The jury in this case were called upon to “ assess the damages which they should believe such owner or owners would sustain, over and above the additional value such land would derive from the construction of the road.” And the question is, whether the plans and estimates adopted by the company for that portion of the road which passed over the land in question, should have been permitted to go to the jury. If admitted, they would have shown a road-way under the railroad, at a ravine near the north line of the land, and also a road-way over the railroad, with cattle-guards and gates, at the place where the lane now is, which is used by the owner for the passage of his cattle from one part of the farm to another.
We are satisfied that these plans and estimates should have been admitted. So long as it was practicable to so construct the road as to make it of greater or less damage or benefit to the land over which it passed, it was impossible for the jury to come to any correct conclusion, as to the extent of the damage or the amount of the benefit, without knowing how the road was to be built. A deep cut or a high embankment, in all probability, would occasion greater damage than would accrue if the road was constructed without either, and yet it was, no doubt, possible to make it in either mode. Indeed, it seems to us that the plan upon which the road was to be built, and the mode of construction, were of the utmost importance to enable the jury to come to a correct conclusion, and that it was not only the right but it was the duty of the railroad company to furnish full plans, profiles and estimates of that part of the road, and if they failed or neglected to do so, then the jury were authorized to presume that the road would be constructed in the mode the most injurious, within the bounds of reasonable probability. The objection, and the only objection which has keen urged to the admission of the plans, etc. in evidence, is, that those plans may be changed, and the road constructed in a different and more injurious mode than there represented, and for such additional or increased damages the party can have no redress. It has been so held, perhaps, in one or two cases, but we cannot acquiesce in the reasoning by which those decisions are supported, and are by no means disposed to adopt them. Such a rule does not tend to completely protect the rights of either party. We do not hesitate to say that the company would be bound to construct the road substantially according to the plans thus put in evidence, and if its own or the public interest required a deviation from such plan to the injury of the owner of the land, he could recover those damages in an action on the case, or on the implied undertaking that the road should be constructed conformably to such plan. We would not be understood as saying that the verbal representations and promises of the engineers, or others, should be binding upon the company, or that they should be permitted to go to the jury to influence their finding one way or the other, unless they were sworn to, and in proper explanation of the plans, that they might be the more readily understood by the jury. In this way alone can complete justice be done to both parties. Thus alone can the jury be properly enlightened as to the real amount of the damage which will be sustained, and in no other legitimate mode can the owner of the land be properly protected against increased injury, occasioned by a change of the plan, or the construction of the road in a manner not anticipated at the time of the assessment of damages. In this way the company may be protected from paying any more damage than it shall actually occasion, as well as compelled to pay all the real damage which result from the construction of the road. It was further said that the wagon-way under the railroad was not a part of that road, but foreign to it, and so of the cattle-guards and gateways, and particularly the last. All these are properly appurtenant to the railroad, and may be shown upon the plans and estimates of the road, and so also of fences, which, in that way, the company may oblige itself to build, although otherwise it might not be compelled to build them. Take this very case of the proposed road-way under the railroad, which is at a place where the railroad passes over a ravine, that might be passed by a fill, or a bridge sufficiently high for a convenient road-way. If such road-way would be at a convenient place to accommodate the owner of the land, it might very materially lessen the damages which he would sustain without it. Or it might be so inconveniently located as to lessen the damages in no appreciable degree. Of this the jury would be the judges. But assume the case where the damages would be actually diminished by one thousand dollars, and the road-way might be constructed by but an increased expense of one hundred dollars, if done when the work is progressing, while if the ravine were filled instead of arched or bridged, in order to save that small outlay, it would be afterwards impracticable for the owner of the land ever to make a road-way there, the making of the road-way when the work is in progress would be actually a saving of nine hundred dollars. It is for the general interest of society that this amount should be saved, and but simple justice to the company that it should be thus permitted to lessen the damages which it would otherwise be bound to pay. Should the company change the plan thus offered in evidence and preserved in the records of the court, and undertake to construct the road on a plan more injurious to the land, a court of equity would restrain them till the additional damages were assessed and paid.
We think the evidence was improperly excluded, and for that reason the judgment of the Circuit Court must be reversed, and the cause remanded.
Judgment reversed.
Walker, J., having tried this cause in the court below, took no part in this decision.