Eminent domain — Taking for interceptor sewer — Damages — Setoff — Special benefit to property owner.
1. In this eminent domain proceeding in which it appeared that plaintiff owned approximately 32 acres of land which was intersected by a creek which divided the property into two areas; that the defendant city appropriated the creek area consisting of about 3 1/3 acres for an interceptor sewer; that it was agreed that the highest and best use of the plaintiff's land was for building developments, and there was testimony that this property was the only property in the neighborhood that could tie in to the interceptor sewer at any time the owner wished and did not have to tie in through the medium of branch sewers legally opened in city streets, it was Held that (1) this evidence was sufficient to warrant the court's instruction that the jury could find a benefit to plaintiff's land, derived from the sewer, over and above that in common or alike with other land in the neighborhood or vicinity, and could deduct that amount from their award and (2) the jury had properly found a verdict for the defendant.
2. While the measure of damages occasioned by a taking of land in eminent domain proceedings is the difference in market value of the whole tract, of which the land taken is a part, before the taking and the market value of the land remaining after the taking, as affected by the taking, nevertheless there may be set off as against any diminished value such special benefits as accrue to the landowner by reason of the taking and which are distinct from any general benefits to the property in the neighborhood.
Mr. Justice EAGEN dissented.
OPINION PER CURIAM, January 17, 1962:
Judgment affirmed on opinion of Judge KELLEY of the court below.
Mr. Justice EAGEN dissents.