so furnished. There is no controversy about , Law, 154, and Coddington v. Dry Dock Co., the facts. Judgment having been rendered 31 N. J. Law 477. We have examined all by the court below for the plaintiff for $271. of these cases, and, with the exception of 05, Crutcher appeals to this court and asks the first case just referred to, they do not a reversal: First, because the lot on which support that contention. The statute of New the house was erected is school land, and the Jersey provides that every building shall legal title is in the government; second, that be liable for the payment of any debt conthe residence in question is personal proper tracted or owing for labor performed or maty, and therefore not subject to a mechanic's terials furnished for the construction there. or materialman's lien; and, third, that the of, which debt shall be a lien on such buildtrial court did not have jurisdiction of the ing, and on the land on which it stands, in. subject of the action.

cluding the lot or curtilage whereon the The third contention is manifestly with same is erected, and that, if any building be out merit. The court had acquired jurisdic erected by a tenant or other person than the tion over the persons to the action, and the owner of the land, then only the building cause was the kind of a cause which could and the estate of such tenant or other person be tried in the district court alone. It was So erecting such building shall be subject therefore the duty of the court to determine to the lien, unless it be erected by the conthe merits of the controversy and grant or sent in writing of the owner of the land, deny relief as the facts and law of the case duly acknowledged or proved and recorded. might justify. Section 4817, Wilson's Rev. It will be observed that the statute made & Ann. St. Okl. 1903, provides that: “Any a distinction between the owner and a tenperson who shall, under contract with the ant, or person other than the owner erectowner of any tract or piece of land, or witb ing a building. In the case of Babbitt v. the trustee, agent, husband or wife of such Condon, supra, one Lowell Mason was the owner, furnish material for the erection, owner of the land. D. G. Mason made a alteration or repair of any building, etc., contract with James Condon to build a house

shall have a lien upon the whole of on this land; the consent of the owner of said piece or tract of land, the building and the land not having been obtained. A meappurtenances, in the manner herein provid-chanic's lien was filed against the house and ed, for the amount due to him for said the land, which described James Condon as labor, material, fixtures or machinery.” And the contractor and D. G. Mason as the owllsection 4819 of the same statute provides er of the land. Lowell Mason, who owned the that: “Any person who shall furnish any land, and who furnished the money to build such material or perform such labor under the house, was not a party. D. G. Mason a sub-contract with the contractor, or as an had no interest in either the house or land. artisan or day laborer in the employ of such The lien was denied. The court did not hold sub-contractor, may obtain a lien upon such that a lien cannot be had unless the party land from the same time, in the same man for whom a building is erected is the owner ner, and to the same extent, as the original of the legal title to the land on which it is contractor for the amount due him for such erected. Such a decision would have been material and labor; and any artisan or day in violation of a positive statute.

a The case laborer in the employ of such sub-contractor of Coddington et al. v. Dry Dock Co., supra, may obtain a lien upon such land from the simply holds that the person for whom : same time, in the same manner, and to the building is erected must have some interest same extent, as the sub-contractor, for the in the land, or else no lien can attach. The amount due him for such material and labor, law is stated in the syllabus as follows: by filing with the clerk of the district court "In order to subject a building to the lien of the county in which the land is situated, | law, the owner of the building must have within sixty days after the date upon which some estate in the land on which it stands; material was last furnished or labor last unless this is so, there can be no lien either performed under such sub-contract, a state on the land or the building.” In the case of ment, verified by affidavit, setting forth the Tracy v. Rogers, supra, the court denied the amount due from the sub-contractor to the position of appellant in the following lanclaimant, and the items thereof as nearly as guage: "It is indispensable to a mechanic's practicable, the name of the owner, the i lien that the party with whom the contract name of the contractor, the name of the is made shall have some interest in the land claimant, and a description of the property upon which the building is to be erected or upon which a lien is claimed," etc. Now, it repaired, etc. This interest may be a fee is insisted that, under these provisions of simple, an estate for life, or it may be any the statutes of Oklahoma, a lien cannot be estate less than a fee." had unless the person for whom the building In the case under consideration, the record is erected is the owner of the legal title to shows that Crutcher held a lease for the real the land on which the building is located, estate on which the house was erecteil, and citing, in support of this position, the case of it is the general rule that it is not necessary Kellogg et al. v. Littell & Smithe Mfg. Co., that the person for whom a building is erect1 Wash. St. 407, 25 Pac. 161: Tracy v. Rog ed should own the fee-simple title, but the ers, 69 111. 602; Babbitt v. Condon, 27 X. J. word "owner,” as used in the statute, in

cludes every character of title, whether legal where the government leases land for a term or equitable, fee-simple or leasehold. In 20

In 20 of years, such lease must be measured by the Am. & Eng. Enc. of Law, p. 301, it is said: | general law applicable to such instruments, "It may be stated as a general rule that a unless exceptions affirmatively are made by mechanic's lien may attach to and can be the law itself. The lease of the appellant supported by an estate in fee, or of an es expressly authorizes the removal of the tate or interest less than a fee, such as an building placed on the land under the lease. estate for life or years, a mortgagor's right Neither the government nor the territory can of redemption, the interest of a person in in any way be affected to their detriment by possession claiming title, or, in short, any

the enforcement of this lien. As to whethother interest which the owner of the build er or not a lien might have been had against ing or improvement may have in the lot or a building alone under the law in force when land on which it is situated, provided such

the building was erected, where the party interest be such that it can be assigned or

for whom it was erected had no interest in transferred, or sold under execution, or, it

the land, it is not necessary to determine, as has been said, can pass by mortgage." And that point is not involved. However, the again, on page 303 of the same book: "It Legislature, since this cause of action acis well settled, as a general rule at the pres

crued, by section 1 of article 1 of chapter ent time, that a mechanic's lien may attach

28 of the Session Laws of 1903, limited the to and be enforced against a leasehold es

lien to the building and improvements alone, tate for labor or materials furnished un

when erected on land that is leased and under a contract with the lessee, even though

improved. This statute is in some respects the tenancy is only from month to month,

a limitation on the general law, and not an or, it has been held, though the tenant has

enlargement of its provisions, as contended the privilege of removing the machinery and

by appellant. fixtures on account of which the lien is

Under the great weight of the adjudicated claimed. The lien is, however, subject to all

cases, this judgment should be affirmed, and the conditions of the lease." The authorities

it is so ordered. Costs taxed to appellant. are collated in this book under these differ'

All of the Justices concurring, except GILent headings and fully support the text as

LETTE, J., who presided at the trial below,

not sitting, and IRWIN, J., absent. quoted above. It should not be overlooked that the mechanic's lien law was enacted for the protection of those furnishing material

(19 Okl. 262) for, or performing labor on, a building, and

ARKANSAS VALLEY & W. RY. CO. v. not for the benefit of him who has the build

WITT. ing constructed; and the right to a lien upon the legal title includes the right to a lien on

(Supreme Court of Oklahoma. Sept. 5. 1907.) a lesser interest in the land. It is true that


CIFIC EXCEPTION-SCOPE OF GENERAL Exsome courts have held that there must ex

CEPTION. ist some estate in the land itself, but these A general exception to a refusal to submit same courts have also recognized that where

to the jury a number of special interrogatories

is insufficient if any one of them be improper. ever one is in possession of real property,

[Ed. Note-For cases in point. see Cent. Dig. and has any estate therein, no matter how

vol. 2, Appeal and Error, $ 1622.] slight, if, under such title, he may lawfully

2. APPEAL-EXCESSIVE VERDICT. erect a building thereon, such ownership will The verdict of a jury should not be set aside authorize a mechanic's or materialman's on the ground that it is excessive, unless it lien, and, under the law, that estate, wheth

clearly appears that the jury have committed er it be the complete legal title or a lesser

some gross and palpable error or have acted

under some improper bias, influence, or prejuestate, may be sold. Such a lien, of course, dice, or have mistaken the rules of law stating would be subject to all of the conditions of the measure of damages. the lease or conveyance under which the (Ed. Note.-For cases in point, see Cent. Dig. party held. Under the rule here adopted, it

vol. 3, Appeal and Error, $$ 3944–3947.] is immaterial that the legal title to the land 3. EMINENT DOMAIN-DAJAGES-EVIDENCE.

In determining the damages to private propin question is in the United States. The

erty caused by the exercise of the right of emiUnited States authorized the leasing of such nent domain for a right of way for railroad land for townsite purposes, and by the terms purposes, testimony showing the excavations. of such a lease an estate is created. The

embankments, and obstructions to the natural

flow of surface water necessarily caused by the territory and the general government are construction of the road is properly admitted for bound by their contracts the same as an the purpose of showing in what way and to Individual, and it is only the estate held by

what extent the remaining portion of the un

condemned tract has been damaged by reason the appellant that can be affected by this

of the construction of the road. lien.

[Ed. Note.-For cases in point, see Cent. Dig. The authorities holding that a mechanic's vol. 18. Eminent Domain, $ 2.35.1 lien cannot attach to land held as a govern 4. SAME-DAMAGES. ment homestead, or to the buildings or im

Under the statutes of Oklahoma, damages provements placed thereon, have no applica

in condemnation proceedings for railroad right tion in this case. In such circumstances they

of way purposes are not limited to the real

estate taken and injured, but may be such damare absolutely prohibited by Congress; but, ages as the owner actually sustains to either his

91 P.-57

real or personal property by the appropriation experienced farmers who testified relative to of his land and by reason of such railroad.

the reasonable market value of the land for [Ed. Note. For cases in point, see Cent. Dis.

farming purposes immediately before and vol. 18. Eminent Domain, $8 239-241.]

after the construction of the road. And (Syllabus by the Court.)

these questions of fact were peculiarly withError from District Court, Pawnee Coun in the province of the jury to determine in ty ; before Justice Bayard T. H:iner.

the light of all the evidence introduced att Condeiunation proceedings by the Arkansas

the trial of the rise. We are not in symValley & Western Railway Company against pathy with the growing assumption of ipJames D. Witt. From the judgment, the Dellate courts to set aside a verdict on the railway company brings error. Atfirmed. ground that it is excessive, when it has been Biddison & Eagleton, for plaintiff in error.

approved by the trial court, unless it clearly

appears that the verdict has been the result Wrightsman & Diggs, for defendant in er

of prejudice or passion or grossly overostiror.

mated damages. The jurors and the trial GARBER, J. Plaintiff in error is a rail- judge having the advantage of observing and

hearing the witnesses on the stand in direct way corporation, and condemned for its right

and cross-examination, receiving their inof way across defendant in error's land a strip containing 6.51 acres. The condemna

formation at first hand, as a rule are in a

better position to determine the question of tion proceedings were in conformity with

fact than the appellate court, receiving its the requirements of the law, and the defend

information from the record. ant in error properly appealed from the

It clearly illaward made by the commissioners to the

pearing that the evidence in this case is suffidistrict court, where a trial by jury was

cient to support the verdict and judgment, had, and a verdict returned in favor of the

and that the amount represents a reasondefendant in the sum of $1,450, and, judg

able assessment of damages sustained, this ment being rendered thereon

court will not set the judgment aside upon for that

the ground that it is excessive. aniount, plaintiff appeals to this court, and asks for a reversal of this case upon the

The second and third assignments of error ground that the judgment is excessive.

challenge the admission of testimony and

The questions involved in the trial of the case

the instructions of the court. Over the ob

jections of the defendant, the trial court adwere: First, the reasonable market value of the land taken for right of way purposes ;

mitted testimony showing excavations made

in securing material for fills—in railroad and, second, the injury or damage done to the remaining portions of the land by rea

parlance called "borrow pits"—and in throwson of the construction of the railroad and

ing up embankments upon the defendant's the appropriation of the tract.

land uncondemned; also, the admission of An examination of the record discloses

testimony showing the overflow of several that numerous witnesses for the defendant

acres of defendant's land caused by said emtestified that the reasonable market value

bankments obstructing the natural flow of of the farm immediately prior to the con

surface water. It is insisted that these are . struction of the right of way across the

elements of damage which could not be conland was $4,000 to $4,500, and that the rea

sidered by the jury in this action, but are sonable market value immediately thereaft

separate causes of action which cannot be er was from $2,000 to $2,500, from which

merged in a condemnation proceeding. Plainwe conclude that the lowest estimated dam tiff in error insists that in condemnation proage by defendant's witnesses was $1,500, or

ceedings the true rule is "that a party exer$50 in excess of the amount found by the

cising the right of eminent domain is liable jury. These witnesses were farmers living in

for all such damages, and only such damages, the neighborhood and well qualified by their

as may accrue to the landowner by reason long experience as farmers, and by their famil

of the taking of the land, the same to be used iarity with the location of the farm and the

in any way that the condemning party acroad, as shown by maps thereof, to estimate quires the right to use it, and this whether the damages to the land caused by the rail

the condemning party actually does so use road. The separation of pasture, improve

the land or not." Numerous authorities are ments, and water facilities from their con cited in support of plaintiff's position, based venient connections, the inconvenience of in many instances upon the statutes and crossing the railroad with farm machinery Constitutions of other states, which are not to farm separate tracts, the increased care controlling here. In the case of Blincoe v. and watchfulness necessary at all times

C. 0. W. Ry. Co., 16 Okl. 286, 83 Par. 2013, while working in the immediate vicinity of Mr. Justice Gillette, in an able and exhaustthe road with horses and farm machinery,

ive review of the authorities, many of which the anxiety and uneasiness, the disturbance are cited here., in the opinion of the court, of that sense of safety and security to all said: "From these cases it will appear that members of the family while peacefully en there is no general rule governing the mangaged in their different lines of production ner in which damages to private property, on different portions of the farm, were mat when taken for public use, are to be measters peculiarly within the knowledge of the ured. Such measurements must depend upon

the constitutional law authorizing the taking. | the expenses incurred in removing the lumber and consequential damages will be allowed were such damages as could not be recovered when justified by such provisions. Is the in condemnation proceedings, and that the detaking and damage to personal property fendant should be relegated to another action under the law of eminent domain within the at law for the recovery thereof, but the court foregoing rule applicable to real estate? If held: “Damages to be allowed are not limso, the exercise of this power over or upon ited to real estate taken and injured, but may the property of a citizen should carry with be such damages as the owner actually susit the right of the citizen to recover all the tains to either his real or personal property damages he has suffered by reason of its by such appropriation of his land." The exercise, whether to his real or personal admission of the testimony complained of property.” The damages for which a land was confined to the necessary incidentals in owner may recover in condemnation proceed the construction of the road, and for the only ings, as expressed by statute, are not limited,

purpose of showing in what way and to what as contended by plaintiff, to damages accru extent, if any, they affected the reasonable ing from the mere taking of the land, but market value of the remaining portion of deincludes the damages sustained by reason of fendant's tract of land. The fifth instruction the appropriation of the land, and in deter complained of by the plaintiff clearly premining such damages it is proper to consider sents the limitations mentioned, and in our the injury caused by reason of the railroad. judgment correctly stated the law of the The statute under which these condemnation

case: "In determining the elements of damproceedings were had reads as follows: "The

age, you should take into consideration the commissioners shall be duly Sworn to per manner in which the railroad passes through form their duties impartially and justly and and across the land in controversy and the they shall inspect said real property and manner in which it was constructed, the inconsider the injury which such owner may convenience to the landowner, in passing sustain by reason of such railroad; and they through the tract, and anything that would shall assess the damages which said owner

affect the usable or salable value of the land. will sustain by such appropriation of his

You are not permitted to allow any damages land.”

for injuries that the landowner might susIn Blincoe v. C. 0. W. Ry. Co., supra, con tain either to his person or his property, nor demnation proceedings were instituted con for any loss occasioned by fire. Those are demning a strip of land across certain lots remote and speculative. But you may considin the city of Guthrie, which had been used

er those matters as affecting the usable or for the purpose of a lumber yard. The pro

salable value of the land. Neither can you ceedings necessitated the removal of the lum

allow for any injury by reason of floods ocber, and upon the trial in the district court

casioned by the construction of the railroad, evidence was offered to show the necessary

but you may take into consideration the expenses incurred thereby. The objection to manner in which the railroad is constructed the introduction of such evidence being sus

over the land for the purpose of determining tained, exceptions were duly saved, and the whether or not the construction of the road ruling of the court and the instruction em affects the usable or salable value of the bodying that view of the law were presented land. And as such you have a right to take on appeal to the Supreme Court. Passing

into consideration the damages that the landupon those questions presented, Mr. Justice owner has sustained. Likewise, if any dirt Gillette, in speaking for the court, said: was thrown outside of the right of way, or “That the owner by reason of such railroad what is known as 'barrow pits,' if any were has been put to the expense of removing the excavated, outside of the right of way, you stock of lumber then on hand is not disputed; have a right to take into consideration how neither can it be denied that the cost of such that affects the usable and salable value, and removal was made necessary by the condem allow such damage as will in your judgment nation of the real estate and is an injury and compensate the landowner.” Thus it will be damage to the owner to the extent of the cost seen that the jury were instructed to considof such removal. In other words, this ruling er the testimony in relation to embankments would permit the railroad to take advantage and excavations only in so far as they affectof the owner of land, and thereby compel ed the usable and salable value of defendant's him to bear whatever expense may be con land, and were especially admonished not to sequent upon preserving his personal proper allow any damages for injury caused by ty, and yet be remediless therefor. If this floods. occasioned by the construction of the shall be held to be the law, then the con road. stitutional provision, 'nor shall private prop In Grand Rapids R. R. Co. v. Cheseboro, erty to be taken for public use without just 74 Mich. 166, 42 N. W. 69, the court, by Mr. compensation,' becomes almost as much a Justice Campbell, say: "The damages in such sword as a shield to the private citizen, for a case must be such as to fully make good all the compulsory addition to the cost of per the results directly or indirectly to the insonal property of the citizen is as much a tak jury of the owner in the whole of the premising as the absorption of the real estate it. es. and interests affected, and not merely the self." It was contended there, as here, that strip taken"-citing a large number of cases,

among which was G. R. I. & P. R. Co. y. the manner in which the road cuts the land, Heisel, 47 Mich. 393, 11 N. W. 215, in the the excavations and embankments, and the opinion of which the said court said: "It exposure of the property to particular injuneed hardly be said that nothing can be fair ries from the proximity of the road." ly termed compensation which does not put In this case the construction of the road the party injured in as good a condition as was complete at the time of the trial in the he would have been in if the injury had not district court, and evidence showing the occurred. Nothing short of this is adequate actual existing condition was not subject to compensation." And in Judd v. Hull Dock the objection of being uncertain, speculative, Co., 92 B. 413, it was held that: "Where the or remote, and was properly admitted by property taken was a brewery in operation, the court. In Lewis on Eminent Domain, $ the damages included the necessary loss in +82, it is said: “If the works are built finding another place of business.” And they before the assessment of damages is had, say: "The following are cases where the the damages should be assessed on the basis damage done was, as in this case, distinct of the works as constructed, even if impropfrom the actual taking of property from the erly constructed, for the condemner should party injured”—citing a number of English not be allowed to assert its own wrong." cases. In Railway Company y. Teters, 68 Ill. And in section 496 the learned author says: 144, the court say: “The design of the law "It would be difficult to enumerate the variis to fully compensate a party for all injury ous elements of damages proper to be conhe may sustain by reason of the appropria sidered when a part of a tract is taken. tion of his land to the use of the road and The shape and size of the parcel or parcels which shall grow out of or be occasioned by which remain, the difficulty of access of its location and use at that place.” In Oma communication between the different parts, ha Southern Ry. Co. v. Todd, 39 Neb. 818, 58 inconvenience and disfigurement caused by N. W. 289, in the opinion, the court said: the taking, and interference with the drain"The damages to which a landowner is en age of the land, or with the flow of surface titled by reason of the construction of a water, or with the water supply, are recograilroad across his farm are: First, the nized by all authorities as proper items to actual value of the land taken at the time of be taken into account in assessing the damthe taking without diminution on account of ages. Where a railroad is laid through a any benefit of offset whatever; second, the farm, it is proper to consider the expense in depreciation in value of the remainder of the constructing necessary farm crossings, unfarm by the appropriation of a part thereof less it is made the duty of the company to for railway purposes and the construction build such crossings; also, the danger to and permanent operation and occupation of which the occupants of the farm and the the railroad thereon, excluding general bene stock thereon will be exposed so far as the fits. In an inquiry whether and how much same affects the value of the farm. Injury to the part of the farm not taken for railroad grass from dirt washed from an embankright of way is depreciated in value by the ment was held a proper item of damage." appropriation of a part, evidence as to the In Ilayes v. Ottowa, Oswego & Fox River size of the farm, the purpose for which it Valley R. R. Co., 5+ Ill. 373, the court say, was used, the improvements thereon, and in estimating the damages and benefits to how located, the direction of the road cross result from the construction and use of a ing the farm, the cuts and fills made or to railroad over land which has been condemnbe made in the construction of the road, the ed for that purpose under an act of 1852, width of the right of way, the height of em the jury are not confined to the consideration bankments, the depth of ditches, the incon of the state of facts as they existel at the venience in crossing the tract from one part time the land was taken, but inay consider of the farm to the other, the liability of stock the subject in the light of the facts as they being killed, the danger from fires from pass exist at the time of the trial. In St. Louis, ing trains, are all facts competent for the O. H. & C. R. R. v. Fowler, 142 Mo. 070, jury's consideration in determining the de 41 S. W. 771, the Supreme Court of Mispreciation in the value of the remainder of souri say: "The damages and benefits to the farm.” “Just compensation for land tak the remaining land after an 'propriation en consists in making the owner good by an of a railroad right of way shoull be estiequivalent in money for the loss he actually mated according to the condition of things sustains in the value of his property by being and the rights of the parties as they exist deprived of a portion of it. It includes not at the trial." In Wichita & E. R. R. Co. v. only the value of the land taken, but also Kuhn, 38 Kan. 101, 16 Pac. TJ, the Supreme the diminution in the value of that from Court of Kansas say: "On an appeal from which it is severed." Laflin v. Chicago W. an assessment of damages done to a farm & N. R. Co. (C. C.) 33 Fed. 415; Esch v. by reason of the appropriation of a right of Chicago, U. & St. P. R. Co., 72 Wis. 229, 39 way through it by a railroad company, and N. W. 129. In Fremont E. & N. V. R. Co. where it is shown at the time of the trial v. Meeker, 29 Xeb, 91, 4 X. W. 79, the court that the railroad is completed across the say: "It is propier to consider, in estimating farm, it is then competent and proper to asthe damages for a right of way for a railway, sume that the railroad was constructed as

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