The opinion
BiCHARDSON, Judge.
I concur in the reversal of this judgment because it does not appear, from any part of the record, what portion of the defendant’s land the plaintiff proposed to' take and occupy for its road. The survey is not made a part of the petition, and is not referred to in the judgment; and, as it does not appear where it is filed, it can not connect itself with the proceedings so as to identify the land sought to be taken. The commissioners may have estimated the damages in reference to a particular location of the road through the defendant’s land, and reported no injury; whereas, if af-terwards the plaintiff should adopt a different route than that examined by the commissioners, the defendant might suffer great loss, which he could not avert by the judgment of condemnation; for it fails to show the line of the road in reference to which the estimate was made. ■
But I am not satisfied with the rule which the majority of' the court have laid down in reference to the computation of benefits to be set off against the damages for the right of way. I do not think the point is decided in Newby v. Platte County. (See ante, p. 258.) The learned judge who delivered the opinion in that case mentions the rule adopted in ’ Massachusetts, and suggests that the legislature seems to have recognized the principle in the St. Louis charter; but he *539 does not give bis own opinion, and the question was left open. I have always supposed that the constitutional provision, that “ no private property ought to be taken or applied to public use without just compensation,” only meant that the person whose property is taken for a public work should be indemnified against loss, and that it was only intended to secure redress for any damage that might result from the exercise of the right of eminent domain. Compensation is an equivalent for property taken or for an injury done to another ; and the spirit of the term “just compensation” is preserved when the person whose property is taken is made whole. If the owner is benefited more than he is injured, it can not be said that he has sustained a loss or that he has not received a “just compensation.” The constitution does not determine how the equivalent shall be made; but it seems to me that it does not contemplate the payment of damages to an owner for the privilege of running a road through his land, when the enhanced value given to the-land is greater than any injury it sustains; and any appreciable advantage accruing to the property ought to be taken into the account in appraising the damage.
If a railroad is made through a tract of land of one thousand acres, worth five dollars per acre, situated in a large prairie remote from fuel, timber or market, and ten acres of the land, worth fifty dollars, are taken for the road, but the direct and certain consequence of the location of the road is to enhance the value of the whole tract ten dollars per acre, it could hardly be said that the owner was damaged, or that he should be paid a premium for having a market and other conveniences brought to his door. And though his neighbor, whose lands are not touched, may also be benefited by the construction of the road, his gain is none the less, and he can not complain that the enhancement is not local and peculiar to him alone. The material question is whether the property, in reference to the value of the whole tract, is benefited or injured.
This view of the subject is maintained with much ability *540 by the courts of several of our sister states. (Greenville & Columbia R. R. Co. v. Porltow, 5 Rich. 428 ; 8 Penn. 441; Alton & Sang. R. R. Co. v. Carpenter, 14 Ill. 190 ; Pierce on Am. R. R. Law, 206.)