This is a proceeding to condemn land for railroad purposes; and it appears in the case that, in the year 1868, the plaintiffs commenced a similar proceeding, for the purpose of condemning the particular tract in contest here and other lands, and obtained an order of Court allowing them to enter upon and retain the possession of said tract pending the proceedings, and duly filed a bond as required by the statute in such cases. It further appears that before the hearing in the present proceeding the former proceeding was dismissed as to this tract, and that “before the commencement of this proceeding” the plaintiffs had constructed upon the land a railroad track, at their own expense, of the value of two thousand two hundred and eleven dollars and twenty-four cents, without the consent of the owner of the land, from whom the present defendant purchased. It is not expressly stated that the track was built whilst the order made in the proceeding of 1868, authorizing the plaintiffs to enter upon and retain the possession, was in force; but we infer that such was the fact. Bor does it appear on what ground or for what reason the former proceeding was dismissed. The Commissioners in the present case assessed the value of the land, at the commencement of the action, at the sum of four hundred and three dollars and fifty cents, exclusive of the railroad track, which they estimate to be of the value of two thousand two hundred and eleven dollars and twenty-four cents. This being a portion of a larger tract, they estimate the damages to that portion not taken at one thousand one hundred and twelve dollars and fifty cents, and the benefits which accrued to the part not taken, “by *90the enhancement of the value thereof, in consequence of the construction of the said road (there being no special benefits), at the sum of one thousand one hundred and twelve dollars and fifty cents.” The Court below held that the value of the said road track, constructed by the plaintiffs, ought not to be estimated as a part of the value of the land taken, and excluded it from the computation, and also held that the benefits to the land not taken should be set off against the damages thereto. These rulings constitute the grounds of error relied upon on this appeal.

The argument on behalf of the defendant on the first point is, that the plaintiffs, in constructing the railroad track, were trespassers, and that the track, being attached to the soil, became a part of the realty, and belonged to the owner of the land. Hence he claims that its value ought to be included in the estimate of damages, in like manner as though the defendant had himself built the road. But this proposition cannot be maintained. Neither the Constitution nor the statute contemplates that a person, whose land is taken in the exercise of the right of eminent domain, shall be entitled to anything beyond a “just compensation.” He is to be paid the damage he actually suffers, and nothing more. But, to hold that, in addition to the fair value of the land taken, and such other damages as he may suffer by severing it from the remainder of his tract, he shall also recover the value of a railroad track, in the construction of which he never expended a dollar, and which was built by the plaintiffs at their own expense, would be to defeat the obvious intent of the statute by an over-technical construction of it. On the second point the proposition is, that it appears from the report of the Commissioners that there were no special benefits to the land not taken resulting from the construction of the said road; though they also find that it will thereby be enhanced in value in the sum of one thousand one hundred and twelve dollars and fifty cents. From this the defendant’s *91counsel deduce the argument that, inasmuch as this land will only be benefited with other contiguous lands, and will receive no benefit peculiar to itself, it does not come within the rule which requires benefits to be set off against damages. In other words, they insist that the benefit must be special and peculiar to the particular tract—something different from, and in excess of, the benefits resulting to other adjoining lands. But there is no valid reason for this distinction. The theory of the statute is, that the land owner shall receive a fair, just compensation for the damage he suffers, and if that portion of his tract which is not taken will be enhanced in value by the construction of a railroad, his damages will be diminished to the extent of the enhancement, and hence the statute contemplates that by deducting this benefit from the damages, the sum which remains will constitute a “just compensation” in the sense of the Constitution. This was the view of the question announced in the case of the San Francisco, Alameda, and Stockton Railroad Company v. Caldwell, 31 Cal. 367, which is decisive of this point.

Judgment affirmed.

I dissent from the conclusion announced on the first proposition.