great and valuable check upon the exercise of legislative power, by declaring that private property should not be taken for public use without just compensation. A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the lawgiver to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence is founded on natural equity, and is laid down by jurists as an acknowledged principle of universal law. (ƒ)

(f) Grotius, De Jure, B. & P. b. 3, ch. 19, sec. 7; ch. 20, sec. 7. Puff. De Jure Nat. et Gent. b. 8, ch. 5, sec. 3, 7. Bynk. Quæst. Jur. Pub. b. 2, ch. 15. Vattel, b. 1, ch. 20, sec. 244. Heinecc. Elem. Jur. et Nat. b. 2, ch. 8, sec. 170. The better opinion is, that the compensation, or offer of it, must precede or be concurrent with the seizure and entry upon private property under the authority of the state. The government is bound, in such cases, to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may and ought to be restrained by injunction. The process of injunction was granted by the court of chancery in Gardner v. Village of Newburgh, and it was also sustained by the Supreme Court of Louisiana in a like case. 2 Johns. Ch. 162. Henderson v. Mayor, &c. of New Orleans, 5 Louis. Ann. 416. The Civil Code of Louisiana, art. 489, had declared that there must be the previous indemnity, and so did the Code Napoleon, art. 545, and the constitutional charter of Louis XVIII. The provision in our American Constitutions is essentially the same, though not in the same words precisely, and it would seem to require the same construction. Several of them declare that private property shall not be taken for public use without full compensation being made. The settled and fundamental doctrine is, that government has no right to take private property for public purposes without giving a just compensation; and it seems to be necessarily implied, that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception concurrently in point of time with the actual exercise of the right of eminent domain. This point was ably discussed in Thompson v. Grand Gulf R. R. and Banking Company, 3 Howard (Miss.) 240, and the decision was, that the compensation must precede the seizure of private property for public uses. This was also the opinion of Chancellor Walworth, of New York, in Lyon v. Jerome, 26 Wendell, 497. But it is not to be understood that a statute assuming private property for public purposes, without compensation, is absolutely void, so as to render all persons acting in execution of it trespassers. Some of the judicial dicta seem to go that length, but others do not. 12 Serg. & Rawle, 366, 372. 20 Johns. 745. In Case v. Thompson, 6 Wendell, 634, it was held that neither the payment nor the assessment need precede the opening of a road over the land of an individual. The compensation may have been provided for without constituting part and parcel of the Act itself, and I think the more reasonable and practical construction to be, that the statute would be primâ facie, good and binding, and sufficient to justify acts done under it, until a party was restrained by judicial process, founded on the paramount authority of the constitution.7

7 A statute, enacting that, unless compensation be claimed within a year, the lands shall vest in the state, without payment of damages, is valid, and under it the state takes a fee;

* It undoubtedly must rest, as a general rule, in the wis- * 340 dom of the legislature, to determine when public uses re

In Bonaparte v. C. & A. Railroad Co. 1 Bald. C. C. U. S. 205, it was held that a law taking private property for public use, without providing for compensation, was not void, for it may be done by a subsequent law. But the execution of the law will be enjoined until the provision be made, and the payment ought to be simultaneous with the actual appropriation of the property. It is admitted that even a statute franchise, as a tollbridge or road, must yield to the sovereign right of eminent domain, and may be impaired or taken away, and appropriated to public uses whenever the public exigencies require it, for a franchise is fixed and determined property; but it must be on the condition of making just compensation to the proprietors. Even if the damage be merely consequential or indirect, as by the creation of a new and rival franchise in a case required by public necessities, the same compensation is due, and the cases of Thurston v. Hancock, 12 Mass. 220, and Callender v. Marsh, 1 Pick. 418, are erroneous, so far as they contravene such a palpably clear and just doctrine.9 If A be the owner of a mill, and the legislature authorize a diversion of the watercourse which supplies it, whereby the mill is injured or ruined, is not that a consequential damage to be paid for? The solid principle is too deeply rooted in law and justice to be shaken. Gardner v. Village of Newburgh, 2 Johns. Ch. 162. Story J., in Charles River Bridge v. Warren Bridge, 11 Peters U. S. 638, 641. The just compensation to the owner for taking his property for public uses, without his consent, means the actual value of the property in money, without any deduction for estimated profit or advantages accruing to the owner from the public use of his property. Speculative advantages or disadvantages, independent of the intrinsic value of the property from the improvement, are a matter of set-off against each other, and do not affect the dry claim for the intrinsic value of the property taken.10 Jacob v. City of Louisville, 9 Dana, 114. In Symonds v. City of Cincinnati, 14 Ohio, 147, it was adjudged that it was a competent matter of defence in a suit for compensation for the value of private property taken for public use, to show the increased benefit conferred on the owner by the appropriation, as a set-off against the value of the property taken. The case was ably discussed, and Mr. Justice Read, who dissented from the decision, contended that the owner was entitled to the value of his property taken without the deduction of any reflecting advantage.11 In Railroad Company v. Davis, 2 Dev. & Batt.

not an easement determinable when the land ceases to be used for the purposes for which it was taken. Rexford v. Knight, 1 Kernan, 308. If compensation has been provided for, but not made, and afterwards the act of the legislature taking the property is repealed, the repeal avoids all proceedings under the first Act, and no compensation can be claimed. Hampton v. Commonwealth, 19 Penn. 329. And as to the right to seize and enter upon private property under the authority of the state, before making compensation, see Nichols v. R. R. Co. 43 Maine, 356, and Walther v. Warner, 25 Mis. (4 Jones) 277. San Francisco v. Scott, 4 Cal.

114.

Bridge Co. v. Clarksville, 1 Sneed (Tenn.) 176.

• Glover v. Powell, 2 Stockt. (N. J.) 211.

10 See Rogers v. R. R. Co. 35 Maine, 319; State v. Miller, 3 Zabr. 383; People v. Mayor of Brooklyn, 6 Barb. (N. Y.) 209; Hatch v. R. R. 25 Vermont, 49; Moale v. Baltimore, 5 Md. 314. But see, also, People v. Mayor, &c., 4 Comst. 419; Livermore v. Jamaica, 23 Vermont, 361; Rexford v. Knight, 15 Barb. (N. Y.) 627; R. R. v. Doughty, 2 Zabr. 495; Powers v. Armstrong, 19 Geo. 427.

11 But see McMicken v. Cincinnati, 4 Ohio (N. S.) 394. To the same effect as Symonds v.

quire the assumption of private property; but if they should take it for a purpose not of a public nature, as if the legislature should

(N. C.) 451, it was held that payment of the compensation and the assessment of the quantum might be made subsequently, and need not necessarily precede the entry and possession under the statute authority; and that the legislature was not restricted to a mere easement in the property, but might take the entire interest of the individual, if it deemed the public exigency to require it; and that though a railroad company be a private corporation, and its outlays and emoluments private property, yet the road is a public highway and for public uses, and the absolute property may be vested in the company. The questions in that case were ably discussed in the opinion delivered by C. J. Ruffin; and if the doctrine of the court should be deemed rather latitudinary in respect to the legislative right of eminent domain, it is to be observed that the constitution of North Carolina has no express provision declaring that "private property shall not be taken for public uses without just compensation." But though it be not a constitutional principle, yet the principle exists with stringent force, independent of any positive provision.

There is no such provision in the constitution of South Carolina; and it was accordingly held, after an able discussion, that the legislature had a right to cause roads to be opened, and materials taken for keeping them in repair, without the consent of the owner of the private property, and without making compensation. Several of the judges were not satisfied with the decision, as respected the absence of compensation, and especially in the delegation of such power to the commissioners of roads. The opinion of Mr. Justice Richardson, in support of the duty of making compensation, was very elaborate and powerful. The State v. Dawson, 3 Hill, 100.

In ancient Rome, such respect was paid to the rights of private property, that a scheme of the censors, B. C. 179, to supply the city with water by means of an aqueduct, was defeated by the refusal of a proprietor to let it be carried through his lands; and, at a subsequent period, the senate decreed that it should be lawful to take from the adjoining lands of individuals the materials requisite for the repairs of aqueducts, upon an estimate of the value or damages to be made by good men, and doing, at the same time, the least possible injury to the owners. When a private house was injured by a public road or aqueduct, the Emperor Tiberius paid the damage, on petition by the party to the senate. Tacit. Ann. b. 1, § 75. So, in London, by an Act of Parliament, as early as 1544, the corporation of the city was invested with the power to enter upon and appropriate private property requisite for the purpose of supplying the city with water; but the ground needed was to be appraised by three or four different persons appointed by the lord chancellor, and to be paid for within one month after possession taken. See King's Memoir on the Croton Aqueduct, with a learned and very interesting Preliminary Essay, pp. 25, 27, 51.

The exercise of the legislative power of eminent domain was learnedly discussed in the case of Bloodgood v. M. & H. Railroad Company, 14 Wendell, 51. S. C. 18 Ibid. 1, 59; and it was held by the court, in the last resort on error, that the legislature might authorize railroad companies to enter upon and appropriate private property in land for the use of the road, so far as it became indispensably necessary for the purpose of the road; provided, provision be made in the Act for the assessment and payment to the

City of Cincinnati, is Newby v. Platte County, 25 Mis. (4 Jones) 258. Railroad Co. v. Simpson, 5 Ohio (N. S.) 250. Kramer v. R. R. Co. 5 Ohio (N. S.) 140.

take the property of A and give it to B, or if they should vacate a grant of property, or of a franchise, under the pretext of some

owner of the damages incurred. If the provision was made, it was held to be sufficient, and that the damages need not be actually ascertained and paid previous to the entry and appropriation of the property. See, also, Fletcher v. The Auburn & Sy. R. R. 25 Wendell, 462, 464.12 This is the construction given to English statutes in like cases, and frequently, as Lord Denman observed, the amount of compensation cannot be ascertained until the work is done. Lister v. Lobley, 7 Adol. & El. 124. But in Doe v. Georgia R. R. & B. Com. 1 Kelly, 624, it was held, that the title to the property assumed for the road did not pass from the original owner until the prescribed compensation was actually made. And in some of the Railway Acts in England, the company is prohibited from entering on the land without consent, until the ascertained compensation is paid or tendered. So in Mississippi, the damages for land taken for a railroad must first be paid, before the right to the use of it becomes vested. Stewart v. R. R. Company, 7 Smedes & Marsh. 568. It rests with the legislature to judge of the cases which require the operation of the right of eminent domain, and it may be applied to the case of roads, turnpikes, railways, canals, ferries, bridges, &c., provided there be, in the assumption of the property, evident utility and reasonable accommodation as respects the public.18 Cottrill v. Myrick, 3 Fairf. 222. Dyer v. The Tuscaloosa Bridge Company, 2 Porter, 296. Harding v. Goodlett, 3 Yerger, 41. Chancellor Walworth, in 18 Wendell, 14, 15. The Supreme Court of Massachusetts, in Boston Water Power Co. v. Boston and Worcester Railroad Co., January, 1840, 23 Pick. 360, held, that the right of eminent domain might be exercised in the cases of franchise as well as of personal property, in proper cases, and on making due compensation. There is no doubt of it. Property in a franchise is not more sacred than private property in land under a patent, and the principle was declared in the case of Bonaparte, above mentioned. The doctrine of the cases in 14 and 18 Wendell appears to settle the principle of constitutional law upon a reasonable and practicable foundation. See, also, the strong and clear case of the Louisville C. & C. Railroad Co. v. Chappell, Rice (S. C.) 383, and of Backus v. Lebanon, 11 N. Hamp. 19, to the same point. But a statute incorporating a company to take private property without consent of the owner, for the construction of a bridge, and making no provision for his indemnity, is unconstitutional and void. Thatcher v. Dartmouth Bridge Co. 18 Pick. 501, and in the case of Sinnickson v. Johnsons, 2 Har. (N. J.) 129, the erection of a dam across a navigable water by an individual, under the authority of a statute providing no remedy to the owner of a meadow overflowed by

12 Smith v. Helmer, 7 Barb. (N. Y.) 416. As to the law in Indiana, see R. R. Co. v. Connelly, 7 Ind. 32.

13 Swan v. Williams, 2 Gibbs, 427. Heyward v. Mayor, &c., 3 Seld. 314. Hartwell v. Armstrong, 19 Barb. (N. Y.) 166. But it was held, in this case, that, to assess the expenses of draining swamps among the owners thereof, and to include among those expenses the damages paid for taking the land required, was not a fair provision for compensation for the latter. See, also, Moale v. Baltimore, 5 Md. 314. A general railroad law, allowing any number of persons, not less than twenty-five, to form a railroad company, and take lands for railroad purposes, on providing compensation, was held to be a proper exercise of the right of eminent domain. R. R. Co. v. Brainard, 5 Seld. 100. And the legislature may authorize a foreign corporation to take land in this state, belonging to citizens of this state, for the purpose of constructing a work of public improvement. Morris Canal & Banking Co. v. Townsend, 24 Barb. (N. Y.) 658.

public use or service, such cases would be gross abuses of their discretion, and fraudulent attacks on private right, and the law would be clearly unconstitutional and void. (a)1 Real property,

means of the dam, was held to be an injury for which the owner had his remedy by action for damages. 14 And in Taylor v. Porter, 4 Hill, 140, it was held, that the private property could not be taken, nor a private road established for private use, not even by a legislative Act, without the consent of the owner, and that any statute doing it was unconstitutional. It can only be taken by statute for public uses, and not even then without just compensation to the owner. C. J. Nelson dissented, on the ground that the laying out private roads over the lands of others, to accommodate one or more individuals, and without the consent of the owner, was within the right of eminent domain, and justified by that principle and by immemorial usage. I apprehend that the decision of the court was founded on just principles, and that taking private property for private uses, without the consent of the owner, is an abuse of the right of eminent domain, and contrary to fundamental and constitutional doctrine in the English and American law,15 See ante, p. 13, and note b, Ibid., and the cases supra in this note, and see the subsequent note a. The revised constitution of New York, of 1846, has settled this question differently, for it declares that private roads may be opened in the manner to be prescribed by law, but the person to be benefited must first pay the damages to be assessed. Art. 1, § 7.16

The principle of not taking private property for public uses, without due compensation to the owner, has become an acknowledged one in the Scotch law, and is to be found in the British statute of 1 & 2 Wm. IV. c. 43, relative to roads and highways. Bell's Principles of the Law of Scotland, pp. 173, 174.

(a) Wilkinson v. Leland, 2 Peters U. S. 653. Harding v. Goodlett, 3 Yerger, 41.

14 The legislature cannot, by declaring a river navigable which is not so, deprive the riparian proprietors of the use of the water for hydraulic purposes, without rendering them compensation. Walker v. The Board of Public Works, 16 Ohio, 540. So if the state make a river actually navigable which was not so before, the riparian owner is entitled to damages. Morgan v. King, 18 Barb. (N. Y.) 277. And in Wisconsin it has been held, that Acts authorizing the flowing of lands of others, by the erection of mill-dams, are constitutional, if they provide due compensation therefor, such flowing being a taking for public use. Thien v. Voegtlander, 3 Wis. 461.

15 So declared in Embury v. Conner, 3 Comst. 511. But the party whose property is taken may, even by parol acts and declarations, renounce the constitutional provisions in his favor, and the property will pass, notwithstanding the statute of frauds. See Bumpus v. Miller, 4 Mich. 159.

16 If, in grading a public highway a hill be cut down, or an embankment raised adjacent to the premises of a citizen, whereby he suffers inconvenience, it is damnum absque injuria; and the same rule applies where a corporation succeeds to the rights of the public. Benedict v. Goit, 3 Barb. (N. Y.) 459. Graves v. Otis, 2 Hill (N. Y.) 466. 1 Pick. 418. Radcliff v. The Mayor, 4 Comst. 195. But if injury result from want of proper care, the corporation is liable in damages. Lawrence v. Gt. North R. Co. 16 Ad. & Ell. (N. S.) 643. The law authorizing a municipal corporation to grade and improve streets, at the expense of the owners of lands benefited by the improvement, is valid, and within the legitimate exercise of the power of taxation. People v. The Mayor, 4 Comst. 419.

1 See, also, Gilmer v. Lime Point, 18 Cal. 229. Powers v. Bears, 12 Wis. 213. Carron v. Coleman, 3 Stockt. Ch. 106. McAulay v. West, 33 Vermont, 311. Johnson v. Alameda Co. 14 Cal. 106. Bensley v. Mountain L. W. Co. 13 Cal. 306. In Wager v. Troy Union R. Co. 25 N. Y.