Bland v. Hixenbaugh

Day, J. ^enceítama ges. I.- Appellant complains of the giving of thefolowinginstruction: “If you find that even though no road was one the fences along the line of said road where it runs through the plaintiff’s premises, would be a proper and profitable fence to construct, for ordinary purposes of dividing the farm into fields along such line, and would not be wholly useless but for the road, then that should be considered by you in mitigation of damages, if any, arising from the necessity to construct this one fence, but in determining how much if anything, the damages, if any, arising from this fence are so mitigated if anything, you shall consider whether or not, from tbe nature or lay of the land, the fence would not be more convenient and profitable dividing the premises into fields some other way.” This instruction is, we think, erroneous. The Constitution, Section 18, Article 1, provides that, “ Private property shall not be taken for public use without just compensation first being made, or secured to be made, to the owner thereof, as [535] soon as the damages shall be assessed by a jury, who shall not-take into consideration any advantages that may result to said owner on account of the improvement for which it is taken.” The ground over which the road passes, as well as the value of fences which the location of the road renders it necessary to-construct, is private property taken for public use, and for. which the owner must be compensated. And the compensa-tionto be allowed for the property taken is not to be diinin-, ished because of advantages resulting to the owner on account of the improvement. The view of the appellee seems to be that, when the construction of a road through one’s premises: renders necessary the building of fences on both sides of the road, any advantages which may result from having- the farm separated into smaller divisions, result not from'the making of the road, but from the building of the fences, and that the' case is not within the constitutional provision. But this construction of the constitution we consider too narrow and technical. But for the road the fences would not be required nor built. If the road requires an expenditure,'which may in some manner result in benefit to the premises, the benefit as really results from the road as does the damage, or the necessity for the outlay. 2. rjfs-TKucTioir: special verdict: practicemtlieSupremo court; Appellee insists that the abstract contains none of the -evidence showing the applicability of the instruction. But if there was no evidence to which it was applicable, it was error to give it, whether right or wrong. Appellee further claims that but few of the instructions given are set out in the abstract, and that this may have been, and will be presumed to have been, modified by others. If this instruction contained no erroneous enunciation of law, and was merely defective in not stating enough, or not giving all the modifications to which it was liable, such would be the case. But there could be no modification of this instruction, presenting the law properly upon this subject,'without being in conflict with this instruction. And such conflict would of itself . , _ require a reversal ot the case. Van Slyck v. Mills & Co., 34 Iowa, 375. But one state oí case can be imagined in which this instruction could have worked [536] no prejudice, and that is, if the jury found specially that the fence in question was not in a place where it would be proper and profitable, for ordinary purposes of dividing the farm into fields to construct a fence. But if anything so exceptional occurred, appellee should have made it to appear in an amended abstract. We will not, for the purpose of sustaining a judgment, presume a special verdict, and that of a particular kind. a. private BOA»: partition fence. II. Appellant also complains of the following instruction: “But if you find that before the establishment of this road, it was necessary in order to afford the adjacent land . u . . owner ingress and egress, from his residence, to have a private way along said line of road, then he would have the right to* maintain said way, so long as necessary therefor, and plaintiff could not compel him to join fences.” This instruction is clearly right. Certainly plaintiff could not compel defendant to close a way necessary as an approach to his house, in order to join fences with plaintiff. The statement of the case shows that when defendant inclosed his premises, he left this private way entirely on his own land. If it was necessary as an approach to his house he had a right to maintain it, and he could not be required to maintain a fence on his own side of the lane, and half of that bn the plaintiff’s side. The cases of Talbot v. Blacklege, 22 Iowa, 572, and Bankhead v. Brown, 25 Iowa, 540, cited'by appellant, are not in point. 4. vences: highway. III. Appellant insists that the following instruction is erroneous: “Under the existing statutes, hogs and sheep are not free commoners, but the owners thereof are liable for ap damages that may result to land owners by their trespassing upon their premises, and this fact may be considered by you in determining what is the most prudent, economical, and farmer-like fence.” This instruction contains no. error. Plaintiff can recover the cost of constructing only such fence as is reasonably proper under all the circumstances. He could not recover the cost of building an iron or stone fence, nor a Avooden one planed and painted, if his tastes should lead him to desire such fence. [537] The circumstances named are proper to be considered in determining what ldnd of structure was proper, or as stated in the instruction most prudent, economical, and farmer-like. Eor the error above considered the judgment must be Reversed.