Price v. Milwaukee & St. Paul Railway Co.

Cole, J. In this case, after the judgment was entered, the plaintiff filed a remittitur of $150, included in the damages by the jury as the cost of constructing a necessary retaining wall along his lot, to protect it from further injury and to restore the bank to its former condition; this remittitur to take effect providing the company should construct such wall by the 1st day of July, 1870. All the testimony upon the point went to show that such a wall was absolutely necessary, and the cost of it was beyond all question a proper item of damages. The company, however, offered to show that a wall was necessary for the security of its roadbed and the safe operation of the road, and that it had instructed its engineer to construct such a wall along the bank, and had procured the necessary material for that purpose. In the case of Thompson against this same defendant (ante, p. 93), we have held that such testimony was not legitimate and proper to go to the jury for the purpose of diminishing the amount of damages which a party was entitled to recover by reason of the taking and using of his land by the company. The expense of constructing this wall was a legitimate element to be considered in estimating the plaintiff’s damages, and it was no defense to show that [106] it might be equally .necessary for the security of the road. The fact appeared that the road had been built, and trains were running regularly over it. And when the plaintiff remitted the expense of building the wall, providing the company performed the work within seven months, it was all and more than the defendant was entitled to ask as a matter of strict legal right. Thompson v. Milwaukee & St. Paul R. R. Co., just decided. We perceive no valid objection to the instructions which the court gave in regard to the general rules to be observed by the jury in the assessment of plaintiff’s damages. They are so obviously just and well-founded in sound legal principles, as really to require no comment or vindication. It appeared that the plaintiff had placed certain fixtures upon the premises, to adapt his property to use as a water-cure. The court, at the request of the defendant, told the jury that in considering the damages, they were not to allow anything to the plaintiff on the ground that taking the property by the company had destroyed or affected the residue of the premises for the' use of a water-cure. And the court also, at the request of the plaintiff, instructed the jury that if they found that before proceedings were taken by the railroad company to condemn the right of way, the plaintiff had put into and upon the premises certain fixtures and appurtenances necessary to them for a water-cure, and that by reason of the construction and use of the railroad across the premises, the premises became unavailable and unfit for that use, then they were to allow in the damages the difference between what these fixtures and appurtenances were worth in connnection with the property as a water-cure (not exceeding their reasonable cost), and what they would be worth to be removed from the premises and applied to other uses. The charter of the company in the clearest manner recognizes the principle that the company must pay [107] the price of the land taken and all consequential damages caused the land-owner by constructing the road across his land. Sec. 5, chap. 75, P. & L. Laws of 1860. And if the* defendant entered upon the plaintiff’s premises in such a way as to destroy the fixtures he had put upon them for use as a water-cure, he was entitled to compensation. The rule laid down in the above instruction is very favorable for the company. It is claimed that whether the fixtures were valuable as appurtenances to a water-cure, depended essentially upon the question whether the institution itself was valuable. But suppose it had appeared that the water-cure was very flourishing and profitable, what then would have been the rule of damages ? But without going into any general reasoning upon the point, it is enough to rest the question upon the language of the charter just cited. That requires the company not only to pay the value of the land actually taken for the use of its road, but also the damage or injury which the owner shall sustain or may sustain by reason of such taking. Manifestly the company had no right to destroy the fixtures of the water-cure without making some compensation therefor. There are some other points discussed upon the brief of the counsel for the defendant, but we do not think they require any special notice. No error has intervened in the proceedings which would warrant a reversal of the judgment. By the Court. — The judgment of the circuit court is . affirmed. Paine, J., did not sit in this case.