Appeal from the District Court of the Seventh Judicial District, County of Solano.

The plaintiff was a corporation organized to construct a railroad from the Straits of Carquinez, below Vallejo, in the County of Solano, to Sacramento and Marysville. In 1868 the plaintiff commenced proceedings to condemn land for its track in Solano County, in which a large number of land owners were defendants, and among the number, John and Aphonia Adamson, the then owners of the tract of land belonging to the defendant when the present proceedings were commenced. For some reason, the Adamsons were not served with process, and a judgment was entered in said proceedings as to the other lands, but none as to the land of the Adamsons, who afterwards sold to the defendant here. Before the commencement of this action, the former action was dismissed as to the Adamsons. Prior to the commencement of this proceeding, the plaintiff, without the consent of the Adamsons, laid its track across the land, and the Adam-sons afterwards sold to this defendant. This action was commenced October 15th, 1870. The amount of land sought to be taken, was eight and seven one hundredths acres. The Commissioners appointed to assess damages and benefits, assessed the value of the land taken in 1868, when the railroad track was constructed, at thirty dollars per acre, and its value, October 15th, 1870, when this action was commenced, at fifty dollars per acre.

They also assessed the damages which that portion of the tract not taken sustained in 1868 by its severance from the part taken, at six hundred and sixty-seven dollars and fifty cents, and the benefits which accrued at the same time to that part of the tract not taken in consequence of the construction of the road, at the same sum. They made a like assessment of damages and benefits at the time this action was commenced, fixing each at one thousand one hundred and twelve dollars and fifty cents. They found that the benefits to the land not taken were merely its enhanced value, and that the contiguous lands were enhanced in value in the same way. They also found that the railroad track, when constructed in 1868, was imbedded in the soil, and the value of the superstructure constituting the track was two thousand two hundred and eleven dollars and twenty-four cents.

The Court below held that the defendant was entitled, to the value of his land taken at the time this action was commenced, but that in estimating its value, the worth of the improvements put on by the railroad company could not be included.

The defendant asked the Court below to strike out the assessment of benefits to the land not taken, because they were not peculiar to the defendant’s land, and to allow the defendant the value of the railroad track as a part of the value of his land taken.

The defendant appealed.