Putnam v. Douglas County. PUTNAM V. DOUGLAS COUNTY. (6 Oregon, 378.) Private property taken for public use — Measure of damages. A legislative enactment, establishing, as the measure of damages where privats lands are taken for a highway, the loss in value which the complain ant's premises suffer by the opening of the road, is constitutional. In estimating the damages, the jury may consider the prospective benefits which the road will confer on the premises, and are at liberty to find that the benefits cancel all the damage. A CTION for damages for opening of a road. The facts are stated in the opinion. W. R. Willis, for appellant.. S. H. Hazard, Prosecuting Attorney, for respondent. PRIM, C. J The appellant claimed three thousand dollars as damages for the opening of a county road through his premises. The viewers appointed by the county court to assess the damages claimed by appellant reported that in their judgment the premises. were of no less value with the road laid out through them than they were without it; and hence that appellant was not entitled to any damage. Whereupon the county court, having adopted the report of the viewers, ordered the road to be opened. From this order the appellant appealed to the Circuit Court, where the issue, as to how much less valuable the premises of appellant would be rendered by the opening of said road, was tried by a jury, and a verdict rendered in favor of the respondent. Whereupon appellant took his appeal to this court. The error complained of by appellant is that the court erred in refusing certain instructions, asked by appellant, and in giving certain other instructions excepted to by him. Appellant asked the court to instruct the jury that "the measure of damages in this case is the value of the land taken, together with the necessary expenses of building fences, and the inconvenience it may be to the remainder of the premises." The court instead gave the following instruction, to which appellant excepted. Putnam v. Douglas County. The question to be found by the jury is, how much less valuable the premises of appellant will be rendered by the opening of the proposed road. In determining this question, the jury will estimate the value of the land occupied by the road, the necessary expense of building fences, and the inconvenience it may be to the remainder of the premises." Appellant asked the court to instruct the jury that "the benefits to the land resulting from the location of the road may be an offset against any consequential damages to the premises, but not against the value of the land." This instruction the court refused, but gave, instead, the following: "The jury will also take into consideration all special advantages the opening of the road will give to the premises of appellant, which appear, if any; as, for instance, the giving of an outlet to market to said premises, and the enhancement in value of the land taken." Upon the consideration of all the evidence, if you find that the premises of appellant will be rendered less valuable by the opening of the road in dispute, you will find how much less valuable they will be rendered thereby, and find a verdict in his favor for that amount. If, however, upon the consideration of all the evidence, you find that the premises of appellant will not be rendered less valuable by the opening of the road in question, you will give a verdict in favor of respondent. The court further instructed as follows: "The advantages which the proposed road will confer on the premises of the appellant may be considered by you, not only as a compensation for the increased fencing and injury to the remainder of the land not occupied by the road, but as a compensation of all damages caused by the opening of said road; and if they exceed or equal such damages, you will find for the respondent." The question presented upon this appeal by these exceptions is, what shall be the measure of damages or rule of compensation for land taken for public use in opening a public highway through the land of a private individual? The legislature of this State has not only provided how land may be taken for such purposes, but what shall be the rule of compensation when so taken. And there is no complaint in this case that the statutory mode has not been pursued. The legislature has provided that if any person through whose lands a county road may be laid out shall feel that he or she would be injured by the opening of the same, and shall make complaint thereof in writing to the county court, three disinterested householders shall be appointed "to assess and determine how much less valuable such premises of Putnam v. Douglas County. the complainant would be rendered by the opening of said road." Miss. Laws, § 7, p. 723. Hence it will be seen that the rule of compensation adopted by the court in the instructions complained of, is in accordance with the rule contained in this legislative provision. But it is claimed by appellant that this provision of the statute is in violation of that provision of our Constitution which provides that "private property shall not be taken for public use without just compensation." It is claimed by appellant that under this provision the owner of land taken for public use is entitled to have actual value thereof in money without deduction for estimated profits or advantages accruing to the owner from the public use of his property. There are quite a number of decisions to that effect, but we think it will be found generally that they were made under constitutional provisions and statutes differing in some respects from ours. The measure of damages which appears to be established by most of the cases, for building a road through a man's land, is the difference between the value of the land before the road was built, and its value after the road is finished. And this is the rule adopted by our statute. This rule appears to have been sanctioned by the judicial decisions of Indiana, Pennsylvania, New York and Massachusetts. McIntire v. The State, 5 Blackf. 384; Hornstein v. A. & G. W. R. R. Co., 51 Penn. St. 87. The provisions contained in our Constitution and statute in relation to the taking of private property for public use appear to have been taken from the Indiana Constitution and statute; and, having adopted them after they had been judicially construed by the courts of that State, it must be presumed that we adopted along with them the construction of those courts. Sedg. Con., § 497; Smith's Con., § 634. The ordinance of Congress for the government of the territory of the United States north-west of the river Ohio, passed in 1787, contains a clause requiring "compensations" for private property taken for public use. Upon the division of the territory, the legislature thereof enacted that the persons chosen to assess damages for land taken for a public highway "should take into consideration how much less valuable such land would be rendered" by reason of the opening of the contemplated road. This same provision existed when the Constitution of Indiana was adopted, and was incorporated into their statute after its adoption. In McIntire v. The State, 5 Blackf. 383, McIntire VOL. XXV.-67 Putnam v. Douglas County. claimed damages against the State for land and materials taken from him for the purpose of constructing a railroad under the internal improvement act, passed in 1836, which provides that in the assessment of damages the benefits resulting to the complainant from the construction of the publie work causing the injury complained of shall be taken into consideration. That act was attacked on the ground that it was unconstitutional, but was upheld by the court in that case. The court reviewed very thoroughly the constitutional provision and all the statutes enacted upon that subject up to the time when the decision was made. The court, in commenting upon the meaning of "just compensation," said: The "meaning is, not that property thus taken shall be valued and its price paid in money, but that the individual who claims to be a sufferer in consequence of the exercise of the right of eminent domain over his property, shall be recompensed for the actual injury which he may have sustained, all circumstances considered, by the measure of which he complains." In ascertaining the extent of the injury, undoubtedly an estimation of the value of the property taken at the time of taking is a necessary step, but if the benefits really and substantially resulting to the complainant are equal in pecuniary value to the value of that of which the public has deprived him, we conceive they constitute a just and constitutional compensation for the deprivations to which he has been subjected, and such, in our opinion, is the nature of the benefits contemplated by the statute in question-the enhancement of the property by the construction of a public improvement. This doctrine is fully sustained by a series of decisions in the State of Pennsylvania, as will be seen by examination of the case of Hornstein v. A. & G. W. R. R. Co., 51 Penn. St. 87; Angel on High., § 116; 2 Mass. 492; 4 Com. 419. This statutory provision of ours establishing the measure of damages for private property taken for public use was in full force at and long prior to the adoption of our Constitution. And having thus been acted upon and upheld for a long series of years, we are of the opinion the courts should be slow to decide it unconstitutional under such circumstances. It follows from the views herein expressed that the judgment of the court below should be affirmed. SHATTUCK, J., dissenting. Judgment affirmed. Milarkey v. Foster. MILARKEY V. FOSTER. (6 Oregon, 378.) Private action for obstructing highway — Parol evidence. One who, in the prosecution of his business, attempting to pass over a public highway with teams and wagons, is for five days delayed by an obstruction unlawfully placed in the road by another, has a good cause of action for damages. (See note, p. 533.) On the question whether a place is a town, within the meaning of a law prohibiting toll-gates within the limits of a town, oral evidence is competent to prove the number of houses, shops, etc. A CTION for damages for the obstruction of a highway. The complaint alleged, that on or about May 26, 1876, the plaintiff arrived at the town of Orodell, in Union county, Oregon, with an eight-mule team and two freight wagons, which were his property, and which were loaded with over ten thousand pounds of goods, wares and merchandise, which he had contracted to deliver at sundry points in Union and Baker counties; that he was then on his way to deliver said freight; and, in order to do so, he was compelled to pass over the main highway leading through said town; that at said time and place said defendant forcibly, wrongfully and unlawfully obstructed the said main highway passing through said town, by erecting a toll-gate thereon, and keeping the same standing therein, and forbidding and preventing this plaintiff from passing through the same with his said teams; and that plaintiff was thereby prevented from passing through said place with his said teams for a period of about five and one-half days, to plaintiff's damage, two hundred and fifty dollars." The answer denies the alleged obstruction, and alleges that, at the time in question, the highway was the defendant's private property under a lease from the owner. The respondent recovered judgment. M. Baker and Bonham & Ramsey, for appellant. L. Evarts, for respondent. PRIM, C. J. The first error complained of by appellant is the |
