property proposed to be taken or damaged as will make them whole; so that, on receipt by such owners of the compensation and damages awarded, they will not be poorer by reason of their property being so taken or damaged." That this is an accurate statement of the law is not questioned. But it was immediately followed by the eleventh, twelfth, fourteenth, sixteenth, twentyfirst and other instructions, in which the jury were specifically told that in arriving at the compensation they must exclude from their minds, and had no right to take into consideration, or to offset against any damages which may be sustained, any benefits or advantages which may accrue to said property in common with other property in the vicinity of the line of the proposed railroad, by reason of its construction and operation. The jury would understand from these instructions that, in determining the compensation to be paid for land not taken, all benefits to the particular property, where like benefits were conferred upon other property in the vicinity by the construction of the railroad, must be excluded from their consideration, although such benefits might materially enhance the value of appellees' lots, and even to an extent that would show there was no depreciation therein by reason of the building of the railroad, and would award just compensation upon that basis.

In respect of the second instruction given for appellees, without quoting it, it should be said that the jury have little to do with the theory and policy of the law. An instruction should be so drawn as to be a concise and accurate statement of the law, as applicable to the facts of the particular case. While the giving of this instruction would, perhaps, not be prejudicial error, it was improper, as bringing to the attention of the jury, in an argumentative form, matters with which they had no immediate concern. For the error in giving the instructions before indicated, the judgments in the several cases involved in this appeal are reversed, and the cause is remanded. Reversed and remanded. MAGRUDER, J., dissents.*

Eminent domain benefits to part not taken.-When part of a lot or tract of land is taken for public use, just compensation to the owner requires that he should be paid the damages, if any, to the part remaining. Lewis

* Reported in 150 Ill. 362; 37 N. E. Rep. 1098.

Em. Dom. § 464. The courts seem to be at one upon this point. Upon the right to consider benefits to the remainder by reason of the work or improvement there is great diversity of opinion. The cases are reviewed at length in Lewis Em. Dom. §§ 465-476. The question has received careful attention in the following cases in these reports: Newman v. Metropolitan Elevated R. Co., 2 Am. R. R. & Corp. Rep. 318; Springer v. City of Chicago, 4 Am. R. R. & Corp. Rep. 52; Bohm v. Metropolitan El. R. Co., 5 Am. R. R. & Corp. Rep. 416. The following recent decisions are also particularly in point in the same connection: Bookman v. New York El. R. Co., 137 N. Y. 302; 33 N. E. Rep. 333; Sutro v. Metropolitan El. R. Co., 137 N. Y. 592; 33 N. E. Rep. 334; Steubing v. New York El. R. Co., 138 N. Y. 658; 34 N. E. Rep. 369; Sixth Ave. R. Co. v. Metropolitan El. R. Co., 138 N. Y. 548; 34 N. E. Rep. 400; Saxton v. New York El. R. Co., 139 N. Y. 320; 34 N. E. Rep. 728; Nicks v. Chicago, etc., R. Co., 84 Iowa, 27; 50 N. W. Rep. 222; Strayer v. Georgia, S. & F. R. Co., 90 Ga. 56; 15 S. E. Rep. 637; Stewart v. Ohio River R. Co., (W. Va.) 18 S. E. Rep. 604; Mahaffey v. Beech Creek R. Co., (Penn.) 29 Atl. Rep. 881. In the last case the Pennsylvania rule is thus stated: "The advantages to a property, resulting from the construction of a railroad, which are to be considered in connection with the disadvantages, are such as are special to the property affected, and give it an increased value above the general appreciation of property in the neighborhood. This rule, without qualification or limitation, has been applied in a long line of cases, among which are Hornstein v. Railroad Co., 51 Penn. St. 87; Railroad Co. v. Robinson, 95 Penn. St. 426; Railway Co. v. McCloskey, 110 Penn. St. 442; 1 Atl. Rep. 555; Long v. Railroad Co., 126 Penn. St. 143; 19 Atl. Rep. 39. In Railway Co. v. McCloskey, supra, CLARK, J., said: "The adjustment of this difference involves in all cases a fair and just comparison of the advantages and disadvantages resulting from the opening and operation of the road, and the construction of its works; but the advantages to be considered are such only as are special, and the disadvantages such as are actual. The general appreciation of property in the neighborhood, consequent to the projected construction of the road, cannot enter into the calculation. To this the landowner, whose land has been taken, is as fairly entitled as his neighbor, whose possession and enjoyment have not been disturbed.'"

CINCINNATI, W. & M. Ry. Co. v. CITY OF ANDERSON.

(Supreme Court of Indiana, September 27, 1894.)

1. EMINENT DOMAIN. EXTENDING STREET THROUGH RAILROAD YARDS. INJUNCTION. Under the general law permitting cities to establish streets, they have implied power to extend streets across the right of way of a railroad, where both uses may co-exist, without material injury to the railroad right of way. But when the railroad use will be materially impaired or destroyed, the opening of the highway will be denied.

VOL. X.-3

2. A street cannot be extended through the yards, and across the tracks of a railroad company, where to do so would require the destruction and removal of a turntable, water tank, engine house and coal dock, though such structures might be rebuilt and conveniently used on other land of the railroad in the vicinity.

ACTION by the Cincinnati, Wabash & Michigan Railway

Company against the city of Anderson for an injunction. There was a judgment for defendant, from which plaintiff appeals.

C. E. Cowgill, for appellant. F. P. Foster and II. C. Ryan, for appellee.

HACKNEY, Ch. J. This was a suit by the appellant to enjoin the extension of Seventh street in said city, from the east line of the appellant's right of way westward across the main track and five side tracks in appellant's yards. Within said yards were an engine house of brick and stone, containing six stalls, and being 60 feet deep, 80 feet long in front and 140 feet long in the rear. In front of this building was a turntable, from which there were six tracks extending into said engine house and connecting with the six stalls therein. In said yards were also a water tank, from which locomotives were supplied with water, and also a coal dock, constructed from timber and lumber, the same being twenty-three feet wide by eighty-six feet in length and from which the locomotives of the appellant were supplied with coal. The various side tracks within said yards were used for the storage of freight and passenger cars, and for making up trains, and for reaching said water tank, coal dock, turntable and roundhouse. Said engine house was not large enough for the business of the company, and additions were contemplated. To extend said street as projected would not only inconvenience the appellant in the use of its yards, by meeting the uses of the street by the public, and increasing the hazards of the business, but it would take within the lines of said street two of the stalls of said roundhouse and a considerable portion of said coal dock, and would not permit the use of said water tank without encroaching upon said street slightly. Immediately south of the projected street, parallel with said tracks and a part of said yard, the appellant owned ground upon which such water tank, coal dock, turn

table and roundhouse could have been located, and with changes in some of the side tracks mentioned, could have been used as conveniently and practically with the same advantages, excepting the necessity of keeping said projected extension free from standing cars, and the said added hazards by reason of the crossing and recrossing by the public of the appellant's said tracks. That the uses for which the appellant employed the strip proposed to be taken for the street crossing were of a public character, and that it could not be appropriated to the uses of a public street, if to do so would destroy or become inconsistent with the purposes for which they were so employed, is conceded by the parties. The question upon which the controversy hinges, and upon which counsel have placed the case in argument, is this: Can these buildings and structures be destroyed, and removed from their fixed location, and their use where situated be entirely thwarted, and their location applied to a new public use, upon the showing that they may be rebuilt, and conveniently and practically used for the same purposes on other land of the company, near to that now occupied ?

Under the general law permitting cities to establish streets, we have no doubt of the implied power to extend streets transversely across the right of way of a railroad, when in doing so the uses for which such right of way is employed are not materially injured or destroyed, and where such uses and those for a street may co-exist without impairment of the first uses. But where such uses cannot so co-exist, or where the first use is materially impaired or destroyed, it is well settled in this state and elsewhere that the second public use will be denied. Lake Erie & W. Ry. Co. v. Town of Boswell, 136 Ind. —; 36 N. E. Rep. 1103; City of Ft. Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558; 32 N. E. Rep. 215; City of Seymour v. Jeffersonville, M. & I. R. Co., 126 Ind. 466; 26 N. E. Rep. 188; City of Valparaiso v. Chicago & G. T. Ry. Co., 123 Ind. 467; 24 N. E. Rep. 249; Railroad Company v. Williamson, 91 N. Y. 552; In re City of Buffalo, 68 N. Y. 167; In re Boston & A. R. Co., 53 N. Y. 577; Railroad Co. v. Bronnell, 24 N. Y. 345; Milwaukee & St. P. Ry. Co. v. City of Faribault, 23 Minn. 167; Railroad Co. v. Muder, 49 Mo. 165; Mohawk & H. R. Co. v. Artcher, 6 Paige, 83; St. Paul Union Depot Co. v. City of St. Paul, 30 Minn.

359; 15 N. W. Rep. 684; New Jersey Southern R. Co. v. Long Branch Comrs., 39 N. J. Law, 28.

At the point of the crossing of the projected extension of Seventh street and the right of way of the appellant, there are other public uses existing than the mere maintenance of tracks for the transportation of passengers and freight, or the storage of cars and the making up of trains. The turntable, the water tank, the engine house, the coal dock, are, each and all, not only generally essential to the business and successful operation of a line of railway, but in this instance they were made to serve two divisions of railway each having a terminus at the city of Anderson, where locomotives were supplied with coal and water, and were housed when not in service. Not only were they essential, but it is not even suggested that they could be dispensed with. That they were, of themselves, when connected with the operation of the railway, public uses, not only appears from their necessity to the successful operation of a railway, but from the numerous cases holding that for such uses real estate may be condemned and appropriated under general laws for the appropriation of real estate to railway uses. In re New York Cent. & H. R. R. Co., 77 N. Y. 248 (for freight and warehouses); Low v. Railway Co., 18 Ill. 324 (paint shops, lumber and timber sheds); Railroad Co. v. Muder, 49 Mo. 165, and Railway Co. v. Wilson, 17 Ill. 123 (depot, engine house and repair shops); Railroad Co. v. Kip, 46 N. Y. 546 (depots, coal sheds, engine houses, etc.). There are probably many other like cases, but we think there can be no doubt upon this conclusion, which finds added support from the cases expressly denying the right to condemn, and apply to street crossing, property of like character already in use for such purposes by railway companies. City of Valparaiso v. Chicago & G. T. Ry. Co., supra; City of Ft. Wayne v. Lake Shore & M. S. R. Co., supra; Railroad Co. v. Williamson, supra; Milwaukee & St. P. Ry. Co. v. City of Faribault, supra; St. Paul Union Depot Co. v. City of St. Paul, supra; Winona & St. P. Ry. Co. v. City of Watertown, (S. D.) 56 N. W. Rep. 1077; New Jersey Southern R. Co. v. Long Branch Comrs., supra.

The theory of the appellee and that adopted by the Circuit Court is that such buildings and structures are not indispensable, for the reason that they may be conveniently located elsewhere,