dissenting.
The State Highway Commission, by its complaint, seeks to condemn 2.4 acres of a total of 150 acres owned by the defendants. The defendants, by their answer, did not allege damage to the remainder of their property. The reply was a general denial. Therefore, the only issue before the court and jury was the fair cash market value of the property the State Highway Commission sought to acquire, by its power of eminent domain, on the date it filed the complaint. State ex rel v. Hawk et al, 105 Or 319, 328, 208 P 709 (1922), State Highway Com. v. Bailey et al, 212 Or 261, 277, 319 P2d 906 (1957).
Fair cash market value is the amount of money in cash that land would bring in the open market if it were offered for sale by one willing but not obliged to sell and purchased by one willing but not obliged to buy. Pape et al v. Linn County, 135 Or 430, 438, 296 *571P 65 (1931). The eases cited in the majority opinion concerning “any depreciation in the fair market value of the remaining land caused by the taking” have no application to this case.
The majority opinion establishes a rule that forces the private landowner to accept a trade for his land if the benefit to the remainder of the land is equal to the value of the land taken by the state. In this case it is not at issue by the pleadings. This is a dangerous invasion of the individual’s right of ownership of property and one more invasion of his right of privacy.
The state argues that the “before and after” rule should be applied in this case. Each condemnation taking presents different complex situations, some impossible of determination. In Bailey, supra at 277, we stated:
“« * * [T]he question first arises as to the legal effect to be given to special benefits in the trial of a condemnation action. It is now firmly established by our decisions that such benefits may be set off or employed to reduce the damages to the remainder of the tract not taken, but cannot be used to adversely affect the right of the owner to receive the fair cash market value of the land actually taken. The defendants were entitled to receive the fair cash market value of the land actually taken for highway use * *
Oregon lias followed the majority rule best explained in 4 Nichols, Eminent Domain (Rev 3d Ed), § 14.232 (1) at 555 as follows:
“The only difficulty experienced in the practical application of the before and after rule has been with relation to the question of set-off of benefits. Obviously, determination of the value of the re*572mainder area is based to some extent upon the benefits conferred upon it as a result of the use of the land taken for the project for which the condemnation was brought. The benefits may be of such magnitude that the consequential damages to the remainder area are completely cancelled out and an additional sum deducted from the market value of the land actually taken. In other words, the resulting award would be less than the value of the land taken standing alone. In those jurisdictions where set-off of benefits is allowed as against the value of the land taken there is no problem. However in the great majority of jurisdictions, such set-off is not permissible * * (Emphasis added.)
We must also keep in mind that the Oregon Legislature has given the right of eminent domain to private corporations. See ORS ch 772.
In the present case, the 2.4 acres sought to be taken were separated from the remainder of defendants’ land by the existing access road, thus giving defendants access to their two separate parcels of land. The 2.4 acres was a separate economic unit and should be treated as such.
I would affirm the decision of the Court of Appeals, 2 Or App 450, 468 P2d 540 (1970), which in turn affirmed the trial court.