Pacific Railroad v. Chrystal

Napton, Judge, delivered the opinion of the court. Most of the points made and discussed-in this case have been decided by the court in other cases during this term, and it will not therefore be necessary that they be particularly noticed. The order of the circuit court to the commissioners appointed to assess the damages to Chrystal’s land was, “ that said commissioners, in forming their estimate, make due allowance or deduction for any advantages or benefits which the said William Chrystal will derive from the said Pacific Railroad, but not allowing him the benefit of any rise in land in consequence of the survey.” Although no exception was taken to this order, or the instructions contained therein, at the time it was made, yet, inasmuch as the order may be considered as the chart by which the commissioners were guided, the motion of the defendant to set aside the assessment or report and appoint new commisioners may be regarded somewhat in the light of a motion in arrest, and as sufficient to authorize this court to review the action of the circuit court. In the case of Newby v. Platte County, (ante, p. 258,) this court held that “ the benefits to be charged the land owners whose lands are taken for a railroad, and deducted from the compensation to be allowed for the value of the land taken and the injury resulting to other adjoining land, must be the direct and peculiar benefits which result to them in particular, and not the general benefits they derive in common with other land owners in the vicinity from the building of the road.” The value of the land taken means its actual value independent of the location of the road. The disadvantages [547] spoken of by the act are the injuries arising from the taking of only a part of a tract, which, from a -variety of causes, may more or less impair the value of the part left, or entirely destroy its value. It is manifest that the order of the court to the commissioners did not conform to these principles. The report should therefore have been set aside and a second assessment made with proper instructions. Judge Scott concurring, the judgment is reversed and the cause remanded; Judge Richardson not sitting.