delivered the opinion of the Court:
Where the evidence is conflicting, as it was in the case Tinder consideration, it is very important that the jury should be accurately instructed on the questions of law involved in the case. If they are not so instructed, there is no certainty that a correct result- will be reached. The court gave for the defendant a short instruction, No. 1, as asked. No. 2 the court modified, and gave it as modified, and refused Nos. 3 and 4, which were as follows:
“3. The court instructs the jury that the right of way of the Illinois Central Railroad Company, which is assessed for the improvement of Madison avenue, is held by said company only for railroad purposes and uses, and the said company can not lawfully apply said right of way to any other use or purpose than such as is necessary for the operation and maintenance of its railroad.
“4. You are instructed that the Illinois Central Railroad Company, under its charter and the law governing it, is subject to the public duty perpetually to maintain and operate its railway, and that it has no legal right to divert from the uses of the maintenance and operation of the same the land of the company assessed in this case. You are therefore instructed, that in determining whether the same will be benefited by the improvement of Madison avenue, as proposed, you must determine whether-or not such land will be benefited for the particular uses to which it is applied, and if you find, from all the- evidence, that said land will not be benefited to the amount assessed against it herein for the uses or purposes of the railway of the Illinois Central Railroad Company in the maintenance or operation thereof, by reason of the curbing, grading and macadamizing of Madison avenue, as proposed in this proceeding, your verdict will be for the Illinois Central Railroad Company. ”
No other instructions given by the court contained the same principle announced in the two refused ones.
The first section of the act of Congress of September 20, 1850, which granted lands to the State of Illinois to aid in the construction of the Illinois Central railroad, gave to the State the right of way through the public lands for the construction of a railroad, the right of way over the public lands being a strip of land two hundred feet wide. (9 U. S. Stat. at Large, p. 466.) Following the act of Congress, the act of February 10, 1851, incorporating the Illinois Central Bailroad Company, was passed. Section 15 of the act contains the following : “The right of way over and through lands owned by the State is hereby ceded and granted to said corporation for the only and sole purpose of surveying, locating, constructing, completing, altering, maintaining and operating said road and branches, as is in this act provided. ”
It is thus plain that under the act of Congress donating the lands for the constructing of a railroad, and the charter of the railroad company, the strip of land—the right of way—is devoted to a certain specified purpose, and it can not be diverted from that purpose. The Illinois Central Railroad Company owes duties and obligations to the State from whom it accepted its charter. It is bound to maintain and operate its road, and perform the different obligations for which it was created. This two hundred foot strip of land the railroad holds and enjoys as its right of way and road-bed, donated to it for that purpose. Under its charter it is clothed with power to use this strip for railroad purposes, but for no other purpose. If the strip of land belonged to an individual, such person might lay it off into town or city lots, and dispose of the lots in the market. But the railroad company has no such power. Here is a particular, specified use, fixed by law, which it is beyond the power of the owner to change. Where such is the case, what is the correct rule in ascertaining whether a tract of land is benefited by an improvement ?
When land is held by an individual, the benefits are not to be determined alone by the market value of the property for the use to which it was then devoted by the owner, but the market value may be shown for any use for which the propperty may properly be used, as the owner may change the use of the land at any time, at his own will or pleasure. But in a case like the one under consideration, where the law has devoted the property permanently to a particular use, it would seem that it could only properly be benefited to the extent that its fitness to that particular use was increased and enlarged. In a proceeding to condemn lands for public purposes, where the lands are restricted by statute or th§ instrument under which the owner holds title, to a particular use, the measure of compensation to the owner for the lands taken will be their value to him for the special use to which the lands are restricted. This doctrine was announced in Railroad Co. v. Catholic Bishop, 119 Ill. 529. So, also, in Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. 112 Ill. 590, where it was held: “Where, in the nature of things, there can be no market value of a piece of property, by reason of being used ih connection with and as a part of some extensive business or enterprise, its value must be determined by the uses to which it is applied.”
In a proceeding to condemn lands, as a general rule, the owner is entitled to recover the fair market value of the lands taken; and in a proceeding by special assessment, as a general rule, the inquiry is to what extent the market value of the premises has been increased by the improvement. If, therefore, in the former case, where the owner is restricted to a particular use, the measure of compensation will be its value for the special use to which he is restricted, upon the same principle it must follow in a special assessment proceeding, where land is restricted by statute to a particular use and can not be applied to any other, the time measure of benefit which an improvement will confer on the land is its increased value for the special use to which it may by statute be restricted. In a proceeding By special assessment in no-ease can the assessment exceed the benefit which will be conferred on the property by the construction of the improvement. The benefit must be a real, actual benefit,—not one resting in conjecture; and while it was proper to consider, in this case, all benefits conferred upon the defendant’s right of way, for all railroad purposes, by the construction of the improvement, it is manifest that it would be unjust to charge upon the land benefits which might, in the opinions of witnesses, be conferred on .the land should it be devoted to other purposes, when the railroad company is prohibited by law from using the land for any but railroad purposes.
From what has been said it follows that the third instruction was proper, and the court erred in refusing it.
But the fourth instruction seems to be technically inaccurate in failing to require the jury to find whether or not, and to what extent, the lands of said railroad company would be benefited in view of any railroad uses to which, under all the circumstances shown by the evidence, it might or probably would be applied by said railroad company, as well as in view of the particular railroad uses to which it is now applied; and also in directing the jury, in case they found the benefits to said land less than the amount of the assessment, to render a general verdict in favor of the railroad company. If they found the amount of actual benefits less than the amount assessed, they should have been required to report, by their verdict, the amount of said benefits as found by them. Section 31, article 9, of the general act in relation to cities and villages, under which the proceedings were had, requires “that if it shall appear that the premises of the objector are assessed more or less than they will be benefited, or more or less than their proportionate share of the cost of the improvement, the jury shall so find, and also find the amount for which the premises ought to be assessed.” 1 Starr & Curtis’ Stat. 498.
For the error in refusing to give said third instruction, the judgment will be reversed and the cause remanded.
Judgment reversed.