v. Suydam, 17 N. J. L. 25.
See, generally, Peoria Gas Light & Coke Co.
v. R. Co., 146 Ill. 372, 34 N. E. 550, 21 L. R.
A. 373; 57 Am. & Eng. R. R. Cas. 508, n; 2 Am. R. R. & Corp. Rep. 744, n.
Assessment of benefits on the remainder of a tract of which part is taken is prohibited by the constitution in some states, either gen erally, as in Iowa and Ohio, in favor of any corporation, as in Arkansas. Kansas, and South Carolina, or any other than municipal, as in California, North Dakota, and Wash ington. In the other states there is a di versity of decisions which have been thus classified, as : 1. Not considered. 2. Spe cial benefit is set off against damages to the remainder but not against the value of the Part taken. 3. General or special, as in the last class. 4. Special,,against both damages to remainder and value of part taken. 5. General and special, as in the last class. Lewis, Em. Dom. § 465.
In the first class the benefit is excluded because compensation is held to be money ; Brown v. Beatty, 34 Miss. 227, 241, 69 Am. Dec. 389; Board of Levee Com'rs for Yazoo Mississippi Delta v. Harkleroads, 62 Miss. 807; Burlington & C. R. Co. v. Schweikart, 10 Cal. 178, 14 Pac. 329 ; Dulaney v. Nolan County, 85 Tex. 225, 20 S. W. 70; Jones v. R. Co., 30 Ga. 43; Paducah & M. R. Co. v. 12 Heisk. (Tenn.) 1. In some states the colittitution prohibits the deduction of benefits ; though in some of them it is per mitted in favor of public corporations ; Nichols, Em. Dom. § 278, where these states are enumerated.
The second rule which obtains has been justly criticised as illogical; Lewis, Em. Dom. § 467; but it rests upon the theory that for the part taken compensation in mon ey is required, while for incidental damage the legislature may prescribe the rule of compensation. This was the doctrine laid down in Tennessee which, with several oth er states, adheres to it ; Woodfolk v. R. Co., 2 Swan (Tenn.) 422; Robbins v. R. Co., 6 Wis. 636; Shipley v. R., Co., 34 Md. 336; Fremont, E. & M. V. R. Co. v. Whalen, 11 Neb. 585, 10 N. W. 491; Chicago, K. & N. R. Co. v. Wiebe, 25 Neb. 542, 41 N. W. 297.
The third class rests upon the same idea of requiring compensation in money for the part taken, but treating the claim for dam age to the remainder as consequential and properly subject to the set-off of all advan tages ; and in Kentucky, from which comes the leading case, a judgment was reversed for an instruction excluding general bene fits ; Henderson & N. R. Co. v. Dickerson,
17 B. Monr. (Ky.) 173, 66 Am. Dec. 148; City Council of Augusta v. Marks, 50 Ga. 612 (but see Young v. Harrison, 17 Ga. 30, in which a different doctrine was applied, which was passed without mention in Jones v. Wills Val. R. Co., 30 Ga. 43, which laid down the rule afterwards adhered to); Buf falo, B., B. & C. R. Co. v. Ferris, 26 Tex. 588 ; Tait v. Matthews, 33'Tex. 112; City of Paris v. Mason, 37 Tex. 447; Texas & St. L. R. Co. v. Matthews, 60 Tex. 215 ; but see Bourgeois v. Mills, 60 Tex. 76; New Orleans Pac. Ry. Co. v. Gay, 31 La. Ann. 430.
The fourth rule allows special benefits against both the value of the part taken and damage to the remainder, because just compensation is construed to mean recom pense for the net resulting injury, and ex cludes a share of the general advantage, be cause to allow it would be distribute it unequally, charging those whose land is tak en for that which the rest of the community enjoy without cost ; Adden v. R. R., 55 N. H. 413, 20 Am. Rep. 220; Meacham v. R. Co., 4 Cush. (Mass.) 291; Clark v. City of Worces ter, 125 Mass. 226; Cross v. Plymouth Coun ty, 125 Mass. 557; Trinity College v. City of Hartford, 32 Conn. 452 ; Gautier v. Board, 55 N. J. L. 88, 25 Atl. 322, 17 L. R. A. 785; Setzler v. R. Co., 112 Pa. 56, 4 Atl. 370 (which lays down the rule with great clear ness not only on this point but in confining the consideration of inconvenience and ad vantage to the effect of both upon the mar ket value) ; Freedle v. R. Co., 49 N. C. 89; Wyandotte, K. C. & N. W. Ry. Co. v. Waldo, 70 Mo. 629; Daugherty v. Brown, 91 Mo. 26, 3 S. W. 210 ; Winona & St. P. R. Co. v. Wal dron, 11 Minn. 515, (Gil. 392), 88 Am. Dec. 100; Arbrush v. Town of Oakdale, 28 Minn. 61, 9 N. W. 30; Beekman v. Jackson County, 18 Or. 283, 22 Pac. 1074 (but see Putnam v. Douglas County, 6 Or. 328, 25 Am. Rep. 527). See L. R. 2 C. P. 638.