Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 3) online

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Minn. 114, B owned land bordering
on the Mississippi river. A strip be-
tween the main block and the river was
dedicated as a street and afterward B

conveyed the block, describing it as
extending to the street. The railway
company sought to condemn the land
between the centre of the street and
the centre of the channel of the river.
Held, that B was still a riparian pro-
prietor holding the fee to low water
mark and should have compensation
for his rights as such when the land
was taken by the railroad.

" Turner v. State, 67 App. Div. 393,
73 N. Y. Supp. 372. It was also held
that the measure of his damages would
be the value of the spruce and hemlock
owne(;l by him as it was on the stump
with interest on the amount from the
time when the wood was appropriated.
If the property has no market value at
that place, the measure of damages
would be its value at the nearest place
of market, plus the expense of moving
it to such market.

^2 Iowa: Costello v. Burke, 63 la.
361, 19 N. W. 247.

Kansas: Rosa v. Missouri, etc., R. R.,
18 Kan. 124. So a trespasser erecting
buildings on land can recover no com-
pensation if they are taken. Norris v.
Pueblo, 12 Colo. App. 290, 55 Pac. 747.

^' Winter v. Montgomery, 83 Ala.
589, 3 So. 235 (license by city to ex-
cavate under sidewalks and build a
porch over it); Clapp v. Boston, 133
Mass. 367 (license to use well and
hydraulic ram on the land taken);
New York, etc., R. R. v. Young, 33
Pa. 175 (right to erect milldam under
mill acts is onh' a license stibject to



§ 1154b

held that while a tenant under a lease for a definite time has
an interest under which he may recover,^^ a tenant at will has
not.^° A mortgagor in possession is considered an owner,^*^ but
if the mortgagee has foreclosed and bought in the property, he
is entitled to the damages.^"

§ 1154b. Damages in gross — Individual interests consoli-

In sorne cases, where the principle of compensation makes it
necessary, several persons may unite their interests and re-
cover in gross. Thus, in San Pedro, La. & S. L. Railroad v.

revocation, and railroad is not liable for
interference therewith) .

9^ Iowa: Wertham v. Mason C. & F.
D. R. R., 128 Iowa, 135, 103 N. W. 135.

Massachusetts: Parks v. Boston, 15
Pick. 198.

Michigan: Grand Rapids Booming
Co. V. Jarvis, 30 Mich. 308.

Pennsylvania: Turnpike Road v.
Brosi, 22 Pa. 29; North Pennsylvania
R. R. V. Davis, 26 Pa. 238; Dyer v.
Wightman, 66 Pa. 425. Where the
damages are all awarded to the .land-
lord, and it appears that a part of the
damages were allowed for the demoli-
tion of buildings which belonged to
the tenant, and which he had the right
to remove at the end of the term, the
tenant may prove his interest, and
recover of the landlord his proportion
of the damages awarded. Coutant v.
Catlin, 2 Sandf. Ch. 485. And where
land is taken by statute which specifies
that compensation shall be given to
owners, a lessee is an owner within the
meaning of the statute. Ellis v. Welch,
6 Mass. 246, 4 Am. Dec. 122. And
where the lease has expired and the
tenant continues as tenant from year
to year, he has an interest entitling
liim to corapen.sation. McGoldrick v.
Rex, 6 Can. Exch. 169. But when; the
lease is by its terms fcirminable in
thirty days, the lessee is entitled to
nominal damiigcs only. Boecker v.
NajxTvillc, Ii;H III. !.".], 4S N. E. 1061.

In Lafferty v. Schuylkill R. E. S.
R. R., 124 Pa. 297, 16 Atl. 869, 10
Am. St. Rep. 587, 3 L. R. A. 124,
plaintiff sued for destruction of his
crops due to the building of a railroad.
Plaintiff had taken a lease after the
road had been located, but he had put
in all his crops before actual entry by
the company, or notice as to when his
possession would be interfered with.
It was held that he was entitled to
compensation for all his property or
crops that were destroyed.

9^ Illinois: Schreiber v. Chicago, etc.,
R. R., 115 111. 340, 3 N. E. 427.

Pennsylvania: Shaaber v. Reading
City, 150 Pa. 402, 24 Atl. 692.

But in a Massachusetts case, where
the tenant OAvned the building on the
land, she was allowed to recover for
injury due to a change of grade. Shee-
han V. Fall River, 187 Mass. 356, 73
N. E. 544.

96 Parish v. Gilmanton, 11 N. H. 293.
(But entry and notice by the mort-
gagee might entitle him to the dam-
ages.) See, also, Breed v. Eastern
R. R., 5 Gray (Mass.), 470, note.

" Moritz V. St. Paul, 52 Minn. 409,
54 N. W. 370.

In Indiana a mortgagee is held to be
an owner within the meaning of the
.statute, and may recover anj' damages
awarded for taking the mortgaged
land. Sherwood v. Lafayette, 109 Ind.
411, 10 N. E. 89, 58 Am. St. Kep. 414.


Salt Lake City,^^ several persons owned in severalty riparian
rights; if brought under the control of a single owner, these
would constitute a vahiable property in condemnation pro-
ceedings. It was therefore held that the owners could con-
stitute themselves co-tenants and receive in gross; and under
the facts of the case the defendants were held liable for dam-
ages for the whole right, the proceeds to be distributed in

§ 1154c. Effect of transfer of title on right to compensation.

It is generally held that the right to compensation for land
taken in eminent domain proceedings does not run with the
land part of which is taken, nor pass by a conveyance of such
land, but is personal to whoever may be owner of the land at
the time of the taking.^^ So a contract for the release of such
right will bar recovery by later holders of the title. ^°° This
principle, of course, does not bar subsequent owners from re-
covering for injury to the property caused by new takings or
by negligence. ^'^^ Where the owner had, before the taking,
made a contract with B for a deed, it was held that he and B

98 32 Utah, 305, 90 Pac. 56.5, 11 L. Massachusetts: Wood v. West Boston,

R. A. (N. S.) 645. So where a lessor etc., Bridges, 122 Mass. 394.

and lessee have jointly erected ma- New York: People v. Phillips, 88

chinery which is taken there must App. Div. 560, 85 N. Y. Supp. 200.

be one recovery which is to be ap- Ohio: Hatry v. Painesville, etc.,

portioned between them. Cornell- R. R., 1 Ohio Cir. Ct. 426, 1 Ohio Cir.

Andrews S. Co. v. Boston & P. R. R., Dec. 238.

209 Mass. 298. 95 N. E. 887. Pennsylvania: Tenbrooke v. Jahke,

^^ United States: Mallet v. Quine, 93 77 Pa. 392; Losch's Appeal, 109 Pa. 72;

Fed. 847. Davis v. Titusville, etc., R. R., 114 Pa.

Alabama: Huntsville v. Erving, 116 308, 6 Atl. 736; Moore v. Lancaster,

Ala. 576, 22 So. 984. 212 Pa. 642, 58 Atl. 890, 62 Atl. 100;

Colorado: Midland R. R. v. Trevar- Robinson v. Norwood Borough, 27 Pa.

then, 1 Colo. App. 152, 27 Pac. 1013. Superior Ct. 481. Such a right to com-

Illinois: Chicago, etc., R. R. v. Loeb, pensation may be specifically assigned,

118 111. 203, 8 N. E. 460; IHinois Cent, but a deed in ordinary form does not

R. R. V. Ferrell, 108 111. App. 659. pass or assign the right. Smith v. Rail-

lowa: Jolly v. Des Moines North- way, 88 Tenn. 611, 13 S. W. 128.

western R. R., 72 la. 759, 33 N. W. i"" Bell v. Boston, 101 Mass. 506.

668; Flickinger v. Omaha Bridge, etc., ^"^ Massachusetts: Penney v. Com-

Co., 98 la. 358, 67 N. W. 372. monwealth, 173 Mass. 507, 53 N. E.

Maine: Sargent v. Machias, 65 Me. 865, 73 Am. St. Rep. 312.
591. Pennsylvania: New Brighton v. Pier-
Maryland: Ortwine v. Baltimore, 16 sol, 107 Pa. 280; IThle v. Philadelphia,
Md. 387. 30 Pa. Super. Ct. 480.


might join in a petition for damages, in which case the dam-
ages would be awarded in a gross sum not apportioned. ^^^

Where the taking is not actually consummated at the time
of the transfer, it is sometimes stated that the transfer operates
as an assignment of the award. ^°^ Perhaps it would be more
exact to say in such a case that the right has not accrued at the
time of the transfer, and that it first arises while the land is in
the hands of the subsequent owner. ^°'* It seems that in Mas-
sachusetts the surrender of a lease to the lessor before the land
had been taken for a highway, with the release of the lessee's
claim of damages, is admissible in evidence on the assessment
of damages. ^''^ A claim for taking property for a public use
does not run with the land, and in the absence of an express
covenant in the deed, will not pass to the vendee. ^°^ If the
owner of the surface, prior to the appropriation of land for a
railroad, conveys the coal underlying the surface, enabling the
grantee to remove all the coal regardless of the effect upon the
surface, the grantee of the owner is entitled to compensation
for any part of the coal necessary for the support of the sur-
face. ^°^ A railroad having been built through land in possession
of a life tenant, compensation for the right of way and damages
can be recovered on the death of the life tenant by the remain-
dermen. Their rights do not pass to a purchaser at a sale for
partition among the remaindermen after the death of the life
tenant. ^°^

Virginia: Chesapeake & O. R. R. deed of trust was executed before that

V. Chambers, 95 Va. 503, 28 S. E. time. Held, that plaintiff's title would

872. relate back to the deed of trust so that

102 Proprietors Locks and Canals v. he might recover the value of land

Nashua & Lowell R. R. Corp., 10 Cush. actually taken, but not for incidental

(Mass.) 385. damages to the; farm because it woukl

"" Magee v. Brooklyn, 144 N. Y. be presumed that he paid a price which

265, 39 N. E. 87; Charde v. Brooklyn, would be diminished somewhat by the

8 Misc. 598, 29 N. Y. Supp. 390. location of the railway if that unfavor-

^°* See Tyson v. Milwaukee, 50 Wis. ably affected the value of the farm.

78, 5 N. W. 914. '»» Dickenson v. Fitchburg, 13 Gray

Whitecotton v. St. Louis R. R., 104 (Mass.), 546.

Mo. App. 65, 78 S. W. 318, was an i"« Turner i'. Mo. Pac. Ry., 130 Mo.

action for the value of land taken for App. 535, 109 S. W. 101.

a railroad right of way. Plaintiff had '»' Dilts v. Plumville R. R., 222 Pa.

acquired title under foreclosure of a 516, 71 Atl. 1072.

flewl of (rust, after the railroad was '"* Bridges r. Southern Ry., 86 S. C.

located (lirough (lie land, llioiigli tlie 267, dS S. E. 551.


In Texas, it seems that for erecting a turntable and water
tank (though the right of way was about 40 feet from the
plaintiff's dwelling) the owner may recover for depreciation
and also for personal annoyance and discomfort if the main-
tenance of the structures amounts to a nuisance, even though
the depreciation was caused prior to plaintiff's purchase. ^°^ In
the case of a building lease, the lessees were keeping the build-
ing in repair during the term, at the end of which it was to
become the property of the lessor. After the erection of the
building, part of the property was condemned to widen the
street. Lessees were awarded sums for damage to leasehold,
for cost of repairing building, and for machinery. Held, that
this was compensation solely for the lessees' interest; and the
fact that the award was greater than the sum actually expended
by the lessees in repairs would not give the lessor any interest
in it, nor entitle him to an action to recover the excess. ^^°

§ 1155. Measure of damages where fee is taken.

Where the whole of the owner's fee simple estate in land is
taken, the measure of damages is the value of the land at the
time of taking. ^^^ It is frequently the case, as in the exercise of
the right of eminent domain by railroads, that only an ease-
ment is taken, e. g., a right of way. In appraising damages for
taking such a right, the possibility of reverter through a dis-
continuance of the use is supposed to be allowed for.^^- Where
the possibility of reverter, as in general, has no ascertainable
value, the owner receives the market value of the land.^'^ In

"^ Missouri, K. & T. Ry. v. Perry, Mississippi: Brown v. Beatty, 34

102 S. W. 1169, 46 Tex. Civ. App. 374. Miss. 227.

Cf. Daniel v. Fort W. & R. G. Ry., 96 West Virginia: R. R. v. Buskirk, 57

Tex. 327, 72 S. W. 578. W. Va. 417, 50 S. E. 521.

11° Fargo V. Browning, 45 App. Div. Wisco7isi7i: Chapman v. Oshkosh &

507, 61 N. Y. Supp. 301. M. R. R. R., 33 Wis. 629.

^^^ Arkansas: Springfield & M. Ry. "^ Ng^^rville Road Case, 8 Watts,

V. Rhea, 44 Ark. 258. 172.

California: San Francisco, A. & S. '" Arkansas: Fayetteville & L. R. R.

R. R. V. Caldwell, 31 Cal. 367. v. Combs, 51 Ark. 324, 11 S. W. 418.

Iowa: Hollingsworth v. Des Moines Iowa: Hollingsworth v. Des Moines

& St. L. Ry., 63 la. 443, 19 N. W. & St. L. Ry., 63 la. 443.

325. Kansas: Dechample v. Nav. Co.,

Massachusetts: Gardner v. Brooklinc, 73 Kan. 54, 84 Pac. 541.

127 Mass. 358. il/i«Aiesota." Lake Superior, etc., R. R.


such a case the market value of the land should be considered
a fair price for the land itself, and not merely the value of its


§ 1156. Where interest less than fee is taken.

In all cases where the person who seeks redress has an interest
less than the fee, he recovers the damages proportioned to his
title. All the circumstances relating to his possession and title
must be inquired into. So a settler upon the public lands who
has made a homestead entry, or the owner of a timber culture
claim, recovers damages for the diminished value of his interest
in the land, and not for the diminished value of the land itself. ^^^
Where a turnpike company constructed a road over land taken
under authority of a legislative act, and part of this road was
afterward taken by a municipality for a street, it was held that
the tm'npike company had acquired only an easement, and
that damages must be calculated on the basis of the injury done
the easement, and not with reference to the value of the land
in fee.^^^ WTiere property was taken temporarily for a pest
house, it was held that the measure of damages would be the
fair and reasonable rental value of the property for the purpose
for which it was taken, the jury also to find the damage sus-

V. Greve, 17 Minn. 323; Robbins v. St. 106 Am. St. Rep. 36, 70 L. R. A. 221.

Paul, etc., R. R., 22 Minn. 286. Where land taken was held in fee by a

Ohio: Hatch v. Cincinnati, etc., R. water company which had acquired no

R., 18 Oh. St. 92; Giesy v. Cincin- franchise, it was held that the water'

nati, W. & Z. R. R., 4 Oh. St. 308. company was not entitled to more than

But where any part of the land is the fair value of the land. Indiana

left in such shape that the former Power Co. v. St. Joseph, etc., Power

owner can still exercise special rights Co., 159 Ind. 42, 63 N. E. 468.

in it, he is not entitled to the full value "" Barrall v. Quick, 111 Ky. 22, 63

of the fee as damages. Dodson v. Cin- S. W. 33, 23 Ky. L. Rep. 421.

cinnati, 34 Oh. St. 276. So in a case "^ Ellsworth, M. N. & S. R. R. v.

where a railroad took a right of way Gates, 41 Kan. 574; Chicago, K. & W. oil-bearing land, it was held that R. R. v. Ilurst, 41 Kan. 740.

if the owner could got at the oil under "* Vernon Shell Road Co. v. Mayor,

the right of way by driving wells in the 95 Ga. 387, 22 S. E. 625. For other

adjoining land, that fact .should be cases on the taking of easements .see

considered in as.sessing damages, since In re New York, etc., R. R., 29 Hun,

the fee burdened by the easement 646; In re Commissioners of State

would be of value to him. Railroad v. Reservation at Niagara, 37 Hun, 537.
Sav. Union, 146 Cal. 290, 79 Pac. 961,


tained by the property by reason of its being used for such a
purpose. Plaintiff's theory that damages should be the full
value of the property because no tenant would occupy the
property thereafter, was not accepted. ^^^ "The claimant's
interest in the land may, under some circumstances, be worth
as much as the land itself, while, under other circumstances, it
may be worth scarcely anything; and the claimant may, under
some circumstances, be entitled to recover for the diminished
value of his interest in the land an amount as great as though
he had a full and complete title to the land, while under other
circumstances he may not be entitled to any considerable
amount." ^^^ The recovery may be in gross, or separately,
according to the interest shown. ^^^ This is a matter of statu-
tory regulation. Where provision is made for separate re-
covery, the claimant recovers the true and actual value of his
interest, whatever it is.^-° Thus the life tenant and remainder-
man may each recover, the one for the injury to his life estate,
the other for that to the reversion. ^-^ In any event the separate
owners cannot recover more in the aggregate than the entire
value of the land taken. ^^-

Where the plaintiffs were life tenants and remaindermen,
and there was evidence that part of the estate was rendered
untillable by the condemnation and its consequences, it was
held that the reversionary owner might recover for this dam-
age. ^^^ Where two or more persons have distinct interests or
estates in the property, the correct way to assess the damage
is to ascertain the damage to the whole fee, as if one person
alone owned it, and then to apportion the amount among those
interested, according to their interests. A tenant having a
lease for four or five years at a nominal rental is entitled to
compensation; but in that case the landlord can be allowed

"' Brown v. Pierce County, 28 Wash. Maryland: Mayor of Baltimore v.

345, 68 Pac. 872. Rice, 73 Md. 307, 21 Atl. 181.

"8 Chicago, K. & W. R. R. v. Hurst, i" /„ ^g Daly, 29 App. Div. 286, 51

41 Kan. 740, 743; ace, Red River & N. Y. Supp. 576.

L. W. R. R. V. Sture, 32 Minn. 95, 20 122 Massachusetts: Burt v. Merchants'

N. W. 229. Ins. Co., 115 Mass. 1.

"9 In re New York & B. Bridge, 137 England: Penny v. Penny, L. R. 5

N. Y. 95, 32 N. E. 1054. Eq. 227.

^^'^ Colorado: Colorado C. R. R. v. 12' Bentonville R. R. v. Baker, 45

Allen, 13 Colo. 229. Ark. 252.


nothing on account of loss of rents for the same time.^^^ Where
the defendant took premises subject to a lease, and took the
leasehold interest by eminent domain, and fixtures had been
placed on the premises, to become the property of the lessor at
the end of the term, it was held that the measure of damages
was the value of the leasehold interest, including the value
given to it by the fixtures, plus the value of the use of the fix-
tures during the term.^^^ Where the recovery is for damages
to a remainder, to fall in after an estate for life, the award hav-
ing been made, it carries interest. ^^^ In Chicago, etc.. Railroad
V. ElHs,^-" the title of the land taken was m plaintiff's wife,
but he had a life interest. The award for taking the land was
made as a unit to plaintiff and he appealed, but his wife did not.
Held, that plaintiff could recover only for such damage to the
land as affected his interest, but nothing on account of his
wife's claim or interest, for an attempted assignment of her
rights to him would not be effectual. In Burt v. Merchants'
Insurance Co.^^^ (a proceeding to take land for a post office) it
was held that in estimating the value of the land, the situation
of the estate and the manner of its occupation should be con-
sidered; but no contracts between owners of different interests
in the land could affect the right of the government to take it,
or oblige payment of more than the entire value of the land as
a whole by way of compensation.

§ 1157. Leasehold interest.

WTien the whole of a leasehold interest is taken, the measure
of damages to the tenant is the actual value of the lease. ^^^
A tenant by sufferance merely has no interest entitling him to
compensation. ^^° But if a tenant has a right to renewal secured
to him in the lease, this is to be considered in estimating the

124 Wiggin V. New York, 9 Paige Massachusetts: Edmands v. Boston,

(N. Y.) 16. 108 Mass. 535.

'" Consolidated Ice Co. v. Pennsyl- New York: Re William & Anthony

vania R. R., 224 Pa. 487, 73 Atl. 937. Streets, 19 Wend. 678. See also Com-

'2" Charleston & W. C. R. R. v. mi.ssioncrs v. Johnson, 66 Miss. 246, 6

Reynolds, 69 S. C. 481, 48 S. E. 476. So. 199.

'" 52 Kan. 41, 34 Pac. 352. "» Shaaber v. Reading, 150 Pa. 402,

'^ 115 Mass. 1. 24 Atl. 692. Sec Duffield v. Rosenz-

'2« Illinois: Corrigan v. Chicago, 144 wcig, 144 Pa. 520, 23 Atl. 4.

111. 537, 33 N. E. 746.




value of the lease.'"'* The tenant's fixtures, not having been
severed, form part of the real estate, and he is entitled to com-
pensation for them.'^- If a part only of a leasehold interest is
taken the tenant is entitled to the diminution in rental value,
together with the cost of repairs, if any, which the tenant must
make and the value of any fixtures or crops destroyed. '^^ But
in a case where a right of way was condemned across land held
by B under a lease which had three years to run, it was held
that the damages could not be based on what the land might

"' Re William & Anthony Streets,

19 Wend. (N. Y.) 678; North Penn.
R. R. V. Davis, 26 Pa. 238.

132 Williams v. Commonwealth, 168
Mass. 364, 47 N. E. 115. But see
Pause V. Atlanta, 98 Ga. 92, 26 S. E.
489, 58 Am. St. Rep. 290. In some juris-
dictions the tenant is entitled to dam-
ages for interruption of business, and
to the cost of removal. Atchison, T.
& S. F. R. R. V. Schneider, 127 111. 144,

20 N. E. 41, 2 L. R. A. 422; Metropoli-
tan W. S. E. Ry. V. Siegel, 161 111. 638,
44 N. E. 276. See also Getz v. Phila-
delphia & Reading R. R., 105 Pa. 547.
But wages of employees not employed
on the premises and whose services
are interrupted merely as part of the
general interruption of plaintiff's busi-
ness while removing are too remote, —
so also rent paid for other premises
during removal cannot be allowed
where plaintiff is released from pay-
ment of rent for the premises taken.
Ibid. And in New Jersey, where the
strip of land taken ran through the
buildings on the leased premises, it was
held that the lessee was entitled to
consider the premises untenantable, so
that he would not be liable for rent, but
could surrender. He was therefore re-
fused damages by way of abatement of
rent or anything similar. Hudson
County V. Immerich, 57 N. J. Eq. 535,
42 Atl. 107. But in other States neither
the value of the good will nor the loss of
profits can be recovered, though evi-
dence of the profits can be introduced


as tending to show the value of the
lease. Pause v. Atlanta, 98 Ga. 92, 26
S. E. 489, 28 Am. St. Rep. 290. And
see also, Edmands v. Boston, 108 Mass.
535; Shaw v. Philadelphia, 169 Pa. 506,
32 Atl. 593.

"^ Illinois: Corrigan v. Chicago, 144
111. 537, 33 N. E. 746.

loioa: Renwick v. Davenport, etc.,
R. R., 49 la. 664; Wertham v. Mason
C. & F. D. R. R., 128 la. 135, 103 N.
W. 135.

Maryland: Gluck v. Baltimore, 81
Md. 315, 32 Atl. 515, 48 Am. St. Rep.
515; Birch v. Lake Roland E. Ry., 83
Md. 362, 34 Atl. 1013.

Massachusetts: Pegler v. Hyde Park,
176 Mass. 101, 57 N. E. 327; Patterson
V. Boston, 20 Pick. 159, 23 Pick. 425.

Michigan: Grand Rapids Booming
Co. V. Jarvis, 30 Mich. 308.

Washington: Seattle & M. Ry. v.
Schieke, 3 Wash. 625, 29 Pac. 217, 30
Pac. 503. In McAllistern v. Reel, 59
Mo. App. 70, plaintiff was lessee of
property with a provision that he
should not be compensated for any
improvements made during the term,
unless the property were sold during
the term. The property was taken by
eminent domain before any sale was
made. It was held that lessee's dam-
ages could not include value of im-
provements made by him, since he had
no right to remove them and the tak-
ing could not be construed to be a sale.
See also Livingston v. Sulzer, 19 Hun
(N. Y.), 375.


produce if used for gardening, as there was no proof that it
would be so used, nor certainty of the profits of such use if
made. A verdict allowing the lessee the amount per acre
which he had agreed to pay the lessors was therefore upheld. ^^^
And where the building of a railroad interfered with a ferry
landing leased by plaintiff, damages were allowed for the
physical interference, but not for depreciation in the value of
plaintiff's franchise on account of diversion of traffic. ^^^

Online LibraryTheodore SedgwickA treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 3) → online text (page 75 of 94)