ERROR from Bibb County Superior Court. Proceedings to assess damages.

The following is the substance of the official report:

Streyer moved for a new trial on the ground that the verdict was contrary to law, evidence, etc. Also because the court permitted the witness Elkin to be asked the following question: "What was the condition of Fifth street before the railroad was put down?" Also because the court permitted Collins to answer the following question: "How much more would you give for the Streyer property now than you would before the railroad came there? Answer. Twice as much." Also because the court erred in refusing to permit Freeman and another, witnesses for defendant, to answer the following question: "Tell the jury why you left there," referring to their leaving the dwelling houses on that street, owned by other parties than Streyer,-because the same was material to the issue, and was asked to show that the construction of the railroad along the street in question had actually driven tenants from houses occupied by them all along said streets. Also because the court erred in not permitting Gibson, a witness for defendant, and his agent to collect his rents and attend to said property, to testify to the declarations and complaints made to him at the time by the tenants in Streyer's houses, when they vacated the same; said declarations being material, as showing directly what damage the construction of this railroad in the street in front of Streyer's property had already inflicted upon it, and the cause of their leaving it. Also because the court erred in refusing to charge as follows: "I charge you that, under the wording of the constitution of the state and of this special act under which the railroad is proceeding, it must first pay Streyer the value of any property belonging to him, which it may appropriate to its use, and also the actual and direct damages which would be inflicted upon the property which would of necessity flow from this taking, or the construction of the road in the street and in front of his property. I charge you that there exists in the owners of abutting lots a private right to have free access to their lands and buildings as the same was and would have continued to be according to the mode of its original use and appropriation by the public, and there can be no change of such mode and adaptation of the street to new vehicles and methods of carriage and transportation, which will materially impair or destroy such right, unless by consent of the owners, upon payment of due compensation to them. I charge you that the owner of property abutting upon a street has certain rights in said street which attach to his property, and are

known in law as an easement.' This easement is property in constitutional intent, and is subject to taking just as the land itself; and that when this easement is interfered with, in whole or in part, the party interfering must pay for the damage done the same. I charge you that a regular steam railroad in the street, over which freight and passengers are hauled in trains, is an extra burden on the street, and is a taking in contemplation of law of the abutting property owner's easement in the same, the value of the same being proportional to the amount of the easement taken or de stroyed. You will first find out from the evidence the value of the portion of the easement destroyed or taken in the construction of the road; then you will further inquire how much damage will be inflicted upon the abutting property by reason of taking of part of the easement, and the uses to which the part taken will be put. You cannot set off any benefits against the value of the property taken." Also because the court erred in refusing to charge, in the form submitted, the following written request by defendant: "I charge you that in considering the evidence submitted to you, if you cannot reconcile the same, you must believe that which is positive and direct in preference to that which is only conjectural, or based on a mere speculative opinion.' Also because the court erred in refusing to charge as follows: "As you cannot find damages for speculative or possible injuries to this property, so you cannot set off, against the actual damage which will be inflicted on Streyer's property by reason of the construction of this railroad in the street, as shown by the evidence, benefits which might possibly accrue to his property from the said cause. Speculative inquiries as to what might possibly happen to his property are excluded, and the only benefits you can set off against the proven damage are such as appear from the evidence to be direct, positive, proximate, and certain to follow, not such as are only possible, contingent, speculative, or which depend entirely upon the will of outside parties." And in charging in lieu thereof the following: "Now, in considering that question, you are not to consider any speculative damages or benefits either way. You are to take the testimony as reasonable men, and not take into account any speculative or imaginary damage that might result to this property, and at the same time you are not to consider any possible, speculative, or imaginary increase in value. You are to take the reasonable, natural result that will flow from the railroad coming there, both as to increasing and diminishing the value of Streyer's property." Also because the court erred in charging "The measure of damages would be the depre

ciation of its market value." Also because the court erred in charging: "If you find there was damage, in order for you to ascertain how much, you would first determine under the testimony what its original market value was before the railroad attempted to come there, and then ascertain whether or not that market value has been decreased by reason of the railroad coming there, and the amount of that decrease would be the proper amount of your verdict." Also because the court erred in charging: "If you believe from the evidence that it [referring to the running of trains on the street, with the noise, smoke, dust, etc.] amounts simply to an inconvenience to the occupants, for instance, if you or I were living there we would rather not have simply a disagreeable annoyance, that is not damage; that is not a thing that you could treat as damage for which a money value could be given." Also because the court erred in charging: "Now, it may be true you may find from the evidence that, in point of fact, the coming of the railroad will decrease the value of this property for rental purposes, but upon that alone you could not base a verdict for Streyer, unless you were satisfied from the testimony that the effect at the same time would be to decrease its market value." Also because the court erred in the charge, as a whole, in that it nowhere submitted defendant's theory, as brought out by testimony and urged in argument, that Streyer was entitled to all enhancement in the value of his property, arising from naturali growth of the city or causes other than the railroad in the street, and because the court erred in failing to warn the jury that enhancements in value arising from such causes. could not be set off against actual proven damage. And that the court erred in its charge as a whole, in that it did not charge that the benefits which could be set off against the actual proven damages could only be such benefits as the evidence showed would spring alone from improvements placed upon the street in front of or in the vicinity of Streyer's property, the same having been urged by defendant's counsel in argument. And because the court erred in its charge as a whole, in that it continually referred to benefits which the jury, from the evidence, might set off against the proven damage, no benefits being mentioned in the special act of December 17, 1888, not authorized by the evidence, such position being urged by defendant's counsel during the trial and the argument. And because the court erred in its charge as a whole, in that the charge continually referred to the market value of the property, without defining what market value was meant, whether of the land itself or of the property considered as a whole, houses and land 51 A. & E. R. Cas.-41

together, and for the purposes for which it was then used, the same being urged by defendant's counsel. And that the court erred in its charge as a whole, in that it repeatedly assumed that any benefits arising from the construction of the railroad in the street could be set off against the proven damages, when, in truth and in law, no benefits could be set off against such damages, except such as would flow directly from improvements placed upon the street itself, the mere construction of the railroad itself being no improvement put on the street; the last-mentioned view being urged by defendant's counsel in argument, even supposing the special act authorized the setting off of any benefits at all. And because the court erred in its charge as a whole, in continually referring to the market value of the property, and distinctly telling the jury that by market value it did not mean rental value or the value of the property for rental purposes; defendant contending that if market value were to be considered it should be market value for the purposes for which the property had been dedicated and improved, and it would be especially lessened by a railroad in the street; and contending, further, that the measure of damages for a railroad in the streets of a city in front of residence property was a distinct legal principle, sui generis, and confined to the actual damage done the property as it then stood, and for the purposes the property was used; and, if market value were considered, it should be the market value for the purposes the property had been improved and was used,-the market value for residence purposes.

F. J. M. Daly and Hardeman & Nottingham, for plaintiff in

error.

Gustin, Guerry & Hall, for defendant in error.

PER CURIAM.-Judgment affirmed.

Eminent Domain-Right to Open and Close.-See Bellingham Bay & B. C. R. Co. v. Strand and note, ante, pp. 608, 614.

Same-Market Value of Property Taken as Measure of Damages.-See Colorado Cent. R. Co. v. Allen (Colo.) and cases cited in note, Am. & Eng. R. Cas. 193, 205.

PARKER

υ.

FT. WORTH & DENVER CITY R. Co.

(Texas Supreme Court, April 15, 1892.)

Eminent Domain-Admission of Judgment in Evidence in an Action to try Title. In an action of trespass against a railroad company to try title to land condemned for railroad purposes, it was error for the court to admit in evidence a judgment in such proceedings, which recited that notice was given, founded on the report of the commissioners stating that they had given such notice to the owners of the land, in the absence of evidence that such notice as the law prescribes had been given to the owners.

Sufficiency of Description of Land Sought to be Condemned-Parol Evi dence. Where a statute requires the application for proceedings to condemn land "to state, in writing, the real estate and property sought to be condemned," the application must contain a description of the land by which it may be identified with certainty. A petition of a railroad company to condemn land for right of way simply which states that the line entered the land on the eastern boundary and passed out on the western boundary embracing a width of 50 feet on each side of the centre line without designating the points of entry and departure, is not sufficient to support a judgment condemning the right of way, and it is improper to receive parol testimony to supply the defect of the petition.

Recording Judgment in Condemnation Proceedings.-Under Revised Statute Texas, Article 4332, a judgment in proceedings to condemn land must be recorded in order to protect the railroad company from the claims of a subsequent purchaser.

APPEAL from Wichita County District Court.

W. W. Flood, for appellant.

case.

STAYTON, C. J.-This is an action of trespass to try title, instituted by appellant to recover a section of land patented to Simeon Stark, from whom he deraigned title by regular chain of transfer. Appellee, after having Statement of first made defense to the entire action, disclaimed as to all the land sued for, except a strip of land 100 feet wide, extending through the grant, over which it claimed to have acquired right of way through proceedings in condemnation instituted on May 15, 1882, which was prior to the purchase of the land by appellant. Judgment was rendered in favor of the plaintiff for the land, subject to the defendant's right of way, which it was held had vested in defendant. The petition seeking condemnation alleged that the owners of the land were unknown; that the company had laid out its line through Wichita county, and was then engaged in construct. ing its road; and that "it is necessary that the line thereof should run and the same has been laid out over and through