Deaton v. County of Polk

Stockton, J.—

It is objected by the defendant that the District Court, on appeal, allowed the plaintiff Deaton, to introduce evidence to show the inquiry sustained by him in the establishment of the road, in order to arrive at the damages to be awarded him. It is claimed by the defendant that the report of the appraisers is conclusive upon the question of damages, and that as they reported that the plaintiffs had sustained no damage, the court was bound thereby.

The appeal to the District Court is from this verdict of the appraisers, and from the judgment of the court thereon. The plaintiff -was entitled to have his damages assessed anew in the District Court, by a jury, and the evidence introduced was proper to enable the jury to fix the amount of damages. The report of the appraisers was in no manner conclusive, when an appeal had been allowed and taken.

The. District Court was asked by the defendant to direct the jury, “ that in arriving at the amount of damages sustained by Deaton, they were to deduct therefrom the benefit that Deaton would receive from the road; and that if they *596 believed that tbe benefit resulting to Deaton would be as great as, or greater than, the damages sustained by him by its establishment, they must find for the defendant, that the plaintiif was entitled to no amount for damages.” The court refused to give this direction to the jury, and in this refusal we think there was no error.

The compensation to which the plaintiff was entitled, was such a sum in money as would be commensurate with the injury sustained by him, in having his property taken. for the purpose of a road. Henry v. D. & P. R. R. Co., 2 Iowa 300 . In estimating the damages the jury are not to take into consideration any advantages that may result to the owner of the land on account of the improvement for which it is taken. Constitution of 1857, article 1, section 18. The constitution repeals section 538, of the Code.

The District Court was further requested to instruct the jury, “ that the establishment of a road through the timber land of the applicant, does not deprive the owner of the land, of the property in the timber growing thereon.” This instruction the court refused to give, and in this refusal we think there was error. Ey the appropriation of the land for the purpose of a road, the public acquires only the right of way. The right of property in the soil, or in the timber growing upon it, is not changed. Peck v. Smith, 1 Conn. 103 ; Webber v. East. R. R. Co., 2 Met. 147 ; Atkins v. Boardman, I b. 457. Those whose duty it is to repair the highway may cut trees upon the road for that purpose, yet they are trespassers if they cut them for their own use; and a stranger cutting timber upon the highway is a trespasser. Makepeace v. Weiden, 1 N. H. 16; Babcock v. Lamb, 1 Cow. 238 . It is held that the herbage belongs to the owner of the soil, and he may maintain trespass against one who puts his cattle into the highway to graze. Stackpole v. Heady, 16 Mass. 33 ; Griffin v. Martin, 7 Barb. S. C. 298.

We notice in conclusion what appears to us to be an irregularity in the proceedings, which may be corrected when the ■ cause is returned to the District Court. The county of *597 Polk is not a defendant in tbe suit. When there are remonstrants against the road who claim damages upon the establishment of the same, they should take the place of plaintiffs, and the petitioners for the road that of defendants. The county is not a party to the suit. Myers v. Old Mission and Whitbeck Road, 7 Iowa 315 .

Eor the error of the court in the charge to the jury, the judgment will be reversed.

Judgment reversed.