Oregon Short Line Railroad v. Fox , 28 Utah 311 ( 1904 )

McCARTY, J.,

after stating the facts delivered the opinion of the court.

The only question presented by this' appeal is whether appellant was entitled at the trial of this cause to prove that it had abandoned its old line through the property of respondents,and by reason of such abandonment that, aside from the taking of the land described for the right of way for the new line, it was no more of a detriment or inconvenience or damage to respondents for appellant to construct and operate its railroad along the new line than it would have been for appellant to have continued to maintain and operate its railroad along the old line, which it sought to show it had abandoned. The contention of the appellant is to the effect that, by abandoning its old line across the southern portion of the section, it conferred a benefit upon respondents, and that appellant was entitled to have such benefit off-set against or deducted from the damages done the land adjoining the new right of way by reason of the construction and operation of the new line of railroad. The undisputed evidence shows “that, by reason of the construction and operation of the railroad by plaintiff; the lands owned by defendants and abutting upon the right of way sought to be acquired by plaintiff for a depth of ten to fifteen rods were lessened in value at least fifty per cent.” Section 3598, Rev. St. 1898, among other things, provides that the assessment of damages in condemnation proceedings shall be as follows First. “The value of the property sought tobe condemned and all improvements thereon pertaining to the realty. ’ ’ Second. “If the property sought to be condemned constitutes only a part of a large parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction-of the improvements in the manner proposed by the plaintiff.” Third. ‘ ‘ Seperately how much the portion not sought to be condemned, and such estate or interest therein, will be benefited, if at all, by tbe construction of the improvement proposed by plaintiff; and if the benefit shall be equal to the damage assessed under subdivision- two of this section, the owner of the parcel shall be allowed no compensation except the value of the portion taken.” It is plain that the benefits referred to in the foregoing section of the statute are only such as inure to or directly affect the land adjacent to the right of way sought to be condemned. Chicago & E. R. Co. v. Blake, 116 Ill. 163, 4 N. E. 488; Meachem v. Fitchburg R. Co., 4 Cush. (Mass.) 291; Winona & St. P. R. R. Co. v. Waldron, 11 Minn. 515 (Gil. 392), 83 Am. Dec. 100; Chicago, K & N. Ry. Co. v. Wiebe, 25 Neb. 542, 41 N. W. 297; Little Miami R. Co. v. Collet, 6 Ohio St. 182; Cooley, Const. Lim. 699.

The new right of way is nearly a mile distant from the old one. The damage done to adjoining lands by the construction and operation of the new road is separate and distinct from the inconvenience and damage caused by the construction and operation of the old line; that is, the old line is entirely outside of the zone of damage caused by the construction of the new. Appellant was under no contractual or legal obligation of any kind to respondents to abandon or forfeit any right acquired by it through the purchase of the old right of way because of the condemnation of the new and the construction and operation of a road thereon. The abandonment of the old line was an independent, as well as voluntary, act on the part. of appellant, and in no sense was it the natural or necessary result of the acquirement of the new. If, under any principle or rule of law, appellant had been compelled to relinquish its title to the old right of way to respondents when it acquired title to the new, then it might be urged with some degree of consistency that there was a corresponding obligation on the part of respondents to accept the old roadbed as an off-set, in whole or in part, for the damage caused by the new; but, as stated, appellant was not legally bound to abandon its old right of way, nor to relinquish any right or privilege acquired through the construction and operation of its road thereon; neither were respondents under any obligation, legal or otherwise; to accept as an off-set any benefit that may have accrued to them because of its abandonment. As stated by counsel for respondents in their brief: ‘‘When appellant entered on this land and constructed its new line, it became indebted to the respondents. It could not liquidate that debt by compelling them to accept land as payment, either in whole or in part.”' For the rule is well settled by the great weight of authority that, when lands are taken under condemnation proceedings, and any part of the remaining portion damaged because of such taking, the owner is entitled to “just compensation” in money, and cannot be compelled to accept any other kind of property in lieu thereof. "In volume 2, Words & Phrases, 1354, it is said: “In the exercise. of the right of eminent domain, no just compensation can be made for the property taken, except in money. Money is a common standard, by comparison with which the value of anything may be ascertained. Compensation is a recompense in value, a quid pro quo, and must be in money. Land or anything else may be a compensation, but then it must be at the election of the party; it cannot be forced upon him; and an act of the Legislature which provides that land may be taken and paid for with other lands belonging to the state does not provide a constitutional compensation.” The following cases are cited in support of the rule thus declared: Vanhorne’s Lessee v. Dorrance, 2 U. S. (2 Dall.) 304, 315, 28 Fed. Cas. 1012, 1 L. Ed. 391; Alabama & F. R. Co. v. Burkett, 46 Ala. 569. And again it is said: “ Compensation, as used in the constitution, providing that private property shall not be taken for public use without just compensation, means, the payment of the valuation of the property taken, in money” — Citing Loweree v. City of Newark, 38 N. J. Law (9 Vroom) 155. The following authorities also¡ declare this same doctrine: 2 Lewis, Eminent Domain, 505; Burlington, etc., R. Co. v. Schweikart, 10 Colo. 178, 14 Pac. 329; Commonwealth v. Peters, 2 Mass. 125; Central Ohio R. R. Co. v. Holler, 7 Ohio St. 220; Woodfolk v. R. R. Co., 2 Swan. (Tenn.) 434 et seq., 10 A. & E. Ency. Law (2 Ed.), 1145.

We find no reversible error in the record. The judgment is therefore affirmed, with costs.

BASKIN, C. J., and BARTCH, J., concur.