dissenting, said:
I do not concur in the opinion of the court, and file my own dissenting views. This is an appeal from a decree of the cir*440cuit court of Mecklenburg county, rendered on the 6th day of June, 1892. This is a case arising out of proceedings under the decree rendered in this court on the 14th day of December, 1891, in the case of Humphreys v. R. & M. Railroad Co., which case, at its first hearing in this court, is reported in 88 Va., 431, which is referred to for the proceedings then had and the conclusions reached. By said decree of this court it was directed that an inquiry of damages should be made and tried at the bar of the circuit court by a jury, to ascertain the damages done to the appellant, Humphreys, by the said railroad company, by entering upon and using his land, earthwork, or embankment, and masonry on his land, or belonging thereto, at the time they were so taken possession of, and the damages to the residue of the appellant’s said tract of land resulting from any work of the railroad company on said embankment after the railroad took possession thereof, and the same, when ascertained, to be set off against the judgment confessed by said Humphreys in favor of the said railroad company, which judgment was for the amount of his subscription to said company still unpaid. When the case went back, a jury was impaneled, and the amount of damages found by their verdict was $7,079, with interest from January, 1882. The defendant moved the court to set aside the said verdict, which motion was overruled, and judgment was rendered on the verdict, and the defendant appealed.
The errors assigned here are: First, the refusal of the circuit court to continue the case on account of the absence of a material witness; second, the refusal of the circuit court to continue the case because of the absence of the leading counsel for the defendant; third, the exclusion of the evidence of the witness Love, by whom it was desired to show the cost, if any, to the company, of the right of way through the land of the witness, which was on the opposite side of the river, and exactly like the land of Humphreys, containing pillars in the river, and an embankment and old railway bed across the low-*441grounds on the river; fourth, because of misdirection by the court as to the law of the case and the proper method of ascertaining and estimating the amount of damages; fifth, the refusal of the circuit court to set aside the verdict and grant a new trial to the defendant company.
"We will pass by, for the present, the first and second assignments of error, as to the action of the court in refusing a continuance to the defendant upon the ground of the absence of a material witness, and the absence of the leading counsel for the defendant, as they will appear to be immaterial, in view of my conclusions hereiu.
I think there was no error in the third assignment, as the . fact that the witness Love had given away for nothing his property, although exactly like the property of Humphreys, could not in any way affect the amount of damages proper when the land had not been given.
The fourth assignment of error is because of the action of the court in giving the • following instruction to the jury: “ They are further instructed that, in ascertaining the damages to the residue of the tract, they shall award said Humphreys an amount equal to the difference between the market value of the residue of the said tract at the time of its taking and its market value after the same had been so táken; and in ascertaining said damages they may consider every circumstance, present or future, which affected its then'value. The court further instructs the jury that the amount to be awarded the said Humphreys for his land taken, including the embankments, abutments, and piers upon said land, or belonging thereto, is the fair cash market value of the said land, embankment, abutment, and piers to be taken, at the time of the taking, and said damages are to be assessed "in view of the uses to which said land, embankment, abutment, and piers have been put, and not necessarily in view of the use or productive value to the owner before the taking” — having also, on the motion of the plaintiff', instructed the jury that they should *442determine from the evidence what would be a just compensation to the plaintiff for the land taken by the defendant, and for damages to the residue of the tract beyond the peculiar benefit derived by the plaintiff in respect to such residue by the completion of said railroad; and in refusing certain other instructions asked for by the defendant railroad company, as follows: “The court instructs the jury that they shall ascertain and determine from the evidence what would be a just compensation to the plaintiff for the land taken by the defendant, and for the damages to the .residue of the tract beyond the peculiar benefits to be derived in respect to such residue. .They are further instructed that in ascertaining the damages for the land actually taken, and.to the balance of said tract, .they shall award said plaintiff an amount equal to the difference between the market value of his property at the time of the taking and its market value after the same had been so taken. The court further instructs the jury that the amount to be awarded said plaintiff for the right of way through his land, including the embankment, abutment, and piers on said right of way, is the fair cash market value of the land, right of ivay, embankment, abutment, and piers so taken, at the time of the taking, and not what the same m.ay be ivorth to the railroad company for railway purposes.”
The dispute as to these instructions arises upon the words italicized above, as follows: The plaintiff claimed, and the court so instructed, “that the said damages are to be assessed in view of the uses to which said land, embankment, abutments, and piers have been put,” whereas the defendant claimed and the court rejected its instruction so directing, that the amount of the damages is “ the fair cash market value of the land, right of way, embankment, abutments, and piers so taken, at the time of the taking, and not lohat the same may be worth to the railway company for railway purposes.” In determining the true measure of damages in a case like this, I will remark that the statute prescribes (sections 1077,1078, Code,) when the con*443demnation is by commissioners under chapter 46, that the commissioners, after viewing the land, and having such proper evidence as either party may oiler, shall ascertain what will be a just compensation for the said land, and for the damages to the residue of the tract beyond the peculiar benefits to be derived, in respect to such residue, from the work to be constructed. In this case, as is fully explained and set forth in the opinion of this court by Richardson, J., on the former appeal to this court, in Humphreys v. R. & M. Railroad Co., 88 Va., 431, before cited, the defendant company entered upon this land by virtue of a right of way in writing from Humphreys, which was set aside and annulled for reasons there stated, no condemnation proceedings being had or deemed necessary, and, as has been already shown from the decree of this court, the case was remanded for such inquiry of damages to be made by a jury, and the measure of damages stated in the instructions by the court in accordance with the statute, (section 1078, Code,) thus : “ What would be a just compensation to the plaintiff for the land taken by the defendant, and for damages to the residue of the tract beyond the peculiar benefit derived by him in respect to such residue by the completion of said railroad,” and this principle is substantially restated in different language in the second instruction. In the third instruction the provision objected to is inserted as is already set forth, thus: “ And said damages are to be assessed in view of the uses to which the said land, embankment, abutment, and piers have been put, and not necessarily in view of the use or productive value to the owner before the taking.” The added words, “And said damages are to be assessed in view of the uses to which the said land, embankment, abutment, and piers have been put,” indicate that the character of the proceeding have been obscured or lost sight of. Our law proceeds upon the idea of a just compensation for what private property is taken for public uses, and provides for compensation to the land-owner for injury to the residue of the tract by reason of the taking of *444a part of the land. These damages are for compensation for an injury resulting from a lawful act. Our constitution prohibits the taking of private property for public purposes without just compensation. The compensation is allowed for the actual taking, and, so far as the actual taking is the cause of a resulting deprivation of right, it is a taking in the constitutional sense, and the law requires that it likewise shall be compensated by a just compensation. If the whole, and not the part, only, be taken, just compensation for what was actually taken would be the complete measure of relief. There would be no damages beyond that to be assessed. There would be no damages to be paid in excess of just compensation for the whole, and it would not be contended that the measure of compensation could be otherwise than the full value of the property taken; for it must be borne in mind that the"transaction is a lawful one, and bears in it no element of a tort.
Regarding the transaction, then, and all the proceedings thereunder, from the standpoint of compensation, where can we find any place for damages to the plaintiff for the use to which the defendant is to put the property taken, unless we are to compensate the land-owner for what is not his ? What are his proprietary rights in the railroad of the defendant? Does it affect his rights that this railroad, when completed, is worth $15,000 per mile, or that it is a public incorporated turnpike worth but little, or a county road with no marketable value, provided it has been lawfully taken for public purposes under the right of eminent domain ? If he has received just compensation for what has been taken directly and what has been taken incidentally, all that has been taken from him having been paid for, can he go further and lay a valid claim to the subsequent use to which it has been put? What is the proper amount of compensation we are not now considering in this case. The question is what is the true measure of damages by way of compensation ? This is a matter of law to be decided by the court; and when this has been correctly decided *445by the court the jury must follow the direction of the court or their verdict cannot stand. "What is just compensation for what is taken is one question here. In considering the phrase “just compensation,” a learned author says (Sedg. Dam.): “ The general principle running through the cases seems to be that a just compensation to the owner for taking his property for public use without his consent means the actual value of the property in money without any deduction for estimated profit or advantages accruing to the owner from the public use of his property. Speculative advantages or disadvantages, independent of the intrinsic value of the property, from the improvement are a matter of set-off against each other, and do not affect the dry claim for the intrinsic value of the property taken.” Our statutes, as we have seen, however, after providing that one of these shall be set off against the other, directs that the excess of the first (that is, of the injury to the residue, if any,) above the second (that is, the peculiar benefits to be derived in respect to such residue from the work to be constructed,) shall affect the dry claim for the intrinsic value of the property taken; but there is no provision for an allowance for the value of the property taken in the hands of its new owner. If it is more valuable then, or less so, the question of just compensation for what is taken is not thereby affected. The true interpretation of our statute is the question to be determined in this case. “Just compensation for what is taken is the value of the land taken for the uses to which it is suitable, having regard to the existing business wants of the community, or such as may be reasonably expended in the immediate future. The inquiry in such eases must be, what is the property worth in the market, viewed, not merely with reference to the uses to which it .is at the time applied, but with reference to the uses for which it is plainly adapted — that is to say, what is it worth from its availability for valuable uses?” Opinion of Mr. Justice Field in Miss. Run River Boom Co. v. Patterson, 98 U. S., 410. While disclaiming to *446lay down a role to goven in all eases, this we consider the true rule, and the result of the .cases which I have considered. It is right that the value of the earthwork, abutment, and piers for valuable uses should be considered as constituting an element of the value of the land; but the use to which it has been put is subsequent and independent of an ended transaction, and could not have been considered by any assessors of its value when taken, and the instructions complained of are to this extent erroneous; and, as it is impossible to determine to what extent this error may have governed the case in its results, it is error for which I think the judgment must be reversed.
DECREE AEEIRMED.