Obrázky stránek
PDF
ePub

(— Ark. —, 231 S. W. 190.)

must always arise in the interpretation of a statute authorizing the taking of property or in any proceeding to recover compensation therefor, is: What is "just compensation" under the given state of facts? Counsel for appellants contend that decisions of this court in Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707, and Paragould v. Milner, 114 Ark. 334, 170 S. W. 78, have established the rule of "just compensation" in cases similar to this to be that "where the public use for which a portion of a man's land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits."

Such is undoubtedly the rule established by the great weight of authority in cases where property is taken for general public use and compensation is to be awarded at the expense of the public. Many cases on that subject are referred to in Cribbs v. Benedict, supra, and there are many. other cases to the same effect decided before that time and since.

The rule has been generally applied in instances of the taking of land for use as a public highway or park or such other public use, where the compensation is to be awarded out of public funds. The case of Paragould v. Milner, supra, is an instance of that character, and we have no doubt as to the correctness of that rule as applied to the facts of such a case. Cribbs v. Benedict, supra, was, however, a case where there was involved an improvement district formed under general statutes for the purpose of constructing a drainage ditch, and we announced the same rule in that case. The question of damages was not, however, involved in that case further than to determine whether or not the statute which failed to provide for the payment of damages was valid, and this rule was merely stated as one of the reasons for holding the statute to be valid without pro

viding for the payment of compensation other than impliedly by the benefits which would accrue from the construction of the improvement. This was stated only as one of the reasons why the statute was valid, and the decision was undoubtedly correct, even though we concluded that this particular reason for so holding was unsound.

We have reached the conclusion that the application of that rule, in a case where an improvement district which is organized for the purpose of constructing an improvement to be paid for out of special assessments levied on contiguous lands benefited by the improvement, cannot setting off ben be applied in measuring the compensation to be paid to

Eminent domain

efits against compensation for property taken.

a property owner whose land is taken for the construction of the improvement, so as to reduce the amount to be recovered to the extent of the benefits accruing to the other lands in the district which are to be specially taxed for the purpose of paying for the improvement.

It is found, on examination, that all of the cases cited in Cribbs v. Benedict, supra, are those which relate to payment of compensation for property taken for public use where the question of special benefits arising from a purely local improvement to be paid for by special assignments did not arise. In a few cases, like the present one, the authorities are to the contrary. It is readily seen that the application of this rule to the payment of compensation for property taken by an improvement district constitutes a double charge for the benefits accruing to the remainder of an owner's land where a part has been taken for the construction of the improvement. The benefit to the remaining portion of the land is paid for by the owner in special assessments levied to defray the cost of improvement, and if the owner is compelled to credit the amount of these benefits on the compensation to which he is entitled for that portion of his land which has

been taken, the effect is to charge him twice for the benefits. In other words, he will be paying for the benefits in the assessments which are levied against his property, and also the second time when he credits it on the compensation which is due. him for his property which has been taken.

Page & Jones, in their work on Taxation by Assessment (vol. 1, § 67), state the rule as follows: "Whatever method of exacting compensation from the property owner for benefits inuring to him is adopted, the property owner cannot be charged twice for the same benefit.

So, if, under the local statute, certain benefits may be made the basis of a local assessment against the property, such benefits cannot be set off against damages, as the property owner can subsequently be compelled to pay therefor in such assessment proceedings."

This rule was announced by the supreme judicial court of Massachusetts in the case of Garvey v. Revere, 187 Mass. 545, 73 N. E. 664, though that court has steadily adhered to the general rule hereinbefore stated that compensation may be made for property taken for public use in the benefits to accrue to the remainder of the property of the same owner. This doctrine was also announced by Judge Mitchell with much force in the case of State ex rel. Merchant v. District Ct. 66 Minn. 161, 68 N. W. 860. In that case the court dealt with a statute, one section of which authorized the appraisal of damages for property taken for use in providing a local improvement, and another section which provided for the assessment of such special benefits which was to form the basis of taxes levied to defray the cost of the improvement. The Minnesota court had, in other decisions, announced the general rule as hereinbefore recited with reference to the reduction of damages by compensation in benefits, and reiterated that rule in the case just cited, but held that the rule had

no application to an instance where the cost of the improvement for which the land was taken was to be defrayed by the imposition of taxes based upon special benefits. The court said: "But counsel's contention is that where, as under this statute, the cost of the acquisition of the land is to be defrayed by special assessments upon the property specially benefited thereby, a deduction of special benefits to the remainder of the tract from the value of the part taken is unconstitutional, for the reason that this remainder is subject to assessment, to the extent of these same special benefits, to defray this same cost, which would result either in the owner being taxed twice for the same improvement, or else in depriving him of his property without just compensation. It is very clear that, if the statute will accomplish this result, it, or some part of it, is unconstitutional and void.

"We need not stop to inquire what are benefits 'resulting from such taking,' which are to be deducted in the condemnation proceedings,whether they are only those resulting from the mere taking of the land by the city, disassociated from the appropriation and improvement for the purpose for which it is taken, or whether they also include those that will result from such appropriation and improvement,-although it is very difficult to conceive what benefits can result to the residue of a tract from the mere act of taking a part of it. But it is very evident from the language of § 8 that the benefits for which assessments are there required include the same benefits which are required to be deducted by § 7. Moreover, the language of § 8 is mandatory, and not merely permissive. It not only requires such assessments to be made, but also that they shall be made on all property benefited. Hence, if all the provisions of both sections are carried into effect, the result will be either that the landowner will be deprived of his property without just

(Ark. 231 S. W. 190.)

compensation, or else he will be taxed unequally, by being compelled to pay twice for the same thing."

It is true that in that case the court held that the two sections were in conflict, and that the last one, which provided for taxation upon the whole of the benefits without taking into consideration the damages, was void. We have no such question as that in the present case, but the decision of the Minnesota court is persuasive to the extent that it lays down the principle that it would constitute a double charge against the property owner to make him contribute out of benefits received to the cost of improvement by paying assessments, and also by compelling him to credit the benefits which accrue from the improvement on the compensation to which he is entitled for damages on account of other portions of his land being tak

en.

The theory upon which rest the proceedings for the construction of local improvements by the imposition of special assessments on contiguous property is that the improvement is public in its nature to the extent that the right of eminent domain may be authorized, but it is local to the extent that special benefits accrue to the adjoining property.

The improvement is paid for out of special assessments based on such benefits, and when property is taken for use in the construction of the improvement, full compensation must be awarded in order to satisfy the requirements of the Constitution, without deduction of the benefits which are to accrue to the owner on the remainder of his property. Damages to the property not taken may, however, be balanced off against the benefits which accrue, for damages must necessarily be taken into account in the estimate of benefits. There are authorities to the effect that if the benefits to the remaining property exceed the dam

ages to the property taken, such benefits may be used in the reduction of the damages, and the excessive benefits over damages may be the basis of a local assessment. And it has been held that it is proper "to deduct the amount of the special tax levied for a given improvement, from the amount of the benefits received from such improvement, and to treat the amount thus obtained as the net amount of benefits to be deducted from the amount of damages." Page & J. Taxn. Assessment, § 67; Carroll v. Marshall, 99 Mo. App. 464, 73 S. W. 1102; Grant Park v. Trah, 218 Ill. 516, 75 N. E. 1040. There is no question, however, presented in the facts of the present case as to whether the benefits will exceed the amount of taxes assessed against them. It does not appear even that the jury awarded any damages for injury to the remainder of the property not taken, though they may have done so under the testimony and instructions of the court. No point is raised that the benefits exceeded the taxes levied and should be, to that extent, credited on the compensation to be allowed for the damages to the property taken. At any rate, we are convinced that the true rule is that, whether the taxes levied amount to the full amount of the appraised benefits or not, there can be no deduction of any part of the benefits from the compensation to be allowed to a property owner for that portion of his property which is taken and used in the construction of the improvement, for the reason that he pays for his benefits in taxes, the same as other property owners, and it would destroy the rule of equality to require him to contribute to the common use any part of his property without compensation.

There was no error committed, and the judgment should be affirmed. It is so ordered.

ANNOTATION.

Right to set off benefits to part of tract which is not taken but is subject to assessment for improvement, against damages for taking part of tract for public improvement.

General rule.

It is well settled that where a tract of land has been damaged, or part of it taken in the construction of a public improvement, and the land, or the part remaining, is subject to a special assessment for its proportional share of the cost of the improvement, the benefits accruing to the land, or the part remaining, cannot be set off against the damages awarded to the owner for the taking or injury, when such benefits are not in excess of the assessment.

-

Arkansas. See the reported case (GREGG V. SANDERS, ante, 59). Illinois. Bloomington v. Pollock (1892) 141 Ill. 346, 31 N. E. 146, affirming (1890) 38 Ill. App. 133; Leopold v. Chicago (1894) 150 Ill. 568, 37 N. E. 892. See also Grant Park v. Trah (1904) 115 Ill. App. 291, affirmed in (1905) 218 Ill. 516, 75 N. E. 1040.

Minnesota.-State ex rel. Merchant v. District Ct. (1896) 66 Minn. 161, 68 N. W. 860.

Missouri. (1903) 99 Mo. App. 464, 73 S. W. 1102; Widman Invest. Co. v. St. Joseph (1905) 191 Mo. 459, 90 S. W. 763. Nebraska.-Goodrich V. Omaha (1880) 10 Neb. 98, 4 N. W. 424.

Carroll V. Marshall

New Jersey.-State, Rettinger, Prosecutor, v. Passaic (1883) 45 N. J. L. 146; Davis v. Newark (1892) 54 N. J. L. 595, 25 Atl. 336.

New York. Betts v. Williamsburgh (1853) 15 Barb. 255.

Virginia.-Norfolk v. Chamberlain (1892) 89 Va. 196, 16 S. E. 730.

But it seems that where the benefits to the remaining tract are in excess of the amount paid under the special assessment, the excess of the benefits may be set off against the owner's claim for damages. Carroll v. Marshall (Mo.) and State, Rettinger, Prosecutor, v. Passaic (N. J.) supra. In the first-mentioned case the court said: "It appears that the street was

not only graded, but was also macadamized and curbed. The court gave an instruction for defendant, wherein it was declared that the fact the street was a graded and macadamized street, with curbs and gutters, could be taken into consideration by the jury as benefits to plaintiff which should be deducted from his damage. Plaintiff objects to the instruction. He says in support of his objection that he had already paid for the grading, paving, and curbing; or would, under the law, be compelled to pay for it through special tax bills issued for such improvements. That if such grading, paving, and curbing is to be now charged against against his it damage, will be forcing him to a double payment. We believe the objection to be sound. The cost of specific improvement which has been paid for by a property holder ought not, in justice, to be set off against his loss by reason of damage to his property. That benefit, up to the amount of the cost thereof, has been settled by the property owner himself, and the city has no right to use it as an offset to his claim for damages. But we think it would be going too far to say that such improvements are not to be considered at all. Grading, paving, and curbing a street may, and frequently do, benefit the abutting property largely more than the cost of the work and material evidenced by the tax bill which the property owner pays. The instruction ought to have been so worded that the only benefit to be allowed against plaintiff's damage would be that which was in excess of what such improvements had cost him by reason of the special assessment therefor. If the benefit did not exceed the cost, then no benefit would be counted against him in estimating the damage."

In Massachusetts, the Betterment Act (Pub. Stat. chap. 51) which applies to public ways declared to be

laid out under its provisions, and which is not in force in towns unless accepted by them, authorizes the expense of laying out or altering ways to be assessed on the property thereby benefited. Under that act, if "any real estate, including that a part of which is taken therefor, receives any benefit and advantage therefrom beyond the general advantages to all real estate in the city or town," the value of the benefit or advantage shall be determined, and a proportional share of the expense of the way be assessed on the same, "but no assessment shall exceed one half of the amount of the adjudged benefit." See Benton v. Brookline (1890) 151 Mass. 250, 23 N. E. 846, wherein the court, in holding that the statute forbade the deduction of benefits in estimating the damages from a taking of land for a highway, said: "The obvious and express intention of the statute is to require all lands benefited to contribute proportionally to the benefit, the residue of land part of which is taken equally with the other land. It would be against the intention of the statute to require the owner of one parcel of land benefited to pay the whole amount of the benefit under the guise of offset to damages for land taken, and to restrict the payment by another similarly benefited to one half the amount of the benefit, because he was sustained no damage. The statute expressly puts the two upon the same footing, and applies to them the same rule, and impliedly, if not expressly, prohibits the application of any benefit or advantage which may be assessed as a betterment by way of set-off to damages. It is obvious that benefits which have been set off against damages cannot be also assessed as betterments; and that either no benefits which can be set off against damages can be assessed as betterments, or that in any assessment for betterments it must be competent to prove what benefits had been set off against damages." In Upham v. Worcester (1873) 113 Mass. 97, the Massachusetts doctrine as to the set-off of benefits to the remainder of a tract of land against dam17 A.L.R.-5.

[ocr errors]

.

[ocr errors]

ages for taking a part of the tract for a public improvement, when such remainder is subject to a special assessment, was very clearly stated as follows: "The benefits which may accrue to any estate from the laying out of a highway are of three kinds: (1) Those directly occasioned to an estate bounding upon the highway, and peculiar to the estate itself, as distinguished from other estates not bounding thereon; (2) those shared by the estate in common with other estates in the neighborhood; (3) those which extend to all estates in the same town or city. Benefits of the first kind only can be allowed by way of set-off against the damages awarded to the owner under the Highway Act for taking part of the estate and injuring it. Gen. Stat. chap. 43, § 16. Benefits of the first kind, where no part of the estate is taken or injured by the laying out of the highway, and of the second kind in all cases, are to be included in the benefit and advantage to be considered in making an assessment under the Betterment Acts. Stat. 1870, chap. 163, § 3; 1871, chap. 382, § 1. The increased value of the estate by reason of benefits of the third kind, being those which its owner receives in common with all other owners of lands in the same municipality, are not subjects of compensation from him to the public in any form of proceeding. Stat. 1871, chap. 382, § 1. The bill of exceptions shows that part of the petitioner's land was taken for the highway, and that his damages were assessed by a committee duly appointed. He now offers to prove that, in the estimate of those damages, the peculiar benefits to his estate were deducted, and the amount of that deduction. But the Betterment Act of 1870, chap. 163, § 3, under which the present case arose, enacts that in estimating, in accordance with its provisions, the benefit and advantage to any estate by the laying out or alteration of a highway, 'due allowance shall be made for any benefit set off under the provisions of § 16 of chap. 43 of the General Statutes.' If the amount of the peculiar benefit thus set off had

« PředchozíPokračovat »