only 12.27 acres.

No one will undertake to deny that the portion of this tract of land, not sought to be condemned and which was occupied by the old line of railroad, was benefited by having the old line abandoned.

Messrs. Sutherland, Van Cott & Allison and William D. Riter, Esq., for respondents.

As is well said in Lewis on Eminent Domain, at section 471: "When part of the tract is taken, just compensation would... consist of the value of the part taken and damages to the remainder, less any special benefits to such remainder by reason of the taking and use of the part for the purpose proposed."

This is in harmony with our contention, and with a long line of authorities which declare that in assessing the compensation to be paid for the appropriation of lands for railroad purposes, 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 through the land. Railroad v. Blake, 116 Ill. 163; Meacham v. Railroad 58 Mass. 291; Railroad v. Waldron, 11 Minn. 513, 88 Am. Dec. 100; Railway v. Wiede, 25 Neb. 542, 41 N.W. 297; Railroad v. Collett, 6 Ohio St. 182.

After stating that compensation must be made for the value of the land actually taken, Judge Cooley says, in his work on Constitutional Limitations, at page 569: "Then there is further to be considered how much the portion not taken is increased or diminished in value in consequence of the appropriation."

The doctrine announced by all the foregoing authorities is crystallized into our statute, which expressly limits the benefits to be considered to those caused "by the construction of the improvement proposed by the plaintiff." Rev. Stat., sec. 3598, sub. 4.

But the appellant in the case at bar seeks to have benefits assessed, and applied in reduction of damages, which are not caused, "by the construction of the improvements proposed by the plaintiff," but which result, if at all, entirely from the voluntary abandonment of an old improvement.

McCARTY, J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to condemn a right of way for its railroad across a certain section of land, the fee of which is owned by defendant Fox, as trustee, but which is occupied by defendant Hayden, under a lease from Fox. The land sought to be condemned is a strip 100 feet in width, and contains 12.27 acres. The record shows that defendant Fox owned, and defendant Hayden occupied, under a lease, an entire section of land in Salt Lake County. The strip of land which plaintiff sought to condemn in this action is across the northern portion of said section of land. Prior to this suit appellant had constructed, and had in operation, its line of railroad across the southern portion of said section, and nearly a mile distant from the new line. Plaintiff sought to show, upon the trial, that, when the new line across the northern portion of the section was constructed and operated the plaintiff abandoned its old line across the southern part of the section, and that the defendants suffered no more damage by the construction and operation of the new line than they would have suffered if plaintiff had continued to maintain and operate its railroad along the old line. To the introduction of evidence of this character defendants objected which objection was sustained by the court. The case was submitted to a jury, who returned a verdict awarding defendant Fox $ 1,140.44 as compensation for the land taken, and $ 1,140.44 as damages to the...