delivered the opinion of the court February 23d, 1884.
The charge of the learned Judge, in relation to the proper measure of damages in cases like the present, is in the main *64correct. In accordance with.the long recognized rule, he instructed the jury “ to ascertain the value of the property before the railroad was projected through it, then the depreciation it has suffered in the market by reason of the construction of the railroad, and the difference between the two amounts constitutes the amount of damages to be awarded to the plaintiff;” and, they should “therefore ascertain what amount the plaintiff could have obtained for his property in a fair market, either at public or private sale, before the construction of the railroad by the defendant, and what he can now obtain for it, the difference being the amount of the injury he has sustained.” He also instructed the jury to allow interest on the damages so found by them, from the time plaintiff’s property was taken. To these instructions there can be no just ground of complaint; but it is contended by plaintiff that in the application of the general rule above stated, at least one material element of depreciation was afterwards excluded from the consideration of the jury. It was conceded that the location and construction of the road through plaintiff’s farm had lessened its market value. In addition to the land actually taken for road bed — nearly two and one fifth acres — the elements of depreciation, in regard to which testimony was given,, were: 1st, the ordinary risk of fire, involving injury to fences, crops, &c., necessarily incident to the proper and legitimate use of locomotives in operating the road; 2d, the close proximity of the road to the farm buildings, rendering them unsafe for occupancy, and thus necessitating their removal and reconstruction, as the jury has specially found; 3d, the. necessity for making and maintaining additional fence; 4th, the inconvenience and expense of access to a portion of the farm cut off by the railroad, and also some minor matters, in regard to which there was little or no controversy. The principal contention, it is true, was in regard to the necessity of removing the buildings and the cost thereof, but there was no abandonment of either of the other elements of depreciation, in support of which testimony was introduced, and especially that in relation to the ordinary risk of fire not resulting from negligence. That this is a matter proper to be considered by the j ury in determining the extent to which the market value of the property has been depreciated, cannot be doubted.
The principles governing the assessment of damages to the owner of lands through which a railroad has been located, are clearly and concisely stated by our brother Clark, in The Pittsburgh, Bradford and Buffalo Railway Company v. McCloskey, 16 W. N. C., 561. After quoting the general rule announced by Chief Justice Gibson, in Schuylkill Navigation Company v. Thoburn, 7 S. & R., 411, viz: that the true meas*65ure of compensation is the difference between what the property, unaffected by the obstruction, would have sold for at the time the injury was committed, and what it would have sold for as affected by the injury, he proceeds to say : “ The adjustment of this difference involves, in all cases, a fair and just comparison of the advantages and disadvantages resulting from the opening and operation of the road, and the. construction of its works; but the advantages to be considered are such only as are special, and the disadvantages such as are actual. The general appreciation of property in the neighborhood, consequent to the projected construction of the road, cannot enter into the calculation ; to this the land owner whose lands have been taken is as fairly entitled as is his neighbor whose possession and enjoyment have not been disturbed. The general increase of value, resulting from the growth of public improvements, railroads, canals and highways, accrues to the public benefit, and in the computation of damages the landowner cannot be charged therewith. The question in each case is whether or not the special facilities afforded by the improvement have advanced the market value of the property beyond the mere general appreciation of property in the neighborhood. So, also, on the other hand, the disadvantages must be actual, not speculative : they must be such as substantially affect the present market value of the land. . . . . ^ Merely speculative damages cannot be allowed. The inconvenience arising from a division of the property, or from increased difficulty of access, the burden of increased fencing, the ordinary danger from accidental fires to fences, fields or farm buildings, not resulting from negligence, and generally all such matters as, owing to the particular location of the road, may affect the convenient use and future enjoyment of the property, are proper matters for consideration ; but, they are to be considered in comparison with the advantages only as they affect the market value of the land.”
It will be observed that damages which may possibly result from negligent or unskillful operation of a railroad are thus wholly excluded from consideration in such proceedings as this. Such damages may never be sustained; and, if they do occur, the party aggrieved may have an independent remedy therefor. It is only ordinary dangers or risks, not resulting from negligence, that can be taken into consideration in assessing damages to the land-owner; and, even those dangers or risks are not to be regarded, except in so far as they affect the market value of the land. ' It follows, therefore, that the landowner is obliged to assume the ordinary risk of fire, necessarily incident to the proper and lawful use of locomotives; and, in the event of loss resulting therefrom, no recovery can be had *66tberefor. Hence plaintiff’s first point to that effect should have been affirmed. The risk therein mentioned is clearly an element of depreciation, and if its effect on the market value of the property is not taken into consideration in estimating the damages he has sustained, it can never be considered. The answer of the learned Judge is not responsive to the point; and, in any aspect, it is misleading and erroneous in that it conveys the idea that such risks cannot be taken into consideration by the jury in determining the question of damages. The second and fifth specifications of error are sustained; and, in so far fis portions of the charge embraced in the first, third and fourth specifications are calculated to convey the same idea, they are also sustained. There is no merit in the sixth specification.
Judgment reversed and a venire facias de novo awarded.