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J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 4) online

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Allen, 41 Ark. 431; Chicago, etc. R. Co. v. Moore, 63 111. App. 163;
Co. V. Bowman, 122 111. 595; Same Omaha Southern R. Co. v. Todd, 39
V. Aldrich, 134 111. 9; Centralia & Neb. 818; Seattle & M. R. Co. v.
C. R. Co. V. Brake, 125 111. 393; Gilchrist, 4 Wash. 509. See § lOSO
Dudley v. Minnesota & N. R. Co., 77 as to abutting owners in New York.
Iowa 408; Pingrey v. Cherokee & D. Contra, Fremont, etc. R. Co. v.
R. Co., 78 Iowa 438; Kansas City Whalen, 11 Neb. 585; In re Union
& E. R. Co. V. Kregelo, 32 Kan. 608 ; Village & J. R. Co., 53 Barb. 457.
Johnson v. Chicago, etc. R. Co., 37 16 Hamilton v. Pittsburg, .etc. R.
Minn. 519; Pittsburgh, etc. R. Co. Co., 190 Pa. 51.

V. McCloskey, 110 Pa. 436; Setzler In Lehigh Valley R. Co. t. Laza-

V. Pennsylvania, etc. R. Co., 112 Pa. rus, 28 Pa. 203, it was held that the



3978



SUTHERLAND ON DAMAGES.



[§ 1066



In some states the danger to which the owner, his family "
and stock ^' are exposed in crossing the track from one part of a



risk of fire being communicated
from locomotives to buildings can-
not be taken into consideration in
estimating tbe damages sustained
by the owner of land arising from
the construction of a railroad over
it, because of the uncertain and
contingent nature of such dam-
ages. Sunbury & E. R. Co. v. Hum-
mell, 27 Pa. 99; Indiana N. G. Co.
V. Jones, 14 Ind. App. 55; Manu-
facturers' N. G. Co. V. Leslie, 22
Ind. App. 677.

In Wilmington, etc. R. Co. v.
StauflFer, 60 Pa. 374, 100 Am. Dec.
574, it was held that if the railroad
were laid near a barn, and the dan-
ger of fire was necessarily so immi-
nent that no man of common pru-
dence would use the barn as such,
then the premises would be depre-
ciated by its being rendered useless.

In Patten v. Northern Cent. R.
Co., 33 Pa. 426, 75 Am. Dec. 612, it
was held that increased cost of in-
surance could not be considered.
This is held in Iowa on the ground
that the property owner is not
bound to insure. Pingei'y v. Chero-
kee & D. R. Co., 78 Iowa 438. And
inasmuch as the liability of the rail-
road company would not be affected
by any insurance there might be on
the property, this position seems
tenable. But it is held otherwise
in Minnesota. Cedar Rapids, etc. R.
Co. V. Raymond, 37 Minn. 204.

In Illinois, Massacliusetts and
Utah the increased co-st of insuring
buildings near a railroad right of
way may be proved. Indiana, etc.
R. Co. V. Stauber, 185 111. 9; Web-
ber V. Eastern R. Co., 2 Mete.
(Mass.), 147; O'Neill v. San Pedro,
etc. R. Co., 38 Utah 475.



Evidence concerning the experi-
ence another land-owner has had
with fires caused on his land by the
same railroad company is inadmis-
sible. Pittsburgh, etc. R. Co. v.
McCloskey, 110 Pa. 436.

This element of depreciation in
value is not eliminated by proof
that the precautions taken by the
company are such as to render it
probable or even certain that no
fires will be caused by it, because
there is no assurance that the pre-
cautions will always be observed.
Pingery v. Cherokee & D. R. Co., 78
Iowa 438.

If by statute absolute liability is
imposed for fires caused by railroad
companies the danger therefrom
must not be considered. St. Louis,
etc. R. Co. v. North, 31 Mo. App.
345.

But in New Hampshire it is held
that such a statute does not neces-
sarily preclude a recovery, the ques-
tion is, how much will the property
be diminished in value by reason of
tlie exposure considering the statu-
tory indemnity. Adden v. White
Mts. N. H. R,, 55 N. H. 413, 28 Am.
Rep. 220.

17 Weyer v, Chicago, etc. R. Co.,
68 Wis. 180; Laflin v. Chicago, etc
R. Co., 33 Fed. 415; Chicago, etc
R. Co. v. Aldrich, 134 111. 9; Chi
cago, etc. R. Co. v. Shafer, 49 Neb
25. Compare McReynolds v. Bur
lington, etc. R. Co., 106 111. 152
Contra, Illinois, etc. R. Co. v. Free
man, 210 111. 270; Chicago & M. E
R. Co. V. Mawman, 206 111. 182.

Damages may not be allowed for
apprehension of danger. Cincinnati
G. T. Co. v. Carteo, 140 Kv. 89.

WJd. ; Chicago, etc. R. Co. v.



§ lOGC]



TAKING PROPERTY FOR PUBLIC USE.



3979



farm to another or, as to stock by being friglitcned by trains, is
l)rovable for the same purpose. In one case the danger to
which the employees of the pL^intiff were exposed because of
the proximity of the railroad to the place where their duties
required them to be was regarded as material, such danger
being one for the consequences of which the railroad company
would not be liable." The preceding notes disclose that the
cases are in marked conflict as to the admissibility of such evi-
dence, with a marked tendency in the later ones to exclude it.



Bowman, 122 111. 595 ; Jones v. Chi-
cago, etc. R. Co., 68 111. 380; Omaha
Southern R. Co. v. Todd, 39 Neb.
818; Wichita Falls, etc. R. Co. v.
Munscll, 38 Okla. 253; Wichita
Falls & W. R. Co. V, Wyrick (Tex.
Civ. App.), 147 S. W. 730; G., C.
& S. F. R. Co. V. Bock, 63 Tex.
245; Railway v. Combs, 51 Ark.
324; Indianapolis Northern T. Co.
V. Ramer, 37 Ind. App. 264 (both
stock and family) ; Beckman v.
Lincoln & N. W. R. Co., 85 Neb. 228,
133 Am. St. 655; St. Louis, etc. R.
Co., V. Oliver, 17 Okla. 589. Contra,
Yazoo, etc. R. Co. v. Jennings, 90
Miss. 93, 122 Am. St. 312; Louis-
ville & X. R. Co. V. Hall, 143 Ky.
497; Chicago S. R. Co. v. Nolin, 221
111. 367 (and so of damage which
may be caused by fire) ; Chicago &
A. R. Co. V. Staley, 221 111. 405.
Compare McReynolds v. Burlington,
etc. R. Co., 106 111. 152.

Later Illinois cases hold that
probable damage to stock is too re-
mote and speculative to be consid-
ered in estimating damages. Cen-
tralia & C. R. Co. v. Brake, 125 111.
393; Chicago, etc. R. Co. v. Eaton,
136 111. 9, and cases cited supra.
And so of danger to persons or
buildings if the latter are not near
enough to be likely to be burned.
Conness v. Indiana, etc. R. Co., 193
111. 464.



The fact that horses may be
frightened by locomotives cannot be
considered in estimating damages.
Chicago, etc. R. Co. v. Mason, 2G
Ind. App. 395; Atchison, etc. R. Co.
V. Lyon, 24 Kan. 745; Florence, etc.
R. Co. V. Pember, 45 id. 625; Sim-
ons V. Mason City, etc. R. Co., 128
Iowa 139; St. Louis, etc. R. Co. v.
Hammers, 51 Kan. 127; Larsen v.
Oregon R. & N. Co., 19 Ore. 240 (it
seems ) .

19 It was said : "It is clear that
persons exposed to danger, as de-
fendant's employees would neces-
sarily be, could not perform their
labors with the same degree of effi-
ciency, and, at the same time, exer-
cise tlie care to avoid danger which
the law imposes on them as they
could if not so exposed. The extra
risk might also cause a demand for
higher wages." Cliicago, etc. R. Co.
V. McGrew, 104 Mo. 282.

But compare Raleigh, C. & S. R.
Co. V. Mecklenburg Mfg. Co., 106
N. C. 168, where, after a careful
consideration of similar evidence,
the court declined to allow such
facts to be proved, both on the
ground that the damages claimed
were too speculative, and because if
such damages were allowed, tlie con-
struction of railroads would be ren-
dered well-nigh impossible.



3980



SUTHERLAND ON DAMAGES.



[§ lOGO



Under ordinary circnmstances there is very grave reason to
doubt its admissibility. If, however, there should be disclosed
any peculiar danger of the kind referred to such evidence should
be received.^"

If the remainder of a lot is rendered less valuable by reason
of being severed or disfigiired by the taking and proposed use
of a part such damage may be allowed as shall be found to
have resulted therefrom. In determining the consequent depre-
ciation the jury may consider the use to which the part taken
is appropriated, the character, situation, present and probable
use of the remainder, the distance of the owner's buildings from
the public use, and any facts which they, from a view of the
testimony, shall find injure the value of the premises by the
proper and legal use of the appropriated part.^^ If taking part



20 See Cape Girardeau & C. R. Co.
V. Blechle, 234 Mo. 471.

So where the condemning railroad
was one used merely to haul coal
from condemnor's mine, not being
a common carrier, and not running
its trains on schedule time of any
sort, the fact that such a taking cut
a farm into two parts, on one of
which were the farm buildings and
on the other the water supply, the
owner was allowed to prove as af-
fecting the value of his property the
fact that there was danger to per-
sons and stock in crossing the
tracks, and frequent necessity for
such crossing. West Kentucky
Coal Co. V. Dyer, IGl Ky. 407.

2lByrd I. Co. v. Smyth (Tex.
Civ. App.), 157 S. W. 260; Seattle
V. Board of Home Missions, etc., 70
C. C. A. 597, 138 Fed. 307; Denver,
etc. R. Co. v. Hannegan, 43 Colo
122, 16 L.R.A.(N.S.) 874, 127 Am.
St. 100; Prather v. Chicago S. R,
Co., 221 111. 190; New Jersey, etc.
R. Co. V. Tutt, 168 Ind. 205; Klopp
V. Chicago, etc. R. Co., 142 Iowa
474 ; Blunck v. Chicago & X. R. Co.,
142 Iowa 146; T^uisiana R. & N.



Co. V. Sarpy, 125 La. 388; St. Louis,
etc. R. Co. V. Continental B. Co.,
198 Mo. 698; Shepp v. Reading B.
R., 211 Pa. 425; Peoria, etc. R. Co.
V. Sawyer, 71 111. 361; Hannibal B.
Co. V. Schaubacher, 57 Mo. 582;
Bangor, etc. R. Co. v. McComb, 60
Me. 290; Tucker v. Massachusetts
Cent. R., 118 Mass. 546; Watson v.
Pittsburgh, etc. R. Co., 37 Pa. 469;
Cleveland, etc. R. Co. v. Ball, 5 Ohio
St. 569 ; Wilson v. Rockford, etc. R.
Co., 59 111. 273; Little Rock, etc.
R. Co. V. Allen, 41 Ark. 431; Com-
missioners V. Hogan, 39 Kan. 606;
Grand Rapids, etc. R. Co. v. Chese-
bro, 74 Mich. 466; Missouri Pac. R.
Co. V. Hays, 15 Neb. 224 ; St. Louis,
etc. R. V. Anderson, 39 Ark. 167;
McReynolds v. Burlington, etc. R.
Co., 106 111. 159; Chicago, etc. R.
Co. V. Bowman, 122 id. 595; St.
Louis, etc. R. Co. v. McAuliflf, 43
Kan. 185; Commissioners v. Hark-
Icroads, 62 Miss. 807; Pittsburgh,
etc. R. Co. v. McCloskey, 110 Pa.
436; Same v. Bentley, 88 Pa. 178;
Louisville, etc. R. Co. v. Barrett, 91
Ky. 487; Churchill v. Beethe, 48
Neb. 87, 35 L.R.A. 442; Chicago,



§ lOCO]



TAKING I'EOrEUTY FOI: I'LJILIC USE.



3981



of a trac-t increases the expense of moving freight to and from
tlie rcniaindcr or causes other interference with the use of prop-
erty wliich allccts a business conducted thereon or which it may
be net^-cssary to establish these facts are to be regarded. ^'^ In
connection with them it is proper to consider also the availability
of other means of ingress and egress to the property affected.'^'
There can be no question that interference with a land-owner's
right of ingress and egress are matters which may materially
affect his damage; ^ and in order that there may be a recovery
it is not necessary that the right of access be cut oft'; it is



etc. R. Co. V. O'Connor, 42 Xeb. 90;
Hercules I. Works v. Elgin, etc. R.
Co., 141 111. 491; Springfield v.
Dalby, 139 111. 34; Chicago, etc. R.
Co. V. Nix, 137 111. 141; Chicago,
etc. R. Co. V. Greiney, 137 111. 628;
Chicago T. T. R. Co. v. Bugl.ec, 184
111. 3.53; St. .loseph & I. R. Co. v.
Shambaugli, 100 Mcf. 557 ; Abbott v.
Soutliern Pac. R. Co., 109 Cal. 282;
Chicago, etc. R. Co. v. O'Connor, 42
Neb. 90 ; Mangles v. Chosen Free-
holders, 55 X. J. L. 88; Omaha
Soutliern R. Co. v. Todd, 39 Xeb.
818; Fremont, etc. R. Co. v. Bates,
40 Neb. 381; Shano v. Fifth Ave.,
etc. B. Co., 189 Pa. 245, 09 Am. St.
808, and local cases cited.

So where a street widening im-
provement had left a valuable lot in
such shape that its form was irreg-
ular so tliat it was especially
difficult to improve it, that fact was
proper to be considered by the jury
in assessing consequential damages
by reason of the taking. Baltimore
City V. -Alegary, 122 Md. 20.

22 Patterson v. laeger & S. R. Co.,
102 C. C. A. 95, 178 Fed. 049;
Bailey v. Boston & P. R. Co., 182
Mass. 537; Cornell-A. S. Co. v.
Same, 202 Mass. 585; Richmond,
etc. R. Co. V. Chamblin, 100 Va.
401; Chicago, etc. R. Co. v. Thayer,
65 Wash. 402; In re Grade Cross-
Suth. Dam. Vol. IV.— 21.



ing Com'rs, 152 App. Div. (X. Y.)
853.

But where a statute requires a
railroad company to furnish all
necessary track connections at rea-
sonable rates and without discrim-
ination it was held proper to in-
struct the jury to consider this fact
in assessing damages for a taking
whereby an owner's present track
connections were shut off. Kansas
City Southern R. Co. v. Second
Street Imp. Co., 256 Mo. 386. In
Illinois it has been held that an
owner cannot recover where an im-
provement cuts off his track connec-
tions, unless he can show a right at
common law to the continued exist-
ence of the tracks. Otis Elevator
Co. V. City of Chicago, 263 111. 419.

Where by the construction of a
viaducrt a change in the location of
street cars lines was caused, so that
a line which formerly ran by an
owner's property was removed, the
fact was not competent on the ques-
tion of depreciation caused by the
improvement. Texas & P. Ry. Co.
v. Hardin, — Tex. Civ. App. — , 168
S. W. 1017.

23 Cornell-A. S. Co. v. Boston & P.
R. Co., 202 Mass. 585.

24 Idaho, etc. R. Co. v. Nagle, 184
Fed. 598; Lund v. Idaho, etc. R.
Co., 50 Wash. 574, 126 Am. St. 916;



3982



SUTHERLAA^D ON DAMAGES.



[§ 1066



enough that it is rendered dangerous.^* Whether the existence
of the right of access from another street than that occupied by
the defendant bars a recovery is a question upon which the
authorities are in conflict ; *^ but it seems to the writer that such
fact is material only upon the question of the extent of depre-
ciation in the value of the property. If the obstruction cutting
off ingress and egress is caused by the track of a railroad fully
completed the owner of an abutting lot may regard the situation
as a permanent appropriation of his right of access and recover
the resulting depreciation in its value.^^ But several cases deny
recovery to the land-owner when his right of access is not wholly
shut off but merely rendered less convenient or less direct.^'



Illinois Cent. R. Co. v. Elliott, 33
Ky. L. Rep. 537; United States v.
Grizzard, 219 U. S. 180, 55 L. ed.
165, 31 L.R.A.(X.S.) 1135; Chesa-
peake & O. R. Co. V. Gross, 19 Ky.
L. Rep. 1926; McQuaid v. Portland
& V.'R. Co., 18 Ore. 237; Hamilton
County V. Rape, 101 Tenn. 222 ; Hot
Springs R. Co. v. Williamson, 45
Ark. 429; Stehr v. Mason City, etc.
R. Co., 77 Neb. 641, 124 Am. St. 872;
Foster L. Co. v. Arkansas Valley &
W. R. Co., 20 Okla. 583, 30 L.R.A.
(N.S.) 231; Atlanta v. Nelson, 142
Ga. 324; Baltimore & 0. R. Co. v.
Kahl, 124 Md. 299; Baltimore & 0.
R. Co. V. Kane, 124 Md. 231 ; Jones
V. City of Aurora, 97 Neb. 825;
Ward V. Georgia Terminal Co., 143
Ga. 80; Baltimore & 0. R. Co. v.
Kane, 124 Md. 231; Morgan v. City
of Albert Lea, 129 Minn. 59; Molvin
V. Mound City, 185 Mo. App. 522;
Dickinson v. Delaware, L. & W. R.
Co., — N. J. L. — , 93 Atl. 703 ; Peo-
ple V. Zucca, 160 App. Div. (N. Y.)
578, 145 N Y. Supp. 754; Sandstrom
V. Oregon, Washington R. & Na\^
Co., 75 Ore. 159; City of Texarkaiia
V. Lawson, — Tex. Civ. App. — , KiS
S. W. 867; Birmingham R., L. & P.
Co. V. Long, 5 Ala. App. 510.



26Penn. Schuyl. V. R. Co. v.
Walsh, 124 Pa. 544, 10 Am. St. 611.

26 See Kansas, etc. R. Co. v. Cuy-
kendall, 42 Kan. 234, 16 Am. St.
479, denying the right, and Ft.
Scott, etc. R. Co. V. Fox, 42 Kan.
490, taking the otlier view, in har-
mony with the latter is Foster L.
Co. V. Arkansas Valley & W. R. Co.,
20 Okla. 583, 30 L.R.A. (N.S.) 231.

27 Central Branch U. P. R. Co. v.
Twine, 23 Kan. 585, 33 Am. Rep.
203.

28 Ward V. Georgia Terminal Co.,
143 Ga. 80 ; Sioux City Seed & Nur-
sery Co. V. Detroit & M. R. Co., 184
Mich. 181; Gorman v. Chicago, B. &
Q. R. Co., 255 Mo. 483.

Likewise an owner cannot re-
cover where thougli the street va-
cated was not abutted by plaintiff's
land, the direct approacli to the
land was shut off. The plaintiff in
this case was a church. German,
etc. Congregation v. Baltimore, 123
Md. 142, 52 L.R.A. (N.S.) 889. So
also plaintiff could not recover
where the access to plaintiff's prop-
erty was shut off by a wall built
by a town to correct tlie defective
construction of a liighway by the
state. The reason given for the de-



§ lOGO]



TAKING PROPERTY FOR PUBLIC USE.



3983



The existing physical condition of land over which a rail-
road is to be laid, whether affected hy another railroad, a water-
course or other natural or artiticial object may be considered
in ascertaining the damage that will result to it.^' If a proper
construction of the proposed road will necessitate making a
cut through a portion of the land taken that fact may be
considered in awarding compensation for that not appropri-
ated.^" Where a part has been taken for a railroad it is proper
to consider all inconveniences from the sounding of whistles,
ringing of bells, rattling of trains, jarring of the ground, from
smoke, invasion of privacy, the deprivation of light, means of
access and like matters, so far as they severally arise from the
use of the strip taken and upon it, excluding all common and
indirect damages, that is, such as affect the owner in common
"with all other members of the community.^^ This qualification



cision was that the construction of
the wall was an incident to the con-
struction of the highway by the
state, and as the state would not
have been liable for damages caused
by the change of grade, the town
was similarly not liable. • AlcMul-
len V. Marlborough, 1G3 App. Div.
(N. Y.) 73.

Inconvenience has been held not
to be a ground of damage. Opel-
ousas, etc. R. Co. v. St. Landry C.
O. Co., 121 La. 796. As where it
was caused by closing a street to the
public during the change of its
grade. Detroit v. Detroit United R.,
156 Mich. 106.

But compare Sandstrom v. Ore-
gon-Washington R. & Nav. Co., 75
Ore. J 59 (holding that an abutter
is entitled to access from l)oth ends
of a street, and that the theory
stated in the text would allow an
abutter to be deprived of access
from both ends without redress).

29 Chicago, etc. R. Co. v. Bowman,
122 111. 595.

80 Idaho & W. R. Co. v. Coey, 73
Wash. 291; Consolidated T. Co. v.



Jordan, 30 Ind. App. 156; Arkansas
Valley & \\. R. Co. v. Witt, 19
Okla. 262, 13 L.R.A.(N.S.) 237;
Ralston v. Sharon Hill, 43 Pa.
Super. Ct. 280; Cummins v. Dea
:\loines, etc. R. Co., 63 Iowa 397;
Pinkstaff v. Allison D. Dist., 213
111. 186 (inconvenience of cultivat-
ing land by reason of difficulty of
access in consequence of its sever-
ance by the improvement).

31 Blue Earth County v. St. Paul,
etc. R. Co., 28 Minn. 503; Ft. Collins
D. R. Co. V. France, 41 Colo. 512;
Savannah, etc. R. Co. v. Williams,
133 Ga. 679; Mallory v. Morgan
County, 131 Ga. 271 (abandonment
of old road and the result there-
of upon ingress and egress) ; At-
lantic & B. R. Co. V. McKnight, 125
Ga. 328; Chattaliooehee Val. R. Co.
V. Bass, 9 Ga. App. 83; Shrader v.
Cleveland, etc. R. Co., 242 111. 227,
26 L.R.A.(N.S.) 226; Sheehan v.
Fall River, 187 Mass. 356; Boyne
City, etc. R. Co. v. Anderson, 146
Mich. 328, 8 L.R.A.(N.S.) 306, 117
Am. St. 642 (sounds may be repro-
duced by a phonograph) ; Kayser v.



!9S4



SUTIIEELAJsD ON DAMAGES.



[§ 1066



of the rule, It has heen said, is too difficult of application to be
of any particular value. Evidence was properly received to
show the inconvenience resulting from the proximity of a school-
house to the residence of the plaintiff, notwithstanding that
inconvenience was not peculiar to liim,^^ The right to interfere
with property by jarring and shaking a dwelling, causing smoke
to penetrate the rooms occupied by the family and casting dust,
ashes and cinders upon the furniture therein is in the nature of
an easement and must be paid for.^^ Unless the smoke or



Chicago, etc. R. Co., 88 Neb. 343;
Rasch V. Nassau E. R. Co., 198 N.
Y. 385, 36 L.R.A.(N.S.) 645; Ham
V. Wisconsin, etc. R. Co., 61 Iowa
716; Dudley v. Minnesota & N. R.
Co., 77 Iowa 408; Kansas City & E.
R. Co. V. Kregelo, 32 Kan. 608; Le-
roy & W. R. Co. v. Ross, 40 Kan.
598, 2 L.R.A. 217 ; Blue Earth Coun-
ty V. St. Paul, etc. R. Co., 28 Minn.
503; Bowen v. Atlantic, etc. R. Co.,
17 S. C. 574; Shaw v. Philadelphia,
169 Pa. 506; Chicago, etc. R. Co. v.
Moore, 63 111. App. 163; Chicago
Office Building v. Lake St. E. R., 87
id. 594; Illinois Cent. R. Co. v.
Schmidgall, 91 id. 23; Lincoln v.
Commonwealth, 164 Mass. 368, and
cases cited; Chicago, etc. R. Co. v.
Nix, 137 111. 141; Omaha, etc. R.
Co. V. Doney, 3 Kan. App. 515;
Omaha Southern R. Co. v. Beeson,
36 Xeb. 361.

'■Qne of the valuable incidents
of the ownership of land is the right
and power of exclusion. So far as
the value of the property, depend-
ing on this right and power, is
affected by its abridgment compen-
sation therefor should be included
in tlic damages. * * * By taking a
part of the petitioner's land the
corporation is enabled to exercise
its franchise so much nearer to his
liouse, and, it may be, much more
injuriously. So far as it is more in-



jurious, to tliat extent the damages
for talking the land should be in-
creased. The increase is not addi-
tional damages for the probable re-
sults of the exercise of the fran-
chise, but compensation for the
greater injury to the whole premises
involved in the character of the
purpose for which a part is taken.
Walker v. Old Colony & N. R. Co.,
103 Mass. 10.

32 Haggard v. Independent School
Dist. 113 Iowa 486. Compare
Simons \. Mason City, etc. R. Co.,
128 Iowa 139.

33 Long Island R. Co. v. Garvey,
159 N. Y. 334; Idaho, etc. R. Co. v.
Nagle, 184 Fed. 598; Mason City,
etc. R. Co. V. Wolf, 78 C. C. A. 589,
148 Fed. 961 ; Smith v. St. Paul, etc.
R. Co., 39 Wash. 355, 70 L.R.A.
1018; Chicago v. Puleyn, 129 111.
App. 179 ; O'Neill v. San Pedro, etc.
R. Co., 38 Utah 475; South Bound
R. v. Burton, 67 S. C. 515; Syracuse
S. S. Co. V. Rome, etc. R. Co., 43 App.
Div. (N. Y.) 203, affirmed, witiiout
opinion, 168 N. Y. 650; Gainesville,
etc. R. Co. v. Hall, 78 Tex. 169, 9
L.R.A. 298, 22 Am. St. 42.

A tenant may recover special and
peculiar damages sustained during
the making of the improvcnu'nt, in-
cluding injury done macliinery by
the ilust caused bv the work done.



§ lOGG J TAKIAO rKorEUTY FOU i'UBLlC USE. 3985

cinders wore carrii'il ])\ unusual currents of wind.'* In Penn-
sylvania if notliing but an easement is taken smoke, noise, ashes
and vibration are not elements of compensation,'^ and so of the
bringing of a cheaper class of houses into the vicinity of the
plaintiff's property.'^ The damages caused by cinders, soot,
smoke or the temporary interference with the right of egress
or ingress are determinable by the difference in the value of
the property as affected thereby and its value free therefrom."
The personal inconvenience of the family of the owner of the
property affected or his own loss of business are not elements of
the danuiges,'* In Louisiana the damages recoverable for the
lessened value of property affected by noise, smoke, etc., are
governed by the general rule — the difference in its market
v^alue before the road was built and afterwards.'' This is in
accord with the rule applied in one of the federal courts to a
case which arose in Nebraska.*" A distinction must be made
between noise made pursuant to statutory regulations and other
noises made in the operation of trains. It has been ruled that
the noise which results from the observance of such regulations
where one railroad crosses another is not an element of the
recovery against the company which condemns the abutting
owner's rights in land on which there is an existing road, the
tracks of which are crossed by the condemnor's road.*^ It has
been denied that noise is an element of damage in favor of
abutting owners.*^

Cornell- A. S. Co. v. Boston & P. 86 Willock v. Beaver Valley R. Co.,

R. Co., 202 Mass. 585. 229 Pa. 526.

34 Illinois Cent. R. Co. v. Elliott, 37 Illinois Cent. R. Co. v. Elliott,

33 Ky. L. Rep. 537. Willis v. Ken- 33 Ky. L. Rep. 537.

tucky & I. B. Co., 104 Ky. 186 88 Covington & C. E. R., etc. Co.

(though the road is on the com- v. Kleimeier, 105 Ky. 609; Helmer

pany's property) ; Covington & C. v. Colorado Southern, etc. R. Co.

E. R., etc. Co. V. Kleimeier, 105 Ky. 122 La. 141.

609. 39 Helmer v. R. Co., supra.

■ 35 Philips V. Philadelphia & R. T. 40 Mason City, etc. R. Co. v. Wolf, '



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