company's property and have the proceeds appropriated first to the payment of their claims. A court appointing the receiver cannot authorize the issue of receiver's certificates by him which have priority over such right of way claims. Crosby v. Morrison & C. G. R. Co. Tenn. (42 S. W. Rep. 507).

Sec. 267. Measure of damages-Elements considered. The value of the land for the use to which it is being put at the time of the condemnation proceedings and not its value for some supposed future use, should be considered. Kansas City S. B. R. Co. v. Norcross, 137 Mo. 415 (38 S. W. Rep. 299). In determining the value of property taken it is proper to consider the different uses to which it is adapted. St. Louis Terminal Ry. Co. v. Hieger, 139 Mo. 315 (40 S. W. Rep 947). Speculative damages are not to be allowed, and in determining the value of the land taken, it is not proper to consider what it may be worth at some remote and future time, when it might be used for some other purpose; but it is proper to consider a use to which the land could be put in the immediate future so as to increase its value, such as platting it into lots and selling it as such. Alexian Bros. v. City of Oshkosh, 95 Wis. 221 (70 N. W. Rep. 162). Where the real estate involved consists of city lots, so located as to be mainly suitable for residence purposes, but to make them entirely fit for "residence lots" it would be necessary to fill them with earth to a certain grade, it is held that the amount of expense which would be necessarily incurred in such filling, may be considered. Farwell v. Chicago, R. I. & P. R. Co., 52 Neb. 614 (72 N. W. Rep. 1036). The owner is not entitled to recover the special value of the property to the condemning party. He is entitled to the actual cash market value of the property for the best and most valuable use to which it is adapted, provided such use enters into and affects its market value. The "market value " is the price at which the owner, if desirous of selling, would sell the property for, and what reasonable persons, desirious of purchasing, would have paid for it. Ligare v. Chicago, M. N. & R. Co., 166 Ill. 249 (46 N. E. Rep. 803). Where the condemnation of a portion of property occupied for

business purposes is sought evidence of the damage to the owner on account of a removal of his business cannot be considered unless it is made to appear that such appropriation will necessitate the removal of his business. Braun v. Metropolitan West Side El. R. Co., 166 Ill. 434 (46 N. E. Rep. 974). The destruction of conveniences especially adapted to the business of the injured party, cannot be regarded as an element of damage any more than the loss of good will. Williams v. Commonwealth, 168 Mass. 364 (47 N. E. Rep. 115). Destruction of fixtures erected by a life tenant should be considered in estimating the value of the land, and damages on account thereof belong to the landowner. Mass. Pub. Stat. ch. 49, § 27, applied. Williams v. Commonwealth, 168 Mass. 364 (47 N. E. Rep. 115). For particular elements which may be considered where land is appropriated for the construction of a sewer, see Butchers' Slaughtering & M. Ass'n v. Commonwealth, 169 Mass. 103 (47 N. E. Rep. 599).

Sec. 268. Measure of damages-Benefits considered. In condemning lands for a right of way for a railroad, it is held that the benefits to be derived by the owner from or in consequence of its construction, can not be considered. Glazier v. New Jersey & N. Y. R. Co., 60 N. J. L. 353 (37 Atl. Rep. 614). Benefits may be considered as against prospective injury to lands not taken. Braun v. Metropolitan West Side El. R. Co., 166 Ill. 434 (46 N. E. Rep. 974). Only special benefits to property can be set off against damages inflicted upon it. Lake Roland El. Ry. Co. v. Frick, 86 Md. 259 (37 Atl. Rep. 650). In Georgia it is held that in determining the right of an abutting owner to recover damages on account of the construction of a municipal improvement, the market value test is the proper one to apply, and if the improvement increases the market value of the premises more than the amount it damages them, there can be no recovery. Hurt v. City of Atlanta, 100 Ga. 274 (28 S. E. Rep. 65). Under the statute of Illinois damages cannot be recovered for injury to property not taken unless its market value has been lessened, and in determining this question, benefits to the property may be considered although they

are of a general nature and operate to increase the value of other property in the same vicinity. Metropolitan West Side El. R. Co. v. White, 166 Ill. 375 (46 N. E. Rep. 978). Following Metropolitan West Side El. Ry. Co., v. Stickney, 150 Ill. 362 (37 N. E. Rep. 1098; 26 L. R. A. 773). An instruction that the benefits shall not be considered unless they actually increase the market value of the property not taken is erroneous. Lyon v. Hammond & B. I. R. Co., 167 Ill. 527 (47 N. E. Rep. 775). In assessing damages to land on account of the construction of a sewer through it, it is proper to consider special benefits accruing to it on account of drainage, even though other lands receive similar benefits. Benefits to the land for the use for which it is adapted may be considered, but it is improper to consider benefits to the particular business of the owner. Butchers' Slaughtering & M. Ass'n v. Commonwealth, 169 Mass. 103 (47 N. E. Rep. 599). In assessing damages for the land appropriated for a highway, it is not proper to make a reduction on account of the increase of the value of wood and timber on the premises which it is claimed will result from the opening of the highway. Woodman v. Town of Northwood, 67 N. H. 307 (36 Atl. Rep. 255).

estate.

Sec. 269. Meaures of damages-Taking of leasehold Where the leased premises are rendered valueless for the purposes for which the lessee has them leased, he is entitled to recover the diminution in value of the remainder of his unexpired term, but in such case the profits of the business are not recoverable nor the cost of fixtures and improvements which he has removed, but the increased value of the premises for rent in consequence of the putting in of fixtnres may properly be considered in computing damages to the leasehold estate. Pause v. City of Atlanta, 98 Ga. 92 (26 S. E. Rep. 489; 58 Am. St. Rep. 290).

Sec. 270.

Measure of damages-Condemnation of land for railroad right of way. In assessing the damages to two tracts of land owned by a manufacturing company, separated by a cattle drive sixteen feet wide, over and under which the landowners had a right of way, with full privilege to bridge over or tunnel under, as they might see fit, damages may be

runs.

awarded to both tracts, though the right of way appropriated is taken wholly from one of them. Union Terminal R. Co. v. Peet Bros. Mfg. Co., 58 Kan. 197 (48 Pac. Rep. 860). Where the lots described in a railroad company's petition for condemnation for a right of way are but a part of an entire parcel of land, used for å general purpose by the defendants, the inquiry as to damages is not limited to the land described in the petition, but embraces all damages that defendants have sustained to their entire body of land through which the road Kansas City S. B. R. Co. v. Norcross, 137 Mo. 415 (38 S. W. Rep. 299). For the land taken, the measure of damages is the market value ;and for injuries to property not taken, the measure of damages is the market value after the taking and construction of the road as compared with the value before. Davis v. Northwestern El. Ry. Co., 170 Ill. 595 (48 N. E. Rep. 1058). A railroad company may show that inconveniences to the landowner which might otherwise properly be considered as elements of damage, will be overcome by its proposed method of constructing its road, and stipulations of this character made by the company run with the land. Lyon v. Hammond & B. I. R. Co., 167 Ill. 527 (47 N. E. Rep. 775). Particular award of damages held not excessive. Maysville &. B. S. R. Co. v. Trustees of Dover Christian Church, Ky. (39 S. W. Rep. 35).

Sec. 271. Measure of damages-Condemnation of railroad lands to other public use. Where lands of a rail

road company are taken for a street, the measure of compensation is the amount of decrease in the value of the use for railroad purposes caused by the use for the purposes of a street, such use for the purpose of a street being exercised jointly with the use of the company for railroad purposes. Chicago B. & 2. R. Co. v. City of Naperville, 166 Ill. 87 (47 N. E. Rep. 734); Chicago & A. R. Co. v. City of Pontiac, 169 Ill. 155 (48 N. E. Rep. 485); Illinois Cent. R. Co. v. City of Chicago, 169 Ill. 329 (48 N. E. Rep. 492). The company is not entitled to recover the expense which will be necessitated on account of its complying with police regulations as to street crossings. Chicago B. & 2. R. Co. v. City of Naperville, 166 Ill. 87 (47 N. E. Rep. 734); Chicago & A.

R. Co. v. City of Pontiac, 169 Ill. 155 (48 N. E. Rep. 485); Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. 418 (72 N. W. Rep. 1118). The same is held in Texas. Applying Rev. Stat. 1895, art. 4435. Gulf, C. & S. F. Ry, Co. v. Milam Co., 90 Tex. 355 (38 S. W. Rep. 747). But in New Jersey it is held that compensation for a highway crossing over the right of way of a railroad includes the making good to the company the moneys expended by it in erecting, maintaining, and operating gates at the crossing, provided such gates are necessary for the proper protection of the public and for the safe operation of the railroad, although the erection of such gates was required by a city ordinance. Paterson, N. & N. Y. R. Co. v. City of Newark, 61 N. J. L. 80 (38 Atl. Rep. 689).

Where a party seeking to condemn a right to cross a railroad fails to define how it will cross such right of way, but seeks to condemn the privilege of crossing generally, the damages will be assessed after that manner of crossing. which will be most injurious to the company's interests. Paterson, N. & N. Y. R. Co. v. City of Newark, 61 N. J. 80 (38 Atl. Rep. 689). Where lands of a railroad company are condemned by a city for the purposes of a street, under Ind. Rev. Stat. 1894, §§ 3623-3657, the company is entitled to recover all damages sustained and not merely the value of the real estate taken. City of Terre Haute v. Evansville & T. H. R. Co., 149 Ind. 174 (46 N. E. Rep. 77; 37 L. R. A. 189). It is proper to consider the value of the land for the special use to which it is applied, but its adaptation to a possible future use for which the company is not shown to have any intention of using it, cannot be considered. Illinois Cent. R. Co. v. Village of Lostant, 167 Ill. 85 (47 N. E. Rep. 62); Illinois Cent. R. Co. v. City of Chicago, 169 Ill. 329 (48 N. E. Rep. 492). Nor can the company be allowed for the loss of prospective profits which it expected to realize by shipping grain from an elevator building for another and which may be affected by the street cutting off the approaches to the elevator. Illinois Cent. Co. v. Village of Lostant, 167 Ill. 85 (47 N. E. Rep. 62.) Where the right of way or depot grounds of a railroad company are taken for a public street, it is error to admit evidence of the