damages, although the lands were similarly situated with the property in dispute; offers made in compromise of litigation were said to be no evidence of market value, and though if they were, should be excluded upon grounds of public policy. It has been decided, however, that it is proper to show the consideration expressed in the deeds by which the owner obtained title, especially if it appear that the purchases have been recently made, as it might tend to elucidate the question of value. The jury had a right, so it was said, to all evidence which in any degree, however slight, tended to enlighten that issue. So, too, evidence has been held admissible as to the price obtained at an administrator's sale of an undivided part of the property in question.3

Under the rule that the measure of value is the market price, it was held, in Pennsylvania, in a case where a railroad sought to obtain an easement in coal lands for a right of way, that evidence was properly excluded the tendency of which was to show that there was over an acre of coal under the road, worth $4,000, which would be lost to the owner, as it was necessary to leave it untouched for the support of the road. As the point is one of much importance, we quote the language of the court upon that occasion: "Now, if such a fact," it was said, "were necessary to the ascertainment of the value of the land taken, it would be wise to accept the testimony of experts, for we ought always to seek the best sources of information. The objection is not to the experts, but to the facts themselves. We do not measure the value of land by such facts. Land may have $4,000 worth of coal per acre in it, and yet sell at $40 per acre.

"When a man has to sell his property, of course he must take the market value for it. That is measured by the custom or common dealing of the country. If it is land, the market value is measured by the price usually given for such land in that neighborhood, making due allowance for differences

Howard v. City of Providence, 6 R. I. 514.

2 Jones 7. The Chicago, etc., R. Co., 68 Ill. 380.

3 March 7. Portsmouth, etc., R. Co., 19 N. H. 372.

* * *

of position, soil, and improvement. Value may be very approximately estimated in that way, for it is not then founded upon the mere opinion of witnesses, but on the fact of a general market value. In the present case, the jury were permitted to find in favor of the plaintiff the full value of the land as coal land, though the defendant gets no title to the coal further than it is needed to support the surface. Then the plaintiff has been allowed the full value of the land as estimated by the common standard, and we do not see how we can take any other. The one here proposed has never been publicly sanctioned, and that is something against it. It would require us to ascertain the possible value of the products of the land, in order to get at the value of the land itself. But the products do not exist, and therefore have no value; for value here means value in money in the market, and this cannot apply to products not yet in existence. And, then, to use the products as a standard of value is to apply an uncertain measure in order to obtain a certain result. It is easier to value the land directly, than thus.

"Moreover, the offer impliedly requires a degree of refinement in the measure of values which seems to us totally incompatible with the gross estimates of common life. Though we might have the most accurate calculation of the quantity of coal in the land, yet, without knowing exactly the expense of bringing it to the surface and carrying it to market, and the amount likely to be lost in mining and conveying, and the times in which it would be brought out, and the market prices at those times, the quantity would not help us to value the land."

Third, The value of the property is to be estimated as of the time when condemnation proceedings are instituted, in distinction from the time when the public may have unlawfully entered and taken possession.2

Searle v. Lackawana, etc., R. Co., 33 Pa. St. 57, 63, 64.

2 Sherwood v. St. Paul, etc., R. Co., 21 Minn. 122; San Francisco, etc., R. Co. v. Mahoney, 29 Cal. 112; Driver v. Western Union R. Co., 32 Wis. 569; Cook v. The Commissioners, 66 Ill. 115.

In accordance with this rule, it is held that where the public finds itself under the necessity of purchasing additional property, to enlarge or complete a public improvement previously undertaken, it must pay the owner the then value of his property, although the increase in value may be the direct and immediate result of the improvement which it has already made. As where the water-commissioners of Providence, having determined to build a reservoir, took certain land for that purpose, the improvement adding considerably to the value of the adjacent property. Afterwards it was found necessary to take an additional piece of property, and proceedings were soon instituted to condemn it; and it was held that the owner was entitled to its value at the time of condemnation, and not at the time of the location of the reservoir. The public had to pay for the enhanced value it had itself caused.'

As a farther exemplification of this same principle are those cases where the State, or its agents, before instituting condemnation proceedings, has gone on and placed improvements upon the property without the owner's consent. The question has then been raised, whether the public must pay for the land, with the improvements so annexed, or whether it would be entitled to have them disregarded in estimating the value of the property of which the owner was to be deprived. Of course, in all ordinary cases, it is a cardinal rule of the law, that whatever is wrongfully annexed to the realty becomes a part of it, and goes to the owner. The principle is an ancient one in the law." It has, however, been raised as an interesting question, whether or not an exception should not be made in favor of annexations made by the public under such circumstances; it being urged that all the owner was entitled to was a "just compensation," and that there was no justice in compelling the public to pay him for that which cost him absolutely nothing. It has been ruled, in Wisconsin, that it is proper

Stafford v. Providence, 10 R. I. 567. See also Virginia, etc., R. Co. v. Lovejoy, 8 Nev. 100.

2 Britton's Pleas of the Crown, ch. 33.

to make an exception in such cases in favor of the public, and the same thing was at first held in California. A similar doctrine has been recently announced by the Supreme Court of Pennsylvania, two of the judges dissenting. In the last case, stress seems to have been laid on the fact that the railroad had been clothed by the State with the right of eminent domain, and that therefore it could not properly be regarded as an ordinary tort-feasor. The court say: "This is not the case of a mere trespass by one having no authority to enter, but of one representing the State herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken for a public use," etc. We cannot agree with this view of the case. We do not believe that the company was clothed with the right of entry. It was merely endowed with a capacity to acquire that right, and, until the right was thus acquired, we are at a loss to perceive wherein such an entry differs from any ordinary trespass.

The entry being unauthorized, and therefore wholly unlawful, we fail to see any reason for making an exception to the general rule which holds that wrongful annexations to realty pass to the owner of the land. Such an exception it seems difficult to sustain. The improvements have become, by the wrongful annexation, as much the owner's property as the realty; and as for paying him for the increased value, which has cost him nothing, that is no more than the public is compelled to do in other instances, as where the value has been increased by improvements upon contiguous property, upon which he never expended a penny. The exception is repudiated in a later California case, and denied in Indiana and New York.3 We are not aware that the question has been raised, as yet, elsewhere. It is, of course, an entirely

1 Lyon v. The Green Bay, etc., R. Co., 42 Wis. 538; California R. Co. v. Armstrong, 46 Cal. 85.

2

Justice v. Nesquehoning Valley R. Co., Alb. L. J., Aug. 31, 1878.

3 United States v. A Tract of Land in Monterey Co., 47 Cal. 515; Graham 7. Connersville, etc., R. Co., 36 Ind. 463; Matter of Long Island R. Co., 6 N. Y. Sup. Ct. 298.

different question where the improvement has been made with the permission of the owner, in which case he would not be entitled to recover its value.1

We come now to the second class of cases, in which a part only of the owner's property is taken.

First, The "just compensation" which, under the constitutional provision, must be made where private property is taken for public use, consists in paying to the owner not the mere value of the portion taken. That, in very many instances, would be to compensate him for the smaller part of the damage done him. Just compensation includes both the value of that which is absolutely taken and the diminution of the value of that from which the portion taken was severed. In other words, compensation means the ordinary value of the strip taken, together with such additional value as attaches to it by reason of its connection with the adjacent land of the same owner. The inquiry should be, so it is sometimes said, as to what would be its value to him, situated as it is, if he were not the owner of it, but owned the adjacent property on both sides of it, under the same circumstances precisely that exist at the time of taking.

Second, Under the rule as stated above, it naturally results that, in estimating the injury done the remainder of the tract, all the direct physical injuries, and even inconveniences, to be produced by the contemplated change must be taken into account,3 excluding, however, all those injuries

1 Emerson v. The Western Union R. Co., 75 Ill. 176.

2 New Orleans, etc., R. Co. v. Lagrade, 10 La. An. 150; Winona, etc., R. Co. v. Denman, 10 Minn. 267; Scott v. St. Paul, etc., R. Co., 21 Minn. 322; Petition of Mount Washington R. Co., 35 N. H. 146; Rochester, etc., R. Co., v. Budlong, 6 How. Pr. 467; Matter of Poughkeepsie, etc., R. Co., 63 Barb. 151; Virginia, etc., R. Co. v. Henry, 8 Nev. 165; Bigelow v. West Wisconsin R. Co., 27 Wis. 478; Parks v. Wisconsin, etc., R. Co., 33 Wis. 413; Page v. Chicago, etc., R. Co., 70 Ill. 324; Bangor, etc., R. Co. v. McComb, 60 Me. 290.

3 Vanshoick v. Delaware, etc., Canal Co., Spen. 249; White v. The Railroad Co., 6 Rich. 47; Bangor, etc., R. Co. v. McComb, 60 Me. 290; Missouri, etc., R. Co. v. Haines, 10 Kan. 439; Jones v. Chicago, etc., R. Co., 68 Ill. 380, 383; Parks v. Wisconsin, etc., R. Co., 33 Wis. 413; Watson v. Pittsburgh, etc., R. Co., 37 Pa. St. 469.