and allow the same to be occupied by the railroad company, where it will enable a better street crossing to be constructed. Bigler's Ex'r v. Penn. Canal Co., 177 Pa. St. 28 (35 Atl. Rep. 112). Pa. Stat. Acts 1874, p. 45, and Acts 1893, p. 157, relative to the passage of ordinances altering streets, construed and applied. Barr v. City of New Brunswick, 58 N. J. L. 255 (33 Atl. Rep. 477).

Sec. 240. Irregularities may be waived. It is held that "where an irregularity has been committed, a party knowing of it, who consents to a proceeding which he might have prevented by resisting it on that account, waives thereby all exception to such irregularity. And it matters not that the irregularity is the failure to observe or perform a statutory requirement, for a statutory, or even a constitutional, provision may be waived by one entitled to the benefit of its observance or performance." In re Washington St., 19 R. I. 156 (33 Atl. Rep. 516). Citing, Tingley v. City of Providence, 9 R. I. 388, 389; Patton v. Manufacturing Co., 11 R. I. 188, 189; Rogers v. Cruger, 7 Johns 611; Lewis Em. Dom., § 531; Cooley, Const. Lim. 214; Huntress v. Effingham, 17 N. H. 585; Stevens v. Goffstown, 21 N. H. 454; Embury v. Conner, 3 N. Y. 511 (53 Am. Dec. 325); Lee v. Tillotson, 24 Wend. 337 (35 Am. Dec. 624); In re Cooper, 93 N. Y. 507.

Sec. 241. Deposit of money-Equitable rights. In Illinois it is held by a divided court, that money deposited with the court by the condemning party will be returned where, upon appeal by the landowner, the entire condemnation proceedings are determined to be void, notwithstanding the fact that the condemning party has entered upon the land and damaged the same acting under such void proceedings. The decision is put upon the ground that as the condemnation proceedings were void, the money should be returned to its rightful owner and the injured party should be remanded to his action for damages, it not appearing that this would not afford full and adequate relief. In a very able dissenting opinion it is urged that the proceeding to have the money returned to the condemning party is an equitable one and that

he who seeks equity must do equity and where equity obtains jurisdiction for one party it will retain it for all. Ligare v. Chicago, M. & N. Ry. Co., 160 Ill. 530 (43 N. E. Rep. 734).

Sec. 242. Practice where ownership may be in dispute. Where the charter of a city relating to the condemnation of land for public purposes provides that before payment of the award to the landowner he shall furnish an abstract of title showing his right thereto, and on his failure so to do, the city council shall pay the award to the city treasurer for the owner, or in case the city attorney shall certify that the title is doubtful, the award shall be paid to the district court for such persons as show themselves entitled to such award, it is held that these provisions of the charter are valid and that in an action against the city to recover the amount of the award the complaint must show a compliance with them on the part of the plaintiff or some reason for not so doing. Coles v. City of Stillwater, 64 Minn. 105 (66 N. W. Rep. 138). In an action to recover an award made in condemnation proceedings one who claims to have been the owner of the property taken, or of part of it, may come in as a party to the action and assert his claim to the award. Smith v. City of St. Paul, 65 Minn. 295 (68 N. W. Rep. 32). Where proceedings to condemn lands for a right-of-way for a railroad have been conducted in strict conformance with the Kansas statute and the person adjudged to be the owner by the condemnation commissioners receives the damages deposited and no appeal is taken within the time prescribed, such proceedings are conclusive upon one for whose benefit the person adjudged to be the owner held the title in trust. Kansas & C. P. Ry. Co. v. Phipps, 4 Kan. App. 252 (45 Pac. Rep. 926). In condemnation proceedings, plaintiff cannot raise the issue of defendant's title for the first time, after the question of damages has been submitted to the jury. Bellingham Bay & B. C. R. Co. v. Strand, 14 Wash. St. 144 (44 Pac. Rep. 140).

Sec. 243.

Measure of damages-General principles. The measure of damages for land taken for the right of way for a railroad is the market value of the land taken at the time

of the entry and the damages to the remainder of the tract. Ry. Co. v. Yount,

Colo. App.

Greeley, S. L. & P. (42 Pac. Rep. 1023). As a general rule the measure of damages is the difference in the market value of the property entered, before the entry was made and afterwards. Struth*ers v. Philadelphia & D. C. R. Co., 174 Pa. St. 291 (34 Atl. Rep. 443). In determining what is contiguous lands, no regard will be given to mere geographical lines or the lines of a plat where no physical obstruction, such as a street, intervenes between the land taken and that which is claimed to be contiguous. Metropolitan W. S. El. R. R. v. Johnson, 159 Ill. 434 (42 N. E. Rep. 871). In condemnation proceedings all damages present or prospective which are the natural, necessary and reasonable incident of the improvement and not such as may result from negligent acts, should be assessed in the one proceeding. Orth v. Milwaukee, 92 Wis. 230 (65 N. W. Rep. 1029). Damages must be estimated as of the time of the appropriation and must not be determined by prospective or possible conditions depending upon future individual or municipal action. Walker v. South Chester R. Co., 174 Pa. St. 288 (34 Atl. Rep. 560). In proceedings to condemn real estate for right of way, it is not proper to include in the damages the value of personal property taken, unless it was for materials used in the construction of the road, nor loss of profits by reason of the enforced change of the location of business of the land owner, nor interest on the damages because of lapse of time since the taking of the property. Becker v. Philadelphia & R. T. R. Co., 177 Pa. St. 252 (35 Atl. Rep. 617; 35 L. R. A. 583). Where a riparian owner has been injured by the appropriation and withdrawal of his water supply, his measure of damages is the depreciation of the property affected by the taking. Leev. Springfield Water Co., 176 Pa. St. 223 (35 Atl. Rep. 184); Lewis v. Springfield Water Co., 176 Pa. St. 230 (35 Atl. Rep. 186); Lewis v. Springfield Water Co., 176 Pa. St. 237 (35 Atl. Rep. 187).

Sec. 244. Market value as a test. In a proceeding for the assessment of damages for the taking of land for a public street, it is error to limit the consideration of values

exclusively to that of market values. Value of improvements already made by the landowner and expense of other improvements occasioned by the taking are to be considered as elements of damage. Beale v. Boston, 166 Mass. 53 (43 N. E. Rep. 1029). The court say: "Market value is not a universal test, and cases often arise where some other mode of ascer* taining value must be resorted to." Citing, May v. City of Boston, 158 Mass. 21, 29 (32 N. E. Rep. 902); Boston & A. R. Co. v. City of Cambridge, 159 Mass. 283 (34 N. E. Rep. 382); Handforth v. Maynard, 154 Mass. 414 (28 N. E. Rep. 348); Mather v. Express Co., 138 Mass. 55 (52 Am. Rep. 258); Green v. Railroad Co., 128 Mass. 221; Murray v. Stanton, 99 Mass. 345; Stickney v. Allen, 10 Gray 352; Boom Co. v. Patterson, 98 U. S. 403, 408; Town of Troy v. Cheshire R. Co., 23 N. H. 83 (55 Am. Dec. 177); 1 Suth, Dam., § 52; Suth. Dam., § 1064; Reed's Petition, 13 N. H. 381.

Sec. 245. Measure of damages-Particular cases. Where a bridge owned by a corporation is condemned by a county for highway purposes, the measure of damages is the value of the substructure, superstructure and approaches together with the franchise or right to take toll. Clarion Turnpike & B. Co. v. Clarion Co., 172 Pa. St. 243 (33 Atl. Rep. 580). Where a street is opened at a grade, which leaves. the adjoining property in a depression, the expense of putting the property in condition to make use of the street is one of the elements of damage and it is proper to treat it as a part of the case for damages for the taking. Patton v. Philadelphia, 175 Pa. St. 88 (34 Atl. Rep. 344). Where a city has acquired title to real estate upon which there is situated buildings belonging to a party who has the right to remove the same within a specified time and who having failed to remove them within the time, collects the insurance therefor, upon their being destroyed by fire after the expiration of his right, the city cannot be held liable for the buildings on the ground that they were included in its appropriation of the land. Emerson v. City of Somerville, 166 Mass. 115 (44 N. E. Rep. 110). Where, in a proceeding for the condemnation of land, the court instructs the jury that the owners are entitled to the full

value of the land at the time of the taking and that in estimating such value the jury may take into consideration the capabilities of the land and all the uses and purposes to which it was then adapted or might be applied, it was not error for the court to add among such uses and purposes that the jury should consider "whatever value the land had in its then condition for the purposes of a public park." Tecle v. City of Boston, 165 Mass. 88 (42 N. E. Rep. 506). For cases depending upon particular facts and illustrating the measure of damages in condemnation proceedings, see Union Ele. Co. v. Kansas City Sub. Belt Ry. Co., 135 Mo. 353 (33 S. W. Rep. 926; 36 S. W. Rep. 1071); Metropolitan West Side Ele. R. Co. v. Siegel, 161 Ill. 638 (44 N. E. Rep. 276).

Sec. 246. Measure of damages-Construction of statutes. A provision (Miss. Acts 1882, p. 921) in the charter of a railroad company to the effect that the value of land condemned for its use shall be determined as if the road had not been built is held to govern in the condemnation of the right of way made several years after the original entry thereon and the construction of the road. Louisville, N. O. & T. Ry. Co. v. Hopson, 73 Miss. 773 (19 So. Rep. 718). The Mississippi constitution, § 238, excludes compensation for damages accruing to land "because of its being left outside the levee." This is held not to apply where the damage is caused by the construction of the levee. Duncan v. Board of Levee Com'rs, 74 Miss. 125 (20 So. Rep. 838). R. I. Stat. Pub. Laws, ch. 285, § 5, and ch. 1201, construed and applied— as to what determines the time of the taking as affecting the measure of damages. In re Condemnation of Certain Land for New State House, 19 R. I. 382 (33 Atl. Rep. 523).

Sec. 247. Measure of damages-ImprovementsBenefits. Value of improvements placed on land by plaintiff in condemnation proceedings, held, under evidence, should not be included in the award of damages. Bellingham Bay & B. C. R Co. v. Strand et al., 14 Wash. St. 144 (44 Pac. Rep. 140). The enhancement of value occasioned by the improvement should not be included in the damages awarded to the landowner. In re Condemnation of Certain Land for