By the Oov/rt,
Smith, J.This was an appeal to the circuit court of Fond du Lac county from the award of commissioners, to the respondent, of damages for land taken by the appellants for their road, and damages for such taking.
The questions of law, presented by this appeal arise out of the instructions given to the jury on the trial below, and to which exceptions were taken. We proceed to examine such questions so raised, as are essential to be considered in the disposition of the case.
The power given by the legislature to corporations for railroad purposes, to take the land of private persons for the use of the company, is a delegation of the power or right of eminent domain. The land taken for the purpose of constructing the road is deemed to he taken for the public use, and for which compensation is to be made, as well as for all damages occasioned by such taking.
In this case we think that the instructions of the judge on the trial were in the main correct, but in some material points ei’roneous.
We have no doubt that the owner of land taken by a railroad company for its use, under a charter like those usually granted in this state; (and especially the charter of this com*642pany) is entitled to recover of the company the value of the land at the time of the taking, without any diminution, for benefits, advantage or offset whatsoever. It is too late now to discuss any questisn adverse to this position. The government can take my land for public use, when necessary, on paying me its value. But it cannot compulsorily make me a party to a forced sale thereof, and compel me to accept certain supposed advantages to my other lands not taken in lieu of the value of my lands taken.
When the government needs my land it has the sovereign right to take it; and when it takes it by virtue of such sovereign right and power, it is bound by the constitution to pay me the value thereof at the time it is taken. The government cannot speculate upon contingent or conjectural benefits in lieu of the value of land actually taken, nor can the owner speculate upon what would be thereafter the enhanced value of the land, after the purpose for which it was taken should be completed. This we understand to have been substantially the charge of the judge to the jury on this point.
We are also of the opinion that the plaintiff is entitled to recover such damages as result immediately and directly from the construction of the road through the land of the plaintiff, such as the destruction of wells, springs, barns, out houses, and the other damages of like character which result from the building of the road, but that he is not entitled to remote or speculative damages.
Exception was taken to the x’efnsal of the judge to charge the jury as requested; “ that they have a right and ought to consider the benefits and advantages resulting to the plaintiff’s land and premises, and assess only such damages as he may suffer, over and above the benefits he may receive from the construction of the road.” The judge did refuse so to charge the jury, but instructed them that they should deduct from the plaintiff’s damages, any special benefits accruing to his farm, not enjoyed by his neighbors in common with him.
There is no error in this instruction. The plaintiff can be compelled to give up, not to sell his land. The state can take *643it from bim, but cannot force him to sell it. If the state takes it, it must be paid for, not by barter of benefits, but in money. It may be reasonable and- proper that peculiar damages, outside of the value of the land taken, may be compensated by peculiar benefits, and so we understand the judge’s charge. 4 Cush. 291, 10 Id. 385.
So in regard to the instruction of the court below relative to fencing. Fences, made necessary by the running of a railroad through the farm of the citizen, in order that the farm may be securely used as before, is a proper item of damages for the consideration of the jury. 4 Chand. 72, 1 Am. R. R. Cas. 212 and note.
We are also of the opinion that the owner of the land taken for railroad purposes, is not confined, in the estimate of damages for the taking and by the building of the road, to the particular strip taken, or the particular parcel, enclosure or lot from which it is .taken; such as a ten, twenty or forty acre tract, but the whole contiguous farm lying together in a body, and cultivated as such, may be considered, as to the effect thereon, the convenience or facility or its after use, the feasibility of communication and approach, &c. &c., as proper subj ects in estimating the damages.
So far we have little fault to find with the charge of the judge to the jury on the trial of this cause.
But the judge was requested to charge the jury, that the plaintiff was not entitled to recover any thing for damages to, or for the lands themselves, to which he'had shown, no title. This instruction the judge refused to give, but instructed the jury, that possession and occupancy under color of title were sufficient for the plaintiff to recover.
This instruction in the form it was given, and in the form in which it was asked and refused was erroneous. The authorities cited by the respondent do not, in any manner, sustain the position for which he contends. They only go to sustain the common doctrine, that the person in the possession and occupancy of land may maintain trespass. There is no doubt of this. But the railroad company actually take the land, for *644the uses and purposes of the company, and are bound to pay for it. The party from whom it is taken can, obviously, demand payment for no greater interest than he may have had therein. To enable the plaintiff to recover at all, he must show some title. If it be a bare possession or occupancy, he certainly cannot demand and recover payment for the fee. If his estate be that of a lease for years, he cannot recover as for a freehold estate. The company take a permanent interest in the land, and by virtue of such taking in conformity with their charter they may acquire a title at least as permanent, as durable and as exclusive as their use of it for the purposes of their road may require, and according to the several estates in the property, must they make compensation to the persons owning them respectively. There can be no presumption of title in a proceeding of this kind. It must be shown, and compensation awarded accordingly.
The court below therefore erred in this instruction to the jury, and for that reason the judgment must be reversed. Merrill vs. Berkshire, 11 Pick. 269, Carpenter vs. Comrs. of Brislot, 21 Id. 258; 2 Am. R. R. Ca., 178, 234, 359; Sess. L. 1858, 675, 152.
There are some other points noticed in the bill of exceptions and the briefs of counsel, but it is believed that all the material matters presented by this appeal have been considered.
Judgment reversed with costs.