1. Railroads: right of way damages: the whole property to be considered: duty of commissioners. I. The property in question is lots 1 and 2, in block 4, in the city of Des Moines. The block is bounded on the north by Cherry, and on the west by Seventh street, and the lots in question constitute the north-west quarter of the block. They are each . . ... , , „ sixty-six feet m width, and they front west on- ° •' Seventh street, and extend back, parallel with Cherry street, to an alley which runs north and south through the middle of the block. Lot 2 is the southerly of' the two lots, and it is bounded on the south by an alley running east and west through the block.
On the west end of lot 1 there is a two-story frame tenement house, which fronts to the north on Cherry street. It is sixty-six feet in length, and extends back to within less' than three feet of the dividing line between the two lots. To the east of .this there is a two story brick residence, which *400also fronts north. About four feet of the rear or south end of this building is on lot 2. The wells and cisterns, and all out buildings appurtenant to the property, were situated to the rear of the main buildings, and were all on lot 2; so that, while the lots, as laid out originally, fronted weston Seventh street, as improved, the property fronts to the north on Cherry street.
Defendant, when it caused the proceedings to be instituted, gave notice of its purpose to appropriate lot 2, but when the commissioners appointed by the sheriff to assess the damages inspected the property, they treated the two lots as constituting a single property, and assessed the damages on that theory.
On the trial in the circuit court, defendant objected to any evidence as to the effect of the appropriation of lot 2 on the value of lot 1, or the improvements thereon, on the ground that the proceedings which it had instituted were for the condemnation of lot 2 only, and plaintiff had not by his notice of ajjpeal, or any pleading filed in the case, alleged his ownership oflofc 1, or claimed damages to that lot on account of the location and construction of the railway. It also asked that an instruction embodying the same views be given to the jury. It-also asked the court to charge the jury that, “in order to recover for damages to lot 1, in consequence of the construction or location by defendant of its railway across lot 2, it is necessary for plaintiff to show that he had, at the date of defendant’s appropriation, title to that lot, or some interest in it, and, if the latter, the character and extent of his interest.”
The court overruled the objections, and refused to give these instructions, and permitted plaintiff to prove the damages, on the theory that the two lots as improved constituted one property. It was also ruled by the circuit court that it was not necessary for plaintiff to prove that he had title to either of the lots. We think these rulings are correct. The evidence left no doubt that the two lots were improved and *401used as one property, and the rule in such cases is that the property owner is entitled to compensation for the injury to the property as a whole. Hartshorn v. B., C. R. & N. R. Co., 52 Iowa, 613.
2. -: condemnation of right of way: appeal by land owner: his title presumed. When defendant instituted the proceedings to condemn lot 2,' and made plaintiff a party thereto, it conceded his title to that lot. The action of the commissioners, in in-eluding both lots in their assessment and return, ^ « is authorized by section 1249 of the Code. That . section provides that “all the lands appearing of record to belong to one: person and lying in one tract may be included in one appraisement and return, unless the agent or attorney of-the corporation, or the commissioners, have personal knowledge that the tract does not belong wholly to the person in whose name it appears of record.” The commissioners found that the two lots constituted one tract, and they included them both in their assessment and return; and the presumption from these facts is that they found that plaintiff appeared by the records to be the owner of both lots. The case came into the circuit court on plaintiff’s appeal from the assessment of damages. Defendant made no question as to the correctness of the finding of the commissioners as to the ownership of the property, either before the commissioners or by appealing from their finding, or by any pleading or paper filed in the case subsequent to the appeal. The case, then, presented no issue as to the ownership of the property. The legal presumption from the facts appearing in the record is that plaintiff is the owner of both lots.
3. -: --: measure of damages: excavation. II. Plaintiff was permitted, against defendant’s objection, to prove on the trial that the track or .road-bed of defendant’s railway, as constructed through the premises, is in a cut about four feet deep. The objection urged against the evidence introduced to estab-' lish this fact is, that “the land-owner’s compensation is not to be measured by the manner in which the road is actually constructed, but is to be found as of the date of location, and *402with reference to things as they then existed.” It is doubtless true that, for any damages which the land-owner may sustain by reason of the negligence of the railroad’ company as to the manner of constructing its road, he has his remedy by an ordinary action, and * such damages cannot be considered, or compensation therefor be made, in the proceedings to condemn the right of way. King v. The Iowa Midland R. Co., 34 Iowa, 458. But he is entitled to compensation for any damages which will result to the portion of the premises not appropriated from the proper construction and use of the railway; and such compensation should be made in the condemnation proceedings. Gear v. The C., C. & D. R. Co., 39 Iowa, 23. It is not claimed in the present case that defendant was guilty of any negligence in constructing the cut through the premises, but the necessity- for constructing the road-bed on a level below the natural surface was created by the condition of the ground. Whether in any case the roadbed, when properly constructed, will be on the level of the natural surface of the ground, or above or below that level, depends upon considerations of engineering. These considerations rendered the construction of the cut necessary, and, as the value of the remainder of the premises might be very materially, affected by it, it was properly submitted to the jury, to be considered by them in determining the damages.
4.--:-; -: proximity of depot. III. Plaintiff was also permitted to prove that defendant’s freight depot was located on the block next east of the premises in question; also, that it had constructed a number of tracks on the portion of the premises taken for right of way. Defendant assigns the admission of the evidence to prove these facts as error.. It is matter of common observation that the-value of residence property in injuriously affected by the construction and operation of a railroad, or the establishment of a railroad depot, near it. But, unless some portion of his property is appropriated to the use of the railroad, the property owner is without remedy, however much his property may be depreciaied *403in value by the construction and operation of the road, or tbe establishment of the depot. Eor such injuries and inconvenience as be suffers therefrom in common, with the general public, the law affords him no remedy.
Plaintiff, then, was not entitled -to prove tbe proximity of tbe depot, or the number of tracks, as independent elements of bis damages. But in determining tbe value of tbe property remaining after tbe appropriation, it was proper for tbe jury to consider tbe use to which tbe portion taken was to be appropriated, and tbe extent to which it would probably be used .for tbe purpose intended. Tbe right which defendant acquires by the appropriation is, to use tbe ground taken to any extent which tbe exigencies of its business may demand; and tbe value of tbe unappropriated portion of tbe premises may be affected very materially by tbe extent to which this right will be used. Tbe evidence in question was admitted for tbe purpose of showing tbe extent to which defendant would probably use tbe ground taken in carrying on its business, and for this purpose we think it was admissible.
5.---: presumption that all land taken will be used.
IY. Plaintiff' asked a witness bow much if would cost to reconstruct the rear end of the brick building, after it was taken off by the right of way, and put the property in condition for residence purposes. Defendant objected to the question on the ground “that it called for the opinion of the witness upon a state of facts that does not appear under any circumstances to become necessary for the proper use of the property.”
The evidence showed that, as the- road is constructed through the premises, it is about six feet from the south end of the brick bouse to the edge of the cut. Defendant also asked the court to give the following instruction to the jury:
“If you find from the evidence that the defendant has located and constructed its railway across lot 2, being the southerly of the two lots in question, and is now operating the same as so constructed, without the intention to remove, or in any way interfere with the plaintiff’s free and unre*404stricted use of the brick building spoken of by the witnesses, and that it will not' be necessary at any future time for it, in the repair, construction or convenient use of its railway, to tear down, remove, or in any way interfere with the use of said building by the' plaintiff or his tenants or vendees, you will not allow any sum as damages simply upon the idea of the removal of said building, or of its being hereafter torn down by the defendant.”
The court overruled the objection to the question. It also refused to give the instruction. This action of the court we think was right. The answer to appellant’s position is’, that it is seeking by this proceeding to appropriate the whole of lot 2, and, by virtue of the proceedings, when they are completed, it will acquire the right to use and occupy the whole of the lot. If it did not require the whole of the lot for the use of the road, it might have taken less than the whole of it. The law gave it the election to take the whole, or but part, and it elected to take the whole; and, in view of the rights which it acquires to occupy and use the whole of the lot, it can not have the damages assessed on the theory that it will in fact use but a part of it.
6. -: -:-; evidence as to selling price of neighboring lots. Y. Appellant sought to prove the price at which other lots in the vicinity of the premises in question had been sold at about the time the condemnation proceedings "were begun. All the evidence offered lor this purpose was excluded on plaintiff’s objection, The ruling was correct. It was not shown, nor proposed to be shown, that there was any similarity between the lots in question and those which it was claimed had been sold; and the ruling of the court in excluding the evidence is in accord with the rule as laid down in King v. The Iowa Midland R. Co., 34 Iowa, 458. Appellant claims, however, that a different rule was applied in Winklemans v. Des Moines N. W. R. Co., 62 Iowa, 11. The evidence of the sales of other lands than that in question was not admitted in that case, however, for' the purpose of establishing the value *405of the land in question; but the attention of witnesses was called to such sales, and they were ashed about them, for the purpose of showing that they were acquainted with the values of lands in that neighborhood; and it was held that the evidence was competent for that purpose. But in this case the evidence of the sales of other property was offered for the purpose of establishing a criterion by which the ’jury might form a judgment of the value of the lots in question.
7. -: -:-: retention of fee by land-owner. "VI. Defendant asked the court to give the following instruction to the jury: “As to the right which the defendant acquires by its proceedings, and the payment of the Slim awarded, you are instructed that the fee of the ]an(j remains, even after such proceedings and appropriation by the defendant, in the plaintiff'; that the right which the defendant acquires is the right of location, construction and convenient use of its railway, and to take, remove and use, for the construction and repair of said road and its appurtenances, any earth, gravel, stone, timber or other materials on or from the land so taken, as may be necessary for any of these purposes.”
That the instruction, as an abstract proposition, is correct, is not doubted. The court in its instructions told the jury that defendant by the appropriation acquired substantially the rights enumerated in the instruction asked, but did not tell them that the fee of the land remained in plaintiff. Appellant assigns the omission as error.' We do not regard the fact that plaintiff is not divested of the fee by the appropriation as of any practical importance in the case. The interest acquired by defendant by the appropriation is the right to occupy and use the surface of the land perpetually for the purpose for which it is taken. It is true that the land would revert to plaintiff, or his grantee, in case it should cease to be used for the purpose for which it is taken, but the appropriation is made on the theory that this will never occur; and there is no evidence of the existence, either on the surface or beneath it, of any materials, such as surplus earth, stone, coal *406or mineral, which might be removed by plaintiff under the right reserved to him by law in the premises. So that the measure of his damages is not different from what it would be if the proceedings divested him of all interest in the land.
3. Practice: special interrogatories to jury properly refused VII. Defendant asks that the jury, be directed to find specially upon the following questions: 1. What was the fair market value, in cash, of lot No. 2, at the time of its appropriation by the defendant?
2. What was the fair market value, in cash, of plaintiff’s entire premises immediately before the defendant’s right of ■way was located across lot No. 2?
3. What sum do you allow as damages over and above the value of the property actually taken?
4. Do you find that the defendant has already located and constructed its road, and that it is now operating the same?
.5. If you answer the last question in the affirmative, you will then answer whether its road, as constructed and operated, touches the brick building upon the premises, or whether any portion of the same Was torn down or removed in the construction of the road?
6. Do you find that the defendant intends at any time to change the location or construction of its road, so as to make it necessary to tear down or remove any portion of the brick building? |
7. Do you find that for the necessary or convenient use of defendant’s road it would be necessary to tear down or remove any portion of the brick building?
The court refused to so direct the jury. We think this ruling was correct. The fourth, fifth, sixth and seventh questions were asked on ¡the theory that defendant had the right to show that, notwithstanding it sought to condemn the whole of lot 2, its purpose was to make an actual appropriation of but a portion of it. As we have already seen, by the condemnation proceedings it acquires the right to use the whole of the lot, and it cannot be heard to say, while prosecuting *407these proceedings to obtain this right, that it does not intend to avail itself of it. The questions were therefore immaterial.
As, owing to the manner in which the improvements were made, the two lots constitute a single property, defendant was not entitled to have the damages assessed with reference to the value of lot 2 as a separate property; and for this reason the first question was immaterial. The third was properly refused, for the reason that it does not call for a finding upon an ultimate question of fact; and an answer to the second would have given no aid in determining the correctness of the general verdict. Other matters were discussed by counsel, but we think we have disposed of all questions fairly presented by tbe record. The judgment of the circuit court is
Affirmed.