Turnpike Road v. Brosi

The opinion of the Court was delivered, September 22, by Lewis, J. A tenant for years is the owner of an estate in the land, and is therefore entitled to compensation for an injury done to his estate by a turnpike road company in the construction of the road. Any advantages which his particular estate may derive from, the road maybe deducted from the amount of the injury done to him; but, the advantages which the owners of any other estate may derive from the road cannot be deducted from the claim of the tenant for years. The work may produce nothing but injury during the brief term of the tenant for years. While the workmen are excavating the ground, tearing down his fences, occupying his premises with teams and materials, and exposing his crops to injury, the road is generally in an unfinished state, and entirely unfit for use. This may continue during the whole of the term. The advantages of the road may commence only upon the expiration of the term, and thus the estate in reversion may receive the whole benefit from the work. In such a case, it would be gross injustice to the tenant to extinguish his rights by means of a cross demand against another. The proper place for the consideration of advantages to the reversion is, when the owner of that estate prefers his claim for damages. It is certainly true that the purchaser of an estate cannot claim damages for an injury done to it before his purchase. Such claim is a chose in action, which remains in the hands of the vendor. The vendee is presumed- to pay less for the estate on account of the injury, and has therefore no claim to recover damages for it. Rut we do not perceive from the facts stated in the paper-book, that the plaintiff in error was entitled to instructions affirming the principle. On the contrary, the facts as stated in the counter-statement, and not denied, are “ that the lease commenced on the 1st of April, 1847, and terminated on the 1st of April, 1858 ; and that the plaintiff below proved that he was in possession by assignment under this lease at the time the road was surveyed,, and during the time it was in process of making.” [33] The errors assigned are unsustained, and the judgment must therefore be affirmed. Judgment affirmed.