(dissenting). — J cannot concur in the reversal of this case. Its disposition seems to have been placed upon three grounds: First, That the court erred in allowing respondents to open and close; second, that the court erred in its instruction in regard to the building of the fence; third, that the court erred in its instruction as to the cost and necessity of building a crossing.
Upon the first ground, I am satisfied that, under the legislation existing, the rule adopted by this court in Bellingham Bay, etc., R. R. Co. v. Strand, ante, p. 311, is the correct one, but I do not think it should apply to this case, because in this instance the defendants came into court and filed an answer alleging the quantity of land proposed to be taken as two acres, or thereabouts, and the total value of the land to be the sum of six hundred dollars, and alleging various other damages and specifying the amount. Although the law does not contemplate any answer in such a proceeding upon the part of the defendants, and they may show the value of the land taken, and of the damages they would sustain without any answer, and while the burden of proof in such a case would be upon the petitioner to show the right of, and necessity for, taking the land in *459the first instance and also to show the compensation to be made, yet the railroad company made no objection to this answer, and did not move against it in any way, but saw fit to take issue on the matters therein alleged by filing a reply thereto, in which it denied that the land it sought to appropriate exceeded one and two-thnths acres in quantity, and denied thatthe value of said land exceeded one hundred and seventy-five dollars per acre, and it denied the further allegations of damages set up in the answer.
Here the'parties voluntarily saw fit to make up an issue as in an ordinary action, and it seems to me the rules governing pleadings in such cases ought to obtain. The answer did not attempt to deny anything with reference to damages alleged, because none were alleged in the petition, nor was the value of the land sought to be taken therein stated, the petition simply prayed that a jury be called to assess the damages, It seems to me, following the ordinary rules pertaining to pleadings and trials, that in this instance had the parties failed to appear, the right to appropriate the land and the necessity for taking it having previously been determined, that the judgment in this case would have gone for the railroad company condemning the land, and finding its quantity and value to be as alleged in the reply. The parties here had agreed that the land was worth at least one hundred and seventy-five dollars per acre, and that at least one and two-tenths acres would be required. The only issues between them were those raised by the reply of the petitioner to the answer of the defendants as to the excess in amount of the land to be taken and of its value as alleged in the answer over that admitted in the reply, and as to the other damages claimed. There was no question of nominal damages in the case. Actual damages had been averred in both the answer and the reply, and the issue was as to the amount.
A singular feature of this case is, that the record nowhere *460shows when or how this question as to the right to open and close was raised. After the pleadings and preliminary matters were settled, the cause came on for trial before a jury to ascertain the damages. The defendants first introduced their testimony, and the record fails to disclose that any objection was made to their thus taking the initiative, and when they rested the petitioner called its witnesses. Nothing is said with reference to any argument made to the jury, or as to the right of either party to begin or close the same. Not even in appellant’s brief is it directly claimed that the question was raised. Thestatementtherein upon which the argument was based is as follows:
“In a proceeding to condemn land for public uses, and for the assessment of the compensation to be made to the landowner, the petitioner holds the affirmative of the issue, and consequently has the right to begin and reply, both in the introduction of evidence and in the argument to the jury.”
And upon this only appellant proceeds to argue the seemingly abstract proposition. Some lightis thrown upon the matter by the respondents’ brief, in which it is alleged that “petitioner complains of the ruling of the court in permitting respondents to open and close the case before the jury, and assign same as one of the grounds for reversing the judgment.” This is a tacit admission that the claim was at some time made, but it being only that, I do not think such an irregularly constructed proposition ought to be sustained to reverse a case upon. It might do to take advantage of matters so appearingfor the purpose of affirming a case. Counsel should be particular to see that questions they desire to take advantage of are properly raised.
As to the further point relating to proof of the cost of building the fence, the evidence was properly admitted in any event. The defendants sought to prove the cost of building such a fence as would be necessary. The railroad *461company objected thereto on the grounds that such proof was incompetent, irrelevant and immaterial. It had previously been shown that the fence was necessary, and the distance for which one would be required. Whatever be the rule of damages the land owner is entitled to in such cases, the proof, of course, is admissible. It is perfectly proper for tbe landowner to prove the cost of building the fence as a step to show the damages. In case it is contended by the railroad company that the value of the premises would be increased in a general way by the fence if built, and the damage to the defendants in this respect lessened to that extent, the burden should be held to be upon the company to show such increase. It is a matter of defense so far, and it does not seem to me the defendants should be called upon to prove a negative, or to show that the fence when built would not add anything to the value of the premises, except to inclose the field as against the petitioners, and, in the absence of any other benefit therefrom, the damages would certainly be as much as the cost of building the fence in the first instance.
Furthermore, there was no exception, or any sufficient one, to the instruction given upon this subject. After the conclusion of the charge the attorney for the petitioner undertook to except in these words:
“I would like, if your honor please, an exception as to the matter of crossing, the expense of crossing be adjusted « element of damages; and also the matter of building a fence as an element of damage, and the matter of opening the gates or putting up the bars in considering the question of damages.”
This exception as it appears in the record is unintelligible, and wholly insufficient to raise any question. He also undertook to except to the refusal of the court in not giving certain instructions presented by the petitioner. The court remarked that said instructions had been handed in too late.
*462It was proper for the court to instruct the jury that the fence was an element of damage, although the rule of damages he laid down with reference to it was erroneous, and would have been reversible error had there been a proper exception taken thereto, providing there was any testimony that the damage to the owner in consequence of hav-. ing to build the fence would be any less than the cost of building it.
I do not think there was any harmful error in the instruction as to the crossing, although the charge, if correctly reported, was palpably erroneous in allowing the jury to find the cost of it without proof. But there was proof of it. The record shows the following testimony by one of the defendants:
“ Q. State whether or not you would be damaged in any other respect than the ones already mentioned by reason of the road crossing as it does? A. I would have to have a way to cross the track to that piece of property; it would necessitate the building of a crossing and maintaining two gates.
“ Q. "What would you have to do in order to get a good crossing over this right- of-way, what would be necessary ? A. There would have to be stringers placed there, covered with lumber — plank about 3 inches, along there, about 16 feet wide, 5 feet in length.
“Q,. That on each side of the track? A. On each side of the track.
“ Q. What would be the probable cost of such a crossing? (Objected to as immaterial, incompetent and irrelevant. — No ruling.)
“ Q. What would be the cost? A. I would say $150 or $160, counting the gates.”
Other testimony was introduced in relation thereto by both sides, and there being testimony to show that it was necessary to build a crossing, and as to the kind of crossing that would be required, and the expense of building it, there was testimony to base a finding upon. But if the instruction is to be considered as saying to the jury that *463they could allow the cost of building the crossing without reference to the testimony as to what it would cost, there was no error appellant could take advantage of, for there was no exception to it. The entire exception is given above, and I do not think authority can be found that would sustain an exception of the kind purporting to have been taken in this instance. There is nothing in the record to show that the objections appellant urges here to these instructions were presented to the court below. The specific objections, if any there were, may have been other - and different from those urged here. I think, upon the whole case, this judgment should have been affirmed.
Dunbar, J., concurs.