delivered the opinion of the court:
It is assigned as error that the verdict under consideration was excessive in amount. Appellant’s contention below, and now, is that there was no damage to the lands not taken, and its witnesses so testified. A greater number of witnesses, testifying on the part of appellees, stated that the lands not taken would be damaged, and fixed the damages at varying amounts. The allowance for damages to lands not taken, fixed by the verdict, is less than the average of the estimates of appellees7 witnesses. Appellant bases its contention principallyupon its assertion that its witnesses were better qualified than those of appellees. We have carefully examined the evidence, and would not be disposed to interfere with the judgment had the jury been correctly instructed.
The first instruction given on the part of appellees is as follows:
“The court instructs the jury that they alone are required to determine the amount of the compensation which shall be awarded to the respondents in this case, for the actual value of the land taken, and,for the injury and damage done to the residue of'the farms or lands of each, by the use of that part which shall be taken from each for the location and operation of a railroad. The jury must estimate and ascertain from the evidence as well as from their own observation, judgment and experience, what are the usual and natural effects of a railroad upon the adjoining lands. And the damages and injury to each of the defendants is the sum of the actual value of the land taken from them respectively and the injury which the location and use of the railroad through the several farms or tracts, may cause the remainder, and the jury must report such full compensation to the respondents as will make them whole for the lands taken respectively and for all such injury and damage to the remainder of their lands or farms respectively, as the jury may believe from the evidence or from your own observation, judgment and experience actually affect the value of said farms for use if retained by the defendants, or which affect the market value thereof if said defendants or either of them shall choose to sell said lands.”
The objections to this instruction are two-fold: First, it assumes there was damage to the land not taken; second, by the last clause of the instruction the jury are told that damage to the land not taken may be estimated by the injury to the land for use if retained by the defendants; while the true measure is the diminution, if any, in the market value of the land not taken, by reason of the construction and operation of the road. We think both of these objections are well taken. Appellant was insisting vigorously that the lands not taken were not damaged at all, and this instruction assumes that they were damaged. That is a question the jury should have been permitted to determine for themselves without any intimation from the court that their verdict should include compensation for such damages.
As to the second objection the law is that if lands not taken will be depreciated in value by the construction and operation of a railroad, the measure of damages is the difference in their market value before and after the construction of the road. Illinois Central Railroad Co. v. Turner, 194 Ill. 575, and cases there cited.
It does not meet the difficulty to say that the measure of damages was correctly given to the jury in other instructions. By this instruction they were authorized to apply an improper measure. They could not tell which instruction to follow. This is not an instance where an element lacking in one instruction is supplied by another, so that the two when read together state the law correctly.
Appellees’ eighth instruction improperly called the attention of the jury to the fact that their lands were being taken against their will. This was calculated to arouse the prejudice of the jury against the petitioner. The duty of the jury is confined to fixing the damages. Whether or not the owner is willing that the lands should be taken, does not concern the jury. To call their attention by an instruction to the fact that he objects and is helpless, is apt to excite their sympathy for him and lead them to return a verdict in a larger amount than is warranted by an impartial consideration of the evidence.
The other errors assigned- are without merit.
The judgment of the county court will be reversed and the cause remanded.
Reversed and remanded.