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Eminent domain

(Ark. -,231 8. W. 190.) must always arise in the interpreta- viding for the payment of compention of a statute authorizing the

sation other than impliedly by the iaking of property or in any pro- benefits which would accrue from ceeding to recover compensation the construction of the improvetherefor, is: What is "just compen- ment. This was stated only as one sation" under the given state of of the reasons why the statute was facts ? Counsel for appellants con- valid, and the decision was untend that decisions of this court in doubtedly correct, even though we Cribbs v. Benedict, 64 Ark. 555, 44 concluded that this particular reaS. W. 707, and Paragould v. Milner, son for so holding was unsound. 114 Ark. 334, 170 S. W. 78, have es- We have reached the conclusion tablished the rule of "just compen- that the application of that rule, in sation" in cases similar to this to a case where an improvement disbe that “where the public use for trict which is organized for the purwhich a portion of a man's land is pose of constructing an improvetaken so enhances the value of the ment to be paid for out of special asremainder as to make it of greater sessments levied on contiguous lands value than the whole was before the benefited by the imtaking, the owner in such case has provement, cannot -setting of ben received just compensation in bene- be applied in meas- compensation fits.”

uring the compensa- for property Such is undoubtedly the rule es- tion to be paid to tablished by the great weight of a property owner whose land is takauthority in cases where property en for the construction of the imis taken for general public use and provement, so as to reduce the compensation is to be awarded at amount to be recovered to the exthe expense of the public. Many

Many tent of the benefits accruing to the cases on that subject are referred to other lands in the district which are in Cribbs v. Benedict, supra, and to be specially taxed for the purpose there are many other cases to the of paying for the improvement. same effect decided before that time It is found, on examination, that and since.

all of the cases cited in Cribbs y, The rule has been generally ap- Benedict, supra, are those which replied in instances of the taking of late to payment of compensation for land for use as a public highway or property taken for public use where park or such other public use, where the question of special benefits aristhe compensation is to be awarded ing from a purely local improvement out of public funds. The case of to be paid for by special assignParagould v. Milner, supra, is an ments did not arise. In a few cases, instance of that character, and we like the present one, the authorities have no doubt as to the correctness are to the contrary. It is readily of that rule as applied to the facts seen that the application of this of such a case. Cribbs v. Benedict, rule to the payment of compensation supra, was, however, a case where for property taken by an improvethere was involved an improvement ment district constitutes a double district formed under general stat- charge for the benefits accruing to utes for the purpose of constructing the remainder of an owner's land a drainage ditch, and we announced where a part has been taken for the the same rule in that case.

construction of the improvement. question of damages was not, how- The benefit to the remaining portion ever, involved in that case further of the land is paid for by the owner than to determine whether or not in special assessments levied to dethe statute which failed to provide fray the cost of improvement, and if for the payment of damages was the owner is compelled to credit the valid, and this rule was merely stat- amount of these benefits on the comed as one of the reasons for holding pensation to which he is entitled for the statute to be valid without pro- that portion of his land which has been taken, the effect is to charge no application to an instance where him twice for the benefits. In other the cost of the improvement for words, he will be paying for the which the land was taken was to be benefits in the assessments which defrayed by the imposition of taxes are levied against his property, and based upon special benefits. The also the second time when he credits court said: “But counsel's contenit on the compensation which is due tion is that where, as under this him for his property which has statute, the cost of the acquisition of been taken.

the land is to be defrayed by special Page & Jones, in their work on assessments upon the property speTaxation by Assessment (vol. 1, § cially benefited thereby, a deduction 67), state the rule as follows: of special benefits to the remainder "Whatever method of exacting com- of the tract from the value of the pensation from the property owner part taken is unconstitutional, for for benefits inuring to him is adopt the reason that this remainder is ed, the property owner cannot be subject to assessment, to the extent charged twice for the same benefit. of these same speci

of these same special benefits, to So, if, under the local statute, defray this same cost, which would certain benefits may be made the result either in the owner being basis of a local assessment against taxed twice for the same improvethe property, such benefits cannot be ment, or else in depriving him of his set off against damages, as the prop- property without just compensation. erty owner can subsequently be It is very clear that, if the statute compelled to pay therefor in such will accomplish this result, it, or assessment proceedings.”

some part of it, is unconstitutional This rule was announced by the and void. supreme judicial court of Massachu- "We need not stop to inquire what setts in the case of Garvey v. Re- are benefits ‘resulting from such vere, 187 Mass. 545, 73 N. E. 664, taking,' which are to be deducted though that court has steadily ad- in the condemnation proceedings, hered to the general rule hereinbe- whether they are only those resultfore stated that compensation may ing from the mere taking of the land be made for property taken for pub- by the city, disassociated from the lic use in the benefits to accrue to appropriation and improvement for the remainder of the property of the the purpose for which it is taken, or same owner. This doctrine was al- whether they also include those that so announced by Judge Mitchell will result from such appropriation with much force in the case of State and improvement,—although it is ex rel. Merchant v. District Ct. 66 very difficult to conceive what benMinn. 161, 68 N. W. 860. In that efits can result to the residue of a case the court dealt with a statute, tract from the mere act of taking one section of which authorized the part of it. But it is very evident appraisal of damages for property from the language of $ 8 that the taken for use in providing a local benefits for which assessments are improvement, and another section there required include the same which provided for the assessment benefits which are required to be deof such special benefits which was to ducted by $ 7. Moreover, the lanform the basis of taxes levied to de- guage of $ 8 is mandatory, and not fray the cost of the improvement. merely permissive. It not only reThe Minnesota court had, in other quires such assessments to be made, decisions, announced the general but also that they shall be made on rule as hereinbefore recited with all property benefited. Hence, if all reference to the reduction of dam- the provisions of both sections are ages by compensation in benefits, carried into effect, the result will be and reiterated that rule in the case either that the landowner will be dejust cited, but held that the rule had prived of his property without just

(- Ark. 231 S. W. 190.) compensation, or else he will be

ages to the property taken, such taxed unequally, by being compelled benefits may be used in the reducto pay twice for the same thing.” tion of the damages, and the exces

It is true that in that case the sive benefits over damages may be court held that the two sections were the basis of a local assessment. And in conflict, and that the last one, it has been held that it is proper "to which provided for taxation upon deduct the amount of the special tax the whole of the benefits without levied for a given improvement, taking into consideration the dam- from the amount of the benefits reages, was void. We have no such ceived from such improvement, and question as that in the present case, to treat the amount thus obtained as but the decision of the Minnesota the net amount of benefits to be decourt is persuasive to the extent ducted from the amount of damthat it lays down the principle that ages.

ages.” Page & J. Taxn. Assessment, it would constitute a double charge § 67; Carroll v. Marshall, 99 Mo. against the property owner to make App. 464, 73 S. W. 1102; Grant him contribute out of benefits re- Park v. Trah, 218 Ill. 516, 75 N. E. ceived to the cost of improvement by 1040. There is no question, howpaying assessments, and also by ever, presented in the facts of the compelling him to credit the benefits present case as to whether the benewhich accrue from the improvement fits will exceed the amount of taxes on the compensation to which he is assessed against them. It does not entitled for damages on account of appear even that the jury awarded other portions of his land being tak- any damages for injury to the reen.

mainder of the property not taken, The theory upon which rest the though they may have done so under proceedings for the construction of the testimony and instructions of local improvements by the imposi- the court. No point is raised that tion of special assessments on con- the benefits exceeded the taxes tiguous property is that the im- levied and should be, to that extent, provement is public in its nature to credited on the compensation to be the extent that the right of eminent allowed for the damages to the propdomain may be authorized, but it is erty taken. At any rate, we are local to the extent that special bene convinced that the true rule is that, fits accrue to the adjoining proper- whether the taxes levied amount to ty. The improvement is paid for

the full amount of the appraised out of special assessments based on

benefits or not, there can be no desuch benefits, and when property is

duction of any part of the benefits taken for use in the construction of the improvement, full compensation

from the compensation to be allowed must be awarded in order to satisfy

to a property owner for that portion the requirements of the Constitu

of his property which is taken and tion, without deduction of the bene

used in the construction of the imfits which are to accrue to the owner

provement, for the reason that he on the remainder of his property. pays for his benefits in taxes, the Damages to the property not tak- same as other property owners, and en may, however, be balanced off it would destroy the rule of equality against the benefits which accrue, to require him to contribute to the for damages must necessarily be common use any part of his proptaken into account in the estimate of erty without compensation. benefits. There are authorities to There was no error committed, the effect that if the benefits to the and the judgment should be afremaining property exceed the dam- firmed. 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.

not only graded, but was also macadIt is well settled that where a tract

amized and curbed. The court gave of land has been damaged, or part of

an instruction for defendant, wherein it taken in the construction of a

it was declared that the fact the street public improvement, and the land, or

was a graded and macadamized street, the part remaining, is subject to a

with curbs and gutters, could be taken

into consideration by the jury as special assessment for its proportional share of the cost of the improvement,

benefits to plaintiff which should be the benefits accruing to the land, or

deducted from his damage. Plaintiff the part remaining, cannot be set off

objects to the instruction. He says in against the damages awarded to the support of his objection that he had owner for the taking or injury, when already paid for the grading, paving, such benefits are not in excess of the and curbing; or would, under the law, assessment.

be compelled to pay for it through Arkansas.—See the reported case special tax bills issued for such im(GREGG v. SANDERS, ante, 59).

provements. That if such grading, Illinois. Bloomington v. Pollock paving, and curbing is to be now (1892) 141 Ill. 346, 31 N. E. 146, affirm- charged against his damage, it ing (1890) 38 Ill. App. 133; Leopold will be forcing him to a double payv. Chicago (1894) 150 Ill. 568, 37 N. E. ment. We believe the objection to be 892. See also Grant Park V. Trah sound. The cost of specific improve(1904) 115 Ill. App. 291, affirmed in ment which has been paid for by (1905) 218 Ill. 516, 75 N. E. 1040. a property holder ought not, in justice,

Minnesota.-State ex rel. Merchant to be set off against his loss by reason v. District Ct. (1896) 66 Minn. 161, of damage to his property. That bene68 N. W. 860.

fit, up to the amount of the cost thereMissouri. Carroll Marshall of, has been settled by the property (1903) 99 Mo. App. 464, 73 S. W. 1102; owner himself, and the city has no Widman Invest. Co. v. St. Joseph right to use it as an offset to his claim (1905) 191 Mo. 459, 90 S. W. 763. for damages. But we think it would be

Nebraska.—Goodrich v. Omaha going too far to say that such improve(1880) 10 Neb. 98, 4 N. W. 424.

ments are not to be considered at all. New Jersey.-State, Rettinger, Pros- Grading, paving, and curbing a street ecutor, v. Passaic (1883) 45 N. J. L. may, and frequently do, benefit the 146; Davis v. Newark (1892) 54 N. J. abutting property largely more than L. 595, 25 Atl. 336.

the cost of the work and material New York.-Betts v. Williamsburgh evidenced by the tax bill which the (1853) 15 Barb. 255.

property owner pays. The instruction Virginia.—Norfolk v. Chamberlain ought to have been so worded that the (1892) 89 Va. 196, 16 S. E. 730.

only benefit to be allowed against But it seems that where the benefits

plaintiff's damage would be that which to the remaining tract are in excess

was in excess of what such improveof the amount paid under the special

ments had cost him by reason of the assessment, the excess of the benefits special assessment therefor. If the may be set off against the owner's benefit did not exceed the cost, then no claim for damages. Carroll v. Mar

benefit would be counted against him shall (Mo.) and State, Rettinger, in estimating the damage.” Prosecutor, v. Passaic (N. J.) supra. In Massachusetts, the Betterment In the first-mentioned case the court Act (Pub. Stat. chap. 51) which apsaid: “It appears that the street was plies to public ways declared to be

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V.

laid out under its provisions, and ages for taking a part of the tract which is not in force in towns unless for a public improvement, when such accepted by them, authorizes the ex- remainder is subject to a special aspense of laying out or altering ways to sessment, was very clearly stated as be assessed on the property thereby follows: "The benefits which may benefited. Under that act, if “any accrue to any estate from the laying real estate, including that a part of out of a highway are of three kinds : which is taken therefor, receives any (1) Those directly occasioned to an benefit and advantage therefrom be- estate bounding upon the highway, yond the general advantages to all and peculiar to the estate itself, as real estate in the city or town," the distinguished from other estates not value of the benefit or advantage shall bounding thereon; (2) those shared be determined, and a proportional by the estate in common with other share of the expense of the way be estates in the neighborhood; (3) those assessed on the same, “but no assess- which extend to all estates in the same ment shall exceed one half of the town or city. Benefits of the first amount of the adjudged benefit." See kind only can be allowed by way of Benton v. Brookline (1890) 151 Mass. set-off against the damages awarded 250, 23 N. E. 846, wherein the court, to the owner under the Highway Act in holding that the statute forbade for taking part of the estate and inthe deduction of benefits in estimating juring it. Gen. Stat. chap. 43, § 16. the damages from a taking of land

Benefits of the first kind, for a highway, said: “The obvious where no part of the estate is taken and express intention of the statute or injured by the laying out of the is to require all lands benefited to con- highway, and of the second kind in tribute proportionally to the benefit, all cases, are to be included in the the residue of land part of which is benefit and advantage to be considered taken equally with the other land. in making an assessment under the It would be against the intention of the Betterment Acts. Stat. 1870, chap. 163, statute to require the owner of one § 3; 1871, chap. 382, § 1. The increased parcel of land benefited to pay the value of the estate by reason of whole amount of the benefit under the benefits of the third kind, being those guise of offset to damages for land which its owner receives in common taken, and to restrict the payment by with all other owners of lands in the another similarly benefited to one same municipality, are not subjects half the amount of the benefit, because of compensation from him to the pubhe was sustained no damage. The lic in any form of proceeding. Stat. statute expressly puts the two upon 1871, chap. 382, § 1. The bill of excepthe same footing, and applies to them tions shows that part of the petithe same rule, and impliedly, if not tioner's land was taken for the highexpressly, prohibits the application way, and that his damages were asof any benefit or advantage which may sessed by a committee duly appointed. be assessed as a betterment by way He now offers to prove that, in the esof set-off to damages.

It is ob- timate of those damages, the peculiar vious that benefits which have been benefits to his estate were deducted, set off against damages cannot be

and the amount of that deduction. also assessed as betterments; and that But the Betterment Act of 1870, chap. either no benefits which can be set off 163, § 3, under which the present case against damages can be assessed as arose, enacts that in estimating, in betterments, or that in any assess

accordance with its provisions, the ment for betterments it must be com

benefit and advantage to any estate by petent to prove what benefits had been the laying out or alteration of a highset off against damages." In Upham way, 'due allowance shall be made for v. Worcester (1873) 113 Mass. 97, any benefit set off under the prothe Massachusetts doctrine to visions of § 16 of chap. 43 of the the set-off of benefits to the remainder General Statutes.' If the amount of of a tract of land against dam- the peculiar benefit thus set off had

17 A.L.R.-5.

as

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