of three restricted organs of sovereignty, and inasmuch as sovereignty itself is prohibited from taking private property, except for public use, and upon due compensation, no subordinate power can do so.

The quantity of property that may be appropriated in any given case, is left, it is true, very indefinite, but there is no danger of permanent abuse, so long as the conservative power of the courts are left to protect such interests. It has been controverted in the courts, whether the power to take property by a railroad company under legislative authority, extends to an appropriation for depot, and station purposes, with grounds to receive and discharge freight, fuel and passengers; but reason teaches that these are but the incidents to the main purpose, and are such indispensable appendages to the principal object, that the main object would be useless without it. a

We have thus far in this chapter, been treating of the reserved power in our constitution, and in every other sovereignty, to appropriate the private property of individuals, to public use. While it is conceded that this power exists, it exists only with a concomitant constitutional restriction, that it shall not be taken for public use without just compensation, b and with the further protection to the citizen, that when so taken, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.c

This constitutional restriction in favor of the individual is so controlling, that the power to take his property cannot be exercised, unless the provision for compensation be made. This right of the individual is regarded as so sacred, that a court of equity will interpose by way of injunction to restrain action under a statute to take such property that makes no provision for compensation. d Such an act would be pronounced unconstitutional and void. e

a Rodgers v. Bradshaw, 20 John. 735.

b Const. of 1846, Art. 1, § 6.

c Id., Art. 1, § 7.

d Gardner v. Trustees of Newburgh, 2 John. Ch. 162.

e Perry v. Wilson, 7 Mass. R. 395; Stevens v. Middlesex Canal, 12 id. 468; Thatcher v. Dartmouth Bridge, 18 Pick. R. 501.

It seems however, that if the statute which authorizes the taking, in itself, provides a certain and adequate remedy for the payment of damages or compensation, that it is not absolutely necessary that the amount of compensation should be actually ascertained and paid before such property can be taken and appropriated to public use. a

The settled doctrine in this state, as far as it is expressed, is found in the case of Bloodgood against The Mohawk and Hudson Railroad Company, decided in its highest court, the court for the correction of errors; and reported in 18 Wend. R. pp. 9 to 77. The importance of the rule settled in this case, as the law of this state, will excuse a liberal citation from it. The plaintiff declared in trespass quare clausum fregit, alledging that the defendants, by their servants, entered his closes, with carriages, &c., and broke down, and destroyed his fences, and dug and subverted the soil, &c. The defendants justified under their act of incorporation by the legislature of the state, which authorized them by their agents, surveyors and engineers, to cause such examinations and surveys to be made, between certain points, (which included the line over the plaintiff's lands,) as should be necessary to determine the most advantageous route, place or places whereon to construct their railway; and made it lawful for the defendants to enter upon, and take possession, and use, all such lands and real estate as might be indispensable for the construction and maintenance of their rail- . way, and the accommodations requisite and appertaining to them. Provided that all lands or real estate thus entered and taken possession of by the defendants, (which are not donations) should be purchased by the defendants of the owner or owners at a price to be mutually agreed upon betwixt them, and in case of disagreement of the price, it should be the duty of the governor of the state to appoint three commissioners, &c., to determine the damages, &c.; and then stating how the act provided for the manner of assessing and paying such damages, and further pleaded, that they entered the plaintiff's said closes, and for the purpose of causing such examinations and surveys to be made as might be necessary to determine the most advantageous route, &c., for said railroad, and for the purpose of taking possession of and using so much of such

a Rodgers v. Bradshaw, 20 John. 735, 744, 745.

closes as might be indispensable for the construction, &c., of their railway and accommodations requisite, and appertaining to them, and did then and there take possession for such purpose, which were the said supposed trespasses. To which answer there was a demurrer and joinder. Chancellor Walworth, who delivered the leading opinion of the court, laid down the law as follows: "It certainly was not the intention of the framers of the constitution to authorize the property of a citizen to be taken and actually appropriated to the public use, and thus to compel him to trust to the future justice of the legislature to provide him a compensation therefor. The compensation must be either ascertained and paid him before his property is thus appropriated, or an appropriate remedy must be provided, and upon an adequate fund, whereby he may obtain such compensation, through the medium of the courts of justice, if those whose duty it is to make such compensation refuse to do so." He adds, "In the ordinary case of lands taken for the making of highways, or for the use of the state canal, such a remedy is provided; and if the town, county, or state officers refuse to do their duty in ascertaining, raising or paying such compensation in the mode prescribed by law, the owner of the property has a remedy by mandamus to compel them to perform their duty. The public purse, or the property of the town or county upon which the assessment is to be made, may justly be considered an adequate fund. He has no such remedy, however, against the legislature to compel the passage of the necessary laws to ascertain the amount of compensation he is to receive, or the fund out of which he is to be paid." A very able, profound, abstract, and somewhat theoretical, but argumentative opinion was delivered in the case by Senator Albert H. Tracy, in which the whole doctrine relating to this subject, drawn as well from the natural rights of individuals, as from constitutional authority, and the extent of legislative power, was most learnedly discussed, the whole of which is worthy of being transcribed, and perpetuated in this, and every other work upon natural rights or constitutional limitations of legislative power, but its length forbids. No lawyer should omit to read it, who seeks to possess his mind with a knowledge of this branch of law.

At the close of the case, the court passed a resolution which

may be quoted as the summary of the doctrine discussed in that case, and which remains the unimpaired and unshaken law of this state; which was in substance, "that the legislature of this state have the constitutional power to authorize the taking of private property for the purpose of making railroads or other public improvements of the like nature, whether such improvements be made by the state itself, or through the medium of a corporation, or joint stock company, on making ample provision for just con pensation for the property taken to the owners thereof."

This provision for just compensation, it is seen, is the primary requisite to the appropriation of lands for public purposes under the right of eminent domain; and the courts have been quite uniform in holding, that this compensation must be pecuniary in its character, without allowances for supposed benefits to the proprietor, for in effect, it amounts to a power to compel the individual to convey, even against his will, when the public necessities require it. This is a right, which a magnanimous and just government will therefore never exercise without amply indemnifying the individual. a

2

This is doubtless the true rule, where the whole of a man's estate is taken, although he may own other estate in the vicinity which may be benefited by the public use; for the benefits or injuries which the owner receives or sustains to other property in common with the community generally, and which are not peculiar to him, and connected with his ownership, use, and enjoyment of the particular parcel of land, should be excluded altogether, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken of such incidental benefits, and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken.

a Fletcher v. Peck, 6 Cranch. 145; Bradshaw v. Rodgers, 20 John. 104.

NOTE 2." The just compensation to the owner for taking his property for public uses without his consent, it has been held, 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." Jacob v. City of Louisville, 9 Dana, R. 114; Van Horne's Lessees v. Dorrance, 2 Dall. 315.

But where less than the whole lot or estate is taken, there is a class of cases that hold the rule to be in assessing the damages, to take into consideration how much the portion not taken is increased or diminished in value in consequence of the appropriation. a "The owner of the property is entitled to full compensation for the damages he sustains thereby; but if the taking of a part of his property for the public improvement is a benefit rather than an injury to him, he certainly has no equitable claim to damages." b If the same property that remains, will be more valuable when the improvement is made, than the whole of it was before, the owner will not sustain any damage, but will derive a benefit from it.

The time when this compensation must be made, is not fixed in the constitution of this state itself, nor in the federal constitution; but in some of the states, provision is made in their constitutions, that compensation must be made before the property is taken.

It has been held in this state, in effect, that no constitutional principle was violated by a statute that allowed private property to be entered upon temporarily, for the purpose of making a survey for a state appropriation, with a view of determining the proper location of a canal; and that for such a purpose, the state was not bound to make compensation, nor were its subordinate officers, who so entered, liable to an action of trespass. a

A distinction is found in the books, which seems to have been recognized, as settled, between property taken directly by the state, or a municipal corporation by state authority, and cases where it is taken by a private corporation, which, for this purpose, is clothed with the power to take, and regarded as a public agent, if the property is to be appropriated, for the benefit and profit of its members. If taken directly by the state, it is not essential to the validity of the law, that it should provide for making compensation before the actual appropriation; it is sufficient, if provision is made in the law, by which, the party can obtain certain com

a Livingston v. The Mayor of New York, 8 Wend. 101; In the Matter of Furman Street, 17 Wend. 671; Parks v. Boston, 15 Pick. 205.

b Id., and McMasters v. Commonwealth, 3 Watts. (Penn.) R. 296.

a Bloodgood v. M. & H. RR. Co., 14 Wend. 51, & 18 Wend. 9; Gardner v. Newburgh, 2 John. Ch. 168.