In condemnation of land to public use the law gives to the owner, by way of compensation, the fair market value of the land taken. This value .is not ascertained from any advantages or economies to the party acquiring the land. • The injury occasioned to the owner by the taking is the correct rule. Counsel in this case do not differ as to the general rule, but they seriously differ as to its application to the facts proven. The Lackawanna company, which is the petitioner and appellant, insists that the value of the lands taken as agricultural lands should be the limit of allowance, and that the respondent should receive no more than would be allowed for an equal, amount of lands taken from adjoining farms. The respondent claims it is the owner of land of some eighteen miles in length by a few rods in width, constituting the line of the old Junction canal between Elmira and the State line, near Athens; that such narrow way, by reason of it excavations, embankments, abutments, stonework, grades, curves, etc., is peculiarly valuable for railroad purposes, and that the respondent has retained the same, since the abandonment of the canal, for railroad purposes only and not as *119agricultural lauds. The respondent therefore claims to recover from the petitioner the fair market value of the property for railroad purposes, so far as it is taken, and also the diminished value of that which is left by reason of such taking of a portion thereof.
The commissioners have adopted the respondent’s theory p.d allowed by'way of compensation for property taken and injury inflicted $56,090. The appeal from such appraisement and report and from the order confirming the same, brings up for review the conflicting claims of the parties. Yarious exceptions to the admission of evidence are also presented for our consideration.
The respondent gave much evidence touching the source of its title to the strip of land, the cost of the right of way, the manner in which it had been and was then used, the legislative authority for building a railroad thereon, the purpose for which the respondent had held, and still holds its title, the value of such strip of land per mile for any feasible purpose, the building of walls, etc., for its protection, its adaptability for a railroad route,' and other evidence, all tending to show that the respondent’s lands were peculiarly adapted to the building of a railroad at moderate expense and in favorable location. All such evidence was objected to and admitted subject to petitioner’s exception.
If the respondent is entitled to compensation for its lands on the basis of its value for railroad purposes, then, we think, such evidence was admissible, not as a measure of damage, but as tending to show how valuable, or rather how well adapted the land was for railroad purposes in the hands of the owner.
It is conceded that the value of these lands to the petitioner by reason of the economy of adaptation to its uses cannot be made a measure of damage in respondent’s favor. All that can be given to respondent is the fair market value of the lands taken and the injury to and diminution in value of other lands of the respondent by reason of such taking. So far there is no controversy.
The lands of respondent are of trivial value for agricultural purposes. They were not retained or used by respondent for such purposes. They had ceased to be of value for canal purposes. By reason of the shape they were only valuable for a road or way. The respondent had retained the control of them for that specific puipose. It had entered into negotiations and procured legislation with refer*120ence to sucli use. The embankments, cuttings, walls, etc., were to a greater or less extent available for railroad building and would be a source of economy. Why, then, was it not proper to show the purpose and use for which the lands were held, and why was it not proper to show the market value of the lmds for such use? Such was held to be the rule in Matter of New York Central, etc., Co., v. Metropolitam, Gas-Light Company (6 Hun, 149, 154); Henderson v. New York Central Railroad Company (78 N. Y., 423, 433); In re Furman Street (17 Wend., 670); Pierce on Railroads, 217; C. and S. Railway Company v. Longworth (30 Ohio St., 108, 111); Welch v. Michigan and St. Paul Railroad (27 Wis., 108); Queen v. Brown (L. R., Q. B., 630).
The strip of land was practicable and desirable for the route of a railroad. The respondent was holding it for use or for sale for that purpose. The petitioner, in the construction of its railroad, wanted this property. It became simply a question of its value for the use and purpose for which it was owned and held by respondent, and wanted by petitioner. If an unimproved water-power would be destroyed by the location of a railroad, ought not the owner to be compensated therefor? No doubt can exist. The damages would be, not the value of the use to the owner in its unimproved condition, but the market value of the property or water-power, having reference to the use which could reasonably be made of i.t. The rule should be the same in the present case. Here was a narrow strip of land formerly used as a way and only of value for a way. The owner holds it for such purpose only, expecting the time will presently come when he can utilize it to his own profit or sell it to some one else for such purpose. Why then are not the purposes for which it is held and the uses to which it is adapted, proper elements in its value? We think they are, and that the commissioners did not err in assessing compensation upon the basis of its value for railroad purposes. • It possessed a value for such purposes, but little or none for any other purpose, just as a waterpower possesses value for a mill site, but would be otherwise without sensible value. Such is the rule as laid down in Boom Company v. Patterson (8 Otto [H. S.], 403). The inquiry is, what are the lands worth in market from their availability for valuable ases ? The compensation will be made with reference to the uses *121for which the lands are suitable, having regard to existing wants or such as may be reasonably expected in the near future. The case last cited seems to be directly in point and conclusive of the present case. The property appropriated was almost worthless except for boom purposes. For such purposes it was very desirable. Its value for the one purpose to which in time it might be made available, was held to be the proper rule for compensation to the owner.
The cases, Matter of Black River Railroad (9 Hun, 104), and Matter of Boston, Hoosic Tunnel and Western (22 id., 176), are cited as sustaining the petitioner’s position. But we think such claim is unfounded. In the first case the owner held his farm for fanning purposes only. The work done by a defunct railroad corporation gave no value to the farm, nor was the taking of such work by a new corporation a source of loss or injury to the owner. It was of no value to him for railroad purposes, nor was it capable of being used as the line of a road. It was a mere casual or accidental advantage to the locating road, but no loss or damage 'to the owner. So in the second case the land taken by the Hoosic Tunnel Company was of no value to the owner, the Troy and Boston Railroad. It did not use or want the land for its purposes. It was in no way harmed by reason of such lands being taken by the Hoosic Company. In neither case was the owner harmed or entitled to compensation beyond the ordinary value of farm lands.
The use for which the respondent held these lands and the schemes it had in view were not speculative or imaginary, as the appellant contends. Such use has become real and positive by the act^of the appellant in seeking to become possessed of the property for the very purpose contemplated. The compensation granted by the commissioners was not then awarded for imaginary uses or in satisfaction of speculative schemes. The use and the purpose were reasonable, natural and feasible, as the event has shown.
The commissioners were justified upon the evidence given, in holding that these lands had a positive and marketable value over and above agricultural lands, that they possessed a value in the hands of the owner for the use and purpose of building of a railroad thereon, because such usé might reasonably be expected in the near future.
*122Much of the evidence offered by the respondent and received under exception, tended to show the availability of the lands for railroad purposes. Some of the evidence so received was of a very questionable character. But we cannot see that the commissioners have, erred in the principles which ought to guide them in making their appraisal. So that such technical errors in the admission of evidence ought not to affect the appraisal. (Troy and Boston R. R. Co. v. Lee, 13 Barb., 160; New York Cent. R. R. Co. v. Marvin, 11 N. Y,, 278.)
Nor will courts set aside an appraisal because the compensation awarded is too great, unless the excess is plain and palpable upon the evidence. (R. and S. R. R. v. Budlong, 6 How., 467; In re Furman St., 17 Wend., 649.) We cannot say the amount of compensation awarded was excessive. Very likely the members of this court sitting as commissioners would have made it less. But to have examined the lands taken, to have heard and seen the witnesses sworn, to have breathed the atmosphere of the trial are advantages in making a decision which must not be disregarded. These commissioners are gentlemen of experience and learning. Their judgment is entitled to great weight, and we are not, upon the facts proved, at liberty to disregard or reverse it.
We conclude that the order confirming the report and award of the commissioners should be affirmed, with costs.
Learned, P. J., and Landon, J., concurred.Order aSS/med, with ten dollars costs against appellants.