a}0mf U IGaul i^rljool IGibtaty KFssgs.RiT"""'™'"""-'""^^ ^mmmmlS'"^"^ domain in the United 3 1924 020 025 858 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020025858 THE LAW OF EMINENT DOMAIN. THE LAW OF EMINENT DOMAIN IN THE UNITED STATES. BY CARMAN F. RANDOLPH. BOSTON: LITTLE, BROWN, AND COMPANY. 1894. Copyright, 1S94, By Carman F. Randolph. JSntijcrsitg iBrcss : John Wilson and Son, Cabu'.biix.e, U.S.A. CORTLANDT PARKER, THE HONORED LEADER OF THE NEW JERSEY BAR. PEEFACE. Some years ago I wrote an article on the right of eminent domain for the " Law Quarterly Review." My interest in the subject led me to write the following treatise. While I have availed myself of the work of previous writers on eminent domain, especially the learned researches of Mr. Mills and Mr. Lewis, I have not accepted text-book statements of law because of faith in their sponsors, but have tested them by exam- ination of the adjudged cases. The responsibility of an author for all errors of omission or commission I accept literally, for I have not only examined every case cited, but have performed the whole work of searching for cases. It has been my endeavor to present the law of emi- nent domain as it obtains in this country, with such reference to foreign, especially English, law as will accentuate the peculiarities of our own law or illustrate the principles common to both. I had not progressed far in my research before I became embarrassed with the great and constantly increasing mass of case law. Two courses were open to me, — to cite all cases interpreting the voluminous condemnation laws of the several States, and attempt Vlll PREFACE. to set forth the minutias of local practice ; or to state as simply and clearly as possible the principles of the law, together with those cardinal rules of procedure which, once apprehended, will guide the practitioner through all the variations of local and transitory prac- tice. I chose the latter course. The social and political bearings of the right of eminent domain are pronounced, and the field for speculation and suggestion is tempting and profitable. But this field is beyond my province. This much I may say here, however, — those who view the power of the state exemplified in the right of eminent domain as a menace to the rights of individuals may comfort themselves with the knowledge that in this country the duty of the state to pay for what it takes is a bulwark against many forms of spoliation under the guise of law. The organic law of the United States contains a premise and a conclusion not found in the logic of advanced socialism. Private property exists; if it is taken for public use it must be paid for. CARMAN F. EANDOLPH. MoEKisTowN, New Jersey, July, 1894. SYNOPSIS. CHAPTER I. THE EMINENT DOMAIN. PAGE § 1. Introduction 1 §2. Derivation of " Eminent Domain." Definition, — Broad Construc- tion. — Strict Construction. Status of Laws prescribing Com- pensation for injuriously affecting Property 1 § 3. Suggestion that Expropriation is resumption of Original Grant. But Sovereignty is true Basis of tlie Power 2 Historical Sketch. § 4. Early Instances of Expropriation. Roman Law 3 § 5. Unimportant Eunction of Euiinent Domain in Middle Ages. Early Roads. Grotius. Increasing Manifestations of the Power . . 4 Comparative View of Eminent Domain, in several Countries. § 6. Erench Constitution of 1789. Code Kapoleon and later Consti- tutions. Influence of Napoleon. Present Code 6 § 7. Plenary Power of British Parliament. Respect for Private Property in England. Blackstone. Lands Clauses Act. Utility of Eng- lish Cases in American Practice. Distinction between Enghsli and American Statute Law. Strict construction of Compulsory Powers in English Statutes. Comparison between Eminent Domain of United States and other Countries 7 Comparative View of Eminent Domain and kindred Powers. § 8. Introduction 8 Necessity. § 9. Right to destroy Property to stay Conflagration. — Statutory Regu- lation of Right. Destruction of Infected Property. No sum- mary Expropriation for Hospital or Highway. Summary Expropriation for Levee. Necessity not strictly a specific State Power 9 SYNOPSIS. War Power. PAGE § 10. Confiscation. Destruction of Property in danger of Capture. Compensation for Property taken for Use 10 Police Power. § 11. Power not susceptible of Strict Definition .10 § 12. Destruction of Properti/ or Prohibition of its Use. — Property essentially Harmful. Property erroneously supposed to be Harmful. Property acquired under the Protection of Law, M'l/nehamer v. People 11 § 13. Proiiibitory Liquor Laws, Mugler v. Kansas. Laws forbidding Interments in Cemetery, Erection of Frame Buildings, Pollution of Waters, Rice Culture. Laws regulating Liquor, Explosives, Poisons .12 § 14. Is Legislative Declaration of Harmfulness conclusive ? Jacob's Case ; People v. Marx ; People v. Gillson . Powell v. Peun- sylvunia. Instances of Arbitrary Legislation 12 § 15. Imposition of Burdens on Ownership. — Laws imposing Duties wbicb require expenditure of Money. — Usually referable to Police Power. Laws requiring Railroad Companies to build Fences, to alter Grade, to test Employees for Color-blindness. Compul- sory Cleaning of Sidewalk. Law not Valid Expression of Police Power unless it enforces existing Duty. Millett v. People; Commonwealth v. Pennsi/lvania Canal Co. Other Invalid Laws 14 § 16. State Control over Contracts. — Attitude of State towards Contracts is that of Assistance, not Interference. Usury Laws exceptional. Regulation of Wages and Prices 15 § n. Complaint of Unreasonable Charges for Transportation. Charter Contract with Common Carrier in respect to Charges. In Ab- sence of Contract Charges may be regulated. Granger Coses . 16 § 18. Regulaliou of Charges in a Business whicli has not received Spe- cial Franchises. Business "affected with a Public Interest." Munn V. Illinois. Doctrine of Presumed Dedication to Public Use. One engaged in a Business whicb tlie State may regulate need not make Reasonable Rates unless tbe State so commands 16 §19. Obligations of Common Carriers, Innkeepers, Millers IS § 20. Theory of " Virtual Monopoly." Jllntitt v. Lifflis 19 § 21. Munn V. niinois. —Its Application. — Appreliensions of its Scope. — Its true Limitations. No Dedication to Public Use by reason of Importance of Business 20 § 22. Reasonableness of Rate generally Legislative Question. Rates not covering Operating Expenses. Rates imposed without a Hear- .i"g • 21 § 23. Difference between Eminent Domain and Police Power. Compen- sation for Destruction of Property not essentially injurious . . 22 SYNOPSIS. xi Taxation. PAGE § 24 Difference between Eminent Domain and Taxation. Unlawful Taxation. Extension of Municipal Bouudaiies. Private Enter- prises. Sears v. Cottrell ; Hersee v. Porter 22 § 25. Local Assessments. Compensation in Benefits. Taxation in Ex- cess of Benefits. Theory of Local Assessments 23 Regulation of Private Property. § 26. Statutes altering Kules of Property. State cannot transfer Property of A to B. Vested Interests protected. Vested Remainder. Dower. Property of one supposed to be Dead. Control over Interests not vested. Contingent Estates. Partition ... 24 §27. Ground Rents. Palairefs Appeal. Betterment Acts. Party Walls and Fences 25 CHAPTEE II. JURISDICTION. § 28. Jurisdictional Limits of Eminent Domain. State cannot expropri- ate Property in another State. Extra-Territovial Servitudes. State cannot injuriously affect Property beyond its Borders. Methods of Redress 27 § 29. Expropriation for Domestic Uses only. Federal Uses. Interstate Uses 28 Eminent Domain ov United States. § 30. Covers all Private Property. Does not depend on Title to Land. Eminent Domain of Territorial Governments 29 § 31. 'Eminent Domain over Property loitJiin a State. Federal Uses . . 30 § 32. Interstate Bridges, Stockton v. Railroad Co. Transcontinental Railroads. Restraints on Interstate Commerce 31 § 33. State may condemn for Federal Use. — Contrary Opinion, Kohl v. United States. Questions of Practice 32 Eminent Domain op the States. § 34. Eminent Domain equal in all the States. State Constitution over- rules precedent Territorial Laws 33 § 35. Effect of Federal Constitution on State Eminent Domain. Fifth Amendment does not affect State Eminent Domain 33 § 36. Question as to effect of Fourteenth Amendment on State Eminent Domain. — Denied by Miller, J. ; Afiirmed by Bradley, J. — Question not definitely Settled. Federal decisions on " due Process of Law " 33 § 37. In case of Federal Jurisdiction would local Definition of Public Use XU SYNOPSIS. PAGE govern ? Olcott v. Supervisors. Query as to local definition of a Taking. Pumpelli/ v. Green Bay Co. Federal Courts follow Local Law in defining Properti/ 3* § 38. Condemnation Proceedings removable to Federal Courts. Boom Co. V. Patterson. Federal Injunction against Work authorized by State 36 CHAriEE III. THE PUBLIC USE. § 39. Suggestion tliat Property may be condemned for Private Use. Private Uses may be countenanced by Constitution. Other- wise, Condemnation for Public Use only 37 § 40. Federal and State Purposes. Governmental Uses, — Public Build- ings, Camp, Park, Sewerage-System. No Condemnation for purpose of Revenue 38 §41. Local Purposes. — Park. Almshouse. Market, etc. Cemeteries. Gas and Water Works 39 § 42. Highways. Must connect witli other Highway. Cul-de-sac. Imma- teriaUty of Terminal Point. Roads for Pleasure Driving. Bridges. Ferries. Wharves. Waterways. Turnpikes. Toll- Bridges 39 § 43. Private Roads. Conflict of Opinion. Justified by the Constitu- tion or Public Policy. Declared unconstitutional, Taylor v. Porter. Road must be kept at Public Charge, Baukhead v. Brown 40 § 44. Railroads. Early Use. State Railroads. Consolidation, Freight and Passenger Railroads. Private Railroads 41 § 45. Incidental Railroad Uses. Side-Tracks. Stations. Wharves. Car Factory. Private Road 42 § 46. Branch Railroads. Spurs 43 § 47. Works for the Development of Particular Natural Resources. Pipe Lines. Log Booms. Mining Works. Lateral Railroads . . 44 § 48. Miscellaneous Purposes. Telegraph. Telephone. Navigation. Re- clamation. Water Supply. Industrial Exhibition .... 45 By whom is Validity of Purpose to be determined? § 49. Competency of Legislature almost unlimited. — Chancellor Wal- worth's Opinion. Correct Opinion — Judiciary finally deter- mine. Constitutional Provisions 46 § 50 Colorable Purpose. Private Purpose. Judiciary not concerned with Practical Ditficulties. — Unless perhaps Execution of Work is practically impossible. — Lord Eldon's Opinion 47 SYNOPSIS. xiii What is a Public Purpose. PAGE § 51. ' Public Use ' of Eminent Domain and Taxation. Status of Agent ,as bearing on Propriety of Use .... 48 § 52. Necessity, i. e. the Relation of the Use to the General Welfare. Rigid Construction. — Opinion of Justice Woodbury. Reason- able Construction. Magnitude of Interests involved. Needs of Community for time being. Works of Pleasure or Ornament not necessary 49 § 53. Necessity as to Time, Place, and Manner is legislative Question. Necessity of Use itself is judicial Question. Uses based on Ancient Custom or stare decisis 50 § 54. Private Benefit not incompatible with Public Vtihty. If Use is Public incidental Private Bcnelit immaterial. Gilbert v. Foote. Ri/er's Case. Private Contributions to Cost of Work do not make it Private . . 51 § 55. Private Benefit must be incidental 52 § 58. The Right of the Public to Use. Immaterial that Few Persons will use. Use must not minister to a Class not recognized by Law. Use interchangeable with Purpose. Property destroyed for Public Use 52 CHAPTEE IV. PROPERTY. § 57. Inthodtjction 54 Public Pkoperty. Property of Foreign State. §58. Property of Foreign State 54 Federal Property. § 59. State cannot condemn Land ceded to United States or used for Federal Purposes. United States v. Railroad Bridge. Van Brocklin. v. Tennessee 55 Property of the States. § 60. Relation between Federal Government and States. Federal Emi- nent Domain commensurate with Federal Necessities. Stockton v. Railroad Co. State Agencies beyond Federal Aggression. It seems that Supreme Court should determine Necessity for tak- ing State Property 56 § 61 . State Property held upon Federal Trust. United States may use it without Compensation 57 XIV SYNOPSIS. PAGE § 62. State Property held upon Local Trust. United States cannot use it without Compensation. Property owned by a State within another State is Private Property "' Propert;/ of Political Corporations — Municipal Property. § 63. Does this Property belong to the State or is it the Private Property of the Corporation ? ,58 § 64. Relation of Municipal Corporation to State. Private Property of Corporation. Classification of Municipal Property .... 59 § 65. Property " held for the State." Meriwether v. Garrett. Highways, "Wharves, etc. Relevancy of Tax Cases. City may be forced to levy Tax for Domestic Uses, but not for Poreign Uses. Hamp- shire V. Franklin 60 § 66. Private Property of City. Gas and Water Works. Common. Ferry. Wharf. Reservoir. Park. Cemetery 61 § 67. Property dedicated to Municipal Use. Right of State to change Agency, to change Use. Rights of Dedicator 62 § 68. Conclusions as to Municipal Property. Duanesburg v. Jenkins. People V. Detroit. Doctrine of Limited Municipal Independence 63 § 69. Controlof State over Property of Corporations other than Municipal 64 Property of Eleemosynary Corporations. § 70. Dartmouth College Case 64 Public Waters. § 71. Public Waters are at Common Law Tidal Waters. Some States follow Common Law. In Others all Navigable Waters are Public. Special Cases 65 § 72. United States have no Proprietary Rights in State Waters. Federal Statutes 66 § 73. Public Boundary on Tidal Waters. Massachusetts Rule. Public Boundary on Non-Tidal Waters. Accretion. Extension of Highway over Reclaimed Land 66 Private Property. § 74. All Property subject to Eminent Domain 68 § 75. No Compensation in respect to Unlawful Property. Nuisance separable from Property which supports it. Possession unlaw- ful against State may be good as against Private Corporation. Renwick v. Railroad Co 68 § 76. Property in Charge of Receiver 70 Real Property. § 77. Comprehensive Meaning of Land. Matter of Board of Street Opening. Lands Clauses Act. — " Interest " in Land ... 70 S 78. Private Property in Water 73 § 79. Easements may be condemned. Common Privileges § 80. Controversy between Electric Railway and Telephone Companies ^ ' '(V. Fletcher . . . " ^•3 SYNOPSIS. XV Personal Property. PAGE § 81. Personal Property. Money. Chattels. Rights of Action. Patents 73 §82. Contracts. Franchises. Dartmouth College Case. West Eiver Bridge V. Dix. Constitutional Provision in respect to Condemnation of Franchises 75 § S3. Exclusive Franchises. Must be plainly granted. Exclusive Fran- chise within " Local Limits " 75 § 84. Private Contracts. Shares of Stock. Effect of Eminent Domain on Contracts ; on Lien for Taxes 76 Private Rights in Public Property. § 85. iNTEODnCTION 77 § 86. State Orants. Grant may be resumed on Compensation. Must be made or authorized by State 77 § 87- What may be granted. Property held in Sovereign or Private Proprietorship. Martin v. Waddell. Cliarlestown v. Commis- sioners. Illinois Central Railroad v. Illinois 78 § 88. Strict Construction of Grant. Intent to grant must be clear. Re- vocable License. Private Use of Public Property subject to Maintenance of Public Use 80 § 89. Possession of Public Lands. Right of Pre-emption. Homestead Right. Timber-Culture Claim 82 § 90. Right in State Property by Prescription or Adverse Possession. Statutes of Limitation. Adverse Possession of Property of Political Corporation ; of Private Corporation 82 § 91. Riparian Rights 83 § 92. Riparian Right denied. New York Rule. Gould v. Railroad. Story V. Railroad 84 Exempt Peopektt. § 93. Land reserved by State not usually exempt from Condemnation 85 § 94. Statutory Exemption. Construction of Statutes 86 §95. Buildings 86 § 96. Improved Land. Gardens. Waters. Railroad Property ... 87 § 97. Exemption by Implication. Property in Public Use. Property " affected with Public Interest." Private Roads 88 § 98. Property not needed for Public Use. Not actually in Public Use. Property pre-empted for Public Use 89 CHAPTER V. THE AUTHORITY TO CONDEMN. § 99. Right of Eminent Domain in Legislature 91 § 100. Sovereign Power cannot be Surrendered. Police Power. Tax Exemption. Agreement by State not to condemn. Twenty- Second Street Case. Agreement of Political or Private Corporation 91 XVI SYNOPSIS. PAGE § 101. Legislative Power cannot be delegated. Conditional Operation of Statute. Authority to Condemn must be derived from Legis- lature "^ § 102. Legislature may confer Right to determine Necessity for Condem- nation upou Tribunal, Political Corporation, or Private Corpo- ration. Condemnation on Petition or Assent of Private Persons 94 Exercise of the Power by Agents. § 103. Eminent Domain exercised by Agents. Personality of Agent. Status of Agent 95 § 104. Agent cannot delegate Discretionary Powers. Location of Works. Selection of Materials. Acts of Contractor. Completion of Contract by Eminent Domain 95 § 105. Compulsory Exercise of Eminent Domain. Worcester v. Railroad Co. Private Persons cannot compel Condemnation .... 96 § 106. Who may be Agents. Constitutional Provisions. Foreign Cor- porations. Individuals. Corporations 97 § 107. Qualification of Agents. Corporate Organization. De Facto and De Jure Corporations. Stock Subscriptions 98 § 108. Transfer of Eminent Domain. Legislative Consent. Judicial Sale of Franchises. Receiver of Insolvent Corporation. Corporate Lease . '. . 99 § 109. The Statutory Authority. Statutes in pari materia. Eminent Domain must be plainly granted. Constitutional Limitations. Strict Compliance with Statutory Provisions. Burden of proving Compliance on Expropriators 101 § 110. Constitutional Requirements in respect to framing Laws . . . 102 § 111. Implied Authority. Statute must contemplate Condemnation. Authority to Purchase 102 § 112. Grant of Eminent Domain not necessarily implied because Ad- vantageous to Authorized Work or because usually made in aid of Similar Works. Grant implied where necessary for the Ful- filment of Legislative Command . 103 § 113. No Condemnation for Uses not included in Grant. Several Uses. Incidental Uses 104 § 114. Construction of Ambiguous Grants 106 § 115. Expiration of Power. Time Conditions 106 § 116. Exhaustion of Power. State Power inexhaustible. Grant to Private Corporation authorizes Completion, Maintenance, and Protection of Works 107 § 117. No Radical Alteration in Plan or Location of Authorized Work 103 §118. Condemnation after Possession taken. After Entry by Agreement. After Wrongful Entry 208 § 119. Ultra Vires. Torts of Corporations. Political Corporations. Matter of Buffalo. Wheeler v. Road Board. Duty of Contractor to inform himself in respect to Corporate Powers .... 109 § 120. Power of Corporation to incur Liability beyond that imposed by Law. — Private Corporation. — Political Corporation . . . no SYNOPSIS. XVU Effect of Alterations in Law. PAGE § 131. Alteration not to impair Vested Rights. Law at Institution of Proceedings governs. Liability for Consequential Injuries imposed after Grant of Charter Ill CHAPTER VI. ACQUISITION OTHER THAN BY CONDEMNATION. §122. Power to Purchase. Distinction between Purchase and Condem- nation 113 § 123. Restraints on Purchase. Authority to Condemn does not always include Power to Purchase. Likeness between Property Con- demned and Property Purchased 114 § 124. Attempt to Purchase Condition is precedent to Condemnation. Agreement to Purchase cannot be arbitrarily Repudiated . . 115 § 125. Acquisition hy Deed. Description 116 § 126. Estate conveyed 117 § 127. Consideration. Exorbitancy 118 § 128. Consideration. Accommodation Works. Breach of Condition 118 § 129. Consideration covers all Injuries due to Proper Construction 119 § 130. Dedication. Right to accept Gift. Dedication of Property al- ready iu Public Use 120 § 131. Acquisition by Parol Agreement. Statute of Erauds. Effect of Parol License. — Conflict of Opinion. CottxiU v. Myrich. Owner cannot sue in Tort after Entry by Consent .... 121 §132. Entry Without Objection. Effect of Ratification 122 § 133. Acquisition by Prescription or Adverse Possession. Experimental Possession. Possession must be continuous in Respect to Use Claimed. Highway by Adverse Possession 122 CHAPTER VII. INTEREERENCES WITH PROPERTY IN FURTHERANCE OE PUBLIC PURPOSES. § 134. Intkoduction. What constitutes a Taking of Property. Several Meanings of Taking 125 Acquisition op Peopeety. § 135. Physical Acquisition. Acquisition not Physical. Destruction. Acts which do not take property 126 Damage to Pkopeett Connected with that Acquieed. § 136. Occupation of Part of Tract. Measure of Damages .... 127 h XVlll SYNOPSIS. Damage to Pkopbety not connected with that Acquired. PAGE § 137. Common-Law Rule protecting Public Agents from Action for Consequential Injuries. Effect of Rule in United States. Question as to Legislative Power to legalize Nuisances . . 128 §138. Who are Agents within Rule ? 129 § 139. Distinction between Political and Private Corporations. Is Dis- tinction Sound? 130 Is the Damage Authorized? § 140. Authority to create Nuisance not Presumed. Authority to do ' Something if it can be done without Nuisance. Authority suffi- cient to protect from Indictment but not from Private Suit . 131 § 141. Express Authority 132 §142. Implied Authority . Former Doctrine. — All Consequential Dam- age Authorized. Present Doctrine. — Liberal Definition of Rights of Property Owner. Distinction between Discretionary and Mandatory Powers. The Asylum District v. Hill . . . 132 § 143. Inferential Authority must cover the Act and the Place of Com- mission ... 134 What is due Care and Skill? § 144. Damage due to Negligence not within Protective Rule. Defec- tive Plan. — Political Corporation 134 § 145. Defective Plan. — Private Corporation 135 What is meant by " Damage ? " § 146. Duty of Property Owner at Common Law. Uylands v. Fletcher. Losee v. Buchanan. Comparison between Ordinary Owner and Public Agent 136 § 147. Physical Interference. Former Definition of a taking. Present Definition. Rule in Pumpelly's Case. Intention of Rule . . 138 § 148. Flooding of Land. Extraordinary Flood 139 § 149. Surface-Water 139 § 150. Casting of Earth, etc. Pollution of Water. Damage by Perco- lation 14Q § 151. Limits of Rule in Pumpelly's Case. — Justice Miller's Comment. Taking by Subtraction \^\ § 152. Water Power Co. v. Raff. Liability of Railroad Company for Smoke, etc -y^^ Special Liability undee Constitution ok Statute. § 153. Lands Clauses Act. American Constitutional and Statutory Pro- visions ijg § 154. Is Liability the same as at Common Law? Heavier Liability according to Omaha v. Kramer. Same Lial)ility according to SYNOPSIS. Xix PAGE Accepted Rule. Proprietors, etc. t. Railroad Co. Suggestion that Liability may be less than at Common Law. Board of Works V. McCarthy 143 § 155. Liability for all Physical Damage. Impairment of Easements . 144 § 156. Liability limited to Injuries from Construction of Works . . 145 § 157. Liability for Injuries from Operation of Works. No Liability for Remote Injuries or Personal luconveniences 146 .Peculiar Statutory Liability. § 158. Liability imposed for Injuries beyond the Common Law . . . 147 Damage done During Construction. § 159. Liability for Injuries done in Course of Construction. Construc- tion of Works in Street. Blasting 147 Interferences with Property subsequent to Original Taking. § 160. Introduction 149 § 161. Use of Property of One Corporation by Another. Crossing of Ways 149 § 162. Imposition of Additional Burden on the Pee. Addition of New Public Use. Substitution of Public Use 150 §163. Bamagefrom, Alteration of Works. Original Compensation covers all Damage due to Lawful Construction. Alteration of Works. Entry for Repair 152 § 164. Damage not covered by Original Compensation. Alteration in Plan of Construction 158 The Affecting of Contracts by the Eminent Domain. Franchises. §165. Reserved Power over Franchises. Colorable Use of Police Power. Power to amend Charters. Right to Property acquired under Franchises. Franchise is Property. How Franchise may be affected 154 § 166. Incidental Taking of Franchises. Taking of Corporate Property may not affect Franchise 155 § 167. Taking by Competition. No Competition in Fact. No Compe- tition in Law 156 §168. Direct Taking of Franchises. Destruction of Franchises . . . 157 Private Contracts. § 169. Effect of Eminent Domain on Contracts relating to Property Condemned. Covenants of Warranty and against Encumbrances 158 § 170. Contract of Lease ; of Sale. Condemnation of Land the Taxes on which are unpaid 159 XX SYNOPSIS. CHAPTEE VIII. LOCATION AND ITS INCIDENTS. PAGE § 171. Introduction. Conveyanoe of Property condemned required by Lands Glauses Act. Conveyance not usual in United States . 160 Choice of Site. Statutory location. § 172. Property condemned by Force of the Statute 160 Discretionary Location. % 173. Discretion in Choice of Site. — Not unlimited. No Condemna- tion beyond State Limits. Condemnation beyond City Limits . 161 § 174. Statutory Restrictions. Railroad Route. Other Restrictions . 161 § 175. Exemption of Houses, etc. Statutory Right of Owner to object to Location 162 § 176. Restrictions other than Statutory. Authority to impair Existing Public Use 163 § 177. Implied Authority to take Property already in PubKc Use . . 164 § 178. Compatibility of both Uses to be found if possible 165 § 179. Crossing of Ways 165 § 180. Longitudinal Occupation of Ways 166 § 181. Whether Owner may object to the Selection of his Property. Whether Corporation can condemn when it owns Available Property 167 Relocation. § 182. No Relocation unless authorized. Exceptional Cases .... 168 Conflicting Claims to Location. §183. Between Expropriator and Purchaser. Between Expropriators . 169 Quantity of Peopeety to be Condemned. § 184. Intkoduction 170 § 185. How much Property may be condemned,. Only Necessary Prop- erty. No Condemnation for Speculative or Private Purposes. No " Damaging " of more Property than necessary . . . .170 § 186. Property needed for Future Use yi\ § 187. Statutory Direction as to Quantity. Width of Right of Way . 171 Hoto much Property may the Public Agent be compelled to take. § 188. Introddction jyg § 189. What is a Tract within the Rule that the Taking of Part of a Tract is a Taking of the Whole. Usually Physical, but may be Land and easement. Must be controlled by Claimant. Contiguous Parcels lyo SYNOPSIS. XXI PAGE § 190. Land put to Siugle Use 174, §191. Condemnation of Whole Tract. Lands Clauses Act 175 § 192. French Law 176 § 193. Law in United States 176 Eights of Parties before Taking is completed. § 194. Introduction. Inconyenience caused by Suspension of Eminent Domain 177 § 195. Entry for Survey 178 § 196. Discontinuance of Proceedings. Property owner cannot compel Completion of Work, but may sometimes prevent Discontin- uance until Compensation is paid 178 § 197. No Discontinuance after Right to Compensation vests . . . 179 § 198. Discontinuance after Assessment of Compensation. — Public and Private Corporations 180 § 199. Eight to discontinue must be exercised reasonably. Compensa- tion for Damage Prior to Discontinuance 181 Rights of Owner before Completion of Taking. § 200. Eights of Disposition and Enjoyment before Taking. Lis Pendens 182 § 201. Inchoate Condemnation 183 CHAPTEE IX. THE ESTATE OR INTEREST CONDEMNED. § 202. Legislature may determine Interest, or may delegate Power to determine . . 184 § 203. The Interest prescribed must be condemned. Be Camp v. Hibernia Railroad 184 § 204. The Interest must be sufficient to support the Public Use. Release or Reservation of Rights to Landowner 186 Acquisition of a Fee. § 205. Pee may be condemned. Whether Nature of Use defines Estate condemned. Character of Property condemned may determine Estate 187 § 206. Whether Pee is Absolute or Conditional. — Taking by State ; by Political Corporation ; by Private Corporation 188 Estate Less than Fee. § 207. Easement usually condemned. Nature of Perpetual and Exclu- sive Easement 190 § 208. Duration of Estate. Perpetual. Limited. Temporary Occu- pation. Taking of Materials 190 XXll SYNOPSIS. PAGE Eights of Enjoyment in the Propbkty condemned. § 209. Introduction _ • • ^^^ § 210. Rights of Enjoyment when Easement is taken. Construction of Necessary Works 1"! § 211. Use of Materials for Construction and Repair ...... 192 § 212. Use of Existing Improvements unless Owner has Right to re- move them 1""* §213. Qrants of Property Condemned or Interests therein. Dedication or Lease of Land condemned. Grants to Third Parties usually invalid ■ 194 § 214. Incidental Uses permitted. Surplus Materials. Surplus Waters 194 Rights of the Owner of the Fee. § 215. Rights of Fee Owner when Surface Easement is condemned. Working of Mines. Use of Surface. Railroad Crossings. No Rights when Pee is condemned 195 Abandonment. § 216. Distinction between Abandonment and Discontinuance. Aban- donment is a Pinal Act 197 § 217- The Bight to Abandon. Abandonment with Assent of Public Authorities. Abandonment cannot be prevented by Private Persons. Jessup v. Loucks 198 § 218. What constitutes an Abandonment. Definite Action .... 199 § 219. Non-user or Misuser not usually of Interest to Owner. Aban- donment not inferred from Pailure to begin Work. Non-user. Diversion to Foreign Use 200 § 220. Abandonment not effected by Change of Agents, by Expiration or Forfeiture of Charter. Whether Substitution of New Under- taking effects Abandonment. Logansport v. Shirk .... 201 § 221. Consequences of Abandonment. Property reverts to Owner. Ownership of Public Improvements. Incidental Grants ex- tinguished 203 CHAPTEE X. COMPENSATION AND DAMAGES. § 222. Distinction between Compensation and Damages 205 Compensation. § 223. Constitutional Obligation not enlarged by prefixing ^m^, etc., to Compensation , 205 § 224. Compensation in Money only. What is Money ? 206 SYNOPSIS. xsiii PAOB § 225. Whether Benefits are to be viewed as Compensation. Compen- sation not to be decreased by Accommodation Works, uuless by Agreement 207 Necessity of Compensation. § 226. Opinion that Compensation is not due on Principle. South Caro- lina Cases. Roads in New Jersey and Pennsylvania .... 208 § 227. Rule that Compensation is due on Principle 209 § 228. Eight to Compensation not founded on Contract. Lien for Compensation, Judgment and Execution for Compensation 209 § 229. Statutory Provision for Compensation. Statute must provide for Compensation. Status of Act not providing for Compensa- tion. Provision in respect to Occupation before Discontinu- ance of Proceedings. Constitutional Declaration of Liability for Consequential Injuries executes Itself. Sufficiency of Pro- vision in General 210 § 230. Legislature cannot fix Compensation nor forbid Consideration of its Proper Elements. Legislature may limit Cost of Under- taking 212 § 231. Whether Proceedings to ascertain Compensation should be be- gun by Owner or Expropriator 213 The Mbasurb os Compensation. § 232. Inteoduction 214 § 233. Compensation according to the Interest acquired. Allowance for Rights reserved to Owner. Compensation for Surface Ease- ment. Compensation based on the Interest the Corporation is entitled to take, rather than on the Interest it may choose to take, Rent for Temporary Occupation. Annual Compensa tion. Eact of Abandonment may reduce Compensation . . 214 Market Value. § 234. Market Value not affected by Peculiar Value to Owner or Ex- propriator. Auction Value 216 § 235. Cost of Property. Owner's Admissions as to Value. Value assessed for Taxation. Appraisement of Property in Earlier Stage of Proceedings 217 § 236. Prices paid for other Lands. Pittsburgh, Src. Railroad v. Patter- son. Prices offered for other Lands 218 § 237- Prices paid in purchasing or condemning other Lands for Work in Question 219 § 238 Present Condition of Land. Property usually valued as it stands. Whether Expropriators may reduce Compensation by refusing Payment for Things that may be removed. Rider v. Stryker . 220 § 239. Rule that Improvements placed on Land belong to Owner. Whether Rule applicable to Public Improvements. Searl v. School District 221 XXIV SYNOPSIS. PAGE § 240. Authorization to condemn Land without the Improvements, or to pay Cost of Removal. Who is to bear Loss if Property selected for Public Use is injured . 222 § 24,L Valuation of Buildings, of Fixtures 224 § 342. Valuation of Products of the Soil, of Minerals. Searle v. Rail- road Go 224 § 243. Present Use of Land. Peculiar Improvements. Good Will of Business 225 § 244. Profits from Agriculture or Business. Profits of franchise. Value of Corporate Stock. Rental Value of Laud .... 226 §245. Present Ada-ptability of Property or Other Uses 227 § 246. Value for other Uses must be actual not speculative ; must not depend on Expenditure of Money. Tact that Land may be used to the Detriment of Public Work in Question does not enhance its Value. Puture Use need not be immediately probable . . 228 § 247. Evidence of Adaptability of Property for Use for vphieh it is con- demned. Land Co. v. Neale 229 § 248. Anticipatory Effect of Use in Question on Market Value. En- hancement of Value by Projection of Work. Depreciation of Value by Projection of Work 230 § 249. Drawbacks to the Value of Property. Property already im- paired by Prior Public Use. Bad Condition of Property. In- security of Property. Other Drawbacks 231 § 250. Legal Restrictions on Use of Property. Property subject to Easement. Incapacity of Owner to sell. Cloud on Title . . 232 § 251. Opening of Street already dedicated 233 Is Market Value the only Standard? § 252. Market Value usual Standard. Value for Special Use only. Compensation may be due although Market Value is not depreciated 234 § 253. Loss due to Removal and Interruption of Business 235 Compensation when Paht of a Tract is condemned. § 254. Introduction. General Rules for Valuation 236 § 255- Effect of Plan of Construction of Works ; of Method of Opera- tion. Eifect of Special Agreement with Owner 237 Injuries to the Remainder of the Tract. § 256. Slight Diiference between a Taking and an Injurious Affecting where Part of a Tract is taken. Evidence of Injury to Other Property 238 § 257. Injuries due to the Construction of Works. Severance .... 238 § 258. Injuries due to the Operation of Works. New York Cases. Eng- lish Opinions 23g § 259, Risk of Eire ! 240 § 260. Smoke, Noise, Vibration, Odors. Danger to Life and Property. Loss of Privacy 241 SYNOPSIS. XXV PAGE § 261. Damage to the Use of Property. Depreciation of Rental Value. Injury to Business by Competition 241 § 262. Owner's Expense in maintaining Utility of Remainder of Tract. Tyson v. Milwaukee. Pences, Farm Crossings , ... 242 § 263. Expense of altering Industrial Plant ; of Duplicating an Improve- ment destroyed. No Allowance for Unnecessary Expense . 244 § 264. No Allowance for Indirect Expenses, or for Works which the Corporation is obliged to construct. Manner of allowing Ex- penses 245 Benefits to the Remainder of the Tract. § 265. Constitutional Provisions in respect to Benefits 246 § 266. General Requisites of a Benefit. Conferred by Public Work in Question. Affects Tract in Question. May be conferred by Whole Work 247 § 267. Benefit must not depend on WiE of Expropriators 248 § 268. Whether Recipient of Special Benefit may compel its Continu- ance. Benefit once allowed cannot be reasserted in Second Pro- ceeding to condemn 249 § 269. General Benefits. Approved on Principle. Disapproved on Principle 250 § 270. Special Benefits 251 § 271. Special Benefit of Access. Remote or Speculative Benefits not considered 252 § 272. Manner of allowing Benefits 253 § 273. Benefits may offset Compensation. Whether Owner may be Debtor to Expropriator for Excess of Benefits over Injuries. — Private Corporation. — Political Corporation 253 Compensation for Pkopektt damaged ok injuriously affected. § 274. Depreciation in Market Value usual Measure of Compensation. Compensation in Case of Peculiar Liability 254 Compensation in Particular Cases. § 275. Personal Property 255 § 276. Materials 255 § 277. Occupation of Ways. Railroad Crossing 256 § 278. Cost of Safety Appliances at Railroad Crossing. Longitudinal Occupation of Railroad. Metropolitan Railway v. Quincy Rail- way 257 Interest. § 279. Delay in Payment of Compensation offset by Interest. When Successor Corporation is chargeable with Interest on Unpaid Compensation 258 XXVI SYNOPSIS. PAGE § 280. Whether Possession of Owner between Assessment and Occu- pation is equivalent to Interest. Interest in Case of Appeal Award from 259 § 281. Interest on Award. Interest from Demand only. Interest in. Case of Right to discontinue 259 Costs. § 282. Costs of Expropriator 260 § 283. Costs of Expropriator where Compensation does not exceed Sum tendered. ErencL Rule. English Rule. American Rule . . 261 § 284. Owner's Costs. Costs on Appeal 261 Time of Valuation. § 285. Property to be valued before it is depreciated by Projection of PubHc Work. Whether Property to be valued after it is en- hanced by Projection of Public Work. Valuation at Date of Taking, of Filing Petition, of Assessment of Compensation . 262 § 286. Time of Valuation when Appeal is taken; when Condemnation takes place after Wrongful Entry, or Entry by Consent ; when Property is injuriously affected 263 Payment. § 287. Payment before Entry. English Rule. French Rule. What is a Proper Tender 261 Time of Payment. § 288. Constitutional Provisions 265 §289. Payment before Title vests. Whethernecessarj. Garrison x. New York. Lien for Compensation . 265 § 290. Payment before Entry. Constitutional and Statutory Provisions. Rule when Property is injuriously affected 266 § 291. Payment after Entry. Provision for Security, Security when State condemns. Connecticut River Railroad v. County Com- missioners 267 § 292. Security of Municipal Corporation 268 § 293. Security of Private Corporation 269 § 294. Payment within Reasonable Time after Entry 269 Who are to pat Compensation ? § 295. Controversy between Municipal Corporation and Railroad Com- pany ; between Political Corporations. Apportionment of Lia- bility. Stockholders not Personally Liable for Compensation. 270 § 296. Lien for Compensation enforceable against Corporation in Pos- session. Whether Successor Corporation liable for Conse- quential Injury inflicted before its Possession. Effect of Judgment for Damages on Successor Corporation ... . 271 SYNOPSIS. XX vh Who aee entitled to Compensation ? PAGE § 297. When State or City is entitled to Compensation 272 § 298. Private Persons. — Introduction . 273 § 299. Expropriators must pay Compensation to True Owner. Owner may recover Compensation from Unlawful Recipient. Pay- ment into Court when Ownership is in Doubt 273 § 300. Persons made Parties to Condemnation Proceedings need not prove Title. One suing for Compensation must prove Title. One having Possessory Title may recover Compensation . . 274 § 301. Payment to Single Owner ; to Owner of Base Fee ; to Guardian or Trustee . . 275 § 302. Apportionment of Compensation. Life Tenant and Reversioner. Dowress. Judgment Creditor 276 § 303. Mortgagee 277 § 804. Lessee 277 § 305. Conflicting Claims to Compensation. Heir and Personal Repre- sentative 279 § 306. Yendor and Vendee 280 Damages for a Trespass. § 307. Intkoductjon 281 § 308. Whether Future Damages can be recovered in an Action of Tres- pass. Common-Law Rule. Single Trespass. Continuing Trespass 281 § 309. Effect of Common-Law Rules where Trespasser is promoting Public Work. Baltimore, ^c. Railroad v. Baptist Church. Ac- tion of Trespass has the eifect of Condemnation Proceeding. — Contrary Decision. Rule where Consequential Injury is due to Lawful Construction, and Statute does not provide a Remedy . 282 § 310. Whether Vendee of Land can recover for Prior Trespass. Pap' penheim v. Elevated Railway 284 § 311. Measure of Damages where Trespass is Single. Measure where Trespass is Continuing. Lahr v. Elevated Railway. Exem- plary Damages 284 CHAPTER XI. PROCEDURE. § 312. Intkoduction 286 § J13. Nature of Eminent Domain Proceedings. Distinction between Proceedings by Expropriator and Action by Owner. Adminis- trative Law. Proceedings in rem 286 §314, Legal Nature of Proceedings. Whether «»Ys a< fazo, etc. Pro- ceedings inappropriate to try or quiet title 287 XXVJll SYNOPSIS. PAGE § 315. Legislative Control over Procedure. Power to alter Forms of Procedure. Effect of Constitutional Alterations in Procedure . 388 The Tribunal. § 316. Commissioners. Jury. Court. Judicial Character of Tribunal 289 § 317. Appointment of Tribunal. Court, Legislature, or Executive may appoint 290 § 318, Vacancy in Tribunal 291 §319. Qualifications of Tribunal. May be prescribed by Legislature . 292 § 320. Disqualification through Interest. Competency of Persons who determine Necessity of Undertaking 292 § 321. Oath of Members of Tribunal 293 § 322. Powers and Duties of Tribunal. Determination of Necessity of Work. Of Manner of Condemnation. Assessment of Com- pensation. No Power to decide Questions of Law . . . 294 § 323. Meeting of Tribunal. Adjournments. All Members must act, but Majority may decide 295 § 324. Ex parte Communications. Acceptance of Entertainment. Re- muneration of Tribunal 296 The Petition. § 325. Introdtjction 296 § 326. The Authority/ to Condemn. Compliance with Conditions Prece- dent. Allegation of Publicity of Work ; of Necessity of Work 297 § 327. Plan of Construction. Estate acquired 298 §328. Description of Property. Degree of Accuracy 299 § 329. Description in Application for laying out Road. Reference to Survey. Name of Owner. Expropriators need not describe Land injuriously affected, nor the Remainder of a Tract . . 300 § 330. Signing of Petition. Qualifications of Petitioner for a Public Work 302 § 331. Verifying Petition. Filing Petition 302 § 332. Marnier of Objecting to Petition. Plea. Answer, Demurrer, or Counter-affidavit 303 Notice. § 333. Necessity of Notice to Owner , . 304 § 334. Notice that the Expediency of an Undertaking is to be deter- mined is not necessary unless the Question is made a Judicial one by Law 304 § 335. Notice that Publicity of Use is to be determined is not Neces- sary. Wliether Owner entitled to Notice that Commissioners are to be appointed 305 § 336. Notice that Compensation is to be assessed is necessary. Notice of Adjournment 305 § 337. What is Sufficient Notice ? Publication. Personal Notice. Application of Doctrine of Constructive Notice 306 § 338. Status of Act not providing for Notice. Whether Accepted Doc- trine of Notice is Sufficient 307 SYNOPSIS. XXIX PAGE § 339. General Principles governing the Making of Parties. Effect of Omission of Partry. Duty to discover True Owner. Effect of Transfer of Title pending Proceedings 308 § 340, Construction of Laws requiring Notification of " Owners " or " Parties interested " 309 § 341. Joinder of Parties. Joinder of Owners of Separate Tracts by Order of the Statute, or when Necessity of Undertaking is to be determined. Usually no Community of Interests between Owners of Separate Tracts 310 § 342. Joinder of Persons interested in Single Tract 311 Conduct of the Cause. § 343. Mode of Procedure in General. Burden of Proof on Question of Necessity ; on Question of Compensation 311 Evidence. § 344. Introdtjction. Opinion Evidence. Competency of Witnesses. Effect to be given to Testimony 312 § 345. Expert Witnesses. When Expert Testimony admissible. Whea inadmissible 313 § 346. Ordinary Witnesses to Value. Whether Expert Testimony ad- missible as to Land Values. Who are Competent Witnesses. Whether Witness may give Opinion as to Amount of Damage or Benefit due to Undertaking 315 § 347- View. Not necessary but proper. Effect to be given to View . 316 § 348. Documentary Evidence 317 § 349. Evidence as to necessity of Works 317 The Report. § 350. Report, Award, or Verdict. Must show Jurisdiction of Tribunal. What is Sufficient Finding as to Necessity of Work. Descrip- tion of Work in Report must coincide with description in Pe- tition. Description of Property condemned . .... 318 § 351. The Award of Compensation. Must be in Money. Must be definite. Award to Owner by Name. Compensation for Sev- eral Properties ; for Several Interests in One Property . . . 319 § 352. Whether Report should separate Compensation for Land taken and for Injuries to Remainder of Tract. Whether Several Inju- ries to Single Tract should be itemized. Whetlier Value of Benefits should be reported. Award not to include Damages for Trespass 320 § 353. Action upon the Report. Confirmatory Action by Court ; by Po- litical Corporation 321 § 354. Power to Amend. Amendment of Petition ; of Report . . . 322 XXX SYNOPSIS. Eeview of Peocebdings. PAGE § 355. At what Stage may Proceedings be reviewed. Review on Ob- jection to Jurisdiction or Procedure ; on Objection to Report . 324 § 356. No Appeal unless allowed by Constitution or Statute. Report may be made conclusive. Status of Conclusive Report . . . 324 § 357. Reasons for setting aside Award. Error in Law. Ealse Repre- sentations. Exeessiveness. Inadequacy 325 § 358. Whether Court of Review may correct Errors in Award . . . 326 § 359. Whether Expropriator may enter pending Appeal from Award . 326 Method of Review. § 360. Appeal 327 § 361. Certiorari. Common-law Writ. Office of Certiorari in Condem- nation Proceedings 328 Statutokt Pkooeedings at the Instance of the Owner. § 362. Form and EfiPeet of Statutory Action 329 § 363. Statutory Remedy Bxelusive. When not Exclusive. Lord Coke's Opinion. Crittenden, v. Wilson. Calking v. Baldwin. Remedy usually Exclusive ■ . . . . 329 § 364. Exclusive Remedy must be Adequate. Need not be followed where Powers are abused. Blanchard v. Kansas City . . . 331 Akbitkation. § 365. Lands Clauses Act. Arbitration comparatively rare in the United States, Instances 331 CHAPTER XII. REMEDIES. § 366. Introduction .... 333 , Who may Complain ? § 367. The State 333 § 368. Stockholders and Taxpayers 333 § 369. Owners of Property affected. De Minimis non curat Lex. Com- plainant must suffer Injury not common to Public. No For- feiture of Corporate Franchise at Suit of Private Person . . 334 Who may be sued? § 370. Claims against the State. State cannot be sued against its Will 335 § 371. Court of Claims. Langford v. United States. Jurisdiction of Court of Claims in Condemnation Cases. Petition of Right inappropriate in the United States. Appropriation of Public Funds to satisfy Claim. Interest on Claim against the State . 336 SYNOPSIS. XX xi PACK § 372. Suits against Servants of the State. Vnited States v. Lee ; Osborn v. Bank of United States; Poindexter v. Greenhow . 337 Remedies of the Propertt Owner. § 873. Introduction 338 § 374. Abatement of Nuisance 339 § 375. Prohibition. Mandamus to institute or expedite Proceedings. Quo Warranto 339 § 376. Recoveri/ of Compensation. Mandamus. Action of Debt . . 340 § 377. Assumpsit in Case of Liquidated Compensation. Whether As- sumpsit may be maintained in Case of Unliquidated Compensa- tion. Smith V. Tripp. Trespass 341 §378. Recoveri/ of Possession. Ejectment. Austin ^ . Rutland . . . 343 § 379. Effect of Verdict in Ejectment. When PnbUc Interest in Under- taking precludes Ejectment 344 Equitable Jurisdiction. § 380. Errors in Procedure not cognizable in Equity. Equitable Juris- diction in Case of Eraud or Mistake in Apportionment of Award 345 § 381. No Equitable Jurisdiction where Legal Eights not settled ; where adequate Remedy at Law. Jurisdiction in Case of Eraud or Mistake 346 § 382. Injunction. Meaning of Irreparable Injury. Pinchin v. Rail- road Co. No Injunction where Applicant is in Laches ; where Benefit to Applicant is Small, and Inconvenience to Public is Great. Bill for Injunction retained for Other Relief . . . 347 § 383. Injunction against Unlawful Attempt to condemn. No Injunc- tion on Account of Apprehension of Nuisance 348 § 384. Decree on Injunction. Effect of Perpetual Injunction. Decree conditioned on Expropriators legalizing their Position. Hender- son V. Railroad Co 349 § 385. Bill in Equity for Compensation. Enforcement of Vendor's Lien. Eoreclosure 350 Remedies of Public Agents. §336. Trespass. Ejectment. Forcible Entry and Detainer. Equitable Relief 351 Estoppel. § 387. Estoppel binds Vendee of Property. Waiver of Constitutional Guarantees . . 352 § 388. Waiver of Compensation. Must be clearly proved. Waiver of Compensation Precedent. Legislature may condition Bight to Compensation upon Presentation of Claim. Waiver by Parol 353 § 389. Irregularities waived by participating in Proceedings ; by Accept- ing Compensation 355 XXXll SYNOPSIS. PAGE § 390. Irregularities waived by Failure to make Reasonable Objection. Proceedings before Competent Tribunal cannot be attacked coUaterally 355 § 391. When are Public Agents ISstopped ? 356 Limitation of Actions. § 392. Statutory Action by Owner. Reasonable Limitation ... 356 § 393. Limitation Laws strictly construed. Whether General Limitation Laws apply to Condemnation Proceedings 357 § 394. Beginning of Period of Limitation. Continuing or Single Tres- pass 358 CHAPTER XIII. THE IMPROVEMENT AND USE OF STREETS. § 395. Intkoduotion 360 § 396. Assumption that the Way has passed into the Control of the Public 360 § 397. Private Ownership of Pee. Public Ownership of Pee. Nature of Public Fee. Public Interest in Street the Same whether gained by Purchase or Condemnation. Public Interest in Street is in State, not City. Authority to use Street must emanate from Legislature. When Abutting Owner can ques- tion Existence of Authority . 361 The Improvement of Streets. § 398. Widening and Narrowing. Grading. No Liability at Common Law for Injuries caused by Grading. Liability in United States when Injury is Physical Encroachment. Right to Lat- eral Support . 362 § 399. Grading Approach to Bridge. Alteration of Grade to facilitate Construction of Railroad ; to improve Streets intersected by Railroad. Grading in Aid of Levee, etc 363 §400 Ohio Rule as to Liability for Injury from Change of Grade. Con- stitutional and Statutory Enactments imposing Liability . . 364 The Uses of Streets. §401. Local Uses. Sewers, Drains. Gas and Water Mains. Cisterns, Lamp-posts. Raised Walk for Pedestrians. Gas Main, etc., in Country Road 365 § 402. Street Railroads. Definition. Horse Railroad. Street Rail- way V. Gumminsville. Steam Motors. Cable Railroads . 366 § 403. Electric Railroads. Halsey v. Rapid Transit Railway . . . 367 § 404. Elevated Railroads. Story's and Lahr's Cases 369 SYNOPSIS. xxxiii PAGE § 405. Steam Railroads. Compensation to be paid where Fee is pri- yate, but not where Fee is public, unless Access is destroyed. Bgerer v. Railroad ... 371 § 406. According to other Decisions, Abutter has Easement in Street which may be affected by Railroad. Rule where Fee of Street is Private, but not in Abutter. Effect of Constitutional Obli- gation to compensate for Property injuriously affected . . . 372 § 407- Telegraph and Telephone Lines. Conflicting Decisions as to whether Plant is Additional Burden on the Fee 373 § 408. Works unrelated to the Thoroughfare Use. Market, Hack-stand, Station 374 Vacation of Streets. § 409. Definition and Effect of Vacation 374 § 410. Destruction of Access. Buccleuch v. Board of Works . . . 375 § 411. Impairment of Access 376 General Conclusions. § 412. The Subject of State control over Streets 377 § 413. Urban and Rural Servitudes 377 § 414. Anticipation of Future Use .... 378 § 415. Ownership of the Fee 378 § 416. basement by Adjacency. Definition and Effect of this Easement 379 CHAPTER XIV. WATERS. § 417. Intkoduction 381 Waterways. § 418. Condemnation for Canals, etc. Navigable Waters 381 §419. Navigable Waters in England ; in United States 382 Private Rights in Navigable Waters. § 420. Use of Subaqueous Soil for Public Purposes not connected with Navigation. Destruction of Dam. Use of Subaqueous Soil for Navigation Works. Diversion of Water for Public Use . 382 § 421. Injury to Riparian Land by Construction of Navigation Works. Pumpelly's Case. Harbor Lines 383 § 422. Has the Riparian Owner a Private Right of Navigation. Bell v. Lyon V. Fishmonger's Co 384 c XXXIV SYNOPSIS. Use of Water. PAGE § 423. Water Supply. Irrigation. Use of Water for Operation of Pub- lic Work 386 §434. Motive Power. Mill Acts. Constitutionality of Acts. Power behind Acts 387 Drainage and Protection. § 435. Introdtjction 388 § 426. Drains. Private Drains. Drainage to protect Public Works. Drainage in Interest of Public Health. Cheesebrough's Case . 388 § 427. Reclamation. Position of Owner of Low Lands at Common Law. Function of Eminent Domain in Keolamation. Re- clamation in Interest of Health ; of Agriculture 389 § 438. Classification of Reclamation Acts. Condemnation of Insalubri- ous Land. Dinghy v. Boston. Reclamation on Application of Owners of Low Lands. Reclamation by Private Corpora- tion 391 § 439. Levees. Duty of Owner of Natural Barrier against Water. Whether Compensation is due for Land needed for Levees. Right of Riparian Owner to protect his Land 393 Fisheries. § 430. Public Fishery. Private Fishery. Regulation of Fishery. Com- pulsory Construction of Fishways. Exercise of Police Power in respect to Time and Manner of Taking Fish ..... 394 Notes of Recent Cases 396 Index 419 TABLE OF CHAPTERS. Chafteb Pase I. The Eminent Domain 1 • II. Jurisdiction 27 III. The Pcblic Use 37 IV. Property - 54 V. The Authority to Condemn 91 VI. Acquisition other than by Condemnation .... 113 VII. Interferences with Private Property in Further- ance or Public Purposes 125 VIII. Location and Its Incidents 160 IX. The Estate or Interest Condemned 184 X. Compensation and Damages 205 * XI, Procedure 286 • XII. Remedies 333 XIII. The Improvement and Use of Streets 360 XIV. Waters 381 Notes of Recent Cases 396 Constitutional Provisions 401 Index 419 TABLE OF CASES. In the following table the reports of the National Reporter System are cited as follows : — A Atlantic Reporter. Fed. Rep. . , Federal Reporter, N. Northern Reporter. N. E Northeastern Reporter. N. W Northwestern Reporter. N. Y. Supp New York Supplement. P Pacific Reporter. So Southern Reporter. S. E Southeastern Reporter. S. W Southwestern Reporter. S. Ct Supreme Court. The reports of the Bancroft- Whitney System are cited as follows: — A. D American Decisions. A. R American Reports. A. S. R American State Reports. PAGE Abbott V. Cottage City (143 Mass. 521, 10 N. E. 325, 58 A. R. 143) 251 V. New York, etc. R. (145 Mass. 450, 15 N. E. 91) 95, 98, 100 (3) V. Supervisors (36 la. 354) 354 Abendroth v. Manhattan R. (122 N. Y. 1, 25 N. E. 496, 19 A. S. R. 496) 370 Acquackanonck Water Co. v. Watson (29 N. J. Eq. 366) . . . 141, 348 Acton i). Blundell (12 M & W. 324) 136 V. County Comm. (77 Me. 128) 295 Adams v. Chicago, etc. R. (39 Minn. 286, 39 N. W. 629, 12 A. S. R. 644) 372, 379, 380 V. Emerson (6 Pick. 57) 193 V. Harrington (114 Ind. 66, 14 N. E. 603) 300 V. Hastings, etc. R. (18 Minn. 260) 283 V. Railroad Co. (110 N. C. 325, 14 S. E. 857) 135 V. St. Johnsbury, etc. R. (57 Vt. 240) . 118, 210, 251, 253, 258 Adden v. White Mts. R. (55 N. H. 413, 20 A. R. 220) 240, 241, 251, 253 XXXVm TABLE OF CASES. PAGE Adler v. Met. El. R. (138 N. Y. 173, 33 N. E. 935) 335 . „. (28 Abb. N. C. 198, 18 N. Y. S. 858) 334 ^tna Mills o. Waltham (126 Mass. 422) 1^5 Agar V. Kegent's Canal (unreported) *' Ahern v. Dubuque Miu. Co. (48 la. 140) 26 Aikiu V. West. K, (20 N. Y. 370) 156 Ake V. Mason (101 Pa. 17) 158 Alabama Gt. South. R. v. Gilbert (71 Ga. 591) 87, 101 Alabama Midland R. v. Williams (92 Ala. 277, 9 So. 203) ... 364 Alabama & F. R. v. Burkett (46 Ala. 569) 241, 243 V. (42 Ala. 83) 316 Albany North. R. v. Browuell (24 N. Y. 345) .... 112, 150, 166 V. Crane (7 How. Pr. 164) 293 V. Lansing (16 Barb. 68) 238, 239, 312 Albany Street (11 Wend. 149, 25 A. D. 618) .... 103, 177, 233 Aldrich v. Cheshire R. (21 N. H. 359, 53 A. D. 212) 152 V. Drury (8 R. I. 554, 5 A. R. 624) 192 V. Providence (12 R. I. 241) 340, 364 Aldworthi). Lynn(153Mass. 53, 26N. E. 229, 25 A. S. R. 608) . 282 Alexander v. Crystal Palace R. (30 Beav. 556; 232 V. Milwaukee (16 Wis. 247) 130 Alexander Ave. (17 N. Y. Supp. 933) 88 Alexandria & E. R. v. Alexandria, etc. R. (75 Va. 780, 40 A. R. 743) 50,157,166 u. Faunce (31 Gratt. 761) 81, 394 Alhauser v. Doud (74 Wis. 400, 43 N. W. 169) 277 Allegheny v. Ohio, etc. R. (26 Pa. 355) 81 Allen V. Boston (137 Mass. 319) 224, 232 V. Charlestown (109 Mass. 243) 251 V. Chippewa Falls (52 Wis. 430, 9 N. 284, 38 A, R. 748) . . 139 V. Jay (60 Me. 124, 11 A. R. 185) 23, 46 V. Jones (47 Ind. 438) 104 V. Northville (39 Hun, 240) 300 V. Sackrider (37 N Y. 341) 18 V. Stevens (29 N. J. L. 509) 41 V. Wabash, etc R. (80 Mo. 646) 340 V. Weber, 80 Wis. 531, 50 N. W. 514, 27 A. S. R. 51) . . . 383 Allgood V. Merrybent, etc. R. (33 Ch.D. 571) 348 Ailing V. Burlock (46 Conn. 504) 158 Allison V. Comm. (54 111. 170) 295 Allnutt V. Inglis (12 East. 527) 19 AUoway v. Nashville (88 Tenn. 510, 13 S. W. 123) 229 Allyn V. Providence, etc. R. (4 R. I. 457) 275 Amador Queen Min. Co. v. Dewitt (73 Cal. 482, 15 P. 74) . . . 45 American Bank Note Co. o. New York El. R. (129 N. Y. 252, 29 N. E. 302) 123 (2), 124, 239, 241 (2), 371 American Cannel Coal Co. v. Huntingdon, etc. R. (130 Ind. 98, 29 N. E. 566) 295, 320 TABLE OP CASES. XXxix PAGE American Print Worts v. Lawrence (21 N. J. L. 248) .... 9 (2) V. (23N. J. L. 590, 57A. D. 420) 9 American Tel. Co. v. Pearce (71 Md. 535, 18 A. 910) 151, 192, 213, 348 Ames V. Lake Superior, etc. R. (21 Minn. 241) .... 102, 288 (2) Amoskeag Co. v. Worcester (60 N. H. 522) ... 29, 196, 219, 227 Anderson v. Caldwell (91 Ind. 451, 46 A. R. 613) 288 V. Henderson (124 111. 164, 16 N. E. 232) 392 V. Kerns Drainage Go. (14 Ind. 199, 77 A. D. 6-3) .... 389 V. Pemberton (89 Mo. 61, 1 S. W. 216) 101 V. St. Louis (47 Mo. 479) 345 V. Township Board (75 Mo. 57) 323 Andertou v. Milwaukee (82 Wis. 279, 52 N. W. 95) . . . 102 (2), 364 Andrew v. Nantasket Beach R. (152 Mass. 506, 25 N. E. 566) . . 275 Anon. (3 Atk. 751) 240 Anspach v. Mahanoy, etc. R. (5 Phila. 491) 167 Anthony v. Adams (1 Met. 284) 110 V. South Kingston (13 R. L 129) 292 Antoinette Street (8 Phila. 461) 245 Arbenz v. Wheeling, etc. R. (33 W. Va. 1, 10 S. E. 14) . 202, 361, 372 Arbrush v. Oakdale (28 Minn. 61) 251 Armstrong v. St. Louis (69 Mo. 309, 33 A. R. 499) 343 Arnold v. Covington, etc. Bridge (1 Duv. 372) 40, 207 V. Hudson River R. (55 N. Y. 661) 72 Ash V. Cummings (50 N. H. 591) ... 98, 178, 267 (2), 329, 331 Askew V. Hale County (54 Ala. 639, 25 A. R. 730) 334 Aspinwall v. Chicago, etc. R. (41 Wis. 474) 230 Astor V. Arcade R. (113 N. Y. 93, 20 N. E. 594) 102 V. Hoyt (5 Wend. 603) 277 V. New York (62 N. Y. 580) 296 Atchison, T. & S. F. R. v. Hammer (22 Kan. 723) 140 V. Schneider (127 111. 144, 20 N. E. 41) . . . 235, 277, 316, 326 V. Weaver (10 Kan. 344) 213 Atchison & N. R. v. Boerner (34 Neb. 240, 51 N. W. 842, 33 A. S. R. 637) 301 V. Gough (29 Kan. 94) 173, 244 Atkinson v. Marietta, etc. R. (15 Ohio St. 21) 102, 169 Atlanta v. Central R. (53 Ga. 120) 88, 253, 290 Atlanta & F. R. v. Blanton (80 Ga. 563, 6 S. E. 584) 349 Atlantic & D. R. v. Peake (87 Va. 130, 12 S. E. 348) 153 Atlantic & O. R. v. Sullivant (3 Ohio St. 276) 99, 287 Atlantic & P. R. v. St. Louis (66 Mo, 228) 106 Atlantic & P. Tel. Co. v. Chicago, etc. R (6 Biss. 158) .... 150 Attwood V. Bangor (83 Me. 582, 22 A. 466) 242 Atty. Gen. v. Conservators, etc. (1 H. & M. 1) 385 V. Delaware, etc. R. (27 N. J. Eq. 631) 65 V. Ean Claire (37 Wis. 400) 51 (2) V. (40 Wis. 533) 51 V. Edison Tel. Co. (L. R. 6 Q. B. D. 224) 105 xl TABLE OF CASES. PAGE Atty. Gen. v. Erie, etc. K. (55 Mich. 15) 198 V. Germantown Turnpike (55 Pa. 466^ 154 V. Leeds (L. R. 5 Ch. 583) 349 V. Metropolitan R. (125 Mass. 515) 366 v. Revere Copper Co. (152 Mass. 444, 25 N. E. 605) ... 82 V. Stevens (1 N. J. Eq. 369, 22 A. D. 526) 99 V. Woods (108 Mass. 436, 11 A. 880) 65, 382 Auburn v. Goodwin (128 111. 57, 21 N. E. 212) 201 Auburn, etc. Plank Road v. Douglass (9 N. Y. 444) 76 Augusta V. Marks (50 Ga. 612) 247 Austin V. Murray (16 Pick. 121) 12 ;;. Rutland R. (45 Vt. 215) 66, 67, 84, 343 Avery v. Fox (1 Abb. C. C. 246) 337, 383 V. Groton (36 Conn. 304) 295 Ayr Harbour Trustees v. Oswald (8 App. Cas. 623) 92, 186 Ayres v. Pennsylvania E. (48 N. J. L. 44, 3 A. 855) 280 V. Richards (41 Mich. 680) 153 V. (38 Mich. 214) 41 Bachler's Appeal (90 Pa. 207) 288 Backus V. Detroit (49 Mich. 110, 13 N. 380, 43 A. R. 447) ... 385 V. Lebanon (11 N. H. 19, 35 A. D. 466) 75, 92, 290 Bacon v. Boston (154 Mass. 100, 28 N. E. 9) 129, 131, 134 Badger v. Boston (130 Mass. 170) 39, 241, 321 Bailey v. Culver (84 Mo. 351) 375 17. New York (3 Hill, 531, 38 A. D. 669) 61 !i. Philadelphia, etc. R. (4 Harr. (Del.), 389, 44 A. D. 593) 112, 385 . V. Sweeney (64 N. H. 296, 9 A. 543) 193 Baines v. Baker (Amb. 158) 240 Baird v. Rice (63 Pa. 489) 62 V. Schuylkill River, etc. R. (154 Pa. 459, 25 A. 838) .... 244 Baker v. Chicago, etc. R. (57 Mo. 265) 121 Balch V. County Comm. (103 Mass. 106) 39, 89, 105, 115 Ball V. Keokuk", etc. R. (74 la. 132, 37 N. W. 110) 315 Ballou V. Ballou (78 N. Y. 325) 266, 280 Balls V. Met Bd. of Works (L. R. 1 Q. B. 337) 261 Baltimore v. Clunet (23 Md. 449) 177 V. Hook (62 Md. 371) 183 V. Little Sisters of the Poor (56 Md. 400) 306 V. Rice (73 Md. 307, 21 A. 181) 278 V. Warren Man. Co. (59 Md. 96) 68 Baltimore Belt R. u. Baltzell (75 Md. 94, 23 A. 74) . . 290, 307, 396 Baltimore & H. R. v. Algire (63 Md. 319) ' . . ' 121 V. (65 Md. 337, 4 A. 29-3) 108, 122 Baltimore & O. R. v. Boyd (63 Md. 325) .... 221, 285, 342, 360 V. (67 Md. 32, 10 A. 315, 1 A. S. R. 862) 285 V. North (103 lud. 486, 3 N. E. 144) 167 TABLE OP CASES. xli PAGE Baltimore & O. R. v. Pittsburgh, etc. R. (17 W. Va. 812) 36, 98, 160, 293, 305, 312 (2) V. School District (96 Pa. 65, 42 A. R. 529) 139 V. Thompson (10 Md. 76) 241, 309 Baltimore & P. R. v. Baptist Church (108 U. S. 317, 2 S. Ct. 719) 129, 130, 132, 134, 142, 282, 358 V. (137 U. S. 568, 11 S. Ct. 185) 134, 282 V. Reaney (42 Md. 117) 130, 134, 364 Baltimore & S. R. v. Nesbit (10 How. 395) .... 181, 264, 288 Baltimore Traction Co. v. Baltimore Belt R. (151 U. S. 137) . . 396 Bambaugh v. Bambaugh (11 S. & R. 191) 25 Bancroft v. Cambridge (126 Mass. 438j 262, 391 Bangor & P. R. v. Chamberlain (60 Me. 285) 262 V. McComb (60 Me. 290) 127, 205, 238, 241, 258 Banigan v. Worcester (30 Fed. R. 392) 28, 36 Bank of Auburn v. Roberts (44 N. Y. 192) 84, 274 Bank of Augusta v. Earle (13 Pet. 519) 27 Bankhead v. Brown (25 la. 540) 41, 45 Barbadoes Street (8 Phila. 498) 317, 326 Barclay v. Pickles (38 Mo. 143) 159 Barker v. Steel Co. (129 Pa. 551, 18 A. 553) 99, 194, 348 V. Taunton (119 Mass. 392) 354 Barkley v. Wilcox (86 N. Y. 140, 40 A. R. 519) 137 (2) Barlow v. Chicago, etc. R. (29 la. 276) 200 V. Highway Comm. (59 Mich. 443, 26 N. W. 665) .... 295 V. Ross (24 Q. B. D. 381) 72 Barnes v. Dyer (56 Vt. 469) 24 V. Michigan Air Line R. (65 Mich. 251, 32 N. W. 426) . . . 152 V. New York (27 Hun, 236) 260 V. Southsea R. (27 Ch. D. 536) 176 Barnett v. Johnson (15 N. J. Eq. 481) 187, 189, 191, 379 V. St. Anthony Falls Co. (33 Minn. 265, 22 N. 535) .... 246 Barney v. Keokuk (94 U. S. 324) 35^ 65, 66, 377 Barnstable Sav. Bank v. Boston (127 Mass. 254) 340 Barre v. Fleming (29 W. Va. 314, 1 S. E. 731) 84 Barre R^v. Granite R. ) ^g^ ^^ ^^ ^ ^^ ^ , . igg V. Montpelier R. j ^ ' '' j 89, 121 Barre Water Co. (62 Vt. 27, 20 A. 109) 106, 195,' 388 Barrett v. Palmer (135 N. Y. 336, 31 N. E. 1017) 30, 55 Barron v. Baltimore (7 Pet. 243) 33 Bartemeyer v. Iowa (18 Wall. 129) 11 Barter v. Commonwealth (3 Pen. & W. 253) 365 Bartlett v. Bristol (24 A. 906) 331 V. Tarrytown (52 Hun, 380, 5 N. Y. S. 240) 115 V. Wilson (59 Vt. 23, 8 A. .321) 306 Barto V. Himrod (8 N. Y. 483, 59 A. D. 506) 93 Bass V. Elliott (105 Ind. 517, 5 N. E. 663) 287 V. Ft. Wayne (121 Ind. 389, 23 N. E. 259) .... 88, 291, 345 xlii TABLE OF CASES. PAGE Bass V. Koanoke Nav. Co. (Ill N. C. 439, 16 S. E. 402) . . -25, 202 V. State (34 La. An. 494) . 393 Bassett v. Salisbury Man. Co. (47 N. H. 426) 34' Bates V. Westborough (151 Mass. 174, 23 N. E. 1070) 389 V. Weymouth Iron Co. (8 Cush. 548) 387 Battles V. Braintree (14 Vt. 348) 353 Beach o. Miller (51 111. 206, 2 A. R 290) 158 V. Rochester (22 Hun, 158) 140 Beal V. New York Cent. etc. R. (41 Hun, 172) 187 Bean v. Kulp (7 Phila. 650) 309 V. Warner (38 N. H. 247) 281 Bear v. Alleutown (148 Pa. 80, 23 A. 1062) 135 Beardslee«. French (7 Conn. 125, 18 A. D.-596) 201 Beatty v. Beethe (23 Neb. 210, 36 N. W. 494) 306, 347 Beck V. Louisville, etc. R. (65 Miss. 172, 3 So. 252) . . . 121, 329 Becker «. Chicago, etc. R. (126 111. 436, 18 N. E. 564) 278 Bedlow K. Dry Dock Co. (112 N. y. 263, 19 N. E. 800) .... 78 Beekman i-. Jackson County (18 Or. 283, 22 P. 1074) 251, 253, 295, 321 V. Saratoga, etc. R. (3 Paige, 45, 22 A. D. 679) . . 41, 46, 388 Beer Company v. Massachusetts (97 U. S 25) 11 Beidler's Appeal (25 W. N. C. 451) 360 Belcher Sugar Ref. Co. v. Elevator Co. (82 Mo. 121) . . . .52, 194 Bell V. Cox (122 Ind. 153, 23 N. E. 705) 309 ;;. Gough (23 N. J. L. 624) 84 V. Hull, etc. R. (1 Ry. Cas. 616) 346 V. Norfolk South. R. (101 N. C. 21, 7 S. E. 467) 152 V. Quebec (5 App. Cas. 84) 385 (3) Bellinger v. New York Cent. R. (23 N. Y. 42) . . . 130, 132, 138 Bellingham Bay R. v. Loose (2 Wash. 500, 27 P. 174) 331 Bemis v. Springfield (122 Mass. 110) 190 Benedict v. State (120 N. Y. 228, 24 N. E. 314) 354, 357 Benham v. Dunbar (103 Mass. 365) 218, 219 V. Potter (52 Conn. 248) 199 Benner v. Dredging Co. (134 N. Y. 156, 31 N. E. 328, 30 A. S. R. 649) 128, 130 Bennett v. Boyle (40 Barb. 551) 194 V. Comm. (56 Mich. 634, 23 N. W. 449) 300 Bennett's Branch Co. Appeal (65 Pa. 242) 44 Bensley v. Water Co. (13 Cal. 306, 73 A. D. 575) 183 Benson v. Morrow (61 Mo. 345) 65 I). New York (10 Barb. 223) 62 Benton v. Brookline (151 Mass. 250, 23 N. E. 846) .... 223, 230 Bentonville R. v. Baker (45 Ark. 252) 276 V. Stroud (45 Ark. 278) 274, 303 Berks Street (15 Phila. 381) ' 233 Bertsch v. Lehigh, etc. Co. (4 Rawle, 130) 356 Beseman v. Pennsylvania R. (50 N. J. L. 235, 13 A, 164) 110, 128, 130, 134, 142 (2) TABLE OF CASES. xliii PAGE Beseman v. Pennsylvania R. (52 N. J. L. 221, 20 A. 169) . . . 142 Bethlehem Gas Co. v. Yoder (112 Pa. 136, 4 A. 42) . . . . 285, 342 Betts 1'. New Hartford (25 Conn. 280) 334 V. Williamsburg (15 Barb. 255) 253 Beveridge v. Park Comm. (100 111. 75) 260 Bevier v. Dillingham (18 Wis. 529) 345 Biddle v. Hussman (23 Mo. 597) 3, 159 Bigaouette v. North Shore R. (17 Can. S. C. 363) ' 319 Bigelow V. West Wisconsin R. (27 Wis. 478) 205 Big Rapids v. Comstock (65 Mich. 78, 31 N. W. 811) 201 Billings V. Berry (50 Me. 31) 216 Binghamton Bridge (3 Wall. 51) 75, 156 Binney v. Chesapeake, etc. Canal (8 Pet. 201) 381 Birdsall v. Gary (66 How. Pr. 358) 188 Birge v. Chicago, etc. R. (65 la. 440, 21 N. W. 767) . . . 309, 331 Birmingham, etc. R. v. The Queen (20 L. J. Q. B. 304) .... 340 Bischoff V. New York El. R. (138 N. Y. 257, 33 N. E. 1073) . 175, 371 Bishop V. North (11 M. & W. 418) 105 V. Superior Court (87 Cal. 226) 339 Bizer v. Hydraulic Co. (70 la. 145, 30 N. W. 172) 272 Black V. Baltimore (50 Md. 235, 33 A. R. 320) 177, 180 V. Delaware, etc. Canal (24 N. J. Eq. 455) 42, 77 Blackman v. Halves (72 Ind. 515) 41 Black River Imp. Co. v. La Crosse, etc. Co. (54 Wis. 659, 11 N. 443) 280, 383 Black River & M. R. v. Barnard (9 Hun, 104) 230 Blackwell v. Old Colony R. (122 Mass. 1) 385 Blake v. County Comm. (114 Mass. 583) 296 (2) II. Rich (34 N. H. 282) 193 Blakeman v. Glamorganshire Canal (1 My. & K. 154) 108 Blanchard v. Detroit, etc. R. (31 Mich. 43, 18 A. R. 142) . . 119 (2) V. Kansas City (16 Fed. R. 444) 331 Blaney v. Salem (35 N. E. 858) 228 Blashfield v. Empire State Tel. Co. (71 Hun, 532) 373 Blesch V. Chicago, etc. R. (43 Wis. 183) 342 Bliss f. Hosmer (15 Ohio, 44) 96 Blodgett V. Utica, etc. R. (64 Barb. 580) 321 Bloodgood V. Mohawk, etc. R. (18 Wend. 9, 31 A. D. 313) . . 46, 210 Bloomfield Gas Light Co. v. Calkins (62 N. Y. 386) ... 366, 377 V. Richardson (63 Barb. 437) 39 Bloomfield R. v. Grace (112 Ind. 128, 13 N. E. 680) . . . .96, 354 V. Van Slike (107 Ind. 480, 8 N. E. 269) 209, 343 Bloomington v. Brokaw (77 III. 194) 341 V. Miller (84 111. 621) 180 V. Pollock (141 111. 346, 31 N. E. 146) 364 Board of Education k. Hackman (48 Mo. 243) 39 Board of Health v. Van Hoesen (87 Mich. 533, 49 N. W. 894) 39, 44, 52 Board of Park Comm. v. Armstrong (45 N. Y. 234, 6 A. R. 70) . 39 Xliv TABLE OF CASES. PAGE . 325 71,89 . 71 . 341 . 373 Board of Street Opening (111 N. Y. 581, 19 N. E. 283) . . (133 N. Y. 329, 31 N. E. 102, 2 A. S. R. 640) . . • (62 Hiin, 499, 16 JST. Y. S. 894) Board of Supervisors v. Buffalo (63 Hun, 565, 18 N. Y. S. 635) Board of Trade Tel. Co. v. Barnett (107 111. 507, 47 A. R. 453) Bohan !;. Gas Co. (122 N. Y. 18, 25 N. E. 246) 130, 134 Bohlman v. Green Bay, etc. R. (40 Wis. 157) . . . 101, 294 (2), 349 Bohm V. Met. El. R. (129 N. Y. 576, 29 N. E. 802) . 173, 248, 250, 253 (2), 254 Bohr V. Neuenschwander (120 Ind. 449, 22 N. E. 416) 218 Boles V. Boston (136 Mass. 398) 224 Bonaparte v. Camden, etc. R. (Bald. C. C. 205) 2, 36, 41, 52, 178, 209, 211, 348 Bond V. Wool (107 N. C. 139, 12 S. E. 201) 84 Bonner v. Patterson (44 111. 253) 276 Booker v. Venice, etc. B. (101 111. 333) ........ 172, 278 Bookman v. New York El. R. (133 N. Y. 302, 33 N. E. 333) 217, 248, 252, 253 Bookwalter v. Black River Bridge (38 Pa. 281) 147 Boom Co. V. Patterson (98 U. S. 403) 36, 44, 160, 208, 216, 227, 229 Boonville v. Ormrod's Adm. (26 Mo. 193) 308 Booth V. Rome, etc. R. (140 N. Y. 267, 35 N. E. 592) . . 130, 149 V. Woodbury (32 Conn. 118) 22 Boothby v. Androscoggin, etc. R. (51 Me. 318) 141 Bordentown Turnpike v. Camden, etc. R. (17 N. J. L. 314) ... 156 Borough of Easton's Appeal (47 Pa. 255) 210 Borough of Verona (108 Pa. 83) 349 Bostock V. North Staffordshire R. (4 E. & B. 798) 189 Boston V. Brookline (156 Mass. 172, 30 N. E. 611) 165 V. Richardson (13 Allen, 146) 365 Boston Belting Co. v. Boston (149 Mass. 44, 20 N. E. 820) . 135, 330 Boston Gas Co. v. Old Colony R. (14 Allen, 444) 72, 192 Boston H. & W. R. (79 N. Y. 64) 150, 165, 297, 302 V. (22 Hun, 176) 216, 229 Boston Road (27 Hun, 409) 317 Boston Water Power Co. v. Boston, etc. R. (23 Pick. 360) . . . 155 Boston & A. R. (53 N. Y. 574) 88, 165 u. Cambridge (159 Mass. 283) 256 Boston & L. R. v. Salem & L. R. (2 Gray, 1) 76, 103, 156 Boston & M. B. v. Babcock (3 Cush. 228) 117 V. Lowell & L. R. (124 Mass. 368) 88, 165 Boston & P. R. V. Midland R. (1 Gray, 340) 100 Boston & R. Mill Corp. v. Newman (12 Pick. 467, 23 A. D. 622) . 196 Boston &. W. R. V. Old Colony R. (12 Cush. 605) 226 V. (3 Allen, 142) 313, 315 Bothe V. Dayton, etc. R. (37 Ohio St. 147) 343 Bottoraly v. Chism (102 Mass. 463) . 88 Boulat u. Municipality No. 2 (5 La. An. 363) 177 TABLE OP CASES. xlv PAGE Bourne v. Liverpool (33 L. J. Q. B. 15) 279 Bowditch V. Boston (101 U. S. 16) 9 Bowler v. Perrin (47 Mich. 154, 10 N. 180) 294 Bowman w. "Venice, etc. R. (102 111. 459) 311, 322 Boyd V. Negley (40 Pa. 377) 167, 298, 310, 322 Bradley v. Frankfort (99 Ind. 417) 355 V. Missouri Pacific R. (91 Mo. 493, 4 S. W. 427) 343 y.v New York, etc. R. (21 Conn. 294) .... 95, 145 (2), 364 Bradshaw v. Citizens' St. R. (Ind. Super. Ct. 1888) 374 V. Rogers (20 Johns. 103) 101 Bradstreet u. Erskine (50 Me. 407) 293 Brady v. Fall River (121 Mass. 262) 152 V. Northwest Ins. Co. (11 Mich. 425) 12 Brainard v. Clapp (10 Cush. 6) 193 V. Missisquoi R. (48 Vt. 107) 152, 202, 244, 372 Brakken v. Minneapolis, etc. R. (29 Minn. 41, 11 N. 124) . . . 377 Branahan ». Hotel Co. (39 Ohio St. 333, 48 A. R. 457) .... 374 Brevoort ;;. Grace (53 N. Y. 245) 25 Brewer v. Bownaan (9 Ga. 37) 40 Brewster v. Sussex R. (40 N. J. L. 57) 282 Brickett v. Aqueduct Co. (142 Mass. 394, 8 N. E. 119) . . 213, 331 Bridgeport v. Giddings (43 Conn. 304) 292, 293 . New York, etc. R. (36 Conn. 255, 4 A. R. 63) 165, 167, 252, 256 Bridge Proprietors v. Hoboken (1 Wall. 116) 157 „. (13 N. J. Eq. 503) 157 Bridgman v. St. Johnsbury, etc. R. (58 Vt. 198, 2 A. 467) 218, 271 (2), 280 Briggs V. Cape Cod Canal (137 Mass. 71) 107, 269 — V. Comm. (39 Kan. 90, 17 P. 331) 182 V. Lewiston, etc. B. (79 Me. 363, 1 A. S. R 316) 367 Brigham v. Agricultural Branch R. (1 Allen, 316) 168 V. Edmands (7 Gray, 3.39) 38, 93, 190 ■ — - V. Worcester County (147 Mass. 446, 18 N. E. 220) .... 271 Bright V. Piatt (32 N. J.'Eq. 362) 277 Brill V. Humane Society (4 Ohio, C. C. 3,58) ......... 12 Brimmer D. Boston (102 Mass. 19) 92,158,320,356 Brinckerhofi o. Wemple (1 Wend. 470) 274 Bristol II. New Chester (3 N. H. 524) 209 Bristow V. Coi-mican (3 App. Cas. 641) 65 Broadbent v. Gas Co. (7 De G. M. & G. 436) 131 Broadway, etc. R. (73 Hun, 7) 99 Broadwell v. Kansas City (75 Mo. 213, 42 A. R. 406) 362 Brock V. Barnet (57 Vt. 172) 190 V. Hishen (40 Wis. 674) 267 V. Old Colony R. (146 Mass. 194, 15 N. E 555) . 287, 298, 307 Brocket v. Ohio, etc. R. (14 Pa. 241, 53 A. D. .534) 71 Brockhausen v. Bochland (137 111. 547, 27 N. E. 458) 203 Rronson v. Woolsey (17 Johns. 46) . 10 Xlvi TABLE OF CASES. PAGE Brooklyn v. Copeland (106 N. Y. 496, 13 N. E. 451) 353 V. Meserole (26 Wend. 132) 3*5 Brooklyn, Matter of (73 N. Y. 179) 233 (73 Hun, 499) 277 Brooklyn Heights (48 Barb. 288) 234 Brooklyn Park Comm. «. Armstrong (45 N. Y. 234, 6 A. R. 70) 187 (2), 188, 249 Brooklyn Street (118 Pa. 640) 234 Brooklyn W. & N. R. (72 N. Y. 245) 106 Brooks V. Boston (19 Pick. 174) 148 V. Cedar Brook Imp. Co. (82 Me. 17, 19 A. 87, 17 A. S. R. 459) 384 V. Davenport, etc. E. (37 la. 99) 238 Brookville, etc. Co. v. Butler (91 Ind. 134, 46 A. R. 580) . 196, 354 Broome v. New York, etc. Tel. Co. (42 N. J. Eq. 141, 7 A. 851) . 373 Brower v. Philadelphia (142 Pa. 350, 21 A. 828) 358 Brown v. Beatty (34 Miss. 227, 69 A. D. 389) 207, 330 V. Calumet River R. (125 111. 600, 18 N. E. 283) 47, 216, 217 (2), 333 V. Comm. for Railways (15 App. Cas. 240) . . 225, 227, 314, 326 V. Corey (43 Pa. 495) 71 V. County Comm. (12 Met. 208) 274, 309 V. Duplessis (14 La. An. 842) 366 «. Huger (21 How. 305) 338 V. Maryland (12 Wheat. 419) 31 V. Philadelphia, etc. R. (.58 Md. 539) 107 V. Providence, etc. R. (12 R. I. 238) 315, 316 „. (5 Gray, 35) 149, 217, 232, 252 y. Rome, etc. R. (86 Ala. 206) 115 (2), 275, 298 V. Worcester (13 Gray, 31) 223 Brunswick & A. R. r. McLaren (47 Ga. 546) 220, 316 Bryan v- Branford (50 Conn. 246) 40 Buccleuch v. Met. Bd. of Works (L. R. 5 H. L. 418) . . 84 (2), 85, 241 (3), 376 (2) Buchanan County Bank v. Cedar Rapids, etc. R. (62 la. 494, 17 N. 737) 96 Buchner v. Chicago, etc. R (56 Wis. 403, 14 N. 273) 345 V. (60 Wis. 264, 19 N. 56) 364 Buckingham v. Smith (10 Ohio, 288) 38 Buckley v. Drake (41 Hun, 384) 293 Budd V. New Jersey R. (14 N. J. L. 467) 340 V. New York (143 IT. S. 517, 12 S. Ct. 468) 17, 20 Buell !'. Lockport (8N. Y. 55) 356 V. Worcester County (119 Mass. 372) 244 Buffalo V. Chadeayne (134 N. Y. 163, 31 N. E. 443) 11 i'. Pratt (131 N. Y. 293, 30 N. E. 223) 234 Buffalo, Matter of (68 N. Y. 167) 166 ^(78N.Y, 362) ioi, 109 (139N. Y.422) 161, 287 (2), 290 TABLE OF CASES. xlvii PAGE Buffalo, Matter of (15 N. Y. S. 123) 47 (17 N. Y. S. R. 371, 1 N. Y. S. 371) 279 (46 N. Y. S. R 81, 18 N. Y. S. 881) 102 (72 Hun, 422) 166 Buffalo, N. Y. & P. R. (82 Hun, 289) 296 V. Harvey (107 Pa. 319) 271, 272 Buffalo Bayou, B. & C. R. i'. Ferris (26 Tex. 588) .... 248, 288 Buhl V. Fort Street, etc. Depot Co. (98 Mich. 596, 57 N. W. 829) 400 Bullock V. Wilson (2 Port. 436) 65 Bumpus V. Miller (4 Mich. 159) 122 Burbank v. Fay (65 N. Y. 57) . . . . 58, 77, 82, 83, 194, 199, 250 Burcky v. Lake (30 111. App. 23) 247 Burgess v. Gray (16 How. 48) 83 Burghardt v. Turner (12 Pick. 534) 25 Burk 0. Hill (48 Ind. 52, 17 A. R. 731) 158 V. Simonson (104 Ind. 173, 2 N. E. 309, 54 A. R. 304) 28, 248, 249 Burkam v. Ohio, etc. R. (122 Ind. 344, 23 N. E. 799) . 121, 253, 270 Burke v. Savings Bank (12 R. I. 513) 25 Burlington & C. R. v. Schweikart (10 Col. 178, 14 P. 329) . . 207 (2) Burlington, K. & S. R. v. Johnson (38 Kan. 142, 16 P. 125) ... 82 Burlington & X. R. v. White (28 Neb. 166, 44 N. W. 95) ... . 315 Burnett )). Sacramento (12 Cal. 76, 73 A. D. 518) 73 Burnham v. Thompson (35 la. 421) 388 Burritt v. New Haven (42 Conn. 174) 270, 364 Burroughs v. Whitwam (59 Mich. 279, 26 N. W. 491) 382 Burrow v. Terre Haute, etc. R. (107 Ind. 432, 8 N. E. 167) . 117, 119 Burt «. Ins. Co. (115 Mass. 1) 263, 276 V. (106 Mass. 356, 8 A. R. 339) ... 30, 32, 38, 103, 115 V. Wigglesworth (117 Mass. 302) 228, 312 Bush V. Peru Bridge (3 Ind. 21) 76 Butchers' Ice Co. v. Philadelphia (156 Pa. 54, 27 A. 376) 115, 135, 145 Butchers' Union Co. v. Crescent City Co. (Ill U. S. 746,4 S. Ct. 652) 91 Butler V. Sewer Comm. (39 N. J. L. 665) 206, 207 ■ B.Thomasville (74 Ga. 570) 140 Butman v. Vermont Cent. R. (27 Vt. 500) 326, 356 Butt V. Riffe (78 Ky. 3.52) 159 Butte County v. Boydston (64 Cal. 110, 29 P. 511) 243 Bygrave v. Met. Bd. of Works (32 Ch. D. 147) 345 Cage V. Tragar (60 Miss. 563) 214 Cain V. Chicago, etc. B. (54 la. 255, 3 N. 736, 6 N. 268) . . 282, 283 Cairo & F. R. u. Trout (32 Ark. 17) 289 V. Turner (31 Ark. 494) 211 Cake «. Philadelphia, etc. B. (87 Pa. 307) 164 Caledonian R. v. Ogilvy (2 Macq. H. L. C. 229) 321 V. Walker's Trustee (7 App. Cas. 259) . . . 128, 144, 145, 377 California v. Cent. Pacific R. (127 U. S. 1, 8 S. Ct. 1) .... 31 California Cent. R. v. Hooper (76 Cal. 404, 18 P. 599) . 100, 101, 163 xlviii TABLE OF CASES. PAGE California Pacific R, v. Cent. Pacific R. (47 Cal. 528) 328 California South. R. v. South. Pacific R. (67 Cal. 59) 324 California Tel. Co. v. Alta Tel. Co. (22 Cal. 398) 75, 156 Calking v. Baldwin (4 Wend. 667, 21 A. D. 168) . . .98, 329, 330 Call V. County Comm. (2 Gray, 232) 356 Callam v. Saginaw (50 Mich. 7, 14 N. 677) 59, 61 Callanan v. Port Huron, etc. R. (61 Mich. 15, 27 N. W. 718) 205, 342 Callen v. Junction City (43 Kan. 627, 23 P. 652) 127 Callender v. Marsh (1 Pick. 417) 362 Calumet River R. v. Brown (136 111. 322, 26 N. E. 601) .... 309 V. Moore (124 111. 329, 15 N. E. 764) 227, 228 Cambria Street (75 Pa. 857) 294 Cambridge v. County Comm. (117 Mass. 79) 213 Cambridge R. v. Charles River R. (139 Mass. 454, 1 N. E. 925) . 257 Camden v. Mulford (26 N. J. L. 49) 329 Cameron v. Chicago, etc. R. (42 Minn. 75, 43 N. W. 785) . . . 173 V. Pittsburgh, etc. R. (27 A. 668) 174 Campbell v. Fogg (132 Ind. 1, 31 N. E. 454) 305 V. Met. St. Ry. (82 Ga. 320, 9 S. E. 1078) . . 146 (2), 266, 367 Canal Appraisers u. People (17 Wend 509) 383 (2) Canal & C. R. v. Crescent City R. (41 La. An. 561, 6 So. 849) 157, 257 Canton, A. & N. R. u. French (68 Miss. 22, 8 So. 512) .... 321 Cape Girardeau Co. v. Renfroe (58 Mo. 265) 151 Cape Girardeau Road v. Dennis (67 Mo. 429) 168 Capel V. Child (2 Cr. & J. 558) 304 Carbon Coal Co. v. Drake (26 Kan. 345) 210, 348 Carl V. Sheboygan, etc. R. (46 Wis. 625, 1 N. W. 295) .... 283 Carli V. Stillwater, etc. R. (16 Minn. 260) 281 V. (28 Minn. 373, 10 N. 205, 41 A. R. 290) 367 Carman v. Steubenville, etc. R. (4 Ohio St. 399) 149 Carother's Appeal (118 Pa. 468, 12 A. 314) 44, 101, 102 Carpenter v. County Comm. (21 Pick. 258) 340 V. Easton, etc. R. (24 If. J. Eq. 249) 153, 345 V. (24 N. J. Eq. 409) 345 V. (26 JST. J. Eq. 168) 326, 345 V. Oswego, etc. R. (24 N. Y. 655) 343 V. State (12 Ohio St 4.57) 160 Carr v. State (127 Ind. 204, 26 N. E. 778, 22 A. S. R. 624) ... 337 Carris v. Comm. (2 Hill, 443) 87 Carroll v. Wisconsin Cent. R. (40 Minn. 168, 41 N. W. 241) . . 142 Carson v. Blazer (2 Binn. 475, 4 A. D. 463) 65 V. Coleman (11 N. J. Eq. 106) 103, 207, 348, 384 V. Hartford (48 Conn. 68) ISO Carthage v. Frederick (122 N. Y. 268, 25 N. E. 480, 10 A. S. R. 490) 14 Cary Library o. Bliss (151 Mass. 364, 25 N. E. 92) 74 Case V. Toftus (39 Fed. R. 730) 84 Cassidy v. Chicago, etc. R. (70 Wis. 440, 35 N. W. 925) .... 122 V. Old Colony R. (141 Mass. 174, 5 N. E. 142) . . . 119, 140 TABLE OP CASB3. xlix PAGE Castle V. Berkshire (11 Gray, 26) 376 Cavanagh v. Boston (139 Mass. 426, 1 N. E. 834, 52 A. R. 716) 104, 110, 391 Cedar Rapids (51 N. W. 1142) 178, 269 Cedar Rapids, etc. R. v. Raymond (37 Minn. 204, 83 N. W. 704) . 240 V. Ryan(37 Minn. 38, 33 N. W. 6) 228 Cemetery Ass'n v. Redd (33 W. Va. 262) 39, 51, 298 (2) Central Bridge v. Lowell (15 Gray, 106) 174, 224 !). (4 Gray, 474) 157 Central Branch U. P. R. o. Andrews (26 Kan. 702) 284 V. Atchison, etc. R. (26 Kan. 669) . . , 101, 107 B. (28 Kan. 453) 327 Central City R. v. Ft. Clark R. (81 111. 523) 166 Central Pacific R. v. Pearson (35 Cal. 247) . . . 219, 228, 235, 318 Central Park Extension (16 Abb. Pr. 56) 277, 325 Central R. v. Hudson Terminal R. (46 N. J. L. 289) 116 0. Pennsylvania R. (31 N. J. Eq. 475) . 70 Central Union Tel. Co. v. State (118 Ind. 194, 19 N. E. 604, 10 A. S. R. 114) 20 Chad's Ford Turnpike (5 Binn. 481) 295 Chaffee's Appeal (56 Mich. 244, 22 N. W. 871) 211, 248 Chagrin Falls Co. v. Cane (2 Ohio St. 419) 151, 202 Chalcraft v. Louisville, etc. R. (113 111. 86) 197 Challis !). Atchison, etc. R. (16 Kan. 117) 189 Chambers v. Carteret & S. R. (54 N. J. L. 85, 22 A. 995) .... 309 V. South Chester (140 Pa. 510, 21 A. 409) 244, 255 Chandler v. Aqueduct Co. (122 Mass. 305) 219 V. (125 Mass. 544) 275, 314 Chaplin v. Comm. (129 111. 651, 22 N. E. 484) 211 Chapman v. Gates (54 N. Y. 132) 268, 339 V. Oshkosh R. (33 Wis. 629) 173, 233 Chappell V. New York, etc. R. (62 Conn. 195, 24 A. 997) .... 120 V. United States (34 Fed. R. 673) 126 V. Waterworth (39 Fed. R. 77) 57 Charles River Bridge v. Warren Bridge (11 Pet. 420) 76 (3), 156, 212 Chase v. Rutland (47 Vt. 393) 293 V. Sutton Man. Co. (4 Cush. 152) 202, 204 Chasemore v. Richards (7 H. L. Cas. 349) 136 Chattanooga R. & C. R. v. Jones (80 Ga. 264, 9 S. E. 1081) . . . 349 Cheaney v. Hooser (9 B. Mon. 330) 23 Cheesebrough's Case (78 S. Y. 232) 22, 389, 390 Cheltenham Township Road (140 Pa. 136, 21 A. 238) 102 Chenango Bridge v. Paige (83 N. Y. 178, 38 A. R. 407) .... 65 Cherokee v. Town Lot Co. (52 la. 279, 3 N. 42) . . . . 218, 261, 315 Cherokee Nation !'. Railroad Co. (135 U. S. 641, 10 S. Ct. 965) 29, 30 (2), 41, 56, 85, 345 Cherry v. Keyport (52 N. J. L. 544, 20 A. 970) 208 Chesapeake & O. Canal r. Baltimore, etc. R. (4 Gill & J. 1) . . . 169 d 1 TABLE OP CASES. PAGE Chesapeake & O. Canal v. Binney (4 Cranch, C. C. 68) . . . . 292 V. Key (3 Cranch, C. C. 599) 253 V. Mason (4 Cranch, C. C. 123) 170 V. Union Bank (4 Cranch, C. C. 75) 30 Chesapeake & O. R. v. Pack (6 W. Va. 397) 87 V. Patten (6 W. Va. 147) 243 Chesapeake & P. Tel. Co. v. Baltimore, etc. Tel. Co. (66 Md. 399, 7 A. 809, 59 A. K. 167) 20, 105 V. Mackenzie (74 Md. 36, 21 A. 690, 28 -A. S. R. 219) ... 373 Cheshire Turnpike v. Stevens (10 N. H. 133) 198 Chicago V. Barbian (80 111. 482) 181 V. Garrity (7 111. App. 474) 276 V. Huenerbien (85 111. 594, 28 A. R. 626) 285 V. Messier (38 Fed. R. 302) 309 V. O'Brien (111 111. 532, 53 A. R. 640) 14 V. Rumsey (87 111. 348) 112 V. Taylor (125 U. S. 161, 8 S. Ct. 820) 144, 145, 226 V. Tebbetts (104 U. S. 120) 279 V. Union Building Ass'n (102 111. 379, 40 A. R. 598) 249, 335, 376 u. Wright (69 111. 318) 234 Chicago, B. & N. R. v. Bowman (122 111. 595, 13 N. E. 814) . . 231 V. Porter (43 Minn. 527, 46 N. W. 75) 44, 53 Chicago, B. & Q. R. v. Andrews (26 Kan. 702) 264 V. Chamberlain (84 111. 333) 277, 279 v. Chicago (134 111. 323, 25 N. E. 514) 270 V. Iowa (94 U. S. 155) 16 V. Porter (72 la. 426, 34 N. W. 286) 66, 67 V. Wilson (17 111. 123) 43, 107, 340 Chicago Dock R. v. Garrity (115 111. 155, 3 N. E. 448) ... 40, 44 Chicago, E. & L. S. R. v. Catholic Bishop (119 111. 525, 10 N. E. 372) 233 Chicago, I. & K, R. v. Knuffke (36 Kan. 367, 13 P. 582) . . 194, 224 Chicago, K. & N. R. v. Broquet (47 Kan. 571, 28 P. 717) . . 218, 262 ■ V. Cook (43 Kan. 83, 22 P. 988) 275 V. Grie,sser (48 Kan. 663, 29 P. 1082) 356 V. Hazels (26 Neb. 364, 42 N. W. 93) 115 V. Stewart (47 Kan. 704, 28 P. 1017) 219, 313 V. Wiebe (25 Neb. 542, 41 N. W. 297) 251, 253 Chicago, K. & W. R. v. Donelson (45 Kan. 189, 25 P. 584) . . . 314 V. Hurst (41 Kan. 740, 21 P. 781) 82 V. Mouriquand (45 Kan. 170, 25 P. 567) 316 V. Palmer (44 Kan. 110, 24 P. 342) 241 V. Woodward (47 Kan. 191, 27 P. 836) 371 Chicago, M. & S. P. R. v. Baker (102 Mo. 553, 15 S. W. 64) 173, 245, 303 V. Darke (148 111. 226, 35 N. E. 750) 398 V. Hall (90 111. 42) 271 w. Hock (118 111. 587, 9 N. E. 205) 224 235 V. Melville (66 III. 329) '207 V. Minnesota (134 U. S. 418, 10 S. Ct. 462, 702) .... 17, 22 TABLE OP CASES. 11 PAGE Chicago, M. & S. P. R. v. Randolph, etc. Co. (103 Mo. 451, 15 S. W. 437) 263, 354 Chicago, P. & S. R. v. Aldrich (134 111. 9, 24 N. E. 763) . . 240, 241 V. Eaton (136 111. 9, 26 N. E. 575) 217, 236 V. Nix (137 111. 141, 27 N. E. 81) 241, 315 (2) V. Wolf (137 111. 360, 27 N. E. 78) 245 Chicago, R. I. & P. R. v. Chicago (143 lU. 641, 30 N. E. 178) . . 181 V. Lake (71 111. 333) 94 V. Smith, (111 111. 363) 119 Chicago, S. & C. R. v. McGrew (104 Mo. 282, 15 S. W. 931) 197, 207, 235, 240, 241, 244, 253 V. Miller (106 Mo. 458, 17 S. W. 499) 119 V. Phelps (125 111. 482, 17 N. E. 769) 327 Chicago, S. L. & W. R. v. Gates (120 lU. 86, 11 N. E. 527) 181, 266, 323 Chicago & A. R. v. Goodwin (111 111. 273, 53 A. R. 662) 221, 222, 321 V. Maher (91 111. 312) 284 - — V. Smith (78 111. 96) 306, 343 V. (17 111. App. 58) 235 V. Sutton (130 Ind. 405, 30 N. E. 291) 172 Chicago & E. I. R. v. Loeb (118 111. 203, 8 N. E. 460, 59 A. R. 341) 146 (2), 284 (3), 342 V. Wiltse (116 111. 449, 6 N. E. 49) 44, 46 Chicago & E. R. v. Dresel (llOIU. 89) 173, 174 V. Jacobs (110 111. 414) 225, 234 Chicago & G. S. R. v. Jones (103 Ind. 386, 6 N. E. 8) 323 Chicago & G. T. R. v. Hough (61 Mich. 507, 28 N. W. 532) . . 205 Chicago & I. R. v. Baker (73 III. 316) 285 V. Hopkins (90 111. 316) 274, 284, 301 V. Hunter (128 Ind. 213, 27 N. E. 477) 238, 321, 323 Chicago & M. R. v. Sanford (23 Mich. 418) 290 Chicago & N. W. R. v. Chicago (132 111. 372, 23 N. E. 1036) 101, 104, 299, 319 V. (140 111. 309, 29 N. E. 1109) 165 V. (148 111. 141, 35 N. E. 881) 399 V. Chicago, etc. R. (112 111. 589) 234, 299 V. Gait (133 111. 657, 24 N. E. 674) 104, 123, 356 Chicago & P. R. v. Hildebrand (136 111. 467, 27 N. E. 69) ... 174 Chicago & W. I. R. v. Englewood R. (115 111. 375, 4 N. E. 246, 56 A. R. 173) 150, 257 V. Illinois Cent. R. (113 111. 156) 93, 100, 108 V. Prussing (96 111. 203) 274 Chicago & W. M. R. v. Huncheon (30 N. E. 636) 173 Child V. Boston (4 Allen, 41) 135 Childs V. Franklin County (128 Mass. 97) 319 V. New Haven, etc. Co. (133 Mass. 253) 253 V. (135 Mass. 570) 261 Chisholm v. Georgia (2 Dall. 419) 335 Choteau V. St. Louis (8 Mo. App. 48) 315 lii TABLE OF CASES. PAGE Chronic v. Pugh (136 111. 539, 27 N. E. 415) 153, 185, 209 Church V. Grand Rapids, etc. R. (70 Ind. 161) 297 !;. School District (55 Wis. 399, 18 N. 272) 347 Church of the Holy Sepulchre (61 How. Pr. 815) 389 Church's Case (92 N. Y. 1) 268 Cincinnati v. Brachman (35 Ohio St. 289) 158 V. Evans (5 Ohio St. 594) 83 V. Penny (21 Ohio St. 499, 8 A. R. 78) 365 V. Whetstone (47 Ohio St. 196, 24 N. E. 409) . . . 244, 258, 364 V. White (6 Pet. 431) 343 Cincinnati, etc. R. v. Tel. Ass'n (48 Ohio St. 390, 27 N. E. 890, 29 A. S. R. 559) 73 Cincinnati, H. & I. R. u Clifford (113 Ind. 460, 15 N. E. 524) 106, 288, 344 Cincinnati, I., etc. R. v. Geisel (119 Ind. 77, 21 N. E. 470) ... 117 V. Pfitzer (Goebel, Ohio, 248) 303 Cincinnati, L. & C. R. u. Danville, etc. R. (75 111. 113). . . 299,348 Cincinnati South. R. v. Chattanooga, etc. R. (44 Fed. R. 470) . . 150 Cincinnati & G. R. v. Mims, (71 Ga. 240) 216 Cincinnati & S. R. v. Longworth (30 Ohio St. 108) . . . 228, 247, 317 Citizens' Coach Co. v. Camden & A. R. (38 N. J. Eq. 267, 36 A. R. 542) 76, 157, 366, 371 Citizens' Waterworks v. Parry (59 Hun, 202, 13 N. Y. S. 490) . . 297 City of Glasgow v. Hunter (L. R. 2 Sc. App. 78) 145 City of Kansas v. Baird (98 Mo. 215, 11 S, W. 243, 562) . 47, 213, 313 V. Butterfield (89 Mo. 646, 1 S. W. 831) 317 V. Kansas City Belt R, (102 Mo. 633, 14 S. W. 808) ... 257 Clapp V. Boston (133 Mass. 387) 73 Clark V. Baird (9 N. Y. 183) 313 V. Elizabeth (37 N. J. L. 120) 233 V. Pennsylvania R. (145 Pa. 438, 22 A. 989, 27 A. S.R. 710) 72, 228 V. Rochester, etc. R. (18 N. Y. S. R. 903) 372 V. Saybrook (21 Conn. 313) 208, 325, 385 V. Teller (50 Mich. 618) 345 V. Water-Power Co. (52 Me. 68) 314 V. Worcester (125 Mass. 226) 190 Clarke v. Blackmar (47 N. Y. 150) 44 (2), 52 y. Chicago, etc. R. (23 Neb. 613, 37 N. W. 484) . . . 99,326 Clayton v. Chicago, etc. R. (67 la. 238) 215, 312 Cleveland & T. R. v. Prentice (13 Ohio St. 373) 300 Clifford's Ca.se (59 Me. 262) 293 Clifford V. Eagle (35 III. 444) 310 Clinton v. Cedar Rapids, etc. R. (24 la. 455) 371 Clute V. Fisher (65 Mich. 48, 31 N. W. 614) . 66 Coates V. Campbell (37 Minn. 498, 35 N. W. 366) 23 V. New York (7 Cowen, 585) 12 Cobb V. Boston (109 Mass. 438) .... 217, 226 (2), 235, 262, 278 V. (112 Mass. 181) 219, 220, 230 TABLE OF CASES. liii PAGE Cobb V. Davenport (32 N. J. L. 369, 92 A. D. 718) 66 Coburn v. Pacific, etc. K. (46 Cal. 31) 344 Coe V. Columbus, etc. R. (10 Ohio St. 372, 75 A. D. 518) 98, 100 (2) V. Delaware, etc. R. (34 N. J. Eq. 266) 100 V. New Jersey Midland R. (30 N. J. Eq. 21) . . . 108, 118, 252 V. (31 N. J. Eq. 105) 169 Coffman v. Griffin (17 W. Va. 178) 167 Cogsbill V. Mobile & G. R. (92 Ala. 252, 9 So. 512) 123 Cogswell V. Mill Corp. (6 Pick. 94) 331 V. New York, etc. R. (103 N. Y. 10, 8 N. E. 537, 57 A. R. 701) 129, 130, 131, 134 (2), 142 Cohen v. Cleveland (43 Ohio St. 190, 1 N. E. 589) . . . 357, 363, 379 • V. St. Louis, etc. R. (34 Kan. 158, 8 P. 138, 55 A. R. 242) 230, 283 Colbourn o. Kittridge (131 Mass. 470) 223 Colchester v. Brooke (7 Q. B. 339) 382, 385 Coldwater v. Tucker (36 Mich. 474, 24 A. R. 601) 161 Cole V. Drew (44 Vt. 49, 8 A.R. 363) 197, 334 V. Eastham (133 Mass. 65) 394 V. La Grange (113 U. S. 1, 5 S. Ct. 416) 23, 34 Coleman v. State (134 U. S. 564, 31 N. E. 902) 124 V. Thurmond (56 Tex. 514) 83 Collector v. Day (11 Wall. 113) 56 Collett V. Coram. (119 Ind. 27, 21 N. E. 329) 198 Colorado Cent. R. v. Humphreys (16 Col. 34, 26 P. 165) .... 252 V. Allen (13 Col. 229, 22 P. 605) 312 Colorado East. R. v. Union Pacific R. (41 Fed. R. 293) ... 45, 89 Colorado Midland R. v. Croman (16 Col. 381, 27 P. 256) .... 288 Colton V. Rossi (9 Cal. 595) ^ . 268 Columbia Bridge v. Geisse (34 N. J. L. 268) 274, 320 V. (35 N. J. L. 558) 143, 157 V. (36 N. J. L. 537) 312 V. (38 N. J. L. 39) 227, 233 Colvill v. Langdon (22 Minn. 565) 327 Colville V. Judy (73 Mo. 651) 101, 298 Colwell V. Mays Landing Co. (19 N. J. Eq, 245) 153, 348 Commissioners ;;. Allen (25 Kan. 616) 306 V. Detroit, etc. R. (93 Mich. 58, 52 N. W. 1083) 166 V. Hearne (59 Ala. 371) 328 V. Holyoke Water Power Co. (104 Mass. 446, 6 A. R. 247) . 14, 394 . V. Kempshall (26 Wend. 404) 383 V. Michigan Cent. R. (90 Mich. 385, 51 N. W. 447) . 166, 188, 257 V. Moesta (91 Mi^h. 149, 51 N. W. 787) 50, 235 Commissioners of Central Park (50 N. Y. 493) 325 Washington Park (52 N. Y. 131) 301 (2), 303 Washington Park (56 N. Y. 144) 180 Homochitto River v. Withers (29 Miss. 21, 64 A. D. 126) . . 383 Shawnee County v. Beckwith (10 Kan. 603) 190 Commonwealth v. Alger (7 Gush. 53) 10, 384, 392 liv TABLE OF CASES. PAGE Commonwealth v. Bacon (13 Bush, 210, 26 A. R. 189) .... 14 V. Blue Hill Turnpike (5 Mass. 420) 271 V. Boston, etc. R. (3 Cusb. 25) 165, 272, 292 V. (150 Mass. 174, 22 N. E. 913) 199 V. Cambridge (7 Mass. 158) 52 V. Charlestown (1 Pick. 179) 67 V. Coombs (2 Mass. 489) 297 V. County Comm. (8 Pick. 343) 306 V. Covington Bridge (21 S. W. 1042) 21 V. Essex Co. (13 Gray, 239) 154 V. Fisher (1 Pen. & W. 462) 358 V. Fitchburg R. (8 Cush. 240) 162 I'. (12 Gray, 180) 41, 198 V. Haverhill (7 Allen, 523) 152 c. Justices, etc. (5 Mass. 435) 340 V. McAlister (2 Watts, 190) 358 V. Northeastern El. R. (29 A- 111) 398 V. Pennsylvania Canal (66 Pa. 41, 5 A. R. 329) . . . .15, 394 V. Pennsylvania R. (51 Pa. 351) 199, 203 V. Peters (2 Mass. 125) 207 V. Pittsburgh, etc. R. (58 Pa. 26) 212, 217, 267 V. Pittston Bridge (148 Pa. 621, 24 A. 87) 168 V. Plaisted (148 Mass. 375, 19 N. E. 224, 12 A. S. R. 566) . . 59 V. Tewkesbury (11 Met. 55) 392 V. Vincent (108 Mass. 441) 65 Conaway v. Ascherman (94 Ind. 187) . 297 Concord, Matter of (50 N. H. 530) 376 Concord R. v. Greely (23 N. H. 237) 37, 38, 219 Cone V. Hartford (28 Conn. 363) 365 Conger v. Burlington, etc. R. (41 la. 419) 344 Conklin v. Keokuk (73 la. 343, 35 N. W. 444) 364 V. New York, etc. R. (102 N. Y. 107, 6 N. E. 663) .... 363 Connecticut & P. R. v. Holton (32 Vt. 33) 197 Connecticut River Co. v. Olcott Falls Co. (65 N. H. 290, 21 A. 1090) 78 Connecticut River R. v. Clapp (1 Cush. 559) 312, 319 V. County Comm. (127 Mass. 50, 34 A. R. 338) . 210, 267, 339 Consolidated Channel Co. v. Cent. Pacific R. (51 Cal. 269) ... 45 Consumers' Gas Co. v. Harless (131 Ind. 446, 29 N. E. 1062) 97, 102, 264, 327 Contra Co.sta R. v. Moss (23 Cal. 324) 45, 169, 322 Convers v. Atchison, etc. R. (142 U. S. 671, 12 S. Ct. 351) ... 274 y. Grand Eapids, etc. R. (18 Mich. 459) 288 Conwell V. Springfield, etc. R. (81 111. 232) 117 B. Tate (107 Ind. 171, 8 N. E. 36) 312 Cook V. Burlington (.SO la. 94, 6 A. R. 649) 67 Cool u. Crommet (13 Me. 250) 309 Coolman v. Fleming (82 Ind. 117) 323 TABLE OP CASES. Iv PAGE Coomes v. Burt (22 Pick. 422) 390 Cooper's Case (28 Hun, 515) 39 Cooper V. Anniston, etc. R. (85 Ala. 106,4 So. 689) . 107, 212, 327, 351 V. Bloodgood (32 N. J. Eq. 269) 158 V. Williams (5 Ohio, 391, 24 A. D. 299) 38 Corbin v. Cedar Rapids, etc. R. (66 la. 73, 23 N. W. 270) ... 181 V. Wisconsin, etc, R. (66 la. 269, 23 N. W. 662) 303 Corcoran v. Beneoia (96 Cal. 1, 30 P. 798) 140 Corey v. Swagger (74 Ind. 211) 298 Cornwall ... Louisville, etc. R. (87 Ky. 72, 7 S. W. 553) .... 93 Corrigan v. Chicago (144 111. 537, 33 N. E. 746) 159, 278 Corwith V. Hyde Park (14 Bl. App. 635) 341 Cory V. Chicago, etc. R. (100 Mo. 282, 13 S. W. 346) . 108, 300, 354 Costello V. Burke (63 la. 361, 19 N. 247) 275, 287 Coster V. Albany (43 N. Y. 399) 376 V. New Jersey R. (24 N. J. L. 730) 108 V. Tide Water Co. (18 N. J. Eq. 54) 37 Costigan v. Pennsylvania R. (54 N. J. L. 233, 28 A. 810) .... 140 Cotton V. Boom Co. (22 Minn. 372) 170 V. Pocasset Man. Co. (13 Met. 429) 123 Cottrill V. Myrick (12 Me. 222) 122, 354 Council Grove, etc. R. v. Center (42 Kan. 438, 22 P. 574) .... 220 Countess of Rothes v. Waterworks (7 App. Cas. 694) 139 County of Chester v. Brewer (117 Pa. 647, 12 A. 577) 145 County of Lancaster v. Prey (128 Pa. 593, 18 A. 478) 271 County of Mobile v. Kimball (102 U. S. 691) 383 County Court v. Griswold (58 Mo. 175) 161, 212 Coutant V. Catlin (3 Sandf. Ch. 485) 279 Covington, etc. Bridge v. Kentucky (154 U. S. 204) 396 Covington, etc. Trans. Co. v. Piel (87 Ky. 267, 8 S. W. 449) 206, 235, 266 Covington Stockyards v. Keith (139 U. S. 128, 11 S. Ct. 461) ... 43 Cowell V. Thayer (5 Met. 253, 38 A. R. 400) 123 Craig V. Allegheny (53 Pa. 477) 187 V. Lewis (110 Mass. 377) 353 — V. Rochester City R. (39 N. Y. 404) 366 Crane v. Elizabeth (36 N. J. Eq. 339) 277, 287, 309 (2) Crater v. Fritts (44 N. J. L. 374) 252, 326 Crawford v. Delaware (7 Ohio St. 459) 8, 364 Credit Valley R. v. Spragge (24 Grant's Ch. [Out.] 231) . . . .250 Crittenden v. Wilson (5 Cowen 165, 15 A. D. 462) . . 129, 132, 330 Crockett v. Boston (5 Cush. 182) 234 Crolley v. Minnesota, etc. R. (30 Minn. 541, 16 N. 422) 201 Crooke v. Flatbush Waterwoi-ks (29 Hun, 245) 365 V. Pendleton (23 Me. 339) 82 Crosby v. Draout (109 Mass. 206) 344 V. Hanover (36 N. H. 404) 27 Cross V. Morristown (18 N. J. Eq. 305) 83 Ivi TABLE OF CASES. PAGE Crossett v. Owens (110 111. 378) 294 Ciowell V. Londonderry (63 N. H. 42) 87, 355 Cruger v. Hudson River R. (12 N. Y. 190) 290 Cuokfield Burial Board (19 Beav. 153) 81 Culbertson v. Coleman (47 Wis. 198, 2 N. 124) 25 Cumberland v. Willison (50 Md. 138) 139, 140 Cumberland Val. R. v. McLanahan (59 Pa. 23) 43, 121 Cumberland Tel. Co. v. United Electric R. (42 Fed. R. 273) . 73, 105 Cumberland & P. R. v. Pennsylvania R. (57 Md. 267) 345 Cummings v. Peters (56 Cal. 593) 298 Cummins v. Des Moines, etc. R. (63 la. 397, 19 N. 268) 174, 215, 237, 274 V. Seymour (79 Ind. 491, 41 A. R. 618) 365 V. Shields (34 Ind. 154) 86 Cunningham v. Campbell (33 Ga. 625) 10, 212 Cupp V. Comm. (19 Ohio St. 173) 287, 295, 306 Cnrrau v. Louisville(83 Ky. 628) 40, 195, 200 V. Shattuck (24 Cal. 427) 182, 281, 349 Currie w. Waverly, etc. R. (52 N. J. L. 381, 20 A. 56, 19 A. S. R. 452) a 173 (2), 219, 228, 229 Currier v. Marietta, etc. R. (11 Ohio St. 228) 184 Curtin V. Nittany Val. R. (135 Pa. 20, 19 A. 740) 315 Curtiss V. Smith (35 Conn. 156) 88 Curwensville's Appeal (129 Pa. 74, 18 A. 561) 348 Cushing V. Boston (144 Mass. 317, 11 N. E. 93) 245 V. Nantasket Beach R. (143 Mass. 77, 9 N. E. 22) . . . . 317 Cushman v. Smith (34 Me. 247) 265, 267 (2) Cutter V. New York (92 N. Y. 166) 260 Cuyler v. Rochester (12 Wend. 165) 110 Cyr V. Dufour (68 Me. 492) 302 Dable Grain Shovel Co. v. Flint (137 U. S. 41, 11 S. Ct. 8) ... 75 Daggett !). Colgan (92 Cal. 53, 28 P. 51) 46 Dalles Lumbering Co. v. Urquhart (16 Or. 67, 19 P. 78) . . . . 45 Daly V. Georgia South, etc. R. (80 Ga. 793, 7 S. E. 146, 12 A. S. R. 286) 362, 374 Damon's Appeal (119 Pa. 287, 13 A. 217) 86 Daniel Ball, The (10 Wall. 557) 382 Daniels v. Railroad Co. (41 la. 52) 263 Danville, etc. Road v. Campbell (87 Ind. 57) 192 Darley Main Colliery ». Mitchell (11 App. Cas. 127) 282 Darlington v. New York (31 N. Y. 164, 88 A. D. 248) 60 V. United States (82 Pa. 382, 22 A. R. 766) . . . . 32, 181, 297 Dartmouth College v. Woodward (4 Wheat. 518) .... 64, 75, 155 Daugherty v. Brown (91 Mo. 26, 3 S. W. 210) 207, 251 Davidson v. Boston & M. R. (3 Cush. 91) 295, 385 V. New Orleans (96 TJ. S. 97) 34 (2) Davis V. Charles River R. (11 Cush. 506) 219, 275 TABLE OF CASES. Ivii PAGE Davis V. Chicago, etc. R. (46 la. 389) 152 V. Couiity Comm. (153 Mass. 218, 26 N. E. 848) 376 V. East Tennessee, etc. R. (87 Ga. 605, 13 S. E. 567) . 166, 285 V. Log Driving Co. (82 Me. 346, 19 A. 828) 162 V. New Bedford (133 Mass. 549) 358 V. New York (14 N. Y. 506, 67 A. D. 186) 361 V. San Lorenzo R. (47 Cal. 517) 211 V. Titusville, etc. R. (114 Pa. 308, 6 A. 736) 281 Day V. Springfield (102 Mass. 310) 339 V. Stetson (8 Me. 365) 40, 98 Dayton, X. & B. R. v. Lewton (20 Ohio St. 401) 271 Dayton & W. R. v. Marshall (11 Ohio St. 497) 180 Deansville Cemetery Ass'n (66 N. Y. 569, 23 A. R, 86) ... 39, 46 De Biiol V. Freeport, etc. R. (Ill 111. 499) 226, 298 De Camp v. Hibernia R. (47 N. J. L. 43) . . . . 53, 102. 109, 185 Decker v. Baltimore, etc. R. (30 Fed. R. 723) 57 y. Evansville (33 N. E. 349) 373 Delaplaine v. Chicago, etc. R. (42 Wis. 214, 24 A. R. 386) . . 8, 66 Delaware County's Appeal (119 Pa. 159, 13 A. 62) 2S7 Delaware, L. & W. R. v. Burson (61 Pa. 369) 246, 258, 320, 329, 357 V. Stock Yard Co. (45 N. J. Eq. 50, 17 A. 146) 18 Delaware & R. Canal v. Lee (22 N. J. L. 243) 153 V. Wright (21 N. J. L. 469) 282 Den V. Morris Canal Co. (24 N. J. L. 587) 214, 381 Denhara v. County Comm (108 Mass. 302) 41 Denniston v. Claik (125 Mass. 216) 193 Denver v. Bayer (7 Col. 113) 270, 379 Denver City, etc. Co. v. Middaugh (12 Col. 434, 21 P. 565, 13 A. S. R. 234) 355 Denver & N. O. R. v. Lamborn (8 Col. 380, 8 P. 582) 181 Denver & R G. R. v. Griffith (17 Col. 598, 31 P. 171) 303 Denver & S. F. R. v. Domke (11 Col. 247, 17 P. 777) . . . 266, 347 Dep't of Public Parka (73 N. Y. 560) 274 (85 N. Y. 459) 294 (53 Hun, 280) 160, 228, 235, 263 De Peyster v. Mali (92 N. Y. 262) 274 Derby v. Ailing (40 Conn. 410) 200 V. Gage (60 Mich. 1, 26 N. W. 820) 210, 265 Dermott v. State (99 N. Y. 101, 1 N. E. 242) 249 Desvergers v. Willis (56 Ga. 515. 21 A. R. 289) 159 Detmold v. Drake (46 N. Y. 318) 353 Detroit v. Beecher (75 Mich. 454, 42 N. W. 986) . . 115, 234, 303, 318 V. Chafeee (68 Mich. 632, 37 N. W. 19) 248 V. Daly (68 Mich. 503, 37 N. W. 11) 24, 268 V. Detroit, etc. R. (23 Mich. 173) 120, 121 V. Plank Road (43 Mich. 140, 5 N. 275) 154 V. Wabash, etc. R. (63 Mich. 712, 30 N. W. 321) 103 Detroit City R. u. Mills (85 Mich. 634, 48 N. W. 1007) 362, 368, 369 Iviii TABLE OF CASES. PAGE Detroit W T. & J. R. «. Crane (50 Mich. 182, 15 N. 73) . ... 292 De Varaigne v. Fox (2 Blatch. 95) 188 Devlin v. New York (131 N. Y. 123) 258 Dickey v. Tennison (27 Mo. 373) 41, 306 Diedrich v. Northwest Union R. (33 Wis. 319) 347 V. (42 Wis. 248, 24 A. R. 399) 66, 84, 275 y. (47 Wis. 662, 3 N. 749) 258 Dierks v. Comm. (142 lU. 197, 31 N. E. 496) 105 Dietrichs v. Lincoln, etc. R. (13 Neb. 361, 13 N. 624) . 100, 108, 318 Dill V. Board of Education (47 N. J. Eq. 421, 20 A. 739) .... 379 DiUenbaoh v. Xenia (41 Ohio St. 207) 270 Dingley v. Boston (100 Mass. 544) 187, 188, 390, 391 District City of Pittsburgh (2 W. & S. 320) 183 District of Columbia o. Baltimore, etc. R. (114 U. S. 453, 5 S. Ct. 1098) 361 Dixon V. Comm. (75 Mich. 225, 42 N. W. 814) 306 Dodge V. Council Bluffs (57 la. 560, 10 N. 886) 98 V. County Comm. (3 Met. 380) 149 V. Omaha, etc. R. (20 Neb. 276, 29 N. W. 936) 277 V. Pennsylvania R. (43 N. J. Eq. 351, 11 A. 751) 335, 348, 375, 376 V. (45 N. J. Eq. 366, 19 A. 622) 348 Dodson V. Cincinnati (34 Ohio St. 276) 214, 215 Doe V. Georgia R. (1 Ga. 524) 331 Dolores Canal v. Hartman (17 Col. 138, 29 P. 378) .... 205, 261 Donald u. St. Louis, etc. R. (52 la. 411, 3 N. 462) 284 Donisthorpe v. Fremont, etc. R. (30 Neb. 142, 46 N. W. 240, 27 A. S. R. 387) 117 Donnelly v. Brooklyn (121 N. Y. 9, 24 N. E. 17) . . 259, 269, 341, 357 V. Decker (58 Wis. 461, 17 N. 389, 46 A. R. 637) . 389, 390, 391 Donovan v. New Orleans (35 La, An. 461) 67 V. Springfield (125 Mass. 371) 251 Doody V. Vaughn (7 Neb. 28) 302 Dooly Block v. Rapid Transit Co. (9 Utah, 31) 379 Dorgan v. Boston (12 Allen, 223) 177, 230 Dorian v. East Brandywine, etc. R. (46 Pa. 520) .... 227, 228 Doud V. Mason City, etc. R. (76 la. 438, 41 N. W. 65) 134, 225,236, 321 Doughty V. Somerville, etc. R. (7 N. J. Eq. 51) 345 V. (21 N. J. L. 442) 329 Douglass V. Boonsborongh Turnpike (22 Md. 219, 85 A. D. 647) . 151 Dow !>. Beidleman (125 U. S. 680, 8 S. Ct. 10''8) 20 Dowling V. Pontypool, etc. R. (L. R. 18 Eq. 714) .... 334, 348 Downing v. State Board (129 Ind. 443, 28 N. E. 123, 614) ... 64 Dows V. Congdon (16 How. Pr. 571) 221, 351 Doyle V. Manhattan R. (128 N. Y. 488, 28 N. E. 495) .... 238 (2) Drady v. Des Moines, etc. R. (57 la. 393, 10 N. 754) 112 Drake v. Chicago, etc. R, (63 Ta 302, 19 N. 215, 50 A. D. 746) . . 140 V. Hudson River R. (7 Barb. 508) 346, 371 TABLE OF CASES. lix PAGE Drath v. Burlington, etc. R. (15 Neb. 367, 18 N. 717) 210 Driggs V. Phillips (103 N. Y. 77, 8 N. E. 514) 83 Driver v. West. Union R. (32 Wis, 569, 14 A. R. 726) .... 182 Druoker v. Manhattan R. (106 N. Y. 157, 12 N. E. 568) . 238, 370 (4) Drury v. Boston (101 Mass. 439) 180, 182 V. Midland R. (127 Mass. 571) 227, 239, 244, 249, 252 (2), 258, 259, 271, 280, 300, 301, 309 Diianesburgh v. Jenkins (57 N. Y. 177) 60, 63 Dubach v. Hannibal, etc. R. (89 Mo. 483, 1 S. W. 86) 131 Dubuque & D. R. v. Diehl (64 la. 635, 21 N. 117) 279 Duck River R. v. Cochrane (3 Lea, 478) 172 Dudley v. Frankfort (12 B. Mon. 610) 83 V. Minnesota, etc. R. (77 la. 408, 42 N. W. 359) . . . 301, 326 Duke V. Cent. N. J. Tel. Co. (53 N. J. L. 341, 21 A. 460) 45, 105, 298, 301, 310 Dulaney v. Nolan County (85 Tex. 222) 253 Duluth Trans. Co. v. North. Pacific R. (53 N. W. 366) .... 182 Dunbar " Augusta (90 Ga. 390) 11 Duncan w. Terre Haute (85 Ind. 104) 277 Dunham v. Rochester (5 Cowen, 462) 15 V. Williams (37 N. Y. 250) 370 Dunlap V. Pulley (28 la. 469) 339 V. Toledo, etc. R. (46 Mich. 190, 9 N. 249) 328 V. (50 Mich. 470, 15 N. 555) 74, 280 Dunn V. Charleston (Harp. L. 189) 177 (2) Dupuis V. Chicago, etc. R. (115 111. 97, 3 N. E. 720) 226, 227, 231, 311 Durfee v. Peoria, etc. R. (140 111. 435, 30 N. E. 686) 199 Durkes v. Union (38 N. J. L. 21) 140 Duryea u. New York (26 Hun, 120) 140 Dusenbury v. Tel. Co. (64 How. Pr. 206) 266 Dwight V. Brewster (1 Pick. 50, 11 A. D. 133) 18 V. County Comm. (11 Gush. 201) 317 Dwight Printing Co. v. Boston (122 Mass. 583) 68 Dyckman v. New York (5 jf. Y. 434) 101, 311, 356 Dyer v. St. Paul (27 Minn. 457, 8 N. 272) 363 V. Wightman (66 Pa. 425) 159 Eagle 17. Charing Cross R. (L. R. 2 Ch. 638) .... 145, 235, 251 Eames v. Worsted Co. (11 Met. 570) 131, 241 Earlywine v. Topeka, etc. R. (43 Kan. 746, 23 P. 940) 192 East Brandywine, etc. R. v. Ranck (78 Pa. 454) 217 ' Eastern Pennsylvania R. v. Heister (40 Pa. 53) 219 V. Schollenberger (54 Pa. 144) 121 Eastern R. v. Boston, etc. R. (Ill Mass. 125, 15 A. R. 13) . . 68, 92 Easthampton v. County Comm. (154 Mass. 424, 28 N. E. 298) . . 165 Eastman v. Stowe (37 Me. 86) 332 East River Bridge Co. (75 Hun, 119, 27 N. Y. Supp. 145) . . . 397 East St. Louis v. O'Elynn (119 111. 200, 10 N. E. 395, 59 A. R. 795) 376 Ix TABLE OF CASES. PAGE East St. Louis v. St. John f47 111. 463) 106 East St. Louis & C. R. «. Eisentraut (134 111. 96, 24 N. E. 760) . . X44 East Tennessee, etc. R. v. Love (3 Head, 63) 160 East & West R. v. East Tennessee, etc. R. (75 Ala. 275) . . 347, 348 Eaton V. Boston, etc. R. (51 N. H. 504, 12 A. R. 147) 8, 129, 138, 140,153 V. European, etc. R. (59 Me. 520) 96 Eckerson v. Haverstraw (137 N. Y. 88, 32 N. E. 1111) .... 294 Edgecumbe v. Burlington (46 Vt. 218) 39 Edgewood R. Appeal (79 Pa. 257) 45, 298 Edmands v. Boston (108 Mass. 535) .... 127, 224, 226, 276, 278 Edmondson v. Moberly (98 Mo. 523, 11 S. W. 990) 131 Edwardsville R, v. Sawyer (92 111. 377) 343 Eel River & E. R. v. Field (67 Cal. 429, 7 P. 814) 93, 168 Egerer v. New York Cent. etc. R. (130 N. Y. 108, 29 N. E. 95) 371, 372, 376 Ehret v. Schuylkill River R. (151 Pa. 158, 24 A. R. 1068) . . 70, 244 Eichels v. Evansville St. R. (78 Ind. 261, 41 A. R. 561) .... 366 Eidemiller v. Wyandotte City (2 Dill. 376) 327 Eisenbach v. Hatfield (2 Wash. 236, 26 P. 539) 84 Eldridge v. Binghamton (120 N. Y. 309, 24 N. E. 462) . 34, 123, 187, 252, 253 V. Smith (34 Vt. 484) 43, 88, 100 Eleventh Ave. (81 N. Y. 436) 72, 279 Elizabethtown & P. R. v. Helm (8 Bush, 681) .... 143, 236, 316 u. Thompson (79 Ky. 52) 360 Elkhart v. Simonton (71 Ind. 7) 322 Ellerraan v. McMains (30 La. An. Pt. I. 190, 31 A. R. 218) ... 62 Elliott V. Fair Haven R. (32 Conn. 579) 366 Ellis V. Rock Island, etc. R. (125 111. 82, 17 N. E. 62) 222 V. Welch (6 Mass. 246, 4 A. D. 122) 158, 159 Elster V. Springfield (49 Ohio St. 82, 30 N. E. 274) . . 81, 141, 365 Elting Woolen Co. v. Williams (36 Conn. 310) 169 Elwell V. Eastern R. (124 Mass. 160) 350 Elwood V. Bullock (6 Q. B. 383) 374 Ely V. Parsons (55 Conn. 83, 10 A. 499) 123 V. Supervisors (36 N. Y. 297) 69 Embury v. Connor (3 N. Y. 511, 53 A. D. 325) 103, 177 (2), 353, 355 Emery v. San Francisco (28 Cal. 345) 22 Emmes v. Feeley (132 Mass. 347) 159 Emmons v. Minneapolis, etc. R. (35 Minn. 503, 29 N. W. 202) . . 14 V. (38 Minn. 215, 36 N. W. 340) 239 Emporia i'. Soden (25 Kan. 588, 37 A. R. 265) 141 Enfield Bridge v. Hartford, etc. R. (17 Conn. 40, 42 A. D. 716) . 65, 157 Englewood Connecting R. v. Chicago, etc. R. (117 111. 611, 6 N. E 684) ' . . ! 310 English 1). New Haven, etc. Co. (32 Conn. 240) 14 Enos V. Chicago, etc. R. (78 la. 28, 42 N. W. 575) 231 Erie County v, Erie, etc. R. (87 Pa. 434) 43 TABLE OF CASES. Ixi PAGE Erie R. v. Delaware, etc. R. (21 N. J. Eq. 283) 347, 354 Erie & N. E. R. v. Casey (26 Pa. 287) 202 (2) Errington v. Met. Dist. R. (19 Ch. D. 559) 170 Ervine's Appeal (16 Pa. 256, 55 A. D. 499) 25 Escanaba Co. v. Chicago (107 U. S. 678, 2 S. Ct. 185) 384 Eslich V. Mason City, etc. R. (75 la. 443, 39 N. W. 700) . 237, 240, 322 Essex V. Local Board (14 App. Cas. 153) 174, 240, 241 Essex Road Board v. Skinkle (140 U. S. 334, 11 S. Ct. 790) . . 60, 64 V. (49 N. J. L. 641, 10 A. 379) 64 Estabrooks v. Peterborough, etc. R. (12 Cush. 224) 331 Eureka Basin (96 N. Y. 42) 52 Evans i'. Erie County (66 Pa. 222) 83 V. Haefner (29 Mo. 141) 193, 264 V. Missouri, etc. R. (64 Mo. 453) 351 V. Savannah, etc. R. (90 Ala. 54, 7 So. 758) 280 Evansville & C. R. v. Miller (30 Ind. 209) 210 Evansville & R. R. v. Charlton (33 N. E. 129) .... 175, 253, 359 Everett v. Union Pacific R. (59 la. 243, 13 N. 109) . . . 216, 219, 228 Evergreen Cemetery Ass'n v. Beecher (53 Conn. 551, 5 A. 353) 39, 53, 298, 310 Eversfield v. Mid Sussex R. (3 De G. & J. 286) 167 Ewing V. St. Louis (5 Wall. 413) 345 Fagan v. Chicago (84 111. 227) 151, 273 Fair v. Philadelphia (88 Pa. 309, 32 A. R. 455) 135 Fairbanks v. Fitchburg (110 Mass. 224) 227 Fairchild V. St. Louis (97 Mo. 85, 11 S. W. 60) 376 Faires v. San Antonio, etc. R. (80 Tex. 43, 15 S. W. 588) . . . 119 Falls Man. Co. v. Oconto River Imp. Co. (58 N. W. 257) . . . 382 Fanning v. Osborne (102 N. Y. 441, 7 N. E. 307) . 42, 99, 362, 373 Farist Steel Co. v. Bridgeport (60 Conn. 278, 22 A. 561) . 50, 84, 384 Farmer v. Hooksett (28 N. H. 244) 223 Farnham v. Delaware, etc. Canal (61 Pa. 265) 108 Farnsworth v. Boston (126 Mass. 1) 277 V. Lime Rock R. (83 Me. 440, 22 A. 373) 42 Farnum v. Blackstone Canal Co. (1 Sumn. 46) 27, 28, 29 Farrell v. Winchester Ave. R. (61 Conn. 127, 23 A. 757) .... 368 Faust V. Passenger R. (3 Phila. 164) 372, 375 Fearing v. Irwin (55 N. Y. 486) ... 376 Fehr v. Schuylkill Nav. Co. (69 Pa. 161) 331 Fellowes v. New Haven (44 Conn. 240, 26 A. R. 447) 362 Fenwick v. East London R. (L. R. 20 Eq. 544) 149, 164 Ferris v. Bramble (5 Ohio St, 109) 41 Field V. Des Moines (39 la. 575, 18 A. R. 46) 9 y. Vermont, etc. R. (4 Cush. 150) 324 Finch V. Chicago, etc. R. (46 Minn. 250, 48 N. W. 915) . . 242, 313 V. Riverside, etc. R. (87 Cal. 597, 25 P. 765) 366 Fink V. Newark (40 N. J. L. 11) 254, 259, 269 Ixii TABLE OF CASES. PA6B Finn v. Gas Co. (99 Pa. 631) 84, 193, 221 Finuey v. Somerville (80 Pa. 59) 98 First Parish v. Plymouth County (8 Cush. 475) 243 Fishback v. Woodruff (51 Ind. 102) 203 Fisher v. Baden Gas Co. (138 Pa. 301, 22 A. 29) 252 V. Chicago, etc. K. (104 III. 323) 44, 108 V. Horicou, etc. Co. (10 Wis. 351) 388 Fiske's Case (72 Cal. 125, 13 P. 310) 12 Fitch !). New York, etc. R. (59 Conn. 414, 20 A. 345) . . . 148, 190 Fitz V. Nantasket Beach R. (148 Mass. 35, 18 N. E. 592) .... 233 Flanagan v. Philadelphia (42 Pa. 219) 384 Flatbush Ave. (1 Barb. 286) 319 Fleming's Appeal (65 Pa. 444) 103 Fleming v. Hull (73 la. 598, 35 N. W. 673) 389 Fletcher v. Peck (6 Cranch, 87) 77 Flint V. Fond du Lac (42 Wis. 287) 305 Flint & P. M. R. 1;. Detroit, etc. R. (64 Mich. 350, 31 N. W. 281) . 150, 256 (2), 320 V. Gordon (41 Mich. 420, 2 N. W. 648) 56 V. Norton (64 Mich. 248, 31 N. W. 134) 328 Florida South. R. v. Brown (23 Fla. 104, 1 So. 512) . . . 371, 373 Flower v. Baltimore, etc. R. (132 Pa. 524, 19 A. 274) 316 Floyd County v. Rome St. Ry. (77 Ga. 614) 366, 378 Fobes 0. Rome, etc. R. (121 N. Y. 505, 24 N. E. 919) . . . 371, 372 Folmar v. Folmar (68 Ala. 120) 293 V. (71 Ala. 136) 260 Folts V. Huntley (7 Wend. 210) 159 Foot V. Edwards (3 Blatch. 310) 27, 28 !). New Haven, etc. Co. (23 Conn. 214) 121, 122 V. Stiles (57 N. Y. 399) 293 Foote V. Cincinnati (11 Ohio 408, 38 A. R. 737) 159, 210 Forbes v. Delashmutt (68 la. 164., 26 N. W. 56) . . . . 47, 295, 348 Ford v.- County Coram. (64 Me. 408) 224 V. Surget (97 U. S. 605) 10 Fore V. West. North Carolina R. (101 N. C. 526, 8 S. E. 335) . . 283 Forney v. Fremont, etc. R. (23 Neb. 465, 36 N. W. 806) . . 195,220 Forster u. Scott (136 N. Y. 577, 32 N. E. 976) .... 158,183(2) Ft. Leavenworth R. v. Lowe (114 U. S. 525, 5 S. Ct. 995) . 55 (2), 56 Fort Plain Bridge v. Smith (30 N. Y. 44) 156 Fort Scott, W. & W. R. v. Fox (42 Kan. 490, 22 P. 583) .... 376 Fort Smith v. McKibbin (41 Ark. 4.5, 48 A. R. 19) 83 Fort Street Depot Co. v. Morton (83 Mich. 265, 47 N. W. 228) . . 294 Fort Wayne v. Lake Shore, etc. R. (132 Ind. 558, 32 N. E. 215, 32 A. S. R. 277) 165, 166 Fort Wayne, C. & L. R, v. Sherry (126 Ind. 334, 25 N. E. 898) . 117 Fort Wayne Land Co. v. Maumee Ave. (132 Ind. 80, 30 N. E. 880) 154 Fort Worth & N. O. R. v. Pearce (75 Tex. 281) 241 (2) Fort Worth & R. G. R. v. Downie (82 Tex. 383, 7 S. W. 620) . . 255 TABLE OF CASES. Ixiii PAGE -Forth Worth & R. G. K. v. Jennings (76 Tex. 373, 13 S. W. 270) 201 Foster v. Stafford Bank (57 Vt. 128) 210, 267 Fowle V. New Haven, etc. Co. (112 Mass. 334, 17 A. K. 106) 282, 284 Fowler's Case (53 N. Y. 60) 360 Fox V. Cincinnati (33 Ohio St. 492) 199, 204 V. (104 U. S. 783) 204 V. Holcomb (34 Mich. 298) 297 V. West. Pacific R. (31 Cal. 538) 181 Fox River Co. v. Kelley (70 Wis. 287, 35 N. W. 744) 84 Frankel v. Chicago, etc. R. (70 la. 424, 30 N. W. 679) .... 271 Frater v. Hamilton County (90 Tenn. 661, 19 S. W. 233) .... 363 Freeholders, etc. v. Redbank, etc. Turnpike (18 N. J. Eq. 91) . . 273 Frelinghuysen v. Central R. (28 N. J. Eq. 388) 351 French v. Lord (69 Me. 537) 276, 277 V. Lowell (117 Mass. 363) 252 u. White (24 Conn. 170) 389 Friedenwald v. Baltimore (74 Md. 116, 21 A. 555) 252 Fries v. South Pennsylvania, etc. R. (85 Pa. 73) 266 Frith V. Dubuque (45 la. 406) 270 Frostburg v. Hitchins (70 Md. 56, 16 A. 380) 365 Fuller V. County Coram. (15 Pick. 81) 355 V. Dauphin (124 111. 542, 16 N. E. 917) 65 V. Dame (18 Pick. 472) 118 Fulmer v. Williams (122 Pa. 191, 15 A. 726, 9 A. S. R. 88) . . 65, 67 Fulton V. Short Route R. (85 Ky. 640, 4 S. W. 332, 7 A. S. R. 619) 105, 372 Furman Street (17 Wend. 649) 183, 208, 227, 233 Furuiss V. Midland R. (L. R. 6 Eq. 473) 176 G. B. & L. R. V. Haggart (9 Col. 346, 12 P. 215) 274 Gage V. Chicago (141 111. 642, 31 N. E. 163) 303, 310 Gahagan v. Boston, etc. R. (1 Allen, 187) 192, 374 Gainesville H. & W. R. v. Hall (78 Tex. 169, 14 S. W. 259) 143, 146(3) Galbraithv Littiech (73 111. 209) 199 Galeiia & S. W. R. v. Haslam (73 111. 494) 72 Galloway v. London (L. R. 1 H. L. 34) 8, 104, 176 Galveston, H. & S. A. R. v. Blakeney (73 Tex. 180, 11 S. W. 174) 275, 352 Galway v. Met. El. R. (128 N. Y. 132, 28 N. E. 479) . . . 350, 358 Gallup V. Albany R, (61 N. Y. 1) 159 Gamble v. MoCrady (75 N. C. 509) 305 Gamraage v. Georgia South. R. (65 Ga. 614) 271 Gammell v. Potter (2 la. 262) 302 Gardiner v. Boston, etc. R. (9 Cush. 1) 270 Gardner v. Brookline (127 Mass. 358) 218, 229 V. Newburg (2 Johns. Ch. 162) 50, 209, 348 Gargan v. Louisville, etc. R. (89 Ky. 212, 12 S. W. 259) .... 377 Garland v. Towns (55 N". H. 55) 137 Ixiv TABLE OF CASES. PAGE Garrison v. New York (21 Wall. 196) 33, 209, 266, 325 Gas Light Co. v. Hart (40 La. An. 474, 4 So. 215) 82 V. St. Mary Abbott's (15 Q. B. D. 1) 82, 131 Gates V. Kansas City Bridge (HI Mo. 28) 144, 362 Gaus V. St. Louis, etc. R. (113 Mo. 308, 35 A. S. R. 706) 371, 373, 379 Gavit V. Chambers (3 Ohio, 495) 65 Gay V. Mut. Union Tel. Co. (12 Mo. App. 485) . . ... . . .373 Gear v. Dubuque, etc. R. (39 la. 23) 244 Gedeye v. Comm. (1891) (2 Ch. 630) 274, 275 Geuet V. Brooklyn (99 N. J. 306) 22, 253, 254 George's Creek Coal Co. v. New Cent. Coal Co. (40 Md. 425) . . 308 Georgia R. & B. Co. v. Smith (128 U. S. 174, 9 S. Ct. 47) . . 16, 20 Georgia South. R. v. Ray (84 Ga. 372, 11 S. E. 352) 211 V. Small (87 Ga. 355, 13 S. E. 515) 263 Gerhard v. Comm. (15 R. I. 334, 5 A. 199) 376 Gerhardt v. Reeves (75 111. 301) 361 Germantown Ave. (99 Pa. 479) 328 Gerrard v. Omaha, etc. R. (14 Neb. 270, 15 N. 231) 303 Getz's Appeal (10 W. N. C. (Pa.) 453) 44 Getz V. Philadelphia, etc. R. (105 Pa. 547) 320 Gibbons v. Ogden (9 Wheat. 1) 31 V. United States (8 Wall. 269) 337 Gibbs V. Gas Co. (130 U. S. 396, 9 S. Ct. 553) 2 Giboney v. Cape Girardeau (58 Mo. 141) 23 Gibson v. Owens (115 Mo. 258) 364 V. Hammersmith, etc. R. (2 Dr. & Sm. 603) 224 Giesy v. Cincinnati, etc. R. (4 Ohio St. 308) .... 42, 50, 94, 230 GifCord v. Dartmouth (129 ]\Iass. 135) 261 Gilbert v. Foote (unreported) 51 V. Greeley, etc. R. (13 Col. 501, 22 P. 814) 143, 145 Gile V. Stevens (13 Gray, 146) 225, 235 Gilkerson v. Scott (76 111. 509) 292 Gill V. Milwaukee, etc. R. (76 Wis. 293, 45 N. W. 23) 295 Gilligan v. Providence (11 R. I. 258) 309 Gillison v. Savannah, etc. R. (7 S. Car. 173) 271, 351 Gilman v. Milwaukee (55 Wis. 328, 13 N. 266) 46 V. Philadelphia (3 Wall. 718) 383, 385 V. Sheboygan (2 Black, 510) 22 V. Sheboygan, etc. R. (37 Wis. 317) 272 V. (40 Wis. 653) 272, 353, 357 Gilmer v. Lime Point (18 Cal. 229) 30, 32 Gilmore v. Pittsburgh, etc. R. (101 Pa. 275) .... 182, 205, 224 Gimbel v. Stolte (.59 Ind. 446) 309 Girard v. Philadelphia (7 Wall. 14) 59 Girard Ave. (11 Phila. 449) 295 Girard Storage Co. v. Southwark Co. (105 Pa. 248) 20 Glaessner v. Brewing Co. (100 Mo. 508, 13 S. W. 707) .... 335 Gloucester Ferry Co. v. Pennsylvania (114 U. S. 196, 5 S. Ct. 826) 31 TABLE OP CASES. Ixv PAGE Glover v. Boston (14 Gray, 282) 101 -. 1;. Powell (10 N. J. Eq. 211) 65,383 Gold Hill Min. Co. v. Ish (5 Or. 104) 2 Goodall V. Milwaukee (5 Wis. 32) Ill Goodin V. Cincinnati, etc. Canal (18 Ohio St. 169) . 118, 227, 232, 347 Goodtitle v. Alker (1 Burr. 133) 343 Goodwin v. County Comm. (60 Me. 328) 297 V. Milton (25 N. H. 458) 276 V. Wethersfield (43 Conn. 437) 39, 306 Goodwine v. Evans (33 N. E. 1031) 218, 229 Googins V. Boston, etc. R. (155 Mass. 505, 30 N. E. 71) .... 72 Gordon v. Comes (47 N. Y. 608) 61 V. Pennsylvania R. (6 W. N. C. 405) 153 Gorgas V. Philadelphia, etc. R. (144 Pa. 1, 22 A. 715) .... 73 Gorraley v. Sandford (52 111. 158) 136 Gosman's Case (17 Ch. D. 771) 337 Gough V. Bell (22 N. J. L. 441) 78 Gould V. Hudson River R. (6 N. Y. 522) 78, 84, 85 Gouverneur v. Ice Co. (134 N. Y. 355, 31 N. E. 865, 30 A. S. R. 669) 66 Governor, etc. v. Meredith (4 T. R. 794) 128, 141, 362 Gowen v. Penobscot R. (44 Me. 140) 289 Gozler v. Georgetown (6 Wheat. 593) 93 Grace v. Board of Health (135 Mass. 490) 391 Grafton v. Baltimore, etc. R. (21 Fed. R. 309) 147 Graham v. Connersville, etc. R. (36 Ind. 463) ....... 221 V. Pittsburgh, etc. R. (145 Pa. 504, 22 A. 983) 263 Grand Junction R. v. County Comm. (14 Gray, 553) . 271, 301, 322 Grand Rapids v. Grand Rapids, etc. R. (58 Mich. 641, 26 N. W. 159) 268, 277, 292, 294 V. (66 Mich. 42, 33 N. W. 15) 89, 92 (2), 93 V. Luce (92 Mich. 92, 52 N. W. 635) 218, 239 V. Perkins (78 Mich. 93, 43 N. W. 1037) . . . 313, 317, 326 Grand Rapids Booming Co. v. Jarvis (30 Mich. 308) . . . 104, 139 Grand Rapids L. & D. R. v. Chesebro (74 Mich. 466, 42 N. W. 66) 109, 230, 239, 313 V. Weiden (69 Mich. 572, 37 N. W. 572) 115, 328 Grand Rapids N. & L. S. R. v. Alley (34 Mich, 16) 311 V. Grand Rapids, etc. R. (35 Mich. 267) 150 V. Van Driele (24 Mich. 409) 318 Grand Rapids Street Rys. (48 Mich. 433) 361 Grand Rapids & I. R. v. Heisel (38 Mich. 62) . . . . 366, 372, 379 V. (47 Mich. 393, 11 N. 212) 8,143 Grand Trunk R. v. Richardson (97 U. S. 454) 195, 333 Granger v. Syracuse (38 How. Pr. 308) 319 Gray u. Burlington, etc. R. (37 la. 119) 108 V. Knoxville (85 Tenn. 99, 1 S. W. 622) 362 V. Manhattan R. (128 N. Y. 499, 28 N. E. 498) . . . 314, 348 V. Middletown (56 Vt. 53) 293 e Ixvi TABLE OF CASES. PAGE Gray v. St. Louis, etc. R. (81 Mo. 126) 98, 181 Grayville & M. R. v. Christy (92 111. 337) 320 Gt. Falls Man. Co. v. Atty.-Gen. (124 U. S. 581, 8 S. Ct. 631) 353, 355 V. Fernald (47 N. H. 444) 50, 388 (2) Great West. R. v. Swindon, etc. R. (22 Ch, D. 677) 292 Green v. Bethea (30 Ga. 896) 153 V. Caanan (29 Conn. 157) 121 V. Chicago (97 111. 370) 247 V. City, etc. R. (28 A 626) 399 V. Missouri Pacific R. (82 Mo. 653) 265, 343 V. Neal (2 Pet 291) 35 V. Portland (32 Me. 431) 270 V. St. Louis (106 Mo. 453, 17 S. W. 496) 296 V. State (73 Cal. 29, 11 P. 602, 14 P. 610) 337, 384 !;. Swift (47 Cal. 536) 384 V. Tacoraa (51 Fed. R. 622) 343 Greene v. East Haddam (51 Conn. 547) 296 Greenwood ;;. Freight Co. (105 U. S. 13) 154, 155 Gregg V. Baltimore (56 Md. 256) 109, 177, 255 Greve v. St. Paul, etc. R. (26 Minn. 66, 1 N. W. 816) 222 Griffin v. Augusta, etc. R. (70 Ga. 164) 348 V. Shreveport, etc. R. (41 La. An. 808, 6 So. 624) 145 Grimes v. Coe (102 Ind. 406) 310 Grindley v. Barker (1 Bos. & P. 229) 295 Grisar v. McDowell (6 Wall. 363) 338 Griswold v. Bay City (35 Mich. 452) 193 V. Bragg (48 Conn. 577) 26 V. Met. El. R. (122 N. Y. 102, 25 N. E. 331) 279 Groif's Appeal (128 Pa. 621) 164 Groff V. Turnpike Co. (144 Pa. 150, 22 A. 834) 166 Grogan v. San Francisco (18 Cal. 590) 60 Grosser !). Rochester (60 Hun, 379, 15 N. Y. S. 62) 311 Groton v. Haines (36 N. H. 388) 339 V. Hurlburt (22 Conn. 178) 293 Grove Street (61 Cal. 438) 298 Guest V. Poole, etc. R. (L R. 5 C. P. 553) 99 Gulf C. & S. F. R. V. Fuller (63 Tex. 467) 68 V. Pool (70 Tex. 713, 8 S. W. 535) 139 Gurnsey v. Edwards (26 N. H. 224) 52, 353 Gwynne v. Cincinnati (3 Ohio, 24) 277 Hackensack Imp. Comm. u. N. J. Midland R. (22 N. J. Eq. 94) . . 348 Haokstack v. Keshena Imp. Co. (66 Wis. 439, 29 N. W. 240) . . .331 Hafi V. Fuller (45 Ohio St. 49,5, 15 N. E. 479) 345 Hagaman w. Moore (84 Ind. 496) 243 Hagar v. Brainerd (44 Vt. 294) 277 Hagner v. Pennsylvania R. (154 Pa 475, 25 A. 1082) 87 Haines v. St. Louis, etc. R. (65 la. 216, 21 N. W. 573) 175 TABLE OF CASES. Ixvii PAGE Haislip V. Wilmington, etc. R. (102 N. C. 376, 8 S. E. 926) . 224, 253 Haldane v. Sweet (55 Mich. 196, 20 N. W. 902) 159 Haldeman v. Pennsylvania R, (50 Pa. 425) 187, 381 Hall V. Meriden (48 Conn. 416) 326 V. People (57 111. 307) 115 V. Pickering (40 Me. 548) 117 Halsey v. Rapid Tiansit St. R. (47 N. J. Eq. 880, 20 A. 859) 346, 365, 368, 369 (2) Ham V. Salem (100 Mass. 350) 218 ». Wisconsin, etc. R. (61 la. 716, 17 N. 157) 173 Hamei-sly v. New Yorli (56 N. Y. 533) 259, 269 Hamilton v. Annapolis, etc. R. (1 Md. 553) 42, 49 V. (1 Md. Ch. 107) 195,206,335 V. Ft. Wayne (73 Ind. 1) 328 V. Harwood (113 111. 154) 328 «. State (106 Ind. 361, 7 N. E. 9) 201 Hamilton Ave. (14 Barb. 405) 156 Hamlin v. New Bedford (143 Mass. 192, 11 N. E. 115) 260 Hammersmith R. u. Brand (L. R. 4 H. L. 171) 145 Hammett v. Philadelphia (65 Pa. 146, 3 A. R. 615) 74 Hammond v. County Comm. (154 Mass. 509, 28 N. E. 902) . . . 376 V. Harvard (31 Neb. 635, 48 N. W. 462) 364 Hamor v. Bar Harbor Water Co. (78 Me. 127, 3 A. 40) 331 Hampden Paint Co. v. Springfield, etc. R. (124 Mass. 118) .... 262 Hampshire v. Franklin (16 Mass. 76) 61 Hancock v. Boston (1 Met. 122) 328 Hand Gold Min. Co. v. Parker (59 Ga. 419) 45 Hanford v. St. Paul, etc R. (43 Minn. 104, 42 N. W. 506, 44 N. W. 1144) . 299 Hankins v. Calloway (88 111. 155) 294 - — ■ V. Lawrence (8 Blackf. 266) 387 Hanlin v. Chicago, etc R. (61 Wis. 515, 21 N. 623) 108 Hanlon v. Supervisors (57 Barb. 383) 114 Hannibal Bridge v. Schaubacher (57 Mo. 582) .... 173, 174, 244 Hannibal & S. J. R. v. Muder (49 Mo. 165) 43 Hannum v. West Chester (63 Pa. 475) 357 Hanrahan v. Fox (47 la 102) 243 Hanson 17. Vernon (27 la. 28, 1 A. R. 215) 46,48 Harbach v. Des Moines (80 la. 593, 44 N. W. 348) 271 Harback v. Boston (10 Cu,sh. 295) ..." 187 (2), 190 Harbeck v. Toledo (11 Ohio St. 219) 301 Harbor Line Comm. v. State (2 Wash. 530, 27 P. 550) . . . 339, 384 Hardin v. Jordan (140 U. S. 371, 11 S. Ct. 808, 838) 66 Harding v. Goodlett (3 Yerg. 41) 52 V Stamford Water Co. (41 Conn. 87) 349 Hargis v. Kansas City, etc. R. (100 Mo. 210, 13 S. W. 680) . . .123 Harlow v. Marquette, etc. R. (41 Mich. 336, 2 N. W. 48) . . . . 121 Harmon v. Railroad Co. (87 Tenn. 614, 11 S. W. 703) 284 Ixviii TABLE OF CASES. PAGE Harness v. Chesapeake Canal Co. (1 Md. Ch. 248) 206, 209 Harrington v. County Coram. (22 Pick. 263, 33 A. D. 741) . . . .341 V. St. Paul, etc. R. (17 Minn. 255) 340 Harris v. Brewster (154 Pa. 22, 25 A. 829) 277 i). Howes (75 Me. 436) 274 . f . Marblehead (10 Gray, 40) 26 V. Schuylkill River, etc. R. (141 Pa. 242, 21 A. 590, 23 A. S. R. 278) 228, 231, 238 Harrisburg v. Peffer (84 Pa. 295) 287 Harrison v. Mt. Auburn R. (17 W'kly Bull. 265) 367 V. Sabiua (1 Ohio, C. C. 49) 309 V. Water Co. (1891), (2 Ch. 409) 149 . V. Young (9 Ga. 358) 229 Harshbarger v. Midland R. (131 Ind. 177, 27 N. E. 352, 30 N. E. 1083) 280 Hart V. Levee Comm. (54 Fed. R. 559) 35, 36, 393 Hartford Bridge v. Union Ferry (29 Conn. 210) 157 Hartford & C. R. (65 How. Pr. 133) 186 Hartley v. Keokuk, etc. R. (52 N. W. 352) 316, 356 Hartshorn v. B. C. R. k N. R. (52 la. 613, 3 N. 648) .... 239, 259 V. Worcester County (113 Mass. Ill) 243 Hartwell v. Armstrong (19 Barb. 166) 390 Harvey v. Lackawanna, etc. R. (47 Pa. 428) 69, 242 V. Thomas (10 Watts, 63) 37 Harwood v. Bloomington (124 111. 48, 16 N. E. 91) 247 . V West Randolph (64 Vt. 41, 24 A. 97) 72 Haskell v. New Bedford (108 Mass. 208) . 131, 353 Haslam v. Galena, etc. R. (64 111. 353) 227 (2), 293 Hasson v. Oil Creek, etc. R. (8 Phila. 556) 196 Hastings «. Burlington, etc. R. (38 la 316) 203,216 Hastings & G. I. R. v. Ingalls (15 Neb. 123, 16 N. 762) 82 Haswell v. Vermont Cent. R. (23 Vt. 228) 274 Hatch V. Cincinnati, etc. R. (18 Ohio St. 92) ... 73, 152, 202, 240 . V. Hawkes (126 Mass. 177) 355 V. New York (82 N. Y. 436) 273, 279 V. Tacoma, etc. R (6 Wash. 1) 379 Hatry v. Painesville, etc. R. (1 Ohio C. C. 426) 280 Haverhill Bridge v. County Comm. (103 Mass. 120, 4 A. R. 518) 268, 271 Hawkins v. Coram. (2 Allen, 254) 275 V. The Justices (12 Lea, 351) 297 Hawkins Point Lighthouse (39 Fed. R. 77) 383 Hawley v. Harrall (19 Conn. 142) 355 Hay V. Cohoes Co. (3 Barb. 42) 388 Hayden v. Atlanta (70 Ga. 817) 24 V. Noyes (5 Conn. 391) 394 V. State (132 N. Y. 533, 30 N. E. 961) 300 Haynes v. Thomas (7 Ind. 38) 379 Hays V. Briggs (74 Pa. 373) .' . 86 TABLE OF CASES. Ixix PAGE Hays V. Lewis (28 Ohio St. 326) 120 V. Pairish (52 Ind. 132) 294, 296 V. Risher (32 Pa. 169) 45 Hazen v. Boston, etc. K. (2 Gray, 574) 197 V. Essex Co. (12 Cush. 475) 50, 209 Hazlehurst v. Freeman (52 Ga. 244) 162 Head «. Amoskeag Co. (113 U. S. 9, 5 S. Ct. 377) . . . . 34 (2), 387 Heady v. Vevay, etc. Turnpike (52 Ind. 117) 316 Heagy v. Black (90 Ind. 534) 318 Healey v. New Haven (49 Conn. 394) Ill (2), 331, 340 V. Newton (119 Mass. 480) 306 Heard v. Brooklyn (60 N. Y. 242) 189, 203 • V. Eldredge (109 Mass. 258, 12 A. R. 687) 276 ■ V. Talbot (7 Gray, 113) 200 Heath v. Barmore (50 N. Y. 302) 117 Hebbard's Case (4 Dill, C. C. 380) 30 Heck V. School Dist. (49 Mich 551, 14 N. 493) 297 Hedden v. Davidson (51 Cal. 138) 309 Hedrick v. Olathe (30 Kan. 348, 1 P. 118) 270 Heick V. Voight (110 Ind. 279, 11 N. E. 306) 389 Heilbron v. Canal Co (75 Cal. 426, 17 P. 535, 7 A. S. R. 183) . . 141 Heilman v. Lebanon, etc. R. (145 Pa. 23,' 23 A. 389) . . . 368, 377 V. Union Canal (50 Pa. 268) 280 Heirs of Van Vorst (2 N. J. Eq. 292) 274 Hei.se v. Pennsylvania R. (62 Pa. 67) 109 Heiser v. New York (104 N. Y. 68, 9 N. E. 866) 330 Heiss V. Milwaukee, etc. R. (69 Wis. 555, 34 N. W. 916) . . 139, 373 Helfrich v. Water Co. (74 Md. 269, 22 A. 72) 108 Helm V. Webster (85 111. 116) 25, 117, 203 Hendershot v. State (44 Ohio St. 208, 6 N. E. 245) 210 Hendersholt v. Ottumwa (40 la. 658, 26 A. R. 182) 362 Henderson v. Adams (5 Cush. 610) 287, 332 V. Minneapolis (32 Minn. 319, 20 N. 322) 140, 362 V. New York Cent. etc. R. (78 N. Y. 423) . . . 349, 352, 371 Henderson & N. R. v. Dickenson (17 B. Mon. 173, 66 A. D. 148) . 250 Hendrick v. Carolina Cent. R. (101 N. C. 617, 8 S. E. 236) ... 358 Henkel v. Detroit (49 Mich. 249, 13 N. 611, 43 A. R. 469) ... 39 Henry v. Centralia, etc. R. (121 111. 264, 12 N. E. 744) .... 99 V. Dubuque, etc. R. (2 la. 288) 192, 193, 246, 247 V. Pittsburgh, etc. R. (8 W. & S. 85) 134 V. Thomas (119 Mass. .583) 302 V. Trustees (48 Ohio St. 671, 30 N. E. 1122) 39, 114 0. Vermont Cent. R. (30 Vt. 638, 73 A. D. 329) 139 Henshaw v. Hunting (1 Gray, 203) 200 Hentz V. Long Island R. (13 Barb. 646) 152, 280, 347 Hercules Iron Works v. Elgin, etc. R. (141 111. 491, 30 N. E. 1050) 288, 355 Herrick v. Cleveland (7 Ohio C. C. 470) 374 Ixx TABLE OP CASES. PAGE Hei-rick v. Moore (19 Me. 313) 158 Herron v. Rathmines, etc. Comm. (1892, A. C. 498) 8 Hersee v. Porter (100 N. Y. 403, 3 N. E. 338) 23 Hessler v. Drainage Comm. (53 111. 105) 24 Hestonville, M. & F. R. v. Philadelphia (89 Pa. 210) 335 Hetfield v. Central R. (29 N. J. L. 571) 121 Hewett V. County Comm. (85 Me. 308, 27 A. 179) .... 207, 294 V. West. Union Tel. Co. (4 Mackey, D. C, 424) 374 Hewitt's Case (25 N. J. Eq. 210) 348 Heyneman v. Blake (19 Cal. 579) 190 Heyward v. New York (8 Barb. 486) 3, 188 V. (7 N. Y. 314) 39, 188 Hibernia R. v. De Camp (47 N, J. L. 518, 54 A. R. 197) . . 42, 45 Hickok V. Hine (23 Ohio St. 523, 13 A. R. 255) 385 Hiokox V. Chicago, etc. R.' (78 Mich. 615, 44 N. W. 143) .... 199 • V. (94 Mich. 237, 53 N. W. 1105) 199 Higbee v. Camden, etc. R. (19 N. J. Eq. 276) 374 V. (20 N. J. Eq. 435) 345 Higgins V. Chicago (18 111. 776) 341 V. Piincetou (8 N. J. Eq. 309) 374 V. Reynolds (31 N. Y. 451) 197 Higginson v. Nahant (11 Allen, 530) 40 Highway Case (22 N. J. L. 293) 71, 208 Hilcoat V. Bird (10 C. B. 327) 232 Hildreth v. Lowell (11 Gray, 345) 365 Hill V. Chicago, etc. R. (38 La. An. 599) 371 V. Cincinnati, etc. R. (109 Ind. 511, 10 N. E. 410) .... 140 V. Mohawk, etc. R. (7 N. Y. 152) 185 V. New York (139 N. Y. 495) 134 V. Supervisors (95 Cal. 239, 30 P. 385) 101 V. United States (149 U. S. 593, 13 S. Ct. 1011) . . 57, 337, 383 V. (39 Fed. R. 172) 57 V. West. Vermont R. (32 Vt. 68) 115, 117 (2) Hilton V. St. Louis (99 Mo. 199, 12 S. W. 657) 259, 280 Hinchman v. Paterson Horse R. (17 N. J. Eq. 75, 88 A. D. 252) . 366 Hinckley, Petitioner (15 Pick. 447) 308 Hinckley v. Hastings (2 Pick. 162) 300 Hine v. Manhattan R. (132 N. Y. 477, 30 N. E. 985) 217 . • V. New Haven (40 Conn. 478) 12 0. New York El. R. (36 Hun, 293) 315 Hingham, etc. Turnpike v. Norfolk County (6 Allen, 353) . 322, 334 Hire v. Kniseley (130 Ind. 295, 29 N. E. 1132) 221, 252 Hoadley v. San Francisco (50 Cal. 265) 83 Hoag V. Switzer (61 111. 294) 244 Hoagland v. Culvert (20 N. J. L. 387) 294 (2) w. New York, etc. R. (Ill Ind. 443, 12 N. E. 83) 203 V. Wurts (41 N. J. L. 175) 51, 392 Hoard v. Des Moines (62 la. 326, 17 N. 527) 393 TABLE OF CASES. Ixxi PAGE Hobartu. Milwaukee City R. (27 Wis. 194, 9 A. R. 461) .... 367 Hobbs u. Comm. (103 Ind. 575, 3 N. E. 263) 295 Hoboken v. Penusylvania R. (124 U. S. 656, 8 S. Ct. 643) . . 67 (2) Hoboken Land, etc. R. v. Hoboken (36 N. J. L. 540) . 67, 77, 83, 351 Hobson V. Philadelphia (25 A. 1046) 366 Hoch V. Met. El. R. (59 Hun, 541, 13 N. Y. S. 633) 121 Hoddesdon Gas Co. v. Haslewood (6 C. B. n. s. 239) 18 Hodge's Case (87 Cal. 162, 25 P. 277) 15 Hodge V. Lehigh Val. R. (39 Fed. R. 449) 119, 152 Hodges V. Baltimore Pass. R. (58 Md. 603) 366 V. Seabord, etc. R. (88 Va. 653, 14 S. E. 380) 371 Hoffman's Appeal (118 Pa. 512, 12 A. 57) 266 Hoffman v. Bloomsburg R. (143 Pa. 503, 22 A. 823) 313 Hogan V. Cent. Pacific R. (71 Cal. 83, 11 P. 876) 373 Hoggatt V. Vicksburg, etc. R. (34 La. An. 624) 195 Hohmann v. Chicago (140 III. 226, 29 N. E. 671) 146 Holcomb V. Moore (4 Allen, 529) 190, 298 Holden v. Cole (1 Pa. 303) 9 HoUiday v. Wakefield (1891, A. C. 81) 254 HoUingsworth v. Des Moines, etc. R. (63 la. 443, 19 N. 325) 190, 196 V. Parish of Tensas (17 Fed. R. 109) 35, 36 Hollister v. Union Co. (9 Conn. 436) 384 Holloway v. Southmayd (139 N. Y. 390) 375 V. University R. (85 N. C. 452) 330 Holt V. Gas Light Co. (L. R. 7 Q. B. 728) .... 173, 174, 175, 242 V. Somerville (127 Mass. 408) 39, 117, 187, 304 Holton V. Milwaukee (31 Wis. 27) 245 Holyoke Co. v. Connecticut River Co. (52 Conn. 570. 22 Blatchf . 131) 28 (2) V. Lyman (15 Wall. 500) 27, 394 Hooker v Montpelier, etc. R. (62 Vt. 47, 19 A. 775) 228 V. New Haven, etc. Co. (14 Conn. 146, 36 A. D. 477) ... 139 V. (15 Conn. 312) 381 V. Rochester (37 Hun, 181) 140 Hooper v. Columbus, etc. R. (78 Ala. 213) 344, 356 V. Wilkinson (15 La. An. 497, 77 A. D. 194) 136 Hopkins v. Gt. North. R. (2 Q. B. D. 224) 157 V. West. Pacific R. (50 Cal. 190) 283 Horey v. Haverstraw (47 Hun, 356) 198 Horton v. Hoyt (11 la. 496) 393 Hosmer v. Warner (15 Gray, 46) 287 Hotsprings R. v. Williamson (136 U. S. 121, 10 S. Ct. 955) . . . 145 V. (45 Ark. 429) 145 Hougan v. Milwaukee, etc. R. (35 la. 558, 14 A. R. 502) .... 119 Houghton V. Mining Co. (57 Mich. 547, 24 N. W. 820) 161, 292, 298, 310 Houghton's Appeal (42 Cal. 35) 325 Housatonic R. v. Lee, etc. R. (118 Mass. 391) 166 House V. Rochester (15 Barb. 517) 290 Houston V. Kleinecke (26 S. W. 250) 399 Ixxii TABLE OF CASES. PAGB Houston & T. C, R. v. Chaffin (60 Tex. 553) 357 ■ V. Odum (53 Tex. 343) 371 Hovey v. Mayo (43 Me. 322) 362 Howard v. Proprietors of Locks, etc. (12 Cush. 259) 287 u. Providence (6 R. I. 514) 219 Howe V. Weymouth (148 Mass. 605, 20 2Sf. E. 316) 215 V. Williams (13 R. I. 488) 101 Howell V. Road Board (32 N. J. Eq. 672) 24 Howland v. County Comm. (49 Me. 143) 319 Hubbard v. Norton (10 Conn. 422) 158 V. Toledo (21 Ohio St. 379) 203 Hudson V. Cuero, etc. Co, (47 Tex. 56, 26 A. R. 289) 151 Hudson & D. Canal «. New York, etc. R. (9 Paige, 325) .... 168 Hudson River R. v. Cutwater (3 Sand. 689) 182 Hudson River Tel. Co. v. Watervliet R. (135 N. Y. 393, 32 N. E. 148, 31 A. S. R. 836) 73, 105, 136 V. (61 Hun, 140, 15 N. Y. S. 752) 131 Hudson Tunnel Co. o. Atty.-Gen. (27 N. J. Eq. 573) 81 Hueston v. Hamilton, etc. R. (4 Ohio St. 685) 264 Hughes V. Railroad Co. (39 Ohio St. 461) 96 V. Todd (2 Duv. 188) 212 Huling V. Kaw Val. R. (130 U. S. 559, 9 S. Ct. 603) . . . 306, 356 Hull V. Chicago, etc. R. (21 Neb. 371, 32 N. W. 162) . 343, 344, 359 Hull & S. R. (5 Ry. Cas. 458) 8 Hunsioker v. Briscoe (12 La. An. 169) 186 Hunt V. Boston (152 Mass. 168, 25 N. E. 82) . . . . . . . . 219 V. New York (99 Ind. 593) 323 Hunter v. Newport (5 R. L 325) 318 Hupert V. Anderson (35 la. 578) 181 Hurdman v. North Eastern R. (L. R. 3 C. P. D. 168) 140 Huse V. Glover (119 U. S. 543, 7 S. Ct. 313) 33, 384 Huston V. Ft. Atkinson (56 Wis. 350, 14 N. 444) 193 Hutchison v. McLaughlin (15 Col. 492, 25 P. 317) 276 Hutt V. Chicago (132 111. 352, 23 N. E. 1010) 248 Huyck !'. Andrews (113 N. Y. 81, 20 N. E. 581, 10 A. S. R. 432) . 159 Hyde Park v. Cemetery Ass'n. (119 111. 141, 7 N. E. 627) ... 50, 32 V. County Comm. (117 Mass. 416) 301 V. Dunham (85 111. 569) 127, 146 V. Spencer (118 111. 446, 8 N. E. 846) 114 V. Wiggin (157 Mass. 94, 31 N. E. 693) 339 Hymes v. Esty (116 N. Y. 501, 22 N. E. 1087, 15 A. S. R. 421) . . 159 V. (133 N. Y. 342, 31 N. E. 105) 159 Hyslop V. Finch (99 111. 171) 253, 328 Illinois Cent. R. v. Chicago (138 111. 453) 150, 184, 299 V. (141 111. 509, 30 N. E. 1036) 234 V. (141 111. 586, 30 N. E. 1044) 51,150,166 V. Chicago, etc. R. (122 lU. 473, 13 N. E. 140) 166 TABLE OF CASES. Ixxiii PAGE Illinois Cent. R. v. Grabill (50 111. 241) 134 ^ V. Illinois (146 U. S. 387, 13 S. Ct. 110) 33, 66, 78 ■ ■ V. Willenborg (117 111. 203, 7 N. E. 698, 57 A. R. 862) ... 14 Illinois West. R. v. Mayrand (93 111. 591) 303, 320 Illinois & S. L. R. v. Switzer (117 111. 399, 7 N. E. 604, 57 A. R. 875) 153, 245 Illinois, etc Canal v. St. Louis (2 Dill. C. C. 82) 335 V. Chicago, etc. R. (14 111. 314) 92 Imlay v. Union Branch R. (26 Conn. 249, 68 A. D. 392) .... 371 •Indiana B. & W. R. u. Allen (100 Ind. 409) 280 "• (113 lud. 308, 15 N. E. 451, 3 A. S. R. 650) .... 271 V. Cook (102 Ind. 133, 26 N. E. 203) 312 V. Eberle (110 Ind. 542, 11 N. E. 467, 59 A. R. 225) . 284, 372, 373 Indiana Cent. R. v. Oakes (20 Ind. 9) 115 Indiana, etc. Limestone Co. v. Louisville, etc. R. (107 Ind. 301, 7 N. E. 244) 356 Indianapolis B. & W. R. v. Hartley (67 111. 439, 16 A. R. 624) . . 371 Indianapolis St. Ry. v. Citizens R. (127 Ind. 369, 24 N. E. 1054, 26 N. E. 893) 169 Indianapolis & C. Road v. Belt R. (110 Ind. 5, 10 N. E. 923) 72, 150, 334 Indianapolis & S. L. R. v. Smythe (45 Ind. 322) 160 Ingalls V. Byeis (94 Ind. 134) 279 Inge V. Police Jury (14 La. An. 117) 280 Ingraham v. Water Co. (82 Me. 335, 19 A. 861) . . . 170, 172, 300 Inhabitants of Charlestown v. County Comm. (3 Met. 202) ... 78 Ireland v. Met. El. R. (52 N. Y. Super. 450) 285 Irish V. Burlington, etc. R. (44 la. 380) 121 Iron Mt. R. v. Johnson (119 U. S. 608, 7 S. Ct. 339) 352 Iron R. V. Ironton (19 Ohio St. 299) 89 Irrigation Co. v. Vivian (74 Tex. 170, 11 S. W. 1078) 386 Irwin V. Gt. South. Tel. Co. (37 La. An. 63) 373 Isom V Mississippi Cent. R. (36 Miss. 300) 246 Ives V. East Haven (48 Conn. 272) 310, 319 Jackman v. Arlington Mills (137 Mass. 277) . 137 Jackson v. Hathaway (l.o Johns. 447, 8 A. D. 263) 196 - — V. McCall (10 Johns. 377, 6 A. D. 343) 82 V. Rankin (67 Wis. 285, 30 N. W. 301) 87, 300 V. Rogers (2 Show. 327) 18 Jackson County v. Waldo (85 Mo. 637) 254 Jacksonville v. Jacksonville R. (67 111. 540) 63 V. Lambert (62 111. 519) 140 Jacksonville N. & S. R. v. Cox (91 111. 500) 140 Jacob's Case (98 N. Y. 98, 50 A. R. 636) 13 Jamaica Pond Aqueduct Co. v. Brookline (121 Mass. 5) . . . . 82 James v. Campbell (104 U. S. 356) 75 James River & K. Canal v. Anderson (12 Leigh, 278) 381 Janesville v. Carpenter (77 Wis. 288, 46 N. W. 128, 2 A. S. R. 123) 14 Ixxiv TABLE OF CASES. PAGE Jarden v. Philadelphia, etc. R. (3 Whart. 502) 360 Jarvis v. Santa Clara Val. R. (52 Cal 438) 385 Jefferson v. New York El. R. (132 N. Y. 483, 30 N. E. 981) ... 314 Jefferson & S. R. v. Hazeur (7 La. An. 182) 303 Jefferson ville i>. Louisville, etc. Ferry (27 Ind. 100, 89 A. D. 495) . 40 V. Myers (2 Ind. App. 532, 28 N. E. 999) 364 Jeffersonville M. & I. R. v. O'Connor (37 Ind. 95) 201 Jeffries v. Swampscott (105 Mass. 535) 319 Jenal v. Green Island Co. (12 Neb. 163, 10 N. 547) 389 Jerome v. Ross (7 Johns. Ch. 315, 11 A. D. 484) .... 50, 185, 210 Jersey City v. Central R. (40 N. J. Eq. 417) 352 V. Fitzpatrick (36 N. J. L. 120) 343 V. (30 N. J. Eq. 97) 344 V. Gardner (33 N. J. Eq. 622) 341, 349 I). Saokett (44 N. J. L. 428) 234, 354, 357 Jersey City & B. R. v. Jersey City, etc. R. (20 N. J. Eq. 61) . . . 155 V. (21 N. J. Eq. 550) 155 Jessup V. Loucks (55 Pa. 350) 123, 195, 199, 203 John Street (19 Wend. 659) 203 Johnson v. Baltimore, etc. R. (45 N. J. Eq. 454, 17 A. 574) . 327, 348 V. Chicago, etc. R. (80 Wis. 641, 50 N. W. 771) 140 V. Crow (87 Pa. 184) 76 V. Freeport, etc. R. (Ill 111. 413) 301, 315 V. Jaqui (27 N. J. Eq. 552) 158 V. Supervisors (61 la. 89, 15 N. 856) 40 . V. Sutliff (17 Neb. 423, 23 N. 9) 261 V. Thomson Houston Electric Co. (54 Hun, 469, 7 N. Y. S. 716) 365 V. Water Co. (67 Barb. 415) 107 Johnson's Case (2 Ct. CI. 391) 215 Johnston v. Chicago, etc. R. (58 la. 537, 12 N. 576) 172 V. District of Columbia (118 U. S. 19, 6 S. Ct. 923) .... 135 V. Gas Co. (5 Cent. R. 564) 44 !). Joliet, etc. R. (23 111. 202) 304 V. Rankin (70 N. C. 550) 209 Jones V. Erie, etc. R. (144 Pa. 629, 23 A. 251) 172 V. ■ (151 Pa. 30, 23 A. 134, 31 A. S. R. 722) 126, 145 (2), 241, 315 V. Festiniog R. (L. R. 3 Q. B. 733) 131 V. Florida, etc. R. (41 Fed. R. 70) 274 V. New Orleans, etc. R. (70 Ala. 227) 109, 222 w. Oxford (45 Me. 419) 180,271 V. Seligraan (81 N. Y. 190) 245 V. Soulard (24 How. 41) 65, 66 V. Stanstead, etc. R. (L. R. 4 P. C. 98) 267 V. Tatham (20 Pa. 398) 81, 172 V. United States (35 Fed. R. 561) 338 1>. Walker (2 Paine, C. C. 688) 127 Jordan v. Eve (31 Gratt. 1) 159 TABLE OF CASES. IxxV PAGE Jordan v. Haskell (63 Me. 189) 200 V. St. Paul, etc. R. (42 Minn. 172, 43 N. W. 849) .... 140 V. Woodward (40 Me. 317) 51, 196, 388 (2) Joy V. Water Co. (85 Me. 109) 215, 326 Jubb V. Hull Dock Co. (9 Q. B. 443) 235 Judge V. New York Cent., etc. R. (56 Hun, 60, 9 N. Y. S. 158) . . 343 Julia Building Ass'n v. Bell Tel. Co. (88 Md. 258, 57 A. R. 398) . 373 Julien V. Woodsmall (82 Ind. 568) 193 Junction R. v. Ruggles (7 Ohio St. 1) 118 Justice V. Nesquehoning Val. R. (87 Pa. 28) 222 Kaiser v. St. Paul, etc. R. (22 Minn. 149) 364 Kane v. Baltimore (15 Md. 240) 37, 171, 190, 196 V. New York El. R. (125 N. Y. 164, 26 N. E. 278) . 85, 285, 385 Kankakee & I. R. i-. Chester (62 111. 235) 320 Kanne v. Minneapolis, etc. R. (30 Minn. 423, 15 N. 871) .... 265 Kansas & A. R. v. Payne (4 U. S. App 77, 49 Fed. R. 114, 1 C. C. A. 183) 157 Kansas City v. Morse (105 Mo. 510, 16 S. W. 893) 221 Kansas City R. v. Jackson County (45 Kan. 716, 26 P. 394) . . . 257 Kansas City, C. & S. R. v. Story (96 Mo. 611, 10 S. W. 203) . . . 326 Kansas City, S. & C. R. o. Campbell (62 Mo. 585) 326 Kansas City, S. & M. R. v. Weaver (86 Mo. 473) 276 Kansas City & E. R. v. Kregelo (32 Kan. 608) . . 197, 237, 239, 240 Kansas City & S. W. R. v. Ehret (41 Kan. 22, 20 P. 538) ... 315 Karst V. St. Paul, etc. R. (23 Minn. 401) 243 Kaukauna Water-Power Co. v. Green Bay, etc. Canal (142 U. S. 254, 12 S. Ct. 173) 195, 330, 339, 383 Kean v. Drainage Co. (45 N. J. L. 91) 99, 392 V. Elizabeth (54 N. J. L. 462, 24 A. 495) . . 51, 249, 374, 376 Kearsley v. Gibbs (44 N. J. L. 169) 319 Keates v. Holywell R. (28 L. T. N. S. 183) 144 Keating v. Cincinnati (38 Ohio St. 141, 43 A. R. 421) . . . 140, 362 Keene v. Bristol (26 Pa. 46) 268 Kehrer v. Richmond (81 Va. 745) 362 Keil V. Chartiers Val. Gas Co. (131 Pa. 466, 19 A. 78, 17 A. S. R. 823) 284 Kellar v. Harrisburg, etc. R. (151 Pa. 67, 25 A. 84) 357 Kellinger v. Forty-Second St R. (50 N. Y. 206) 366 Kellogg V. IngersoU (2 Mass. 97) 158 V. Krauser (14 S. & R. 137, 16 A. D. 480) 313 V. Malin (50 Mo. 496, 11 A. R. 426) 158, 189 V. (62 Mo. 429) 158 V. New Britain (62 Conn. 232, 24 A. 998) 101 Kelly V. Baltimore (65 Md. 171, 3 A. 594) 306 Kelsey v. King (1 Trans. R., N. Y., 133) 365 Kemp V. South Eastern R. (L. R. 7 Ch. 364) 170 Kemper D. Cincinnati, etc. Turnpike (11 Ohio, 392) .... 71,172 Ixxvi TABLE OF CASES. PAGE Kendall v. Missisquoi, etc. R. (55 Vt. 438) 357 0. Post (8 Or. 141) 288 Keniaon v. Arlington (144 Mass. 456, 11 N. E. 705) 299 Kennebunk Toll Bridge (11 Me. 263) 340 Kennedy v. Indianapolis (103 U. S. 599) 248 V. Milwaukee, etc. K. (22 Wis. 581) 351 Kennet & A. Nav. Co. v. Witherington (18 Ad. & El., N. S., 631) . 8 Kennett's Petition (24 N. H. 139) 244 Kensington Turnpike (97 Pa. 260) 76, 227 Kent V. Wallingford (42 Vt. 651) 179 Kentucky Railroad Tax Cases (115 U. S. 321, 6 S. Ct. 57) ... 34 Keokuk & N. W. R. v. Donnell (77 la. 221, 42 N. W. 176) . 345, 352 Kerr v. Comm. (117 U. S. 379, 6 S. Ct. 801) 218 V. West Shore R. (127 N. Y. 269, 27 N. E. 833) 85 Kersey v. Schuylkill River, etc. R. (133 Pa. 234, 19 A. 553, 19 A. S. R. 632) 244, 278 Kettle River R. v. Eastern R. (41 Minn. 461, 43 N. W. 469) 44, 52, 334 Keyport Steamboat Co. v. Farmer's Trans. Co. (18 N. J. Eq. 13) . 103 Keystone Bridge v. Summers (13 W. Va. 476) 277 Kidd V. Pearson (128 U. S. 1, 9 S, Ct. 6) 12 Kiernan v. Chicago, etc. R. (123 111. 188, 14 N. E. 18) . . 231, 311, 317 Kile V. Yellowhead (80 111. 208) 355 Kimball v. Kenosha (4 Wis. 321) 375 «. Rockland (71 Me. 137) 179 (2), 341 Kinoaid's Appeal (66 Pa. 411, 5 A. R. 377) 12 Kincaid v. Natural Gas Co. (124 Ind. 577, 24 N. E. 1066, 19 A. S. R 113) 347, 366 King V. Hayes (80 Me. 206, 13 A. 882) 12 . V. Minneapolis Union R. (32 Minn. 224, 20 N. 135) . . .226 (2) 1-. New York (102 N. Y. 171, 6 N. E. 395) 280, 309 !). United States (59 Fed. R. 9) 383 King, The v. Comm. of Sewers (8 B. & C. 355) 393 V. Montague (4 B. & C. 598) 382, 384 V. Severn, etc. R. (2 B. & A. 646) 198 ». Smith (2 Doug. 441) 382 V. Wycombe R. (28 Beav. 104) 176 (See also Rex v. — ) Kingman, Petitioner (153 Mass. 566, 24 N. E. 778) 24, 38 Kings County El. R. (15 N. Y. Supp. 516) 317 Kings County Fire Ins. Co. v. Stevens (101 N. Y. 411, 5 N. E. 353) 375, 376 Kingslandw. New York (HON. Y. .569, 18N. E. 435) . . . 40,68 Kings Lynn v. Pemberton (1 Swan. 214) 47 Kingston Township Road (134 Pa. 409, 19 A. 750) .... 318, 319 Kinnie v. Bare (68 Mich. 625, 36 N. W. 672) 390 Kip V. New York, etc. R. (67 N. Y. 227) 100 Kiskiminitas Road (32 Pa. 9) 324 Kittell V. Missisquoi R. (56 Vt. 96) , . 351 TABLE OF CASES. Ixxvii PAGE Klicker v. Guilband (47 N. J. L. 277) 41 Klingler J). Bickel (117 Pa. 326, U A. 555) 12 Knapp ». McAuley (39 Vt. 275) 351 Knauft V. St. Paul, etc. R. (22 Minn. 173) 320 Knight V. Heaton (22 Vt. 480) 82 Knoll V. New York, etc. R. (121 Pa. 467, 15 A. 571) 277 Knoth !). Barclay (8 Col. 300, 6 P. 924) 82, 287 Knox V. Epsom (56 N. H. 14) 310 Koch V. Delaware, etc. R. (53 N. J. L. 256, 21 A. 284) .... 247 V. (54 N. J. L. 401, 24 A. 442) 393 V. North Ave. R. (75 Md. 222, 23 A 463) 105, 368 Koenig v. Chicago, etc. R. (27 Neb. 699, 43 N. W. 423) .... 98 V. County of Winona (10 Minn. 238) 324 Kohl V. United States (91 U. S. 367) . 28, 30, 32, 101, 103, 278, 311 Kohlepp V. West Roxbury (120 Mass. 596) 301 Kopf V. Utter (101 Pa. 27) 83 Koppikus u. Capitol Coram. (16 Cal. 248) 288 Kramer v. Cleveland (5 Ohio St. 140) 307 Kroop V. Forman (31 Mich. 144) 297 Kucheman v. Chicago, etc. R. (46 la. 366) 371 Kuhn V. Freeman (15 Kan. 423) 281 Kundinger v. Saginaw (59 Mich. 355, 26 N. W. 634) . . . 293, 307 Kuntzu. Sumption (117 Ind. 1, 19, N. E. 474) 307 Kusohke v. St. Paul (45 Minn. 225, 47 N. W. 786) . . 199, 300, 306 Lackland v. North Missouri R. (31 Mo. 180) 374 La Crosse & M. R. ». Seeger (4 Wi.s. 268) 332 Ladd V. Cotton Press Co. (53 Tex. 172) 18, 21 Lafayette v. Nagle (113 Ind. 425) 282, 364 V. Shultz (44 Ind. 97) 180, 270 V. Wortman (107 Ind. 404, 8 N. E. 277) 267 Lafayette, B. & M. R. v. Winslow (66 111. 219) 194, 224 Lafayette, M. & B. R. v. Muvdock (68 Ind 137) .... 151, 263 Lafayette Plankroad v. New Albany R. (l.. Kip (46 N. Y. 546, 7 A. R. 385) .... 43, 101, 108, 167 New York & L. B. R. v. Capner (49 N. J. L. 555, 9 A, 781) . . 295 I!. Drummond (46 N. J. L, 644) 86, 155 New York & N. E. R, v. Bristol (151 U. S. 556) 396 V. Comstock (60 Conn. 200, 22 A. 511) 197 V. New York, etc. R. (52 Conn. 274) 106 V. Waterbury (60 Conn. 1, 22 A. 439) 150, 257 New York & N. E. Transfer Co. (14 Blatch. 159) 156 Niagara Falls Manuf. Co. (68 Hun, 391, 23 N. Y. S. 31) ... 294 Niagara Falls & AV. R. (108 N. Y. 37.5, 15 N. E. 429) . 39, 42, 46 (2), 47, 50 (121 N. Y. 319, 24 N. E. 452) 353 Nichols V. Ann Arbor, etc. R. (87 Mich. 361, 49 N. W. 538) . 367 (2) V. Boston (98 Mass. 39, 93 A. D. 132) 82 V, Bridgeport (23 Conn. 189, 60 A. D. 636) 24 V. Salem (14 Gray, 490) 310 „. Somerset, etc. R. (43 Me. 356) 329 Nicholson v. New York, etc. R. (22 Conn. 74, 56 A. D. 390) . 144, 364 Nicks V. Chicago, etc. R. (84 la. 27) 364 Nicoll -■. New York Cent. R. (12 N. Y. 121) 202 Niemeyer v. Little Rock Junpt. R. (43 Ark. Ill) 47, 99 Ninth Ave. (45 N. Y. 729) 273 Noble V Des Moines, etc. R. (61 la. 637, 17 N. 26) . . . 258, 260 Noll V. Dubuque, etc. R. (32 la. 66) 200, 202 Noonan v. Albany (79 N. Y. 470, 35 A. R. 540) . , . 139, 232, 362 V. County of Hudson (52 N. J. L. 398, 20 A. 255) ... 94 Norcross v. Griffiths (65 Wis. 599, 27 N. W. 606, 56 A, R. 642) . 66 Norfleet v. Cromwell (70 N. C. 634, 16 A. R. 787) 390 Norfolk V. Cooke (27 Gratt. 430) 66 Norris v. Baltimore (44 Md. 598) 258, 260 V. Philadelphia (70 Pa. 332) ' 259 . V. Vermont Cent. R (28 Vt. 99) 119 North & W. B. R. v. Swank (105 Pa. 555) 119 TABLE' OF CASES. Xci PAGE North Baltimore R. v. North Ave. R. (75 Md. 233, 23 A. 466) . . 155 North Baptist Church v. Orange (54 N. J. L. Ill, 22 A. 1004) 52, 307 North Carolina Cent. R. v. Carolina Cent. R. (83 N. C. 489) 89, 100, 155 North Hudson County R. u. Booraem (28 N. J. Eq. 450) 108, 221, 263, 351 North Pennsylvania R. u. Davis (26 Pa. 238) 278 North Shore R. o. Pion (14 App. Cas. 612) 84 North Vernon v. Voegler (103 Ind. 314, 2 N. E. 821) 282 Northern R. v. Concord, etc. R. (27 N. H. 183) .... 319, 323 Northern Cent R. v. Canton Co. (30 Md. 347) 203 Northern Missouri R. v. Lackland (25 Mo. 515) 182 Northern Pacific R. v. Burlington, etc. R. (4 Fed. Rep. 298) . . 36 V. Haas (2 Wash. 376, 26 P. 869) 288 V. Reynolds (50 Cal. 90) 206, 239 V. St. Paul, etc. R. (3 Fed. Rep. 702) 327 Northern Pacific T. R. v. Portland (14 Or, 24) 292 Northern Pacific & P. S. S. R. u. Coleman (3 Wash. 228, 28 P. 514) 301, 303 Norwalk v. Blanohard (56 Conn. 461, 16 A. 242) 226, 242 Norwood V. JMontreal R. R. (47 Hun, 489) 221 Noyes v. Springfield (116 Mass. 87) 355 Nutter V. Gallagher (19 Or. 375, 24 P. 250) 382 Nye V. Taunton Branch R. (113 Mass. 277) 114, 277 Oaksmith's Lessee v. Johnston (92 U. S. 343) 83 O'Brien v. Ball (119 Mass. 28) 159 (2) V. Baltimore Belt R. (74 Md. 363, 22 A. 141) . 135, 266, 346, 372 y. Pennsylvania R. (119 Pa. 184, 13 A. 74) 267 O'Connor v. Pittsburgh (18 Pa. 187) 362 V. Fond du Lac, etc. R. (52 Wis. 526, 9 N. 287, 38 A. R. 754) 140 Occum Co. V. Sprague Manuf. Co. (35 Conn. 496) . . 90, 101 (2) Ogden City R. v. Ogden City (7 Utah, 207) 368 Ogden Street (63 Hun, 188, 17 N. Y. S. 744) 293 Ohio Life & Trust Co. v. Debolt (16 How. 432) 35 Ohio River R. Harness (24 W. Va. 511) 319 Ohio Val. R, v. Kerth (130 Ind. 314, 30 N. E. 298) 228 Ohio & M. R. V. Barker (134 111. 470, 25 N. E. 785) 295 V. Thillman (143 111. 127, 32 N. E. 529) 153 V. Wachter (123 111. 440, 15 N. E. 279) 171, 282 Ohio & P. K. V. Wallace (14 Pa. 245) 321 Olcott V. Supervisors (16 Wall. 678) 35 (2), 48 Old Colony R. v. Miller (125 Mass. 1) .... 181, 248, 258, 259 V. Water Co. (153 Mass. 561, 27 N. E. 662> 89 Old Colony & F. R. R. v. County of Plymouth (14 Gray, 155) 68, 150, 252, 256 (3), 257 Old Town V. Dooley (81 111. 255) 193 Clean v. Steyner (135 N. Y. 341, 32 N. E. 9) 234 Oliphant v. Comm. (18 Kan. 386) 123 Olive V. State (86 Ala. 88, 5 So. 653) 381 XCU TABLE OF CASES. PAGE Oliver v. Union Point, etc. R. (83 Ga. 257, 9 S. E. 1086) . . . 264, 327 V. Pittsburgh, etc. K. (131 Pa. 408, 19 A. 47) 279 Olmstead v. Camp, 33 Conn. 532, 89 A. D. 221) 388 Olmsted v. Aqueduct Co. (46 N. J. L. 495) 107, 171, 386 „. (47 jsr. J. L. 311) 107, 171, 386 Olney v. Wharf (115 111. 519, 5 N. E. 366, 56 A. R. 178) ... 270 Olson V. Merrill (42 Wis. 203) 65 Omaha u. Kramer (25 Neb. 489, 41 N. W. 295) . . . 143 (2), 144 Omaha Belt R. v. McDermott (25 Neb. 714, 41 N. W. 648) . . . 228 Omaha N. & B. R. v. Gerrard (17 Neb. 587, 24 N. 279) .... 274 Omaha South R. v. Beeson (54 N. W. 557) 241 Omaha & N. P. R. v. Janecek (30 Neb. 276, 46 N. W. 478, 27 A. S. R. 399) 146 Omaha & N. W. R. v. Menk (4 Neb. 21) 341 Omaha & R. V. R. v. Rogers (16 Neb. 117, 19 N. 60-3) .... 379 One Hundred and Twenty-seventh Street (56 How. Pr. 60) . . . 183 O'Neal V. Sherman (77 Tex. 182, 14 S. W. 31) 117 O'Neill V. Annett (27 N. J. L. 290, 72 A. D. 364) 18 V. Freeholders (41 N. J. L. 161) 180 Onset St. R. v. County Comm. (154 Mass. 395, 28 N. E. 286) 372, 379 Opinion of Judges (1 Met. 580) 55 (150 Mass. 592, 24 N. E. 1084) 49 (155 Mass. 598) 397 (2), 398 Oregon Cent. R. v. Waite (3 Or. 91) 247 Oregon R. & N. Co. v. Mosier (14 Or. 519, 13 P. 500, 58 A. R. 321) 222 Oregon & C. R. v. Barlow (3 Or. 311) 313 Oregonian R. v. Hill (9 Or. 377) 178 O'Reiley v. Drainage Co. (32 Ind. 169) 392 Organ v. Memphis, etc. R. (51 Ark. 235, 11 S. W. 96) . . 271, 347 Orr V. Quimby (54 N. H. 590) .... 30, 32, 178, 208, 267 (2) Osborn v. Bank of the United States (9 Wheat. 738) 338 D. Hart (24 Wis. 89, 1 A. R. 161) 41 Osborne v. Missouri Pacific R. (147 U. S. 248), 13 S. Ct. 299) 35, 346 Otoe County v. Heye (19 Neb. 289, 27 N. W. 145) 241 Ottawa O. C, etc. R. v. Adolph (41 Kan. 600, 21 P. 643) . . . 217 V. Larson (48 Kan. 301, 19 P. 661) 371 Oury V. (Joodwin (26 P. 376) 30, SO, 386 Overman Silver Min. Co. v. Corcoran (15 Nev. 147) 45 Owners, etc. v. Albany (15 Wend. 374) 261, 306, 374 Owosso V. Richfield (80 Mich. 328, 45 N. W. 129) 299 Oxford Township v. Columbia (38 Ohio St. 87) 83 Pacific R. V. Wade (91 Cal. 449, 27 P. 768, 25 A. S. R. 201) . . 155 Pacific R. Removal Cases (115 U. S. 1, 5 S. Ct. 1113) .... 31 Pacific Coast R. v. Porter (74 Cal. 261, 15 P. 774) 243 Pacific Postal Tel. Co. v. Irvine (49 Fed. Rep. 113) 373 V. West. Union Tel. Co. (50 Fed. Rep. 493) 194 Pack V. Chesapeake, etc. R. (5 W. Va. 118) 324, 345 TABLE OF CASES. Xciii PAGE Packard v. Bergen Neck R. (54 N. J. L. 229, 23 A. 722) . . 237 V. (54 N. J. L. 553, 25 A. 506) . . 218, 237, 251, 314, 320 . „. County Comm. (80 Me. 43, 12 A. 788) 300 Paducah & M. R. v. Stovall (12 Heisk. 1) 248 Page V. Baltimore (34 Md. 558) 109 V. Chicago, etc. R. (.70 III. 324) 207, 247 V. Heineberg (40 Vt. 81) 117 1-. O'Toole (144 Mass. 303, 10 N. E. 851) 187 Paine v. Delhi (116 N. Y. 224, 22 N. E. 405) 135 1). Woods (108 Mass. 160) 196 (2), 251 Palairet's Appeal (67 Pa. 479, 5 A. R. 450) 26 Palatine v. Kreuger (121 III. 72, 12 N. E. 75) . . . . . . . 377 Palgrave Min. Co. v. McMillan ([1892] A. C. 460) . . 305, 316, 319 Palmer v. Cuyahoga County (3 McLean, 226) 27 Pappenheim v. Met. El. R. (128 N. Y. 436, 28 N. E. 518, 26 A. S. R. 486) 231, 284 Papooshek v. Winona, etc. R. (44 Minn. 195, 46 N. W. 329) . . 313 Paquet v. Mt. Tabor St. R. (18 Or. 233, 22 P. 906) 367 Paret v. Bayonne (39 N. J. L. 559) 332, 340 . V. (40 N. J. L. 333) 342 Parish v. Gilmanton (11 N. H. 293) 277 Parkdale v. West (12 App. Cas. 602) 267, 270, 349 Parke's Appeal (64 Pa. 137) 162 Parker v. Boston (3 Cush 107, 50 A. D. 709) . . 143, 145, 270, 364 V. Catholic Bishop (146 111. 158) 266 V. Chestnutt (80 Ga. 12, 5 S. E. 289) 279 V. Cutler Co. (20 Me. 353, 37 A. D. 56) 385 0. East Tennessee, etc. R. (13 Lea. 669) 213, 330, 348 ■ V. Fort Worth, etc. R. (84 Tex. 33) 101 V. People (111 111. 581, 53 A. R. 643) .... 14, 394, 395 V. West Coast Packing Co. (17 Or. 510, 21 P. 822) .... 84 Parker's Petition (36 N. H. 84) 277 Parkersburg Borough Streets (124 Pa. 511, 17 A. 27) .... 271 Parks V. Boston (8 Pick. 218, 19 A. D. 322) 52, 328 V. (15 Pick. 198) 159, 258, 309, 317 Parmelee o. Oswego, etc. R. (7 Barb, 599) ... .... 86 Parsons v. Howe (41 Me. 218) 191 Partridge v. Eaton (63 N. Y. 482) 381 Pasadena v. Stimson (91 Cal. 238, 27 P. 604) 115, 131, 163, 196, 241, 298, 300, 323, 365 Paschall St. (81 Pa. 118) 296 Passmore v. Philadelphia, etc. R. (9 Phila. 579) 276 Patch V. Boston (146 Mass. 52, 14 N. E. 770) 217, 218 Paterson v. Society, etc. (24 N. J. L. 385) 93 Paterson R. v. Grundy (26 A. 788) 368 Paterson N. & N. Y. R. Kamlah (47 N. J. Eq. 331, 21 A. 954) . 352 Patoka Township v. Hopkins (131 Ind. 142, 31 A. S. R. 417) . . 140 Patten v. Fitz (138 Mass. 456) 280 XCiv TABLE OF CASES. PAGE Patterson v. Boom Co. (3 Dill. C. C. 465) 187, 189, 228 V. Boston (20 Pick. 159) 313 V. (23 Pick. 425) 224, 235, 244 Paul V. Carver (24 Pa, 207, 64 A. D. 649) 376 V. Detroit (32 Mich. 108) 212, 296, 305, 361 V. Gloucester County (50 N. J. L. 585, 15 A. 272) .... 93 V. Newark (6 Am. L. Rev. 576) 221 Payne v. Kansas City, etc. R. (112 Mo. 6, 20 S. W. 322) .... 139 V. Kan.sas & A. R. (46 Fed. Rep. 546) 103, 275 Pearsall v. Supervisors (71 Mich. 438, 39 N. W. 578) 290 V. (74 Mich. 558, 42 N. W. 77) . . . . 72, 126, 249, 305 Peavey «. Calais R. (30 Me. 498) 106 V. Wolfborough (37 N. H. 286) 296 Peck V. Jones (70 Pa. 83) 159 V. Louisville, etc. R. (101 Ind. 366) 107 V. Superior, etc. R. (36 Minn. 343, 31 N. W. 217) . . . 173, 175 Peckham v. Lebanon (39 Conn. 231) 39 Peel V. Atlanta (85 Ga. 138, 11 S. E. 582) 143, 146, 245 Peik V. Chicago, etc. R. (94 U. S. 164) 16, 20 Peirce v. Boston, etc. R. (141 Mass. 481, 6 N. E. 96) 195 V. Somersworth (10 N. H. 369) 68, 202, 311 Pekin v. Brereton (67 111 477) 270 Pelton u. East Cleveland R. (22 AV'kly Bull. 67) .... 368, 369 Pemigewasset Bridge v. New Hampton (47 N. H. 151) .... 327 Peninsular R. v. Howard (20 Mich. 18) 292 Penn Coal Co. v. Versailles Gas Co. (131 Pa. 522, 19 A. 933) 186, 196 Penn Mutual Life Ins. Co. v. Heiss (141 111. 35, 31 N. E. 138, 33 A. S. R. 273) . . . 173, 210, 255, 272, 279, 284, 346, 354 Penn.'sylvania Canal Co. v. Dunkel (101 Pa. 103) 317 Pennsylvania Coal Co. v. Sanderson (113 Pa. 126, 6 A. 453, 57 A. R. 445) 136, 137 Pennsylvania Co. v. Piatt (47 Ohio St. 366, 25 N. E. 1028) . 201, 354 Pennsylvania Co. for Ins. v. Pennsylvania, etc. R. (151 Pa. 334, 25 A. 107, 31 A. S. R. 762) 173 Pennsylvania R. Appeal (93 Pa. 150) 88, 164 (2) (125 Pa. 189, 17 A. 478) 347 Pennsylvania R. v. Angel (41 N. J. Eq. 316, 7 A. 432, 56 A. R. 1) 129, 130, 134, 142 V. Baltimore, etc. R. (60 Md. 263) 157, 212 V. Bruner (55 Pa. 318) 319 V. Duncan (111 Pa. 352, 5 A. 742) .... 112, 145, 342, 397 V. Ebv (107 Pa. 166) 279, 285 V. Jersey City (49 N. J. L, 540, 9 A, 782) 43 V. Keiffer (22 Pa. 356) 261 V. Lippincott (116 Pa. 472, 9 A. 871). . US, 134, 143, 145, 146 I). Lutheran Congregation (53 Pa. 445) 288 V. Marchant (119 Pa. 541, 13 A. 690) 143, 145, 396 V. Miller (132 U. S. 75, 10 S. Ct. 34) 112 TABLE OP CASES. XCV PAGE Pennsylvania R. v. Miller (112 Pa. 34, 3 A. 780) 387 V. Porter C29 Pa. 165) 322 V. Reichert (58 Md. 261) 207 V. Root (53 N. J. L. 253, 21 A. 285) 314 (2) Pennsylvania S. V. R. v. Cleary (125 Pa. 442, 17 A, 468) 217, 228, 276 «. Keller (20 W. N. C. 125) 231 V. Paper Mills (149 Pa. 18, 24 A. 205) 190, 352 !;. Walsh (124 Pa. 544, 17 A. 186) 145, 146 V. Ziemer (124 Pa. 560, 17 A. 187) .... 145, 219, 258, 279 Pennsylvania & N. Y. R. v. Bunnell (81 Pa. 414) . . 252, 315 (2), 322 Penny v. Penny (L. R. 5 Eq. 227) 216, 263 V. Southeastern R. (7 El. & B. 660) 143, 145 Penrice v. Wallis (37 Miss. 172) 9 People V. Albany, etc. R. (24 N. Y. 261, 82 A. D. 295) .... 198 V. Batohellor (53 N. Y. 128, 13 A. R. 480) 35 -. V. Belts (55 N. Y. 600) 328 (2) V. Board of Health (140 N. Y. 1) 11, 22 V. Bridges (142 111. 30, 31 N. E. 115) 395 V. Brooklyn (4 N. Y. 419, 55 A. D. 266) 22, 24, 73 V. Brooklyn, etc. R. (89 N. Y. 75) 162 . — -W.Brown (55 N. Y. 180) 341 V. Budd (117 N. Y. 1, 22 N. E. 670) 17 (3), 20 V. Burton (65 N. Y. 4.52) 317 V. Canal Appraisers (33 N. Y. 461) . , 383 V. Canal Board (7 Lans. 220) 325 V. CoUison (85 Mich. 105, 48 N. W. 292) 395 V. Comm. (57 N. Y. 549) 87 V. County Court (28 Hun. 14) 99 V. Detroit (28 Mich. 228, 15 A. R. 202) 59, 60, 61, 63 V. District Court (11 Col. 147, 1 P. 298) 33 V. Dutchess, etc. R. (58 N. Y. 152) 104 V. Eaton (59 N. W. 144) 400 V. Eel River, etc. R. (98 Cal. 665) 121 V. Fire Ass'n (92 N. Y 311, 44 A. R. 380) 93 V. First .Judge, etc. (2 Hill, 398) 292 V. Flagg (46 N. Y. 401) 61 V. Gillson (109 N. Y. 389, 17 N. E. 343) 13 !). Gilon (121 N. Y. 551, 24 N. E. 944) 306 V. Gold Run, etc. Co. (66 Cal. 138, 4 P. 1152, 56 A. R. 80) . 65 V. Goodwin (5 N. Y. 568) 121 V. Green (62 N. Y. 624) 340 V. (3 Hun, 755) 340 ■ V. Hayden (6 Hill, 359) 210 V. Henion (64 Hun, 471, 19 N Y. S. 488) 390 V. Hillsdale, etc. Turnpike (2 Johns. 190) 340 V. Hynds (30 N. Y. 470) 292, 296 V. Jones (112 N. Y. 597, 20 N. E. 577) 66 V. Kelly (76 N. Y. 475) 76 XOvi TABLE OF CASES. PAGE People V. Kerr (27 N. Y. 188) 60, 361, 377 V. King (110 N. Y. 418, 18 N. E. 245) 18 . V. Kingman (24 N. Y. 559) 39 V. Kniskevn (54 N. Y. 52) 305 V. Lake Shore, etc. R. (52 Mich. 277, 17 N. 841) ... 14 ■ V. Lambier (5 Denio, 9, 47 A. D. 273) 67 ■ t>. Law (34 Barb. 494) 378 V. Loew (102 N. Y. 471, 7 N. E. 297) 178, 210 t). Lorillard(135N. Y. 285, 31 N. E. 1011) 102 V. Marx (99 N. Y. 377, 2 N. E. 29, 52 A. R. 34) 13 V. McDonald (69 N. Y. 362) 212, 289 V. Michigan South. R. (3 Mich. 496) 305 V. Morris (18 Wend. 325) 59 V. Mott (60 N. Y. 649) 323 V. Murray (5 Hill, 468) 356 V. O'Brien (HI N. Y. 1, 18 N. E. 692) 155 V. Osborn (20 Wend. 186) 355 V. Otis (90 N. Y. 48) 59 V. Park, etc. R. (76 Cal. 156, 18 P. 141) 165 V. Pittsburgh, etc. R. (53 Cal. 694) 45 V. Piatt (17 Johns. 195, 18 A. D. 382) 394 V. Port Jervis (100 N. Y. 283, 3 N. E. 194) 302 V. Rochester (50 N. Y. 525) 103 i;. Salem (20 Mich. 452, 4 A. R. 400) 41,48 V. Schuyler (69 N. Y. 242) 321, 341 V. Smith (21 N. Y. 595) 286, 305 V. Supervisors (19 Wend. 102) 244 . V. (3 Barb. 322) 289 0. Syracuse (63 N. Y. 291) 291, 293 . V. (78 N. Y 56) 180 V. Tallraan (36 Barb. 222) 306 V. Thompson (98 N. Y. 6) 88 „. (67 How. Pr. 491) 162 V. Township Board (3 Mich. 121) 341 ;;. Trinity Church (22 N. Y. 44) 3 !). Van Nostrand (46 N. Y. 375) 291 V. Walsh (96 111. 232, 36 A. R. 135) 361 V. Wasson (64 N. Y. 167) 345 V. Whitney's Point (102 N. Y. 81, 6 N. E. 875) . . . 319, 341 V. (32 Hun, 508) 301 People's Rapid Transit R. v. Dash (125 N. Y. 93, 26 N. E. 25) . 105 Peoria v. Johnston (56 111 45) 199 Peoria Gas Light Co. v. Peoria, etc R. (146 111. 372) . . . 219, 313 Peoria, etc. R. v. Peoria, etc. R. 1(105 111. 110) . . 99, 146, 256, 314 Peoria, P. & J. R. v. Black (58 111. 33) 323 V. Peoria, etc. R. (66 111. 174) 89 Peoria & R. I. R. !'. Birkett (62 111. 832) 112, 289, 326 V. Mitchell (74 111. 394) 210 TABLE OP CASES. XOvii PAGE Peoria & R. I. R. v. Warner (61 111. 52) 307 V. Rice (75 111. 329) 279 Perkins v. Maine Cent. R. (72 Me. 95) 359 V. Slack (86 Pa. 270) 61 V. Turnpike (48 N. J. Eq. 499, 22 A. 180) 192 Perley v. Chandler (6 Mass. 454, 4 A. D. 159) 196 Perrott v. Lawrence (2 Dill. C. C. 332) 157 Perrine v. Farr (22 N. J. L. 356) 208 Perry v. New Orleans, etc. R. (55 Ala. 413, 28 A. R. 740) . 362, 372 V. Sherborn (11 Cush. 388) 322 V. Wilson (7 Mass. 393) 103 Perrysburg Canal v. Fitzgerald (10 Ohio St. 513) 112 Peru V. Gleason (91 Ind. 566) 91 Peters v. Hastings, etc. R (19 Minn. 260) 323 Peterson v. Arthurs (9 Watts, 152) 159 Peyroux v. Howard (7 Pet. 324) 65 Peyser v. Met. El R. (13 Daly, 122) 285 Pflegar v. Hastings (28 Minn. 510, 11 N. 72) 239 Phifer v. Cox (21 Ohio St. 248, 8 A. R. 58) 197 Philadelphia u. Dyer (41 Pa. 463) ........ 259,277,341 V. Field (58 Pa. 320) 61 V. Fox (64 Pa. 169) 59 V. Linnard (97 Pa. 242) 223, 229, 239 V. Miskey (68 Pa. 49) 269 V. Scott (81 Pa. 80, 22 A. R. 738) . . .22, 383, 390, 392, 393 V. Wright (100 Pa. 235) 112, 357 Philadelphia, G. & N. R. v. Johnson (2 Whart 275) 261 Philadelphia, N. & N. Y. R. Appeal (120 Pa. 90, 13 A. 708) . . 157 Philadelphia N. & N. Y. v. Cooper (105 Pa. 239) 356 Philadelphia, W. & B. R v. Gesner (20 Pa. 240) 259 V. Trimble (4 Whart 47) 245 V. Williams (54 Pa. 103) 42, 72, 107 (2), 309 Philadelphia & E. R. i'. Cake (95 Pa. 139) 321 Philadelphia & G. F. R. Appeal (102 Pa. 123) 156, 169 Philadelphia & R. R. v. Gilson (8 Watts, 243) 248, 256 V. Lawrence (10 Phila. 604) 267 I'. Obert (109 Pa. 193, 1 A. 398) • . . 172, 275 Philadelphia & T. R. (6 Whart. 25, 36 A. D. 202) . . . 132, 138, 372 Phillips V. County Comm. (122 Mass. 258) 293 V. Dunkirk, etc. R. (78 Pa. 177) 101, 199, 343 V. Marblehead (148 Mass. 326, 19 N. E. 547) . . . 218, 313 V. St. Clair, etc. R. (153 Pa. 230, 25 A- 73.^) 330 V- Sherman (61 Me. 548) 311 V. Thompson (1 Johns. Ch. 131) 350 V. Watson (63 la. 28, 18 N. 659) 44, 45, 53 Phipps V. West. Maryland R. (66 Md. 319, 7 A. 556) 372 Phyfe V. Eimer (45 X. Y. 102) 159 Pickertw. Ridgefleld Park R. (25N. J. Eq. 316) 113 9 XCviu TABLE OF CASES. PAGE PickfordK. Lynn (98 Mass. 491) 309 Pickmau v. Peabody (145 Mass. 480, 14 N. E. 751) . . . 104, 211 Piedmont & C. R. v. McKenzie, (75 Md. 458, 24 A. 157) .... 139 V. Spellman (67 Md. 260, 10 A. 77, 293) 346 Pierce v. Drew (136 Mass. 75, 49 A. R. 7) 371, 373 ■ ■ V. Southbury (29 Conn. 490) ,318 V. Worcester, etc. R. (105 Mass. 199) 241 Pierrepont v. Loveless (72 N. Y. 211) ....•; 334 Pierson v. Canal Co. (2 Disney (Ohio) 100) 123 Piggott V. Gt. West. R. (18 Ch. D. 146) 258 Pinchin v. London, etc. R. (5 De G. M. & G. 851) 347 (3) Pingrey v. Cherokee, etc. R. (78 la. 438, 43 N. W. 285) .... 240 Pinkerton 1). Boston, etc. R. (109 Mass. 527) 216,281 Pinkham v. Chelmsford (109 Mass. 225) 355 Piscataqua Bridge v. New Hampshire Bridge (7 N. H. 35) . . 91, 156 Pitkin V. Springfield (112 Mass. 509) 353 Pitts u. Baltimore (73 Md, 326, 21 A. 52) 234 Pittsburgh's Appeal (128 Pa. 374, 16 A. 621) 39 Pittsburgh v. Scott (1 Pa. 309) 211 Pittsburgh B. & B. R. v. McCloskey (110 Pa. 436, 1 A. 555) . . 246 Pittsburgh F. W. & C. R. v. Feet (152 Pa. 488, 25 A. 612) . . . 170, 171, 200, 351 V. Reich (101 111. 157) 248 V. Swinney (97 Ind. 586) 182, 279 Pittsburgh Junot. R. Appeal (122 Pa. 511, 6 A. 564) 90 Pittsburgh Junct. R. v. Allegheny Val. R. (146 Pa. 297, 23 A. 313) 166 Pittsburgh Nat'l Bank v. Shoenberger (111 Pa. 95, 2 A. 190) . . 172 Pittsburgh V. & C. R. v. Bentley (88 Pa. 178) 239, 276 V. Rose (74 Pa. 362) 69, 206, 242, 248 V. Vance (115 Pa. 325, 8 A. 764) 216 (2), 219, 242 Pittsburgh W. & K. R. v. Iron Works (31 W. Va. 710, 8 S. E. 453) 44 Pittsburgh, etc R. i: Bedford, etc. R. (81i Pa. 104) 100 Pittsburgh & L. E. R. v. Bruce (102 Pa. 23) 187, 203 i.-. Robinson (95 Pa. 426) 216, 252 (2), 315 Pittsburgh & S. R. v. Hall (25 Pa. 336) 320 Pittsburgh & W. R. v. Patterson (107 Pa. 461) 219, 226 Pixley V. Clark (35 N. Y. 520) 137, 141 Plank Road o. Thomas (20 Pa. 91) 208 Plate V. New York Cent. R. (37 N. Y. 472) 284 Piatt V. Bright (29 N. J. Eq. 128) 309, 346 V. (31 N. J. Eq. 81) 209 V. Pennsylvania Co. (43 Ohio St. 228, 1 N. E. 420) 100, 201, 353 Plecker v. Hhodes (30 Gratt. 795) 106 Plimmer v. Wellington (9 App. Cas. 669) 147 Plum D. Kansas City (101 Mo. 525, 14 S. W. 657) 259 Plum Creek Road (110 Pa. 544, 1 A. 431) 38,41 Plumer v. Wansau Boom Co. (49 Wis. 449, 5 N. 232) . . . 281, 309 Plymouth ,v. Russell Mills (7 Alien, 438) 352 TABLE OP CASES. xcix PAGE Plymouth Road (5 Rawle, 150) 296 Pocautico Water Works >;. Bird (130 N. Y. 249, 29 N. E. 246) . 53, 169, 171, 196 V. Brombacher (17 N. Y. Supp. 661) 212 Pocopson Road (16 Pa. 15) 318 Poillon V. Brooklyn (101 N. Y. 132, 4 N. E. 191) 39 Poindexter v. Greeuhow (114 U. S. 270, 5 S. Ct. 903, 962) . . . 338 Point No Point Road (2 S. & R. 277) 319 Polack V. Orphan Asylum (48 Cal. 490) 376 Pollard V. Moore (51 N. H. 188) 181, 324 Pollard's Lessee v. Hagan (3 How. 212) 30, 33 Polly V. Saratoga, etc. R. (9 Barb. 449) 178 Pomeroy v. Chicago, etc. R. (25 Wis. 641) . '. 263 Pond y. Met. El. R. (112 N. Y. 186, 19 N. E.. 487) 283 Pontiac v. Carter (32 Mich. 164) 362 Pope V. United States (26 Ct. CI. 11) 215 Porter v. Met. El. R. (120 N. Y. 284, 24 N. E. 454) 283 Porth V. Manhattan R. (58 N. Y. Super. 366, 11 N. Y. S. 633) . . 362 Port Huron & N. W. R. v. Callanan (61 Mich. 22, 34 N. W. 678) . 325, 326, 345, 348 Port Huron & S. W. R. v. Voorhies (50 Mich. 506, 15 N. 882) . . 175, 295, 303, 326 Portland v. Lee Sam (7 Or. 397) 182 Portland & W. R. u. Portland (14 Or. 188, 12 P. 265, 58 A. R. 299) 60, 62 Portland & R. R. o. Deering (78 Me. 61, 57 A. R. 784) .... 227 Postal Tel. Co. v. Alabama, &c. R. (92 Ala. 331, 9 So. 555) . . 290 V. Louisville, etc. R. (43 La. An. 522, 9 So. 119) .... 319, 325 u. Norfolk, etc. R. (88 Va. 920, 14 S. E. 803) 166 Potomac Steamboat Co. v. Upper Potomac Steamboat Co. (109 U. S. 672, 3 S Ct. 445, 4 S. Ct. 15) 84 Potter V. Ames (43 Cal. 75) 306, 357 V. Saginaw St R. (83 Mich. 285, 47 N. W. 217) . . 346, 348, 368 Potts V. Pennsylvania, etc. R. (119 Pa. 278, 13 A. 291) ... 174 (2) V. Quaker City El. R. (29 A. 108) 398 Pottstown Gas Co. v. Murphy (39 Pa. 257) 115 Poughkeepsie Bridge (108 N. Y. 483, 15 N. E. 601) . . 93, 101, 168 Poughkeepsie R. (63 Barb. 151) 235 Pound V. Turck (95 U. S. 459) 384 Powell V. Hitchner (32 N. J. L. 211) 319 V. Pennsylvania (127 U. S. 678, 8 S. Ct. 992, 1257) .... 13 V. (114 Pa. 265, 7 A. 913) 13 Powers V. Bears (12 Wis. 213, 78 A. D. 733) 269, 291, 292 V. Bergen (6 N. Y. 358) 25 „. Council Bluifs (45 la. 652, 24 A. R. 792) 282 V. Hazleton, etc. R. (33 Ohio St. 429) 99, 228 (2) V. Manhattan (120 N, Y. 178, 24 N. E. 295) 285 Prather v. Ellison (10 Ohio, 396) 195 V. Jeffersonville, etc. R. (52 Ind. 16) 172 C TABLE OF CASES. PAGE Pratt V. Brown (3 Wis, 603) 30 V. Des Moiues, etc. R. (72 la. 249, 33 N. W. 666) . . . 121, 354 V. Roseland R (50 N. J. Eq. 150) 347, 348 Presbrey v. Old Colony R. (103 Mass. 1) 145, 197, 220 Presbyterian Society v. Auburn, etc. R. (3 Hill, 567) ..... 95 Preacott v. Patterson (49 Micii. 622, 14 N. 571) 355 President, etc. v. Trenton City Bridge (13 N. J. Eq. 46) ... 346 ?^ Summerfield ([1893] A C. 187) 255 Preston v. Dubuque, etc. R. (11 la. 15) 193 0. Sabine, etc. R. (70 Tex. 375, 7 S. W. 825) 222 Price V. Milwaukee, etc. R. (27 Wis. 98) . . . . 224, 226, 244, 246 V. Thompson (48 Mo. 361) 63 V. Weehawken Ferry (31 N. J. Eq. 31) 221 Princeton v. Gieske (93 lud. 102) 313 V. Templeton (71 111. 68) 234 Pritchard v. Atkinson (3 N. H. 335) 158, 297, 306 Private Road (112 Pa. 183, 5 A. 383) 41 Proctor V. Andrews (42 N. H. 348) 41 Proprietors of Locks, etc. v. Nashua, etc. R. (10 Cush. 385) . 135, 143, 144, 145, 240, 281 V. (104 Mass 1, 6 A. R. 181) . . .52, 194, 200, 201, 335 Proprietors of Mills v. Water Co. (149 Mass. 478, 21 N. E. 761) . 81, 141, 162 Prospect Park & C I. R. (67 N. Y. 371) 115, 323 (85 N. Y. 489) 324 V. Williamson (91 N. Y. 552) 69, 165 Prosser v. North Pacific R. (152 U. S. 59) 384 V. Wapello County (18 la. 327) 374 Protheroe v. Tottenham, etc. R. ([1891] 3 Ch. 278) 300 Providence & W. R. (17 R. I. 324, 21 A. 965) 88, 168 V. Norwich, etc R. (138 Mass 277) 164 V. Worcester (155 Mass. 35, 29 N. E. 56) . . . . 174, 225, 227 Providence Gas Co. v. Thurber (2 R. I. 15) 39, 365 Provision Co. V. Chicago (111 111. 651) 52,218,270 Provolt V. Chicago, etc. R. (57 Mo. 256) 344 u. (69 Mo. 633) 344, 348, 349 Pueblo & N. V. R. v. Rudd (5 Col. 270) 321 Pumpelly ('. Green Bay Co. (13 Wall. 166) . . 35,138,141,383 Purifoy V. Richmond R. (108 N. C. 100, 12 S. E. 741) .... 161 Pye V. Mankato (36 Minn. 373, 31 N. W. 863) 139 Qiiayle v. Missouri, etc. R. (63 Mo. 465) 295 Queen, The, v. Cambrian R. (L. R. 6 Q. B. 422) 157 V. Comm. (15 Ad. & El. n. s. 761) 180 V. London, etc. R. (3 E & B. 443) 295 V. Met. Bd. of Works (L. R. 4 Q. B. 358) 71 V. Rymer (L. R. 2 Q. B. 136) 19 (See also Reg. v. — .) / TABLE OP CASES. CI PAGE Quick V. Taylor (113 Ind. 540, 16 N. E. 583) 158, 190 Quigley's Case (3 Pen. & W. 139) 215 Quigley v. Pennsylvania, etc. R. (121 Pa. 35, 15 A. 478) . . 69, 360 Quimby v. Hazen (54 Vt 132) 25 V. Vermont Cent. R. (23 Vt. 387) 187 Quincy v. Boston (148 Mass. 389) 365 V. Bull (106 111. 337) 365 V. Jones (76 111. 231, 20 A. R. 243) 362 Quintini v. Bay St. Louis (64 Miss. 483, 1 So. 625, 60 A. R. 62) . 13 Racine v. Crotsenberg (61 Wis. 481, 21 N. W. 520, 5 A. R. 149) . 351 Radcliff's Exrs. v. Brooklyn (4 JST. Y. 195, 53 A. D. 357) . . 128, 362 Radisill v. State (40 Ind. 485) 268 Kadke v. Minneapolis, etc. R. (41 Minn. 350, 43 N. W. 6) . . . 119 Raflferty v. Cent. Traction Co. (147 Pa. 579, 23 A. 884, 30 A. S. R. 763) 367, 368 Railroad Comm. (83 Me. 273, 22 A. 168) 89 Railroad Co. v. Ailing (99 U. S. 463) 170 V. Belle Centre (48 Ohio St. 273, 27 N. E. 464) 88 w. Bingham (87 Tenn. 522, 11 S. W. 709) 371,372 «. Combs (51 Ark. 324, 11 S. W. 418) 190, 241, 325 V. County Comm. (79 Me. 386, 11 A. 113) 91 w. Ellerman (105 U. S. 166) 62 V. Foreman (24 W. Va. 662) 315, 327 V. Gardner (45 Ohio St. 309, 13 N. E. 69) 147, 316 I'. Halstead (7 W. Va. 301) 207 V. Hambleton (40 Ohio St. 496) 271 V. Hunt (51 Ark. 330, 11 S. W. 418) 301 V. O'Harra (48 Ohio St 343, 28 N. E. 175) 357 V. Perkins (49 Ohio St. 326, 31 N. E. 350) 263 (2) V. Robbins (35 Ohio St. 531) 343, 355 V. Schurmier (7 Wall. 272) 66 !'. Tyree (7 W. Va. 693) 251 Raleigh & A. R. v. Wicker (74 N. C. 220) 243 Ramsden v. Dyson (L. R. 1 H. L. 129) ......... 221 Ramsey County v. Stees (28 Miim. 326, 9 N. 879) 172 Randall v. Jacksonville R. (19 Fla. 409) 366 Ranlet v. Concord R (62 N. H. 561) . . 73, 226, 235, 252, 260, 278 Ransom v. Citizens' R. (104 Mo. 375, 16 S. W. 416) 366 Rapid Transit Co. (Ill N. Y. 588, 19 N. E. 645) 273 Raritan & D. R. v. Delavfare, etc. Canal (18 N. J. Eq. 546) . 76, 156 Ras-sier v. Grimmer (1.30 Ind. 219, 28 N. E. 866, 29 N. E. 918) 207, 321 Rauenstein v. New York, etc. R. (136 N. Y. 528, 32 N. E. 1047) . 363 Raymond v. County Comm. (63 Me. 110) 355 V. Fish (51 Conn. 80, 50 A. R. 3) 11 Reading v. Althouse (93 Pa. 400) 145 u. Davis (153 Pa. 560, 26 A. 433) 197 Reading & P. R. ;;. Balthaser (119 Pa. 472, 13 A. 294) . . . 225, 249 Cii TABLE OP CASES. PAGE Readington v. Dilley (24 N. J. L. 209) . . 239, 243, 246, 312, 316 Keardou v. San Francisco (66 Cal. 492, 6 P. 317, 56 A. R. 109) 140, 144, 364 Reckner v. Warner (22 Ohio St. 275) 290, 354 Reddallt. Bryan (14Md. 444, 74 A. D. 550) 30,32 Redman v. Philadelphia, etc. R. (33 N. J. Eq 165) .... 264, 266 Red River Bridge v. Clarksville (1 Sneed, 176, 60 A. D. 143) . . 76 Red River & L. W. R. v Sture (32 Minn. 95, 20 N. 229) ... 82 Redstone Township Road (112 Pa. 183, 5 A. 383) 306 Reed v. Acton (117 Mass. 384) 39, 94 V. Camden (53 N. J. L. 322, 21 A. 565) 105, 363 V. Hanover Branch R. (105 Mass. 303) 292 V. Ohio, etc. R. (126 111. 48, 17 N. E. 807) 297 Rees' Appeal (12 A. 427) 46 Reeves v. Wood County (8 Ohio St. 333) 389 Reg. V. Birmingham R. (6 Ry. Cas. 628) 180 V. Brown (L. R. 2 Q. B. 630) 228 V. Gt. West. R. (9 R. 127) 198 V. Wycombe R. (L. R. 2 Q. B. 310) 8 (See also Queen v. — .) Reichert v. St. Louis, etc. R. (51 Ark. 491) 371 Reid V. Wall Tovs-nship (34 N. J. L. 275) 204 Reilly v. Racine (51 Wis. 526, 8 N. 417) 200 Reining v. New York, etc. R. (128 N. Y. 157, 28 N. E. 640) . . 371 Reisner y. Strong (24 Kan. 410) 99 V. Union Depot Co. (27 Kan. 382) 259 Remy v. Municipality No. 2 (12 La. An. 500) 317 Reniiselaer v. Leopold (106 Ind. 29) 362 Rennselaer & S. R, v. Davis (43 N. Y. 137) 170, 171 ■ ■!;. (55 N. Y 145) 261 Rentz V. Detroit (48 Mich. 544, 12 N. 694, 911) 320 Renwick v. D. & N. W. R. (49 la. 664) 173 V. Railroad Co. (102 U. S. 180) 69 Republican Val. R. v. Arnold (13 Neb. 485, 14 N. 478) . . . 226, 315 ■ V. Fink (18 Neb. 82, 24 N. W. 439) 213, 331 Reusch V. Chicago, etc. R. (57 la. 687, 11 N 647) 108 Rex V. Croke (Cowper, 26) 318 . V. Ivens (7 C. & P. 213) 19 (See also King v. — .) Rexford v. Knight (11 N. Y. 308) 356, 358 Reynolds v. Shreveport (13 La. An. 426) 362 Rhine v. McKinney (53 Tex. 354) 291 Rhinebeck & C. R. (67 N. Y. 242) 181 Rhinelander's Case (68 N. Y. 105) 361 Rice V. Ruddiman (10 Mich. 126) 66 Rich V. Chicago (59 111. 286) 212 V. Minneapolis (37 Minn. 423, 35 N. W. 2, 5 A. S. R. 861) . 197 Richards v. Attleborough R. (153 Mass. 120, 26 N. E. 418) . . .72, 73 0. Buffalo, etc. R. (137 Pa. 524, 19 A. 931, 21 A. S. R. 611) . 344 TABLE OF CASES. ClU PAGE Richards v. Swansea, etc. Co. (9 Ch. D. 425) 176 V. Wolf (82 la. 358, 47 N. W. 1044, 31 A. S. R. 501) ... 40 Richardson v. Boston (148 Mass. 508) 159 V. Leyee Comm. (68 Miss. 539, 9 So. 851) 393 V. Munson (28 Conn. 94) 25 V. Vermont Cent. R. (25 Vt. 465, 60 A. D. 283) .... 141, 372 Riohe V. Water Co. (75 Me. 91) 386 Richmond, F. & P. R. v. KnopfEs (86 Va. 981, 11 S. E. 581) ... 191 V. Louisa R. (13 How. 71) 156 ' Richmond & Y. R. v. Wicker (13 Gratt. 875) 87 Ricket V. Metropolitan R. (L. R. 2 H. L. 175) 148 . „. (5 B. & S. 156) 236 Rider v. Stryker (63 N. Y. 136) 221, 224 Ridge Turnpike v. Stoever (6 W. & S. 878) 192 Rifenburg v. Muskegon (88 Mich. 279, 47 N. W. 231) .... 306 Rigney v. Chicago (102 111. 64) 143, 144, 145, 146 Riker v. New York (3 Daly, 174) 325 Rince v. Rindge (.53 N. H. 580) 39 Ring V. Mississippi Bridge (57 Mo. 496) 206 Ripley v. Gt. North R. (L. R. 10 Ch. 435) 174 Rippe V. Becker (57 N. W. 881) 397 V. Chicago, etc. R. (23 Minn. 18) 317 Roaohe v. Water Co. (74 Cal. 263, 15 P. 776) 182 Road Case (4 W. & S. 39) 172 Roanoke v. Berkowitz (80 Va. 616) 184, 187 Roanoke Gas. Co. v. Roanoke (88 Va, 810, 14 S. E. 665) . . 81, 82 Robb V. Carnegie (145 Pa. 324^ 22 A. 649, 27 A. S. R. 694) ... 285 V. Maysville, etc. R. (8 Met. 117) 235 Robbins v. St. Paul, etc. R. (22 Minn. 286) 190 Robert i;. Sadler (104 N. Y. 229, 10 N. E. 428, 58 A. R. 498) . 192,193 Roberts v. Boston (149 Mass. 346, 21 N. E. 668) 219 V. County Comm. (21 Kan. 247) 215 V. New York EI. R. (128 N. Y. 455, 28 N. E. 486) .... 314 Robinson v. Gt. North. R. (48 Minn. 445, 51 N. W. 384) ... 363 w. Rippey (HI Ind. 112, 12 N. E. 141) 302 V. Swope (12 Bush, 21) 37, 41 Roby V. New York Cent., etc. R. (142 N. Y. 176) 201 V. (65 Hun, 532, 20 N. Y. S. 551) 201 Roby V. Yates (70 Hun, 85) 201 Rochester, Matter of (136 N. Y. 83, 32 N. E. 702) 279 V. (137 Mass. 243, 83 N. E. 820) 188 Rochester R. i^. Robinson (183 N. Y. 242, 80 N. E. 1008) ... 297 Rochester, H. & L. R. (110 N. Y. 119, 17 N. E. 678) .... 44, 99 (45 Hun, 126) 322 (19 Abb. N. C. 421) 355 V. Erie R. (110 N. Y. 128, 17 N. E. 680) 90, 164 Rochester & G. R. (12 N. Y. Supp. 566) 41, 43 (2), 167 Rochester & S. R. c^. Budlong (6 How. Pr. 467) 315 CIV TABLE OF CASES. PAGE Rochester Water Comm. (66 N. Y. 413) 89, 165 Rocliester Waterworks v. Wood (60 Barb. 137) 326 Rochelte v. Chicago, etc. R. (32 Minn. 201, 20 N. 140) .... 376 Rockford R. I., etc. R. ■;;. McKinley (64 111. 338) 355 . V. Wells (66 111. 321) 285 Rock Island & A. R. v. Lynch (23 111. 645) 292, 295 Rogers' Case (7 Cowen, 526) 295, 341 Rogers v. Bradshaw (20 Johns. 735) 210, 381 V. St. Charles (3 Mo. App. 41) 181 Roll V. Augusta (34 Ga. 326) 270 Roosa V. Henderson County (59 111. 446) 324 Root's Case (77 Pa. 276) ' . . 207 -Rose V. Hawley (118 N. Y. 502, 23 N. E. 904) 117 Ross V. Adams (28 N. J. L. 160) 276 V. Davis (07 Ind. 79) 53, 207 V. Elizabethtown, etc. R. (20 N. J. L. 230) 320 r. Irving (14111. 171) 26 V. Pennsylvania R. (17 Phila. 339) 195, 200 Rothan v. St. Louis, etc. R. (113 Mo. 132) 288, 327 Rounds V. Mumford (2 R. L 154) 362 Roushlauge v. Chicago, etc, R. (115 Ind. 106, 17 N. E. 198) . 119, 140 Rowan's Ex'rs v. Portland (8 B. Mon. 232) 83 Rowe 0. Granite Bridge (21 Pick. 344) 382 Ruan Street (132 Pa. 257, 19 A. 219) 102 Rude V. St. Louis (93 Mo. 408, 6 S. W. 257) 379 Rugheimer's Case (36 Fed, Rep, 369) 210 Ruhland v. Supervisors (55 Wis. 664, 13 N. 877) 295 Rumsey v. New York, etc. R. (133 N. Y. 79, 30 N. E. 654, 28 A. S. R. 600) 84, 35 V. (136 N. Y. .543, 32 jST. E. 979) 226, 229 Rundle v. Blakeslee (47 Mich. 575, 11 N. 392) 318 V. Delaware, etc. Canal (14 How. 80) . .... 28, 35, 383 Ruppert V. C. O. & S. J. R. (43 la. 490) 320 Rusch V. Milwaukee, etc. R, (54 Wis. 136, 11 N. 253) .... 121, 320 Russell !'. New York (2 Denio, 461) 9 V. St. Paul, etc. R. (33 Minn. 210, 22 N. 379) .... 227, 252 • V. Turner (62 Me. 496) 322 Russell Mills v. County Comm. (IG Gray, 347) ....... 341 Rutherford's Case (72 Pa. 82, 13 A. R. 655) 307, 390 Rutherford v. HoUey (105 N. Y. 632, 11 N. E. 818) ..... 362 V. Maynes (97 Pa. 78) 390 Rutz V. St. Louis (7 Fed. Rep 438) 28 Ryan v. Brown (18 Mich. 196, 100 A, D. 154) 383 V. Hoffman (26 Ohio St. 109) 269, 341 Ryers' Case (72 N. Y. 1, 24 A. R. 88) 51,390,392 Ryerson v. Brown (35 Mich. 333, 24 A. R. 569) 49, 388 Rylands v. Fletcher (L. R. 3 H. L. 330) ! 73, 137 V. (L. R. 1 Ex. 265) '.....' 137 TABLE OP CASES. CV PAGE Sabin u. Vermont Cent. R. (25 Vt. 363) 149 Sacramento Val. R. v. MofEatt (7 Cal. 577) 275 Sadler v. Langham (34 Ala. 311) 41, 46, 51 Sage u. Brooklyn (89 N.Y. 189) 268,341 St. Albans v. Seymour (41 Vt. 579) 276 St. Bernard Cemetery ». Beecher (58 Conn. 91, 19 A. 514) ... 53 St. Catharines v. Gardner (20 Upp. Can. C. P. 107) 154 St. Johnsbury R. v. Willard (61 Vt. 134, 17 A. 38, 15 A. S. R. 888) 221 St. Joseph Hydraulic Co. v. Cincinnati, etc. R. (109 Ind. 172, 9 N. E. 727) 344, 355 St. Joseph V. Hamilton (43 Mo. 282) 181 St. Joseph & D. R. v. Ryan (11 Kan. 602, 15 A. R. 337) ... 118 St. Joseph & I. R. V. Shambaugh (106 Mo. 557, 17 S. W. 581) . 98, 288 St. Lawrence & A. R (133 N. Y. 270, 31 N. E. 218) 109,211, 302, 344 St. Louis V. Connecticut Life Ins. Co. (90 Mo. 135, 2 S. W. 211) 223 . V. Gleason (89 Mo. 67, 14 S. W. 768) 297 V. West. Union Tel. Co. (148 U. S. 92, 13 S. Ct. 485) 31, 56, 57, 58, 373 V. (149 U. S. 465, 13 S. Ct. 990) 361 St. Louis, etc. R. v St. Louis, etc. R. (108 III. 265) .... 76 St. Louis L M. & S. R. v. Harris (47 Ark. 340, 1 S. W. 609) . . 153 V. Peach Orchard, etc. R. (42 Ark. 249) 150 D. Ramsey (53 Ark. 314, 13 S. W. 931, 22 A. S. R. 195) . . 65 V. Walbrink (47 Ark. 330, 1 S. W. 545) 119 St. Louis J. & C. R. V. Inst, for the Blind (43 111. 303) .... 165 V. Mathers (71 111. 592, 22 A. R. 122) 118 St. Louis J. & S. R. ». Kirby (104 111. 345) 239, 242, 245 St. Louis V. & T. H. R. u. Capps (72 111. 188) 148 V. Haller (82 111. 208) 166 V. MoUet (59 III. 235) 224 St. Louis & S. F. R. V. Brick Co (85 Mo. 307) 287, 327 . . V. Foltz (52 Fed. Rep. 627) 200, 353 St. Onge V. Day (11 Col. 368, 18 P 278) 197 St. Paul M. & M. R. V. Minneapolis (35 Minn. 141, 27 N. W. 500) 165, 287 St. Paul Union Depot v. St. Paul (30 MTinn. 359, 15 N. 684) ... 83 St. Paul & N. R. (34 Minn. 227, 25 N. W. 345) . . . .51, 89, 301 (36 Minn. 85, 30 N. W. 432) 98 St. Paul & S. C. R. V. Murphy (19 Minn. 500) 245 St. Peter v. Denison (58 N. Y. 416, 17 A. R. 2.58) ... 96. 149, 331 St. Tammany Waterworks v. New Orleans Water Works (120 U. S. 64, 7 S. Ct. 405) 156 Salem & H Turnpike v. Lyme (18 Conn. 451) 76 Salisbury Mills v. Forsaith (57 N. H. 124) 28 Sam Kee's Case (31 Fed. R. 680) . 13 San Antonio & A. R. v. Ruby (80 Tex. 172, 15 S. W. 1040) . 217, 280 San Diego Land Co. v. Neale (78 Cal. 63, 20 P. 372) .... 229 V. (88 Cal. 50, 25 P. 977) . . . 216, 228, 261, 312 CVl TABLE OP CASES, PAGE San Francisco v. Collins (98 Cal. 259) 261 San Francisco A. & S. R. v. Caldwell (31 Cal. 367) 207 San Francisco & N. R. v. Taylor (86 Cal. 246, 24 P. 1027) ... 222 San Franciso Savings Union v. Irwin (28 Fed. Rep. 708) . . . 338 San Jose «. Freyschlag (56 Cal. 8) . . 234 San Jose & A. R. v. Mayne (83 Cal. 566, 23 P. 522) 217, 246, 262, 263 Sanborn v. Belden (51 Cal. 266) 206 Sand Creek Co. u. Davis (17 Col. 326, 29 P. 742) 386 Sandford v. Martin (31 la. 67) 104 Santa Ana v. Harlin (34 P. 224) 52, 217 Santa Clara County v. South, Pacific R. (118 U. S. 394, 6 S. Ct. 1132) 31 Santa Cruz v. Enright (95 Cal. 105, 30 P. 197) 102 Sargent v. Machias (65 Me. 591) 280 Saunders v. Bluefield Waterworks (58 Fed. Rep. 133) .... 27 Savage v. Salem (23 Or. 381) 365 Savannah v. Hancock (91 Mo. 54, 3 S. W. 215) 39, 46 '■ V. Hartridge (37 Ga. 113) ... 206 Savannah & O. Canal o. Bourquin (51 Ga. 378) 284 Sawyer u. Davis (136 Mass. 239, 49 A. R. 27) . . 128, 129, 131, 132, 142, 349 V. Landers (56 la. 422, 9 N. 341) 277 Schafer v. Euen (54 Pa. 304) 25 Schatz 0. Pfeil (56 Wis. 429, 14 N. 628) 39 Schehr v. Detroit (45 Mich. 626, 8 N. 578) 102, 252 Schenectady v. Furman (61 Hun, 171) 104 Schmidt v. Densraore (42 Mo. 225) 96 Schmitz V. Union El. R. (50 Hun, 407, 3 N. Y. S. 331) ... 167 Schoff V. Imp. Co. (57 N. H. 110) 44 School Dist. V. Norton (2 Gray, 414) 189 Schreiber v. Chicago, etc. R. (115 111. 340, 3 N. E. 427) . 224,266,279 Schroeder u. De Graff (28 Minn. 299, 9 N. 857) 221 V. Detroit, etc. R. (44 Mich. 387, 6 N. 872) 295 Schuchardt v New York (53 N. Y. 202) 194, 221 Schumacker v. Toberman (56 Cal. 508) 277 Schuylkill Nav. Co. v. Diffenbach (1 Yeates, 367) 115 V. Farr (4 W. & S. 362) 182, 224, 242 V. Thoburn (7 S. & R. 411) 236, 264 Schuylkill River, etc. R. v. Stooker (128 Pa. 233. 18 A. 399) 228, 313, 315 Scott V. Indianapolis, etc. R. (10 Am. & Eng. R. Cas. 1) ... 228 V. Lassell (71 la. 180, 32 N. W. 322) 287 V. McNeal (154 U. S. 34) 396 V. St. Paul, etc. R. (21 Minn, 322) 187, 259,264 V. Toledo (36 Fed. R. 385) 34 Scovill V. McMahon (62 Conn. 378, 26 A. 479) 398 Sooville V. Cleveland (1 Ohio St. 126) 24 Scranton v. Wheeler (57 Fed. Rep. 803) 57, 383 Scudder v. Trenton, etc. Falls Co. (1 N. J. Eq. 694, 23 A. R. 756) 33, 38, 46, 50, 209, 383 TABLE OP CASES. CVU PAGE Souffletown Fence Co. v. McAllister (12 Bush, 312) 23 Searl o. School Dist. (124 U. S. 197, 8 S. Ct. 460) 36, 39 V. (133 U. S. 553, 10 S. Ct. 374) 222, 273 Searle v. Lackawanna, etc. R. (33 Pa. 57) 225 Sears v. Cottrell (5 Mich. 251) 23 Seattle & M. E. v. O'Meara (4 Wash. 17, 29 P. 835) 287 V. Scheike (3 Wash. 62,5, 29 P. 217, 30 P. 503) .... 224, 278 V. State (52 Fed. R. 594) 36 Secombe v. Railroad Co. (23 Wall. 108) 41, 283 Second Street (23 Pa. 346) 167 Secretary o£ the Treasury (45 Fed. Rep. 396) 33 Sedgeley Ave. (88 Pa. 509) 183 Seefeld o. Chicago, etc, R, (67 Wis. 96, 29 N. W. 904) . 218, 219, 311, 316 Saifevt v. Brooklyn (101 N. Y. 136, 4 N. E, 321, 54 A. R. 664) 135, 139 Seeley v. Sebastian (4 Or. 25) 389 Selden v. Delaware, etc. Canal (29 N. Y. 634) 108, 121 Selraa R. & D. R. v. Gammage (63 Ga. 604) 259 V. Keith (53 Ga. 178) 216, 217, 228 Senaker v. The Justices (4 Sneed, 116) 260 Seneca Road I), Auburn, etc. R. (5 Hill, 170) 150,334 Setzler v. Pennsylvania, etc. R. (112 Pa. 56, 4 A. 370) . 236, 251, 253 Severin v. Cole (38 la. 463) 277 Seward v. Morris Canal (23 N. J. L. 218) 301 Sewall, etc. Co, v. Water Power Co. (147 Mass. 61, 16 N. E, 782) . 67 Sexton V. North Bridgewater (116 Mass. 200) 315 Seymour v. Cummins (119 Ind. 148, 21 N. E. 549) 135 V. State (19 Wis. 240) 87 Shaaber y. Reading (150Pa. 402, 24 A.'692) 183,278 Shake v. Eraser (21 S. W. 583) 40 Sharon R. Appeal (122 Pa. 533, 17 A. 234, 9 A. S, R. 133) ... 90 Sharpless v. Philadelphia ( 21 Pa. 147, 59 A. D. 759) ... 22, 37, 33 Shattuck V. Stoneham, etc. R. (6 Allen 115) 252 Shaver i'. Starrett (4 Ohio St. 494) 50 Shaw V. Charlestown (3 Allen, 538) 341 K. Iron Co. (10 Or. 371, 45 A. N. 146) 65 Shawneetown v. Mason (82 111. 337, 25 A. R. 321) 248, 364 Sheaff V. People (87 111. 189, 29 A. R. 49) 39 Shealy v. Chicago, etc. R. (72 Wis. 471, 40 N. W. 145) .... 364 «, (77 Wis. 653, 46 N. AV. 887) 142 Sheen v. Stothart (29 La. An. 630) 83 Sheffield & T, St, R'y v. Rand (83 Ala. 294, 3 So. 686) .... 62 ShRlbyville & B. Turnpike v. Green (99 Ind. 205) 393 Sheldon v. Minneapolis, etc. R. (29 Minn, 318, 13 N, 134) ... 219 Shelton v. Derby (27 Conn. 414) 305, 309 V. Mobile (30 Ala, 540, 68 A, D. 143) 15 Shenandoah Val. R. v. Robinson (82 Va. 542) 345 V. Shepherd (26 W. Va. 672) . 227 CVIU TABLE OF CASES. PAGE Shepherd v. Baltimore, etc. R. (130 U. S. 426, 9 S. Ct. 598) 147, 148, 324 V. Manhattan R. (117 N. Y. 442, 23 N. E. 30) ... 279, 350 Sherlock v. Bainbridge (41 Ind. 35, 13 A, R. 302) 67 V. Chicago, etc. R. (130 111. 403, 22 N. E. 844) 219 V. Louisville, etc. R. (115 Ind. 22, 17 N. E. 171) . . 122, 135, 357 Sherman v. Buick (32 Cal. 241, 91 A. D. 577) 41 V. Milwaukee, etc. R. (40 Wis. 645) 210, 288, 371 V. St. Paul, etc. R. (30 Minn. 227, 15 N. 239) 315 V. Tobey (3 Allen, 7) 389 Sherwood v. St. Paul, etc. R. (21 Minn. 122) . . . 182, 238, 320 V. Lafayette (109 Ind. 411, 10 N. E 89) . . . . 274, 277, 309 Shipley v. Baltimore, etc. R. (34 Md. 336) 247, 251, 253 Shively y. Bowlby (152 U. S. 1) 398 V. Cedar Rapids, etc., R. (74 la. 169, 37 N. W. 133, 7 A, S. R. 471) 134 Shoemaker v. United States (147 U. S. 282, 13 S. Ct. 361) . . 30, 39, 46, 51, 178, 180, 213, 225, 259, 262, 291, 233, 313, 322, 325 Sholl V. Coal Co, (118 111. 427, 10 N. E. 199, 59 A. R. 379) ... 45 Shortle c. Louisville, etc. R. (130 Ind. 505, 30 N. E. 639) ... 357 V. Terra Haute, etc. R. (131 Ind. 338, 30 N. E. 1084) . . . 118 Shrunk v. Schuylkill Nav. Co, (14 S. & R. 71) 394 Shute i'. Barnes (2 Allen, 598) 158 Sigafoos V. Minneapolis, etc. R. (39 Minn. 8, 38 N, W. 627) ... 248 Silver Creek Nav. Co. v. Mangum (64 Miss. 682, 2 So. 11) . . . 244 Simar v. Canaday (53 N. Y. 298, 13 A. R. 523) 277 Simmons v. Cornell (1 R. I. 519) 83 V. Passaic (42 N. J. L. 619) 208 Sinking Fund Cases (99 U. S. 700) 74, 155 Sinnickson v. Johnson (17 N. J. L. 129, 34 A. D. 184) . . 129, 209 Sinnott v. Chicago, etc. R. (81 Wis. 95, 50 N. W. 1097) . . . 112, 373 Sioux City R, v. Brown (13 Neb. 317, 14 N. 407) 259 Sioux City & D. M. R. v. Chicago, etc. R. (37 Fed. Rep. 770) . 90, 169 Sioux City & P. R. v. Weimer (16 Neb. 272, 20 N. 349) .... 364 Sisson V. New Bedford (137 Mass. 255) 364 Sixth Ave. R. <-. Kerr (72 N. Y. 330) 186, 190 Skinner v. Hartford Bridge (29 Conn, 523) 355, 363 r. Lake View Ave. Co. (57 111. 151) 355 Slatten v. Des Moines Val. R. (29 la. 148, 4 A. R. 205) . . . 363, 372 Slaughterhouse Cases (16 Wall. 36) 10 Slingerland v. Newark (54 N. J. L. 62, 23 A. 129) . . 47, 96, 106, 161, 195, 299 Sloan V. Biemiller (34 Ohio St. 492) 66 Slocura's Appeal (12 W. N. C. (Pa.) 84) 44 Small V. Georgia South., etc. R. (87 Ga. 602, 13 S. E. 404) . . . 275 Smart v. Portsmouth, etc. R. (20 N. H. 233) 341 Smeaton v Martin (57 Wis. 364, 15 N 403) 268 Smedley v. Irwin (51 Pa. 445) 160 Smith V. Atlanta (75 Ga. 570) 140 TABLE OF CASES. cix PACK Smith V. Atlanta (17 S. E. 981) 235 V. Atlantic, etc. R. (25 Ohio St. 91) 230, 393 V. Boston (7 Gush. 254) 376 V. Cent. Tel. Co. (2 Ohio C. C. 259) 373 V. Chicago, etc. R. (67 111. 191) 340 V. (105 111. 511) 170 V. Concord (113 Mass. 253, 9 N. E. 642) 152 V. Eau Claire (78 Wis. 457, 47 N. W. 830) 362, 364 i;. Hughes (50 Wis. 620,, 7 N. 653) 158,159 V. Kansas City, etc. R. (98 Mo. 20, 11 S. W. 259) .... 361 !>. McCarty (56 Pa. 359) 93 V. New Haven (59 Conn. 203) 291 V. Pennsylvania, etc. R. (141 Pa. 68, 21 A. 505) 218 V. Railway Co. (88 Tenn. 611, 13 S. W; 128) 280 V. Rochester (92 N. Y. 463, 44 A. R. 393) 66 V. School Dist. (40 Mich. 143) 356 V. Sherry (50 Wis. 210) 23 V. Trenton, etc. Falls Co. (17 N. J. L. 5) 319 V. Tripp (14 R. I. 112) 330, 342 0. Washington (20 How. 135) 362 Snell V. Buresh (123 111. 151, 13 N. E. 856) 132, 134 y. Chicago (133 111. 413, 24 N. E. 532) 154 Snow V. Boston, etc. R. (65 Me. 230) 315 V. Provincetown (109 Mass. 123) 153 Snyder v. Lancaster (11 A. 872) 145 V. Pennsylvania R. (55 Pa. 340) 152 V. Trumpbour (38 N. Y. 355) 87 Sohier v. Hospital (3 Cush. 483) 25 Somerville & E. R. v. Doughty (22 N. J. L. 49.5) 216, 227, 240, 241 (2), 315 Soule V. Passaic (47 N. J. Eq 28, 20 A. 346) 139, 232 South Abingdon Road (109 Pa. 118) 294 South Beach R. (119 N. Y. 141, 23 N. E. 486) .... 101 (2), 105 South Brooklyn R. & T. Co. (50 Hun, 405, 2 N. Y. S. 613) . . 172 South Carohna R. v. Steiner (44 Ga. 546) 352 South Chicago R. v. Dix (109 111 237) 44, 51 South Park Comm v. Dunlevy (91 III. 49) ... 228, 259, 263 y. Todd (112 111. 379) 274,320 V. Trustees (107 111. 489) 312 South Seventh Street (48 Barb. 12) 293 Southafd y. Cent. R. (26 N. J. L. 13) 117,195 K. Morris Canal (1 N. J. Eq. 518) 301 Southern Pacific R. v. Raymond (53 Cal. 223) 43 Southwestern Land Co. v. Ditch Co. (18 Col. 489) 261, 322 Southwestern R. v. South., etc. Tel. Co. (46 Ga. 43) 151,194, 210, 332 Southwestern Pa. Pipe Line v. Directors, etc. (1 Pa. C.C. 460) . 165 Sower V. Philadelphia (35 Pa. 231) 348 Sparrow w. Oxford, etc. R. (2 De G. M. & G. 94) 176 ex TABLE OF CASES. PAGE Spaulding v. Lowell (23 Pick. 71) 39, 195 I!. Nourse (143 Mass. 490, 10 N. E. 179) 289 •Spear v. Drainage Comm. (113 111. 632) 251 Spears i-. New York (87 N. Y. 359) 160 Speir V. New Utrecht (121 N. Y. 420, 24 N. E. 692) .... 124, 153 Spencer v. Hartford, etc. R. (10 R. I. 14) 135 V. Falls Turnpike (70 Md. 136, 16 A. 4.51) 347 V. Merchant (125 U. S. 345, 8 S. Ct. 921) 34 Split Rock Cable R. (128 N. Y. 408, 28 N. E. 506) . . .42, 52, 167 Spofford y. Bucksport, etc. R. (66 Me. 26) ' 319 Sprague v. Worcester (13 Gray, 193) 139 Spray v. Thompson (9 la. 40) 328 Spring V. Russell (7 Me. 273) 334, 384 Springbrook Road (64 Pa. 451) 323 Springer v. Chicago (135 111. 552, 26 N. E. 514) . . . 217, 248, 316 Springfield v. Connecticut River R. (4 Cush. 63) 88, 166 V. Dalby (139 111. 34, 29 N. E. 860) 317 V. Schraook (68 Mo. 394) 220 Springfield & I. R. v. Hall (67 111. 99) 112 Springfield & M. R. v. Rhea (44 Ark. 258) 217, 312 Springfield & S. R. ». Calkins (90 Mo. 538, 3 S. W. 82) . . 127, 301 Spring Garden St. (4 Rawle, 192) 296 Spring Val. Waterworks v. Drinkhouse (92 Cal. 528, 28 P. 681) 171, 217, 312, 386 V. San Mateo Waterworks (64 Cal. 123, 28 P. 447) . 50, 164, 170 V. Schottler (110 U. S. 347, 4 S. Ct. 48) 16, 20 Spurrier v. Wirtner (48 la. 486) 355 Squire's Petition (125 N. Y. 131, 26 N. E. 142) 148 Stacey v. Vermont Cent. R. (27 Vt. 39) ... . 181, 199, 264, 265 Stack V. East St. Louis (85 111. 377, 28 A. R. 619) 270 Stadler v. Milwaukee (34 Wis. 98) 148 Stafford v. Providence (10 R. I. 567, 14 A. R. 710) .... 230, 263 Staffordshire & W. Canal v. Birmingham, etc. Canal (L. R. 1 H. L. 254) 194 Standish o. Liverpool (1 Drew. 1) 96 Stange v, Dubuque (62 la. 303, 17 N. 518) 367 Stanley v. Davenport (54 la. 463, 2 N. 1064, 6 N. 706, 37 A. R. 216) 361, 367 V. Schwalby (147 U. S. 508, 13 S. Ct. 418) 338 Stanwood v. Maiden (157 Mass. 17, 32 N. E. 702) .... 8, 376, 377 Stark V. McGowan (1 Nott & McC. 387) 40 J). Sioux City, etc. R. (43 la. 501) 167 Starr v. Camden, etc. R. (24 N. J. L. 592) 371 State Reservation, etc. (32 Hun, 537) 38 State Road (60 Pa. 330) 295 State V. Addington (77 Mo. 110) 14 V. Am. News Co. (43 N. J. L. 381) 155, 165 V. Bayonne (35 N. J. L. 476) 294 TABLE OF CASES. Cxi PAGE State V. Beackmo (8 Blackf. 248) 206 V. Bergen (21 N. J. L. 342) 296 (2) V. Bishop (39 N. J. L. 226) 39 V. Boston, etc. R. (25 Vt. 433) 27 V. Bruggerman (31 Minn. 493, 18 N. 454) 289 V. Chicago, etc. R. (25 Neb. 156, 41 N. W. 125) 98 V. (36 Minn. 402, 31 N. W 365) X5 V. Cincinnati, etc. R. (37 Ohio St. 157) 81 V. (17 Ohio St. 103) 181 V City of Superior (81 Wis. 649, 51 N. W. 10^4) . 268 (2), 341 V. Comm. (28 Kan. 431) 290 V. (37 N. J. L. 12) 183 V. Crane (36 N. J. L. 394) 293 (2) V. Dawson (3 Hill, 100) 208 V. Delesdernier (11 Me. 473) 292 V. Easton, etc. R. (36 N. J. L. 181) . 275, 310 V. Eau Claire (40 Wis. 533) 195 V. Englemann (106 Mo. 628, 17 S. W. 759) 94, 324 • V. Fischer (26 N. J. L. 129) 320 V. Fond du Lac (42 Wis. 287) 291, 307 (2) V. Gilmanton (9 N. H. 461) 66 V. Grand Island, etc. R. (31 Neb. 209, 47 N. W. 857) ... 340 V. Graves (19 Md. 351) 179, 194, 199 V. Guano Co. (22 S. Car. 50) 65 (2) V. Haben (22 Wis. 660) 59, 61 V. Hartford, etc. R. (29 Conn. 538) 198 V. Hilbert (72 Wis. 184, 39 N. W. 326) 361 V. Hogue (71 Wis. 384, 36 N. W. 860) 293 1). Hudson Terminal Co. (46 N. J. L. 289) 172 V. Hudson Tunnel Co. (38 N. J. L. 548) 92 ». Hug (44 Mo. 116) 341 V. Hulick (33 N. J. L. 307) 329 V. Jacksonville, etc. R. (20 Fla. 616) 109 ■ V. Jersey City (24 N. J. L. 662) 307 V. (25 N. J. L. 309) 355 V. Keokuk (9 la. 438) 341 V. Kirgan (51 Ind. 142) 47 V. Laverack (34 N. J. L. 201) 374 V. Longstreet (38 N. J. L. 312) 323, 340 V. Loomis (22 S. W. 350) 21 V. Lyle (100 N. C. 497, 6 S. E. 379) 210, 290, 339 V. Maine (27 Conn. 641, 71 A. D. 89) 40, 202 V. Mansfield (23 N. J. L. 510) 43 V. Miller (23 N. J. L. 383) 296 V. Minneapolis (40 Minn. 483, 42 N. W. 355) 181 V. Mobile (5 Port. 279, 30 A. D. 564) 374 V. Montclair R. (35 N. J. L. 328) 165, 329 B.Nat'lDocksR. (54N. J. L. 180, 23 A. 686) 291 cxii TABLE OF OASES, PAGE State V. Nat'l Docks (55 N. Y. 194) 116 , V. Nelson (57 Wis. 147, 15 N. 14) 300, 356 — — V. New Haven, etc. Co. (45 Conn. 331) 168 —^ V. Oil Co. (120 Ind. 575, 22 N. E. 778) 32 V. Parker (26 Vt. 357) 93 V. Perth Amboy (52 N. J. h. 132, 18 A. 670) 210 V. Pierson (37 N. J. L. 363) 319, 326, 328 V. Plainfield (41 N. J. L, 138) 297 — V. Railroad Coram. (56 Conn. 308, 15 A. 756) 42 V. Railway Co. (40 Ohio St. 504) 45, 333 V. Rapp (39 Minn. 65, 38 N. W. 926) 50, 300 V. St. Paul, etc. R. (35 Minn. 131, 28 N. W. 3, 59 A. S. R. 213) 104 V. Salem Water Co. (5 Ohio C. C. 58) 104 y. Sargent (45 Conn. 358) 384 w. Seymour (35 N. J L. 47) 209,211 V. Shardlow (43 Minn. 524, 46 N. W. 74) 252 V. Shawnee County (28 Kan. 431) 361 V. Sherman (22 Ohio St. 481) -98 V. Snedeker (30 N. J. L 80) 375 V. South R. (100 Mo. 59, 15 S. W. 398) 339 V. Staokhouse (14 S. Car. 417) 339 V. Stewart (74 Wis. 620, 43 N. W. 947) 324 V. Tiohenor (41 N. J. L. 345) 71 V. Trenton (36 N. J. L. 499) 307 V. Troth (36 N. J. L. 422) 86 V. Union Township (37 N. J. L. 268) 293 V. Van Giesou (15 N. J. L. 339) 296 — - V. Vermont Cent. R. (27 Vt. 103) 192 V. Walruff (26 Fed. Rep. 178) 12 V. Wabash, etc. R. (83 Mo. 144) 14 V. Wheeler (44 N. J. L. 88) 12 Staten Island, etc. R. (41 Hnn, 392) 296 Staten Island Rapid Trans. Co. (47 Hun, 396) 312 (103 N. y 251, 8 N. E. 548) 47,171 Staton i.. Norfolk, e'c. R. (Ill N. C. 278, 16 S. E. 181) . . 139,209 Stearns v. Richmond (88 Va. 992, 14 S. E, 847) 363 Stebbing v. Met, B'd of Works (L. R. 6 Q. B. 37) 216, 232 Steel V. Smelting Co. (106 N. S. 447, 1 S. Ct. 389) 221 Steers v. Brooklyn (101 N. Y. 51, 4 N. E. 7) 67 Stephens v. Coram. (36 Kan. 664, 14 P. 175) 355 Sterling's Appeal (111 Pa. 35, 2 A. 105, 56 A. R. 246) . . . 366, 377 Sterrett Township Road (114 Pa. 627, 7 A. 765) .... 298, 300 Stetson V. Bangor (73 Me. 357) 233 Steuart v. Baltimore (7 Md. 500) 290 Stevens v, Battell (49 Conn. 156) 311 V. Danbury (53 Conn. 9, 22 A. 1071) 178, 180. 182 . V. New York El. R. (130 N, Y. 95, 28 N. E. 667) . . . .376 : — ^ V. Nprfolk (42 Conn. 377) 200 TABLE OF CASES. Cxiil PAGE Stevens v.. Paterson etc. R. (34 N. J. L. 532, 3 A..E. 269) . . 84 (2) V. Shannon (6 Ohio C. C. 142) 375 Stevenson v. Loehr (57 111. 509, 11 A. R. 36) 158, 281 Stewart's Appeal (56 Pa 413) . 45, 99 Stewart v. Board of Police (25 Miss. 479) 307 V. County (2 Pa. 340) . 259 V. Rutland (58 Vt. 12, 4 A. 420) 241 y. White (98 Mo. 226, 11 S. W. 568) 309 Stiles V. Middlesex (8 Vt. 436) . 179 Stillman v. White Rock Man. Co. (3 Wood & M. 539) .... 28 Stinson v. Chicago, etc. R. (27 Minn. 284, 6 N. 784) 219 Stockport T. & A. R. (33 L. J. Q. B. 251) 128, 240 Stockton V. Baltimore, etc. K. (32 Fed. Rep. 9) . . 30, 31, 56, 57, 383 Stockton & C. H. u. Galgiani (49 Cal. 139) 226 Stockton & D. R. t) Brown (9 H. L. C. 246) 171 Stokes J). Parker (53 N J. L. 183, 20 A. 1074) 281,323 Stone V. Fairbury, etc. R. (68 111. 394, 18 A. R. 556) 379 V. Farmers' Loan, etc. Co. (116 U. S. 307, 6 S. Ct. 334, 388, 1191) 16 w. Heath (135 Mass. 561) 243 D. New York (25 Wend. 156) 9 ■ I). Wisconsin (94 U S 181) 20 V. Yeoville (2 C. P. D 99) 152 Storck V. Met El. R (131 N. Y. 514, 30 N. E. 497) 242, 370 Story V. New York El, R. (90 N. Y. 122, 43 A. R. 146) 72, 85, 126, 365, 369, 379 Stoudinger v. Newark (28 N. J. Eq. 446) 365 Stout V. Freeholders (25 N. J. L. 202) 318 V. Noblesville, etc. Co. (83 Ind. 466) 249 Stovall u. United States (26 Ct. CI. 226) 336 Stowell 0. Flagg (11 Mass. 364) 330 Stowers v. Postal Tel. Co. (68 Jliss. 559, 9 So. 356, 24 A. S. R. 290) 373 Strachan v. Drain Comm. (39 Mich. 168) 305 Strang v. Beloit, etc. R. (16 Wis. 635) 292 Stratton v. Morris (89 Tenn. 497, 15 S. W. 87) 25 Streathara !). Comm. (52 J. P. 615) 217 Street Railway o. Cumrainsville (14 Ohio St. 523) . . 366, 368, 379 V. Doyle (88 Tenn. 747, 13 S. W 936, 17 A. S. R. 933) . . 367 V. West Side R. (48 Mich. 433, 12 N. 648) 156 Stieyer v. Georgia, etc R. (90 Ga. 56) 255, 267 Strickland u. Pennsylvania R (154 Pa. 348, 26 A. 431) . . . 73,309 Strickler v. Midland R. (125 Ind. 412, 25 N. E. 455) 331 Strohecker v. Alabama, etc. R. (42 Ga. 509) 71, 386 Strong V. Brooklyn (68 N. Y. 1) 121, 202, 203, 343 Stuart V. Palmer (74 N. Y. 183) 24 Stabbings «.,Evanstop (136 111. 37, 26 N. E. 577) 159 Stump II. Hornback (94 Mo. 26, 6 S. W. 356) 26 Suburban, etc. R. v. New York (128 N. Y. 510, 28 N.E. 525) 90, 160, 165 h cxiv TABLE OF CASES. PAGE Suburban Rapid Transit Co. (38 Hun, 553) 322 Sudbury Meadows v. Middlesex Canal (23 Pick. 86) 107 Suffield V. Hathaway (44 Conn. 521, 26 A. R. 483) 193 Sullens V. Chicago, etc. R. (74 la. 659, 38 N. W. 545, 7 A. S. R. 501) 139 Sullivan v. Lafayette County (61 Miss. 271) 216 V. North Hudson County R. (51 JSf. J. L. 518, 18 A. 689) 251, 253, 371 V. Supervisors (58 Miss. 790) 127 Summerville v. Pressley (33 S. Car. 56, 11 S. E. 545) 12 Sumner v. Richardson Lake Dam Co. (71 Me. 106) . . . . 139 Sunderland Bridge (122 Mass. 459) 75, 223, 232 Supervisors «. Magoon (109 111. 142) 306 V. Stout (9 W. Va. 703) 356 Sutton V. Clarke (6 Taunt. 29) 130 Suver V. Chicago, etc. R. (123 111. 293, 14 N. E. 12) 298 Swan M. Middlesex (101 Mass. 173) 315 V. Williams (2 Mich. 427) 30, 307 Swanson v. Mississippi, etc. Boom Co. (42 Minn. 532, 44 N. W. 986) 385 Sweaney v. United States (62 Wis. 396, 22 N. 609) . 280, 384 Sweet 0. Buffalo, etc. R. (79 N. Y. 293) . . . 184, 187, 188, 189 0. Rechel (37 Fed. Rep. 323) 391 Swenson v. Lexington (69 Mo. 157) 270 Swift's Appeal (111 Pa. 516, 2 A. 539) 86 Swinney v. Ft. Wayne, etc. R. (59 Ind. 205) .... 100, 115, 326 Symonds v. Cincinnati (14 Ohio, 147, 45 A. D. 529) 207 Syracuse Water Co. ^. Syracuse (116 N. y. 167, 22 N. E. 381) . . 76 Taggart v. Newport St. Ry. (16 R. I. 668, 19 A. 326) 192, 368, 369, 373 Tainter v. Morristown (19 N. J. Eq. 46) . ... .68 Taifs Exr. v. Lunatic Asylum (84 Va. 271, 4 S. E 697) 109, 191, 215, 414 Talbot V Hudson (16 Gray, 417) . 38,46, 47, 51, 53, 267, 390, 392 V. Talbot (14 R. I. 57) 25 Tallman». Met. El. R. (121 N. Y. 119, 23N. E. 1134) . . .228,229 Taylor «. Baltimore (45 Md. 576) 185, 186 — ^ V. Bay City R. (80 Mich. 77, 45 N. W. 835) . . . 112, 349, 366 V. (59 N. W. 447) 399 V. Chicago, etc R. (63 Wis. 327, 24 N. 84) 354 V. (83 Wis. 636, 53 N. W. 853) 203 V. (83 Wis. 645, 53 N. W. 855 262 V. County Comm. (18 Pick. 309) 309 V. (105 Mass. 225) 293 V. New York, etc. R. (38 N. J. L. 28) 193 V. Plymouth (8 Met. 462) 9 V. Porter (4 Hill, 140, 40 A. D. 274) 40, 41 (2) Tel. Cable Co. v. Railway Co. (43 La. An. 522, 9 So. 119) . . ! 313 TABLE OP CASES. CXV PAGE Tenbroeck v. Sherrill (71 N. Y. 276) 96 Terre Haute & L. R. v. Bissell (108 Ind. 113, 9 N. E. 144) ... 335 V. Crawford (100 Ind. 550) 265 V. Harris (126 Ind. 7, 25 N. E. 831) 332 Terre Haute & S. R. v. Rodel (89 Ind. 128, 49 A. R. 164). ... 343 Terrett v. Taylor (9 Cranch, 43) 77 Terry v. Hartford (39 Conn. 286) 254 Texas & P. R. v. Rosedale St. R. (64 Tex. 80, 53 A. R. 739) . . 366 Texas & S. L. R. v. Cella (42 Ark. 528) 230, 243, 263 V. Matthews (60 Tex. 215) ^224, 262, 283 Texas West. R. v. Cave (80 Tex. 137, 15 S. W. 786) 263 Textor v. Baltimore & O. R. (53 Md. 540) 374 Tharp v. Witham (65 la. 566, 22 N. W. 677) .... 290. 353 Thacher v. Dartmouth Bridge (18 Pick. 501) 103, 210 Thayer v. Brooks (17 Ohio, 489, 49 A. D. 474) 27 V. New Bedford (125 Mass. 253) 385 Theilan v. Porter (14 Lea, 622, 52 A. R. 173) 11 Theobold v. Louisville, etc. R. (66 Miss. 279, 6 So. 230, 14 A. S. R. 564) 371 Thibodeaux v. Maggioli (4 La. An. 73) 69 Third Ave. R. (121 N. Y. 536, 24 N. E. 951) 361 Thirty-Fourth Street (10 Phila. 197) 104 Thomas v. Wabash, etc. R. (40 Fed. Rep. 126) 75 Thompson's Case (43 Hun, 416) 149, 321 (57 Hun, 419, 10 N. Y. S. 705) 184 (127 N. Y. 463, 28 N. E. 389) 219 Thompson o. Allen (7 Lans. 459) 339 V. Androscoggin, etc. R. (58 N. H. 108) 383 V. Boston (148 Mass. 387, 19 N. E. 406) 218 V. Chicago, etc. R. (110 Mo. 147, 19 S. W. 77) 356 0. Deprez (96 Ind. 67) 318 V. Keokuk (61 la. 187, 16 N. 82) 243 V. Moran (44 Mich. 602, 7 N. 180) 161 V. Multnomah County (2 Or 34) 293 V. Pennsylvania R. (51 N. J. L. 42, 15 A. 833) .... 282, 314 V. Sebasticook, etc. R. (81 Me. 40, 16 A. 332) 231 Thornton v. North Providence (6 R. I. 433) 320 Thorpe v. Rutland, etc. R. (27 Vt. 140, 62 A. D. 625) .... 14 Thunder Bay Booming Co. v. Speeohly (31 Mich. 336, 18 A. R. 184) 382 Thurman v. Emmerson (4 Bibb, 279) 318 Thurston v. Portland (63 Me. 149) 295, 332 Tibbetts v. Knox, etc. R (62 Me. 437) 149 Tide Water Co. v. Coster (18 N. J. Eq 518, 96 A. D 6.34) 24, 46, 392 (2) Tiffany v. N. Y. Illuminating Co. (51 N. Y. Super. 280) .... 365 V. U. S. Illuminating Co. (67 How. Pr. 73) 365 Tifft V. Buffalo (82 N. Y. 204) 202 Tingley «. Providence (8 R. I. 493) 252 Tinicuin Fishing Co. v. Carter (61 Pa. 21, 100 A. D. 597) . 65, 84, 394 CXVl TABLE OF CASES. PAGE Tinioum Fishing Co. «. Carter (90 Pa. 85, 35 A. R. 632) . . 232, 394 Tink V. Ruiidle (10 Beav. 318) 70 Tinker v. Rockford (137 111. 123, 27 N. E. 74) 120 Tiusman v. Belvidere, etc. R. (26 N. J. L. 148, 69 A. D. 565) . . 130 Titus V. Boston (149 Mass. 164, 21 N. E. 310) . .... 193 Titusville & P. C. R. v. Warren, etc. R. (12 Phila. 642) .... 169 Tobey v. Taunton (119 Mass. 404) 232 Todd V Austin (34 Conn. 78) 115 V. Kankakee & I. R. (78 111. 530) 248, 253 Todemier v. Aspinwall (43 111. 401) 277 Toledo A. A., etc. R. ... Detroit, etc. R. (62 Mich. 564, 29 N W. 500) 297, 299, 300 V. Dunlap (47 Mich. 456, 11 N. 271) 222, 265, 290 V. Munson (57 Mich. 42, 23 N. W. 455) . . 101, 207, 300 Toledo, S. & M. R. v. East Saginaw, etc. R. (72 Mich. 206, 40 N. W. 436) 44 Toledo & W. R V. Daniels (16 Ohio St. 390) 107 r. Green (67 111. 199) 193 Tompkins v. Hodgson (2 Hun, 146) 365 Tomlin o. Dubuque, etc. R. (32 la. 106, 7 A. R. 176) .... 84 Torrington v. Nash (17 Conn. 197) 297 Towanda Bridge (91 Pa. 216) 40, 157 Towle V. Eastern R. (17 N. H. 519) 363 i). (18 N H. 547) 112 Town of Milwaukee v. City of Milwaukee (12 Wis. 103) .... 62 Townsend's Case (39 N. Y. 171) .... 29, 97, 98, 289, 331, 381 Townsend ;;. Chicago, etc. R. (91 111. 545) Ill, 356 ■ v. Hoyle (20 Coim. 1) 52 Township of East Union v. Comrey (100 Pa 362) .... 208 Township of Kearney v. Ballantiue (52 N. J. L. 338, 19 A. 792) . 105 V. (54 N. J. L. 194, 23 A. 821) .... 105, 306, 307 Tracy s. Elizabethtown, etc. R. (80 Ky. 259) . 51, 170, 298,303, 307 „. (85 Ky. 270, 3 S. W. 168) 288 0. Troy, etc. R. (54 Hun, 550, 7 JST, Y. S. 892) . . . 368 Transportation Co, v. Chicago (99 U. S. 635) . . 128, 130, 141, 364 Traphagen u. Jersey City (2.9 N. J. Eq. 206) 347 Treadwell v Boston (123 Mass. 23) . . 148 Trenton & N. B. Turnpike o. Am. News. Co. (43 N. J. L. 381). . 299 Trenton Water Power Co. v. Chambers (9 N. J. Eq. 471) . . . 344 „. ^_ (13 N. J. Eq. 199) 152,320 V. Raff (36 N. J. L. 335) 132, 142 Trent-Stoughton v. Barbadoes Water Co. ([1893] A. C. 502) . 217, 227 Trester v. Missouri Pacific R. (23 Neb. 242, 36 N. W. 502) . . 36, 98 Trice V. Kayton (84 Va. 217, 4 S. E. 377, 10 A. S. R 836) ... 159 Trimmer u. Pennsylvania, etc. R. (55 N. J. L. 46) . . . . 230, 264 Trinity College v. Hartford (32 Conn. 452) 251, 253 Tripp V. Overocker (7 Col 72, 1 P. 695) 212, 386 Trombley y. Humphrey (23 Mich. 471) 27, 32 TABLE OF CASES. CXvil PAGE Trook V. Baltimore, etc. R. (3 MoArthur, 392) 134 'Prosper v. Comm. (27 Kan. 391) 252 Trowbridge w. Brookline ,(144 Mass. 139, 10 N. E. 796) . . . 145 Troy V. Cheshire R. (23 N. H. 83, 55 A. D. 177) .... 283, 330 V. Coleman (58 Ala. 570) . . . . , 140 Troy & B, R. w. Boston, etc. R. (86 N. Y. 107) 346 V. Northern Turnpike (16 Barb. 100) 241, 242 y. Potter (42 Vt. 265, 1 A. R. 325) 197, 351 Trustees, etc, v. Davenport (7 la. 213) 327 u. Haas (42 Ohio St. 239) 182 V. Minneapolis, etc. R. (77 Wis. 158, 45 N. W. 1086) 334, 373, 374 Tuckahoe Canal v. Tuckahoe R. (11 Leigh, 42, 36 A. D. 374) . 76, 150 Tucker v. Massachusetts Cent. R. (118 Mass. 546) . . . 239, 241, 315 V. Tower (9 Pick. 109, 19 A. D. 350) 192, 196 Tudor u. Chicago, etc. R. (27 N. E. 915) 162 Tuebner v. California St R. (66 Cal. 171, 4 P. 1162) 134 Tufts V. Charlestown (4 Gray, 537) ... 217 0. (117 Mass. 401) . 275 Turner d. Fitchburg R. (145 Mass. 433, 14 X. E. 627) ... 83 V. Nye (152 Mass. .579, 28 N E. 1048) 387, 394 V. Rising Sun Turnpike (71 Ind. 547) 192 a. Robbius (133 Mass. 207) 279 V. Selectmen (61 Conn. 175, 24 A. 951) 318 V. .Stanton (42 Mich. 506, 4 N. 204) 121, 354 Turnpike Co. v. State (3 Wall. 210) ' 155 Turnpike Society v. Hosmer (12 Conn. 361) 168 Tuttle V. Brush Electric Co. (50 N. Y. Super. 464) 365 u. Knox County (89 Tenu. 157, 14 S. W. 486) 101 Twenty-second Street (102 Pa. 108) 92 Tweutyeighth Street (11 Phila. 436) 319 Twin Lakes, etc. Co. v. Colorado Mid. R. (16 Col. 1, 27 P. 258) 225,229 Tyler v. Beeoher (44 Vt. 648, 8 A. R. 398) 46, 388 V. Hudson (147 Mass. 609, 18 N. E. 582) 186 Tyson v. Milwaukee (50 Wis. 78) 243 (2) Ulbricht V. Water Co. (86 Ala. 587, 6 So. 78. 11 A. S. R. 72) . . 141 Uline V New York Cent. etc. R. (101 N. Y. 98, 4 N. E. 536, 54 A. R 661) 282, 283, 285, 363 Ulster & D. R. ?i. Gross (31 Hun, 83) 261 Umatilla Co. v. Barnhart (22 Or. 389, 30 P. 37) 386 Uniaoke v. Chicago, etc. R. (67 Wis. 108, 29 N. W. 899) . . . 259 Underwood v. Bailey (59 N. H. 480) 41 Union Canal v. Stump (81 J Pa. 35.5) 153 Union Depot Co. v. Backus (92 Mich. 33, 52 N. W. 790) .... 326 - — V. Brunswick (31 Minn. 297, 17 N. 623, 47 A. R. 789) ... 65, 67, 69, 216, 230 ■ V. Jones (83 Mich. 415, 47 N. W. 349) 116 V. Morton (83 Mich. 265, 47 N. W. 228) 42, 102 CXviii TABLE OF CASES. PAGE Union Mut. Life Ins. Co. v. Slee (123 111. 57, 12 N. E. 543) . 345, 355 Union R. .;. Moore (80 Ind. 458) 231 Union El. R. (112 N. Y. 61, 19 N. E. 664) 287 (113 N. Y. 275, 21 N. E. 81) 3,43,94 (8 N. Y. Supp. 813) 298 Union Ferry Co. (98 N. Y. 139) 76, 101, 102, 160 Union Pacific R. w. Burlington, etc. R. (1 McCrary, 452). . . 55, 295 V. City of Kansas (115 U. S. 1, 5 S. Ct. 1113) .... 36, 55 I'. Hall (91 U. S. 343) 162 B. Leavenworth, etc. R. (29 Fed. Rep. 728) . . 36, 55, 292, 305 Union Village v. Johnsonville R. (53 Barb. 457) 239 United Companies v. Weldon (47 N. J. L. 59, 54 A. R. 114) . . 289 United States, Petition of (96 N. Y. 227) 32 (2) United States v. Alexander (148 U. S. 186, 13 S. Ct. 529) . . 141, 145 V. Ames (1 Wood. & M. 76) . 28, 55 V. Burns (12 Wall. 246) 75 V. Chicago (7 How. 185) 30, 55, 56 V. DeMott (3 Fed. Rep. 478) 339 V. Dumplin Island (1 Barb. 24) 32 V. Dunnington (146 U. S. 338, 13 S. Ct. 79) 274, 276 V. Engeman (45 Fed. Rep. 546) 33 y. (46 Fed. Rep. 176) 290 V. Fox (94 U. S. 315) 120 V. Gt. Falls Manuf. Co. (112 U. S. 645, 5 S. Ct. 306) . . 336, 341 V. Harris (1 Sumn. C. C. 20) 190, 196 V. Jones (109 U. S. 513, 3 S. Ct. 346) . . 32, 208, 272, 288, 306 !)., Land in Monterey County (47 Cal. 515) 221 V. Lee (106 U. S. 196, 1 S. Ct. 240) 337 (2) V. Nashville, etc. R. (118 U. S. 120, 6 S. Ct. 1006) .... 82 V. North Carolina (136 U. S. 211, 10 S. Ct. 920) .... 337 V. Oregon, etc. R. (16 Fed. Rep. 524) 182, 211, 268 V. Pacific R. (120 U. S. 227, 7 S. Ct. 490) 10 V. Railroad Bridge (6 McLean, 517) 55 V. Railroad Co. (17 Wall. 322) 56, 59 V. Russell (13 Wall. 623) 10 Updegrove v. Pa. etc. R. (132 Pa. 540, 19 A. 283) 119 Utica & S. V. R. (56 Barb. 456) 239 Utter V. Richmond (112 N. Y. 610, 20 N. E. 554) 277 Uxbridge & R. R. (43 Ch. D. 536) 180 Vail o. Morris, etc. R. (21 N. J. L. 189) 297, 299 Valentine v. Boston (22 Pick. 75, 32 A. D. 711) 233 Valley R. v. Bohm (34 Ohio St. 114) 104, 298 V. (29 Ohio St. 633) 279 V. Franz (43 Ohio St. 623, 4 N. E. 88) 284 Valparaiso v. Chicago, etc. R. (123 Ind. 467, 24 N. E. 249) . . . 165 Vanatta v. Morristown (34 N. J. L. 445) 305 Van Bokelen v. Brooklyn City R. (5 Blatch. 379) 348 TABLE OF CASES. CXIX PAGE Van Brocklin v. Tennessee (117 U. S. 151, 6 S. Ct. 670) ... 55 Van Brunt v. Flatbush (128 N. Y. 50, 27 N. E. 973) 365 Vanderlip v. Grand Rapids (73 Mich. 522, 41 N. W. 677, 16 A. S. R. 597) 348, 362 Vandermulen v. Vandermulen (108 N. Y. 195, 15 N. E. 383) . 159, 190 Vanderstolph v. Boylan (50 Mich. 330, 15 N. 495) 334 Van De Vere v. Kansas City (107 Mo. 83, 17 S. W. 695, 28 A. S. R. 396) 146 Van Dolsen v. New York (17 Fed. Rep. 817) 85, 385 Van Home v. Newark Pass. R. (48 N. J. Eq. 332, 21 A. 1034) . . 362 Van Home's Lessee v. Dorrance (2 Dall. 304) .... 25, 207, 212 Van Schoiok v. Delaware, etc. Canal (20 N. J. L. 249) 152 Van Valkenburgh v. Milwaukee (43 Wis. 574) 182 Van Wycklen v. Brooklyn (118 N. Y. 424, 24 N. E. 179) . . . 141, 314 Varick v. Smith (5 Paige, 137, 28 A. D. 417) 25 Varner v. Martin (21 W. Va. 534) 41, 388 ■ ■ V. St. Louis, etc. R. (55 la. 677, 8 N. 634) 242 Venard v. Cross (8 Kan. 248) 388 Vermilya u. Chicago, etc. R. (66 la. 606, 24 N. W. 234, 55 A. R. 279) , 117,192 Vermont Cent. R. v. Baxter (22 Vt. 365) 71, 96, 256 Vezina v. The Queen (17 Can. Sup. Ct. 1) 255 Vicksburg S. & P. R. v. Dillard (35 La, An. 1045) 127, 241 Viele V. Troy, etc. R. (20 N. Y. 184) 332 Vilhac V. Stockton, etc. R. (53 Cal. 208) 206 Village of Byron v. Blount (97 111. 62) 300 Village of Middletown (82 N. Y. 196) .... 115, 294, 305, 310, 386 Vinoennes University v. State (14 How. 268) 64 Volkmar Street (121 Pa. 320, 16 A. 867) 358 Von Hoffman v. Quincy (4 Wall. 535) 59 Vose V. Newport R. (17'R. I. 134, 20 A. 267) 148 Vreeland v. Jersey City (54 N. J. L. 49, 22 A. 1052) 101 Wabash, S. L. & P. R. v. Illinois (118 U. S. 557, 7 S. Ct. 4) . . . 17 V. (105 111 236) 20 V. McDougall (126 111. Ill, 18 N. E. 291, 9 A. S. R. 539) . 247, 320 Waddell's Appeal (84 Pa. 90) 39, 41, 45 Wadhaius v. Swan (109 111. 46) 158 Wadsworth v. Hydraulic Ass'n (15 Barb 83) 85 V. Smith (2 Fairfield, 278, 26 A. D. 525) 382 Wager v. Troy Union R. (25 N. Y. 526) 343, 373 Wagner v. Cleveland, etc. R. (22 Ohio St. 563, 10 A. R. 770) . . 203 V. Salzburg Township (132 Pa. 636, 19 A. 294) . . . 208, 330 Waite V. Port Reading R. (48 N. J. Eq. 346, 22 A. 261) .... 327 Wakefield v. Boston, etc. R. (63 Me. 385) 317 u. Newell (12 R. L 7.5,' 34 A. R. .^98) 140 Walker v. B'd of Public Works (16 Ohio, 540) 383 V. Caywood (31 N. Y. 51) 151 CXX TABLE OF CASES. PAGE "Walker v. Charlestown (Bailey's Ch. 443) 350 V. Chicago, etc. R. (57 Mo. 275) 344 V. Manchester (58 N. H. 438) 233 V. Old Colony, etc. R. (103 Mass. 10, 4 A. R. 509) .... 239 Wallace v. Jefferson Gas Co. (147 Pa. 205, 23 A. 410) .... 146 V. Karlenowefski (19 Barb. 118) 208 V. Newcastle, etc. R. (138 Pa. 168, 22 A. 95) 266, 269 Waltemeyer v. Wisconsin, etc. R. (71 la. 626, 33 N. W. 140) . . 96 Walters v. Houck (7 la. 72) 294 Walther v. Warner (25 Mo. 277) 178 Walton V. Green Bay, etc. R. (70 Wis, 414, 38 N. W. 10) ... 280 Wamesit Power Co. v. Allen (120 Mass. 3.52) 331 Ward u. Marietta Turnpike (6 Ohio St 15) 192 V. Minnesota, etc. R. (119 111. 287, 10 N. E. 365) .... 99, 115 V. Ohio River R. (35 W. Va. 481, 14 S. E. 142) .... 266 V. Peck (49 N. J. L. 42, 6 A. 805) 153, 208, 339 V. Warner (8 Mich. 508) 382 Ware v. Regent's Canal (3 De G. & J. 212) 144 Warne v. Baker (24 111. 351) 328 Warner v. Gunnison (31 P. 238) 161, 386 «. Holyoke (11 Mass. 382) '. 199 Warren v. First Division, etc. R. (21 Minn. 424) 259 V. Lyons City (22 la. 351) 63 V. Spencer Water Co. (143 Mass. 9, 8 N. E. 606) . . 300, 354 Warrell v. Wheeling, etc. R. (130 Pa. 600, 18 A. 1014) .... 280 Warwick Inst. u. Providence (12 R. I. 144) 277, 351 Washburn ». Milwaukee, etc. R. (59 Wis. 364, 14 N. 328) 218, 228, 251, 252, 260, 313, 316 Washburn, etc. Man. Co. v. Worcester (153 Mass. 494, 27 N. E. 664) 145 Washington Ave. (69 Pa. 352, 8 A. R. 255) 24 Wa.shington Bridge v. Connecticut (16 Conn. 53) 14 Washington Cemetery v. Prospect Park, etc. R. (68 N. Y. 591) 187, 253 Waterbury v. Dry Dock, etc. R. (54 Barb. 388) 169 Water Coram, of Amsterdam (96 N. Y. 351) 185,187 Water Coram, of Jersey City (31 N. J. L. 72) 181 Water Coram, v. Lansing (45 N. Y. 19) 295 V. Lawrence (3 Edw. Ch. 552) 107, 187, 255, 256 Water Works Co. v. Burkhart (41 Ind. 364) 188, 197 Waterloo Man. Co. v. Shanahan (128 N. Y. 345, 28 N. E. 358) . 46, 334 Waterman v. Connecticut,- etc. R. (.30 Vt. 610, 73 A. D. 326) . . 152 Waters v. Bay View (61 Wis. 642, 21 N, 11) 140 Watkins v. Pickering (92 Ind. 332) 301 Watson V. Acquackanonck Co. (36 N. J. L. 195) ...... 185 V. Milwaukee, etc. R. (57 Wis. 332. 15 N. 468) . . 229, 259, 311 V. New York Cent. R. (47 N. Y. 157) 309 V. Pittsburgh, etc. R (37 Pa. 469) 127 V. (2 Pitts. 99) 264 TABLE OF CASES. CXxi PAGE Watson V. Van Meter (43 la. 76) 152 Watson's Exv. v. Trustees, etc. (21 Ohio St. 667) 348 Watuppa Reservoir Co. v. Fall River (147 Mass. 548, 18 N. E. 405) 66 Waverly Water Works (85 N. Y. 478) 181, 182 Wayne Ave. (124 Pa. 135, 16 A. 631) 234 Wead B. St. Johnsbury, etc. R. (64 Vt. 52, 24 A. 361) 272, 321, 363, 371 Weale v. Water Works (1 Jao. & Walk. 358) 18 Weaver v. Boom Co. (28 Minn. 534, 11 N. 114; 44 . V. Gregg (6 Ohio St. 547, 67 A. D. 355) 277 Webb V. Manchester, etc. R. (1 Ry. Cas. 576) 8 V. New York (64 How. Pr. 10) 62 Webber v. Eastern R. (2 Met. 147) 314 Weber v. County of Santa Clara (59 Cal. 265) 289 - — • V. Harbor Comm. (18 Wall. 57) 84 Webster o. Nebraska Tel. Co. (17 Neb. 126, 22 N. 237) .... 20 Weidenfeld o. Sugar Run R. (48 Fed. Rep. 615) 42,44 Weismer v. Village of Douglas (64 N. Y. 91, 21 A. R. 566) ... 23 V. (4 Hun, 201) 388 Welch V. Importers' Bank (122 N. Y. 177, 75 N. E. 269) .... 279 V. Milwaukee, etc. R. (27 Wis. 108) 301 Weld V. Brooks (152 Mass. 297, 25 N. E. 719) 123 Weller v. Snover (42 N. J. L. 341) 395 Wellington's Petition (16 Pick. 87, 26 A. D. 631) . . . 152, 202, 334 Wells V. Hydraulic Co. (30 Conn. 316) 345 V. New Haven, etc. Co. (151 Mass. 46, 23 N. E. 724, 21 A. S. R. 423) 282 V. Somerset, etc. R. (47 Me. 345) 86 Wells County Road (7 Ohio St. 16) 295, 302 Wentworth v. Farmington (49 N. H. 119) 291 West V. Bancroft (32 Vt. 367) 365 V. Milwaukee, etc. R. (56 Wis. 318, 14 N. 292) . . . 259, 263 West Orange I'. Field (37 N. J. Eq. 600) '. 139 West Philadelphia Pass. R. v. Philadelphia (10 Phila. 70) . . . 02 West Pikeland Road (63 Pa. 471) 39 West River Bridge Co. v. Dix (6 How. 507) .... 49, 75, 76, 157 West Virginia Trans. Co. v. Volcanic Coal, etc. Co. (5 W. Va. 382) . 44 Western R. v. Alabama, etc. R. (96 Ala. 272) 371, 377 West. Maryland R. v. Owings (15 Md. 199) 347 West. Pacific R. v. Reed (35 Cal. 621) 313 V. Tevis (41 Cal. 489) 82 West. Pennsylvania R. Appeal (99 Pa. 155) 162 V. (104 Pa. 399) 200 West. Pennsylvania R. v. Hill (56 Pa, 460) 241 (2), 242 V. Johnston (59 Pa. 290) 210, 344, 354 West. Savings Fund Society v. Philadelphia (31 Pa. 175, 72 A. D. 730) 61 West. Union R. v. Dickson (30 Wis. 3S9) 328, 340 West. Union Tel. Co. v. Atlantic, etc. Tel. Co. (7 Biss. 367) . . 70 CXXU TABLE OF CASES. PAGE West. Union Tel. Co. v. Am. Union Tel. Co. (65 Ga. 160) ... 194 V. Judkins (75 Ala. 428) 347 V. Rich (19 Kan. 517, 27 A. R. 159) 192 V. WUliams (86 Va. 696, 11 S. E. 106) 373 Westoott ». New York, etc. R. (152 Mass. 465, 25 N. E. 840) 198, 199 Westfield Cemetery Ass'n v. Danielson (62 Conn. 319) .... 115 Wethersfield v. Humphrey (20 Conn. 218) 65 Weyer v. Chicago, etc. R. (68 Wis. 180, 31 N. W. 710) . 236, 241 (2) Weyl V. Sonoma Val. R. (69 Cal. 202, 10 P. 510) 343, 371 Whalleyw. Lancashire, etc. R. (13 Q. B.D. 131) 140 Wheeler v. Fitchburg (150 Mass. 350, 23 N. £. 207) . . . 179, 183 V. Kirtland (27 N. J. Eq. 534) 277 V. Road Board (39 N. J. L. 291) 110 Wheeling v. Campbell (12 W. Va. 36) 83 Wheeling Bridge. Co. (13 How. 518) 31 V. Wheeling, etc. Bridge (34 W. Va. 155, 11 S. E. 1009) . 88, 89 Wheeling & B. Bridge v. Belmont Bridge (138 U. S. 287, 11 S. Ct. 324) • 76, 324 Wheeling P. & B. R. v. Warrell (122 Pa. 613, 16 A. 20) . . . 343, 344 Wheelock v. Young (4 Wend. 647) 71 Whitaker e. Phoenixville (141 Pa. 327, 21 A. 604) .... 232, 248 Whitbeck v. Cook (15 Johns. 483, 8 A. D. 272) 159 Whitcher y. Benton (48 N. H. 157, 97 A. D. 597) 311 V. (50 N. H. 25) 251 White V. Boston, etc. R. (6 Cush. 420) 218 V. Chicago, etc. R. (122 Ind. 317, 23 N. E. 782) 152 V. Comm. of Works (22 L. T. n. s. 591) 226 V. County Comm. (2 Cush. 361) 355 V. Foxborough (151 Mass. 28, 23 N. E. 6.52) 223 V. Memphis, etc. R. (64 Miss. 566, 1 So. 730) 119 V. Northwestern, etc. R. (113 N. C. 610) 379 V. South Shore R. (6 Cush. 412) 69, 335 V. Wabash, etc. R. (64 la. 281, 20 N. 436) 264 White Deer Creek Co. v. Sassaraan (67 Pa. 415) 381 Whiteford Township v. Probate Judge (53 Mich. 130, 18 N. 593) 307 Whitieer «. Portland, etc. R. (38 Me. 26) 363 Whiting V. New Haven (45 Conn. 303) 277, 309 w. Sheboygan R. (25 Wis. 167, 3 A. R. 30) 48 Whitman v. Boston, etc. R. (3 Allen, 133) 226 (2), 251 V. (7 Allen, 313) 231, 251 Whitney ». Boston (98 Mass. 312) 175, 313 «. Lynn (122 Mass. 338) 255, 262 V. State (96 N. Y. 240) 250, 252 Whitworth v. Puckett (2 Gratt. 531) 297 Wichita & W. R. v. Fecheiraer (36 Kan. 45, 12 P. 362) .... 360 V. Kuhn (38 Kan. 675, 17 P. 322) 253 Wiggin V. New York (9 Paige, 16) 278, 345, 346 Wiggins Ferry Co. (107 111. 450) 42 TABLE OF CASES. CXXIU PAGE Wilbert's Appeal (137 Pa. 494, 21 A. 74) 102 Wilbraham v. County Comm. (122 Mass. 258) 293 Wilcox 0. Oakland (49 Cal. 29) 295 V. St. Paul, etc. R. (35 Minn. 439, 29 N. W. 148) . . . 175, 274 Wilkinson v. Leland (2 Pet. 627) 25 Willard v. Cambridge (3 Allen, 574) 335 William & Anthony Streets (19 Wend. 678) .... 159, 278 (2), 312 Williamsu. BrooklynEl. R. (126N. Y. 96, 26N. E. 1048). . 148,295 V. Carey (73 la. 194, 34 N. W. 813) 362 V. City Electric R. (41 Fed. Rep. 556) 367 V. Hartford, etc. R. (13 Conn. Ill) 324 V. (13 Conn. 397) 107, 289, 307 V. Mitchell (49 Wis. 284, 5 N. 798) 293, 295, 356 V. New Orleans, etc. R. (60 Miss. 689) 348 i.. New York (105 N. Y. 419, 11 N. E. 829) 85 V. New York Cent. R. (16 N. Y. 97, 69 A. D 651) . . 349, 37i V. New York, etc. R. (39 Conn. 509) 121 V. School Dist. (33 Vt. 271) 39, 49, 170, 245 V. Taunton (126 Mass. 287) 287 V. Water Co. (79 Me. 543, 11 A. 600) 282 V. Wilcox (8 Ad. & El. 314) 382 Williamsburg Boom Co. v. Smith (84 Ky. 372, 1 S. W- 965) . 65 Williamson v. Chicago, etc. R. (53 la. 126, 4 N. 870, 36 A. R. 206) 118 Williamsport & N. R. v. Philadelphia, etc. R. (141 Pa. 407, 21 A. 645) 96, 170 Willson V. Black Bird Creek Co. ( 2 Pet. 245) 382, 384 Wilmes v. Minneapolis, etc. R. (29 Minn. 242, 13 N. 39) . . . 127, 301 Wilmington & R. R. v. Stauffer (60 Pa. 374, 100 A. D. 574) ... 240 Wilmington & W. R. ... Smith (99 N. C. 131, 5 S. E. 237) 251, 254 (2), 325 Wilson V. Baltimore, etc. R. (5 Del. Ch. 524) . . 34, 206, 304, 307 V. Cochran ( 46 Pa. 229) 159 V. European, etc. R. (67 Me. 358) 277 V. Lynn (119 Mass. 174) 299 V. New Bedford (108 Mass. 261, 11 A. R. 261) 141 V. Northampton, etc. R. (9 Ch. App. 279) 119 V. Scranton (141 Pa. 621, 21 A. 779) 314 V. Trenton (53 N. J. L. 178) 355 V. Whitsell (24 Ind. 306) 318 Winchester v. Capron (63 N. H. 605, 4 A. 795, 56 A. R. 554) . . 374 V. Stevens Point (58 Wis. 350, 17 N. 3, 547) 364 Winchester & P. R. v. Washington (1 Rob. (Va.) 67) .... 319 Windham v. Litchfield (22 Conn. 226) 323 V. Portland (4 Mass. 384) 62 Windsor e. Field (1 Conn. 279) 186, 298 Winklemans v. Des Moines, etc. R. (62 la. 11, 17 N. 82) . . . . 218 Winn V. Rutland (52 Vt. 481) 140 Winnebago, etc. Co. v. Wisconsin, etc. R. (81 Wis. 389, 51 N. W. p76) 297, 298, 306 CXXIT TABLE OF CASES. PAGE Winnisimmet Co u. Grueby (lllMass. 543) 219 Winona & S. P. R. v. Waldron (11 Minn. 515, 88 A. D. 100) . . 251 Winslow V. Gifford (6 Cush. 327) 178 Winter v Petersen (24 N. J. L. 524, 61 A. D. 678) . . . 197 Wisconsin Cent. R. v. Cornell University (49 Wis. 162, 5 N 331) . 170 V. (52 Wis. 537, 8 N. 491) 312 Wisconsin Tel. Co. v. Oshkosh (62 Wis 32, 21 N. 828) . . 105, 373 Witham v. Osborn (4 Or. 318, 18 A. D. 287) 41 Witherspoon v. Meridian (69 Miss, 288) 83 Witt V. St. Paul, etc. R. (35 Minn 404, 29 N. W, 161) .... 181 Wolfe V. Covington, etc. R. (15 B. Mon. 404) 121, 354 Wood V. Auburn, etc. R. (8 N. Y. 160) 332 V. Charing Cross R. (33 Beav. 290) 348 V. Coram. (122 Mass. 394) 280, 323 V (62 111. 391) 305 V. Macon, etc. R. (68 Ga. 539) 164, 165 D. Water Works (33 Kan. 590, 7 P. 233) 365 V. Westborough (140 Mass. 403, 5 N. E. 613) 350 Woodbury v. Beverly (153 Mass. 245, 26 N. E. 831) . . 147 V. Water Co. (145 Mass. 509, 15 N. E. 282) . . . 107, 301, 348 Woodbridge v. Eastland County (70 Tex. 680) 153 Woodfolk V. Nashville, etc. R. (2 Svran, 422) 247 Woodring v. Forks Township (28 Pa. 355, 70 A. B. 134) .... 196 Woodruff V. Catlin (54 Conn. 277, 6 A. 849) 97, 138 u. Glendale(26 Minn. 78, 1 N. W. 581) 268 V. Mining Co. (18 Fed Rtp. 753) 45 V. Neal (28 Conn. 165) 197 D. New York, etc. R. (59 Conn 63, 20 A. 17) 14 Woodstock 0. Gallup (28 Vt. 587) 50 Woodward u. Webb (65 Pa. 254) 353 Woolever v. Stewart (36 Ohio St. 146, 38 A. 569) 394 Woolsey v. Supervisors (32 la. 130) 294, 306 Worcester v. Gt. Falls Man. Co. (39 Me. 246) 28 V. Norwich, etc. R. (109 Mass. 103) 97, 100 Worcester Gas Co. v. County Coram (138 Mass 289) . . . 184, 358 Worcester & N. R v. Railroad Comm. (118 Mass. 561) . . . 103 Workman v. Mifflin (30 Pa. 362) 159, 208, 309 Wright V. Butler (64 Mo. 165) 275 t>..Carter (27 N. J. L. 76) 151 V. Wilson (95 Ind. 408) 287, 300 Wurts w. Hoagland (114 U. S. 606, 5S. Ct. 1086) 392 Wyandotte, K. C. & N. R, o. Waldo (70 Mo. 629) 251 Wylie V. Elwood (134 111. 281 , 25 N. E. 570, 23 A. S. R. 673) 115, 120, 134 Wyman v. County Comm. (157 Ma.ss. 55, 31 N. E. 715) .... 86 V. Eastern R. (128 Mass. 346) 322 V. Lexington, etc. R. (13 Met. 316) 219, 220 Wynehamer v. People (13 N. Y. 378) ' 11 Wyoming Coal Co. v. Price (81 Pa. 156) 188 TABLE OF CASES. CXXV PAGE Yates !•. Milwaukee (110 Wall. 497) 35, 84, 384 V. West Grafton (34 W. Va. 783, 12 S. E. 1075) .... 372 (2) Yelton V. Addison (101 Ind. 58) 305 Yesler v. Harbor Line Comni. (146 U. S. 646, 13 S. Ct. 190) . 34 Yonkers, Matter of (117 N. Y. 564, 23 N. E. 661) . . . 288, 295, 365 York V. Welsh (117 Pc. 174, 11 A. 390) 276 Yost's Report (17 Pa. 524) 288 Yost V. Conroy (92 Ind. 464, 47 A. R. 156) 316 Young V. Buckingham (5 Ohio, 485) 40, 98 V. Comm. (134 111. 569, 25 N. E. 689) 140 V. Harrison (17 Ga. 30) 227, 250 V. Laeonia (59 N. H. 534) 322 Zabriskie v. Hackensack, etc. R. (18 N. J. Eq. 178) 97 Zack V. Pennsylvania R. (25 Pa 394) 305 Zanesville v. Gas Light Co (47 Ohio St. 1, 23 N. E. 55) . . . . 20 Zemlocfc V. United States (73 Wis. 363, 41 N. W. 445) . . . 81, 384 Zettel V. West Bend (79 Wis. 316, 48 N. W. 379, 24 A. S. R. 715) . 376 Ziegler v. Chapin (126 N. Y. 342, 27 N. E. 471) 114 Zigler V. Menges (121 Ind. 99, 22 N. E. 782, 16 A. S. R. 357) . . 390 Zimmerman r. Canfield (42 Ohio St. 463) 305 V. Snowden (88 Mo. 218) 302 V. Union Canal (1 W. & S. 346) 383 In preparing the preceding table the following cases were omitted: — Amoskeag Co. v. Head (59 N. H. 332) 220 Denver N. & P. R. v. Barsaloux (15 Col. 290, 25 P. 165) ... 346 Long's Appeal (87 Pa. 114) 288 Marchant v. Pennsylvania R. (157 U. S. 52.5) 396 New York v. Manhattan Co. (1 Caines, 507) 293 THE LAW OF EMINENT DOMAIN. CHAPTER I. THE EMINENT DOMAIN. § 1. The right of eminent domain enables the state to take private property for public use upon payment of compensation. The power is singular among the sovereign powers over property. It is the only power the exercise of which invariably provokes a direct issue between the man and the state. A man must pay a lawful tax, and submit to a lawful restriction upon the use of his property, without question. But where his property is taken, he is entitled to have its value determined by an im- partial tribunal. The right is essentially material. Political sentiment may affect taxation, moral sentiment the police power, but these rarely affect the right of eminent domain. Of all state powers this effects the most direct practical results. It has made possible our extensive systems of highways, railroads, and waterworks, and has ministered to our material well-being in other notable ways. The constant and varied applications of the right have created a great body of law. It is our purpose to determine the princi- ples of this law, and the rules which govern its application. § 2. " Eminent domain " seems to be derived from the domi- nium eminens of Grotius. It has been suggested that the term is sufiicieutly broad to cover " the whole range of police powers and property regulations," ^ and Dr. WheweU, in translating Grotius, writes "eminent dominion." Now there is no objection to re- 1 1 Bench and Bar, 112 ; see 2 Kent's Comm. 339. 1 2 THE EMINENT DOMAIN. [CHAP. I. ferring all governmental powers over property to an eminent dominion, yet wherever a manifestation of sovereignty creates a well-defined body of law, it is proper to give it a distinctive title. An accurate terminology is as greatly to be desired in law, as in the exact sciences. Eminent domain has been also used with reference to the property of the state,' but this mean- ing is inapt, as it does not involve that sense of superiority which is of the essence of the right. The term thus used seems to be an unnecessary substitute for the public domain. The suggestion that where a corporation lawfully constructs its works in a public street it exercises the equivalent of the eminent domain,^ seems to be open to somewhat the same criticism. The weight of authority, and common usage in this country, where the term has been accorded a more definite position than else- where, unite in interpreting eminent domain {dominium eminens) as a peculiar power over private property.^ The paraphrasing of dominium into domain, instead of translating it dominion, inexact in that it substitutes a thing controlled for the right to control it, emphasizes this meaning. Eminent domain is defined to be the right of the state to take private property for public use, on payment of compensa- tion.* It does not follow, however, that every law prescribing compensation for damage done to property in furthering public uses is referable to the eminent domain. Where compensation is allowed where it could not be claimed as of right, as, for example, where it is prescribed that compensation shall be paid for property damaged, or injuriously affected,^ there is no recog- nition of the obligation of the eminent domain, but rather an expression of its inadequacy to secure substantial justice to the owner of property. § 3. The theory has been advanced that all land is held of the state, and that the state in expropriating it simply resumes 1 Geld Hill Min. Co. v. Ish, .5 Or. Webster's Diet. ; Cent. Diet. See also 104; Cooley, Const. Lim. (Bth ed.) 643. Holland's Jurisprudence (6tli ed.),336. But see 2 Kent's Comm. 339, n. * Vattel, Law of Nations, § 244 ; 2 Gibbs V. Baltimore Gas Co., 130 Ahrens, 2 Droit Naturel, 159; Erskine, U. S. 396. An Institute of the Law of Seotland.(ed. 3 Bonaparte!). Camden & A. R., Bald. 1881), 251. See also the last note. C. C. 205 ; Am.Cyc., Eminent Domain; ^ See~§§ 153-^157. SECT. 4.] THE EMINENT DOMAIN. 3 an original grant.^ It is not necessary to thresh the vexed questions as to the origin and tenure of private property in land, to find the refutation of this theory. The unquestioned fact that the state is the ultimate reversioner of land is irrelevant, for the state is no less the final legatee of personal property, to which it never could have had title. In both capacities the property is acquired through escheat, wherein the state, so far from asserting a right superior to private ownership, steps in only upon its termination.^ Further, the eminent domain of the United States over land within a state cannot depend on origi- nal grant, at least in the first group of commonwealths. There must be a common basis for federal and state eminent domain, and it is found in sovereignty pure and simple. From this standpoint the status of the eminent domain is readily deter- mined. It is the extreme prolongation of that accepted right of state control over property manifested in taxation and police regulation. Historical Sketch. § 4. A brief sketch of the rise and development of the right of eminent domain may be not without interest. The story of Naboth's vineyard has been solemnly cited by Merlin as the earliest instance of expropriation.^ In the Athenian Constitu- tion of Aristotle,* we are told that a quarrel between Athens and Eleusis was settled up.on this condition among others: " If any of the seceding party (discontented Athenians) wished to take a house in Eleusis, the people would help them to ob- tain the consent of the owner ; but if they could not come to terms they should appoint three valuers on either side, and the owner should receive whatever price they should appoint." The eminent domain does not appear to have been well estab- lished in early Eoman law. Indeed, there is some reason to believe that state control over private lands would have been inconsistent with private rights as understood in Eome. The 1 Heyward v. New York, 8 Barb. People v. Trinity Churcli, 22 N. Y. 486; Union El. Ry., 113 N. Y. 275; 44. Birtdle v. Hussman, 23 Mo. 597. ' 29 Repertoire de Jurisprudence, ^ See Lord Bramwell, Property, 361. Nineteenth Century for March, 1890; ^ Kenyon's Trans. 72. 4 THE EMINENT DOMAIN. [CHAP.- I. testimony of the straight military roads seems, however, to point so directly to a power of compulsory acquisition that Bluntschli suggests that special statutes were enacted to meet emergencies, comparing in this respect Eoman with English practice.^ This suggestion implies, of course, a clear right of eminent domain. The apparent conflict on this point may be of small moment in view of the peculiar conditions of Eoman land tenure. Apart from the small territory known as Ager Romanus, the Italian peninsula was held by the state by right of conquest. A por- tion of this land was sold outright, and so became ager priva- tus. The rest remained ager puUicus, and was gradually taken up by the patricians and their retainers, whose occupancy ripened into possession. The vast extent of these possessory holdings is shown by the fact that for centuries they formed the bulwark of patrician power, and the chief cause of complaint against it. While Quiritarian, or absolute private property, increased in Italy through the planting of burgess colonies, and the confer- ring of Eoman right upon municipalities and individuals, the property in provincial land was for a long period almost wholly Bonitarian. The distinction between these estates was not for- mally abrogated until the reign of Justinian.^ It is possible, then, that in the earlier period of Eoman administration the necessary public works were built upon land held by the state as possessor or landlord, and that Quiritarian property was taken only upon consent. § 5. As the eminent domain is active only where there is a desire for public works, tempered by a decent respect for private property, we need not look for its common use during the earlier stages of modern civilization. Nor are there many examples of expropriation with compensation under the feudal system, under which private rights in land were subject to the claims of the overlord.^ It should be noted that roads, obviously in time 1 Theory of the State, English Trans, one of the earlier eminent domain stat- 238. utes : " Possessores possessionum quas 2 See Savigny, Possession, Perry's pro ecclesiis aut domibns ecclesiarum Trans. 76. parochialium de novo fundandis aut 2 See Pradier Foder^'s note to Vat- ampliandis infra villas, non ad super- tel. Droit des Gens, 224. An ordinance fluitatem sed ad convenientem uecessi- of Philip the Fair is worth quoting as tatem acquiri contigit, ad eas dimitten- SECT. 5.] THE EMINENT DOMAIN. 5 the earliest as in character the most important works of public interest, were, apart from the old Eoman roads and ancient trackways, either connecting ways of necessity, or private toll roads, or if formally laid out as public ways, were usually opened over unimproved lands without compensation. If it were necessary to bolster up every public power with an ancient pedigree, the genealogy of the eminent domain would be quite unsatisfactory, — a small collection of decrees scattered through several centuries, and nearly all shadowed by a doubt as to their equitable enforcement. Until private property in laud becomes the rule, and is fully protected by law, and until the legitimate needs of a high civilization frequently demand its surrender, there is little room for the eminent domain as we understand it. Whatever early practice may have been, the eminent domain finds its authoritative suggestion in the Rights of War and Peace of Grotius : " We have elsewhere said,-' that the property of subjects is under the eminent dominion of the state ; so that the state, or he who acts for it, may use, and even alienate and destroy such property; not only in case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added, that when this is done, the state is bound to make good the loss to those who lose their property ; and to this public purpose, among others, he who has suffered the loss must, if need be, contrib- ute." ^ During the seventeenth and eighteenth centuries the manifestations of the eminent domain increased, owing to the extension and gradually centralized administration of public works, and the growth of equitable juridical ideas. As necessary highways could not be opened in many cases without affecting improved property, a law was passed in France providing indem- nity for the taking of houses, timber, and vineyards, the measure das pro jnsto pretio compelli debent." i B. ii. c. 14, §§ 7-8 ; iii. c. 19, § 7. Merlin, Repertoire de Jurisprudence, — ^ B. iii. c. 20, § 7. Betraite d'Utilite Publique. 6 THE EMINENT DOMAIN. [CHAP. I. of damages being the value of the property less its value as arable land.^ The eminent domain was also exercised iu favor of canals and the reclamation of marshes. But while the theory of eminent domain had become fixed in ethical jurisprudence, and had obtained a certain recognition in legislation, it had hardly attained to the dignity of an accepted rule of action. The incorporation of the eminent domain in constitutions and codes marks its establishment as a definite power. Comparative View of the Eminent Domain in Several Countries. § 6. The history of the eminent domain in France during the past century illustrates the doctrine under a system, constitu- tional it is true, yet differing from both American and English ideas of constitutional polity. Article Sixteen of the Declara- tion of Eights of 1789 reads, " Property being an inviolable and sacred right, no one can be deprived of it unless the public necessity plainly demands it, and upon condition of a just and previous indemnity." This article was incorporated in the Con- stitution of Sept. 14, 1791. The Code Napoleon declares, "No one is obliged to transfer his property unless it be for public utility, and in consideration of a just and previous indemnity." ^ The Charters of 1814 and 1830 contain declarations resembling that in the Constitution of 1789, substituting "public interest" for " public necessity." A comparison of legislation with constitutional declaration often shows the infirmity of mere constitutional commands not enforceable by a judiciary vested with the power of authoritative interpretation. Thus, while the Act of Sept. 7, 1790, conformed to the spirit of the eminent domain by placing the assessment of compensation within the competency of the judiciary, the Assembly by a later law transferred the assessment to the ad- ministration, and in an act relating to the draining of marshes confirmed the jurisdiction of prefectual councils in the matter of compensation. Napoleon, impressed with the injustice of this practice, recommended the replacement of the assessment within 1 Dumay, Chemins Vicinaux ii. 748. form or substance in most of the Euro- 2 Art. 545. This Article appears in pean Codes. SECT. 7.] THE EMINENT DOMAIN. 7 the power of the judiciary.^ This recommendation was acted on in the law of March 8, 1810. The comprehensive statute or code of 1841, " Expropriation for the sake of public utility," modelled on the Act of 1833, is the basis of present practice. § 7. The plenary power of Parliament discourages the treat- ment of English constitutional questions in any but the most practical fashion. The only guide to what Parliament may do, is what Parliament has done. It might be fanciful to say that this very perfection of legal irresponsibility has proved a moral check on its abuse ; but certain it is that the right of private property upheld by the common law has been hitherto no more qualified by legislation in England than here, if we except the Artisans' Dwellings Acts and a few others, which advance the list of public uses beyond the present American terminus. Blackstone does not follow the continental jurists in treating the eminent domain as a positive power, but, declaring the inviolability of private property, insists that if the state does take it compensa- tion should be made.^ That there is no " eminent domain " in English jurisprudence is because the power is included, and the obligation to compensate lost, in the absolutism of Parliament. The only technical term approximating to " eminent domain " is " compulsory powers," as used in acts enabling municipal and other corporations to take property for their use. The multipli- cation of such acts led to the enactment of several general laws, notably the Lands Clauses Consolidation Act of 1845, which is a complete code. This Act, or one of the others of a similar class, as the Eailways Clauses Consolidation Act, is incorporated by reference in the various special acts. The bulk of the English law is naturally of local interest only so far as the preparation of American cases is concerned, though our legislators might often mark with profit its comprehensive- ness, its clearness, and the general equity of its provisions. Parts of this law, however, especially the " compensation clauses," are, together with the explanatory decisions, of practical interest 1 Notice de Schoenbrunn, Sept. 29, ^ Comm. i. 139. 1809. See Dalloz, Jurisprudence G&e- rale, xxiii. 501 n. 8 THE EMINENT DOMAIN. [CHAP. I. to the American lawyer. * But in consulting English authorities, regard must be paid to the radical difference between English and American statute law.^ The lawmaking power in this country is subjected to constitutional restrictions. Parliament is a law unto itself. Therefore the only question to be put in an English court is, — What does the act mean ? In this country a further question may be put. Is the act constitutional ? An English court will compel promoters to show that the statute confers compulsory powers.^ It will confine these powers within the straitest limits warranted by the act.* It will define an ob- ligation to compensate as broadly as the act will allow.* But it will give effect to a grant of power which could not be sustained in this country. For example, compulsory powers were granted and commissioners appointed to assess compensation. The com- missioners were to appoint successors, but died without having made the appointment. It was held that the right to compen- sation had failed, but that the powers could still be exercised.® The exercise of the eminent domain in the United States, Eng- land, and the countries wherein the civil law obtains, accord in this respect, that where a right to compensation exists, its due enforcement is secured. In the United States constitutional declarations expounded by an independent judiciary establish a more restricted field for state intervention than is possible under the conditions of constitutional government in other countries. COMPAKATIVE VIEW OF THE EMINENT DOMAIN AND KINDRED POWERS. § 8. The eminent domain is but one of several manifestations of state power over private property. The powers of necessity, war, police, and taxation are commonly listed as the other arms 1 Delaplaine v. Chicago & N. R., 42 « Webb v. Manchester & L. R., 1 Ry. Wis. 214; Grand Rapids & I. R. v. Cas. 576; iJej. i.. Wycombe R., L. R. 2 Heisel, 47 Mich. 393. See Stanwood v. Q. B. 310 ; Herron v. Rathmines, etc. Maiden, 157 Mass. 17. Imp, Comm. (1892), A. C. 498. See 2 See Crawford u. Delaware, 7 Ohio Galloway v. London, L. R. 1 H. L. 34. St. 459 ; Eaton v. Boston, C. & M. R., 5 Hull & S. R., 5 Ry. Cas. 458. 51 N. H. 504. 6 Kennet & A. Nav. Co. v. Withering- 8 Lamb v. North London R., L. R. 4 ton, 18 Ad. & El. n. s. 531. Ch. 522. SECT. 9.] EMINENT DOMAIN AND KINDRED POWERS. 9 of sovereignty. It is important, therefore, to define these powers in order that the true field of the eminent domain may appear. Necessity. § 9. To conform to a familiar classification of sovereign powers we have referred to the power of necessity. The most notable examples of this power are in cases where it is asserted in justification of the destruction of property to stay the spreading of fire. Such an act, whether committed by persons acting of their own motion or in obedience to official orders, is, if done in the exercise of a wise discretion, a justifiable tres- pass at common law.^ When the exercise of this primitive right is subjected to statutory regulation, the statute simply recognizes the right, and compensation if given at all can be claimed only for the property, and in the manner, specified.^ The destruction of a building so permeated by infection as to be a source of imminent danger, has been justified on the score of necessity.^ But the law of necessity has been vainly in- voked to warrant the appropriation of a private house for a small-pox hospital, under a statute merety empowering the authorities to provide such an hospital,* and the summary laying out of a road in place of one destroyed by flood.^ It appears, however, that where land is in imminent danger of being flooded, a levee may be built on private property without first instituting formal proceedings to condemn.® It seems to the writer that "necessity" as indicating a particular sovereign power should be discarded as indefinite. Necessity is the root of sovereignty, not a branch. Furthermore, it is as potent a plea on behalf of a man as of a state. Acts of state which rely on necessity for their justification may be always 1 Mouse's Case, 12 Coke, 63 ; Ameri- York, 25 Wend. 156; Taylor u. Ply- can Print Works v. Lawrence, 21 N. J. mouth, 8 Met. 462. L. 248 ; s. c. 23 N. J. L. 590 ; Russell I'. » jjeeker v. Van Rensselaer, 15 New York, 2 Denio, 461 ; Bowditch v. Wend. 397. Boston, 101 U. S. 16; Field v. Des * Markham v. Brown, .37 Ga. 277. Moines, 39 la. 575. See also McDonald See also Mitchell v. Rockland, 45 Me. V. Redwing, 13 Minn. 38. 496. ^ American Print Works v. Law- ^ Holden i'. Cole, 1 Pa. 303. rence, 21 N.J. L. 248; Stone v. New « See Penricew. Wallis, 37 Miss. 172. 10 THE EMINENT DOMAIN. [CHAP. I. referred to a more definite power, — in the fire cases mentioned, to the power of police. It seems convenient then to let the maxim necessitas inducit privilegium stand chiefly for the justi- fication of private trespasses, such as a circuit over private property in order to avoid an obstruction in a highway. War Power. § 10. In time of war, the state may find it necessary to assume dominion over property without the consent of its owner. When the property of enemies is confiscated, there is of course no obligation to compensate. Further, if the war power be exerted to destroy property in danger of falling into and strengthen- ing the enemy's hands, there is no liability to the owner.^ The act is justifiable on much the same grounds as war- rant the destruction of property to stay a conflagration. But where the property of friends is taken in war, because of its utility to the government, there is a clear exercise of the emi- nent domain;^ Hence, where the United States assume control over private property for military purposes they are liable on an implied contract to pay its value.^ Police Power. § 11. The police power is insusceptible of strict definition. Its characterization by Chief Justice Taney in the License Cases,* as the power of the sovereign of " governing men and things within its dominions," is intentionally vague, and Chief Justice Shaw said,^ " It is much easier to perceive and realize the existence and source of this power, than to mark its bound- aries or prescribe limits to its exercise." Although attempts have been made to make definite that which these masters of the law shrank from defining, they have not been successful. The most that can be said is that if a sovereign interference '' Mitchell V. Harmony, 13 How. 115; 623 ; Mason v. United States, 14 Ct. CI. Ford V. Surget, 97 U. S. 605 ; United 59. States V. Pacific P., 120 U. S. 227 ; * 5 How. 504. Bronson v. Woolsey, 17 Johns 46. ' Commonwealth v. Alger, 7 Cush. 2 Cunningham v. Campbell, 33 Ga. 53. See also Justice Miller in the 625. Slaughter House Cases, 16 Wall. 36, 62. 8 United States v. Russell, 13 Wall. SECT. 12.] EMINENT DOMAIN AND KINDRED POWERS. 11 with property canuot be referred to the comparatively well de- liued powers of taxation, or eminent domain, it may be usually referred to the elastic power of police. A somewhat extended consideration of the police power over property is necessary in order that the distinction between it and the eminent domain may be appreciated, for legislation is often assailed on the ground that under cover of the police power it effects an appropriation of property to private use, or ±o public use without compensation. § 12. Destruction of Property or Prohibition of its Use. — Property essentially harmful to public health, safety, or morals may usually be destroyed without compensation. Thus, it has been held that the state may freely destroy infected property.^ But if the property is in fact innocuous, its destruction, even Under a reasonable impression of its harmfulness, is unwar- ranted.^ Further, if specific property is not essentially inju- rious, and therefore can be fairly said to come into existence under the protection of the law, it cannot be destroyed, or ren- dered absolutely worthless, by virtue of retroactive legisla- tion. Hence it was held in the leading case of Wynehamer v. The People,^ that a statute prohibiting the sale of liquor law- fully made was invalid as attempting to deprive its owner of property without due process of law.* Where municipal author- ities lawfully grant a permit to erect a frame building, and the grantee makes contracts for the building and begins work, he has a vested interest in the building which cannot be disturbed by a subsequent ordinance forbidding the erection of frame buildings within certain limits.* A statute authorizing the kill- ing of diseased animals by officers of societies for the preven- tion of cruelty to animals, and the payment to their owners of their value impartially determined, has been so far likened to an 1 Theilan v. Porter, 14 Lea, 622 ; ' 13 N. Y. 378. Raymond u. Fish, 51 Conn. 80. See also * See also Bartemeyer v. Iowa, 18 Meeker u. Van Rensselaer, 15 Wend. Wall. 129 ; Beer Co. v. Massachusetts, 397 ; Dunbar v. Augusta, 90 Ga. 390. 97 U. S. 25. 2 Newark &c. Horse R. v. Hunt, 50 ^ Bufealo v. Chadeayne, 134 N. Y. N. J. L. 308; Miller v. Horton, 152 163. Mass. 540. See also People v. Board of Health, 140 N. Y. 1- 12 THE EMINENT DOMAIN. [CHAP. I. eminent domain act that it was held invalid because it did not provide for proper notice to the owners.^ § 13. The state may exert its police power to prohibit certain uses of property. Thus, laws prohibiting the manufacture and sale of liquor have been generally sustained, and it was held in Mugler V. Kansas,^ that the owner of a brewery built before the passage of an act forbidding the brewing of beer, should not have compensation for the loss of the use of his structure.^ So the state may prohibit the further use of a cemetery as a place of sepulture ; * establish fire limits within which wooden build- ings shall not be erected,^ nor those already in existence be re- stored in the event of their partial destruction ; ^ and forbid the pollution of water-courses.^ An extreme instance of legislative control over the use of private property in the interest of public health, is the prohibition of rice culture withiu the limits of a village, and the restriction of general agriculture therein to one- eighth of an acre to each household.^ The state may impose conditions on the use of property in the interest of public safety and morality. Under this head may be noted such familiar statutes as those requiring a license for the sale of liquor, prohibiting the making of explosives in certain places, and regulating the sale of poisons. § 14. In most of the cases cited, the action of the legislature is predicated upon an assumed detriment to the public health, safety, or morals. Hence the vital question : Is the legislative declaration that a commodity, or calling, or use of property is absolutely or conditionally noxious, conclusive ? This question is generally answered by the courts in the affirmative, because the cases seem to present matters of fact and expediency wholly within the competency of the legislature. But in some eases, 1 King!). Hayes, 80 Me. 206. See 6 Fiske's Case, 72 Cal. 1 25 ; Klingler also Brill K. Ohio Humane Soc, 4 Ohio v. Bickel, 117 Pa. 326; Hine v. New C. C. 358. Haven, 40 Conn. 478. 2 123 XT. S. 623, overruling State v. '^ Brady v. Northwest Ins. Co., 11 Walruff, 26 Fed. Rep. 178. Mich. 425. 3 See also Kidd u. Pearson, 128 ' State v. Wheeler, 44 N. J. L. 88. U. S. 1. 8 SummerviUe v. Pressley, 33 S. Car. * Coates V. New York, 7 Cowen, 585 ; 56. Kincaid's Appeal, 66 Pa. 411. See Austin V. Murray, 16 Pick. 121. SECT. 14.] EMINENT DOMAIN AND KINDRED POWERS. 13 the legislative assertion of harmfulness has appeared to the courts to be so utterly without fouudation as to strip the statute of all claim to respect.^ In Jacobs' case ^ the limit of judicial forbear- ance was overpassed, and the court, in a strong opinion, declared unconstitutional a statute prohibiting the manufacture of tobacco in tenement houses. Said Judge Earl : " We must take judicial notice of the nature and qualities of tobacco." The principle of this case is, that where legislation is intended to cure an evil, the existence of the evil and the relation of the remedy to it may be passed upon by the judiciary without trenching on the legislative prerogative. Tliis principle was applied in People v. Marx,^ where the statute in question was entitled " An Act to prevent deception in the sale of dairy products." The act pro- hibited the manufacture and sale of the product known as oleomargarine, " designed to take the place of butter or ' cheese produced from pure unadulterated milk or cream of the same." The court declined to hold that the sale of a wholesome product which resembled butter was necessarily a fraud upon purchasers. The frank contention of the respondent's counsel, that even though the act was designed to relieve the dairyman from the competition of a cheaper article than butter, it was still a valid exercise of legislative power, was met by the declaration that the legislature could do no such thing. So, in People v. Gillson,* the validity of a statute making the presentation of gifts to pur- chasers of food a misdemeanor was in question, and the court could not perceive any covert attack on the public morals in the presentation of a cup and saucer to the purchaser of two pounds of coffee. But the measure of judicial responsibility accepted in the opinions just cited, has not always been accepted else- where. In Powell V. Pennsylvania,^ a statute prohibiting the ma. Emmons, 268. But see Chicago a. O'Brien, 111 149 U. S. 364 ; Illinois Cent. R. v. Wil- 111. 532. leuborg, 117 111. 203 ; Emmons v. Min- » Washington Bridge ii. Cpnnecticut, neapolis & S. R., 35 Minn. 503 ; Thorpe 18 Coun. 53. See § 165. "117 111. 294. SECT. 16.] EMINENT DOMAIN AND KINDRED POWERS. 15 statute invalid, because it imposed upon operators of coal mines the burden of erecting scales for the weighing of the coal mined, and offering the results for public inspection. The object of the statute was to afford security to the operatives, who were paid by weight, and the court held that, assuming this to be a public purpose, it could be attained only by making good the expense incurred. In Commonwealth v. Pennsylvania Canal Company,^ the company successfully resisted the attempt of the State to saddle them with the cost of making fishways in their dams. It was held that while the State could make fishways by virtue of its police power, it had not, in granting the company's charter, reserved the right to compel their construction. The legislature cannot compel a railroad company to lease land at a station for the use of a grain elevator at a nominal rent.^ A statute com- manding persons to exterminate squirrels on their own lands has been declared invalid.* § 16. State Control over Contracts. — The normal attitude of the state toward the making of contracts is one of assistance not interference. The state sets up standards of value, weight, and measure, so that contracts made with reference to them shall have a universal definiteness. It provides legal machinery whereby valid agreements may be enforced, invalid ones abro- gated. But it does not usually declare that an agreement shall be made, nor, if made, what its consideration shall be. Usury laws are exceptional. The state has long assumed that an unre- stricted price for the use of money is a public evil, and the only question to-day with regard to these laws is as to their expe- diency. Statutes regulating wages were formerly common in England,* and appear to have found favor in certain American Colonies.* Although a city ordinance regulating the price of bread seems to have been approved in an early American case,^ state interference in the matter of prices has never obtained a footing in this country, and is now practically obsolete in England.''' 1 66 Pa. 41. 5 See Weedon's Economic & Social 2 State V. Chicago, M. & S. P. E., 36 History of New England. Minn. 402. 6 Mobile v. Yuille, 3 Ala. 137. See s Hodgea' Case, 87 Cal. 162. also Shelton v. Mobile, 30 Ala. .540. See * Thorold Rogers, Economic Inter- Dunham v. Rochester, 5 Cowen, 462. pretation of History, 25. 1 T. H. Parrer, The State in its Relation to Trade, ch. viii. 16 THE EMINENT DOMAIN. [CHAP. I. § 17. If it can be shown that an unrestricted freedom of con- tract results in detriment to the rights of the public, the supre- macy of the latter may be asserted by restricting the private right. There is a complaint which has received much legislative attention in recent years. The complaint is substantially this ; that corporations and individuals engaged in affording certain facilities to commerce, charge unreasonable rates for services. These rates the customer is in many cases obliged to pay or forego facilities essential to his business, because the services are eiiher such as cannot be well performed by individuals, or can, in fact, be rendered only by those actually tendering them, owing to the absence of competition, and the practical difficulties in the way of its institution. In other words, it is charged that those occu- pying a commanding position impose exorbitant rates for service. The parties against whom these complaints are directed may be divided into two classes, — one consisting of corporations invested with certain public powers, notably the right of eminent domain ; the other comprising associations enjoying simply a corporate franchise and individuals. If the legislature grant a charter, and prescribe fixed rates for service, or leave the exclusive mak- ing of rates to the company, there is a contract which cannot be impaired without compensation.^ But the charter privilege of a company, " from time to time to fix, regulate, and receive the tolls and charges by them, to be received for transportation," is not such a contract.^ If the legislature does not make a contract, it may limit the charges for services to a reasonable rate.^ § 18. Thus far the corporations subjected to state supervision in the matter of charges are such as have received state aid in the form of special powers. It has been further held that the undertakers of certain enterprises which have no direct connec- tion with the state unless, it may be, through the acceptance of an ordinary corporate franchise, are presumed, from the very na- ture of the enterprise, to so dedicate their property to the use of the public that the state may regulate their charges for service.* > See Chicago, B. & Q. R. v. Iowa, 94 U. S. 164 (The Granger Cases) ; Spring U. S. 155. Valley Water "Works Co. <;. Schottler, 2 Stone V. Farmer's Loan & Trust 110 U. S. 347 ; Georgia R. v. Smith, 128 Co., 116 U. S. 307. U. S. 174. 8 Peik V. Chicago & N. "W. E. 94 * Munu o. Illinois, 94 U. S. 113; SECT. 18.] EMINENT DOMAIN AND KINDEED POWERS. 17 The enterprises- are said to be " affected with a public interest," — a description borrowed from Hale's Be Portihus Maris} In the leading case of Munn v. Illinois,^ the plaintiff was the owner of a grain elevator. The legislature passed an act requiring the owners of such elevators to perform services at rates not to ex- ceed a fixed maximum. The constitutionality of the act was questioned on the ground that the elevator was private property devoted to private uses, and hence beyond the asserted power of regulation. The United Statesi Supreme Court, affirming the judgment of the State court,^ declared the act constitutional. The doctrine of Munn v. Illinois,* affirmed in People v. Budd,^ must be accepted, of course, as an authoritative definition of state power. The doctrine has been much criticised, and al- though the enunciation of a new doctrine, or the novel applica- tion of an old one is entitled to equal respect with the reiteration of familiar law, it is permissible to examine it critically in ordei to determine its actual bearing on the rights of property. This examination is undertaken the more readily, because one of the justices who took part in the decision of Munn v. Illinois has lately declared,^ that it has been overruled in an important par- ticularJ It may be noted in passing that in the case just cited, but three justices who were of the court in the Munn case took part. Of the majority in the Munn case, Justice Bradley here dissented, while Justice Miller approved the result in a separate opinion, and Justice Field, of the minority in the earlier case, is here with the majority. Furthermore, Justice Miller, has made, in Wabash, St. Louis & Pacific Eailroad Co. v. Illinois,^ an im- portant commentary on the Munn case, for he assumes that the elevator in question was one to which the public had a right to resort. But this point did not clearly appear in the opinion of the Supreme Court, nor in that of the State court, nor yet in the statute which provoked the litigation.^ Now if an obligation to People V. Budd, 117 N. Y. 1 ; s. c. 143 » See Justice Bradley's dissenting U. S. 517. opinion, in Chicago, M. & S. P. R. v. 1 1 Hargrave's Tracts, 78. Minnesota, 134 U. S. 418. " 94 U.S. 113. ' See §23. 8 69 111. 80. 8 118U. S. 557. 1 94 U. S. 113. 9 See People v. Budd, 117 N. Y. U Ml7 N. Y. 1 ; 8. c. 143 U. S. 517. 55, Peckham, J. a 18 THE EMINENT DOMAIN. [CHAP. I. serve is evidenced by the act of the state in fixing rates, we get this proposition — A person engaging in a certain business, say the storing and shipping of grain, is presumed to dedicate his prop- erty to the public in these respects ; his rates are to be reason- able, and his reception of customers is to be limited only by the capacity of his plant. The motive of an actual dedication is readily understood. An actual dedication is made in view of an anticipated benefit to other property of the donor, or it is in the nature of a gift. In such cases a consideration is either an- ticipated, or waived. Should not a presumed dedication be offset by a presumed consideration, in order to avoid the assumption of a parting with property without compensation ? It does not appear that the simple undertaking of the business in question involves its dedication to the public use, so that the public have, without more, the right to facilities at reasonable rates. The state must expressly compel the undertaker to sub- mit to control in the matter of service. Thus, the mere fact that one is engaged in a business which the state may regulate, but has not, does not constrain him to charge equal and reasonable rates to all comers, nor will the granting of a charter for the car- rying on of the business in question evince the intention of the legislature to regulate charges.-' § 19. In Munn v. Illinois,^ it is said that it has been cus- tomary in this country to regulate common carriers, bakers, millers, wharfingers, and innkeepers, and in so doing to fix a maximum rate for services rendered. Common carriers are pre- sumed to serve at reasonable rates such as choose to employ them,^ and have been said to be in the exercise of " a sort of public of&ce," and to have " public duties to perform." * Inn- keepers are obliged by the common law to furnish accommo- dation for travellers without invidious discrimination.^ This ^ Delaware L. & W. R. y. Central 2 94 xj. s. 113. Stock Yard Co., 45 N. J. Eq. 50 ; Ladd 8 Allen v. Sackrider, 37 N. Y. 341. V. Cotton Press Man. Co., 53 Tex. 172; See also Dwight u. Brewster, 1 Pick. Live Stock Comm. Co. v. Live Stock 50. Exch. 143 111.210. See also Weale v. * New Jersey Steam Nav. Co. v. West Middlesex Water Works, 1 Jac. & Merchants' Bank, 6 How. 344. AValk. 358 ; Hoddeadon Gas Co. v. Hasle- ^ Jackson <■. Rogers, 2 Show. 327 ; wood, 6 C. B. N. s. 239 ; O'Neill v. An- People 11. King, 110 N. Y. 418. nett, 27 N. J. L. 290. SECT. 20.J EMINENT DOMAIN AND KINDRED POWERS. 19 obligation has been placed upon the ground that innkeepers are " a sort of public servant, they having ... a kind of privilege of entertaining travellers," ^ and also upon the broader ground that it is to the public interest " that travellers shall not while upon their journey be deprived of necessarj'- food and lodging." ^ But the state has not prescribed rates for board and lodging. It seems that the miller has not been compelled, in this country, to serve all comers at reasoiiable rates, unless he has been given the right to condemn the site or power for his mill.^ It will be seen that thus far the state has compelled service and fixed the price thereof only in businesses the undertakers of which either enjoy a peculiar franchise, or make some special or habitual use of public property. § 20. The plaintiff in Munn v. Illinois,'* does not appear to have received any special privilege from the state. But his property was said to be affected with a public interest,* and therefore subject to regulation. It was also said in the Munn case, that the business of handling grain in transit through Chicago was a monopoly in fact, if not in law, — a virtual monopoly, and hence subject to regulation. By " virtual monopoly," which seems to have been first used in this connection in AUnutt v. Inglis,® we are to understand a monopoly due to circum- stances, as distinguished from one created by law. The judg- ment of Lord EUenborough in AUnutt v. Inglis, which has 1 Rex I). Ivens, 7 C. & P. 213. only licensed by the King, ... or be- 2 Queeu v. Kymer, L. R. 2 Q. B. D. cause there is no other wharf in that 136. port, or it may fall out where a port is ^ See § 424. newly erected ; in that case there cannot • * 94 U. S. 113. be taken arbitrary and excessive duties ^ Hale, De Portibus Maris, 1 Har- for cranage, wharfage, pesage, etc., grave's Tracts, 77. " A man for his own neither can they be enhanced to an im- private advantage may in a port town set moderate rate, but the duties must be up a wharf or crane, and may take what reasonable and moderate though settled rates he and his customers can agree for by the King's license or charter. For cranage, wharfage, housellage, pesage ; now the wharf and crane and other con- fer he doth no more than is lawful for veniences are affected with a public in- any man to do,viz. : makes the most of his terest, and they cease to be juris privati his own. ... If the King or subject have only, as if a man set out a street in a public wharf, unto which all persons new building on his own land, it is now that come to that port must come and no longer bare private interest, but is unlade or lade their goods as for the affected with a public interest." purpose, because they are the wharfs ^ 12 East, 527. 20 THE EMINENT DOMAIN. [CHAP. I. been cited in our courts with some frequency, appears to deal with something like a legal monopoly, for the warehouse upon which was imposed the duty of receiving at reasonable rates was the only one in port licensed to receive certain goods. Lord Hale seems to have in view such a monopoly in the clause in the passage quoted, " because there is no other wharf in the port," although, as Judge Cooley suggests in his commentary on the whole passage, to maintain a wharf is to avail one's self of public property by license express or implied, the soil under navigable waters being in the crown.^ But whatever be the true reading of Lord Hale's opinion, it seems unreasonable to hold that a virtual monopoly, which may well be a favorable business position due wholly to personal enterprise and foresight, can be subjected to regulation of charges because of that position. § 21. The power defined in Munn v. Illinois has been re- affirmed in the case of grain elevators,^ and has been applied to railroads,^ waterworks,* telephones,^ warehouses,® and gasworks.^ It has been suggested, that the power asserted in Munn v. Illinois is sufficiently radical to warrant the state in laying hold upon any private business and regulating it.^ Some excuse for this assertion may be found, perhaps, in dicta unnecessarily broad, and in the stress laid upon the not quite satisfactory fiction of a presumed dedication to public use. But most of the deci- sions which follow the leading case are, in point of fact, either more or less closely directed to the public interest in facilitating the transfer of commodities from the producer to the consumer, 1 Const. Lira. 6th ed. 738. 6 Nash v. Page, 80 Ky. 539. See 2 Budd V. New York, 143 tJ. S. 517 ; Girard Storage Co. u. Southwark Co., s. c. 117 N. y. 1. 105 Pa. 248. s Peik V. Chicago & N. W. R , 94 ^ Zanesville u. Gas Light Co., 47 Ohio U. S. 164 ; Dow V. Beidleman, 125 U. S. St. 1. 680 ; Georgia B. R. & B. Co. u. Smith, » See Stone v. Wisconsin, 94 U. S. 128 U. S. 174. See also Wabash, S. L. 181, dissenting opinion of Justice Field; & P. R. V. Illinois, 105 111. 236. Dicey, Law of the Const. 150; Hare, * Spring Valley Water Works v. Const. Law, 771 ; Address of Hon. Schottler, 110 U. S. 347. George Hoadley, Jour. Social Science, 5 Cent. Union Tel. Co. v. State, 118 No. 28 ; "The Dartmouth College Case Ind. 194; Webster v. Nebraska Tel. and Private Corporations," by William Co., 17 Neb. 126 ; Chesapeake & P. Tel. P. Wells, Esq., 9 Am. Bar Ass'n Rep. Co. u. Baltimore & 0. Tel. Co., 66 Md. 229 ; Bryce, American Commonwealth, 399. i. 267. SECT. 22.] EMINENT DOMAIN AND KINDBED POWBES. 21 or else relate to callings which the state has been long accus- tomed to regulate. Moreover, it is to be noted that in most of the cases governed by Munn v. Illinois,^ the services in question are invariable in character. The manner of their performance is not regulated by the taste or financial ability of the customer. A hundred bushels of wheat and a thousand are handled in the same way. There is but one way of sending a message by tele- phone. Now there is a practical obstacle to the limitation of charges for services which vary according to the taste and means of the customer. For example, if the state should, in the inter- est of travellers, fix a maximum rate for hotel accommodations, a rate which would enable the well-to-do to obtain the accom- modation to which their means entitle them would not afford protection to the poor traveller. There seems to be no present warrant for extending the doctrine of Munn v. Illinois to the common avocations of life, — to assume that the shoemaker and the tailor dedicate their business to the public use. Nor will a dedication to public use be inferred simply from the extent and importance of the business in question.^ Thus, it has been held that the mining of coal is not affected with a public interest.^ § 22. Where the legislature may prescribe rates for service, the reasonableness of the rate is generally a legislative, not a judicial question.* , But as the legislature cannot take private property for public use without compensation, nor deprive one of property without due process of law, it follows that where legis- lative action will effect such a taking or deprivation the courts may intervene. Thus, a statute which imposed such rates for transportation as would reduce the gross income of the corpora- tion below the cost of operation and repair was set aside as an act of spoliation, an attempt to compel the corporation to sub- mit to the use of its property by the public without compensa- tion.^ A statute prescribed that railroad companies should present their schedules of rates to commissioners, who were 1 94 U. S. 113. State V. Loomis, 22 S. W. Eep. 350 (Mo. 2 See Live Stock Comm. Co. v. Live 1893). Stock Exch. 143 111. 210 ; Ladd v. Cotton * Munn v. Illinois, 94 U. S. 1 13. Press Man. Co., 53 Tex. 172. 6 Commonwealth v. Covington » Millett V. People, 117 HI. 294. See Bridge, 21 S. W. Rep. 1042 (Ky. 1893). 22 THE EMINENT DOMAIN. [CHAP. I. empowered to determine the proper rate without giving the companies an opportunity to be heard. The act was declared unconstitutional as an attempt to deprive the companies of prop- erty without due process of law.^ § 23. In reviewing the salient features of the police power over property, there appears this fundamental distinctiou be- tween it and the right of eminent domain. The police power is exerted without compensation. This is so because the existence or unrestrained use of the property affected is positively inimical to the public interest. On the other hand, the relation of the property to the public welfare is, in the case of the eminent domain, usually a matter of indifference. The property is gen- erally taken because of its utility to the state. Without dis- cussing here the dif&cult subject — a taking of property — it may be said broadly, that through the right of eminent domain the state gains by the acquisition of property, through the police power by the destruction or regulation of property.^ But it is sometimes necessary to supplement, or more accu- rately, to supersede the police power by the eminent domain. This must be done when the public health or safety demand the appropriation of property neither essentially harmful nor worth- less.^ Hence, a dam, lawfully erected, cannot be abated by the police power because it causes a nuisance, but must be con- demned.* If it should be deemed advisable to kill healthy ani- mals within a district overrun bj'' pleuro-pneumonia in order to surely prevent the spread of the disease, their value should be paid.^ Taxation. § 24. There is a marked distinction between ordinary taxa- tion and the right of eminent domain.® B}' each power a forced 1 Chicago, M. & S. P. R. v. Minne- ^ See Miller v. Horton, 152 Mass. sota, 134 U. S. 418. 540. 2 See Philadelphia v. Scott, 81 Pa. ^ People v. Brooklyn, 4 N. Y. 419 ; 80. Genet v. Brooklyn, 99 N. Y. 306 ; Booth 3 Cheesebrough's Case, 78N. Y. 232. v. Woodbury, 32 Conn. 118; Emery ;;. See §§ 426-429. San Francisco, 28 Cal. 345 ; Sharpless « See Miller v. Craig, 11 N. J. Eq. v. Philadelphia, 21 Pa. 147 ; Oilman u. 175. Compare People v. Board of Sheboygan, 2 Black, 510. Health, 140 N. Y. 1. SECT. 25.] EMINENT DOiJAlN AND KINDKED POWERS. 23 contribution is exacted for the public good, but taxation exacts the money which is supposed to represent the contributor's share of the public expense, while the eminent domain exacts specific property for specific uses. The contribution is in each case offset by compensation, but the compensation due to him whose property is taxed is usually paid in the preservation of social order, or in benefits more or less widely diffused ; the compensation due upon the exercise of the eminent domain is usually paid in cash. Sometimes, however, a statute pretending to impose a tax is set aside on the ground that its enforcement would violate the principle of the eminent domain, by taking property for private use, or for public use without compensa- tion.^ The extension of municipal boundaries, with the result of a heavier incidence of taxation upon the property embraced, has been sometimes attacked on the ground that there is a tak- ing of property without compensation. The courts have usually refused to restrain the legislative discretion in such case ; ^ but there may be cases, perhaps, where the extension is so obviously desired for the sake of revenue without regard to benefit, that it should be restrained.^ When the avails of a tax levy are plainly intended to benefit a private enterprise the statute will be set aside as attempting to take property for private use ; * and, for a like reason, a statute was set aside which pledged the credit of a municipality to aid in rebuilding houses destroyed by fire.^ In Sears v. Cottrell,^ Judge Campbell urged, in a dissenting opinion, that under a statute authorizing distress and sale of goods for payment of taxes, the property of a mortgagor in pos- session of the mortgagee could not be sold without taking prop- erty for private use, — the goods of A to pay the debt of B. This point was raised but dismissed in Hersee v. Porter.' § 25. Where a local improvement is undertaken, a street for example, the cost in whole or in part is frequently de- 1 Livingstone v. Padncah, 80 Ky. 656. mer v. Village of Douglas, 64 N. Y. 91 ; 2 Morris v. Waco, 57 Tex. 635 ; Gib- Allen v. Jay, 60 Me. 124 ; Scuffletown oney v. Cape Girardeau, 58 Mo. 141. Fence Co. v. McAllister, 12 Bush, 312 ; 8 See Cheaney v. Hooser, 9 B. Hon. Coates v. Campbell, 37 Minn. 498. 330; Smith v. Sherry, 50 Wis. 210. ^ Lowell v. Boston, 111 Mass. 454. 4 Loan Ass'n v. Topeka, 20 Wall. 655; « 5 Mich. 251. Cole V. La Grange, 113 U. S. 1 ; Weis- ' 100 N. Y. 403. 24 THE EMINENT DOMAIN. [CHAP. I. frayed by an assessment on property benefited. Such assess- ments have been contested upon the ground that they effect a taking of property for public use without compensation. If they were to be judged by the principles of the eminent domain they might often fail of justification, for the compensa- tion due on condemnation is money, or at least such money com- pensation as may be assessed after considering benefits to the tract affected,' but the compensation for a special assessment is wholly in benefits, which may or may not relate to the land con- demned. The prevailing opinion is that such an assessment is a tax of a peculiar nature, a local imposition in aid of a work of such special advantage to particular property, as to justify the burdening of that property with so much of the cost as will offset the advantage.^ But if it appears that a special assess- ment is in excess of the benefits conferred by the improvement, it may be set aside as a taking of property without compensa- tion, or for the direct benefit of those persons who would be relieved from the payment of their just proportion by the over- weighting of the property in question.* It has been said that the only theory upon which special assessments can be based, is " that if local improvements can be conveniently paid for in this way, in the long run the general public may be charged with the general result with approximate equality." * Regulation of Private Property. § 26. Other manifestations of sovereign power over property are expressed in statutes which change rules in respect to the acquisition, tenure, and devolution of private property, or impose burdens on its ownership in the interest of other property. Such statutes are in one sense private, in that they directly affect pri- vate interests only, but they are in the highest sense public, as 1 See § 225. s See Stuart v. Palmer, 74 N. Y. 183 ; - People V. Brooklyn, 4 N. Y. 419 ; Lee v. Ruggles, 62 111. 427 ; Tide "Water Washington Ave., 69 Pa. 352; Hessler Co. v. Coster, 18 N. J. Eq. 518; Barnes V. Drainage Comm., 53 111. 105 ; Scoville v. Dyer, 56 Vt. 469. Compare Kingman, V. Cleveland, 1 Ohio St. 126; Nichols v. Petitioner, 153 Mass. 566. Bridgeport, 23 Conn. 189; Howell v. * Detroit y. Daly, 68 Mich. 503. Essex Road B'd, 32 N. J. Eq. 672; Haydeu «. Atlanta, 70 Ga. 817. SECT. 27.] EMINENT DOMAIN AND KINDRED POWEES. 25 they express the interest of the body of the people in laws which are intended to secure uniform and just protection to each mem- ber. Some of these statutes have been assailed as effecting a taking of the property of one person in order to give it to another. If this criticism is well founded the statute is invalid. The state may transfer the property of A to itself or its agents for the public use, but the state cannot transfer it to B,^ or give him dominion over it.^ It follows that while common law and statutory rules which relate to property may be changed by the legislature, the new statute is inoperative so far as vested inter- ests are concerned.^ Thus where there is an estate in vested remainder a statute permitting the possessor of the supporting estate to sell the land without the consent of the remainder-man will not be sustained.* If dower be assigned, the legislature can- not empower the owner of the fee to take the dower interest, and substitute a bond conditioned for the payment of its yearly value.^ It seems that a statute authorizing the administration of the property of one absent and unheard of for three years as if he were dead, and enabling creditors to make iinal settlement with the administrators, may be void as to a living person.® Estates which have not vested may be dealt with at pleasure. Thus, the incident of survivorship in existing estates may be abolished, as it is a mere contingency.' But it has been said that a contingent estate in expectancy cannot be extinguished without consent.^ Statutes permitting the partition of estates in common do not divest property. They simply allow it to be apportioned.* § 27. In most of the cases noted under this head, the statutes are evidently directed to private ends, but the same regard for pri- -1 See Van Home's Lessee v. Dor- also Schafer v. Euen, 54 Pa. 304 ; Max- rance, 2 Dall. 304 ; Wilkinson v. Leland, well v. Goetschius, 40 N. J. L. 383. 2 Pet. 627 ; Quiraby v. Hazen, 54 Vt. « Talbot v. Talbot, 14 R. I. 57. 132; Varick v. Smith, 5 Paige, 137; 6 Lavin w. Savings Bank, 1 8 Blatch. I . Helm w. Webster, 85111. 116. ' Bambaugh o. Bambaugh, 11 S. & ^ See Morse v. Stocker, 1 AUen, 150. R. 191. See also Burghardt u. Turner, 8 Burke v. Savings Bank, 12 R. I. 12 Pick. 534. 513; Stratton !>. Morris, 89 Tenn. 497 ; ^ Brevoort v. Grace, 53 N. Y. 245. Culbertson v. Coleman, 47 Wis. 193. See Bass v. Roanoke Nav. Co., Ill N. C. * Powers V. Bergen, 6 N. Y. 358; 439. Ervine's Appeal, 16 Pa. 256; Sohier d. 9 Richardson w. Munson, 23 Conn. 94. Mass. Gen. Hospital, 3 Cush. 483. See 26 THE EMINENT DOMAIN. [CHAP. I. vate rights is maintained where the state aims at a vested right under cover of an apparent public interest. In Palairet's Ap- peal,i the legislature declared that the existence of irredeemable ground rents was against the policy of the state, which was to encourage the free transfer of land, and that such rents should be extinguished with due regard for private rights. The court held that the act was unconstitutional, as it would forcibly convert a vested estate into its money equivalent for a private purpose. Statutes called betterment acts, which declare that an occu- pant of land who has made improvements thereon in good faith, cannot be ejected until he has been paid the excess in value of the improvements over the value of the use and occupation, change the rule of the common law, but do not divest any right of property.^ But it has been said that betterments cannot be considered when possession has been taken under defective eminent domain proceedings, for the expropriator is bound to see that the proceedings are regular.^ Land may be so situated that its full utility can be obtained only by improvements which necessarily benefit the land adjoin- ing. The state has, in some cases, recognized the justice of appor- tioning the cost of such improvements between the owners of the tracts in question. Statutes apportioning the cost of party walls and fences are the most common examples of such legislation, and it has been held that one may be authorized to set one half of a party wall upon his neighbor's land.^ A statute has been sustained, which provides that one who by draining his own land necessarily rids mineral lands of water so that they become workable, shall be entitled to a certain percentage of the ore mined.* 1 Griswold v. Bragg, 48 Conn. 577 ; Hunt v. Ambruster, 17 N". J. Eq. 208. Stump V. Hurnback, 94 Mo. 26 ; Ross v. But see Wilkins v. Jewett, 139 Mass. 29 ; Irving, 14 111. 171. Traute v. White, 46 N. J. Eq. 437. 2 Harris v. Marblehead, 10 Gray, 40. * Ahern v. Dubuque Min. Co., 48 2 Evans v. Jayne, 23 Pa. 34 ; Corco- Iowa, 140. ran v. Nailor, 6 Mackey (D. C.) 580 ; SECT. 28.] JtTEXSDlCTION. 27 CHAPTER II. JURISDICTION. § 28. The right of eminent domain can be exercised only within the jurisdictional limits of the state. These limits are usually territorial. They may be defined by subjects, however. This condition may exist ia the United States, where property in the States is subject to a dual sovereignty, local and federal, each supreme within its sphere, and each having an eminent domain commensurate with its necessities.-' It is, of course, inconceivable that a sovereign should con- template the direct expropriation of property within a foreign state. Such action would be clearly unwarrantable.^ But a question of practical importance is presented, where the con- struction of public works in one state causes a conse- quential injury within the actionable degree to property in another. It has been urged indeed that the status of the several States of the Union is such, that a servitude cannot exist in one for the benefit of property in another ; for example, that a lower proprietor on a river cannot object to the diversion of its waters in another State. This assertion is without foun- dation.^ It appears that a State cannot authorize such a use of an interstate river as will destroy a fishery,* or ob- struct navigation,^ in another State. Further, as a State must recognize extra-territorial servitudes, so it cannot create such a servitude in the interests of its own works. A State cannot 1 See Trombley v. Humphrey, 23 ^ Manville Co. v. Worcester, 138 Mich. 471. Mass. 89. See also Foot v. Edwards, 3 2 See Crosby v. Hanover, 36 N. H. Blatch. 310; Thayer v. Brooks, 17 Ohio, 404 ; Farnum v. Blackstone Canal Co., 489. 1 Sumn. 46 ; Bank of Augusta t). Earle, * See Holyoke Co. v. Lyman, 15 13 Pet. 519 ; State v. Boston, C. & M. R. WaU. 500. 25Vt.433; Saunders «. Bluefield Water s gee Palmer v. Cuyahoga Co., 3 Works, 58 Fed. Eep. 133. McLean, 226. 28 JURISDICTION. [CHAP. II. injuriously affect property beyond its borders, any more than it can expropriate it. Hence, where land is flooded by reason of the construction of works in another State, the statutes of the latter cannot be pleaded in justification.^ In Eundle v. Dela- ware & Earitan Canal Co.^ the plaintiff claimed damages on account of an injury to his mill in Pennsylvania caused by the diversion of the waters of the Delaware by the defendant, a New Jersey corporation. The court waived the question as to the right of either of these States to divert the water of an interstate river without the consent of the other, and decided that, as the plaintiff's license to use the water was subject, according to the law of Pennsylvania, to a public right to divert it, he was bound by that law. The liability for injuries beyond the jurisdiction being de- fined, the question remains as to the method and extent of redress. Now it is clear that the promoters of an undertaking which causes damage in another State cannot have compensation assessed under the laws of the latter.^ It seems equally clear, that there is no injustice in permitting the person injured to apply for compensation under the foreign statute authorizing the work.* But he cannot be compelled to recognize the perma- nence of the injury by applying for statutory compensation, but may have his action in tort,^ or, if the circumstances warrant, an injunction.^ § 29. The eminent domain inheres in the state for domestic uses only. It cannot be exerted to further the public iises of a foreign state.'' It should be noted that this proposition does not cover the case of a foreign corporation doing business within the state,^ nor that of a domestic corporation the stock of which is 1 tJnited States v. Ames, 1 Wood. & * See Foot v. Edwards, 3 Blatch. 310. M. 76 ; Eutz v. St. Louis, 7 Fed. Rep. " Stillman v. White Rock Man. Co., 438; Holyoke Water Power Co. y. Conn. 3 Wood. & M. 539; Holyoke Water River Co., 52 Conn. 570. Power Co. y. Conn. River Co., 52 Conn. 2 14 How. 80. 570; s. c. 22 Blatch. 131 ; Farnum v. 8 Salisbury Mills v. Forsaith, 57 Blackstone Canal Co., 1 Sumn. 46. See N. H. 124; Worcester v. Gt. Falls also Burk y. Simonson, 104 Ind. 173. Man. Co. 39 Me. 246. ' Kohl y. United States, 91 U.S. 367. * Banigan y. Worcester, 30 Fed. Rep. 8 See § 106. 392. SECT. 30.] EMINENT DOMAIN OF THE UNITED STATES. 29 held abroad.^ Nor is it generally held that a federal use is so for- eign as to prevent a State from furthering it by its right of emi- nent domain.^ Purther, there is authority for the statement that an undertaking may be beyond the borders of a State, and yet be of such domestic concern as to warrant the exercise of the right of eminent domain in its behalf. Thus, the State of New York granted to the Morris Canal Company, a corporation operating a canal wholly within the State of New Jersey, the power to con- demn a water supply. The grant was upheld on the ground that the canal was a public benefit to the former State, as it afforded a waterway for the transportation of coal from Pennsylvania to the port of New York.'^ In Farnum v. Blackstone Canal Com- pany,* the defendants, whose canal ran through Rhode Island and Massachusetts, built a dam within the former State which caused the flooding of the plaintiff's land in the latter. The company admitted that the Ehode Island statute under which they acted could not confer the right to flood land in Massachusetts, but asserted that the corporations authorized to build the canal to the borders of their respective States, were so united as to form a single corporation. Justice Story found no merger of corporate identities, but simply a union of interests and stocks, and, without expressing an opinion as to the rights of a single corpo- ration in such case, granted an injunction. The point raised in this case suggests the question, whether an undertaking considered as a whole may not be a public use common to two States, so that joint and interdependent grants of the eminent domain may cure deficiencies incident to independent grants. EMINENT DOMAIN OF THE UNITED STATES. § 30. It is said that " lands held by private owners every- where within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it." ^ 1 Amoskeag Co. v. Worcester, 60 * 1 Sumn. 46. N. H. 522. 5 Cherokee Nation v. Kansas R., 135 2 See § 33. U. S. 641. 8 Townsend's Case, 39 N. T. 171. 30 JUKISDICTION. [chap. II. The United States have the right of eminent domain over the District of Columbia, the Territories, and such land within the States as have been acquired through cession. They hold it by- virtue of sovereignty, without regard to their title to the land. Thus, when it was urged that the United States could not exer- cise the right of eminent domain within the District of Columbia, because by the Maryland Act of Cession they were restrained from affecting private rights in the soil, the court declared that there was no assertion of a right of property in the soil, but a sovereign power over it.^ The eminent domain of the United States over the District and Territories is, perhaps, Federal in theory, but not so in fact, for it may be used to further all the uses which are within the competency of the local sovereignty of the States. The powers of the territorial governments are derived immediately from the United States, whose local repre- sentatives they are.^ The eminent domain is among these powers.^ Congress can authorize the condemnation of land within an Indian Reservation for an interstate railroad.* § 31. Eminent Domain over Property -within a State. — The power of the United States to exercise their right of eminent domain within the States for federal purposes, seems to have been questioned in an early case,^ but has been since distinctly affirmed.^ It seems that land within a State which has been condemned by the United States is not thereupon withdrawn from the jurisdiction of the local law.'' Property within a State has been condemned for military purposes,^ post-offices,^ coast survey purposes and liglit-houses,-^" a water supply ,i' and for navigation works.-'^ 1 Chesapeake & 0. Canal Co. w. ^ Kohl v. United States, 91 U. S. ■Union Bank, 4 Cranch, C. C. 75. See 367 ; Cherokee Nation t'. Kansas R., 135 also Shoemaker v. United States, 147 U. S. 641 ; Hebbard's Case,4 DiU. C. C. U. S. 282. 380 ; Stockton v. Baltimore & N. Y. R., 2 National Bank v. County of Yank- 32 Fed. Rep. 9. ton, 101 U. S. 129. ■? Barrett v. Palmer, 135 N. Y. 336. 3 S-wan V. -Williams, 2 Mich. 427 ; " United States u. Chicago, 7 How. Newcomb v. Smith, 1 Chand. ("Wis.) 71 ; 185. Oury V. Goodwin, 26 Pac. Rep. (Ariz.) 8 Bu^t v. Ins. Co., 106 Mass. 356. 376. See Pratt v. Brown, 3 -Wis. 603. w Orr v. Quimby, 54 N. H. 590 ; Gil- * Cherokee Nation v. Kansas R., 135 mer v. Lime Point, 18 Cal 229. U- S. 641. 11 Reddall v. Bryan, 14 Md. 444. ^ Pollard's Lessee v. Hagan, 3 How. 12 See § 421. 212. SECT. 32.] EMINENT DOMAIN OF THE UNITED STATES. 31 § 32. The power of Congress to regulate interstate com- merce has been frequently construed in the courts, but not so as to definitely place undertakings which serve such commerce within the list of public uses calling for the federal eminent do- main. N"ot until recently has the question been decided, whether Congress could authorize an interstate bridge despite the pro- test of a State. In Stockton v. Baltimore and New York Eail- road Company,^ the State of New Jersey formally asserted the right to prevent the erection of a bridge between New Jersey and New York, authorized by Congress. Although it was de- cided that the federal eminent domain was not involved, as no property was taken,^ interstate bridges were placed on the list of works of federal purpose. The reasoning by which Justice Bradley arrived at this conclusion, appears to lead to the further one, which, indeed, this eminent jurist has suggested in another case,^ that the United States may exercise their eminent domain for an interstate railroad.* This question has not been directly presented. The federal legislation behind the trans-continental lines perhaps asserts an ample authority, but is by no means a clear cut manifestation of the federal eminent domain, as the States through which the lines passed conferred all necessary powers for the execution of the works within their borders.^ Now the circumstance which necessitated the granting of the power to regulate commerce, was the disposition of the States to discriminate against each other in the matter of commerce, and to hamper the free course of commodities through the country. For many years and in many ways the courts have effectuated this power. They have maintained the freedom of waterways,^ and have nullified laws imposing a tax on the agencies of inter- state commerce,^ or prohibiting the importation and sale, or the exportation of any commodity recognized by the United States as a legitimate subject of commerce.^ 1 32 Fed. Rep. 9. 6 Gibbons v. Ogden, 9 Wheat, 1 ; 2 See § 61. Wheeling Bridge Co., 1.3 How. 518. = California o. Cent. Pacific R., 127 ' Brown i'. Maryland, 12 Wheat. 41 9; U. S. 1. Gloucester Ferry Co. v. Pennsylvania, * See also St. Louis v. West. Union 114 U. S. 196. Tel. Co., 148 U. S. 92. 8 Leisy v. Hardin, 135 U. S. 100 (The 5 Pacific R. Removal Cases, 115 U. S. Original Package Case). 1. See Santa Clara County v. South. Pacific R., 118 U. S. 394. 32 JUEISDICTION. [chap. II. In the decisions cited, and in many others, there is simply the assertion of a power to prevent a State from impairing the freedom of commerce. It is evident, that the assertion of federal power to build a railroad through States introduces a new question, — Does the right to regulate commerce include the power to create undertakings whereby commerce may be facilitated ? The question whether a State may grant the eminent domain to corporations distributing a commodity, such as natural gas, within its limits, and refuse the power to corporations desiring to export the commodity, without unlawfully hampering inter- state commerce, has been mooted but not decided.^ § 33. It has been held, that when the United States desire to condemn property within a State for federal purposes, the State's eminent domain may be exerted in their behalf.^ This course has been justified on the theory that the State in exercising its eminent domain for federal purposes, is ministering to a public use in the benefits of which its citizens share.^ In other States this method has been condemned, as a taking for the use of another sovereign.* The latter view has been approved in Kohl V. The United States,^ where it is said, that the eminent domain is " a right belonging to sovereignty to take property for its own public uses, and not for those of another. Beyond this there is no necessity, which is alone the foundation of the right.'' In theory, the argument is all with the dictum in Kohl v. The United States. Practically, either course may be followed with- out prejudice. Since the decision in the Kohl case, the United States have availed themselves of the State's eminent domain in condemning land for works in aid of navigation,^ and the Supreme Court have decided that they may use State tribunals for the assessment of compensation.'^ 1 State V. Indiana, &c. Oil Co., 120 * Trombley v. Humphrey, 23 Mich. Ind. 575. 471 ; Darlington v. United States, 82 2 Burt V. Ins. Co., 106 Mass. 356 ; Pa. 382. See Matter of League Island, United States o. Dumplin Island, 1 1 Brewst. 524. Barb. 24 ; Orr v. Quimby, 54 N. H. 590. ^ gi u. S. 367. 8 Petition of the United States, 96 ^ Petition of United States, 96 N. T. N. Y. 227 ; Eeddall a. Bryan, 14 Md. 227. 444. See also Gilmer v. Lime Point, 18 ' United States v. Jones, 109 V. S. Cal. 229. 513. SECT. 36.] EMINENT DOMAIN OF THE STATES. 83 A statute which provides that the federal eminent domain shall be exercised within a State according to the local law, does not oust the jurisdiction of the federal courts, but simply indicates the procedure which they shall adopt.-' THE EMINENT DOMAIN OF THE STATES. § 34. The eminent domain is in each State by virtue of its statehood, whether that statehood be self-created, guaranteed by treaty, ■ or confirmed by federal authority. New York, Texas, and Illinois hold the power in equal measure, and by the .same tenure.^ A statute allowing the condemnation of land for mining tramways contravened the declaration of the State Constitution as to publicity of use. It was urged that the statute was valid on the ground that the lawfulness of such use under the Territorial government affected land with an easement under federal law which the State courts could not disregard. The court asserted the supremacy of the State Con- stitution, and held that the statute was invalid.^ § 35. Effect of Federal Constitution upon State Eminent Domain. — In several early State decisions, the eminent domain clause in the Fifth Amendment seems to have been considered a restraint on State action.* This notion was dissipated, how- ever, in Barron v. Baltimore,^ in which the clause was declared to refer to federal action only. ISTor does- the prohibition laid upon the States with regard to laws impairing the obligation of contracts, afford a basis for federal jurisdiction in matters of State eminent domain.^ § 36. The Fourteenth Amendment contains explicit prohibi- tions upon State action. Among other prohibitions is this : •' Nor shall any State deprive any person of . . . property with- out due process of law." Does this clause confer federal juris- 1 United States v. Engeman, 45 Fed. ^ People i;. District Court, 1 1 Col. 147. Rep. 546. See Secretary of the Trea- * See Scudder v. Trenton Delaware snry, 45 Fed. Kep. 396. Falls Co., 1 N. J. Eq. 694. 2 See Pollard's Lessee v. Hagan, 3 * 7 pet. 243. How. 212; Huse v. Glover, 119 U. S. 6 Mills v. St. Clair County, 8 How. 543; Illinois Cent. R. v. Illinois, 146 569; Garrison v. New York, 21 Wall- U. S. 387. 196. 8 34 JURISDICTION. [chap. II. diction in case of a wrongful expropriation under State laws ? If so, what are its limits ? In Davidson v. New Orleans,^ Jus- tice Miller says that the clause does not refer to the eminent domain.2 Justice Biadley, in his opinion in the same cause, takes the opposite view, which has received the approval of Justice Matthews.^ Now the clause insisting upon " due pro- cess of law" is found in the Federal, and most of the State Constitutions, standing with an eminent domain clause. Ap- parently these clauses refer to different things, and the fact that the latter was not incorporated in the Fourteenth Amend- ment led Justice Miller to express the opinion mentioned. Still, as one whose property is taken in defiance of the princi- ples of the eminent domain seems to be depiived of it without due process of law, unless " due process '' is satisfied by a cer- tain adherence to form, witliout an adjudication of substantial rights, the question of federal jurisdiction is worth considering, though its positive definition is ' not warranted in the present state of the authorities. It is settled that there is due process of law in proceedings to condemn, although the property owner cannot demand a jury,* nor appeal from the award of the tri- bunal.^ But the owner is entitled to notice of proceedings to condemn.^. It has been decided, that the question of the suffi- ciency of notice in assessment cases is appealable from the State to the federal courts/ and it may be that the same question would be entertained in a case of condemnation. Further, it has been intimated that the Supreme Court will uphold the right to have compensation assessed by an, impartial tribunal.^ § 37. The obligations peculiar to the eminent domain are that property shall remain in the hands of its owner unless it is wanted for public use, and that, in that event, compensation shall be paid. These obligations obtain in every State, yet are by no 1 96 TJ. S. 97. Rep. 385 ; Mt. Hope Cemetery v. Bos- 2 See also Eldridge v. Binghamton, ton, 158 Mass. 509. 120 N. Y. 309 ; Wilson V. Baltimore & * See § 316. P. E., 5 Del. Ch. 524. 6 gee § 356. 3 Kentucky Railroad TaxCa-ies, 115 ^ See § 333-336. U. S. 321. See also Head v. Amoskeag ' Spencer v. Merchant, 125 U. S. 345. Co., 113 U. S. 9 ; Cole v. La Grange, 113 » See Davidson v. New Orleans, 96 U. S. 1 ; Yesler v. Harbor Line Coram. TJ. S 97 ; Head v. Amoskeag Co., 113 146 U. S. 646 ; Scott v. Toledo, 36 Fed. U. S. 9. SECT. 37.] EMINENT DOMAIN OF THE STATES. 35 means construed uniformly. A use deemed public in one juris- diction may be private in another. According to the principles of assessment in vogue in one State, a person whose property is condemned may receive a greater pecuniary indemnity than is given to one in similar case in another State. The rule has been laid down that when federal jurisdiction attaches because a right guaranteed by the Constitution is drawn in question, the Supreme Court interpret the law untrammelled by State deci- sions.^ This rule seems to support the dictum in Olcott v. Super- visors,^ that publicity of use in the matter of State taxation is a federal question, determinable, like a question of commercial law, without regard to local construction.^ ■ The further question remains. Assuming that an emi- nent domain case is brought before a federal court, by what standard should the points be determined whether or not there is a taking of property ? In Pumpelly v. Green Bay Co.,* the flooding of land was said to be a taking. But the court said, with reference to the conflicting decisions as to the liability of public agents for consequential injuries, " When in the exercise of our duties here we shall be called upon to construe other State Constitutions we shall not be unmindful of the weight due to the decisions of those States.^ As far as the definition of " property " is concerned there is little difficulty. Each State is the maker and interpreter of its own rules concerning prop- erty. The federal courts must follow the State courts whenever they deal explicitly with the subject in question, no matter how peculiar the local rule may be,® and must conform to reversals of previous State decisions.'^ The most notable examples of obedience to this rule are the adjudications upon riparian rights, wherein the federal courts recognize a right of property in one State, and deny it in another.^ 1 Ohio Life & Trust Co. a. Debolt, ^ Rundle v. Delaware & E. Canal 16 How. 4.32. Co., 14 How. 80. 2 16 Wall. 678. 7 Green v. Neal, 6 Pet. 291 ; Leffing- ^ Compare People v. Batchellor, 53 well v. Warner, 2 Black 599. See N. Y. 128. Olcott V. Supervi.sor.s, 16 Wall. 678. * 13 Wall. 166. 8 See Yates u: Milwaukee, 10 AYall. ^ See Osborne v. Missouri Pac. R., 497 ; Barney u. Keokuk, 94 U. S. 147 U. S. 248 ; Hart v. Levee Comm., 54 324. Ped. Rep. 559. Compare Hollingsworth V. Parish of Tensas, 17 Fed. Rep. 109. 36 JURISDICTION. [chap. II. § 38. Condemnation proceedings are " suits at law " within the purview of the clause of the Federal Constitution authorizing the removal of causes from State to federal courts.^ In Boom Company v. Patterson,^ it was urged that the removal of a pro- ceeding to condemn from a State to a federal court would be an unwarrantable interference with State eminent domain. The Supreme Court decided, however, that such a proceeding was essentially a civil suit, and therefore could be removed without invading State rights. A corporation having the right to remove cases to the federal courts cannot be compelled to surrender it in order to do business within a State, but, it seems, that if it voluntarily surrenders the right for good consideration a contract is created.^ It has been held that where a foreign corporation is forbidden to exercise the eminent domain within a State, its attempt to do so cannot be considered as a suit removable to the federal courts.* Where a federal court acquires jurisdiction it may enjoin condemnation in an appropriate case.^ Although the effect of such action may be the stoppage of a work authorized by a State legislature, there is not an interference with State rights, at least where the court simply administers the local law.^ ^ Union Pac. E. v. City of Kansas, Neb. 242. See also Baltimore & 0. R. 115 U. S. 1 ; Searl u. School Dist., 124 v. Pittsburgh.W. & K. R., 17 W.Va. 812. U. S. 197 ; Banigan v. Worcester, 30 ^ North. Pac. R. v. Burlington & M. Ted. Rep. 392 ; Mt. Washington R. v. R., 4 Ped. Rep. 298. Coe, 50 Fed. Rep. 637. See Seattle & •> See Bonaparte v. Camden & A. R., M. R. V. State, 52 Fed. Rep. 594. Bald. C. C. 205. Compare Hollings- 2 98 U. S. 403. worth v. Parish of Tensas, 17 Fed. Rep. ' Union Pac. R. u. Leavenworth, N. 109, with Hart v. Levee Comm. 54 Fed. & S. R., 29 Fed. Rep. 728. Rep. 559. * Trester v. Missouri Pac. E., 23 SECT. 39.] THE PUBLIC TJSH. 37 CHAPTER III. THE PUBLIC USE. § 39. The usual constitutional declaration of the right of eminent domain is that private property shall not be taken for public " use, " or " purpose," without compensation. It has been suggested that this declaration does not protect private property from being taken for private use without compensa- tion.i or with compensation.^ This construction is not approved. The words are construed to be words of limitation.^ In some States the main declaration is supplemented by a provision that private property may be condemned for certain uses which are seldom or never defined to be public* The legality of these private purposes cannot be gainsaid, as the people are competent to enact any law which does not violate the Constitution of the United States, or vested rights within their own State. But we do not approve the opinion,^ that the existence of these provisions confirms the view that, on prin- ciple, the eminent domain may be exerted to promote private uses. The definitions of the power which are approved both here and abroad, do not appear to justify this view. In our 1 Harvey v. Thomas, 10 Watts, 63. may be provided bylaw." Constitution ^ See Lewis, Eminent Domain, pre- of Missouri, ii. 20. See also Illinois, iv. face. 31. " Private roads may be opened in ^ Kane u. Baltimore, 15 Md. 240 ; the manner to be prescribed by law." Sharpless v. Philadelphia, 21 Pa. 147 ; New York, i. 7. See also Georgia, i. 3 ; Robinson v. Swops, 12 Bush, 21 ; Con- Michigan, xviii. 14 ; South Carolina, cord E. V. Greely, 17 N. H. 47 ; Coster i. 23. Land may be taken for "private V. Tide Water Co., 18 N. J. Eq. 54 ; ways of necessity . . . reservoirs, drains, Wharton's Note, 1 Am. L. Eeg. n. s. 23. flumes, or ditches on or across the land * " No private property can be taken of others for agricultural, mining, mil- for private use with or without compen- ling, domestic, or sanitary purposes." sation, unless by consent of the owner, Colorado, ii. 14. See also Idaho, i. 14 ; except for private ways of necessity, Montana, iii. 15; Washington, i. 16; and except for drains and ditches across Wyoming, i. 33. the lands of others for agricultural and * Lewis, Eminent Domain, § 1, note, sanitary purposes in such manner as 38 THE rUBLIC USB. [CHAP. III. opiuion, the provisions in question evince the intention of the people to supplement the eminent domain because of its inade- quacy to compass uses which they deem expedient. The uses themselves may be accurately described as constitutional uses. But whatever the scope of the eminent domain may be in theory, the courts of this country unite in declaring that private property shall not be taken except for public use.^ There is no accepted formula by which publicity of use may be tested, but the volume of cases should afford sufficient data for an approximate definition. The following classification of public uses may seem to be somewhat arbitrary in certain cases, but what has appeared to be the most marked characteristic of an undertaking has been taken as the guide. § 40. Federal and State Purposes. — The purposes for which the United States may condemn property in order to execute their federal powers are sufficiently noted elsewhere.^ The purposes for which the United States, as a territorial sov- ereign, and the States may condemn, are, perhaps in theory, the same as those for which they grant the power to political or private agents. But in fact, the purposes which a government deems it expedient to promote by its own exertions are com- paratively few. The government may condemn land for public buildings,^ a military camp/ and a state reservation or park,^ and may deem it expedient to undertake itself a work usually prosecuted by an agent, such as a system of sewerage.^ It has been held, that the state cannot exercise the eminent domain to compass the purpose of taxation, — that it cannot take land for a canal, in order to derive a revenue from the sale of the water.'' 1 Talbot V. Hudson, 16 Gray, 417 Concord R. v. Greely, 17 N. H. 47 Sharpless v. Philadelphia, 21 Pa. 147 Gray, 359 ; Military Parade Ground, 60 N. y. 319. ^ See State Eeservation at Niagara, Scudder v. Trenton Del. Falls Co., 1 32 Hun, 537. N. J. Eq. 694. See Plum Creek Road, « See Kingman, Petitioner, 153 110 Pa. 544. Mass. 566. 2 See §§ 31, 32. 7 Buckingham v. Smith, 10 Ohio, 3 Burt V. Ins. Co., 106 Mass. 356. 288. See also Cooper v. "Williams, 5 * Morris o. Comptroller, 54 N. J. L. Ohio, 391. 268. See also Brigham o. Edmands, 7 SECT. 42.] THE PUBLIC USB. 39 § 41. Local Purposes. — Property may be condemned for a public park,^ an almshouse,^ a market,^ a sehoolhouse,* a public bath,^ and a public urinal.^ There are undertakings which the state may promote through political agencies, but which it frequently permits private cor- porations to promote for the public use for a reasonable profit on their outlay. Among these are cemeteries/ gas-works,^ and water-works.^ § 42. Highways. — The laying out of highways by the eminent domain is the earliest and most widely diffused manifestation of the power. Indeed, it was customary at one time to lay them over unimproved lands without compensation.^'' It is unneces- sary to cite cases in support of the general proposition that a highway is a public use. It appears to be essential that it should connect with another highway. ^^ But it is not neces- sary that it should be a thoroughfare. It may be a cid de sac, opening on a highway at one end only.^ The terminus lias no bearing on the publicity of a way. It may be a river/^ a state or township line/* a church/^ or private property.^" An alley may be a public road.^^ The condemnation of land for roads has been sometimes resisted on the ground that they are intended for the accom- ^ Shoemaker v. United States, 147 Hoesen, 87 Mich. 533 ; Evergreen U. S. 282 ; Holt V. Somerville, 127 Cemetery Co. v. Beecher, 53 Couu. Mass. 408; Board of Park Comm. v. 551. Armstrong, 43 N. Y. 234 See § 173. 8 Bloomfield, &c. Gas Light Co. .,. 2 Heyward y.NewYork,7N. Y. 314. Richardson, 63 Barb. 437. See also 8 Heukel v. Detroit, 49 Mich. 249; Pittsburgh's Appeal, 123 Pa. 374; Provi- Cooper's Case, 28 Hun, 515. See also dence Gas Co. v. Thurber, 2 R. I. 15. Spaulding v. Lowell, 23 Pick. 71. 9 See § 423. * Williams v. School District, 33 Vt. i" See § 5, 226. 271 ; Long v. Fuller, 68 Pa. 170; Reed " See Waddell's Appeal, 84 -Pa. 90 ; V. Acton, 117 Mass. 384; Board of Niagara Falls &.W. R., 108 N. Y. 375; Education u. Hackman, 48 Mo. 243. Moore v. Roberts, 64 Wis. 538. See also Searl v. School Dist., 124 U. S. 12 people i-. Kingman, 24 N. Y. 559 ; 197. Schatz V. Pfeil, 56 Wis. 429 ; Peckham 6 Poillon V. Brooklyn, 101 N. Y. 132. v. Lebanon, 39 Conn. 231. « Badger v. Boston, 130 Mass. 170. is Moore v. Auge, 125 Ind. 562. '' Edgecumbe v. Burlington, 46 Vt. w Rince v. Rindge, 53 N. H. 530. 218 , Balch v. County Comm., 103 Mass. l» West Pikeland Road, 63 Pa. 471. 106 ; Henry y. Trustees, 48 Ohio St 671. w Goodwin v. Wethersfield, 43 Conn. See also Cemetery Ass'n v. Redd, 33 W. 437 ; State v. Bishop, 39 N. J. L. 226 ; Va. 262 ; Deansville Cemetery Ass'n, 66 Sheaff v. People, 87 111. 189. N. Y. 569 ; Board of Health v. Van " Savannah v. Hancock. 91 Mo. 54. 40 THE PUBLIC USE. [CHAP. IH. modation of tourists, or persons driving for pleasure. The courts have decided that where the roads are capable of general use, the special uses in question must be considered purely incidental.^ The highway system is not necessarily completed by the open- ing of roads. In order to secure a complete system of commu- nication, the state may exert the eminent domain in favor of bridges,^ ferries,^ wharves,* and the creation and improvement of waterways.^ While the undertakings mentioned are generally built and controlled by the public as free ways, they may be promoted by private corporations and persons to whom the eminent domain may be granted, upon the condition that the use shall be open to all upon reasonable terms.^ Thus land may be condemned for turnpikes,'' and toll bridges.^ § 43. Private Roads. — Statutes authorizing the condemna- tion of land for what are called private roads, have provoked a decided conflict of opinion. Controversy is silenced, of course, where the governing Constitution has declared in favor of this use,^ so the subject will be considered on principle. The roads in question have been considered essentially public, because public policy dictates that every man shall have an outlet from his land to a highway, so that he may perform his duties to the state.i" But there is no gain to the state where one seeks to open a road from a tract of land to another tract on which he does not reside,^! or from a tract already accessible. ^^ In a recent decision the court approved a statute permitting one to gain an outlet over another's land, and said, " Here is a taking of prop- 1 Bryan v. Branford, .50 Conn. 246 ; " See §418. Higgiuson v. Nahant, 11 Allen, 530; ' State y. Maine, 27 Conn. 641. See Mt. Washington Road, 3.') N. H. 134. § 162. 2 Young V. Buckingham, 5 Ohio, ' Arnold v. Covington & C. Bridge, 485 ; Towanda Bridge, 91 Pa 216. l Duv. 372. 3 Day V. Stetson, 8 Me. 365 ; Stark 9 See § 39. V. McGowan, 1 Nott & Me. 387. if> Johnson v. Supervisors, 61 la. 89 ; * Curran v. Louisville, 83 Ky. 628; Brewer v. Bowman, 9 Ga. 37. See also Kingsland u. New York, 1 1 N. Y. 569 ; Taylor v. Porter, 4 Hill, 1 40, Nelson, J., Matter of New York, 135 N. Y. 253. See dissenting. also Jeffersonville v. Louisville & J. ^ Shake v. Eraser, 21 S. W. Rep. Ferry, 27 Ind. 100 ; Chicago Dock E. u. 583 (Ky. 1893). Garrity, 115 111. 155. lii Richards v. Wolf, 82 la. 358. 5 See § 418 SECT. 44. J THE PITBLIC USB. 41 erty for private use ; an assumption that is prima facie uncon- stitutional, and can only be justified by the strictest necessity." ' But the pleas of public policy and private necessity are disre- garded in decisions which hold that a private road is a private use, and therefore that the compulsory acquisition of land for such a purpose is beyond the competency of the state.^ In Taylor v. Porter,^ and in some of the cases following it, the road in ques- tion was not only private in inception, but private in use, — a way for the exclusive use of parties interested.* In some States a road open to all who care to use it is considered a public road, although private persons condemn the necessary land, and con- struct and maintain the way at their own expense.^ But in Eankhead v. Brown,® Judge Dillon decided that a road to be public must be not only open to all, but kept in repair at the public charge.^ A way simply connecting two tracts belonging to the same person is not such a private road as will warrant the condemnation of intervening land.^ § 44. Railroads. — A railroad connecting with another rail- road or puljlic way, and serving as a common carrier of passen- gers and freight, is an undertaking of public purpose.^ At the institution of this means of transportation it was in some cases used as a sort of turnpike, all persons being allowed to use the rails with their own vehicles upon payment of toll.^" This use was abolished, when it became apparent that the full benefit of steam power could be obtained only by making railroad com- 1 Plum Creek Road, 110 Pa. 544. See also AUen v. Stevens, 29 N. J. L. See also Private Road, 112 Pa. 183. 509. 2 Taylor v. Porter, 4 Hill, 140 ; ^ 25 la. 540. Rochester & G. H. R., 12 N. Y. Supp. ' See also Proctor o. Andrews, 42 566 ; Logan w. Stogsdale, 123 Ind. 372 ; N. H. 348 ; Blackman v. Halves, 72 Ind. Underwood v. Bailey, 59 N. H. 480; 515. Sadler!!. Langham, 34 Ala. 311 ; Varner ^ Robinson v. Swope, 12 Bush, 21; V. Martin, 21 W. Va. 534; Osborn v. Klicker v. Guilband, 47 N. J. L. 277. Hart, 24 Wis. 89 ; Dickey v. Tennison, See also Waddell's Appeal, 84 Pa. 90. 27 Mo. 373 ; Nesbitt v. Trumbo, 39 lU. » Secombe v. Railroad Co., 23 Wall. 110; Witham u. Osborn, 4 Or. 318. 108; Cherokee Nation v. Kansas R., a 4 Hill, 140. 135 U. S. 641 ; Beekman v. Saratoga & ^ See Ayres u. Richards, 38 Mich. S. R., 3 Paige, 45 ; Bonaparte v. Cara- 214. den & A. R., Bald. C. C. 205 ; People v. ' 'Ferris t;. Bramble, 5 Ohio St. 109; Salem, 20 Mich. 452. Sherman u. Buick, 32 Cal. 241 ; Den- i" See Lake Superior & M. R. v. ham V. County Comm., 108 Mass. 302. United States, 93 U. S. 442 ; Common- wealth V. Pitchburg R., 12 Gray, 180. 42 THE PUBLIC USE. [CHAP. III. panies masters of transportation as well as owners of roadbed. Although state railroads have not heen unknown in the United States,^ and are common in continental Europe, the railroad interests in this country are almost, if not quite, exclusively- managed by private corporations. There are, however, some lines in which a State is a stockholder, and many more have been chartered upon the condition that the government may pur- chase them at a certain time, or upon a specified contingency. The establishment of a trunk line is of public utility, and power may be given to consolidate connecting railroads by con- demning the shares of unwilling stockholders.^ It has been held that a railroad may satisfy the condition of public utility though it is intended to carry only freight,^ or passengers.* But a railroad not connected with a public way, and intended to carry tourists at certain seasons of the year, is not a public use.^ Manufacturing companies have occasionally attempted to condemn a right of way for a railroad to connect with a general railroad, in order to obtain a convenient outlet for their products. Such roads have been rightly defined to be pri- vate uses.*^ § 45. The efficiency of a railroad is not secured by the con- struction of the main roadbed. Therefore the state may author- ize the condemnation of land for certain incidental uses. Land may be condemned for turnouts, side tracks, and switches;'^ for passenger and freight stations,^ and the fact that the station is a union depot for several companies does not make it their private concern, for it is open to the public as an ordinary station ;8 and for wharves from which freight may be delivered to vessels.^" 1 See People v. Michigan South, R., Ga. 428 ; s. c. 75 Ga. 761 ; Fanning v. 3 Mich. 496. Osborne, 102 X. Y. 441 ; London v. Sam- 2 Blacli V. Delaware & R. Canal, 24 pie Lumber Co., 91 Ala. 606. N. J. Eq. 455. 7 New^York Cent. & H. R. R , 77 3 Farusworth v. Lime Rock R., 83 N. Y. 248 ; Philadelphia, W. & B. R. ^. Me. 440; Hibernia R. v. De Camp, 47 William.?, 54 Pa. 103. N. J. L. 518; Wiggins Ferry Co. u. s Qiesy !■. Cincinnati, W. & Z. R., 4 East St. Louis R., 107 HI. 450. Ohio St. 308 ; New York Cent. & H. R. « See §§ 402-404. R., 77 N. Y. 248 ; Hamilton v. Annapolis = Niagara Falls & W. R., 108 N. Y. & E. R. R., 1 Md. 553 ; State v. Rail- 375. road Comm., 56 Conn. 308. 6 Split Rock Cable R., 128 N. Y. 9 Union Depot Co. v. Morton, 83 408 ; Weidenfeld v. Sugar Run R., 48 Mich. 265. Fed. R. 615. See Macon v. Harris, 73 i" N. Y. Cent. & H. R. R., 77 N. Y. 248. SECT. 46.] THE PUBLIC USE. 43 It may be that an ordinary warehouse is not so necessary to the operation of a railroad as to warrant the condemnation of a site for it ; ^ but a building for the proper handling of freight in transit is not, strictly speaking, a warehouse ; '^ and it seems that a stockyard may be indispensable to a railroad company, which hold themselves out as common carriers of cattle.^ The incidental uses noted thus far are not merely necessary in a general way to the efficient operation of the railroad. They must be located in connection with the main line, and often at particular points. But the courts have been called upon to de- termine the propriety of condemnation to promote uses which are not essential to the passing use, and, in comparison with those just mentioned, sometimes savor of mere convenience rather than necessity.* It has been held that land may be con- demned for a place of deposit for waste earth,^ and also for repair shops,^ if a necessity exists in fact.^ The following uses have been deemed not sufficiently necessary to warrant the exercise of the eminent domain in their behalf ; a car-factory,^ though in New York car-builders may connect their works with a railroad by laying a track over streets, upon terms similar to those im- posed on street railway companies ; ^ a place for storing and shipping ice ; ^^ a road between a station and a hotel erected for the entertainment of the patrons of the railroad.^^ § 46. The question whether a railroad branching off from the main line is a public use, has provoked considerable discussion. Now there is no doubt but that a line connecting existing rail- roads is a public use ; ^^ and so is a branch line intended to afford 1 Cumberland Val. R. v. McLana- 111. 324 ; Hannibal & S. J. R. v. Muder, ban, 59 Pa. 23. 49 Mo. 165. 2 New York Cent. & H. R. R., 77 ' South. Pacific R. v. Raymond, 53 N. Y. 248. See Pennsylvania R. v. Cal. 223. Jersey City, 49 N. J. L. 540 ; Erie « Eldridge v. Smith, 34 Vt. 484. See County V. Erie & W. R., 87 Pa. 434. also New York & H. R. ^. Kip, 46 N. Y. 2 Covington Stock Yards Co. u. 546. Keith, 139 U. S. 128. ^ Chap. 267, Laws of 1880. * See State v. Mansfield, 23 N. J. L. i" Rochester & G. R., 12 N. Y. Supp. 510. 566. 5 Lodge V. Philadelphia, W. & B. R., " Rochester & G. R., 12 N. Y. Supp. 8 Phila. 345. 566. 6 Chicago, B. & Q. R. v. Wilson, 17 12 Union El. Ry., 113 N. Y. 275. 111. 123 ; Low V. Galena & C. U. R., 18 44 THE PUBLIC USE. [CHAP. III. facilities to a particular district.^ The real question in such cases is as to the charter power of the particular corporation. A spur may be said to differ from a branch in this, that it affords facilities to a particular business or manufacturing con- cern, instead of to a section of country. The courts have denied the publicity of spurs in several cases ;^ for example, where the objective point is a brickyard,® a tanyard,* an iron-working estab- lishment.^ On the other hand, a spur terminating at private property has been legitimated by the same reasoning that has been applied to a private road. It has been called a public use if all may use it.^ It has been decided that a spur to a grain elevator is a public use,' and also a spur to a stockyard, the pro- prietors of which are under no obligation to receive cattle.^ The broad ground has been taken that a spur to a factory is a public use, in that it tends to develop the resources of the common- wealth.^ § 47. Works for the Development of Particular Natural Re- sources. — In certain States, the development of great natural resources has seemed to the legislature and the courts a proper object of the eminent domain. To this end the power has been exerted for pipe lines for the conveyance of oil and natural gas,^" for logging booms open to all lumbermen using the stream, on payment of reasonable. toll,^! and for a flume for the trausporta- ' See Toledo, S. & M. R. v. East See also Chicago Dock R. v. Garrity, Saginaw & S. C. R., 72 Mich. 206. 115 111. 155. But see Mikesell v. Dur- ^ See Board of Health «. Van Hoesen, kee, 34 Kan. 509 ; s. c. 36 Kan. 97. 87 Mich. 533. s New York Cent. & H. R. R. v. 8 Chicago & E. I. R. i. Wiltse, 116 Metropolitan Gas Light Co., 63 N. Y. Ill, 449. See also Rochester, H. & L. R., 326. 110 N. Y. 119. 9 Getz's Appeal, 10 W. N. C. (Pa) * Weidenfeld v. Sugar Run R., 48 453; Slocum's Appeal, 12 ^Y. N. C. Fed. R. 615. (Pa.) 84. s Pittshurgh, W, & K. R. v. Benwood 1° West Virginia Trans. Co. u. Vol- Iron Works, 31 W. Va. 710. canic Coal, &c. Co., 5 W. Va. 382 ; 6 Kettle River R. v. Eastern R. 41 Johnston v. Gas Co., 5 Cent. Rep. 564 ; Minn. 461 ; Chicago, B. & N. R. y. Per- Carother's Appeal, 118 Pa. 468. ter, 43 Minn. 527 ; South Chicago R. v. " Lawler v. Baring Boom Co., 55 Dix, 109 111. 237. See also Clarke v. Me. 443; Schoft v. Imp. Co., 57 N. H. Blackmar, 47 N. Y. 150; Phillips v. 110. See also Boom Co. u. Patterson, Watson, 63 Iowa, 28. 98 U. S. 403 ; Weaver v. Mississippi ' Clarke v. Blackmar, 47 N. Y. 150; Room Co., 28 Jliun. 534; Bennett's Fisher v. Chicago & S. R., 104 111. 323. Branch Imp. Go's Appeal, 65 Pa. 242. SECT. 48.] THE tUBLTC USE. 45 tion of lumber.^ Most of the law on this subject relates to the mining industry. In several States the courts have refused to permit the condemnation of property in order to facilitate the working of mines.^ In other States the working of mines has been deemed of sufficient public utility to justify the condemna- tion of land for a mining canal ; ^ and it has even been held that a mine owner may condemn neighboring land for the purpose of sinking a shaft.* In respect to the transportation of mine pro- ducts, it is held that a mine owner cannot condemn land for a railroad to be used solely for the products of his own mine.^ But the mining interests have been deemed sufficiently impor- tant in some States to justify statutes enabling a mine owner to condemn a right of way for a railroad from his mine to the nearest available thoroughfare by rail or water. The railroad, frec[uently called a " lateral railroad," is to be open to all who may have occasion to use it.^ The same conclusion has been reached where the statute did not expressly provide that the road should be open to all, as the court held that this provision must be implied.'' § 48. Miscellaneous Purposes. — Land may be condemned for a telegraph, or telephone line,^ but as these are usually built upon public roads the important question is whether there is a taking of private property.® The right to condemn for works of navigation, irrigation, and reclamation, and for supplies of water for consumption and power, is considered in a later chafter.^" It '' Dalles Lumbering Co. v. Urquhart, ^ Hays v. Risher, 32 Pa. 169 ; Hiber- 16 Or. 67. nia R. v. De Camp, 47 N. J. L. 518; 2 Consolidated Channel Co. v. Cent. New Cent. Coal Co. v. Georges Creek Pacific R., 51 Cal. ii69 ; Amador Queen Coal Co., 37 Md. 537. See also Colo- Min. Co. V. Dewitt, 73 Cal. 482 ; Wad- rado East. R. v. Union Pacific R., 41 dell's Appeal, 84 Pa. 90. See also Fed. R. 294 ; Bankhead v. Brown, 25 Woodruff V. North Bloomfield, etc. Min. la. 540 ; Contra Costa R. v. Moss, 23 Co., 18 Fed. R. 753. Cal. 323. See Edgewood R. Appeal, 79 3 Hand Gold Min. Co. u. Parker, 59 Pa. 257. Ga. 419. " Phillips v. Watson, 63 la. 28. * Overman Silver Min. Co. v. Cor- 8 Lockie v. Mut. Union Tel. Co., 103 coran, 15 Nev. 147. 111. 401 ; Duke v. Cent. N. J. Tel. Co., 5 Stewart's Appeal, 56 Pa. 413; 53 N. J. L. 341. McCandless's Appeal, 70 Pa. 210 ; ShoU « gee § 407, V. German Coal Co., 118 111. 427; State i» See Ch. xiv. V. Railway Co., 40 Ohio St. 504. See also People v. Pittsburgh R., 53 Cal. 694. 46 THE PUBLIC USE. [CHAP. III. has been held that a corporation having for its purpose "the educating of the public by exhibiting artistic mechanical agricul- tural and horticultural products, and providing public instruction in the arts and sciences," may receive the eminent domain.^ By wliom is the Validity of the Purpose to he determined ? § 49. Before determining the elements which make iip a public use, the question suggests itself, — By whom is a " pub- lic use " to be determined ? There are dicta allowing the widest range to legislative discretion in this matter. Chancellor Walworth intimated that the legislative judgment of the pro- priety of a particular use should not be questioned by the courts if by the use " the public interest could in any way be promoted." ^ But the possibilities of mischief in substituting the somewhat elastic " public interest " for the stricter " public use " were suggested in a later New York decision.^ The dignity and responsibility of the American judiciary as the conservers of constitutional guarantees are maintained in opinions which assert plainly that the lawfulness of the use is within the competency of the courts.* These judgments have the merit of frankly stating the rule of action which governs the judiciary everywhere in passing upon statutes autliorizing the condemnation of private property. The operation of the rule is by no means affected by the fact that the legislature has expressly declared that the purpose- is public.^ In some States the power of the judiciary to determine publicity of use is expressly conferred by the Constitution.^ ' Eees' Appeal, 12 Atl. Rep. 427. Association, 66 N. Y. 569; Niagara See Daggett v. Colgan, 92 Cal. 53; Palls &W. R., 108 N. Y. 375; Sadler u. Gilman v. Milwaukee, 55 Wis. 328. Langham, 34 Ala. 311 ; Talbot v. Hud- 2 Eeekman o. Saratoga & S. R., 3 son, 16 Gray, 417; Chicago & East. Paige, 45. See also Tide Water Co. u. Illinois R. v. Wiltse, 116 111. 449. See Coster, 18 N. J. Eq. 518. also Hanson v. Vernon, 27 la. 28 ; Allen 3 Bloodgood V. Mohawk & H. R., 18 u. Jay, 60 Me. 124. Wend. 9, 61. See also Niagara Falls & ^ Waterloo Man. Co. v. Shanahan, W. R., 108 N. Y. 375. 128 N. Y. 345; Savannah v. Hancock, * Scndder v. Trenton Del. Falls Co., 91 Mo. 54 ; Logan v. Stogsdale, 123 Ind. 1 N. J. Eq. 694 ; Tyler v. Reacher, 44 372. Vt. 648 ; Shoemaker v. United States, ^ Colorado, xv. 8 ; Mississippi, iii. 147 U. S. 282; Deansville Cemetery 17 ; Missouri, ii. 20; Washington, i. 16. SECT. 50.] THE PUBLIC USE. 47 § 50. It may be urged that the public purpose expressed in the statute is colorable in this that tlie would-be-expropriator intends to use it as a cloak for essentially private purposes. If this contention rests on assertion, without supporting proof in the documents or public actions of the corporation, the court should not forbid condemnation. ^ Hence a corporation comply- ing with a general railroad law may condemn, notwithstanding that the whole of the capital stock is subscribed by persons who are officers of a corporation which, perhaps, could not accomplish its own ends by the eminent domain.^ But if the evident pur- pose of the proposed undertaking is not within the purview of the statute condemnation will be restrained.^ Thus a city will not be permitted to widen a street for the purpose of granting the exclusive use of it to a railroad company.* In passing upon the validity of a use the judiciary should consider its legal aspects only. The courts will not heed an allegation that the corporation may not fully perform its pub- lic duties.^ Whether the corporation will commence the im- dertaking or complete it, are practical questions not usually cognizable by the courts.^ So the court should not notice an allegation that the undertaking in question will not in fact accomplish the result intended.^ But while these propo- sitions should be maintained generally, it may be well to reserve to the property-owner the right to resist condemnation in a case where the execution of the scheme proposed is so palpa- bly impossible, on account of its physical or financial infirm- ities, as to render expropriation wholly vexatious. In Kings Lynn v. Pemberton,^ Lord Eldon thus referred to his opinion in the unreported case of Agar v. Eegent's Canal Company : " Where 1 Brown v. Calumet River E., 125 * Ligare u. Chicago, 139 111, 46. ni. 600 ; Niemeyer v. Little Rock JuDCt. ^ Lumhard v. Stearns, 4 Cusli. 60. E., 43 Ark. 111". See also State ;;. Kir- « Staten Island E. T. Co , 103 N. Y. gan, 51 Ind. 142; Matter of Buffalo, 15 251 ; Slingerland v. Newark, 54 N.J. L. N. Y. Snpp. 123. 62. 2 National Docks E.V.Gent. E., 32 N. 7 Talbot v. Hudson, 16 Gray, 417. J. Eq. 755, reversing s.c. 31 N.J. Eq. 475. See also City of Kansas u. Baird, 98Mo. 8 Niagara Falls & W. E., 108 N. Y. 215. 375; Forbes t'. Delashmutt, 68 la. 164. ^ I Swan. 244. See also Lynch v. Comm. of Sewers, 32 Ch. D. 72. 48 THE PUBLIC USB. [CHAP. III. persons assume to satisfy the legislature that a certain sum is sufficient for the completion of a proposed undertaking, as a canal, and the event is that that sum is not nearly sufficient, if the owner of an estate through which the legislature has given the speculators the right to carry the canal can show that the persons so authorized are unable to complete their work, and is prompt in his application for relief grounded on that fact, this court will not permit the farther prosecution of the undertaking." ^ What is a Puhlic Purpose ? § 51. We are now in a position to determine the considera- tions which may be brought to bear upon the definition of a public purpose, and the characteristics of the purpose itself. Certain points of difference between the eminent domain and taxation are noted elsewhere.^ The question has been raised whether the public uses of taxation and of the eminent do- main are so far similar that the state can tax for any use for which it may condemn, and vice versa. The power to levy a tax in aid of undertakings which can be promoted by the eminent domain seems to be implied in those decisions which approve taxation in favor of railroads operated by private corporations.^ Although this power has been so strenuously supported on principle that several States have found it necessary to destroy it by constitutional declaration, the writer is inclined to agree with those jurists who have not found the public uses of the eminent domain and taxation identical, and have protested against taxa- tion in aid of a railroad.* But there is no doubt that a tax can- not be levied in aid of a private manufacturing concern,^ although there are statutes which permit the compulsory acquisition of water-power for mills which are not open to the public.^ Nor does there seem to be any power to tax in favor of a private way.^ Judge Cooley has expressed the opinion that the public use of the right of eminent domain may be more liberally inter- 1 SeealsoLee«.Milner,2Y.&C.611. v. Sheboygan E., 25 Wis. 167; Dillon ■^ See §§ 24, 25. Muu. Corp. 4tli ed. § 153. 8 Olcott V. Supervisors, 16 Wall. 678. * See § 24. * People V. Salem, 20 Mich, 452 ; ^ See § 424. Hanson v. Vernon, 27 la. 28; Whiting ' See Cooley, Tajiation, 2nd ed. 114. SECT. 52.] THE PUBLIC USE. 49 preted than that of taxation, because a reasonable compensation is always paid in the first instance, while a tax is " a forced exaction without any pecuniary return." ^ It seems, however, that no positive conclusion in respect to the purposes of the eminent domain should be inferred from the fact that the power of taxation is also restricted to the promotion of public purposes.^ As the state may exercise a broad discretion in the choice of agents,^ the status of the agent chosen has little bearing on the question of the publicity of the use itself. Still it may be said that publicity of use is most questionable when the agent is a private corporation, less questionable when it is a political corporation, least questionable when the state itself is the actor. § 52. Necessity. — The first question in respect to a proposed use is as to its necessity. Necessity is used in several connec- tions in the law of eminent domain. A highway is a necessity, in a general sense. But the necessity of a highway from A. to B., may be a point to be settled by a particular tribunal.* Again, an undertaking may satisfy both of these conditions, and yet offend against a third necessity, in that its promoters attempt to take an unnecessary quantity of land.^ It is with the first necessity that we are now concerned, — the relation of the pro- posed use to the general welfare. In West River Bridge Com- pany V. Dix,^ Justice Woodbury approved the strictest con- struction of the word, and intimated that the eminent domain could not be exerted in favor of such works as custom-houses, hospitals, and prisons, as there could be no necessity for their location in a particular place.'' This construction has not been adopted. The absolute necessity of a particular location is not in any case a prerequisite to the exercise of the eminent domain, — for example, the promoters of a railroad may receive the power. Further, the strict meaning of necessity is not generally insisted upon in describing the use itself. There are many pur- 1 Ryerson v. Brown, 35 Mich. 333. * See §§ 322, 350. ^ See Opiuions of Justices, 150 Mass. * See § 185. 592 ; Hamilton «. Annapolis & E. E. R., » 6 How. 507. 1 Md. 553. ' Criticised in Williams v. School 3 See § 106. Dist., 33 Vt. 271. 4 50 THE PUBLIC USE. [CHAP. III. poses of admitted publicity which, beside the necessity of a fort, ■would be accurately called conveniences.^ The magnitude of the interests involved seems to have been in some cases the determining factor in upholding the necessity for condemnation.^ This seems to account for the distinction drawn by Chief Justice Shaw between a single mill and a great mill power, the latter a public use,^ the former not.* Whatever merit there is in this particular distinction ^ there is doubtless some, albeit an indefinable, force in the principle. One might admit the publicity of lateral railroads and irrigation works in states containing great mineral deposits, and vast tracts of arid land,® and deny the necessity of these works in states where mineral wealth and desert land are so insignificant as to render the public gain by their development absurdly disproportionate to the private benefit. There is some force in the suggestion that " what shall be considered a public use may depend somewhat on the situation and wants of the community for the time being." ^ It appears that a use the object of which is merely pleasure or ornament, is not a necessary use.^ The drawing of harbor lines for the purpose of securing an unobstructed view of an ornamental bridge, is not a legitimate object of the right of eminent domain.^ It has been held that necessity is not made out by proof of great convenience, nor of enliancement of values, nor of accumulation of properties of the same kind for the same use.^" § 53. It has been frequently said, that the determination of necessity is within the sole competency of the legislature. ^^ But what is meant is that, assuming that the use is essentially public, 1 See Shaver v. Starrett, 4 Ohio * See Gardner v. Newbnrg, 2 Johns. St., 494; Commissioners v. Moe.'ita, 91 Ch. 162; Niagara Falls & W. E., 108 Mich. 149 ; Jerome u. Ross, 7 Johns. N. Y. 375 ; Woodstock v. Gallup, 28 Vt. Ch. 315. 587, Dillon, Mun. Corp. § 599. 2 See Gt. Falls Man. Co. v Fernald, ' Farist ;;. Bridgeport, 60 Conn. 278. 47 N. H. 444. '" Spring Valley Water Worlts Co. 8 Hazen v. Essex Co., 12 Cash. 475. v. San Mateo Water Works Co., 64 Cal. * Mnrdock v. Stickney, 8 Cush. 113. 123. 6 See § 424. ^^ Giesey v. Cincinnati, W. & Z. R., n See Oury v. Goodwin, 26 Pac. Rep. 4 Ohio St. 308 ; Hyde Park v. Cemetery (Ariz.) 376. Ass'n, 119 111, 141 ; Alexandria & F. R. ' Scudder !>. Trenton Del. Falls Co., v. Alexandria & W. R., 75 Va. 780; 1 N. J. Eq. 694. State v. Rapp, 39 Minn. 65. SECT. 54.J THE PUBLIC USE, 51 questions of necessity iu respect to the time, place, and manner of its accomplishment are adnlinistrative, and not within the the competency of the judiciary.^ The necessity of the use itself is really a judicial question, and is in effect passed upon by the courts whenever they afBrm or deny the publicity of a particular use.^ Courts have, in some cases, sustained the publicity of a use against the personal judgment of the members, upon the ground of ancient custom,^ and stare decisis.* § 54. Private Benefit not incompatible with Public Utility. — Undertakings which are sought to be promoted by the right of eminent domain are often of private benefit. The judicial prac- tice in such cases is to approve the undertaking if it is capable of furthering a public use, and to disregard the private benefit as a mere incident.^ This practice is correct where the public interest clearly dominates the private benefit ; as, for example, the public interest in railroad transportation dominates the private benefit from tolls. Even where the disproportion between public and private benefit is much less marked, the courts are justified in sustaining a legislative act by singling out the public use. In Gilbert v. Foote,^ the court denied the constitutionality of a drainage act, because it was expressly intended for private benefit. In Matter of Eyers,'' an act was sustained which embodied simi- lar provisions, but had for one of its expressed objects the main- tenance of the public health.^ The fact that the cost of a proposed undertaking is volun- tarily defrayed in whole or in part by private persons specially benefited, does not necessarily discredit the publicity of the 1 See Shoemaker v. United States, * Atty.-Gen. u. Eau Claire, 37 Wis. 147 U. S. 282 ; Illinois Cent. R. v. Chi- 400. cago, 141 Dl. 586. Compare Lindsay ^ Talbot v. Hudson, 16 Gray, 417; Irrigation Co. u. Mehrtens, 97 Cal. 676. Moore v. Sandford, 151 Ma,ss. 285; 2 Tracy v. Elizabethtown, L. & B. S. South Chicago R. v. Dix, 109 111. 237. B., 80 Ky. 259 ; Cemetery Ass'n v. See also Keau v. Elizabeth, 54 N. J. L. Redd, 33 W. Va. 262 ; Moore v. Sand- 462. ford, 151 Mass. 285; St. Paul & N. P. « See 72 N. Y. 6 (not reported). R., 34 Minn. 227. ' 72 N. Y. 1. ' Jordan i;. Woodward, 40 Me. 317. ^ Compare also Atty.-Gen. w. Eau See also Hoagland v. Wurts, 41 N. J. L. Claire, 37 Wis. 400, with s. c, 40 Wis. 175. But see Sadler v. Langham, 34 533. Ala. 311. 52 THE PUBLIC USE. [CHAP. III. use.^ The most extreme application of this proposition is where courts approve works, certain private roads for example, under- taken by private persons at their own charge, for their own benefit, and of no apparent public use, upon the theory that there is nothing to prevent their use by the public. § 55. In placing works of partly private use in the list of public uses, it is essential that the private use be incidental and not exclusive.^ Thus, where a company were authorized to build a basin, and reserve a part for their sole use, the act was declared unconstitutional.^ Land cannot be condemned for a grist-mill, and also for the private uses of a saw-mill and paper-mill.* But this requirement should not be too narrowly construed. Thus, a comprehensive scheme for the acquisition by a city of the wharf property within its jurisdiction, is not vitiated by the fact that the city is permitted to lease some of the property con- demned to private ship-ov/ners. Stated and exclusive berths for important lines are at least no disadvantage to the public, and a public purpose is served by municipal control over wharves in general, and the reservation of sufficient wharf-room for gen- eral use-.^ § 56. The Right of the Public to Use. — An essential feature of a public use is that the public may enjoy its benefits, and, if it be an undertaking for the performance of services, command the services.^ Hence, where a corporation was authorized to condemn a right of way for a tramway to be used in transport- ing stone to a manufacturing company in which the incorpora- tors were interested, the purpose was held to be private, as there was nothing to show that the public had a right to use the way.' 1 Clarke v. Blackmar, 47 N. Y. 150 ; " Matter of New York, 135 N. Y. Provision Co. v. Cliicago, 111 111. 651 ; 253. Parks V. Boston, 8 Pick. 218; North « Board of Health v. Van Hoesen, Baptist Church v. Orange, 54 N. J. L. 87 Mich. 533 ; Bonaparte v. Camden & 111. See also Townsend v. Hoyle, 20 A. R., Bald. C. C. 205 ; Market Co. v. Conn. 1 ; Santa Ana v. Harlin, 34 Pac. Philadelphia & R. R., 142 Pa. 580; R. 224 (Cal. 1893). See Gurnsey i>. Kettle River R, i>. Eastern R., 41 Minn. Edwards, 26 N. H. 224 ; Commonwealth 461 ; Belcher Sugar Ref. Co. v. St. w. Cambridge, 7 Mass. 158. Louis Elevator Co., 82 Mo. 121. See 2 See Prop. Locks & Canals v. also Lumbard v. Stearns, 4 Cush. 60 ; Nashua & L. R., 104 Mass. 1. Life of Benj. R. Curtis, i. 315. 8 Eureka Basin, 96 N. Y. 42. ^ Split Rock Cable Co., 128 N. Y. * Harding v. Goodlett, 3 Yerg. 41. 408. SECT. 56. J THE PUBLIC USE. 53 A freight company, not bound to serve all comers, cannot con- demn land for a railroad, and other adjuncts to its wharves.^ If a use is public in point of law, it is immaterial that comparatively few persons will, in fact, actually enjoy its benefits.^ The uses must not minister solely to sections of the public classified according to distinctions not recognized by law. Thus, it appears that land cannot be condemned for a cemetery for the burial of Roman Catholics only, though such a cemetery is within the purview of a statute forbidding the establishment of a cem- etery within a certain distance from a reservoir unless a court shall determine that it is of public convenience and necessity .^ But where the promoters of an undertaking have the right to charge for services, the public to whom they minister are those who are able to pay the charges, which must be uni- form and reasonable,* and are willing to conform to all fair regulations.^ Property is to be taken only for a public purpose or use. Although use in common speech usually conveys the idea of possession and enjoyment, it is here interchangeable with pm-- pose. Property destroyed by the state may, nevertheless, be taken for public use.^ 1 Memphis Freight Co. v. Memphis, Works v. Bird, 130 N. Y. 249. See 4 Cold. 419. Talbot v. Hudson, 16 Gray, 417. 2 Phillips II. Watson, 63 la. 28 ; ^ gt. Bernard Cemetery Ass'n 58 National Docks R. v. Cent. R., 32 N. J. Conn. 91. Eq. 755; De Camp v. Hibernia R., 47 * See §§ 17-22. N. J. L. 43 ; Chicago, B. & N. R. v. "^ Evergreen Cemetery Ass'n v. Porter, 43 Minn. 527 ; Ross v. Davis, 97 Beecher, 53 Conn. 551. Ind. 79; Lindsay Irrigation Co. v. ^ Miller r. Craig, 11 N. J. Eq. 175. Mehrtens, 97 Cal. 676 ; Pocantico Water 54 PKOPERTr. [chap. IV. CHAPTER IV. PROPERTY. § 57. Property may be divided into three classes with respect to its utilization for public purposes. Property of the state, — not subject to the right of eminent domain, because it is already held for such uses as the state may designate. Private property, — subject to the right in all cases. Private property already devoted to a public use, — not subject to the right, unless the state plainly intends to modify or supersede the existing public use by a new one. The distinction between public and private property is generally patent. Sometimes, however, the placing of property in one category or the other depends on nice, and not always harmonious, adjudications; as, for example, in the case of riparian property. Again, it may be that property owned by one government within the jurisdiction of another is public or private, according to its character and the use to which it is put. PUBLIC PROPERTY. Property of a Foreign State. § 58. Property desired by a sovereign may be held in the name of another. As far as international relations are concerned it is settled that the movable property and residence of a foreign minister are not subject to the ordinary local laws.^ But, while it is clear that the movable effects of a foreign minister should not be subject to the eminent domain of the country of residence, it is equally clear that land owned or leased by the foreign power should not be exempt. Otherwise there would be the absurdity of one state acquiring land by the courtesy of another and law- fully holding it to the impairment of the latter's sovereignty.^ 1 Wheaton, Int. Law, Pt. iii. c. 1, = xhe method by which the Old § 17. Protestant Cemetery at Rome was taken SECT. 59.] PUBLIC PEOPERTy. 55 Federal Property. § 59. Is land belonging to the United States lying within the boundaries of a State subject to the local eminent domain ? Cer- tainly not, if the tract in question has been formally ceded to the United States, for it then becomes federal territory.^ Nor can a State condemn land which the United States have put to a spe- cific federal use.^ Tims, a city cannot lay out a street over land of the United States reserved for military purposes.^ A rail- road corporation chartered by Congress is not a federal agency, in the sense that its property is beyond the State's eminent domain.* In The United States v. Eailroad Bridge Company,^ a State law authorized the company to condemn certain public land not put to any specific use. The condemnation was sustained on the ground that the land was not held publici juris, but in pri- vate proprietorship. In Van Brocklin v. Tennessee,^ Justice Gray disapproved of this reasoning. He maintained that the United States could not hold laud as in private proprietorship, but must hold and apply it to paying the debts, and providing for the common defence and general welfare of the country. This counter-proposition is broad enough to cover an attempt by a State to diminish the revenue of the United States by taxing their property, but hardly warrants the prohibition of the local eminent domain over public lands not devoted to specific fed- for a municipal use, is not without in- of Keats. See Parliamentary Publica- terest. This cemetery was placed under tion, Italy No. 1, 1889. the control of the Prussian representa^ ' See United States v. Ames, 1 tive near the Papal Court many years Wood. & M. 76 ; s. p. Opinion of the ago, and was managed thereafter by the Judges, 1 Met. 580. Prussian and later by the German rep- 2 Ft. Leavenworth R. v. Lowe, 114 reseutative, with whom were associated U. S. 525. See also Barrett i; Palmer, a committee representing the other 135 N. Y. 336. Protestant Powers. The city of Rome ^ United States v. Chicago, 7 How. decided to lay out a street through the 185. cemetery, and after a correspondence, * Union Pacific R. V.Burlington &M. in which the power to expropriate does R., 1 McCrary, C. C. 452 ; Union Pacific not seem to have been questioned, the R. u. Leavenworth, N. & S. R., 29 Fed. German Embassy ceded the cemetery Rep. 728. See also Ft. Leavenworth R. to the city authorities, who on their y. Lowe, 114 U.S. 525. See Union Pacific part ceded a tract for a new cemetery, R. v. City of Kansas, 115 U. S. 1. assumed the expense of reinterment, * 6 McLean, 517. and further agreed to preserve the tomb ^ 117 U. S. 151. 56 PEOPEETY. [chap. IV. eral uses. The weight of opinion is with the decision in The United States v. Eailroad Bridge Company .^ Property of the States. § 60. The relations between the United States and the several States, are on a different basis from that which supports interna- tional intercourse. The former are grounded in positive law, the latter rest upon comity. The federal eminent domain has been already defined ;^ but the question remains, whether a State may hold property which the United States cannot condemn. In Stockton V. Baltimore & New York Eailroad Company,^ Justice Bradley said, " If it is necessary that the United States Govern- ment should have an eminent domain still higher than that of the State, in order that it may fully carry out the objects and purpos.es of the Constitution, then it has it." * This proposition proves it- self. So does the other proposition, that the agencies of the State governments are beyond federal aggression.^ Both of these propo- sitions must stand. Each must be so interpreted in the light of the other, that their accord will appear. Although the courts are, in ordinary cases, competent to decide only as to the publicity of the purpose, leaving the choice of location wholly within the legis- lative discretion,^ it would seem that in a controversy between the United States and a State the Supreme Court may pass upon the question of location, in order to fairly protect the agencies of the State. The writer suggests the following proposition : The property of a State shall yield to the federal eminent domain, whenever the acquisition of the property is more important to the United States than its retention is to the State. For exam- ple, although a necessity might arise to warrant the expropria- tion of a State capitol for a fortification site, it should not be assumed to justify the transformation of a capitol into a post- office. This hypothetical case seems to conflict with an illiis- 1 United States v. Chicago, 7 How. * See also Cherokee Nation v. 185; Ft, Leavenworth E. v. Lowe, 114 Southern Kansas R., 135 U. S. 641. U. S. 525. See also Flint & P. M. R. ... ' Collector <;. Day, 11 Wall. 113; Gordon, 41 Mich. 420. United States v. Railroad Co., 17 Wall. 2 See §§ 30-33. 322 ; St. Louis v. West. Union Tel. Co., 8 32 Fed. Rep. 9. 148 U. S. 92. « See § 53. SECT. 62.] PUBLIC PEOPEBTT. 57 tration used by Justice Brewer^ to support an admirable statement of law which we quote elsewhere.^ " It would not be claimed, for instance, that under a franchise from Congress to construct and operate an interstate railroad the grantee thereof could enter upon the state-house grounds of the State, and construct its depot there, without paying the value of the property thus appropriated." If our opinion is correct, a com- pany could not be authorized to construct a railroad upon land devoted to the use of a State capitol, without the assent of the State. § 61. Where property is held by a State as trustee for the people of the United States, the latter may carry out the objects of the trust without reference to the wishes of the State, and without compensation. Thus, in a recent case it was held that the soil under the navigable waters of New Jersey, which had vested in the State at the Revolution as a part of the jura regalia of the Crown, is held by the State, not as a proprietor, but as trus- tee for the people of the United States, in this respect at least, that the latter may devote such lands to the furtherance of inter- state commerce without compensation to the State.^ Although it has been held that one who has received submerged lands from a State holds them subject to a federal right to place upon them erections in aid of navigation without compensation,* the question has not been decided by the Supreme Court.^ § 62. Where property is held by a State upon a local, as dis- tinguished from a federal, trust, it cannot be dealt with by the United States as their own, but, assuming that federal purposes demand its use, the State may require the payment of compen- sation. Thus, where a city imposed a tax or rent upon an inter- state telegraph company as compensation for a right of way through its streets, the company asserted that an act of Congress, authorizing them to occupy all post roads and letter-carrier routes, 1 St. Louis V. West. Union Tel. Co., * Chappell v. Waterworth, 39 Fed. 148 U. S. 92. Rep. 77 ; Hill v. United States, 39 Fed. 2 See § 62. Rep. 172 ; Scranton v. Wheeler, 57 Fed. 3 Stocliton V. Baltimore & N. Y. R., Rep. 803. 32 Fed. Rep. 9. See Decker v. Baltimore « Hill v. United States, 149 U. S. 59a & N. Y. R., 30 Fed. Rep. 723. 58 PROPERTY. [chap. IV. gave plenary authority to erect their plant upon the streets in question. The Supreme Court decided otherwise. Said Justice Brewer : " It is a misconception ... to suppose that the fran- chise or privilege granted by the act of 1866 carries with it the unrestricted right to appropriate the public property of a State. It is, like any other franchise, to be exercised in subordination to public as to private rights. While a grant from one govern- ment may supersede and abridge franchises and rights held at the will of its grantor, it cannot abridge any property rights of a public character created by the authority of another sover- eignty." Although such property is " devoted to public uses, it is property devoted to the public uses of the State, and property whose ownership and control are in the State, and it is not within the competency of the national government to dispossess the State of such control and use or appropriate the same to its own benefit, or the benefit, if any, of its corporations or grantees, without suitable compensation to the State. This rule extends to streets and highways. They are the property of the State." ^ As a State has no jurisdiction over land lying beyond its ter- ritory, it follows that land owned by a State within the borders of another may be treated by the latter as private property.^ Property of Political Corporations. — Municijjal Property. § 63. Up to this point the discussion has been simply as to the existence of an eminent domain over property held to the use of another sovereign. The present title suggests the leading question whether it is necessary for the sovereign to exert its right of eminent domain in order to control property held by one of its subordinate political corporations. There is a vast amount of property held by these corporations. If this is all the prop- erty of the state, the state may devote it to such public purposes as it pleases without paying compensation to the corporation. If any of it can be defined to be the separate property of the cor- poration, it is in law private property, and can be appropriated only by the right of eminent domain. 1 St. Louis V. West. Union Tel. Co., 2 Burbank v. Fay, 65 N. Y. 57. 148 U. S. 92. SECT. 64.] PUBLIC PEOPERTY. 59 § 64. The most important of these corporations is the munici- pality. The general relation between it and the state must be outlined before the main question can be considered. The municipal corporation is a political institution created by the state, and deriving all its powers therefrom. It can be com- pelled by the state to perform such functions and bear such burdens as are within the limits of its powers and responsibil- ities, and, although there are some cases which seem to accord to the legislature an unlimited discretion in the' definition of these limits, the better opinion is that their correctness is finally determinable by the courts.^ There is not a vested right as against the state in the permanence of any political condition not guaranteed by the Constitution.^ Agreeably to this rule, the very existence of a municipal corporation depends on the will of the legislature. A municipal charter is a political instrument, not a contract within the pro'tection of the Federal Constitution.^ But contracts made with a municipal corporation, trusts accepted by it, cannot be impaired by modifying its charter.* A munici- pal creditor cannot satisfy his judgment by selling the public property of the city upon execution, but must compel the levying of a tax, from the proceeds of which his claim may be satisfied. Upon this the authorities are agreed ; but there is this difference in application that, while in some jurisdictions all municipal property is deemed to be public, in others such property as is not devoted to specific governmental use, but is held for profit, is subject to execution as private property." The familiar rule that public property is presumptively exempt from the incidence of tax laws applies, of course, to municipal property ; though even here there is some disposition to avoid, or at least weaken, the presumption in the case of property not held to specific governmental use.^ The last point to be noted in this brief sur- 1 State V. Haben, 22 Wis. 660; ' Meriwether v. Garrett, 102 U.S. People V. Detroit, 28 Mich. 228 ; Callara 472. V. Saginaw, 50 Mich. 7. See also Cooley, * Von Hoffman v. Quincy, 4 Wall. Const. Lim., 6th ed., 284. 535 ; Girard v. Philadelphia, 7 Wall. 14 ; 2 United States v. Baltimore & 0. R., Mobile v. Watson, 1 1 6 U. S. 289 ; People 17 Wall. 322; People v. Morris, 18 c/. Otis, 90 N. Y. 48. Wend. 325 ; Commonwealth v. Plaisted, ' See cases in 2 Dillon, Mun. Corp., 148 Mass. 375 ; Philadelphia v. Tox, 64 § 576. Pa. 169. s See Cooley, Taxation, 2nd ed. 173. 60 ■ PEOPERTT. [chap. IV. vey of municipal corporations has been already suggested. It is that although the corporation is the creature of the state, it may by the state's permission acquire purely communal prop- erty. Such property is essentially private, and can no more be invaded by the state than the property of a private corpora- tion. This proposition has been approved in many well-considered opinions.! From the decisions cited we get this general idea of a municipality, — a government established by the state for the management of communal affairs, bound to perform all duties incident to the objects of its incorporation, subject to disestab- lishment as a political institution, but having, with these marks of dependency, certain characteristics of a private proprietor. We are now in a position to classify the different sorts of property held by a municipal corporation, and determine the relation of the state to each, (a) Property devoted to objects of state concern, such as streets ; (6) property held upon trusts in which private persons have an interest, as land dedicated to a particular use, and in this class may be included property impressed with a charitable trust ; (c) property held and man- aged for the profit of the community, as gas and water-works. § 65. In Meriwether v. Garrett,^ it was held that upon the dissolution of a municipal corporation the public buildings, streets, squares, parks, promenades, wharves, landings, cemeteries, engine-houses, fire-engines, hose and hose carriages, engineering implements, and everything else held for governmental purposes, and which the city " held for the State,'' passed into the control of the State. What is the meaning of " held for the State ? " It is held, that streets are a part of the general highway system,^ and, therefore, may be put to such use as the State may decree without compensation to the city.* The same power should be exercisable, it appears, over free wharves and landings, for they are links between public ways by land and water.^ 1 People V. Detroit, 28 Mich. 228 ; 509. Compare Darlington v. New York. Meriwether v. Garrett, 102 U. S. 472; 31 N. Y. 164; Duanesburg u. Jenkins, Essex Road Board v. Skinkle, 140 XJ. S. 57 N. Y. 177. 334; Grogan v. San Francisco, 18 Cal. 2 io2 U. S. 472. s gee § 397. 590 ; New Orleans, M. & C. R. v. New * People v. Kerr, 27 N. Y. 188. Orleans, 26 La. An. 478 & 517; Mt. 6 See Portland & W. R. w. Portland, Hope Cemetery v. Boston, 158 Mass. 14 Or. 188. SECT. 66.] PTTBLIC PROPERTY. 61 With regard to other property of the municipality, it seems that the control of the state should depend upon the object for ■which it is proposed to be exerted. For example, assuming that the state can compel a city to use a part of its property for a municipal building, does it follow that it can take the property for a capitol, or, to put a more striking case, can it convert a city hall into a capitol without compensation ? Decisions defining the power of the state to compel the municipal cor- poration to levy taxes in furtherance of public works are per- tinent, for if a city cannot be coerced into spending money for a given object, neither can it be forced to devote property to it. The state can compel 'the municipality to provide such proper- ties as are deemed essential to the administration of communal affairs,-' though even here the best judgment approves a power of judicial review of legislative action, so as to prevent the arbitrary imposition of unnecessary burdens upon a defenceless city.^ Further, the municipality may be ordered to pay for an undertaking of state concern when it is of evident local benefit, as in the case of streets,^ and bridges.* But it has been justly decided, that tlie state cannot compel a city to burden itself with an undertaking of distinctively foreign interest, such as a county building,^ or a state normal school.® These cases illus- trate the rule laid down by Chief Justice Parker in Hampshire V. Franklin,'' " It is not in the power of the legislature to create a debt from one person to another, or from one corporation to another without the consent, express or implied, of the person to be charged," — a rule, be it noted, of no significance if, in the judgment of the court, the legislature commands the perform- ance of a municipal duty. § 66. A municipal corporation may assume in certain cases the character of a private proprietor as against the state. Thus, when it undertakes to supply its inhabitants with gas or water, the property acquired in furtherance of the enterprise is private.* 1 Perkins v. Slack, 86 Pa. 270. ^ gtate v. Haben, 22 Wis. 660. Cora- 2 People V. Detroit, 28 Mich. 228. pare Gordon v. Comes, 47 N. Y. 60S. See also Dillon, Mun. Corp., § 74 a. ' 16 Mass. 76. 8 People V. Flagg, 46 N. Y. 401. « Bailey v. New York, 3 Hill, 531 ; * Philadelphia v. Field, 58 Pa. 320. Western Savings Fund Society v. Phila- 5 Callam v. Saginaw, 50 Mich. 7. delphia, 31 Pa. 175. 62 PROPERTY. [chap IV. A common,! or a ferry ,2 belonging to a community, is not neces- sarily the property of the people at large. Where a town has lawfully acquired land for the purpose of sale, the state cannot set it off to a newly erected municipality .^ A wharf from which a city is entitled to obtain a revenue cannot be made a free wharf unless compensation is given.* It has been held that the state cannot freely take the site of a city reservoir for a park." In the Mount Hope Cemetery Association v. Boston,^ it was decided that the city held a certain cemetery as in private proprietorship, and that the legislature could not compel the city to transfer the property to a private corporation without compensation. § 67. Property held by the corporation by virtue of its dedi- cation to a public use is of a peculiar character. It is held upon condition, and if the condition be broken by the diversion of the property to another use, the dedicator may assert his reversionary interest. ISTow as long as the purpose of the dedi- cation is carried out in fact, it seems immaterial whether it be accomplished by the corporation acting of its own motion, or at the behest of the state. Thus, where land was dedicated for a public square, it was held that the legislature could compel its use for municipal buildings, as this was within the scope of the dedication.'^ It also appears, that the state may cause the purpose of dedication to be furthered by an agency other than the municipality. Thus, a railroad company may be authorized to occupy land dedicated to a city for a public levee, without compensating the city, the trust being unimpaired as the com- pany was prohibited from charging wharfage.^ But the city may resist an attempt by the state to treat the property as its very own by granting it for a public use inconsistent with the purpose of dedication. Thus, it has been held that the state 1 Sheffield &T. St. Ry. u. Eand, 83 Pt. 1, 190. See also Railroad Co. v. Ala. 294. EUerman, 105 U. S. 166. 2 Benson v. New York, 10 Barb. 223. ^ Webb v. New York, 64 How. Pr. 10. 8 Town of Milwaukee v. City of Mil- ^ 1 58 Mass. 509. waukee, 12 Wis. 103. See also "Wind- ' Baird v. Rice, 63 Pa. 489. ham i>. Portland, 4 Mass. 384. 8 Portland & W. R. v. Portland, 14 1 EUerman v. McMains, 30 La. An. Or. 188. SECT. 68.] PUBLIC PEOPEETY. 63 cannot grant to a railroad company a right of way over land givcB to a city for a park.^ While it appears that the state can force the city to devote the property in question to any purpose within the purview of the dedication, it seems that the city cannot assert a right of private property against the state under any circumstances, for, if the state should put the property to uses foreign to the purpose of dedication, it must compensate the dedicator, whose right of property is thereby revived. § 68. The cases on state control over municipal property show a wide range of judicial opinion, in some respects. The extreme judgments are those of Duanesburgh v. Jenkins,^ which upholds an act forcing a town to bond itself in aid of a rail- road, upon the theory that what the legislature can permit a municipality to do it can compel it to do, and People v. Detroit,^ the reasoning of which, unless strictly limited to the case at bar, might prevent the state from compelling the municipality to fulfil all the proper purposes of its creation.* But the true theory of state control lies much nearer the second judgment than the first. The declaration of Judge Cooley in the Michigan case, that the state cannot " deprive the city of property actually acquired by legislative permission " presents, if rightly under- stood, the best law on the subject. The doctrine of a limited municipal independence does not involve the political absurdity of an autonomous municipality. It does not deny the control of the state in all matters of real state concern. But it recognizes a municipal interest distin- guishable in law, as it certainly is in fact, from the interest of the state, and accords to it a just protection. It is in harmony with social and economic conditions to which the spirit of laws must sooner or later conform.- The municipal corporation is the most complex of political organizations. It performs functions which neither the State, nor the Federal Governments can prop- 1 JacksonTille v. Jacksonville R., 67 2 57 N. T. 177. HI. 540; New Orleans, M. & C. R. v. = 28 Mich. 228. New Orleans, 26 La. An. 478. See * See DiUon, Muu. Corp., § 73. Warren v. Lyons City, 22 la. 351 ; Price V. Thompson, 48 Mo. 361. 64 PROPBETY. [chap. IV. erly assume, for it deals with the domestic affairs of people massed in communities. Just how far this desirable recognition of communal rights is generally obtainable without express con- stitutional enactment, it is impossible to say in the present state of the law, but there appears to be a strong and growing pre- possession in their favor.-* § 69. The courts are occasionally called upon to define the power of the state over the property of political cbrporations other than municipal. A road board was empowered to sell lands on which assessments had not been paid, and, in default of buyers, to hold the property for sale. A later statute con- templated the withdrawal of the lands from the control of the board. It was decided that there was not a deprivation of prop- erty, as the board was a mere public agency holding the land in trust for the state.^ It has been held that property of a state board of agriculture may be so far private that it cannot be handed over to a new corporation.^ Property of Eleemosynary Corporations, etc. § 70. Property which cannot be readily placed in either the purely political, or purely private class, is that held by corpora- tions upon eleemosynary trusts and the like. The courts are occasionally called upon to decide whether the power of the state may be freely exerted upon such property. In Dartmouth College V. Woodward,* it was held, that educational and chari- table corporations were not necessarily of a public character, that the college in question was not subject to the control of the State, and that its charter was a contract and, therefore, could not be impaired. A State attempted to divest the property of a university chartered by a preceding Territorial Government, upon the theory that the corporation was essentially public, and hence passed into its control. The act was characterized as an assumption of arbitrary power, as the corporation was private.^ 1 Consult The Legislature and the s Downing v. State Board, etc., 129 Streets, by Prof. H. J. Goodnow, 26 Am. Ind. 443. L. Rev. 520. * 4 "Wheat. 518. ^ Essex Eoad Board v. Skintle, 140 ^ Vincennes University v. State, 14 U, S. 334 ; 9. c. 49 N. J. L. 641. How. 268. SECT. 71.] PUBLIC PROPERTY. 65 A statute which declared that a chartered seminary should be thenceforth a common school, and as such should be under the control of the school directors, was pronounced void, as an attempt to transfer property arbitrarily from one corporation to another.^ Public Waters. § 71. The dividing line between public and private waters is not in all cases easy to determine, indeed its location is not always a matter of agreement. The proprietary right over waters is determined by the owner- ship of the underlying soil. According to the common law all land covered by tidal waters is public, all covered by non-tidal waters is private.^ In the United States, there is no uniform test for determining the title to subaqueous soil. Some States follow the common law, others discard it as inapplicable to the local physical conditions. There is substantial accord in respect to the publicity of tidal waters, but the sensible qualification has been made that such waters must be capable of useful navi- gation to be public, thus relegating tidal rivulets and the like to the list of private waters.** Tidal waters are not necessarily salt, but include fresh water affected by tidal action.* Eivers not affected by the tides are, in some States, considered private ac- cording to the common law.^ In other States the tidal test is deemed wholly inapplicable to countries traversed by non-tidal navigable streams, and such are held to be public.^ The great 1 Lebanon School Dist. v. Lebanon Bridge, 41 Mich. 453 ; Olson v. Merrilli Female Seminary, 22 W. N. C. (Pa.) 65. 42 Wis. 203 ; "Williamsburg Boom Co. 2 Bristow V. Cormican, 3 App. Cas. v. Smith, 84 Ky. 372 ; Magnolia v. Mar- 641. shall, 39 Miss 109 ; Atty.-Gen. t. Dela- 8 Glover V. Powell, 10 N. J. Eq. 211. ware, & E. B. R. 27 N. J.Eq. 631 ; Jones See also State v. Pacific Guano Co., 22 u. Soulard, 24 How. 41. See also State S. Car. 50; Wethersfield v. Humphrey, v. Pacific Guano Co., 22 S. Car, 50. 20 Conn. 218; Commonwealth v. Vin- « Carson n. Blazer, 2 Binn. 475; Ful- cent, 103 Mass. 441. mer v. Williams, 122 Pa. 191 ; People * Peyroux v. Howard, 7 Pet. 324 ; v. Gold Run T>. & M. Co., 66 Cal. 138 ; Atty.-Gen. v. Woods, 108 Mass. 436; Bullock v. Wilson, 2 Port. 436; St. Tinicum Fishing Co. v. Carter, 61 Pa. 21. Louis, I. M. & S. R. v. Ramsey, 53 Arli. 5 Puller V. Dauphin, 124 111. 542; 314; Union Depot, etc. Co. v. Bruns- Enfield Bridge Co. v. Hartford & N. H. wick, 31 Minn. 297 ; Shaw v. Oswego R., 17 Conn. 40; Chenango Bridge Co. Iron Co., 10 Or. 371 ; Benson o. Mor. I'. Paige, 83 N. Y. 1 78 ; Gavit w. Cham- row, 61 Mo. 345; McManus u. Car- bers, 3 Ohio, 495 ; Maxwell «. Bay City michael, 3 la. 1. See also Barney v- 66 PROPERTY. [chap. IV. lakes or inland seas are public.^ The smaller lakes are in some States private,^ in others public.^ In some cases courts are obliged to place certain waters in a special class, because they are subject to peculiar laws. Thus, in New York the Hudson above tide water and the Mohawk are public rivers, because they are so considered in the Dutch grants ; and the lakes lying within the territory acquired by treaty with Massachusetts are private, if for no other reason, because they were so by the law of the latter State* In Massachusetts the great ponds are'public, because so declared by the Colonial Ordi- nance of 1647.^ § 72. The proprietary rights of the United States attach to such waters only as are within the District and Territories. The fact that a river is an interstate boundary does not make it fed- eral property. For example, the title to the bed of the Mis- sissippi is in the riparian owner or the State according to the local law.s So far as federal waters are concerned, the common- law rule as to non-tidal waters has been generally reversed by statutes, which declare that the title of a riparian owner on navigable waters w-ithin the public lands of the United States does not extend beyond the bank.^ But it appears that if the State in which such lands are located follows the common-law rule as to the privacy of non-tidal waters, the riparian owner will hold to the centre of the stream.^ § 73. Where a body of water is public, the question arises as to what line on the shore the title of the state extends. In Keokuk, 94 IT. S. 324; Chicago, B. & « State v. Gilraanton, 9 N. H. 461 ; Q. R. V. Porter, 72 la 426 ; Norfolk Delaplaiue v. Chicago & N. R. 42 Wis. 0. Cooke, 27 Gratt. 430. 214. 1 People V. Jones, 112 N. Y. 597; « See Smith v. Rochester, 92 N. Y. Austin V. Rutland R., 45 Vt. 215 ; Rice 463. V. Rudtliman, 10 Mich. 126 ; Sloan v. * Watuppa Reservoir Co. v. Fall Biemiller, 34 Ohio St. 492 ; Illinois Cen- River, 147 Mass. 548. tral R. V. Illinois, 146 U. S. 387 ; Died- » Jones v. Soulard, 24 How. 41 ; Bar- rich u. Northwest Union R., 42 Wis. ney v. Keokuk, 94 U. S. 324. 248. ' Railroad Co. u. Schnrmier, 7 Wall 2 Hardin i. Jordan, 140 U. S. 371 ; 272. Clute V. Fisher, 65 Mich. 48 ; Cohb v- 8 Norcross v. Griffiths, 65 Wis. 599. Davenport, 32 N. J. L. 369 ; Gouverneur V. Nat'l Ice Co., 134 N. Y. 355. SECT. 73.] PUBLIC PROPERTY. 67 tidal waters the ownership of the shore is in the state up to high- water mark.i This rule is changed in Massachusetts and Maine by the Colonial Ordinance of 1647, which declares that the owner of the littoral shall own to low-water mark, so that he holds not more than one hundred rods below high-water mark,^ the boundary mentioned being extreme low-water mark.^ The boundary of the public estate in land under non-tidal waters is in some States the high-water mark,* in others the low-water mark.^ Where one owns to the shore bounding public waters and the shore line is advanced, the new land belongs, as a rule, to him. This whether the addition is due to deposits of alluvion,^ or to reclamation by the state's permission.' Upon the same principle a wharf unlawfully attached to the shore belongs to the riparian owner.^ The right of property in accretions may be qualified by the circumstances of the particular case. Thus, where the state permits a person to reclaim land beyond the terminus of a high- way, it is presumed that the highway is to extend over the reclaimed land,^ although this presumption may be rebutted by the terms of the grant. ^° A riparian owner received his land by a public grant which reserved a highway easement along the shore. The shore line was advanced by natural accretion, and a railroad corporation was authorized to build on the land thus formed. It was held that the owner of the fee was not injured, as the railroad was not inconsistent with the easement reserved.i^ 1 Long Beach Land, etc. Co. v. Rich- Minn. 297 ; Austin v. Rutland R., 45 Vt. ardson, 70 Cal. 206; New Jersey Zinc 215. Co. V. Morris Canal, 44 N. J. Eq. 398. « New Orleans v. United States, 10 2 Commonwealth u. Charlestown, I Pet. 662. See also Donovan v. New Pick. 179 ; Lapish v. Bangor Bank, 8 Orleans, 35 La. An. 461. Greenl 85. ' Hoboken Land, etc. Co. w. Pennsyl- 5 Sewall, etc. Co. v. Water Power vania R., 124 U. S. 656. Co., 147 Mass. 61. ^ Steers w. Brooklyn, 101 N. Y. 51. * Chicago, B. & Q. R. v. Porter, 72 ' People i . Lambier, 5 Denio, 9 ; la. 426. Hoboken Land, etc. Co. v. Hoboken, 36 5 Fulmer v. Williams, 122 Pa. 191 ; N. J. L. 540. Sherlock v. Bainbridge, 41 Ind. 35 ; i" Hoboken Land, etc. Co. u. Penn- Union Depot, etc. Co. v. Brunswick, 31 sylvania R., 124 U. S. 656. " 11 Cook V. Burlington, 30 la. 94. 68 PEOPEETY. [chap. IT. PRIVATE PROPEKTY. § 74. Private property is one of the most important and com- plex titles of the law of eminent domain. Many marked differ- ences of opinion as to what constitutes a taking of property are due to different answers to the primary question, — Is there a right of property involved ? The rights and obligations of the eminent domain extend to property of every sort,^ or, to adopt the more particular statement of Chief Justice Shaw,^ they extend " to real estate held in fee, or an easement or lien on real estate, or personal property, . . . every valuable interest which may be enjoyed as property and recognized as such." In controversies arising from expropriation private property may be viewed from two standpoints. From the standpoint of the expropriator it is simply the thing desired for public use. From the dominating standpoint of the owner it includes every valuable right which is affected by the act of expropriation. For example : A owns land which B condemns for a railroad right of way. The land is all that B wants, yet C may claim indemnity for the destruction of his private way across the land. B must pay for the useless easement in order to gain the useful land.^ § 75. A claim for compensation is sometimes resisted on the ground that the claimant has not a lawful property in the thing in question. If this position is substantiated the claim fails. One cannot assert a right in an unlawful possession or use of property.^ In Kingsland v. New York,^ the plaintiff's lessee had built sheds upon a wharf, with the consent of the city. This consent was unlawful, and, in condemning the wharf right, the city refused to pay for the sheds. The court sustained the city because the plaintiff had no property in unlawful erections. Land unlawfully reclaimed beyond the private water line is not 1 Eastern R. v. Boston & M. R., HI * Tainter v. Morristown, 19 N. J- Mas3. 125 ; Met. City R, v. Chicago, W. Eq. 46 ; Dwight Printing Co. v. Bos. D. R., 87 111. 317 ; Gulf, C. & S. F. R. v. ton, 122 Mass. 583. See also Pierce v. Fuller, 63 Tex. 467. Somersworth, 10 N. H. 369 ; Baltimore 2 Old Colony & F. R. E. a. County v. Warren Man. Co., 59 Md. 96. of Plymouth, 14 Gray, 155. 5 no N. Y. 569. 8 See § 134. SECT. 75.] PRIVATE PROPEETY. 69 property as against the state or its ageut occupying it for the public use.^ One cannot have compensation for the destruction of a crossing which lie had unlawfully maintained over a high- way,''^ nor for buildings unlawfully erected within the limits of a highway.^ A nuisance may be separable from the property which sup- ports it. In such case the separation should be made, and compensation paid for the lawful property. A corporation re- sisted a claim for compensation on the ground that the premises were rented for immoral purposes. The court admitted that evidence showing that the premises had been rendered less valu- able for immoral purposes would be incompetent, on the ground of public policy, but held there was a lawful property in the premises themselves, notwithstanding the uses to which they were put.* A possession, wrongful as against the state, may yet give a right against a corporation acting under an authority which does not treat the possession as illegal.^ Thus, where one built upon land laid out, but not opened, as a street, the erection was con- sidered private property as against a railroad company seeking a right of way, although the city, on opening the street, might abate it as a nuisance.® The same principle is illustrated in Eenwick v. Eailroad Company.'^ A person, acting under the authority of the State of Iowa, built an embankment in the Mississippi Eiver above low-water mark. The United States having asserted their power to prohibit the erection of such works, a railroad company chartered by the State refused to make compensation for a right of way pver the embankment, on the ground that it was a purpresture. The Supreme Court decided that, although the embankment was a purpresture, the United States had not moved to abate it, and so were not inter- 1 See Union Depot E. v. Brunswick, 483. See also Ely v. Supervisors, 36 31 Minn. 297. N. Y. 297. " Harvey v. Lackawanna & B. R., 47 * White v. South Shore E., 6 Cush. Pa. 428. 412; Mason v. Harper's Ferry Bridge, ' Thibodeaux v. Maggioli, 4 La. An. 20 W. Va. 223. See also Prospect Park 73 ; Pittsburgh, V. & C. E. v. Eose, 74 & C. L R. v. Williamson, 91 N. Y. .552. Pa. 362. 6 Quigley v. Pennsylvania, S. V. E.. * Lawrence v. Met. El. K., 126 N. Y. 121 Pa. 35. ' 102 U. S. 180. 70 PEOPEETY. [chap. IV. ested in the case ; that as far as the public were concerned the railroad was as unlawful as the embankment ; and that, in the absence of federal intervention, the company must pay compen- sation according to the law of the State. Where one leases land from a city, and covenants not to sublet it without the lessor's consent, a breach of the covenant does not enable a railroad com- pany condemning the land to refuse compensation to the sub- lessee, on the ground that he has not a lawful possession. The city alone can take advantage of the breach of a covenant made for its benefit.! § 76. Does the rule that property in custody of a receiver cannot be made the subject of suit until the permission of the court is obtained apply in respect to condenmation ? It has been so applied in England in the case of an infant's land,^ and in this country in the case of corporate property in the hands of a receiver appointed by a federal court. ^ In Central Railroad Company v. Pennsylvania Eailroad Company,* the court said : " If it be contemplated to take its [a corporation in the hands of a receiver] land by condemnation, the consent of this court will, in deference to the tribunal and the orderly adminis- tration of justice, be sought, and in a proper case it will be accorded as a matter of course." The question is not of much practical importance, perhaps, as the consent of the court would be as readily obtained in the case of condemnation as in an ordinary suit. But as a matter of principle we are inclined to agree with Mr. Wood,^ that the consent of the court is not necessary in order to condenin property in the hands of a receiver. Beal Property. ■'§ 77. The subjection of land, using the word in its common meaning, to the right of eminent domain, is so evident that the citation of supporting cases is unnecessary. But among the wider uses of the word in law is that it describes earth and 1 Ehret .,. Schuylkill River E. S. B., s West. TJn. Tel. Co. v. Atlantic & P. 151 Pa. 158. Tel. Co., 7 Biss. 367. 2 Tink V. Eundle, 10 Beav. 318. i 31 N. J. Eq. 475. ^ Railway Law, 1666. SECT. 77.] PRIVATE PEOPEKTY. 71 water in every natural condition, and all things artifically an- nexed to them. Hence where there is an authorization express or implied to condemn land, the expropriator may take land under water,i a coal bed,^ land with buildings upon it,-' and in fine all improvements, interests, and appurtenances included within the term " real estate." * A singular case is Matter of Board of Street Opening, etc.,^ where a church corporation objected to the condemnation of the fee of one of its graveyards for a park, on the ground that such action would effect the absurd result of taking for public use the bodies interred. The court sustained the condemnation as that of ordinary private land, at the same time intimating that the city succeeded to the responsibilities of the church corporation with regard to the decent disposition of the bodies. Public authorities have been authorized to condemn mate- rials for the construction and repair of highways.^ Courts have approved the extension of this right to railroad,^ and canal companies.* The Lauds Clauses Act provides for the taking or injurious affecting of " lands or . . . any interest therein ; " ^ and lands are defined as " messuages, lands, tenements, and hereditaments of any tenure." ■"' Among the things not included are a right of the directors of a corporation to use a board-room at certain times for certain purposes,-*^ and pipes placed in a street by a water-com- pany. ^^ One having the right as one of the public to bring boats to a dock has not an interest in land, although the right is pecu- liarly valuable to him, owing to the nearness of his property to the dock.'^ ' New York Cent. R. K., 77 N. Y. Vt. 365 ; Strohecker v. Alabama & C. 248. R., 42 Ga. 509. See New York & C. R. 2 Brown v. Corey, 4.3 Pa. 495. a, Gunnison, 1 Hun, 496. 3 Brocket v. Ohio & P. R., 14 Pa. ^ Wheelock v. Young, 4 Wend. 647. 241. See Highway Case, 22 N. J. L. 9 See § 68. 293. See § 238-241. i" See § 3. ■• State V. Tichenor, 41 N. J. L. 345. " Municipal Freehold, etc. Co. v. 5 62 Hun, 499 ; s. c. 133 N. Y. 329. Metropolitan R., 1 Cababe & Ellis, 184, « Hatchw.Hawkes, 126 Mass. 177. See i^ New River Co. v. Midland R., 36 also Kemper v. Cincinnati & C. W. Turn- L. T. 539. pike, 1 1 Ohio, 392. See §§ 104, 208, 276. ^ Queen v. Met. Bd. of Works, L. R., ' Vermont Cent. R. v. Baxter, 22 4 Q. B. 358. 72 PROPERTY. [chap. IV. § 78. A difficult question in respect to the control of waters in the public interest, is the determination of the existence and extent of a private right. Assuming that there is a private property in the water, it is rarely characterized by the broad right of enjoyment which accompanies property in the soil. It may be subjected to a public easement.^ It may be itself but an easement in public waters, a riparian right.^ Finally, it is usually qualified by the equal rights of other private proprie- tors. Where a city condemns the water from all the springs and streams on certain land, compensation should be assessed upon the theory that the owner's right in the water is limited to its reasonable use in connection with his own land. Although he cannot sell all the water, he may sell as much as will not diminish the stream to the injury of lower proprietors, and this qualified right should be considered in assessing compensation.* § 79. It sometimes happens, that the acquisition of an ease- ment, or other incorporeal right, will directly further the public use. Again, it may be that public property cannot be freely utilized because it is subject to private easements. Far more frequently the condemnation of land affects incidentally ease- ments and appurtenances connected therewith. In any case the easement is property within the purview of the right of eminent domain.* The most important easements affected by the emi- nent domain are the riparian right,^ and the private easement in streets.® Evidence may be given of a prescriptive right to pol- lute water.^ Where one released a private way over the land of another, and the land was afterwards condemned, it was held that he could not have compensation for the deprivation of a way of necessity.^ A mere privilege, dependent on the will of 1 See § 420. 2 gee § 91. v. Boston & A. R., 155 Mass. 505 ; In- ' Harwood v. West Randolph, 64 dianapolis & C. Road v. Belt Ry., 110 Vt. 41. See Clark v. Pennsylvania R., Ind. 5 ; Galena & S. W R. v. Haslam, U5 Pa. 438. 73 111. 494 ; Met. City R. v. Chicago, « Arnold v. Hudson River R., 55 "W. D. R., 87 111. 317. See also Barlow N. Y. 661 ; Eleventh Ave., 81 N. Y. 436 ; v. Ross, 24 Q. B. D. 381. Story V. New York El. R., 90 N. Y. 122 ; ^ gee § 91. Philadelphia, W. & B. R. v. Williams, ^ gee Ch. xin. 54 Pa. 103 ; Pear.sall t. Supervisors, 74 ' Martin v. Gleason, 139 Mass. 183. Mich. 558 ; Boston Gas Light Co. v. Old 8 Richards v. Attleborough R., 153 Colony & N. R., 14 Allen, 444 ; Googins Mass. 120. SECT. 81. J PRIVATE PEOPBETT. 73 another party, is not property, and need not be considered in the assessment of compensation.^ It has been held that a privilege which any one may enjoy cannot be considered as enhancing the value of a particular tract, although its special utility in connection with the tract is evident. Hence, com- pensation has been refused for cutting off access from a farm to a watering-place for cattle, situated on the further side of a highway.2 § 80. A singular controversy has arisen recently between tele- phone and electric railway companies. The return current of the telephone is frequently carried by the earth. The return current of the electric railway is carried by the rails. It often happens that electricity escapes from the rails, runs in indeter- minable courses through the earth, and affects the telephone cur- rent. Upon these admitted facts telephone companies have sued the promoters of electric railways, alleging an interference with a right of property in the soil secured to them by charters per- mitting the construction and operation of telephone lines. The courts in this country have usually denied the claim of an exclu- sive property in the earth based on the mere incorporation of a telephone company.^ But in a recent English decision,* the prevailing American view was discarded as being opposed to the principle of Eylands v. Fletcher,' although relief was denied upon another ground.^ Personal Property. § 81. It has been said that money is not subject to the right of eminent domain, except that in time of war a forced loan might be justified under this power.^ This view has been deemed to restrict unduly the potentialities of the power, and 1 Ranlet v. Concord R., 62 N. H. 561 ; St. 390 ; Hudson River Tel. Co. w.Water- Clapp V. Boston, 133 Mass. 367 ; Hatch vliet R., 135 N. Y. 393 ; Richards u. V. Cincinnati & I. R., 18 Ohio St. .92; Attleborough R., 153 Mass. 120. Strickland v. Pennsylvania R., 154 Pa. * National Tel. Co. v. Baker (1893), 348. 2 Ch. 186. ^ Gorgas v. Philadelphia, H. & P. R., ^ l, r,_ 3 h. L. 330. See § 146. 144 Pa. 1. 6 See § 145. ' Cumberland Tel. Co. v. United ' People v. Brooklyn, 4 N. Y. 419. Electric R., 42 Fed. Rep. 273 ; Cincin- See also Burnett v. Sacramento, 12 Cal. nati, etc. R. v. Telegraph Ass'n, 48 Ohio 76 ; Cooley's Const. Lim., 6th ed. 647.., 74 PROPEETY. [chap. IV. it has been said that, not only in the crisis of war, but in times of pestilence or famine, the state may forcibly borrow nioney.^ The writer has not found a case where the avowed object of au act is the condemnation of money. But this object was discovered, and tlie act set aside in Gary Library v. Bliss,^ where a corporation was empowered to exercise the eminent domain, in order to gain control of a library fund vested in the selectmen of a town. Justice Bradley, in his dissenting opinion in the Sinking Fund Cases,^ declared' that when a corporation was obliged by its charter to pay a debt at a certain time, a sub- sequent command to set aside annually a sum of money as a sinking-fund was not merely the impairment of a contract, but " an actual or physical taking of property." Statutes command- ing the expenditure of money by virtue of the police power have been already considered.* They are sustained if they compel the performance of a duty to which the person or corporation affected is already subject, but not if the duty be arbitrarily im- posed. Putting aside the possibility of a forced emergency loan, as beyond the normal conditions on which our laws are based, it may be said that money is not subject to condemnation. It cannot be said that personal chattels are not subject, theo- retically, to the eminent domain. But, as in the case of money, it would be difficut to prove a necessity for their expropriation under normal social conditions, at least under the rule of Ameri- can constitutional law. A right of action is property which may be affected by the exercise of the eminent domain. Where one has a right to re- cover damages for the flooding of his land, it cannot be trans- ferred to a corporation except on compensation.^ One whose reversionary interest in land has been damaged during the wrong- ful occupation of a railroad company cannot bring his action after his interest has been condemned, for the company has, in effect, condemned and paid for the right of action.^ 1 Hammett v. Philadelphia, 65 Pa. * Neponset Meadow Co. v. Tileston, 146. 133 Mass. 189. 2 151 Mass. 364. 6 Duulap v. Toledo, A. A. & G. T. E., 8 99 U. S. 700, 746. 50 Mich. 470. See also Morris Canal * See § 15. Co. V. Townseud, 24 Barb. 658. SECT. 83.] PRIVATE PEOPERTY. 75 The patentee of an invention has a complete right of property in it, for the patent is granted as of right, not of favor. There- fore, the United States cannot make use of an invention without compensation.^ But the government may enact that a person in whose shop a machine is set up before the issuing of the patent by the inventor, an employee, may continue to use it without compensation.^ § 82. Contracts. — An important title of our present sub- ject is that of contracts, especially those which are expressed in corporate charters. When the Supreme Court decided in the Dartmouth College case,^ that a corporate charter was a con • tract, fears were expressed lest the beneficiaries might be pos- sessed of impregnable monopolies. These fears were dissipated by the decision in West Eiver Bridge Company v. Dix,* in which it was declared that corporate franchises could be divested on payment of compensation. A franchise, then, is property subject to the eminent domain.^ The subjection of franchises to the eminent domain is expressly declared in many State Constitutions.^ An act which enables railroad companies owning riparian land to own and employ vessels for the carriage of freight, and prohibits companies not owning such land from condemning it, is in conflict with a constitutional declaration tliat the eminent domain shall not be so abridged that corporate property and franchises cannot be condemned.'' § 8.3. The fact that the franchise is an exclusive one, the ordinary mark of an exclusive franchise being the right to exclude competition within a certain territory,^ does not prevent '' United States v. Burns, 12 Wall. Georgia, ir. 2 ; Idaho, xi. 8 ; Illinois, 246; Janies !). Campbell, 104 U. S. 356. xi. 14; Kentucky, § 195 ; Mississippi, ^ Dable Grain Shovel Co. v. Flint, vii. 25 ; Missouri, xii. 4 ; Nebraska, xi. 137U. S. 41. 6; North Dakota, vii. 134;Pennsyl- ' Dartmouth College w. Woodward, vania, xvi. 3; Washington, xii. 10; 4 Wheat. 518. West Virginia, xi. 12; Wyoraiug, x. 9. * 6 How. 507. ' Thomas v. Wabash, S. L. & P. R., ^ Backus V. Lebanon, 11 N. H. 19; 40 Fed. Rep. 126. Sunderland Bridge, 122 Mass. 459. See * Binghamton Bridge Case, 3 Wall, also §§ 165-168. 51 ; Mohawk Bridge i: Utica & S. R., 6 ^ Alabama, i. 24 ; Arkansas, xvii. 9 ; Paige, 554 ; California Tel. Co. o. Alta California, xii. 8 ; Colorado, xv. 8 ; Tel. Co., 22 Cal. 398. 76 PROPERTY. [chap. IV. its subjection to the eminent domain.^ The distinction between an ordinary franchise and an exclusive one produces important results. An act which will injure the latter may not affect the former.^ Further, the exclusive franchise is the more valuable, and therefore exacts a larger compensation for its impairment. Chancellor Kent was of the opinion, that the grant of a right to construct a work of public utility, a bridge for example, contains an implied promise not to assist a competing work.^ This opinion has not prevailed. The rule is that an exclu- sive franchise will never be inferred from the mere grant of a privilege, but that the claimant of such a franchise must show a positive intention on the part of the state.* But an exclusive franchise within what Justice Story has termed the "local limits " of the work in question,^ that is, the land actually used, seems to be granted by a charter which does not plainly with- hold it. For example, where a coach company habitually used the tracks of a street railway company, they were held to invade an exclusive franchise, although it did not appear that the latter company had such a franchise as would enable them to question the paralleling of their line.^ § 84. There is a property in a private contract, and its condemnation may be within range of state necessity, and, con- sequently, of state power.'^ Shares of stock may be condemned, when this is a convenient method of acquiring the property which they represent.^ Thus the state may authorize a corpora- 1 West River Bridge v. Dix, 6 How. cuse, H6 N. Y. 167 ; Tuckahoe Canal v. 507; New Orleans Gas Light Co. v. Tuckahoe R., II Leigh, 42; Raritan & Louisiana Gas Light Co., 115 U. S. 650; D. R. v. Delaware & R. Canal, 18 N. J. Boston & L. R. v. Salem & L. R., 2 Eq. 546 ; Johnson v. Crow, 87 Pa. 184; Gray, 1 ; Red River Bridge v. Clarks- St. Louis, &c. R. v. St. Louis Un. R., 108 ville, 1 Sneed, 176. 111. 265 ; Lehigh Water Co.'s Appeal, 102 2 See § 167. Pa. 515 ; Bush v. Peru Bridge, 3 Ind. 21. 3 Newburgh Turnpike Co. «. Miller, See also Lehigh Water Co. v. Easton, 5 Johns. Ch. 101. See also Justice Story 121 U. S. 388. in Charles River Bridge u. Warren ^ Charles River Bridge a. Warren Bridge, 11 Pet. 420. Bridge, U Pet. 420, 613. See also * Charles River Bridge v. Warren Union Ferry Co., 98 N. Y. 139. Bridge, 1 1 Pet. 420 ; W. & B. Bridge ;■. 6 Citizens' Coach Co. v. Camden Wheeling Bridge, 138 U. S. 287 ; Salem Horse R., 33 N. J. Eq. 267. 6 H. Turnpike v. Lyme, 18 Conn. 451 ; ' See § 169. Auburn & C. Plankroad v. Douglass, 9 8 gee People v. Kelly, 76 N. Y. 475 ; N. Y. 444 ; Syracuse Water Co. v. Syra- Kensington Turnpike, 97 Pa. 260. SECT. 86.] PEIVATE PROPERTY. 77 tion entrusted with the consolidation of several railroads to condemn the shares of unwilling stockholders.^ But the effect of the eminent domain upon contracts is, as a rule, merely inci- dental. They are affected by the condemnation of the property to which they relate. Private Rights in Public Property. § 85. Property requiring special consideration is that which is carved out of the public domain by express or implied grant, or which takes the form of a private right or easement in the public estate. The most important of these easements are that which is held in some States to appertain to land abutting on a street,^ and the riparian right.^ § 86. state Grants. — It sometimes happens, that a state grant is asserted in order to fix upon the property in question the stamp of private ownership. If the claim is substantiated the grant is treated in all respects as an ordinary conveyance. The legislature cannot arbitrarily resume it on grounds of public policy,* nor set it aside on the score of corrupt obtainment, where the property has passed into innocent hands.^ But because tlie state cannot surrender its eminent domain,® it follows that prop- erty granted may be resumed on payment of compensation. A grant of state property must be made by the state itself, or its agent duly authorized. Agents in immediate control of such property cannot of their own motion permit its subjection to private rights. Hence a city cannot, without legislative au- thority, release to private persons land within the lines of a high- way,' nor grant to a corporation the use thereof.^ One who had drawn water from a state canal for many years, was not per- mitted to assert a prescriptive right, because the agents in charge of the canal had no authority to grant any permanent interest in its waters.^ 1 Black M. Delaware & R. Canal, 24 ^ Fletcher v. Peck, 6 Cranch, 87. N. J. Eq. 455. See Lamnanp. Lebanon ' See § 100. Val. E., 30 Pa. 42. ' Hoboken L. & I. Co. u. Hoboken, 2 See § 416. 36 N. J. L. 540. ' See § 91. 8 See § 397. * Terrett v. Taylor, 9 Cranch, 43. » Burbank v. Fay, 65 N. Y. 57. 78 PEOPEETY. [CHAP. IT. § 87. What may be granted by the state ? The distinction between property which the state holds by virtue of sovereignty, and that which it holds as in private proprietorship, is noticed elsewhere.^ Now it has been said that the state cannot part with any property except that which it holds as a private pro- prietor.^ This statement needs explanation. In Martin v. Waddell,^ it was held that the state could not abdicate its con- trol over navigable waters, for it would then abdicate its sover- eignty* In Inhabitants of Charlestown v. County Commissioners,^ Chief Justice Shaw declared that the control of the sovereign over public waters was so absolute that, it could fill up a public stream.^ These statements are consistent. One is based upon the surrender of public interests into private hands. The other is not predicated upon an abdication of sovereignty, but upon the alteration of a thing over which sovereignty has been exer- cised in a particular manner, — the obliteration by the public of a trust deemed to be no longer expedient. The power of the state to deal with land held upon special public trusts, has been carefully examined by the Supreme Court of the United States in the recent case of the Illinois Central Eailroad Co. v. Illinois.^ The State sought to assume control over certain lands underlying a large part of the harbor of Chicago, which it had previously granted to the corporation. The Court, through Justice Field, assumed that the act under which the corporation claimed title was, in its intention, " an absolute conveyance to it of title to the submerged lands, giving it as full and complete power to use and dispose of the same, except in the technical transfer of the fee, iu any manner it may choose, as if they were uplands, in no respect covered or affected by navigable waters, and not as a license to use the lands sub- ject to revocation by the State." The court found, that " The act, if valid and operative to the extent claimed, placed under the control of the railroad company nearly the whole of the sub- 1 See § 59. 53 Met. 202. 2 Gould V. Hudson Eiver E.,6 N. Y. e gee also Gough v. Bell, 22 N. J. L. 522, Edmonds, J. 441 ; Connecticut River Co. v. Olcott 8 16 Pet. 367. Falls Co., 65 N. H. 290; Langdon v. •• See also Bedlow v. Dry Dock Co., New York, 93 N. Y. 129. 112 N. Y. 263. 7 146 U. S. 387. SECT. 87.] PRIVATE PROPERTY. 79 merged lands of the harbor, subject only to the limitations that it should not authorize obstructions to the harbor, or impair the public right of navigation, or exclude the legislature from regu- lating the rates of wharfage or dockage to be charged. With these limitations the act put it in the power of the company to delay indefinitely the improvement of the harbor or to construct as many docks . . . and other works as it might choose, and at such positions in the harbor as might suit its purposes, and per- mit any kind of business to be conducted thereon, and to lease them out on its own terms for indefinite periods. . . . The in- hibitions against authorizing obstructions to the harbor and impairing the public right of navigation placed no impediments upon the action of the railroad company which did not previ- ously exist." It was decided that the State held the submerged lands in trust for the people, that by the act in question the abdication of this trust was intended, and that the act was, there- fore, at the most, a revocable grant, which was in fact revoked by the passage of a repealing act. It was admitted that the State might grant parcels of land underlying navigable waters for uses intended to promote the public convenience. " But that is a very different doctrine from the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to pre- serve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the prop- erty. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of with- out any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the dis- tinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substan- tially impair the public interest in the lands and waters remain- ing, and a grant of the whole property in which the public is 80 PKOPBRTY. [chap. IV. interested, that the language of the adjudged cases can be recon- ciled." Tliree justices dissented from the decision, and two did not take part in the case. The dissent of the minority was voiced by Justice Shiras, who held that the original grant vested a right of property in the grantee which could be divested only by the right of eminent domain. The distinction drawn by the majority between the power to make special and general grants of submerged lands, was considered untenable. The objection of the minority, that the decision justifies itself merely upon a dis- tinction between a large grant and a small one, does not seem to be well founded. The real justification appears in the fact, that " the act put it within the power of the company to delay inde- finitely the improvement of the harbor or to construct as many docks . . . and other works as it might choose, and at such posi- tions in the harbor as might suit its purposes." That is to say, the legislature vested with the power to maintain a harbor and develop it, when, and in such manner, as the public interests might demand from time to time, attempted to transfer the con- trol to a corporation, which in its discretion could hasten or retard development, and which, in its action or inaction, would subserve its own interest, and not necessarily that of the public. There appears to be nothing in the principles enunciated in The Illinois Centi'al Eailroad Company v. Illinois, which would pre- vent the state from delegating to an agent the execution of a comprehensive plan for the improvement of a harbor for the benefit of the public, and permitting it to impose reasonable charges for the facilities furnished, for the state would then retain its control over the harbor. Nor is there anything to prevent the state from authorizing the reclamation of the land underly- ing a harbor, for it would then alter the nature of specific public property. The decision simply declares, that as long as a body of water is a harbor in fact, the state cannot abdicate its trust in respect to it, cannot make its utility depend on the will and ability of a private corporation. § 88. The state's grant is to be effectuated, of course, in strict accordance with its terms, but the ordinary rule of conveyancing is reversed. In case of ambiguity, the grant is to be construed SECT. 88.] PRIVATE PEOPERTY. 81 against the grantee,^ except, it seems, where the grant is made for a valuable consideration.^ A lease of land under water to a corporation having perpetual existence, containing words appro- priate to the conveyance of a fee, and reserving a yearly rent with right of entry on default, has been so construed as to vest the whole estate in the corporation.^ Where the United States have granted land to a State in order that it may be sold to defray the cost of improving a river, there is no reserved right to flood the land in making the improvement.* If the grant is not express, the intent to grant must be clear.* Where the legislature authorized the condemnation of land sup- posed to be private property, but which proved to belong to the state, the statute was declared ineffective, as the legislature con- templated the condemnation of private property, not the aliena- tion of public lands.® Where one is in possession of public property under a revo- cable license, an assertion of dominion over the property by the state or its duly authorized agent is a revocation of the license.'' But the licensee may assert a right of property against a cor- poration acting under an authority which does not contain a revocation of the license.^ Thus, assuming that one has the use of public waters under a revocable license, it is a property riglit as against a corporation whose charter does not empower it to take the waters.® The state may authorize a private corporation to use public property for a purpose not inconsistent with its present use. In such case the interest granted is usually subject to the reserved right to do all things necessary and proper for the maintenance and improvement of the prior use. Thus, where a railroad, gas, or water company are allowed to lay their plant in a street they cannot object because it is injured by an alteration in grade or 1 Allegheny v. Ohio & P. R., 26 Pa. Ohio St. 157 ; Cuckfield Burial Board, 355. 19 Beav. 153. 2 SeeLangdon b. New York, 93 N. Y. ^ Jones v. Tatham, 20 Pa. 398. 129. " 7 Elster v. Springfield, 49 Ohio St. 2 Hudson Tunnel Co. i^. Atty.-Gen., 82. 27 N. J. Eq. 573. 8 Alexandria & F. R. u. Faunce, 31 * Zemlock v. United States, 73 Wis. Gratt. 761. 363. 9 Proprietors of Mills u. Braintree 5 State V. Cincinnati Central K., 37 "Water Supply Co., 149 Mass. 478. 82 PEOPEETY. [chap. IV. other improvement,^ unless indeed the improvement is unneces- sary, or is negligently made.^ A water company obliged to move pipes laid in a street, in order to prevent their being injured by an alteration of grade, cannot have redress under a statute which gives compensation to owners of land adjoining a highway.^ § 89. Whether one in possession of public lands of the United States may assert a right of property on their devotion to a specific public use, and, if so, what the basis of assessment shall be, depends wholly on the nature of the possession. One who has a right of pre-emption, but has not perfected title by payment, is not entitled to compensation.* A homesteader who has not resided upon the land for the number of years necessary to acquire title is yet entitled to compensation for the injury to his possession.^ One holding a timber-culture claim should be compensated for an injury to the claim, but not for an injury to the land itself.^ § 90. The custodians of property held to public use may have their right to control it denied by one claiming title by adverse possession or prescription. If the claim is substantiated, the stamp of private ownership is impressed upon the property, and it can be reclaimed to the public use only by purchase or condemna- tion. According to the principle expressed in the rule, nullum tempus occurrit regi, title cannot be gained by adverse possession in property of the state," unless indeed the state submits itself to the operation of a statute of limitation.* A distinction has been drawn between public land in general, and public prop- erty impressed with a specific use, and it has been held that the former may be lost by a long continued adverse possession.^ ^ Koanoke Gas Co. v. Eoanoke, 88 Sture, 32 Minn. 95. See also Knoth v. Va. 810 ; Middlesex E. v. Wakefield, Barclay, 8 Col. 300. 103 Mass. 261 ; Montgomery v. Capital ^ Chicago, K. & "\V. E. v. Hurst, 41 City Water Co., 92 Ala. 361. See also Kan. 740 ; Hastings & G. I. E. a. Ingalls, Gas Light Co. v. Hart, 40 La. An. 474. 15 Neb. 123. 2 West Phila. Pass. R. v. Philadel- ' See United States v. Nashville, C. phia, lOPhila. 70; GasLight,&c. Co. I). & S. L. E., 118 U. S. 120. St. Mary Abbott's, 15 Q. B. D. 1. 8 Nichols v. Boston, 98 Mass. 39; 8 Jamaica Pond Aqueduct Co. v. Atty.-Gen. v. Eevere Copper Co., 152 Brookline, 121 Mass. 5. Mass. 444; Knight v. Heaton, 22 Vt. * West. Pacific E. v. Tevis, 41 Cal. 489. 480. 6 Burlington, K. & S. E. v. Johnson, ' Crooke v. Pendleton, 23 Me. 339 ; 38 Kan. 142 ; Eed Elver & L. W. E. v. Jackson v. McCall, 10 Johns. 377 ; Bur- SECT. 91.] PRIVATE PKOPERTT. 83 Now it may be that a continuous possession of public lands for very many years will, under certain circumstances, ripen into a title. But the right of the state to these lands cannot be divested by the mere operation of a statute of limitations. ^ It is held that the protection accorded to the interests of the state should not be extended to the subordinate political cor- poration in respect to the property which it holds upon local trusts.^ Thus, it has been decided that title by adverse pos- session may be gained in land held to the use of a county poor- house.^ A question upon which there is' a decided difference of opin- ion is whether title by adverse possession can be gained by an encroachment upon a street. It has been held that a street is so far affected by the local character of the municipality that an encroachment is a direct injury to the municipality, not the state. Therefore the former cannot set up the sovereign plea in answer to a claim of title by adverse possession.* But the better rule recognizes the paramount interest of the state in highways, wherever they lie,^ and forbids the acquisition of private rights in them by adverse possession.^ There is no question but that title by adverse possession may be gained in property held to public use by private corporations, such as railroad companies.' § 91. Riparian Rights. — Where a body of water is public, the question arises whether it is subject to a riparian right, — a private easement appurtenant to the bank. It must be premised bank v. Fay, 65 N. Y. 57. Compare ^ See § 397. Burgess v. Gray, 16 How. 48. ^ Driggs v. Phillips, 103 N. Y. 77 ; ' Lindsey v. Miller, 6 Pet. 666. See "Wolfe v. Sullivan, 133 Ind. 331 ; Kopf also Oaksmith's Lessee v. Johnston, 92 v. Utter, 101 Pa. 27 ; Lee u. Mound U.S. 343. Station, 118 111. 304; Witherspoon v. 2 Mowry v. Providence, 10 R. I. 52. Meridian, 69 Miss. 288; Sheen v. Sto- See also Oxford Township v. Columbia, thart, 29 La. An. 630 ; Cross v. Morris- 38 Ohio St. 87. town, 18 N. ,1. Eq. 305 ; Hoboken, L. & ' Evans v. Erie County, 66 Pa. 222. I. Co. v. Hoboken, 36 N. J. L. 540. See * Fort Smith v. McKibbin, 41 Ark. also Hoadley v. San Francisco, 50 Cal. 45; Dudley v. Frankfort, 12 B. Mon. 265; Simmons o. Cornell, 1 R. I 519; 610; Wheeling!,'. Campbell, 12 W.Va. Burbank ... Fay, 65 N. Y. 57. See 36 ; Cincinnati v. Evans, 5 Ohio St. 594. Coleman v. Thurmond, 56 Tex. 514. See also Rowan's Ex'rs v. Portland, 8 ' Turner v. Fitchburg R., 145 Mass. B. Mon. 232. 433. 84 PROPERTY. [chap. IV. that this easement appertains only to the bank of a natural body of water, not of water artificially collected,-' as a reservoir.'^ The riparian right is, in its simplest form, a right to front on navigable water, but does not include the privilege to dock out below high-water mark. It is a right, therefore, to such access as can be enjoyed without the aid of permanent improvements.^ A more complete riparian easement is that which, in addition to the right of access, includes the right to dock out to low-water mark, subject, of course, to reasonable regulation in the interests of navigation.* By the local custom of New Jersey, the owner of land adjoining public waters has an implied license to wharf out or reclaim to low-water mark, and such license when executed is irrevocable.^ Wherever the riparian right exists, it includes access to the water from all parts of the property in question, even though access be habitually gained from a particular part only.^ § 92. In certain States it has been held that there is no such thing as a riparian right to access.'' In obedience to this rule, it has been held that the State may empower a railroad company to lay their tracks along the fore-shore without com- pensating the riparian owner for the interference with access to the water.8 The doctrine of these cases is flatly opposed to the current of authority both here and in England, but it is a 1 See Fox River Flonr Co. v. Kelley, 133 N. Y. 79. See also Farist Steel Co. 70 Wis. 287 ; Bank of Anburn v. v. Bridgeport, 60 Conn. 278 ; Buccleuch Roberts, 44 N. Y. 192. v. Met. Bd. of Works, 5 H. L. 418; 2 Finn ... Providence Gas, etc. Co., Lyon v. Fishmonger's Co., 1 App. Cas. 99 Pa. 631. 662; North Shore R. v. Pion, 14 App. 2 Tinicum Fishing Co. c. Carter, 61 Cas. 612. Pa. 21. See also Barre W.Fleming, 29 6 Bell v. Gongh, 23 N. J. L. 624; W. Va. 314. Stevens v. Paterson & N. R., 34 N. J. L. < Yates V. Milwaukee, 10 Wall, 497 ; 532. Weber v. Harbor Comm., 18 Wall. 57 ; 6 Buccleuch v. Met. Bd. of Works, Potomac Steamboat Co. v. Upper Poto- L. R., 5 H. L. 418. mac Steamboat Co., 109 U. S. 672 ; Case ' Austin v. Rutland R., 45 Vt. 215 ; V. Toftus, 39 Fed. Rep. 730 ; Diedrich v. Eisenbach v. Hatfield, 2 Wash. 236 ; Northwest Union R., 42 Wis. 248 ; Tomlin v. Dubuque, B. & M. R., 32 Meyers v. St. Louis, 82 Mo. 367 ; Parker Iowa, 106. V. West Coast Packing Co., 17 Or. 510; 8 Stevens v. Paterson & N. R., 34 Lake Superior Land Co. v. Emerson, 38 N. J. L. 532 ; Gould u. Hudson River Minn. 406; Bond v. Wool, 107 N. C. R., 6 N. Y. 522. 139 ; Rumsey v. New York & N. E. R. SECT. 93.] EXEMPT PliOPERTY. 85 notable example of the slow crystallization of the common law of England, that only within a few years has the riparian right been definitely established, and, to attain this result, the House of Lords have twice reversed the decisions of inferior courts.^ In New York, the rule in Gould v. Hudson Eiver Eailroad Company ^ long received recognition, though its correctness was sometimes doubted. But in a recent case in a federal court a riparian owner denied the right of the city of New York to wharf out in front of land which had been granted to him as far as high-water mark. His position was sustained on the ground that the rule in Story ■;;. New York Elevated Eailway Company,^ that a public grant of land on a street carries with it an ease- ment of access, is equally applicable to a grant of land on a waterway.* The Court of Appeals have very lately definitely overruled the Gould case, and declared that there appertains to riparian land the right to wharf out to the navigable part of the water, subject to the public rights in navigation.^ Laying aside all question in respect to a riparian right attach- ing to the ownership of the natural bank, it is settled that where a wharf is erected under a valid grant from the State an easement of access attaches to it.® EXEMPT PROPERTY. § 93. Although all property is subject to the right of eminent domain, it may happen that one may be in a position to avail himself of a statute, or a conclusion of law, which exempts his property from condemnation for the use in question. An ex- emption is not necessarily inferred from the fact that the prop- erty is reserved by the state for a particular use, where the use is not distinctly governmental. Thus, land may be condemned, although set apart as an Indian Keservation,'^ or reserved from ' Buccleuch o. Met. Bd. of Works, ^ Rumsey v. New York & N. E. R., L. R., 5 H. L. 418 ; Lyon v. Eish- 133 N. Y. 79. See Kerr v. West Shore mongers Co., 1 App. Caa. 662. R., 127 N. Y. 269. i! 6 N. Y. 522. 8 Langdon v. New York, 93 N. Y. 8 90N.Y. 122. See§404. 129; Williams w. New York, 105 N.Y. 419. * Van Dolsen v. New York, 17 Fed. ^ Cherokee Nation v. South. Kansas R. 817. See also Kane v. New York El. R., 135 U. S. 641 ; Wadsworth v. Hy. R., 125 N. Y. 164. draulio Ass'n, 15 Barb. 83. 86 PEOPEETY. [chap. IV. sale by the Constitution on account of its adjacency to salt springs.! Although tide flats cannot be reclaimed by the owner, without license from the state, they may be condemned by the local authorities for a cemetery without special authority .^ § 94. statutory Exemption. — The state cannot irrevocably relieve property from subjection to the eminent domain,'' but it may find it expedient to annex to a grant of the power the condition that property of a particular description shall not be condemned.'' Where a statutory prohibition against taking a certain sort of property is not absolute, but is conditioned upon inability to suitably locate the undertaking elsewhere, the condition is to be liberally construed in favor of the public work.^ Assuming that the state may agree not to condemn speci- fic property ,s the exemption laws in question are not to be treated as agreements. These laws create general exemptions, are based on mere considerations of policy, and may be freely repealed. § 95. There are eminent domain statutes which exempt cer- tain structures from condemnation, especially dwellings. A bil- liard saloon attached to, and used in connection with, a hotel is part of a dwelling-house.' It has been held that a dwelling- house does not include the curtilage,^ but the better rule pro- tects such part of the curtilage as is necessary to the enjoyment of the dwelling, as distinguished from that which merely adds to its desirability or convenience.^ The fact that the construc- tion of a railroad through the curtilage will impair access to the dwelling is not material. ^^ The platform of a railroad station is not necessarily within the purview of a statute prohibiting the laying out of roads through buildings. ^^ If a railroad has been 1 Parmelee u. Oswego & S. R., 7 ^ 'W'ells v. Somerset & K. E., 47 Me. Barb. 599. 345. 2 Wyman «. County Comm., 157 ' Swift's Appeal, 111 Pa. 516; Mass. 55. Damon's Appeal, 119 Pa. 287. 3 See § 100. 10 Lyle v. McKeesport & B. V. K., * Hays V. Briggs, 74 Pa. 373. 131 Pa. 437. 6 Cummins v. Shields, 34 Ind. 154. n New York & L. B. K. v. Drum- 8 See § 100. mond, 46 N. J. L. 644. ' State V. Troth, 36 N. J. L. 422. SECT. 96.] EXEMPT PEOPEETY. 87 built on a strip narrower than the maximum allowed, and a building is afterwards erected close to the track, the owner may resist the widening of the right of way to the original limit, by pleading a statute which forbids the company to take a building without consent.^ A structure must be in existence at the time the initial steps are taken for the construction of the public work, in order to be within the statutory protection.^ Where dwellings occupied by owners are exempted by statute, the occupation must be lona fide? Statutes forbidding the forced location of a public work within a certain distance of a dwelling, are occasionally submitted for judicial construction.* It has been held that a statute, prohibit- ing the location of a railroad within sixty feet of a dwelling without the consent of the owner, does not forbid a location within sixty feet upon land belonging to another person.^ A prohibition against the location of a cemetery within a certain distance of a dwelling, is not violated by the condemnation for this purpose of land on which a dwelling stands.^ § 96. An exemption of improved land has been construed so as to include land fenced." It is frequently enacted that gardens, orchards, and the like shall not be condemned, especially where the power is exercised for the laying out of highways. It is not sufficient that the land in question is enclosed within the fence of a garden, it must be cultivated.^ So, it has been held that, in claiming exemption for an orchard, it must be shown that there will be an actual interference with the trees.^ But the protection of the statute should extend over as much ground adjacent to the cultivated part of a garden, and the trees in an orchard, as is necessary to their care and use.^" ' Alabama Great Southern R. v. ' Richmond & Y. R. R. v. Wicker, Gilbert, 71 Ga. 591. 13 Gratt. 375. 2 Carris v. Gomm., 2 Hill, 443 ; State ^ Crowell v. Londonderry, 63 N. H. <;. Waldron, 17 N. J. L. 368. 42. * Hagner v. Pennsylvania, S. V. R., ' Jackson v. Rankin, 67 Wis. 285. 154 Pa. 475. See also Morris v. Schalls- * People v. Coram., 57 N. Y. 549. ville, etc. R., 4 Bush, 448. » Snyder v. Trnmpbour, 38 N. Y. 355. * Chesapeake & 0. R. v. Pack^ 6 W. w Seymour v. State, 19 Wis. 240. Va. 397. 88 PROPERTY. [chap. IV. Where a flowage act prohibits interference with a mill site unless it has been abandoned, abandonment through non- user may be inferred,^ but it is a question of fact for the jury.^ Where an artificial provision for water is protected from con- demnation, a body of water collected for supply is meant, not water collected for mill purposes.^ Although railroad property enjoys a certain protection, for the reason that it is already devoted to public use,* there are statutes which specifically protect such property from condem- nation in the absence of direct authorization. In these statutes a "roadbed" means the tracks, and sufficient space to allow the movement of trains, but does not include the slope of an embankment.^ § 97. Exemption of Property by Implication. — No rule of the eminent domain is more firmly established than this. Prop- erty already devoted to public use is so far favored by the state that it cannot be taken in furtherance of a new use, unless the legislature plainly intends it to be.^ The evidence of legislative intention, and the question as to the affecting of the prior use, are considered elsewhere.^ The inquiry here is simply as to what property comes under this head. It is not necessary that the property should be actually ac- quired by the right of eminent domain in order to impress it with the stamp of public utility.^ The test is the obligation to hold the property to public use, — an obligation imposed by law. The fact that a corporation voluntarily assumes public functions, such as those of a common carrier, does not impress its property 1 Curtiss w. Smith, 35 Conn. 156. Thompson, 98 N. Y. 6; Wheeling 2 McArthur o. Morgan, 49 Conn. Bridge v. Wheeling & B. Bridge, 34 347. W. Va. 155; Milwaukee & S. P. R. v. 8 Bass D. rt. Wayne, 121 Ind. 389. Faribault, 23 Minn. 167; Atlanta v. * See §§ 176-180. Cent. R., 53 Ga. 120; Railroad Co. v. 6 Mobile & G. R. v. Ala. Midland Belle Centre, 48 Ohio St. 273. See also R., 87 Ala. 520. Bottomly v. Chism, 102 Mass. 463. * Pennsylvania R. Appeal, 93 Pa. ' See §§ 176-180. 150; Springfield v. Connecticut River " Providence & W. R., 17 R. I. 324; K., 4 Cush. 63 ; Boston & M. R. u. St. Paul Union Depot Co. v. St. Paul, Lowell & L. R., 124 Mass. 368 ; Boston 30 Minn. 359. See also Eldridge v. Smith, & A. R„ 53 N. Y. 574; NewYorlt Cent. 34 Vt. 484. See Alexander Ave., 17 & H. R. R., 77 N. Y. 248; People v. N. Y. Supp. 933. SECT. 98.J EXEMPT PEOPEETY. 89 with a public character.^ A cemetery owned by a cliurcli cor- poration is not property devoted to public use.^ A market company, enjoying simply the franchise to be a corporation, and maintaining a market not open to the public as of right, cannot require evidence of direct authority to condemn their property.^ Property within the implied exemption must be such as the corporation could have condemned.* Hence, a railroad company cannot object to the condemnation of a wharf, where they hold it in their private not their public capacity.^ The fact that certain property is " affected with a public in- terest" within the principle of Munn v. Illinois,^ does not, it appears, enable its owners to take advantage of the rule. Thus, land used by a gas company which have not the right to condemn, is not within the purview of the rule, although the corporation is of a public character.' It would seem that land acquired by the right of eminent domain for such a purpose as a private road or lateral railroad, is not entitled to the same consideration as property devoted to an undertaking of more marked publicity. § 98. A corporation cannot claim exemption for land, the possession of which is not necessary for the purposes of its incor- poration.^ Thus protection wiU not be accorded to land used for storing lumber while a bridge is being repaired.® The fact that the property in question is not in actual public use will frequently warrant its condemnation without special authority .1" But while a corporation cannot condemn land for 1 New York, L. E. & W. R., 99 N. Y. 413 ; Grand Rapids v. Grand Rapids & 12. I. R., 66 Mich. 42 ; Peoria, P. & J. R. v. 2 Board of Street Opening, 133 N. Y. Peoria & S. E., 66 111. 174. See also Old 329. See Balch v. County Comm., 103 Colony R. v. Farmington Water Co., Mass. 106. 153 Mass. 561 ; North Carolina R. v. 8 Market Co. v. Phila. & R. R., 142 Carolina Cent. R., 83 N. C. 489. Pa. 580. ' Wheeling Bridge v. Wheeling & * See Railroad Comm., 83 Me. 273. B. Bridge, 34 W. Va. 155. But see Barre R. v. Montepelier & W. i" Lake Pleasanton Water Co. v. E. R., 61 Vt. 1. Contra Costa Water Co., 67 Cal 659; 6 Iron E. . Algire, 63 Md. See Strong v. Brooklyn, 68 N. Y. 1. 319 ; Irish v. Burlington & S. R., 44 Iowa, " Eastern Pa. R. v. SchoUenberger, 380. See also Barre R. v. Montpelier & 54 Pa. 144 ; Murdock ii. Prospect Park W. R., 61 Vt. 1 ; Murdock v. Prospect & C. I. R., 73 N. Y. 579; Rusch v. Mil- Park & C. I. R., 73 N. Y. 579. waukee, L. & W. R., 54 Wis. 136. ' Hoch v. Metropolitan El. Ry., 59 * Harlow v. Marquette, H. & 0. R., Hun, 541. See also Burkam v. Ohio 41 Mich. 336 ; Selden v. Delaware & H. & M. R., 122 Ind. 344 ; Wolfe v. Coving- Canal, 29 N. Y. 634. ton & L. R., 15 B. Mon. 404 ; Pratt v. 5 People V. Goodwin, 5 N. Y. 568; Des Moines & N. R., 72 Iowa, 249. Turner v. Stanton, 42 Mich. 506. See ^ Baker u. Chicago, R. I. & P. R., Merriam v. Meriden, 43 Conn. 173. 57 Mo. 265. See also Cumberland Val 122 ACQUISITION BY DEED, ETC. [CHAP. VI. CottriU V. Myrick,^ it was held that where an act authorized commissioners to enter upon lands and make fishways, a parol assent to entry was binding even if an interest in land was involved, a deed being unnecessary as the act of the legislature was a matter of record. It has been suggested that the reason for the difference of opinion as to the status of a licensee is, that iu States where irrevocability is maintained the law courts have equitable jurisdiction.^ This is probably so, for the difference is, after all, generally one of method, as where the strict law of revocability is applied the licensee may upon revocation proceed to condemn, and may enjoin the owner from interfering with his possession pending the proceedings.^ After an occupation by consent the landowner cannot sue in tort, but must have recourse to the statutory action.* § 132. Where the promoters of a public work enter upon land and build without objection, they do not acquire any legal rights. But they may be benefited in this, that the owner may be es- topped from enforcing his rights in order that the promoters may secure their possession by condemnation ;^ and in this also, that in the event of condemnation their improvements will not be treated as a part of the owner's estate.^ Further, a subsequent ratification of their possession by the owner may relate back to entry. Thus, where proceedings to condemn, begun after an occupation without protest, were compromised and released, it was held that the corporation took title by the occupation, not by the proceedings. Therefore, one who had leased the property between the entry and the release was refused compensation, as the public easement antedated his lease.'' § 133. Acquisition by Prescription or Adverse Possession. — Public rights in private property may be acquired by prescrip- tion or adverse possession.* It has been held that a period of R. V. McLanahan, 59 Pa. 23. See ^ See § 386. Baltimore & H. E. v. Algire, 65 Md. * Cassidy v. Chicago & N. R., 70 337 ; Maxwell v. Bay City Bridge, 41 Wis. 440. Mich. 453 ; Marble v. Whitney, 28 N. Y. ^ See §§ 379, 382. 297. 6 See § 239. 1 12 Me. 222. ' Lawrence's Appeal, 78 Pa. 365. 2 See Foot v. New Haven & N. Co., ' Bumpus v. Miller, 4 Mich. 159; 23 Conn. 214. Sherlock v. Louisville, N. A. & C. B., SECT. 133. J ACQUISITION BY DEED, ETC. 123 adverse possession is not commeneed by the successful prosecu- tion of a condemnation proceeding, not foRowed by actual pos- session of the land, for the reason that, such proceeding being summary and in invitum, the courts wiU not assume that the judgment has been paid in a case where possession has not been taken. ■• The fact that a corporation claiming title had at the time of entry the right to establish its position by making compensation, does not necessarily make its possession subordi- nate to the owner's rights.^ Indeed it has been intimated that acquiescence is not to be presumed in respect to one who has no -choice but to acquiesce, as is the case where property is taken for public use.^ When land taken by unlawful proceedings is held by adverse possession for the statutory period, the area affected is not necessarily conterminous with the part actually used, but is the whole tract against which the proceedings were directed.* In a case where the possession originated in an entry of an experimental character, which was not supposed to affect private rights, the court said, "There was no conscious or intended adverse holding by the company and no conscious or intended submission by the plaintiff. While that mutual ignorance may not legally change the situation, it is an element in the conduct of the parties which must be taken into account." ^ The possession on which the prescriptive right is based must be not only continuous, but continuous with respect to the very use for which it is claimed.^ This proposition is well illustrated in a recent case. A corporation built along a street an elevated railroad operated by cable. No compensation was paid to the 115 Ind. 22 ; New York v. Carleton, 113 ^ Xva.. Bank Note Co. v. New York N. Y. 284; Eldridge «. Binghamton, El. Ry., 129 N. Y. 252. See also Lehigh 120 N. Y. 309 ; Miner v. New York, C. Val. R. v. McFarlan, 43 N. J. L. 605. & II. R. R., 123 N. Y. 242 ; Pierson v. ^ Jessup v. Loucks, 55 Pa. 350. Cincinnati & W. Canal, 2 Disney (Ohio), * Cogsbill v. Mobile & G. R., 92 Ala. 100; Weld v. Brooks, 152 Mass. 297; 252. See also Hargis v. Kansas City, Ely V. Parsons, 55 Conn. 83 ; Langdon C. & S. R., 100 Mo. 210. V. State, 23 Neb. 509. See also Cowell ' Am. Bank Note Co. v. New York V. Thayer, 5 Met. 253 ; Oliphant v. El. Ry., 129 N. Y. 252. Commissioners, 18 Kan. 386. See Meyer « Cotton u. Pocasset Man. Co., 13 V. Phillips, 97 N. Y. 485. Met. 429. 1 Chicago & N. W. E. v. Gait, 133 lU. 657. 124 ACQUISITION BY DEED, ETC. [OHAP. VI. abutters, because it was not supposed that they had easements in the street. Afterwards, and during the alleged prescriptive period, the location of the road was somewhat altered to the increased disadvantage of the abutters, and steam-engines were substituted for the cable. The court held that the alterations broke the continuity of possession.^ Where the state acquires a prescriptive right to divert water into a stream flowing through private land, it does not acquire a right in the soil, and, there- fore, cannot enlarge the bed of the stream without paying compensation.^ Where it is enacted that a road used as a public highway for twenty years or more shall be a highway, proof that the pubUc have travelled over it for twenty years is insufficient. The road must have been adopted or repaired by the public authorities.^ 1 Am. Bank Note Co. v. New York 3 Speir v. New Utrecht, 121 N. Y. El. Ry., 129 N. Y. 252. 420. 2 Coleman v. State, 134 N. Y. 564. SECT. 134.] INTERFERENCES WITH PRIVATE PROPERTY. 125 CHAPTER VII. INTERFERENCES WITH PRIVATE PROPERTY IN FURTHER- ANCE OF PUBLIC PURPOSES. § 134. The chief object of this chapter is to determine the meaning of a taking of property by the right of eminent domain. The title chosen is sufficiently broad to cover all sorts of damage to property caused by the construction and operation of public works. A full understanding of the liabilities of the promoters of such works is essential to the comprehension of the narrower subject of a taking. The exercise of the right of eminent domain necessarily effects a taking of property. The usual constitutional declaration ex- presses this in terms, as it requires compensation to be paid for property " taken " for public use. Taking property usually means getting possession of it. As far as the interest of the expropriator is concerned, this means getting, and paying for, just what property is needed for the public use, and no more. But to the property needed may be attached property which the expropriator does not want, perhaps cannot use, which indeed may be impaired, even destroyed, by the act of condemnation. Such property, whether it be an improvement belonging to the owner of the soil, or a franchise or easement belonging to another person, must be paid for.^ It is taken by force of the appropria- tion of the land required. A taking then, in its simplest mean- ing, is the acquisition of property needed for public use, together with all its appurtenances. The second accepted meaning of a taking carries the word beyond the idea of actual or presumed acquisition. Where part of a tract of land is acquired the whole is' taken, in the sense that compensation must be paid for certain damage to the remainder. 1 See § 74. 126 INTEKFEEENCES WITH PRIVATE PROPEETY. [CHAP. VII. The difficult question is, whether the meaning of a taking shall be further extended, so as to cover certain damage to prop- erty not connected with that acquired. An affirmative answer will be assumed. We have then these definitions of a taking : (a) the acquisi- tion of property ; (b) the damaging of property connected with that acquired ; (c) the damaging of property not connected with that acquired. ACQUISITION OF PROPERTY. § 135. A taking of the simplest and commonest sort is the physical acquisition of property for the purpose of using it in furtherance of public works. This, as we have seen, may be accompanied by the incidental taking of appurtenant rights. But there may be other acts within the primary definition of a taking. Acquisition may be for use, and yet be not physical. Thus, if one is obliged to refrain from using his land in any way that will intercept the rays from a lighthouse lantern, there is a direct acquisition of a beneficial interest in the property.^ So, an interest in land is directly acquired where a work is carried across it at an elevation.^ Acquisition may be physical, and yet not literally for use. Property may be taken in order to be destroyed for the public good.^ Finally, acquisition may be neither physical, nor for use. When a toll bridge is made free, a franchise is destroyed.* The construction of a railroad in a street may directly take private easements.® The vacation of a street may destroy private ease- ments of access.^ It may be said, therefore, that wherever there is a direct assumption of dominion over private property, it is taken. The reports contain many cases wherein statutes have been unsuccessfully assailed on the ground that they authorize a tak- ing of property for public use without compensation. Several 1 See Chappell v. United States, 34 * See § 168. Fed. Rep. 673. 6 Story v. New. York El. E., 90 N. Y. 2 See Jones v. Erie & W. R., 151 122. See also §§ 406, 416. Pa. 30. 6 Pearsall c Supervisors, 74 Mich. 8 See § 23. 558. See also §§ 409, 411. SECT. 136.] OCCUPATION OP PART OP A TEACT. 127 classes of these statutes have been considered, and it appears that it is not a taking of property to tax it,^ to affect it under the police power,^ to subject it to certain rules in respect to devolution,^ nor to regulate rights held in common.* Where the government, in treating" with a foreign power, surrenders a claim of one of its citizens against the foreign state, it does not take the property of the claimant.^ The owner of farm land is not deprived of any property by reason of its inclusion within the boundaries of a city.® DAMAGE TO PROPERTY CONNECTED WITH THAT ACQUIRED.— OCCUPATION OF PART OF A TRACT. § 136. The rule, that where part of a tract of land is acc[uired for public use the whole is taken, in the sense that compensa- tion must be paid for certain damage to the remainder, is widely approved.^ Detailed consideration of injuries to the remainder of a tract is deferred to the chapter on Compensation, for these are rarely independent injuries, but are simply elements which go to swell the amount of compensation. In determining these elements, a more liberal rule is frequently adopted than that which governs the definition of liability in the case of damage to property untouched by the works. Where a corporation con- demns part of a tract it is compelled, usually, to compensate for pretty much all the effects of construction and operation which can be fairly said to lessen the value of the remainder. For example, while the owner of property near to, but not touched by, a railroad may not be allowed compensation on account of risk of fire,^ he may have the risk considered when a part of a tract is taken.^ The following reason for the distinction is sug- 1 See §§ Zi, 25. La. An. 1045 ; New York, L. & W. R., 2 See § 23. 27 Hun, 151; Springfield & S. R. v. 8 See § 26. Calkins, 90 Mo. 538 ; Hyde Park v. * See § 27. Dunham, 85 111. 569 ; Wilmes u. Min- * Meade v. United States, 9 Wall, neapolis & N. R., 29 Minn. 242 ; SuUi- 691, overruling s. c. 2 Ct. CI. 224. See Tan v. Supervisors, 58 Miss. 790 ; Ban- Jones w. Walker, 2 Paine C' C. 688. gor & P. R. v. McComb, 60 Me. 290; 8 Calleu V. Junction City, 43 Kan. Watson v. Pittsburg & C. R., 37 Pa. 627. 469. See §§ 189, 190. ' Edmands v. Boston, 108 Mass. 535 ; » gge § 147. Vicksburg, S. & P. R. v. Dillard, 35 9 See § 259. 128 INTERFERENCES WITH PRIVATE PROPERTY. [CHAP. VII. gested in a leading English case : ^ " Where however the mis- chief is caused by what is done on the land taken, the party- seeking compensation has the right to say it is by the act of Parliament and the act of Parliament only that you have done the acts which caused the damage. Without the act of Par- liament everything you have done and are about to do in the making and using of the railway would have been illegal and actionable, and is therefore matter for compensation." . . . DAMAGE TO PROPEETT NOT CONNECTED WITH THAT ACQUIRED. — RULE THAT PERSONS ACTING UNDER LEGISLATIVE AUTHORITY ARE NOT RESPONSIBLE FOR CONSEQUENTIAL INJURIES. § 137. Where the promotion of a public use causes damage to property other than that acquired in whole or in part, ques- tions arise as to the existence and extent of liability, which are among the most important and difficult pertaining to our subject. Is the act a taking ? Is it a common-law trespass ? If the latter, is it legitimated by the authorization of the state ? These points will be considered under the comprehensive ques- tion : For what damage to property, not connected with that acquired, is the state, or its agent, liable, in the absence of an express constitutional or statutory declaration of liability for consequential injuries ? There is a familiar rule to the effect that, where persons authorized to prosecute a certain work act within their author- ity, and with due care and skill, they are not responsible at common law for consequential damage to property."'^ In Eng- land the rule can be applied to any case. As Lord Blackburn has said :^ " No action can be maintained for anything which is done under the authority of the legislature, though the act is one which, if unauthorized by the legislature, would be injuri- 1 Stockport, T. & A. R., 33 L. J. 136 Mass. 239; Beseman v. Pennsyl- Q- B. 251. vania R., 50 N. J. L. 235; Governor, 2 Transportation Co. v. Chicago, 99 etc. v. Meredith, 4 T. R. 794. U. S. 635 ; Radclift's Ex'rs v. Brooklyn, ' Caledonian R. v. Walker's Trus- 4 N. Y. 195 ; Benner v. Atlantic Dredg- tees, 7 App. Cas. 259. ing Co., 134 N. Y. 1 56 ; Sawyer v. Davis, SECT. 138.J CONSEQUENTIAL INJURIES. 129 ous and actionable. The remedy of the party who suffers the loss is confined to recovering such compensation as the legisla- ture has thought fit to give him." In the United States it will appear that the rule cannot be applied where the injury amounts to a taking of property within the constitutional declaration. Indeed, there is some disposi- tion to doubt the power, of an American legislature to authorize any nuisance without compensation.^ So, it has been said that "the legislature may authorize small nuisances without com- pensation, but not great ones." ^ But according to the specific provisions of the constitutions, which do not expressly require compensation for property damaged for public use, it is only a taking of property that cannot be authorized without liability. Kow in none of the cases cited was the broad proposition that every nuisance is a taking necessary to the decision, even if it were suggested in the opinion. These opinions should be viewed as merely advanced expressions of that liberal defini- tion of private rights in the face of state power, which, as will be presently shown, has so greatly modified the original harsh- ness of the rule. § 138. The grant of a privilege by the state does not neces- sarily bring the grantee within the purview of the rule. Thus, where the state, having but the sovereign control over a stream in the interests of navigation, grants to a private proprietor the right to build a dam, or alter the course of the stream upon his own land, the grantee is in no sense a public agent. He is a beneficiary under a private statute, and cannot plead it in justi- fication of the flooding of adjacent property. He is a private person lawfully using his own, and responsible under the com- mon law for such injury as he may inflict upon his neighbor.^ Nor does the mere fact that an undertaking is of public benefit, or is a business "affected with a public interest," in that it is ' See Baltimore & P. R. v. Fifth 2 Bacon 0. Boston, 154 Mass. 100. Baptist Church, 108 U. S. 317; Pennsyl- See also Sawyer u. Davis, 136 Mass. vania R. v. Angel, 41 N. J. Eq. 316 ; 239. Cogswell V. New York, N. H. & H. R., ' Crittenden «. Wilson, 5 Cowen, 103 N. Y. 10; Eaton v. Boston, C. & 165; Sinnickson v. Johnson, 17 N. J. L. M. R., 51 N. H. 504 ; Hare, Am. Const. 129. Law, ii. 756. 130 INTEKFBEENCBS WITH PRIVATE PROPERTY. [CHAP. VII. obliged to serve all customers at reasonable rates,^ make its promoters public agents. Public agents are those to whom pub- lic powers are confided.^ Hence, a gas company, not invested with the right to condemn, cannot plead authority in bar of an action on account of a nuisance caused by the operation of its works.* § 139. It has been held that all persons and corporations authorized by the state enjoy the protection of the rule ; that there is no distinction, for example, between the road-board lay- ing out highways with public funds, and the corporation build- ing a railroad with private funds.* On the other hand, there are opinions in which a line is drawn between political and private corporations, the former being within the rule, the latter not.^ Thus in Benner v. Atlantic Dredging. Company ,8 the defendants, acting under tlie authority and for the benefit of the United States, blasted rock with due care and skill, but in so doing damaged the plaintiff's property by vibration. Judgment was given for the defendants, and the earlier decision in Cogswell v. New York, New Haven & Hartford Eailroad Company,'' was distinguished on the ground that it imposed a liability upon a private corporation. If this distinction rests simply upon the proposition that authority to inflict consequential damage is more readily in- ferred in the case of a political corporation, than where a private corporation is concerned, it is correct.^ But if a radical distinc- tion is meant it does not seem tenable. Whatever be the con- stitutional limitations upon the power to affect private property in the public interests, they restrain the state as strictly as the corporations which it creates. Beyond these limitations, the 1 See § 18. Eelvidere & D. E., 26 N. J. L. 148; 2 See Metropolitan Asylum Dist. v. Pennsylvania R. <... Angel, 41 N. J. Hill, 6 App. Cae. 193. See also § 97. Eq. 316. See also Sntton v. Clarke, 6 3 Bohan v. Port Jervis Gas Light Taunt. 29 ; Baltimore & P. R. f. Eea- Co., 122 N. Y. 18. ney, 42 Md. 117 ; Transportation Co. v. 4 Bellinger v. New York Cent. R., Chicago, 99 U. S. 643; Alexander v. 23 N. Y. 42. See also Beseman v. Milwaukee, 16 Wis. 247. Pennsylvania R., 50 N. J. L. 235. « 134 N. Y. 156. 6 Baltimore & P. R. v. Fifth Baptist ' 103 N. Y. 10. Church, 108 TJ. S. 317 ; Booth v. Rome, 8 gee § 142. W. & 0. R., 140 N. Y. 267 ; Tinsman v. SaCT. 140.] CONSEQUENTIAL INJURIES. 131 legislature is free to regulate the liability of those who promote public uses. There is no reason, in law, why a private corpo- ration should not be deemed capable of receiving the protec- tion that can be accorded to a political corporation. Take the extreme but supposable case of two railroads, one operated by public authorities, the other by a private corporation. Must the legislature discriminate against the latter in respect to liability ? The propriety of according equal protection is, in most cases, more than doubtful, but the power to accord it cannot be denied without imposing an extra-constitutional limitation upon the legislature. Assuming then that the legislature can legalize an act which, in the absence of authorization, would create a com- mon-law nuisance, there seems to be no ground, on principle, for restricting the beneficiaries to political corporations. 7s the Damage Authorized ? § 140. Wherever the authority of a statute is pleaded in defence to an action for consequential injury, its existence and sufficiency must be clearly shown. Where the legislature author- izes a thing to be done, which can be fairly accomplished with- out creating a nuisance, it will be assumed that the legislature intends that it shall be done in that way.^ Thus the authority given to a city to construct sewers does not permit the mainte- nance of an avoidable nuisance.^ The statute may be so worded as to grant a conditional authority to do a thing, — to do it, if it can be done without creating a nuisance.^ A statute may contain a warrant for the doing of a thing sufficient to protect the actor from indictment for a nuisance, and yet insufficient to bar a private suit for damages. That 1 Eames v. New England Worsted of St. Mary Abbott's, 15 Q. B. D. 1 ; Co., H Met. 570; Sawyer v. Davis, 136 Met. Asylum Dist. v. Hill, 6 App. Cas. Mass. 239; Morse v. Worcester, 139 193. Mass. 389 ; Cogswell o. New York, N. 2 Haskell v. New Bedford, 108 Mass. H. & H. E., 103 N. Y. 10; Hudson 208. Eiver Tel. Co. v. Watervliet R., 61 s Bacon v. Boston, 154 Mass. 100; Hun, 140; Edmondson v. Moberly, 98 Dubacb v. Hannibal & S. J. R., 89 Mo. Mo. 523 ; Pasadena v. Stimson, 91 Cal. 483 ; Broadbent v. Imperial Gas Co., 238 ; Jones v. Festiniog R., L. R. 3 7 De G. M. & G. 436. Q. B. 733 ; Gas Light, etc. Co. i;. Vestry 132 INTEEFEKENCES WITH PRIVATE PROPERTY. [CHAP. VII. is to say, the public may be willing to suffer a detriment for the sake of a presumably greater advantage, and yet concede the right to redress to one suffering special damage.^ Thus the state's permission to build a dam across a stream fully protects the builder from indictment for an interference with public rights therein, but does not affect his liability to one whose lands are flooded.^ § 141. Express Authority. — There are a few cases where a particular nuisance is held to be expressly authorized by the legislature. In a recent English case,^ a corporation was empow- ered to buy a particular tract of land for a cattle-yard. The resulting nuisance was declared to be expressly authorized, as the place was designated.* Where the ringing of a factory bell had been adjudged a nuisance, a statute subsequently passed per- mitting such bells to be rung was successfully pleaded in bar of an action.® § 142. Implied Authority. — Where authority to create a nuisance exists it is usually inferential. According to some decisions, the rule for the detection of the legislative authority is simple enough, — given the authorization of a work of public purpose, and we have the authorization of all damages not due to negligent or improper construction.® Thus, where a company carefully built a railroad, but by so doing caused the flooding of the plaintiff's land, the damage was declared to be without remedy, as it resulted from the authorized construction of the work.'' The broad test of legislative authority adopted in the decisions just cited is not generally approved by the best judicial opinion of the present time. When the main rule in respect to the immunity of public agents came into being, public undertakings 1 See Baltimore & P. R. v. Fifth < See Met. Asylum Dist. v. Hill, 6 Baptist Church, 108 tJ. S. 317 ; Snell v. App, Cas. 193. Buresh, 123 111. 151. 6 Sawyer v. Davis, 136 Mass. 239. 2 Trenton Water Power Co. v. Raff, 6 Philadelphia &, T. R., 6 Whart. 25 ; 36 N. J. L. 335 ; Crittenden v. Wilson, Monongahela Nav. Co. d. Coons, 6 W. 5 Cowen, 165. & S. 101 ; Moyer o. New York Cent. & s London B. & S. C. R. v. Truman, 11 H. R. R., 88 N. Y. 351. App. Cas. 45, reversing s. c. L. E. 29 ' Bellinger «. New York' Cent. R., 23 Ch. D. 89. N. Y. 42. SECT. 142.] CONSEQUENTIAL INJURIES. 133 were comparatively few, and rarely disturbed the enjoyment of neighboring property. Moreover, these undertakings were usu- ally promoted by the public authorities. But during the present century the list of public works has been lengthened, and the range and severity of consequential damage greatly increased. A further change from the old condition is evidenced by the ubi- quity of private corporations promoting public works, especially railroads. It will appear that this radical change in physical and economic conditions has brought about, in most jurisdictions, a narrower definition of the damage for which the public agent is not liable.-' Further, the change has warranted a closer scrutiny in respect to authorization, even in cases where immunity can be conferred. Although we do not admit a radical distinction between political and private corporations in their capacity to receive legisla- tive protection,^ yet the intent to protect may be more readily inferred in the former case. The private corporation takes the initiative, usually for its own profit. It is a voluntary agent, and acquires public powers by petition, or compliance with the terms of a statute. The political corporation usually performs a duty cast upon it by the public. A distinction has even been drawn between public corpora- tions according as the promotion of the undertaking is discre- tionary, or mandatory. Thus, in Managers of the Metropolitan Asylum District v. Hill,^ the managers were authorized to pur- chase land within a certain district for a small-pox hospital. A site having been selected, an owner of neighboring property applied for an injunction. The court assumed that the hospital would be a nuisance, and granted the injunction because the statute did not authorize the creation of a nuisance. Said Lord Watson, "Where the terms of the statute are not imperative but permissive ; when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair infer- ence is that the legislature intended that discretion to be exer- cised in strict conformity with private rights, and did not intend 1 See §§ 146-152. » 6 App. Cas. 193. « See § 138. 134 INTERFERENCES WITH PRIVATE PROPERTY. [OHAP. VH. to confer license to commit nuisance in any place which might be selected for the purpose." ^ § 143. The inferential authority pleaded in bar of an action must cover two points, the act complained of, and its commission at the place in question. It has been said that there is no statutory authority, unless " it can be fairly said that the legis- lature contemplated the doing of the very act which occasioned the injury." ^ Engine-houses, freight and cattle yards, etc., may be necessary adjuncts to a railroad, yet, if they are so located in a town as to cause injury to neighboring property, it has been held that their obvious convenience from the standpoint of the corporation will not raise the presumption that the legislature intended that they should be thus located.^ Where a city is authorized to condemn land within a district for a sewer and sewerage works, it is not thereby authorized to locate the works where they will create a nuisance.* A plank-road corporation was authorized to erect toll gates "as such corporation shall deem suitable to its interests," but the court held that it was not authorized to put up a gate at a point where it actually damaged the plaintiff's property.^ WTiat is " Due Care and Skill " ? § 144. The rule is emphatic in denying protection where the damage results from the negligent or improper use of powers.® The requirement of due care and skill should be observed by the manifestation of these qualities in the actual prosecution of the work, — that is, whatever is done should be done properly ; and, 1 See also Morton w. New York, 140 K., 66 Cal. 171; Pennsylvania E. v. N. Y. 207. Angel, 41 N. J. Eq. 316; Shively v. 2 Cogswell V. New York, N. H. & Cedar Rapids, I. P., etc. R., 74 Iowa, H. R., 103 N. Y. 10. See also Bohau v. 169. See Pennsylvania R. v. Lippin- Point Jervis Gas Light Co., 122 N. Y. cott, 116 Pa. 472; Beseman v. Pennsyl- 18 ; Hill V. New York, 139 N. Y. 495. vania R., 50 N. J. L. 235 ; Illinois Cent. 8 Baltimore & P. R. y. Fifth Baptist R. i'. Grahill, 50 111. 241. Church, 108 U. S. 317 ; s. c. 137 XJ. S. * Bacon v. Boston, 154 Mass. 100. 568 ; Methodist Church «. Pennsylvania ^ Snell v. Buresh, 123 111. 131. R., 48 N. J. Eq. 452 ; Cogswell v. New « Henry v. Pittsburgh & A. R., 8 W. York, N. H. & H. R., 103 N. Y. 10; & S. 85; Leader w. Moxon, 3 Wils 461- Wylie V. Elwood, 134 111. 281 ; Trook v. See also Baltimore & P. E. v. Eeaney, Baltimore & P. R., 3 MacArthur (D. C), 42 Md. 117. 392. See also Tuebner v. California St. SECT. 145.] CONSEQUENTIAL INJURIES. 135 further, the plan of construction should not be defective. A cor- poration may be liable not only for the improper execution of a good plan, but also for the proper execution of a bad one. The cases bearing on the first point simply involve the law of negligence, and need not be considered here. As to the second point, it is generally held that a political corporation exercising its discretionary power in the promotion of public works, is not liable for damage consequent on the adoption of an injudicious plan of construction.^ Thus, a city is not responsible for an in- jury to land due to the construction of a sewer on a defective plan.2 But the immunity of a political corporation in this respect does not, of course, cover injuries which amount to a taking of property.' § 145. Private corporations are bound to promote their under- takings according to such plans, and with such appliances, as will at once effectuate the public purpose in hand, and comport with a reasonable regard for the property of others.* This obligation must be specially construed in each case, for its weight depends wholly on circumstances. But in no case should it impose on the corporation an expense which would prevent the construc- tion of the undertaking, or even cripple its earning capacity. How far a corporation is bound to keep abreast of the times, in the matter of improvements in construction, is a question of some difficulty. Of course, the state may, by virtue of its police power, compel the adoption of means necessary for the protec- tion of property.^ But in the absence of statutory direction, it seems that a corporation is not liable, on the score of negligence, for an injury to property resulting from the adoption of plans 1 Child II. Boston, 4 Allen, 41 ; Fair Dillon, Mun. Corp. (4th ed.), § 1051. 0. Philadelphia, 88 Pa. 309 ; Bear v. See Boston Belting Co. v. Boston, 149 AUentown, 148 Pa. 80; Mills v. Brook- Mass. 44. lyn, 32 N. Y. 489 ; Paine u. Delhi, 116 * McCleneghan v. Omaha & R. V. E., N. Y. 224. See Seymour v. Cummins, 25 Neb. 523 ; Spencer v. Hartford, P. & 119 Ind. 148. F. R., 10 R. I. 14; Adams v. Railroad 2 Johnston v. District of Columbia, Co., 110 N. C. 325; Sherlock v. Louis- 118 U. S. 19. ville, N. & C. R., 115 Ind. 22. See ' Siefert v. Brooklyn, 101 N. Y. 136. O'Brien u. Baltimore Belt R., 74 Md. See also New Albany v. Ray, 3 Ind. 363 ; Proprietors of Locks & Canals v. App. 321 ; Butchers' Ice Co. v. Phila- Nashua & L. R., 10 Cush. 385. delphia, 27 Atl. Rep. 376 (Pa. 1893) ; ^ gee § 15. 136 INTEEFEKENCES WITH PRIVATE PEOPEETY. [CHAP. VII. and appliances which, though not perhaps the least harmful of those in actual use, are yet not radically inferior to the best, and have the sanction of general usage.^ What is Meant by " Damage " ? § 146. This is the most important question raised by the rule under consideration. The answer must be prefaced by a brief consideration of common-law rights and liabilities in re- spect to the use of property. The command, sic utere tuo ut alienum non Icedas, and the rule of public law that the state may regulate, tax, or take private property in the public inter- est, broadly define the position of the property owner. Private rights in property are qualified only by the duties of respecting the rights of one's neighbor, and yielding to the necessities of the commonwealth. The case of damage resulting from an unlawful use of property need not be considered. We are con- cerned only with the cases where the lawful use of one's own inflicts injury upon the property of his neighbor. If such use is a natural use, that is, the use of land in its natural state, it is usually held that resulting damage does not constitute a legal injury. Thus, if one dig a shaft or a well on his own land, and thereby cause the subsidence of a spring or well on other land, there is not a legal wrong.^ The Supreme Court of Pennsylvania has recently reversed a former decision, and has decided that where the necessary consequence of mining coal is the pollution of streams the riparian owners have no right of action. 8 According to the civil law, the effects of the natural flow of surface-water must be borne by the lower proprietor without redress, and if he so deal with his property as to divert or obstruct the flow, he is liable.* The rule of the civil law obtains in several States.^ According to the common law, one may protect his property from the natural flow of surface- 1 See Nat'l Tel. Co. v. Baker (1893), » Pennsylvania Coal Co. u. Sander- 2 Ch. 186; Hudson River Tel. Co. v. son, 113 Pa. 126. Watervliet R., 135 N. Y. 393 , Morse v. 4 Corp. Jur. Civ., 39 Tit. 3 §§ 2-5 ; Worcester, 139 Mass. 389. Code NapoMon, Art. 640. 2 Acton u. Blundell, 12 M. & W. ^ Hooper v. Wilkinson, 1.5 La. An. 324 ; Chasemore u. Richards, 7 H. L. 497 ; Gormley v. Sandford, 52 111. 158. Cas. 349. SECT. 146.J CONSEQUENTIAL INJURIES. 137 water.^ Where one makes an artificial use of his property he does it at his peril, in this, that if the use causes injury to other property he is liable. For example, one may not artificially dis- charge surface-water upon another's land,^ nor build a dam which sets back water beyond his own boundaries.^ Cases which should be considered apart from those cited, are those where the damage is not the proximate result of the arti- ficial use itself, but is caused by an accident, barring which the use would have remained harmless. In Rylands v. Fletcher,* the defendant had lawfully and carefully built a reservoir, but, owing to a latent defect in the soil, the water escaped and flooded the plaintiff's mine. In giving judgment for the plaintiff this broad proposition was stated, "If a person brings or accumu- lates on his land anything, which if it should escape, may cause damage to his neighbors, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precaution he may have taken to prevent the damage."* The doctrine of Rylands v. Fletcher has been repudiated in several decisions in this country,^ the gov- erning principle of which is fairly stated in Losee v. Buchanan.'' " No one can be made liable for injuries to the person or prop- erty of another without some fault or negligence on his part." How far do these common-law rules help to define the duties of promoters of public uses in respect to the property of others ? It will be assumed that ordinary occupants of land and pro- moters of public uses are on a plane in this, that each put their land to uses lawful in themselves. Also, that tlie latter owe no greater common-law duty towards their neighbor than is imposed upon the former.^ The question is whether the duties are the same in each case. The general answer must be returned that 1 Barkley v. Wilcox, 86 N. Y. 140 ; 6 gee also Mears v. Dole, 135 Mass. Murphy v. Kelley, 68 Me. 521. 508. 2 Barkley v. Wilcox, 86 N. Y. 140. ^ Pennsylvania Coal Co. v. Sander- See also Miller v. Laubach, 47 Pa. 154 ; son, 113 Pa. 126 ; Marshall v. Welwood, 'Jackmau v. Arlington Mills, 137 Mass. 38 N. J. L. 339. See also Garland v. 277. Towne, 55 N. H. 55. See also Nat'l 5 See Pixley v. Clark, 35 N. Y. 520. Tel. Co. v. Baker (1893), 2 Ch. 186. * L. R., 3 H. L. Cas. 330, affirming ^ 51 N. Y. 476. s. c. L. R. 1 Ex. 265. 8 See § 154. 138 INTERFERENCES WITH PRIVATE PROPERTY. [CHAP. VII. such promoters occupy a more favorable position, unless it can be shown that the injury in question is unauthorized, or, in cases arising in this country, that it amounts to a taking of property. § 147. Physical Interference. — In some decisions a taking has been strictly limited to the acquisition of property for pub- lic use, and any damage, no matter how appreciable and per- manent, inflicted upon other property, has been considered to be beyond the purview of the constitutional declaration. ^ Thus, redress has been refused for the flooding of land due to the con- struction of a public work upon neighboring property,^ and for damage of every sort due to alterations in the grade of streets.^ The injustice of this limitation, distinguishing as it does between an assumption of dominion over property, and leaving a dominion over an altered and perhaps useless property, has pro- voked many constitutional and statutory enactments looking to a broader definition of private rights,* and, what is pertinent here, has led in many jurisdictions to a more liberal definition of a taking. In Pumpelly v. Green Bay Canal Company,^ it was decided that where land is "actually invaded by super- induced additions of water, earth, or other materials, ... so as eflectually to impair its usefulness," it is taken.^ ■ The Court of Claims have made recently an important com- ment on the rule in Pumpelly's case. The quarrying of stone for public works caused the flooding of neighboring land. The court recognized the rule, but found it inapplicable to the case at bar because the injury was temporary, and not the probable or necessary consequence of the work.'^ It is true that the consequential injuries within the rule may be in some sense beneficial to the public work. True also, that the injuries are frequently probable and necessary consequences of the work. But we cannot accept these accidental results of construction as entering into the principle of the rule itself. The rule is framed 1 Philadelphia & T. R., 6 Whart. 25. * See §§ 153-158. See Woodruff v. Catlin, 54 Conn. 277. ^ 13 -vvrall. 166. 2 Monongahela Nav. Co. v. Coons, 6 ^ gee also the learned and exhaustive W. & S. 101 ; Bellinger v. New York opinion in Eaton v. Boston, C. & M. R., Cent. R., 23 N. Y. 42 ; Moyer 0. New 51 N. H. 504. York Cent. & H. R. R., 88 N. Y. 351. ' Mclntyre v. United States, 25 Ct. 8 See § 398. CI. 200. SECT. 149.] CONSEQUENTIAL INJURIES. 139 solely in the interest of the property owner. It should be applied wherever the injury falls within its terms. § 148. The rule in Pumpelly's case represents the prevailing opinion.1 Thus, land is taken when it is flooded by reason of the erection of dams, embankments, or other obstructions to the natural course of waters.^ But the proprietors of a dam cannot be held responsible for the flooding of a tract one hundred and twenty-five miles below, where the proximate cause of injury is a dam much nearer the traet.^ It may happen that the construction of public works may cause a freshet to inflict greater damage to property than it would have done had the works not been built, and even to flood land which, but for the works, would have been unharmed. In neither case can the owner recover when the works are properly constructed. The cause of injury is beyond human foresight, and therefore beyond human responsibility.* But where the flood, though unusual, works the injury in question by reason of the defective construction of the public work, its unusuality can- not be pleaded in defence.^ A flood which is periodic, and therefore to be apprehended, is not within the rule, for it should have been taken into account in constructing the works.^ § 149. Where a corporation promoting a public work inten- tionally discharges surface-water upon other land, it is liable.'^ 1 Miles V. Worcester, 154 Mass. 511 , McPherson v. St. Louis I. & S. K., 97 Heiss V. Milwaukee & L. W. E., 69 Wis. Mo. 253 ; Baltimore & 0. R. v. School 555; Staton v. Norfolk & C. E., lU Dist., 96 Pa. 65; Gulf C. & S. E. v. N. C. 278. Pool, 70 Tex. 713 ; Sprague v. Worces- 2 Lee V. Pembroke Iron Co., 57 Me. ter, 13 Gray, 193. See also Allen v. 481 ; Hooker v. New Haven & N. Co., Chippewa Falls, 52 Wis. 430. See 14 Conn. 146 ; Lehigh Val. E. v. Mc- Countess of Eothes v. Kircaldy Water- Farlan, 31 N. J. Eq. 706 ; Grand Rapids works Coram., 7 App. Cas. 694. Booming Co. v. Jarvis, 30 Mich. 308. ^ Piedmont & C. E. v. McKenzie, 75 See also McKee v. Delaware & H. Canal, Md. 458. 125 N. Y. 353 ; Cumberland v. Willison, 5 McKenzie v. Mississippi & E. Boom 50 Md. 138 ; SuUens v. Chicago, E. I. & Co., 29 Minn. 288. P. E., 74 Iowa, 659 ; Henry v. Vermont ' West Orange v. Field, 37 N. J. Eq. Cent. E., 30 Vt. 638. See Mclntyre u. 600; Soule v. Passaic, 47 N. J. Eq. 28; United States, 25 Ct. CI. 200. See § 421. Miller v. Morristown, 47 N. J. Eq. 62 ; ^ Sumner v. Eichardsou Lake Dam, McCormick v. Kansas City S., etc. R., 71 Me. 106. See also Payne v. Kansas 70 Mo. 359 ; Pye v. Mankato, 36 Minn. City, S. J. &c. E. 112 Mo. 6. 373; Noonan v. Albany, 79 N. Y. 470; 4 Moore w. Los Angeles, 72 Cal. 287 ; Seifert v. Brooklyn, 101 N. Y. 136; 140 INTERPEEENCES WITH PRIVATE PROPERTY. [CHAP. VII. But it is generally held, that there is not a taking of property where land is subjected to an increased volume of surface-water by reason of the construction of public works on adjoining land. The proper construction of the work is to be viewed as a reason- able use of one's own laud, and a consequential alteration in the direction and volume of surface-water does not constitute, there- fore, a legal injury.^ Thus, where the building of a railroad over a prairie country necessitates the laying of rails on an embank- ment made by throwing up earth from the edges of the right of way, the corporation is not liable for the escape of surface- water from the trenches excavated.^ So, a city, properly alter- ing the grade of streets, is not liable on account of the incidental collection and distribution of surface-water.^ § 150. It is a taking of land to cast upon it sewage,* or earth and stone.^ Where the pressure of a railroad embankment forces up the soil of neighboring property, the corporation is liable.* The reasonable purity of water is incident to a right of prop- erty therein. If this quality is impaired, as a direct consequence of the promotion of public works, the owner may have redress. Hence one may have redress for the discharge of sewage into his stream,^ or the substitution of water from a canal for the pure Troy V. Coleman, 58 Ala. 570 ; Patoka ^ Jordan v. St. Paul M. & M. E., 42 Township v. Hopkins, 131 Ind. 142; Minn. 172. Young V. Comm., 134 111. 569 ; Whal- » Durkes v. Town of Union, 38 N. J. ley V. Lancashire & Y. E., 13 Q. B. D. L. 21 ; Corcoran v. Benecia, 96 Cal. 1. 131. See Johnson y. Chicago S. P., etc. « Winn v. Rutland, 52 Vt. 481; K., 80 Wis. 641. Beach v. Rochester, 22 Hun, 158; Jack- ' Hill V. Cincinnati W. & M. R., 109 sonville v. Lambert, 62 111. 519; Butler Ind. 511; Morrison v. Bucksport & B. v. Thomasville, 74 Ga. 570; Smith u. R., 67 Me. 353; Cumberland v. Willi- Atlanta, 75 Ga. 110. See also Duryea son, 50 Md. 138 ; Wakefield v. Newell, v. New York, 26 Hun, 120 ; New York 12 E. I. 75 ; Henderson v. Minneapolis, Cent. & H. E. v. Rochester, 127 N. Y. 32 Minn. 319; O'Connor v. Fond du 591. Lac, A. & P. R., 52 Wis. 526 ; Waters ^ Eaton v. Boston C. & M. R., 51 V. Bay View, 61 Wis. 642 ; Atchison T. N. H. 504 ; Myers v. St. Louis, 82 Mo. & S. P. R. 0. Hammer, 22 Kan. 763. 367 ; Keating v. Cincinnati, 38 Ohio St. See also Cassidy v. Old Colony R., 141 141. Mass. 174. But see Drake v. Chicago, ^ Costigan v. Pennsylvania R., 54 R. I. & P. R., 63 Iowa, 302 ; Hurdman v. N. J. L. 233 ; Ronshlange v. Chicago & North Eastern R., L. R. 3 C. P. D. 168 ; A. R., 115 Ind. 106. See Reardon u. Nevins v. Peoria, 41 El. 502 ; Jackson- San Francisco, 66 Cal. 492. ville N. & S. E. V. Cox, 91 111. 500. ' Hooker v. Rochester, 37 Hun, 181. SECT. 151.] CONSEQUENTIAL INJU-RIES. 141 water used for bleaching purposes.^ But the degree of purity to which the possessor of property in water is entitled, depends somewhat upon the environment. Thus, a stream running through a populous town may be necessarily so contaminated that it is only useful for drainage and water-power. In such case the interest of a riparian proprietor is not impaired because sewers empty into the stream.^ An encroachment upon land may be a taking, though not dis- tinctly appreciable. Thus, the encroachment of water by perco- lation has been declared a taking of the land affected.^ § 151. In the cases cited thus far, the physical interference has been limited to an invasion of land, amounting in some cases to what Justice Miller has called " a practical ouster of po.sses- sion." * In the case just mentioned. Justice Miller recognizes the rule in Pumpelly's case,^ with the comment, that it is per- haps the " extremest qualification of the doctrine " of the Gov- ernor & Co. of The British Cast Plate Manufacturers v. Mere- dith.^ But this dictum does not necessarily discredit a slight addition to the rule, so that it shall cover the physical altera- tion or destruction of property by reason of an act which cannot be deemed an encroachment. This addition is warranted by well-considered judgments. Thus, where an aqueduct company so built a filter gallery on their own land that the water of a neighboring pond was lowered by percolation, the water was said to be taken.^ There is also a taking by subtraction, where a rail- road corporation so deals with its own property as to cause the caving in of adjacent soil. ^ ' Acquackanonck Water Co. v. Wat- Ulbricht v. Eufala Water Co., 86 Ala. son, 29 N. J. Eq. 366. 587 ; Emporia v. Soden, 25 Kan. 588. ^ Merrifield v. Worcester, 110 Mass. See Van Wycklen v. Brooklyn, 1 1 8 N. Y. 216. 424; Elster v. Springfield, 49 Ohio St. ' Wilson V. New Bedford, 108 Mass. 82 ; United States v. Alexander, 148 261. See Pixley v. Clark, 35 N. Y. 520. U. S. 186. * Transportation Co. v. Chicago, 99 ^ Richardson v. Vermont Cent. E., U. S. 635. 25 Vt. 465 ; McCnllough v. St. Paul, ' 13 Wall 166, M. & M. R., 53 N. W. Rep. 802 (Minn. « 4 T. R. 794. 1892). See also Ludlow v. Hudson 'Proprietors of Mills u. Braintree RiverR., 6 Lans. 128. But see Boothby Water Co., 149 Mass. 478. See also i'. Androscoggin & K. K., 51 Me. 318. Heilbron v. Canal Co., 75 Cal. 426; 142 INTEEFEEENCES WITH PEIVATE PEOPEETY. [CHAP. VII. § 152. We have now to consider damage which does not amount necessarily to encroachment or subtraction, but which may, nevertheless, affect the use and enjoyment of property. In Trenton Water Power Co. v. Eaff,^ it was said, " Whether you . . . pollute the bleacher's stream so that his fabrics are stained, or fill one's dwelling with smells and noise so that it cannot be occu- pied in comfort, you equally take away the owner's property." ^ But in a recent case in New Jersey,^ the first of its kind in this State, the plaintiff, whose dwelling was situated a few feet from a railroad, sought redress for damage due to smoke, vibration, noise, and odora resulting from the operation of the road. It did not appear that the damage was due to improper management, or that the operation of the road at that place was unauthorized. The question was simply whether one, occupying property near a railroad, could recover for damage necessarily resulting from the operation of the road. It was held that he could not recover. Similar limitations of the responsibilities of railroad companies have been declared in other decisions.* SPECIAL LIABILITY UNDER CONSTITUTION OR STATUTE. § 153. When Parliament enacted the comprehensive Lands Clauses Consolidation Act in 1845, it provided that compensa- tion should be paid for lands "injuriously affected by the exe- cution" of authorized works, as well as for lands taken. The same provision generally appears in other statutes conferring compulsory powers. In this country a liability for injuries beyond a taking is imposed by most of the later State constitutions.^ Although the ^ 36 N. J. L. 335. See also Penn- * Alabama (1875), xiii. 7 : "Mnnici- sylvania R. v. Angel, 41 N. J. Eq. 315. pal and other corporations and individ- 2 See also Baltimore & P. R. v. Fifth uals . . . shall make just compensation Baptist Church, 108 U.S. 317; Cogs- for property taken, injured, or destroyed well V. New York, N. H. & H. R., 103 by the construction or enlargement of N. Y. 10. its works," etc. Same provision in ' Beseman v. Pennsylvania R., 50 Pennsylvania (1873), i. 8. Arkansas N.J. L. 235, affirmed without opinion (1874), ii. 22: "Private property shall in 52 N. J. L. 221. not be taken, appropriated, or dam- * Carroll v. Wisconsin Cent. R., 40 aged," etc. California (1879), i. 14: Minn. 168. See also Sawyer «. Davis, "Private property shall not be taken 1 36 Mass. 239 ; Shealy v. Chicago, M. or damaged," etc. Same provision in & N. R., 77 Wis. 653. Georgia (1877), i. 3 ; Illinois (1874) ii. SECT. 154.J SPECIAL LIABILITY. 143 governing constitution is silent, the legislature may nevertheless impose a liability for consequential injuries upon public agents.^ Where these liabilities are imposed in an original grant of power, they are valid as organic conditions. Where they are imposed upon existing corporations, they are usually held to be within the reserved power to amend or alter charters.^ § 154. The first query suggested by the legislation in ques- tion, is whether it imposes a liability coincident with that at the common law.^ In a recent decision in Nebraska,* it was held, that injuries in fact, as distinguished from legal injuries, were covered by the constitutional declaration. The effect of this opinion is to make mere depreciation in the market value of property evidence of a substantive injury. The weight of authority is decidedly against this position. In England, it has been held that the damage must be at least such as would be actionable at common law.^ In this country, a common-law liability has been fixed where the constitution or statute requires payment for property damaged or injuriously affected ; ® for " all damages occasioned by the laying out, making and maintaining " of a railroad.^ In Proprietors of Locks, etc. v. Lowell & Nashua Eailroad Company,^ Chief Justice Shaw repu- diated the proposition, since approved in Omaha v. Kramer,^ that a diminution in the market value of land untouched by a public work is a special damage.^* 13 ; Mississippi, iii. 17 ; Missonri (1875), ^ Penny v. Southeastern R., 7 El. & ii.2I ; Montana, iii. 14; North Dakota, i. B. 660; Met. B'd of Works v. McCar- 14; South Dakota, vi. 13; Washington, thy, L. R. 7 H. L. 243. i. 16 ; West Virginia (1872), iii. 9 ; Wyo- ^ Pennsylvania R. v. Lippincott, 116 ming, i. 33. Substantially the same pro- Pa. 472 ; Pennsylvania R. v. Marchant, vision in Kentucky, § 242; Nebraska 119 Pa. 541; Rigney v. Chicago, 102 (1875), i. 21; Texas (1872), iii. 9. 111. 64; Gainesville, H. & W. R. v. 1 Miiflin v. Railroad Co., 16 Pa. 182 ; Hall, 78 Tex. 169 ; Peel v. Atlanta, 85 Elizabethtown & P. R. u. Helm, 8 Bush, Ga. 138. See also Columbia Delaware 681. Bridge v. Geisse, 35 N. J. L. 558; 2 See § 121. Grand Rapids & I. E. u. Heisel, 47 ' The question whether a liability Mich. 393. beyond the common law is imposed ' Parker t'. Boston & M. R,, 3 Gush, where damage is done to the remainder 107. of a tract, part of which is taken, is ^ 10 Cush. 385. considered in § 136, and must be dis- ' 25 Neb. 489. aociated from the present inquiry. i" See also Gilbert o. Greeley, S. & « Omaha v. Kramer, 25 Neb. 489. P. R., 13 Col. 501. 144 INTEKFERENCES WITH PEIVATE PEOPEETY. [CHAP. VII. The rule in Omaha v. Kramer is not acceptable. Although the legislature may declare an injury not known to the com- mon law,i it should not be deemed to have done so by merely using the word " damage," or words of similar import. The promoters of works of public utility should not be subjected to a more onerous duty towards their neighbors than is imposed upon persons carrying on a private business, unless the legisla- tive intention be most explicit. It has even been intimated that the full measure of common-law liability should not always be meted out to the promoters of public works. In Metropolitan Board of Works v. McCarthy,^ Lord Chelmsford said, " A mere personal obstruction or inconvenience or a damage to a man's trade or the good- will of his business, although of such a nature that but for the act of Parliament it might have been the sub- ject of an action for damages, will not entitle the party to com- pensation under it." It has been held that the injuries in ques- tion must be within the rule ^ that, to obtain redress on account of damage from public works, one must show an injury to his property different from that sustained by the public* § 155. Under all the constitutional and statutory provisions in question, a liability is imposed for all physical damage due to construction.^ Thus, the promoters of authorized works have been held responsible for casting water, earth, etc., upon land ;^ 1 See § 1 .58. of the subsequent use of the work, then '^ L. R. 7 H. L. 243, 256. also there is no case for compensation. ^ See § 369. Loss of trade or custom by reason of a * Gates u. Kansas City Bridge, 111 work not otherwise directly affecting Mo. 28. the house or land in or upon which a ^ Proprietors of Locks, etc. v. Nashua trade has been carried on, or any right & L. R., 10 Cush. 385; Rigney v. Chi- properly incident thereto, is not by it- cago, 102 111. 64; Chicago v. Taylor, self a proper subject for compensation. 125 U.S. 161; Reardon v. San ITran- The obstruction by the execution of the Cisco, 66 Cal. 492, In Caledonian Rail- work of a man's direct access to his way Co. V. Walker's Trustees, 7 App. house or land, whether such access be Cas. 259, Lord Chancellor Selborne thus by a public road or by a private way, is states the law : " When a right of ac- a proper subject for compensation," tion which would have existed if the ^ jj^st St. Louis & C. R. v. Eisen- work in respect of which compensation traut, 134 HI. 96; Fredericks v. Penn- is claimed had not been authorized by .sylvania Caual, 148 Pa. 317 ; Ware v. Parliament would have been merely Regent's Canal Co., 3 De G. & J. 21 2. personal, without reference to land or See also Keates v. Holywell R., 28 L, T, its incidents, compensation is not due n, s. 183; Nicholson v. New York & under the Acts, When damage arises, N. H. R,, 22 Conn. 73. not out of the execution, but only out SECT. 156.J SPECIAL. LIABILITY. 145 for interrupting drainage ;^ for diverting a spring, well, or water- course ; ^ for using a brook as a sewer ; ' and for removing a house, and thereby depriving an adjoining house of its gable end.* Physical damage is not to be understood, necessarily, as dam- age to physical property. It covers a physical interference with an incorporeal right. Thus, one may have compensation for the destruction or impairment of access to his premises,^ and for the obstruction of access of light thereto.^ § 156. In the English, and some of the American, legislation referred to,'^ it is specified .that the damage meant is that which results from the execution or construction of the undertaking. With this limitation in view, the courts have denied relief in a number of cases. Thus it has been held that railroad compa- nies are not liable for damage caused by smoke, dust, noise, and odors,^ or by vibration.^ An injury may derive much of its weight from the operation of the undertaking, and yet be so closely connected with con- struction as to be fairly referred to it. Thus, where a rail- road track was laid near the curb of a street, the running of trains was held to aggravate the impairment of access to ' Pennsylvania S. V. R. (^. Ziemer, Townsend, 84 Ala. 478 ; Hot Springs 124 Pa. 560. R. :;. Williamson, 45 Ark. 429; s. c. 2 Reading v. Althonse, 93 Pa. 400; 136 U. S. 121 ; Griffin v. Shreveport & Lycoming Gas Co. o. Moyer, 99 Pa. A. R., 41 La. An. 808; Caledonian R. 615; United States v. Alexander, 148 v. Walker's Trustee, 7 App. Cas. 259. U. S. 186 ; Parker v. Boston & M. R., 3 See Proprietors of Locks, etc. v, Lowell Cush. 107 ; Trowbridge v. Brookline, & N. R., 10 Cush. 385 ; Gilbert v. Gree- 144 Mass. 139. ley, S. & P. R., 13 Col. 501. 2 Washburn, etc. Man. Co. v. Wor- ^ Eagle v. Charing Cross R., L. R. cester, 153 Mass. 494. 2 C. P. 638; Bradley v. New York & * Snyder v. Lancaster, 11 Atl. Rep. N. H. R., 21 Conn. 294. See also Jones 872 (Pa. 1887). v. Erie & W. R., 151 Pa. 30; London, 6 Chicago ('. Taylor, 125 U. S. 161 ; T. & S. R. & Gower's Walk Schools, Pennsylvania R. v. Duncan, 111 Pa. L. R. 24 Q. B. D. 326. 352; County of Chester v. Brower, 117 ' See § 153. Pa. 647 ; Pennsylvania S. V. R. ». " Pennsylvania R. v. Lippincott, 116 Walsh, 124 Pa. 544 ; Butchers' Ice Co. Pa. 472 ; Pennsylvania R. v. Marchant, V. Philadelphia, 27 Atl. Rep. 376 (Pa. 119 Pa. 541 ; Jones v. Erie & W. V. R., 1893); Presbrey v. Old Colony R., 103 151 Pa. 30; City of Glasgow R. v. Mass. 1 ; Bradley v. New York & N. H. Hunter, L. R. 2 Sc. App. 78. R., 21 Conn. 294; Rigney v. Chicago, 9 Hammersmith & S. R. v. Brand, 102 111. 64; Lake Erie & W. V. R. v. L. R. 4 H. L. 171 ; Penny u. South- Scott, 132 HI. 429; Montgomery c. eastern R., 7 El. & B. 660. 10 146 INTEKFEKENCBS "WITH PRIVATE PROPERTY. [CHAP. VII. adjoining property caused, primarily, by the construction of the road.^ § 157. Where the governing law prescribes payment for damage, without specifying that it be due to construction, evi- dence may be given of damage due to operation, such as smoke,^ vibration,^ and noise.* Mindful of the rule that promoters of public works are not to be saddled with a heavier liability than is imposed by the common law,^ the courts have denied relief in certain cases, either because the injuries alleged are remote and speculative, or are personal losses or inconveniences rather than injuries to property.^ Thus, one cannot recover because the construction of an undertaking diverts custom from his place of business,'' nor because a fire-engine house is erected on adjoining land,^ nor for loss of privacy due to the opening of a street across an adjoin- ing lot.^ In Wallace v. Jefferson Gas Coal Company ,1" the plain- tiff claimed compensation on account of the laying of a pipe for the conveyance of natural gas through his land three feet below the surface. It was urged that the market value of the land as coal land was diminished because, in miniug, it would be neces- sary to leave a wide strip of coal for the support of the pipe, and, further, that there was danger of an escape of gas into the mine workings. As the average distance of the coal from the surface was nearly one hundred and fifty feet, and as the appre- hension of injury was not justified by the evidence offered, the court treated the alleged injury as speculative and remote. 1 Pennsylvania S. V. R. v. Walsh, ^ gee § 154. 124 Pa. 544, distinguishing Penusylva^ ^ Hyde Park n. Dunham, 85 111. 569 ; nia R. u. Lippiucott, 116 Pa. 472. Peoria & P. B. v. Peoria & F. R., 105 2 Omaha & N. P. R. v. Janecek, 30 III. 110; Campbell v. Met. St. R., 82 Neb. 276; Gainesville, H. & W. R. v. Ga. 320; Morris v. Wisconsin Mid. R., Hall, 78 Tex. 169. See also Chicago & 82 Wis. 541. E. I. R. V. Loeb, 118 111. 203 ; Campbell ' Hohmann v. Chicago, 140 HI. 226. V. Met. St. R., 82 Ga. 320. 8 Van De Vere v. Kansas City, 107 8 Gainesville, H. & W. R. c. Hall, Mo. 83. See also Rigney v. Cliicago, 78 Tex. 169. See also Chicago & E. I. 102 111. 64. R. V. Loeb, 118 111. 203. 9 Peel v. Atlanta, 85 Ga. 138. « Gainesville, H. & W. R. a. Hall, 78 1° 147 Pa. 205. Tex. 169. SECT. 159.] DAMAGE DONE DURING CO>-'STEUCTION. 147 Peculiar Statutory Liability. § 158. In some instances the legislature has imposed a pecu- liar liability upon the promoters of public works. Thus, they may be held responsible for damage not actionable at common law.^ Where a statute declared, that a railroad company, occu- pying a street, should be responsible for "injuries of every description " to property upon, or " near to," the street, it was held that property was " near," if injury to it was the direct and necessary result of the occupation of the street, and compen- sation was given for damage from smoke, noise, and sparks.^ Under a statute which prescribed compensation for injuriously affecting any estate or interest in, to, or out of land, it was held that the compensation court were not bound to regard strict legal rights only, but could award compensation in respect to any claim which they considered reasonable and just.^ Where it was enacted that the projectors of a bridge and the owners of a ferry should choose referees to determine the damage, if any, which the latter might sustain by reason of the opening of the bridge, the prospective diversion of travel from ferry to bridge was declared a legal injury within the terms of the statute. The question whether the ferry was property within the constitu- tional meaning of the word was deemed immaterial, as the legis- lature had evidently treated it as such.* Where any person who owns land adjacent to a highway may recover for " damage in his property," resulting from the improvement of the way, the town is liable for the escape of surface-water, though a private proprietor would not be.^ DAMAGE DONE DURING CONSTRUCTION. § 159. In the cases heretofore considered the injuries to prop- erty, whether transitory or permanent, are usually referable to a permanent cause, — the undertaking for which the public pow- 1 Monongiihela Nav. Co. v. Coon, 6 ^ Plimmer v. Wellington, 9 App. ta. 379. Cas. 699. 2 Railroad Co. v. Gardner, 45 Ohio * Bookwalter v. Black Rock Bridge, St. 309. See also Shepherd v. Balti- 38 Pa. 281. more&O. R., 130 U.S. 426; Grafton 5 -Woodbury v. Bererly, 153 Mass. V. Baltimore & 0. R., 21 Fed. Rep. 309. 245. 148 INTEEFERENCES WITH PRIVATE PROPERTY. [CHAP. VII. ers are exerted. Beside these injuries, are those due to a cause essentially transitory, — the constructing of works. If A's access to land is impaired by a railroad cutting, he is damaged by the construction of the work. If, in blasting rock to make the cutting, fragments are cast upon his land, he is damaged by the constructing of the work. Where a statute gave compensa- tion to the owner of the fee of a street " over which rails of [a street railway] shall be laid," it was held that the act did not refer to rails in position, as these were not a burden on the fee, but to injuries due to the laying of the rails, such as piling earth on the sidewalk, and disturbing the grade.^ But it has been held that a railroad corporation, having condemned land adjoining a street for a bridge approach, is entitled as an abut- ting owner to a reasonable use of the street during construction.^ A statute, providing for compensation to one whose land is affected by the construction and maintenance of an aqueduct on adjacent land, is not to be construed in favor of one whose prop- erty is affected by smoke and noise caused by the operation of a steam-engine during the period of construction. The injuries in question are such only as may be caused by a completed work.^ It has been held that where a railroad corporation, authorized to occupy a street, is made responsible for injuries done thereby to property " lying upon, or near to," such street, it is not liable for a temporary interference with access due to the obstruction of the street during construction.* But it has been recently decided in New York, that compensation may be recovered on account of depreciation in the rental value of abutting prem- ises, due to the building of a railroad in the street.^ One in possession of property abutting on a street cannot recover for damage to his business caused by the obstruction of the street while it is being improved,^ or while a railroad is being built.^ Where an injury inflicted upon property in constructing works 1 Vose u. Newport R., 17 R. I. 134. « Brooks v. Boston, 19 Pick. 174; 2 Pitch V. New York, P. & B. R., 59 Stadler v. Milwaukee, 34 Wis. 98. See Conn. 414. also Treadwell v. Boston, 123 Mass. 23. 8 Squire's Petition, 125 N. Y. 131. ' Eicket v. Metropolitan R., L. R. 2 « Shepherd v. Baltimore & 0. R., H, L. 175. But see St. Louis, V. & T. 130 U. S. 426. H. R. u. Capps, 72 111. 188. 6 Williams v. Brooklyn El. R., 126 N. Y. 96. SECT. 161. J SUBSEQUENT INTEEFEKENCES. 149 is not physical it is without remedy, if the methods employed are proper.^ Thus, it has been held that a corporation, using a pumping engine while sinking a shaft, is not liable on account of the noise.^ Where the effect of blasting, or other operation in the course of construction, is the casting of earth and stone upon other land the public agents are usually liable,^ unless they can place the responsibility upon their contractors.* But it has been held that where blasting affects buildings by vibration the owners are without redress, provided due care has been used, because there is not a physical invasion of property.* INTERFERENCES WITH PROPERTY SUBSEQUENT TO THE ORIGINAL TAKING. § 160. Where land acquired to further a certain public under- taking is required, in whole or in part, for another undertaking, important questions arise as to the existence and extent of lia- bility on the part of the promoters of the new undertaking to the promoters of the old one, and to the owner of the fee. It is important, also, to determine how far changes and improvements in existing undertakings operate to enlarge the interest already acquired, and thus effect a new taking of property from the owner of the fee. § 161. Where one corporation attempts to use property in possession of another, these questions may arise. Is the prop- erty such as can be used without express authority ? ® Has such authority been given V Is a franchise affected ? ^ The present question is, — Is there a taking of ordinary property ? So much of the law of this subject is necessarily considered in the pages referred to, that a brief answer will suffice. The rule is, that 1 See Fenwick o. East London R., Peter v. Denison, 58 N. T. 416. See L. R. 20 Eq. 544. Thompson's Case, 43 Hun, 416. 2 Harrison v. Sonthwark & V. Water * Tibbetts <,-. Knox & L. R., 62 Me. Co. (1891), 2 Ch. 409. 437. 8 Dodge V. County Comm., 3 Met. ^ Booth v. Rome, W. & 0. R., 140 380; Brown v. Providence, W. & B. R., N. Y. 267. 5 Gray, 35 ; Sabin v. Vermont Cent. ^ gee §§ 97, 98. R., 25 Vt. 363 ; Carman v. Steubenville ' See §§ 177-180. 6 I. R., 4 Ohio St. 399. See also St. ' See §§ 165-168. 150 INTEEFERENCES WITH PRIVATE PROPERTY. [CHAP. VII. such property is taken, unless the prior corporation has acquired it subject to the right of the state to freely permit its use by the second corporation. Thus, it has been held that where a telegraph company erect their plant along the right of way of a railroad company, there is a partial appropriation of the latter's property.! Under a general authority to condemn land for a way, it is usually held that the way may be laid across another at any section of the latter devoted simply to the passing use,^ subject, however, to such reasonable conditions as may be im- posed in the interests of the safety and utility of both ways.^ It has been held, that where authority is granted to condemn for a way, the right is reserved to permit its intersection by another way, in the manner mentioned, without compensation.* But a different rule is declared in other decisions. Thus the crossing of a railroad by a highway has been held a taking of the com- pany's property.^ It is usually held that there is a taking of property when a railroad is laid across a railroad,^ a turnpike,' a canal. ^ § 162. Imposition of an Additional Burden on the Pee. — It may happen that land subjected to a public easement, is after- wards subjected to a second public use, and that both uses are maintained. Putting aside all controversies in respect to author- ity,^ and liability, which may arise between the corporations, the question is whether the second corporation must pay compensa- tion to the owner of the fee. Most of the cases under this head 1 Atlantic & P. Tel. Co. v. Chicago, Grand Rapids & I. R., 35 Mich. 267 ; R. I. & P. R., 6 Biss. 158. Flint & P. M. R. v. Detroit & B. C. R., 2 See § 129. 64 Mich. 350; Lake Shore & M. S. E. '■> See §§ 15, 278. v. Cincinnati, S. & C. R., 30 Ohio St. * Albany, North. R. v. Brownell, 24 604 ; Chicago & W. I. R. v. Englewood N. Y. 345. See also Boston, H. & W. R., 115 111. 375 ; Cincinnati South. E. v. R., 79 N. Y. 64. Chattanooga Electric R., 44 Fed. R. 5 Old Colony & F. R. R. v. County 470. See St. Louis, I. M. & S. E. v. of Plymouth, 14 Gray, 155 ; New York Peach Orchard & G. R., 42 Ark. 249. & N. E. R. V. Waterbury, 60 Conn. 1 ; ' Seneca Road Co. v. Auburn & R. Illinois Cent. R. v. Chicago, 138 111. R., 5 Hill, 170; Indianapolis, etc. Road 453, Illinois Cent. R. v. Chicago, 141 Co. w. Belt R., 110 Ind. 5. 111. 586. 8 Lehigh Val. R. v. Dover & R. E., 8 Massachusetts Cent. R. v. Boston, 43 N. J. h. 528 ; Tuckahoe Canal v. C. & F. R., 121 Mass. 124 ; Nat'l Docks Tuckahoe R., 11 Leigh, 42. R. V. United Companies, 53 N. J. L. » See §§ 97, 177. 217; Grand Eapids, N. & L. L. R. u. SECT. 162.] SXJBSEQDENT INTEKPEKENCES. 15l are considered in the chapter on the use of streets. Now what- ever be the interest remaining in the owner of the fee of land subjected to a highway easement,^ it is generally true that in other cases the imposition of a public easement upon land, other than that for which it was condemned or purchased, is an addi- tional burden on the fee, and must be viewed as a second appro- priation of property to public use. Thus where land is subjected to a railroad easement, a telegraph company cannot erect their plant along the right of way without compensation to the owner of the fee.^ The owner of land, in which an easement for a canal has been acquired, is entitled to compensation from a railroad company laying their tracks along the canal bank.^ If, instead of two undertakings subsisting together, a new undertaking replaces the original one, is there a new taking of property ? Where the imposition of the new undertaking effects the abandonment, in law, of the use for which the land was origi- nally acquired,* the owner of the fee is repossessed of his whole estate, and may obtain full compensation on account of the new use. If there is no abandonment, because the original use is subserved in a manner substantially similar to that first adopted, there is not a new taking. Thus, a highway may be changed into a turnpike without additional compensation to the owner of the fee.* In this case the way remains substantially the same, and the payment of toll to a corporation, which is bound to keep the road in repair, is not deemed to be an additional burden upon the abutter, since he is relieved from the taxes formerly assessed for the maintenance of the highway. Compensation is not due where an alley is made a street,^ or a toll-bridge substi- tuted for a ferry.'' If there is still no abandonment, but the new undertaking, while subserving the same general purpose as the former, re- 1 See §§ 412-416. rin Falls, etc. Co. v. Cane, 2 Ohio St. 2 American Tel. Co. v. Pearce, 71 419; Douglass v. Boonsborough, etc. Md. 535. See also Southwestern R. v. Turnpike, 22 Md. 219. But see Cape South. & A. Tel. Co., 46 Ga. 43. Girardeau, etc. Co. u. Renfroe, 58 Mo. 3 Lafayette, M. & B. R. v. Murdock, 265. 68 Ind. 137. « Fagan v. Chicago, 84 111. 227. * See § 220. ' Hudson v. Cuero, L. & E. Co., 47 5 Walker v. Caywood, 31 N. Y. 51 ; Tex. 56. Wright V. Carter, 27 N. J. L. 76 ; Chag- 152 INTEEPEKENCES WITH PRIVATE PKOPEETY. [CHAP. VII. quires a larger or different use of the land, there is an additional servitude imposed upon the fee.^ Thus a railroad, laid upon a turnpike, imposes an additional servitude.^ § 163. Damage from Alteration of Works. — Where a cor- poration has condemned an interest in a tract of land, it has paid for the right to do all things necessary for the lawful construc- tion and maintenance of the undertaking, and is under no further liability to the owner. The compensation is conclusively pre- sumed to cover all damage due to such construction and main- tenance.^ Alterations in the construction of works are often expedient. These alterations may be made without further compensation to the owner of the fee, if they can be fairly brought within the scope of the undertaking for which the land was condemned. It has been held that the owner cannot recover for the shifting of a railroad track to another location within the right of way,* nor for the laying of an additional track.^ Even though the altera- tions in question are so radical as to cause appreciable injury, they may be freely made. Thus a water company, authorized to draw water from a pond, may substitute a large pipe for the small one first laid without compensation, for, as they had the right to take all the water at the time of the original diversion, they are presumed to have paid for it.^ The rule has also been applied where a corporation substitutes a trestle bridge for an embank- ment, with the result that land is flooded.'^ 1 Hatch V. Cincinnati & I. R., 18 * Hentz v. Long Island R., 13 Barb. Ohio St. 92. See "Wellington's Petition, 646. See also Snyder ;;. Pennsylvania R., 16 Piclc. 87. 55 Pa. 340; Commonwealth v. Haver- 2 Mifflin V. Harrisburg, P. etc. R., 16 hill, 7 Allen, 523. Pa. 182, See Brainardy. Missisquoi R., ^ White v. Chicago, S. & P. R., 122 48 Vt. 107. Ind. 317. See Davis i-. Chicago & N. '^ Brady v. Fall River, 121 Mass. W. R., 46 Iowa, 389. 262 ; Trenton Water Power v. Cham- « See Smith u. Concord, 143 Mass. bers, 13 N. J. Eq., 199 ; Van Schoick v. 253 ; Stone v. YeoviUe, 2 C. P. D. 99. Delaware & R. Canal, 20 N. J. L. 249 ; ' Moss v. St. Louis, I. M. & S. R., Aldrich v. Cheshire R., 21 N. H. 359 ; 85 Mo. 86. See also Bell i). Norfolk New Orleans, B. R., etc. R. v. Brown, Southern R., 101 N. C. 21 ; Barnes v. 64 Miss. 479. See Waterman v. Con- Michigan Air Line R., 65 Mich. 251 ; necticut & P. R. R., 30 Vt. 610; Wat- Hodge v. Lehigh Val. R., 39 Fed. Rep. son u. Van Meter, 43 Iowa, 76. See 449. §129. SECT. 164 J StTBSEQUENT INTEEPERBNCES. 153 Where land has been condemned for a work which does not require the exclusive possession of the soil fOr its maintenance, entry may be made when necessary for inspection and repair, without further compensation. Thus, a road board may freely enter upon land impressed with a drainage servitude, for the purpose of clearing out a drain. ^ § 164 The rule does not apply where the injury could not be presumed to result from the construction and operation of the undertaking, and therefore was not taken into account in assess- ing compensation. It does not apply when the injury is due to the execution of the works on other land.^ Thus, one who has received compensation for all injuries due to the construction of a canal across his land, may yet recover for damage by flooding, due to the construction of an embankment on other land.^ Nor does the rule apply to damage resulting from negligent or improper construction.* When compensation is based on a specified plan of construc- tion,^ damage caused by an alteration must be paid for.® Thus, when a railroad company condemned a way through a farm, and proposed to build a bridge which would not interfere with inter- communication, the compensation awarded was held inadequate when the company changed the plan and built an embankment.^ The expropriators are liable for injuries caused by alterations made in furtherance of a larger use than the one originally con- templated,^ as, for example, raising a dam and thereby flooding a larger area,^ or making a private road public.^" 1 See Ward ». Peck, 49 N. J. L. 42 ; 519; Gordon v. Pennsylvania R., 6 Chronic v. Pugh, 136 111. 539. W. N. C. (Pa.) 405. 2 See Eaton v. B. & M. R., 51 N. H. ' Carpenter v. Easton & A. R., 24 504 ; St. Louis, I. M. & S. R. v. Harris, N. J. Eq. 249. 47 Ark. 340. " Lancashire & Y. R. u. Erans, 15 s Delaware & R. Canal v. Lee, 22 Beav. 322. N. J. L. 243. ' Union Canal v. Stump, 81} Pa. * Atlantic & D. R. v. Peake, 87 Va. 355. See Colwell v. Mays Landing, etc. 130 ; Ohio & M. R. v. Thillman, 143 111. Co., 19 N. J. Eq. 245. 127. w Ayres v. Richards, 41 Mich. 680. 6 See § 327. See also Speir v. New Utrecht, 121 N. Y. I* Illinois & S. L. R. w. Switzer, 117 420; Green v. Bethea, 30 Ga. 896; 111. 399; Snow i'. Provincetown, 109 Woodbridge v. Eastland County, 70 Mass. 123 ; Lane v. Boston, 125 Mass. Tex. 680. 154 INTERFERENCES WITH PRIVATE PEOPEKTY. [CHAP. VII. THE AFFECTING OF CONTRACTS BY THE EMINENT DOMAIN. Franchises. § 165. Where legislation affects a corporate franchise the first question to be determined is whether the accomplishment of this result is within what is called the reserved power of the state over its corporations, a power which includes the right to im- pair franchises without making compensation. If such legisla- tion is a valid expression of the police power it is within the reserved power, for it has been shown that the state cannot part with its power of police.^ But the police power cannot be used colorably, in order to destroy vested rights without compensa- tion.^ Hence, where a city, by extending its boundaries, embraces a section of a turnpike, it cannot be authorized to remove the toll-gates without compensation. This is not a regulation of property by the police power, but a taking of a franchise to collect toll's,^ Power to amend, alter, or repeal corporate charters or fran- chises is expressly reserved in the Constitutions of certain States, and in many acts of incorporation in others. The effect of the reservation is that the state may alter or destroy whatever may be defined as a corporate franchise, without paying compensation to its possessors.* But, assuming the existence of a reserved power, the intention to exert it must plainly appear. This in- tention is disclosed, where one railroad corporation is expressly authorized to use the tracks of another.^ The intention to affect an existing franchise is not disclosed by the mere authorization of a new undertaking, the accomplishment of which might effect this result, for one corporation cannot impair the franchise of another without special authority. The I'eserved right to divest franchises without compensation 1 See § 100. Gardner, 20 Upp. Can. C. P. 107. See ^ Commonwealth u. Essex Co., 13 Snell u. Chicago, 133 III. 413. Gray, 239. See § 23. * Greenwood u. Freight Co., 105 8 Detroit v. Detroit, etc. Plank Road, U. S. 13. 43 Mich. 140; Ft. Wayne Land, etc. ' Metropolitan R. v. Highland E., Co. V. Maumee Ave., 132 Ind. 80. See 118 Mass. 290. also Atty.-Gen. v. Germantown Turn- pike, 55 Pa. 466 ; St. Catharines v. SECT. 166.] THE AFFECTING OF CONTEACTS. 155 does not enable the state to so divest property acquired under the franchises.^ Thus, although a railroad corporation with repealable franchises may be compelled to share its track with another corporation, without indemnity for interruption of busi- ness, loss of profits, or other injury to franchises, it may obtain compensation for the use of its roadway, and other property .^ In the absence of a constitutional or statutory reservation, the governing law is that laid down in Dartmouth College v. Wood- ward.^ A corporate charter or franchise is a contract between the state and its grantees, and is within the protection of the Fifth Amendment. The contract is property,* and can be di- vested only by the power always reserved,* the right of eminent domain. Franchises may be affected in at least three ways. They may be incidentally impaired by the condemnation of land necessary to their enjoyment, intentionally impaired by the construction of a competing work, or wholly resumed or destroyed. § 166. Incidental taking of Franchises. — AVhere property necessary to the enjoyment of a franchise is condemned, the franchise is taken in whole or in part, as the case may be. But a corporation may hold land, the condemnation of which will not impair its franchises.^ Thus, where a railroad corporation laid its track across the basin of a water-power company, it was held that the franchise of the latter was in nowise affected.'^ The planting of telegraph poles along the exterior lines of a turnpike does not necessarily impair the franchise of the company owning the pike.^ A test which may be often applied to determine whether a franchise is impaired by the taking of land, is whether the land 1 Sinking Fund Cases, 99 U. S. 700; ^ See § 100. Greenwood v. Freight Co., 105 U. S. 13 ; « New York, H. & N. E. o. Boston, People V. O'Brien, HI N. Y. 1. H. & E. E., 36 Conn. 196 ; New York & 2 Metropolitan E. v. Highland E., L. E. E. v. Drummond, 46 N. J. L. 644 ; 118 Mass. 290. See Jersey City & B. E. Moses <;. Sanford, 11 Lea, 731 ; North V. Jersey City & H. E., 20 N. J. Eq. 61 ; Carolina Cent. E. u. Carolina Cent. E., s. c. 21 N. J. Eq. 550 ; North Baltimore 83 N. C. 489. R. V. North Ave. R., 75 Md. 233 ; Pacific 1 Boston Water Power Co. u. Boston E. ^. Wade, 91 Cal. 449. & W. E., 23 Pick. 360. 4 Wheat. 518. 8 State v. American, etc. News Co., < See § 82. 43 N. J. L. 381. 156 INTBEFEKENCBS WITH PBIVATE PKOPERTY. [CHAP VII. itself is within the purview of the rule forbidding the condemna- tion of property already devoted to public use, without express authority.! jf jjje j^nd is so protected, a franchise is frequently connected with it. § 1 67. Taking by Competition. — Where an undertaking is operated under a franchise which is not exclusive, the legislature may authorize a competing undertaking without providing for compensation.^ But where a corporation enjoys an exclusive franchise, that is, a monopoly of a certain business within cer- tain limits,^ and another corporation is empowered to carry on a like business within the limits, the franchise is impaired by competition.* In some cases the courts have found no competition in fact, and consequently none in law.^ Thus, an exclusive franchise to carry passengers between two points is not impaired by an un- dertaking for the carriage of freight.^ A street-car line, operated on a street already devoted to the use of a corporation running cars in an opposite direction, does not compete with the latter. ^ Further, an undertaking may compete in fact with one ope- rated under an exclusive franchise, and yet not compete in law.^ For example, where the grant of an exclusive franchise contem- plates a particular mode of attaining its purpose, the authorization of different means directed to the same end does not necessarily impair the contract. Hence, if one has been given the exclusive right to ferry passengers, he cannot complain unless a rival ferry » See §§ 97, 98. Co., 22 Cal. 398 ; Boston & L. E. v. 2 Charles River Bridge v. Warren Salem & L. E., 2 Gray, 1 ; Piscataqua Bridge, 11 Pet. 420; Turnpike Co. v. Bridge v. New Hampshire Bridge, 7 State, 3 Wall. 210 ; Hamilton Ave., 14 N. H. 35. See also Earitan & T>. B. E. Barb. 405; Ft. Plain Bridge v. Smith, v. Delaware & R. Canal, 18 N. J. Eq. 30 N. Y. 44 ; Lafayette Plankroad v. 546 ; Mason v. Harpers Perry Bridge, New Albany R., 13 Ind. 90. See also 17 W. Va. 396 ; Met. City R. u. Cbi- Mississippi River Bridgey. Lonergan,91 cage W. D. E , 87 111. 317. 111. 508 ; Bordentown, etc. Tarnpike v. ' See Street R. v. West Side St. E., Camden & A. R., 17 N. J. L. 314. 48 Mich. 433. 3 See § 83. « Richmond, F. & P. E. v. Louisa * Binghampton Bridge Co., 3 Wall. E., 13 How. 71. 51 ; St. Tammany Water Works v. New ' Philadelphia & G. F. R. Appeal, Orleans Water Works, 120 XJ. S. 64; 102 Pa. 123. Aikin v. Western R., 20 N. Y. 370 ; 8 gee New York & N. E. Transfer California State Tel. Co. v. Alta Tel. Co., 14 Blatch. 159. SECT. 168.] THE AFFECTING OF CONTRACTS. 157 is established, though his custom is diverted by reason of the erection of a bridge.^ So, an exclusive franchise to maintain a bridge for the use of foot passengers and wagons, is not impaired by the construction of a railroad bridge.'^ In Hartford Bridge Company v. Union Ferry Company,^ the plaintiffs had been granted a franchise, a part of the contract being that existing ferries between Hartford and East Hartford were to be discon- tinued, and that the towns were never to transport passengers across the river. The defendants were subsequently chartered to operate a ferry, which diverted travel from the bridge to some extent. It was held that the bridge franchise was not impaired, because the terms of the contract did not cover the ferry in question. § 168. Direct taking of Franchise. — A franchise is directly impaired when its possessors are obliged to permit a new cor- poration of like character to use the property necessary to its enjoyment. Thus, the use of railroad tracks by a new corpora- tion, duly authorized, may impair the original franchise, to operate the road.* A franchise may be wholly resumed or destroyed by the state. Legislation directed to such an end may spring from the desire to throw open to the public an undertaking operated under an exclusive franchise. Thus a franchise is destroyed when a toll- bridge is made free,^ a highway substituted for a turnpike,^ and where tolls imposed on navigation are abolished.^ 1 Perott V. Lawrence, 2 Dill. C. C. * Pennsylvania R. u. Baltimore & O. 332 ; Kansas & A. K. y. Payne, 4 U. S. R., 60 Md. 263. See also Citizens' Coach App. 77. See also Columbia Delaware Co. v. Camden Horse R., 33 N. J. Eq. Bridge v. Geisse, 35 N. J. L. 558 ; Hop- 267 ; Alexandria & F. R. v. Alexandria kins V. Great North. R., 2 Q. B. D. 224. & W. R., 75 Va. 780; Canal & C. R. v. But see Queen v. Cambrian R. L. R., 6 Crescent City R., 41 La. An. 561. See Q. B. 422. Metropolitan R. v. Highland R., 118 2 Bridge Proprietors v. Hoboken L. Mass. 290. & L Co., 1 Wall. 116, affirming s. c, ^ West River Bridge v. Dix, 6 How. 13 N. J. Eq. 503. See also Mohawk 507; Towanda Bridge, 91 Pa. 216; Cen- Bridge v. Utica & S. R., 6 Paige, 554 ; tral Bridge v. Lowell, 4 Gray, 474. McRee v. Wilmington & R. R., 2 Jones « Philadelphia, N. & N. T. R. Ap- L. 186. Compare Enfield Toll Bridge peal, 120 Pa. 90. V. Hartford & N., H. R,, 17 Conn, 40. ' Monongahela Nav. Co. o. United ' 29 Conn. 21,0. States, 148 U. S. 312. 158 INTEEFEEENCES WITH PEIVATE PROPEETY. [CHAP. VII. Private Contracts. § 169. A private contract is property, and may be taken by the eminent domain.^ The effect of the power is usually indi- rect, resulting from the condemnation of the property which is the subject of the contract. It will appear, that the action of the eminent domain upon such property does not abrogate, as a rule, the contractual relation. Nor does it enable one of the parties to compel an alteration in the terms of the contract, in order that the original object may be attained. Thus, where one grants a right of way over a tract of land for a pipe, and the way is afterwards subjected to a highway easement, the grantee has no right to lay the pipe in another part of the tract.^ Covenants of warranty, and others of like character, are sup- posed to be made in submission to the right of eminent domain. Therefore, if, after conveyance, the land is condemned the cove- nants are terminated. There is not a breach for which com- pensation can be claimed, or suit maintained against the covenantor.** The courts of the several States are not in full accord on the question, whether the existence of a public interest in land con- veyed is a breach of a covenant against encumbrances. Some decisions declare the comprehensive rule, that the subjection of the land to any foreign interest, latent or patent, known or un- known to the vendee, constitutes a breach.* Other decisions, while not perhaps supporting so broad a proposition, hold that the existence of a public way over the land is within the cove- nant.^ But the mere staking out of a road over the land does not encumber it, where acceptance of the road by the authorities is necessary to its existence.® In other cases, it is held that 1 See § 84. 50 Mo. 496 ; s. c. 62 Mo. 429. See also '■* Johnson v. Jaqui, 27 N. J. Eq. 552. Forster v. Scott, 136 N. Y. 577. 8 Smith V. Hughes, 50 Wis. 620; ^ Kellogg v. Ingersoll, 2 Mass. 97; Ellis V. Welch, 6 Mass. 246 ; Stevenson Hubbard v. Norton, 10 Conn. 422 ; Al- V. Loehr, 57 TU. 509. See also Legal ling v. Burlock, 46 Conn. 504 ; Pritch- Tender Cases, 12 Wall. 457, 549; ard u. Atkinson, 3 N. H. 335 ; Beach ». Cooper V. Bloodgood, 32 N. J. Eq. 269. Miller, 51 111. 206 , Wadhams v. Swan, See Brimmer v. Boston, 102 Mass. 19; 109 111. 46; Herrick v. Moore, 19 Me. Ake V. Mason, 101 Pa. 17. 313. See Cincinnati v. Brachman, 35 * Burk V. Hill, 48 Ind. 52 ; Quick v. Ohio St. 289. Taylor, 113 Ind. 540; Kellogg y. Malin, 6 Shute v. Barnes, 2 Allen, 598. SECT. 170.] THE AFFECTING OF CONTRACTS. 159 where the public occupation is patent there is not a breach of the covenant, as the presumed knowledge of the vendee is equiv- alent to acquiescence,^ but that the covenant is broken if the existence of the public right is not apparent.^ § 170. Where the fee simple of an entire tract, subject to a lease, is condemned, the relation of lessor and lessee is termi- nated,^ and is not revived by reconveyance to the lessor.* There is some difference of opinion as to the effect of condemnation upon a lease, where the legal title to the premises remains in the lessor. It is usually held, that there is not an eviction, but that the covenant to pay rent is unaffected, whether the whole or a part of the tract is taken/ unless indeed the lessee has a statu- tory right to abandon the premises upon their condemnation.^ In other decisions condemnation is held to abrogate the lease in whole or in part, as the case may be. '^ Where land is condemned after the owner has agreed to sell it, the contract is not abrogated.^ It has been held that a con- demnation of land is a sale of it, within the meaning of a contract by which one agrees to make a certain distribution of the pur- chase price in case the land is sold. The compensation is the purchase price, and is to be distributed as agreed upon.^ It may be noted here that, while a municipal lien for unpaid taxes is extinguished by the condemnation of the land by the state, the personal liability of the owner is not affected. i" > Peterson v. Arthurs, 9 Watts, 152 ; ' Ellis v. Welch, 6 Mass. 246 ; Parks Smith V. Hnghes, 50 Wis. 620; Jordan v. Boston, 15 Pick. 198; Folts v. Hunt- V. Eve, 31 Gratt. 1 ; Whitbeck v. Cook, ley, 7 Wend. 210; Dyer v. Wightman, 15 Johns. 48.3; Haldane v. Sweet, 55 66 Pa. 425 ; Stubbings y. Evanston, 136 Mich. 196; Desvergers w. Willis, 56 Ga. 111. 37; Foote v. Cincinnati, 11 Ohio, 515. See also Butt u. Riffe, 78 Ky. 352 ; 408. See also Workman w. Mifflin, 30 Wilson V. Cochran, 46 Pa. 229. Pa. 362 ; Gallup v. Albany R., 65 N. Y. 2 Hymes v. Esty, 116 N. Y. 501 ; 1 ; Emmes u. Feeley, 132 Mass. 347. s. 0. 133 N. Y. 342 ; Trice v. Kayton, ^ See Phyfe v. Eimer, 45 N. Y. 102. 84 Va. 217. See Huyck v. Andrews, ' Biddle v. Hussman, 23 Mo. 597; 113 N. Y. 81 ; Peck w. Jones, 70 Pa. 83. Levee Commissioners «, Johnson, 66 8 O'Brien v. Ball, 119 Mass. 28; Miss. 248. Corrigan v. Chicago, 144 111. 537. See 8 gee § 306. also William and Anthony Streets, 19 ^ Vandermulen v. Vandermulen, 108 Wend. 678 Barclay v. Pickles, 38 Mo. N. Y. 195. 143. 10 Richardson v. Boston, 148 Mass. * O'Brien v. Ball, 119 Mass. 28. 508. 160 LOCATION AND ITS INCIDENTS. [CHAP. VHI, CHAPTER Vm. LOCATION AND ITS INCIDENTS'. § 171. It has been shown in the preceding chapter that prop- erty may be taken, in point of law, without being actually reduced to useful possession. The location of an undertaking is the definite selection and appropriation of property needed, — the act by which expropriators assert the right to use certain property, usually a tract of land. In a transfer of land between private persons the vendor is an active party, as he delivers a deed to the vendee. The Lands Clauses Act approves this method to some extent, by requiring the owner of land taken to make a formal conveyance of it to the promoters for the consideration of the assessed compensation, in default of which the promoters shall acquire title by executing a deed poU.^ In the United States condemnation is sharply dis- tinguished from an ordinary sale in this respect, — a deed is rarely regarded as necessary to the condemnation of land for public use. The statutory proceedings are a sufficient record of the transfer.^ CHOICE OF SITE. Statutory Location. § 172. The legislature sometimes enacts that specific property shall be taken for the public use.^ In this fashion land has been set apart for a street,* and a park.^ In the cases cited the actor 1 Sec. 75. K. E., 17 W. Va. 812. See also Boom 2 Indianapolis & S. L. R. v. Sraythe, Co. v. Patterson, 98 TJ. S. 403 ; Subur- 45 Ind. 322; Carpenter v. State, 12 ban, etc. R. u. New York, 128 N.Y. 510. Ohio St. 457. See East Tennessee & * Spears w. New York, 87 N. Y. 359 ; v. R. V. Love, 3 Head 63. Smedley v. Irwin, 51 Pa. 445. 8 Union Perry Co , 98 N. Y. 139 ; « Dep't. of Public Parks, 53 Hun, Baltimore & 0. R. v. Pittsburgh, W. & 280. SECT. 174.] CHOICE OP SITE. 161 is either the state itself, or one of its political corporations, but there seems no reason to doubt but that this power of legislative selection may be exercised for a private corporation, especially where it is compelled to condemn property in order to perform its public obligations.* Discretionary Location. § 173. "Where the necessity for a public work exists, it has been shown that the expropriators may be invested with a certain discretion in the choice of its site.^ The impracticability of an exact designation by the state often necessitates this course. The fact that the property of one person is not more highly esteemed than that of another as often justifies it. This discretion is rarely unlimited. It may be qualified by statutory limitations, or by restrictions based on public policy. A common restraint on location is that a state, or a political corporation, shall not condemn property beyond its territorial jurisdiction. The restraint is imperative in the case of the state,^ but the necessities of a political corporation may warrant the condemnation of property beyond its borders.* Thus a city may be authorized to condemn such property for a water supply,^ a sewer,^ and for a park,' if it be near enough to be available to the community.® §174. statutory Restrictions. — The legislature may impose a general restraint upon the selection of property, by designating territorial limitations beyond which the right to condemn shall be inoperative. Thus, where a railroad company is incorporated under a special act, the route must conform to the prescribed terminals and intermediate points. But route requirements are to be liberally construed.^ Thus, although the boundary between 1 See § 105. ' Maywood County v. Maywood, 140 8 See § 103. 111. 216. See Coldwater v. Tucker, 36 8 See § 28. Mich. 474. See § 401. * See Houghton v. Huron Min. Co., ' County Court v. Griswold, 58 Mo. 57 Mich. 547. 175 ; Thompson v. Moran, 44 Mich. 5 Slingerland v. Newark, 54 N. J. L. 602. See also Matter of Buffalo, 139 62; Warner v. Gunnison, 31 Pac. R. N. Y. 422. 238 (Col. 1892). See also New York w. 8 Matter of New York, 99 N. Y. 569. Bailey, 2 Denio, 433. ' Purifoy v. Eichmond & D. E., 108 11 162 LOCATION AND ITS INCIDENTS. [CHAP. VIII. States divided by a river is the thread of the stream, an authori- zation to build a railroad west from the " westerly boundary of Iowa," was held to permit construction from the Iowa bank of the Missouri Eiver.^ Where a railroad was to be built from a point on a certain railroad " at or near Parkersburg," the selec- tion of a point a mile and a half from the town was held to con- form to the legislative scheme, which was to afford a connection with the railroad.^ Where authority is given to build a railroad from, to, or at a town, or between towns, it is usually construed to permit location within the town, not merely at its boundary.^ It has been held that an authorization to build a railroad through A, B, and C is complied with by building from A to C through a corner of B, and then back to B* Where a route is specifically designated it must be entirely followed. A partial compliance will vitiate the whole location.^ The legislature may impose a more precise restriction on the property to be condemned. Where a city authorizes a railroad company to condemn a right of way " adjacent " to an alley, the alley itself cannot be encroached upon.^ An aqueduct company, authorized to take springs and waters connected therewith, can- not condemn the waters of a pond.' A corporation, authorized to flood land by means of a dam to be erected at a certain point on a river, cannot plead the statute in bar of an action of tres- pass for flooding caused by a dam built five miles below the point in question.^ § 175. Although before the eminent domain all property stands on the same plane, the legislature sometimes recognizes the fact that an unrestrained freedom of selection may result in needless hardship to a property owner, as, for example, the N. C. 100. See also Morris & Essex R. * Commonwealth v. Fitchburg R., 8 V. Hudson Tnnuel Co., 38 N. J. L. 548. Cush. 240. 1 Union Pacific R. v. Hall, 91 U. S. ^ Metropolitan Transit Co., Ill N.Y. 343. See also Mohawk Bridge v. Utica 588. & S. R., 6 Paige, 554. « Tudor v. Chicago & S. S. R., 27 " Parke's Appeal, 64 Pa. 137. N. E. Rep. 915 (111. 1891). ' Mohawk Bridge u. Utica & S. R., ' Proprietors of Mills, etc. v. Brain- 6 Paige, 554; :^eople c Thompson, 67 tree "Water Supply Co., 149 Mass. 478. How. Pr. 491 ; Hazlehurst u. Freeman, 8 Davis v. Log Driving Co., 82 Me. 52 Ga. 244. See also Western Pa. R. 346. Appeal, 99 Pa. 155 ; People v. Brook- lyn, F. & C. I. R., 89 N. Y. 75. SECT. 176.] CHOICE OF SITE. 163 destruction of a house to further a use which can be as well subserved by the occupation of unimproved land. Statutory- exemptions of dwellings, etc.,' are the most notable examples of such legislation. Further, there is sometimes accorded to the landowner the right to question the selection of his property.^ Where it is enacted, that public works must be so located as to obtain the greatest public benefit with the least private injury ,3 mere proof that an undertaking might be equally well located elsewhere will not discredit the location chosen.* The General Eailroad Act of New York permits a landowner to file objections to a proposed location.^ The objections are to be considered by commissioners, one of whom shall be an engineer. With the concurrence of the latter the route may be altered, provided such alteration will not cause greater damage to property, materially lengthen the road, or substantially change its general route. Such legislation is to be commended, for it in nowise interferes with the reasonable exercise of the right of eminent domain, and yet contemplates the possibility of its abuse. § 176. Restrictions other than Statutory. — Beyond Specific statutory limitations on the power of selecting property for con- demnation, there are restrictions, more or less well defined, based usually on public policy. The most notable of these is expressed in the rule that property already devoted to public use shall not be occupied to the total or partial derogation of such use, unless the right to do so shall be given expressly, or by necessary implication.® It has been said that property impressed with a public use cannot be taken for the same use.'^ This state- ment did not affect the decision, for the court found that two railroads running to different points were sufficiently dissimilar to warrant one to condemn a right of way over part of the route of the other. Eead with the broad definition of dissimi- larity upon which the decision is based, the statement suffi- ciently describes, perhaps, the actual limitations of the power to 1 See § 95. 5 Sect. 22. 2 Minneapolis Ey. Terminal Co., 38 ^ See §§ 176-180. Minn. 157. ' Lake Shore & M. S. E. v. Chicago 3 California Code Civ. Proc, § 1242. & W. I. E., 97 111. 506. * Cal. Cent. E. v. Hooper, 76 Cal 404 ; Pasadena v. Stimson, 9] Cal. 238. 164 LOCATION AND ITS INCIDENTS. [CHAP. VIII. condemn property already in public use. But the statement is not correct in theory. The right of eminent domain must be so broadly defined, that if it be to the public good that a public use be administered by different agents, the state may effect the sub- stitution by buying out the agents in charge. The substitution of a free bridge for a toll-bridge ^ is nearly in point. Not quite, however, as there is a substantial difference between a free way and a toll-way. Should the government decide to acquire the telegraph lines, it could do so only by compensating the owners. It would thus condemn property," in order to continue a public use under a new management. § 177. The authority to take specific property already in public use need not be express. It is sufficient if the statute discloses the legislative intention. Thus, where a railroad cor- poration is authorized to extend its line to a union depot, and the proper route is over other railroad property, authority to con- demn will be inferred.^ Where a city is empowered to appro- priate all the wharf property within its limits, wharves held for railroad purposes are included.^ Although a corporation is empowered to take "property however occupied," the clause will not be construed so as to include streets, or other public property.* A similar restriction has been placed upon the power to take property "near aud convenient.^ Authority to take land already in public use will not be in- ferred from the fact that such action would be economical.^ Thus, water rights, owned by a water company, cannot be con- demned by another water company on the plea that the necessi- ties of the latter are the greater, and that the acquisition of the property in question would save much of the expense which would attend the acquisition of water rights elsewhere.' 1 See § 168. 6 Pennsylvania K. Appeal, 93 Pa- 2 Providence & W. R. u. Norwich & 150. W, R., 138 Mass. 277. 6 Pennsylvania R. Appeal, 93 Pa. 8 Matterof New York, 135 N. Y. 253. 150; Groff's Appeal, 124 Pa. 621. See * Cake V. Philadelphia & E. R., 87 also Fenwick v. East London R., L. B,. Pa 307. See Wood v. Macon & B. R., 20 Eq. 544. 68 Ga. 539. ' Spring Val. Water Works v. San Mateo Water Works, 64 Gal. 123. SECT. 179. J CHOICE OF SITE. 165 § 178. The courts will not find the second undertaking to be in conflict with the first, unless their incompatibility is declared by law, or is patent in fact, for it is the duty of the judiciary to harmonize, if possible, all grants of public powers.^ Hence, land appropriated for a railroad line may be included within a tract taken for a park, without express authority, when it appears that the railroad may run through the park without detriment to either public use, for it will be assumed that the legislature intended that both uses should be maintained.^ But, ordinarily, a railroad is not consistent with the use of land for a park, and its promoters cannot take such land under a general authority.^ A highway may be laid along a strip of land used as a way for water-pipes,* or over a school-house lot,^ and a pipe line may be laid across a poor-farm.^ But in the absence of direct authority a railroad cannot be run through a reservoir,^ or the grounds of a state institution.^ § 179. The most common instance of location upon prop- erty abeady in public use is the crossing of a way by another. Where a strip of land is taken for the right of way of a highway, railroad, or turnpike, it is usually held that it may be crossed in future by another way built under a general authority.^ But if at the point of crossing the land is used not simply as a way, but is put to special uses, which would be impaired by the laying of the new way, a right to cross must be specially author- ized.^" Thus, where a railroad is authorized to be laid across the track of another road, it cannot be run through an engine- ' Rochester Water Comm., 66 N. Y. for the Blind, 43 111. 303. See Com- 413 ; Wood v. Macon & B. E., 68 Ga. monwealth v. Boston & M. R., 3 Cush. 539. See also State v. American, etc. 25. News Co., 43 N. J. L. 381. 9 Chicago & N. W. R. o. Chicago, 2 Suburban, etc. R.K. New York, 128 140 111. 309; Bridgeport v. New York N. Y. 510. See People u. Park & O. R., & N. H. R., 36 Conn. 255 ; St. Paul, M. 76 Cal. 156. & N. R. v, Minneapolis, 35 Minn. 141. 3 Boston & A. E., 53 N. Y. 574. See Valparaiso v. Chicago & G. T. R., * Boston V. Brookline, 156 Mass. 172. 123 Ind. 467. 6 Easthampton v. County Comm., lo Boston, H. T. & W. R., 79 N. Y. 154 Mass. 424. 64; Prospect Park & C. I. R. v. Wil- " Southwest. Pa. Pipe Line u. Di- liamson, 91 N. Y. 552 ; Boston & M. R. rectors of the Poor, 1 Pa. C. C. 460. o. Lowell & L. R., 124 Mass. 368 ; Lit- ' State u. Montclair R., 35 N. J. L. tie Miami R. v. Dayton, 23 Ohio St. 328. 510 ; Ft. Wayne v. Lake Shore & M. S. 8 St. Louis, J. & C. K. «. Institution R., 132 Ind. 558. 166 LOCATION AND ITS INCIDENTS. [CHAP. VIII. hduse.^ Nor can a city under a general authority to condemn land for a canal take land used as a railroad yard,^ It has been held that an elevated railroad can be carried over a freight yard, where there is no other route, and the inconvenience is slight.^ By virtue of a statute authorizing cities to extend streets " over or across any railroad track, right of way or land of any railroad company," a street may be laid across a collection of railroad tracks, used as a yard, either at or above grade.* Where the land required for a way is to be taken in fee, there is not an implied right to cross another way, for this would disrupt the latter,^ § 180. The longitudinal occupation of one way by another presents no such necessity as constrains the implication of a right to carry a way across another. Therefore, where such occupation is desired, a warrant for it must be expressed, or clearly implied.® Thus, a railroad company, acting under a general authority, cannot build along a highway,^ nor occupy the route of another railroad.^ Nor will authority to construct between certain termini permit a railroad company to use the location of a railroad running between the same points,^ or a turnpike company to lay the pike upon a highway, ■''' A telegraph company, authorized to erect their plant "along and parallel to" a railroad, cannot place it on a railroad right of way.i^ Where a railroad may be built so as to " cross, intersect, join, and unite " with another, a right of way over the latter for some distance cannot be condemned.^^ In the absence of special authority, 1 Albany Northern R. v. Brownell, Cush. 63 ; Morris & E. R. v. Newark, 24 N. Y. 345. 10 N. J. Eq. 352 ; Davis v. East Tenn., 2 Matter of Buffalo, 68 N. Y. 167. V. & G. R., 87 Ga. 605 ; St. Louis, V. See Comm. c7. Detroit, G. H., etc. R., & T. H. R. u. Haller, 82 111. 208. See 93 Mich. 58. § 397. ' Pittsburgh Junction R. v. AUe- * Alexandria & F. R. v. Alexandria gheny Val. R., 146 Pa. 297. & W. R., 75 Va. 780. * Illinois Cent. R. v. Chicago, 141 ^ Housatonic R. v. Lee & H. R., 118 111. 586. Mass. 391. See Mobile & G. R. v. Ala- 5 Matter of Buffalo, 72 Hun, 422. bama Midland R., 87 Ala. 501. See Comra. v. Michigan Cent. R., 90 ^^ Groff v. Bird in Hand Turnpike, Mich. 385. 144 Pa. 150. 6 Ft. Wayne v. Lake Shore & M. S. " Postal Tel. Co. o. Norfolk & W. E., R., 132 Ind. 558; Cent. City K. v. Ft. 88 Va. 920. Clark R., 81 111. 523. 12 Illinois Cent. R. v. Chicago, B. & ~> Springfield u. Conn. River R., 4 N. R., 122 111. 473. SECT. 181.] CHOICE OP SITE. 167 a railroad right of way cannot te subjected to a highway,^ or a public ditcli.2 § 181. The owner of land devoted to private use is, unless favored by statute,^ seldom in a position to question the selection of his property for public use. He cannot urge the unsuitable- ness of the land^ nor suggest engineering or financial difficulties in opposition to its selection. Questions of feasibility are not within his province.* Nor can he show that another location would be less harmful to private property.^ But it seems that if a selection be made capriciously or wantonly, the owner may resist.^ A question of some nicety arises when a corporation seeks to condemn land for a use for which land already under its control appears to be available. The sound proposition has been sug- gested, that if a corporation has a convenient way over its own land, it cannot condemn a way over the land of another.'' But condemnation should be permitted, unless the propriety of using property in possession is so manifest as to render further acqui- sition a reckless interference with private rights.^ Where a railroad company attempt to build over a sidewalk, the owner cannot have the location changed, so that the road shall be built upon improved property in which the company appear to hold an interest.^ A railroad company leased land, acquired by pur- chase, for a pleasure resort. In order to facilitate the handling of its passenger traffic, it proceeded to condemn land for a new station, whereupon the owner asserted that as the land leased was not used for railroad purposes, and was suited for the station, 1 Bridgeport v. New York & N. H. Phila. 491 ; New York & H. R. v. Kip, E., 36 Conu. 255. See also New Jersey 46 N. Y. 546 ; Lecoul v. Police Jury, 20 South. R. V. Long Branch Comm., 39 La. An. 308. N. J. L. 28. 7 New Central Coal Co. v. George's 2 Baltimore & 0. R. v. North, 103 Creek, C. & I. Co., 37 Md 537. See Ind. 486. also Rochester & G. R., 12 N. Y. Supp. ' See§ 175. 566; Manhattan Co. Case, 22 Wend. * Coffman v. Griffin, 17 W. Va. 178. 653 ; Split Rock Cable Road, 128 N. Y. See § 50. 408 ; Lamb v. North London E., L. E. 5 New York & E. R. v. Young, 33 4 Ch. 522. Pa. 175. See also Eversfield v. Mid s Boyd v. Negley, 40 Pa. 377 ; Stark Sussex R. R., 3 De G. & J. 286. v. Sioux City & P. R., 43 Iowa, 501. « Second St., 23 Pa. 346. See also « Schmitz v. Union El. E., 50 Hun, Anspach v. Mahanoy & B. M. E., 5 407. 168 LOCATION AND ITS INCIDENTS. [CHAP. VIII. the condemnation of other land was unnecessary. Although the lease was revocable, the right to condemn was sustained.^ Belocation. § 182. Where an undertaking of public purpose has been definitely located, in the exercise of such discretion as has been allowed to its promoters, the power of choice is generally ex- hausted. A change of site cannot be made, unless authorized by statute.^ This statement applies to property purchased, as well as to property condemned.^ A bridge company, having selected a line of approach within a district defined by statute, cannot thereafter change it. The legislature intended that a definite location should be made, not that the power to condemn should be suspended indefinitely over the district.* Nor can relocation be compelled at the sole instance of public authorities, acting - ministerially in the interests of public convenience and safety, for, as the location is made by legislative sanction, the power to relocate must be derived from the same source.^ The rule as to relocation has been overcome in cases where its maintenance would, in the opinion of the court, lead to great public inconvenience. Thus, where a railroad bridge was de- stroyed, and the corporation was not able to rebuild at its own cost, it was permitted to join with another company in the erec- tion of a bridge upon another site, and make the necessary connections, under the charter power to construct, repair, and maintain a railroad.^ The rule should not be applied where the public agents do not desire to relocate the undertaking itself, but wish to change the site of an incidental work. Thus, land may 1 New York Cent. & H. E. R., 59 v. Central R., 31 N. J. L. 205. See Hun, 7. Cape Girardeau Road v. Dennis, 67 Mo. 2 Hudson & D. Canal v. New York 438 ; Eel River & E. R. v. Field, 67 & H. R., 9 Paige, 325 ; Neal ■ Bonaparte i;. Camden & A. R., ^ Ash v. Cnmmings, 50 N. H. 591. Bald. C. C. 205; Polly v. Saratoga & See § 133. W. R., 9 Barb. 449 ; Walther o. War- 6 People v. Loew, 102 N. Y. 471. ner, 25 Mo. 277 ; Oregonian R. v. Hill, ' Orr v. Quimby, 54 N. H. 590. SECT. 197.] EIGHTS OP PARTIES BEFOBE TAKING. 179 its corporations to condemn,^ it seems that it may compel the continuance of- proceedings. But a private person cannot pre- vent the discontinuance of proceedings to condemn, in the sense of compelling the completion of an undertaking which has been found to be inexpedient. A city, intending to open a street, ad- vertised for bids for the houses on the line of the improvement, and afterwards decided to abandon the work. The highest bid- der attempted to compel the continuance of the proceedings in order that he might secure the buildings, but it was held that he had no interest which would enable him to coerce the city into carrying out the work.^ The owner of property against which proceedings are directed may have an interest in their continuance in this respect : In case discontinuance is attempted after the taking is complete, he may insist upon continuance, not for the purpose of completing the work, but simply to obtain the compensation which is his due. Eecession, after the taking is complete in law, is practi- cally an abandonment of the work so far as the property in ques- tion is concerned. The owner is entitled to compensation, and resumes dominion over his property. Thus, where an entry on one of the tracts over which a highway is projected effects, according to the statute, the taking of all the rest, the owners of the latter may have full compensation, although the work is abandoned before completion, and their possession is never disturbed in fact.^ The rule is certainly just, in this, that it prevents the indefinite subjection of land to a public easement without compensation until the authorities choose to take actual possession.* But, as it may bear hardly upon the public where the undertaking is definitely relinquished within a reasonable time, the legislature has, in some cases, provided that in this event the owner shall have damages only for losses actually sustained.^ § 197. The existence and extent of a right to discontinue depend, then, upon the point of time at which the right to 1 See § 105. 137. See Stiles u. Middlesex, 8 Vt. 2 State V. Graves, 19 Md. 351. 436. ' Wheeler v. Fitchburg, 150 Mass. * See § 201. 350. See also Kent v. Wallingford, 42 ^ New Bedford v. County Comm., 9 Vt. 651 ; Kimball v. Rockland, 71 Me. Gray, 346. See Kimball o. Rockland, 71 Me. 137. 180 LOCATION AND ITS INCIDENTS. [CHAP. VXII. compensation vests. The English rule is that upon service of a notice to treat upon the property owner, the promoters are liable for compensation,^ unless the owner gives a counter-notice de- manding that the whole of the premises shall be taken instead of the part described. But a statute, authorizing the abandon- ment of an undertaking before compensation is paid, may provide that the owner shall be indemnified for actual damage only.^ The constitutional and statutory provisions in respect to the point of time at which property is taken, and the right to com- pensation vests, are, in this country, so diverse that the only generalization possible is, that when the point has been passed, the proceedings to condemn cannot be freely discontinued, so far as the rights of the property owner are concerned.^ Where the assessment of compensation precedes the taking, the proceedings may be discontinued at any time before assessment.'' § 198. May proceedings be discontinued after the ascertain- ment of compensation ? It is usually held that, in the absence of statutory direction to the contrary, the state or a political cor- poration should be enabled to count the cost of property before taking title, so that the public interests may not suffer by reason of the undertaking of works the cost of which will exceed the benefit.^ Even under the English statute it has been decided that service of a notice to treat does not bind a political corpora- tion.® It has been held that where proceedings to open a street are instituted, and the owners interested may appeal from the awards, the city cannot, in the absence of direct authority, refuse to treat a judgment for compensation, recovered by a single owner, as iinal, until it can count the cost of the work after all the awards have been determined on appeal.^ Where a landowner ' Reg. V. Birmingham & 0. R., 6 Stevens v. Danbury, 53 Conn. 9 ; Lafay- Ry. Cas. 628 ; Morgan o. Metropolitan ette v. Shultz, 44 Ind. 97 ; Comm. of R., L. R. 4 C. P. 97. Washington Park, 56 N. Y. 144 ; Drury 2 Uxbridge & R. K, 43 Ch. D. 536. v. Boston, 101 Mass. 439 ; Lamb v. ' People V. Syracuse, 78 N. Y. 56. Schottler, 54 Gal. 319; Black v. Balti- * See Dayton & W. R. v. Marshall, more, 50 Md. 235. See Jones v. Oxford, 11 Ohio St. 497. 45 Me. 419. 5 Shoemaker v. United States, 147 ^ Queen ». Comm., 15 Ad. & El. n. s. U. S. 282 ; Mabon v. Halstead, 39 N. J. 761. L. 640 ; O'Neill v. Freeholders, 41 N. J. ' Myers v. South Bethlehem, 149 L. 161 ; Bloomington v. Miller, 84 111. Pa. 85. 621; Carson !). Hartford, 48 Conn. 68; SECT. 199.] EIGHTS OF PARTIES BEFORE TAKING. 181 recovered judgment against a city for taking land for a right of way, which judgment was affirmed on appeal, the city cannot have the judgment set aside on the ground that it has decided not to open the way.^ It has been intimated that' the English rule is proper when a private corporation is the actor; that, in this case, no considera- tion of public policy prevents the selection of property with- out the owner's consent from being treated as a contract to pay its value.^ This principle is sometimes incorporated in • the statute.^ But in other statutes the legislature places the private grantee of the eminent domain on the privileged plane of the political corporation, and contemplates a period, between the ascertainment of compensation and some act of confir- mation or acceptance, during which the proceedings may be discontinued.* The most favorable position accorded to the corporation is that it may freely discontiniie at any time before actual tender or payment of compensation.* § 199. Where the right to discontinue exists it must be exer- cised in a reasonable manner. Thus, it has been held that the United States cannot institute proceedings against several tracts of land at the same time, in order that the cheapest may be finally selected.® It has been decided that where proceedings have been discontinued, because of dissatisfaction with the award, they cannot be instituted again in the hope of obtaining a lower award.^ But where there is nothing to show that the first pro- 1 Myers v. South Bethlehem, 149 How. 39.5; Merrick v. Baltimore, 43 Pa. 85. Md. 219; State v. Cincinnati & I. R., " See Water Comm. of Jersey City, 17 Ohio St 103; Chicago v. Barbian, 31 N. J. L. 72; PoUard v. Moore, .'jl 80 111. 482; Chicago, S. L. & W. R. v. N. H. 188. Gates, 120 111. 86 ; Denver & N. 0. R. 3 Old Colony R. v. Miller, 125 v. Lamborn, 8 Col. 380; Gray u. St. 1. Louis & S. F. R., 81 Mo. 126. * Rhinebeck & C. R., 67 N. Y. 242 ; « Darlington v. United States, 82 Waverly Water Works, 85 N. T. 478 ; Pa. 382. Stacey v. Vermont Cent. R., 27 Vt. 39. ' Chicago, R. I. & P. R. v. Chicago, See also Witt v. St. Paul & N. P. R., 35 143 111. 641 ; St. Joseph v. Hamilton, Minn. 404; Corbin v. Cedar Rapids, S. 43 Mo. 282; Rogers o. St, Charles, 3 F. & N. R., 66 Iowa, 73 ; Fox v. West. Mo. App. 41 ; Hupert v. Anderson, 35 Pacific R., 31 Cal. 538. Iowa, 578. See State v. Minneapolis, ' Baltimore & S. R. u. Nesbit, 10 40 Minn. 483. 182 LOCATION AND ITS INCIDENTS. [CHAP. VIII. ceedings were discontinued because of the largeness of the award, new proceedings may be instituted.^ If property has been damaged by the corporation, pending pro- ceedings which have been discontinued, full indemnity must be paid.^ Although the owner's costs upon discontinuance should be paid by the corporation, it has been held that other expenses, and any inconvenience which may have been caused by the proceedings, must be borne without redress.^ But wherever a sufficient discretion in respect to the terms of discontinuance is reposed in the court, it seems just that the owner should be reimbursed for aU necessary expenses.* Eights of the Owner hefore the Completion of the Taking. § 200. The suspension of the right of eminent domain over property does not usually divest its owner of any rights of dis- position or enjoyment. Thus, he may sell the property, and give good title to it ;^ cultivate crops, and obtain compensation for their destruction in the event of appropriation ; ^ improve his laud by proceeding with the construction of buildings already begun,' and even commence new buildings.^ Viewed in the light of principle, the law of lis pendens has no effect upon property against which proceedings to condemn are directed.^ But it has been decided that such proceedings are within the purview of the California statute in respect to lis •pendens}^ • Trustees, etc. v. Haas, 42 Ohio St. ' Duluth Trans. Co. v. Northern 239. Pacific R., 53 N. W. Eep. 366 (Minn. 2 Pittsburgh, F. W. & C. R. <-. Swin- 1893). ney, 97 Ind. 586 ; McLaughlin v. Muni- « Gilmore v. Pittsburgh, V. & C. E., cipality No. 2, 5 La. An. 504 ; Van 104 Pa. 275 ; Lafferty o. Schuylkill Valkenburgh v. Milwaukee, 43 Wis. River R., 124 Pa. 297. 574. ' New York v. Mapes, 6 Johns. Ch. 8 Stevens v. Danbury, 53 Conn. 9 ; 46 ; Portland v. Lee Sam, 7 Or. 397. United States v. Oregon, R. & T. Co., ' Driver v. West. Union R., 32 Wis. 16 Fed. Rep. 524. 569; Sherwood u. St. Paul & C. E., 21 * New York, W. S. & B. R. v. Minn. 122. See also Briggs v. Comm., Thorne, 1 How. Pr. n. s. 190; Hudson 39 Kan. 90. But see Schuylkill Nav. River R. v. Outwater, 3 Sand. 689 ; Co. v. Farr, 4 W. & S. 362. Waverly Water Works Co., 85 N. Y. a Curran v. Shattuck, 24 Cal. 427 ; 478; North. Missouri R. v. Lackland, Matter of Wall St., 17 Barb. 617. 25 Mo. 515. See Drury v. Boston, 101 lo Roach v. Riverside Water Co., 74 Mass. 439. Cal. 263. SECT. 201.J EIGHTS OF PARTIES BEFORE TAKING. 183 § 201. What may be called the doctrine of inchoate condem- nation bears on the present subject. It has been held that the legislature may authorize a city to file a map of a proposed street, and thereby so impress the land delineated with a public interest as to prevent the owner from recovering compensation, on the actual opening, for any improvements made subsequent to the filing.^ The same conclusion has been reached where, at the passage of the law, there was no express constitutional requirement of compensation, the court holding that if compen- sation were necessary it could be made in any form, and that in the case at bar the owner had received ample compensation in the adoption of a general plan for municipal improvement.^ The effect of the decisions cited is to affect property with a public lien which wiU hinder its sale and improvement. This detri- ment is certain. The compensatory benefit suggested is illusory, for the opening of the street cannot be compelled by the owner ; therefore, there is a restraint on the enjoyment of land for the sake of a projected use which may never materialize. The uncon- stitutionality of inchoate condemnation has been declared in well- reasoned opinions.^ 1 District City of Pittsburgh, 2 W. ' Porster u. Scott, 136 N. Y. 577 ; & S. 320; Sedgeley Ave., 88 Pa. 509 ; State v. Coram., 37 N. J. L. 12 ; Moale Shaaber v. Reading, 150 Pa. 402. v. Baltimore, 5 Md. 314 ; Baltimore v. 3 Purman St., 17 Wend. 649; One Hook, 62 Md. 371. See also Bensley «. Hundred & Twenty-seventh St., 56 Hovr. Mountain Lake Water Co., 13 Cal. 306 ; Pr. 60. But see Porster v. Scott, 136 Wheeler v. Pitchburg, 150 Mass. 350. N. Y. 577. 184 THE ESTATE OB IKTEEEST CONDEMNED. [OHAP. IX. CHAPTER IX. THE ESTATE OR INTEREST CONDEMNED. § 202. The legislature may, and usually does, determine the estate or interest to be acquired in property condemned,^ unless it is limited by constitutional declaration. But it may delegate this power to a tribunal,^ permit the corporation to decide as to what interest is necessary to accomplish the purpose in hand,^ or leave the matter to the discretion of a court* § 203. The Interest prescribed must be Condemned. — Where the legislature prescribes the interest to be condemned, that interest only can be acquired.^ This proposition stands for the benefit of the public, whose interests are, presumably, better served by the acquisition of the interest prescribed. It also stands for the benefit of the property-owner, who may resist condemnation when it is directed to the taking of an unlawful interest, or may, in another case, compel the expropriators to take, and pay for, a greater estate than they would otherwise have condemned. Where a railroad company attempted to con- demn the temporary use "of land, in order to lay a track to serve during the construction of the main line, they were restrained on the ground that, as the power to condemn had been granted for a railroad, a permanent occupation was intended.^ But where it is intended that a corporation shall take the fee of land required for the undertaking, and the statute authorizes the taking of materials, it is not meant that the fee shall be taken in the latter case, as the temporary use of land will satisfy the 1 Sweet V. Buffalo, N. Y. & P. R., i See Dlinois Cent. R. v. Chicago, 79 N. Y. 293 ; Malone v. Toledo, 34 138 111. 453. Ohio St. 541. 6 Roanoke v. Berkowitz, 80 Ta. 616. 2 Thompson's Case, 57 Hun, 419. 6 Currier v. Marietta & C. E., H ' Worcester Gas Light Co. v. County Ohio St. 228. Coram,, 138 Mass. 289. See also Taylor V. Baltimore, 45 Md. 576. SECT. 203.] THE ESTATE OR INTEREST CONDEMNED. 185 needs of the work.^ If an aqueduct corporation is authorized to condemn " lands " for a water supply, it may not elect to con- demn, and pay for, the use of water in a stream and leave the bed in the owner.^ Where an aqueduct corporation is author- ized to fully appropriate a stream, it must pay compensation as for a complete appropriation. It cannot show that at the date of assessment the landowner enjoys as full a use of the water as before, for the use is permissive only, and may be stopped at any time.^ In De Camp v. Hibernia Eailroad Co.,* the defend- ants were authorized to take " lands " for the right of way of an underground mine railroad. The route traversed a valuable ore bed. In order to avoid paying for this ore, or a part of it, the company sought to condemn the right to lay the track upon the bed, subject to removal upon the owner giving notice of his intention to mine ; in that event, the track was to be laid upon cross-beams thrust into the side-walls of the tunnel, or upon a roadbed to be excavated in the wall. It was held that this was an attempt to condemn, not the easement contemplated by the statute, — a right to exclusive use and occupation, but an interest in common with the landowner, and, further, a future contingent interest in two distinct portions of land. Where a corporation is required to take land in fee simple, an easement may not be condemned in order to reduce compensation.^ Thus, where a corporation is authorized to acquire land in fee for the purpose of conducting water, it cannot elect to make compensation for an easement for an underground pipe, but must pay for what is really taken, — an exclusive right to use the land to conduct water by any means.® Where compensation is prescribed " for such actual damage only as will be sustained by entering upon the land, and constructing such drain," compensation must be paid for a perpetual easement, that being the interest necessary to support the use.'^ Trustees, condemning part of a tract of land for a road and warehouses, cannot bind themselves not to 1 Jerome v. Ross, 7 Johns. Ch. 315. « Hill v. Mohawk & H. R., 7 N. Y. ' Watson V. Acquackanonck Co., 36 152. N. J L. 195. ' "Water Coram, of Amsterdam, 96 ' Miller v. Windsor Water Co., 148 N. Y. 351. See Taylor v. Baltimore, 45 Pa. 429. Md. 576. * 47 N. J. L. 43. 518. ' Chronic v. Pngh, 136 El. 539, 186 THE ESTATE OE INTEREST CONDEMNED. [CHAP. tX. injuriously affect the remainder by making improvements on the part takeu.i § 204. The Interest must be sufScient to Support the Public Use. — Unless the statute is mandatory the expropriators should take, and can be compelled to pay for, only such an interest as is necessary to support the public use. Whether that interest be complete or partial, temporary or permanent, the owner cannot complain as long as he is compensated for the injury actually sustained.^ Agreeably to this principle, the expropriators may, in certain cases, release to the landowner certain rights not essential to the maintenance of the undertaking. Thus, it has been held that, although the condemnation of a surface interest in land carries with it a right to the support of the subjacent soil, the expropriators may release this right, and thus avoid paying for it, where it is without practical benefit, as may be the case where a pipe line is laid over a coal mine.^ It has been held that the expropriators may also decrease their responsibilities, by reserving to the landowner certain valuable rights the existence of which will not prejudice the undertaking.* Thus, in a recent case in Massachusetts, a town was authorized to take by "purchase, or otherwise, water rights, and land for reservoirs." The town took parts of certain tracts bounding on a pond, and reserved to the owners a right of way to the shore for the watering of stock, the cutting of ice, etc. A claim for reduction of compensation on account of this easement was I'esisted on the ground that the town had no right to reserve it. The court admitted that the reservation vested a new estate in the landowner without his consent, but justified it on the broad ground that it is not necessary to condemn the whole estate in land, if a valuable privilege can be safely secured to the 1 Ayr Harbour Trustees v. Oswald, ' Penn Coal Co. i'. Versailles Gas 8 App. Cas. 623. Co., 131 Pa. 522; McGregor v. Eqnita- 2 Sixth Ave. R. v. Kerr, 72 N. Y. ble Gas Co., 139 Pa. 230. 330 ; Hartford & C. R., 65 How. Pr. * See Windsor v. Field, 1 Conn. 279 ; 133 ; Taylor u. Baltimore, 45 Md. 576. Hunsicker v. Briscoe, 12 La. An. 169. See § 233. 6 Tyler v. Hudson, 147 Mass. 609. SECT. 205.J THE ESTATE OE INTBKEST CONDEMNED. 187 Acquisition of a Fee. § 205. In the absence of constitutional restriction the legis- lature may authorize the taking of a fee,^ and this is so, although the purpose in view may be accomplished by the taking of a smaller estate.^ Where the words " fee," or " fee simple," appear in the statute the intention of the legislature is plainly expressed.^ But the acquisition of an estate larger than an easement has been permitted under less explicit statutory directions. For example, when it is said that " the estate, right, propertj'', and interest in the premises shall immediately vest in the company to be held as long as they shall be used for the purposes of said canal ; " * that the land condemned shall " vest forever " in the corporation ; ^ that " title to all land so taken shall vest in said city." ® On the other hand, the right to take a fee has been denied on account of the insufficiency of the statutory provisions ; for example, that a corporation shall be " seized and possessed of the land ; " ^ that it may "take and hold" land ; ^ that compensation shall be as- sessed for the " value of the land." ^ Where the state itself is the actor in condemnation proceed- ings the acquisition of a fee has been presumed. ^'^ It has been intimated, that a test of the quantum of interest acquired is the nature of the use for which the land is condemned ; for example, land taken for a park is presumably taken in fee, as an estate of less dignity will not properly support the use.^^ With much less reason, and in opposition to the weight of ' Roanoke v. Berkowitz, 80 Va. 616 ; « Page t-. O'Toole, 144 Mass. 303. Patterson v. Boom Co., 3 Dill. C. C. ' Quimby v. Vt. Cent. R., 23 Vt. 465. See Scott v. St. Paul & C. R., 21 387. Minn. 322; Harbacku. Boston, 10 Cush. 8 Harback i;. Boston, 10 Cush. 295. 295. See also Pittsburgh & L. E. R. v. Brace, 2 Water Comra. v. Lawrence, 3 Edw. 102 Pa. 23. Ch. 552 ; Sweet v. Buffalo, N. Y. & P. " Washington Cemetery v. Prospect R., 79 N. Y. 293; Eldridge v. Bing- Park & C. I. R., 68 N. Y. 591. See -hampton, 120 N. Y. 309; Dingley v. Beal u. New York Cent. & H. R. R., 41 Boston, 100 Mass. 544. Hun, 172. ' Water Comm. v. Am.sterdam, 96 w Haldeman v. Pennsylyauia R., 50 N. Y. 351. Pa. 425 ; Craig v. Allegheny, 53 Pa. * Barnett v. Johnson, 15 N. J. Eq. 477. 481. n Holt V. Somerville, 127 Mass. 408. 5 Brooklyn Park Comm. v. Arm- See Brooklyn Park Comm. v. Arm- strong, 45 N. Y. 234. strong, 45 N. Y. 234. 188 THE ESTATE OR INTEREST CONDEMNED. [CHAP. IX. authority,^ it has been said that a railroad company having a perpetual charter must necessarily condemn a fee,^ and that a canal company is in like case.^ The better opinion is that the purpose does not indicate the estate taken, but simply defines the use to which the land is held.* The interest acquired may be determined by the character of the property condemned. Thus, a statute authorizing the con- demnation of land for a boulevard may seem to contemplate the acquisition of a fee, yet where the way is laid across a railroad such an interest only can be acquired as will comport with the railroad use.^ § 206. Assuming that the legislature authorizes the taking of a fee, the question arises whether the fee is absolute or condi- tional. The power of free alienation is the hall-mark of a fee simple absolute. In some cases this power has been held to inhere in the estate taken. Thus, land condemned by the state in fee may be sold when its use for the particular purpose is no longer expedient.^ So, the state may authorize a political corpora- tion to sell lands the fee of which has been condemned. Thus, a city may lawfully sell, when no longer necessary, property con- demned and used for an almshouse,'' and also land condemned for a park, but found to be in excess of the requirements thereof.* The most extreme instance of the taking of a fee is when a city is empowered to condemn land for the purposes of reclamation and sale.^ Where land is condemned in fee by the public authorities for a use, in the maintenance of which private per- sons have a legal interest, the fee may be in some sense condi- tional, although the reversionary interest is so remote as to be 1 See § 207. Ohio St. 541 ; Wyoming Coal Co. v. 2 New Orleans Pacific R. v. Gay, 31 Price, 81 Pa. 156. See also Water La. An. 430. But see s. c. 32 La. An. Works Co. v. Burkhart, 41 Ind. 364 ; 471. Birdsall v. Gary, 66 How. Pr. 358. ' See New Orleans Pacific R. v. ' Heyward v. New York, 8 Barb. Gay, 32 La. An. 471. 486 ; s. c. 7 N. Y. 314 ; De Varaigne v. * See Sweet v. Buffalo, N. Y. & P. Fox, 2 Blatch. 95. R., 79 N. Y. 293. 8 Brooklyn Park Comm. v. Arm- 6 Comm. V. Michigan Cent. R., 90 strong, 45 N. Y. 234 ; Matter of Roches- Mich. 385. ter, 137 N. Y. 243. 6 Mason v. Lake Erie, E. & S. R., 1 » Dingley v. Boston. 100 Moc~ <• • Fed. Rep. 712; Malone v. Toledo, 34 SECT. 206.] THE ESTATE OR INTEREST CONDEMNED. 189 valueless. The fee of a street has been placed in this category.^ There is no real objection to the taking of an absolute fee by the state or its political corporations. True, the sale of land thus condemned may effect a circuitous transfer of private property to private nse, but, as the purchase-money is received by the public, the transaction may be viewed as a mere transmutation of public property. Where a private corporation is the actor the taking of an abso- lute fee should never be presumed. Although the taking of such an estate can be authorized,^ there are opinions in which an estate in fee simple is conditioned by the purpose for which the land is taken.^ So, under the Lands Clauses Act the promoters take a fee for the purposes of the undertaking only.^ But the Lauds Clauses Act thus provides in regard to land condemned in good faith, and found to be in excess of the needs of the corporation. Such superfluous land must be sold within ten years from the time limited for the completion of the works. If not sold it vests in the owner of the adjoining land.^ But, unless the land in question is urban land or is used for building purposes, the offer to sell must be first made to the person from whose tract it was severed, and next to the owners of adjoining land.^ In case the promoters and preferred parties cannot agree upon the price, the purchase- money shall be fixed by arbitration.'^ The acquisition of a con- ditional fee is sometimes definitely prescribed, as where the statute declares that the " estate, right, property, and interest in the premises shall immediately vest in the company to be held as long as they shall be used for the purposes of said canal." ^ The forcible acquisition of an absolute fee by a private corporation seems contrary to the spirit of the eminent domain, although its authorization is probably within the competency of the legis- 1 See § 397. 5 Sect. 127. ' Patterson v. Boom Co., 3 Dill. « Sect. 128. C. C. 465. See also Heard w. Brooklyn, ' Sect. 130. 60 N. Y. 242. 8 Barnett v. Johnson, 15 N. J. Eq. 8 Kellogg V. Malin, 50 Mo. 496. Bat 481. See also Sweet v. Buffalo & N. Y. see Challis v. Atchison, T. & S. F. R., P. R., 79 N. Y. 293 ; School District v. 16 Kan. 117. Norton, 2 Gray, 414; Logansport v. * Bostock V. North Staffordshire R., Shirk, 88 Ind. 563. 4 E. & B. 798 ; Mulliner v. Midland R., 11 Oh. D. 611. 190 THE ESTATE OR INTEREST CONDEMNED. [CHAP. IX, lature. A sale of property thus acquired would leave both prop- erty and proceeds wholly private. Moreover, the possibility of the diversion of property to private use might be the concealed reason for its condemnation. Estate less than a Fee. § 207. The interest in land usually acquired by condem- nation is a right of possession as broad as the needs, as lasting as the life of the public use. This is commonly called an easement, whether or not the occupation is exclusive.^ But the broader and better view to take of an exclusive, and presumably, perpetual, interest in land is that, if an easement, it is so only in a highly technical sense, and has little in common with that limited interest in the land of another which the term usually denotes.^ Indeed, it is insisted in a late case, that a railroad corporation which has condemned the exclusive use of land for a right of way acquires a possessory interest, and not a mere easement, for the relation of dominant and servient tenement does not exist.^ § 208. As a rule, the public use is of indefinite, continuous, and presumably perpetual duration, and therefore impresses upon the land an interest of the same quality. Yet the use may be tempo- rary, definite, or intermittent. Thus, it seems that land may be condemned for a three days' annual encampment of militia,* and that a road may be laid out for use during the winter season.* The duration of the public interest may be so limited as to ' United States v. Harris, 1 Sumn. 110; Pennsylvania S. V. R. v. Reading C. C. 20; New Jersey Zinc, etc. Co v. Paper Mills, 149 Pa. 18. See also Van- Morris Canal Co., 44 N. J. Eq. 398; dermulen v. Vandermulen, 108 N. Y. Harbacki). Boston, 10 Cnsh. 295; Clark 195; Miner v. New York Cent. & H. V. Worcester, 125 Mass. 226; Hollings- R. R., 123 N. Y. 242; Robbins v. St. worth V. Des Moines & S. L. R., 63 Paul, S. & T. F. R., 22 Minn. 286 ; Fitch Iowa, 443; Railroad Co. v. Combs, 51 v. New York, P. & B. Co., 59 Conn. Ark. 324 ; Comm. of Shawnee County 414. V. Beckwith, 10 Kan. 603; Kane v. Balti- ' New York, S. & W. R. v. Trimmer, more, 15 Md. 240; Heyneman v. Blake, 53 N. J. L. 1. 19 Cal. 579; Quick v. Taylor, 113 Ind. * See Brigham v. Edmands, 7 Gray, 540; Sixth Ave. R. v. Kerr, 72 N. Y. 359. 330. 5 Brock v. Barnet, 57 Vt. 172. See ^ Bemis o. Springfield, 122 Mass. Holcomb v. Moore, 4 Allen, 529. SECT. 210.] EIGHTS OF ENJOYMENT. 191 create what is practically an estate for years.i The legislature may authorize a temporary occupation of land, in order to facilitate the construction of the undertaking,^ and for the purpose of obtaining materials. ^ Authority to obtain materials does not permit the acquisition of an interest in the land itself* The right to take materials from laud condemned for other uses does not include the right to take land for the sake of obtaining materials.^ EIGHTS OF ENJOYMENT IN THE PROPERTY TAKEN. § 209. Where a corporation becomes lawfully possessed of property, the question arises as to what uses it may make of it without further liability. It may offend against the state, by violating the conditions upon which its powers were granted." It may injure the land of other proprietors, by the construction of the works.'' But the question of present interest is, what uses can it make of the property, without trenching on the rights of the person from whom it was taken ? What rights of enjoyment have been paid for in paying over the assessed com- pensation ? ^ Now it is plain that if an absolute fee has been condemned the question is not pertinent, for the owner has been deprived of every vestige of interest. It seems also that such a conditional fee may be acquired as will preclude the original owner from asserting any interest in the property during the con- tinuance of the public estate.^ But as a rule, where the estate is less than an absolute fee, the fee remains in him whose land has been condemned. His interest will permit such private uses of the land as do not derogate from the public use/° and will give the right to repossession upon the cessation of the use.^^ § 210. The corporation may freely construct and maintain such works as are necessary for the accomplishment of the 1 Tait's Ex'r v. Central Lunatic « See § 367. Asylum, 84 Va. 271. ' See §§ 137 et seq. 2 Lauderbruu v. Duffy, 2 Pa. 398. 8 gee §§ 163, 164. ' See § 77. 9 See Barnett v. Johnson, 15 N. J. * Richmond, F. & P. E. v. Knopffs, Eq. 481. 86 Va. 981. i» See § 215. 6' Parsons v. Howe, 41 Me. 218. " See § 221. 192 THE ESTATE OE INTEREST CONDEMNED. [CHAP. IX. purpose for which the property was condemned,^ but not works which cannot be described as necessary ,2 or which impose an additional burden on the fee.^ It has been held, that the easement acquired by a turnpike company is sufficiently broad to enable them to erect a toll-house on the pike without further compensation.* A railroad company may set up a telegraph line along the right of way for their own use without further compensation to the owner of the fee.^ Where it is permitted to -lay one way over another^ there is but the bare right to cross. Hence, a railroad company laying their road over a highway may not use their statutory width of way by placing a building on the highway,^ but a private way is not within the purview of a statute prohibiting the obstruction of roads.^ § 211. In some cases, the natural resources of the land taken may be exploited in order to further the public use. Thus, earth and stone may be used for construction and repair.^ But it has been held that where a turnpike company are per- mitted to occupy a highway, they do not succeed to the right of the public authorities to remove materials.^^ Where the right to minerals found upon the land remains in the owner, the corpor- ation cannot extract valuable clay for its use, and substitute earth of an inferior quality.^! It has been held that where a railroad corporation condemns timber-land for a right of way, it takes, and pays for, all the timber which may be used in the construction of the road, but 1 See §§ 129, 163 ' State v. Vt. Cent, R., 27 Vt. 103. 2 See Lance's Appeal, 55 Pa. 16. See also Gahagan v. Boston & L. R., 1 8 See§ 162. AUen, 187. * Eidgo Turnpike v. Stoerer, 6 "W. & s Boston Gas Light Co. v. Old Col- S. 378; Ward (i. Marietta & N. Turn- ony & N. R., U Allen, 444. pike, 6 Ohio St. 15; Tucker w. Tower, 9 ^ Aldrich v. Drury, 8 R. I. 554; Pick. 109. See Danville, etc. Road u. Henry v. Dubuque & P. R., 2 Iowa, Campbell, 87 Ind. 57. But see Perkins 288 ; Earlywine v. Topeka, S. & W. R., V. Moorestown & C. Turnpike, 48 N. J. 43 Kan. 746. See Vermilya v. Chicago, Eq. 499. M. & S. P. R., 66 Iowa, 606. 6 Western Union Tel. Co. v. Rich, 19 i» Turner v. Rising Sun Turnpike, 71 Kan. 517. See also Taggart v. Newport Ind. 547. St. Ry., 16 E. I. 668; Am. Tel. Co. u. n Loosemore v. Tirerton & N. D. R., Pearce, 71 Md. 535. 22 Ch. D. 25. See also Robert v. Sad- 6 See § 179. ler, 104 N. Y. 229. SECT. 212.] EIGHTS OF ENJOYMENT. 193 has no right to make any other disposition of it.' If trees upon a railroad right of way obstruct the view of the track, they may be cut down in the interest of public safety.^ It is not essential that the materials taken shall be used on the tract where they are found. They may be used on any part of the undertaking. Thus, where two islands are condemned for sewerage works gravel may.be taken from one for use on the other.^ The highway system under the control of a municipal corporation has been viewed as a single work in this, that materials taken from a given point may be used on any part of the system.* With regard to the quantity of materials, it seems just that, where the interest acquired is no greater than a surface easement, only such materials should be appropriated as are necessarily severed in preparing the ground for the con- struction of the work.^ Materials cannot be taken except for construction and repair. Hence, a railroad company cannot cut timber from the right of way for fuel,® nor extract minerals for their own benefit.^ So, a corporation cannot appropriate grass growing on the right of way,^ nor ice formed within its limits.^ The custodians of a highway cannot authorize the public to use a stream crossing the way,^" nor can they divert a spring from one side of the road to the other.ii § 212. Where improvements on land condemned are not to be removed by the owner, but are to be valued as they stand,^^ they belong, of course, to the corporation, which can dispose of them at pleasure. ^^ Where the value of buildings enters into the » Taylor v. New York & L. B R., 38 See Macon v. Hill, 58 Ga. 595 ; Elliott, N. J. L. 28. See also Lancaster o. Roads and Streets, 524. Richardson, 4 Lans. 136 ; Henry v. Du- * Robert v. Sadler, 104 N. Y. 229. buque & P. R., 2 Iowa, 288. See Blake ' Preston v. Dubuque & P. R., II 0. Rich, 34 N. H. 282. Iowa, 15. 2 Brainard B. Clapp, 10 Gush. 6. See ' Lyon v. Gormley, 53 Pa. 261. See also Toledo, W. & W. R. v. Green, 67 Evans v. Haefner, 29 Mo. 141. 111. 199. 8 Bailey v. Sweeney, 64 N. H. 296 ; ' Titns V. Boston, 149 Mass. 164. Adams v. Emerson, 6 Pick. 57. * Denniston v. Clark, 125 Mass. 216 ; ^ Julien v. Woodsmall, 82 Ind. 568. Huston V. Ft. Atkinson, 56 Wis. 350 ; 1° Old Town v. Dooley, 81 111. 255. New Haven v. Sargent, 38 Conn. 50; " Suffield y. Hathaway, 44 Conn. 521. Griswold u. Bay City, 35 Mich. 452. 12 gee § 238. 13 Finn v. Providence Gas Co., 99 13 194 THE ESTATE OE INTEREST COKDEMNED. [CHAP. IX. compensation assessed, and the buildings are destroyed in order to clear the ground for the construction of the public work, the removal of the debris by the owner should be followed by the deduction of its value from the compensation.^ But where the owner agrees to take the materials of buildings destroyed, and compensation is assessed with reference to this condition, the expropriators cannot convert the materials to their own nse.^ Where a part of a building is condemned, the authorities cannot assume control over the part remaining.^ § 213. Grants of Property condemned or Interests therein. — Where the estate taken is less than an absolute fee the prop- erty cannot of course be sold. But it may, in some cases, be leased for the use for which it was condemned,^ or dedicated ^ to another use. Can interests or privileges in the property condemned be granted to third parties ? As a rule, such a power cannot be sus- tained, for it would open the way to a diversion of the property from the purpose for which it was condemned.^ Hence, a rail- road company cannot lease such property to an ordinary business concern,'' nor can they grant to a telegraph company an exclusive right to build along the right of way.^ A canal company can- not claim a prescriptive right to water from another canal, for there can be no presumption of a grant where the power to grant never existed.® § 214. The rule against foreign uses of property condemned should not be pressed so far as to inhibit all incidental uses of property which has been condemned in good faith. There may Pa. 631 ; Mississippi Bridge v. Ring, 58 ' Proprietors of Locks, etc. v. Nashua Mo. 491. See also State v. Graves, 19 & L. R., 104 Mass. 1 ; Lyon v. McDon- Md. 351 ; Cliicago, I. & K. R. Knuffke, aid, 78 Tex. 71. See also Barker v. 36 Kan. 367. Hartman Steel Co., 129 Pa. 551. ' Lafayette, B. & M. R. i/. 'Winslow, ^ Southwestern R. v. Southern & A. 66 111. 219. Tel. Co., 46 Ga. 43; West. Union Tel. 2 Schuchardt v. New York, 53 N. Y. Co. v. American Union Tel. Co., C5 Ga. 202. 160. See also Pacific Postal Tel. Co. 8 Bennett v. Boyle, 40 Barb. 551. v. West. Union Tel. Co., 50 Fed. Rep * See § 108. 493. 5 See § 130. 9 Staffordshire & W. Canal v. Birm- 8 Belcher Sugar Refining Co. d. St. ingham & C. Canal, L. R. 1 H. L. 254. Louis Elevator Co., 82 Mo. 121. See also Burbank v. Pay, 65 N. Y. 57. SECT. 214.] EIGHTS OF ENJOYMENT. 195 be uses which in nowise affect the integrity of the public use, or impose an additional burden on the fee.^ Thus, it is not necessarily unlawful to permit the use of a part of a railroad station for a hotel or boarding-house,^ to allow a station agent to carry on business in the station, in lieu of wages,^ or to lease a part of a market-house not needed for market purposes.* The incidental uses mentioned may minister in greater or less degree to the patrons of the undertaking, but this factor is not essential. In some cases a corporation may make an incidental use for its own profit, especially where the only alternative of a profitable use is the waste of the property in question. Thus where a coi-poration has condemned land, and the value of the structures is included in the compensation,^ they may be sold.^ And it has been held that timber cut from land taken for a turnpike may be freely sold.^ A corporation may profit by the rental value of the buildings on the land condemned, during the reasonable interim between entry and construction.^ Where the proper construction of a public work creates a valu- able property, the whole of which is not needed, there is no objection to the disposal of the surplus. Thus, if by the con- struction of a canal, or river improvement works, more water is impounded than is needed for the purpose in view, the surplus may be leased for manufacturing or other uses.^ Where a city lawfully condemns a water supply for present and future wants, it may contract for the disposal of the surplus. i" An aqueduct company, organized to supply a town with water, may contract to supply certain persons whose lands have been condemned, without necessarily derogating from the purpose of incorpora- 1 See Grand Trunk R. v. Richard- ' Prather v. Ellison, 10 Ohio, 396. son, 91 U. S. 454. See § 211. 2 Peirce v. Boston & L. R., 141 Mass. ^ Ross v. Pennsylvania R., 17 Phila. 481 ; Hamilton v. Annapolis & E. R. R., 339. See also Curran v. Louisville, 83 1 Md. Ch. 107. See Southard v. Cent. Ky. 628. R., 26 N. J. L. 13. ' Kankauna Water Power Co. ;;. » Hoggatt V. Vicksburg, S. & P. R., Green Bay & M. Canal, 142 U. S. 254 ; 34 La. An. 624. Jessup v. Loucks, 55 Pa, 350. But see « See Spaulding v. Lowell, 23 Pick Barre Water Works, 62 Vt. 27. See 71. § 221. * See § 238. ^° Slingerland v. Newark, 54 N. J. L, 8 See Forney v. Fremont, E & M. 62. See also State u. Eau Claire, 40 R., 23 Neb. 465. Wis. 533. 196 THE ESTATE OR INTEEEST CONDEMNED. [CHAP. IX. tion.^ The New Hampshire Mill Act permits the leasing of surplus water to other mills.^ Eights of the Owner of the Fee. § 215. Where the estate taken is less than a fee the owner of the fee may enjoy such rights in the property as do not de- rogate from the public use.^ Where the public interest in land is a surface easement, the owner of the fee may make any use of the subsoil which will not impair the utility of the under- taking. Minerals may be extracted if sufficient support is left,^ though, of course, the entrance to the workings must be made on private property. Under the Eailway Clauses Act, the com- pany may take mines the working of which may be detrimen- tal to the undertaking ; but if purchase be not made within a prescribed period, the mine-owner may work his mine sub- ject only to liability for actual injury.^ The owner of the fee may lay pipes under a railroad,^ and lead a watercourse under a highway.' The extent to which the owner of the fee may make use of the surface of land impressed with a public use, depends wholly upon the nature of the possession — having regard to the ques- tion of exclusiveness — requisite to the maintenance of the undertaking. Where land is flooded by the erection of a mill- dam, the owner may make such use of the water as will not lessen the mill power,^ — may cut ice,^ and construct a log boom.^" But he cannot reclaim the land, if this will diminish the reservoir." Materials not needed for construction and repair belong to the 1 Pocantico Water Works v. Bird, ^ Sections § 77 et seq. 130 N. Y. 249. See also Pasadena o. 6 Hasson v. Oil Creek & A. E., 8 Stimson, 91 Cal. 238. Phila. 556. 2 Amoskeag Co. u. Worcester, 60 ' Perley v. Chandler, 6 Mass 454 ; N. H. 522. Woodring v. Forks Township, 28 Pa. 8 United States v. Harris, 1 Sumn. 355. C. C. 20 ; Tucker v. Tower, 9 Pick. 1 09 ; « Paine v. Woods, 108 Mass. 160 Jackson «. Hathaway, 15 Johns. 447; ' Paine v. Woods, 108 Mass. 160; Kane v. Baltimore, 15 Md. 240; New Brookville & M. H. Co. u. Butler, 91 Jersey Zinc Co. v. Morris Canal, 44 Ind. 134. N. J. Eq. 398. w Jordan v. Woodward, 40 Me. 317, * See Penn Coal Co. v. Versailles n Boston & R. Mill Corp. v. New Gas Co., 131 Pa, 522 ; Holliugsworth v. man, 12 Pick. 467. Des Moines & S. L. R., 63 Iowa, 443. SECT. 216.] ABANDONMENT. 197 owner of the fee,^ but he cannot, of course, sever them in such a manner as will interfere with the public use. The possession required by a railroad right of way is quite exclusive.* Hence, where a railroad divides a tract of land it cannot be crossed at the will of the owner. The right to cross, if it exists at all, must be based on statute or agreement,^ and cannot be exercised in such a manner as to increase the risk of accident on the road.^ It has been held that the owner of the fee cannot cut herbage from a railroad right of way.* The interest acquired by a city in land condemned for a pumping-station is so exclusive that the entry of the owner of the fee is a trespass.® Where land is condemned in fee, the person from whom it is taken is divested of all rights in it, and this though the particular right asserted would not affect the utility of the public use. Thus, where a canal company have taken the fee, the former owner can- not cut ice.^ ABANDONMENT. § 216. Where the interest condemned is less than an absolute fee, it is terminated by the abandonment of the public use, either as a whole, or in respect to the particular location. Abandon- ment may take place before the completion, or even the com- mencement, of the undertaking, or after its completion. The only distinction between these cases is that in the former the interest of the public is not so positive. The discontinuance of proceedings to condemn ^ should be sharply distinguished from an abandonment in this, that one is predicated upon the in-execu- tion of a taking, the other upon its execution. The abandon- ment of a public use may effect two results, a loss to the public 1 Winter v. Petersen, 24 N. J. L. Holton, 32 Vt. 43 ; New York & N. E. 524 ; Makepeace v. Worden, 1 N. H. 16 ; R. t-. Comstock, 60 Conn. 200. But see Phifer v. Cox, 21 Ohio St. 248 ; Rich v. Kansas City & E. R. v. Kregelo, 32 Minneapolis, 37 Minn. 423 ; Higgins v. Kan. 608 ; Mississippi, T. & L. B. R. v. Reynolds, 31 N. Y. 151 ; Cole v. Drew, VTooten, 36 La. An. 441. 44 Vt. 49; Woodruff v. Neal, 28 Conn. * Chalcraft v. LouisviUe, E. & S. L. 165. R., 113 111. 86. 2 Hazen v. Boston & M. R., 2 Gray, » Troy & B. R. v. Potter, 42 Vt. 265. 574; Chicago, S. & C. R. v. McGrew, ^ Reading v. Davis, 153 Pa. 560. 104 Mo. 282; St. Onge v. Day, 11 Col. ' Waterworks Co v. Burkhart, 41 368. Ind. 364. 8 Presbrey v. Old Colony & N. R., 8 gee § 196. 103 Mass. 1 ; Connecticut & P. R. K. (;. 198 THE ESTATE OR INTEREST CONDEMNED. [CHAP. IX. through the lapse of one of its agencies, — a loss in many cases nominal, — a gain to certain persons, in that the land which has supported the use reverts to the owner. Abandonment is a final act, not an experimental or revocable one. Hence, it has been held that a highway cannot he discon- tinued, and the right reserved to reopen it without compensa- tion. The discontinuance is complete, the reservation ineffective.'' Where a canal corporation has abandoned its undertaking, neither it, nor its assigns, can free the land from a claim based on adverse possession, by asserting that it is devoted to public use.^ If the acts of a corporation show an abandonment of property, the suc- cessors of the corporation cannot assert a right to the property on the ground that the abandonment does not appear of record.^ § 217. The Right to Abandon. — Where one undertakes a private business he may wind it up at pleasure, and, saving the rights of creditors, may freely dispose of its assets. But it may be said broadly that, except perhaps in the rather anomalous cases of private roads and mill-dams, works of such public inter- est as to warrant the condemnation of property for their promo- tion will not be considered as abandoned, unless the consent of the public is expressed by definite action, or implied by acquies- cence in continued nonuser.* Thus, a city cannot vacate a street without legislative authority.^ A railroad corporation cannot abandon arbitrarily the services which it was incorporated to perform.^ It follows from what has been written, that, as a rule, outside parties have no such power over or interest in public works as will enable them to effect or prevent an abandonment. An en- croachment upon a highway does not effect the abandonment of the part affected.' One whose land is crossed by a railroad cannot compel its operation because it facilitates the marketing of his minerals.^ 1 Cheshire Turnpike Co. v. Stevens, ^ See § 397 10 N. H. 133. 6 State v. Hartford & N H. K., 29 2 Collett V. Coram , 119 Ind 27. Conn. 538; Atty.-Gen. v. Erie & K. R., ° Westcott ti. New Yorli & N. E. R., 55 Mich 15. See Commonwealth v. 152 Mass 465. Fitchburg R., 12 Gray, 180 ^ See Peopie v. Albany & V. R., 24 ' Horey v. Haverstraw, 47 Hun, 356. N. Y. 261 ; King v. Severn & W. R., 8 Reg. v. Gt. West R., 9 R. 127. 2 B. & A. 646. SECT. 218.] ABANDONMENT. 199 In no case can the grantee of a valuable privilege dependent on the existence of a public undertaking,^ secure its continuance by compelling the maintenance of the work.^ With even less reason can such a grantee assert the power to maintain the undertaking for his own benefit. In Jessup v. Loucks,^ the defendant had long enjoyed the use of surplus water created by the works of a corporation. The corporation having ceased to maintain its works, the defendant claimed that he should be substituted for it in order that the grant might be enjoyed. The court repudiated the claim that works, which had ceased to be of public utility, should be maintained for private use, and found that the grant necessarily expired with the cessation of the public use. § 218. What Constitutes an Abandonment. — Abandonment may be effected by the definite action of the corporation.* Thus, where a new undertaking is to replace an existing one, the completion of the former is the sign of the abandonment of the latter.^ But where a railroad company lease a parallel line for a short term of years, and discontinue a section of their own line, with the intention of resuming it on the expiration of the lease, there is not an abandonment.^ Where a town condemned an easement for a slope to support a street, it was held that the mere building of a retaining wall was not conclusive evidence of an abandonment of the easement, especially as the wall was not apparently of a permanent character.^ A resolve to abandon, not followed by action, will not operate to revest the land in the owner.^ Thus, where a town voted to relinquish land con- demned for a cemetery, and bought other land, which was found 1 See § 214. Phillips v. Dunkirk, W. & P. K., 78 Pa. '^ Commonwealth u. Pennsylvania E.., 177. See also Warner v. Holjoke, 112 51 Pa. 351. See also Fox V. Cincinnati, Mass. 362; Commonwealth v. Boston 33 Ohio St. 492 , McCombs v. Stewart, & A. R., 150 Mass. 174 ; Stacey v. Ver- 40 Ohio St. 647 ; Burbank v. Fay, 65 mont Cent. R., 27 Vt. 39 ; Peoria v. N. Y. 57 ; State v. Graves, 19 Md. 351. Johnston, 56 111. 45; Galbraith v. Lit- 3 55 Pa. 350. tiech, 73 111. 209. < Westcott V. New York & N. E. R., 6 Durfee v. Peoria, D. & E. R., 140 152 Mass. 465. See also Hickox o. 111. 435. Chicago & C. S. R., 78 Mich. 615 ; s. C. ' Kusohke v. St. Paul, 45 Minn. 225. 94 Mich. 237. * See Munson v. Derby, 37 Conn. s Benham v. Potter, 52 Conn. 248 ; 298, 200 THE ESTATE OK INTEREST CONDEMNED. [CHAP. IX. to be unsuited to the purpose, there was no abandonment of the Original location.^ § 219. Where property is condemned in good faith, the fact that it is not used for the public purpose, or is misused, is not usually a matter of interest, in point of law, to the person from whom it was taken. If nonuser or misuser be an abuse of a franchise, the state may act.^ An abandonment need not be inferred from the fact that the expropriators, after establishing their rights in the property in question, do not actually disturb the possession of the occupant for a long time. Thus, where land is taken for a road, there is not an abandonment, although the way is not actually opened for many years during which the owners retained possession.^ So, where one conveyed land to a railroad company for a right of way, and retained possession of it for thirteen years, during which the company did not construct, it was held that the way was not abandoned.* The fact that the taking of possession is not followed by the actual construction of the work does not neces- sarily enable the owner to recover possession on the score of abandonment.^ Thus, where a city condemned land for a wharf, and did not prosecute the work for twelve years on account of lack of funds, the owner's claim to possession was denied, as the delay was evidence of postponement only.® A statutory provision that land condemned for a school-house shall revert to the owner in case a school-house has ceased to be thereon for two years, does not apply where a school-house has not been built within two years after the appropriation of the land.'^ In some cases an abandonment through nonuser has been inferred from the fact that the property in question is in the 1 Stevens v. Norfolk, 42 Conn. 377. 29 Iowa, 276. See also NoU v. Dubuque, 2 Heard v. Talbot, 7 Gray, 113; B. & M. R., 32 Iowa, 66. Proprietors of Locks, etc. v. Nashua & L. ' Pittsburgh, F. W. & C. K. v. Peet, R., 104 Mass. 1 ; West. Pennsylvania R. 152 Pa. 488. See also St. Louis & S. Appeal, 104 Pa. 399 ; Logan v. Vernon, F. R. v. Foltz, 52 Fed. Rep. 627. G. & R. R., 90 Ind. 552. 6 Curran v. LouisvUle, 83 Ky. 628. ' See Reilly v. Racine, 51 Wis. 526; See also Ross v. Pennsylvania R., 17 Henshaw v. Hunting, 1 Gray, 203 ; Phila. 339. Derby v. AUing, 40 Conn. 410. ' Jordan v. Haskell, 63 Me. 189. 4 Barlow v. Chicago, R. L & P. R., SECT. 220.] ABANDONMENT. 201 adverse possession of private persons,^ and the same inference has been drawn from mere nonuser for a long period, under circumstances which warrant the conclusion that the desire to maintain the use has ceased.^ Where a corporation unlawfully disposes of surplus land to another corporation of the same sort, the owner may treat the transaction as an abandonment, and recover compensation from the latter.^ But it has been held that where a corpo- ration leases a building not in present use there is not an abandonment.* § 220. It is plain that there is no abandonment as long as the property is devoted to the original use. We have seen that the personality of public agents may be of slight importance to the state to which they are responsible for the performance of public duties ;^ it is evidently of no concern to the landowner, who has no legal interest in this performance. Therefore, the use is preserved although the undertaking has passed into the control of new parties, whether the transfer be by contract^ or judicial sale.'^ Even though the transfer is illegal, because made without the consent of the state, the owner cannot repossess himself of the property. He is not prejudiced in fact, for the land is stUl devoted to the original use ; nor in law, for the illegal transfer is an offence against the state.® The life of the use is not measured, necessarily, by the life' of the corporation charged with its maintenance. A corporation enjoying its franchise for a limited period may yet acquire an interest in land which will survive the franchise, and continue to support the use under new auspices.^ So, the forfeiture of a corporate franchise need not effect the abandonment of the pub- 1 Beardslee v. French, 7 Conn. 125 ; & L. R., 104 Mass. 1 ; Roby v. New York Big Rapids v. Comstock, 65 Mich. 78 ; Cent. & H. R. R., 142 N. Y. 176, revers- Aaburn i). Goodwin, 128 111. 57 ; Hamil- ing s. c. 65 Hun, 532. See Roby y. Yates, ton V. State, 106 Ind. 361. 70 Hnn, 35. 2 Jefferson ville, M. & I. II. v. O'Con- 5 See § 103. nor, 37 Ind. 95. 6 gee § 108. ' Piatt w. Pennsylvania Co., 43 Ohio ' McConihay v. Wright, 121 U. S. St. 228 ; Fort Worth & R. G. R. v. Jen- 201. nings, 76 Tex. 373. See also Pennsyl- ^ Crolley v, Minn. & S. L. R., 30 vania Co. w. Piatt, 47 Ohio St. 366. Minn. 541. * Proprietors of Locks, etc. v. Nashua ' Miner v. New York Cent. & H. 202 THE ESTATE OK INTEREST CONDEMNED. [CHAP. IX. lie use. It may still be continued by the state,^ or its newly appointed agent.^ Is continuity of use necessarily broken by the authorized substitution, in whole or in part, of a new undertaking for the Original one ? The question, be it noted, is not whether some compensation can be claimed on the ground that the new under- taking imposes an additional burden on the fee,^ but whether there is an abandonment, so that the owner is repossessed of his estate, which can be redivested only on payment of full com- pensation. Thus, substituting a turnpike for a highway, or vice versa, is not an abandonment of the original use,* and tliis though it has been declared that upon the discontinuance of the turn- pike the land should revert to its owners.* It appears that land dedicated for a training-field does not revert to the owner because a highway is laid out over it.^ The public estate in a street is not abandoned by the authorized construction of a railroad thereon.'^ It has been held that the authorized transfer by a canal corporation of its right of way to a railroad company is not an abandonment, because a public way is still preserved,^ and, for the same reason, there is no abandonment where a road is substituted for a canal.^ It has been held that land condemned for a canal does not revert because the corporation accept and act upon a charter permitting it to use the water for motive power.^" In other cases, the interest originally acquired has been deemed to be so strictly limited to the specified use, that any attempt to substitute a variation is treated as an abandonment. Thus, it has been held that the removal of tracks by a railroad company, R. R., 46 -Hun, 612; s. c. 123 N. Y. Peirce v. Somersworth, 10 N. H. 369. 242. See also NicoU y. New York Cent. See § 162. R., 12 N. Y. 121. See Strong u. Brook- 5 Murray o. County Comm., 12 Met. lyn, 68 N. Y. 1. 455. 1 Erie & N. E. R. ti. Casey, 26 Pa. « Wellington's Petition, 16 Pick. 87. 287. T Arbenz v. Wheeling & H. R., 33 2 Erie & N. E. R. v. Casey, 26 Pa. W. Va. 1 . See also Brainard v. Mis- 287. See also Noll v. Dubuque, B. & sisquoi R., 48 Vt. 107. M. R., 32 Iowa, 66 ; Morrill v. Wabash, 8 Chase v. Sutton Man. Co., 4 Cush. St. L. & P. R., 96 Mo. 174. 152; Hatch u. Cincinnati & I. R., 18 8 See §162. Ohio St. 92. * State V. Maine, 27 Conn. 641 ; » Malone v. Toledo, 28 Ohio St. 643. Chagrin Falls, etc. Co. v. Cane, 2 Ohio i" Bass v. Roanoke Nav. Co., Ill St. 419 ; Tifft V. Buffalo, 82 N. Y. 204 ; N. C. 439. SECT 221.J ABANDONMENT. 203 followed by an attempt to transfer the right of way to a muni- cipal corporation for a highway, is an abandonment of the ease- ment condemned.^ An easement taken by a canal company has been defined to be for canal purposes only, so that, upon the abandonment of the canal, and the sale of its property to a railroad company, the owner of the fee is repossessed of his whole estate.2 In Logansport v. Shirk,^ a canal company had acquired what was called the fee of a strip of land formerly used as a street. The company abandoned the canal, and their rights were pur- chased by the defendant. It was held that upon abandonment the street use revived, and that the defendant took the fee sub- ject to the rights of the public and the abutting owners.* § 221. Consequences of Abandonment. — Where the interest condemned is less than a fee simple absolute, the land reverts to the owner on the abandonment of the public use.^ But improve- ments placed upon the land in furtherance of the public use are, as between the owner and the corporation, like trade fixtures and may be removed.^ The abandonment of the undertaking extinguishes all inci- dental grants, — a grant of surplus water, for example. In the absence of express provision to the contrary, the grantee cannot have compensation for the loss.' A state abandoned a canal, transferred the strip of land to a city for a sewer way, and required the city to compensate those having a present supply of water for mill purposes. It was held that one who had leased a supply, but had not used it for years, because of its insuffi- ciency, — an insufficiency due to lack of repairs which the lessee could not compel the state to make, — was not entitled to com- 1 Heard v. BrooHyn, 60 N. Y. 242 ; ^ Wagner v. Cleveland & T. E., 22 Strong V. Brooklyn, 68 N. Y. 1. Ohio St. 563. See also Northern Cent 2 Pittsburgh & L. E. R. v. Bruce, 102 E. ^. Canton Co., 30 Md. 347 ; Brock- Pa. 23. hausen v. Boo.hland, 137 111 547. s 88 Ind. 563. ' Hubbard v. Toledo, 21 Ohio St, ' See Taylor v. Chicago, M. & S. 379 ; Little Miami Elevator Co. v. Cin P. R., 83 Wi.s. 636. cinnati, 30 Ohio St. 629 ; Common ^ John Street, 19 Wend. 659; Helm wealth u. Pennsylvania R., 51 Pa. 351 V. Webster, 85 111. 116 ; Hastings v. Bur- See also Fishback v. Woodruff, 51 Ind, lington & M. R., 38 Iowa, 316; Jessup 102; Hoagland v. New York, C. & S V. Loucks, 55 Pa. 3.50; McCombs v. L. R., Ill Ind. 443. Stewart, 40 Ohio St. 647. 204 THE ESTATE OR INTEREST CONDEMNED. [CHAP. IX. pensation.^ But where a canal company were authorized, not only to construct a canal, but also to use the water for mill pur- poses, these objects were deemed to be so independent that the sale of the canal to a railroad company did not divest the water rights.^ A corporation which has appropriated property cannot escape payment of compensation by abandoning it.^ 1 Fox V. Cincmnati. 33 Ohio St. 492 ; a Lake Erie & W. E. v. Griffin, 107 s. c. 104 U. S. 783. Ind. 464. See also Reid v. WaU Town- 2 Chase v. Sutton Man. Co., 4 Cush. ship, 34 N. J L. 275 152. SECT. 223.J COMPENSATION. 205 CHAPTER X. COMPENSATION AND DAMAGES. § 222. " Compensation " and " damages " are sometimes used interchangeably to represent the purchase-money paid for rights acquired by the eminent domain. But it is better to let " com- pensation " stand for purchase-money, and " damages " for indem- nity for a trespass.-' Whatever confusion there may be in the use of terms, the difference between compensation and damages is frequently expressed in the rule that they shall not be ascer- tained in a single proceeding or suit. Thus, in proceedings to condemn, the tribunal cannot, as a rule, award damages for a trespass.^ Nor is it generally proper in a common-law action of trespass to recover compensation for a lawful appropriation.^ COMPENSATION. §223. The word "just," "full," "adequate," "due," or "rea- sonable,'' prefixed to " compensation" in constitution or statute, does not carry any definite weight. None of these prefixes can enlarge or restrict the definition of property, nor affect the meas- ure of compensation. Although some stress seems to have been laid upon the word "just,"* a little excursion into the field of comparative jurisprudence will show the futility of defining it. Thus, one might receive payment for the flooding of his land in Maine,^ but none in respect to his land in Pennsylvania, accord- ing to the late Constitution.^ Again, he might be charged with 1 See GUmore v. Pittsburgh, V. & C. Wis. 478 ; Dolores, etc. Canal v. Hart- E., 104 Pa. 275. man, 17 Col. 138 ; Chicago & G. T. R. v. 2 See § 352. Hough, 61 Mich. 507. 3 Cal]anan f. Port Huron & N. R., ' Lee v. Pembroke Iron Co,, 57 Me. 61 Mich. 15. See § 309. 481. * Bangor & P. R. v. McComb, 60 Me. ^ Monongahela Nav. Co. v. Coons, 6 290 ; Newman v. Met. El. R., 118 N. Y. W. & S. 101. 618; Bigelow v. West Wisconsin R.,27 206 COMPENSATION AND DAMAGES. [CHAP. X, benefits on the opening of a street over his land in New York,i while for such use of his land in Georgia he would receive com- pensation regardless of benefits.^ In each State, however, he would receive the "just compensation" prescribed by the con- stitution. Wor does it seem that " ample " adds anything to the meaning of compensation.^ It may be urged that where "just compensation" replaces" compensation" in constitution or statute, the new phrase should receive a new construction. But in our opinion the addition should be treated as merely emphatic. The state may enlarge the normal measure of compensation,* but the courts should not discover such an intention, and give it practical direction, from so slight a verbal addition.^ The Con- stitution of Massachusetts prescribes the payment of a " reason- able " compensation. But a survey of the decisions in this State shows that the property owner is certainly as well protected as in other States. § 224. The constitutional requirement is always satisfied by the payment of money, and in some jurisdictions, as will be presently shown, by the payment of money only. So far as the decisions turn on the definition of " money," they agree in ex- cluding everything save the lawful medium of exchange. Thus, it is not a tender of money to offer bonds of the corporation,^ interest-bearing certificates,^ unpaid acceptances,^ canal scrip.^ Further, it has been held that a tender of a bond to secure the compensation is not a tender of money .^'' If there is more than one recognized medium of exchange, compensation must be paid in the one according to which the property was valued,^^ and, notwithstanding that paper money is a legal tender, a State 1 Livingston v. New York, 8 Wend. ^ Harness v. Chesapeake Canal, 1 85. Md. Ch. 248. 2 Savannah v. Hartridge, 37 Ga. 113. » State v. Beackmo, 8 Blackf. 246. 3 Pittsburgh, V. & C. K. v. Rose, 74 w Covington S. E. Trans. Co. v. Piel, Pa. 362. 87 Ky. 267 ; Moody v. Jacksonville, T. 4 See § 274. & K. W. R., 20 Fla. 597 ; Vilhac v. ^ See also Monongahela Nav. Co. v. Stockton & 1. R., 53 Cal. 208. See also United States, 148 U. S. 312. Sanborn v. Belden, 51 Cal. 266. See B Hamilton v. Annapolis & E. R. R., Ring v. Mississippi Bridge, 57 Mo. 496. 1 Md. Ch, 107. " North. Pacific R. v. Reynolds, 50 ' Butler V. Sewer Comm., 39 N. J. L. Cal. 90. 665. SECT. 225.J COMPENSATION. 207 legislature may prescribe that compensation shall be paid in specie.^ The owner cannot be compelled to accept land in pay- ment of compensation.^ § 225. The position of benefits^ with respect to compensation is by no means a matter of general agreement. According to one opinion benefits are allowed as compensation. It is held that compensation does not necessarily mean money, but includes any means whereby the owner can be recompensed in fact for the loss of property.* In other decisions, benefits are still viewed as a substitute for money, and are not considered for this reason, as the courts define compensation to be money compensation.^ A third opinion is that in estimating benefits there is no ascer- tainment of compensation itself, but simply an ascertainment of the state of the property in order to get a basis for pecuniary compensation.* Finally, benefits have been allowed as in reduc- tion of money compensation.'^ The tribunal cannot decrease money compensation by order- ing the promoters to do a certain thing for the benefit of the owner,^ unless this is acceptable to botli parties.^ Hence, one whose land is taken for a railroad cannot be compelled to accept a sum of money, and a wagon bridge to be built by the corporation.^" 1 Arnold v. Covington & C. Bridge, Butler v. Sewer Comm., 39 N. J. L. 665 ; 1 Duv. 372. Page v. Chicago, M. & S. P. R., 70 111. 2 Van Home's Lessee v. Dorrance, 2 324 ; Symonds v. Cincinnati, 14 Ohio, Dall. 304; Commonwealth v. Peters, 2 147. See Carson v. Coleman, U N. J. Mass. 125. See also Chicago, S. & C. R. Eq. 106. V. McGrew, 104 Mo. 282 ; New Yorls, ' Meacham v. Fitchburg R., 4 Cash. W. S. & B. R. V. Bell, 28 Hun, 426. 291. New York, L. & W. R. <.. Miller, 49 8 Chicago, M. & S. R. v. Melville, 66 Hun, 539. 111. 329 ; New Orleans Pacific E. o. Mur- 3 See §§ 265-273. rell, 34 La. An. 536 ; McArthurr. Kelly, •• Daugherty v. Brown, 91 Mo. 26 ; 5 Ohio, 139 ; Burlington & C. R. v. Root's Case, 77 Pa. 276; San Francisco, Schweikart, 10 Col. 178; Railroad Co. A. & S. R. V. Caldwell, 31 Cal. 367 v. Halstead, 7 "W. Va. 301. See also (under late constitution) ; Ross w. Davis, Hewett v. County Comm., 27 Atl. Rep. 97 Ind. 79; Rassier <••. Grimmer, 130 179 (Me. 1893). " Ind. 219. 9 Pennsylvania R. v. Reichert, 58 Md. ^ Brown v. Beatty, 34 Miss. 227; 261. See also Morse, Petitioner, 18 Natchez, J. & C. R. v. Currie, 62 Miss. Pick. 443. 506. See also Burlington & C. R. u. ^ Toledo, A. A. & N. R. v. Munson, Schweikart, 10 Col. 178. 57 Mich. 42. ^ Lowerre v. Newark, 38 N. J. L. 151 ; 208 COMPENSATION AND DAMAGES. [CHAP. X. Necessity of Compensation, § 226. There are dicta which countenance the opinion that compeusation is not of the essence of the eminent domain, that the usual constitutional clause is restrictive not declaratory, so that, were it omitted, the state could take property without pay- ing for it.i This opinion seems to have led to practical results in but few cases, notably several early South Carolina cases in which it was held that land might be taken for roads without compensation.^ In New York an act permitting the taking of unenclosed and uncultivated land for roads, without compensa- tion, has been held unconstitutional.^ In New Jersey and Pennsylvania the right to compensation for lands condemned for roads has been placed upon a statutory, rather than a constitutional, basis. This is so because the origi- nal grants of land made by the Proprietors contained extra allowances for roads.* The fact of such allowance has been considered evidence of original compensation,^ but Chief Jus- tice Beasley has referred the whole matter to "the ancient /ms publicum, to seize the property of the citizen without rendering him its value." ® The scope of this exceptional law has been limited as straitly as possible. Thus, the land that may be taken without compensation is unimproved land only.' The road for which it may be taken is one not wider than those in common use at the time of the constitutional declaration.^ Private roads are not within the law.^ It has been said recently, that the legis- lature of New Jersey has, by providing for compensation, spent its power over the subject, and irrevocably fixed the duty to pay for all land taken for roads. •"' ' See Boom Co. U.Patterson, 98 TJ. S. 636. N. J. Const, i. 16. "Land may 403 ; United States v. Jones, 109 U. S. be taken for public highways as hereto- 513; Clark u. Saybrook, 21 Conn. 313; fore nntil the legislature shall direct Wilson V. Baltimore & P. K., 5 Del. Ch. compensation to be made." 524 ; Furman St., 1 7 Wend. 649 ; Orr v. ^ Township East Union v. Comrey, Qaimby, 54 N. H. 590, 647. Doe, J. diss. 100 Pa. 362. 2 Lindsay v. Comm., 2 Bay, 38; State 6 Ward v. Peck, 49 N. J. L. 42. V, Dawson, 3 Hill, 100. ' Highway Case, 22 N. J. L. 293 ; 3 Wallace v. Karlenowefski, 19 Barb. Plank Road v. Thomas, 20 Pa. 91. 118. 8 Mangles v. Preeholders, 55 N. J. L. * Simmons v. Passaic, 42 N. J. L. 88. 619 ; Workman u. Mifflin, 30 Pa. 362 ; » Perrine v. Farr, 22 N. J. L. 356. Wagner v. Salzburg Township, 132 Pa. 1° Cherry v. Keyport, 52 N. J. L. 544. SECT. 228.] COMPENSATION. 209 § 227. The view of the civilians, that compensation is essen- tial,i has been approved in States where the organic law was, at the date of the decision, silent on the subject, or affirmed the sanctity of private rights only in general terins,^ although the mistaken idea that the Fifth Amendment to the Federal Con- stitution affects the powers of the States,^ seems to have contrib- uted to this opinion in some cases.* The true doctrine is, in the writer's opinion, that which requires the payment of compen- sation, whether it be expressly enjoined or not. The modern concept of a constitutional state, as realized in the United States, has no room for the spoliation of the individual. Where the constitution expressly permits condemnation for uses termed private,® and is silent as to compensation, it is due nevertheless on principle.^ § 228. The right to compensation whether it be deemed inher- ent or constitutional, is not usually considered as founded on contract.^ This reason is given : " The obligation to pay an award does not rest on contract, but on necessity imposed by the legislature and arising from constitutional prohibition. The payment or tender of the amount of the award is the perform- ance of a condition precedent, not the execution of a contract." ^ Hence, the receiver of an insolvent railroad corporation cannot affect a landowner's right to compensation, by ordering that all claims against the corporation shall be presented within a cer- tain time.^ But where land is condemned and compensation withheld, the transaction is generally treated as an ordinary pur- See also State v. Seymour, 35 N. J. L. Nav. Co. v. United States, 148 TJ. S. 312 ; 47. Hazen v. Essex Co., 12 Cush. 475. 1 Grotius, "War & Peace, iii. 20-7 ; ^ See § 35. Vattel, Chitty's ed. 188. * See Gardner v. Newburgh, 2 Johns, 2 Street's Council of Revision (N. Y.), Ch. 162 ; Scudder v. Trenton Falls Co., 324 ; Bristol v. New Chester, 3 N. H. 1 N. J. Eq. 694. 524 ; Mt. Washington Road, 35 N. H. 5 See § 39. 134; Harness v. Chesapeake Canal, 1 * Chronic w. Pugh, 136 Til. 539. Md. Ch. 248; Bonaparte v. Camden & ' Garrison o. New York, 21 Wall. A. R., Bald. C. C. 205; Sinnickson y. 196; Lamb v Schottler, 54 Cal. 319. Johnson, 17 N. J. L. 129 ; Johnston v. See §§ 371, 377, 393. Rankin, 70 N. C. 550 ; Staton i: Norfolk 8 piatt v. Bright, 31 N. J. Eq. 81. &C. R., Ill N. C. 278; Martin's Case, 9 Bloomfield R. v. Van Slike, 107 13 Ark. 198. See also Monongahela Tnd. 480. 14 210 COMPENSATION AND DAMAGES. [CHAP. X. chase, and the owner holds a lien for the compensation.^ Where land condemned is mortgaged before payment of compensation, the interest of the mortgagee is subject to the landowner's lien.^ Where it is enacted that compensation shall be paid for property damaged or injuriously affected, and a common-law judgment is obtained in respect to such damage, the judgment must be first paid, upon foreclosure of a mortgage of the corporate property .^ A lien in the nature of a vendor's lien seems to have been deemed, in some cases, an insufficient protection to the property owner. It has been enacted that judgment and execution shall follow the assessment of compensation,* and it has been held that there is no reason why execution should not issue, even where the statute is silent, as it can be stayed upon tender of the sum due.^ § 229. statutory Provision for Compensation. — Chancellor Kent seems to have considered the obligation to pay compensa- tion as in some sense self-executing. He questioned whether an entry under a statute, which failed to provide for compensation, should be treated as a trespass, in view of the fact that the defect could be remedied by subsequent legislation.'' This view has been repudiated. A statute which does not provide for com- pensation cannot justify entry. Such a statute has been declared void,'' or, because it recognizes the obligation to compensate, but ^ Adams v. St. Jolinsbury & L. C. R., ' Thacher v. Dartmonth Bridge, 18 57 Vt. 240 ; Lycoming Gas, &c. Co. v. Picli 501 ; Conuecticut Eiver R. o. Moyer, 99 Pa. 615. See §§ 296, 385. County Comm., 127 Mass. 50; Neponset 2 Borough of Easton's Appeal, 47 Meadow Co. v. Tileston, 133 Mass. 189; Pa. 255 ; West. Penns_vlvania R. u. Bloodgood u. Mohawli & H. R., 18 Johnston, 59 Pa. 290 ; Mercantile Trust Wend. 9 ; People v. Hayden, 6 Hill, 359 ; Co. u. Pittsburgh & W. R., 29 Fed. Rep. Morgan v. King, 35 N. Y. 454 ; People 732. V. Loew, 102 N. Y. 471 ; Sherman v. 8 Penn Mut. Life Ins. Co. v. Heiss, Milwaukee, L. S. & W. R., 40 Wis. 645 ; 141111.35. Foote v Cincinnati, 11 Ohio, 408; « Drath v. Burlington & M. R., 15 Hendershot !•. State, 44 Ohio St. 208; Neb. 367. See Evansville & C. R. v. Langford v. Comm., 16 Minn. 375; State Miller, 30 Ind. 209. u. Lyle, 1 00 N. C. 497 ; Carbon Coal Co. s Peoria & R. I. R. v. Mitchell, 74 v. Drake, 26 Kan. 345 ; Southwestern K. 111. 394. But see Derby v. Gage, 60 v. South & A. Tel., 46 Ga. 43. See also Mich. 1. State v. Perth Amboy, 52 N. J. L. 132; 6 Rogers?). Bradshaw, 20 Johns. 735. Foster v. Stafford Bank, 57 Vt. 128; See also Rugheimer's Case, 36 Fed. Rep. McCauley v. Weller, 12 Cal. 500. 369; Jerome v. Ross, 7 Johns. Ch. 315. SECT. 229.] COMPENSATION. 211 fails to provide for its performance, has been pronounced ineffec- tive until a proper method is prescribed.^ But it has been intimated that, although a statute does not make sufficient pro- vision for compensation to warrant the condemnation of property, commissioners may be appointed, nevertheless, for they may be able to acquire the necessary property by agreement.^ It has been held that the provision must be made, not only in respect to property condemned, but that, where possession of land may be taken pending proceedings to condemn, it must be made in respect to use and occupation, so that the owner may not be prejudiced in case the proceedings are discontinued.^ It seems, however, that a constitutional provision that compensation shall be paid for property damaged or injuriously affected executes itself. If the legislature sees fit to prescribe proceedings whereby this liability may be enforced,* well and good. If not, the in- jured party may have an action at law.^ The reason for this is that the provision in question is usually designed to remove the promoters of public works from a privileged position, and sub- ject them to the obligations of the common law,^ for the enforce- ment of which the ordinary legal remedies are sufficient. Where a statute provides that the owner's " damage " shall be assessed in respect to the laying of a drain over his land, " damage " is not restricted to its constitutional meaning of an injury to prop- erty not taken, but covers his whole loss, including the land condemned.'^ Where a statute authorizes several things to be done, a pro- vision for compensation, plainly referring to one of the things, will not be extended by implication to the others.^ Thus, where a city was authorized to open and widen streets by a statute providing for compensation in respect to opening, it was held that land could not be condemned for widening.^ 1 Bonaparte v. Camden & A. E., Bald. * See §§ 362 et seq. C. C. 205 ; State v. Seymour, 3.5 N. J. L. ^ See §§ 309, 377. 47; Cairo & F. R. o. Turner, 31 Ark. ^ See § 154. 494. See United States v. Oregon R., ' Chaplin v. Comm., 129 111. 651. 16 Fed Rep. 524, stated in § 291. ' See Georgia South. R. v. Ray, 84 2 Lower Chatham Drainage Case, 35 6a. 372 ; Pittsburgh v. Scott, 1 Pa, 309 ; N. J. L. 497. Pickman v. Peabody, 145 Mass. 480. 8 Dayis v. San Lorenzo R., 47 Cal. « Chaffee's Appeal, 56 Mich. 244. S17. See also St. Lawrence & A. R., 133 N. Y. 270. 212 COMPENSATION AND DAMAGES, [CHAP. X. A suf&cient provision for compensation should respect the law as to time and manner of payment,^ indicate an impartial tri- bunal of assessment,^ and, where compensation subsequent is allowed, must contemplate the existence of a sufficient security.^ The owner cannot question the general solvency of the corpora- tion where the statute sufficiently provides for the payment of the particular sum due to him.* § 230. The duty of the legislature to provide for compensation does not include the power to fix or limit the amount." A statute which enables one railroad company to condemn the right to use the tracks of another, and fixes the rates to be paid, is unlawful, because it involves the assessment of compensation by the legis- lature.^ A provision that the assessment of a county assessor shall be taken as a guide in estimating compensation has been declared unlawful.^ Commissioners, in assessing compensation, failed to follow certain imperative directions of the statute as to matters of form. The proceedings were subsequently confirmed by the legislature. It was urged that the confirmatory statute v\^as inoperative, as it involved an assessment of compensation by the legislature. The court held, however, that the legislature had simply condoned an irregularity.^ As the legislature cannot fix compensation, so it cannot affect its amount by interdicting the consideration of its proper ele- ments.^ Thus, Congress cannot decree that, in taking the prop- erty of a navigation company, their vested right to take tolls shall not be considered in assessing compensation.^" Nor can the legislature trench upon the powers of the tribunal of assess- ment by passing upon the existence, or value, of special benefits. 1 See §§ 287-294. Campbell, 33 Ga. 625 ; Lebanon School '^ See § 320. Dist. v. Lebanon Female Seminary, 12 3 See §§ 291-293. Atl. Rep. (Pa.) 857 ; Hughes v. Todd, 2 » Cooper V. Anniston & A. R., 85 Ala. Duv. 188. 106 ; Pocantico Water- Works i). Brora- ^ Pennsylvania R. 17. Baltimore & 0. bacher, 17 N.Y. Supp. 661. See McEIroy R., 60 Md. 263. u. Kansas City, 31 Ped. Rep. 257. ' County Court v. Griswold, 58 Mo. ^ Van Home's Lessee i: Dorrance, 2 175. Dall. 304 ; Charles Rirer Bridge v. 8 People v. McDonald, 69 N. Y. 362. Warren Bridge, 11 Pet. 420, 571 ; Rich ' See Commonwealth v. Pittsburgh V. Chicago, 59 111. 286 ; Paul v. Detroit, & C. R., 58 Pa. 26. 32 Mich. 108 ; Tripp i'. Overocker, 7 w Monongahela Nav. Co. v. United Col. 72. See also Cunningham v. States, 148 U. S. 312. SECT. 231.] COMPENSATION. 213 A provision in a city charter that the local authorities shall "prescribe the limits within which private property shall be deemed benefited " by a public improvement, does not prevent a jury from returning " no benefit," for the authorities can no more determine the existence of a benefit in a particular instance, than they can its value.^ It has been held that it is within the com- petency of the legislature to authorize a city to estimate com- pensation, and prescribe that a dissatisfied owner may appeal to a jury for a new assessment within a limited time.^ Though the legislature may not determine the price to be paid for specific property, it may set a limit to the expenditure for the whole work.^ Such a limitation is, in effect, a proviso that the work shall not be undertaken unless its cost can be brought within the prescribed amount. Therefore, the definite appropri- ation of each tract cannot be made until the whole cost can be fairly estimated. This right to count the cost of an improve- ment is illustrated in cases involving the discontinuance of proceedings.* § 231. An important question in respect to the provision under consideration is : Who shall set in motion the proceeding by which the obligation to pay compensation shall be satisfied ? Now a statute which authorizes the occupation of property for public use, and leaves the compensation to be recovered by the owner in a suit at law or equity, does not make a just provision. The legislature gives nothing to the owner, it simply recognizes his ability to invoke the aid of the courts in order to compel the expropriators to perform their duties.^ It has been held that, even where the statute prescribes a form of proceeding which the owner may institute, there is not a sufficient provision if payment of compensation is made to depend upon the request of the owner ; ^ though a different opinion has been entertained 1 Cityof Kansasv. Baird, 98Mo. 215. " Levee Coram, v. Dancy, 65 Miss. 2 Cambridge v. County Comm., 117 335; Atcliison, T. & S. F. R. v. Weaver, Mass. 79. 10 Kan. 344; American Tel. Co. v. ' Shoemaker v. United States, 147 Pearce, 71 Md. 535. See also Eepubli- U. S. 282. can Val. R. v. Fink, 18 Neb. 82. See « See §§ 196-199. Brickett v. Haverhill Aqueduct Co., 142 * See Parker v. East Tennessee, V. Mass. 394. &, G. R., 13 Lea, 669. 214 COMPENSATION AND DAMAGES. [CHAP. X. where the actor is the state or one of its political corporations.' On the other hand, expropriators have been enabled to obtain a lawful possession of property, under a statute which prescribes a special proceeding for the owner's benefit, or expressly reserves to him the right to bring a common-law action.^ While this practice has been disapproved, on the ground that the governing constitution requires compensation precedent,^ it is not commend- able in any case where there is a definite appropriation of prop- erty, especially where the actor is a private corporation. The loss to the owner can be measured at once, and the obligation to pay indemnity should be discharged by the expropriators, not left to be enforced by the owner. The proper and usual statu- tory provision is, that the expropriators shall pay the compen- sation assessed in formal proceedings to condemn. In case, however, there is not a definite appropriation of property, but a consequential injury, the practice of making the payment of compensation hinge upon the complaint of the party injured is generally unobjectionable.* THE MEASURE OF COMPENSATION. § 2.32. The principles according to which compensation should be assessed are now to be determined. The illustrative cases are chiefly based on regular condemnation proceedings, but the same rules for computation obtain where the owner takes the initiative and sues for compensation under the statute.^ § 233. Compensation according to the Interest Acquired. — In assessing compensation, the interest to be acquired in the land condemned should be accurately determined, If, after condemnation, valuable rights of enjoyment in the property still remain in the owner,® allowance must be made for them. Thus, where a strip twenty-five feet wide is taken, of which ten feet is for a road and fifteen for a supporting slope, the fact that the owner may use the slope should be considered in estimating 1 Cage V. Tragar, 60 Miss. 563. * See § 362. 2 Den V. Morris Canal Co., 24 N. J. L. 6 Podson v. Cincinnati, 34 Ohio St. 587. 276 ; Lehigh Valley R. o. McFarlan, 43 5 Levee Comm. v. Dancy, 65 Miss. N. J. L. 605. 335. 6 See §§ 204, 215. SECT. 233.J THE MEASURE OP COMPENSATION. 215 compensation.^ It has been said, that where land is taken for a turnpike compensation should be assessed for the damage, not for the value of the land, as only a right of way is taken ; ^ but the better opinion is that where a surface easement, especially an exclusive one of indefinite duration, is condemned, the rever- sionary interest of the owner is too remote to be considered, and compensation should be equal to that payable on the taking of a fee.^ Where, according to the statute, a certain interest in prop- erty is acquired by force of condemnation, the expropriators can- not decrease compensation by asserting that, in all probability, the whole interest will not be actually taken. The liability of ex- propriators is predicated upon what they are entitled to take, not what they may choose to take. Hence, a water company, having condemned the right to draw off all the waters of a pond, cannot assert the improbability of wholesale diversion in order to reduce compensation.* Where a corporation elects to condemn a whole tract, it cannot have compensation assessed on the theory that it will in fact use but a part.^ Where land is occupied tempor- arily for purposes other than the taking of materials, compensa- tion should be assessed in the form of rent based on the value of the use and occupation.® Companies organized under the Eail- way Clauses Act ' may acquire the temporary use of land, during the period of construction, upon paying compensation in a gross sum or in half yearly instalments assessed according to the rules prescribed in the Lands Clauses Act. Upon the termination of the use, they must compensate for all permanent injury done. But, if the landowner does not accept compensation for a tem- porary use, he may compel the purchase of the land. In some cases the legislature has provided that when land is flooded by reason of the authorized construction of dams, an annual coni- 1 Dodson «. Cincinnati, 34 Ohio St. 148 Pa. 429; Joy v. "Water Co., 85 Me. 276. 109. 2 Quigley's Case, 3 Pen. & W. 139. 5 Cummins f. Des Moines & S. L. K., See also Roberts v. County Comm., 21 63 Iowa, 397. Kan. 247. « Johnson's Case, 2 Ct. CI. 391 ; 3 Clayton v. Chicago, I. & D. R., 67 Pope v. United States, 26 Ct. CJ. 11 ; Iowa, 238. See also Murray v. County Tait's Exr. v. Central Lunatic Asylum, Comm., 12 Met. 455. See § 207. 84 Va. 271. * Howe V. "Weymouth, 148 Mass. 605. ' Sects. 32 et seq. See also Miller v. Windsor "Water Co., 216 COMPENSATIOK AND DAMAGES. [CHAP. X. pensation shall be paid.^ Where the property condemned is abandoned before the assessment of compensation, it seems that the abandonment should be taken into account in ascertaining the sum payable.^ Market Value. § 234. The most important and often the only step,^ in the assessment of compensation, is the determination of the market value of the property affected. This value is presumably its present worth in cash* The market value of property is not affected by the personality or needs of its owner. The property is not to be valued in the light of any convenience or association which may make it peculiarly desirable to the possessor, but solely with regard to the elements which would make up its worth to any person happening to own it.^ The impersonal quality of market value is further illustrated by the rule which forbids consideration of the necessities of the expropriators, or the probable value of the property under their management." It has been suggested that the sum for which property could be sold at a public auction, conducted in the fairest possible manner, represents its true market value.^ The objection to this criterion is, that one selling by auction is frequently acting under a compulsion more or less severe. The best criterion of market value is a price which would be fixed after a fair negotiation between parties willing, but not compelled, to treat ; ^ but where the assessment is dominated by this principle there may be no objection to taking auction value into consideration.^ 1 Billings V Berry, 50 Me. 31 ; Fuller Sullivan v. Lafayette County, 61 Miss. V. French, 10 Met. 359. 271 ; Union Depot Co. v. Brunswick, 31 •' Hastings v. Burlington & M. R., Minn. 297 ; Boston, H. T. & W. E., 22 38 Iowa, 316 ; Pinkerton v. Boston & A. Hun, 176 ; New York, L. & W. E., 33 R., 109 Mass 527. Hun, 639 ; Stebbing v. Met. Board of 8 See § 252. Works, L. E. 6 Q. B. 37 ; Penny i-. « Brown v. Calumet River R., 125111. Penny, L. R. 5 Eq. 227. 600. See Cincinnati & G. E. v. Mims, ' Low v. Eailroad Co., 63 N. H. 557. 71 Ga. 240. 8 Boom Co. o. Patterson, 98 U. S. 6 See Pittsburgh &L. R.U.Robinson, 403; Pittsburgh & C. R. v. Vance, 115 95 Pa. 426. Pa. 325 ; Somerville & E. E. v. Doughty, 1= San Diego Land Co. v. Neale, 88 22 N. J. L. 495 ; Everett v. Union Par Cal. 50 ; Montgomery County v. Schuyl- cific E., 59 Iowa, 243 ; Lawrence u. kill Bridge, 110 Pa. 54; Selma, R. &D. Boston, 119 Mass. 126. R. 0. Keith, 53 Ga. 178 ; Moulton v. 9 See Pittsburgh & C. R. v. Vance, Newburyport Water Co., 137 Mass. 163; 115 Pa. 325. SECT. 235.J THE MEASUBE OP COMPENSATION. 217 § 235. Evidence has been admitted in respect to the price paid for the property,^ and moneys expended on it ^ though it has been said that cost bears very slightly on the question of market value.^ According to other decisions evidence of cost should be excluded.* It might be going too far to say that evidence of cost should not be received in any case, but as a rule it should be refused. While the element of cost may influence the price put upon a thing by the seller, it is of little weight with the buyer. Whatever view may be taken as to the bearing of cost upon market value, cost must never be made the actual criterion of value. Hence, where it was enacted that the expense incurred in building a railroad should represent the compensation payable upon the condem- nation of the road, the statute was declared invalid.^ Admissions of the owner as to value have been received, if made within a reasonable time.® In assessing compensation for taking the property of a bridge company, the jury may con- sider a certified copy of the return made to the auditor-general by the officers of the company, setting forth the value of the property for purposes of taxation.'^ Evidence of the owner's willingness or unwillingness to sell is irrelevant.^ Offers to purchase the land in question have been disregarded.^ The value of property as assessed for purposes of taxation is generally considered irrelevant to market value.'" But where 1 New Orleans, &c. R. t. Barton, 4.3 Charlestown, 4 Gray, 537 ; New Orleans La. An. 171 ; Cobb y. Boston, 109 Mass. Pacific R. v. Murrell, 36 La. An. 344 ; 438. See Spring Valley Waterworks Bookman v. New York El. R., 137 N. Y. Co. V. Drinkhouse, 92 Cal. 528. 302. " Streatham v. Comm., 52 J. P. 615. ' Mifflin Bridge v. Juniata County, s Brown v. Calumet River R., 125 144 Pa. 365. 111. 600. See also Chicago, P. & 8. L; R. » Pennsylvania S. V. R. v. Cleary, V. Eaton, 136 111. 9. 125 Pa. 442; Lawrence v. Boston, 119 « New York, W. S. & B. R., 37 Hun, Mass. 126. 317 ; Mifflin Bridge v. Juniata County, ' Louisville, N. 0. cSb T. R. v. Ryan, 144 Pa. 365 ; San Antonio & A. R. v. 64 Miss. 399 ; Hine v. Manhattan R., Ruby, 80 Tex. 172. 132 N. Y. 477. See also Selma, R. & D. * Commonwealth v. Pittsburgh & C. R. ii. Keith, 53 Ga. -178; Santa Ana v. R., 58 Pa. 26. Harlin, 34 Pac. R. 224 (Cal, 1893). See ^ Patch V. Boston, 146 Mass. 52; Trent-Stoughton v. Barbadoes Water Brown v. Calumet River R., 125 111. 600 ; Co. (1893), A. C. 502. Springer i?. Chicago, 135 111. 552; i" San Jose & A. R. r. Mayne, 83 Cal. Ottawa, 0. C. & C. G. R. v. Adolph, 41 566 ; Springfield & M. R. v. Rhea, 44 Kan. 600 ; East Brandywine & W. R. v. Ark. 258. See Brown v. Providence, W. Eanck, 78 Pa. 454. See Tufts v. & B. R., 5 Gray, 35; New Orleans, F. & 218 COMPENSATIOK AKD DAMAGES. [CHAP. X. the owner of land was a member of a board of tax assessors, who had valued it at $5,000 for taxing purposes, and he testified that it was worth $23,000, and claimed $10,000 compensation for injury to it, it was held that, while he was not estopped from asserting a higher value than that assessed, the assessed value might be given in evidence. ■■■ In fixing market value no regard should be paid to an appraisement of the property made in an earlier stage of the proceedings.^ Where, however, a suit is brought to recover compensation which has been duly assessed, the amount due is conclusively determined.^ § 236. Prices paid by private parties for other lands are some- times considered relevant, as they assist the judgment of the tribunal in fixing the market value of the land in question.* Evidence of this sort must relate to property similar to that under consideration.^ Land specially benefited by the proposed improvement is not similar to land taken.^ The sales must be of land in the vicinity of the property condemned.'' Vicinity is to be defined with regard to the character of the land in question In the case of ordinary property, such as farm lands or town lots, it means in the immediate neighborhood. But where prop- perty is of a special or uncommon character, vicinity may be given a wider application.^ Thus in valuing a cranberry bog,^ or an island,^'' prices paid for similar property in the same general locality may be considered. The sales must have been made G. R. u. Barton, 43 La. An. 171 ; Mifflin * Provision Co. v. Chicago, 111 HI. Bridge v. Juniata County, 144 Pa. 365 ; 651 ; Washburn v. Milwaukee & L. W. Miller w. Windsor Water Co., 148 Pa. R., 59 Wis. 364. See also Grand Rapids 429. V. Luce, 92 Mich. 92. 1 Smith V. Pennsylvania S. V. R., ^ Patch v. Boston, 146 Mass. 52 141 Pa. 68. Phillips v. Marblehead, 148 Mass. 326 2 Seefeld v. Chicago, M. & S. E., 67 Thompson v. Boston, 148 Mass. 387 Wis. 96 ; Chicago, K. & N. R. v. Bro- Cherokee v. Town Lot, etc. Co., 52 Iowa, quet, 47 Kan. 571 ; Goodwine v. Evans, 279. 33 N. E. Rep. 1031 (Ind. 1893). See « R^err v. South Park Comm., 117 also Bohr v. Neuenschwander, 120 Ind. U. S. 379. 449 ; Winklemans v. Des Moines North. ' See Packard v. Bergen Neck R., R., 62 Iowa, 11; White v. Boston & P. 54 N. J. L. 553. R., 6 Cnsh. 420. 8 gee Ham v. Salem, 100 Mass. 350. 8 Bridgman w. St. Johnshury &L. C. ^ Gardner v. Brookline, 127 Mass, R., 58 Vt. 198; Lake Erie & W. R. v. 358. Griffin, 107 Ind. 464. w Benham v. Dunbar, 103 Mass. 365. SECT. 237.] THE MBASUEE OP COMPENSATION. 219 within a reasonable time,^ though what is a reasonable time depends somewhat on the frequency of transfers of property in the locality. Therefore, inquiry as to sales in a sparsely settled locality may be directed to transactions of a more remote period than would be admissible in the case of urban property .^ Prices paid at sales between the taking of the land in question and the assessment of compensation have been deemed incompetent as independent evidence,^ though it has been said that evidence in respect to sales made from five to twenty months after the tak- ing need not be necessarily excluded from consideration.* In some decisions the relevancy of sales of other property is denied on principle.^ In Pittsburgh & Western Eailroad Company V. Patterson,^ the denial was placed on the ground that such evidence would tend to raise collateral issues, but it was held that the general selling price of land in the vicinity was admissible. Evidence as to the price offered for similar property, or the price at which such property is held, is irrelevant.'^ § 237. Evidence of the prices paid for other land needed for the undertaking in question is usually rejected.^ This view has not been taken in some decisions, because of the similarity of the several properties.® Thus, where a city condemned a wharf prop- erty, evidence was admitted in respect to prices paid by the city 1 Everett v. Union Pacific R., 59 ^ Sherloclc v. Chicago, B. & Q. R., Iowa, 243. 130 Dl. 403 ; Muller a. South. Pacific, &c. 2 Benham v. Dunbar, 103 Mass. 365. R., 83 Cal. 240; Davis v. Charles River 2 Chandler v. Jamaica Pond Aque- R., 11 Cush. 506; Winnisimmet Co. v. duct Co., 122 Ma.ss. 305. Grueby, 111 Mass. 543; Lehmicke v. St. « Roberts v. Boston, 149 Mass. 346. Paul, S. & T. R., 19 Minn. 464 ; Mont- See Sheldon v. Minneapolis & S. R., 29 clair R. v. Benson, 36 N. J. L. 557 ; Minn. 318; Hunt v. Boston, 152 Mass. Cnrrie v. "Waverly & N. Y. B. E., 52 N. 168. J. L. 381. ^ East. Pennsylvania R. v. Heister, ^ cbb v. Boston, 112 Mass. 181 ; 40 Pa. 53 ; Pittsburgh, V. & C. E. o. Pennsylvania S. V. R. v. Ziemer, 124 Vance, 115 Pa. 325 ; Stinson v. Chicago, Pa. 560 ; Howard v. Providence, 6 R. I. S. & M. R., 27 Minn. 284. See Thomp- 514 ; Amoskeag Co. v. Worcester, 60 son's Case, 127 N. Y. 463 ; Cent. Pacific N. H. 522 ; Peoria Gas Light, etc. Co. v. R. V. Pearson, 35 Cal. 247; Chicago, K. Peoria, etc. R., 146 HI. 372. See Con- & N. R. V. Stewart, 47 Kan. 704 ; See- cord R. v. Greely, 23 N. H. 237 ; Laing feld V. Chicago, M. & S P. E., 67 Wis. v. United K J. R., 54 N. J. L. 576. 96. 9 Wyman v. Lexington & W. C. R., 6 107 Pa. 461. 13 Met. 316. 220 COMPENSATION AND DAMAGES. [CHAP. X. for other wharves.^ But similarity of properties is not necessa- rily a sufficient test. Thus, where a railroad company buy part of a tract of land, the price paid is no criterion of the market value of neighboring land which they condemned, for the pur- chase-money presumably covers, not only the land taken, but the injury to the remainder caused by proper construction."'* Prices paid by the expropriators in the condemnation of other lands have been disregarded,^ and also the price paid by another corporation for a right of way over the tract in question* Although a distinction has been drawn between prices paid on agreement in lieu of condemnation, and on condemnation itself,^ the better opinion is that the distinction is illusory, as in the first case the owner has practically as little freedom of choice as in the second, and agrees simply to save the inconvenience of formal proceedings.^ § 238. Present Condition of Land. — As a rule the property condemned is to be valued as it stands. But where the owner is willing to remove something affixed to the soil, and not needed for the public use, there seems to be no objection to his so doing and recovering the expense of removal and rehabilitation, if this is necessary, provided this does not exceed the value of the thing ;' unless, indeed, the public exigency necessitates so imme- diate a possession as to preclude an orderly removal. The expro- priators may assert that there is something, part of the realty, which is not needed for the public use, and which can be removed, and that therefore the owner should be paid only the cost of removal and rehabilitation, if necessary, and not its value. The legislature may provide for this case.^ What is the rule where the statute is silent, and the owner is not willing to remove, but prefers full compensation for his property as it stands ? It is usually held that the owner may treat the condemnation of his land as the condemnation of all 1 Langdon v. New York, 133 N. Y. ^ Wyman v. Lexington & W. C. E., 628. 13 Met. 316. 2 See Presbrey v. Old Colony R., 103 « Cobb v. Boston, 112 Mass. 181. Mass. 1. 'See Council Grove, 0. & 0. R. v. " Springfield v. Schmook, 68 Mo. 394 ; Center, 42 Kan. 438 ; Forney v. Fre- Amoskeag Co. y. Head, 59 N. H. 332. mont, E. & M. K., 23 Neb. 465. * Brunswick & A. R. u. McLaren, 47 ^ See § 240. Ga. 546. SECT. 239.] THE MEASURE OF COMPENSATION. 221 things connected therewith, and is not obliged to change the condition of his land in order to decrease the liabilities of the expropriators.^ In Eider v. Stryker,^ commissioners, in assess- ing compensation for laying out a road through a wood lot, refused compensation for the timber, as the cost of removal and grubbing up the roots would equal its value. The assess- ment was set aside on the ground that the owner was not bound to put his land in condition for the road, but was entitled to its value as timber land. The rule has been applied in respect to buildings on the land appropriated, even where the owner has adjoining land to which they might be removed.^ But it has been held that where a fence, standing on the part of a tract which is taken, can be removed and reset on the part remaining, the owner can claim only the cost of removal and resetting.* § 239. There is a well-known rule that where one builds wilfully on the land of another, the improvements belong to the owner of the soil.^ Where expropriators have entered and built upon land before instituting proper proceedings to condemn, the owners have frequently claimed the benefit of this rule and demanded compensation for the improvements. Such claims have been sustained where the entry was wholly wrongful.® But the rule is not applicable where there is any evidence that possession was taken with the acquiescence of the owner,'^ or the life tenant,^ or a municipal corporation which had not perfected its own title,^ or where the corporation had reason to expect that its title would be perfected by agreement.^'' In another group of 1 Schuchardt v. New York, 53 N. Y. Meriara v. Brown, 128 Mass. 391. See 202. Schroeder v. De Graff, 28 Minn. 299. " 63 N. Y. 136. ' St. Johusbury R. v. Willard, 61 " Paul y. Newark, 6 Am. L. Rev. 576 ; Vt. 134; North Hudson County R. v. Finn v. Providence Gas, etc. Co., 99 Pa. Booraem, 28 N. J. Eq. 450 ; Norwood v, 631 ; Kansas City v. Morse, 105 Mo. 510. Montreal R., 47 Hun, 489. See also * Hire v. Kniseley, 130 Ind. 295. Dows v. Congdon, 16 How. Pr. 571. ^ See Ramsden v. Dyson, L. K. 1 See Price v. Weehawken Ferry Co., 31 H. L, 129; Steel v. Smelting Co., 106 N. J. Eq. 31. U. S. 447. 8 Chicago & G. R. o. Goodwin, 111 « Long Island R., 6 T. & C. (N. Y.) 111. 273. 298 ; New York, W. S. & B. R., 37 Hun, 9 Baltimore & 0. R. u. Boyd, 63 Md. 317 ; Graham «. Connersville & N. C. R., 325. 36 Ind. 463 ; United States v. Land in w Morgan's Appeal, 39 Mich. 675. Monterey County, 47 Cal. 515. See also 222 COMPENSATION AND DAMAGES. [CHAP. X. decisions, the rule is declared wholly inapplicable where the state or its agents are concerned. The broad ground is taken, that while an irregular entry for public use is a technical tres- pass, yet the title to improvements should not vest in the owner, because the possession can be legitimated by lawful proceed- ings, and for the broader reason that the improvements them- selves are not intended to be adjuncts to the freehold, but are made simply to subserve a use in which the landowner has no interest.! The rule has been also declared irrelevant where pos- session has been taken, and improvements made, under an agree- ment with one who has no title to the land. In Searl ■;;. School District,^ a school board purchased land from one who had no title, and built a school-house. The true owner having established his title, the board proceeded to condemn the land, and were confronted with a claim for the value of the house. The Supreme Court held that as the land had been purchased in good faith, and with the advice of counsel, the strict rule of law should not be applied, even though Searl had given notice of his claim. A corporation entered and improved under an arrangement with a mortgagee in possession, supposing that he could make title and convey. Proceedings to condemn were afterwards instituted with the real owner as a party, and his claim for the value of the improvements was denied.^ § 240. The rule that property is to be valued in the light of its present condition has been qualified by the legislature in some cases, in order that a political corporation may preempt a sufficient interest in land, without being obliged to pay for improvements. Thus, the legislature may provide that a city in widening -a street may condemn the necessary laTid only, leaving such buildings standing as do not interfere with the public use, and only acquiring the actual use of the land when the build- 1 Justice V. Nesquehoning Val. R., 14 Or. 519 ; Louisville, N. & T. R. v. 87 Pa. 28 ; San Francisco & N. R. v. Dickson, 63 Miss. 380 ; Greve u. St. Taylor, 86 Cal. 246 ; Preston v. Sabine Paul & P. R., 26 Minn. 66. See also & E. T. R., 70 Tex. 375 ; Lyon v. Green Lowther v. Caledonian R. (1892), 1 Ch Bay & M. R., 42 Wis. 539 ; Toledo, A. 73. A. & 6. T. R. V. Dunlap, 47 Mich. 456 ; 3 133 U. S. 553. Chicago & A. R. v. Goodwin, 111 111. « Ellis ti. Rock Island & M. R., 125 273 ; Jones v. New Orleans & S. R,, 70 111. 82. Ala. 227 ; Oregon R. &N. Co. v. Mosier, SECT. 240.J THE MEASURE OF COMPENSATION. 223 ings are removed or destroyed.^ A law was passed adding five feet to the width of a street, but with the proviso that existing buildings should not be interfered with. The owner of one of the buildings in question destroyed it with the intention of rebuilding upon the original site. This action released the sus- pended eminent domain, and effected the condemnation of the laud needed to make the full width of the street.^ But it has been held that town authorities in laying out a street cannot, of their own motion, permit a building to encroach upon it " while the present building stands." ^ Where a house stands within the lines of a projected street, and the authorities decide that it may remain until its owner chooses to remove it, the owner may disregard the decision, treat the location as absolute, -and imme- diately claim compensation for its removal.* The legislature may recognize the fact that things may be re- moved under certain circumstances without disadvantage to the owner, and with advantage to the expropriators.^ Thus, it has been enacted that where improved land is subjected to a highway easement, the cost of the removal of buildings shall be the only compensation in respect to them, provided the owner has adjoin- ing land upon which they can be suitably placed.® The legisla- ture may provide that where trees are upon land taken for a highway easement, the commissioners may allow the owner a reasonable time within which to remove them. In case they are not removed, the owner will be deemed to waive compensa- tion for them, and their value for the purpose of removal may be deducted from the compensation awarded.^ In case the property suffers an injury, not referable to the public purpose in question, the loss must be borne by the owner or expropriator, according as the injury occurs before or after the rights of the parties are fixed.^ Thus, where proceedings to con- demn a bridge are begun, and before the acceptance of the report the bridge is destroyed bj'' a flood, the owner must bear the loss.^ 1 St. Louis V. Connecticut Mut. Life ' Mangles v. Freeholders, 55 N. J. L. Ins. Co., 90 Mo. 135. 88. i" Piiiladelphiay. Linnard, 97Pa. 242. ''Murray v. Norfolk County, 149 8 Colbourno.Kittridge,13lMas3.470. Mass. 328. * Brown v. Worcester, 13 Gray, 31. * Sunderland Bridge, 122 Mass. 459. 5 White V. Foxborough, 151 Mass. 28 ; ' Farmer v. Hooksett, 28 N. H. 244. Benton v. Brookline, 151 Mass. 250. 224 COMPENSATION AND DAMAGES. [CHAP. X. § 241. The general meaning of the present condition of land having been explained, the particular elements which may make up the condition will be noted. Buildings, and other erections, are part of the realty, and are to be valued as they stand.* Where part of a building is taken, the measure of compensation is the damage done to the whole.^ Where the owner of a build- ing, partly destroyed, tears down the remainder, instead of repair- ing it, and erects a new building, he cannot have compensation for loss of rent during the period of construction.^ It has been held that where a building is in course of erection the owner may give evidence of its cost to date, architect's fees, and the sum due to the contractor, and may have loss of time and capi- tal taken into account ; * but such details have been deemed irrele- vant, and the general relation of the building to the market value of the land only considered.^ Where the owner of a ground lease makes improvements and fails to remove them before the expiration of his term, he cannot obtain their value upon the condemnation of the property.^ Fixtures are part of the land, and their value in connection therewith may be shown.' Where a water-cure establishment was condemned, it was held that the corporation must pay the difference between the value of the fixtures in connection with the establishment, and their value if removed and applied to other uses.^ § 242. Products of the soil, which attain their ultimate value only when severed, are not to be valued as commodities, but as component parts of the land. Thus, the value of crops, orchards, timber, etc. should be estimated in connection with the land.^ 1 Ford D. County Comm., 64 Me. 408; ' Edmands w. Boston, 108 Mass. 535; Chicago. I. & K. R. v. Knnffke, 36 Kan. Allen v. Boston, 137 Mass. 319 ; Gibson 367 ; Lafayette, B. & M. R. r. VFinslow, v. Hammersmith & C. R., 2 Dr. & Sm. 66 111. 219; Central Bridge Co. u. 603. Lowell, 15 Gray, 106. 8 prfce v. Milwaukee & S. P. R., 27 2 See Meyer u. Newark, 6 Am. L. Wis. 98. Rev. 576 ; Patterson v. Boston, 23 Pick. " Lance v. Chicago, M. & S. P. R., 57 425. Iowa, 636 ; Haislip v. Wilmington & W. 8 Boles V. Boston, 136 Mass. 398. R., 102 N. C. 376 ; St. Lonis, V. & T. H. * Chicago, M. & S. P. R. u. Hock, R. v. Mollet, 59 111. 235 ; Seattle & M. 118 111. 587. R. ■;. Scheike, 3 Wash. 625; Rider v. 6 Schuylkill Nav. Co. u. Farr, 4 W. Stryker, 63 N. Y. 136 ; Texas & S. L. K. & S. 362. ■"«. Matthews, 60 Tex. 215; Gilmore v. 6 Schreiber v. Chicago & E. R., 115 Pittsburgh, V. & C. R., 104 Pa. 275. 111. 340. SECT. 243.] THE MEASUKE OP COMPENSATION. 225 The owner has been allowed to show the value per load of com- post spread upon the land,^ but not the value of peat spread out to dry.2 Compensation may be claimed in respect to undeveloped min- eral deposits, the extent, perhaps even the existence, of which may be matters of speculation. The probability of the existence of minerals must be supported by competent evidence.^ The mere fact that land is designated as " placer " is not proof that it contains precious metals.* In Searle v. Lackawanna & Blooms- burg Eailroad Company,^ it was decided that land containing an unworked deposit of coal should be valued in a general way as coal land, and that the coal should not be put in specially, as this would involve such uncertain quantities as the number of tons and cost of production. This sound rule for the valuation of mineral lands is the prevailing one.^ Where the state's right to deposits of precious metal ^ passes to the grantee of the land,^ he may, in the event of condemnation, have compensation assessed in respect to the deposits. But if the state has not sur- rendered its ownership of the metals, it may condemn land with- out paying compensation for prospective gold mines.^ § 243. Present Use of Land. — One whose land is taken may show the use to which it is put. Unless present adaptability to more advantageous uses can be shown,!" ^t^q property should be valued in the light of the present use, — that is, its worth to a purchaser desiring to malte the same use of it. The application of this rule where the land is put to agricultural, residential, ordinary business, or other common uses does not call for special illustration. The fact that the use is such that peculiar improve- ments have been made in order to subserve it, or that the prop- erty is so situated as to render it peculiarly suitable for the use > Chicago & E. R. v. Jacobs, 1 10 111. Pa. 472 ; Doud v. Mason City & F. D.. 414. R., 76 Iowa, 438. See Providence & W. 2 Gile V. Stevens, 13 Gray, 146. R. v. Worcester, 155 Mass. 35. ^ Montana R. u. Warren, 137 U. S. '1 Blackstone, 294 ; Cooley, Const. 348; Brown v. Comm. for Railways, 15 Lira. (6tli ed.) 643. App. Cas. 240. ^ See Moore v. Smaw, 17 Cal. 199. * Twin Lakes, etc. Co. u. Colorado ' Shoemaker v. United States, 147 Mid. R,, 16 Col. 1. ,U. S. 282. 6 33 Pa. 57. i» See §§ 245-247. 8 Reading & P. R. v. Balthaser, 119 15 226 COMPENSATION AND DAMAGES. [CHAP. X. to which it is put, may be considered in estimating market value.^ Thus it may be shown that the premises are specially suitable for a coal-yard,2 a brick-yard,^ a plow factory* It has been held that where a business has been so conducted as to establish what is known as a good-will, this may be a factor of market value.^ According to some decisions neither the particular use made of the property ,8 nor the good-will of a business,'' is relevant to market value. § 244. Evidence of profits from tilling the soil, or from busi ness, has been rejected, as too dependent on personal considera^ tions to be a fair criterion of market value.^ In Langdon v. Nev York,^ the city, in condemning a wharf, offered evidence of th( amount of wharfage collected, and estimates of annual income The court held that the present productiveness of the propertj was not an evidence of its intrinsic value. But there are cases in which evidence of profits has been found satisfactory .i* Thus, where water was diverted from a mill, evidence of the profits of the mill for the preceding year was received, as tending to show the productiveness of the property. ^^ Where a franchise is taken,^^ profits have been considered. A franchise confers the right to conduct a particular business. The value of the business done is, therefore, an index to the value of the franchise. Hence, in valuing a franchise, it has been held 1 Dupuis V. Chicago & N. W. R., 115 See Met. B'd of Works v. McCarthy, L. ni. 97 ; Price v. Milwaukee & S. P. R., R. 7 H. L. 243. 27 Wis. 98; Republican Val. R. o. 8 Stockton & C. R. v. Galgiani, 49 Arnold, 13 Neb. 485. Cal. 139; De Buol v. Preeport & M. R. 2 Chicago !). Taylor, 125 U. S. 161. R., HI 111. 499 ; New York, W. S. & B ■' Rumsey v. New York & N. E. R., R., 35 Hun, 633 ; Cobb v. Boston, lOV 136 N. Y. 543. Mass. 438; Maynard v. Northampton * King D. Minneapolis Union R., 32 157 Mass. 218; Ranlet v. Concord R. Minn. 224. 62 N. H. 561 ; Pittsburgh & W. R. t. 5 King V. Minneapolis Union R., 32 Patterson, 107 Pa. 461 ; Miller v. Wini Minn. 224; McCauley's Case, 18 Ont. sor Water Co., 148 Pa. 429. See afe 416; Lambton's Case, 3 Ch. D. 36; Boston & W. R. v. Old Colony R., lU White V. Comm. of Works, 22 L. T. n. s. Cush. 605 ; Whitman v. Boston & M. R., 591. 3 Allen, 133. 6 Whitman v. Boston & M. R., 3 ' 133 N. Y. 628. Allen, 133. M Lambton's Case, 3 Ch. D. 36. ■^ Edmands v. Boston, 108 Mass. 535 ; ^i Norwalk v. Blanchard, 56 Conn Cobb V. Boston, 109 Mass. 438; New 461. York, W. S. & B. R. R., 35 Hun, 633. 12 gee §§ 165-168. SECT. 245.J THE MEASUBE OP COMPENSATION. 227 that the income of the corporation may he shown.^ In valuing the property and franchises of a corporation, it has been held that the market value of the corporate stock may be considered.^ It seems, that in some cases the owner of a tract, part of which is taken, may prove depreciation in the rental value of the remainder.' But the earning capacity of land, as shown by the rent it produces, is not usually an independent criterion of mar- ket value. If the premises are not actually rented, their rental value is wholly speculative. If they are rented, the lessee has an interest in the compensation, and the legitimate effect of the lease on the value of the land necessarily appears in adjusting the claims of the lessor and lessee.* § 245. Present Adaptability of Property to other Uses. — The owner may show the adaptability of the property to other, and more profitable, uses than thart to which it is at present devoted, and have the market value appraised with reference to the new use.' To this end it may be shown that the property can be used advantageously as a site for a log-boom,® a bridge,' a wharf,* or a mill.^ Evidence may be given of an unused water- power,!" an unworked mine,!! qj. g, deposit of gravel or mineral.!^ Where a railroad company condemned land for a riparian termi- nus the owner was permitted to prove the peculiar desirability ^ Columbia Delaware Bridge v. ' Little Rock .Tunct. R. v. Woodruff, Geisse, 38 N. J. L. 39 ; Montgomery 49 Ark. 381 ; Shenandoah Val. R. ■;. County V. Schuylkill Bridge, 110 Pa. 54. Shepherd, 26 W. Va. 672. 2 Mifflin Bridge v. Juniata County, ^ Drury o. Midland R., 127 Mass. 144 Pa. 365. See Kensington Turnpike, 571; Calumet River R, v. Moore, 124 97 Pa. 260. 111. 329 ; Louisville, N. O. & T. R. v. 8 See § 261. Ryan, 64 Miss. 399. * See § 304. ' Dupuis v. Chicago & N. W. R., 115 5 Furman St., 17 Wend. 649 ; Goodin 111. 97. V. Cincinnati & W. Canal, 18 Ohio St. i" Haslam v. Galena & S. W. R., 64 169; Young v. Harrison, 17 Ga. 30; 111.353; Dorian u. East Brandywine & Mississippi River Bridge v. Ring, 58 Mo. W. R., 46 Pa. 520. See New Britain v. 491 ; Portland & R. R. v. Deering, 78 Sargent, 42 Conn. 137 ; Trent-Stoughton Me. 61 ; Maynard v. Northampton, 167 v. Barbadoes Water Supply Co. (1893), Mass. 218; Amoskeag Co. v. Worcester, A. C. 502. 60 N. H. 522 ; Somerville & E. R. v. 11 Haslam v. Galena & S. W. R., 64 Doughty, 22 N. J. L. 495 ; Russell v. St. 111. 353. Paul, M. &M. R., 33 Minn. 210. See i^ Montana R. v. Warren, 137 IT. S. Fairbanks v. Fitchburg, 110 Mass. 224. 348; Providence & W. R. v. Worcester, ^ Boom Co. V. Patterson, 98 U. S. 155 Mass. 35; Brown i'. Comm. for 403. Railways, 15 App. Cas. 240. 228 COMPENSATION AND DAMAGES. [OHAP X. of his land for the purpose, by showing that two-thirds of the local shore front was already devoted to railroad uses, and that the land available for approaches was limited.^ The value of land may be enhanced by the character of the neighborhood. Thus, farm land near a town may have a peculiar value, owing to its availability for building lots.'^ § 246. In all cases the value must be actual, not specula- tive. The land is not to be valued as if the possible use were in existence, but at its present worth in view of the possibility.^ Hence, evidence will not be admitted to prove the value of a lot if a building were placed upon it.* Nor can land near a town be appraised as if it were already divided into building lots.^ So, the fact that land is mapped into lots,^ or that streets are mapped out over it,^ does not warrant its valuation as if the improvement had been made. Adaptability must not hinge upon the expenditure of money by the owner, nor upon the assistance of outside parties.* Hence, the owner will not be allowed to show how a water-power may be improved,® nor that improvements could be made if a fran- chise were obtained,^" nor that a ravine affords the best route to coal-fields owned by other persons,!^ nor that a new building, 1 Currie v. "Waverly & N. Y. B. R., etc. R., 5 Pa. C. C. 634 ; Scott v. In- 52 N. J. L. 381. dianapolis & V. R., 10 Am. & Eng. Ey. 2 Hooker v. Montpelier & W. R. R., Cas. 189 ; Everett v. Union Pacific E., 62 Vt. 47 ; Washburn v. Milwaukee & 59 Iowa, 243. L. E., 59 "Wis. 364 ; Cincinnati & S. E. ^ Matter Dep't Public Parks, 53 V. Longworth, 30 Ohio St. 108; Cedar Hun, 280. Rapids, I. F. & N. R. u. Ryan, 37 Minn. ' SchuylkiU River, etc. R. v. Stacker, 38 ; South Park Comm. v. Dunlevy, 91 128 Pa. 233. III. 49 ; Ohio Val. R. v. Kerth, 130 Ind. » Munkwitz v. Chicago, M. & S. P. 314. See also Reg. v. Brown, L. R. 2 R., 64 Wis. 403 ; New York, L. & W. E., Q. B. 630. 33 Hun, 639 ; Moulton v. Newburyport 3 Powers V. Hazelton & L. R., 33 Water Co., 137 Mass. 163. Ohio St. 429 ; San Diego Land, etc. Co. ^ New Britain v. Sargent, 42 Conn. V. Neale, 88 Cal. 50; Omaha Belt R. v. 137 ; Dorian v. East Brandywine & W. McDermott, 25 Neb. 714. R., 46 Pa. 520. See Selma R. & D. E. 4 Burt I). Wiggleswortli, 117 Mass. v. Keith, 53 Ga. 178. 302; Tallman v. Met. El.R., 121 N. Y. i" Central Pacific R. v. Pearson, 35 119. See also Harris v. Schuylkill Cal. 247. See Patter.son j). Boom Co., River, etc. R., 141 Pa. 242; Clark v. 3 Dill. 465; Blaney v. Salem, 35 N. E. Pennsylvania R., 145 Pa. 438 ; Calumet Rep. 858 (Mass. 1893). River R. u. Moore, 124 111. 329. » Powers v. Hazelton E., 33 Ohio St s Pennsylvania S. V. R. v. Cleary, 429. 125 Pa. 442 ; Myers v. Schuylkill River, SECT. 241.'] THE MEASTJEE OF COMPENSATION. 229 substituted for the one destroyed, would have a larger rental value.^ The mere intention of the owner to improve his prop- erty has no bearing on its market value.^ The fact that it is within the power of a landowner to use his property to the injury of a neighboring public work cannot be considered as increasing its value, when it is condemned for the purpose of extending the work. Thus, where a water company built a filter gallery, and afterwards condemned adjoining land,, the owner was not allowed to show that by digging wells on the land in question the supply of water in the gaUery could be diminished.^ It has been intimated that the future use in question must be immediately probable ; * but this does not seem essential, for real- ization may be quite distant, indeed may never occur, and yet the probability may be sufficiently strong to be a real factor of present value. § 247. If present adaptability to future use is established, it is an inherent factor of value. It is in nowise depreciated by the circumstance that the land is condemned for the very pur- pose for which it is fitted.^ Thus, in San Diego Land Company V. Keale,® it was decided that land adapted to the purpose of a reservoir site, should be valued in respect to such adaptability when actually condemned for a reservoir.^ This ruling was dis- sented from on the ground that it admitted an enhancement of property by the very condemnation of it. Now it is true that expropriators must pay the market value of land, not its pecu- liar value to themselves in view of the use they intend to make of it ; ^ but this rule is not violated in the case cited, for, if we suppose the land to be condemned for a railroad, its adaptability 1 Philadelphia v. Linnard, 97 Pa. ^ Boom Co. v. Patterson, 98 XJ. S. 242. 403 ; Boston, H. T. & W. E. 22 Hun, 2 Twin Lakes, etc. Co. v. Colorado 176 ; New York, L. & W. E., 27 Hun, Mid. E., 16 Col. 1 ; Tallman v. Met. El. 116 ; Cnrrie v. Waverly & N. Y. B. E., Ey., 121 N. Y. 119 ; Goodwins v. Evans, 52 N. J. L. 381 ; Harrison v. Young, 9 33 N. E. Eep. 1031 (Ind. 1893). See Ga. 358. See Moulton v. Newbury- also Eumsey v. New York & N. E. R., port "Water Works Co., 137 Mass. 136 N. Y. 543. 163. 3 Gardner v. Brookline, 127 Mass. « 78 Cal. 63. 358. ' See AUoway v. Nashville, 88 Tenn. * Watson V. Milwaukee & M. E., 57 510. Wis. 332. 8 See § 234. 230 COMPENSATION AND DAMAGES. [CHAP. X. for a reservoir would be considered. It has been held that where land is crossed by the roadbed of an abandoned railroad, and a company wish to condemn for a new railroad, the owner cannot have the value of his land increased by reason of the existence of the abandoned works.^ But there seems to be no good reason for taking such a case out of the rule. The aban- doned works belong to the owner,^ and, while useless in his hands, should enure to his profit rather than to the profit of a corporation seeking his land; and it has been so held.^ § 248. Anticipatory Effect of the Use in question on Market Value. — The projection of a public work may affect the market value of land within range of its probable location or influence. Where the value of land in a particular locality is enhanced by the anticipated construction of an undertaking, a railroad for example, it has been held that the owner of a tract actually condemned may profit by the general enhancement.* But the enhancement must be strictly anticipatory. The land taken must not be valued as if the benefit were realized, for, as has been said, " land is not increased in value to the owner by a public improvement which can only be effected by depriving him. One cannot claim damages for the loss of a benefit or profit which, from the very nature of the case, he could never have received or enjoyed." ^ It has been held that the market value of land may be enhanced solely because the exigencies of a particular public use are likely to demand its acquisition. Thus, where land was condemned for a reservoir, and subsequently adjoining land was condemned for the same use, the owner of the latter was allowed to prove that it had increased in value because of the probability that it would be needed for the extension of the works.^ When ' Black River & M. R. v. Barnard, 474; Cobb v. Boston, 112 Mass. 181 ; 9 Hun, 104. Texas & S. L. R. v. Cella, 42 Ark. .528 ; 2 See § 221. Giesy v. Cincinnati, W. & Z. R., 4 Ohio » Cohen v. St. Louis, F. S. & W. St. 308. R., 34 Kan. 158. See also Trimmer v. 6 Dorgan v. Boston, 12 Allen, 223. Pennsylvania, P. & B. E., 55 N. J. L. See also Union Depot Co. v. Brunswick, 46- 31 Minn. 297 ; Benton v. Brookline, 1 Grand Rapids, L. & D. R. v. 151 Mass. 250. See § 285. Chesebro, 74 Mich. 466. See also As- 6 Stafford v. Providence, 10 E. L pinwall V. Chicago &, N. E., 41 Wis. 567. &BCT. 249.] THE MEASURE OF COMPENSATION. 231 property depreciates in anticipation of an undertaking, it seems that the expropriators cannot benefit by this depreciation in the assessment of compensation. In such case the market value should be estimated as of the time just preceding depreciation. Still less can a corporation benefit by a depreciation of land due to its own wrong. Hence, where a railroad company unlaw- fully occupied land, and afterwards condemned it, the court re- fused to receive evidence of depreciation due to the trespass. ^ In estimating the compensation due on account of the construction of an elevated railway in a street, the market value of the land as depreciated by the railway is not the basis of assessment. The laud should be valued as if the railway had not been built.^ § 249. Drawbacks to the Value of Property. — As the owner may marshal all the elements which tend to enhance the market value of his property, so the expropriators may set out such facts as will tend to lessen this value. When a public work has been already constructed on the tract in question the consequent depreciation in value may be shown.^ Thus, where a water company diverts water from a mill, and afterwards a railroad is so constructed as to destroy entirely the water-power of the mill, the railroad company should pay for the destruction of a power already diminished.* If the property is in bad con- dition, or naturally insecure, the fact may be shown.^ Thus, it may be shown that a stream diverted by the expropriators is so fouled by sewage from a town as to be worthless for the watering of stock,^ and, although sewage is unlawfully discharged upon land, the effect may be shown.'^ Where compensation is claimed for flooding, the natural subjection of the land to flood may be shown.^ Thus, in assessing compensation for the taking of a 1 Lyon V. Green Bay & M. R., 42 » Pupuis v. Chicago & N.W. R., 115 Wis. 539. lU. 97. 2 Pappenheim v. Met. El. R., 128 « Kiernan v. Chicago, S. F. & C. N. Y. 436. R., 123 111. 188. See also Pennsylvania 3 Thompson u. Sebasticook & W. R., S. V. R. v. Keller, 20 W. N. C. (Pa.) 81 Me. 40; Chicago, B. & N. R. v. 125; Whitman u. Boston & M. R., 7 Bowman, 122 111. 595. See also Union Allen, 313. E. V. Moore, 80 Ind. 458. ' Harris v. Schuylkill River, etc. R., * See Lyconiing Gas, etc. Co. v. 141 Pa. 242. Meyer, 99 Pa. 615. « Enos v. Chicago, S. P. & K. R., 78 Iowa, 28. 232 COMPENSATION AND DAMAGES. [CHAP. X. bridge, the jury may take into consideration its liability to be destroyed by flood or ice.^ But it has been held that a city cannot escape liability for flooding land with surface-water, by proving that surface-water flows in from another source.^ A house uncompleted, and fallen into a state of dilapidation, must nevertheless be taken into account in assessing compensation.^ Where a railroad company condemn the property of a canal company, they cannot urge the insolvency of the latter, and the abandonment of the canal, in depreciation of the property taken. This must be valued in the light of its most profitable use.* Where compensation is claimed for an injury to a right of fisheiy, it may be shown that the fishery is practically worthless.^ Where a toll-bridge is condemned, it may be shown that the value of the franchise to take tolls is lessened by the use of a neigh- boring free bridge.* Evidence that intoxicating liquor is sold upon the premises should not be received, as it might tend to prejudice the jury.'' § 250. There may be legal restrictions on the use of property which lessen, perhaps destroy, its market value.^ If the owner of land is obliged to use it for a certain purpose, it must be val- ued solely with reference to the defined use. Thus, where land, which could be used for a cemetery only, was taken for a road, it was held to have no secular value.^ Land may be decreased in value by a building restriction.!** A restriction depending on the will of the owner has no bearing on market value. Thus, where land was devoted by a bishop to purposes of sepulture, an attempt to value it as simply a burying-ground was success- fullj' resisted, as there was nothing to prevent its being placed 1 Mifflin Bridge v. Juniata County, ^ Lock Haven Bridge v. Clinton 144 Pa. 365. See also Sunderland County, 27 Atl. Rep. 726 (Pa. 1893). Bridge, 122 Mass. 459. ' Brown v. Providence & W. R., 5 2 Soule V. Passaic, 47 N. J. Eq. 28. Gray, 35. See also Noonan v. Albany, 79 N. Y. » Tobey w. Taunton, 119 Mass. 404; 470. Whitaker v. Phcenixville, 141 Pa. 327. ' Alexander v. Crystal Palace R., 30 9 Stebbing v. Met. Bd. of Works, L. Beav. 556. R. 6 Q. B. 37. See Hilcoat r. Bird, 10 * Goodin V. Cincinnati & W. Canal, C. B. 327. 18 Ohio St. 169. 10 Allen v. Boston, 137 Mass. 319. 5 Tinicum Fishing Co. v. Carter, 90 Pa. 85. SKCT. 251. j THE MEASURE OF COMPENSATION. 233 on the market.^ Where a ferry across an interstate river is oper- ated by two persons under agreements made from time to time, each having a franchise from his own State, and the franchise of one is affected by the eminent domain, it is proper, in assessing compensation, to consider the fact that the substantial enjoy- ment of the franchise depends on arrangements made with the ferryman on the other shore.^ Where land is subjected to an easement its value may be decreased.^ Indeed, the easement may be so exclusive as to deprive it of any market value. Thus, it has been held that where one railroad crosses another the owner of the land has no title to compensation.* But if the new use is held to impose an additional burden on the fee,^ the land is to be valued as property already subjected to an easement.* The fact that property cannot be sold at the time when it is desired for public use, because of the incapacity of the owner, does not trammel the eminent domain.^ Market value is to be ascertained as if the power of alienation existed. So, although a disputed or clouded title may reduce or destroy market value, the property, when condemned, must be valued as if these draw- backs did not exist, and the money should be paid into court for the lawful owner.* § 251. The expropriators may have, already, a right or ease- ment in the property in question which, upon a formal con- demnation, will affect the compensation.^ For example, where land dedicated for a street is formally opened by the public authorities, the abutting owner is at best entitled to nominal compensation.!" And even nominal compensation has been denied.!! A dedication must be clearly proved in order to affect 1 Chicago, E. & L. S. R. v. Roman 6 Chapman v. Oshkosh R., 33 Wis. Catholic Bishop, 119 lU. 525. See 629. Albany St., 11 Wend. 149. '' See § 301. ^ See § 299. ' Columbia Delaware Bridge v. ^ Miller v. Newark, 35 N. J. L. 460. Geisse, 38 N. J. L. 39. i" Furman St., 17 Wend. 649 ; Matter 3 Fitz V. Nantasket Beach R., 148 of Brooklyn, 73 N. Y. 179; Stetson v. Mass. 35. Bangor, 73 Me. 357 ; Walker u. Man- « Lake Shore & M. S. R. v. Chicago Chester, 58 N. H. 438. & W. I. R., 100 111. 21. See § 277. " Clark v. Elizabeth, 37 N. J. L. 120. 6 See § 162. See also Berks St., 15 Phila. 381 ; Val- entine V. Boston, 22 Pick. 75. 234 compe:n'sation and damages. [chap. x. compensation.! K; jj^g ^gen held that where a dedication has not been accepted by the authorities they cannot treat the laud as a street, but must take it on payment of full value,^ but evi- dence of an unaccepted dedication has been received as tending to reduce compensation.^ It has been recently decided that where a city condemned the fee of a strip of land long used as a street, but never formally dedicated, the owners were entitled to more than nominal compensation, because of the loss of the fee.* Where a landowner writes to the municipal authorities offering to relinquish certain land to them, provided they will use it for widening a street, and the land is accepted, and used for this purpose, the owner cannot treat his letter as a mere proposal, and obtain compensation. The letter was the first step in an agreement which the city completed by complying with its conditions.^ Where the authorities proceed to condemn land for a street, they cannot assert that it has been dedicated. The institution of proceedings is so definite a recognition of a private property in the laud that the authorities are estopped from controvert- ing it.^ Is Market Value the Only Standard ? § 252. The market value of property is usually the basis of assessment. All property is supposed to have a value in the market, and an instruction to a jury, calculated to produce a contrary impression in respect to the property in question, has been held improper.^ But it has been said, that where a rail- road is carried across another the land occupied has no market value, strictly speaking, but a value for railroad uses only.^ It has been said that the basis of assessment may be less than market value,^ but this statement is not to be taken literally. 1 Pitts I. Baltimore, 73 Md. 326 ; v. Steyner, 135 N. Y. 341. See Chicago Jersey City v. Sackett, 44 N. J. L. 428 ; v. Wright, 69 III. 318. Wayne Ave., 124 Pa. 135. ' Chicago & E. R. v. Jacobs, 110 111. 2 Detroit v. Beecher, 75 Mich. 454. 414. See also Brooklyn St., 118 Pa. 640. s Chicago & N. R. v. Chicago & E. 3 Brooklyn Heights, 48 Barb. 288. R., 112 111. 589. See also Montgomery •• Buffalo V. Pratt, 131 N. Y. 293. County v. Schuylkill Bridge, 110 Pa. 54 ; ^ Crockett v. Boston, 5 Cush. 182. Illinois Cent. R. v. Chicago, 141 IU.509. 8 Princeton v. Templeton, 71 III. 68 , ^ May v. Boston, 158 Mass. 21. San Jose' v. Freyschlag, 56 Cal, 8 ; Oleau SECT. 253.] THE MBASUEB OF COMPENSATION. 235 The court did not hold that propei'ty might be valued at less than its worth. The question was as to the date of valuation.' An easement in land may be condemned, and yet it may be impossible to show that the market value of the land is depre- ciated. This, not because the benefit of the undertaking offsets its burden, but because the easement acquired is insignificant. Yet there is a taking of property for public use, and the owner is entitled to some compensation.^ § 253. Where land is condemned compensation has bee^i allowed on principle, or in obedience to a statutory command, in respect to matters wholly irrelevant to market value, such as loss incident to enforced removal and interruption of business.^ In Eagle v. Charing Cross Eailway Company,* the umpire awarded compensation for injury to trade due to diminution of light, but added that the salable value of the premises was not diminished. The company insisted that, in view of this finding, no compensation was due, as no interest in land was taken. The court held that the plaintiff was not called upon to sell, but was entitled to the award as an occupant carrying on business. It has been decided, in other cases, that the owner should not be allowed to recover in respect to inconvenience in removing busi- ness,* cost of removing property,® or damage to personal prop^ erty.' Thus, where a firm of lithographers, lessees of the premises condemned, offered to prove that the expense of remov- ing their presses and other machinery would exceed twenty-five hundred dollars, the evidence was refused.® The issue presented by these conflicting opinions is somewhat 1 See § 285. Barb. 151; Dep't Public Parks, 53 Hun, 2 Smith V. Atlanta, 17 S. E. Rep. 280. 981 (Ga. 1893). * L. E. 2 C. P. 638. 3 Chicago, M. & S. P. R. v. Hock, ^ Cobb v. Boston, 109 Mass. 438. 118 111. 587 ; Atchison, T. & S. F. R. c;. « Cent. Pacific R. v. Pearson, 35 Cal. Schneider, 127 111. 144 ; Robb v. Mays- 247 ; New York Cent. & H. R. R., 35 ville & M. S. R., 3 Met. (Ky.) 117; Hun, 306; Ranlet v. Concord R., 62 Covington, etc. R. v. Piel, 87 Ky. 267 ; N. H. 561. Patterson v. Boston, 23 Pick. 425 ; ' Gile v. Stevens, 13 Gray, 146. See Coram. V. Moesta, 91 Mich. 149 ; Chi- also Chicago & A. R. v. Smith, 17 111. cago, S. & C. R. V. McGrew, 104 Mo. App. 58. 282 ; Jubb v.. Hull Dock Co., 9 Q. B. 8 ^ew York, "W. S. & B. R., 35 Hun, 443. See also Poughkeepsie R., 63 633. 236 COMPENSATION AND DAMAGES. [CHAP. X. difficult. The strict rule certainly shuts out loose evidence which might tend to embarrass the judgment of the tribunal. On the other hand, a conservative application of the liberal rule will per- mit the tribunal to consider real injuries suffered by the owner as the direct result of condemnation. It has been said, in explan- ation of the liberal rule, that where land is condemned the compen- sation must be assessed as in a case of trespass for expulsion, in which the trespasser is bound to make good all losses sustained.^ COMPENSATION WHERE PART OF A TRACT IS CONDEMNED. § 254. The subject of compensation has been considered hitherto in its simplest phase, — the value of what is actually taken for public use. The principles set out are elementary, and apply whether the whole or a part of a tract is occupied. Now it has been shown that the condemnation of a part of a tract ^ is a taking of the whole, so far as it affects the part remaining.^ When this is the case, as it usually is, there is a new condition. Compensation must be assessed in respect to the whole tract, and the continued use of part of it by the owner. There are several general rules laid down for assessment of com- pensation in such cases. Where the part taken and the part remaining are to be valued separately,* the measure of compen- sation is the market value of the part taken, and the decrease in the market value of the part remaining.^ Where the property is to be valued as a whole,^ it has been held that compensa- tion is the difference between the market value of the whole tract before the taking, and the market value of the residue.'^ Although this method of valuation will usually give true results, the more comprehensive method is to measure compensation by the decrease in the market value of the whole tract due to the taking of a part.^ But where general benefits are not 1 See Eicket o. Met. R., 5 E. & S. « See § 272. 156. See § 136. ' New York, L. & W. R. v. Arnot, 2 See §§ 189-190. 27 Hun, 151. 5 See § 136. « See § 272. « Schuylkill Nar. Co. v. Thoburn, 6 Chicago, P. & S. L. R. v. Eaton, 7 S. & R.411 ; Setzler v. Pennsylvania 136 ni. 9; Weyer v. Chicago, W. & N. S. V. R., 112 Pa. 56; Doud w. Mason E., 68 Wis. 180 ; Elizahethtown & P. R. City & F. D. R., 76 Iowa, 438. V. Helm, 8 Bush, 681. SECT. 255. J CONDEMNATION OF PART OF TEACT. 237 taken into account,^ the rule must be so applied as to exclude them.^ § 255. In order to appreciate the effect of an undertaking upon the remainder of a tract, attention must be first paid to its plan of construction, and, in certain cases, to the manner of its operation.* Where compensation precedent is required, and the petition does not set out the plan,* the undertaking will be pre- sumed to be properly constructed in such a way as will serve its purposes.^ Where the plan is given the effect can be more accurately determined, and where compensation subsequent is permitted, or condemnation takes place after entry,^ the tri- bunal of assessment has frequently before it a completed work with all its effects in evidence. Where there are several lawful methods of operation, and the promoters stipulate to use those that will inflict the least injury to property, the stipulation should be considered in estimating the injury to the remainder of a tract. Thus, where a railroad company authorized to operate a steam railroad in the usual way, and for the usual purposes, lawfully engage to use no soft coal, to equip their trains with the best appliances for the dimi- nution of smoke and noise, and to carry no freight, the stipu- lations may be given in evidence.'^ Where an undertaking is built on a certain plan, its promoters cannot reduce compen- sation by alleging that a less injurious mode of construction may be adopted in future. Thus, a corporation, having built a railroad on a street above grade, is estopped from asserting that the city may compel it to lower its tracks to the street level.^ Where a corporation condemns part of a tract, and makes an, agreement with the owner in respect to something to be done on the remainder, the transactions have been treated as independent, 1 See § 269. 6 Packard v. Bergen Neck R., 54 N. 2 Packard u. Bergen Neck R., 54 N. J. L. 553. J. L. 229. 6 See § 118. ' Nasou V. Woonsocket, etc, R,, 4 '' Lieberman v. Chicago, & S. S. R., R. I. 377 ; Cummins v. Des Moines & 141 lU. 140. S. L. R., 63 Iowa, 397 ; Kansas City & » Eslich v. Mason City & F. D. R., E. R. V. Kregelo, 32 Kan. 608. 75 Iowa, 443. 4 See § 327. 238 COMPEKSATION AND DAMAGES. [CHAP. X. SO far as the assessment of compeusation is concerned.^ Thus, where a right of way is condemned, and the corporation erects a bulkhead on the remainder of the tract, by consent, the increased value of the land with the bulkhead upon it is not to be consid- ered in assessing compensation.^ A railroad company condemned land, and made a special agreement with the owner to pay for the removal and restoration of a building. It was held that the ex- pense incurred should not enter into the compensation.^ Injuries to the Remainder of the Tract. § 256. At the outset of the present inquiry, it should be noted that the distinction between a taking and an injurious affecting of property is of little moment, if any, where a part of a tract is condemned. As has been shown, the construction of a taking is extremely liberal in such a case,* and the compensation may be based on elements of damage which would be disregarded if the property were untouched by the works. As a rule, evidence of the effect of the undertaking upon property other than that in question would probably be deemed irrelevant. But it has been held that one may support an allegation of injury to property abutting on a street, caused by the operation of a railroad therein, by proving the effect on similar property,^ and the effect on the street as a business thoroughfare.^ § 257. Injuries due to the Construction of 'Works. — The severing of a tract by the condemnation of a part, is a prolific cause of injury. The value of the tract may be lessened by reason of its division into sections of inconvenient shape, size, or location,' and the parts left may be so worthless that the tribunal will be justified in awarding the value of the whole ^ See Merriam w. Meriden, 43 Conn. ' See Drncker v. Manhattan El. K., 173. 106 N. Y. 157 ; Doyle v. Manhattan El. '^ Harris v. Schuylkill River, etc. R., R., 128 N. Y. 488. 141 Pa. 242. ' Bangor & P. R. v. McComb, 6t) 8 Sherwood v. St. Paul & C. R., 21 Me. 290 ; Albany Northern R. v. Lans- Minn. 122. ing, 16 Barb. 68; Brooks w. Davenport * See § 136. & S. P. R., 37 Iowa, 99 ; Chicago & I. 5 Doyle V. Manhattan El. R., 128 N. R. v. Hunter, 128 Ind. 213 ; Missouri Y. 488. Pacific R. u. Hays, 15 Neb. 224. SECT. 258.] CONDEMNATION OF PAET OP TEACT. 239 tract.^ Where a street is opened across a tract over which another street is already laid out, but not opened, it has been held that the owner cannot obtain compensation for the effect of both streets. The damage caused by the latter can be estimated only upon its being formally opened.^ Severance may cause depreciation by impairing or destroying access to the tract,* by interfering with the freedom of communication between its parts,* or by cutting off access to water.^ It has been held that where a farm is cut by a railroad, the fact of its being thrown open, in a measure, may be considered in assessing compensation.® The obstruction of the flow of surface-water is an injury referable to construction.^ § 258. Injuries due to the Operation of Works. — The courts of New York held, at one time, that only such disadvantage to the remainder of a tract as could be traced to the construction of the undertaking should be considered ; that apprehensions of inconvenience and danger from its operation were too remote.* This rule was afterwards disapproved in a case where compensa- tion was allowed for the risk of fire,^ but was reaffirmed in an elevated railway case.^" Very recently the original view was approved on principle, for the reason that where a corporation is not allowed to assert benefits it should not be responsible for disadvantages, but the point was said to be unsettled. ^^ The question as to the effect of apprehension of future injury on present market value is a dif&cult one. In Essex v. Local 1 Grand Rapids v. Luce, 92 Mich. 92. Iowa, 613 ; St. Louis, J. & S. R. v. Kirby, See §§ 191-192. 104 111. 345. See also Emmons v. Miii- '^ Negley Ave., 146 Pa. 456. neapolis & S. L. R., 38 Minn. 215. But ' Grand Rapids, L. & D. R. v. see Kansas City & E. R. o. Kregelo, 32 Chesebro, 74 Mich. 466 ; Drnry v. Mid- Kan. 608. land R., 127 Mass. 571 ; North. Pacific ' "Walker v. Old Colony & N. R., 103 R. V. Reynolds, 50 Cal. 90. See also Mass. 10 ; Pflegar v. Hastings & D. R., Philadelphia u. Linnard, 97 Pa. 242. 28 Minn. 510. * Tucker v. Massachusetts Cent. R., ' Albany Northern R. w. Lansing, 16 118 Mass. 546; McReynolds «. Bur- Barb. 68; Union Village v. Johnson- lington & 0. R. R., 106 HI. 152; Pitts- Ville R., 53 Barb. 457. burgh, V. & C. R. u. Bentley, 88 Pa. ' Utica, C. & S. V. R., 56 Barb. 178. 456. 6 Readington i>. Dilley, 24 N. J. L. i" New York El. R., 36 Hun, 427. 209. 11 Am. Bank Note Co. v. New York 6 Hartshorn v. B. C. R. & N. R., 52 El, R., 129 N. Y. 252. 240 COMPENSATION AND DAMAGES. [CHAP. X. Board of Acton,^ Lord Chancellor Halsbury, referring to a dictum of Lord Hardwicke, that " the fears of mankind, though they may- be reasonable ones, will not create a nuisance," ^ questioned the accuracy of the report,^ but at all events disapproved the prin- ciple, saying, " It is quite clear that that is not now the law if the fears are assumed to be reasonable. The existence of a large col- lection of explosive matter in the vicinity of a town has been held to be a nuisance." * But the Lord Chancellor said further, " I should hesitate very much to affirm the proposition that a belief in imaginary injury, though in fact an existing belief and in fact affecting the marketable value of property, furnished any ground either for damages in an action, or for compensation under the Lands Clauses Act.'' § 259. Where a railroad is laid over a tract, the risk of fire from its careful operation is frequently considered in estimating the compensation. Some decisions hold that the risk must be imminent.^ A broader view is taken in decisions which do not insist upon the imminence of the risk, but simply require evi- dence of depreciation on account of it.^ Although evidence of an increased rate of insurance has been received as tending to prove the risk,''' the cost of insurance should not be made a special item of compensation.^ Although a railroad corporation is made liable by statute for damage by fire, whether due to negligence or not, the owner of land taken for the railroad may still have compensation assessed with reference to the risk. Although fire may never occur, there is the apprehension of it, and an increased rate of insurance on account thereof. If it occur, there is the possibility that the corporation may not be financially respond 1 14 App. Cas. 153. 6 Chicago, S. & C. E. v. McGrew, 2 Anon. 3 Atk. 751. 104 Mo. 282; Somerville & E. R. v. 5 The words are not reported in s. c. Doughty, 22 N. J. L. 495 ; Pingrey v. sub mm., Baines v. Baker, Amb. 158. Cherokee &D. R., 78 Iowa, 438; Kansas * See also the judgments of Lords City & E. R. v. kregelo, 32 Kan. 608; Watson and Macnaghten, in the same Chicago, P. & S. R. v. Aldrich, 134 case. lU. 9. 5 Hatch W.Cincinnati & I.E., 18 Ohio ' Cedar Rapids, I. F. & N. R. v. St. 92 ; Adden v. White Mts. etc. R., 55 Raymond, 37 Minn. 204 ; Stockport E., N. H. 413. See also Wilmington & R. 33 L. J. Q. B. 251. R. V. Stauffer, 60 Pa. 374 ; Proprietors 8 gee Eslich v. Mason City & F. D. of Locks, etc. v. Nashua & L. R., 10 R., 75 Iowa, 443. Cush. 385. SECT. 261. J COKDEMNATION OP PAKT OF TKACT. 241 sible. For these and other reasons the statutory liability of the corporation does not efface the effect of risk on market value, though it mitigates it.^ § 260. Evidence of the following results of the operation of •works has been received as tending to show depreciation in value, — smoke,^ noise,^ vibration,* and noxious or disagreeable odors.^ The courts have been called upon to consider effects of oper- ation of not so pronounced a character as those just mentioned. The owner of land has been permitted to show that the opera- tion of a railroad would endanger the lives of persons,^ and affect horses and other live stock.^ It has been held that loss of pri- vacy may be shown, as tending to depreciate value.^ § 261. Damage to the Use of Property. — The injuries under this head are referable, of course, to construction or operation, and might have been noted before. But it seems advisable to shift the point of view, in order to emphasize the proposition that where part of a tract is taken, any interference with the use which has been made of the whole must be considered in esti- mating the compensation.^ Thus, a miller may show loss of 1 Pierce v. Worcester & N. R., 105 58 Vt. 12 ; Eames v. N. E. "Worsted Co., Mass. 199; Adden w. "White Mts. R., 55 11 Met. 570; Badger v. Boston, 130 N. H. 413 ; Bangor & P. R. v. McComb, Mass. 170. 60 Me. 290. « Chicago, S. E. & C. R. r. McGrew, 2 "Weyer v. Chicago, "W. & N. R., 68 104 Mo. 282 ; Somerville & E. R. o. "Wis. 180; Et. Worth & N. 0. R. v. Doughty, 22 N. J. L. 495. See also Pearce, 75 Tex. 281. See New Orleans, West. Pennsylvania R. c. Hill, 56 Pa. &c. R. V. Barton, 43 La. An. 171. 460. See McReynolds u. Burlington & 3 Chicago, P. & S. L. R. v. Nix, 137 0. R., 106 111. 152. 111. 141 ; Ft. Worth & N. 0. R. y. Pearce, ' Railroad Co. v. Comhs, 51 Ark. 324 ; 75 Tex. 281 ; Weyer v. Chicago, W. & Baltimore & 0. R. v. Thompson, 10 Md. N. R., 68 Wis. 180 ; Omaha South. R. v. 76 ; Chicago, P. & S. R. v. AWrich, 134 Beeson, 54 N. W. Rep. 557 (Neb. 1893). 111. 9 ; Somerville & E. R. u. Doughty, See also Buccleuch v. Met. Bd. of 22 N. J. L. 495. See Otoe County v. Works, L. R. 5 H. L. 418. But see Heye, 1 9 Neb. 289 ; West. Pennsylvania Am. Bank Note Co. v. New York El. R., R. v. Hill, 56 Pa. 460 ; Chicago, K. & W. 129N. Y. 252. R. v. Palmer, 44 Kan. 110. But see ^ New York Cent. & H. R. R., 15 .loues r. Erie & W. R., 151 Pa. 30; Ala- Hun, 63. See also Buccleuch v. Met. bama & E. R. v. Burkett, 46 Ala. 569 ; B'd of Works, L. R. 5 H. L. 418. But Troy & B. R. ... Northern Turnpike, 16 Bee Am. Bank Note Co. v. New York Barb. 100. El. R., 129 N. Y. 252. 9 Buccleuch v. Met. Bd. of Works, '■ Essex V. Local Board, 14 App. Cas. L. R. 5 H. L. 418. 153. See also Pasadena i'. Stimson, 91 9 Tucker o. Mass. Cent. R., 118 Mass. Cal. 238. Compare Stewart v. Rutland, 546 ; Vicksburg, S. & P. R. v. Dillard, 16 242 COMPENSATION AND DAMAGES. [CHAP. X. custom, not for the purpose of obtaining specific compensation, but to prove depreciation in value.^ The subject of rental value, as a general indication of market value, has been noticed.^ The present question is in respect to depreciation in the rental value of the remainder of a tract as a particular element of compensation. Now where compensation is assessed before entry and construction, the probability of any depreciation in the rental value of the remainder seems to be sufficiently covered by the general principles of assessment. But where compensation is assessed after the construction of the undertaking, so that the effect on the remainder of the tract is more than matter of speculation, a diminution in rental value has been accepted as an independent test of depreciation.^ Where a corporation shows that the rental value of the land has increased since the construction of its undertaking, the owner may show that the rate of increase has not been as great as that of neighboring property.* The fact that the business carried on upon the remainder of the tract may be injured by competition, induced by the under- taking in question, has been deemed irrelevant to the subject of market value.® Though the building of a railroad through one coal field to another may injure the former, by opening up a competing supply, the injury is too remote to be considered.^ A tract, over which a way was condemned for a carriage road to the summit of Mount Washington, was used for a hotel and liv- ery stable. The owner was not allowed to have compensation because the opening of the road injured his business of letting saddle horses to those wishing to ascend the mountain.'^ § 262. It often happens that the owner of the tract may enjoy its accustomed use, save of course in respect to the part actually 35 La. An. 1045; West. Pennsylvania R. v. Eose, 74 Pa. 362; Varner v. St. R. u. Hill, 56 Pa. 460; St. Louis, J. & S. Louis & C. R., 55 Iowa, 677 ; Attwood v. R. V. Kirby, 104 111. 345 ; Holt v. Gas Bangor, 83 Me. 582. Light Co., L. R. 7 Q. B. 728. * Storck v. Met. El. R-, 131 N. Y. 1 Pittshnrgh, V. & C. R. v. Vance, 514. 115 Pa. 325. See Schuylkill Val. Nay. * Troy &B. R. v. Northern Turnpike Co. 0. Parr, 4 W. & S. 362. Co., 16 Barb. 100. 2 See § 244. 6 Harvey v. Lackawanna & B. R.,47 5 Norwalk v. Blanchard, 56 Conn. Pa. 428. 461. See also Pinch v. Chicago, M. & ' Mt. Washington Road, 35 N. E S. R., 46 Minn. 250 ; Pittsburgh, V. & C. 134. SECT. 262.] CONDEMNATION OP PART OF TRACT. 243 taken, by expending money for the purpose of adapting it to the new conditions. Where such expenditure is necessary for the preservation, not the expansion, of the accustomed use, it should be considered in assessing compensation.^ The case of Tyson v. Milwaukee ^ illustrates an important proposition in respect to the subject in hand. The city graded a street, and became liable under the statute for injuries inflicted upon abutting lots. The plaintiff sued for the amount which it would cost to fill in the lots to a level with the improved street. The claim was denied on the ground that the filling was not necessary in point of law, that is to say, the market value of the lots was not diminished by the work, as the benefit from the improved street offset the injury. But although an owner receives money to pay for the restora- tion of his property, he is not bound to expend it for this purpose.^ Owners of a tract partly condemned frequently demand com- pensation on account of fencing, which they assert is necessary for the protection of the remainder. The demand will be refused where the nature of the public work is such that adjacent land will not be injured by being unenclosed. Thus, compensation should not be allowed for fencing a telegraph right of way.* Again, the property itself may not need the protection of a fence, — for example, where it is unimproved land.^ The cost of fencing may be considered where improved land is thrown open by the construction of a railroad,® or a highway.' But it has been held that where the owners of adjoining tracts are not each obliged to maintain half of the division fence, the con- demnation of one of the tracts does not entitle the owner of the >■ Hartshorn v. "Worcester County, e jjew York & G. L. R. v. Stanley's 113 Mass. Ill ; Thompson v. Keokuk, Heirs, 35 N. J. Eq. 283; Leavenworth, 61 Iowa, 187 ; Karst v. St. Paul, S. & T. & S. R. v. Paul, 28 Kan. 816 ; Pacific T. R., 23 Minn. 401. Coast R. v. Porter, 74 Cal. 261 ; Texas 2 50 Wis. 78. & S. L. R. V. Cella, 42 Ark. 528. But = Chesapeake & O. R. v. Patten, 6 see Alabama & P. R. v. Burkett, 46 W. Va. 147. See Tyson v. Milwaukee, Ala. 569. 50 Wis. 78. ' First Parish, &c. v. Plymouth 4 Lockie v. Mut. Un. Tel. Co., 103 County, 8 Cush. 475; Stone v. Heath, lU. 401. 135 Mass. 561 ; Hagaman v. Moore, 84 5 New Jersey R. v. Suydam, 17 N. J. Ind. 496 ; Butte County !•. Boydston, 64 L. 25 ; Raleigh & A. R. v. Wicker, 74 Cal. 110; Readington v. Dilley, 24 N. J. N. C. 220. L. 209 ; Hanrahan v. Fox, 47 Iowa, 102. 244 COMPENSATION AND DAMAGES. [CHAP. X. other to recover compensation in respect to the maintenance of the whole.-' Where the construction of the work makes it necessary for the landowner to build a retaining wall, the cost may be taken into account.^ Where the statute does not compel a railroad corporation to make farm-crossings, the owner may have the cost of necessary crossings considered in assessing compensation.^ In case access to the premises is obstructed, it has been held that the cost of opening another way may be shown.* § 263. Where a tract is devoted to a mining, manufacturing, or other industry, and the taking of a part necessitates alterations in the plant, or in the manner of working, the additional expense may be considered in assessing compensation.^ In a recent case the plaintiff was the lessee of part of a tract belonging to muni- cipal gas-works. He had erected machinery for distilling the crude tar made by the works, and had contracted with the city to take the daily output. The proximity of the premises to the gas- works was of great advantage, as the tar was drawn from the works directly into the plaintiff's tanks so that there was no expense in obtaining it. The land was condemned by a railroad company which removed the plant. In assessing compensation for the taking of the leasehold, the plaintiff was allowed to show the loss on the machinery, the peculiar value of the premises by reason of their proximity to the works, and the expense in- curred in removing the tar elsewhere in order to perform the con- tract.® Where the occupation of part of a tract destroys some- thing essential to the use which had been made of the whole, it has been deemed proper, in some cases, to consider the cost of 1 Hoag V. Switzer, 61 111. 294 ; Peo- * Brainard v. Missisiqnoi K., 48 Vt. pie V. SHpervisors, 19 Wend. 102 ; Ken- 107. See also Silver Creek Nav. Co. v. nett's Petition, 24 N. H. 139. Mangum, 64 Miss. 682. See Gear v. '^ Patterson v. Boston, 23 Pick. 425 ; Dubuque & S. C. R., 39 Iowa, 23. Buell V. Worcester County, 119 Mass. 6 Kersey «. Schuylkill River, etc. E., 372 ; Cincinnati v. Whetstone, 47 Ohio 133 Pa. 234 ; Baird v. Schuylkill River, St. 196; Price v. Milwaukee & S. P. etc. R., 154 Pa. 459 ; Hannibal Bridge R., 27 Wis. 98. See also Drury v. Mid- Co. v. Schaubacher, 57 Mo. 582 ; Chi- land E., 127 Mass. 571. But see cago, S. & C. R. v. McGrew, 104 Mo, Chambers v. South Chester, 140 Pa. 282. 510. 6 Ehret v. Schuylkill River, etc. E., 3 Atchison & N. E. v. Cough, 29 151 Pa. 158. Kan. 94. See § 215. SECT. 2 64. J CONDEMNATION OF PART OF TRACT. 245 duplicating the thing on the part remaining.^ Thus, the owner of a stock farm, whose training track was destroyed, was given such compensation as would enable him to build a new one.^ The expropriators may offset a claim on account of the destruction of a particular accessory to the use made of the property, by showing that the use may still be subserved by the adoption of other means equally convenient, and not more costly. Thus, where a supply of water is cut off, it may be shown that another can be obtained at less cost.^ But the prop- osition does not hold where the realization of the alternative suggested depends on the co-operation of other parties. Hence, where the land taken is a part of leased premises used by the lessee as a drying ground in connection with his factory, it can- not be shown that the lessor is willing to lease other land for the same purpose at the same rent.* § 264. Courts have refused to allow for various charges and expenses due indirectly to the construction or operation of pub- lic works," such as probable assessments for improvements con- sequent on the opening of a street.® Where the statute declares that it shall be the duty of corpor- ations to construct fences or farm-crossings, or to repair in other ways property injured by their occupation, the owner cannot have compensation assessed on the theory that the expense of construction and repair will fall upon him. If the duty is neglected he may have redress.'' When a railroad corporation is not obliged to fence for some months after construction, it has been held that the owner should be indemnified for the lack of protection in the meanwhile.* 1 Chicago, P. & S. L R. v. Wolf, 137 ' Chicago, M. & S. P. R. v. Balcer, lU. 360. 102 Mo. 553; Williams v. School Dist., 2 New York, L. & W. R., 29 Hun, 1. 33 Vt. 271 ; Philadelphia, W. & B. R. 3 Illinois &S. L. R. «/. Switzer, 117 v. Trimble, 4 Whart. 47; March u. 111. 399. Portsmouth & C. R., 19 N. H. 372. See * New York, W. S. & B. R. v. Bell, also St. Paul & S. C. R. v. Murphy, 28 Hun, 426. 19 Minn. 500 ; Jones v. Seligman, 81 N. 6 Holton V. Milwaukee, 31 Wis. 27. Y. 190 8 Peel V. Atlanta, 85 Ga. 138; Lewis ^ gt. Louis, J. & S. E. v. Kirby, 104 V. New Britain, 52 Conn. 568 ; Antoi- lU. 345. nette St., 8 Phila. 461. See also Cashing V. Boston, 144 Mass. 317. 246 COMPENSATION AND DAMAGES. [CHAP. X. The practice of inserting expenses as special items of com- pensatiou has been appro ved.^ but where the object of inquiry is the depreciation in market value, the cost of restoration is not to be conclusively presumed to represent such depreciation.^ In other cases, however, especially where the object of inquiry is simply the depreciation in market value, the expenses are not to be itemized, but are to be considered merely as burdens which lessen the value.^ Benefits to the Remainder of the Trad. § 265. May losses and disadvantages inflicted upon a tract, part of which is taken, be offset by benefits and advantages con- ferred upon the remainder? The constitutions, statutes, and decisions of the several States so deal with this question as to create an inharmonious body of law. The constitutions of certain States prohibit the consideration of benefits.* In Missis- sippi, benefits are refused consideration on principle, for a rea- son already noted ;^ and the further objection has been made that their realization may be remote and uncertain.^ Where a prohibition against benefits is directed against a particular class, it is to be strictly limited to that class. Hence, under the provi- sion of the California constitution just noted, individuals author- ized to condemn a right of way may have benefits considered.'' The "municipal" corporations mentioned in the same provision mean public, as distinguished from private, corporations, and therefore include counties.^ In some decisions a prohibition 1 Price V. Milwaukee & S. P. R., 27 California, i. 14 ; North Dakota, i. 14 ; Wis. 98. See also Eeadington D. Dilley, Washington, i. 16. Jury not to con- 24 N. J. L. 209. sider any advantage to the owner on - Barnett t>. St. Anthony Falls Co., account of the improvement : Iowa, i. 33 Minn. 265. 18. No henefits on appropriation of ^ Delaware, L. & W. R. v. Eurson, right of way by any corporation : Kan- 61 Pa. 369 ; Pittsburgh, B. & B. R. u. sas, xii. 4 ; South Carolina, i. 23. No McCloskey, 110 Pa. 436; Henry i;. deduction for benefits to any property Dubuque & P. R., 2 Iowa, 288. of the owner : Ohio, i. 19. * No benefits on appropriation of * See § 225. property or right of way by any cor- " Isom v. Mississippi Cent. R., 36 poration : Arkansas, xii. 9. No benefit Miss. 300. on appropriation of right of way by ' Moran v. Ross, 79 Cal. 549. a corporation other than municipal: ^ San Jose & A. R. t;. Mayne, 83 Cal. 566. SECT. 266.] CONDEMNATION OF PAET OE TfiACT. 247 against benefits is thus construed. That part of the tract appro- priated is to be paid for at its market value, without deduction on account of any benefit to the residue. The claim for injury to the residue is not viewed as a claim for compensation for a taking, and therefore such injury may be offset by benefits.^ In other decisions the prohibition in question is held to affect the entire tract, but compensation is declared to be the difference between the market value of the tract before and after condemna- tion.^ This ruling seems open to the criticism that an accurate determination of the difference in market value before and after condemnation necessarily takes into account resulting advantages, as well as disadvantages. This criticism has been noted, but dismissed with the rather unsatisfactory statement that juries do not generally consider benefits when they ascertain market value in this way.^ The practical result of this method of val- uation seems to be that, while evidence of benefits cannot be received, the tribunal of assessment may be in fact influenced by evident advantages. In most of the other States benefits are allowed in some form or other, unless they are denied or limited by statute. § 266. General Requisites of a Benefit. — A benefit is an advantage conferred upon property by a public work in behalf of which part of the property has been taken. Hence, where a railroad embankment levees a tract, no part of which was con- demned, there is no benefit. The owner cannot recover for the loss of the advantage caused by the substitution of a bridge for the embankment.* The fact that the property in question has been benefited by improvements made by parties other than the expropriators, does not enable the latter to set off such benefits against the burdens for which they are responsible.^ A benefit is allowed on the assumption, of course, that it is to be actually 1 Augusta V. Marks, 50 Ga. 612; 2 Henry o. Dubuque & P. E., 2 Cincinnati & S. R. v. Longworth, 30 Iowa, 288. Ohio St. 108 ; Shipley v. Baltimore & ^ Leroy & "W. E. v. Eoss, 40 Kan. P. R., 34 Md. 336 ; Page v. Chicago, 598. M. & S. P. R., 70 111. 324 ; Green v. * Koch b. Delaware, L. & W. E., 53 Chicago, 97 111. 370; Harwood v. N. J. L. 256. See also Wabash, S. L. Bloomington, 124 111. 48; Oregon Cent. & P. R. v. McDougall, 126 111. 111. R. V. "Walt, 3 Or. 91 ; Woodfolk v. Nash- ^ Bnrcky v. Lake, 30 111. App. 23. Tille & C. R., 2 Swan, 422. 248 COMPENSATION AND DAMAGES. [CHAP. X. conferred.^ Hence, where part of a tract was taken for a canal, and the advantage of a waterway to the remainder was held to offset the damage, the fact that the canal was never completed enabled the owner to regain possession, on the ground that his land had been taken without compensation.^ No benefit is to be considered unless it affects the very tract in question.^ Thus, where one owned three lots, one of which was included within the lines of a projected street, and the remaining lots were sold at an advance in anticipation of the opening of the street, the city, on actually taking the lot, was not allowed to show the benefits to the other lots.* "Where one owning a tract about to be crossed by a street deeded it to his wife, in order that it might be valued without taking into account benefits to adjacent land which he owned, the court declared this fact to be irrelevant. Compensation was assessed with reference to the single tract.^ As the landowner is entitled to have his compensation assessed in respect to the injurious effect of the undertaking upon the whole tract,^ the expropriators may be allowed to prove benefits within the same area.'^ In allowing benefits, the tribunal is not restricted to the consideration of the effect produced upon a tract by the section of the public work located upon it, but may con- sider the work as a whole.^ § 267. The benefit must be one the permanency of which can be fairly assumed, not an advantage depending on the will of the expropriator,^ as, for example, a farm-crossing over a railroad, existing by the favor of the company.^" Where land is crossed 1 See Hutt v. Chicago, 132 III. See also Detroit v. Chaffee, 68 Mich. 352. 632. 2 Kennedy v. Indianapolis, 103 U. S. " See § 136. 599. ' Shawneetown u. Mason, 82 lU. 3 Meacham v. Fitchburg R., 4 Cash. 337. 291 ; Buffalo Bayou, B. & C. R. v. Ferris, » Springer v. Chicago, 135 El. 552 ; 26 Tex. 588 ; Todd v. Kankakee & I. R. Bohm v. Met. El. R., 129 N. Y. 576 ; R., 78 111. 530 ; Pittsburgh, F. W. & C. Bookman v. New York El. R., 137 N. Y. R. V. Reich, 101 111. 157 ; Philadelphia 302. See also Burk v. Simonson, 104 & R. R. V. Gilson, 8 Watts, 243; Ind. 173. Paducah & M. R. o. Stovall, 12 9 See Pittsburgh, V. & C. R. v. Rose, Heisk 1. 74 Pa. 362. * Whitaker u. Phoenixville, 141 Pa. w Old Colony R. v. Miller, 125 Mass. 327. 1 ; Sigafoos v. Minneapolis, L. & M. E., 5 Chaffee's Appeal, 56 Mich. 244. 39 Minn. 8. SECT. 268.] CONDEMNATION OP PART OP TEACT. 249 by a railroad, evidence of a reduction of freight rates is inadmis- sible, for there is no assurance that the reduced rates will be maintained.-' It appears, however, that a benefit is conferred where a canal corporation permits the landowner to use surplus water, and reserves the right to revoke the permission when the needs of the canal will not permit diversion.^ § 268. Does the fact that a special benefit has been con- sidered in assessing compensation, give the recipient a right of property in its continued existence? Not if the benefit in question is conferred by the public use itself, for it has been shown * that a private person cannot have an interest in the continuance of a public work. Hence, a street may be vacated, without compensation to the owner of the fee, for the loss of the benefits with which he was charged on its opening.* In such case, the owner is repossessed of his property, and is certainly in no worse position than he who has paid a special tax for the promotion of a public work on neigh- boring land, and cannot have it refunded on the abandonment of the work,^ It has been held, however, that where the special benefit is not dependent on the maintenance of the undertaking it may survive abandonment. Thus, where part of a tract was taken for a canal, and the remainder was leveed by an embank- ment built on adjoining land, the benefit was considered in assessing compensation. It was held that, after the abandon- ment of the canal, the embankment could not be freely removed.^ As a benefit must not depend on the will of the expropriators,^ it follows that, as long as they retain the property condemned, they cannot diminish the owner's compensation by withdrawing benefits in consideration of which the compensation was assessed. It has been held that where land is taken in fee and general benefits are considered, it may be put to other uses, or sold, ' Reading & P. R. w. Balthaser, 119 ^ gee Brooklyn Park Comm. u. Pa. 472. See also Drury v. Midland R., Armstrong, 45 N. Y. 234 ; Stoiit v. 127 Mass. 571. Noblesville, etc. Co., 83 Ind. 466 ; Chi- 2 Miller's Case, 2 Hill, 418; Dermott cago v. Union Building Ass., 102 IIL V. State, 99 N. Y. 101. 379. 2 See § 217. " Burk v. Simonson, 104 Ind. 173. ' Kean v. Elizabeth, 54 N. J. L. 462. ' See § 267. Compare Peaisall v. Supervisors, 74 Mich. 558. 250 COMPENSATION AND DAMAGES. [CHAP. X. without liability on account of loss of benefits.^ A benefit once allowed cannot be reasserted in a further proceeding to con- demn. A part of a tract was taken for the approach to a bridge, and, in assessing compensation, the benefit to the remainder from the opening of the bridge was duly considered. An alter- ation of plan necessitated the condemnation of a second section of the tract. It was held that the benefit in question could not be considered again.^ § 269. General Benefits. — A general benefit is an advantage not peculiar to the remainder of a tract part of which is taken, but conferred by the public work upon all property witliin range of its utility. It is not to be confounded with that anticipation of future benefit which, in some cases, is accounted a factor of present market value,^ but is an advantage supposed to be real- ized from a completed work. The allowance of general benefits is sometimes directed by the statute, as, for example, where arbitrators are instructed to consider the increased value given to property by reason of the "construction of the railway'' over it.* General benefits have been approved on principle, and seem to be considered wherever a corporation is permitted to show a benefit to the tract in question which is enjoyed by property in the vicinity.^ Thus, it has been decided that where the opera- tion of a railway in a street benefits abutting property the fact may be shown, although the net benefit to property on neighbor- ing streets may be greater.^ It is argued, in justification of the allowance of general benefits, that the landowner has no right to complain of a valuation which is strictly fair as to his land, altliough it is based in part upon advantages which are in fact conferred also upon his neighbor.'' Evidence of general benefits is frequently excluded on prin- 1 Whitney v. State, 96 N. Y. 240. 6 Bohm f. Met.EI. E., 129 N. Y.576. See Burbank v. Fay, 65 N. Y. 57. In this case Peckham, J., doubts the pro- 2 McElheny v. McKeesport & D. priety of distinguishing between special Bridge, 153 Pa. 108. and general benefits. 8 See § 248. ' See Youug v. Harrison, 17 Ga. 30; ■• Credit Valley R. v. Spragge, 24 Henderson & N. R. v. Dickenson, 17 B. Grant's Ch. (Out.) 231. Mon. 173. '' New Orleans Pacific R. v. Gay, 31 I/a. An. 430. SECT. 270.] CONDEMNATION OP PAET OF TRACT. 251 ciple.-' Heuce, it may not be shown that the property in ques- tion shares in a general advance of property in the locality caused by the construction of a railroad,^ or a highway.^ The argument for disallowing general benefits is that otherwise one whose property is taken for a public use would be in effect forced to pay for an advantage which his neighbor would freely enjoy, the amount paid being, of course, the value of the general benefit. § 270. Special Benefits. — A special benefit is an advantage conferred upon a tract by reason of the maintenance of a public work upon it, — an advantage differing in kind, or at least in great degree, from a general benefit. But it is to be noted, that an advantage is none the less a special benefit because it is conferred upon all the tracts of land upon which the public work is con- structed.* Indeed, a benefit may be special, although it is con- ferred also upon land not taken. Thus, where a street is widened by the condemnation of a strip of land along one side, the owner cannot complain because his remaining land is charged with a benefit which the widening necessarily confers upon lots on the opposite side.^ The most marked special benefits are those which improve the physical condition of the land, for example, filling up a canal,® raising a water level, so that ice may be har- vested,^ making a ditch into which drains may be run,^ and open- 1 Whitman v. Boston & M. E., 7 Va. 693. See also Eagle v. Charing Allen, 313 ; Whitcher v. Benton, 50 Cross R., L. R. 2 C. P. 638. N. H. 25. 3 Mangles v. Freeholders, 55 N. J. L. 2 Meacham v. Pitchbnrg R., 4 Cush. 88 ; Trinity College v. Hartford, 32 291; Setzler v. Pennsylvania S. R., 112 Conn. 452; Beekman w. Jackson County, Pa. 56; Wilmington & W. R. v. Smith, 18 Or. 283; Daugherty v. Brown, 91 99 N. C. 131 ; Winona & S. P. R. v. Mo. 26 ; Arbrush v. Oakdale, 28 Minn. Waldron, 11 Minn. 515; Washburn u. 61. Milwaukee & L. W. E., 59 Wis. 364; * Donovan v. Springfield, 125 Mass. Adden «. White Mts. R., 55 N. H. 413 ; 371. Shipley v. Baltimore & P. R., 34 Md. « Abbott v. Cottage City, 143 Mass. 336; Adams ». St. Johnsbury & L. C. 521. See also Allen v. Charlestown, R., 57 Vt. 240 ; Wyandotte, K. C. & N. 109 Mass. 243. R. V. Waldo, 70 Mo. 629 ; Chicago, K. « Whitman v. Boston & M. R., 3 & N. R. 0. Wiebe, 25 Neb. 542 ; Sullivan Allen, 133. i). North Hudson County E., 51 N. J. L. ' Paine v. Woods, 108 Mass. 160. 518 ; Packard v. Bergen Neck R., 54 N. 8 Lipes v. Hand, 104 Ind. 503. See J. L. 553; Railroad Co. v. Tyree, 7 W. also Spear v. Drainage Comm., 113 HI 632. 252 COMPENSATION AND DAMAGES. [CHAP. X, ing a public sewer, and thereby relieving a landowner from the duty of maintaining an ancient drain for the benefit of adjacent lands.^ § 271. The most common special benefit is that of access to a tract afforded by the construction of a highway over it.^ But it has been held that benefits should not be considered where the road is private.^ Although an ordinary steam railroad pass- ing over a tract does not usually benefit it,* it has been held that the building of a station near the tract is a special benefit,* though the probability of the erection of a station has been deemed irrelevant.^ The feasibility of connecting industrial works upon the tract with the railroad has been considered a benefit." It appears that a tract may be specially benefited by opening a canal through it,^ and by laying a pipe line for natu- ral gas from which the owner may be supplied.^ Where part of a tract was taken in relocating a street, the probability that a part of the old street, lying between the new one and the re- mainder of the tract, would be joined to the latter, was consid- ered a special benefit.^" Benefits that are remote or speculative should not be con- sidered.'^ Thus, where land owned by a railroad company is taken for a highway, the possible increase of travel on the rail- road by reason of the opening of the highway is not a benefit.'^ Evidence that the construction of a railroad will afford a market 1 French v. Lowell, 117 Mass. 363. Paul, M. & M. R., 33 Minn. 210. But 2 Trosper v. Comm., 27 Kan. 391 ; see Drury v. Midland R., 127 Mass. 571. Hire v. Kniseley, 130 Ind. 295. ' Whitney v. State, 96 N. Y. 240; 3 Crater v. Fritts, 44 N. J- L. 374. Eldridge v. Binghamton, 120 N. Y. 309. See also Schehr v. Detroit, 45 Mich. 626. See also Pennsylvania & N. Y. R. u. * See § 269. Brunnell, 81 Pa. 414. 5 Shattuck V. Stoneham Branch E., ^ See Fisher v. Baden Gas Co., 138 6 Allen, 115. See also Bookman y. New Pa. 301. York El. R., 137 N. Y. 302 ; Pittsburgh M Tingley v. Providence, 8 R. I. 493. & L. E. R. V. Robinson, 95 Pa. 426. " Friedenwald v. Baltimore, 74 Md. But see Washburn i^. Milwaukee & L. 116; Drury r. Midland R., 127 Mass. W. R., 59 Wis. 364. 571. 6 Brown v. Providence, W. & B. R., 12 old Colony & F. E. R. v. County 5 Gray, 35. of Plymouth, 14 Gray, 155; States. ' Pittsburgh & L. E. E. v. Robinson, Shardlow, 43 Minn. 524. See also 95 Pa. 426. See also Ranlet v. Concord Bridgeport v. New York & N. H. R., 36 R., 62 N. H. 561 ; Colorado Cent. R. v. Conn. 255. Humphreys, 16 Col. 34; Russell v. St. SECT. 273.] CONDEMNATION OP PART OP TRACT. 253 for timber oa the tract suitable for cross ties, etc., has been re- jected,^ and so has evidence that a general market will be opened for timber and other natural resources of the land.^ § 272. Manner of AUo-ro-ing Benefits. — There are two well- defined methods of allowing benefits. The part of the tract actually occupied is valued by itself, and, necessarily, without reference to benefits. Then, upon consideration of benefits and injuries, the decrease, if any, in the market value of the remain- der is determined, and added to the first sum. The total amount is the compensation due in respect to the whole tract.^ Accord- ing to the second method, the tract is valued as a whole, and if benefits are found they offset not only injuries to the remainder, but the loss of the part occupied.* In New York the State or a political corporation may estimate benefits in respect to the whole tract,^ but it appears that if a railroad corporation is the actor it must pay full value for the part taken, and can assert benefits only in the valuation of the remainder.^ § 273. The allowance of benefits may effect, in some cases, so just a balance between advantage and disadvantage as to reduce pecuniary compensation to the vanishing point. This logical result is accepted by the courts whether the benefits are set off against the whole tract, or against the remainder only,^ though 1 Childs V. New Haven & N. Co., 104. See also "Wichita & W. R. u. 133 Mass. 253. But see Haislip v. Kuhn, 38 Kan. 675. Wilmington & W. R., 102 N. C. 376. * Setzler v. Pennsylvania S. V. R., 2 Adden v. White Mts. E., 55 N. H. 112 Pa. 56 ; Long v. Harrishurg, 126 413 ; Adams u. St. Johnsbury & L. C. Pa. 143. See also Beekman v. Jack- R. 57 Vt. 240. But see Chicago, S. F. son County, 18 Or. 283; Sullivan u. & C. R. V. McGrew, 104 Mo. 282. North Hudson County R., 51 N. J. L. 8 Dulaney v. Nolan County, 85 Tex. 518. 222 ; Evansville & K. E. v. Charlton, ^ Genet v. Brooklyn, 99 N. Y. 296 ; 33 N. E. Rep. 129 (Ind. 1893) ; At- Eldridge v. Binghamton, 120 N. Y. lanta v. Georgia Cent. R., 53 Ga. 120 ; 309. Chicago, K. & N. R. v. Wiebe, 25 ^ Wa,shington Cemetery v. Prospect Neb. 542 ; Todd v. Kankakee & I. R. Park & C. I. R., 68 N. Y. 591 ; Newman R., 78 111. 530; Hyslop v. Pinch, w. Met. El. R., 118 N. Y. 618 ; Bohm w. 99 111. 171 ; MuUer v. South. Pacific Met. El. R., 129 N. Y. 576. Branch R., 83 Cal. 240; Shipley v. ' Chesapeake & 0. Canal v. Key, Baltimore & P. R., 34 Md. 336 ; Bohm 3 Cranch C. C. 599 ; Livingston v. New V. Met. El. R., 129 N. Y. 576; Book- York, 8 Wend. 85; Betts w. Williams- man V. New York El. R., 137 N. Y. burg, 15 Barb. 255; Trinity College 302; Mitchell v. Thornton, 21 Gratt. i. Hartford, 32 Conn. 452; Burkam v. 25J: COMPENSATION AND DAMAGES. [CHAP. X. in the latter case the owner receives money, of course, for the part appropriated. May benefits be estimated higher than injuries, so that the property-owner is not only denied pecuniary compensation, but is made a debtor to the expropriators for the value of the net benefit ? Certainly not, where the expropriator is a private per- son or corporation, for the suni due would be a forced contribu- tion — a tax for private purpose. It may be regarded therefore as settled, that under no circumstances can an owner be obliged to pay money to a private corporation as the result of the condem- nation of his property.! But where the state or a political cor- poration condemns laud for a use for which the power of special taxation may be exerted, the tax may be laid to the extent of the benefit.^ In this case the condemnation of land may be followed by the pecuniary indebtedness of the owner to the expropriator, but the indebtedness is not referable to condemnation, but to tax- ation.^ It has been held, that where land is taken for a street the assessed compensation cannot be retained by the city and deducted from the tax for benefits.* COMPENSATION FOR PROPERTY DAMAGED OB INJURIOUSLY AFFECTED. § 274. Where property untouched by the public work sus- tains an injury for which there is a common law remedy," the measure of damages is usually that which obtains in an action of trespass.^ But where compensation is prescribed for property damaged, or injuriously affected, and a mode of assessment is provided, it is usually intended that compensation shall be assessed but once, and shall cover all future damage from the cause in question. This is the construction placed upon the Lands Clauses Act,^ and upon similar statutes in this coun- Ohio & M. R., 122 Ind. 344 ; "Wilming- 85 ; Genet v. Brooklyn, 99 N. Y. ton & W. R. e/. Smith, 99 N. C. 131 ; 296 ; Terry v. Hartford," 39 Conn. 286. Jackson County v. Waldo, 85 Mo. 637. * McKusick v. Stillwater, 44 Minn. See also Bohm v. Met. El. R., 129 N. Y. 372. See Fink v. Newark, 40 N. J. L, 576. 11. 1 See Wilmington & W. R. v. Smith, 5 gee §§ 146-152. 99N. C. 131. 8 See §311. 2 See § 25. 7 See Holliday v. Wakefield (1891), ' Livingston ». New York, 8 Wend. A. C. 81, Lord Halsbury. See also SECT. 276.] COMPENSATION IN PAETICULAK CASES. 255 try.^ And it has been held that, even if a statutory remedy is not provided, full compensation may be recovered in a common- law action.2 The injuries under this head are noted elsewhere,^ and it is only necessary to say here, that the measure of com- pensation is, as a rule, their depreciatory effect on the value of the property.* Where the legislature imposes a peculiar liability upon the public agent,^ compensation must be assessed with reference to it. Thus, where a statute declared that the owner of land taken for a street should have full indemnity for the trouble and expense due to the proceedings, evidence of expenses incurred in employ- ing counsel, and conferring with the mayor of the city, was admitted, but evidence of mental worry was held remote.^ COMPENSATION IN PARTICULAR CASES. § 275. Personal Property. — The subjection of personal prop- erty to the eminent domain has been considered.' It is only necessary to add, that if such property be condenmed, it should be appraised at the market price of similar property, or, in case the object is one of a limited class or unique, expert evidence of its value should be obtained. § 276. Materials. — Where materials for construction are con- demned,^ compensation must be assessed with reference to their condition. Where the materials are in a natural state, they are not to be specially valued. Thus, where land is condemned for the stone in it, the quarry price of stone is irrelevant. It should be valued as land containing stone.^ It has even been held that in a region where there is no general market for gravel, land from which gravel is taken for ballasting a railroad should be valued as farm land.^" But where the materials are in marketable President, etc. of Colac v. Summerfield & R. 6. R. v. Downie, 82 Tex. 383. (1893), A. C. 187. See Gregg v. Baltimore, 56 Md. 256. ' See § 362. 6 gee § 158. 2 See § 309. 6 Whitney v. Lynn, 122 Mass. 338. 8 See §§ 153-157, ' See §§ 81, 253. * Streyer v. Georgia Southern & F. ^ gee § 77. R., 90 Ga. 56; Montgomery v. Town- ' Water Comm. v. Lawrence, 3 Edw. send, 80 Ala. 489 ; Peun Mut. Life Ins. Ch. 552. Co. V. Heiss, 141 111. 35 ; Chambers v. ^ Vezina v. The Queen, 17 Can Sup. South Chester, 140 Pa. 510 ; Ft. Worth Ct. 1. 256 COMPENSATION AND DAMAGES. [CHAP X. shape, or developed, a different rule prevails. Thus, where a quarry is opened, the stone should be specially valued.^ So, materials should be specially valued when they have been actu- ally taken out.^ § 277. Occupation of Ways. — It has been shown that where a way, especially a railroad, is crossed by another way, there is a taking of property, or not, according as the state in author- izing the prior way has not, or has, reserved the right to cross it with another way without compensation.^ Assuming that there is a taking of property, what are the elements of compensation ? It has been decided that an allegation of injury to the franchise of operating the railroad is without weight ; * and indeed this conclusion is the consequent of the proposition that a right of way may be crossed without special authority ,° for such authority is requisite in order to justify the invasion of a franchise. Hence, compensation has been refused on account of the increased incon- venience and expense in operating the railroad, such as stopping trains at the crossing,^ maintaining a watchman," ringing a warn- ing bell,^ operating gates.^ Nor can compensation be allowed on account of the increased risk of accident. i" It has been held, that where a railroad is crossed by a railroad or other way, com- pensation should be assessed in respect to the land.^^ On the other hand, the land has been eliminated from the assessment on the ground that it is not really appropriated, but is used in common with the prior corporation, which is damaged only as far as its exclusive use is impaired.^^ Substantial justice may be done under the latter rule, in most cases, for the value of the 1 See Water Comm. v. Lawrence, 3 ^ Old Colony & F. E. R. v. Plymouth Edw. Ch. 552. County, 14 Gray, 155. 2 Philadelphia cSb R. R. v. Gilson, 8 " Boston & A. R. u.Camhridge, 159 Watts, 243 ; Vermont Cent. R. v. Bax- Mass. 283. ter, 22 Vt. 365. i" Old Colony & P. R. R. v. Plymouth 8 See § 161. County, 14 Gray, 155; Bridgeport v. * Lake Shore & M. S. R. v. Cin- ISTew York & N. H. R., 36 Conn. 255. cinnati, S. & C. R., 30 Ohio St. 604. " Old Colony & F. R. R. v. County 6 See § 179. of Plymouth, 14 Gray, 155; Morris 6 Peoria & P. R. v. Peoria & F. R„ & Essex R., 9 N. J. L. J. 75, Depue, J. 105 111.110. See also Lockport & B. K., 19 Hun, ' Massachusetts Cent. R. v. Boston 38. C. & F. R., 121 Mass. 124. But see Flint i^ Flint & P. M. R. v. Detroit & B. C. & P. M. R. V. Detroit & B. C. R., 64 R., 64 Mich. 350. Mich. 350. SECT. 278.] COMPENSATION IN PAKTICULAR OASES. 257 land is usually small ; but if a railroad corporation has paid a large price for a section of the way which is crossed by another railroad, it seems unfair that the latter corporation should not pay something for land, which, but for the prior location, it would have been obliged to condemn at its full value. Compen- sation has been allowed for an interference with the business of the corporation whose way is crossed.^ § 278. Where two ways, one of which is a railroad, cross each other, permanent improvements are usually necessary in order to make the crossing safe. In some cases, the police power is exerted to compel the proprietors of each way to share the cost of the necessary works.^ In other cases, a different course is pursued. Where a highway is laid across a railroad, com- pensation has been allowed for the erection of necessary fences, cattle-guards, and gates.* Where a railroad or other corporation is authorized to use the plant of another corporation, and the franchise of the latter is thereby invaded,* compensation should be assessed according to the principles which govern the valuation of franchises.^ Where a franchise is not invaded, compensation has been assessed in the form of rent, — either a gross sum,® or so much per car per mile.'^ In Metropolitan Eailway Company v. Quincy Eailway Company,^ the court approved the compensation assessed by the commissioners, which was stated to be " that portion of the profits from passengers carried over the whole or part of both roads, which is derived from carrying them on the road of the Metropolitan Eailway Company, or rightly belongs to the busi- ness of that road, having regard to the capital and work contrib- uted by each company in the transportation ; and also the entire 1 Chicago & W. I. R. y. Englewood, 633 ; Kansas City E. v. Jackson County, etc. R., 115 111. 375. 45 Kan. 716. ■' Lake Shore & M. S. R. v. Cincin- * See § 167. 6 gee § 244. nati, S. & C. R., 30 Ohio St. 604 ; New ^ Louisville City R. v. Cent. Pass. E., York & N. E. R. v. Waterbury, 60 87 Ky. 223. Conn. 1. See § 15. ' Cambridge R. i'. Charles River R., ' Comm. V. Mich. Cent. R. 90 Mich. 139 Mass. 454. See Canal & C. R. 385; Old Colony & F. R. R. v. County v. Crescent City R., 41 La. An. 561. of Plymouth, 14 Gray, 155 ; City of 8 12 Allen, 262. Kansas v. Kansas City Belt R., 102 Mo. 17 258 COMPENSATION AND DAMAGES, [CHAP.^X. receipts from passengers carried wholly on that road, allowing to the Quincy Railway Company only the cost of transportation, which must of course be held to include an allowance for the interest on the capital invested in the horses and cars used by that corporation in such transportation of passengers." INTEREST. § 279. When property is taken without prepayment of comv pensation, there is usually some delay in payment. The delay may be that inseparable from the ascertainment of the amount^ or it may be due to the neglect of the expropriators to press the proceedings. In either case, the delay must be compensated for by interest, which thus becomes a part of the award.^ Sub- stantially the same ruling has been made with respect to com- pensation under the Lands Clauses Act. The promoters are in the position of an ordinary purchaser under a contract of sale. They are chargeable with interest from the time when they might have prudently taken possession.^ Where a jury have been instructed to compute interest on the compensation, and they return a verdict for a gross amount, it has been presumed that interest is included.^ Where compensation is to be assessed at the instance of the owner, and he applies for assessment within the time limited, but fails to press his suit for many years, he may recover interest notwithstanding his delay, for the corpora- tion might have brought the suit to trial.* It has been decided, that a corporation succeeding to another through foreclosure and reorganization, is only responsible for interest on unpaid compensation from the date of its possession.^ But it has been held, elsewhere, that the successor corporation should be charged with interest from the original taking, on the 1 Parks V. Boston, 1.5 Pick. 198; N. Y. 123. See Norris k. Baltimore, 44 Old Colony E. v. Miller, 125 Mass. I ; Md. 598. Delaware, L. & "W. R. v. Burson, 61 2 Piggott v. Gt. West. E., 18 Ch. D. Pa. 369 ; Pennsylvania S. V. R. v. 146. Ziemer, 124 Pa. 560 ; Cincinnati v. 8 Diedrich v. Northwest Union E., Whetstone, 47 Ohio St. 196; Bangor 47 Wis. 662. & P. R. V. McComb, 60 Me. 290. See < Drury v. Midland R., 127 Mass. also Noble v. Des Moines & S. P. R., 61 571. Iowa, 637 ; Devlin v. New York, 131 ^ Adams u. St. Johnsbury & L. C. E., 57 Vt. 240. SECT. 281.J INTEREST. 259 broad ground that this is a part of the compensation, without which property cannot be acquired for the public use.^ § 280. Where the landowner is left in possession for a time after the date of valuation, the possession has been deemed equivalent to interest.^ In other decisions possession is not deemed equivalent to interest, as it is permissive only, and does not carry the right to improve the property save at the posses- sor's risk.^ The best rule is that which does not arbitrarily make possession equivalent to interest, but allows interest from the date of valuation, and reduces the amount by the estimated value of the possession.* Where the owner appeals unsuccess- fully from the award he cannot claim interest for the additional delay, for it is caused by his mistaken appeal.^ But an unsuc- cessful appeal by the owner will not estop him from claiming additional interest if the corporation has appealed also.^ Where the owner's appeal results in an increased award, he has been allowed interest on the new award from the same date as that from which interest began upon the award appealed fromJ Where compensation, paid into court pending appeal, was with- drawn by the owner on bond, and the award was finally reduced, the corporation was allowed interest on the difference.^ § 281. As a rule the award bears interest until paid, unless indeed the delay is trifling,^ or is due to the action of the owner.'" 1 New York & G. L. R. u. Stanley's & W. R., 56 Wis. 318; Plum v. Kansas Heirs, 35 N. J. Eq. 283. See also Drury City, 101 Mo. 525. See also XJniacke v. I,. Midland R., 127 Mass. 571. Chicago, M. & S. P. R., 67 Wis. 108. .. 2 South Park Coram, v. Dunlevy, 91 6 Metier v. Easton & A. R., 37 N. J. 111. 49 ; New York & B. Bridge v. Clark, L. 222 ; Reisner v. Union Depot, etc. 137 N. Y. 95. See also Hamersly v. Co., 27 Kan. 382. New York, 56 N. Y. 533 ; Donnelly v. ^ Metier j:. Easton & A. R., 37 N. J. Brooklyn, 121 N. Y. 9 ; Stewart v. L. 222. County, 2 Pa. 340 ; Hilton v. St. Louis, ' Hartshorn v. Burlington, C. R. & 99 Mo. 199 ; Shoemaker u. United N. R., 52 Iowa, 613 ; Selma R. & D. R. States, 147 U. S. 282. v. Gammage, 63 Ga. 604 ; Sioux City R. 3 Philadelphia v. Dyer, 41 Pa. 463. v. Brown, 13 Neb. 317. See also Old Colony R. v. Miller, 125 8 Watson v. Milwaukee & M. R., 57 Mass. 1. Compare Norris v. Philadel- Wis. 332. phia, 70 Pa. 332. 9 Scott v. St. Paul & C. R., 21 Minn. * Metier v. Easton & A. R., 37 N. J. 322. L. 222 ; Fink v. Newark, 40 N. J. L. 11 ; " See Philadelphia, W. & B. R. u. Warren v. First Division S. P. & P. R., Gesner, 20 Pa. 240. 21 Minn. 424 ; West v. Milwaukee, L. 260 COMPEKSATION AND DAMAGES. [CHAP. X. But it has been held that the legislature need not compel expro- priators, especially political corporations, to tender the amount due, but may require payment only on demand. In such case, interest begins to run from the demand,^ and, if on demand the principal only is tendered and accepted, interest cannot be afterwards recovered, though the acceptance was under protest.^ It has been decided also, that where the expropriators have a reasonable time after the ascertainment of compensation within which to freely discontinue or proceed,''' interest cannot be claimed if an election to appropriate be made within the time.* COSTS. § 282. It seems to be an imperative deduction from the principle that compensation must be paid for property taken for public use, that in no case shall the owner be compelled to pay the legal costs voluntarily incurred by the expropriators in proceedings to condemn. It has been decided that even where expropriators appeal from the award and obtain its reduc- tion, they must pay their costs, as the appeal is but a continu- ation of the original proceeding instituted by them to determine their rights and liabilities.^ But there seems to be no objection, on principle, to compelling the owner to pay all the costs of an appeal which he has prosecuted without success,^ and this course has been approved, not only where the owner is the sole appellant,' but where the expropriators appeal also.* Where proof of the public utility of a proposed work must precede condemnation,^ it has been held that an owner who contests the question of utility unsuccessfully must pay all the costs of litigation. i** 1 Barnes v. New York, 27 Hun, 236. « See New York, W. S. & B. E., 94 See also Beveridge v. Park Coram., 100 N. Y. 287. 111. 75. '' Ranlet v. Concord R., 62 N. H. 561 ; 2 Cutter V. New York, 92 N. Y. 166. Hamlin v. New Bedford, 143 Mass. 192. 8 See § 198. s Washburn v. Milwaukee & L. W. » Norris v. Baltimore, 44 Md. 598. R., 59 Wis. 364 ; Metier v. Easton & A. 6 New York, W. S. & B. R., 94 N. Y. R., 37 N. J. L. 222. 28''. But see Leake v. Selma R. & D. ^ gee § 326. R., 47 Ga. 345 ; Noble v. Des Moines & i' Senaker v. The Justices, 4 Sneed, S. L. R., 61 Iowa, 637. 116 ; Folmar v. Folmar, 71 Ala. 136. SECT. 284.] COSTS. 261 § 283. The French Code prescribes that where the compensa- tion assessed by the jury does not exceed the offer made for the property, those who have refused the offer shall pay the costs of the proceedings to condemn.^ Less favorable to the expro- priators is the provision in the Lands Clauses Act,^ that where the compensation assessed is not greater than that offered, each party shall pay " one-half of the costs of summoning, impanel- ling, and returning the jury, and of taking the inquiry and recording the judgment thereon, in case such verdict should be taken." This clause has been so strictly construed that where the owner refused a sum which covered certain costs, and obtained a smaller sum on an assessment, he was yet allowed costs, because something more than compensation had been offered.^ The foreign legislation cited is certainly equitable, for the event proves that formal proceedings were not in fact neces- sary for the protection of the owner's interest. But it has been held in this country that, although the offer exceed the compen- sation assessed, the owner cannot be charged with the costs of the expropriators.* § 284. To whom should the owner's costs be charged ? It has been held, that compensation includes the costs neces- sarily incurred by the owner in fairly presenting his side of the issues raised by the effort to condemn his property.^ But, as a rule, the owner's costs are viewed from the common-law standpoint, and are not chargeable to the expropriators,^ unless otherwise ordered by the condemnation act,^ by a general act allowing costs in special proceedings,^ or by a general act in respect to costs, the provisions of which are sufficiently broad 1 Art. 40. Sutlift, 17 Neb. 423; San Francisco u. 2 Sect. 51. Collins, 98 Cal. 259. 8 Balls V. Met. Bd. of "Works, L. E. « Metier v. Easton & A. E., 37 N. J. 1 Q. B. 337. L. 222; Giffordi). Dartmouth, 129 Mass. * Southwestern Land Co. v. Ditch 135. See also Philadelphia, G. & N. E. Co., 18 Col. 489 ; Cherokee v. Town Lot, v. Johnson, 2 Whart. 275. etc. Co., 52 Iowa, 279. See also Ulster ' Childs v. New Haven & N. Co., 135 & D. E. V. Gross, 31 Hnn, 83. Mass. 570 ; Pennsylvania E. v. Keiffer, ^ Dolores, etc. Canal v. Hartman, 17 22 Pa. 356 ; Owners, etc. «. Albany, 15 Col. 138. See also San Diego Land, Wend. 374. etc. Co. V. Neale, 88 Cal. 50 ; Johnson v. ' Eennselaer & S. E. v. Davis, 55 N. Y. 145. 262 COMPENSATION AND DAMAGES. [CHAP. X. to cover condemnation proceedings. It has been held, that where it is provided that the losing party shall pay costs, the corporation shall pay, if the owner establishes his claim to compensation, even though the amount be reduced on the appeal of the corporation.'^ Whatever be the rule as to the costs of the expropriators on an unsuccessful appeal by the owner, the latter is not entitled to recover his own.^ Assuming that the owner is entitled to recover his costs, these should not include counsel fees,2 unless the statute otherwise provides.* TIME OF VALUATION. § 285. The value of the property may be viewed from two standpoints, its value in anticipation of the undertaking, and its value without this adventitious circumstance. We have already seen that in no case can expropriators allege a depreciation in value due to the anticipation of the undertaking.® Therefore, the property should be valued as of a date anterior to its depre- ciation from this cause. We have seen, also, that in some cases the owner has been allowed to show an enhancement in value due to the projection of the undertaking in question.® It has been decided that the legislature may cut off this unearned in- crement by fixing a date for valuation anterior to its realization. Thus, it may be enacted that, in condemning land for a park, it shall be appraised at its value before the projection of the park has enhanced it.^ Putting aside the consideration of enhancement due to the undertaking, as controlling the time of valuation, we find this rule of wide application in cases where compensation subsequent is assessed. Property is to be valued as of the time when the right to compensation vests, — when the property is taken.^ In 1 Bangor & P. R. v. Chamberlain, 60 ^ See § 248. Me. 285. 6 See § 248. 2 Morse, Petitioner, 18 Pick. 443. ' May v. Boston, 1.58 Mass. 21. See 3 San Jose & A. R. w. Mayne, 83Ca]. also Shoemaker v. United States, 147 566 ; Minneapolis & N. R. o. Wood- U. S. 282. worth, 32 Minn. 452. See also Marshall 8 Cobb v. Boston, 109 Mass. 438; Fishing Co. v. Hadley Falls Co., 6 Cush. Hampden Paint Co. v. Springfield, A. 602. & N. R., 124 Mass. 118; Bancroft i\ 4 Whitney v. Lynn, 122 Mass. 338 ; Cambridge, 126 Mass. 438 ; Texas & Taylor v. Chicago, M. & S. P. R., 83 S. L. R. v. Matthews, 60 Tex. 215 ; Wis. 645. Chicago, K. & N. R. v. Broquet, 47 SECT. 286.] TIME OP VALUATION. 263 cases where proceedings may be discontinued after the assess- ment of compensation, it is clear that the date of valuation cannot be that of the taking. It has been deemed proper in such cases to take the first definite expression of an intention to con- demn as the valuation point.^ Thus, where a petition was filed in 1873, trial begun in 1876, and concluded in 1877, the basis of assessment was the value of the property in the year of the peti- tion.^ Where compensation must be tendered before the prop- erty is occupied, it has been held that the property should be valued at the time when the assessment is made.* § 286. On an appeal from the award, the property is to be valued as of the time with reference to which it was appraised by the inferior tribunal.* Where a corporation wrongfully occupies land, and afterwards proceeds to condemn,^ the land is to be valued as of the date of the lawful taking, not of the trespass.^ So, the time of formal condemnation has been held to be the proper time for valuation, where the corporation has previously entered upon the land by consent,^ or without protest.^ But it has been held, that where an entry on mortgaged property under agreement with the owner, but without the consent of the mortgagee, gives rise to equitable claims in respect to the compensation, a court of equity will fix the date of valuation at the entry.^ In New Jersey, therefore, the date of valuation, in case compensation is assessed after an Kan. 571 ; Stafford v. Providence, 10 * Metier v. Easton & A. E., 37 N. R. I. 567; Lafayette, M. & B. R. v. J. L. 222; Minneapolis v. VPilkin, 30 Murdock, 68 Ind. 137 ; Texas & S. L. Minn. 145 ; Missouri Pacific R. v. Wern- R. V. Cella, 42 Ark. 528 ; Missouri wag, 35 Mo. App. 449. Pacific R. V. Hays, 15 Neb. 224 ; Dep't ^ See § 118. of Public Parks, 53 Hun, 280 ; Penny v. « Lyon v. Green Bay & M. R., 42 Wis. Penny, L. R. 5 Eq. 227. 538 ; Texas VFestern R. v. Care, 80 Tex. 1 Lieberman v. Chicago & S. S. R., 137. See also Graham v. Pittsburgh 141 111. 140 ; Burt v. Ins. Co., 115 Mass. & L. E. R., 145 Pa. 504 ; Railroad Co. v. 1. San Jose' & A. R. !). Mayne, 83 Cal. Perkins, 49 Ohio St. 326. See Pomeroy 566. V. Chicago & M. R., 25 Wis. 641 ; ^ South Park Comm. i^. Dunlevy, 91 Daniels v. Railroad Co., 41 Iowa, 52. III. 49. 7 Leeds v. Camden & A. R., 53 N. J. a West V. Milwaukee, L. & W. R., 56 L. 229. Wis. 318 ; Lamborn o. Bell, 18 Col. 346 ; s Chicago, M. & S. R. «. Randolph, Railroad Co. v. Perkins, 49 Ohio St. etc. Co., 103 Mo. 451. 326. See also Georgia South. R. v. ^ North Hudson County R. u. Boor- Small, 87 Ga. 355. aem, 28 N. J. Eq. 450. 264 COMPENSATION AND DAMAGES. [CHAP. X. entry* by consent, depends on whether it is assessed according to the statute, or in a suit in equity.^ Where property is not actually appropriated, but is so damaged as to entitle the owner to compensation on account of depreciation in value, the time of appraisement is when the injury was done.^ PAYMENT. § 287. We have defined the position of compensation in the law of eminent domain, and have indicated the general principles which govern its assessment. Where the amount of compen- sation has been determined, the next question is as to the time, manner, and effect of payment. The subject of payment should be one of the simplest titles, yet it is, unfortunately, one of the most complicated in some respects. In England, the promoters must pay or deposit the assessed compensation before entering upon land.^ Substantially the same rule prevails in France.* It will be seen, presently, that this plain and effective rule of action is not incorporated in the organic law of all the American com- monwealths. A proper tender of compensation will usually secure all the rights conferred by actual payment.^ A tender of compensation is not made unless the owner is enabled to assume dominion over the money.® Hence, it is not a tender to pay the money into court to abide the result of an appeal,'' though it has been held that if the custodian of the deposit be directed to withhold it, the direction is to be treated as a nullity.* So, there is no tender where money is deposited with the clerk of the court, with instructions to pay it to the owner upon his executing a 1 Trimmer v. Pennsylvania, P. & B. 685 ; Scott v. St. Paul & C. R., 21 E., 55 N.J. L. 46. Minn. 322; Eraus . Met. St. ' Schreiber M. Chicago & E. R., 115 R., 82 Ga. 320. See also Parker o, 111. 340; Cliicago, S. L. & W. R. v. Catholic Ri-shop, 146 111 158; Lorie v. Gates, 120 111. 86; Redman v. Phila- Chicago City R., 32 Fed. Rep. 270. SECT. 291.] PAYMENT. 267 shall be first paid or secured, as well for property damaged as for property taken.^ It has been recently held in Louisiana, how- ever, that such a declaration must be literally followed only where the consequential injury is a physical invasion of prop- erty, the effect of which can be faii'ly foreseen, — that one cannot demand security on account of the apprehension of a deprecia- tion of his property .2 Where compensation precedent is required in case of injury from the construction of works it cannot be claimed in a case where the injury is referable to operation.^ §291. Payment after Entry. — As a rule, it is only where there is no absolute condition of prepayment that possession can be taken before payment, or tender, and then only when there is security at once sufficient and accessible.* It has been held, that where the state itself is the actor in condemnation proceedings the statute need not provide for secu- rity, as the financial responsibility of the government will be presumed, but that provision for a certain and speedy method of recovery is sufficient.^ Observation of this rule will probably give the owner ample protection, but, as the ability to collect money from the state does not depend on the state of the treas- ury, but on the appropriation of funds by the legislature, it seems that there should be an adequate and accessible fund to which the owner may resort as of right.^ In the well-considered case of the Connecticut Eiver Eailroad Company v. County Commis- sioners,'^ it was decided that an act, providing that compensa- tion be paid out of the earnings of a state railroad, was void, because there was neither an appropriation of public funds, nor a 1 Dela,ware County's Appeal, 119 Wis. 674; Cushman !>. Smith, 34 Me. Pa. 159 ; O'Brien v. Pennsylvania S. V. 247. R., 119 Pa. 184 ; Lafayette v. Wortman, ^ Orr v. Quimby, 54 N. H. 590. See 107 lud. 404; Parkdale v. West, 12 also Ash u. Cummings, 50 N. H. 591; App. Cas. 602 (Canada). See also Ash Montgomery's Case, 48 Fed. Rep. 896. V. Cummings, 50 N. H. 591 ; Streyer ^ McClinton v. Pittsburgh, F. W. V. Georgia South. & F. R., 90 Ga. 56. & C. R., 66 Pa. 404. See Philadelphia 2 McMahon v. St. Louis, A. & T. R., & R. R. v. Lawrence, 10' Phila. 604; 41 La. An. 827. Morris v. Comptroller, 54 N. J. L. 268 ; "Jones i). Stanstead, S. & C. R., Orr a. Quimby,54 N.H. 590, Doe, C. J., L. R. 4 P. C. 98 (Canada). dissenting opinion; Cushman v. Smith, * Foster a. Stafford Bank, 57 Vt. 34 Me. 247; Talbot u. Hudson, 16 Gray, 128; Commonwealth v. Pittsburgh & 417. C. R„ 58 Pa. 26 ; Brock v. Hisheu, 40 ' 127 Mass. 50. 268 COMPENSATION AND DAMAGES. [CHAP. X. pledge of public credit. Where the United States instituted proceedings to condemn, the owners asserted that, inasmuch as the appropriation made by Congress to defray the cost of the under- taking was exhausted, there was no security, and that, therefore, the proceedings could not be maintained. The court held, how- ever, that while the property could not be taken until security had been provided, the proceedings were maintainable f6r the purpose of ascertaining the value of the property.^ § 292. As a municipal corporation is, unlike the state, suable for its debts, it is usually held that where the taxable property within the corporate limits is pledged to secure the payment of compensation, the security is good.^ Provided the ultimate responsibility of the city is fixed, there seems to be no objection to the adoption of a special method of raising the necessary funds. Thus, an issue of bonds may afford sufficient security.^ A provision for compensation, the adequacy of which is " con- tingent on the realization of a fund from taxation for benefits within a limited assessment district," may be insufficient.* There is no objection, however, to a provision for raising the compensa- tion fund by special tax, if, in case of insufficiency, the city may be compelled to resort to a general tax.^ So, the security has been deemed sufficient where the act, besides providing for a special assessment, contains a general authority to borrow from other funds.^ It has been held that the owner cannot have recourse to the general revenue until the special assessment has failed to produce the necessary funds.'' There is not good secu- rity if the corporate power of taxation is inadequate to supply sufficient funds,^ or if the town itself is not legally incorpor- ated.8 A plea that proceedings should be dismissed, because the 1 United States v. Oregon R., 16 Fed. 132 ; Mitchell v. White Plains, 62 Hun, Rep. .524. 231 ; Detroit v. Daly, 68 Mich. 503 ; 2 Lowerre v. Newark, 38 N. J. L. Lincoln Park, 44 Minn. 299. 351; Haverhill Bridget'. County Comm., ^ State v. City of Superior, 81 Wis. 103 Mass. 120; Smeaton v. Martin, 57 649. Wis. 364 ; Church's Case, 92 N. Y. 1 ; » Grand Rapids v. Grand Rapids & Woodruff V. Glendale, 26 Minn. 78; I. R., 58 Mich. 641. Kadisill v. State, 40 Ind. 485. ' State v. City of Superior, 81 Wis 3 Matter of New York, 99 N. Y. 569, 649. * Sage V. Brooklyn, 89 N. Y. 189. 8 Keene w. Brisstol, 26 Pa. 46. See also Chapman ti, Gates, 54 N. Y. » Colton v. Rossi, 9 Cal. 595. SECT. 294.J PAYMENT. 269 city has reached the limit of its power to contract debts, has been denied for the practical reason that if the city cannot pay it cannot take the property.^ § 293. Where the expropriator is a private corporation its financial responsibility is not security. It is generally held that a sufficient and accessible fund must be in existence at the time of the taking. This precaution has been carried so far as to make the giving of security, in effect, a constructive payment, by requiring the deposit in court of compensation which has been tendered and refused.^ But a more liberal practice per- mits entry after depositing in court a sum of money sufficient to cover the probable compensation,^ and a deposit of United States bonds has been considered sufficient.* In Pennsylvania, compensation is secured by the execution of a bond which, in case of objection, must be approved by the court.^ § 294. Where compensation subsequent is lawful, payment must be made within a reasonable time after the property is taken.® Differences of opinion as to what is a reasonable time are frequently due to variant determinations as to the point of time at which the property is taken.^ The time of payment may be definitely fixed.^ Thus, four months after the taking has been considered a proper time.^ Again, the time of payment may be conditioned on the performance of another act. Where a statute provided that payment of compensation for property taken for a street should be made upon the ratification of an assessment for benefits, it was sustained on the assumption that ratification would be made within a reasonable time.^" A city may be allowed to delay payment for a reasonable time, in order that it may collect, meanwhile, the special taxes imposed in aid of the undertaking. ^i 1 Cedar Eapids, 51 N. W. Kep. 1142 6 Philadelphia v. Miskey, 68 Pa. 49. (Iowa, 1892). See Matter of New York, ^ gee § 197. 99 N. Y. 569. 8 Kyan v. Hoffman, 26 Ohio St. 109. 2 Powers V. Bears, 12 Wis. 213. » Matter of New York, 99 N. Y. 8 New York Cent. & H. R. R., 60 569. N. Y. 116. 10 Fink v. Newark, 40 N. J. L. 11. * Briggs V. Cape Cod Ship Canal, See also Leuly v. West Hoboken, 54 N. 137 Mass. 71. J. L. 508. ^ Wallace v. Newcastle, etc. R., 138 i' Hamersly v. New York, 56 N. Y. Pa. 168. 533 ; Donnelly v. Brooklyn, 121 N. Y 9. 270 COMPENSATION AND DAMAGES. [CHAP. X. WHO ARE TO PAY COMPENSATION? § 295. The ascertainment of the party liable for compensation is seldom a difficult matter. Occasionally, however, the ques- tion is sufficiently obscure to call for judicial iuvestigation. The object of the investigation should be to determine the party in whose interest the right of eminent domain is exercised. Where a railroad company and a municipal corporation undertake the improvement of a railroad crossing, the former building a bridge to carry a highway over the tracks, the latter grading the ap- proaches, the city cannot assume a liability for damages from change of grade, for it acts as the agent of the company whose duty it is to provide safe crossings.^ Where a municipal corporation authorizes a railroad or other company to occupy a street, and the abutter is entitled to com- pensation,^ it is usually held that the company is liable.^ But in Pekin v. Brereton,* the city was held liable for injury caused by a railroad embankment in a street, the fee of which was private, on the theory that, as it had authorized the occupation of the street, it was responsible for the additional burden on the fee.^ This opinion does not commend itself to our judgment, for it disregards the principle that the party obtaining the benefit of the eminent domain should bear its burdens.^ Where the city is responsible, it is prudent for it to permit a railroad com- pany to occupy streets only upon an agreement to reimburse it for such compensation as it may be obliged to payJ The question sometimes arises, as to which of two political corporations is responsible for compensation in a particular case. Where land within the limits of a city is taken for a street, the But see Lafayette v. Shultz, 44 Ind. 97 ; Boston & M. R., 3 Cush. 107 ; Hedrick McKusick V. Stillwater, 44 Minn. 372. v. Olathe, 30 Kan. 348. See Roll v. 1 Burritt v. New Haven, 42 Conn. Augusta, 34 Ga. 326; Corporation of 174. See also Gardiner !). Boston & W. Parkdale i'. West, 12 App. Cas. 602. R., 9 Cush. 1. Compare Provision Co. * 67 111. 477 .;. Chicago, 111 111. 651. 6 gee Stack v. East St. Louis, 85 111. 2 See § 400. 377 ; Swenson v. Lexington, 69 Mo. 157. » Burkam v. Ohio & M. R., 122 Ind. » Consult Green v. Portland, 32 Me. 344 ; Frith v. Dubuque, 45 Iowa, 406 ; 431. Dillenbach v. Xenia, 41 Ohio St. 207 ; ' Chicago, B. & Q. R. v. Chicago, Denver V. Bayer, 7 Col. 113. See also 134 111.323. Olney v. Wharf, 115 lU. 519 ; Parker v. SECT. 296.] WHO AEE TO PAT COMPENSATION ? 271 county cannot be called upon for compensation,^ and the liabil- ity of the city has been declared where it called upon the county to relocate streets.^ Where a county completed proceedings for the taking of land for a highway, it was ordered to pay the com- pensation, although the highway had been, in the meantime, set off in another county.^ Where the eminent domain is exercised for the benefit of two or more corporations, each should pay its proportional share of the compensation.* Where a corporation condemns, the stock- holders are not personally liable for the compensation.^ § 296. The lien for unpaid compensation® attaches to the property taken through all transfers from corporation to cor- poration, and may be always enforced against the party in pos- session.' And the same rule applies to a lien for costs.^ Where a corporation is in possession of property as the successor of an insolvent corporation, the latter need not be made a party to a suit for the enforcement of the lien.^ The fact that there is an unsatisfied judgment for compensation against the insolvent predecessor of the corporation in possession does not affect the lien.i" A corporation succeeding to the property and franchises of another is not ordinarily responsible, on principle, for con- sequential injuries to property done during the incumbency of the latter. Hence, it has been held that where land is flooded by the construction of a railroad, and the railroad passes into the hands of a new company, tliey are liable only for damage 1 Parkersburg Borough Streets, 124 571 ; Indiana, B. & "W. R. v. Allen, 113 Pa. 511. See County of Lancaster v. Ind 308; Buffalo, N. Y. & P. R. .;. Prey, 128 Pa. 593. Harvey, 107 Pa. 319; Harbach v. Des " Brigham v. Worcester County, 147 Moines, 80 Iowa, 593 ; Organ v. Mem- Mass. 446. phis&L. R. R., 51 Ark.235; Gammage 3 Jones u. Oxford, 45 Me. 419. v. Georgia South. R., 65 Ga. 614; * Grand Junction R. v. County Dayton, X. & B. R. v. Lewton, 20 Ohio Coram., 14 Gray, 553. See also Haver- St. 401 ; Gillison v. Savannah & C. R , hill Bridge v. County Coram , 103 Mass. 7 S. Car. 173. 120; Railroad Co. v. Hambleton, 40 « Frankel w. Chicago, B. & P. R., 70 Ohio St. 496 ; Chicago, M. & S. P. R. Iowa, 424. V. Hall, 90 lU. 42. ' Bridgman v. St. Johnsbury & L. C. 5 Commonwealth v. Blue Hill Turn- R., 58 Vt. 198. pike, 5 Mass. 420. w Bridgman v. St. Johnsbury & L. C. 8 See §§ 228, 385. R., 58Vt. 198. ' Drury v. Midland R., 127 Mass. 272 COMPENSATION AND DAMAGES. [CHAP. X. done since their succession.^ But the conditions of the transfer from one corporation to another may be such as to impose upon the latter the liabilities of the former in respect to consequential injuries.2 Where a judgment for permanent damages against a railroad company was recovered by default, the successors of the company were not compelled to abide by the judgment as rendered, but were allowed to have it opened, and to have a reassessment by a jury.^ It has been held improper to sue the corporation in possession upon a judgment for compensation recovered against its predecessor. The judgment represents a debt of the latter for which the former is not responsible, but it is responsible for just compensation, for it takes the property subject to existing liens.* WHO ARE ENTITLED TO COMPENSATION? § 297. Where the state authorizes a company to use its prop- erty in furtherance of their undertaking, it does not usually exact compensation as for property taken for public use. Indeed, it would seem that, as a rule, the construction of the work should be presumed to be a sufficient consideration for the grant, espe- cially where the property is not already devoted to a specific public use. It has been held, however, that where the state per- mits a railroad corporation to lay its tracks over the grounds of a state prison, it does not make a gift of the land, but intends that compensation shall be paid.^ A distinction between property of the state and property of the municipal corporation has been already drawn.® Where property is of the latter sort, it is the private property of the municipal corporation, which, it seems, may assert its title before the state's 1 Wead V. St. .Tohnsbury & L. C. R., Wis. 317. See s. c. 40 Wis. 653. See 64 Vt. 52. See Bizer v. Hydraulic Co., also Lake Erie & W. R. v. Griffin, 107 70 Iowa, 145. Ind. 464. Compare Buffalo, N. Y. & P. " United States v. Jones, 109 U. S. R. v. Harvey, 107 Pa. 319. 513. ^ Commonwealth v. Boston & M. B., 8 Penn Mut. Life Ins. Co. o. Heiss, 3 Cush. 25. 141 111. 35. « See §§ 63-68. * Gilman v. Sheboygan & F. E., 37 SECT. 299.] WHO AKE ENTITLED TO COMPENSATION ? 273 eminent domain, and secure compensation in the event of the enforced diversion of the property to non-communal uses. Fur- ther, the legislature may command that compensation be paid to a subordinate political corporation.^ Thus, where a corpora- tion was authorized to lay a turnpike along a line which crossed a county bridge, and was obliged to pay compensation to the owners of laud affected, it was decided that the bridge was " land " within the meaning of the act.^ A statute authorizing the condemnation of land for the widening of a street has been so construed as to entitle the city to recover compensation, as an ordinary proprietor, for land held by it in trust for the pur- poses of a park.2 Where property held by a city in trust for the maintenance of schools is taken for a street, the city must be compensated, else would the law be violated which pre- scribes that the school fund shall not be impaired.* But, in the absence of direction to the contrary, a municipal corporation cannot claim compensation for the authorized use of property within its boundaries. § 298. Private Persona. — Private persons and corporations interested in the compensation may be divided into two classes. Owners of property, to whom payment must be made in order to perfect title ; holders of liens upon or interests in property which do not amount to vested estates. The latter have no relations with the expropriators, unless the statute otherwise pro- vides, but, upon the conversion of the property into money, must enforce their claims against the compensation, or its recipient. The distinction is illustrated in the rule, that while those in the first class are entitled to notice as of right, those of the second are entitled by statute only.^ § 299. Title to the property condemned is based on the fact that compensation has been paid to the true owner. It matters not that the expropriators have acted in good faith, if they pay compensation to the wrong person they are still responsible to the right one.^ But the true owner may recover the compensa- 1 Rapid Transit Co., Ill N. Y. 588. « Fagan v. Chicago, 84 HI. 227. 2 Freeholders, etc. v. Eedbank & H. ^ See §§ 339, 340. Turnpike, 18 N. J. Eq. 91. « Searl v. School District, 133 U. S. 3 Ninth Aye., 45 N. Y. 729. 553 ; Hatch v. New York, 82 N. Y. 436 ; 18 274 COMPENSATION AND DAMAGES. [CHAP. X. tion in an action against the recipient.^ So, where the rights of one having an interest in the property are not recognized by the expropriators, who pay the whole conapensation to the owner, the former may recover his share from the latter.^ Where title to property is in doubt, a private person, desiring to purchase, must buy at his peril, and, where the owner is unknown, he must abandon his intention. Tlie state and its agent occupy a more favorable position with reference to prop- erty needed for public use. Public necessity overrides all incon- veniences incident to dubiety of ownership. Therefore, where the title to property is in dispute, or the owner is unknown, the property may be taken, and the proper compensation paid into court for the use of the rightful owner.^ But it has been held, that where title is not questioned in the proceedings, the amount awarded should not be paid into court for the benefit of parties entitled, but should be paid to the party named directly, or into court for his benefit.* Wherever compensation has been duly paid into court, the expropriators have fulfilled the constitutional duty of payment. Though the fund be paid over to the wrong person, or improperly apportioned among rightful claimants, they cannot be held responsible.^ § 300. When compensation is assessed in proceedings insti- tuted by the expropriators, persons named in the petition as owners are not called upon to prove their title. For the pur- poses of the proceeding their title is admitted.^ When a property South Park Comm. w. Todd, 112111.379. 118 111. 655; Jones v. Florida, C. & P. See also Mitchell o. Met. El. R., 134 R., 41 Fed. Rep. 70. N. Y. 11. * Convers v. Atchison, T. & S. F.R., 1 De Peyster v. Mali, 92 N. Y. 262 ; 142 U. S. 671. Meginnis v. Nunamaker, 64 Pa. 374. ^ United States v. Dunnington, 146 See Brown v. County Coram., 12 Met. TJ. S. 338. See also Heirs of Van Vorst, 208. 2 N. J. Eq. 292; Columbia Bridge v. 2 Sherwood v. Lafayette, 109 Ind. Geisse, 34 N. J. L. 268 ; Haswell v. 411 ; Brinckerhoff v. Wemple, 1 Wend. Vermont Cent. R., 23 Vt. 228 ; Miller v. 470. See also Harris ti. Howes, 75 Me. Asheville, 112 N. C. 759. 436 ; Bank of Auburn v. Roberts, 44 " Wilcox v. St. Paul cSb N. R., 35 Minn. N. Y. 192 ; Martin v. London, C. & D. 439 ; Met. City R. v. Chicago W. D. R., R., L. R. 1 Eq. 145. 87 111. 317; Chicago & L R. v. Hopkins, 3 See Dep't Public Parks, 73 N. Y. 90 111. 316; G. B. & L. R. v. Haggart, 560 ; Chicago & W. I. R. v. Prussing, 9 Col. 346 ; Omaha, N. & B. R. v. Ger- 96 111. 203; Gedeye «. Coram. (1891), 2 rard, 17 Neb. 587; Bentonville R. v. Ch. 630; McCorraick v. Park Coram., Stroud, 45 Ark. 278. See also Cummins SECT. 301.] WHO ABE ENTITLED TO COMPENSATION? 275 owner institutes proceedings to recover compensation, he must prove his title as in an ordinary action.^ Compensation may be recovered by one having a possessory title.^ Property held on a three hundred year lease was condemned shortly before the expiration of the term. The tenant received compensation for his interest, and, the reversioner being unknown, compensation for his estate was paid into court. Some years later, the deposit being still unclaimed, the late tenant claimed it. His claim was worthless, of course, at common law, and it was held that he had not been in possession within the meaning of the statute,^ pro- viding that one in possession shall be deemed the owner until the contrary is shown.* § 301. Wherever a single owner is in possession of property which is unaffected by any interests of other parties, he is en- titled, of course, to receive the whole compensation awarded. Where one has a base fee, it has been held that he should receive the full value of the land, as the interest of the grantor is too remote to be treated as property.^ The fee of the territory of the Cherokee Nation is in the Nation, but the occupants of the land have so complete a right of enjoyment that, when a right of way is condemned, they are entitled to the compensation.® Where the owner is non sui juris, or the property is held in trust, payment should be made to the guardian or trustee for his benefit.^ But if the compensation has been paid to the admin- istrator of an estate, and applied by him to the benefit of the heirs, a court of equity will not permit the latter to recover pos- session until they refund the money .^ Where a minor sells land V Des Moines & S. R., 63 Iowa, 397 ; ' Lands Clauses Act, § 79. Wright V. Butler, 64 Mo. 165. See 4 Gedeye w. Coram. (1891),2Ch. 630. AUyn V. Providence, W. & B. R.,4R. I. ^ Chandler v. Jamaica Pond Aque- 457. See also §251. duct Co., 125 Mass. 544. 1 Philadelphia & R R. w. Chert, 109 « Payne v. Kansas & A. R., 46 Ped. Pa. 193; Tufts v. Charlestown, 117 Rep. 546. Mass. 401 ; Costello v. Burke, 63 Iowa, ' Small v. Georgia South. & F. R., 361 ; Lawrence R. v. Cohb, 35 Ohio St. 87 Ga. 602 ; State v. Easton & A. R., 94 ; Chicago, K. & N. R. v. Cook, 43 36 N. J. L. 181 ; Brown v. Rome & D. Kan. 83 ; Diedrich v. Northwest. Union R., 86 Ala. 206. See also Davis v. R., 42 Wis. 248. Charles River, etc. R., 11 Cush. 506. 2 Andrew v. Nantasket Beach R., * Galveston, H. & S. A. R. v. 152 Mass. 506. See also Hawkins v. Blakeny, 73 Tex. 180. Comm., 2 Allen, 254 ; Sacramento Val. K. V. Mofeatt, 7 Cal. 577- 276 COMPENSATION AND DAMAGES. [CHAP. X. to one in whose hands it is condemned, she may exercise her right of revocation, and intervene in the proceedings in order to secure compensation.^ Where compensation is received by the trustee of an estate it should be treated as proceeds of the sale of property, and credited to capital, not to income.^ Where pro- ceedings to condemn are brought against property in the custody of an administrator he should receive the compensation/ espe- cially in case the estate is insolvent.* § 302. Apportionment of Compensation. — In adjudicating conflicting claims to compensation,^ it is determined which of the contesting parties is entitled. In apportioning compensa- tion, the rights of the claimants are admitted, and the only ques- tion is as to the proportion which each shall receive. Whatever be the method of appraising the several interests, it is evident that the sum of their values must be the full value of the property taken and no more.^ Where land is subject to a life estate the life tenant and remainderman must each receive his proportion of the compensation.'^ The court may take the net annual value of the premises multiplied by the years of the tenant's expect- ancy of life, and reduce the amount to present cash value.^ Where part of a tract is taken, the compensation to the remain- derman is the decrease in the value of the reversion.^ Where the injuries to the life estate and the reversion are readily separ- able, they should be compensated for independently.^" Where an admeasurement of dower has been made, the dow- ress is entitled to compensation as the owner of a vested inter- est,^^ but it has been held otherwise where dower has not been 1 Hutchinson v. McLaughlin, 15 Col. ' Kansas City, S. & M. E. v. Weaver, 492- 86 Mo. 473 ; Miller v. Asheville, 112 '■' Heard v. Eldredge, 109 Mass. 258. N. C. 759. 3 St. Albans v- Seymour, 41 Vt. 579. 8 Pittsburgh, V. & C. R. v. Bentley, See also Pennsylvania S. V". R. v. Cleary, 88 Pa. 178. 125 Pa. 442. 9 BentonviUe R. v. Baker, 45 Ark. ^ Goodwin v. Milton, 25 N, H. 458. 252. 5 See § 305. w Passmore v. Philadelphia, W. & B. 6 See N. Y. & B. Bridge v. Clark, 137 R., 9 Phila. 579. N. Y. 95; United States y. Duunington, n York v. "Welsh, 117 Pa. 174. See 146 U. S. 338, Ross v Adams, 28 N.J. also French v. Lord, 69 Me. 537. Sea L 160; Burt v Ins. Co., 115 Mass 1; Bonner w. Patterson, 44 HI. 253. Edraands r. Boston, 108 Mass. 535 ; Chicago V. Garrity, 7 111. App. 474. SECT. S04.J WHO ARE ENTITLED TO COMPENSATION? 277 assigned.^ It has been held that inchoate dower does not con- fer a right to compensation from the expropriators,^ though the wife may claim her share in the award.^ Although a judgment creditor need not be made a party to proceedings to condemn as an owner,* he may have the compensa- tion paid into court in order that his share may be set off to him." § 303. The position of a mortgagee of the property con- demned depends on the estimation of the interest created by a mortgage. In some States, a mortgagee out of possession has not an interest which need be recognized, unless plainly commanded by statute.® But, in other States, the mortgagee has a vested estate, and must be recognized by the expropriator.'^ The mort- gagees of railroad property and franchises need not be made par- ties where a right of way across the track is condemned. They have no interest in the compensation as long as the corporation retains control of the road.^ If a mortgagee is not made a party he may have the compensation paid into court, and receive his due proportion.^ In case the mortgage debt exceeds the value of the property the mortgagor of course receives nothing.^** § 304. The interest of a lessee has been treated as a specific property separable from the estate of the lessor.^^ In other deci- 1 Todemier v. Aspinwall, 43 111.401. 13 W.Va. 476; Astor v. Hoyt,5 Vfend. 2 Moore v. New York, 8 N. Y. 110; 603; Knoll v. New York, S. L. & C. R., Central Park Extension, 16 Abb. Pr. 56 ; 121 Pa. 467 ; Farnsworth v. Boston, 126 French w. Lord, 69 Me. 537. See also Mass. 1. Duncan v. Terre Haute, 85 Ind. 104 ; ' Severin v. Cole, 38 Iowa, 463 ; Weaver v. Gregg, 6 Ohio St. 547; Michigan Air Line R. v. Barnes, 40 Gwynne v. Cincinnati, 3 Ohio, 24. See Mich. 383 ; Sherwood v. Lafayette, 109 Nye V. Taunton Branch R., 113 Mass. Ind. 411 ; Wilson v. European & N. A. 277 ; Simar v. Canaday, 53 N. Y. 298. R., 67 Me. 358 ; Warwick Inst, for Sav- s Wheeler v. Kirtland, 27 N. J. Eq. ings v. Providence, 12 R. 1. 144 ; Dodge 534. V. Omaha & S. R., 20 Neb. 276. * See § 340. See also Hagar v. Brainerd, 44 Vt. 294. " Alhauser v. Doud, 74 Wis. 400. » Grand Rapids v. Grand Rapids & See also Philadelphia v. Dyer, 41 Pa. I. R., 58 Mich. 641. See Parker's Peti- 463. See Harris v. Brewster, 154 Pa. tion, 36 N. H. 84. 22 ; Chicago, B. & Q. R. v. Chamberlain, » Bright v. Piatt, 32 N. J. Eq. 362 ; 84 111, 333. Sawyer v. Landers, 56 Iowa, 422 ; Utter 6 Parish v. Gilmanton, 11 N. H. 293 ; v. Richmond, 112 N. Y. 610. Whiting V. New Haven, 45 Conn. 303 ; " See Matter of Brooklyn, 73 Hun, Crane v. Elizabeth, 36 N. J. Eq. 339. 499. See also Schuraacker v. Toberman, 56 " Morgan R. & S. S. Co., 32 La. An. Cal. 508 ; Keystone Bridge v. Summers, 371 ; Atchison, T. & S. F. R. v. Schnei- 278 COMPENSATION AND DAMAGES. [CHAP. X. sious the land is treated as the only property condemned, and the gross compensation is apportioned between the lessor and lessee, according to the worth of their interests.^ Whichever course is followed, the question to be determined is the relation which the interests of the lessor and lessee bear to the full value of the property. If the rent equals or exceeds the real yearly value of the premises, it has been held that the interest of the lessor only is to be considered, as the tenant suffers no loss.^ If the rent is less than the yearly value, compensation should be allowed in respect to the difference.^ Where leasehold premises were condemned, the lessee was paid the amount of rent for the remainder of the term for which he was still liable to the lessor.^ A covenant for renewal increases the value of the term, and di- minishes the value of the reversion.^ It has been held that the possibility of a renewal should not be considered.® In a recent case, however, the circumstances were such as to make the prob- ability of renewal a factor of value. The owner of the land had leased it to a brick-maker for so many years that it had acquired a peculiar value as a brickyard. It had been leased on short terms, and the probability of future renewals was sufficiently strong to enhance the salability of the current lease. The court held that the lease was worth what it would bring, and that the probability of renewal should be taken into account.'^ The value of the reversion is increased by the covenant of the tenant to pay taxes and assessments.^ Where the property taken was a public house, owned by a brewer and leased with a covenant that no beer other than his own should be sold, it was held that, as the covenant increased the value of the premises to the owner, der, 127 III. 144. See also Kersey v. * Booker v. Venice & C. R., 101 111. Schuylkill River, etc. R., 133 Pa. 234 ; 333. Seattle & M. R. v. Scheike, 3Wash. 625. ^ William & Anthony Streets, 19 1 Edmandsw. Boston, 108 Mass. .535. Wend. 678; North Pennsylvania R. v. See also Kohl v. United States, 91 U. S. Davis, 26 Pa. 238. See also Cobb v. 367. Boston, 109 Mass. 438. 2 Morgan R. & S. S. Co., 32 La. An. '* Ranlet v. Concord R., 62 N. H. 371 ; Becker v. Chicago, B. & Q. R., 126 561. See also Shaaber v. Reading, 150 111. 436; Corrigan ... Chicago, 144 111. Pa. 402. 537. ' Baltimore v. Rice, 73 Md. 307. 3 Morgan R. & S. S. Co., 32 La. An. « William & Anthony Streets, 19 371 ; New York, W. S. & B. R. v. Bell, Wend. 678. 28 Hun, 426. See also Wiggin v. New- York, 9 Paige, 16. SECT. 305.] WHO ARE ENTITLED TO COMPENSATION ? 279 he should be indemnified for its abrogation.^ In fixing the value of a leasehold interest evidence of a suit in ejectment against the lessor, and his disclaimer as to part of the premises, is material as tending to depress the market value of the lease.^ Where a partial appropriation of leased premises does not abrogate the lease,^ the lessee retains, of coarse, his interest in the remainder. In such case, the assessment is governed by the general rules as to valuation heretofore considered. Where buildings on leased premises condemned have been built by the lessee, upon an agreement that the lessor shall pay their value on the expiration of the lease, the lessee is entitled to compensation for them.* § 305. Conflicting Claims to Compensation. - — The courts are frequently called upon to designate the proper recipient of com- pensation. The question may be presented by the expropriators, who wish the direction of the court, or it may arise in a contest between rival claimants. Although space will not permit the statement of many of the cases in point,^ the leading groups of decisions will be considered. When one having an interest in the land appropriated to public use dies pending the proceedings, the right to compensa- tion vests in the heirs, not the personal representatives.^ But the right to damages for a trespass is a personal asset, and vests in the personal representatives.'^ It has been held that the right to permanent compensation on account of property " damaged " by public works,^ passes to the personal representatives.^ Where 1 Bourne v. Liverpool, 33 L. J. 134 ; Dubuque & D. R. v. DieM, 64 (Q. B. ) 15. Iowa, 63f> ; Turner i;. Robbins, 1 33 Mass. 2 Pennsylvania R. v. Eby, 107 Pa. 207 ; Chicago, B. & Q. R. v. Chamber- 166. lain, 84 111. 333. ' See § 170. <^ Mitchell!;. Met.El.R., 134 N.Y. 11. ■• Coutant V. Catlin, 2 Sandf. Ch. See also Valley R. v. Bobm, 29 Ohio 485; Livingston v. Sulzer, 19 Hun, St. 633 ; Peoria & E. R. i;. Rice, 75 111. 375 ; Matter of Buffalo, 17 N. Y. S. R. 329 ; Olivers. Pittsburgh, V. & C. R., 131 371. See Schreiber v. Chicago & E. R., Pa. 408 ; Parker v. Chestnutt, 80 Ga. 12. 115 111.340. ' Shepherd v. Manhattan R., 117 5 See Chicago v. Tebbetts, 104 U. S. N. Y. 442 ; Griswold v. Met. El. R., 122 120; Eleventh Avenue, 81 N. Y. 436 ; N. Y. 102, Pittsburgh, E. W. & C. R. Hatch ■;. New York, 82 N. Y. 436 ; v. Swinney, 97 Ind. 586. Matter of New York, 90 N. f. 390; 8 See §153. Welch V. Importers, etc. Bank, 122 9 Penn Mut. Life Ins. Co. v. Heiss, ■N. Y. 177; Matter of Rochester, 136 141111.35. See Pennsylvania S. V. E. N. Y. 83 ; Ingalls t<. Byers, 94 lud. v. Ziemer, 124 Pa. 560. 280 COMPENSATION AND DAMAGES. [CHAP. X. the right to compensation accrues during the owner's lifetime it passes on his death to his personal representatives.^ § 306. Where an interest in property is condemned, and, before the payment of compensation, the owner sells the prop- erty, the right to compensation does not pass to the vendee unless expressly transferred. The right is the personal right of the vendor.^ So, where a public undertaking has been con- structed upon premises by the consent of the owner his vendee cannot have compensation.^ A waiver of compensation is binding on a vendee of the premises.* Thus, one who buys land upon a street, mapped out and further dedicated to a railroad use, cannot recover compen- sation upon the construction of the railroad.^ Where an abutter on a private way petitions for the adoption of the way as a pub- lic street, and releases all claim for compensation on account of the change, one who buys a tract described as abutting on the street is bound by the release.*" Where erections in aid of navi- gation are lawfully made on public lands, and the lands are after- wards sold, the vendee takes subject to the burden, and cannot have compensationJ But where an unlawful occupation is fol- lowed by condemnation,^ the owner at the time of condemnation is entitled to compensation.® Where the property in question is sold between the institution ' Harshbarger v. Midland R., 131 394 ; Drury v. Midland R., 127 Mass. Ind. 177; Ballou v. Ballon, 78 N. Y. 571; McLendon v. West Point & A. 325 ; Moore v. Boston, 8 Cush. 274. See R., 54 Ga. 293 ; Hentz v. Long Island also Neal u. Knox & L. R., 61 Me. 298 ; R., 13 Barb. 646. See Heilman u. Monterey County v. Gushing, 83 Cal. Union Canal Co., 50 Pa. 268 ; Sweaney 507. V. United States, 62 VPis. 396. 2 McFadden v. Johnson, 72 Pa. 335 ; 3 Walton v. Green Bay, W. & R. P. Warrell v. Wheeling, P. & B. R., 130 R., 70 Wis. 414; Hatry w. PainesviUe & Pa. 600 ; King v. New York, 102 N. Y. Y. R., 1 Ohio C. C. 426. 171 ; Hilton v. St. Louis, 99 Mo. 199; * See § 387. ' Dunlap 0. Toledo, A. A. & G. T. R., 5 Evans v. Savannah & W. R., 90 50 Mich. 470 ; Milwaukee & N. R. v. Ala. 54. See Ayres v. Pennsylvania R., Strange, 63 Wis. 178; Smith u. Rail- 48 N. J. L. 44. way Co., 88 Tenn. 611 ; Indiana, B. & 8 Patten v. Fitz, 138 Mass. 456. W. R. V. Allen, 100 Ind. 109 ; Sargent ' Black River Imp. Co. „. La Crosse V. Machias, 65 Me. 591. See also B. & T. Co., .54 Wis. 659. Bridgman v. St. Johnsbury & L. C. R., s ggg § ng. 58 Vt. 198; Inge v. Police Jury, 14 8 gan Antonio &, A. R. v. Ruby, 80 La. An. 117 ; Wood v. Comm., 122 Mass. Tex. 172. SECT. 308.J DAMAGES FOR A TRESPASS. 281 and completion of proceedings to condemn, the vendee is entitled to the compensation.^ Where a lessee of land claims compensa- tion, and the corporation can show that its appropriation was complete before the making of the lease, the claim will be denied, as the right to compensation is wholly in the lessor.^ Where an agreement of sale exists at the time of condemnation it is in nowise affected, and the purchaser is entitled to compen- sation,^ especially where he is in possession, and has paid a large sum on account.* DAMAGES FOR A TRESPASS. § 307. The present chapter has been devoted, thus far, chiefly to the subject of compensation for the lawful appropriation of property for public use. The liability of the promoters of pub- lic works for trespasses upon private property will now be determined. § 308. A critical question in regard to a common-law action of trespass on account of damage from the construction of works of public purpose is, whether a recovery and satisfaction of judgment can effect a result similar to that obtained by proceed- ings to condemn — whether expropriators may, by paying dam- ages, enjoy thereafter the benefit of their trespass ? A brief examination of the common-law action of trespass brought against a private person will help to define the subject. Now although multiplicity of suits is not a substantive ground of jurisdiction at common law, yet it is not a thing to be encouraged. Hence the rule, that where one has suffered an injury, and its effects are all experienced at the time of suit, he shall have but one action. A verdict in this action is so conclusively presumed to cover all damage, that, if a second action be brought, the former recovery may be pleaded in bar. It is necessary then to deter- 1 Meginnis v. Nunamaker, 64 Pa. ' Mclntyre v. Easton & A. R., 26 N. 374; Carli v. Stillwater & S. P. R., 16 J. Eq. 42.5 , Pinkerton u. Boston & A. Minn. 260; Bean v. Warner, 38 N. H. E., 109 Mass. 527 ; Stevenson v. Loehr, 247 ; Curran v Shattuck, 24 Cal. 427. 57 111. 509. See Kulin v. Freeman, See Pluraer v. Wausau Boom Co., 49 15 Kan. 423 ; Proprietors of Locks, Wis. 449. etc. v. Nashua & L. R., 10 Gush. 385. 2 Lawrence's Appeal, 78 Pa. 365; * Stokes o. Parker, 53 N. J. L. Davis V. Titusville & O. C. E., 114 Pa. 183. 308. 282 COMPENSATION AND DAMAGES. [CHAP. X. mine whether the injury is single — working all its harm at the time of its commission, or continuing — causing fresh damage every day of its existence. Where the act complained of is simply, an act of destruction, as, for example, the subtraction of soil caused by excavating on adjoining land,^ there is but a single trespass, and the whole damage can be at once redressed. But if one encroach upon the land of another,^ or so deal with his own property as to inflict an injury on other land, which will continue as long as the cause thereof is maintained, as, for ex- ample, where A, mining on his own land, floods the laud of B,^ there is a continuing injury for which successive actions may be brought. The reasons for this practice are, that if the injured party should receive in one action prospective as well as past damages for a continuing trespass, there would be an assump- tion of persistence in wrong-doing, an assumption repugnant to the common law, and also a result equally repugnant, — the acquisition of a right by being mulcted in damages for a wrong. § 309. What is the measure of damages, and the effect of their payment, when the trespasser is promoting a public work ? It appears, that in several decisions the plaintiff in trespass has recovered damages, past and prospective, for an injury which is due to the negligent or improper construction of the work.* But the true doctrine is that the permanency of an abuse of power should not be admitted, but that damages should be recov- ered from time to time until the nuisance is abated.^ The opera- tion of this rule is illustrated in the Baltimore & Potomac Eailroad Company v. Fifth Baptist Church cases.^ In the first case, a judgment for $4,500 was recovered by the church for injury to its property caused by the unlawful operation of the 1 McGuire . Highway Comm., 59 Mich. ^ Beekman n. Jackson County, 18 443. See Gill v. Milwaukee & L. W. Or. 283 ; Water Comm. „. Lansing, 45 R., 76 Wis. 293. N. Y. 19 ; Ohio & M. R. v. Barker, 134 5 See Polly v. Saratoga & W. R., 9 111. 470. See Quayle ?;. Missouri, K. & Barb 449. T. R., 63 Mo 465 ; Avery v. Groton. 36 6 Kew York & L. B. R. People V. Port Jervis, 100 N. Y. See also Boston, H. T. & W. R., 79 N. 283. Y. 64. 8 Zimmerman o. Snowden, 88 Mo. « gt. Lawrence & A. R., 133 N. Y. 218 ; Doody v. Vaughn, 7 Neb. 28. 270. See also New York, L. & W. R., 4 Wells County Road, 7 Ohio St. 33 Hun, 148. 16. See also Robin.son i'. Rippey, 11 1 Ind. 112 ; Cyr v. Dufour, 68 Me. 492. SECT. 832.] PEOCEDXJEE. 303 a city attorney, or by some one having knowledge of the facts, the attorney may swear that the petition is true to the best of his knowledge and belief.^ A petition and annexed schedules containing specific descriptions of the property referred to in the petition are practically a single document, so that a verification of the petition verifies the schedules.^ The time and place of filing the petition are matters' so thoroughly conventional that it is only necessary to say that the statute should so provide as to render the petition accessible to parties interested, and that its directions to this end should be followed. § 332. Manner of Objecting to the Petition. — After a peti- tion to condemn has been filed the first question is in what manner should the owner assert any objection he may have to its form or substance, in a case where the statute does not pro- vide a mode of procedure. The chief points of controversy in a proceeding to condemn are the right to condemn, and the measure of compensation. Where the latter is in question there is no necessity for a plea or answer, for the petition presents the issue, and the owner may introduce all pertinent evidence on his side of the case.^ Hence, an answer and cross-bill, alleging an agree- ment for a certain sum, have been struck out, as the agreement could be shown without pleading it.* But where the owner seeks compensation on account of more land than is described in the petition,^ he has been allowed to set up the claim in an answer, or cross-petition.® It has been held that the objection that the land described is unnecessary need not be pleaded.' If the objection to the petition is that it does not disclose a J Detroit u. Beecher, 75 Mich. 454. « Corbiu v. Wisconsin, I. & N. R., 66 2 Comm. of Washington Park, 52 Iowa, 269. N. T. 131. 6 See § 329. 8 Gage V. Chicago, 141 111. 642; « North. Pacific & P. S. S. E. v. Chicago, M. & S. P. R. v. Baker, 102 Coleman, 3 Wash. 228 ; Port Huron & Mo. 553 ; Cincinnati, I. S. & C. R. u. S. W. R. v. Voorheis, 50 Mich. 506. Pfltzer.Goebel (Ohio), 248; Gerrard u. But see Illinois West. R. c. Mayrand, Omaha, N. & B. H. R., 14 Neb. 270. 93 111. 591. See also Bentonville R. v. Stroud, 45 ' JefCerson & P. R. v. Hazeur, 7 La. Ark. 278 ; Miller i'. Newark, 35 N. J. L. An. 182. See Tracy v. Elizabethtown, 460; Denver & R. G. R. f. Griffith, 17 L. & B. S. R., 80 Ky. 259. Col 598. 304 PROCEDUKE. [chap. XI. sufficient authority there is an issue which may be defined by a formal contradiction of some sort, as for example a demurrer,^ a counter-affidavit,^ or an answer.^ Notice. § 333. The rule of the common law that no man shall have his rights judicially determined without being accorded the opportunity to be heard in their defence,'' is exemplified in the law of eminent domain by the rule that notice must be given to the property owner. The current of authority in favor of this rule is not disturbed by sporadic decisions in which notice of any sort, at any stage of the proceedings, seems to be considered wholly unnecessary .5 Assuming that notice is necessary, it can be so only where it is intended to apprise the owner of a judicial investigation in which his rights are at stake, and the outcome of which may be affected by the presentation of his side of the case. What is the owner's side of the case in a proceeding to condemn ? § 334. We have already referred to the distinction between intrinsic necessity, which is equivalent to publicity of use, and circumstantial necessity, which is merely the expediency of a par- ticular undertaking, and have shown that, while the courts may pass upon the former subject, they cannot control the legislative discretion in regard to the latter.^ It follows that in a case where the expediency of an undertaking is within the compe- tency of the legislature, or its agent, the owner of the property affected need not be notified that the question is to be deter- mined. This proposition is illustrated in cases where property is condemned by force of the statute.^ So, where a corpora- tion, or board, is authorized to locate an undertaking at discre- tion, it is not necessary to notify a property owner of a meeting called to decide the question of expediency.^ Nor need notice 1 New Orleans, M. & T. R. v. South. * Capel v. Child, 2 Cr. & J. 558. & C. Tel., 53 Ala. 211. See Lake « See Wilson v. Baltimore & P. R., Pleasanton Water Co. v. Contra Costa 5 Del. Ch. 524 ; Johnston v. Joliet & C. Water Co., 67 Cal. 659. R., 23 111. 202. •' New York, L. & W. R. 99 N. Y. 12. « See § 53. 8 New Orleans, M. & T. R. v. South. ' See § 172. & A. Tel., 53 Ala. 211. 8 Holt v. Somerville, 127 Mass. 408; SECT. 336.] PEOCEDURE. 305 be given of the consideration of an application for laying out a highway addressed to a board which may grant or refuse the request at its discretion.^ But if the statute requires that the necessity must be proved in each case, there is a judicial ques- tion which should be determined at a hearing of which the owner is notified.^ Where the grade of a street cannot be altered with- out compensation for injury to abutting property^ it has been held that the authorities in making an alteration act judicially, not ministerially, and that the abutter has an interest in the mat- ter which entitles him to notice.* Although a public way has been acquired by user, it has been held that the owners of the land are entitled to notice of proceedings to record it as a highway.^ § 335, The question whether a given purpose is public or private is a judicial one.® It does not follow, however, that an owner of property is entitled to notice of intention to condemn, in order that he may appear and contest the publicity of the proposed use. Such a contest would indeed be impossible in most cases, because the tribunal is frequently composed of laymen, who are not competent to pass upon constitutional questions.^ Moreover, the owner is not prejudiced by want of notice, for, as proceedings to condemn for private use are illegal, he may resist at any time such action as may be based upon them. It has been held that the owner is not entitled, as of right, to be heard in the matter of the appointment of commissioners.^ § 336. It is upon the assessment of compensation that the owner is always entitled to have his day in court. This invaria- Zimmerman v. CanfieM, 42 Ohio St. ^ Vanatta «. Morristown, 34 N. J. 463 ; Lent v. Tillson, 72 Cal. 404 ; L. 445. Baltimore & 0. R. u. Pittsburgh, W. & ^ Yelton v. Addison, 101 Ind. 58. K. R., 17 W. Va. 812; Campbell v. 6 See §§ 49, 53. Fogg, 132 Ind. 1. ' See § 322. 1 People V. Smith, 21 N. Y. 595. « Village of Middletown, 82 N. Y. 2 Panl V. Detroit, 32 Mich. 108; 196 ; Morris w. Comptroller, 54 N, J. L. Pearsall v. Supervisors, 74 Mich. 558; 268; Zack v. Pennsylvania R., 25 Pa. riint V. Pond du Lac, 42 Wis. 287 ; 394 ; Palgrave Min. Co v. McMillan Wood V. Comm. of Highways, 62 111. (1892) A. C. 460. See also People v. 391 ; People •,. Kniskern, 54 N. Y. 52; Mich. South. R., 3 Mich. 496; Gamble Shelton v. Derby, 27 Conn. 414. See v. McCrady, 75 N. C. 509. But see also Kew York Cent. R., 66 N. Y. 407. Strachan v. Drain Comm., 59 Mich. 168 ; ' See § 400. Union Pacific R. v. Leavenworth, N & S. R., 29 Fed. Rep. 728. 20 306 PROCEDURE. [CHAP. XI. ble duty of the tribunal is essentially judicial, and cannot be properly performed unless the owner is afforded the opportu- nity to give evidence as to the value of the property taken.^ Whether the owner has a right to notice of adjournment de- pends, like his right to original notice, upon his interest in the subject-matter of the trial. Hence, where the power of commis- sioners as to a change of grade is vfholly discretionary they may adjourn a sitting to a certain day, without specifying the hour and place.^ If a hearing of which the owner is entitled to notice is adjourned, information of the time and place of the next meeting should be given at the present meeting, or by sub- sequent notice.^ Where the first course is taken all those who have received original notice are constructively present, and hence are duly notified.* § 337. What is Sufficient Notice ? — The form of notice is usually prescribed by the statute, and must be substantially followed.^ It is unnecessary to collate the numerous statutory forms, as they are of local interest merely. Our purpose will be subserved by determining the sufficiency of notice in general. The owner of land through which a private road is to be laid has been held to be entitled to personal notice as of right ^ As a rule a constructive notice satisfies the constitutional con- dition, though the manner of giving it is not uniform. Pub- lication is the usual method of constructive notification, and is effective as to resident,^ and non-resident owners.^ But a stricter 1 United States v. Jones, 109 U. S. ^ Woolsey v. Supervisors, 32 Iowa, 513; People v. Gilon, 121 N. Y. 551; 130; Dixon v. Comm., 75 Mich. 225; People V. Tallman, 36 Barb. 222 ; Rifenburg v. Mnskegon, 83 Mich. 279 ; Township of Kearney v. Ballantine, 54 Beatty v. Beethe, 23 Neb. 210. N. J. L. 194 ; Bartlett v. Wilson, 59 Vt. « Redstone Township Road, 112 Pa. 23; Leavitt v. Eastman, 77 Me. 117; 183. Chicago & A. R. o. Smith, 78 III. 96 ; ' Kusehke v. St. Paul, 45 Minn. 225 ; Potter J'. Ames, 43 Cal. 75 ; Lancaster Baltimore v. Little Sisters of the Poor, Road, 68 Pa. 396 ; Prichard v. Atkinson, 56 Md. 400 ; Owners, etc. v. Albany, 15 3 N. H. 335 ; Dickey u. Tennison, 27 Wend. 373 ; Matter of New York, 99 Mo. 373. N. Y. 569 ; Cupp v. Comm., 19 Ohio St. 2 Kelly t>. Baltimore, 65 Md. 171. 173; Lent v. Tillson, 72 Cal. 404; ' Goodwin w. Wethersfield, 43 Conn. Winnebago, etc. Co. v. Wisconsin Mid- 437 ; Memphis, K & C. R. v. Parsons, land R., 81 Wis. 389; Healey y. Newton, etc. Co., 26 Kan. 503. 119 Mass. 480. « Commonwealth v. County Comm., 8 Huling v. Kaw Valley R., 130 U. S. 8 Pick. 343 ; Supervisors v. Magoon, 109 559. See Comm. r. AUen, 25 Kan. 616. 111. 142. SECT. 338] PROCEDURE. 307 regard for private rights is evinced in the ruling that where a resident owner is known he must be personally notified. ^ It has been held that a notice, printed in English in a German newspaper, is not published in law, as it does not, presumably, convey information to the readers of the paper. On the other hand, a municipal ordinance is not duly published when it appears in German in a German newspaper, for it has no legal existence except in the language in which it is passed.^ The doctrine of constructive notice has been pushed so far, in some cases, as to affect the owner with the general information that his property is to be taken by reason of the action directed against the property itself. Thus, it has been held sufficient notice, to file a location or survey of a railroad right of way,^ or to enter on land and survey a highway.* Further, the teclmical rules in respect to notice have been brushed aside where it is proved that the owner had actual knowledge of the intended appropriation.^ § 338. A condemnation act which does not provide for notice seems to be considered, in some decisions, as essentially defec- tive.^ But the better view is that such an act may be made effective by actually giving proper notice.'' An omission to expressly provide for notice has been supplied by inference. Thus, it has been held that notice is plainly intended where the act contemplates the participation of the owner in the proceedings, as where it authorizes him to assist in striking a jury,^ or gives him the right to appeal,^ or requires that an attempt to purchase shall precede condemnation.^" 1 State V. Fond du Lac, 42 Wis. 287. ^ See Kuntz v. Sumption, 117 Ind. 1 ; See also Kundinger v. Saginaw, 59 State v. Fond du Lac, 42 Wis. 287. Mich. 355. 1 See State v. Jersey City, 24 N. J. L. 2 North Baptist Church u. Orange, 662 ; State v. Trenton, 36 N. J. L. 499 ; 54 N. J. L. HI. Township of Kearney v. Ballantine, 54 8 Brock V. Old Colony R., 146 Mass. N. J. L. 194; Whiteford Township t-. 194. Probate Judge, 53 Mich. 130; Kramer ' Stewart v. Board of Police, 25 Miss. «. Cleveland, 5 Ohio St. 140. 479. 8 Swan v. Williams, 2 Mich. 427; 5 Wilson V. Baltimore & P. R., 5 Baltimore Belt R. v. Baltzell, 75 Md. Del. Ch. 524. See also Williams v. 94. Hartford & N. H. R., 13 Conn. 397. ^ See Peoria & R. I. R. n. Warner, Compare Rutherford's Case, 72 Pa. 61 111. 52. 82. 10 Tracy v. Elizabethtown, L. & B. S. 308 PEOCEDUKE. [chap. XI. The doctrine of notice as generally accepted does not quite insure that effective protection to private rights which one might expect from the great principle upon which it is based. The principle is that no man shall have his rights determined without the opportunity to be heard in their defence. It is often the practice to afford him a constructive opportunity by publication. The practice of publication is certainly proper in some respects. We have seen that condemnation need not be stayed because of doubt or ignorance as to the ownership of the property.! gg^ j^ should not be stayed by the vexatious pursuit of an absent owner. But it seems just that when an owner is a known resident the expropriator should be compelled to endeavor to notify him personally. Parties. § 339. The persons who should be made parties to condem- nation proceedings are those who have interests in the property which cannot be divested constitutionally without notice, and those who are entitled to notice under the terms of the statute. The former are included in the statutory requirement of notice to " owners," '^ and may be said, generally, to comprise all those who by the law of the particular jurisdiction have vested estates in the property. The more important applications of this rule have been noticed in determining the responsibility of expro- priators with respect to the payment of compensation to the parties entitled.^ Parties are brought into the proceedings by notice, and it is evident that if one entitled by interest is not made a party the proceedings are ineffective as to him. If one applies to be made a party his admission must not be condi- tioned on his agreeing not to question the regularit)' of the pro- ceedings, or the rights of the petitioner.* While the execution of public works need not be obstructed, or unreasonably delayed, because the ownership of the property desired is in doubt,^ it is the duty of the expropriators to use R., 80 Ky. 259 ; Boonville v. Ormrod's = gee § 340. Adm., 26 Mo. 193 ; Hinckley, Petitioner, » See §§ 297-306. 15 Pick. 447. See Georges Creek Coal * New York, L. & W. R., 26 Hun, Co. 0. New Cent. Coal Co., 40 Md. 425. 194. i See § 299. 6 See § 299. SECT. 340. J PKOCEDUBE. 809 all reasonable endeavors to discover and notify the true owner. But they are not burdened with a greater responsibility than is assumed by a private purchaser. In making parties they may rely on the record title to land.' Wor is it necessary to recog- nize transfers of property which occur between the institution of proceedings and the assessment of compensation.^ It has been held that where an owner, duly notified by publication, dies before the proceedings are completed, his heirs, though non-resident, are bound by the notice.^ § 340. Statutes authorizing condemnation frequently require that •' owners " of property shall be made parties. Under this title have been placed mortgagees * and lessees.^ It has been held that as a judgment creditor has no proprietary interest in land, but simply a statutory remedy which may be altered or abolished at any time before rights become vested under it, he need not be made a party as an " owner." ^ Nor is an owner of a ground rent an " owner " within the meaning of the statute.'' The lessee of a stall in a market has not an interest in land. He is a mere licensee.^ Where it is enacted that " persons interested " in the property shall be made parties the designation has been held to apply to holders of equitable interests,® and residuary legatees.^" " Persons 1 Brown v. County Comm., 12 Met. * Parks «. Boston, 15 Pick. 198; Gil- 208. See Cool v. Crommet, 13 Me. 250; ligan v. Providence, 11 R. I. 258 ; Levee Lawrence v, Nahant, 136 Mass. 477; Comm. w. Johnson, 66 Miss. 248 ; Balti- Birge v. Chicago, M. & S. P. R., 65 more & 0. R. v. Thompson, 10 Md. 76. Iowa, 440; Bell v. Cox, 122 Ind. 153. « Watson v. New York Cent. R, 47 See Chambers w. Carteret & S. R., 54 N. N. Y. 157; Gimbel v. Stolte, 59 Ind. J. L. 85. 446 ; Bean v. Kulp, 7 Phila. 650 See 2 Pickford v. Lynn, 98 Mass. 491 ; Crane v. Elizabeth, 36 N. J. Eq. 339. Drury v. Midland R., 127 Mass. 571 ; See § 302. King V. New York, 102 N. Y. 171 ; ' Workman w. Mifflin, 30 Pa. 362. Plumer v. Wausau Boom Co., 49 Wis. See also Philadelphia, W. & B. R. v. 449. See also Stewart v. White, 98 Mo. Williams, 54 Pa. 103. 226 ; Chicago v. Messier, 38 Fed. Rep. 8 Strickland v. Pennsylvania E., 154 302. See § 306. Pa. 348. 3 Taylor v. County Comm., 18 Pick. » Piatt v. Bright, 29 N. J. Eq. 128, 309. Calumet River R. v. Brown, 136 111. * Sherwood v. Lafayette, 109 Ind. 322. See also Mich. Air Line R. t. 411; Harrison v. Sabina, 1 Ohio C. C. Barnes, 40 Mich. 383. See Hedden v. 49. But see Crane v. Elizabeth, 36 N. Davidson, 51 Cal. 138 ; Mclntyre v. Eas- J. Eq. 339 ; Whiting v. New Haven, 45 ton & A. R., 26 N. J. Eq. 425. Conn. 303. lo Shelton v. Derby, 27 Conn. 414. 310 PKOCEDUEB. [chap. XI. interested " have been defined to be " individuals having some independent right or interest therein [the legal estate], not amounting to an actual legal estate, such as an easement of a right of way, inchoate rights of dower or curtesy, or encum- brances, such as by judgments or mortgages which are charges or liens on the legal estate." ^ Where a railroad corporation leases merely the right to run its trains over the track of another company it is not a " person interested as owner or otherwise," and need not be made a party to a proceeding to condemn a right to cross the railroad.^ § 341. Joinder of Parties. — If several parties are to be joined in a single proceeding to condemn it must be either because their several properties are needed to further a single pubUc use, or because they are all interested in a single piece of property. It is sometimes enacted that the owners of tlie several properties desired shall be joined in a single proceeding.^ It has been held, also, that all the owners should be joined in a proceeding where a jury must decide the necessity of the undertaking, as otherwise conflicting decisions might be rendered.* But, unless contemplated by statute, tliere is, as a rule, no community of interests between owners of several properties. Therefore, one cannot object that owners of other land affected have not been made parties,^ that the work in question is improperly located upon another's land,^ that compensation has not been assessed to other parties interested,' nor that a new trial has been granted to owners of other land.^ Where a railroad company required the use of streets, as well as of private property, a private owner was not permitted to question the condemnation of his own land on the ground that the right to use the streets had not yet been 1 State V. Easton & A. R., 36 N. J. L. Grimes v. Coe, 102 Ind. 406 ; Village of 181- " Middletown, 82 N. Y. 196; Boyd... 2 Englewood Connecting R. v. Chi- Kegley, 40 Pa. 377. See also Knox v. cago & E. I. R., 117 111. 611. Epsom, 56N. H. U; Ives v. East Haven, ^ Evergreen Cemetery Ass'n v. 48 Conn. 272. Beecher, 53 Conn. 551 ; Duke v. Cent. « Newton v. Agricultural Branch R., N. J. Tel. Co,, 53 N. J. h. 341. 15 Gray, 27. * Houghton r. Huron Min. Co., 57 ' Clifford v. Eagle, 35 111. 444. Mich. 547. But see McKee v. Hull, 69 Wis. 657. 6 Nichols V. Salem, 14 Gray, 490; » Gage v. Chicago, 141 111. 642. SECT. 343.] PROCEDURE. 311 gained, but an order was made that title to the private property should not pass until this right was obtained.^ § 342. Where there are several persons holding such interests in the property condemned as necessitate their being made parties, there is certainly no impropriety in joining them, and usually it would seem to be good practice to do so. It has been held that all tenants in common should be joined in a single proceeding,^ and should join as complainants where compensa- tion is recoverable by suit.^ Where land is held by husband and wife in joint tenancy, proceedings to condemn a perpetual easement, to which the husband only is made a party, are effi- cient to divest his interest. The wife may enjoin the corpora- tion until her interest is legally divested, and this though the husband has during her life the sole use of the land, for the right to use does not include the right to depreciate the possible interest of the wife as survivor.* Where property of a corpora- tion is to be taken the individual stockholders need not be made parties.^ Conduct of tlie Cause. § 343. Where the tribunal is a special one, and the statute does not prescribe the method by which the cause shall be conducted, it is safe to say that the method should conform, as nearly as possible, to that by which a cause is tried before a court of law. Where the tribunal is a common-law jury, super- vised by a court, the mode of procedure usually conforms to that of an ordinary trial. In instructing a jury in condemna- tion proceedings the judge is governed by the usual rules as to impartiality of statement, and correctness of legal principles.® Where expropriators are obliged to show the necessity of the undertaking, or any other fact prerequisite to condemnation, 1 New York Cent. & H. R. R. 77 Bowman v. Venice & C. R., 102 111. N. Y. 248. 459. 2 Kohl V. United States, 91 U. S. ^ phiUips v. Sherman, 61 Me. 548. 367 ; Grand Rapids, N. & L. S. R. v. * Grosser v. Rochester, 60 Huu, 379. Alley, 34 Mich. 16 ; Watson v. Mil- 5 Peirce u. Somersworth, 10 N. H. waukee & M. R., 57 Wis. 332. See 369. Dyckman v. New York, 5 N. Y. 434 ; 6 Seefeld v. Chicago, M. & S. P. Stevens v. Battell, 49 Conn. 156 ; R., 67 Wis. 96 ; Dupuis v. Chicago & Whitcher v. Benton, 48 JSf. H. 157 ; N. W. R., 115 111. 97; Kiernan v. Chi- 312 PEOCBDtTEB. [CHAP. XI. they bear the burden of proof, and hence are entitled to open and close.^ Where the question is simply as to the amount of compensation it is frequently held that the owner should open and close, because he claims unliquidated damages,^ and the same course is approved upon the hearing of an appeal.^ But in some States it is decided that the expropriators should open and close.* The argument in support of this position is that, in the absence of proof by either party, the tribunal could not put the expropriators in possession of the property on payment of nominal compensation, and that, therefore, the party who would be defeated through lack of proof should open and close. Evidence. § 344. This subject has been considered in detail in listing the elements of compensation. It is important, however, to deter- mine the general principles which govern the admission of tes- timony in the trial of the cause. The rules of evidence which govern the course of an ordinary trial are not altogether perti- nent in special proceedings for the assessment of compensation. Where the assessment is made by a lay tribunal, not acting under the supervision of a court, the technical rules of evidence need not be strictly observed. Information as to the value of the property may be obtained in any reasonable manner.^ Conformity to the established rules of evidence comports with a wide range of inquiry in proceedings to condemn. The cago, S. F. & C. R., 123 111. 188 ; Clay- 88 Cal. 50. See Albany North. R. v. ton 0. Chicago, I. & D. R., 67 Iowa, 238. Lansing, 16 Barb. 68. 1 Baltimore & 0. R. «. Pittsburgh, » Connecticut River R. v. Clapp, I W. & K. R., 17 W. Ya. 812; Neff v. Cu.«h. 559; Indiana, B. & W. R. v. Reed, 98 Ind. 341. See also Spring Cook, 102 Ind. 1.33 ; Minnesota Val. R. Valley Water Works v. Drinkhouse, 92 v. Doran, 17 Minn. 188. Cal. 528 ; New York Cent. R., 66 N. Y- « Neff v. Cincinnati, 32 Ohio St. 215 ; 407 ; Wisconsin Cent. R. v. Cornell Uni- Montgomery Southern R. v. Sayre, 72 versity, 52 Wis. 537. Ala. 443 ; South Park Comm. v. Trus- 2 Burt V. Wigglesworth, 117 Mass. tees, 107 111. 489. 302 ; New York, L. & W. R., 33 Hun, s Readington v. Dilley, 24 N. J. L. 148; Colorado Cent. R. i>. Allen, 13 209; Columbia Delaware Bridge v. Col. 229 ; Springfield & M. R. v. Rhea, Geisse, 36 N. J. L. 537 ; William & 44 Ark. 258; Baltimore & O. R. v. Anthony Streets, 19 Wend. 678; New Pittsburgh, W. & K. R., 17 W. Va. York, L. & W. R. v. Arnot, 27 Hun, 812 ; Conwell v. Tate, 107 Ind. 171. See 151 ; Staten Island Rapid Trans. Co., also San Diego Land, etc. Co. v. Neale, 47 Hun, 396. SECT. 845.J PKOCEDUKB. 313 pith of the law of evidence is that the best proof of relevant matter must be adduced. Now it so happens that the objective point in an ordinary action can be better determined by fact than by opinion, hence the superiority of fact. But where the value of property is in question, opinion evidence is admissible as tending to elucidate the very point at issue, for value is an opinion of worth. ^ As the chief duty of the tribunal is to esti- mate the value of something condemned, opinion evidence is admitted in accordance with the above rule. A witness may be examined in respect to his competency.^ The competency of witnesses is largely within the discretion of the presiding judge.^ As it is the duty of the tribunal to declare its own estimate of compensation, it is clear that the opinions of witnesses bearing on the question are intended to assist the judgment of the tribunal, not to bind it.* But it is equally clear that the testimony of competent persons should not be arbitrarily disregarded.^ § 345. Expert Witnesses. — The position of expert testimony '' in condemnation proceedings is not always made clear. A tribunal of assessment may be confronted by problems in the valuation of property the solution of which calls for expert tes- timony. The property itself may be of an uncommon character. Thus, a railroad franchise, a mine, or other peculiar property may well call for an expert opinion in respect to the elements which 1 See Clark v. Baird, 9 N. Y. 183; P. E., 44 Minn. 195; Tel. Cable Co. v. Kellogg V. Krauser, 14 S. & R. 137. Railway Co., 43 La. An. 522 ; Oregon 2 Schuylkill Kiv. R. b. Stocker, 128 & C. R. v. Barlow, 3 Or. 311 ; Princeton Pa. 233 ; Boston & W. R. v. Old Colony v. Gieske, 93 Ind. 102 ; Grand Rapids, & F. R. R., 3 Allen, 142; Whitney v. L. & D. R. v. Chesebro, 74 Mich. 466. Boston, 98 Ma.ss. 312; Chicago, K.&N- ^ Shoemaker v. United States, 147 R. V. Stewart, 47 Kan. 704. See Finch U. S. 282 ; City of Kansas v. Baird, 98 V. Chicago, M. & S. P. R., 46 Minn. Mo. 215; Washburn v. Milwaukee & L. 250. R., 59 Wis. 364 ; Grand Rapids v. Per- ' Montana R. v. Warren, 137 IT. S. kins, 78 Mich. 93; Hoffman i'. Blooms- 348 ; Phillips v. Marblehead, 148 Mass. burg R., 143 Pa. 503 , Peoria Gas Light 326 ; Neilson v. Chicago, M. & N. R., Co. v. Peoria, etc. R., 146 111. 372. 58 Wis. 516. 8 "The non-expert testifies as to * McReynolds y. Burlington &0. R., conclusions which may be verified by 106 111. 152; Patterson v. Boston, 20 the adjudicating tribunal, — the expert Pick. 159 ; Western Pacific R. v. Reed, to conclusions which cannot be so veri- 35 Cal. 621 ; Papooshek v. Winona & S. fied." Wharton, Evidence, § 434. 314 PKOCEDUEE. [chap. XI. make up its value.^ The effect of the undertaking upon the property may be beyond the unaided comprehension of the tri- bunal. In this event the opinion of an expert engineer is admis- sible on the question whether or not the land is damaged by the construction of the work,^ and, if injury is done, the cause and extent of it.^ An insurance agent has been permitted to give his opinion as to the risk to property due to the proximity of a railroad, although he did not profess to be an expert.* It has been held that where a farm is cut by a railroad a farmer may be an expert witness on the single question as to the effect of the intersection from the agricultural standpoint.^ Where the testimony of a professed expert is based on mere theory and conjecture it should be disregarded.® Expert evidence should not be received upon speculative questions, or on matters presumably within the comprehension of the tribunal. It has been held that there is no such thing as expert evidence as to the effect of smoke, noise, and vibration upon the value of land, as this the commissioners are fully able to determine for themselves.'' Although an expert may testify in respect to the existence of a mineral deposit, he should not be called upon to value the future use to which the land is adapted by reason of the deposit.* In a recent railroad case,^ a witness called as an expert was asked what, in his opinion, was the pres- ent worth of the property, and what it would have been worth had not the railroad been built. The court ruled that, while expert testimony as to actual value was often admissible, it should not be received upon a speculative question which the jury were at least as competent to pass upon as the witness.^** As the value of ' Brown v. Comm. for Railways, 1 .5 6 Peoria & P. U. K. u. Peoria &. F. App. Cas. 240. See Clark v. Rockland R., 105 III. UO. Water Power Co., 52 Me. 68. ' Thompson v. Pennsylvania R., 51 2 Moyer v. New York Cent. R., 98 N. J. L. 42 ; Pennsylvania R. ,,. Root, N. Y. 645. See Van Wycklen v. Brook- 53 N. J. L. 253. lyn, 118 N. Y. 424 ; Chicago, K. & W". « Packard v. Bergen Neck R., 54 N. R. V. Donelson, 45 Kan. 189 ; Miller v. J. L. 553. Weber, 1 Ohio C. C. 130. 9 Roberts v. N. Y. El. Ry., 128 N. Y. 8 Chandler v. Jamaica Pond Aque- 455. duct Co., 125 Mass. 544; Wilson v. i" See also Gray i>. Manhattan El R., Scranton, 141 Pa. 621. 128 N. Y. 499; Jefferson o. New York * Webber v. Eastern R., 2 Met. 147. El. R., 132 N. Y. 483. ^ Pennsylvania R. v. Root, 53 N. J. L. 253. SECT. 346.] PROCEDURE. 315 the reversion of laud affected with a railroad easement depends on the duration of the railroad use it is clearly beyond the range of expert testimony.^ § 346. Ordinary Witnesses to Value. — It has been held that the estimation of the market value of land is not a matter of science or skill requiring the offices of an expert.^ On the other hand, courts have admitted what is called expert testimony in respect to value.^ Now all opinion evidence is expert, in the broad sense that it is based upon knowledge of the subject-mat- ter, and the greater the experience of an intelligent witness the more weighty is his testimony. Therefore, a tribunal whose duty it is to assess compensation for property taken for public use may consider valuations placed upon it by persons whose call- ings render them familiar with the sort of property in question. Among such witnesses are real estate agents * and tax-assessors.^ A farmer may be a competent witness to the value of farm land.^ But it is not necessary that a person should follow a particular calling in order to qualify him to testify to the value of property. Any one having a fair knowledge of values is competent.^ Where a part of a tract is taken, it has been decided that a witness may express his opinion as to the amount of damage or benefit due to the undertaking,^ though he should not state 1 Boston & W. E. V. Old Colony & F. Iowa, 132 ; Kansas City & S W. R. v. R. R., 3 Allen, 142. Ehret, 41 Kan. 22; Curtin v. Nittany 2 Pennsylvania & N. Y. R. v. Bun- Val. R., 135 Pa. 20. hell, 81 Pa. 414 ; Jones v. Erie & W. R., ' Pennsylvania & N. Y. R v. Bun- 151 Pa. 30; Swan v. Middlesex, 101 nell, 81 Pa. 414 ; Pittsburgh & L. B. R. Mass. 173 ; Cherokee v. Town Lot, etc. v. Robinson, 95 Pa. 426; Chicago, P. & Co , 52 Iowa, 279. See also Johnson v. S. L. R. v. Nix, 137 HI. 141. Freeport & M. R., HI 111. 413. ^ Tucker v. Mass. Cent. R., 118 Mass. 8 Republican Val. R. v. Arnold, 13 546 ; Snow v. Boston & M. R., 65 Me. Neb. 485 ; Choteau v. St. Louis, 8 Mo. 230 ; Chicago, P. & St. L. R, v. Nix, App. 48 ; Brown v. Providence & S. R., 137 111. 141 ; Hine v. New York El. R., 12 R. I. 238. 36 Hun, 293 ; Railroad Co. v. Foreman, * Schuylkill, etc. R. v. Stocker, 128 24 W. Va. 662 ; Sherman v. St. Paul, Pa. 233. See also Lawrence v. Boston, M. & M. R., 30 Minn. 227 ; Burlington llQMass. 126; Laing«. United N.J. R., & N. R. v. White, 28 Neb. 166. See 54 N. J. L. 576. Rochester & S. R. v. Endlong, 6 How. 5 Sexton V. North Bridgewater, 116 Pr. 467 ; Somerville & E. R. o. Doughty, Mass. 200. 22 N. J. L. 495. 6 BaU V. Keokuk & N. W. R., 74 316 PROCEDURE. [chap. XI. separate items of damage, but should confine himself to the general depreciation.^ On the other hand, it has been held that a direct question as to the amount of damage or benefit cannot be put to a witness, because that is the very question the tri- bunal is to decide, but that his opinion may be asked as to the difference in value before and after the location of the undertaking.'^ § 347. View. — A corporation lawfully entered upon land pending an appeal from the award. The compensation was found to be excessive, and a new trial was granted. The owner objected to the new trial on the ground that the cor- poration had destroyed one building, and suffered another to fall into ruin, and that therefore a view of the property in the state in which it was condemned was rendered impos- sible. The objection was dismissed. The court held that a view was not necessary.^ It is frequently enacted, however, that the tribunal shall, or may, assist their judgment in respect to compensation by viewing the premises to be condemned. Even in the absence of statutory provision a judge may direct a view,* and there is no reason why a tribunal, not under judicial supervision, should not view the property of their own motion.^ Where persons have forcibly prevented arbitrators from entering upon their premises they cannot of course object that a proper view was not taken.^ It has been held that the view is to be taken in order to better understand the testimony offered, rather than to obtain the independent evidence of the senses.' But the better opinion, especially where the tribunal is composed of persons selected for their special competency in 1 New York, "W. S. & B. R., 29 Hun, < Springer u. Ohicaeo, 135 HI. 552. 609. 6 Readington v. Dilley, 24 N. J. L. 2 Railway Co. v. Gardner, 45 Ohio 209. St. 309 ; Brunswick & A. R. (;. McLaren, ^ Palgrave Min. Co. v. McMillan 47 Ga. 546 ; Alabama & F. R. o. Bur- (1892), A. C. 460. kett, 42 Ala. 83 ; Hartley v. Keokuk & ' Flower u. Baltimore & P. R., 132 N. W. R., 52 N. W. Rep. 352 (Iowa, Pa. 524 ; Washburn v. Milwaukee & L. 1892); Yost v. Conroy, 92 Ind. 464; R., 59 Wis. 364; Seefeld v. Chicago, Brown v. Providence & S. R., 12 R. I. M. & S. P. R., 67 Wis. 96 ; Heady v. 238. See Elizabethtown & P. R. v. Vevay, etc. Turnpike, 52 Ind. 117; Helm, 8 Bush, 681. Chicago, K. & W. R. v. Mouriquand, 45 8 Atchison, T. ft S. F. R. v. Schnei- Kan. 170. der, 127 111. 144. SECT. 349.] PROCEDUEE. 317 the matter of assessment, is that the view is evidence.^ Agree- ably to this opinion the tribunal may, by personal examination, discredit the weight of testimony,^ though they cannot arbitra- rily supplant the testimony by their view.^ § 348. Documentary Evidence. — The question before the tri- bunal is not usually such as is elucidated by documentary evi- dence. But where such evidence is pertinent it should be received.* Computations of the area of the property in question, made by an engineer, may be given to a jury as a memorandum.* The landowner has been allowed to offer an unrecorded plat of his land, made before condemnation, for the purpose of showing its projected division into building lots.® Where compensation is to be assessed for injuries inflicted by a railroad in a street upon abutting property, a city ordinance regulating the speed of trains, etc. may be offered in evidence, as tending to show the manner of use.'' On a petition to assess compensation for land taken for a railroad the corporation offered in evidence an execu- tive document of the United States Senate, containing a report of a preliminary survey of the War Department covering the land in question, for the purpose of showing that the construction of the railroad embankment conferred a special benefit upon the property by protecting it from the sea. The evidence was excluded, because the acts of the engineers were not acts of state, nor the facts in the report public facts.^ § 349. Evidence as to Necessity of Works. — It has been held that opinion evidence as to the utility of the proposed work is not admissible.^ In deciding upon the utility of a proposed 1 Wakefield o. Boston & M. R., 63 * Pennsylvania Canal «. Dunkel, 101 Me. 385 ; Remy v. Municipality No 2, Pa. 103; Dwight v. County Comm., 11 12 La. An. 500; Springfield o. Dalby, Cush. 201 ; Rippe v. Chicago, D. & M. 139 111. 34. R., 23 Minn. 18. 2 Kiernan v. Chicago, S. F. & C. 5 Neff u. Cincinnati, 32 Ohio St. R., 123 111. 188. See also Boston Road, 215. 27 Hun, 409 ; Kings County El. R., ° Cincinnati & S. R. v. Longworth, 15 N. Y. Supp. 516 ; City of Kansas v. 30 Ohio St. 108. Butterfield, 89 Mo. 646 ; Parks .;. Bos- ' Mix v. Lafayette, B. & M. R., 67 ton, 15 Pick. 198; Barbadoes St., 8 111. 319. Phila. 498. 8 Cashing v. Nantasket Beach R., ' Grand Rapids v. Perkins, 78 Mich. 143 Mass. 77. 93. 9 People V. Burton, 65 N. Y. 452; 318 PKOCEDUEE. [CITAP. XI. road uDder a railroad trestle, the viewers are not bound to con- sider that, in the event of filling the trestle so as to make a solid embankment, the township will have to pay for the neces- sary culvert.^ The Beport. § 350. The decision of the tribunal should be so expressed as to make a part of the record of the proceedings. The title of the decision depends generally on the character of the tribunal. The conclusions of a jury are usually embodied in a verdict, while those of commissioners are expressed in a report, or award. As these conclusions are not essentially dissimilar, as a rule, they will be considered together under the title of the report. The report should recite such facts as are necessary to show the jurisdiction of the tribunal in the premises.^ The requirement that the tribunal shall find that the under- taking is necessary ^ is satisfied by the following reports,* — that there is occasion for a road,^ that a road '' ought to be laid." ^ It is not satisfied by a report that a road should be established,^ that a road will be of public utility if opened at the expense of the petitioners,® that it is necessary to take the land for the pur- pose of operating and constructing a railroad.^ It has been held that a conditional report may be made, where the necessity depends on the settlement of a legal question. Thus, a board of selectmen properly reported that a road to a pond was neces- sary if the public had the right to fish therein, but not necessary if the fishery were private. i" The Supreme Court of Michigan have decided that a jury must find that the public benefit of an undertaking will at least offset its cost to the public, else there is no necessity.^i Thompson v. Deprez, 96 Ind. 67. See 534 ; Morgan's Appeal, 39 Mich. 675 ; Deitrichs v. Lincoln & N. W. R., 13 Hunter v. Newport, 5 R. I. 325. Neb. 361. 6 Pocopson Road, 16 Pa. 15. 1 Kingston Township Road, 134 Pa. « Pierce v. Southbury, 29 Conn. 490. 409. 7 Rundle v. Blakeslee, 47 Mich. 575. 2 Stout V. Freeholders, 25 N. J. L. 8 Wilson u. Whitsell, 24 Ind. 306. 202 ; Central Pacific R. v. Pearson, 35 See Thurman v. Emmerson, 4 Bibb, 279. Cal. 247 ; Rex v. Croke, Cowper, 26. 9 Grand Rapids, N. & L. S. R. v. 3 See §§ 322, 326, 350. Van Driele, 24 Mich. 409. ^ See also Heagy v. Black, 90 Ind. i" Turner v. Selectmen, 61 Conn. 175. " Detroit v. Beecher, 75 Mich. 454. SECT. 351.] PROCEDTJEE. 319 There must not be a substantial variation between the under- taking described in the petition, and that which is reported to be necessary. Thus, where a road from A to B is petitioned for, a report in favor of a road from A to C is ineffective. ^ Where the trustees of a village are petitioned to lay out a street upon a certain course they cannot report in favor of a course one rod further to the east.^ The report should plainly designate the property condemned.^ The property described in the report must be the property described in the petition.* Where proceedings are instituted to condemn a right of way for a telegraph plant, between given points on the line of a railroad, a report, fixing compensation at so much a mile for each mile that the telegraph company may cover, will be set aside.^ § 351. The Award of Compensation. — The award should be in money only,® and should be definite.^ Hence, a report that compensation need not be paid, provided that a sufficient quan- tity of water for ordinary and farm purposes continue to flow in certain streams, is void for uncertainty.^ The fact that a party is not entitled to compensation need not appear in the report, in the absence of statutory direction.^ If the statute requires that compensation be awarded to the owner by name it must be obeyed.^" Where several properties are condemned in one proceeding the report should show the amounts to which the several owners 1 Twenty-eighth St., 11 Phila. 436. « See § 224. ^ People V. Whitney's Point, 102 ' Connecticut Eiver R. v. Clapp, 1 N. Y. 81. See also Powell v. Hitchner, Cush. 559 ; Ives jj.-East Haven, 48 Conn. 32 N. J. L. 211. 272; Winchester & P. K. v. Washing- 3 Smith U.Trenton Del. Falls Co., 17 ton, 1 Rob. (Va.) 67. See Palgrave N. J. L. 5; Northern R. v. Concord & Min. Co. «. McMillan (1892), A. C. C. R., 27 N. H. 183 ; Jeffries v. Swamp- 460. scott, 105 Mass. 535 ; Missouri Pacific » McCord v. Sylvester, 32 Wis. 451. R. V. Carter, 85 Mo. 448; Ohio River » Point No Point Road, 2 S. & R. R. V. Harness, 24 W. Va. 511 ; Penn- 277; Kingston Township Road, 134 Pa. sylvaniaR. t), Bruner, 55 Pa. 318. 409; Childs v. Franklin County, 128 < Chicago & N. W. R. v. Chicago, Mass. 97 ; Howland v. County Comm., 132 111.372; Spofford v. Bucksport & 49 Me. 143. See also Granger v. B. R., 66 Me. 26. See Bigaouette v. Syracuse, 38 How. Pr. 308. North Shore R., 17 Can. S. C. 363. i» Flatbush Ave., 1 Barb. 286 ; State 5 Postal Tel. Co. o. Louisville, N. 0. v. Fierson, 37 N. J. L. 363 ; Kearsley v. & T. R., 43 La. An. 522. Gibbs, 44 N. J. L. 169. 320 PEOCEDUEB. [chap. XI. are entitled,^ and, where there are several tracts belonging to one person, it is the better practice to report specific compensation for each tract.^ Where a single tract, subject to several estates or interests, is condemned, the practice as to the award is largely regulated by the nature of the interests. If these are such that their relative values are mere matters of computation, it is proper for the tribunal to apportion the compensation.^ But, agree- ably to the rule that the tribunal is ordinarily the judge of fact, not of law,* the award should be in gross wherever the interests, and their values are determinable by legal or equitable rules, and should be afterwards apportioned by a court.* Where the parties interested are joint tenants or tenants in common a gross award has been approved.^ § 352. It has been held that, unless the statute so prescribe, the report need not distinguish between compensation for land actually taken, and for injuries to the remainder of the tract.^ But it is certainly the better practice to separate these items of compeusation,^ and if the law requires the independent valua- tion of each part ^ the report must, of course, show compliance.^" It has been held that the compensation for several injuries to one tract need not be itemized." But the compensation should be itemized where the injuries are so independent that an appel- late tribunal cannot fairly pass upon the adequacy of compensa- 1 Grayrille & M. R. v. Christy, 92 336. See Knauft v. St. Paul, S. & T. F. 111. 337. See Rusch v. Milwaukee, L. R., 22 Miun. 173; Ruppert v. C. 0. & S. & W. R., 54 Wis. 136; Brimmer v. S. J. R., 43 Iowa, 490. Boston, 102 Mass. 19. 7 Packard;;. Bergen Neck R., 54 N. 2 See Kankakee & I. R. R. v. Ches- J. L. 553 ; Monterey County v. Gushing, ter, 62 111. 235 ; Sherwood v. St. Paul & 83 Cal. 507 ; "Wabash, S L. & P R w. C. R., 21 Minn. 122. McDougall, 126 111. Ill 3 Matter of New York, 99 N. Y. 8 Xrenton Water Power Co. v. 569 ; Getz ;;. Philadelphia & R. R., 105 Chambers, 13 N. J. Eq. 199 ; New Or- Pa. 547 ; Rentz v. Detroit, 48 Mich, leans, F, & G. R. v. Barton, 43 La. An. 544. See also State u. Fischer, 26 N. J. 171. L. 129. See Thornton u. North Provi- 9 See § 272. dence, 6 R. I. 433. lo See Illinois West. R. o. Mayrand, * See § 322. 93 m, 591. 6 Ross V. Elizabethtown & S. R., 20 n Delaware, L. & W. R. v. Bnrson, N. J. L. 230. See also South Park 61 Pa. 369 , American Cannel Coal Co! Comm. V. Todd, 112 111. 379 ; Columbia v. Huntingdon, T. & C. R. 130 Ind 98 • Del. Bridge v. Geisse, 34 N. J. L. 268. Flint & P. M. R. v. Detroit & B. C R ' « Pittsburgh & S. R. v. Hall, 25 Pa. 64 Mich. 350. SECT. 353.] PROCEDTTEB. 321 tioa without knowing the amounts charged to each.' Hence, a gross verdict for severance and level crossing was set aside, because it was impossible for the court of appeal to determine the adequacy of compensation for each injury.'^ It is sometimes required, and always proper, that, where bene- fits are to be taken into account, the report shall show the value of the benefits, and not merely the net compensation.^ But it lias been held that benefits need not be assessed separately unless the statute so commands.* It has been held that a report of " no damage " is good, as it will be presumed that the commis- sioners have found that the benefits offset the damages.^ As proceedings to condemn are based upon a right, they are not appropriate for the settlement of claims arising from a wrong. Hence, it is improper for the tribunal to award damages for a trespass committed by the corporation,^ or for injuries due to improper construction or management.^ But if such an award has been paid it should not be disturbed.^ Where the proper items in an award are distinguishable from the improper the former should be sustained. Thus, where compensation is given for an appropriation of land, and for damage caused by negli- gence, the latter should be struck out.^ § 353. Action upon the Report. — Where the report of the tribunal is made conclusive, ^° it is, of course, complete in itself, and marks the close of the proceedings. But it is frequently enacted that the conclusions of the tribunal shall be subjected to further action before their standing is fixed. This action is usually of a confirmatory nature. It is often required that the report shall be formally approved by a court. Indeed, it has 1 "Wead V. St. Johnsbnry & L. C. R., French, 68 Miss. 22 , Blodgett i'. Utica 64 Vt. 52. & B. R. R., 64 Barb. 580 ; Thompson's ^ Caledonian R. v. Ogilvy, 2 Macq. Case, 43 Hun, 41 6 ; Chicago & A. R. v. H. L. C. 229 Goodwin, 111 HI. 273. s Ohio & P. R. V. Wallace, 14 Pa. ' Neilson K.Chicago, M. &N. W. R., 245; Pueblo & A. V. R. II. Rudd, 5 Col. 58 Wis. 516; Badger v. Boston, 130 270. See al.so Philadelphia & E. R. u. Mass. 170 ; Chicago & I. R. v. Hunter, Cake, 95 Pa. 139. 128 Ind. 213. * Beekmanii. Jackson County, 18 Or. * Leber v. Minneapolis & N. E., 29 283. Minn. 256. = Ra.ssier v. Grimmer, 130 Ind. 219. 9 People v. Schuyler, 69 N. Y. 242. 6 Bond r. Mason City & F. D. R., i" See § 356. t6 Iowa, 438 ; Canton, A. & N. E. o. 21 322 PBOCEDtJEE. [chap. XI. been held that where commissioners are appointed by a court, a duty to submit their report to the court for confirmation will be implied, in case the statute does not expressly declare it.^ Con- firmation of another sort is required where the report of a tribu- nal, acting on behalf of a political corporation, is to be confirmed or accepted by the corporation. This requirement does not con- template, necessarily, a legal review of the proceedings, but rather a scrutiny in the interest of public expediency, so that the corpo- ration may guard against extravagance and inutility.^ Where the United States contemplate condemnation the President may be authorized to scrutinize the valuation of the property needed, not for the purpose of determining its correctness, but simply to decide whether the public necessity will justify the expenditure of the amount. Sach action is not judicial, but executive.^ Amendment. § 354. Where condemnation proceedings are quashed simply because of their irregularity, the execution of a public work is retarded, and its cost is increased by the cost of new proceedings, while the owner is not, as a rule, really benefited, as his property is still to be condemned. Therefore, where the defect is a mere irregularity the power to cure it by seasonable amendment should be liberally exercised. Amendment should be encouraged whenever the defect can be remedied without depriving the owner of any substantial right, or throwing the proceedings into confusion. The petition may be amended not only in formal matters, but to rectify substantial errors and omissions.* Thus, the petition may be amended by adding necessary parties,^ 1 Hingham, etc. Turnpike Co. v. v. County Comm., 14 Gray, 553 ; Eslich Norfolk County, 6 Allen, 353 ; Wyman v. Mason City & F. D. R., 75 Iowa, 443 ; V. Eastern E., 128 Mass. 346. See also Pennsylvania R. v. Porter, 29 Pa.' 165; Luxtonw. North River Bridge, 147 U.S. Boyd y. Negley, 40 Pa. 377; Pennsyl- 337. vania & N. Y. R. v. Bunnell, 81 Pa. 414 ; 2 See Elkhart u. Simonton, 71 Young v. Lacouia, 59 N. H. 534 ; ?,\i\> I°''- '7- urban Rap. Trans. R., 38 Hun, 553; 8 Shoemaker u. United States, 147 Rochester H. & L. R., 45 Hun, 126; U- S. 282. Russell v. Turner, 62 Me. 496. See * Southwestern Land Co. «. Ditch Perry w. Sherboru, 11 Cush. 388; Mid- Co., 18 Col. 489; Contra Costa R. v. land R. v. Smith, 109 Ind. 488. Moss, 23 Cal. 324 ; Grand Junction R. 6 Bowman v. Venice & C. R., 102 SECT. 354.] PKOCEDURE. 323 altering the location of the work,^ reducing the quantity of land to be condemned,^ altering the description of the property in question,^ and alleging that the work will be of public utility, and thereby taking it out of the category of private uses.* Amendment has been permitted to the end that the plan of construction be so modified that the work will cause less injury to property.^ Thus, it appears that a city, condemning land for a sewer, may amend its petition to the effect that the manholes shall be so constructed as to prevent the escape of sewer gas.^ A railroad company may amend their petition by altering their plan of construction so as to include fencing, and an under- ground crossing.' But an amendment should not be allowed which will confuse or radically alter the proceedings. Thus, where the petition of a railroad company for the condemnation of riparian land contained an agreement to construct a draw- bridge, so that the owner might still have access to the water, the agreement cannot afterwards be struck out.^ A corporation cannot have its petition so amended as to bring the proceedings within the purview of another statute than the one under which they were commenced.^ Until the tribunal has filed the report it may be amended.^" But when the tribunal has filed the report its powers are exhausted, as a rule, and it cannot revise or amend unless authorized by statute.^^ A court of review cannot, in the absence of statutory authority, correct errors in the report, but must quash or recommit it. But a clerical error in the report may he corrected by the court. ^^ 111. 4.59. See Chicago & W. E. v. Gates, ' Chicago & G. S. R. v. Jones, 103 120 111. 86 ; Wood ;•. Coram, of Bridges, Ind. 386. 122 Mass. 394 ; Littlefield v. Boston & » New York, W. S. & B. R., 89 N. Y. M. R., 65 Me. 248. 453. 1 Windham v. Litchfield, 22 Conn. ^ Peoria, P. & J. R. v. Black, 58 111. 226. 33. 2 See Prospect Park & C. I. R., 67 " SpringbrookRoad, 64Pa. 451. See N. Y. 371. also Long v. Talley, 91 Mo. 305. 8 Hunt V. New York, C. & S. L. R., " State i'. Longstreet, 38 N. J. L. 312 ; 99 Ind. 593. People v. Mott, 60 N. Y. 649 ; Northern * Coolman v. Fleming, 82 Ind. 117. R. v. Concord & C. R., 27 N. H. 183. 5 Chicago & I. R. v. Hunter, 128 Ind. See Stokes v. Parker, 53 N. J. L. 183. 213. 12 Anderson u. Township Board, 75 * Pasadena v. Stimson, 91 Cal. 238. Mo. 57. 324 PKOCEDUEE. [CBAP. XI. REVIEW OF PROCEEDINGS. § 355. When and how may proceedings to condemn be reviewed by a court upon motion of a party interested ? At the outset of this investigation it should be noted that, as a rule, the reviewing power of the courts cannot be invoked until the proceedings are completed.^ But there may be exceptions to this rule. Thus, where the jurisdiction of the tribunal in the premises is doubtful, it may be proper to decide the question at once upon certiorari? A review may be requested for one of two reasons. The proceedings themselves may be objected to in respect to juris- diction, or form. The objection may go to the conclusions of the tribunal in respect to the amount of compensation, or the necessity of the undertaking. An objection of the first kind is necessarily a ground for review. Otherwise, the cardinal rule that proceedings to condemn must conform to a constitutional statute would be often practically worthless. As a large pro- portion of the decisions cited in this book review proceedings upon allegations of jurisdictional or formal defects, it is unne- cessary to specify here the causes for review. Where errors in procedure could have been taken advantage of during the course of the proceedings a court of review will not take cognizance of them.^ § 356. A review of the decision of the tribunal on its merits is, in the absence of constitutional provision, a matter of legis- lative grace, not of constitutional right. An appeal is not an essential feature of that " due process of law '' without which one caunot be deprived of his property.* The privilege of appeal 1 Wheeling & B. Bridge v. Wheeling « Shepherd v. Baltimore & R., 130 Bridge, 138 U. S. 287; Kiskiminitas U.S. 426; Field o. Vermont & M. R., Road, 32 Pa. 9 ; State v. Englemann, 4 Cush. 150. See § 390. 106 Mo. 628; Pack r. Chesapeake &0. * State o. Stewart, 74 Wis. 620; R., 5 W. Va. 118 ; California South. R. Prospect Park & C. I. R., 85 N. Y. 489. V. South. Pacific R., 67 Cal 59. See See also New York & B. Bridge v. Clark, also Williams o. Hartford & N. H. R., 137 N. Y. 95 ; Pollard v. Moore, 51 N. H. 13 Conn. Ill; Roosa v. Henderson 188; Koenig i>. County of Winona, 10 County, 59 111. 446. Minn. 238. 2 See Luxton v. North River Bridge, 147 U. S. 337. SECT. 857.] KEVIEW OF PEOCEEDINGS. 325 m its broadest form enables the parties to appeal successively up to the court of last resort. Agreeably to the principle just noted, the legislature may wholly deny the privilege by making the judgment of the tribunal conclusive, or qualify it by permit- ting a final appeal to a court of inferior jurisdiction.^ Although an award, made conclusive at any stage of the proceedings, cannot be thereafter reviewed on its merits, its finality is con- ditioned on its conformity to the general principles of law, and the requirements of the particular statute.^ Hence, the court may inquire whether compensation was assessed in a case where the tribunal was authorized to act.^ So the award may be set aside on account of the irregular conduct of the tribunal,* or for error in the basis of assessment,^ such as estimation of urban land as farm land.^ § 357. Where the award is not conclusive it stands on much the same plane as the finding of a common-law jury, a conclu- sion reached by a competent and impartial tribunal, and not to be lightly disturbed.^ The reluctance of the courts to disturb an award is well illustrated in a recent decision of the House of Lords. The opinions of experts, as to whether the land con- demned contained valuable minerals, were conflicting. The jury preferred the affirmative opinion, and valued the property as mineral land. The House of Lords refused to set aside the award, deeming it unjust " to impose upon a person whose land has been taken from him against his will, the burden of proving by costly experiments the mineral contents of his land as a condition precedent to obtaining compensation, merely because the opinion of experts may be in conflict on the subject, or because in the opinion of a court of appeal the weight of scien- 1 Comm. of Central Park, 50 N. Y. 6 Central Park Extension, 16 Abb. 493 ; Board of Street Opening, 1 1 1 N. T. Pr. 56. 581 ; Honghton's Appeal, 42 Cal. 35. '^ Shoemaker v. United States, 147 2 Garrison v. New York, 21 Wall. TJ. S. 282 ; Port Huron & N. W. R. v. 196; Rikerw. New York, 3 Daly, 174. Callanan, 61 Mich. 22; Wilmington & ' Clark V. Saybrook, 21 Conn. 313. W. R. c. Smith, 99 N. C. 131 ; Postal * Matter of New York, 49 N. Y. 150 ; Tel. Co. v. LouisTiDe, N. O. & T. R., 43 People V. Canal Board, 7 Lans. 220. La. An. 522 ; McReynolds v. Burlington * See New York, L. & W. R., 102 & 0. R. R., 106 111. 152; EaUway Co. v. N. Y. 704. Combs, 51 Ark. 324. 326 PEocEDaEE. [chap. xi. tific evidence is adverse to the claim." ^ But the award may- be set aside because made arbitrarily ,2 or based on erroneous principles of valuation.^ False representations made to the tribunal may afford ground for setting aside the award/ but it should be shown that the representations have been acted upon.^ The award should not be sustained if it is clearly excessive,^ or inadequate. '' § 358. Where the constitution or statute declares that com- pensation shall be assessed by a particular tribunal a court of review cannot of course alter the award. It can only approve it, or order a reassessment.^ But, in the absence of constitutional restriction, a court may be authorized to correct errors in the assessment. A statute enabled the owner of land taken by a city to obtain relief, in case of dissatisfaction with the award, by appealing to a court, who should thereupon reassess the com- pensation. It was held that the court was invested with full power of reassessment, and could as well reduce the award as increase it.^ § 359. What effect does a judicial determination to review the proceedings have upon the progress of the undertaking ? If the objection goes to the legality of the proceedings the work can- not, of course, be prosecuted until it is overruled. In case the award of compensation is appealed from, and com- pensation precedent is not required by the constitution, there is 1 Brown v. Comm. for Railways, 15 N. J. Eq. 168; Mnt. Union Tel. Co. v. App. Cas. 240 Katkamp, 103 111. 420; Atchison, T. & 2 Kansas City, C. & S. R. i. Story, S. F. R. v Schneider, 127 111. 144; Joy 96 Mo. 611 ; Peoria & R. I. R. v. Bir- v. Water Co., 85 Me. 109 ; Merriam r. kett, 62 111. 332 ; Barbadoes St., 8 Phila. Meriden, 43 Conn. 173; Kansas City, 498 S. & C. R. V. Campbell, 62 Mo. 585 , 3 Swinney v. Port Wayne & M. & C. Dudley v. Minnesota & N. W. R., 77 R., 59 Ind. 205 ; State v. Pierson, 37 N. Iowa, 408. J. L. 363 ; Crater v. Fritts, 44 N. J. L. ' Grand Rapids v. Perkins, 78 Mich. 374 ; Port Huron & S. W. R. v. Voor- 93 ; Louisville City R. v. Cent. Pass. heis. 50 Mich 506 ; Union Depot Co. u. R., 87 Ky. 223. See Clarke v. Chicago, Backus, 92 Mich. 33. K. & N. R., 23 Neb. 613. 4 See Butman v. Vermont Cent. R., 8 Eochester Water Works v. Wood, 27 Vt 500. 60 Barb. 137; Mississippi Riv. Bridge 6 Port Huron & N. W. R. v. Callanan, v. Ring, 58 Mo. 491 . See also New 61 Mich. 22. Jersey R. v. Suydam, 17 N. J. L. 25. 6 New Jersey R. v. Suydam, 17 N.J. 9 Hall v. Meriden, 48 Conn. 416. L. 25 ; Carpenter v. Easton & A. R., 26 SECT. 360.J REVIEW OP PROCEEDINGS. 327 uo objection to authorizing the corporation to enter pending ap- peal, upon tender of the sum first assessed.^ Where a right to appeal is not given by the constitution it has been held that a constitutional requirement of previous compensation or security is not transgressed in a statute which permits entry after tender of the sum first assessed, for it is said that if the legislature gives an appeal, it may also prescribe the terms upon which it may be taken.^ Even where an appeal is guaranteed by the constitution it has been held that the legislature may authorize a corporation to enter pending appeal, upon depositing the assessed compensation;^ although the corporation cannot take this course in the absence of express authority.^ On the other hand, it has been decided that a tender of the award after the owner has appealed will not justify entry ,^ nor will entry be permitted upon a tender made before a reasonable time has elapsed without appeal.^ Methods of Review. § 360. The most common methods of reviewing proceedings to condemn are appeal and certiorari. The force of these reme- dies depends so largely upon local custom or statute that only their most marked characteristics are of general interest. Although the right to appeal is, in the absence of constitutional declaration, purely statutory,'' it has been inferred from long established custom in similar cases.^ When the statute allows an appeal, but does not prescribe the procedure, the court will ' New York Cent. & H. R R., 60 662 ; Eidemiller v. Wyandotte City, 2 N. Y. 116 ; Chicago, S. F. & C. R. R. o. Dill. 376. Phelps, 125 111. 482. 8 Cooper Parks V. Boston, 8 Pick. 218. 9 McAUilley v. Horton, 75 Ala. 491 ; 5 Mt. Morris Square, 2 Hill, 14. Hamilton i-. Harwood, 113 111. 154. '' Comm. V. Hearne, 59 Ala. 371; SECT. 363.] PROCEEDINGS AT INSTANCE OP OWNER. 329 where.^ The courts of this State have, upon certiorari, reviewed legislative and ministerial acts, as well as judicial ones,^ and the constitutionality of the statute under which the proceedings are instituted , ^ and have set aside proceedings because compensation has not been awarded to a party entitled,* and because the statute does not authorize the taking of the property in CLuestion.^ STATUTORY PROCEEDINGS AT THE INSTANCE OF THE OWNER. § 362. It is quite often prescribed that compensation shall be obtained by an action brought by the owner. In this case the expropriators may have the benefit of public powers without the burden, unless it be cast upon them by the owner. The propriety of this practice has been already discussed.^ In some cases the legislature prescribes regular proceedings to condemn, and gives a right of action to the owner as well, so that he may not be prejudiced by neglect to take proceedings.' But in such case the owner does not waive his right to compensation by failing to take the initiative.^ The form of action is commonly a petition for the assessment of compensation. But, whatever form be pre- scribed, the action is not given to redress a wrong, but to obtain compensation for an authorized interference with private prop- erty. Therefore, whatever may be the effect of a recovery in a common law action of trespass,^ an action prescribed by statute is usually intended to effect a final adjustment of the rights and liabilities of the parties.^'' § 363. Statutory Remedy exclusive. — There has been some controversy over the question whether the statutory action in a 1 Morris & E. R. v. Hudson Tunnel ' Lehigh Val. R. v. McFarlan, 43 Co., 38 N. J. L. 548. See also Lux- N. J. L. 605. See also MulhoUand v. ton V. North River Bridge, 147 U. S. Des Moines West. R., 60 Iowa, 740 ; Ash 337. V. Cummings, 50 N. H, 591. 2 Camden o. Mulford, 26 N. J. L- » Beck v. Louisville, N. 0. & T. R , 49. 65 Miss. 172 ; Nichols v. Somerset & K. 8 Doughty V. Somerville & E. R., 21 R., 43 Me 356. See Calking ... Bald- N. J. L. 442. win, 4 Wend. 667. * State V. Hulick, 33 N. J. L. 307. » gee § 309. 6 State V. Montclair R., 35 N. J. L. '" Lehigh Val. R. v. McFarlan, 43 328. N. J. L 605; Delaware, L. & W. R. ■ Harrington v. County Comra., 22 538 , Smart v. PortsmoHtli & C. E., 20 Pick. 263; Higgins v. Chicago, 18 HI N. H. 233; Corwith v. Hyde Park, 14 276 ; State v. Keokuk, 9 Iowa, 438. See 111 App. 635 ; Kimball v. Rockland, 71 State t). Hug, 44 Mo. 116. Me. 137. See also McCormack ?;. Brook- 8 People V. Brown, 55 N. Y. 180. lyn, 108 N. Y. 49; Sage ». Brooklyn, 89 See aLso Ryan v. Hoffman, 26 Ohio St. N. Y. 189 ; Donnelly v. Brooklyn, 121 109; Myers v. South Bethlehem, 149 N. Y. 9 ; Board of Supervisors v. Buf- Pa. 85 ; Rogers' Case, 7 Cowen, 526. falo, 63 Hun, 565 ; Russell Mills v. * State V. Superior City, 81 Wis. 649. County Comm., 16 Gray, 347. 5 People Whitney's Point, 102 '' Bloomington v Brokaw, 77 111. N. Y. 81. See also People v. Schuyler, 194. See also Jersey City v. Gardner, 69 N. Y. 242 ; People v. Township 33 N. J. Eq 622. See McCnllough v. Board, 3 Mich. 121. Brooklyn, 23 Wend. 458. 8 Omaha & N. W. R. v. Menk. 4 8 United States v. Great Palls Man. Neb. 21 ; Philadelphia v. Dyer, 41 Pa. Co., 112 U. S. 645. 342 REMEDIES. [chap. XII. was set aside it was held that the owner could not sue the city upon an implied contract to pay the value of the land, as this would be opposed to the statute of frauds, and would be, more- over, beyond the contracting power of the city.^ In Smith v. Tripp ^ the statute provided that the owner should seek com- pensation within a year. After the expiration of the year assumpsit was brought, and an express promise alleged. The court admitted that such a promise would support the action, but found that the promise must have been general, as there was no agreement as to price ; that if made before the end of the year the promise was gratuitous, as it did not appear that the owner had agreed to forego his statutory action ; that if made after the year it was without consideration, as the liability of the city had terminated ; finally, that the retention of the land did not constitute a moral consideration which would support the promise. Trespass may be brought against a public agent for any injury to property committed in the unlawful exercise of powers, or the negligent conduct of the undertaking.^ So, a common-law action, usually trespass, may be brought on account of consequential injuries for which the public agent is made liable by constitution or statute,* and for which an exclusive remedy ^ is not provided.^ The rule of the common law obtains that, in the event of actual ouster, trespass will lie for the dispossession only, and not for subsequent damage until possession has been regained.'' Pend- ing an action in case on account of an unlawful occupation the parties agreed to a reference. It was urged that this operated as a discontinuance, but the court held that an agreement to refer, not followed by an award, did not discontinue the suit, for the agreement might come to naught, and, in the meantime the owner might lose his remedy by the operation of the statute of limitations.^ Where trespass is brought for an alleged abuse of 1 Paret y. Bayonne, 40 N. J. L. 333. 6 Pennsylvania R. v. Duncan, HI 2 14 R. I, 112. Pa. 352. See also Chicago & E. I. R. ' Mulholland v. Des Moines, etc. R., v. Loeb, 118 111. 203. 60 Iowa, 740 ; Blesch v. Chicago & N. ' Murray v. Fitchburg R., 130 Mass. W. R., 43 Wis. 183 ; Bethlehem Gas, 99. See also Baltimore & 0. E. u. etc. Co. V. Yoder, 112 Pa. 136. Boyd, 63 Md. 325. 4 See §§ 153-157. 8 Callanan v. Port Huron & N. W. 6 See §§ 363, 364. E., 61 Mich. 15. SECT. 378.] REMEDIES OF THE PKOPEKTY OWNEK. 843 lawful power the constitutionality of the power itself cannot be drawn in question.^ The most important questions in respect to the action of trespass in connection with our subject — the measure of damages and the effect of recovery — have been already considered.^ §378. Recovery of Possession. — A landowner may bring ejectment against a corporation in wrongful possession of his property. Ejectment will lie where the occupation is referable to a wrongful entry j^ where there is a failure to perfect title according to the statutory direction ; * and where there is a loss of title either through violation of conditions subsequent, as where land is wrongfully diverted to another use,^ or through the expiration of an agreement.^ In Austin v. Eutland Eail- road Co./ the defendants were in possession of a tract of land one undivided moiety of which they had purchased outright, while in the other moiety they held the interest of a life tenant. Upon the death of the tenant the remainderman, whose inter- est had not been acquired, brought ejectment. As the possession of the company was lawful up to the death of the life tenant, and as a work of public interest had been constructed. Chief Justice Eedfield refused to allow ejectment, and referred the plaintiff to the statutory remedy for the recovery of compensa- tion.^ Ejectment has been sustained although a verdict will restore but a technical possession, as where the land in question is within the lines of a street.^ Ejectment cannot be brought 1 Mason v. Kennebec & P. E., 31 ^ Strong v. Brooklyn, 68 N. Y. 1. Me. 215. ° Green St. Joseph Hydraulic Co. v. Cin- v. West. Vermont Il.,33 Vt. 311; Pro- cinnati, W. & M. R., 109 Ind. 172. volt v. Chicago, R. I. & P. R., 57 Mo. 2 See Hull V. Chicago, B. & Q. R., 21 256 ; s. c. 69 Mo. 633. Neb 371; Coburu d. Pacific, L. & M. R., 6 Missouri Pacific R. v. Gano, 47 46Cal.31. Kan. 457. 8 Richards v. Buffalo, etc. R., 137 ' Louisville, N. A. & C. R. v. Beck, Pa. 524. See St. Lawrence & A. R., 133 119 Ind. 124. See also West. Penn- N. Y. 270. sylvania R. v. Johnston, 59 Pa. 290 4 Wheeling, P. & B. R. v. Warrell, s Hooper v. Columbus & W. R., 78 122 Pa. 613; Jersey City v. Pitzpatrick, Ala. 213. See Crosby v. Dracnt, 109 30 N. J. Eq. 97 ; Conger v. Burlington Mass. 206 ; Walker v. Chicago, R. L & &S. R., 41 Iowa, 419. P. R, 57 Mo. 275. 6 Trenton Water Power Co. u. 9 Cincinnati, H. & I. R. v. Clifford, Chambers, 9 N. J. Eq. 471 ; McAulay 113 Ind. 460. SECT. 380.] EEMEDIBS OF THE PEOPEETY OWNEE. 345 Equitable Jurisdiction. § 380. The question of granting equitable relief in cases of wrongful appropriation of property to public use has so often engaged the attention of -the courts that the jurisdiction in the premises may be said to be fairly well defined. Proceedings to condemn are of a legal, rather than an equitable, nature. They are supervised by inferior tribunals, whose errors are not cognizable in equity, as a rule, because there is adequate redress at law.^ Hence, a bill in equity should not be brought to set aside or restrain condemnation proceedings,^ nor to restrain entry upon an allegation of the partiality of the tribunal, where an appeal is provided by the statute,^ nor to set aside an award.* An application for an injunction against a municipal corpora- tion, on the ground that proceedings to condemn were void and would cloud the title to the property in question, was refused. The court said that if the proceedings were void they would not cloud the title.^ But the jurisdiction of courts of equity in respect to fraud and mistake has enabled them to grant relief in some cases.^ Where a tribunal of assessment was so misled by false representations as to assess compensation at one doUar, where it should have given five thousand dollars, relief was granted.^ Courts of equity have been successfully invoked to compel the proper apportionment of an award, especially where it is subject to equitable claims.* ^ Brooklyn v. Meserole, 26 Wend. People v. Wasson, 64 N. Y. 167; An- 132; Keokuk & N. W. R. v. Donnell, derson v. St. Louis, 47 Mo. 479; Mobile 77 Iowa, 221 ; Haff v. Fuller, 4.5 Ohio & G. R. v. Ala. Mid. E., 87 Ala. 520 ; St. 495 ; Pack v. Chesapeake & 0. R., Lake Shore & M. E. u. Chicago & W. 5 W. Va. 118 ; Cumberland & P. E. o. E., 96 111. 125. Pennsylvania E., 57 Md. 267 ; Union ^ Bass v. Fort Wayne, 121 Ind. Mut. Life Ins. Co. u. Slee, 123 111. 57; 389. Buchner v. Chicago, M. & N. E., 56 * Shenandoah Val. E. u. Eobinson, Wis. 403. See also Doughty v. Somer- 82 Va. 542. See Carpenter v. Easton ville & E. E., 7 N. J. Eq. 51 ; Morris & A. E., 24 N. J. Eq. 249,408; s. c. 26 Canal, etc. Co. v. Jersey City, 12 N. J. N. J. Eq. 168. Eq. 252; Ewing v. St. Louis, 5 Wall. ^ Wiggin v. New York, 9 Paige, 16. 413 ; Cherokee Nation v. South. Kansas « gee Port Huron & N. E. j. Callanan, E., 135 U. S. 641 ; Bevier v. Dillingham, 61 Mich. 22. 18 Wis. 529 ; Bygrave v. Met. Board of ' Wells v. Bridgeport Hydraulic Co., Works, 32 Ch. D. 147. 30 Conn 316. 2 Clark a. TeUer, 50 Mich. 618; « Mclntyre . London & B. R., 5 De G. 136; "West. Union Tel. v. Jndkins, 75 M. & G. 851. Ala. 428. 2 Pinchin v. London & B. E., 5 De G. ' Hentz v. Long Island E., 13 Barb. M. & G. 851. 646 ; Midland E. v. Smith, 113 Ind. 233 ; 5 Diedrich n. Northwest Un. E., 33 Kincaidw. Natural Gas Co., 124 Ind. 577; Wis. 219. See Church v. School Dist., Bassett v. Salisbury Man. Co., 47 N. H. 55 Wis. 399. 426; Denver & S. F. E. v. Domke, 11 « Pratt V. Eoseland E., 50 N. J. Eq. Col. 247 ; Goodin . Randolph Town-site Co. , 103 Mo. Newville Road, 8 Watts, 172. See Penn 45 1 . Mut. Life Ins. Co. o. Heisa, 141 III. 8 Longworth v. Cincinnati, 48 Ohio 35. St. 637. 2 Lamm v. Chicago, S. P. etc. R., 45 ' Jersey City v. Sackett, 44 N. J. L. Minn. 71. See Wolfe v. Covington & 428. L. R., 15 B. Mon. 404. w Reckner o. Warner, 22 Ohio St. ' Evansville & R. R. v. Charlton, 33 275. See also Abbott v. Supervisors, N. E. Rep. 129 (Ind. 1893). , 36 Iowa, 354. 4 See §§ 379, 382. n See § 392. 6 West. Pennsylvania R. w. Johnston, 12 Benedict v. State, 120 N. Y. 228. 59 Pa. 290 ; Erie R. v. Delaware, L. & See also Brookville, etc. Co. v. Butler, W. R., 21 N. J. Eq. 283; Pennsylvania 91 Ind. 134. Co. u. Piatt, 47 Ohio St. 366. See also " Cory v. Chicago, B. & K. C. R., Manchester & K. R. v. Keene, 62 N. H. 100 Mo. 282 ; Pratt v. Des Moines & N. 81. R., 72 Iowa, 249 ; Cottrill v. Myrick, 12 3ECT. 390.] ESTOPPEL. 855 § 389. Where an owner appears and participates in the pro- ceedings his action is considered as a waiver of certain irregular- ities,^ such as neglect to treat for purchase before condemning,^ failure to give proper notice,* and neglect of the tribunal to take the prescribed oath.* AVherever an appearance is alleged in bar of an objection to the proceedings it may be shown that an appearance in law cannot be inferred from the facts,* as, for example, where the owner appears to remonstrate and expressly reserves his legal rights,® and where he appears as a witness in obedience to a summons.^ Acceptance of compensation is a waiver of all irregularities in the proceedings to condemn.* But it has been held that where an award to a municipal corporation is directed to be paid to the city chamberlain his simple receipt will not estop the cor- poration from appealing, provided it appears that the city has not used the money, or in any way assumed control of it.^ The owner cannot at once acquiesce in the propriety of proceedings to condemn by claiming compensation) and assert that the pro- ceedings are invalid.'" § 390. If there are irregularities in the proceedings, and the owner neglects to avail himself of an opportunity to take advan- tage of them, they will be presumed to be waived.'^ Upon the Me. 222; Fuller v. County Comm., 15 ' People v. Ostorn, 20 Wend, 186. Pick. 81. See also Embury u. Connor, * Hatch u. Hawkes, 126 Mass. 177; 3N. Y. 511; White u. County Comra., Prescott v. Patterson, 49 Mich. 622; 2 Gush. 361. But see McKee v. Hull, Kile v. Yellowhead, 80 111. 208 ; Union 69 Wis. 657. See § 131. Mut. Life Ins. Co. i-. Slee, 123 111. 57 ; 1 Hercules Iron Works w. Elgin, J. & Hawley v. Harrall, 19 Conn. 142 ; Skin- E. R., 141 111. 491 ; Rochester, H. etc. ner ». Hartford Bridge Co., 29 Conn. E., 19 Abb. N. C. 421. 523 ; Denver City, etc. Co. v. Middaugh, 2 Wilson V. Trenton, 53 N.J. L. 178. 12 Col. 434. 3 Skinner v. Lake View Ave. Co., 57 » New York & H. E., 98 N. Y. 12. HI. 151 ; Stephens v. Coram., 36 Kan. l" Pinkham v. Chelmsford, 109 Mass. 664. 225 ; Gt. Falls Man. Co. v. Atty.-Gen., » Eockford, E. I. & S. L. R. v. Mc- 124 U. S. 581. See also Eailroad Co l: Kinley, 64 111. 338 ; Raymond J). County Robbins, 35 Ohio St. 531; Marquette, Comm., 63 Me. 110. H. & 0. R. v. Harlow, 37 Mich. 554. 5 Minneapolis & S. L. R. v. Kanne, " New York, W. S. & B. R., 35 Hun, 32 Minn. 174. 575 ; Bradley v. Frankfort, 99 Ind. 417 ; * State V. Jersey City, 25 N. J. L. St. Joseph Hydraulic Co. v. Cincinnati, 309. See also Spurrier v. Wirtner, 48 W. & M. R. R., 109 Ind. 172; Crowell Iowa, 485. V. Londonderry, 63 N. H. 42 ; Noyes i/. 356 REMEDIES. [CHAP. XII. completion of proceedings duly authorized, and brought before a competent tribunal, they have the force and effect of an ordi- nary judgment. They cannot be attacked collaterally.' Where proceedings to condemn are invalid either through lack of con- stitutional authority, or neglect of jurisdictional requirements, they may be collaterally impeached.^ § 391. "When are Public Agents Estopped ? — Corporations may, in some cases, plead ultra vires in defence to a claim for injuries to property.^ But they are estopped, as a rule, from tak- ing advantage of their own wrong or mistake where they proceed under an authority, sufficient in itself, or made sufficient by the acquiescence of the property owner.^ Where one has built a dam by authority of the legislature he cannot avoid paying dam- ages for flooding land by asserting that the statute is unconstitu- tional because it does not provide for tlie assessment of damages by a jury.^ A corporation cannot plead an agreement in bar of an action if it has not kept the agreement.^ LIMITATION OF ACTIONS. § 392. Wherever compensation is to be recovered in a statu- tory action by the owner, the legislature may prescribe the period within which the action shall be brought.^ It is essen- tial that limitation laws afford a reasonable time for bring- ing suit, else they deprive one of his property without due Springfield, 116 Mass. 87; State v. 2 Chicago & N. W. R, w. (Jalt, 133 Nelson, 57 Wis. 147; Supervisors v. 111.657. Stent, 9 W. Va. 703; Smith i;. School 3 gee § 119. Dist., 40 Mich. 143. 4 Bnell v. Lockport, 8 N. Y. 55 1 Ruling V. Kaw Val. R., 130 U. S. 6 People v. Murray, 5 Hill, 468. 559; Townsend v. Chicago & A. R., 91 6 Bertsch v. Lehigh, C. & N. Co., 4 111. 5t5; Brinamer v. Boston, 102 Mass. Rawle, 130; Philadelphia, N. & N. Y. 1 9 ; Dyckman M. New York, 5 N. Y. 4.34 ; R. v. Cooper, 105 Pa. 239; Hooper v. Miller v. Prairie du Chien & M. R., 34 Columbus & "W. R., 78 Ala. 213 ; Hart- Wia. 533 ; Williams v. Mitchell, 49 Wis. ley <,-. Keokuk & N. W. R., 52 N. W. 284; Thompson v. Chicago, S. F. & C. Rep. 352 (Iowa, 1892). See New York R., 110 Mo. 147 ; Chicago, K. &N. R. v. & G. L. R. o. Stanley's Heirs, 34 N. J. Griesser, 48 Kan. 663 ; Batman v. Ver- Eq. 55. mont Cent. R., 27 Vt. 500 ; Morris & E. ' See § 362. R. V. Hudson Tunnel R., 38 N. J. L. « Rexford v. Knight, 11 N. Y. 308; 548; McDonald K. Payne, 114 Ind. 359. Mark v. State, 97 N. Y. 572; Call v. See also Indiana Oolitic Limestone Co. County Comm., 2 Gray, 232. V. Louisville, N. A. & C. R., 107 Ind. 301. SECT. 393.] LIMITATION OF ACTIONS. 357 process of law.^ Although the spirit of this requirement is generally observed in the laws limiting actions in respect to condemnation, it seems to have been hardly respected in some decisions.2 Thus, sixty days from the passage of an act estab- lishing a highway has been deemed a sufficient time within which to claim compensation for land taken, the statute itself, public in nature though private in name, giving constructive notice.* Although there may not have been in fact a denial of justice in the decisions just cited, yet when it is recalled that one's property may be taken upon constructive notice,^ and that the only redress may be the statutory action,^ it is clear that a short period of limitation may in fact affect seriously the consti- tutional right to compensation. § 393. In conformity to the strict rule of construction which is applied to the law of limitation, no less than to the eminent domain, the court must be satisfied that the limitation pleaded is plainly intended to fit the case at bar.^ Hence, where it is enacted that parties injured by the improvement of a street can bring an action within three years, one, whose property abuts on a section of a street raised far above the grade line by means of a viaduct, is not affected by the limitation, for the viaduct is not strictly an improvement of the street, but a new way.^ Where there is no period specially prescribed for the bringing of actions in respect to expropriation, it is generally held that the public agent cannot plead in bar a general statute limiting actions for trespass,' breach of contract,^ or equitable relief, i" But one who wrongfully appropriates property may rely on an adverse possession for the statutory period." 1 See Philadelphia v. Wright, 100 ' Donnelly v. Brooklyn, 121 N. Y. Pa. 235. 9 ; Shortle v. Louisville, N. A. & C. R., 2 See Lincoln v. Colusa County, 28 130 Ind. 50.^. See Houston & T. C. R. Cal. 662 ; Potter v. Ames, 43 Cal. 75. v. Chaffin, 60 Tex 553. 3 Minnesota «. Messenger, 27 Minn. ^ Kellar v. Harrisburg & P. R., 151 119. Pa, 67 ; Jersey City v. Sackett, 44 N. J. * See § 337. 6 gee § 363. L. 428 ; Kendall o. Missisquoi & C. R. n Delaware, L. & W. R. d. Burson, 61 R-, 55 Vt. 438. Pa. 369; Mark v. State, 97 N. Y. 572; i" Gilman v. Sheboygan & P. R., 40 Benedict v. State, 120 N. Y. 228; Law- Wis. 653 rence R. ,-. Cobb, 35 Ohio St. 94. » Railroad Co. v. O'Harra. 48 Ohio ' Cohen v. Cleveland, 43 Ohio St. St. 343 ; Sherlock v. Louisville, N. A. 190. & C. R., 115 Ind. 22. See also Han- 358 KEMEDIES. [CBAP. Xlf. § 394. The period of limitation begins to run the moment the caiise of action is complete. This point may be iixed by statute, as when it is declared that suit must be brought within a certain time after the passage of the act.^ If the action is to be begun ■within a fixed time after the completion of the work it has been held that the completion of the whole undertaking is meant,^ but, unless this conclusion is demanded by the express words of the statute, the better opinion is that the legislature means the completion of the part of the undertaking upon the land in ques- tion.^ The completion of the taking is often declared by the statute to be the time from which the period of limitation begins to run, and is the proper time where the statute is silent. Where inchoate appropriation is permitted,* the period is not begun until the appropriation is completed.^ An authorization to appropriate, not followed by action, is not treated as an appro- priation. Hence, where an order to open a street is delivered to the proper authorities, who take no steps to carry it out, the period of limitation does not run from the receipt of the order.^ But a definite assertion of dominion over property may be equiv- alent to an actual appropriation. Thus, where a city, by a vote of its council, perfects a right to take the waters of a stream, the pe- riod within which the owner must seek compensation begins to run at once, and not at the time when the waters are actually diverted.' The distinction between a single and a continuing trespass ® is material in determining the commencement of the period of limi- tation. If the trespass is a continuing one a new period is ush- ered in on every day of its continuance.^ Important too is the rule, applicable to all actions, that an injury actually suffered after the original period of limitation, but referable to the origi- nal cause of action, is barred as a part thereof.i" The fact that num V. West Chester, 63 Pa. 475. See ^ Brower v. Philadelphia, 142 Pa § 133. 3i50. 1 Rexford v. Knight, 11 N. Y. 308; « Volkmar St., 124 Pa. 320. Minnesota i: Messenger, 27 Minn. 119. ' Worcester Gas Light Co. t). County 2 Commonwealth v. Fisher, 1 Pen. & Comm., 138 Mass. 289. Watts, 462. 8 See §§ 308, 309. 3 Commonwealth v. McAlister, 2 ^ Galway v. Met. El. Ry., 128 N. T. Watts, 190. See Hendrick v. Carolina 132 ; Baltimore & P. R. v. Fifth Baptist Central R., 101 N. C. 617. . Chnrch, 108 U. S. 317. * See § 201. w Davis v. New Bedford, 133 Mass. 549. See also §§ 129, 163. SECT. 394.J LIMITATION OF ACTIONS. 359 the defendant corporation has instituted proceedings to condemn within the alleged period of limitation is a sufficient acknowledg- ment of the owner's title to take the case out of the statute.^ Where a corporation occupies land, and pleads a statute in bar of an action, the owner may take the case out of the statute by proving that the parties had negotiated for a settlement dur- jng the alleged period of limitation.^ 1 Hull B. Chicago, B. & Q. R., 21 2 Perkins v. Maine Cent. E., 72 Me. Neb. 371. 95. 360 IMPROVEMENT AND USE OF STREETS. [CHAP. XIII. CHAPTER Xin. THE IMPROVEMENT AND USE OP STREETS. § 395. The improvement of a street, or its use for purposes other than that of a way for ordinary vehicles, is often detrimen- tal to private property. Many of the most important questions in respect to the liability of the promoters of public works for injuries to property have been raised by such improvement or use. Some of these questions are comparatively novel. Others, supposed to have been settled, have been reopened by the intro- duction of new methods of transportation and transmission. Legislation, both constitutional and statutory, has cleared or confused the situation according to the amount of legal sense behind it. Finally, courts of the highest rank have come to different conclusions upon fundamental questions. § 396. It will be assumed that the strip of land in question has passed into the control of the public for street purposes, for until it is definitely set apart for the public use private rights therein are not divested.-* Hence, a railroad company authorized to lay tracks upon land laid out, but not opened, as a street, must compensate the owner thereof.^ In a recent case land occupied by a railroad company had been dedicated for a street in 1858, but had since remained in its natural condition. An adjoining owner claimed compensation for a permanent injury to his right of access. The court refused to approve such a basis of assessment, as the street was not in final shape, but directed a recovery for such injury as had been sustained to 1 Baltimore & 0. R. v. Boyd, 63 Md. 121 Pa. 35 ; Wichita & W. R. v. Fe- 325. See Fowler's Case, 53 N. Y. 60 ; cheimer, 36 Kan. 45. See also Beidler's Elizabethtown & P. R. v. Thompson, 79 Appeal, 23 W. N. C. (Pa.) 451 ; Jarden Ky. 52. V. Philadelphia, W. & B. R., 3 Whart. " Quigley u. Pennsylvania S. V. R., 502. SECT. 397.] IMPROVEMENT AND USB OF STREETS. 361 date of suit.^ Public authorities, empowered to lay sewers through streets, cannot enter for this purpose upon land on which a street has not been regularly laid out.'' § 397. The fee of the land used for a street is usually in the abutting owner, the public having an easement sufficient to support the use. Where the fee is in the public it is usually a base fee conditioned on the maintenance of the public interest.* While it will appear that important distinctions have been drawn between streets where the fee is in the public and those where it is in private hands, the means whereby the land is impressed with the public servitude do not condition its use. Thus, the public interest obtained by dedication is equal to the interest acquired by purchase or condemnation.* The public interest in a street, whatever its character, is vested in the state, not in the municipality or other subordinate political corporation,* unless the constitution provides otherwise.® Upon principle the control of the state over streets is plenary, but it may be qualified by the constitution. Thus in New York a street railroad company cannot use a street without the consent of the local authorities.'' It follows from the state ownership of streets that a right to use a street for any purpose out of the common must be given by the legislature either directly, or by duly authorizing an agent, usually a municipal corpora- tion.^ And the authority given will not be construed so broadly as to enable the municipality to grant a perpetual or exclusive use of the streets.® Where this right is not conditioned on the assent of the abutting owner i" he has no interest which will 1 Smith V. Kansas City, S. J. & C. B. 72 Wis. 184. See also State v. Shawnee E., 98 Mo. 20. County, 28 Kan. 431. 2 Rhinelander's Case, 68 N. Y. 105. « St. Louis v. West. Union Tel. Co., 'Paul V. Detroit, 32 Mich. 108; 149 U. S. 465. Gerhardt v. Reeves, 75 111. 301. See "< New York Dist. R., 107 N. Y. 42; also People v. Kerr, 27 N. Y. 188. See Third Ave. R., 121 N. Y. 536. § 206. 8 Mercer v. Pittsburgh, F. W. & C. * Mercer v. Pittsburgh, F. W. & C. R., 36 Pa. 99 ; Stanley v. Davenport, 54 R., 36 Pa. 99 ; Montgomery v. Town- Iowa, 463 ; Davis v. New York, 14 N. Y. send, 80 Ala. 489. 506. 5 District of Columbian. Baltimore « Milhau v. Sharp, 27 N. Y. 611; & P. R., 1 14 U. S. 453 ; Arbenz v. Grand Rapids St. E'ys, 48 Mich. 433. Wheeling & H. R., 33 W. Va, 1 ; People 1" See § 330. V. Walsh, 96 111. 232 ; State v. Hilbert, 362 IMPEOVEMEJJT AND USE OF STREETS. [CHAP. XIU. enable him to question the existence of authority in a given case, unless he can show that the use in question injures his property.^ But if injury can be shown the authority may be questioned,^ for without authority no man's property can be taken, or subjected to a nuisance. THE IMPROVEMENT OF STREETS. § 398. The widening of a street by taking adjoining land must be accomplished of course by the eminent domain. And it has been held that the narrowing of a street may so injure the easement of an abutting owner as to entitle him to compensation.^ According to the common law the public authorities may grade streets without liability for any injury whatsoever to abutting property which may result from the proper execution of the work.* The rule has been widely sustained on principle in this country, where the injury in question is not a physical encroachment on the abutting property.^ Where the injury is a physical encroachment, such as the casting of earth or water upon abutting land, it has been frequently held that the common law is superseded by the rule of the eminent domain, — that compensation may be obtained as for land taken for public use,^ and it has been further held that, upon principle, land abutting 1 Detroit City R. i.. Mills, 85 Mich. O'Connor v. Pittsburgh, 18 Pa. 187; 634 ; Van Home v. Newark Pass. R., 48 Quincy v. Jones, 76 111. 231 ; Hovey u. N. J. Eq. 332. Mayo, 43 Me. 322 ; Reynolds v. Shreve- 2 Perry v. New Orleans, M. & C. R., port, 13 La. An. 426; Fellowes v. New 55 Ala. 413; Daly i). Georgia South. & Haven, 44 Conn. 240; Henderson v. F. R., 80 Ga. 793 ; Fanning d. Osborne, Minneapolis, 32 Minn. 319 ; Rounds v. 102 N. Y. 441 ; Forth v. Manhattan R., Mumford, 2 R. I. 154 ; Kehrer u. Rich- 58 N. Y. Super. 366. mond, 81 Va. 745 ; Smith v. Eau Claire, 8 Rennselaer v. Leopold, 106 Ind. 29. 78 Wis. 457. See also Moose v. Carson, 104 N. C. 431 ; « Nevins v. Peoria, 41 lU. 502 ; Hen- Williams V. Carey, 73 Iowa, 194. See dershott v. Ottumwa, 40 Iowa, 658 Gates V. Kansas City Bridge, 1 1 1 Mo. Vanderlip v. Grand Rapids, 73 Mich 28. 522 ; Keating v. Cincinnati, 38 Ohio St, * Governor, etc. v. Meredith, 4 T. R. 141 ; Broadwell v. Kansas City, 75 Mo. 794. 213; Gray «. Knoxville, 85 Tenn. 99. ' Smithi). Washington, 20 How. 135; See Noonan v. Albany, 79 N. Y. 470 Callender v. Marsh, 1 Pick. 417 ; Rad- Moore v. Albany, 98 N. Y.396; Ruther- cliff's Exrs. V. Brooklyn, 4 N. Y. 195 ; ford v. Holley, 105 N. Y. 632. Pontiac v. Carter, 32 Mich. 164; SECT. 399.] THE IMPROVEMENT OP STREETS. 363 on a street is entitled to lateral support as if the street were private property.^ § 399. In most of the cases thus far cited the grading of streets has been done to increase their utility as common ways. It has been held also that, as a bridge for ordinary traffic is but a link in the system of highways, the making of suitable approaches is on the same footing as an ordinary change of grade.^ But it frequently happens that graduation is necessary in order to facilitate the construction of a work of public inter- est, especially a railroad. In this case compensation is not due on account of graduation, if none can be claimed on account of the work itself.^ It may be that, while the established grade presents no obstacle to the construction of the work, an alteration must follow such construction in order to maintain the higliway use. Thus, where a railroad is laid along a street, the regrading of intersecting streets is often necessary to make safe and convenient crossings. It has been decided in this case, that even though the rail- road itself may impose an additional servitude on the fee, the change of grade may be made without compensation, tlie cause of the change being irrelevant, and its purpose — the improve- ment of a street — being attainable without liability.* So, a railroad corporation has been permitted to grade the highway approach to its station without compensating the owner of the fee, as the work is considered a mere alteration in grade, under- taken by the corporation instead of by the city.^ But other decisions do not recognize a distinction in this respect between the construction of a railroad along a street, and a change of grade on account of the construction of a railroad across it, and 1 Dyer v. St. Paul, 27 Minn. 457 ; * Uline v. New York Cent. & H. R. Stearns v. Richmond, 88 Va. 992. R , 101 N. Y. 98 ; Conklin v. New York, 2 Skinner v. Hartford Bridge Co., 29 O. & W. R., 102 N. Y. 107 ; Rauenstein Conn. 523. See Cohen u. Cleveland, 43 u. New York, L.& W. R., 136 N. Y. 528, Ohio St. 190; Prater v. Hamilton Robinson d. Great North. R., 48 Minn County, 90 Tenn. 661 ; Reed v. Camden, 445 ; Whittieer v. Portland & K. R , 38 53 N. ,J. L. 322. Me 26. See also Towle v. Eastern R., 8 Slatten v. Des Moines Val. R., 29 17 N. H. 519. Iowa, 148 ; Newport &. C. Bridge > Newell w. Minneapolis, L. & N. R., 3 CarU a. Stillwater St. R., 28 Minn. 35 Minn. 112. 373 6 Nichols v. Ann Arbor & Y. R., 87 * Briggs V. Lewiston, etc. R., 79 Me. Mich. 361. 363 ; Williams v. City Electric R., 41 ' Rafferty v. Cent. Traction Co., 147 Fed. Rep. 556 ; Nichols v. Ann Arbor & Pa. 579. See Lorie v. North Chicago R , Y. R., 87 Mich. 361 ; Paquet v. Mt. 32 Fed. Rep. 270 ; Harrison u. Mt. Tabor St. R., 18 Or. 233. See Stanley Auburn R., 17 W'kly Bull (Ohio) 265. 368 IMPROVEMENT AND USB OF STREETS. [CHAP. XIII. and carries the return current, and a motor attached to the car is forced into action. It has been held that an electric railway does not impose an additional servitude upon the fee. In Halsey V. Eapid Transit Railway Company,^ the poles were placed in the centre of a street about sixty feet wide, at intervals of one hundred and twenty-five feet. Vice-Chancellor Van Fleet in giving judgment for the company said, " The poles and wires have been placed in the street to aid the public in exercising their right of free passage over the street. That being so, it seems to me to be clear beyond question that the poles and wires do not impose a new burden on the land, but must, on the contrary, be regarded both in law and reason as legitimate acces- sories to the use of the land for which it was acquired. They are to be used for the propulsion of street cars, and the right of the public to use the streets by means of street, cars without making compensation to the owners of the naked fee in the street, is now so thoroughly settled as to be no longer open to debate." ^ Where the poles were placed at the curb, the same conclusion has been reached upon reasoning substantially sim- ilar.^ In an Ohio case cited,* it was suggested that if poles were so placed as to actually impair access compensation should be paid. This accords with the doctrine of Street Eailway v. Cumminsville.® It seems that an electric railroad may be laid on a country road without compensation to the owner of the fee.® In answer to the argument that electric railway poles should stand on a footing with telegraph and telephone poles, which have been pronounced an additional burden on the fee,' a distinction has been drawn between the railroad as minister- ing to the original thoroughfare use, and the telegraph as irrel- 1 47 N. J. Eq. 380. R., 139 Pa. 419 ; RafCerty u. Cent. Trac- 2 See also Koch v. North Ave. Ry., tion Co., 147 Pa. 579. See also Potter 75 Md. 222. See Farrell v. Winchester v. Saginaw St. R., 83 Mich. 285 ; Tracy Ave. R., 61 Conn. 127. v. Troy & L. R., 54 Hun, 550; Ogden 3 Taggart c. Newport St. R., 16 R. I. City R. v. Ogden City, 7 Utah, 207. 668; Mt. Adams, etc. R. v. Win.slow, 3 * Pelton v. East Cleveland R., 22 Ohio C. C. 425 ; Louisville Bagging Co. W'kly Bull. 67. V. Cent. Pass. R., Louisville (Ky.) Court, 6 14 Ohio St. 523. See § 402. 1890 ; Detroit City R. o. Mills, 85 Mich. « Heilman v. Lebanon, etc. K., 145 634 ; Paterson R. v. Grundy, 26 Atl. Rep. Pa. 23. 788 (N. J. 1893) ; Lockhart v. Craig St, ' See § 407, SECT. 404.] THE USES OP STKBETS. 869 evant to such use.^ It has been urged that the electric current in common use is dangerous to life and property, but courts have declined to accept this as an establisljed fact in view of the evidence presented.^ The claim that the electric current causes a deterioration in the general telephone service has been noticed elsewhere,^ and an allegation of injury to a particular telephone has been dismissed, as it appeared that the detriment existed before the construction of the railway.* § 404. Elevated Railroads. — By an elevated railroad we mean , a road raised above the street and used for the transportation of passengers from station to station, instead of from point to point along the street, as in the case of ordinary street railroads. The legal history of these roads in the city of New York is, in re- spect to volume, probably unequalled in the annals of litigation. A synopsis will be sufficient for the present purpose. The roads iu question are built upon an iron roadbed, supported by iron pillars planted in the roadway or at the curb. The cars are somewhat similar to those used on ordinary railroads, and are made up into trains, which are drawn by steam locomotives. The trains, which are chiefly intended for passenger traffic, are run at short intervals, and stop at regular stations. The statutes authorizing the companies to occupy the streets did not provide for compensation to the owners of abutting property, for it was assumed that the fee of the streets in question was in the public in respect to all thoroughfare uses, and the legislature intended to grant a clear right of way. The Court of Appeals decided, however, that the legislature had no power to grant the right of way in disregard of certain easements over the street which were declared to appertain to abutting property ; that these easements were property and could not be taken without compensation.^ ^ Taggart v. Newport St. R., 16 E. T. J. Eq. 380 ; Pelton v. East Cleveland R. 668 ; Hal.=iey v. Rapid Transit R., 47 N. 22 Wkly Bull. (Ohio) 67. See also Xat'l J. Eq. 380. But Judge Dillon says of Tel. Co. y. Baker (1893), 2 Ch. 186; thi.s distinction that it is "so fine "as to Detroit City R. <-■■ Mills, 85 Mich. 634. be almost impalpable, and it suggests ' See § 80. serious doubts whether both conclusions ^ Louisville Bagging Co. ti. Cent, are sound and reconcilable." Mun. Pass. R., Louisville (Ky.) Court, 1890. Corp. p. 893, note. ^ Story v. New York El. R., 90 N. T. ' Taggart v. Newport St. R., 16 R. I. 122. 668 ; Halsey v. Rapid Transit R., 47 N. 24 370 IMPROVEMENT AND USE OP STREETS. [CHAP. XIII. The case was reargued and the original decision affirmed.^ In both Story's and Lahr's cases the easements were based on con- tract, the streets in question having been opened under the Act of 1813. There were other streets occupied by the elevated railroads which dated back to the Dutch dominion, and had been declared to be owned absolutely by the State according to the rule of the civil law.^ Still other streets were opened during the English colonial period. But the courts have declared that the easements defined in Story's case do not depend on contract, but affect every street without reference to its origin.^ It has been decided that the easement of access is affected by the drip- ping of oil and water from the structure ; * the easement of light by the structure itself,^ the statious,^ and the passing trains ;^ the easement of air by smoke, gases, ashes, and cinders.^ The ease- ments have been held to be unaffected by noise caused by the 1 Lahr v. Met. El. R., 104 N. Y. 268, in which Chief Justice Ruger stated the conclusions in Story's case as follows • " 1. That an elevated railroad iu the streets of a city operated by steam power and constructed as to form, equipment, and dimensions like that described in the Story case, is a perversion of the use of a street from the purposes originally designed for it, and is a use which neither the city authorities nor the legis- lature can legalize or sanction without providing compensation for the injury inflicted upon abutting owners. " 2. That abutters upon a public street claiming title to their premises by grant from municipal authorities, which con- tains a covenant that a street to be laid out in front of such property shall for- ever tliereafter continue for the free and common passage of and as public streets and ways for the inhabitants of said city, . . . acquire an easement in the bed of the street for iugress and egress to and from their premises, and also for the free and uninterrupted passage of light and air through and over said street for the benefit of property situated thereon. "3. That the ownership of pnch ease- ment is an interest in real estate consti- tuting property within the meaning of that term as used in the constitution of the State, and requires compensation to be made therefor before it can lawfully be taken from its owner for public use. " 4. That the erection of an elevated railroad the use of which is intended to be permanent in a public street, and upon which cars are propelled by steam- engines generating gas, steam, and smoke, and distributing in the air cin- ders, dust, ashes, and other noxious and deleterious substances, and interrupting the free passage of light and air to and from adjoining premises, constitutes a taking of the easement and its appro- priation by the railroad corporation, rendering it liable to the abutters for the damages occasioned by such taking.'' 2 Dunham v. Williams, 37 N. Y. 250. 8 Abendroth v. Manhattan R., 122 N. Y. 1. 4 Drucker v. Manhattan R., 106 N. Y. 157. 6 Drucker v. Manhattan R., 106 N. Y. 157. 6 Storck V. Met. El. R., 131 N. Y. 514. ' Drucker v. Manhattan R., 106 N. Y. 157. 8 Drucker v. Manhattan R., 106 N. Y. 157. SECT. 405.] THE USES OF STREETS. 371 operation of the railroad,^ by invasion of privacy,^ by obstruction of the full view of premises from the opposite side of the street.^ The laws incorporating elevated railway companies in New Jersey recognize private interests in streets, and prescribe compensation for their invasion.* § 405. steam Railroads. — When we speak of a steam rail- road we refer usually to a road built for the general transporta- tion of passengers and freight. The construction of such a railroad upon a street, the fee of which is private, is usually held to impose an additional servitude for which the owner must he compensated. This is so, chiefly for the reason that the occu- pation of the railroad is practically exclusive, both on account of the character of the roadbed and the speed of the trains.^ Where the fee of a street is in the public it has been decided that a railroad can be constructed without compensation to the abutter, as such damage as may result to his property is purely consequential and not within the purview of the eminent domain.^ According to some authorities this rule should not be applied where the construction of the railroad actually prevents access to the adjoining land.^ Thus, in Egerer v. New York Central & Hudson Eiver Eailroad Company,^ it was held that where a railroad was so built that access to abutting land with 1 Am, Bank Note Co. v. New York Kan. 191 ; Indianapolis, B. & W. R. v. El. R., 129 N. Y. 2.')2; Bischoff v. New Hartley, 67 111. 439; West. R. v. Alar York El. R., 138 N. Y. 257. bama G. T. R., 96 Ala. 272 ; Hodges u. 2 Messenger v. Manhattan R., 129 Seabord & R. R., 88 Va. 653. See also N. Y. 502. Citizens' Coach Co. v. Camden Horse R., 3 Messenger v. Manhattan R., 129 33 N. J. Eq. 267 ; Florida South. R. v. N. Y. 502. Brown, 23 Fla. 104 ; Wead v. St, Johns- « Sullivan !), North Hudson County bury &L. C. R.,64 Vt. 52. See Pierce y. R., 51 N. J. L. 518. Drew, 136 Mass. 75, Allen, J. ; Railroad s Williams v. New York Cent. R., 16 Co. v. Bingham, 87 Tenn. 522. N. Y. 97 ; Henderson v. New York Cent. " Drake v. Hudson River R., 7 Barb. & H. R. R., 78 N. Y. 423 ; Lawrence R. 508 ; Fobes v. Rome, W. & 0. R., 121 V. Williams, 35 Ohio St. 168 ; Imlay v. N. Y. 505 ; Clinton v. Cedar Rapids & Union Branch R., 26 Conn. 249 ; Reich- M. R. R., 24 Iowa, 455 ; Hill «. Chicago, ert V. St. Louis & S. F. R., 51 Ark 491 ; etc. R., 38 La. An. 599 ; Ottawa, 0. C, Weyl V. Sonoma Val R., 69 Cal. 202 ; etc. R. v. Larson, 40 Kan. 301 ; Gaus v. Sherman v. Milwaukee, L. S. & W. R., St. Louis, K. & N. R., 113 Mo. 308. 40 Wis. 645 ; Starr v. Camden & A. R., ' Reining v. New York, L. & W. R., 24 N. J. L. 592 ; Kncheman v. Chicago, 128 N. Y. 157. See Houston & T. C. R. C. & D. R., 46 Iowa, 366 ; Theobold v. v. Odum, 53 Tex. 343. LouisviUe, N. 0. & T. R., 66 Miss. 279 ; 8 i30 N. Y. 108. Chicago, K. & W. R. v. Woodward, 47 872 IMPROVEMENT AND USE OP STREETS. [CHAP. XIII. team and wagou was made impossible there was a taking of the abutter's property, — his easement of access. An earlier case ^ was distinguished, because it appeared that access was not obstructed, but merely made less convenient. But, in other cases, the fact that the fee of the street is in the public seems to preclude the existence of any valuable rights in the abutter. Thus, it has been held that although the construction of a rail- road bridge in a street practically destroys access to adjacent property, the owner is without redress.^ The general conclusion that a steam railroad in a street does not work a legal injury to adjoining property is reached in another group of decisions, in which the interest of the public in the street, though not technically a fee, is assumed to be sufficiently broad to exclude any private interest in respect to the thoroughfare uses to which the street may be put.^ But this statement seems to be also qualified by the doctrine of Egerer's Case,* that access cannot be wholly cut off.^ § 406. In still other decisions the nature of the public inter- est in the street is deemed immaterial, as a private easement is held to appertain to the abutting land.^ If the abutter can show that this easement is affected he may have redress.^ The fee of the street may be private and yet not in the com- plainant. It has been held that where the abutter's lot is bounded by the side line of the street compensation cannot be recovered for the construction of a railroad.^ So, compensation 1 Fobes ». Rome, W. & O. R., 121 107 ; Yates v. West Grafton, 34 W. Va. N. Y. 505. In Lamm v. Chicago, S. P. 783. & E., 45 Minn. 71, the Fobes case is dis- 6 gee § 416. approved as being inconsistent with the ' Adams v. Chicago, B. & N. R., 39 principle of the Elevated Railway Cases. Minn. 286 ; McQuaid v. Portland & V. '^ Slatten v. Des Moines Val. R., 29 R., 18 Or. 237 ; Phipps y. West. Mary- Iowa, 148. land R., 66 Md. 319; O'Brien v. Balti- 8 Philadelphia & T. R., 6 Whart. 25. more Belt R., 74 Md. 363 ; Fnlton v. See Richardson v. Vermont Cent. R., Short Route E., 85 Ky. 640; LouisviEe 25 Vt. 465 ; Yates v. West Grafton, 34 & N. 0. R. v. Orr, 91 Ky. 109 ; Indiana, W. Va. 783 ; Arbenz v. Wheeling & H. B. & W. R. v. Eberle, 110 Ind. 542. R., 33 W. Va. 1 ; Perry v. New Orleans, See also Onset St. R. u. County Comm., M. & C. R., 55 Ala. 413. 154 Mass. 395. * 130 N. Y. 108. 8 Grand Rapids & I. R. v. Heisel, 38 5 See Faust v. Passenger R., 3Phila. Mich. 62; Clark v. Rochester, etc. R., 164; Brainard «. Missisquoi R., 48 Vt. 18 N. Y. St. R., 903; Railroad Co. v. SECT. 407.] THE USES OP STREETS. 373 has been refused where the abutter owns to the centre of the street and a railroad is built upon the further side.^ On the other hand it has been said that although the complainant cannot show title to the soil upon which the railroad is placed, he may recover if he can prove special injury to his lot.^ But it has been held that the diversion of travel to the hither side of the street, due to the construction of a railroad upon the further side, does not necessarily impair access.* The constitutional and statutory declarations in respect to damaging or injuriously affecting property for public use usually impose a liability upon corporations constructing railroads in streets.* § 407. Telegraph and Telephone Lines. — Where statutes in- corporating telegraph or telephone companies permit the erec- tion of the necessary plant upon highways, the fee of which is private, there is a difference of opinion as to whether the owner is entitled to compensation. The prevailing opinion seems to ,, be that the plant is an additional servitude.^ But it has been held, on the other hand, that, as the telegraph and telephone are simply improved methods of communication, they are con- sistent with the highway easement for which the land was originally acquired.® Where the fee of the street is in the public it has been held that an abutter cannot have compensa- tion merely because a telephone pole is placed opposite his land, but must show special damage.'' Bingham, 87 Tenn. 522. See Fanning 2 Ohio C. C. 259 ; Chesapeake & P. Tel. V. Oshorue, 102 N. Y. 441. Co. v. Mackenzie, 74 Md. 36 ; Stowers v. 1 Heiss V. Milwaukee & L. W. R., Postal Tel. Co., 68 Miss. 559 ; Pacific 69 Wis. 555 ; Trustees, etc. v. Milwaukee Postal Tel. Co. v. Irvine, 49 Fed. Rep. & L. W. R., 77 Wis. 158; Sinnott v. 113: Met. Tel. Co. v. Colwell Lead Co., Chicago & N. R., 81 Wis, 95 ; Florida 50 N. Y. Super. 488 ; Blashfield v. Em- South. R. V. Brown, 23 Fla. 104. See pire State Tel. Co., 71 Hun, 532; Board also Wager v. Troy Union R., 25 N. Y. of Trade Tel. v. Barnett, 107 Dl. 507 ; 526. Broome v. New York & N. J. Tel., 42 2 See Hogan v. Cent. Pacific R., 71 N. J. Eq. 141. See Taggart v. Newport Cal. 83 ; Decker o. Evansville, S. & N. St. R., 16 R. I. 668 ; St. Louis v. West. R., 33 N. E. Rep. 349 (Ind. ] 893). Un. Tel. Co., 148 U. S. 92. 2 Indiana, B. & W. R. u. Eberle, 110 6 pierce v. Drew, 136 Mass. 75. See Ind. 542. also Julia Building Ass'n v. Bell Tel. * See §§ 1 53-157. But see Gaus v. Co., 88 Mo. 258 ; Gay v. Mut. Union Tel. St. Louis, K. & N. R., 113 Mo. 308. Co., 12 Mo. App. 485. See Wisconsin 5 West. Union Tel. Co. v. Williams, Tel. Co. v. Oshkosh, 62 Wis. 32. 86 Va. 696 ; Smith v. Cent., etc Tel. Co., ' Irwin v. Gt. South. Tel., 37 La An. 374 IMPROVEMENT AND USE OP STEEETS. [CHAP. XIIT. § 408. "Woika unrelated to the Thoroughfare Use. — There appears to be no dissent from the proposition that any use of a street unrelated to the thoroughfare use, or the urban servitude, is a perversion of the purpose for wliich the land was acquired. Thus the state cannot freely authorize the use of a street as the site of a market,^ a hack stand,^ a watch-house,^ a ferry land- ing,* a railroad station or freight-yard.^ But it has been held that compensation cannot be claimed on account of a horse-car left standing on the track to serve as a transfer station,^ nor for the erection of gates at a railroad crossing.^ VACATION OF STREETS. § 409. A street is vacated when all public interest and control are surrendered, or a new and obstructive public use is substi- tuted. Vacation means that the state has determined that the street in question is no longer a public necessity. Where the act of the public authorities is regular on its face it cannot be impugned by an abutting owner, for a private person cannot compel the maintenance of a public work.^ Thus, although a common result of vacation is the revival of private ownership in the land, objection cannot be made that the street is vacated in order that this result may be attained.^ There is no difficulty in placing vacation on the list of public purposes. The public interests may be subserved as well by the abandonment of a work as by its institution. The vital question is whether vacation inflicts such an injury upon abut- ting property as will entitle its owner to compensation. Now a 63. See also Hewett v. West. Un. Tel., Eq. 276 ; Methodist Church v. Pennsyl- 4 Mackey (D. C), 424. vania R., 48 N. J. Eq. 452 ; Gahagan v. 1 State V. Laverack, 34 N. J. L. 201 ; Boston & L. R., 1 Allen, 187 ; Daly v. State V. Mobile, 5 Port. 279 ; Lutterloh Georgia South. & F. R., 80 Ga. 793 ; V. Cedar Keys, 15 Fla. 306. See Higgins Lackland v. North Missouri R., 31 Mo V. Princeton, 8 N. J. Eq. 309 ; Elwood v. 180. See § 143. Bullock, 6 Q. B. 383 ; Herrick v. Cleve- « Bradshaw v. Citizens' St. Ry., Ind. land, 7 Ohio C. C. 470. Super. Ct. 1888. 2 McCaffrey v. Smith, 41 Hun, 117 ; ' Trustees, etc. v. Milwaukee & L. Branahan v. Hotel Co., 39 Ohio St. 333. W. E., 77 Wis. 158. See also Textor 3 Winchester v. Capron, 63 N. H. 605. v. Baltimore & O. R., 59 Md. 540. ^ Prosser v. Wapello County, 18 ^ ggg g 217. Iowa, 327. See also Lexington, H. & P. » Kean v. Elizabeth, 54 N. J. L. 462 ; Turnpike v. McMurtry, 3 B. Mon. 516. Meyer v. Teutopolis, 131 111. 552. 5 Higbee v. Camden & A. R., 19 N. J. SECT. 410.] VACATION OP STEEETS. 375 street is vacated in law when the public authorities abandon the highway easement, and thereby permit the revival of private ownership in the soil. A street, vacated in law, is not obstructed as far as the abutter is concerned where a private way over the land survives the public easement.^ In such case the abutter cannot claim compensation on account of vacation. He has still an open way, and is, at most, inconvenienced by the cessation of public expenditure and control in respect to it. Where, how- ever, it is held that upon vacation the land reverts unburdened with a private easement, so that the abutter cannot use it with- out trespassing,^ the question whether the action of the author- ities takes a property-right from the abutter is to be tried by the principles presently considered. § 410. The ability to go from one's land to a highway is deemed so essential to ownership that the common law prescribes that where one owning land, accessible by a single way, sells a part adjoining the way he shall be presumed to reserve a way of necessity over the part sold.^ Further, it has been shown that in many States one who is possessed of inaccessible land may condemn a way over adjacent land.* These cases do not war- rant, perhaps, the following proposition, but they give point to it. The public authorities cannot freely vacate a highway where the result of vacation is that an abutting owner cannot gain access to his land without trespassing. The right to access in its simplest form is property. Further, while it has been decided in some cases that the practical exercise of the right may be greatly embarrassed without paying compensation,^ the just doc- trine which accords to an abutter the right to practicable access from his premises to the street usually prevails either by virtue of judicial rulings or by legislation .« Is this right appurtenant to the whole frontage of the abutting tract V or is it respected 1 Stevens c. Shannon, 6 Ohio C. C. 84 Mo. 351 ; Kimball t>. Kenosha, 4 Wis. 142. See State v. Snedeker, 30 N. J. L. 321. 80; Dodge v. Pennsylvania R., 43 N. J. » 3 Kent's Coram. 421. Eq. 351 ; Faust u. Passenger R., 3 Phila. * See § 43. 164 ; HoUoway v. Southmayd, 139 N. Y. « See § 405. 390. « See §§ 135, 155. 2 Kings County Fire Ins. Co. v. ' For the definition of a " tract," see Stevens, 101 N. Y. 411 ; Bailey v. Culver, §§ 1 89, 190. 376 IMPROVEMENT AND USE OK STREETS. [CHAP. XIII. though a part be cut off ? In Buccleuch v. Metropolitan Board of Works,^ the right of access to the river Thames was held to appertain to every foot of the adjacent land of the plaintiff, though access had been habitually gained at a single point only. This is a correct application of the rule. The rule in Buccleuch V. Metropolitan Board of Works ^ is also applicable where the tract in question abuts on more than one street. The depriva- tion of access to one street is an injury, although another street affords egress.^ § 411. Where the tract in question does not abut upon the section of the highway vacated it is generally held that the owner is not deprived of property if, as is usually the case, he has access to the highway system in another direction.* Thus, in Coster v. Albany,^ the removal of a bridge caused no injury to one whose land abutted on another section of the highway of which the bridge formed a part. Access was still obtainable by another though circuitous route. The same conclusion has been reached where compensation is prescribed for property "damaged" or " injuriously affected " for public use.® But the more liberal opinion is that the fact that access may be had from another direction is not conclusive evidence that there is no legal injury to the property. If a convenient way be cut off, leaving only a decidedly inconvenient one, the abutting owner may have com- pensation. It has recently been decided that where the closing of a street will compel an abutting owner to take a roundabout way to the business centre of the town he should receive com- ' L. R. 5 H. L. 418. 24 Pa. 207 ; Gerhard v. Coram., 15 R. I. 2 L. R. 5 H. L. 418. 334 ; Rochette v. Chicago, M. & S. P. R., 8 Fort Scott, W. & W. R. v. Fox, 42 32 Minn. 201 ; Montreal v. Drummond, Kan. 490. See also Stevens v. New 1 App. Cas. 384. See also Dodge v. York El. R., 130 N. Y. 95. Pennsylvania R., 43 N. J. Eq. 351; « Smith V. Boston, 7 Cush. 254; Matter of Concord, 50 N. H. 530; Davis V. County Comm., 153 Mass 218; Egerer v. New York Cent. & H. R. R., Hammond v. County Comm., 154 Mass. 130 N. Y. 108 ; Castle v. Berkshire, 11 509; Stanwood v. Maiden, 157 Mass. Gray, 26 ; Zettel u. West Bend, 79 Wis. 17 ; Kean v. Elizabeth, 54 N. J. L. 462 ; 316 ; Lorenzen v. Preston, 53 Iowa, 580. Fairchild v. St. Louis, 97 Mo. 85 ; Polack ' 43 N. Y. 399. V. San Francisco Orphan Asylum, 48 « Chicago v. Union Building Ass'n, Cal. 490; Fearing o. Irwin, 55 N. Y. 102 111. 379; McGee's Appeal, 114 Pa. 486; King's County Fire Ins. Co. o. 470. See also East St. Louis u. O'Flynn, Stevens, 101 N. Y. 411 ; Paul v. Carver, 119 HI. 200. SECT. 413.J GENBEAL CONCLUSIONS. 377 pensatiou.^ In Caledonian Eailway Company v. Walker's Trus- tees,^ property fronting on a street was held to be injuriously affected by the obstructive use of a neighboring section of the street by a railway company, so that access to a near thor- oughfare, formerly easy and direct, was rendered difficult and circuitous.^ GENERAL CONCLUSIONS. § 412. The leading decisions upon state control over streets as it affects private property have been cited, with such immedi- ate comment as seemed necessary to their proper presentation. In some respects this body of law is inharmonious. The de- cisions, taken as a whole, do not present a governing principle which will in every event solve the practical question, — Does a particular use or improvement of a street effect a taking of private property ? The decisions are sometimes pronounced by a divided court, or artificially reconciled with previous de- cisions. Quite often they are opposed to decisions of courts of equal rank in other States. Some of the decisions are subject to the sharper criticism that they disclose the weaknesses and inconsistencies which result from an attempt to sustain stable principles of law upon the unstable foundations of applied me- chanics and progressive municipal needs. The conclusions are frequently sound on any hypothesis, but an hypothesis which will ensure just conclusions in every case has not been always adopted. Yet there should be a legal concept of a street and its uses so broad, so simple, that it shall not fail before any scheme of improvement, no matter how novel. § 413. Urban and Rural Servitudes. — A distinction has been drawn between a city street and a country road, — an urban and a rural servitude, — the street being subject to uses growing out of the needs of an urban community, uses which do not bear the same important relation to the welfare of a rural community.* 1 Gargan !>. Louisville, N. A. & C. R., 72; Sterling's Appeal, ITl Pa. 35; 89 Ky. 212. Heilraan v. Lebanon R., 145 Pa. 23; 2 7 App. Cas. 259. People v. Kerr, 27 N. Y. 188 ; Bloom- ' See also Brakken v. Minneapolis & field, etc. Gas Light Co. v. Calkins, 62 S. L. R., 29 Minn. 41. See Stanwood N. Y. 386 ; Barney v. Keokuk, 94 U. S. V. Maiden, 157 Mass. 17. 324; West. R. v. Alabama G. T. R., 96 * See Palatine v. Kreuger, 121 111. Ala. 272. 378 IMPROVEMENT AND USK OF STREETS. [CHAP. XIII. An effect of the distinction is this: the public interest in a country road is simply an easement of passage, in a city street it is something greater, — the street may be freely used as a way for pipes and sewers. The distinction has been disapproved.^ § 414. Anticipation of Future Use. — A proposition often stated is that when land is condemned or dedicated for a high- way the owner is presumed to anticipate certain improvements and uses of the way for which, when they materialize, he cannot obtain compensation. The principle involved is well established and sound,^ and the proposition can be readily and fairly applied to many simple cases of highway use and improvement. But its application to the case of the modern street has caused not a little confusion and injustice. Laying aside constitutional and statutory declarations of liability for consequential injuries,^ we find the following anticipations imputed to one whose land is affected by a street easement. In every State except Ohio he anticipates that he may be obliged to enter his house by a second-story window when the grade is raised, or by a ladder when the grade is lowered. In New York he does not foresee any improved method of transportation from the horse-car to the electric motor ; but in Pennsylvania he anticipates all methods. The Massachusetts man seems to be the only one who has clearly anticipated the telegraph and telephone. Judged by results there is no working rule of general application deducible from a presumed anticipation of future use. § 415. Ownership of the Fee. — In many decisions stress is laid upon the ownership of the fee of the street. Private rights are affirmed or denied as the fee is private or public. Where they are affirmed it is because the use in question is said to impose an additional burden on the fee. This distinction is not satisfactory. The technical distinction between a public fee and a public easement is nearly, if not quite, obliterated by decisions which lower the fee to a conditional fee,* and other decisions which raise an indefinite and presumably perpetual 1 Floyd County v. Rome St. Ry., 77 ^ jgee §§ 129, 163-164. Ga. 614. See also People v. Law, 34 * See §§ 153-157. Barb. 494 ; Morris & E. R. v. Hudson * See §§ 206, 397. Tunnel Co., 25 N. J. Eq. 384. SECT. 416.] GENERAL CONCLUSIONS. 379 easement to what is practically a conditional fee.^ Further, the owner of land condemned for a street commonly receives its full value although the interest acquired is called an easement,^ and has, in fact, no greater use of the surface of the street than one whose lot is bounded by the side line. These strong likenesses between a fee and an easement should not be overcome by the fact that the owner of the fee has a legal interest in the subsoil of the street, which, of course, the mere abutter does not possess. This interest is too insignificant to serve as a basis for the radical distinction expressed in the rule which allows compensa- tion for a railroad in a street where the fee is private, but none where it is public.*' § 416. Easement by Adjacency. — The best basis for deter- mining the rights of an abutting owner is in the proposition that to each lot bounded by a street there appertains an easement by adjacency, without reference to the ownership of the soil of the street. This easement has been maintained in a number of well- reasoned opinions.* Judge Cooley ^ has defined this easement as "a peculiar interest in the adjacent street which neither the local nor the general public can pretend to claim ; a private right of the nature of an incorporeal hereditament legally attached to their (the abutters') contiguous ground ; an incidental title to certain facilities and franchises which is in the nature of prop- erty, and which can no more be appropriated against his will than any tangible property of which he may be owner." ^ An important distinction between a private estate in a street 1 See § 207. etc. R., 45 Minn. 71 ; Stone v. Fairbury, 2 See § 233. P. & N. R., 68 111. 394 ; Dill v. Bd. of ' See § 405. Education, 47 N. J. Eq. 421 ; Denver v. « Story V. New York El. R,, 90 N. Y. Bayer, 7 Col. 113; Omaha & R. V. R. 122;Lahr u. Met. El. R., 104N. Y. 268; v. Rogers, 16 Neb. 117; White ;;. StreetRailway w. Cumminsville, 14 0hio Northwestern, &c. R., 113 N. C. 610; St, 523 ; Cohen v. Cleveland, 43 Ohio Hatch v. Tacoma 0., &c. R., 6 AVash. 1 ; St. 190 ; Onset St. R. v. County Comm., New York El. R. v. Fifth Nat'l Bank, 154 Mass. 395; Haynes v. Thomas, 7 135 U. S. 432; Dooly Block i: Rapid Ind. 38; Loatutter v. Aurora, 126 Ind. Transit Co., 9 Utah, 31. See also Bar- 436; Lexington & O. R. v. Applegate, nett v. Johnson, 15 N. J. Eq. 481. 8 Dana, 289 ; Rude v. St. Louis, 93 Mo. * Quoting in part from Lexington & 408 ; Gaus v. St. Louis, K. & N. R., 113 O. R. v. Applegate, 8 Dana, 289. Mo. 308 ; Adams v. Chicago, B. & N. R., « Grand Rapids & I. R. t». Heisel, 38 39 Minn. 286 ; Lamm v. Chicago, S. P. Mich. 62. 380 IMPROVEMENT AND USE OP STREETS. [CHAP. XIII. based on ownership of the soil and the easement in question is this, that while the estate is bounded by the centre line, the easement covers the width of the street.^ Hence, if one can prove that his easement of air is affected by the operation of a rail- road upon the further side of the street he may recover.^ It has been held that the easement extends only over that section of the street on which the lot in question abuts.^ This statement proves itself so far as the easements of light, air, and support are concerned. But the easement of access includes a way from the lot to the general highway system.* Hence, for example, the obstruction of a cul de sac at any point affects the easements of access appertaining to the lots beyond. To the question as to the right of an abutting owner to com- pensation for any use of a street beyond the common use this answer is suggested : The state holds all streets in trust for the people. It may improve them, authorize their use for pur- poses consistent with the trust, and vacate them. Such action need not be accompanied by compensation to the abutting owner unless it impairs what is usually, as against the public, his only valuable property in the street, — the private easements of access, light, air, and support, which alone modify the controlling interest of the state, whether that interest be termed a fee or an easement. 1 Lamm v. Chicago, St. Paul, etc. R., ' Lamm v. Chicago, S. P., etc. E., 45 45 Minn 71. Minn 71 2 Adams v. Chicago, B. & N. E., 39 « ggg jg 409-411. Minn. 286. SECT. 418.] WATEEWAYS. ■ 381 CHAPTER XIV. WATERS. § 417. The fact that under certain conditions, not uncommon, •water is a menace to health and safety, and a drawback to the useful development of land, has provoked legislation directed to the amelioration of these evils. On the other hand, the law- making power has been no less exerted to secure a fuller utilizar tion of water for ways of transportation, and for consumption, irrigation, and motive power than would be possible through the unaided efforts of private persons. Some of the law on this subject has been already considered, especially in defining prop- erty in water.i Much more might have been incorporated in preceding chapters were it not that the public interest in waters is so peculiar and complex that it can be best appreciated by grouping its various phases under a single head. WATERWAYS. § 418. The public interest in ways by water is as great as in ways by land. The state may therefore authorize the condemna- tion of land for canals,^ and where water is wholly private may condemn a public right of passage over it.^ But the waterways of a country are, usually, those natural ways which are comprised in the term navigable waters. The control of the state over these waters is based on sovereignty, not on proprietorship in the subjacent soil. It covers all waters 1 See §§ 71-73, 78, 91, 92. Case, 39 N. Y. 171 ; James River & K. 2 Binney v. Chesapeake & 0. Canal, Canal v. Anderson, 12 Leigh, 278. 8 Pet. 201 ; Hooker v. New Haven & N. » Morgan u. King, 35 N. Y. 454 ; Co., 15 Conn. 312; Den W.Morris Canal, Olive o. State, 86 Ala. 88 See also 24 N. J. L. 587 ; Haldeman v. Pennsyl- White Deer Creek Imp. Co. v. Sassa- vania Cent. R., 50 Pa. 425 ; Rogers v. man, 67 Pa. 415; Partridge v. Eaton, 63 Bradshaw, 20 Johns. 735 ; Townsend's N, Y. 482. 332 WATERS. [chap. XIV, commercially navigable,^ though navigated in fact by pleasure- boats only ,2 and though the period of navigability is limited to regular seasons of flood.* But a stream made floatable by the improvements of the owner does not become a public way unless a dedication can be shown.* § 419. In England the soil underlying public waters is in the crown as a part of the jura regalia? The dominion over the waters in the interest of navigation is in Parliament.^ It follows from this separation of interests that the crown may grant any use of the underlying soil, provided navigation be not impeded/ while Parliament, dominating the crown as a sover- eign dominates a proprietor, may conserve navigation by any method.^ In this country there is no such separation of inter- ests. The president of the United States, the governors of the several States are simply the representatives of the executive power of the people. They have not even so much of personal sovereignty as was vouchsafed to English rulers in that striking assertion of parliamentary power, — the Act of Settlement. The rights of crown and Parliament as they obtained in this country before the Eevolution are now vested in the people.^ The federal power over State and interstate waters is in no sense proprietary, but strictly sovereign. It is paramount to State rights, but is not self-executing. Therefore, imtil Congress have assumed jurisdiction over particular waters the States may control them without question.-^'' Private Rights in Navigable Waters. § 420. The state cannot authorize the use of private soil underlying a waterway for any purpose not connected with nav- 1 The Daniel Ball, 10 Wall. 557 ; 278. See also Nutter v. Gallagher, 19 Kowe ti. Granite Bridge, 21 Pick. 344-. Or. 375 ; Ward v. Warner, 8 Mich. 508. 2 Atty.-Gen. v. Woods, 108 Mass 436. ^ The King v. Smith, 2 Doug. 441. See Burroughs v. Whitwam, 59 Mich. « Colchester v. Brooke, 7 Q. B. 339. 279. ' Williams v. Wilcox, 8 Ad. & El. 3 Morrison v. Coleman, 87 Ala. 655 ; 314. Thunder Bay Booming Co. v. Speechly, 8 xhe King v. Montague, 4 .B. & C. 31 Mich. 336 ; Falls Man. Co. v. Oconto 598. River Imp. Co., 58 N. W. 257 (Wis. » See Lansing d. Smith, 4 Wend. 9 ; 1894). See Morgan o. King, 35 N. Y. Langdon v. New York, 93 N. Y. 129; 454. Martin v. Waddell, 16 Pet. 367. * Wadsworth v. Smith, 2 Fairfield, i» Willson v. Black Bird Creek Co., SECT. 421.J -WATERWAYS. 383 igation without making compensation to the owner. Thus, com- pensation must be paid for the site of a bridge pier.^ Where the state wishes to free a navigable stream from an obstruction lawfully erected it must indemnify the owner of the obstruction. Thus, where one builds a dam by the state's per- mission he should receive compensation when it is necessary to destroy it in the interests of navigation.^ It appears that a private estate in land under a waterway, over which there is a public right of passage, is held subject to the right of the state to erect works in aid of navigation without compensation in respect to the land utilized.^ Where subaqueous soil is private property the owner is enti- tled to the reasonable use of the water, and may obtain com- pensation for its diversion to a canal,* or other public use.^ But where a waterway is public the state may divert its waters with- out compensation to the riparian owner,^ or raise the water level without compensation to the riparian owner for the impairment of the use he has made of a water-power ^ or a ford.^ § 421. It may happen that land adjoining a waterway is damaged by the construction of works undertaken to improve navigation. If the damage is a flooding or other physical inva- sion of the land it is within the rule in Pumpelly's Case,^ and is therefore the subject of an action whether the actor is a private corporation,^" or the governmental So, if the course of a stream 2 Pet. 245; GUman v. Philadelphia, 3 ^ Rundle r. Delaware & R Canal, 14 "Wall. 713; County of Mobile v. Kim- How. 80; Comm. of Homochitto River ball, 102 U. S. 691. o. Withers, 29 Miss. 21 ; People v Canal 1 Morris Canal v. Jersey City, 26 N. Appraisers, 33 N. Y. 461, affirming J. Eq. 294. See Stocltton v. Baltimore Canal Appraisers v. People, 17 Wend. & N. Y. R., 32 Fed. Rep. 9 ; Maxwell v. 509, and distinguishing Comm. v. Kemp- Bay City Bridge, 41 Mich. 453. shall, 26 Wend. 404 ; Black River Imp. 2 Glover v. Powell, 10 N. J. Eq. 211, Co. v. La Crosse, etc. Co., 54 Wis 659. See also Ryan i). Brown, 18 Mich. 196; 'Canal Appraisers v. People, 17 Allen V. Weber, 80 Wis. 531. Wend. 509. 3 Hawkins Point Lighthouse, 39 Fed. ^ Zimmerman v. Union Canal, 1 W. Rep. 77. See also Scranton v. Wheeler, & S. 346. 57 Fed. Rep. 803 ; Philadelphia v. Scott, 9 See § 147. 81 Pa. 80. See HiU v. United States, i" Thompson u. Androscoggin, etc. 149 U. S. 593. Co., 58 N. H. 108; Pumpelly v. Green * Walker v. Bd. of Public Works, 16 Bay Co., 13 Wall. 166. See also Kau- Ohio, 540 ; Avery v. Fox, 1 Abb. C. C. kauna Water Power Co. v. Green Bay 246. & M. Canal, 142 U. S. 254. * See § 78. " King v. United States, 59 Fed. Rep, 384 WATERS. f CHAP. XIV. be altered, the land needed for the new channel must be paid for.^ But it has been held that the riparian owner cannot complain because the improvement of the waterway so deflects the current that his bank is injured,^ or so raises the water level as to obstruct his drainage system.^ As the rights of riparian owners on navigable waters are to be enjoyed in subordination to the public right of navi- gation/ it follows that the state may freely draw harbor lines beyond which wharves cannot be built,^ unless the line in question interferes with a wharf which has been lawfully built,^ or is drawn for a purpose other than that of conserving navigation.' § 422. The cases cited thus far have dealt chiefly with the rights of the riparian owner in respect to his land and the waters adjacent. A larger question is presented upon the asser- tion that an authorized interference with the freedom of the waterway impairs a private right of navigation. It is well settled that one who is not a riparian owner, but is accustomed to navigate a waterway as one of the public, is not specially injured by an authorized obstruction of the way,^ or by the imposition of reasonable tolls by persons authorized to thus reimburse themselves for expenses incurred in improving navigation.^ Has a riparian owner an interest in navigation superior to that of the public at large ? It is plain that one who has not even a riparian right of access ■"' has not a special right of navi- 9; Sweaney ;;. United States, 62 Wis. Prosser v. North. Pacific R. 152 U. S. 396 ; Zemlock v. United States, 73 Wis. 59. 363. « Yates v. Milwaukee, 10 Wall. 497. 1 Carson v. Coleman, 11 N. J. Eq. See Harbor Line Comm. u. State, 2 106. See also Spring v. Russell, 7 Me. Wash. 530. 273. _ ' Farist Steel Co. v. Bridgeport, 60 '^ Hollister v. Union Co., 9 Conn. Conn. 278. 436 ; Brooks v. Cedar Brook Imp. Co., * Willson v. Black Bird Creek Co., 82 Me 17 ; Green v. Swift, 47 Cal. 536 ; 2 Pet. 245 ; Pound v. Turck, 95 U. S. Green v. State, 73 Cal. 29. 459 ; Escanaba Co. v. Chicago, 107 U. S ' Mills w. United States, 46 Fed. Rep. 678 ; Flanagan d. Philadelphia, 42 Pa. 73S. 219; The King v. Montague, 4 B. & C. » See § 91. 598. 5 Commonwealth v. Alger, 7 Cush. '> Huse v. Glover, 119 U. S. 543. 53 i State V. Sargent, 45 Conn. 358 ; 1° See § 92. SECT. 422.] WATERWAYS. 885 gation ; ^ and it has been held, further, that he cannot question the lawfulness of an obstruction, but must leave this to the state.^ A riparian owner who has a right of immediate access to the waterway, either through the riparian right or by virtue of his ownership of the subaqueous soil, is specially damaged, of course, by an obstruction in front of his land.^ Does this right to get to the way carry with it the right to travel along the way ? The riparian owner cannot complain because navigation is restricted or made less convenient by the action of the state or its authorized agent* Thus he is not specially injured by the building of a bridge in such a manner as to prevent the passage of masted vessels.^ But does a riparian owner suffer a legal injury by the absolute closing of navigation ? It lias been intimated that a private right of navigation attaches to the riparian right.^ In Bell V. Quebec ^ it was argued that the opinion in Lyon v. Fish- monger's Co.^ approved this proposition, but the Privy Council did not so interpret it. In other cases courts have decided, apparently without reference to a riparian right of immediate access, that the state may close a navigable stream without compensating the riparian owner.^ The question whether the right of access includes a right of navigation is, though seldom raised, one of great importance in point of law. A possible similarity between rights of access to a street and a waterway at once suggests itself. That there is a similarity in some respects is clear.i" Indeed it may be assumed that, allowing for the difference between physical conditions, the rights are sub- stantially alike up to the very point in question, — the closing 1 Davidson v. Boston & M. R., 3 ^ Hickok k. Hine, 23 Ohio St. 523. Cusli. 91 ; Thayer v. New Bedford, 125 See Backus v. Detroit, 49 Mich. 110. Mass. 253. ' 5 App. Cas. 84. 2 Blackwell .. Old Colony R., 122 8 i App. Cas. 662. Mass. 1. ' Clark v. Saybrook, 21 Conn. 313 ; 3 Maxwell v. Bay City Bridge, 46 Bailey v. Philadelphia, W. & B. R., 4 Mich. 278. See §§ 91, 92. Harr. (Del.) 389 ; Swanson U.Mississippi « Miller v. New York, 109 U. S. 385 ; & R. R. Boom Co., 42 Miun. 532. Lansing v. Smith, 4 Wend. 9 ; Parker v. i" See Bell v. Quebec, 5 App. Cas. 84 ; Cutler Co., 20 Me. 353 ; Jarvis v. Santa Colchester v. Brooke, 7 Q. B. 339 ; Van Clara Val. R., 52 Cal. 438 ; Atty.-Gen. u. Dolsen v. New York, 17 Fed. Rep 817 ;, Conservators of Thames, 1 H. & M. 1. Kane v. New York El. R., 125 N. Y. 5 Gil man v. Philadelphia, 3 Wall. 164. 713; Bell v. Quebec, 5 App. Cas. 84. 25 886 WATERS. [chap. XIV. of the thoroughfare. At this point, however, it seems that the radical difference between a road and a river compels the con- clusion that, while the road cannot be freely closed against an abutter unless another way remains,^ the river may be closed without compensation to riparian owners. A road is laid out or adopted by the state, and it may well be presumed that it is intended to afford access to abutting property. As a river is created by natural forces its origin cannot be coupled with any presumed intention with reference to riparian owners. The riparian right of access does not appear to contain a covenant that there shall always be a public way ; it simply enables the riparian owner to avail himself of a public way as long as it exists. His rights along the way are but those of the public at large. They are surrendered whenever the public interest in the maintenance of the way is outweighed by the public interest in its closure. USE OF WATER. § 423. The power to condemn a water-supply for communal uses, both public and domestic, is recognized everywhere, and frequently exercised.^ In countries where there are large tracts of arid land, public powers have been exerted in order to secure their proper irriga- tion.3 Where the necessities of the work require the use of private property it may be condemned.* The water itself may be condemned,^ and also land needed for canals.® Where it is necessary to use water in order to construct or maintain a public work it may be condemned. Thus, a railroad company may be authorized to condemn water necessary for the operation of their road.'^ 1 See §§ 410, 411. Report of State Engineer of California, 2 Riche V. Bar Harbor Water Co., 1886. * See § 39, n. 4. ^ Lux V. Haggin, 69 Cal. 255 ; Uma- tilla Co. o. Barnhart, 22 Or. 389. See also Irrigation Co. v.YWan, 74 Tex. 170. s Tripp V. Overocker, 7 Col. 72 ; 75 Me. 91 ; Lumbard v. Stearns, 4 Cush, 60; Village of Middletown, 82 N. Y, 196; Spring Valley Water Works Drinkhouse, 92 Cal. 528 ; Olmsted v. Morris Aqueduct Co., 46 N. J. L. 495 0. 47 N. J. L. 311 ; Warner w. Gunni- Sand Creek Co. v. Davis, 17 Col. 326; son, 31 Pac. Rep. 238. Lindsay Irrigation Co. t'. Mehrtena, 97 ^ See W. E. Hall, Irrigation Devel- Cal. 676 ; Oury v. Goodwin, 26 Pac. Eep. opment in France, Italy, and Spain, 376 (Ariz.). ' Stroliecker v. Alabama & C. K., 42 SECT. 424.J USB OF WATER. 387 § 424. Motive Power. — In certain States laws have been passed empowering individuals or corporations to subject private property to servitudes in favor of works designed to create water power. These laws are usually termed mill or flowage acts. In a few instances they permit an actual expropriation of land. Thus, the right has been given to condemn land for a mill-site and dam.^ But as a rule a mill act does not contemplate a direct occupation of land, but the right to flood it by means of a dam erected upon one's own property. The power created is in some instances to be used for a single mill, usually a grist-mill. A use of later origin is the supplying of power to mills of divers kinds. The comparative breadth of the latter use, lead- ing as it has frequently done to the establishment of prosperous towns, has suggested the view that it is a fit object for the emi- nent domain, while the single grist-mill is not. But is this dis- tinction reasonable ? Is not a grist-mill in a country newly settled quite as important a feature as a group of factories in a later stage of its development ? There is, however, an important difference between these mill acts in this that, while in some cases the beneficiaries may be compelled to serve all comers at equal rates, they are frequently allowed to conduct their busi- ness in all respects as a private concern. It is in respect to acts of the latter sort that the constitutional question as to pub- licity of use has been raised.^ It is to avoid the question that eminent jurists have based these acts on another doctrine than the eminent domain. Chief-Justice Shaw has defined a flowage act as " a provision by law for regulating the rights of proprietors on the same stream," ^ and in another opinion has sharply dis- tinguished it from an exercise of the eminent domain.* But the general conclusion of law that flooding land is taking it,^ and the accepted prohibition that property cannot be taken save 6a. 509. See also Pennsylvania R. v. * Murdock w. Stickney, 8 Cash. 113. Miller, 112 Pa. 34. See also Head v. Amoskeag Co., 113 1 Hankins v. Lawrence, 8 Blackf. U. S. 9; Lowell !>. Boston, 111 Mass. 266. 454; Turner v. Nye, 154 Mass. 579; ^ See § 52. Judge Redfield'a note, 12 Am. Law Reg. " Bates V. Weymouth Iron Co., 8 N. s. 496. Gush. 548. ^ See § 148. 388 WATERS. [chap. XIV. for the public use,^ seem to force the conclusion that if the mill acts are to be sustained on any ground save ancient custom,^ they must be backed by the eminent domain. This conclusion is frankly accepted in many decisions which hold that the acts further public purposes.^ In certain States the strict rule obtains that a mill which is not open to all customers at reasonable rates cannot be aided by the eminent domain.* The Constitution of Colorado^ permits the legislature to authorize the condemnation of a right of way for the convey- ance of water in order to furnish power for an electric light plant.8 DRAINAGE AND PROTECTION. § 425. The improvement of low lauds by draining off water, or preventing its inflow, has been the subject of much legisla- tion. The question whether there is such an appropriation to public use as to justify the eminent domain is in some respects difficult, and is not free from the vexation of judicial disagree- ment. It will be convenient to classify the cases according to the relation which the land in question bears to the work, — that is to say, whether the land is subjected to a servi- tude for the benefit of other land, or is itself the object of improvement. § 426. Drains. — We have seen that while the common law and civil law disagree as to the rights of adjoining proprietors in the matter of natural drainage they agree in this, that one cannot artificially discharge water upon the land of his neigh- bor.'' This prohibition cannot be avoided by legislative permis- 1 See § 39. 365 ; Burnham v. Thompson, 35 Iowa, '^ See Great Falls Man. Co. v. 421. Fernald, 47 N. H. 444 ; Jordan v. Wood- * Tyler v. Beacher, 44 Vt. 648 ; Barre ward, 40 Me. 317. Water Co., 62 Vt. 27 ; Moore v. Rice, 3 Scudder w. Trenton Falls Co., 1 N. 34 Ala. 311. See also Ryersonn. Brown, J. Eq. 694 ; Olmstead v. Camp, 33 Conn. 35 Mich. 333 ; Varner v. Martin, 21 W. 532 ; Venard v. Cross, 8 Kan. 248 ; Va. 534 ; Beekman v. Saratoga & S. R., Jordan v. Woodward, 40 Me. 317 ; Gt. 3 Paige, 45 ; Hay !'. Cohoes Co., 3 Barb. Falls Man. Co. w.Fernald, 47 N. H. 444. 42 ; Weismer v. Douglas, 4 Hud, 201. See also Fisher v. Horicon, I. & M. Co., ' See § 39, n. 4. 10 Wis. 351 ; Miller v. Troost, 14 Minn. « Lamborn y. Bell, 18 Col. 346. 1 See § 146. SECT. 427.] DEAINAGE AND PROTECTION. 389 sion. Statutes permitting a drainage servitude to be imposed on land for the mere benefit of an individual proprietor have been pronounced invalid as being of private purpose,^ unless legiti- mated by the constitution.^ Wherever an undertaking is of sufficient public concern to warrant the exercise of the eminent domain in behalf of its construction, the power may be exerted to secure its preserva- tion.^ Therefore, while the proprietors of a public work are, as regards their neighbors, on a private footing in respect to natural drainage,* they may be authorized in some cases in virtue of their public character to artificially discharge water upon private property, provided they make compensation.^ It has been asserted that the preservation of the general health is presumably of such concern to each individual that a drain or sewer for this purpose may be laid by virtue of the power of police without compensation for the land appro- priated.® But in Cheesebrough's Case^ an act authorizing a system of urban drainage in the interest of public health, with- out providing for compensation for lands subjected to the servi- tude of drains, was declared unconstitutional. The court declared that the permanent use of private property for such a purpose could be obtained only by the eminent domain.* § 427. Reclamation. — There is no such thing as a natural nuisance at common law in the sense that a personal liability can be based on its existence. A nuisance can be created only by a human fault either of omission or commission. Further, the fault must be imputable to the person charged with maintaining the nuisance. It follows that an owner of low land is under no obligation to improve it, though its reclamation would materially ' Fleming v. Hull, 73 Iowa, 598 Reeves r. Wood County, 8 Ohio St. 333 McQuillen u. Hatton, 42 Ohio St. 202 s See § 116. 4 See § 149, 6 Heick V. Voight, 110 Ind. 279. See Jenal v. Green Island Co., 12 Neb. 163. also Bates v. Westborongh, 151 Mass. See also Anderson v. Kerns Draining 174 ; Ward v. Peck, 49 N. J. L. 42. Co., 14 Ind. 199. But see Seeley v. " See Donnelly v. Decker, 58 Wis. Sebastian, 4 Or. 25 ; Sherman v. Tobey, 461. 3 Allen, 7 ; French v. White, 24 Conn. ' 78 N. Y. 232. 170. 8 geg also Matter of the Church of " See § 39, n. 4. the Holy Sepulchre, 61 How. Pr. 315. 390 -WATEES. [chap. XIV, benefit his neighbor or the public.^ But there is no nuisance, natural or otherwise, beyond the reach of the law. If the source of the nuisance is essentially noxious it may be abated by the police power.2 Thus, a stagnant pool may be drained without compensation to him upon whose land it happens to lie.^ The position of the owner of low lands at the common law being defined, we are ready to determine the methods by which the state may provide for their reclamation without his consent. Eeclamation acts may be divided into three classes according to the object of legislative interference. These objects are the public health, the promotion of agriculture, and protection from flood. This classification is not necessarily alternative. Indeed, these objects frequently co-exist, and the first two are usually present in every scheme of reclamation. The function of the eminent domain in the matter of reclamation is, usually, com- paratively insignificant. The quantity of land needed for dikes, ditches, and other works is so small in comparison with the area reclaimed that the chief concern of the owners is the validity of the assessments imposed to defray the cost of improvement Eeclamation in the interest of public health is evidently a proper object of the eminent domain.* In some States the transformation of low uncultivable lands into arable lands is deemed of sufficient public interest to warrant its consummation without reference to the wishes of one whose property may be needed,^ and in others this action is expressly permitted by the terms of the constitutions.^ In other States the creation of cultivable lands is not deemed sufficiently urgent to justify the compulsory improvement of low lands, unless indeed the act contemplates the preservation of public health, to which the material advantages of reclamation wiU be deemed incidental.'^ 1 Rutherford's Case, 72 Pa. 82 ; 6 Norfleet v. Cromwell, 70 N. C. 634 ; Philadelphia v. Scott, 81 Pa. 80 ; Zigler Rutherford v. Maynes, 97 Pa. 78 ; V. Meuges, 121 Ind. 99. Coomes v. Burt, 22 Pick. 422 ; Talbot v. ' See § 12. Hudson, 16 Gray, 417. » See Cheesebrough's Case, 78 N. Y. 6 gee § 39, n. 4. 232. ' Ryer's Case, 72 N. Y. 1 ; Kinnie v. 4 Dingley v. Boston, 100 Ma-ss. 544. Bare, 68 Mich. 625. See also Donnelly See also Hartwell v. Armstrong, 19 v. Decker, 58 Wis. 461 ; People v. Barb. 166. Henion, 64 Hun, 471. SECT. 428.] DEAINAGE AND PKOTECTION. 391 § 428. Eeclamation acts are too numerous and diverse to te treated with particularity, but several illustrations will serve to indicate the function of the eminent domain. First : In Ding- ley V. Boston,^ the court sustained an act which empowered the city to condemn the fee of a tract of insalubrious land, and reclaim it at the public charge. A later statute of the same State is of similar import, except that an owner is permitted to keep his land upon paying the cost of its improvement.'' While the first statute may be strictly within the competency of the legislature it is not as just as the second, for it assumes that an owner cannot, or will not, retain his land by defraying the cost of reclamation. In Sweet v. Eechel,^ the court held that one purchasing a lot of land which the city had taken under the statute construed in the Dingley Case held a good title, al- though the city had never, in point of fact, paid the compensa- tion. It was intimated that these statutes expressed the police power, and that, therefore, compensation was not necessary,* and the opinions mentioned were relied upon as supporting this view. A careful reading of these opinions does not show, it is submitted, that the court asserted a power to take the lands in question unfettered by a constitutional duty of making compensation, although the police power is of course duly recognized. Moreover, later decisions in Massachusetts recognize the eminent domain, or its equivalent, as the power behind these statutes so far as they contemplate the appropriation of land.^ Second : The state designates a tribunal before which a cer- tain proportion of the owners of a tract of low land may apply for the reclamation of the whole, and the entire cost is assessed upon the land. The power behind legislation of this sort has been differentiated from the eminent domain and taxation, and likened to that branch of the police power by which the state regulates common interests in respect to contiguous tracts, as 1 100 Mass 544 * See LoweU v. Boston, 111 Mass. = Bancroft w. Cambridge, 126 Mass. 454; Grace v. Board of Health, 135 438 Mass. 490; Cavanagh v. Boston, iJa 3 37 Fed. Rep. 323. Mass. 426 ; Moore v. Sandford, 151 Mass. * See also Donnelly v. Decker, 58 285. Wis. 461. 392 -WATERS. [chap. XIV. in the matter of party walls and fences.^ This legislation has been based also upon inveterate usage.^ Third : The state authorizes a private corporation to under- take the reclamation of lands without the consent of the owners, and to recoup its expenses, and obtain a profit, by an assessment upon the property benefited. It has been held that it is within the power of the state to do this whenever the public interest will be promoted, but that the expenses must be apportioned according to the principles of special taxation, and in no case exceed the benefits conferred.^ But the legislature cannot em- power a private corporation to undertake the reclamation of such portions of a designated territory as it may desire, without the co-operation of any of its owners or of public authorities, and defray the cost thereof, and earn dividends upon its capital stock, by imposing assessments not limited to benefits conferred. The object of the scheme is wholly private, being merely the pecuniary advantage of the incorporators, and hence cannot justify the exercise of the eminent domain or taxation in its behalf.* § 429. Levees. — While the owner of low land is under no common-law obligation to improve it,* it seems that where the configuration of land is such that it is a barrier against a natural body of water, the owner may not destroy the barrier to the injury of other land.^ It has been suggested also that the riparian owner may be liable for the decay of the natural bank through permissive waste.'^ Non-interference with a natural barrier may be enjoined by statute. Thus, the state, by virtue of its police power, may inhibit the owner of a sea-beach from removing stones therefrom.^ But one who lawfully constructs something which proves to be a barrier against incoming water 1 Wurts V. Hoagland, 1 14 U. S. 606 ; * Keau v. Driggs Drainage Co., 45 N. O'Reiley v. Kankakee Drainage Co., 32 J. L. 91. Ind. 169. See also Lowell 0. Boston, 1 1 1 ^ See § 427. Mass. 454; Tide Water Co. v. Coster, ^ Anderson v. Henderson, 124 111. 18 N. J. Eq. 518. But see Talbot v. 164. Hudson, 16 Gray, 417; Ryer's Case, 72 ' See Commonwealth v. Alger, 7 N. Y. 1. Cush. 53; Philadelphia ■«. Scott, 81 Pa. 2 Hoagland v. Wurts, 41 N. J. L. 175. 80. 3 Tide Water Co. v. Coster, 18 N. J. ^ Commonwealth a. Tewkesbury, 11 Eq. 518. Met. 55. SECT. 429.] DRAINAGE AND PROTECTION. 393 is under no obligation to his neighbor to maintain it. Hence, it appears that the legislature cannot forbid a railroad com- pany to remove an embankment because it happens to protect neighboring land.-' Where riparian land is an insufficient barrier against the inflow of water the state may exert its power to further the erec- tion of suitable levees or dikes. The method by which the cost of the works is defrayed — usually by imposing an assessment on a defined district — is not within our province. The question is : Must the eminent domain be exerted in order to impose the servitude upon the land ? It appears that in Louisiana the riparian owners received their lands subject to a servitude in favor of protective works. Therefore, the levees in this State may be built without the eminent domain.^ Where the bank is not held subject to the servitude of levees the land needed for levees must be paid for.^ Where land between high and low water marks belongs to the riparian owner, subject to the public right of navigation, a levee may be built upon it without com- pensation.* A statute which permits one to secure the safety of his low lands by appealing to the public authorities, who may thereupon authorize the building of a levee on the land of another, has been declared unconstitutional, because the interest of the public does not sufficiently appear.^ According to the common law the owner of riparian land may protect it from the incursion of water by dikes or levees which do not divert or obstruct the normal flow. If this proper use of the land causes the flooding of other lands there is no liabil- ity .^ This rule has been applied where consequential injuries result from the construction of levees.^ 1 Koch V. Delaware, L. & W. K., 54 * Philadelphia v. Scott, 81 Pa. 80. N. J. L. 401. ^ Smith v. Atlantic & G. W. R., 25 . State, 34 La. An. 494 ; Ohio St. 91. Peart v. Meeker, 12 So. Rep. 490 (La. « The King v. Comm. of Sewers, 8 1893) ; Hart v. Levee Comm., 54 Fed. B. & C. 355; Shelbyville & B. Turnpike Rep. 559. V. Green, 99 Ind. 205. 3 Horton o. Hoyt, 1 1 Iowa, 496 ; ' Lamb v. Reclamation Dist., 73 Cal. Richardson n. Levee Comm., 68 Miss. 125; Hoard v. Des Moines, 62 Iowa, 539. See Lamb o. Reclamation Dist., 73 326. Cal. 125. 394 WATERS. [chap. XIV. FISHERIES. § 430. The right to fish in public waters belongs as a rule to the public at large. No one can be deprived arbitrarily of this right. Hence, a town cannot qualify the right by limiting the enjoyment thereof to its own inhabitants.^ Where there is a private fishery in a public river it is subject to the public interest in navigation. Thus, where such a fishery is injured by the authorized construction of navigation works or a wharf the owner cannot recover compensation.^ But if the fishery is affected by the construction of a railroad compensation must be paid.^ The public interest in the preservation and increase of an important article of food justifies the state in regulating and fostering fisheries. Where land upon innavigable waters was condemned in order to preserve an alewife fishery the owner was given compensation for the land only, as he held his fishery subject to the public right.* A statute enabling one owning land upon a stream to flood the lands of others for the purpose of making a pond for fish culture has been upheld, not as a taking of property for public use, but upon the principle of the Mill Acts.8 It has been held that where one erects a dam, or other obstruction to the passage of fish, the state may compel him to provide a suitable fishway at his own expense. This for the reason that the public interest in the propagation of fish, for which their freedom of the Streams is necessary, precludes the right of an individual to interfere unless such right is expressly accorded.^ In Woolever v. Stewart,'' it was held that a statute compelling owners of dams to construct fishways was uncon- stitutional in respect to a dam which had stood for twenty-one years. This conclusion was based on the ground that " if there 1 Hayden V. Noyes, 5 Conn. 391. « Holyoke Water Power Co. ». 2 Shrunk v. Schuylkill Nav. Co., U Lyman, 15 Wall. 500; Comm. v. Holy- S. & R. 71; Tinicum Fishing Co. .,. oke Water Power Co., 104 Mass. 446 ; Carter, 61 Pa. 21 ; s. c. 90 Pa. 85. Parker u. People, 111 HI. 581. But see 8 Alexandria & F. K. v. Faunce, 31 Commonwealth v. Pennsylvania Canal, Giatt. 761. 66 Pa. 41; People v. Piatt, 17 Johns. * Cole !). Eastham, 133 Mass. 65. 195. f> Turner v. Nye, 154 Mass. 579. ' 36 Ohio St. 146. SECT. 430.] FISHERIES. 895 was an obligation resting on the owner of the dam to keep a way open for the passage of fish to the waters above, it was for the benefit of the upper owners, and for them only." From this premise the conclusion naturally followed that the right to maintain the dam as built accrued by adverse user for the stat- utory period. But had the broad consideration of the public interest in the fish supply been duly appreciated, the assertion of a prescriptive right would have failed before the interests of the state.^ One is not deprived of property by laws which fix the periods within which, and the means by which, fish may be taken.^ Such laws are valid expressions of the power of police. 1 See Parker t). People, 111 lU. 581. Collison, 85 Mich. 105; Lawton v. 2 WeUer v. Snover, 42 N. J. L. 341 ; Steele, 152 U. S. 133. People V. Bridges, 142 111. 30 ; People v. NOTES OF RECENT CASES. § 15-a. The Supreme Court hold that a legislature may compel railroad corporations having repealable charters to so alter their road-beds as to do away with all crossings at grade. New York & N. E. R. v. Bristol, 151 U. S. 556. § 17-a. The legislature of Kentucky passed an act regulating the tolls on an interstate bridge. The Supreme Court declared the act invalid upon the broad ground that, as such a biidge is a way for interstate commerce, the regulation of its tolls is not within the competency of State legislatures. A minority of the Court approved the decision on the ground that the acts of Kentucky and Ohio under which the bridge was built created a contract between the States that would be broken were one State allowed to regulate tolls, but were of the opinion that until Congress assumed jurisdiction in the matter of rates the States were at liberty to regulate them. Covington, etc. Bridge v. Kentucky, 154 U. S. 204. § 26-a. In Scott v. McNeal, 154 U. S. 34, it is held that a statute au- thorizing the administration of the estates of persons supposed to be dead, after notice by publication, is void as to a living person, as it attempts to deprive him of property without due process of law. § 32-a. In Luxton v. North River Bridge, 153 U. S. 525, the Supreme Court decide that Congress may authorize the condemnation of land within a State for an interstate bridge. § 36-a. An objection to a Maryland condemnation statute that it did not provide for notice was dismissed by the Supreme Court on the ground that the State court of last resort had decided (Baltimore Belt R. v. Baltzell, 75 Md. 94 ; see § 338) that the act, properly construed, did provide for notice. Baltimore Traction Co. v. Baltimore Belt R., 151 U. S. 137. § 37 a. In Marchant v. Pennsylvania Railroad Co., 153 U. S. 380, the plaintiff urged that she had been denied the equal protection of the laws because the Supreme Court of Pennsylvania denied her suit on account of damage to her property abutting on Filbert Street caused by a railroad built on land abutting on the opposite side (see Pennsyl- vania R. V. Marchant, 119 Pa. 541; see § 156), while they sustained a suit brought by another abutter on the same street on account of NOTES OF RECENT CASES. 89T damage caused by the same railroad constructed in the street. See Pennsylvania R. v. Duncan, 111 Pa. 352; see § 155. The Supreme Court held that there had not been a deprivation of property vfith- out due process of law, as there had been a fair trial in due form, nor a denial of the equal protection of the laws, because the distinction between suitors was not invidious, but was based on a substantial differ- ence between their positions. § 50-a. In Matter of East River Bridge Company, 75 Hun 119, the court, in setting aside a report of commissioners approving the con- struction of a bridge and elevated railway, laid some stress on the fact that the promoters did not show sufficient financial ability to meet the probable claims for compensation. § 51-a. The proposition that publicity of use is least questionable when the state itself attempts to condemn, suggests the question whether the state may undertake any business it pleases, for, as the state can act only in the public interest, it would seem to follow that any business within its competency would be a public use for which the eminent domain could be exerted if necessary. The right of the state or its political corporations to engage in business has been considered in sev- eral recent decisions. The most notable of these decisions is on the South Carolina Dispensary Law, which, in the language of the court, was intended to prohibit " the manufacture and sale of intoxicating liquor as a beverage within the limits of the State by any private indi- vidual," and to vest " the right to manufacture and sell such liquor in the State exelasively through certain designated officers and agents." The court decide that the State cannot engage in a trading enterprise, "not because there is no provision to that effect in the Constitution, but because it is utterly at variance with the very idea of constitutional government " M'CuUough v. Brown, 19 S. E. 458. The Supreme Court of Massachusetts are of the opinion that the legis- lature cannot authorize a city to buy coal and wood in order to sell them to its inhabitants. Opinion of Justices, 155 Mass. 598, Holmes, J., dissenting. A Minnesota statute authorized the State to construct and operate grain elevators. The court held that the police power to regulate a business — so well settled in the case of grain elevators — (see §§ 18- 21) does not include the power to engage in the business. Irrespective of the police power the court conceded, but did not decide, that the State could engage in any business unless prohibited by the Constitu- tion, but found this prohibition in the constitutional declaration that the State should not contract debts for or carry on works of internal improvement. Rippe v. Becker, 57 N. W. 331 (Minn. 1894). As a municipal corporation may supply gas and water to its inhabit- ants (see §§ 41, 423), it may supply the electric light. Opinion of Justices, 155 Mass. 598; Linn v. Chambersburg, 28 A. 842 (Pa. 39S NOTES OP EECENT CASES. 1894). But the right to supply electricity for heat and power has not been considered. See Opinion of Justices, 155 Mass. 598. § 71-a. In Shiveley v. Bowlby, 152 U. S. 1, the Supreme Court re- view the leading cases on the distinction between public and private waters. § 91-0. One possessed of a riparian right holds it in subordination to a public right to use the water, and is not prejudiced, therefore, by the diversion of water for public consumption. Minneapolis Mill Co. v. Water Comm., 58 N. W. 33 (Minn. 1894). § 102-a. In Massachusetts there is no constitutional right to have the necessity for condemning specific property determined by a court or jury. The legislature may place the matter within the competency of those to whom it gives the power to condemn. Lynch v. Brookline, 37 N. E. 437 (Mass. 1894). § 113-a. An elevated railway cannot be built under the General Rail- road Law of Pennsylvania. Potts u. Quaker City El. R., 29 A. 108 ; Commonwealth v. Northeastern El. R., 29 A. 111. § 115-a. The Court of Appeals of New York decide that a corporation does not lose its power to condemn property because it has broken a con- tract made with the owner ; that although a street railway corporation agrees with an abutter not to use steam as a motive power, the owner cannot resist condemnation because the contract has been broken. The breach of contract merely gives a right of action. Long Island R., 143 N. Y. 67. § 157-a. The Supreme Court of Illinois decide that property abutting on a street may be " damaged " by noise caused by a railroad built on land lying on the other side. Chicago, M. & S. P. R. v. Darke, 148 111. 226. § 169-a. In Scovill v. McMahon, 62 Conn. 378, the plaintiff's ancestor conveyed a tract of land upon the condition that it should be used always as a cemetery. After many years the legislature lawfully prohibited the further use of the land as a cemetery (see § 13), and authorized the municipal authorities to condemn it for a park. This was done, and the compensation was paid to the defendant. The plain- tiff claimed the whole compensation, on the ground that the condition having been broken the land reverted, or at least a part of the compen- sation, on the ground that if the condition was not broken there re- mained in hira a possibility of reverter for which he should receive value. Both claims were denied. The court held that the condem- nation of the land did not work a forfeiture of the estate to the plaintiff's advantage; that assuming the condition to be a condition subsequent, the effect of the prohibitory act was to destroy the condi- tion, and thereby vest the absolute title in the defendant; that the title being thus vested, there was no possibility of reverter upon which to base a claim for a share of the compensation. NOTES OF RECENT CASES. 399 § 207-a. The condemnation of an easement in property adjacent to a street does not cover the owner's interest in the street. Nat'l Docks, etc. R. V. United jST. J. R., 28 A. 673 (N. J. 1894). § 229-a. It is held that the insolvency of a corporation does not neces- sarily preclude it from exercising the eminent domain. Lester v. Ft. Worth & A. R., 26 S. W. 166 (Tex. 1894). § 282-a. In Chicago & Northwestern Railroad Co. v. Chicago, 148 111. 141, the court approve the principle that an owner is not respon- sible for costs reasonably incurred in a proceeding to condemn his property. § 359-a. A deposit of compensation with the clerk of a court without the knowledge of the court has been held not to be a deposit that will justify entry. Natl Docks, etc. R. v. United N. J. R., 28 A. 673 (N. J. 1894). § 401-a. A city cannot so construct an open drainage-ditch in a street as to impair access to abutting property without compensating the owner thereof. Houston v. Kleinecke, 26 S. W. 250 (Tex. 1894). § 402-a. In Taylor v. Bay City Railway Company, 59 N. W. 447 (Mich. 1894), the court approve the proposition that an abutter cannot recover compensation because the construction of a street railway prevents the unloading of drays standing athwart the street. § 403-a. A turnpike company may be authorized to build and operate an electric railway on their right of way without compensating the owner of the fee. Green ... City, etc, R., 28 A. 626 (Md. 1894). In West Jersey Railroad Company v. Camden, G. & W. Railroad Company, 29 A. 423 (N. J. 1894), Chancellor McGill, in dissolving a preliminary injunction restraining the construction of an electric rail- way in a street because a probable invasion of property rights did not appear, says, " I do not now deal with the future possibilities of the elec- tric railway. It may readily be conceived that the greater motive power it possesses may some time induce an attempt to use the highways by trains of cars, or by rails and cars of such character and size as prac- tically to work all evils of the steam i-ailway, and that there will be inaugurated systems of through cars in furtherance of rapid transit between distant points, which will crowd and burden the street to the inconvenience and obstruction of its other uses, without any accom- modation to the ordinary local use of the street, and thus the degree of incompatibility with the common use may be so raised that the courts will be obliged to distinguish between methods of use, and declare against some as creating an additional servitude on the land occupied by the highway, the crucial test for that distinction being whether the use contemplated is compatible with the purpose for which the common highway was originally designed. . . . Basing their conclusions upon the contemplation of the customary use of the electric street railway, the courts have regarded that, as operated by the trolley system, it ia 400 NOTES OF RECENT CASES. not an additional burden upon the soil in the common highway. . . . But it is a work of supererogation at this time to treat this question as more than an unsettled and doubtful one. It is at least that " § 407-a. In People v. Eaton, 59 N. W. 144 (Mich. 1894), it is held that telegraph poles upon a highway do not impose an additional servitude. § 411-a. The Supreme Court of Michigan approve the rule that an abut- ter cannot have compensation because a street is closed so long as he has access in another direction. Buhl v. Fort Street, etc. Depot Co., 98 Mich, 596. The Supreme Court of Rhode Island hold that one abutting on a thoroughfare and owning the fee to the centre thereof, is entitled to compensation on the closing of the thoroughfare where the sole remain- ing access to his property is by a cul de sac. Jobnsen v. Old Colony R. 29 A. 594. CONSTITUTIONAL PROVISIONS. In several State Constitutions (California, Art. XV., Sect. 1; South Carolina, Art. VI.; Wisconsin, Art. IX.) eminent domain is employed with reference to the property of the State. These provisions are excluded from the following list in accordance with the narrower definition of the power approved in § 2. UNITED STATES. Fifth Amendment. . . . nor shall private property be taken for public use, without just compensation. Fourteenth Amendment. . . . nor shall any State deprive any person of . . . property, without due process of law. NoTK. — The relation of this Amendment to State eminent domain is con- sidered at § 36. ALABAMA. Art. I., Sect. 24. The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the general assembly from taking the property and franchises of incorporated companies and subjecting them to public use the same as individuals. But private property shall not be taken for or applied to public use, unless just com- pensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owners : provided, however, that the general assembly may, by law, secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved ; but just compensation shall, in all cases, be first made to the owner : And provided, that the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations other than municipal, or for the benefit of any individual or association. 26 402 CONSTITUTIONAL PEOVISIONS. Art. XIII., Sect. 7. Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction. The general assembly is hereby prohibited from depriving any person from an appeal from any preliminary assess- ment of damages against any such corporations or individuals, made by , viewers or otherwise; and the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury according to law. ARKANSAS. Art. n.. Sect. 22. The right of property is before and higher than any constitutional sanction ; and private property shall not be taken, appro- priated, or damaged for public use, without just compensation therefor. Sect 23. The State's ancient right of eminent domain ... is herein fully and expressly conceded ; . . . Art. XVII., Sect. 9. The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the general assembly from taking the property and franchises of incorporated companies and subjecting them to public use, the same as the property of individuals. CALIFORNIA. Art. I., Sect. 14. Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money or ascertained and paid into court for the owner, irre-spective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law. Art. XII., Sect. 8. The exercise of the right of eminent domain shall never be so abridged or construed as to prevent the legislature fiom taking the property and franchises of incorporated companies and sub- jecting them to public use the same as the property of individuals ; . . . Art. XIV., Sect. 1. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law; (Followed by pro- CONSTITUTIONAL PROVISIONS. 403 visions respecting the fixing and collecting of water rates in counties, cities, and towns ) COLORADO. Art. n., Sect. 14. That private property shall not be taken for private use unless by consent of the owner, except for private ways of neces- sity, and except for reservoirs, drains, flumes, or ditches on or across the lands of others, for agricultural, mining, milling, domestic, or sani- tary purposes. Sect. IS. That private property shall not be taken or damaged for pub- lic or private use, without just compensation. Such compensation shall be ascertained by a board of commissioners, of not less than three free- holders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein divested ; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. Art. XV., Sect. 8. The right of eminent domain shall never be abridged, nor so construed as to prevent the general assembly from taking the property and franchises of incorporated companies and subjecting them to public use, the same as the property of individuals ; . . . Art, XVI., Sect. 7. All persons and corporations shall have the right of way across public, private, and corporate lands for the construction of ditches, canals, and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation. CONNECTICUT. Art. I., Sect. 11. The property of no person shall be taken for public use without just compensation therefor. DELAWARE. Art. I., Sect. 8. ... Nor shall any man's property be taken or applied to public use without the consent of his representatives, and without compensation being made. 404 CONSTITUTIONAL PROVISIONS. FLORIDA, Declaration of Rights, Sect. 12. ... Nor shall private property be taken without just compensation. Art XVI., Sect. 28. The legislature may provide for the drainage of the land of one person over or through that of another, upon just compen- sation therefor to the owner of the land over which such drainage is had. Sect. 29. No private property nor right of way shall be appropriated to the use of any corporation or individual until full compensation there- for shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascer- tained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law. GEORGIA. Art. I., Sect. 3, Par. 1. In case of necessity, private ways may be granted upon just compensation being first paid by the applicant. Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid. IDAHO. Art. I., Sect. 14. The necessary use of lands for the construction of reservoirs or storage basins for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes, or pipes, to con- vey water to the place of use, for any useful, beneficial, or necessary purpose, or for drainage ; or for the drainage of mines, or the working thereof by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the State, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the State. Private property may be taken for public use, but not until a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefor. Art. XI., Sect. 8. The right of eminent domain shall never be abridged, or so construed as to prevent the legislature from taking the property and franchise of incorporated companies and subjecting them to public use, the same as property of individuals ; . . . CONSTITUTIONAL PROVISIONS. 405 Art. XV. The use of all waters now appropriated, or that may here- after be appropriated for sale, rental, or distribution ; also of all water originally appropriated for private use, but which after such appropria- tion has heretofore been, or may hereafter be, sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the State in the manner prescribed by Jaw. (Followed by several sections relating to the use of waters.) ILLINOIS. Art II., Sect. 13. Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of land taken for railroad tracks, without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken. Art. IV., Sect. 30. The general assembly may provide for establishing and opening roads and cartways, connected with a public road, for private or public use. Sect. 31. The general assembly may pass laws permitting the owners of land to construct drains, ditches and levees for agricultural, sani- tary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authori- ties thereof with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessments upon the property benefited thereby. Art. XI., Sect. 14. The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking, by the general assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public neces- sity, the same as of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right. INDIANA. Art. I., Sect. 21. No man's particular services shall be demanded with- out just compensation. No man's property shall be taken by law without just compensation ; nor, except in case of the State, without such compensation first assessed and tendered. 406 CONSTITUTIONAL PROVISIONS. IOWA. Art. I., Sect. 18. Private property shall not be taken for public use without just compensation first being made, or secured, to be paid to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken. KANSAS. Art. XII., Sect. 4. No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation. KENTUCKY. Sect. 195. The Commonwealth, in the exercise of the right of eminent domain, shall have and retain the same powers to take the property and franchises of incorporated companies for public use which it has and retains to take the property of individuals. . . . Sect. 211. No railroad corporation organized under the laws of any other State, or of the United States, and doing business, or proposing to do business, in this State, shall be entitled to the benefit of the right of eminent domain or have power to acquire the right of way or real estate for depot or other uses, until it shall have become a body corpo- rate pursuant to and in accordance with the laws of this Common- wealth. Sect. 242. Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by them ; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. The general assembly shall not deprive any person of an ' appeal from any preliminary assessment of damages against any such corporation or individual made by commissioners or otherwise; and upon appeal from such preliminary assessment, the amount of such damages shall, in all cases, be determined by a jury, according to the course of the common law. LOUISIANA. Art. 156. Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. CONSTITUTIONAL PROVISIONS. 407 MAINE. Art. I., Sect. 21. Private property shall not be taken for public uses without just compensation, nor unless the public exigencies require it. MARYLAND. Art. III., Sect. 40. The general assembly shall enact no law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation. MASSACHUSETTS. Ft. I., Art. X. Each individual of the society has a right to be protected by it in the enjoyment of his . . . property, according to standing laws. He is obliged, consequeutly, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary ; but no part of the property of any individual can, with jus- tice, be taken from him, or applied to public uses, without his own consent or that of the representative body of the people. . . . And whenever the public exigencies require that the property of any indi- vidual should be appropriated to public uses, he shall receive a reasonable compensation therefor. MICHIGAN. Art. XV., Sect. 9. The property of no person shall be taken by any corporation for public use without compensation being first made or secured, in such manner a§ may be prescribed by law. Sect. 15. Private property shall not be taken for public improvements in cities and villages without the consent of the owner, unless the com- pensation therefor shall first be determined by a jury of freeholders, and actually paid or secured in the manner provided by law. Art. XVIII., Sect. 2. When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders, residing in the vicinity of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law: provided the foregoing provision shall in no case be construed to apply to the action of commis.sioners of highways in the official discharge of their duties as highway commissioners. 408 CONSTITUTIONAL PROVISIONS. Sect. 14. The property of no person shall be taken for public use ■with- out just compensation therefor. Private roads may be opened in the manner to be prescribed by law ; but, in every case, the necessity of the road and the amount of all damages to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of proceedings, shall be paid by the person or persons to be benefited. MINNESOTA. Art. I., Sect. 13. Private property shall not be taken for public use without just compensation therefor, first paid or secured. Art. X., Sect. 4. Lands may be taken for public way, for the purpose of granting to any corporation the franchise of way for public use. In all cases, however, a fair and equitable compensation shall be paid for such land and the damages arising from the taking of the same; but all corporations being common carriers, enjoying the right of way in pursuance to the provisions of this section, shall be bound to carry the mineral, agricultural, and other productions or manufactures on equal and reasonable terms. MISSISSIPPI. Sect. 17. Private property shall not be taken or damaged for public use except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and as such determined without regard to legislative asser- tion that the use is public. Sect. 110. The legislature may provide, by general law, for condemning rights of way for private roads, where necessary for ingress and egress by the party applying, on due compensation being first made to the owner of the property ; but such rights of way shall not be provided for incorporated cities and towns. Sect. 190. The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use; . . . Sect. 233. The levee boards shall have and are hereby granted author- ity and full power to appropriate private property in their respective districts for the purpose of constructing, maintaining, and repairing levees therein; (Followed by provisions for the ascertainment of compensation.) CONSTITUTIONAL PBOVISIONS. 409, MISSOURI. Art. II., Sect. 20. That no private property can be taken for private use with or without compensation, unless by the consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes, in such man- ner as may be prescribed by law ; and that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial ques- tion, and as such judicially determined, without regard to any legislar tive assertion that the use is public. Sect. 21. That private property shall not be taken or damaged for pub- lic use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as maybe prescribed bylaw; and until the same shall be paid to the owner, or into court for the owner, the prop- erty shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken. Art. XII., Sect. 4. The exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the general assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right. MONTANA. Art. III., Sect. 14. Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner. Sect. 15. The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution or other beneficial use, and the right of way over the lands of others for all ditches, drains, flumes, canals, and aqueducts, necessarily used in connection therewith, as well as the sites for reservoirs necessary for collecting and storing the same, shall be held to be a public use. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road, and the amount of all damage to be sustained by 410 COXSTITUTIONAL PEOVISIONS. the opening thereof, shall be first determined by a jury, and such amount, together with the expenses of the proceeding shall be paid by the person to be benefited. Art. XV., Sect. 9. The right of eminent domain shall never be abridged, nor so construed as to prevent the legislative assembly from taking the property and franchises of incorporated companies, and sub- jecting them to public use, the same as the property of individuals; . . . NEBRASKA. Art. I., Sect. 21. The property of no person shall be taken or damaged for public use without just compensation therefor. Art. XI., Sect. 6. The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking, by the legislature, of the property and franchises of incorporated com- panies already organized or hereafter to be organized, and subjecting them to the public necessity, the same as of individuals. Sect. 8. No railroad corporation organized under the laws of any other State, or of the United States, and doing business in this State, shall be entitled to exercise the right of eminent domain, or have power to acquire the right of way or real estate for depot or other uses, until it shall have become a body corporate, pursuant to and in accordance with the laws of this State. NEVADA. Art. I., Sect. 8. ... Nor shall private property be taken for public use without just compensation having been first made or secured, except in cases of war, riot, fire, or great public peril, in which case compensa- tion shall be afterwards made. Art. VIII., Sect. 7. No right of way shall be appropriated to the use of any corporation until full compensation be first made or secured therefor. NEW HAMPSHIEE. Part I., Art. I., Sect. 12. Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property; he is therefore bound to contribute his share in the expense of such protection, and to yield his personal service when necessary, or an equivalent. But no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the repre- sentative body of the people. . . . Although payment of compensation is not definitely prescribed, the courts hold that compensation is due on principle. See § 227, u. 2. CONSTITUTIONAL PEOVISIONS. 411 NEW JERSEY. Art. I,, Par. 16. Private property shall not be taken for public use, without just compensation; but laud may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made. (See § 226.) Art. IV., Sect. 7, Par. 8. Individuals or private corporations shall not be authorized to take private property for public use, without just com- pensation first made to the owners. NEW YORK. Art I., Sect. 7. When private property shall be taken for any public use, the compensation to be made therefor, when such compeusation 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 pre- scribed by law. Private roads may be opened in the mauuer to be prescribed by law; but, in every case, the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the per- son to be benefited. NORTH CAROLINA. Although the Constitution of this State does not refer expressly to the right of eminent domain, the right to condemn and the duty to pay compensation are recognized hy the courts. See cases in § 227, u. 2. NORTH DAKOTA. Art. I., Sect. 14. Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid in court for the owner, and no right of way shall be appropriated to the use of any corporation, other than municipal, until full compensa- tion therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement pro- posed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived. Art. VII., Sect. 134. The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the legislative assembly from taking the property and franchises of incorporated com- panies and subjecting them to public use, the same as the property of individuals. 412 CONSTITUTIONAL PKO VISIONS. OHIO. Art. I., Sect. 19. Private property shall ever be held inviolate, but sub- servient to the public 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 where 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. Art. XIII., Sect. 5. No right of way shall be appropriated to the use of any corporation, until full compensation therefor shall be first made in money, or first secured by a deposit of money, to the owner, irrespective of any benefit from any improvement 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. OEEGON. Art. I., Sect. 19. Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compen- sation, nor, except in case of the State, without such compensation first assessed and tendered. Art. XI., Sect. 4. No person's property shall be taken by any corpora- tion under authority of law, without compensation being first made, or secured, in such manner as may be prescribed by law. PENNSYLVANIA. Art. I., Sect. 10. . . . Nor shall private property be taken or applied to public use without authority of law, and without just compensation being first made or secured. Art. XVI., Sect. 3. The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the general assembly from taking the property and franchises of incorporated companies and subjecting them to public use, the same as the property of individuals; Sect. 8. Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construc- tion or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or CONSTITUTIONAL PROVISIONS. 413 destruction. The general assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers or other- wise ; and the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury according to the course of the common law. RHODE ISLAND. Art. I., Sect. 16. Private property shall not be taken for public uses ■without just compensation. SOUTH CAROLINA. Art. I., Sect. 23. Private property shall not be taken or applied for public use, or for the use of corporations, or for private use, without the consent of the owner or a just compensation being made therefor: Provided, however, that laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and, for works of internal improvement, the right to establish depots, stations, turnouts, etc. ; but a just compensation shall, in all cases, be first made to the owner. Art. XII., Sect. 3. No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensa- tion shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law. SOUTH DAKOTA. Art. VI., Sect. 13. Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained and before possession is taken. No benefit which may accrue to the owner as a result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged. The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken. Art. XVII. , Sect. 18. Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, 414 CONSTITUTIONAL PROVISIONS. ■which compensation shall be paid or secured before such taking, injury, or destruction. The legislature is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporation or individuals made by viewers or other- wise, and the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury as in other civil cases. TENNESSEE. Art. I., Sect. 21. No man's particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefor. TEXAS. Art. I., Sect. 17. No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; . . . VERMONT. Chap. I., Art. II. That private property ought to be subservient to pub- lic uses when necessity requires it; nevertheless, when any person's property is taken for the use of the public, the owner ought to receive an equivalent in money. VIRGINIA. Art. I., Sect. 8. That all elections ought to be free, and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected; . . . This section contains the sole reference to the eminent domain. But the courts recogniz.e the power in all its fulness and also the right to compensation. See Tait's Exr. ». Central Lunatic Asylum, 84 Va. 271. WASHINGTON. Art. I., Sect. 16. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes or ditches on or across the lands of others for agricultural, domestic or sanitary CONSTITUTIONAL PROVISIONS. 415 purposes. No private property shall be taken or damaged for public or private use ■without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal, until full compensa- tion therefor be first made in money, or ascertained and paid into the court for the owner, irrespective of any benefit from any improve- ment proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private pi-operty for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such withont regard to any legis- lative assertion that the use is public. Art. XII., Sect. 10. The exercise of the right of eminent domain shall never be so abridged or construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use the same as the property of individuals. Art. S.XI. The use of the waters of this State for irrigation, mining and manufacturing purposes shall be deemed a public use. WEST VIRGINIA. Art. III., Sect. 9. Private property shall not be taken or damaged for public use without just compensation ; nor shall the same be taken by any company incorporated for the purposes of internal improvement until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use, or for the use of such corporations, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law : Provided, that, when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders. Art. XI., Sect. 12. The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking,, by the legislature, of the property and franchises of incorporated com- panies already organized, and subjecting them to the public use, the same as of individuals. WISCONSIN. Art. I., Sect. 13. The property of no person shall be taken for public use without just compensation therefor. 416 CONSTITUTIONAL PROVISIONS. Art. XI., Sect. 2. No municipal corporation sball take private property for public use against the consent of the owner, without the necessity thereof being first established by the verdict of a jury. WYOMING. Art. I., Sect. 32. Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes, or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary pur- poses, nor in any case without compensation. Sect. 33. Private property shall not be taken or damaged for public or private use without due compensation. Art. X. — Corporations, Sect. 9. The right of eminent domain shall never be so abridged or construed as to prevent the legislature from taking the property and franchises of incorporated companies and sub- jecting them to public use the same as the property of individuals. Art. X. — Railroads, Sect. 4. Exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking by the legislature of property and franchises of incorporated companies and subjecting them to public use the same as property of individuals. Art. XIII., Sect. 5. Municipal corporations shall have the same right as individuals to acquire rights by prior appropriation and otherwise to the use of water for domestic and municipal purposes, and the legis- lature shall provide by law for the exercise upon the part of incorpo- rated cities, towns and villages of the right of eminent domain for the purpose of acquiring from prior appropriators upon the payment of just compensation, such water as may be necessary for the well-being thereof and for domestic uses. Note. — Provisions enacted prior to 1877 are copied from Federal and State Constitutions, etc. (Washington, Government Printing Office, 1877). Provisions of later date are copied from American Constitutions (Albany, The Albany Law Journal Co., 1894). INDEX. 27 INDEX. ABANDONMENT OF PUBLIC USE, Section right of 217 distinguished from discontinuance of proceedings 216 cannot he effected or restrained by private persons . . 105, 217 by definite action 218 non-user 96, 217, 219 misuser 219 and substitution of another use 162, 218, 220 no, as long as original use is continued 220 before payment of compensation 196, 197 whether compensation is reduced thereby 233 effect of 216 on benefits conferred 268 property condemned reverts to owner .... 209, 221, 409 ABATEMENT OF NUISANCE 23, 105, 427 by private person 374 ACCESS. (SeeKiPARiAK Rights; Street.) right to, is justification of private roads 43, 410 impairment of 79, 257 by use of street . . . 135, 155, 156, 401 o (p. 399), 402, 402 a (p. 399), 403-406, 416 during construction of work 159 by vacation of sti-eet 135, 409-411 cost of opening another way 262 special benefit of 271 ACCOMMODATION WORKS, for benefit of one whose property is condemned 225 purchased 128 ACCRETION. (See Riparian Rights.) ACQUIESCENCE. (See Estoppel ; Waiver.) in taking of property, whether presumed 133 occupation of property by (See Entry) 132, 133 420 INDEX. Section ACTION. (See Assumpsit ; Debt ; Ejectment; Equitable Jur- isdiction; Trespass.) for compensation for property condemned 376, 377 damaged or injuriously affected . 309 for breach of condition on wliich property was purchased . . 128 statutory action for compensation 28, 231, 362 after entry by consent 131 whether exclusive 363, 364 must be adequate 364 effect of recovery 362 ADDITIONAL BURDEN ON THE FEE, whether condemnation for second public use imposes an 130, 162, 415 whether alteration of original use imposes an 210 ADJOURNMENT OF MEETING. (See Tribunal.) ADMINISTRATIVE LAW 6,313 ADMINISTRATOR, when entitled to compensation 301 ADVERSE POSSESSION, acquisition of public rights by 133, 393 whether private rights in public property may be gained by 90, 219 AGENTS. (See Corporations; Ultra Vires.) eminent domain usually exercised by 103 personality of , 103 in what sense agents of the state 103 corporations as. (See Corporations.) individuals as . . ■ . 106 substitution of 176 cannot transfer power to condemn without assent of legislature 108 may be compelled to condemn 105, 172 whether they may agree not to condemn ........ lOQ may be authorized to determine necessity for condemnation . 102, 102 a (p. 398) interest required 202 discretionary acts of 104 ministerial acts of 104 may have actions at law and equity ......... 386 comparison between, and private owners as to duties towards other property owners 146, 154 AGREEMENT. (See Purchase.) to purchase property for public use not to be arbitrarily repu- diated 118, 124 not to condemn 100 of expropriator with owner, its effect on compensation . . . 255 AGRICULTURE. (See Drains ; Irrigation ; Reclamation,) public interest in promotion of 14, 427 laws in restraint of 13 INDEX. 421 ALABAMA, Section constitutional provisions (p. 401) ALLEY, a public use 42 change of, to street 162 ALLUVION. (See Riparian Rights.) ALMSHOUSE, a public use 41 ALTERATION OF LAW, by constitution 315 statute 315 in respect of liability for consequential injuries . . . 121, 153 effect of, on pending proceedings 121 ALTERATION OF WORKS, right to make 163, 327 liability for damage due to 129, 163, 164 AMENDMENT, of petition 354 oiE report 354, 375 ANIMALS, statute providing for killing diseased 12, 23 commanding landowners to exterminate squirrels . . 15 ANSWER, propriety of, in condemnation proceedings 332 APPEAL, as to a right Of 36, 356, 360 entry pending. (See Entry.) date of assessment of compensation in case of 286 tender of compensation in case of 287 interest on compensation in case of 280 costs on 282, 284 practice on 360 right to open and close 343 APPEARANCE OF OWNER, is a waiver of certain irregularities 389 APPLICATION FOR ROAD. (See Roads.) APPRAISERS. (See Tribunal.) APPROPRIATION. (See Condemnation.) AQUEDUCT. (See Water- Works.) ARBITRATION, under the Lands Clauses Act 206, 365 in the United States 365 422 INDEX. ARKANSAS, Section constitutional provisions (p- 402) ASSESSMENT OF COMPENSATION. (See Compensation.) is a judicial act 313 by an impartial tribunal. (See Tribunal.) city may be authorized to assess if appeal is allowed . . 230 may be compelled by mandamus 375 whether proceedings for, should be instituted by owner or expro- priator 231 date of valuation of property 252, 285, 286 ASSUMPSIT 377 ATTEMPT TO PURCHASE. (See Purchase.) AUCTION VALUE. (See Market Value.) AUTHORITY TO CONDEMN. (See Legislature; Statute.) derived from statute 109, 182 should appear in petition 326 sti'ictly construed 109 within what time to be exercised 115 express 109 implied 110-112 for use specified 113, 114 larger use 117 incidental works 45, 46, 113, 116 maintenance of works 116 safety of works 116 AWARD OF COMPENSATION. (See Report.) must be definite 351 in money 224, 351 to owner by name 351 covers subsequent damage from original construction . . 163, 164 does not cover damages for trespass 3.52 whether value of benefits should appear in 352 whether compensation for taking and for injuries to remainder of tract should be distinguished in 352 whether conclusive 856 may be set aside because inadequate 357 excessive 357 made arbitrarily 357 on false representations . 357, 380 interest on. (See Interest.) as to right of expropriator to accept or reject . . . 198, 353, 375 BATH, PUBLIC, a public use 41 BENEFITS, 1 constitutional provisions 121, 265 INDEX. 423 BENEFITS, — continued. Section disapproved 225, 258, 265 not to be determined by legislature 230 whether treated as part of compensation 201, 225 general requisites of 266, 267 general, whether good on principle 269 special, what are 270, 271, 348 remote or speculative, not allowed 271 what rights in, are enjoyed by recipient 267, 268 may be proved upon whole tract 266 conferred by whole work 266 evidence as to 346 once allowed, cannot be again considered 268 manner of allowing 254, 265, 272 practice when benefits equal injuries 273 exceed injuries 273 BETTERMENT ACTS 27 BILL IN EQUITY, for compensation 310, 385 on account of wrongful proceedings to condemn 380 may be retained for assessment of damages 382 BLASTING, injuries from 139, 159 BOND, for compensation 289, 292, 293 BREAD, state regulation of 16, 19 BRIDGE, a public use 42 interstate 17 a (p. 396), 32, 82 a (p. 396) condemnation for approach to . . . . . . . . 113, 159 site of pier 32, 420 grading approach to 399 franchise, whether impaired by competition 167 toUbridge, a public use .... 42 making, free 135, 168, 190 substitution of, for ferry 162 state regulation of tolls 17 a (p. 396) BUILDINGS. (See Improvements.) exemption of, from condemnation (See Exempt Property) . 95 compensation for 212, 241 BURDEN OF PROOF, as to necessity of work in question 343 observance of statutory requirements 109 424 IKDEX. BUSINESS, Section whether state may engage in 51 a (p. 397) injury to, whether matter for compensation 154, 157-159, 253, 261, 277 whether profits of, are evidence of market value ..... 244 CABLE RAILROAD 402 CALIFORNIA, constitutional provisions (p. 402) CANAL, a public use 5, 42, 418 interstate 29 condemnation in aid of canal in other State 29 mining 47 estate condemned for 205, 206, 220 power to enlarge 117 condemnation of materials for construction and repair of . . 77 additional supply of water 116 benefits from 266, 268, 271 railroad along 162 across 161 in street 220 CASE, ACTION ON THE. (See Trespass, Action of.) CATTLE-GUARDS, law compelling erection of 15 CEMETERY, a public use 41 sectarian 56 law forbidding location of, near dwelling 95, 123 reservoir 56 further interments in ... . 13, 169 a (p. 398) municipal, held as in private proprietorship 66 private, not protected from condemnation 97 disposition of bodies on condemnation of 77 petition must allege that land is wanted for public 326 land may be condemned for driveway in 113 CERTIORARI, office of 361 before completion of proceedings 355 CIVIL ACTION, whether a condemnation proceeding is a 314 COAST SURVEY, a public use 31 COLLATERAL ATTACK. (See Proceedings to Condemn.) COLORADO, constitutional provisions (p. 403) INDEX. 425 COLOR BLINDNESS, 3^„,„„ law compelling corporation to test employees for 15 COMMISSIONERS. (See Tribunal.) COMMON, TENANTS IN, partition laws 26 as parties 342 award of compensation to 351 COMMON CARRIERS, regulation of charges of. (See Railroads) 19 COMMON LAW, rights and duties of property owners at 80, 146 comparison between, and those of promoters of public works 146, 154, 157 as to public waters, how viewed in the United States ... 71, 72 COMPENSATION. (See Assessment of Compensation; Award; Market Value ; Measure of Compensation.) necessity.of 226, 227 right to, not founded on contract . 228 distinguished from the compensation for taxation .... 25, 51 damages 222, 352 effect of prefix "just" to constitutional requirement of . . 223 in what payable 201, 224, 351 statutory provision for 229 implied contract to pay 10, 371, 377, 385 voluntary promise to pay 120 duty to pay, although public use is abandoned 221 when right to, vests 197, 198, 285 action for recovery of 376, 377 waiver of 388 apportionment of 302-304,351,380 conflicting claims to 305, 306 who are to pay 295, 296 receive 169 a (p. 398), 297-301 COMPETITION, impairment of franchise by 167 injury to business by 261 COMPOST, on land condemned, compensation for 242 "COMPULSORY POWERS," English equivalent of " eminent domain " 7 CONDEMNATION. (See Agents; Authority to Condemn; Eminent Domain; Necessity.) power of summary 9, 10 inchoate 201 after taking possession 118, 132, 379 426 INDEX. C ONDEMN ATION, — continued. Section conditioned on petition of certain persons 102 assent of owners affected ' . 102 electors 102 CONFIRMATION OF AWARD. (See Report.) CONFISCATION 10 CONNECTICUT, constitutional provisions (p. 403) CONSEQUENTIAL INJURIES. (See Damaging of Pkopekty; Nuisance ; Trespass.) to property beyond jurisdiction 28 amounting to a taking of property, rule in Pumpelly's Case 147 encroachment 147-150, 398 subtraction 151 rule that authorized public agents are not responsible for 187-139, 398 what injuries are within rule 144-152 inflicted during construction 159 expert evidence as to 345 common to the public, no private redress for 369 as to injunction against apprehended 383 liability of successor corporation for 296 list of (See Blasting ; Flooding ; Noise ; Odors ; Smoke ; Surface Water; Vibration) deposit of earth 150 sewage 150 disturbance of soil 150 interference with access. (See Access.) percolation 150, 151 pollution of water 146, 150, 152, 155 CONSOLIDATION OF RAILROADS, a public use 44 power to condemn after 108 CONSTITUTION. (See Federal Constitution.) text of constitutional provisions relating to eminent domain (p. 401) condemnation acts to be framed in accordance with . 106, 109, 110 provisions as to liability for damaging or injuriously affecting property 121, 153-157, 315, 400, 406 provision as to power of judiciary to define public use ... 49 condemnation of franchises 82 payment of compensation 121, 288-290 foreign corporations 106 whether provisions are self-executing 229,315 effect of alteration in . . 121, 315 INDEX. 427 CONSTRUCTION OF WORKS, section plan of, set out in petition 327 amendment of 354 considered in estimating compensation for injuries to remainder of tract 255 liability>for injuries due to defective 144, 155 altered 164 as to the use of proper appliances in the 145, 159 injuries due to 155, 156, 164, 257 inflicted during period of construction 159 CONTRACT, ACTION OF, for recovery of compensation 376 CONTRACTOR, condemnation by 104 agreement to arbitrate question of compensation by ... . 365 bound to inform himself as to power of employer 119 CONTRACTS. (See Franchises; Private Contracts.) state control over • . 16-22 right to condemn in order to complete 104 CONVEYANCE. (See Deed ; Vendor and Vendee.) CORPORATIONS. (See Foreign, Political, and Private Corporations ; Reserved Power over Corporations.) comparison between political and private, as to publicity of use 51 authority to commit nuisance 139, 142 liability for defective plan 144, 145 voluntary promise to pay compensation 120 condemnation of a fee 206 right to discontinue proceedings 198 raising of compensation fund 368 security for compensation 292, 293 allowance of benefits 273 successor, liability for compensation or damages 296 interest 279 bound by agreements of predecessor 129 COST OF PROPERTY. (See Market Value.) COSTS, of owner 282 a (p. 399), 284 of expropriator 282, 283 on discontinuance 199 foreign law of ... • 283 COURT. (See Federal Courts ; Court of Claims ; Deposit IN Court; Judiciary; Payment in Court.) appointment of commissioners by 317 may be authorized to determine rights of parties 316 interest condemned .... 202 428 INDEX. COURT, — continued. Section whether, can correct errors in award 354, 358 instructions to jury 343 competency of witnesses within discretion of 344 COURT OF CLAIMS, jurisdiction of, in matter of eminent domain 371 COVENANT. (See Encumbrance ; Warranty.) CROPS, compensation for damage to 200, 242 CROSS-PETITION OR BILL 332 CROSSING OF WAYS. (See Farm-Crossing.) authority for 161, 179 plan of 827, 328 compensation for 250, 252, 277, 278 railroad and railroad 161, 124 turnpike 161 canal . 161 highway 210, 124, 295 alteration in grade 399 DAM, compensation for destruction of 23, 420 raising, and causing new damage 164 injury caused by. (See Flooding.) DAMAGES. (See Trespass, Action of.) distinguished from compensation 222, 352 are personal assets 305 recovery of permanent, common-law rule 308 rule where trespasser is promoting public work . . 309-311 exemplary 311 DAMAGING PROPERTY. (See Consequential Injuries.) laws imposing liability for, not referable to eminent domain 2 constitutional provisions. (See Constitution.) may be enacted by legislature 153 Lands Clauses Act. (See this title.) do not impair charter rights 121, 153 need not provide for compensation 229 do not contemplate unnecessary damage 185 apply where public works are built on purchased land . . 123 whether liability is the same as at common law . 154, 157, 158 what damage is meant, physical damage , . . 155 to incorporeal right 155, 411 damage from construction 156 INDEX. 429 DAMAGING F^OT'ERTY , -r continued. sectioo what damage from operation 157, 157 a (p. 398) change of grade 399, 400 railroad in street .......... 406 personal inconvenience 157 remote damage 157 compensation for, measure of 274 time of appraisement 286 payment . . , , 290 petition need not describe property damaged 329 consideration for conveyance of property to public use does not cover consequential injuries for which a liability is subse- quently imposed 129 DEATH, of party to proceedings, effect of 305, 339 administration of property in case of presumed . . 26, 26 a (p. 396) DEBT, ACTION OF, for recovery of compensation 376 DEDICATION OF PROPERTY TO PUBI^IC USE, presumed 18, 19, 21 actual, evidence of 251, 388 right to accept 130 of property already in public use 130, 213 compensation on opening of street already dedicated 130, 251 control of state over property dedicated to city .... 67 interest of dedicator in property dedicated to city ... 67 same rights and liabilities attach to property dedicated as to property condemned 397 DEED. (See Purchase; Statute of Frauds.) not necessary in proceedings to condemn 171 for purchase of property for public use, description 125 estate 126 consideration, exorbitant 127 inadequate 127 accommodation works 128 covers all damage from proper construction .... 129 remedy for breach of condition 128 DELAWARE, constitutional provisions (p, 403) DE MINIMIS NON CURAT LEX, seldom applies to injuries to property 369 DEMURRER 330,332- 430 INDEX. DEPOSIT IN COURT. (See Payment in Court.) section effect of 293 may justify entry pending appeal 359, 359 o (p. 399) may be compelled by mandamus 375 DEPOT. (See Station.) DESCRIPTION OF PROPERTY, in deed 125 petition 328, 329 not necessary to describe property damaged 329 amendment of 3oi in report 350 DESTRUCTION OF PROPERTY, under police power 9, 12 war power 10 eminent domain 56, 74, 135 power of necessity 9 condemned before compensation paid, who to bear loss . . . 240 DIKE. (See Lbvkb.) DISCONTINUANCE OP PROCEEDINGS, distinguished from abandonment of public use 216 right to discontinue 196 before assessment of compensation 197 after assessment of compensation 198 to be exercised in reasonable manner 199 date of valuation in case of 285 as to recovery of interest in case of 281 damages on 199 costs on 199 commencement of new proceedings after 199 invalid agreement not to discoutinue 105 DISTRICT OF COLUMBIA, eminent domain in 30 DITCHES. (See Drains.) DOCUMENTARY EVIDENCE. (See Evidence.) DOWER, not to be arbitrarily divested 26 compensation for 122, 302 DRAINS, in interest of public health 54, 426 general agriculture 427 for protection of public works 113, 426 in streets 401, 401 a (p. 399) public ditch on railroad way 180 interest condemned for 203 right of entry to clear 163 whether land can be condemned for private 39 n., 426 INDEX. 431 DUE PROCESS OF LAW, Section no deprivation of property without 12 in matter of notice 36, 36 a (p. 896) appeal 36, 356 trial by jury 36 EASEMENT, is interest usually acquired in land condemned 207 rights of enjoyment, construction of necessary works 210 as to use of materials and water 211 incidental use of property for corporate profit . . . 212, 214 grants or licenses to third parties. (See Grants ; License.) is property and may be condemned 79 how described in petition 328 private easements in streets. (See Streets.) EJECTMENT, ACTION OF, when it lies 378 effect of recovery in 122, 379, 386 may be brought by promoters of public works 386 ELECTRIC LIGHT, right of municipality to sell 51 a (p. 397) erection of poles in street 401 condemnation in aid of 424 ELECTRIC RAILROAD, in street 408, 403 a (p. 899) in country road 403 conflict between, and telephone 80, 403 ELEEMOSYNARY CORPORATION, state control over property of 70 ELEVATED RAILROAD, definition 404 condemnation for, under general railroad law . 113, 113 a (p. 398) location of 179 New York law as to liability for injuries caused by ... . 404 not liable for exemplary damages 311 ELEVATOR, GRAIN, state control over 15, 18, 21 statute commanding railroad company to lease land for ... 17 railroad to 46 lease of public property to private 369 EMINENT DOMAIN, definition of 2, 5, 33 derivation of 2 various uses of 2 source of 3 432 INDEX. EMINENT DOMAm, — continued. Sec«oii not founded on contract 35 compared with police power 1, 3, 23 taxation 1, 3, 24, 51 in England 7 France 5, 6 Greece 4 Rome 4 of United States compared with that of other countries ... 7 territorial limits of .... 28 cannot be surrendered by state 86, 94, 100 entrusted to legislature 99, 101 as to exhaustion of, in hands of agent . . . ._ 116 expiration of, in hands of agent 115 transfer of, from one agent to another 108 suspension of, over property 182, 200, 201 private persons cannot compel exercise of 197 iiNCUMBRANCES, COVENANT AGAINST, whether public work on land conveyed is breach of ... . 169 ENGLAND. (See Land Clauses Act.) power of Parliament 7, 419 state regulation of wages and prices in 16 comparison between eminent domain in, and United States . 7 value of English precedents in United States 7 ENTRY, under parol agreement 131 without objection 132, 379 ratification of 132 ejectment brought after 379 under statute not providing for compensation 229 before payment of compensation 291 after deposit of compensation 293, 359 a (399) after payment of compensation 290 pending appeal from award 347, 359 for survey. (See Survey.) repair 163 experimental purposes 133 EQUITABLE JURISDICTION. (See Bill in Equity; Injunc- tion.) generally 380, 385, 386 ESCHEAT, distinguished from eminent domain 3 ESTATE OR INTEREST CONDEMNED. (See Easement; Fee ; Possession ; Temporary Occupation.) ; legislature may determine .... 202 delegate power to determine 202 INDEX. 433 ESTATE OR INTEREST CONDEMNED, — conhnuerf. section estate prescribed must be condemned 203 must be sufficient to support public use 204 whether, is defined by character of public use 205 reservation or release of rights to landowner 20i ESTOPPEL. (See Acquiescence ; Waiver.) application of doctrine of, to condemnation .... 132, 387-391 when public agents are estopped 251, 865, 389, 391 EVIDENCE. (See Burden op Proof; Witnesses.) application of general rules of, in condemnation proceedings . 344 opinion, as to value 344, 346 amount of damage or benefit 346 expert 345 as to value 346 admission of owner as to value 235 view of premises 347 documentary 348 of necessity of use 349 proving injury to property by evidence of effect of works on other property 256 EXECUTION, for compensation 228 as to exemption of property in public use from 64, 123 EXECUTORS. (See Personal Representatives.) EXEMPT PROPERTY. (See Property in Public Use.) exemption laws, nature of 94, 175 construction of 94 exemption of houses 95 improved land 96 railroad property 96 other property 96 laws forbidding condemnation within certain distance of speci- fied property 56, 95, 123 agreement that certain property shall not be condemned . . 100 reservation of property by state does not necessarily exempt it from condemnation 93 EXHIBITION, INDUSTRIAL, a public use . . 48 EXPERT TESTIMONY. (See Evidence; Witnesses.) EXPROPRIATION. (See Condemnation.) EXPROPRIATORS. (See Agents.) FARM-CROSSING, right to 215 cost of, as element of compensation 262, 264 28 434 INDEX. Section FEDERAL CONSTITUTION. (See Federal Courts ; United States.) fifth amendment does not affect State eminent domain . . 35, 227 effect of fourteenth amendment on State eminent domain . 36, 37 FEDERAL COURTS. (See Court of Claims; United States.) injunction against works authorized by State 38 whether bound to apply local law in defining property, public use, taking 37 adoption of State procedure, by 33 removal of condemnation proceedings to 38 cannot entertain suit against State 370 FEE, condemnation of a 121, 126, 203, 205 rights of enjoyment conferred by 206, 209 whether absolute or conditional 206, 209, 397, 415 FENCES, cost of, as element of compensation 262, 264 railroad company may be compelled to build 15, 128 FERRY, a public use 42 may belong to community, not to state 66 landing in street 408 substitution of toll bridge for 162 injury to, by competition 158, 167, 250 FEUDAL SYSTEM, eminent domain under 5 FIRE LIMITS, laws establishing 12 13 FIRE, destruction of property to stay g compensation on account of risk of 136 258 259 expert evidence as to risk - . 345 FISH, regulation of right to take 43O FISHERY, P'lb'io 350,430 right to condemn in aid of 43O wJiryt" .'.".'." 28,430 FISHWAYS, laws compelling building of I5 43Q FIXTURES. (See Improvements.) compensation for 041 INDEX. 435 FLOODING, Section damage by . 28, 29, 119, 140, 142, 147, 148, 163, 164, 185, 421, 429 extraordinary flood 148 natural subjection of land to flood may be shown 249 FLORIDA, constitutional provisions (p. 404) FLOWAGE ACTS. (See Mill Acts.) FLUME, condemnation for 47 FORCIBLE ENTRY AND DETAINER, action of, may be brought by promoters 386 FOREIGN CORPORATION, whether allowed to condemn 29, 38, 106 may promote domestic use 29 FOREIGN STATE, no power to condemn property in 28 control over property of, within the jurisdiction 58 surrender by treaty of citizens' claim against, not a taking of property 135 FORFEITURE, of franchises only at instance of state 115, 369, 375 abandonment of use does not necessarily follow 220 of land purchased, by failure to comply with conditions . . . 128 FRANCE, constitutional and statute law relating to eminent domain 5, 6, 192 FRANCHISES. (See Forfeiture ; Reserved Power.) may be condemned 82, 100, 135 exclusive 83, 100, 167 within " locallimits " 83 direct taking of 165, 168 taking of property necessary to enjoyment of 166 franchise by competition 167 profits of, as evidence of value 244 drawbacks to value of 249 expert evidence as to value of 345 description of, in petition 328 FRAUD OR MISTAKE, relief in cases of 183,381,383 GARDENS, laws forbidding condemnation of 96 GAS WORKS, may be a public use '-^ regulation of charges 21 436 INDEX. GAS WORKS, — continued. Section laying main in street 401 injury to main by change of grade 88 country road 401 over mine 157 private, not protected from condemnation 97 GATES AT RAILROAD CROSSING, law compeUing erection of 15 may be placed in street without compensation 408 GENERAL RAILROAD LAW. (See Statute.) GEORGIA, constitutional provisions (p- 404) GOODWILL OF BUSINESS, its relation to market value 243 GRADE, CHANGE OF, of street, liability for injuries, due to, common-law rule .... 147, 398 Ohio rule 400 constitutional and statutory pro- visions .... 110, 121, 158 262, 393, 399, 400 voluntary assumption of . . 120 effect of, on plant of water and gas companies .... 88 to facilitate construction of railroad 399 levee 399 to restore utility of street crossed by railroad 399 railroad liable for compensation 295 of railroad law compelling 15 GRANT, by state, what may be granted 87 must be duly authorized 86 construction of 88, 297 as to reservation of rights in 73, 88 property granted cannot be arbitrarily retaken .... 86 by promoters, of interests in property condemned .... 213, 214 extinguished by abandonment of public use 221 GRASS, ownership of, on right of way 211, 215 GROUND RENT, laws extinguishing 27 possessor of , not an " owner " 340 ownership of improvements made by lessee 241 INDEX. 437 GEOTIUS, s^y„„ on eminent domain 2, 5 GUARDIAN, when entitled to compensation 301 HACK STAND, in street 408 HARBOR LINES 52,421 HEALTH. (See Public Health.) HEIRS, when entitled to compensation 305 when bound by notice to decedent 339 HIGHWAYS. (See Roads; Streets.) HOMESTEAD, compensation for 89 HORSE RAILROAD, in street 402 HOSPITAL, no summary expropriation for 9 nuisance created by 142 IDAHO, constitutional provisions (p. 404) ICE, property in 211, 215 ILLINOIS, constitutional provisions (p. 405) IMPROVEMENTS, compensation for, on land condemned 238, 241 made by owner before taking completed .... 200, 201 lessee 241 , 304 corporation after unlawful entry .... 132, 239 when improvements are not to be valued 238-241 title to, on land condemned 212 ownership of public, on abandonment of use 221 destruction of, by expropriators pending appeal from award . 347 INDIAN RESERVATION, eminent domain over 30, 93 private estate in 301 INDIANA, constitutional provisions (p. 405) INDICTMENT, when legislative authority protects from, but not from private suit, 140 438 INDEX INJUNCTION, Section on apprehension of irreparable injury 382 in case of wrongful condemnation 383 when cause of injury is in other State 28,29 federal, against State work 38 against railroad in street 381, 384 decree on 384 not granted where adequate remedy at law 381, 383 complainant is in fault 381 laches 382 private benefit would be disproportionate to public injury 382 INJURIOUS AFFECTING OF PROPERTY. (See Damaging OF Property.) INNKEEPERS, regulation of 19 INSOLVENT CORPORATION. (See Receiver.) power to condemn 108, 229, 229 a (p. 399) INTEREST, as part of compensation 279 whether possession of owner is equivalent to 280 on award 280, 281 on claims against the state 371 " INTEREST IN LAND." (See Lands Clauses Act.) INTERSTATE COMMERCE. (See Bridge.) federal power over 32, 61 as to State grant of eminent domain discriminating against . . 32 IOWA, constitutional provisions ("p. 406) IRRIGATION, condemnation for purposes of 52, 423 JOINT TENANTS, as parties 342 award of compensation to 351 incident of survivorship may be abolished 27 JUDGMENT, for compensation 228 satisfaction not presumed where possession has not been taken 133 effect of existing judgment on successor corporation . . 296 JUDGMENT CREDITOR, when entitled to compensation 302 not an "owner" 840 INDEX. 439 JUDICIAL SALE, ' Section transfer of right to condemn by 108 JUDICIARY. (See Court.) final arbiter on question of publicity of use 49, 53 may disregard legislative assertion of police power 14 JURISDICTION. (See Courts ; Statbs of the Union ; Tri- bunal; United States.) JURY. (See Tribunal.) constitutional provisions 316 instruction to 34.3 ■warrant for, may be compelled by mandamus 375 KANSAS, constitutional provisions (p. 406) KENTUCKY, constitutional provisions (p. 406) LACHES. (See Waiver.) of owner may bar right to injunction 382 ejectment 379 LAMP POST, erection of, in street 401 LAND, definition of 77, 203 as to origin of private property in 3 LANDLORD AND TENANT. (See Lease.) LANDS CLAUSES ACT, construction of powers 7 compensation for property injuriously affected 153 " interest in lands " under 153 definition of " manufactory " 191 "house" 191 LATERAL RAILROAD. (See Mines and Mining.) LEASE. (See Ground Rent.) effect of condemnation of land on 170 when lessee entitled to compensation 132, 800, 304, 306 lessee may be " owner " 340 condemnation by lessee corporation 108 lease of interest in property condemned 213, 214 condemnation for a term of years 208 LEGATEE, may be " person interested " 340 440 INDEX. LEGISLATURE, Section eminent domain entrusted to 99, lUl cannot surrender eminent domain 100 delegate legislative power 101 competent to decide questions of expediency . . 14, 53, 102, 334 as to power of, over question of publicity of use 49 may appoint agents. (See Agents.) tribunal 317 select property for public use 172, 334 determine interest to be condemned 202 limit expenditure for public work 230 confirm proceedings irregular in form 230 must consent to transfer of eminent domain 108 control of, over procedure 315 appropriation of funds by, to satisfy claims 291, 371 cannot determine compensation 230 LEVEE, summary expropriation for 9 whether land for, must be condemned 429 change of street grade to accommodate 399 LICENSE, to use property condemned, given by promoters to third parties 367, 369 possession of public property under revocable 88 occupation of private property by parol 131 LIEN, for compensation 228, 289, 296 enforcement of 385 right of holder of, to compensation 298 LIFE ESTATE, condemnation of 378 compensation for 302 LIGHT, obstruction of 155, 253, 404 LIGHT HOUSE, a public use 31 LIMITATION LAWS, whether state subject to 90 political corporation subject to 90 may be prescribed for action for compensation 392 must clearly apply to suit in question 393 whether general limitation laws may be pleaded .... 393 when period of limitation begins 394 of taking the case out of the statute 394 LIQUOR, law regulating sale of 12, 13, 50 a (p. 397) local option law 101 INDEX. 441 LIS PENDENS, section whether applicable to condemnation 200 LOCATION OF WORKS. (See Quantity op Peopebty.) statutory 172 discretionary 173 statutory restraint on (see Exempt Property) . . . 174, 175 implied restraint on (see Property in Public Use). when other property available 181 capricious location 181 to be made by corporation, not by contractor or employee . . 104 altering, by amending petition 354 of railroads (see Railroads). of municipal works beyond city limits 173 conflicting claims to . . . 183 relocation must be plainly authorized 109, 117, 182 LOUISIANA, constitutional provisions (p. 406) MAINE, constitutional provisions , (p. 407) MANUFACTORY, defined in Lands Clauses Act 191 compensation for injury to 263 compensation for condemning 243 railroad to, whether public use 46, 56 MANUFACTURES. (See Mill Acts, Water Power.) promotion of, whether public use . 51, 55, 114 no taxation in aid of 46, 51 MANURE. (See Compost.) MARKET, a public use 41 in street 408 private, not protected from condemnation 97 MARKET VALUE, usual basis of compensation 234 whether only basis of compensation 252,253 compensation may be due, although no depreciation in . . . 252 general characteristics of 234 elements of, present condition of property 238-242 use of property 243, 244 enhancement by reason of adaptability of property to more profitable use . . . 245-247 projection of public work in question 248, 285 as to cost of property 235 442 INDEX. MARKET Y ALTJE, — continued. Section elements of, as to price offered for property 336 price paid for other property 236, 237 auction value of property 234 profits of business 244, 253 depreciation in, by reason of work in question 248, 285 bad condition of property 249 legal restriction on use of property . . 250 whether evidence of actionable injury 154 MARYLAND, constitutional provisions (p- 407) MASSACHUSETTS, constitutional provisions (p- 407) MATERIALS, condemnation of, for construction and repair 77, 104 interest condemned 203, 208 compensation 276 right of corporation to use materials found on land condemned . 211 right of owner of fee to materials in land condemned .... 215 MEASURE OF COMPENSATION. (See Compensation ; Mar- ket Value ) affected by interest condemned 233 when part of tract is taken . . . 254-273 as to consideration of money spent in restoring property injured by condemnation . 262-264 for property damaged or injuriously affected 274 may be amount of annual damage . 233 MEETING OF COMMISSIONERS. (See Tribunal.) MICHIGAN, constitutional provisions (p. 407) MILITARY CAMP, condemnation for 40, 208 MILL ACTS. (See Water Power.) whether constitutional 52, 424 MILLS, state regulation of 19 MINERALS, compensation for 242 expert evidence as to value of 345, 357 found on land condemned, property in 211, 215 MINES AND MINING, as to public interest in mining ... 15, 21, 47 mining canal 47 lateral or mine raih-oad 34, 47, 52, 110, 203 INDEX. 443 MINES AND Mmma, -continued. Section right of fee-owner to work mine on land condemned .... 215 law that one draining mine by his own drain shall have percent- age of ore mined 27 MINNESOTA, constitutional provisions (p. 408) MISSISSIPPI, constitutional provisions (p. 408) MISSOURI, constitutional provisions (p. 409) MONEY, definition of 224 whether subject to eminent domain 81 compensation to be in 224 award of 351 police statutes imposing expenditure of 15 MONOPOLY, wha,t is a, virtual monopoly f 20 exclusive franchise 83 MONUMENT, erection of, in street 401 MORTGAGE, of property condemned postponed to lien for compensation . . 228 foreclosure of, on property condemned 385 MORTGAGEE, when entitled to compensation . 303, 385 whether to be made party as " owner " 340 MUNICIPAL CORPORATION, status of 64 how far independent of state 68 state control over property of 68 what belongs to state 65 city 66, 67 property dedicated to city 64, 67 may condemn land beyond its limits • . . 173 may be authorized to assess compensation when appeal is allowed 230 its security for compensation 292 when entitled to compensation as an owner 65, 297 whether liable for injuries caused by railroad occupying street by its permission 295 extension of limits of, efiect on property included . . 24, 135, 165 NATURAL GAS. (See Pipe Line.) NAVIGABLE WATERS. (See Public Waters.) 444 INDEX. NAVIGATION, Section works in aid of 31, 33, 61, 420 damage from 88, 421 obstruction of, authorized 422 by work in another State 28 removal of 420 whether there is a private right of 422 NEBRASKA, constitutional provisions (p. 410) NECESSITY, various meanings of 52 of use 52 when a legislative question 53, 102, 334 judicial question 53, 334 when to be expressly determined 52, 56, 322 when alleged in petition 326 evidence of 349 burden of proving 343 what is sufficient report on 350 tender of compensation before determination of . . . 287 for condemnation, may be determined by agents 102, 102 a (p. 398) hearing to determine 334 NECESSITY, POWER OF 9 NEGLIGENCE, liability for damage due to negligent construction . . 88, 144, 164 NEVADA, constitutional provisions (p. 410) NEW HAMPSHIRE, constitutional provisions (p. 410) NEW JERSEY, constitutional provisions (p. 411) NEW YORK, constitutional provisions (p. 411) NOISE, damage by 152, 157 a (p. 398), 159, 260, 311, 404 expert evidence as to 345 agreement by railroad corporation to lessen 255 NORTH CAROLINA, constitutional provisions (p. 411) NORTH DAKOTA, constitutional provisions (p. 411) NOTICE, doctrine of 338 necessity of 12, 36, 36 a (p. 398), 333 INDEX. 445 NOTICE, — continued. Section effect of 339 who are entitled to. (See Parties) 298 of hearing to determine necessity 334 publicity of use 335 of assessment of compensation 336 of appointment of commissioners .... 335 what is sufficient, personal 337 constructive 337, 392 waiver of 389 effect of statute which does not provide for 338 NUISANCE. (See Consequential Injuries.) created by human fault 427 not presumed to result from public work 140, 383 whether apprehension of injury will create 258 no right of property in 75 authority to commit, power of legislature to grant 137 may protect from indictment 140 conditional 140 express 141 implied, liberal construction 142 strict construction 142, 143 as to place 143 action on account of 309 OATH OF COMMISSIONERS. (See Tribunal.) ODORS, damage by 152, 156, 157, 260 OHIO, constitutional provisions (p. 412) OIL. (See Pipe Line.) OLEOMARGARINE LAWS 14 OPEN AND CLOSE, RIGHT TO, whether possessed by owner or expropriator 343 OPERATION OF WORKS, injuries due to 156, 157, 258-260 whether corporation is obliged to adopt best methods for . . 145 agreement as to methods of 255 OPINIONS OF WITNESSES. (See Evidence.) ORCHARDS, laws forbidding condemnation of 96 OREGON, constitutional provisions (P- 412) 446 INDEX. OWNER OF PROPERTY. (See Title.) Section statutory definition of . 340 his duty to public . . . • 15 not obliged to improve property 427 his duty to individuals 146 as to right of, to abate nuisance 374 whether may question its selection for public use .... 175, 181 rights of, before completion of condemnation 200, 201 in land in which a public interest has been con- demned 209, 215, 415 by reservation or release by expropriator . . 204 entitled to compensation 298 whether obliged to sue for compensation 231 admission of, as to value of property . 235 market value not affected by personality or needs of ... . 234 incapacity of, to sell 250 whether name of, is part of description in petition .... 329 should appear in award 351 misconduct of, its effect on condemnation proceedings . . 347, 374 PARK, a public use 40, 41 city park beyond city limits 173 selection of land for, by legislature 172 railroad over 178 PAROL AGREEMENT. (See License.) PART OF TRACT, TAKING OP, definition of tract 189, 190 liberal definition of taking 136, 256 rule of liability for 136 compensation for (See Measure op Compensation.) injury to remainder due to construction 257 operation 258-260 to use of remainder 261-264 benefits to remainder. (See Benefits.) PARTIES TO PROCEEDINGS, of making 339 who may be 34O joinder of 341, 342 award of compensation 351 amendment of petition with reference to 354 PARTITION, statutes allowing, do not divest property 26 PARTY WALLS AND FENCES, statute regulating 27 PATENT, property in 81 INDEX. 447 Section PAYMENT OF COMPENSATION. (See Compensation ; Se- curity FOR Compensation.) time of 287 constitutional provision 288 alteration of 121 before title vests 289 entry 121, 290 may be conditioned on demand .... 388 after entry 291-294 actual payment 294 manner of. (See Payment into Court; Tender of Com- pensation.) PAYMENT INTO COURT. (See Deposit in Court.) satisfies obligation to make compensation 299 in case of doubtful ownership 299 for apportionment of compensation 303 PEAT. spread on land, no compensation for 242 PENNSYLVANIA, constitutional provisions (p. 412) PERSONAL PROPERTY, subject to eminent domain 81-84 compensation for injury to 253, 275 PERSONAL REPRESENTATIVES, when entitled to compensation 305 " PERSONS INTERESTED." who are, within statute 340 PETITION, written expression of intention to condemn usually necessary . 325 must show authority to condemn 326 as to allegation of publicity of use 326 necessity of use 326 description of work. (See Construction, Plan of.) property. (See Description.) need not indicate estate required 327 amendnaent of 354 signing 330 verifying 331 filing 331 manner of objecting to 332 PETITION OF RIGHT, whether it can be brought in United States 371 PETITIONERS FOR PUBLIC WORK. (See Roads) ... 102 qualifications of 330 PIPE LINE, for conveyance of oil or natural gas, a public use 47 interest condemned for 204 448 INDEX. PIPE Ll'N'E,,— continued. Section injury from 157 benefit from 271 PLANK ROAD. (See Turnpike.) PLEA, whether necessary in proceedings to condemn 332 POLICE POWER, what it is H distinguished from eminent domain 23 may be joined to eminent domain 23, 428 cannot be surrendered 100, 165 colorably used to destroy property 165 take property 426 exercised in destroying property 12, 426, 427 prohibiting certain uses of property . . . 12-14, 429 imposing burdens on ownership of property 15, 81, 278 upon contracts 16-22 in regulating fishery 430 right of state to regulate business does not include right to engage in it 51 a (p. 397) POLITICAL CORPORATIONS. (See Corporations; Muni- ciPAi, Corporations.) state control over property of, other than municipal .... 69 cannot arbitrate question of compensation when other method is prescribed 365 POSSESSION. (See Adverse Possession.) of public lands. (See Public Lands.) unlawful against state may be rightful as to third parties . . 75 acquired by condemnation, whether exclusive . 163, 207, 215, 415 nature of, after entry without objection 132 whether one in, may liave compensation 300 recovery of. (See E.tectment.) PRESCRIPTION. (See Adverse Possession.) claim of right by 79, 86, 213 PRICES, state reg ilation of .... 16 paid for other property. (See Market Value.) PRIVACY, loss of 157, 260, 311, 404 PRIVATE CONTRACT, may be condemned 84, 169 effect of condemnation of land on covenants 169 agreements of sale . . 170, 306 lease. (See Lease.) no alteration in terms of contract 169 INDEX. 449 PRIVATE CORPORATION, Section may condemn 106 in what sense agent of the state . ■ 103 organization of de facto 107 de jure 107 stock subscription 107 its security for compensation 293 compared with political corporation. (See Corporations.) distinction between corporations having public powers and those which have not 17, 18, 138 distinction between corporations which voluntarily assume pub- lic duties and those on whom duties are imposed .... 97 PRIVATE PROPERTY. (See Property.) all, subject to eminent domain 30, 74 legislature may enlarge definition of 158 not to be arbitrarily transferred from one person to another 26, 70 affected by condemnation, to be defined by what the owner loses rather than what the expropriator gains ...... 74, 134 no, in nuisance or unlawful possession 75 federal courts follow State law of 37 status of legislative act which mistakes private property for public property, or vice versa 88, 111 PRIVATE RIGHTS IN PUBLIC PROPERTY. (See Riparian Rights ; Streets.) PRIVATE ROAD, whether public use 43, 45, 54 vrhether they can be condemned without special authority . . 97 compensation on making, public 164 PROCEDURE. (See Federal Courts ; Proceedings to Con- demn.) control of legislature over 315 at trial, general character of 343 PROCEEDINGS TO CONDEMN, whether administrative 313 in rem 313, 328 of legal rather than equitable nature 314, 380 as to their maintenance for purposes other than condemna- tion 229,291,314 institution or completion of, may be compelled by mandamus . 375 new, after irregular proceedings 116 discontinuance 199 PROFITS, their relation to market value 244 PROHIBITION, WRIT OF, office of 375 29 450 INDEX. Section PROPERTY. (See Exempt Property ; Land; Personal Prop- erty; Private Rights in Public Property; Property affected with public interest ; property in public Use ; Public Property ; Waters.) PROPERTY AFFECTED WITH A PUBLIC INTEREST, what is 18 may be condemned without special authority 97 possessors of, not necessarily public agents 138 PROPERTY IN PUBLIC USE, not to be condemned for incompatible use unless legislative intent is clear 97, 100, 161, 166, 176-180 whether occupation of, for new use is a taking .... 161 uses are incompatible 178, 179, 205 property in question is within rule . . 93, 97, 98, 381 property purchased may be within rule 183 PUBLIC CORPORATIONS. (See Municipal Corporations; Political Corporations.) PUBLIC HEALTH, destruction of property in interest of 9, 12 drainage in interest of 54, 426 reclamation in interest of 427 municipal power to preserve, does not necessarily include power to condemn 112 PUBLIC LANDS, their tenure gg private interests in 89 by adverse possession 90 of United States, right of State to condemn 59 PUBLIC PURPOSE. (See Public Use.) PUBLIC SAFETY, destruction of property in interest of 9 12 imposition of burdens in interest of 15 corporation may condemn in order to make undertaking safe . 116 PUBLIC USE. public purpose 5q interest 49 various definitions of, in the States 37 definition of, may alter with circumstances 52 as to power of federal court to define, in State law .... 37 sole object of eminent domain 39 no condemnation for foreign 29 interstate 29, 30, 32 judiciary final arbiters of 49 53 335 influence of custom and stare decisis 53 hearinof to determine publicity of use 335 282 costs on . INDEX. 451 PUBLIC USE, — continued. Section elements of, necessity (See Necessity.) 52 status of promoters 51, 51 a (p. 397) magnitude of interests involved 52 use open to all 43, 46, 47, 54, 56 on reasonable terms 42, 56 essential that all may use 56 not essential that many will use 56 as to intention to commence or ability to complete works . 50 as to objects of pleasure or ornament 42, 44, 52 incidental private benefit not incompatible with . 41, 42, 44, 54, 55 private contribution to cost of work not incompatible with . . 54 substitution of one, for another 164, 176 allegation of publicity of use in petition 326 amendment 354 list of public uses by reference to their titles. (See Alley; Almshouse; Aqueduct; Bath; Bridge; Canal; Ceme- tery; Coast Survey; Drains; Electric Light; Ferry; Fishery ; Flume ; Gas Works ; Harbor Lines ; Irriga- tion; Levee; Light House; Manufactures; Market; Mines and Mining; Navigation; Park; Pipe Line; Private Road; Public Health; Public Safety; Rail- road; Reclamation; Road; School House; Sewer; Station; Stockyard; Street ; Telegraph; Telephone; Turnpike; Urinal; Water Power; Water Works; Wharf.) PUBLIC WATERS, what are 71, 71 a (p. 398), 72, 73, 418 control of, vested in sovereign 418, 419 cannot be surrendered 87 private rights in. (See Riparian Rights.) 420-422 PURCHASE. (See Deed.) meaning of , Ill authority to Ill does not include power to condemn 112 whether power to condemn includes power to ... . 122, 123 of land does not prevent condemnation of more of vendee's land 100 position of corporation purchasing instead of condemning . . 122 status of property purchased instead of condemned . . . 122, 123 attempt to, usually condition precedent to condemnation . . 124 what constitutes an 124 failure of, must be alleged in petition 326 waiver of 389 offer to, not evidence of market value 236 QUANTITY OF PROPERTY CONDEMNED, may be prescribed by statute 172, 187 452 INDEX. QUANTITY OF PROPERTY CONDEMNED, — con^muerf. Section as much as is necessary 52, 185 for future use 98, 186 condemnation of whole tract 191-193 ■width of way 95, 187 gift of additional 130 amending petition as to 354 QUO WARRANTO, office of 367, 375 RAILROAD. (See Elevated Railroad; Lateral Railroad; Station; Street Railroad.) definition 405 a public use 44 incidental works 45, 116 branch lines and spurs 46 interstate railroad 30, 32, 59, 60 lateral railroad. (See Mines and Mining.) private 44, 46, 56 authority to condemn for Ill, 112, 124 effect of general railroad law. (See Statute.) condemnation of materials. (See Materials.) water for operation ......... 423 in order to make undertaking safe .... 116 interest condemned 121, 203, 205, 207 exclusive possession 215 right to lay additional track 163 shift track 163 erect telegraph 210 location of, generally 174, 175 along street 37 a (p. 396), 50, 135, 156, 158, 159, 220, 295, 396, 405, 406 erection of gates 408 effect of ordinance regulating speed 348 shore 73, 75, 92 canal 162 turnpike 162 route of other railroad ... 98, 165, 168, 176, 180, 278 on park 67, 178 levee 67 across railroad or other way. (See Crossing op Ways.) limitation of width of way 95, 187 benefits from 266, 267, 269, 271 property of, when protected from condemnation. (See Exempt Property; Property in Public Use.) property of railroad chartered by Congress not beyond State eminent domain 59 abandonment of 217 INDEX. 453 RAILROAD, — continued. Section regulation of charges of 21, 22 taxation in aid of 51, 68 RECEIVER, condemnation of property in custody of 76 condemnation by 108 liability for compensation .... 127 order by, for presentation of claim for compensation .... 228 ■whether, should be appointed to protect mortgagee's interest in property condemned 385 RECLAMATION, early instances of 5 objects and methods of 427, 428 interest condemned 206 title to land reclaimed beyond terminus of highway .... 73 REMAINDER, ESTATE IN, vested, not to be arbitrarily divested 26 compensation for 302, 378 REMEDIES. (See Abatement; Assumpsit; Bill in Equity; Debt; Ejectment; Fokcible Entry and Detainer; Injunction ; Prohibition ; Quo Warranto ; Trespass.) REMOVAL OP CAUSES. (See Federal Courts.) RENT, compensation for loss of 241, 311 RENTAL VALUE, depreciation in 159, 244, 261, 311 REPORT, on necessity of works 350 on compensation. (See Award.) must describe property condemned 350 confirmation of 353 amendment of 354 RESERVED POWER OVER CORPORATION. (See Police Power.) nature and effect of 165 imposition of rates for service .... 17-22 of heavier liabilities 121, 153 compulsory condemnation 105 does not cover property acquired under franchise 165 right to improve street without liability to corporations using them 88 RESERVOIR. (See Water Works) RETAINING WALL, compensation for cost of 262 454 INDEX. REVERSION, Section of land on cessation of public use 169 a (p. 398), 209, 220, 221, 409 injury to 81,300,302 value of, not matter for expert evidence 345 REVIEW OF PROCEEDINGS. (See Appeal; Cektiobaki.) when obtainable 355 for errors in procedure 355 on the merits 356 as to power of court to correct errors 354, 358 effect of, on progress of public work 359 RHODE ISLAND, constitutional provisions (p. 418) RIGHT OF ACTION, may be condemned 81 RIPARIAN RIGHTS. (See Public Waters.) accretion 73, 75 alluvion 73 easement of access 79, 85, 91, 422 denied 92 right to dock out 91 whether right of navigation is included in 422 riparian owner compared with abutter on street 422 federal courts follow State law of 37 RIVER. (See Riparian Rights; Public Waters ; Water.) ROAD. (See Private Road; Street.) ancient roads 5 a public use 42 for pleasure driving 42 application for 102, 329, 330 notice of .... 334 location of, on railroad 180 across railroad or other way. (See Crossing of Ways.) limitation of width of way 187 as to compensation for 5, 42, 226 New Jersey and Pennsylvania law 226 condemnation of materials for construction and repair. (See Materials.) ROMAN LAW 4 SAFETY. (See Public Safety.) SALE, of property condemned 206 when it amounts to abandonment of use 219 effect of, on benefits 268 INDEX. 455 SALE, — continued. geeti„n of superfluous land 206 of materials 214 by owner before taking complete. (See Vendor and Vendee.) SCHOOL-HOUSE, a public use 4X SECURITY FOR COMPENSATION, when state condemns 289, 291 city condemns 292 private corporation condemns 293 SEWER. (See Drains.) a public use 40 may be built Jay state 40 as to authority to condemn for 112 in streets 401 in land over which street not formally opened 396 condemnation of land beyond city limits for 173 nuisance from 140, 143, 144, 249, 354 SMOKE, damage by 152, 156-159, 260, 404 expert evidence as to 345 agreement to lessen 255 SNOW, law compelling abutter to clear sidewalk of 15 SOUTH CAROLINA, constitutional provisions (p. 413) SOUTH DAKOTA, constitutional provisions (p. 413) SOVEREIGN POWER, basis of eminent domain 3 cannot be surrendered 87, 100 distinction between local and federal 28, 419 as to doctrine of personal sovereignty in United States . 371, 419 SPECIAL ASSESSMENT. (See Taxation.) imposition of, to extent of benefit conferred .... 25, 273, 428 raising a fund for compensation by 292, 294, 376 liability for, not element of compensation for damage to re- mainder of tract 264 STATE. (See Escheat; Foreign State; Legislature; Sov- ereign Power ; States of the Union ; United States.) territorial jurisdiction of, in respect of eminent domain ... 28 condemnation of fee by . 205 when title to property condemned vests in 289 its security for compensation . 289, 291 when entitled to compensation 297 action by, on account of abuse of eminent domain ..... 367 456 INDEX. STATE, — continued. ' Section suits against 370-372 liability of servants of, for property wrongfully appropriated . 372 control of, over corporate property. (See Eleemosynaky Corporations; Municipal Corporations; Political Corporations; Reserved Power, &c.) STATES OF THE UNION, eminent domain of "8, 34-38 for foreign uses 29 federal uses 29, 33 over federal property 59 property of other States 62 whether it can be exercised so as to discriminate against interstate commerce ... . . 32 property of, how far subject to federal eminent domain . . 60-62 jurisdiction of, over land condemned by United States ... 31 interstate servitudes 23 power over navigable waters 419 cannot be sued without consent 370 supremacy of Constitution of, over Territorial law .... 34 grants by. (See Grants.) STATION, RAILROAD, a public use 45 condemnation for 181 agreement to build 128 in street 408 STATUTE. (See Alteration in Law; Authority to Con- demn; Legislature.) must contemplate a taking of property .... ... Ill provide for compensation. (See Compens.\tion.) conform to constitutional provision for framing of laws . 110 be a complete law in itself 101 statutes in pari materia .... ... 109, 113 power to condemn may be granted by general laws . . 102, 103 whether claimant of power is within general law 109, 110, 113 construction of 109, 114 STATUTE OF FRAUDS, effect of, on acquisition of property for public use . 131, 377, 385 STOCK, shares of, may be condemned 44, 84 subscription to, whether condition precedent to condemnation . 107 personality of subscribers 50, 107 valuation of corporate, in condemning franchise 244 STOCKHOLDERS, not personally liable for compensation 295 of expropriating corporation, not to be members of tribunal . 320 need not be made parties 342 no condemnation to promote interests of 185 INDEX. 457 STOCKYARD, whether railroad company may condemn for 45 raih-oad to 46 STREET RAILROAD. (See Cable, Electric, and Horse Railroad.) defined 402 condemnation for 113 compensation for property injured during construction of . . 159 use of, by coach company 83 STREET. (See Access; Dedication.) belongs to state 62, 65, 90, 397 private easements in .... 79, 85, 135, 402 a (p. 399), 416 rights in, by adverse possession . .90 authority to occupy 86, 177, 180, 341, 397 Congress cannot give, to promote interstate use . . .62 subject to public right to improve street 88 as to grant of exclusive use to private corporation . . 50, 307 selection of land for, by legislature 172 laying, over federal property . ... 59 not to be opened by railroad company 45, 112 under ordinance for widening 113 widening 112, 398 narrowing 398 altering grade of. (See Grade, Change of.) vacating 217, 409-411, 411 a (p. 400) uses of, local uses 401, 401 a (p. 399) works of transportation and transmission. (See Rail- road; Telegraph.) 62,402-407 works unrelated to thoroughfare use ... . . 408 temporary use during construction 159 conclusions as to 412 urban and rural servitudes 413 anticipation of future use . 414 ownership of fee . . ... 415 easement by adjacency 416 use of land over which street not formally opened 396 benefits from 266,269,311 whether city authorizing railroad in, is liable for compensation 295 not abandoned because railroad is built thereon 220 SUITS AT LAW, whether condemnation proceedings are 38, 314 SURFACE WATER. (See Drains.) obstruction of ... . "^7 as to liability for damage by — common-law rule 146 civil-law rule 146 liability of promoter of public work 149, 158, 426 458 INDEX. SURVEY, Section entry for . . . . ' 195 effect of, on conflicting claim to location 183 coast 31 SUPPORT, RIGHT TO 204,398 TAKING. (See Condemnation; Consequential Injuries; Part of Tract, Taking of.) eminent domain effects 134 as to power of federal courts to define, under State law ... 37 may be acquisition of property 134, 135 assumption of dominion over property 135 destruction of property 135 physical interference with property 147 qualification of liability 147 subtraction from property 151 TAXATION, distinguished from eminent domain 24, 51 purpose of, not to be accomplished by eminent domain ... 40 exemption from 100 for private purpose, not lawful 24, 51 in aid of railroads 51, 68 special. (See Special Assessment.) power to compel city to levy tax for local improvement ... 65 whether assessed value of property for purposes of, is evidence of market value 230, 235 personal liability for taxes not affected by condemnation of property taxed 170 TAXPAYER, interest of, in exercise of eminent domain 368 may be member of tribunal of assessment 320 TELEGRAPH, a public use 48 interstate 62 on turnpike 166, 327 street 62, 403, 407, 407 a (p. 400) railroad 161, 162, 180, 213, 350 no compensation for fencing right of way of 262 TELEPHONE, a public use 48 regulation of charges 21 in street 403, 407 conflict between, and electric railroad 80, 403 organization of telephone corporation under telegraph act . . 113 TEMPORARY OCCUPATION, for purposes of construction 203, 208, 233 taking materials 203, 208 compensation for 233 INDEX. 459 TENDER OF COMPENSATION, Se„t,o„ what is a 287 must be in money 224 effect of 228, 287, 359 •without interest, effect of its acceptance 281 TENNESSEE, constitutional provisions (p. 414) TERRITORIES, have the eminent domain 30 eminent domain of United States over 30 effect of Territorial laws on State polity 34, 70 TEXAS, constitutional provisions (p. 414) TIMBER, compensation for 89, 238, 240, 242 TITLE, of expropriator to property condemned, when it vests 289 depends on payment to true owner or into court .... 299 to property required for public use, practice in case of doubtful title 299 whether owner must prove title 300 parties may be made on record title 339 cloud on, void proceedings to condemn do not create .... 380 does not reduce compensation 250 condemnation proceedings not appropriate to try or quiet . . 314 TOBACCO, law prohibiting manufacture of, in tenement houses .... 14 TOLL BRIDGE. (See Bridge.) TOLLS, taking of franchise to collect 165, 168, 230, 249 right to impose, on navigation 422 TRESPASS. (See Ncisance.) justifiable 9, 10 waiver of 379, 382, 388 TRESPASS, ACTION OF. (See Damages.) when it lies 28, 81, 377 cannot be brought after entry by consent 131 whether compensation for lawful appropriation can be had in . 222 not discontinued by agreement for reference 377 TRIBUNAL, THE. (See Award; Jury; Report.) appointment of 7, 317 notice of 335 jurisdiction of 355, 387 composition of 316, 319 460 INDEX. TRIBUNAL, THE, — continued. Section qualifications of , 319 disinterestedness 320 vacancy in 818 oath of 321 waiver of requirement of oath 389 powers of, determination of necessity . 322 control over manner of condemnation 822 assessment of compensation 225, 322 must be exercised impartially 86, 324 whether majority may exercise 323 meeting of . . 823 adjournment of 323 notice of 336 how far bound by evidence 844, 345, 347 power to amend report 354 TRUSTEE, when entitled to compensation 301 TURNPIKE, a public use 42 compensation for 233 erection of gates 143 railroad on 161, 408 a (p. 399) ULTRA VIRES, plea of, by corporation in answer to claim for damages 119, 120, 391 UNITED STATES. (See Fedekal-Courts.) relation to States 28 60 eminent domain of 30 over property in State 3, 31, 82 a (p. 396), 33 held by States 60, 61 as to conflict of powers 60 use of State eminent domain by 33 control over navigable waters 419 constitutional provisions (p. 401) URINAL, PUBLIC, a public use ^j^ USURY LAWS iQ VACATION OF STREET. (See Street.) VENDOR AND VENDEE, which entitled to compensation 306 damages 310 notice to vendor . ggg effect of waiver by vendor 306 387 888 VERDICT. (See Report.) IXDEX. 461 VERMONT, ... .. Section constitutional provisions ... 4 (p. 414) VESTED RIGHTS, P^tected . 12,26,121,315 as to, in political conditions 64 VIBRATION, damage by I39, 152, 156, 157, 159, 260, 311 VIEW. (See Evidence.) VIEWERS. (See Tkibunal.) VIRGINIA, constitutional provisions (p. 414) WAGES, state regulation of 16 WAIVER. (See Acquiescence; Estoppel; Laches.) of constitutional or jurisdictional defects 387 compensation 388 irregularities, by appearance 389 acceptance of compensation 389 laches 378, 390 binds vendee of property. (See Vendor and Vendee.) WAR POWER, effect on private property 10 taking of money under 81 WAREHOUSE, state regulation of 21 whether " property affected with public interest " 20 as to condemnatiom for 45 WARRANTY, COVENANT OF, condemnation of land not breach of 169 WATER. (See Canal; Flooding; Irrigation; Public Waters; Riparian Rights; Surface Water; Water Power ; Water Works.) private property in 78 duty of owner of natural barrier against 429 quantity and description of water to be condemned . . 185-187, 203, 204, 233, 322 condemnation of, for operation of railroad 423 use of, on property condemned 211, 215 grants of, by promoters 213, 214 alteration of course of 146, 421, 211 diversion of 28, 91 o (p. 898), 155, 244, 249, 263, 420 pollution of 116, 150, 152 injury by percolation of 151 462 INDEX. WATER POWER, Section whether a public use 51, 114, 424 injury to 420 WATER WORKS, a public use 31, 41, 423 regulation of charges of 21 as to authority to condemn for 104, 112, 114 to increase supply 116 maintain purity 116 beyond city limits 173 laying pipes in street 401 country road 401 erecting tank or reservoir in street 401 alteration of 163 property, when protected from condemnation . . . 96, 177, 178 law forbidding location of cemetery near reservoir 56 WEST VIRGINIA, constitutional provisions (p. 415) WHARF, a public use 42, 55 incident to railroad 45, 97 control of state over city wharf 65-67 right to build in public waters 20, 91, 92 limitation by harbor lines. (See Harbor Lines.) right of riparian owner to, by accretion 73 no property in unlawful erections on 75 whether protected from condemnation 97, 177 diversion of public, to private use 369 WISCONSIN, constitutional provisions (p. 415) WITNESSES, ordinary, to value 346 expert, to value 345, 346, 357 may be examined as to competency 344 WYOMING, constitutional provisions ^ . . , . . (p. 416)