OPINION by
Mr. Justice Sterrett:The grant from Shaneman to Huber and Weis was correctly construed by the court below, and hence there is no error in the rulings complained of in the first four specifications.
Evidence tending to show the polluted condition of the water in the canal, as affecting the market value of the property in question at the time it was appropriated by the railroad company, should have been received and submitted to the jury. The evidence proposed may have been entitled to very little weight, but still it was proper for their consideration. The fifth to twelfth specifications, inclusive, together with the twentieth, are therefore sustained.
As the basis of his claim for damages it was, of course, incumbent on plaintiff below to show title to the property claimed by him and appropriated by the railroad company, and its fair market value at the time it was taken. On the other hand the company had a right to rebut by proving, if it could, that part of the premises in question did not belong to plaintiff and that his claim was excessive. There is nothing in the form of the issue or the pleadings to preclude defense on either of these grounds. The offers of evidence bearing on these points, and referred to in the fourteenth to nineteenth specifications inclusive, should have been received and submitted to the jury with proper instructions as to its effect.
The remaining specifications are not sustained. The property appropriated by the railroad company was an ice plant, operated as such by plaintiff below. Its value depended on its location, facilities for conducting the business, proximity to market, etc. Eacts tending to enlighten the jury on these subjects, and thus enable them to reach a correct conclusion as to its value, were therefore admissible. The principles of law applicable to claims such as this have been so often stated that it is unnecessary to repeat them.
Judgment reversed and a venire facias de novo awarded.