common preservation to take any person's property, or to demand his particular services, full compensation shall be made for the same." The language of the federal constitution is," Nor shall private property be taken for public use without just compensation." The language of our first State constitution is, "Private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner." The language of our new constitution is, "Private property shall ever be held inviolate, but subservient to the public

missioners concurred in the award. Held, that a toll-bridge is a public use, for which private property may be taken; and that the award of the majority of the commissioners is sufficient. A State cannot, in the exercise of the right of eminent domain, authorize the taking of property for a private use. Nesbit . Trumbo, 39 Ill. 110; Tide Water Co. v. Coster, 3 Green (N. J.), 518. The legislature is the sole judge as to whether the exigency for the property for a public use exists, but are not sole judge of what is a public use on this last point the court will review their decision. Tyler v. Beacher, 44 Vt. 649; Talbot v. Hudson, 82 Mass. 417; Memphis Freight Co v. Memphis, 4 Cold. 419. Ground cannot be taken under this form for a private road. Osborn e. Hart, 24 Wis. 89; Bankhead r. Brown, 25 Iowa, 540; Crear v. Crossley, 40 Ill. 175. A city may be authorized to take the entire fee of a district of low land for the public health, fill it up, and sell it out again. Dingley v. Boston, 100 Mass. 554.

Since this note was written, many changes have taken place besides those made by the constitution. In this State, the exclusive jurisdiction is committed to the probate court, with a jury of twelve. This constitutional provision for the payment for land taken for public purposes does not execute itself. A law authorizing the appropriation of land, which does not provide a mode of assessing the value, is inoperative. Lamb v. Lane, 4 Ohio St. 167; Watson's Ex'rs v. Trustees Pleasant Tp. 21 Ohio St. 667. Notice may be given by publication to non-resident land-owners, if the law so provide, and in such case a failure to claim within a limited time may be declared a waiver of claim. Cupp v. Com'rs of Seneca Co. 19 Ohio St. 604; Reckner v. Warner, 22 Ohio St. 275. Though in case of a failure to put in a claim within a proper time, caused by inevitable accident, a court of equity might relieve, yet it will not be sufficient that a man knowing of the day, and leaving home on business, is delayed on his return by an accident to the train, as this might have been guarded against. Reckner v. Warner, supra. It may be well to observe that the clause in the federal constitution does not apply to State legislation. Barron v. Baltimore, 7 Peters, 243. Nor will a court of chancery interfere. Walker v. Mad River R. Co. 8 Ohio, 38. Where a railroad has been once located,it cannot be changed without an express authority. Morehead e. Little Miami R. Co. 17 Ohio, 340. Where a canal contractor enters for materials under the written authority of the engineer, this is a justification in trespass. Bliss v. Hosmer, 15 Ohio, 44; Lyon v. Jerome, 15 Wendell, 567; Wheelock v. Young, 4 Wendell, 647; Fulton v. Mounhan, 4 Ohio, 426; McClintock v. Inskip, 13 Ohio, 21. Whether land can now be taken in fee, for railroads and the like, or only a right of way, see Bloodgood v. Mohawk R. Co. 14 Wendell, 51. Raleigh & Gaston R. R. Co. v. Davis, 2 Dev. & Bat. 467; Heyward v. Mayor of New York, 3 Selden, 314: Quimby v. Vt. Central R. R. Co. 23 Vt. 387; De Varaigne v. Fox, 2 Blatchf. C. C. 95. The owner of lots upon a public street has a private right in such street, valuable as property, and when exercising reasonable care and prudence, he makes erections on the lot in accordance with the established grade, and a subsequent alteration of the grade is made, whereby he suffers substantial injury, he is entitled to compensation. Crawford v. Village of Delaware, 7 Ohio State, 459. But the prevailing rule is that damages are not recoverable for such consequential injuries, unless specially provided by statute. See Pierce on American Railroad Law, pp. 173, 222, and cases cited. As to the extent of the right to appropriate beyond the track for depots, shops, and the like, see Kyle v. Auburn R. Co. 2 Barbour, Ch. R. 489; Kemper v. Cincinnati Turnpike, 11 Ohio, 392. Giesy v. Cincinnati, W. & Z. R. R. Co. 4 Ohio State, 308. New Orleans Second Municipality, 1 La. An. Rep. 128; Lauderbrun v. Duffy, 2 Barr, 398; Navigation Co. v. Commissioners, 11 Penn. State, 202; Hankins v. Lawrence, 8 Blackford, 266. For the rule of damages, see 13 Law Jour. Rep. 434; Sedgwick on Damages, ch. xxiii. The subject of taking private property for public uses, is considered in Pierce on American Railroad Law, ch. viii.

welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure, or for the purpose of making or repairing roads which shall be open to the public without charge, a compensation shall be made to the owner in money; and in all other cases when private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner." (a) And again, "No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or first secured by a deposit of money, to the owner, irrespective of any benefit proposed by such corporation, which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law." (b) These declarations assert two great principles. First, the private right of an individual must yield to the eminent domain of government, whenever the public good requires it. And this is well; for otherwise it would be in the power of one obstinate owner to prevent the execution of any of those great public improvements which contribute so much to the general convenience and happiness. Secondly, to equalize the burden and avoid all hardship, the owner of property so taken is to receive a compensation, which shall be full, just, and in money. Any law, therefore, which should condemn private property for any other than a public use, or which should not provide for such a compensation, would be unconstitutional. One question formerly much discussed was, whether the compensation must be paid before the property is taken. The answer was, that if a law authorizing property to be taken, provides an equitable mode of ascertaining the compensation, and directs it to be paid, the law is valid; but in any given case, if the owner of property could make it appear that his compensation would be doubtful or improbable, he might obtain an injunction against taking the property until the compensation had been secured. (c) Another question was, whether benefits were to be taken into view in fixing the amount of compensation. Upon this question there was much contrariety of opinion. There is an obvious distinction to be made between paying for property actually taken, and paying for consequential injury where property is not taken. To the latter case, the constitutional provisions do not apply. It is a mere question of damages; and as there can be no actual damages where the benefit exceeds the injury, there is no doubt that benefits may be properly offset against consequential injuries. (d) But can

(a) A jury of twelve men is intended by this clause, but the assessment may be made in the first instance by a commission, reserving an appeal to a jury. Lamb v. Lane, 4 Ohio State, 167.

(b) Giesy v. C. W. & Z. R. R. Co. 4 Ohio State, 308; In matter of Wells County Road, 7 Ohio State, 21.

(c) Pierce on American Railroad Law, pp. 163, 509, and cases cited; Cushman v. Smith, 34 Maine, 247; Bloodgood v. Mohawk & Hudson R. R. Co. 14 Wendell, 51.

(d) The benefits deducted are generally confined to such as are peculiar to the

benefits be offset against the value of the property actually taken ? In this State, where the compensation must be "in money," the answer must undoubtedly be in the negative; for the benefits derived from the vicinity of a public improvement, however great, are not literally money. But how is it where the compensation is only required to be "just," or "full," without specifying money? Can benefits, then, be offset against property? It would seem they cannot; for while many share in the benefits of any great public work, besides those whose property is taken for its construction, this rule would make the burden fall wholly on the latter class, which would be unjust. It may be said, however, that when a man is not made absolutely poorer by taking part of his property, no injury is done him. But the answer is, that relatively he is made poorer, by so much as the property is worth, because his neighbors, whose property is not taken, share equally in the benefits. On the whole, then, the rule would seem to be, that property actually taken for public uses must be paid for, without reference to benefits, which can only be offset against consequential damages. Still another question was, whether the amount of compensation must be determined by a jury of twelve persons. It has been decided that any fair and equitable mode will be sufficient, as by disinterested appraisers or commissioners. (a) But in this State, these questions are all put to rest by the provisions of the new constitution, before quoted. As to what are public uses, it has been held that canals, turnpikes, railroads, toll-bridges, supplies of water for a town, and the like, are public uses; and that the legislature may exercise its right of appropriating private property for such uses through private corporations. (b)

Property in expectation-Contracts. (c) Property in expectation,

land-owner, and not shared by other members of the community. Meacham v. Fitchburg R. R. Co. 4 Cush. 291; Nicholson v. N. Y. & N. H. R. R. Čo. 22 Conn. 88; Robbins v. Mil. & Horicon R. R. Co. 6 Wis. 636. But contra, Alton & Sangamon R. R. Co. v. Carpenter, 14 Ill. 190. See Little Miami R. R. Co. v. Collett, 6 Ohio State, 182; Cleveland & Pittsburg R. R. Co. v. Ball, 5 id. 568.

(a) Willyard v. Hamilton, 7 Ohio, 111; Hickox v. Cleveland, 8 id. 513; Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 75; Lake Erie R. R. Co. v. Heath, 9 Ind. 559. Where a special remedy is provided for assessing damages, it is exclusive. Hueston v. Hamilton & Eaton R. R. Co. 4 Ohio State, 685; Kramer v. Cleveland & Pittsburg R. Co. 5 id. 140. Pierce on American Railroad Law, pp. 168,

223.

(b) Giesy v C., W. & Z. R. R. Co. 4 Ohio State, 308.

(c) See Mad. Pap. 1443-4, 1581; 1 Kent, Com. 413: 2 Story, Const. ch. xxxiv.; 9 Dane, Abr. App. 77; Fletcher v. Peck, 6 Cranch, 87; New Jersey . Wilson, 7 Cranch, 164; Terrett v. Taylor, 9 Cranch, 43: Dartmouth College v. Woodward, 4 Wheaton, 518; Sturges v. Crowninshield, 4 Wheaton, 122; M'Millan v. M'Neill, 4 Wheaton, 209; Green v. Biddle, 8 Wheaton, 1; Ogden ». Saunders, 12 Wheaton, 213; Blanchard v. Russell, 13 Mass. 1; Mather v. Bush, 16 Johns. 233; Smith v. Parsons, 1 Ohio, 236; Charles River Bridge v. Warren Bridge, 11 Peters, 421; Bronson v. Kinzie, 1 How. 311. In Fletcher v. Peck, 6 Cranch, 87, the facts were these: In 1795, Georgia passed an act authorizing the sale of a large tract of wild land; in pursuance of which, a grant was regularly made by patent, to the Georgia Company. Fletcher held a deed from Peck for a part of this land under a title derived from the patent, in which deed Peck had covenanted that the title conveyed by the patent was good and valid when the patent was made, and had not since been impaired. The fact was, that, in 1796, Georgia had passed another act, declaring the preceding act and all 14

as we have seen, consists chiefly of contracts. Without here stating the requisites of a valid contract, it is sufficient to say that it

conveyances under it to be null and void. The pretence was, that the first act was collusively procured by bribing members of the legislature. Fletcher, therefore, brought an action of covenant against Peck, and assigned as a breach, that the patent was void by the effect of the act of 1796. This brought up the question, whether the legislature of Georgia could constitutionally repeal the act of 1795, and make void the proceedings under it. Chief-Justice Marshall pronounced the decision of the court. He said they could not go into an inquiry respecting the corruption of the sovereign power of the State; nor was it necessary. For admitting the original transaction to have been infected with fraud the parties to this suit did not participate in it, and had no notice of it. Yet if the act of 1795 be in fact repealed, their rights, innocently acquired under it, are annihilated. Had Georgia power, then, to repeal this act? She had not. The act was a grant to which Georgia was a party. A grant is a contract executed. In its own nature, it is an extinguishment of the right of the grantor, and implies a contract not to reassert that right. Such a contract Georgia had made, and rights had become vested under it. Could the legis lature afterwards pass a law impairing its obligation? Certainly not; for a contract by a State is as much protected by the constitution, as a contract by an individual. The principle therefore established by this case may be thus stated: a grant is a contract, the obligation of which cannot be impaired; and it makes no difference whether the State or an individual was a party to the grant. In New Jersey v. Wilson, 7 Cranch, 164, the facts were these: In 1758, New Jersey passed a law declaring that certain lands to be purchased for the use of the Indians should not thereafter be subject to any tax. The Indians occupied these lands until 1803, when they were sold to individuals by authority of the legislature; but nothing was said, in the authority to sell, respecting the former exemption from taxation. In 1804, a law was passed repealing the law of 1758, which exempted the lands from taxes, and they were accordingly assessed. This brought in question the validity of the law of 1804. It had already been decided in Fletcher v. Peck, that the prohibition in the constitution extended to contracts to which a State was a party, as well as to contracts between individuals. In this case, therefore, the inquiry was narrowed down to the question, whether the foregoing facts amounted to a contract, which was violated by the act of 1804? The court decided that the transaction between New Jersey and the Indians had every requisite of a contract. The exemption from taxation made the lands more valuable, and they were sold by the Indians with this privilege annexed. The State, in authorizing the sale by the Indians might have stipulated for a surrender of this privilege, but did not. The purchasers therefore took the land with the privilege annexed, and the State could not afterwards take it away without impairing the obligation of their contract with the Indians. This case, then, may be considered as merely a reiteration of the doctrine of Fletcher r. Peck. In Terrett v. Taylor, 9 Cranch, 43, the facts were these: At a very early period, the Episcopal Church, and the common law relating thereto, were recognized in Virginia; and from 1661 to 1788, a variety of laws were passed enabling the church by its proper officers to hold lands and other property. In 1770, the Episcopal Church of Alexandria purchased, in due form of law, the land which was now the subject of dispute. Their right so to do was never doubted until 1793, when a law was passed repealing all preceding laws on the subject of the church. In 1801, another law was passed, asserting the right of the State to all the property of the Episcopal Churches, and directing it to be taken for the support of the poor. The pretext was, that all the laws protective of the church were inconsistent with the principles of the constitution relating to religious liberty. On these facts, the question was referred to the supreme court, whether the laws of 1798 and 1801 were constitutional. The court decided that they were not. Be the authority of the legislature on the subject of religion what it might, they had authorized the church to purchase these lands. The revolution, though its effect was to deprive the Episcopal Church of its character of an exclusive religious establishment, could not divest them of the property which was before vested in them; for even the division of an empire creates no forfeiture of previously vested rights of property. Nor did the fact of being a corporation make any difference. The legisla ture may indeed change and modify public corporations, such as counties and towns, which exist only for public purposes; though even then the rights of property must be secured to those for whose use and at whose expense it was purchased. A legislature may, however, contract with a municipal corporation, although it is its creature; and such a contract, when made, is protected by the constitution as much as any other. Grogan v. San Francisco, 18 Cal. 490. And the legislature cannot take away the pri

differs from a mere promise made without consideration, chiefly in this that there is only a moral obligation to perform a promise,

vate property of a municipal corporation which it has legally acquired. Thus it cannot declare by act that claims for damages made against a city are valid, and order the amount to be assessed by arbitrators. Baldwin v. New York, 42 Barb. 549. But the legislature cannot repeal statutes creating private corporations, or confirming to them property acquired under the faith of previous laws; and by such repeal vest the property in the State, or dispose of it without the consent of the corporators. Against such legislation, private corporations are as much protected as individuals, by the spirit and letter of the constitution. This is a sketch of the reasoning of Judge Story, who delivered the opinion of the court. In Dartmouth College v. Woodward, 4 Wheaton, 518, the facts were these: In 1769, the British crown granted a charter to the Trustees of Dartmouth College. Under this charter a large amount of property was acquired, and the affairs of the College were prosperously administered until 1816, when the legislature of New Hampshire passed a law, enlarging the number of trustees, varying the mode of appointment, placing over them a board of overseers, and making other important alterations in the charter. The old trustees met and resolved not to accept the provisions of this act. The new corporation, under the name of Trustees of Dartmouth University, commenced operation, by taking possession of all that belonged to the college. The old trustees contested their right in an action of trover against the treasurer, to recover the books, papers, and title-deeds, which had been taken from them. The question raised upon these facts was, whether the law of 1816 came within the prohibition of the constitution against impairing the obligation of contracts. And a more important question was never brought before a court. The safety of all chartered rights was staked upon the decision. The State court decided in favor of the law. But the federal court declared the law unconstitutional. They said if this had been a public corporation, with political privileges, or if the funds had been public property, the State might have legislated as it pleased. But this corporation was a private one in its foundation, and endowed with private funds, though for public and benevolent purposes. These funds had been contributed, and trustees had taken charge of them, upon faith in the permanency of the charter. The crown, by granting the charter, had contracted with the donors and trustees that, so long as the provisions of the charter were complied with, it should not be withdrawn or impaired. At the revolution, New Hampshire had become a party to this contract in place of the crown. And though Parliament, in its omnipotence, might have violated this charter, the legislature of New Hampshire cannot, in consequence of the constitutional limitation of its powers. In fine, the charter is a contract, the obligations of which would be impaired by enforcing the law of 1816. The law, therefore, is void. In Greene v. Biddle, 8 Wheaton, 1, the facts were these: In the compact between Virginia and Kentucky, in 1789, prior to the admission of the latter into the Union, it was stipulated that all private rights and interests in lands, derived from the laws of Virginia before the separation, should remain valid and secure after the separation, and should be determined by the then existing laws of Virginia. This compact was made a part of the constitution of Kentucky, and thus became a compact between two sovereign States, with the assent of Congress. By the law of Virginia, as it then stood, the claimant of lands, who succeeds in his suit, was entitled to receive mesne profits from the occupants. But in 1797 and 1812, Kentucky had enacted laws concerning occupying claimants, which, however intrinsically just and equitable, materially affected the interest of the non-occupying claimants, as they would have been under the laws of Virginia; for the object of those laws was, to compel the rightful owner either to relinquish the lands to the occupant, or pay for all improvements made upon them, without his consent or default; and no possession could be obtained without complying with these requisitions. In the present case, Greene's title accrued prior to the separation, and he claimed to have his rights decided pursuant to the compact. This brought in question the validity of the laws of Kentucky, and the supreme court decided that they were unconstitutional. They said that the constitution as much embraced compacts between sovereign States, as contracts between individuals. A compact did not differ from a contract. It was an agreement to do, or not to do, some particular thing. In this compact, Kentucky had agreed that the rights of claimants to lands should be determined by the laws of Virginia; and hav ing so agreed, could pass no laws to impair that agreement. But the laws now in question did impair the obligation of that agreement; to what extent was not material. Any deviation from the terms of a contract, by postponing or accelerating the period of performance, imposing terms not expressed in the contract, or dis