dissenting:
I am unable to concur in the foregoing opinion. I think that the terms just compensation employed by our state constitution means the actual value in money of the prop*333erty taken without any deduction for estimated benefits or advantages accruing to the owner from the public use of his property. (Sedg. on Meas. of Dam. 602.) I am unable to allow that supposed benefits — benefits estimated beforehand, perhaps only guessed at — always uncertain in value, and frequently at last found to be merely imaginary, can be a just compensation for tangible acres which have a known market value, and oftentimes are yielding to the owner at the time of appropriation ,by the public a large and certain annual incomé.
I do not think it necessary to declare the statute in question unconstitutional, in order to hold that the owner may have pay in money for his land which he is forced to surrender to the public use. The statute, if allowed to have the construction for which I contend, simply carries into effect the constitutional provision according to its spirit. The constitution declares that just compensation shall be awarded for property taken for the public use, but it has nowhere defined what shall be deemed just compensation, nor has it prescribed any mode of ascertaining it.
This was left for the statute. And the statute has provided that the viewers or the jury shall assess and determine “how much less valuable the premises of the complainant would-be rendered.by the opening of the road,” etc. Now, I am unable to see why it must be held that in ascertaining “how much less valuable” the premises would be, the portion actually taken away from the owner by the public can be paid for in estimated benefits alone.
On the contrary, it seems to me to be a fair construction of the provision to hold that in all cases a part of the diminution of value in the premises shall be the cash value of the portion taken, and that this must be made good to the owner in cash. For the taking of a parcel of land and perpetually excluding the owner from the use of it, is a clear damage to the extent of the value of it. Its loss to the owner is tangible, and can be valued to a certainty. The compensation for this should also be tangible — -should be some equivalent value, in fact, not something resting in speculation and uncertainty. I think that a money com*334pensation — a certain thing for a certain thing — money for land alone can satisfy the requirement of the constitution.
But when the results of the appropriation of the private property to the public use are considered in determining . the diminution of value of the premises, another feature is presented; the matter is then within the sphere of speculation alone, and the estimated or speculative disadvantages may be met and offset by speculative or estimated benefits; and if the estimated disadvantages exceed the estimated benefits, this excess is to be added to the value of the land taken, and that sum, so made up, is to determine “ how much less valuable the premises are ” made by the opening of the road.
I am, therefore, of the opinion that the instructions asked by appellant ought to have been given, and that those given contained error, and that the judgment of the court below ought to be reversed.