pensation, and a proper tribunal is provided for determining it. a A very good reason obtains, why the rule should be different in cases where individuals, or private corporations, are authorized to take even for public purposes. The latter, might otherwise get possession, and despoil a party of his estate, and then prove irresponsible, by means of which the proprietor might loose his estate without means of redress, and thus the constitutional protection, become but a name and a mockery, to the spirit and intent of the constitution.

Chancellor Kent was of opinion, that in all such cases, the compensation, or offer of it, must precede, or be concurrent with the seizure and entry upon the private property taken under the authority of the state. b "That the government is bound in such cases, to provide some tribunal for the assessment of the compenpensation or indemnity, before which, each party may meet and discuss their claims on equal terms; and that if the government proceed without taking these steps, their officers and agents may, and ought to be sustained by injunction." He granted an injunction in such case when acting as Chancellor, c and in support of his opinion, he cited the authorities of the profoundest writers upon the civil law, and the law of nature, and said, that this limitation of the power existed before it was incorporated into our own constitutions, was admitted by the soundest authorities; and adopted by all temperate and civilized governments, from a deep and universal sense of its justice.d

The distinction above referred to, shows, that the rule in this state, is not universal nor inflexible, inasmuch as it is neither a constitutional, or statute provision, that payment should precede, or accompany the appropriation, yet, we must concede, that such was, and is, the spirit of justice, and such, I think, was natural law before our constitution was adopted, which really, but incor

a Bloodgood v. Mohawk & Hudson, RR. Co., 18 Wend. 9; Rodgers v. Bradshaw, 2 John, 744, 5; Calkin v. Baldwin, 6 Wend. 670; Rexford v. Knight. 11 N. Y. 313, 314; Lyon v. Jerome, 26 Wend. 497; People v. Hayden, 6 Hill, 359.

b 2 Com, 330, Note C.

c Gardner v. Village of Newburgh, 2 John, Ch. 162.

d Grotius (De Jur. B. & P. b. 8, Ch. 14, s. 7;) Puffendorf (De Jur. Nat. et Gent, b. 8, Ch. 5, s. 7;) Bynkershock, (Quaest Jur. Pub. b. 2, Ch. 15.) Code Napoleon, Art. 545.

porated into it, the law of nature. The constitutions of various of the states of the Union, have adopted it as fundamental law. a

Injuries done to property not appropriated, by the exertion of this power of resumption by the state, under the right of eminent domain, it is held, give no valid claim against the state, or its agents on account of the taking. It is perhaps as common, that estates adjoining, or in the vicinage of a public improvement, are injuriously affected as that they are benefited or increased in value. Unless the statute provides a relief in such case to the party, he is remediless. Every great public improvement, almost of necessity, more or less affects individual convenience and property, for the better or for the worse; if for the worse, and the injury is consequential, or remote, it is to be borne, as a part of the price which the individual must pay, for the advantages of the social condition.b This is founded upon the principle, that the general good is to prevail over partial individual convenience. The loss is damnum absque injuria.

Upon the same principle; a statute passed to regulate the use of a navigable stream, which only incidentally affects the riparian owners, gives to the person so affected, no right to compensation, though if the stream is thereby diverted from its natural course, so that those entitled to its benefits are prevented from using it as before; such a deprivation of a right, is a taking, which entitles to compensation, notwithstanding the taking may be for the purpose of creating another and more valuable channel of navigation.c The owners of the land over which a stream flows, though they do not own the flowing water itself, yet have a property in the use of that water as it flows past them, for the purpose of producing mechanical power, or for any other of the purposes for which they can make it available, without depriving those below them on the stream, of the like use, or encroaching upon the rights of those

a Constitution of Indiana, Art. 21, § 1; Ohio, Art. 1, § 19; Kentucky, Art. 13 § 14; Oregon, Art. 1, § 19; Nevada, Art. 1, § 8; Mississippi, Art. 1, § 13 ; Minnesota, Art. 1, § 13; Kansas, Art. 12, § 4; Georgia, Art. 1, § 17; Florida, Art. 1, §14.

b Lansing v. Smith, 8 Cow. 149; Troy & Boston RR. Co., v. Northern Turnpike Co., 16 Barb. 100.

c People v. Canal Appraisers, 13 Wend. 355; Billinger v. N. Y. Cent. RR. Co, 23 N. Y. 42.

above; and this property is equally protected, with that of a more tangible character. a

In another class of injuries, also, a party may sustain great and almost irreparable injury, where the law affords him no redress; such for instance as those resulting from the construction of public works, where, if an injury occurs in a case where the work was constructed upon a proper plan and without negligence, and if the injury is caused by accidental and extraordinary circumstances, the injured party is without remedy, and can demand no compensation; and this is so, even though the property was appropriated under the right of eminent domain. b But if in such case, however, there is want of reasonable care and skill in the construction of such work, and unnecessary damage is caused, it is not warranted by the right of eminent domain, and then, the corporation or its agents are responsible for it. Such damage however must be real, substantial and appreciable, and not merely theoretical or slight, or such as may be caused by an unusual or extraordinary swell of the waters.c

As it is competent for the state to declare the extent of the use to which private property is thus to be taken, whether for a temporary period, for an easement, or the entire fee, the amount of compensation will of course depend upon the character of the deprivation, and the extent of exclusion of use by the former owner, so that in all cases, where the complete fee is not taken, the original owner is vested with the remainder or reversion that is left, and whenever the public use ceases, or is discontinued, as a general rule, the estate reverts to the original proprietor, and he becomes restored to his complete and exclusive possession. The case of common highways, is within this class; there the public have a perpetual easement, but the fee, and the soil, is in the original owner or his assigns, and they may make any use of it which does not interfere with the public right of passage over it, and the public can use it for the usual purposes of a highway.d By special statutes however, in some of the cities, the fee of the

a Morgan v. King, 35 N. Y. 454; Cooley on Const. Lim. 557.

b Perry v. City of Worcester, 6 Gray, 546-7, and cases cited; Sprague v. The Same, 15 Gray, 195. c Id.

d Adams v. Rivers, 11 Barb. 390; Cooley on Const. Lim. 558.

streets is in the city absolutely; so in like cases, appropriations for alms-houses, canals, &c. a

The constitution of this state, though it authorizes the appropriation of private property to public uses, upon the condition of just compensation to the proprietor, has afforded to the individual owner, a still further protection against legislative abuse, and as a limitation upon the power to take. It declares that no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any of the citizens thereof, unless by the law of the land, or the judgment of his peers." b

It provides also, not only, that he shall receive a just compensation, but also that he shall not be deprived of his property "without due process of law," and, that in cases where the compensation is not made by the state, it 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

What is "the law of the land," and "due process of law," had well defined common law meanings, before the adoption of this constitution, and must be regarded as but slightly qualified by the terms of the constitution itself.

Chancellor Kent says, the words, by the law of the land, as used originally in Magna Charta in reference to this subject, are understood to mean, " due process of law," d and, that the better and larger definition of due process of law, is, that it means law, in its regular course of administration. And it was held in the court of appeals of this state, e that these constitutional safeguards, in all cases, require a judicial investigation; not to be governed by a law specially enacted to take away and destroy existing rights, but confined to the question, whether under the pre-existing rule of conduct, the right in controversey has been lawfully acquired, and is lawfully possessed. So Lord Coke interprets, "by the law of the land," to mean, "by the due course and process of the law."f

a Heyward v. Mayor of New York, 7 N. Y. R. 314; Baker v. Johnson, 2 Hill, 348; Rexford v. Knight, 11 N. Y. R. 308; Munger v. Tonawanda R. R. Co., 4 N. Y. 349.

b Const. of N. Y. of 1846, Art. 1, § 1.

c Const. of N. Y. of 1846, Art. 1, § 7.

e Wyndham v. The People, 13 N. Y. R. 395. ƒ2 Inst. 46.

d 2 Com. 13.

And the courts of this state hold, that the words, " due process of law," import a judicial trial, and not a mere declaration of the legislative will by the passing of a law. a It is therefore regarded as safe to say, "that without due process of law, that is, without judicial investigation, no act of legislation can deprive a man of his property, and that in all civil cases, an act of the legislature alone, is wholly inoperative to take from a man his property."

These provisions in substance, or in equivalent language, will be found in nearly every state constitution. They were rights that existed and attached to every citizen at common law, before the adoption of state constitutions; they can be traced back to Magna Charta, and were wrested from the king, as restraints upon the power of the crown. They were imposed by the people as restraints upon the legislative power when they put forth their constitutions.

The concurrent adoption of these protective individual rights by nearly every state in the Union, and by the employment of nearly the same language, is evidence of the uniformity and extent of the construction we have given.' The constitution of this state a Taylor v. Porter, 4 Hill, 140; Embury v. Conner, 3 N. Y. R. 511; Westervel v. Gregg, 6 N. Y. R. 202.

NOTE 3.-The provision in the constitution of Alabama, is, "That in all the criminal prosecutions, the accused shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, but by due course of law," Art 1. § 7. Arkansas, That no man shall be taken or imprisoned, or disseized of his freehold liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land, Art 2. § 10. California, like Alabama, except the words process of law, instead of course of law, Art 1, § 8. Connecticut, same as Alabama, Art 1, § 9. Delaware, substituting for the words, "course of law," the judgment of his peers or the law of the land," Art. 1, §7. Florida, "that no freeman shall be taken, imprisoned or disseized of his freehold liberties or privileges, or, outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the law of the land," Art. 1, § 8. Georgia, "No person shall be deprived of life, liberty, or property, exeept by due process of law," Art. 1, § 2. Illi, nois, "That no freeman shall be imprisoned, or dissiezed of his freehold liberties or privileges, or outlawed or exiled, or in any manner deprived of life, liberty or property, but by the judgment of his peers or the law of the land,” Art. 13, § 8. Iowa, "No person shall be deprived of life, liberty or property, without due process of lau,' Art. 1, § 9. Kentucky, "Nor can he be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land," Art. 13, § 12. Maine, "Nor be deprived of his life, liberty, property or privileges, but by the judgment of his