in market value may be

only indirectly affects his land. But in cases like the present the owner may recover for his entire loss in one Depreciation action, and only in one action, and he may so recover the same if he chooses, by recovering for the depreciation in the market value of his land caused recovered. by the injuries thereto committed by the wrongdoer. 3 Suth. Dam. 372-374, 392-394, 5 Am. & Eng. Ency. Law, 16, 20, 36. This is, in fact, a recovery only for the loss occurring prior to the commencement of the action, although it may also to some extent have in contemplation the future. The loss, as thus recovered for, is precisely the loss which occurred at the very time at which the injury was consummated. In many cases the depreciation in the market value of the land, and the cost of restoring it to its former condition, would be precisely equal. In the first of the above authorities, the following language is used: "In general, this damage is the amount the estate is diminished thereby in value." Page 393. In the last authority cited, the following language is used: "In cases of trespass, the cause of action is the wrongful act of the defendant, and the injury resulting is merely the measure of the damages. Therefore, applying the rule above, all damages for a trespass must be recovered in a single action." Page 16. "In actions for injury to real property, where the injury is done to the realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or, in some cases, the amount necessary to restore the property to the condition in which it was before the trespass was committed." Page 36. Also, in all cases where damages may be recovered for the depreciation in the market value of real estate caused by injuries thereto, the owner may recover for the depreciation in the market value of the entire tract, although the injury may, in fact, be directly only to a portion of the tract. See the above authorities, and also the following: Kansas City, E. & S. R. Co. v. Merrill, 25 Kan. 421, 2 Am. & Eng. R. Cas. 485; Com'rs of Smith Co. v. Labore, 37 Kan. 480; Central Branch U. P. R. Co. v. Andrews, 41 Kan. 370, 379; St. Louis, Ft. S. & W. R. Co. v. McAuliff, 43 Kan. 185.

tion of market value.

The plaintiff also in this case showed the exact location of his land, how it was situated with respect to the city of Fredonia, and its streets, and the railroad, etc., and Determina- for what purposes it might be used; and the jury were also permitted to see it. We do not think that there was any error in this; for, when the question of the value of real estate is in issue, the owner is entitled to show its market value for any purpose for which it might be most advantageously used, and for which it would

sell in the market for the highest price. King 2. Minneapolis Union R. Co., 32 Minn. 224, 17 Am. & Eng. R. Cas. 93; Com'rs of Smith Co. v. Labore, 37 Kan. 480, 484, 485; Cohen v. St. Louis, Ft. S. & W. R. Co., 34 Kan. 164, 22 Am. & Eng. R. Cas. 116, and cases there cited; Com'rs of Dickinson Co. v. Hogan, 39 Kan. 606; Kansas City & S. W. R. Co. v. Ehret, 41 Kan. 24. The question to be considered is really what was the property worth immediately before the injury, if used for the purpose for which it could be the most advantageously used, and what was it worth in the same condition except for the injury immediately afterwards if it were used for the purpose for which it could be the most advantageously used? It is also claimed that the court below erred in permitting oral testimony to be introduced tending to contradict the effect of the deed executed by the plaintiff to the defendant. The plaintiff's counsel, however, stated at the time it was introduced that it was not introduced for that purpose, and the court did not permit it to go to the jury for that purpose; and the court afterwards instructed the jury that it could not be used for that purpose. The real object of the testimony seems to have been to show that the trespass was committed willfully and maliciously; but, if no exemplary damages were allowed, it really answered no purpose.

Admission of

evidence.

It is also claimed that the court below erred in giving the following instruction: "You have the right also to take into

consideration in this case such knowledge and information as you may have acquired of the plaint- Inspection by iff's land as to the alleged injuries committed there, jury-Inby the personal examination of the premises, that you have been permitted to make under the directions of the

court."

struction.

Under the decision of this court in the case of City

of Topeka v. Martineau, 42 Kan. 387, 28 Am. &. Eng. Corp. Cas. 217, this instruction was not erroneous. We do not think that any material error was committed in this case, and therefore the judgment of the court below will be affirmed. All the justices concurring.

Construction of Side Track on Company's Own Land--Temporary Injunction-Modification. Temporary injunction modified so as to allow the company to complete over its own land the sidetrack already commenced, and to use the same until a final adjudication is had in the cause; this side

track not touching any property of the complainants, and its construction

and use

crease

their

being (according to the evidence) more likely to lessen than inannoyance or damage for the present. Savannah, A. & M. R. Co. V. Fort, 84 Ga. 500.

Construction of Side Track under Contract for Right of Way-Loss of Contract-Action Against Company for taking up Rails.-In Spoon v. Chicago, & W. M. R. Co., (Michigan, June 5, 1891), 49 N. W. Rep. 35, an action was 47 A. & E. R. Cas.-21

brought against a railroad company for the value of certain rails taken by it from a side track on plaintiff's land. The side track was constructed under a written contract which had been lost. It was provided by this contract that the plaintiff granted a right of way to the company in consideration of its putting a depot and side track on his land. On the trial the court instructed the jury that they must determine from all the evidence, whether under the contract the side track belonged to plaintiff or to defendant, and that if they found it belonged to plaintiff, he was entitled to recover the value of the rails at the time they were taken up and converted by defendant. Held, that these instructions were proper.

POST

v.

WEST SHORE & BUFFALO R. CO.

(123 New York, 580.)

Grant of Right of Way Including Fee in Public Highway -Reconstruction of Highway on other Land-Public Policy.-Where the right of a railroad company to construct its road in a public highway is regulated by statute, and the law provides that in case of such construction the company must restore the highway to its former usefulness or construct a new one, a deed to a railroad company, conveying the fee in a public highway and other land for a right of way, in which the company convenants to restore and reconstruct the highway on the other land, is not against public policy, as being a contract between private parties for the abandonment of a part of an existing highway, and the substitution of a new location to take the place of the highway so abandoned. The fact that the town commissioner objects to the restoration of the highway in the manner provided in the deed will not release the railroad company from its covenant contained therein, for the company is under no legal compulsion to follow his direction in the matter.

Same-Damages for Failure to Restore Highway.-In such case the railroad company failed to restore the highway as agreed in the deed, whereby the grantor was compelled to use another road which compelled him to travel one and one quarter miles further in the transportation of his farm products. Held that $2,500 damages was not excessive where the company is relieved from restoring the highway which would cost $13,000.

APPEAL from Supreme Court, General Term, Third Department.

This action was to enforce the specific performance of an alleged covenant for the reconstruction and restoration of a public road, and the construction of a railroad crossing, contained in a deed executed by the plaintiff to the New York, West Shore & Buffalo Railway Company, dated February 8, 1882, conveying a strip of land running northerly and southerly through the plaintiff's farm in the town of Catskill, in the county of Green, in this state, 130 feet in width and 1,500 feet in length, which strip of land included the public highway through said plaintiff's farm, known as the "Catskill

and Saugerties Road." The plaintiff, prior to, and at the time of, said conveyance, was the owner of a valuable farm of 260 acres on the westerly shore of the Hudson river, through which ran northerly and southerly a rocky ridge known as "Calkberg Mountain," dividing the lowlands of the plaintiff's farm on the river from the upland. Along the easterly foot of the ridge ran the Catskill and Saugerties. highway, communicating with Catskill on the north, and with Saugerties and other places on the south. The plaintiff's house and farm buildings were located near to, and on the easterly side of, the highway. In 1882, the New York, West Shore & Buffalo Railway was engaged in the construction of its railway, the line of which at this point ran within and along the highway, across the plaintiff's premises. The railway company, in view of this fact, purchased from the plaintiff the strip mentioned, and the deed of conveyance from the plaintiff contained the following clause: "The party of the second part [the railway company] is to reconstruct and restore the public road, and place the same along the westerly line of and upon the aforesaid premises. The party of the second part is to construct a good and convenient crossing over the said railway premises to the highway, reconstructed as aforesaid." The conveyance to the company was in terms of "fee-simple." The company thereupon took possession of the highway, and raised an embankment on the easterly side of the strip so conveyed, for the track of its road, from 14 to 20 feet high, across the plaintiff's farm, and completely shut off all approach to the plaintiff's buildings over the highway from the south, there being a ravine on the southerly side of his land, which embankment also prevented. his reaching the highway to the north except by climbing the railroad embankment near the northerly line of his premises. Neither the New York, West Shore & Buffalo Railway Company, nor its successor in title, the West Shore Railway Company, nor the New York Central & Hudson River Railroad

Company, the lessee of the West Shore Railway Company, has constructed the highway on the westerly side of the 130feet strip, as provided in the deed. But, in the fall of 1882,

the

and

way,

grantee in the deed purchased from the plaintiff another strip of land across his farm, 50 feet in width, on the top of the mountain for a public road, and opened it as a public road, connected it at the north and south with the old highand it has since been used by the public as such in place the original road at the foot of the hill. The company also made an approach up the embankment on the north side of the plaintiff's farm, to enable the plaintiff to reach the old highway north of his premises. The plaintiff, by reason of

of

the situation, when he desires to go from the 145 acres of his farm on the river to Saugerties, or any other market south of his premises, is compelled to first go north, climbing the embankment to the junction of the old road with the new road, across the hill, and then turn southerly and go over the hill road until it meets the original highway south of his lands, a route much less convenient than the former one, thereby increasing on each strip the distance to be traveled about one and a quarter miles. In respect to the new road, and the purchase of the strip 50 feet in width therefor, upon which one of the points made by the defendants is based, it appears that, in constructing the embankment, the railroad company blocked and obstructed the old highway so as to prevent its use, and the commissioner of highways threatened legal proceedings; and it also appears that he objected to placing the highway on the 130-foot strip, on the ground that horses would be frightened, etc. The original company thereupon applied to the plaintiff to purchase a strip on the hill for the highway and did make such purchase, paying the plaintiff $500 for the land. But the plaintiff expressly refused to release the company from the obligation under the covenant in the origi nal deed; and insisted that the company should build the road on the west side of the 130 feet, as provided therein. It was shown on the part of the defendants that the construction of a highway under the hill, as provided in the covenant, would, by reason of the blasting which would become necessary, and other difficulties, be very expensive, and would cost from $12,000 to $14,000, and that the company had expended from $6,000 to $10,000 in constructing the road over the hill. Subsequent to the commencement of this action, the New York, West Shore & Buffalo Railway Company became insolvent, and its property was sold on foreclosure, and was purchased by individuals who subsequently conveyed it to a new corporation, the West Shore Railway Company, which latter company leased it by a perpetual lease to the New York Central & Hudson River Railroad Company. The two latter corporations were brought in as parties defendant. There was proof tending to show that the value of the plaintiff's farm had been greatly impaired by the obstruction of the old highway, and that it would be worth $5,000 more than it now is if the covenant in the original deed had been performed. The judgment of the court awarded the plaintiff $2,500 as damages for the failure to construct the road as provided in that deed, and adjudged that the defendant the West Shore Railway should construct a crossing under its road at a point indicated, to enable the plaintiff to reach the old highway and the new road over the hill.