so furnished. There is no controversy about the facts. Judgment having been rendered by the court below for the plaintiff for $271.05, Crutcher appeals to this court and asks a reversal: First, because the lot on which the house was erected is school land, and the legal title is in the government; second, that the residence in question is personal property, and therefore not subject to a mechanic's or materialman's lien; and, third, that the trial court did not have jurisdiction of the subject of the action.

The third contention is manifestly without merit. The court had acquired jurisdiction over the persons to the action, and the cause was the kind of a cause which could be tried in the district court alone. It was therefore the duty of the court to determine the merits of the controversy and grant or deny relief as the facts and law of the case might justify. Section 4817, Wilson's Rev. & Ann. St. Okl. 1903, provides that: "Any person who shall, under contract with the owner of any tract or piece of land, or with the trustee, agent, husband or wife of such owner, furnish material for the erection, alteration or repair of any building, etc., * * * shall have a lien upon the whole of said piece or tract of land, the building and appurtenances, in the manner herein provided, for the amount due to him for said labor, material, fixtures or machinery." And section 4819 of the same statute provides that: "Any person who shall furnish any such material or perform such labor under a sub-contract with the contractor, or as an artisan or day laborer in the employ of such sub-contractor, may obtain a lien upon such land from the same time, in the same manner, and to the same extent, as the original contractor for the amount due him for such material and labor; and any artisan or day laborer in the employ of such sub-contractor may obtain a lien upon such land from the same time, in the same manner, and to the same extent, as the sub-contractor, for the amount due him for such material and labor, by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished or labor last performed under such sub-contract, a statement, verified by affidavit, setting forth the amount due from the sub-contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed," etc. Now, it is insisted that, under these provisions of the statutes of Oklahoma, a lien cannot be had unless the person for whom the building is erected is the owner of the legal title to the land on which the building is located. citing, in support of this position, the case of Kellogg et al. v. Littell & Smithe Mfg. Co., 1 Wash. St. 407, 25 Pac. 461: Tracy v. Rogers, C9 Ill. 662; Babbitt v. Condon, 27 N. J.

Law, 154, and Coddington v. Dry Dock Co., 31 N. J. Law 477. We have examined all of these cases, and, with the exception of the first case just referred to, they do not support that contention. The statute of New Jersey provides that every building shall be liable for the payment of any debt contracted or owing for labor performed or ma terials furnished for the construction there. of, which debt shall be a lien on such building, and on the land on which it stands. in cluding the lot or curtilage whereon the same is erected, and that, if any building be erected by a tenant or other person than the owner of the land, then only the building and the estate of such tenant or other person so erecting such building shall be subject to the lien, unless it be erected by the consent in writing of the owner of the land, duly acknowledged or proved and recorded.

It will be observed that the statute made a distinction between the owner and a tenant, or person other than the owner erect ing a building. In the case of Babbitt v. Condon, supra, one Lowell Mason was the owner of the land. D. G. Mason made a contract with James Condon to build a house on this land; the consent of the owner of the land not having been obtained. A mechanic's lien was filed against the house and the land, which described James Condon as the contractor and D. G. Mason as the own er of the land. Lowell Mason, who owned the land, and who furnished the money to build the house, was not a party. D. G. Mason had no interest in either the house or land. The lien was denied. The court did not hold that a lien cannot be had unless the party for whom a building is erected is the owner of the legal title to the land on which it is erected. Such a decision would have been in violation of a positive statute. The case of Coddington et al. v. Dry Dock Co.. supra, simply holds that the person for whom building is erected must have some interest in the land, or else no lien can attach. The law is stated in the syllabus as follows: "In order to subject a building to the lien law, the owner of the building must have some estate in the land on which it stands; unless this is so, there can be no lien either on the land or the building." In the case of Tracy v. Rogers, supra, the court denied the position of appellant in the following language: "It is indispensable to a mechanic's lien that the party with whom the contract is made shall have some interest in the land upon which the building is to be erected or repaired. etc. This interest may be a fee simple, an estate for life, or it may be any estate less than a fee."

In the case under consideration, the record shows that Crutcher held a lease for the real estate on which the house was erected, and it is the general rule that it is not necessary that the person for whom a building is erected should own the fee-simple title, but the word "owner," as used in the statute, in

cludes every character of title, whether legal or equitable, fee-simple or leasehold. In 20 Am. & Eng. Enc. of Law, p. 301, it is said: "It may be stated as a general rule that a mechanic's lien may attach to and can be supported by an estate in fee, or of an estate or interest less than a fee, such as an estate for life or years, a mortgagor's right of redemption, the interest of a person in possession claiming title, or, in short, any other interest which the owner of the building or improvement may have in the lot or land on which it is situated, provided such interest be such that it can be assigned or transferred, or sold under execution, or, it has been said, can pass by mortgage." And again, on page 303 of the same book: "It is well settled, as a general rule at the present time, that a mechanic's lien may attach to and be enforced against a leasehold estate for labor or materials furnished under a contract with the lessee, even though the tenancy is only from month to month, or, it has been held, though the tenant has the privilege of removing the machinery and fixtures on account of which the lien is claimed. The lien is, however, subject to all the conditions of the lease." The authorities are collated in this book under these different headings and fully support the text as quoted above. It should not be overlooked that the mechanic's lien law was enacted for the protection of those furnishing material for, or performing labor on, a building, and not for the benefit of him who has the building constructed; and the right to a lien upon the legal title includes the right to a lien on a lesser interest in the land. It is true that some courts have held that there must exist some estate in the land itself, but these same courts have also recognized that whereever one is in possession of real property, and has any estate therein, no matter how slight, if, under such title, he may lawfully erect a building thereon, such ownership will authorize a mechanic's mechanic's or materialman's lien, and, under the law, that estate, whether it be the complete legal title or a lesser estate, may be sold. Such a lien, of course, would be subject to all of the conditions of the lease or conveyance under which the party held. Under the rule here adopted, it is immaterial that the legal title to the land in question is in the United States. The United States authorized the leasing of such land for townsite purposes, and by the terms of such a lease an estate is created. The territory and the general government are bound by their contracts the same as an Individual, and it is only the estate held by the appellant that can be affected by this lien.

The authorities holding that a mechanic's lien cannot attach to land held as a government homestead, or to the buildings or improvements placed thereon, have no application in this case. In such circumstances they are absolutely prohibited by Congress; but,

91 P.-57

where the government leases land for a term of years, such lease must be measured by the general law applicable to such instruments. unless exceptions affirmatively are made by the law itself. The lease of the appellant expressly authorizes the removal of the building placed on the land under the lease. Neither the government nor the territory can in any way be affected to their detriment by the enforcement of this lien. As to whether or not a lien might have been had against a building alone under the law in force when the building was erected, where the party for whom it was erected had no interest in the land, it is not necessary to determine, as that point is not involved. However, the Legislature, since this cause of action accrued, by section 1 of article 1 of chapter 28 of the Session Laws of 1905, limited the lien to the building and improvements alone, when erected on land that is leased and unimproved. This statute is in some respects a limitation on the general law, and not an enlargement of its provisions, as contended by appellant.

Under the great weight of the adjudicated cases, this judgment should be affirmed, and it is so ordered. Costs taxed to appellant. All of the Justices concurring, except GILLETTE, J., who presided at the trial below, not sitting. and IRWIN, J., absent.

(19 Okl. 262)

ARKANSAS VALLEY & W. RY. CO. v.
WITT.

(Supreme Court of Oklahoma. Sept. 5, 1907.) 1. APPEAL-EXCEPTIONS-NECESSITY OF SPECIFIC EXCEPTION SCOPE OF GENERAL EXCEPTION.

A general exception to a refusal to submit to the jury a number of special interrogatories is insufficient if any one of them be improper. [Ed. Note.-For cases in point. see Cent. Dig. vol. 2, Appeal and Error, § 1622.] 2. APPEAL-EXCESSIVE VERDICT.

The verdict of a jury should not be set aside on the ground that it is excessive, unless it clearly appears that the jury have committed some gross and palpable error or have acted under some improper bias, influence, or prejudice, or have mistaken the rules of law stating the measure of damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error, $$ 3944-3947.] 3. EMINENT DOMAIN-DAMAGES EVIDENCE.

In determining the damages to private property caused by the exercise of the right of eminent domain for a right of way for railroad purposes, testimony showing the excavations. embankments, and obstructions to the natural flow of surface water necessarily caused by the construction of the road is properly admitted for the purpose of showing in what way and to what extent the remaining portion of the uncondemned tract has been damaged by reason of the construction of the road.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18. Eminent Domain, $ 255.] 4. SAME-DAMAGES.

Under the statutes of Oklahoma, damages in condemnation proceedings for railroad right of way purposes are not limited to the real estate taken and injured, but may be such damages as the owner actually sustains to either his

real or personal property by the appropriation of his land and by reason of such railroad.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 18. Eminent Domain, §§ 239–244.}

(Syllabus by the Court.)

Error from District Court, Pawnee County; before Justice Bayard T. Hainer.

Condemnation proceedings by the Arkansas Valley & Western Railway Company against James D. Witt. From the judgment, the railway company brings error. Affirmed.

Biddison & Eagleton, for plaintiff in error. Wrightsman & Diggs, for defendant in er

ror.

GARBER, J. Plaintiff in error is a railway corporation, and condemned for its right of way across defendant in error's land a strip containing 6.51 acres. The condemnation proceedings were in conformity with the requirements of the law, and the defendant in error properly appealed from the award made by the commissioners to the district court, where a trial by jury was had, and a verdict returned in favor of the defendant in the sum of $1,450, and, judgment being rendered thereon for that amount, plaintiff appeals to this court, and asks for a reversal of this case upon the ground that the judgment is excessive. The questions involved in the trial of the case were: First, the reasonable market value of the land taken for right of way purposes; and, second, the injury or damage done to the remaining portions of the land by reason of the construction of the railroad and the appropriation of the tract.

An examination of the record discloses that numerous witnesses for the defendant testified that the reasonable market value of the farm immediately prior to the construction of the right of way across the land was $4,000 to $4,500, and that the reasonable market value immediately thereafter was from $2,000 to $2,500, from which we conclude that the lowest estimated damage by defendant's witnesses was $1,500, or $50 in excess of the amount found by the jury. These witnesses were farmers living in the neighborhood and well qualified by their long experience as farmers, and by their familiarity with the location of the farm and the road, as shown by maps thereof, to estimate the damages to the land caused by the railroad.

The separation of pasture, improvements, and water facilities from their convenient connections, the inconvenience of crossing the railroad with farm machinery to farm separate tracts, the increased care and watchfulness necessary at all times while working in the immediate vicinity of the road with horses and farm machinery, the anxiety and uneasiness, the disturbance of that sense of safety and security to all members of the family while peacefully engaged in their different lines of production on different portions of the farm, were matters peculiarly within the knowledge of the

And

experienced farmers who testified relative to the reasonable market value of the land for farming purposes immediately before and after the construction of the road. these questions of fact were peculiarly within the province of the jury to determine in the light of all the evidence introduced at the trial of the case. We are not in sympathy with the growing assumption of appellate courts to set aside a verdict on the ground that it is excessive, when it has been approved by the trial court, unless it clearly appears that the verdict has been the result of prejudice or passion or grossly overestimated damages. The jurors and the trial judge having the advantage of observing and hearing the witnesses on the stand in direct and cross-examination, receiving their information at first hand, as a rule are in a better position to determine the question of fact than the appellate court, receiving its information from the record. It clearly ap pearing that the evidence in this case is sufficient to support the verdict and judgment, and that the amount represents a reasonable assessment of damages sustained, this court will not set the judgment aside upon the ground that it is excessive.

The second and third assignments of error challenge the admission of testimony and the instructions of the court. Over the objections of the defendant, the trial court admitted testimony showing excavations made in securing material for fills-in railroad parlance called "borrow pits"-and in throwing up embankments upon the defendant's land uncondemned; also, the admission of testimony showing the overflow of several acres of defendant's land caused by said embankments obstructing the natural flow of surface water. It is insisted that these are elements of damage which could not be considered by the jury in this action, but are separate causes of action which cannot be merged in a condemnation proceeding. Plaintiff in error insists that in condemnation proceedings the true rule is "that a party exercising the right of eminent domain is liable for all such damages, and only such damages, as may accrue to the landowner by reason of the taking of the land, the same to be used in any way that the condemning party acquires the right to use it, and this whether the condemning party actually does so use the land or not." Numerous authorities are cited in support of plaintiff's position, based in many instances upon the statutes and Constitutions of other states, which are not controlling here. In the case of Blincoe v. C. O. W. Ry. Co., 16 Okl. 286, 83 Pac. 903, Mr. Justice Gillette, in an able and exhaustive review of the authorities, many of which are cited here,, in the opinion of the court, said: "From these cases it will appear that there is no general rule governing the manner in which damages to private property, when taken for public use, are to be measured. Such measurements must depend upon

among which was G. R. I. & P. R. Co. v. Heisel, 47 Mich. 393, 11 N. W. 215, in the opinion of which the said court said: "It need hardly be said that nothing can be fairly termed compensation which does not put the party injured in as good a condition as he would have been in if the injury had not occurred. Nothing short of this is adequate compensation." And in Judd v. Hull Dock Co., 92 B. 443, it was held that: "Where the property taken was a brewery in operation, the damages included the necessary loss in finding another place of business." And they

"The following are cases where the damage done was, as in this case, distinct from the actual taking of property from the party injured"-citing a number of English cases. In Railway Company v. Teters, 68 Ill. 144, the court say: "The design of the law is to fully compensate a party for all injury he may sustain by reason of the appropriation of his land to the use of the road and which shall grow out of or be occasioned by its location and use at that place." In Omaha Southern Ry. Co. v. Todd, 39 Neb. 818, 58 N. W. 289, in the opinion, the court said: "The damages to which a landowner is entitled by reason of the construction of a railroad across his farm are: First, the actual value of the land taken at the time of the taking without diminution on account of any benefit of offset whatever; second, the depreciation in value of the remainder of the farm by the appropriation of a part thereof for railway purposes and the construction and permanent operation and occupation of the railroad thereon, excluding general benefits. In an inquiry whether and how much the part of the farm not taken for railroad right of way is depreciated in value by the appropriation of a part, evidence as to the size of the farm, the purpose for which it was used, the improvements thereon, and how located, the direction of the road crossing the farm, the cuts and fills made or to be made in the construction of the road, the width of the right of way, the height of embankments, the depth of ditches, the inconvenience in crossing the tract from one part of the farm to the other, the liability of stock being killed, the danger from fires from passing trains, are all facts competent for the jury's consideration in determining the depreciation in the value of the remainder of the farm." "Just compensation for land taken consists in making the owner good by an equivalent in money for the loss he actually sustains in the value of his property by being deprived of a portion of it. It includes not only the value of the land taken, but also the diminution in the value of that from which it is severed." Laflin v. Chicago W. & N. R. Co. (C. C.) 33 Fed. 415; Esch v. Chicago, M. & St. P. R. Co., 72 Wis. 229, 39 N. W. 129. In Fremont E. & N. V. R. Co. v. Meeker, 28 Neb. 94, 44 N. W. 79, the court say: "It is proper to consider, in estimating the damages for a right of way for a railway,

the manner in which the road cuts the land, the excavations and embankments, and the exposure of the property to particular injuries from the proximity of the road."

In this case the construction of the road was complete at the time of the trial in the district court, and evidence showing the actual existing condition was not subject to the objection of being uncertain, speculative, or remote, and was properly admitted by the court. In Lewis on Eminent Domain, § 482, it is said: "If the works are built before the assessment of damages is had, the damages should be assessed on the basis of the works as constructed, even if improperly constructed, for the condemner should not be allowed to assert its own wrong." And in section 496 the learned author says: "It would be difficult to enumerate the various elements of damages proper to be considered when a part of a tract is taken. The shape and size of the parcel or parcels which remain, the difficulty of access of communication between the different parts, inconvenience and disfigurement caused by the taking, and interference with the drainage of the land, or with the flow of surface water, or with the water supply, are recognized by all authorities as proper items to be taken into account in assessing the damages. Where a railroad is laid through a farm, it is proper to consider the expense in constructing necessary farm crossings, unless it is made the duty of the company to build such crossings; also, the danger to which the occupants of the farm and the stock thereon will be exposed so far as the same affects the value of the farm. Injury to grass from dirt washed from an embankment was held a proper item of damage." In Hayes v. Ottowa, Oswego & Fox River Valley R. R. Co., 54 Ill. 373, the court say, in estimating the damages and benefits to result from the construction and use of a railroad over land which has been condemned for that purpose under an act of 1852, the jury are not confined to the consideration of the state of facts as they existed at the time the land was taken, but may consider the subject in the light of the facts as they exist at the time of the trial. In St. Louis, O. H. & C. R. R. v. Fowler, 142 Mo. 670, 44 S. W. 771, the Supreme Court of Missouri say: "The damages and benefits to the remaining land after an appropriation of a railroad right of way should be estimated according to the condition of things and the rights of the parties as they exist at the trial." In Wichita & E. R. R. Co. v. Kuhn, 38 Kan. 104, 16 Pac. 75, the Supreme Court of Kansas say: "On an appeal from an assessment of damages done to a farm by reason of the appropriation of a right of way through it by a railroad company, and where it is shown at the time of the trial that the railroad is completed across the farm, it is then competent and proper to assume that the railroad was constructed as