delivered the opinion of the Court
This was a proceeding, under the statute relating to eminent-: domain, to condemn right of way for appellant’s road. The: jury assessed the value of appellee’s land taken (6^^ acres) at; $557.60, and the damages to his lands not taken at $3067.40,; and the court rendered judgment for those amounts. Several grounds of reversal are urged.
First—It is objected that evidence was admitted tending to prove, that because a small strip of land was taken, and that without appellee’s consent, a greater price, proportionately, should be awarded than if the entire body of land had been taken with his consent. The jury were instructed by the court that appellee was entitled to receive “the fair and reasonable cash market value of the land actually taken for right of way; ’’ that “the market value of the land taken for right of way is what the same, in the opinion of the jury, would have sold for ■cash, if offered for sale at the date of filing the petition herein; ” and that “the jury can not legally allow anything, either for the value of the land actually taken for right "of way or for damage to the contiguous lands not taken, because of the law authorizing the taking such lands for right of way without the consent of the land owner.” The only evidence offered by appellant in regard to the value of the land taken was that ■ the entire farm was worth $85 per acre, and this would have authorized a verdict for the land taken of $592.45, instead of only $557.60, for which the verdict was rendered. So, also, the evidence given in behalf of appellee would have authorized a verdict for damages to lands not taken of $6000, instead of only, as rendered, for $3067.40. It is therefore manifest, that the instruction of the court corrected any error there may have been in the respect of which complaint is made in the admission of evidence, and that that error did appellant no harm..
Second—It is objected that the court permitted evidence of> the value of the apple trees growing upon the land taken, tot be given to the jury, independently of the value of the land to-which they were attached. But this evidence does not appear to have been objected to at the time it was offered, and it is apparent from the verdict, when the evidence of the value of the entire farm is considered, that it did not affect it. Appellant, therefore, has no right now to complain of its introduction.
Third—It is objected that evidence was given of the value of buildings, independently of the value of the land. This, as we understand the record, was simply for the purpose of rebutting evidence offered by the appellant, to the effect that the portions of the farm cut off from the buildings might be-sold to adjoining land owners at but little depreciation, by showing that the buildings were of a size and character particularly. suited to this farm, and therefore too extensive and valuable for less than the entire farm. We see no serious objection to it, in this view. Moreover, we think it is manifest,, from the face of the record, that the verdict was unaffected by it.
Fourth—It is objected that the court instructed the jury, that “in assessing the damages to the owner of the land they are justified in taking into consideration not only the value of ’ the land actually taken, but all facts which contribute to produce damages to that not i¡aken, as, if it appears from the evidence that the farm is cut in an inconvenient shape for cultivation or other farming purposes; or that the land is divided or cut off from the water, pastures or improvements; or that any spring, well or water supply is destroyed or cut off from the dwelling house; or that there is danger from killing or injuring stock; or damage from fire from passing engines; or that there will be inconvenience in crossing or recrossing the right of way and track in going from one part of the farm to another; the injury, if any, by reason of the field or farm being thrown open until the company fences the right of way, and all damages that are reasonably probable to flow from the construction and operation of the proposed road. ” Counsel argue that this is, in effect, allowing for supposed damages to-stock and for supposed damages from fire, which this court has held, and properly, is not admissible. But this is not the language or the meaning of the instruction. The effect of the instruction is, that the jury are to take into consideration all facts which contribute to produce damage to the land not taken, as they appear from the evidence. That ,tke facts recited are circumstances which may tend to deteriorate the value of a farm, and therefore contribute to produce damage to land not taken, we think can admit of no controversy. The recovery can only be for the depreciation in the market value of the land not taken, and the jury were expressly told, in an instruction given at the instance of appellant, that they were “not authorized by law to allow anything, by their verdict, by reason of any supposed damage to stock from the use of said right of way for railroad purposes, or for damage to the person of the land owner or any member of his family, or the damage to stock by reason of the taking and subsequent using of said right of way; that the law considers the probable damage to stock or to the family of the land owner as too remote and speculative to be considered in estimating the just compensation to be paid for. such right of way. ” A depreciation in the market value- of the land is quite a different thing, and whether that is because of the inconvenient shape of fields, non-access from one part to another, caused by the building of the road, or from injuries anticipated to property from its operation, the result is the same, and is solely because of the building and operating of the road, and therefore to be compensated for by appellant. The material inquiry is the fact of depreciation in market value, but it is within the province of the jury to inquire whether the facts thus recited exist, and if they exist, whether they cause a depreciation, and, if any, its extent, in the market value. .
We find no cause to disturb the judgment below, and it is therefore affirmed.
Judgment affirmed.