This case was tried to a jury and a motion for new trial made and exceptions filed. Only one of the exceptions to the rulings was allowed by the presiding judge. This was allowed with modifications, which (although affidavits were filed) the court did not think the evidence justified them in altering. Subsequently, on affidavits, another exception to a refusal to charge was allowed. On these two points, so allowed, the parties *Page 573 filed their brief, and fully argued the case. These briefs sufficiently show that at that time there was no misunderstanding as to what the allowances were. The counsel for the city now ask for a rehearing, because they think the facts and their argument were misunderstood; and have filed a written motion.
As to the first point, relating to Bailey's evidence, we see no ground for a rehearing. The brief states fully the point as now made by the counsel for the city, and also refers to the fact alleged by them, that the judge made a certain statement in his charge, as aggravating the effect of the misruling. This latter, however, was not allowed by the judge as correct, nor was it allowed by the court on the affidavits.
In regard to the second point also, the counsel for the city think we misunderstood the facts and their arguments on them. We think not. They requested the judge to charge in the words of the head-note of Giesy v. C.W. Z. Railroad Co. 4 Ohio State, 308, that "its fair market value in cash at the time must be paid to the owner; and the jury in assessing the amount have no right to consider or make any use of the fact that it has been increased in value by the proposal or construction of the improvement."
The first clause was charged as requested, and the latter clause declined; and we gave our reasons for thinking that the judge was right in so declining. But the counsel contend that we assumed as a fact that the contemplated improvement had been located and actually constructed and completed, or nearly so, before this land was taken; whereas they say that this land (though subsequently taken) was taken as part and parcel of one continued improvement, viz., the water-works; that the successive takings and condemnations were all parts of one design, and for one purpose, to carry out and complete an unfinished plan, and should be considered as one whole, and that the last taking should have relation back to the first.
The case was argued on this state of facts; that the commissioners of the water-works had located a portion of the work, viz., the reservoir, and had proceeded to construct said reservoir; that after some interval they proceeded to condemn the land of the appellants for another portion of their work.
The affidavits plainly show this: Mr. Parkhurst says in his affidavit that the judge's instruction was that the jury might consider *Page 574 the fair market value of the land at the time of condemnation; and that if the land was increased in value, by the prior taking of the adjacent land, the owners were entitled to that increase. Mr. Bradley says in his affidavit that there was a discussion as to the effect of evidence of the partial location of the water-works prior to the formal condemnation of the land in question; this evidence was objected to, and he says that deeming the instruction of the judge important, he sought the authority of the Ohio case, and asked the judge to charge upon this point in the words of the head-note of that case.
Mr. Corliss, one of the commissioners, says they asked the judge to charge the jury that they should not consider the effect of the prior location of the reservoir or other portions of the work, but the judge declined to do so, and did charge that they might consider the prior taking of land for the reservoir, and that the effect of locating public works was matter of common knowledge. And Mr. Cook, another of the commissioners, says that the instruction was that they must give the fair market value at the time of taking, whether increased or not by the prior location of the reservoir or other portion of the works. And the briefs state the point to be, that land taken for public use should be appraised at its value, independent of the effect upon it of the proposal to take it for such purposes, and also independent of the effect caused by taking other lands for the same purpose. And the appellants' brief stated, and it was so stated on the hearing, that this land was taken some months after the location of the reservoir; and the case was argued on that assumption.
We understood the argument of the counsel for the city on the hearing to be as they now state it, and we intended to decide it as we did. The argument was very ingenious, but we could not consider it sound.
The counsel for the city on the last hearing, when asked by the chief justice whether if these appellants had, after the reservoir was located, sold their land for its actual value, increased as it was by that location, and the city had then taken it, the purchaser could recover the value he had actually given, was obliged to answer, that in his opinion he could not, and that he took it subject to this risk and incumbrance.
It is true that in one place in the former opinion we spoke of *Page 575 land taken subsequently to the completion of an improvement, but the whole reasoning of the opinion relates to the value of land taken subsequently to the location of or determination to make an improvement.
This was the gist of the request to charge in the words of the Ohio case. In that case a railroad had been located, and a parcel of land was afterwards taken for a depot.
In one portion of the former opinion we said that the jury are not to "exclude all considerations of any increase of value, which owners may have rightfully expected from any agitated or future possible improvement, or from any improvement determined on." And in another place we stated the peculiarity of the present case to be, that "a public improvement was determined on and a quantity of land taken, but no land belonging to the present complainant; and sometime afterwards the commissioners of the water-works decided that it was necessary to take more land, viz., the land now in question." And we have stated the question to be, whether "the value is to be estimated at the time of the location of the works, or at the time the land is condemned." And the rule must be, the market value of the land taken, at the time it was taken, of whatever elements composed; the value a purchaser would have paid for it, which must have been paid for it if on the same day it had been condemned for any other public use. And this rule we consider applies where there is a series of condemnations all for one purpose, as well as where there is but one taking or condemnation.
Rehearing refused.
Two days subsequently to the delivery of the foregoing opinion, the counsel for the defendant, Bradley Parkhurst, were again heard on their motion for a further hearing, which was not granted, and judgment was entered on the verdict.
Execution forthwith. *Page 576