ainm? U Slaui Bti^tml ICibtary Cornell University Library KFS599.M65 1888 Mills on the law of eminent domain. 3 1924 020 025 965 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020025965 MILLS ON THE LAW OF EMINENT DOMAIN. SECOND EDITION, Henry E. Mills and Augustus L. Abbott, OF THE ST. LOmS BAR. ST. LOUIS : THE GILBERT BOOK CO, Entered according to Act of Congress in the Tear 1888, bj- THE GILBERT BOOK CO., In the office of the Librarian of Congress^ at Washington^ PREFACE TO FIRST EDITION. OvEE five years ago, it was suggested to the author that the Law of Eminent Domain was of sufficient importance and extent to justify a separate treatise upon the subjecl;. Further examination developed the fact that the prac- titioner, in investigating almost any branch of the subject, would be compelled to apply himself to the multitudinous volumes of reports. The only collections of authorities to be found were in the law periodicals, and in occasional chapters in text-books devoted to constitutional law, the law of railways, and of municipal corporations. On a careful search into the cases on the subject, both in the American and English reports, the author found more than three thousand two hundred decisions, which are cited in the following pages, many of the decisions being cited several times. If the author had indulged liberally in quotations from decisions, the volume could have been easily swelled to twice its present size ; but it was considered preferable, in most cases, to state the ultimate conclusions of the court, in a form as condensed as would be consistent with perspicuity. Some subjects related to the Law of Eminent Domain were suggested as' proper to be considered in a treatise upon this subject. Among these were the acquisi- tion of rights in real property by reason of the dedication (iii) IV PEEFACK. of the owner ; the acquisition of prescriptive rights in prop- erty by the public, or by corporations authorized to hold property for quasi-public uses ; and the general subject of as- sessment of benefits for local improvements. An adherence to the definition of Eminent Domain as the power to con- demn private property for public use, called for the elimi- nation of the consideration of rights obtained by dedication and prescription. The assessment of benefits for local improvements is certainly to be referred to the power of taxation, in all cases where no land is taken from the owner upon whom the benefit is assessed. But whenever the benefit is deducted from the compensation for land or materials taken, or whenever the benefit is considered in arriving at the "just compensation" secured to the subject, when his property is taken by the public, then the benefit has been treated of in this work. The history of the exercise of the power of Eminent Domain in the United States is the history of the material development of the country. The great bulk of the cases have appeared within the last forty years. Prior to that time, the opening of highways and the erection of mills gave rise to an occasional discussion of this branch of the law. The era of railroad and canal-building has thronged the courts with cases ; and the magnitude of the interests involved has demanded and secured for them the atten- tion of counsel of great ability, as well as the careful consideration of the most learned judges on the bench. Later legislation, and constitutional enactments, have somewhat simplified the law and settled doubtful ques- tions ; but, notwithstanding this assistance, the law, as declared by the courts, is far from being uniform or -,~ , PREFACE. V symmetrical. It is hoped that this treatise will give the profession a more complete view of the law of the subject than has hitherto been attainable, and that the system- atization of the law and the definition of its .boundaries mil thereby be fui'theitu. H. E. M. St. Louis, May 1, 1879 PREFACE TO SECOND EDITION. During the period that has elapsed since the publication of the first edition of this work in 1879, the number of re- ported decisions on the subject of Eminent Domain has greatly increased. The results of this litigation are in- cluded in the work now offered to the profession. The whole number of cases decided since 1879 is nearly one- third of the whole number of cases included in the former edition. Inasmuch as the work has been so frequently cited in the opinions of the courts, it has been thought advisable to re- tain the numbering of the sections of the first edition, new sections being introduced whenever necessary. It has also been thought desirable to place the citations immediately after the sections instead of at the foot of the page as here- tofore. H. E. M. A. L. A. (vi) TABLE OF CONTENTS. CHAPTER I. Definitions. Section 1. Definitions and sources of power. 2. Distinction between tlie power of eminent domain and that of taxation. 8. Taking by virtue of tlie war power. 4. Taking by virtue of overruling necessity. 5. Destruction of buildings to prevent the spread of conflagration. 6. Condemnation of property as a nuisance. 7. Interference witli property by the police power. 8. Forfeiture for violation of law. 9. Regulation of the use of private property. CHAPTER 11. Of Uses considered Public. Sbctioit 10. "Whether the use is public — ^ Province of the legislature. 11. The propriety or policy of the condemnation not a judicial question. 12. How many people must use, in-order to make the use public. 13. The public need not own nor operate the improvement — Incidental private advantage. 14. Means of transportation — Railroads, canals, ferries, roads, and bridges. 14a. Public character of telegraph and telephone lines. 15. Public character of mills. 16. Draining of marshes — Eeclaiming land. 17. School-houses. 18. Facilities for public health or recreation — Parks — "Water-works. 19. Burying-grounds. 20. Encouragement of mines. 21. Improvements unknown to the framers of the Constitution — Miscellaneous public uses. (vii) Vm - TABLE OP CONTENTS. CHAPTER III. Of Uses consiubeed Pkivatb. Seotion" 22. Condemnation for private use. 23. Condemnation of property for sale or for use by others. 24. Inducements to declare use public — Donations of land — Pay- ment of damages by individuals. 25. Settlement of private disputes — Sales of land of minora. 26. Private or neighborhood roads. 27. Eoads denominated private which the public may use. 28. Lateral railroads. 29. Ways of necessity. CHAPTER IV. Op what constitutes a Taking. Skction 80. Injury or depreciation of property. 31. Taking an easement. 82. Additional biu-den of railroad upon highways, turnpikes, and canals. 38. Highway an additional burden on a railroad. 84. Turnpike not an additional burden on public road. 85. Perry-landing additional burden on highway. 36. Preliminary survey not a taking. 36o. " Taking," as construed in decisions. CHAPTER V. Impatrment of Rights secueed by Conteacts ani> Chaetees. Section 87. Impairment of private contracts. 88. Interference with rights secured by charters. 39. Charters not in terms exclusive. 40. Legislative contract not to condemn. 41. Condemnation of the property of a corporation. 42. Condemnation of a franchise. 43. Impairment of the enjoyment of franchise ; regulation of its use.. 44. Condemning a use of the property of a corporation. 44a. Condemnation of a right of way at railway crossings. 45. Condemnation of property devoted to another public use. 46. Express legislative authority. 47. Condemnation under general laws of property devoted to an- other public use — Priority of location. TABLE OF COJSTJSM'S. IS CHAPTER VI. Extent of Authoeitt to Condemn. Sbotioit 48. Authority to condemn not presumed. 49. Extent of interest condemned, 60. A fee may be condemned. 51. Pee in public roads and streets. 62. Minerals in land taken for street. 53. Timber and grass in highways. 64. Materials and buildings in highway. 55. Public u-o (if a highway — Construction of sewers, drains, etc. 56. Use of highway by adjoining owner. 57. Cessation of public use — Eeversion to owner. 58. Powr exhausted by exerdise — Limitations of time and amount. 58a. Opposing views. 586. Limitations as to time and amount — "Width. 59. Necessary and convenient buildings — Maintenance — Repairs — Side tracks, telegraph lines, etc. ■ CHAPTER YII. Of Delegation of the Power of Eminent Domain. SuOTloir feO. The power may be delegated — Delegation to engineers ^ Con- tractors. 61. Delegation to corporations. 62. Discretion to be exercised — Selection of route. 63. Condemnation by corporation after sale or lease of its prop- erty — Eights of vendee. 64. Immunity of officers engaged in condemnation from actions of trespass. CHAPTER VIII. Of the Interests and Ownerships which may be affected by Condemnation. Secmok 65. What persons are considered " owners." 66. Vendor and vendee — Change of title. 67. Change of title by dfeath — Claims of heirs and administrators. r68. Landlord and tenant 69. Landlord and tenant — Apportionment of rent. X TABLE OF CONTENTS. SBCTloif 70. Landlord and tenant — Rebuilding when part of leased buildings are taken. 71. Dower interest — Separate property of wife — Homestead. 72. Infants. 73. Joint interests — Tenants lor life — Eemainder-men — Kesiduaiy 74. Eights of holders of encumbrances and liens — Judgment-liens. 75. Legal and equitable titles — Trustees and cestuU que trust — Receivers — Gruardians. 76. Unknown owners — Conflicting claims — Payment into court. 77. Duty of condemning party to ascertain ownership of property taken. CHAPTER IX. Of the Eights of Eipakian Owijees. Sbotion 78. Interference with tide-waters. 79. Eights of riparian owners. 80. Improvement of navigable rivers. 81. Diversion of streams — Improvement of streams not navigable. 82. Eights between low and high water-mark. 83. Eights of owners on lakes and great ponds. CHAPTER X. Of the Eemedies provided by the State and open to the Owner. Sectioit 84 Eemedy to be provided by the legislature. 85. The assessment of damages under judicial control. 86. Disqualification of court on account of interest. 87. Statutory remedy is exclusive. 88. Where the statutory remedy is not complete, the common-law remedy survives. 89. The initiative in proceedings — Where the condemning party alone may institute proceedings — Where the owner alone may institute — Where either party may institute. _^90. Eemedy of owner, where condemning party does not follow stat- utory remedy. 91. Not necessary that the assessment should be by a jury. 92. EulSs governing proceedings— Open and close — Change of venue — Eeferences — Due process of law. 93. Effect of subsequent legislation on proceedings — Eeversal of proceedings. TABLE OF CONTENTS. XI CHAPTER XL Of Notice of Proceedings. Skotioit 94. Notice not absolutely necessary. 95. Notice generally required, to give jurisdiction. 96. Necessity of notice inferred from provisions of the statute. 97. Appearance — Waiver of notice. 98. Notice by publication and by posting. 99. Eeasonable notice. 100. What tbe notice should contain. 101. Beturn of service of notices. 102. New notice of new proceedings. 103. Notice to known owners. 104. Notice to unknown owners. CHAPTER XII. Or the Necessity of Efforts to agree on Compen- sation, AND of Contracts between the Parties. Section 105. Property should be purchased. 106. Tender of amount of damages. 107. The effort to agree should appear affirmatively on the record. 108. Election not to agree — Inability to agree. 109. "Waiver of agreement. 110. Contracts for rights of way. 111. Eelinquishment of damages — Licenses to owners — Licenses granted by owner. 112. KesSrvations to owner — Easements not to be granted in lieu of damages, against the will of owner. 113. How contracts are to be enfoj'ced — Damages for breaches of contract. 114. Constructiun of contracts. CHAPTER XIII. Description of Property to be Taken. 'SbOTION 115. Certainty of description required. 116. Filing survey. 117. Maps. 118. Map need not show whole road, or entire tracts of land. 119. Quality of land — Improvements. 120. Exemption of dwelling-houses from condemnation — Dwelling- house defined. XU TABLE OF CONTENTS. Sectios" 121. Exemption of fjardena, yards, orchards, and manufactories from condemnation. 122. Variation of location and occupation. 123- Necessary materials. CHAPTER XIV. Or THE Time and Manner op making Compensation. Section 124. Early doctrine that compensation need not precede taking. 125. Public roads under proprietary governments — Koads on wild land. 126. Distinctiott between a taking by the state or a municipal sub- division and a talking by private corporations. 127. Prepayment of damages which cannot be estimated — Impera- tive necessity. 128. Statutes or charters failing to provide compensation do not authorize the exercise of eminent domain. 129. Preliminary occupation. 130. Payment a condition precedent to entry. ri31. Judgment not compensation. 1 13 2. Eight to sue not compensation. 138. Consideration of public welfare not compensation. 134. Consent of authorities cannot affect the payment of damages. 135. Compensation in money — Just compensation. 136. Bond to securedamages — Bond pending appeal 137. Entry pending appeal. 138. Deposit pending an appeal. 139. Tender pending an appeal. 140. Waiver of prepayment by allowing entry to be made. 141. Continued assent to use. 142. "Where original entry is lawful — Delay in perfecting title. 143. Acquiescence not a waiver of damages. 144. Lien on laud for compensation — Change of corporations—. Subsequent purchaser of franchise. 145. Befusal of officers to pay compensation assessed. 146. Payment to wrong claimant. (3^47. Refusal to take money — Failure to claim. 148. Ownership of improvements made during unlawful occupation* CHAPTER XV. Ob' Benefits as an Element of Compensation. Section 149. Power to dedLict benefits from compensation. 150. Classes of benefits. 151. Payment in benefits. TABLE OF CO^'TEUTS. XUl Section 152. Benefits allowed in reduction of damages must be direct and peculiar. 153. General benefits not to be considered. 154. Benefit to railroad of establishment of a highway. 155. From what time shall benefits be calculated. 156. Privilege of giving up entire lot and escaping assessment, 157. Where use of pmperty is, limited — Increase of business — lUx- pert tesiimony, ' 158. Setting off benefits against disadvantases, CHAPTER XVI. Of the Nature and Amount of Damages. Skotion 159. Adequacy of damages. 160. Title a proper subject of inquiry in determining damages. Jjil. Condemning party cannot dispute title. _lfi2.. Direct damages — Disadvantages. 163. Exposure to fire. 164. Jury or commissioners to determine the damages. 165. Testimony as to the amount of damages. 166. Effect of taking a part on the land left. __lg7. Damage to tract — Extent of tract — Separate blocks. 168. Market value. 169. Expert witnesses. , lTtO . Sales of similar property. 171. Bents of similar property. 172. Evidence of assessment for taxation — Of commissioners' re- port — Admissions of owner. 173. Value not estimated solely from present use. 174. Assessment should be of the value at the time of taking. 175. Interest on award. 176. Interference with use before taking. 177. Interference with use during construction— Loss of profits. 178. On a taking subsequent to the improvement. 179. Taking part of a railroad. 180. Plan of proposed improvement. CHAPTER XVII. Op Damages considered Consequential. Sbction 181. Consequential injury to private property. 182. Legislative authority does not preclude claim for damages - Private inconveniences for the general good. 188. Injury to individual where no land is taken. 184. Eeasonable use of adjoining property. XIV TABLE OF CONTENTS. Section 18"). Excavations on adjoining lands. 186. Blasting on adjoining lands. 187. Effect of structures on adjoining lands. 188. Cut through a natural barrier. 189. Interference with the flow of suiface-water. 190. Discharging contents of sewer, or water-course, or of canal, on land. 191. Diversion of trade — Loss of profits. 192. Interruption of business. 193. Noise — Smoke — Frightening horses — Vibration. 194. Statutes allowing damages considered consequential. CHAPTER XVIII. Of the Uses to which Highways and Streets mat be PDT — Changes of Grade — Railroads in Streets. Section 195. Changes of grade. 196. Dissenting views. 197. Statutes allowing damages for changes of grade. 198. Restoring property to former condition. 199. Change rendered necessary by railroad track. 200. Use of streets by railroads. 201. Eailroad an improved method of use. 20?. Legislative control over streets and highways. 203. Where the fee of streets is in the city or in the public 204. Where the fee is in the adjoining owner. 204a. Recent decisions. 205. Horse-railroads. 206. Easement of adjoining owner in the street a valuable property. 207. Inconvenience of access — Embankments in streets — Obstruc- tion of ingress and egress to property. CHAPTER XIX. Of the Control op Eailroad Companies over Rights of Way, and of their Duties in Relation thereto. Section 208. Eailroad to have exclusive control over right of way. 209. Telegraph line an enOroachment — Eailroad company may erect telegraph lino. 210. Materials in right of way. 211. Track need not be in centre of right of way — Obstruction of private ways. 212. Fencing. 213. Farm-crossings. 214. Failure of company to make crossings. 215. Bridges over cuts — Ditches. TABLE OF CONTENTS. XV CHAPTER XX. Op the various Damages presumed to be incjluded IN THE Assessment. Section 216. All damagea presumed to have been considered in the assess- ment. 217. Damages arising afterward — Unforeseen damages. 218. Assessment after construction of the improvement. 219. Change in plan after assessment. 220. No compensation for damages caused by negligent or tortious acts. 221. Damages while land is unlawfully occupied. 222. Trespasses on lands adjoining. 223. Value of erections on laud condemned — Ownership of build- ings. 224. Continuing buildings already commenced. 225. Buildings on streets not laid out — Dedication by plat. CHAPTER XXL Op the Assessment op Damages bt Commissioners. Section 226. Appointment of commissioners. 227. Disinterested persons — Freeholders. 228. Oath of commissioners. 229. Place and time of meeting — Adjournments. 230. Power of majority of commissioners to act. 231. Vacancy in board. 232. Supervision of court over proceedings of commissioners. 233. Control of the commissioners over proceedings — Application to commissioners. 234. Prejudice of commissioners. 235. Conversing or discussing with commissioners. 236. Treating and entertaining commissioners. 237. Evidence before commissioners — Admissibility. 238. Eecord of commissioners. 239. Preserving rulings and evidence. 239a. What the report should contain. 240. When report should be made. 241. Review of report — Eecommitting report. 242. How to obtain a review. 243. Presumption in favor of the regularity of action of commiB- sioners. 244. Irregularity in arriving at the amount of damages. 245. Wrong principle in estimating. 246. Error in amount of damages — Itemized findings. XVI TABLE OF CONTENTS. CHAPTER XXir. Of the Assessment of Damages by a Jury. Sbction 247. How the jury should be summoned. 248. Qualifications of jurors — Freeholders. 249. Disqualification from interest. 250. Swearing jury. 251. Objections to jurors. 252. Submission of similar issues to same jury. 253. Sources of information. 254. Jury of viewers. 255. Proceedings before jury — Practice — Evidence. 256. Decision of majority. 257. Itemizing verdict — Averaging. 258. Conditions in verdicts. 259. Setting aside verdict of jury. 260. Reassessment bj' jury. CHAPTER XXIII. Of Parties to Proceedings. Sectiost 261. Joinder of defendants. 262. Tenants in common. 263. Joint interests. 264. Town a proper party. 285. Parties pursuing statutory authority not tort-feasors. 266. Equity may bring in all parties. 267. Separate assessments, verdicts, and appeals. 268. "Who may appeal. 269. Who are " interested or Aggrieved " — Interest of tax-payers. CHAPTER XXIV. Op Proceedings in opening Highways and Streets. SEeriON 270. Application for road. 271. Petition of householders or freeholders, ^ 272. Eefusal of officers to lay out roads. 273. Eoad an encumbrance on land. 274. Ability of public to maintain road. 275. Public necessity — Public convenienoe. 276. Extent of easement. 277. Description of road. TABLE OF CONTENTS. XVll Sbction 278. Termini should be certain, 279. Terminus need not be on highway. 280. Course of road. 281. Widening and straightening roads and streets. 282. Alteration of road. 283. The road must be laid out as petitioned for. 284. The road must be built as laid out. 285. Entry on adjoining land — Eemoval of fences. 28B. Certificate of opening. CHAPTER XXV. Or Proceedings under the Mill Acts. ^fiECTlON 287. Public character of mills. 288. Necessity of mill — Private inconvenience. 289. Effect upon health — Eights of fisher}^. 290. Conflicting applications — Improvement by owner — Prescrip- tive rights. 291. Mill act excludes common-law remedy. 292. "Where the statutory remedy is not adequate — Pailure to com- ply with statute. 293. Act protects from indictment. 294. How damages are determined. 295. Questions before the jury — Nature of damages. 296. Damages to mill-site — Damages below dam. 297. Damages not authorized by charter. 298. Inconveniences. 299. Annual damages. SOO. Benefits to be considered. 301. Use, by owner, of land flowed, 802. Reservoir for dam — Outlets. 303. Height of mill-dam. 304. Mill must be built. 305. All owners of mills to be joined — Owners of lands. 306. Transfer of dam — Liability of vendee of dam. 807. Transfer of land flowed — Claim for damages by vendor and vendee. 808. Regularity of proceedings — Waiver of errors. 809. Abandonment of proceedings. 810. Limitations on actions and on payment of damages. CHAPTER XXVI. Op Abandonment of Proceedings and Discontinxjancb OF Public Improvements. SECTION 311. Proceedings may be abandoned. b XVUl TABLE OF CONTENTS. Section 312. Proceeclings cannot be abandoned after report is confirmed. 313. Delay in determining whether or not proceedings shall be abandoned. 314. Discontinuance or abandonment as to a part. 315. Experimental assessments. 316. Eight of owner to improve property pending proceedings. 817. Discontinuance of public improvements. 318. Discontinuance of roads and streets. 319. Where no entry has been made. 320. Evidence of abandonment — Non-user. • 821. Eelocation. CHAPTER XXVII. Of Proceedings subsequent to the Assessment Of Damages — Appeals and Revision of PiiOCEEDiNGS. Section 322. Eight to appeal. 322a. From what an appeal lies — Subject matter. 323. Errors to be talien advantage of by appeal. 324. Waiver of irregularities in proceedings. 325. Waiver of right of trial bj' jury. 326. Errors waived by condemning pai-ty. 327. Timely objection to irregularities. 328. Claim of damages. 329. Eeceipt of damages. 330. Failure to find damages, a judgment. 331. Mandamus to compel finding. 332. Subsequent proceedings do not cure former defect=. 333. Certiorari. 334. Deed to condemning party — Obtaining possession. CHAPTER XXVIII. Of Costs of Proceedings. Section 335. Costs of condemnation. 336., What costs allowed. 337. Costs in discretion of trial court. 338. Costs to prevailing party. 839. Services of county commissioners. CHAPTER XXIX. On Limitations to Actions and Proceedings, Section 340. Prompt adjustment necessary. TABLE OV CONTENTS. XIX Section 341. From what time the limitation should run. 342. Evidence of taking. 843. Limitation on pendency of proceedings. 844. Limitation on reports, appraisements, and appeals. 845. Excuses for failure to comply with statute. 346. Absence of special statute of limitations. CHAPTER XXX. Or Condemnation by the Federal Government and- OF Public Lands. Section 347. Federal government has power to condemn. 348. Clause in Constitution of the IJnited States. 349. Eemoval of condemnation proceedings to United States courts* 850. Condemnation of land belonging to the Federal government. 851. Condemnation of land owned by state or municipality. 352. Condemnation by corporation of another state. 853. Bridges between states. CHAPTER XXXI. Of Drainage and Sewerage Acts. Section 354. Improvement of swamps — Sewers. 355. Private drains. 356. Application. 357. Nature and extent of damages. 358. Pollution of stream. 359. Hearing before jury. 860. Act to be confined to drainage purposes. TABLE OF OASES OITED. Abbott V. Kansas City R. R., 83 Mo. 271, § 189. Abbott V. Penobscot, 52 Me. 584, §§ 336, 338. V. Stewartstown, 47 N. H. 228, §31. V. Upham, 13 Mete. 172, § 306. Abrahams v. Mayor of London, 37 L. J. (Ch.) 732, § 267. Acton V. Blundell, 12 Mee. & W. 324, §81. Adams v. Clarksburg, 23 W.Va. 203, §§ 90, 100. Adams v. Emerson, 6 Pick. 57, § 53. V. Hastings E. K., 18 Minn. 260, §90. V. Railroad, 57 Vt. 240, §§ 143, 152. V. Saratoga R. R., 10 N. Y. 328, §95 Adden v. Wliite Mountains R. R., 55 N. H. 413, §§ 152, 163. Mtna, Mills v. Brookllne, 127 Mass. 69, § 36a. V. Waltham, 126 Mass. 422, §§ 36a, 79, 108. Aken v. Parfrey, 35 Wis. 249, § 303. Akers v. United R. R., 43 N. J. L. 110, § 114. Akin V. Davis, 11 Kan. 580, § 308. Akron v. McComb, 18 Ohio, 229, § 196. Alabama R. R. v. Burkett, 42 Ala. 83, §§ 49, 135, 149, 165; s. c, 46 Ala. 669, § 193. V. Gilbert, 71 Ga. 591, §§ 586, 120. V. Kenney, 39 Ala. 307, § 37. Albany R. R. v. Dayton, 10 Abb. Pr. (N. S.) 182, § 246. V. Brownell, 24 N. Y. 345, §§ 33, 43. Albany R. R. v. Lansing, 16 Barb. 68, §§ 92, 166, 233. Albany St. (Matter of), 11 Wend. 149, §§23, 173. Aldrich v. Drury, 8 R. I. 554, § 210. V. Cheshire R. R., 21 N. H. 359, §§ 64, 87, 185, 216. Aldridge v. Tuscumbia R. R., 2 Stew. & P. 199, §§ 11, 12. Alexander v. Baltimore, 5 Gill, 383, §61. V. Milwaukee, 16 Wis. 247, §§ 185, 188, 195. Alexander v. West End & Crystal Palace Co., 31 L. J. (Ch.) 500, §120. Alexandria R. R. v. R. R. Co., 75 Va. 780, §§ 1, 11, 60, 84, 85, 334. V. Faunce, 31 Gratt. 761, §§ 79, 259. Allen V. Androscoggin R. R., 60 Me. 494, § 239. V. Boston, 137 Mass. 319, § 223. V. Charlestown, 109 Mass. 243,, §§ 152,153. V. Drew, 44 Vt. 174, § 2. V. Joues, 47 lud. 438, § 48. V. Levee Commissioners, 57 Miss. 163, § 333. V. Stevens, 29 N. J. L. 509, § 27. V. Williams, 33 N. J. Eq. 584,, §§ 145,312. Allison V. Commissioners, 54 111. 170, §229. Allyn V. Providence R. R., 4 R. I. 457, §§ 66, 146. Alton R. R. V. Baugh, 14 111. 211, §§ 212, 313. American Print Works v. Lawrence, 23 N. J. L. 590, §§ 5, 64. American Telegraph Co. v. Wil- mington R. E., 83 N. C, 420, § 322a. (xxi) XXll TABLE OF CASES CITED. Ames V. Lake Superior E. K., 21 Minn. 241, §§ 85, 91. Amoskeag Co. v. Goodale, 46 N. H. 53, § 88. V. Worcester, 60 N. H. 522, §§ 170, 295. Anderson v. Baker, 98 Ind. 587, §§ 16, 22, 355. V. Kerns Draining Co., 14 Ind. 199, § 16. V. St. Louis, 47 Mo. 479, §§ 90, 102. ■». Turbeville, 6 Goldw. 150, §§ 10, 11, 95, 128, 206, 268. V. Wood, 80 111. 15, § 97. Anderson R. R. v. Kernodle, 54 Ind. 314, § 90. Andover v. Sutton, 12 Mete. 182, §§ 15, 292, 297. Anness v. Providence, 13 R. I. 17, § 340. Anthony u. La whom, 1 Leigh, 1, § 160. Anthony St. (Matter of), 20 Wend. 618, §§ 3U, 312. Antoinette St., 8 Phila. 461, § 246. Appleby Road, 1 Grant, 443, § 268. Appointment of Viewers, Wyoming Common Pleas, 4 Leg. Gaz. 410, §§ 17, 49. App's Road, 17 Serg. & R. 388, §§ 227,275. Arbrush v. Oakdale, 28 Minn. 61, § 153. Arlmond v. Green Bay Co., 31 Wis. 316, § 30. Armington v. Barnett, 15 Vt. 745, §42. Armstrong v. St. Louis, 3 Mo. App. 151, § 195; s. 0. 69 Mo. 309, § 165. Arnold v. Covington Bridge, 1 Duv. 372, §§ 14, 135, 174. !). Decatur, 29 Mich. 77, §§ 107, 275. V. Hudson R. R., 55 N. Y. 661, § 31. V. Klepper, 24 Mo. 273, § 297. Art St. (Matter of), 20 Wend. 685, §§ 67, 76. Ash V. Cummings, 50 N. H. 581, §§ 36, 64, 89, 124, 126, 127. Ashby 1). Eastern R. R., 5 Mete. 368, §§ 183, 263. Astor V. Hoyt, 5 Wend. 603, §§ 65, 74. V. Mayor of New York, 5 Jones & Sp. 539, §§ 149, 256. Atchi.son R. R. v. Blackshire, 10 Kan. 477, §§ 159, 162. V. Garside, 10 Kan. 552, § 203. V. Patch, 28 Kan'. 470, § 97. V. Weaver, 10 Kan. 344, § 87. Atkinson v. Marietta R. R., 15 Ohio St. 21, §§ 58, 63. Atlanta v. Green, 67 Ga. 386, §§ 161, 152, 204a. Atlantic R. R. v. Campbell, 4 Ohio St. 583, § 165. V. Commissioners, 51 Me. 36, § 95. ■!). Cumberland Commissioners, 28 Me. 112, § 339. V. Fuller, 48 Ga. 423, § 89. V. Mann, 43 Ga. 200, § 46. V. Robbins, 35 Ohio St. 531, § 90. V. SuUivant, 5 Ohio St. 276, §§ 61,115. Atlantic Telegraph Co. v. Chicago R. R., 6 Biss. 158, §§ 208, 209, 350. Attorney-General v. Baltimore Pas- senger Ry.,,58 Md. 603, § 205. V. Passenger R. R., 32 Leg. lut. (Pa.) 238, § 202. V. Turpin, 3 Hen. & M. 548, § 50. Auditor v. Crise, 20 Ark. 540, § 161. Augusta V. Marks, 50 Ga. 612, § 158. Aurora u. West, 9 Ind. 74, § 2. Aurora R. E. v. Miller, 56 Ind. 88, §61. Austin V. Allen, 6 Wis. 134, § 100. V. Helms, 65 N. C. 560, § 230. V. Murray, 16 Pick. 121, § 6. V. Rutland R. R,, 45 Vt. 215, §§ 73, 142. Ayers v. Richards, 41 Mich. 680, §26. Averv v. Pox, 1 Abb. U. S. 246, §§ 60, 80, 132. V. Groton, 36 Conn. 304, § 251. TABLE OF CASES CITED. XXlll Avery v. Police Jury, 12 La . An. 554, §81. V. Van Deusen, 5 Pick. 182, S 300. Babb V. Carver, 7 Wis. 124, § 100. Babcock v. Western R. R., 9 Mete. 553, § 110. Bachler's Appeal, 90 Pa. St. 207, § 84. Bapkus V. Lebanon, 11 N. H. 19, §§ 40, 42, 87, 91. Baddeley, Ex parte, 5 Dow. &L. 575, § 227. Bagnall v. London, etc.. Rail. Co., 31 L. J. (Excb. Cti.) Exch. 480, § 189. Bailey v. Mayor of New York, 3 Hill, 531, § 220. V. Miltenberger, 31 Pa. 37, § 37. V. Philadelphia B. E., 4 Harr. 389, § 80. V. Woburn, 126 Mass. 416, §§ 18, 36a, 49, 79. Baird v. Hunter, 12 Pick. 556, § 304. Baker v. Boston, 12 Pick. 184, § 7. V. Braman, 6 Hill, 47, § 26. V. Chicago R. R., ?7 Mo. 265, § 113. V. Holderness, 26 N. H. 110, §91. V. Johnson, 2 Hill, "342, §§ 50, 216. V. Runnels, 12 Me. 235, § 64. V. Shephard,'24 N. H. 208, § 53. Balch V. Commissioners of Essex, 103 Mass. 106, §§18, 19, 108. Baldwin u. Bangor, 36 Me. 518, § 242. V. Buffalo, 35 N. Y. 375, § 243. V. Calkin, 10 Wend. 167, § 227. Baldwin Road, 3 Grant, 62, § 344. Balfour v. Louisville R. B., 62 Miss. 508, § 159. Ballard v. Ballard Vale Co., 5 Gray, 468, § 307. Ballon V. Ballon, 78 N. Y. 325, §§ 67, 126. Balls V. Metropolitan Board of Works, L. E. 1 Q. B. 337, § 338. V. Metropolitan Rail Co., 35 L. J. (Q. B.) 101, § 338. Baltimore v. Clunet, 23 Md. 449, § 156. Baltimore v. Grand Lodge, 44 Md. 436, § 95. Baltimore Turnpike, 5 Binn. 481, 6 230. V. Union R. R., 35 Md. 224, S8 42, 46. Baltimore E. R. v. Algire, 63 Md. 319, §§87, 141. V. Chase, 46 Md. 23, § 79. V. Highland, 48 Ind. 381, § 113. V. Johnson, 84 Tnd. 420, § 329. V. Lansing, 52 Ind. 229, §§ 166, V. Magrnder, 34 Md. 79, §§ 81, 216. V. Nesbit, 10 How. 395, §§ 93, 311,313. 1). North, 103 Ind. 483, §§ 45,46. V. P. W. & K. R. E., 17 W. Va. 812, §§ 11, 20, 23, 24, 41, 46, 58, 92, 94, 98. V. Strauss, 37 Md. 237, § 141. V. Thompson, 10 Md. 76, §§ 68, 193. Bancroft v. Cambridge, 126 Mass. 438, §§ 6, 7. Bangor R. R. v. McComb, 60 Me. 290, §§ 22, 159, 162, 163, 166, 175, 220. Bankhead v. Brown, 25 Iowa, 540, §§ 10, 11, 20, 26. Bank of Auburn v. Roberts, 44 N. Y. 192, § 74. Banks v. Ogden, 2 Wall. 57, § 79. Barber v. Andover, 8 N. H. 398, §§ 42, 45,46. Barclay v. Howell's Lessee, 6 Pet. 498, §§ 51, 52, 53, 56. V. Vickering, 38 Mo. 143, § 69. Barker i;.Taunton,119 Mass. 392, §§ 111, 153, 197, 341. Barlow v. Chicago R. R., 29 Iowa, 276, § 320. Barnard v. Fitch, 7 Mete. 605, § 304. V. Haworth, 9 Ind. 103, § 26. Barnett v. The State, 15 Ala. 829, § 383. Barney v. Keokuk, 4 Dill. 593; s. c. 4 Otto, 324, §§ 200, 203. Barnsley Canal Co. ■u.Twibell, 13 L. J. (Ch.) 434, § 52. XXIV TABLE OF CASES CITED. Barr v. Oskaloosa, 45 Iowa, 275, §§ 203, 318. Barre Turnpike Co. v. Appleton, 2 Pick. 430, § 97. Barrickman v. Commissioners, 11 Gill & J. 50, § 164. Barron v. Baltimore, 7 Pet. 243, § 348. Barter v. Tlie Commouwealtti, 3 Pen. & Watts, 253, § 55. Bartlett v. Bangor, 67 Me. 460, § 225. Bartleson v. Minneapolis, 33 Minn. 468, § 311. Bastable v. Syracuse, 15 N. T. Sup. Ct. 587, § 189. Bateman v. Bluck, 18 Q. B. 870, § 279. Bates V. Eay, 102 Mass. 458, § 298. Battles V. Braintree, 14 Vt. 348, §§ 88, 319.. Bayliss v. Supervisors, 6 Dillon, 549, § 225. Beale St. (Matter of), 39 Cal. 495, §§ 195, 197, 245. Bean v. Hinman, 33 Me. 480, § 306. Beardsley v. Washington, 39 Conn. 2U5, § 236. Beaveridge v. Park Commissioners, 100 111. 75, § 175. Bechnel v. New Orleans R. R., 28 La. An. 522, § 113. Beckett v. Midland Rail. Co., L. R. 3 C. P. 82, §207. Beckwith v. Beckwith, 22 Oliio St. 180, §§64, 128, 281. Beekman v. Saratoga R. E., 3 Paige, 45, §§11, 14,40,60, 91. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121, § 46. Bell V. Hull Rail. Co., 6 Mee. &W. 699, § 79. — - V. Ohio R. R., 1 Grant, 105, § 65. V. Wilson, 13 W. R. 708; 35 L. J. (Cli.) 337, § 52. Bellinser v. Nl-w York Central R- R.,23N.Y. 42, § 189. Bellona Co.'s Case, 3 Bland, 442, §§ 41, 61. Bemis v. Springfield, 122 Mass. 110, §198. Benden v. Nashua, 17 N. H. 477, § 199. Benedict v. Goit, 3 Barb. 459, § 34. Benham v. Dunbar, 103 Mass. 365, § 170. Benjamin v. Wheeler, 8 Gray, 409, §64. Bennett v. Boyle, 40 Barb. 551, § 223. V. Camden R. R., 14 N. J. L. 145, §§ 228, 234, 3-33. V. Olney, 56 Mich. 634, § 356. Bennitt v. "whitehOuse, 29 L. J. (Ch.) 326, § 62. Bensley v. Mountain Water Co., 13 Cal. 306, §§ 174, 313. Benson v. Mayor of New York, 10 Barb. 223, § 351. Bergman v. St. Paul R. R., 21 Minn. 533, §313. Bertchu. Lehigh Co., 4 Rawle, 130, §219. Betts V. New Hartford, 25 Conn. 180, § 326. V. Williamsburgh, 15 Barb, 255, § 149. Biddle v. Dancer, 20 N. J. L. 633, §, 280. V. Hussman, 23 Mo. 597, §§ 65,. 69. Bigelow V. Newell, 10 Pick. 348, § 296. V. Mississippi R. R., 2 Head, 624, § 105. V. Wisconsin R. R., 27 Wis. 478, §§ 169, 166. V. Cambridce Turnpike Co., 7 Mass. 202, § 88. Bingham v. Doane, 9 Ohio, 165, §§ 66,206. Binney's Case, 2 Bland, 99, § 1. Bird V. Great Eastern Rail. Co., 34 L. J. (C.P.) 366, §§ 31, 65, 162. Birge v. Chicago Ey., 66 Iowa, 440, § 89, 104. Bissell 1}. Collins, 28 Mich. 277, § 64. V. New York Central R. R., 23 N. Y. 61, § 204. Bixby V. Goss, 54 Mich. 551, § 95. Black V. Delaware Canal Co., 22 N. J. Eq. 130, § 42'. TABLE OF CASES CITED. XXV Black V. Mayor of Baltimore, 50 Md. 235, §§ 311, 313. Blackman v. Halves, 73 Ind. 615, § 10. Black Biver R. E. v. Barnard, 16 N. Y. Sup. Ct. 104,, § 173. Blackshire v. Atchison R. R., 13 Kan. 514, §§ 139, 312. Blaisdell v. Wlnthrop, 118 Mass. 138, § 90. Blake v. Rich, 34 N. H. 282, §§ 52, 53. Blanchard v. City of Kansas, 16 Fed. Rep., 444, § 204a. Blancliard v. Maysvllle Turnpike, 1 Dana, 86, § 143. Bland v. Hixenbaugh, 39 Iowa, 532, §§151,212.. Blesch V. Chicago R. W., 43 WU. 183, §§ S'J, 90, 204. Blesch V. Chicaso Ry., 44 Wis. 593, § 89; 48 Wis. 168, §§ 183, 221., Bliss V. Hosmer, 15 Ohio, 44, §§ 60, 123. Blodfiett V. Utica R. R., 64 Barb. 680, §221. Bloodgood V. Mohawk R. R,, 14 Wend. 51, § U2; 18 Wend. 9, §§ 11, 13, 14, 124. Bloomfi"ld Gas Co. v. Calkins, 62 N. Y. 386, §■ 55; 1 N. Y. Sup. Ct. 649, § 65. Bloomfleld Gas Co. v. Richardson, 63 Bj-rb. 437, § 55. Bloomington v. Miller, 84 111. 621, §. 312. Board of Commissioners ». Muhlen- baclier, 18 Kao. 129, § 271. V. Lansing, 45 N. Y. 19, § 230. Bogertr. United States, 2 Ct. of 01. 159, §§ 105, 348. Bogss V. Merced Mining Co., 14 Cal. 279, § 347. BoMman?;. Green Biy E. R., 30 Wis. 105, §§ 89, 130. Boles w. Boston, 136 Mass. 398, §§ 167, 175, 223. Boiling ■!). Mayor, 3 Rand. 563, §§ j 52, 53, 66. .Bonaparte v. Camden R. R., Baldw. '' 205, §§11, 14, 36, 37, 61, 84, 90, 116, 124, 125, 132. Booker v. Venicp Ey., 101 111. 333, § 586, 107, 191. Booneville v. Ormrod's Admr., 26 Mo. 193, §§ 65, 67, 94, 96. Booth V. Woodbury, 32 Conn. 118, §2. Boothby v. Androscoggin R. E., 51 Me. 318, § 185. Bordentown Turnpike Co. v. Cam- den R. E., 17 N. J. L. 314, §§ 32, 193. Boston V. Richardson, 13 Allen, 146, §55. Boston Gas Light Co. i). Old Colony R. E., 14 Allen, 444, § 211. Boston Mill Co. v. Gardner, 2 Pick. 33, § 194. Boston Mill Dam v. Newman, 12 Pick. 467, §§ 15, 301. Boston R. E. {Inri':), 53 N. Y. 574, § 46; 79 N. Y. 69, §§ 68, 107,261, 324. V. Polsom, 46 N. H. 64, §§ 97, 270, 333. V. Greenbush, 62 N. Y. 510, § 33. ■ V. Lowell E.R., 124 Mass. 368, §46. V. Middlesex, 1 Allen, 324, §§ 110, 154, 282. V. Montgomery, 119 Mass. 114, § ica. V. Old Colony E. E., 12 Cush. 605, §§78, 173, 191, 207; 3 Al- leu, 142, §§ 44, 169, 170. V. Salem E. E., 2 Gray, 1, §§ 41, 42, 46, 128. V. Western E E., 14 Gray, 253,, §44. Boston Water-power Co. v. Boston E. E., 23 Pick. 360, §§ 42, 46, 60, 61. Bothe V. Dayton E. E., 37 Ohio St.. 17, § 90. Bottoms V. Brewer, 54 Ala. 288, §§ 81, 287. Bouligny ■». Dormenon, 2 Mart. (x. S.) La. 455, § 7. Bourdier 1). Morgan's E. E.,35 La. An. 947, § 140. Bourne v. Mavor of Liverpool, 33 L. J- CQ- 13-) l-. § 68. Bowditch V. Boston, 101 U. S. 16, § 5. XXVI TABLE OF CASES CITED. Bowen v. Atlantic E. E., 16 S. C. 574, §§ 162, 244. Bowman v. Venice Ey., 102 111. 459, §§ 586, 73. Bowler v. Perrin, 47 Mich. 154, § 250. Boyd V. Negley, 40 Pa. 377, §28; 53 Pa. 387, § 219. Boynton v. Peterborough E. fi., 4 Cush. 467, § 67. Bradby v. Southampton Board of Health, 4 El. & Bl. 1014, § 330. Bradlev v. Pranklort, 99 Ind. 417, §§227,251. Bradley d. New York E. E., 21 Conn. 294, §§ 194, 207. Bradshaw v. Eogers, 20 Johns. 103, '§ 1- Brady v. Bronson, 45 Cal. 640, § 126. Sbinkle, 40 Iowa, 576, § 318. Brainnrd v. Boston E. E., 12 Gray, 407, § ;65. V. Clapp, 10 Cush. 6, § 210. 0. Connecticut E. E., 7 Cush. 60G, § 214. V. Missisiquoi E. E., 48 Vt. 107, §§ 32, 67, 317. Brakken v. Minneapolis Ey., 32 Minn. 425, § 90. Brand v. City R. E., L. E. 2 Q. B. 223, § 193. Brandon v. Brandon, 34 L. J. (Ch.) 833, § 68. ,Brannan v. Mecklenburg, 49 Cal. 672, §283. Branson v. Philadelphia, 47 Pa. 829, § 31. Bray v. Soutb-Eastern Eail. Co., 19 L.J. (Q. B.) 11, §386. 3reed v. Eastern E. E., 5 Gray, 470, § 74. V. Lynn, 126 Mass. 371, § 190. Brewer v. Bowman, 9 Ga. 37, § 26. Bridge v. Nfw Hampton, 47 N. H. 151, § 322. Bridgeport v. Eiseman, 47 Conn. 34, § 324. Bridgeport v. New York E. E., 36 Conn. 255, §§ 46, 154. Bridsman v. St. Johnsbury E. E. 58 Vt. 198, § 63. Brlgg;s V. Cape Cod Canal Co., 137 Mass. 71, § 138. Brighamu. Bdmands, 7 Gray, 339, §3- V. Agricultural Branch E. E., 1 Allen, 316, § 58. Bright V. Piatt, 32 N. J. Eq. 362, §74. Brimmer u. Boston, 102 Miiss. 19, §§ 40, 61, 64, 333. Brinckerhoff v. Wemple, 1 Wend. 470, §§ 146, 262. Brine v. Great Western Eail. Co., 31 L. J. (Q. B.; 101, § 220. Brinks. Kansas City Ey., 17 Mo. App. 177, § 190. Brisbine v. St. PaulE. E., 23 Minn. 114, § 160. Bristol V. Branford, 42 Conn. 321, §§274,275. Bristol Hydraulic Co. v. Bayer, 67 Ind. 236, § 303. Britton v. Des Moines Ey., 59 Iowa, 540, § 158. Broadbent v. Imperial Gas Co., 26 L.J. (Ch.) 276, §90. Broadway Widening, 63 Bfirb. 572, §§ 230, 256; 61 Barb. 483, § 241. Broad St. Eoad, 7 Serg. & E. 444, § 228. Brocks;. Barnett, 57 Vt. 172, § 27. Brock V. Hishen, 40 Wis. 654, §§ 126, 145. Brocket v. Ohio E. E., 14 Pa. 241, §94. Brooks 1). Boston, 19 Pick. 174, §§ 70, 192. V. Davenport E. E., 37 Iowa, 99, §§ 159, 166. BrookTine v. Mcintosh, 133 Mass. 215, §360. Brooklyn Central E. E. v. Brooklyn City E. E., 82 Barb. 358, § 58; 33 Barb. 420, § 45. Brooklyn City E. B. v. Coney Is- land E. E., 35 Barb. 364, § 39. > Brooklyn Heights (Matter of), 48 Barb. 288, § 225. Brooklyn Park v. Armstrong, 45 N. Y. 284, §§11, 18, 50,317. Brown (Be), 1 Mac. & G. 201, § 75. Brown v. Battv, 34 Mi?s. 227, §§ 1, 13, 14, 61, "87, 135, 151. TABLE OF CASES CITED. XXVH TBrovrn v. Bricig:es, 31 Iowa, 138, §284; 36 Iowa, 279, §318. V. Cayuga E. E., 12 JST. Y. 487, §81. V. Cincinnati, 14 Ohio, 541, § 149. V. Corey, 43 Pa. 495, §§ 28, 37. V. Duplessis, 14 La. An. 842, § 206. V. Essex, 12 Mete. 208, § 66. V. Ereeman, 1-Eoot fCouu.;, 118, §51. ■ V. Ipswich Manufacturing Co., 6 Gray, 460, §259. D.Lowell, 8 Mete. 172, § 197. V. McCorcl, 20 Iiid. 270, §271. V. Philadelphia E. R., 58 Md. 639, § 322. V. Powell, 25 Pa. 229, §§ 68, 130. V. Providence E. E., 6 Gray, 35, §§ 157, 172, 183, 186. . V. Stewart, 86 lud. 377, § 239a. ■B.Worcester, 13 Gray, 31, § 112. Brunswick E. E. v. McLaren, 47 Ga. 546, § 169. Brush V. Detroit, 32 Mich. 43, § 268. Bryan v. Branford, 50 Conn. 240, §18. Bryan v, Burnett, 2 Jones L. 305, § 304. Bryant v. Glidden, 36 Me. 36, §§ 234, 306. Buckingham v. Smith, 10 Ohio, 288, § 23. Buckner ». Chicago Ev., 60 Wis. 264, §§ 32,204; 66 Wis. 403, §§ 87, 199. Buel V. Clark, 1 Eoot (Conn.), 49, §51. Buelli;. Worcester, 119 Mass. 372, §198. Buffalo (Matter of City of), 68 N. Y. 167, § 46. Buffalo E. E. V. Brainard, 9 N. Y. 100, §§ 14, 60, 61. V. Harvey, 107 Pa. St. 319, § 144. i;. Ferris, 26 Texas, 588, §§ 14, 61, 91, 128, 131, 135, 149, 158. Bumpus V. Miller, 4 Mich. 159, § 346. Burbridge v. New Albany R. R., 9 Ind. 64^, §§ 65,-68. Burden v. Stein, 27 Ala. 104, §§ 18, Burial Ground of St. Pancras (Be), 36 L. J. (Ch.) 52, § 173. Burlington v. Gilbert, 31 Iowa, 356, §197. Burlington E. E. v. Sater, 1 Iowa, 421, §311. V. R' inhackle, 16 Neb. 279, SS 88, 206. V. Schluntz, 14 Neb. 421, SS 165, 169. Burnett v. N. & C. R. R,, 4 Sneed, 528, §208. V. Nicholson, 86 N. C. 99, §§ 174, 177. Burns v. Annas, 60 Me. 288, § 60. V. Milwaukee E. E., 9 Wis. 450, § 321). V. Multomah Ey., 15 Fed. Rep. 177, §95. Burrill v. Martin, 12 Me. 345, § 338. Burritt v. New Haven, 42 Coun. 174, §199. Burti). Brigham, 117 Mass. 307, § 108. V. Merrhants' Ins. Co., 106 Mass. 356, § 347; 116 Mass. 1, §§ 65, 174. — —V. Wigglesworth, 117 Mass. 302, §§"65, 92, 173. Bushwick Ave., 48 Barb. 9, §§ 18, 246. Butler V. Barr, 18 Mo. 357, §§ 64, 284. V. Sewer Commissioners, 39 N. J. L. 666, § 135. Butman v. Vermnnt Central E. E., 27 Vt. 600, §§ 219, 323. Butte County v. Boydston, 64 Cal. 110, § 26. Butterworth v. Bartlett, 60 Ind. 537, § 318. Cadle V. Muscatine E. E., 44 Iowa, 11, § 200. Bnffum V. New York E. E., 4 E. I. Cage r. Trager, 60 Miss. 663, §§ 95, 221, § 169. 98, 126, 248. XXVIU TABLE OF CASES CITED. Cairo R. R. v. Turner, 31 Ark. 494, §§ 87, 124, 348. Caldwell v. Bank, 20 Ind. 294, § 66. Caledonia Rail. Co. v. Colt, 3 Macq. H. L. Cas. 833, §220. e. Ogilvv, 2 Macq. H. L. Cas. 229, §§ 183, 193, 207. V. Lockhart, 3 Macq. H. L. Cas. 808, §§ 216, 237. Calhoun V. Palmer, 8 Gratt. 88, §217. California R. R. v. Gould, 21 Cal. 254, § 350. V. Southern Pacific E. R. 65 Cal. 394, § 92 ; 65 Cal. 409, § 92. California Pacific R. R. v. Arm- strong, 46 Cal. 85, § 149. V. Central Pacific R. R., 47 Cal. 528, § 136. V. Frisbie, 41 Cal. 356, § 239. Calkina; v. Baldwin, 4 Wend. 667, §§"87, 89. Call V. Middlesex, 2 Gray, 232, §§ 217, 310. Callisonv. Hedrick, 15 Gratt. 244, §§ 34, 840. Callender v. Marsh, 1 Pick. 417, §§ 181, 195. V. Painesville R. R., 11 Ohio St. 516, § 122. Cambria St., 75 Pa. 357, § 228. Cambridge v. County Commission- ers of Middlesex, 117 Mass. 79 §§ 330, 333; 125 Mass. 529, § 196. Cameron v. Supervisors, 47 Miss. 264, § 90. Campau v. Detroit, 14 Mich. 276, § 91. Campbell v. Point Pleasant R. E., 23 W. Va. 448, § 136. Canal Appraisers v. The People, 17 Weud. 571, § 80. Canal Bank'U. Albany, 9 Wend. 244, §245. CantU St. (Matter of), 11 Wend. 154, § 312. Canal Co. v. Commissioners of Drainage, 26 La. An. 740, § 49. Canandaigua R. E. v. Payne, 16 Barb. 273, § 159, Candia «. Chandler, 58 N. H. 127, § 318. Canty v. Lattemer, 31 Minn. 239, §71,97. Canyonville Eoad v. Douglass County, 5 Ore. 280, § 2G9. Cape Girardeau Eoad v. Renfroe, 58 Mo. 263, § 34. V. Dennis, 67 Mo. 438, § 110. Carey, ex partH, 10 L. T. 37, § 69. Carl V. Sheboygan E. R., 46 Wis. 625, §§90,221. Carlii). Stillwater R. R., 16 Minn. 200, §66, 153, 159, 160. V. Stillwater Transfer Co., 28' Minn. 373, § 205. V. Union Depot Co., 32 Minn. 101, §90. Carmody v. Chicago R. R., Ill 111. 69, § 586. Carolina Central E. R. v. McCas- kill, 94 N. C. 746, §§ 87, 124, 340. Carpenter v. Easton E. E., 24 N. J. Eq. 249, 408, § 166; 26 N. J. Eq. 168, §219. V. Grisham, 59 Mo. 247, § 64. V. Jennings, 77 111. 250, § 149. V. Landaff, 42 N. H. 218, §§ 152, 153. V. Oswego E. E., 24 N. T. 655, §§ 88, 202. V. Sims, 3 Leigh, 675, § 212. Carr v. Georgia E. E., 1 Ga. 524, §§ 87, 136. — ~v. Nnrthern Liberties, 35 Pa. 324, § 196. Carrige v. Eist Tennessee E. E., 7 Lea, 388, § 162. Carri'iv. Cnmmissioners of Water- loo, 2 Hill, 443, § 120. Carson v. Central E. E., 35 Cal. 325, §§ 203, 205. V. Coleman, 11 N. J. Eq. 106, §§ 128, 149. V. Western E. E., 8 Gray, 423,. § 1S7. Carter v. Moulton, 58 N. H. 64, § 6. Cascades E. R. v. Sohns, 1 Wash. Ty., N. S., 557, § 60. Case V. Myers, 6 Dana, 330, § 95. V. Thompson, 6 Wend. 634, § 95. Cashu. Whitworth, 13 La. An. 401, § 125. TABLE OF CASES CITED. XXIX ■Cashman v. Wood, 13 N. Y. Sup. Ct. 520, § 67. Castle V. Berkshire, 11 Gray, 26, § 318. Cator V. Board of Works, 34- L. J. (Q. B.) 74, § 358. Cedar Eapid By. v. Whelan, 64 Iowa, 694, § 333. Central Branch TJ. P. R. R. v. An- drews, 30 Kan. 590, § 203, 206, 207. D.Atchison R. R. 26 Kan. 669, § 58a, 586; 28 Kan. 453, §§ 91, 138. Central Bridge v. Lowell, 15 Gray, 106, §42; 4 Gray, 474, §42. Central Horse E. R. v. Ft. Clark Horse E. R., 81 111. 523, § 47. Central Iowa Ry. v. Moulton Ry., 57 Iowa, 249, §§ 314, 320. Central Pacific R. R. o. Pearson, 35 Cal. 247, §§ 159, 169, 170, 173, 237, 239, 241. Central E. R. v. Hetfleld, 18 N. J. Eq. 323, § 211. u. Holler, 7 Ohio St. 220, § 112. V. Hudson Terminal Co., 46 N. J. L. 289, §§ 48, 586. V. Pennsylvania R. R., 31 N. J. Eq. 475, §§10, U, 333. Central Vermont R. R. v. Wood- stock R. R., 50 Vt. 452, § 44a. Chagrin Falls Ed. Co. v. Cane, 2 Ohio Sc. 419, § 34. Chalcr^ft v. Louisville E. R., 113 III. 86, §213. Challiss V. Atchison R. E., 16 Kan. 117, §§11,50. Chamberlain v. West End Eail. Co., 31 L. J. (Q. B.) 201, §§ 183, 192. Chambers v. Cincinnati E. R., 69 Ga. 320, § 137. Chambers «. Furry, 1 Yeates, 167, §§ 53, 56. !>. Satterlee, 40 Cal. 497, § 2. Chandler v. Jamaica Pond Co., 122 Mass. 305, § 170; 125 Mass. 144, §§ 160, 166, 168, 169, 175. Channel Co. v. Railroad, 51 Cal. 269, §§ 10, 20. Chapin v. Boston E. E., 6 Cush. 422, §§ 112, 170. Chapin v. Sullivan R. E., S9 N. H. 564, §§ 52, 210. Chapman v. Albany E. R., 10 Barb. 360, § 199. V. Gates, 54 N. Y. 132, §§ 126, 142. V. Groves, 8 Blackf . 308, § 243. V. Oshkosh R. E., 33 Wis. 629, §§ 32, 79, 158, 167. V. Swau, 65 Barb. 210, § 2.S0. Charles v. Monson Mfg. Co., 17 Pick. 70, § 306. Charles Eiver Bridge v. Warren Bridge, 11 Pet. 420, §§ 39, 41, 42, 43, 85, 88, 124, 181, 348; 7 Pick. 314, §§ 40, 191. Charles Eiver E. E. v. County Com- missioners, 7 Gray, 889, § 233. Charleston R, E. v. Blake, 12 Rich. L. 634, §§ 62, 92. ' Charlestown Branch E. E. v. Middle- sex, 7 Mete. 78, § 341. Chase v. New York Central E. R., 24 Barb. 273, § 30. V. Rutland, 47 Vt. 393, § 227. V. Sutton Mfg. Co., 4 Cush. 152, §32. V. Worcester, 108 Mass. 60, § 198. Chasemore v. Richards, 29 L. J. (Exoh.) 81, § 81. Chatterton v. Parrott, 46 Mich. 432, § 329. Chenango Bridge v. Paige, 83 N. Y. 178, §81. Cherokee v. Land Co., 52 Iowa, 279, §§ 167, 169, 170, 191. Chesbrough v. Commissioners, 37 Ohio St. 508, §§ 16, 355. Chesapeake Canal Co. v. Baltimore R. R., 4 GUI & J. 1, §§38, 47. V. Grove, 11 Gill & J. 398, § 216. V. Key, 3 Cranch C. Ct. 599, §§ 84, 149. V. Mason, 4 Cranch C. Ct. 123, §49. Chesapeake Canal Co. v. Union Bank, 4 Cranch C. Ct. 75, §§ 50, 84, 347. !;. Young, 3 Md. 480, § 113. Chesapeake R. R. v. Bradford, 6 W. Va. 220, §§ 175, 312. V. Pack, 6 W. Va. 397, § 246. XXX TABLE OF CASES CITED. Chesapeake K. R. v. Patton, 6 W. Va. 147, §§ 112,212. Chess V. Manown, 3 Watts, 219, § 56. Chicasro v. Barbian, 80 111. 482, § 312. V. Laflin, 49 111. 172, § 6. V. Wheeler, 25 111. 478, § 176. v. Wrisht, 69 111. 318, § 143. Chicaeo E. E. v. Avres, 106 111. 511, § 1C2. v. Bull, 20 111. 218, §§ 130, 335. V. Chamberlain, 84 111. 333, §§ 73, 74, 76, 107, 329. V. Dresel, 110 111. 89, §§ 69, 191. V. Enslewood E. E., 115 111. 375, § 44a. V. Francis, 70 111. 238, §§ 151, 159. V. Goodwin, 111 111. 273, §§ 159, 220. V. Hurst, 30 Iowa, 73, § 263". V. Illinois Central E. E., 113 111. 156, §§ 44, 44a, 45, 58a. V. Jacobs, 110 111. 414, §§ 168, 173, 2o9. V. Joliet, 79 111. 25, §§ 201, 202, 203; 105 111. 388, § 7, 44a, 162, 219. — r- V. McGlnnis, 79 111. 269, §§ 193, 207. V. Melville, 66 111. 329, §§ 112, 135. V. Patchin, 16 111. 198, § 208. V. President Knox College, 34 111. 195, §§ 90, 142. V. Prussiag, 96 111. 203, § 76. V. S:inford, 23 Mich. 418, §§ 91, 256, 267. V. Smith, 78 111. 96, §§ 90, 103. V. Springfield E. E., 67 111. 142, §§ 177, 180. V. Stein, 75 111. 41, §§ 79, 80, 159. V. Swinney, 38 Iowa, 182, § 71. V. Wilson, 17 111. 123, §§ 58a, 59. Chicago Ey. v. Chicaso E. E., 112 111. 589, §§ 45, 61, 168, 173, 180. V. Jones, 103 Ind. 386, § 90. V. Smith, 111 111. 363, § 216. Childs V. Central E. E., 33 N. J. L. 323, § 586. Childs V. New Haven Co., 133 Mass. 253, § 247. Christv V. Newton, 60 Barb. 332, J 230. Church V. Joint School District, 55 Wis. 399, § 90. Church V. Northern Central E. E., 45 Pa. 33!), § 333. Church (Application of), 92 N. T. 1, §126. Church Eoad, 5 Watts & S. 200, § 279. Cincinnati v. Coombs, 16 Ohio, 181, §88. Cincinnati E. E. v. Danville E. E., 75 111. 113, §47. V. Lonirworth, 30 Ohio St. 108, §§ 166, 173. V. Mims, 71 Ga. 240, §§ 168, 206. Citizens Coach Co. v. Camden Ev.. 33 N. J. Eq. 267, §§ 32, 44, 204, 205. City of Kansas v. Eailwav Co., 84 Mo. 412, §§ 159, 253, 254, 268. City, Praying for Opening Streets, 20 La. An. 497, § 312. Clack V. White, 2 Swan, 540, § 26. Claiborne St. (Matter of), 4 La. An. 7, §241. Clapper, ex parte, 3 Hill, 458, § 121. Clark V. Drain Commissioners, 50 Mich. 618, § 323. Clark V. Elizabeth, 40 N. J. L. 172, § 225. Clark V. Hampstead, 19 N. H. 365, §319. V. Hannibal & St. Joe E. E., 36 Mo. 202, § 216. V. Miller, 54 N. Y. 628, § 260; 42 Barb. 255, § 260. V. Phelps, 4 Cow. 190, § 48. V. Saybrook, 21 Conn. 313, § 183. v. Utica, 18 Barb. 451, § 91. V. Worcester, 125 Mass. 226, §§49,54, 152,354. Clarke v. Blackmar, 47 N. Y. 150, § 21. V. Gilmanton, 12 N. H. 515, § 72. V. Bochester, 24 Barb. 446, § 61. Clayton v. Chicago Ey., 67 Iowa,, 238, §§ 57, 213, 254. TABLE OF CASES CITED. XXXI Clear Lake Water Co. (Matter of), 48 Cal. 586, § 233. Clement v. Burns, 43 N. H. 609, §§ 278, 323. e."Durgin, 5 Me. 9, § 111. Cleveland v. Wick, 18 Ohio St. 303, §U9. Cleveland R. R. v. Ball, 6 Ohio St. 568, § 166. V. Prentice, 13 Ohio St. 373, § 122. V. Speer, 56 Pa. 325, §§ 32, 59, 200. Clifford V. Commissioners, 59 Me. 262, § 227. V. Eagle, 35 111. 444, §§ 268, 278. Clinton v. Cedar Eapids R. R., 24 Iowa, 455, § 203. V. Horse R. W., 37 Iowa, 61, §205. Clough V. Unity, 18 N. H. 75, §§175, 319. Ooates V. Mayor of New York, 7 Cow. 585, § 6. Cobb V. Smith, 16 Wis. 661, § 308. V. Boston, 112 Mass. 181, §§ 168, 173. Coburn v. Pacific Lumber Co., 46 Cal. 31, § 90. Coe V. Columbus R. R., 10 Ohio St. 372, § 141. Cogswell V. Essex Mill Co., 6 Pick. 91, § 88. Cohen v. St. Louis R. E., 34 Kan. 158, §§ 89, 148, 175. Colcongh V. Nashville R. E., 2 Head, 171, §§ 65, 73, 87. Cole V. Drew, 44 Vt. 49, §§ 53, 54. V. Eastman, 133 Mass. 65, §§ 79, 289. u. La Grange, 113 U.S.I, § 22. V. Muscatine, 14 Iowa, 296, § 197. V. Peoria, 18 111. 301, § 234. V. West London & Crystal Pal- ace Co., 27 Beav. 242, § 120. Coleman v. Moody, 4 Hen. & M. 1, §236. Collins 11. Creecy, 8 Jones L. 833, § 62. Coltou V. Rossi, 9 Cal. 595, § 130. Columbus V. Columbus E. E., 37 lud. 294, § 320. V. Woollen Mills, 33 Ind. 435, §§ 190, 197, 358. Columbia Bridge Co. v. Geisse, 34 N.J. L. 268, § 76; 35 N. J. L. 558, §§ 65, 194, 253 ; 36 N. J. L. 537, §253. Colville V. Laagdon, 22 Minn. 565, § 139. V. St. Paul E.R., 19 Minn. 283, §§ 163, 165, 173. Comins v. Bradbury, 10 Me. 447, §§ 64, 88. Commissioners u. Harper, 38 111. 103, § 344. V. Harris, 71 Ga. 250, § 26. • V. Humphrey, 47 Ga. 565, § 87. V. Johnston, 71 N. C. 398, § 153. V. Miller, 82 Ind. 572, § 88. . -V. O'SuUivan, 17 Kan. 58, § 149. Commissioners' Court v. Bowie, Sir Ala. 461, §§ 95, 101, 124, 237> 251, 322. Commissioners of Canal Pund v. Kempshall, 26 Wend. 404, § 8L Commissioners of Central Park, 4 Lans. 467, § 243; 63 Barb. 282, § 46; 51 Barb. 277, §§ 49, 243. Commissioners of Fisheries v. Holyoke Water-Power Co., 104 Mass. 446, § 38. Commissioners of Highways?;. Dur- ham, 43 111. 86, § 130. V. The People, 38 111. 347, § 343. Commissioners of Jersey City (Mat- ter of), 31 N.J. L. 72, §312. Commissioners of Leavenworth v. Espen, 12 Kan. 531, § 95. Commissioners of Shawnee County V. Beck with, 10 Kan. 603, §§ 49, 53. Common Council of Brooklyn, 12 N. Y. Sup. Ct. 175, § 313; 73 N. Y. 179, § 160. Commonwealth (The) v. Alger, 7 Cush. 53, § 7. V. Bacon, 13 Ky. 210, § 9. V. Beatty, 1 Watts, 382, § 93. u^Beeson, 3 Leigh, 821, §29. V. Boston R. R., 3 Cush. 25, §§ 198, 249, 351. XXXll TABLE OF CASES CITED. Commonwealtli v. Commissioners of Philadelphia, 2 Whart. 286, §343. V. Coombs, 2 Mass. 489, § 166. V. Eastern B. K., 103 Mass. 254, § 43. V. Erie E. R., 27 Pa. 339, § 32. V. Eisher, 1 Pa. 462, §§ 80, 82, 125. ■!>. Great Barrington, 6 Mass. 492, § 330. V. Hartford E. E., 14 Gray, 379, § 200. V. Haverhill, 7 Allen, 523, §208. V. McAllister, 2 Watts, 190, §§ 125, 246. V. Middlesex, 9 Mass. 388, § 151. V. Peters, 2 Mass. 125, § 135. V. Pittsburg E. R., 58 Pa. 26, § 168. V. Sawin, 2 Pick. 547, § 24. V. Stevens, 10 Pick. 247, § 46. V. Tewksbury, 11 Mete. 55, § 7. V. Westborough, 3 Mass. 406, § 97. Compton V. Susquehanna E. B., 3 Bland, 386, § 124. Conaway D. Aschermau, 94 Ind. 187, §§115,275. Concord (Petition of), 50 N. H. 530, §318. Concord B. E. v. Greely, 17 N. H. 47, §§ 11, 13, 14, 21, 348; 23 N. H.237, §§ 79, 170, 175. Cone». Hartford, 28 Conn. 363, § 55. Conger v. Burlington B. E., 41 Iowa, 419, § 143. Connable v. Chicago By., 60 Iowa, 27, §§ 95, 268. Connecticut v. New Haven Co., 43 Conn. 351, § 40. Connecticut Eiver E. E u. Clapp, 1 Cush. 559, §§ 92," 336. 1!. County Commissioners, 127 Mass. 50, §§ 126,129. V. Holton, 32 Vt. 43, §§ 208, 213. Connally v. Griswold, 7 Iowa, 416, §87. Conter v. St. Paul E. R., 22 Minn. 342, § 173. Convers v. Grand Eapids E. R., 18 Mich. 459, §§ 117, 247, 248, 251. Conwell V. Canal Co., 2 lud. 688, § 87. Cook V. Park Commissioners, 61 111. 115, §§174, 175. Cool V. Crommet, 13 Me. 250, §§ 65, 74, 103, 285. Cooling (iJe), 19 L. J. (Q. B.) 25, § 79. Coombs V. Prauklin Commissioners, 68 Me. 484, § 274. Cooper V. Williams, 5 Ohio, 391, § 23. Cooper, Mayor {Inre), 93 N. Y. 507, S§ S7, 327. Copeland v. Packard, 16 Pick. 217, § 97. Copp ». Neal, 7 N. H. 275 § 51. Corbin v. Cedar Rapids Rv., 66 Iowa 73, § 311. V. Marsh, 2 Duv. 193, § 3. Cortelvou v. Van Brundt, 2 Johns. 358, § 56. Cosbyw. Owensboro R. R., 10 Bash, 288, § 206. Costello V. Burke, 63 Iowa, 361, §§ 94, 146, 160. Coster V. Albany, 43 N. Y. 399, § 318. — — V. New Jersey E. R., 24 N. J. L. 730, §§ 49, 245, 253. V. Tide-Water Co., 18 N. J. Eq. 54, §§ 9, 11. Cott V. Lewiston R. R., 36 N. Y. 214, § 81. Cotton V. Boom Co., 22 Minn. 372, §§21,50,62. V. Pocasset Mfg. Co., 13 Mete. 429, § 291. Cottrillt). Myrick, 12 Me. 222, §§ 22, 111. County Court of St. Louis County V. Griswold, 58 Mo. 175, §§ 11, 12, 18. County of Blue Earth ». St. Paul E. R., 28 Minn. 503, §§ 162, 168, 173, 174. County of Ramsey v. Stees, 28 Minn. 326, § 586. Coutant V. Catlin, 2 Sandf. Ch. 485, §§ 68, 69. TABLE OF CASES CITED. xxxm Covington Street R. R. v. Coving- ton, 9 Bush, 127, § 202. Cowan V. Glover, 3 A. K. Marsh. 357, § 98. Cox V. Cummings, 33 Ga. 649, §§ 3, 85. V. Louisville R. R., 48 Ind. 178, §§ 61, 130, 204, 206. Craig v. Mayor, 53 Pa. 477, § 60. ■». Rochester R. R., 39 Barb. 494, § 32. V. Richester City R. W., 39 N. Y. 404, § 205. Crane v. Camp, 13 Conn. 464, § 98. V. Elizabeth, 36 N. J. Eq. 339, §76. CranG;le v. Harrisburg, 1 Pa. 132, § 73. Crawford v. Delaware, 7 Ohio St. 459, §§ 196, 206. V. Valley R. R., 25 Gratt. 467, § 243. Crawf ordsville v. Bond, 96 Ind. 236, § 189. , Crawf ordsville E. R. v. Wright, 5 Ind. 252, § 210. Crear v. Crossly, 40 ifl. 175, § 26. Cren'shaw v. Slate River Co., 6 Rand. 245, §§ 38, 287. Creswpll V. Commissioners, 24 Ala. 282, §269. Crise v. Auditor, 17 Ark. 672, §§ 161, 323. Crittenden v. Wilson, 5 Cow. 165, §§ 60, 89. Crocker v. New York, 15 Fed. Rep. 405, § 79. • Crocket v. Boston, 5 Cash. 182, § 24. Croft V. London, etc.. Rail. Co., 32 L.J. (Q. B.) 113, §§ 193, 217. Crosby v. Hanover, 36 N. H. 404, §§ 14,41, 279, 353. Cross V. Plymouth, 125 Mass. 657, f 152. Crossley v. O'Brien, 24 Ind. 325, §§ 33, 45, 121, 275. Crowell V. Londonderry, 63 N. H. 42, §19. Crowner v. Watertown R. R.,/9 How. Pr. 457, § 312. Cruger v. Hudson River R. E., 12 N. Y. 190, §§ 95, 97, 256. Crystal Palace Rail. Co., 19 Jur. 995, §175. Cumberland R. R. v. Pennsylvania R. R., 57 Md. 267. Cumberland Valley R. R. v. Mc- Lanahan, 59 Pa. 23, § 69. V. Rhoodarmer, 107 Pa. St. 214, §211. Cuming v. Prang, 24 Mich. 514, § 64. Cummings v. Williamsport, 84 Pa. 472, '^§ 159. Cummins ^.Des Moines Ey., 63 Iowa, 443, §§ 51, 68, 166, 170, 183. Cummins v. Shields, 34 Ind. 164, §§ 24, 121. Cunningham v. Campbell, 33 Ga. 625, §§ 3, 85. V. Pacific R. R., 61 Mo. 33, § 107. Capp V. Commissioners, 19 Ohio St. 173, §§ 94, 98. Curran v. Shattuck, 24 Gal. 427, §§ 6B, 77, 98. Currie v. Natchez R. R., 61 Miss.' 725, I 208. Currier ■«. Elevated R. R., 6 Blatchf. 487, § 203. ■». Marietta R. R., 11 Ohio St. 228, § 69. Curry v. Mt. Sterling, 15 111. 320, § 143. Curtis 13. Eastern R. R., 14 Allen; 65, §§ 183, 190. Curtis V. Portland, 60 Me. 65, § 311. — - V. St. Paul E. E., 20 Minn. 28, §§ 162, 103, 165. Curtiss V. Smith, 35 Conn. 156, §§ v 290, 304. Cushman v. Smith, 34 Me. 247, §§ 30, 126, 129. Cuthbert v. Kuhn, 3 Whart. 357, § 69. ■' Cuyler v. Eochester, 12 Wend. 165, § 326. Cyr c. Dufour, 62 Me. 20, §§ 243, 245. Daggy V. Green, 12 Ind. 303, § 257. Dakin v. London & North-Western Rail. Co., 26 L. J. (Ch.) 734, § 120. XXXIV TABLE OF CASES CITED. Daley d. St. Paul, 7 Minn. 390, §§ 93, 161. Dalrymple v. Whitinghaus, 26 Vt. 345, § 246. Dalton V. Northampton, 19 N. H. 362, §91. Dalzpllt). Davenport, 12 Iowa, 437, §§165, 197. Dam'^ur ■». Lyons City, 44 Iowa, 276, § 199. Damrell v. San Joaquin Co., 40 Cal. 154, § 283. Daniels v. Chicago E. E., 35 Iowa, 129, § 89; 41 Iowa, 52, §§ 89, 174. V. Citizens Savings Institution, 127 Mass. 534, § 303. Danville E. E. v. The Common- wealth, 73 Pa. 29, § 199. u. Gearhart, 32 Leg. Int. (Pa.) 219, § 162. Danville Eoad Co. v. Campbell, 87 Ind. 57, §276. Darling v. Blackstone Mfg. Co., 16 Gray, 187, § 295. Darliijston t>. 'United States, 82 Pa. 382, § 347. Dartmouth College v. Woodward, 4 Wheat. 518, § 38. Davenport v. Stevenson, 34 Iowa, 225, § 203. Davidson v. Boston E. B., 3 Cush. 91, §§ 32, 255, 341. Davis V. Charles Elver E. E., 11 Cush. 506, §§ 168, 170. V. East Tennessee E. K., 1 Sneed, 94, § 351. V. Lacrosse E. E., 12 Wis. 16, § 90. Davis V. Mayor of New York, 14 N. Y. 506, §§ 32, 202. V. New Bedford, 133 Mass. 549, §§ 217, 340. V. Eussell, 47 Me. 443, § 89. V. San Lorenzo E. E., 47 Cal. 517, §§ 36, 136. Davvpll V. Eoper, 24 L. J. (Ch.) 779, § 52. Day V. Stetson, 8 Me. 365, §§ 14, 91. Dayton Mining Co. v. Seawell, 11 Nev. 394, § 20. Dayton E. E. v. Lewton, 20 Ohio St. 401, § 144. Dayton ». Marshall, 11 Ohio St. 497, § 311. Deans ville Cemetery Assn. (Matter of), 66N. Y. 669, § 19. Dearborn v. Boston E. E. 24, N. H. 179, §§166, 218, 220. Deaton v. Polk Co., 9 Iowa, 594, § 63. Deitrichs v. Lincoln E. E., 13 Neb. 361, §§ 58, 68a, 62, 169; 14 Neb. 355, § 65. V. Lincoln E. E., 12 Neb. 225, § 170. Delaware Canal ■». Lee, 22 N. J. L. 243, §§ 220, 222. Delaware E. E. v. Burson, 61 Pa. 369, §§ 174, 175, 212, 333, 346. De Bual v. Freeport Ey., Ill 111. 499, §§ 10, 108. De Camp v. Hibernia E. R., 47 N. J. L. 43, §§ 13, 14. Decker v. Baltimore E. E., In- terstate Com. Rep. 434, 353. De Long v. Schimmel, 58 Ind. 64, § 115. Delphi V. Evans, 36 Ind. 90, §§ 54,. 195. Demscy v. Kipp, 62 Barb. 311, § 26. Den V. Morris Canal Co., 24 N. J. L. 587, § 142. Denham v. Bristol, 108 Mass. 202> §§24,27. Denslow v. New Haven Co., 16 Conn. 98, §§ 88, 128. Denver v. Bayer, 7 Col. 113, §§ 32, 195, 203, 204, 204a, 206, 207. Denver E. E. v. Jackson, 6 Col. 340, §§ 311, 322a. V. Laraborn, 8 Col. 380, §§ 87, 138, 311, 312. V. Vernia, 8 Col. 399, § 195. Denver E. W. v. Denver City E. W., 2 Col. 673, §39. Department of Public Parks, 13 N. Y. Sup. Ct. 486, §§ 203, 225. Derby v. Framingham E. E., 119' Mass. 61.6, § 68. Des Moines v. Layman, 21 Iowa, 153, §91. Detmold v. Drake, 46 N. Y. 318, §§ 126, 175, 313. Detroit E. E. v. Detroit, 49 Mich. 47, §§87, 103. TABLE OF CASES CITED. XXX V^ Detroit R. R.- v. Backus, 48 Mich. 582, § 333. Detroit R. R. v. Crane, 60 Mich. 182, §§ 249, 259. V. Graham, 46 Mich. 642, § 333. De Varaigne v. Pox, 2 BlatcM. 95, §50. Dewitt V. Duncan, 46 Cal. 342, § 202. Dickenson v. Fitchburg, 13 Gray, 546, §§ 168, 10;i, 170, 173, 2J2. Diclsey v. Tennison, 27 Mo. 373, §§ H, 20, ,96. Diedr'ch v. North-Western R. W., 42 Wis. 248, § 82. Dietrich v. Murdoch, 42 Mo. 279, §§11,141. Dimmick v. Broadhead, 75 Pa. 4G4, §136. • V. Council Bluffs R. R., 58 Iowa, 637, §§89, 191. Dinslcv V. Boston, 100 Mass. £44, -§§"16, 50. V. Gardiner, 73 Me. 63, § 302. Directors v. Railroad, 7 Watts & S. 236, § 100. District of Pittsburgh, 2 Watts & S . 320, § 225. Dixon V. Eaton, 68 Me. 542, § 302. Dobbins v. Brown, 12 Pa. St. 75, §§ 37, C6. Doda;e v. Commissioners of Essex, 3 Mete. 380, §§ 186, 220. V. Council Bluffs, 57 Iowa, 560, §60. V. Burns, 6 Wis. 514, § 329. Doe d. Clements v. Collins, 2 Term Rep. 498, § 120. d. Hudson V. Leeds R. R., 20 L.J. (Q.B)486, §142. Donnaher v. Mississippi, 8 Smed. & M. 649, § 203. Donnelly v. Decker, 58 Wis. 461, § 16. Donovan v. Sprin^fleld, 125 Mass. 371, §§ 152, 153. Doody V. Vaughn, 7 Neb. 28, §§ 101, 271. Dooley v. City of Kansas, 82 Mo. ■ 444, § 7. Doran v. Central Pacific R. B., 24 Cal. 245, § 77. Dore V. Milwaukee, 43 Wis. 108, §§ 195, 197. Dorgani?. Boston, 12 Allen, 223, §§ 54, 149, 156, 174. Dorian v. 'Ei'^t Brandywine R. R., 46 Pa. 5l'0, § 173. Dorrance St., 4 R. I. 230, § 149. Dougherty v. Wabash Ry., 19 Mo.. App. 419, §211. Dousht-y V. Soraerville R. R., 7 N. J. Eq. 51, § 125. Douglass V. Turnpike Road, 22 Md.. 219, § 34. Dover St., IS Johns. 506, § 312. Downing v. Des Moines Ity., 63 Iowa, 177, §§ 136, 138. Drady v. Dps Moines R. R., 57 Iowa, 393, §§ 9, 43, 200, 204n. Drake v. Chicago Ry., 63 Iowa, 302, §§ 32, 166. V. Hudson River B. R., 7 Barb. 508, §203. Drath v. Burlington R. R., 15 Neb. 367, §§ C6, 312. Dreh"r v. Iowa Ry., 59 Iowa, 599,. §§ 162,163, 165,207. Driver v. Wo'^tern R. R., 33 Wis. 569, §§ 167, 174. Dronberger v. Reed, 11 Ind. 420, §§ 91, 130. Drurv v. Boston, 101 Mass. 439, § 313. V. Midland R. R., 127 Mass. 571, §§ 75, 78, 144, 153, 168, 214. Dubuque v. Beuson, 23 Iowa, 248, § 52. Dubuque Ry. v. Diehl, 64 Iowa, 635, § 320. Duck River R. B. v. Cochrane, 3 Lea, 478, §§ 58, 87, 115. Dudley v. Butler, ION. H. 281, § 24. V. CUley, 5 N. H. 568, §§ 24, 274. Duke of Beaufort and Harbor Trus- tees, 29 L.J. (C. P.) 241, § 330. Duke of Norfolk v. Tennant, 9 Hare, 745; 16 Jur. 398, § 113. Duncan v. Louisville, 8 Bush, 98 ' §§ 145, 313. Dunlap V. Pulley, 28 Iowa, 469, § 87. V. Toledo R B., 50 Mich. 470, § 42; 46 Mich. 190, §§ 101, 333. XXXVl TABLE OF CASES C^TED. Dunn 11. Charleston, Harp. V^, § 156. Dupontw. Highway Commissioners^ 28 Mich. 362, "§ 101. Dus.'^uan v. Municipality, 6 La. An. 575, §§ 64, 93. Dwenger v. Chicago Ry., 98 Ind. 153, § 200. Dwight V. Springfield, 6 Gray, 442, I 258. 11. Hamnden, 11 Cush. 201, §§ 168, 173, 180. Dyckman v. Mayor of New York, 5 N.Y. 43'i, §§ 107.262. Dyer v. Wightman, 66 Pa. 425, §§ 68, 69. V. Tu'kaloosa Bridge Co., 2 Port. 297, § 39. Eagle V. Charing Cross Rail. Co., 36 L. J. (C. P.) 297, § 207. JEames «. Northumberland, 44 N. II. 67, § 318. V. New Ensjland Worsted Co., II Mete. 570, § 298. Eastand West India Docks Rail. Co. V. Gattke, 3 Mac. & G. lo5, § 291. East and West R. R. v. East Tenn. R. R., 75 Ala. 275, § 41. East BrandvwineR. R. v. Ranck, 78 Pa. 454, § 172. East Hartford v. Hartford Br. Co., 10 How. 511 ; 17 Conn. 79, § 38. East Pennsylvania R. R. v. Hiester, 40 Pa. 53, §§m, 166,170. V. Hottenstlne, 47 Pa. 28, §§ 159, 165. V. SchoUenberger, 64 Pa. 144, §30. East Portland v. Multnomah Co., 6 Ore. 62, §202. East Saginaw R. R. ii. Benham, 28 Mich. 459, §§ 97, 263, 275. East St. Louis v. St. John, 47 111. 463, § 48. East Tennessoe R. R. v. Love, 3 Head, 63, §§ 71, 72. Eastern R. R. v. Boston R. K., Ill Mass. 125, §§ 42, 45, 173. Eastern R. R. v. Concord R. R., 47 N. H. 108, §243. Eastern Counties Rail. Co. v. Hawkes, 24 L. J. (Ch.) 601, § 113. V. Tufiell, 3 Eng. Rail. Cas. 13oj § o'fjo. Eastman v. Stowe, 37 Me. 86, § 92. Easton v. Amoskeag Co., 44 N. H. U3, §§ 128, 293. Eaton V. Boston & Maine R. R., 51 N. H. 504, §§ 31, 182, 184, 188, 217, 222. V. Framingham, 6 Cush. 245, § 233. Eberhart ■». Chicago R. R., 70 111. 347, §§ 159, 165. Eddings v. Roabrook, 12 Rich. L. 504, §§ 162, 173. Edgecumbe v. Burlington, 46 Vt, 218, § 19. Edgerton v. Huff, 26 Intl. 35, § 50. 11. Mayor of Green Cove Springs, 19Fla. 140, § 126. Edgwood Co.'s Appeal, 79 Pa. 257, §28. Bdmands v. Boston, 108 Mass. 535, §§ 65, 68, 166, 170, 171, 176, 191. Edmonson {In re), 17 Q. B. 67, § 333, Edwards v. Stonlngton Cemetery Assn., 20 Conn. 466, § 19. Eel River R. R. v. Eield, 67 Cal. 429, § 58o!. Eichels v. Evansville Rv., 78 Ind. 261, §§ 204, 204o, 205. Eidemiller v. Wvandotte City, 2 Dill. 376, §§ 36, 137, 138. Elder ii. Bemis, 2 Mete. 599, §§ 87, 197. Eldridge v. Smith, 34 Vt. 484, § 59. Eleventh Ave. (lure), 81 N. Y. 436, §76. Elgin «. Eaton, 88 111. 535, §§ 151, 197. Elizabethtown R. R. v. Hplm, 8 Bush, 681, §§ 135, 149, 151, 158, 159. V. Combs, lOBusli, 382, §§ 193, 206, 207. V. Thompson, 79 Ky. 52, §§ 204, 246. Ellicottville Road v. Buffalo R. R., ' 20 Barb. 644, § 32. TABLE OF CASES CITED. xxxvu Ells V. Pacific E. R., 51 Mo. 200, § 107. Elliotts. Eair Haven E. R., 32 Conn. 679, § 205. Eltins; Woollen Co. v. Williams, 36 Conn. 31C, §§290, 3i0. Embury v. Conner, 3 N. Y. 511, §§ 22,23, 329. Emerson v. Reading, 14 Vt. 279, § 286. V. Western E. R., 75 HI. 176, § 148. Emery v. San Francisco Gas Co., 28 Cal. 345, § 2. Emmes v. Feeley, 132 Mass. 346, § 68. Endicott, petitioner, 24 Pick. 339, § 143.- Enfleld Br. Co. v. Hartford Br., 17 Cona. 454, §§ 42, 43. V. Hartford R. E., 17 Conn. 40, §§37, 42, 43, 45, 133. English V. New Haven Co., 32 Conn. 240, § 43. . Eppes V. Cralle, 1 Munf . 258, §§ 303, 338. Erie R. E. u. Casey, 26 Pa. 287, § 8. Erskine v. Boston, 14 Gray, 216, § 240. Estabrooks v. Petersborough R. R., 12 Cash. 224, § 81. Eubank v. Pence, 5 Litt. 338, § 289. Eureka Basin Co., 97 N. Y. 42, §§ 12, • 22, 24. Evans v. Haefner, 29 Mo. 141, §§ 52, 147, 216, 323. V. James, 4 Wis. 408, § 286. ■». Missouri R. R., 64 Mo. 453, §§ 137, lc8, 140, 141. Evansrille R. U. v. Cochran, 10 Ind. 560, § 254. V. Dick, 9 Ind. 433, § 187. V. Fitzpatrick, 10 lad. 120, §§ 165, 212. ?;. .Grady, 6 Bush, 144, § 141. V. Miller, 30 Ind. 209, §§ 91, 334 Everett v. Union Pacific Ey., 59 Iowa, 243, §§ 165, 168, 170. Evergreen Cemetery Assn. v. Blecher, 53 Conn. 651, §§ 19, 261. Ewing V. St. Louis, 5 Wall. 413, §§ 90, 323. Eward v. Lawrenoeburgh R. R., T Ind. 711, § 89. Fairbanks v. Fitchburg E. E., lift Mass. 22i, § 173. Fall Eiver Works v. Fall Elver, 110 Mass. 428, §§ 168, 281. Fa]l River, Iron^Works v. Old Colony E. R., 5 Allen, 221, § 62. Falls V. Belfast & Ballyraena Bail. Co., 12 Irish L. E. 233, § 79. Farlow, ex parte, 2 Barn. & Adol. 341, § 68. Farmer v. Hooksett, 28 N. H. 244, § 312. V. Pauley, 60 Ind. 583, § 278. V. Stewart, 2 N. H. 97, § 242. Farmers' Turnpike Co., 10 Johns.- 3S8, § 115. Farnsworth v. Boston, 121 Mass. 173, K§49, 311; 126 Mass. 438,. § 6; 126 Mass. 1, § 74. Farnum v. Blackstone Canal Corp., 1 Sumu. 46, § 352. Farwell v. Cambridge, 11 Gray, 413, § 152. Farratid v. Chicago E. E., 21 Wis. . 435, § 165. Fay V. Salem Co., Ill Mass. 27, §83. Fazende v. Morgan, 31 La. An. 64^, §58. Fearing u. Irwin, 55 N. Y. 486, § 318. Fehr v. Schuylkill Nav. Co., 69 Pa.. 161, §§291, 297. Felch <;. Gilman, 22 Vt. 38, §§ 64,, 141, 184, 285, 329. Fellow V. Fulgham, 3 Murph. 254, § 307. Fellowes v. New Haven, 44 Conn., 24u, § 195. Fenelon's Petition, 7 Pa. 173, § 93. Fernald v. Boston, 12 Cush. 574, § 197. Ferguson v. London Eail. Co., 32 L. J. (Ch.) 29, § 120. Ferree v. School District, 76 Pa. S7fi, §49. Ferrand v. Corporation of Bradford,, 21 Beav. 412, § 81. XXXV 111 TABLE OF CASES CITED. Terris v. Bramble, 5 Ohio St. 109, § 136. ■». Ward, 9 111. 499, §§ 143, 147. JField V. Des Moines, 39 Iowa, 675, §1- V. Vermont E. E., 4 Cush. 150, § 327. Pink V. Newark, 40 N. J. L. 11, § 3Co, 175. Pinn V. Providence Gas & Water Cj., 99 Pa. St. 631, §223. Knney v. Somerville, 80 Pa. 59, § 21. I"irst Church v. Boston, 14 Gray. 214, § 166. Krst National Bank v. West Eiver E. E., 49 Vt. 167, § 312. I'irst Parish v. Middlesex, 7 Gray, 106, §§ 173, 193. V. Plymouth, 8 Cush. 475, § 212. JFirst Street (In re), 58 Mich. 641, §§ 44a, 74, 107, 124, 248, 259. Tish V. Eochester, 6 Paige, 268, § 54. Pishor V. Chicago E. E., 104 111. 328, § 58a, 142. I'ishcr V. Hobbs, 42 Ind. 276, § 328. ■». Horicon Co., 10 Wis. 351, §15. V. New York, 57 N. Y. 344, § 7G. V. Eocliester, 6 Lans. 225, § 52. V. Smith, 5 Leigh, 611, § 228. Fiske V. Chesterfield, 14 N. H. 240, §§ 172, 175. V. Franiingham Mfg. Co., 12 Pick. 68, §§ 297, 302. ritch V. Stevens, 4 Mete. 426, § 304. ritchburg E. E. v. Boston E. E., 3 Cush. 58, §§ 78, 247, 257, 333. V. Eastern E. E., 6 Allen, 98, §259. Ktchburg E. E. v. Grand Junction E. E., 4 Allen, 198, § 43. V. New Haven E. E., 132 Mass. 647, § 44a. Fitzwater Eoad, 4 Serg. & E. 106, § 270. Plagg V. Worcester, 13 Gray, 601, §§ 87, 189 340; 8 Cush. 69, §§ 249, 326. Flanders u. Golebrook, 51 N. H. 300, § 280. riatbush Avenue (In matter of), 1 Barb. 286, § 77. rieming v. Chicago E. E., 34 Iowa, 853, §§ 107, 173, 220. Fletcher v. Auburn E. E., 25 Wend. 462, §§134,206. V. Fugate, 3 J. J. Marsh. 631, §275. V. Great Western Bail. Co., 29 L. J. (Exch.) 233, § 52. V. Peck, 6 Cranch, 87, §§ 37, 348. Floyd ■!;. Turner, 23 Texas, 292, § 90. Folmart). Folmar, 71 Ala. 136, § 294. Foot V. Stiles, 57 N. Y. 399, § 86. Foote u. Cincinnati, 11 Ohio, 408, §§ 68, 69. Ford V. Chicago E. E., 14 Wis. 609, §204. V. Commissioners, 64 Me. 408, § 223. V. Danbury, 44 N. H. 388, § 284. II. Santa Cruz E. E., 59 Cal. 200, § 204a. Forney v. Ealls, 30 Iowa, 559, § 306- Forsterv. Cumberland Valley E. E., 23 Pa. 371, § 346. Foster v. Boston, 22 Pick. 33, § 111. V. Stafford National Bank, 57 Vt. 128, §§ 11, 22, 30, 129, 130. Fort Worth Ev.ii. Lamphear, ITex. App. 308,'§ 115. V. Hogsett, 1 Tex. App. 444, § 115. Forward v. Hampshire Canal Co., 22 Pick. 4G2, § 144. Fourth Avenue, 11 Abb. Pr. 189, § 230. Fowle V. Northampton Co., 112 Mass. 334, § 220. Fowler fjnre), 53 N. Y. 60, § 322. V. Holbrook, 17Pick. 188, § 310. V. Middlesex, 6 Allen, 92, §§ 169, 170, 251. Franldin v. Fisk, 13 Allen, 211, § 189. Franz v. Sioux City Ey., 56 Iowa, 107, § 202. Frederick v. Shane, 32 Iowa, 254, § 149. Freedle v. North Carolina E. E., 4 Jones L. 89, §§ 1, 152, 153. Freeland v. Pennsylvania E. E., 66 Pa. 91, § 63. TABLE OF CASES CITED. Treetown v. Bristol, 9 Pick. 46, § 90. Jrench v. Braintre« Mfg. Co., 23 Pick. 216, §§200, 304. V. Lord, 60 Mo. 637, § 71. V. Wliitc, 24 Conn. 170, § S54. Premont R. R. v. "Whalen, 11 Neb. 585, §§ 158, 166, 107, 191, 220. Trevert v. Frifrock, 3? Ohio St. 621, §323. Friend, appellant, 53 Me. 387, § 227. Fries v. Southern Pennsylvania R. R. & Mining Co., 85 Pa. 73, § 144. Trith ■». Dubuque, 45 Iowa, 406, § 203. «. Justices, 30 Ga. 723, §228. JFrost V. Earnest, 4 Whart. 86, §§ 37,65, 68. Tuller V. Chicopee Mfg. Co., 16 Gray, 43, §§ 296, l.".i8. II. Edings, 11 Rich. 239, §§ 39, 87, 167. V. French, 10 Mete. 359, §§299, 306. V. Plymouth, 15 Pick. 81, § 111. F^irman St. (Matter of), 17 Wend. 649, §§ 173, 195, 225. Furniss v. Hudson River R. R., 5 Sandf. 551, § 216. Galen v. Plank-road Co., 27 Barb. 543, § 276. Galena R. R. v. Pound, 22 111. 399, § 323. Qalgayv. Great Southern Rail. Co., 4IrishC. L. R. 456, §81. Galveston R. R. v. Pfeuffer, 66 Texas, 66, §^ 06,140, 142. V. Mild Creek Co., 1 Tex. App.393, §§90, 115. Galveston Wharf Co. v. Galveston, .63 Tex. 14, § 13. Gammell v. Potter, 6 Iowa, 548, § 288. Gammoge v. Georgia Southern R. R. 65 Ga. 614, § 63. ■Gardiner v. Boston R. R., 9 Cush. 1, § 60. (Gardner v. Brookline, 127 Mass, 358, §§ 49, 63, 165, 168, 169. 173. Gardner ?;. Newbureh, 2 Johns. Ch. 162, §§ 1, 18, 80, 81. Garltee v. Mayor of Baltimore, 53 Md. 422, § 79. Garrett v. St. Louis, 25 Mo. 505, § 149. Garrison v. New York, 21 Wall. 196, §§ 84, 93, 124, 322. Gates V. Boston R. R., 53 Conn. 333, § 60. Gay tj. Gardiner, 54 Me. 477, § 175. Gearu. C. C. & P. R. R., 43 Iowa, 83, §§ 199, 220. V. Dnbuque R. R., 20 Iowa, 623, §§312,313. — - V. Railroad, 39 Iowa, 23, §§ 31, 32, 159. Gedney v. Tewksbury, 3 Mass. 307, §87. Genet v. Brooklyn, 99 N. Y. 296, §§ 149, 166. George's Creek Co. ■;;. Coal Co., 40 Md. 425, § 94. Gerard v. Omaha R. R., 14 Neb. 270, §§05,161, 322a. Getz V. Plilladelphia R. R., 105 Pa. St. 647, §§ 76, 175, 177. Gherkey v. Haines, 4 Blackf. 159, § 289. Gibson v. Haniraerstnith Rail. Co., 32X.'J. (Ch.) 337; 2 Drew. & Sra. 603, §121. Gidnpy v. Earl, 12 Wend. 98, §§ 51, 66. Glesv V. Cincinnati R. R., 4 Ohio St. 308, §§ 11, 69, 80, 2lU. Gilbert v. Savannah R. R., 69 Ga. 396, §§ 189, 216. Gilbert v. Turnpike Co., 3 Johns. Cas. 107, §§ 99, 107. Gile V. Stevens, 13 Gray, 146, §§ 291,296. Giles V. London, Chatham & Dover Rail. Co., 30 L. J. (Ch.) 603, § 121. Gilkerson v. Scott, 76 111. 609, §§ 265, 359. Gillan v. Hutchinson, 16 Cal. 153, § 130. Gillespie v. Thomas, 15 Wend. 464, §§ 68, 69. Gillet V. Jones, 1 Dev. & B. 339, § 291. xl TABLE OF CASES CITED. Gilliam «. Canaday, 11 Ired. 106, §§ 291, 299. Gilligan v. Providence, 11 R. I. 268, §e8. Oilman ». Milwaukee, 55 Wis. 328, §.18. V. Sheboygan, 2 Back, 510, §2. 1}. Sheboygan E. E., 40 Wis. 653, § 144. Gilmer v. Lime Point, 18 Cal. 229, §§ 12, 347. V. Lime Point, 19 Cal. 47, § 105. Gilmore v. Pittsburgh K. R., 104 Pa. St. 275, §§ 217,-253. Gimble-u. Stolte, Adiiix., 6 Cent. L. J. 358; 591ud. 446. § 74. Glennon v, Milwaukee R. R., 79 111. 501, § 177. Gloucester v. Essex, 3 Mete. 375, § 282. Glover «. North Staffordshire Rail. Co., 20 L. J. (Q, B.) 376, § 31; 16Q. B. 912, § 207. V. Powell, 10 N. J. Eq. 211, §§ 30, 45, 81. Goddard v. Boston, 20 Pick. 407, § 340. V. Worcester, 9 Gray, 88, § 330. Godfrey v. Maberry, 84 N. C. 255, § 303. Gold V. Vermont Central R. R., 19 Vt. 478, § 91. Goldman ti. Justices, 3 Head, 107, § 269. Goodbody v. Midland R^ll. Co., Irish Res. Cas. 20, § 182. Goodin 1>. Canal Co., 18 Ohio, 169, § 141. Goodson u. Mullen, 93 N. C. 211, § 299. Goodrich v. Omaha, 10 Neb. 98, § 195. Goodwin v. Commissioners, 60 Me. 328, § 272. V. Milton, 25 N. H. 458, §§ 67, , 228, 237. V. Wethersflpld, 43 Conn. 437, §§ 229, 235, 279. Gordon v. Pennsylvania R. R., 6 Rep. 727 (Pa.), § 32. Goslins, ex parte, 4 Bam. & Adol- 696, § 68. Goszler v. Georgetown, 6 Wheat- 693, § 195. Gottschalk v. Chicago R. R., 14 Neb. 550, §§ 204a, 207. Gould v. Booth, 66 N. Y. 62, § 189. V. Glass, 19 Barb. 179, § 125. V. Hudson River R. R., 6 N. Y. 622, § 82. Governors of St. Thomas Hospital V. Charius Cross Rail. Co., 30 L. J. (Ch.) 395, § 120. Graf V. St. Louis, 8 Mo. App. 562, §107. Graff V. Mayor of Baltimore, 10 Md. 644, §§ 311, 312. Graham v. Connersville R. R., 36 Ind. 4G3, § 148. V. Columbus R. R., 27 Ind. 260, § 130. Grand Junction R. R. v. Middlesex,, 14 Gray, 653, §§ 41, 160, 233. Grand Ra'^id=; C.i. ■«. Jarvis, 30 Mich. 308, §§ 30, 48. Grand Rapliils R. R. v. Heisel, 47' Mich. 393, §§ 159, 203, 204, 205,. ' 207. V. Horn, 41 Ind. 479, §§ 149, 166, 189. — — V. Van Driele, 24 Mich. 409, § 275. Granger v. Syracuse, 38 How. Pr. 308, § 330. Grant i]. Courter, 24 Barb. 232, § 2. Gray v. Aldermen of Boston, 139- Mass. 328, § 83. II. Burlington R. R., 37 Iowa, 119, §§ 113, 213. V. Iowa Land Co., 26 Iowa, 387, § 202. V. St. Paul R. R., 13 Minn. 315, §§ 128, 204. Grayville R. R. v. Christy, 92 111. 337, §§ 73, 252, 2G2. Great Falls Mfsr Co. v. Garland, 25 Fed. Rep. 521, §§ 84, 91, 95. Green v. Elliott, 86 Ind. 53, § 11. v> Chicago, 97 III. 370, §§ 162,, 168, 253, 264, 259. V. Reading, 9 Watts, 38-2, § 196., V. Fall River, 113 Mass. 262, § 170. TABLE OF CASES CITED. xli Green v. Swift, 47 Cal. 536, § 7. V. Town of East Haddam, 51 Conn. 547, § 280. Greenville E. R. ■». Nunnamaker, 4 Rich. L. 107, §§ 218, 246. V. Partlow, 5 Rich. 428, §§ 170, 212. Greenwood v. Union Freight R. R., 105 U. S. 13, § 43. V. Wilton R. R., 23 N. H. 261, §31. Gregg V. Mayor, 56 Md. 256, §§ 159, 197. Greve v. First Div. St. Paul R. R., 26 Minn. 66, 148. Griffin v. Augusta R. R., 70 Ga. 164, §§ 140, 141. . ti. Dogan, 48 Miss. 11, § 2. V. Martin, 7 Barb. 297, § 53. Grigsby v. Burtnett, 31 Cal. 406, § 126. Griscom v. Gllmore, 16 N. J. L. 105, §230. Grrswold v. Bay City, 34 Mich. 452, §54. Groce v. Zumwalt, 4 Mo. 567, § 305 Grosvenor v. Hampstead Junction Rail. Co., 26 L. J. (Ch.) 731, § 120; 1 De G. & J. 446, ^ 120. Groton v. Hulburt, 22 Conn. 178, § 227. Guess V. Stone Mountain Granite Co., 72 Ga. 320, §§ 151, 204a, 206. Guillotte V. New Orleans, 12 La. An. 432, § 8. Gulf R. R V. Bock, 63 Tex. 245, §§ 162, 163. Gulf R. R. V. Eddins, 60 Tex. 656, §§ 162, 163, 204a. Gulf R. R. iy. Lyons, 2 Tex. App. 139, § 170. Gulf Rv. ii- FuUet, 63 Tex. 467, §§ 31, 152, 168, 204a. V. Donahoo, 59 Tex. 128, §§ 100, 189. Gurnsey v. Edwards, 26 N. H. 224, § 24. Gwynne v. Cincinnati, 3 Ohio, 24 §71. Hagaman v, Moore, 84 Ind. 496, §S 51, 171. Hagar v. Brainard, 44 Vt. 294, §§ 66, 68, 74, 76. Haight V. Keokuk, 4 Iowa, 199, § 35. Haldeman v. Pennsylvania R. R., 50 Pa. 425, §§ 50, 111. Hale 0. Lawrence, 23 N. J. L. 590, §*■ Hall V. Mayor of Baltimore, 56 Md. 187, § 225. ■ V. Meriden, 48 Conn. 416, § 246. V. Pickering, 40 Me. 548, §§ 114, 129. 11. The People, 57 111. 307, §§ 105, 230. Hallock V. Franklin, 2 Mete. 558, § 319. 1!. Woolsey, 23 Wend. 328, § 280. Ham V. Salem, 100 Mass. 350, §§ 110, 168, 170. V. Wisconsin Rv., 61 Iowa, 716, §§ 166, 167, 182. Hamersley v. New York, 56 N. Y. 533, §§ 126, 175, 313. Hamilton Avenue, 14 Barb. 405, § 39. Hamilton v. Annapolis R. R., 1 Md. Ch. 107, §§ 1, 135, 175, 820, 323; 1 Md. 553, §§ 57, 58a, 59. Hamilton County «. Garrette, 62 Tex. 602, §§ 30, 111. Hammett v. Philadelphia, 65 Pa. 14, §2. Hampden Paint Co. v. Springfield R. R., 124 Mass. 118, § 174. Hampton v. Coffin, 4 N. H. 517, §§ 5, 273. Hampton v. The Commonwealth^ 19 Pa. 329, § 93. Hancock v. Boston, 1 Mete. 122, § 97. Hand Gold Mining Co. v. Parker, Sup. Ct. Ga., §"20. Hanlin v. Chicago Ev., 61 Wis. 515,, §§ 140, 189, 200, 207. Hannibal v. Hannibal R. R., 49 Mo. 480, § 45. Hannibal Bridge v. Schaubacher, 57 Mo. ,582, § 167; 49, Mo. 555, § 232. Hannibal R. R. v Rowland, 29 Mo. 337, § 241. v. Morton, 27 Mo. 317, §§ 159, 238, 239; 20 Mo. 70, § 322. xlii TABLK OF CASES CITED. Hannibal K. E. v. Muder, 49 Mo. 165, §§ 59, 107. Hannum v. Westchester, 63 Pa. 475, §346. Hanson v. Lafayette, 18 La. 295, §§ 125, 322. Harbeck v. Toledo, 11 Ohio St. 219, §§ 100, 104. Hardenburgh v. Lockwood, 25 Barb. 9, § 53. Harding v. Funk, 8 Kan. 315, §§ 15, 298. V. Goodlet, 3 Yerg. 41, §§ 15, 287. V. Medway, 10 Mete. 465, § 319. Harlow i;. Pike, 3 Me. 438, § 95. V. Marquette E. E., 41 Mich. 336, §§ 149,216. Harness v. Chesapeake Canal Co., 1 Md. Ch. 248, §§ 1, 136, 175. Harper v. Eichardson, 22 Cal. 251, §§ 340, 344. 1). Lexington E. E., 2 Dana, 227, §§ 94, 254. Harrington v. Berkshire, 22 Pick. 203, § 319. V. Harrington, 1 Mete. 404, §24. V. St. Paul E. E., 17 Minn. 215, §§ 89, 90, 142, 200, 204. Harris v. Elliott, 10 Pet. 25, § 51 . V. Howes, 75 Me. 436, § 68. V. Thompson, 9 Barb. 350, §11- Harrisburg'i). Crangle, 3 Watts & S. 460, §§ 49, 65, 128, 136. Harrisburg E. E. v. Moore, — Pa.—, § 153. V. Peffer, 84 Pa. 295, § 37. Harrison v. Courtwright, — Pa. — , § 128. V. Iowa E. E., 36 Iowa, 323, §§ 159, 165, 338. V. New Orleans Pac. Ey., 34 La. An. 462, §§ 32, 204. V. Young, 9 Ga. 359, §§ 92, 173. Hart V. Kucher, 5 Serg. & E. 1, § 9. Hartford Manilla Co. v. Olcott, 52 Conn. 452, § 289. Hartshorn v. Burlington E. E., 52 Iowa, 613, §§ 1G2, 167, 175. V. Worcester, 113 Mass. Ill, § 198. Hartwell v. Armstrong, 19 Barb. 166, § 16. Hartz V. St. Paul E. E., 21 Minn. 358, § 90. Harvard E. E. v. Eand, 8 Cush. 218, § 338. Harvey v. Lackawanna E. E., 47 Pa. 428, §§ 152, 246. V. Lloyd, 3 Pa. 331, § 28. V. Thomas, 10 Walts, 63, § 28. Harwinton v. Catlin, 19 Conn. 520, § 322. Hask. 11 V. Bristol, 9 Gray, 341, § 326. V. New Bedford, 108 Mass. 208, §§ 66, 190, 358. Haslam v. Galena E. E., 64 111. 353, §173. Hasson v. Oil Creek E. E., 8 Phila. 556, § 210. Hastings v. B. & M. E. E., 38 Iowa, 316, §§ 317, 320. Hastings E. E. v. Ingalls, 15 Neb. 123, § 75, 204o. Haswell v. Vermont Central E. B.) 23 Vt. 228, § 76. Hatch V. Arnault, 3 La. An. 482, § 51. V. Cincinnati E. E., 18 Ohio St. 92, §§ 32, 46, 163. V. Hawkes, 126 Mass. 177, §§ 102, 324, 329. V. Mayor, etc., 82 N. Y. 436, § 7G. V. Vermont Central E. E., 25 Vt. 49, §§ 81, 183, 220. Hatermehl v. Dickson, 8 Phila. 282, § 126. Haverhill Bridge v. County Com- missioners, 103 Mass. 120, §§ 11, 175. Hawkins v. County Commissioners, 2 Allen, 254, § 77. V. Eobinson, 5 J. J. Marsh. 9, § 335. V. Eochester, 1 Wend. 53, § 312. Hawley v. North Staffordshire Eail. Co., 2 DeG. &Sm.33, §237. Hay V. Cohoes Co., 3 Barb. 42, § 15. Hayes v. Chicago Ey., 64 Iowa, 753, §175. Hayes v. Ottawa E. E., 54 111. 373, §§ 149, 155, 158. TABLE OF CASES CITED. xliii BayesiJ.Shaokford, 3 N. H. 10, § 238. Haynes v. Thomas, 7 lad. 38, § 206. Hays V. Briggs, 74 Pa. 373, § 28. V. Campbell, 17 lad. 430, § 270. V. Parrish, 52 lad. 132, §§ 230, 270. V. Rlsher, 32 Pa. 169, §§ 24, 28, 125. V. Texas Ry., 62 Tex. 397, § 89. V. The State, 8 lad. 42.5, § 278. Hazen v. Boston R. R., 2 Gray, 574, §§36, 116, 122,341. V. Essex Co., 12 Cush. 475, §§ 15, 84. Heady v. Vevay Turnpike, 52 Ind. 117, § 254. :^eogy V. Black, 90 Ind. 534, § 275. Healey v. Newton, 119 Mass. 480, § 104. V. New Haven, 49 Conn. 394, §§ 90, 197. Heard v. Brooklyn, 60 N. Y. 242, § 57. V. Middlesex Canal, 5 Mete. 81, §§ 87, 217, 310. Heath v. Barman, 49 Barb. 496, § 34- Hedrick v. Hedrick, 55 lad. 78, §§ 77, 115. V. Olathe, 30 Kan. 348, § 202. Hegar o. Chicago R. R., 26 Wis. 624, § 207. Helm V. Short, 7 Bush, 623, §§ 275, 338. Hempstead «. Des Moines, 63 Iowa, 36, §§197, 216. Hendershott v. Ottumwa, 46 Iowa, 58, §§ 184, 195. Henderson v. Adams, 5 Cush. 610, §291. V. New York B. R., 78 N. Y. 423, §§ 159, 204. V. Minneapolis, 32 Minn. 319, § 189. Henderson E. R. v. Dickerson, 17 B. Mon. 173, §§ 149, 158, 166. Hendricks v. Johnson, 6 Port. 472, §290. Hendrick's Appeal, 103 Pa. St. 358, §197. Henkel v. Detroit, 49 Mich. 249, §18. Heuline v. The People, 81 111. 269, §§ 252, 277, 323. Henniker v. Contoocook R. R., 29 N. H. 146, § 87 Henry v. Dubuque R. R., 2 Iowa, 288, §§ 49, 135, 159, 212; 10 Iowa, 540, § 130. 1^. Pittsburgh Bridge, 8 Watts & S. 85, § 207. V. Thomas, 119 Mass. 583, §§ 16, 356. V. Vermont Central R. R., 30 Vt. 638, § 81. Hentz V. Long Island R. R., 13 Barb. 646, §§ 62, 66, 141. Hepburn's Case, 3 Bland, 95, § 32. Heptiag v. New Orleans Pac. Ry., 36 La. An. 898, § 204a. Herbein v. Railroad, 9 Watts, 272, § 335. Herrick v. Moore, 19 Me. 313, § 273. Hessleri7. Drainage Commissioners, 53 111. 105, §85. "Hester v. Broach, 84 N. C. 25, § 299. Hatfield v. Central R. R., 29 N. J. L. 571, § 111. Heyneman v. Blake, 19 Cal. 579, §§ 49, 85, 91. Hey ward v. Mayor of New York, 7 N. Y. 314, §§ 1, 50, 92. Hibbs V. Chicago R. R., 39 Iowa, 340, §§ 143, 144, 148. Hibernia Rv. v. De Camp, 47 N. J. L. 518, "§31. Hickerson v. Mexico., 58 Mo. 61, § 90. Hickok V. Hine, 23 Ohio St. 523, §§ 46, 79. Hicks v. Foster, 32 Ga. 414, § 256. V. Ward, 69 Me. 436, § 318. Hidden v. Davisson, 51 Cal. 138, § 75. Higbee v. Camden R. E , 19 N. J. Eq.276, §§ 32, .51, 200. Higgins V. Chicago, 18 111. 276, § 145.. ». Reynolds, 31 N. Y. 151, § 54. Higginson v. Nahant, 11 Allen, 530, ■§§ 18, 27. High V. Ditching Assn., 44 Ind. 356, § 227. ■■■ xliv TABLE OF CASES CITED. Hilcoat V. Archbishop of Canter- bury and York. 19 L. J. (C. P.) 376, §173. Hildreth ?>. Lowell, 11 Gray, 345, §§ 16, 98, 330, 35i. Hill V. Baker, 28 Me. 9, §§ 265, 305. V. Bridges, 6 Port. 197, § 322. V. Mohawk E. K., 5 Denio, 206, §112; 7N. Y. 152, § 112. V. Sayles, 12 Mete. 142, § 297. Hinchman v. Paterson H. R. R., 17 N. J. Eq. 75, §§ 204, 205. Hinckley, petitioner, 15 Pick. 447, §§ 109, 264. Hine v. Keokuk E. E., 42 Iowa, 636, § 203. Hingham Bridge Co. v. Norfolk, 6 Allen, 353, §§ 11, 50, 268. Hitchcock V. Danbary E. E., 25 Conn. 516, § 329. Hoadley v. Waterbury, 34 Conn. 38, § 24. Hoag V. Switzer, 61 111, 294, § 212. Hoagland v. Culvert, 20 N. J. L. 387, §§ 101, 228. Hobart v. Pord, 6 Nev. 77, § .'^51. Hodges V. Baltimore By., 58 Md. 603, § 205. Hodgkinson v. Long Island R. E., 13 Barb. 646, § 141. Holbevt V. St. Louis R. E., 45 Iowa, 23, §§ 61, 1*4, 352. Holcomb V. Moore, 4 Allen, 529, § 36. Holcraft v. King, 25 Ind. 352, § 202. Holdane v. Trustees, 23 Barb. 103, § 279. Holden^. Cole, 1 Pa. 303, § 36. HoUingsworth v. Des Moines- Ey., 63 Iowa, 443, §§ 49, 51, 52, 159, 174,175. HoUister v. Union Co., 9Conn> 436, § 80. Holloway v. University E. E., 85 N. C. 452, § 84. Holt V. City Council, 127 Mass. 408, §§ 11, 18, 60, 183. Holton V. Butler, 22 Iowa, 557, § 212. V. Milwaukee, 31 Wis. 27, §§ 80, 149. Holyoke Co. v. Lvmau, 15 Wall. 500, §§ 15, 38, 28"1 Homochitto Eiver v. Withers, 29- Miss. 21, § 80. Honenstine v. Vaughan, 7 Blackf. 520, §§ 296, 305. Hood V. Finch, 8 Wis. 381, §§ 94, 146. Hook V. Smith, 6 Mo. 225, §§ 290, 295. Hooker v. Martin, 17 N. Y. Sup. Ct. 302, § 74. V. New Haven Co., 14 Conn. 146, § 30. V. Utica Turnpike, 12 Wend. 371, § 57. Hooksett V. Amoskeag Co., 44 N. H. 105, § 293. Hooper v. Bridgewater, 102 Mass. 512, § 332. V. Savannah E. E., 69 Ala. 629, §§ 110, 166, 168. Hope t). Norfolk E, E., 79 Va. 283, § 1- Hopkinton v. Winship, 35 N. H. 209, § 22. Hord V. Njshville E. R., 2 Swan, 497, § 91. Hornback v. Cincinnati E. E., 2fr Ohio St. 81, § 113. Hornsteln v. Atlantic E. E., 51 Pa. 87, § 152 Horrocks v. Metropolitan Eail. Co., 4B. & S. 316, § 160. Horton v. Grand Haven, 24 Mich. 465, § 275. Horstman v. Lexington R. E., 18 B. Mon. 218, § 186. Hosher v. Kansas City E. E., 60 Mo. 329, §§ 114, 152, 165, 174, 189. Hos-mer 1). Warner, 15 Gray, 46, § 294. Hotchkiss V. Auburn E. E., 36 Barb. 600, §§ 67, 72. Hot Springs E. E. v. "Williamson, 45 Ark. 428, § 204a. Ilougan V. Milwaukee E. E. 35 Iowa, 558, § 185. Householder v. City of Kansas, 83 Mo., 488, §§ 196, 204a. Housatonic E. E. v. Lee,etc., E. E., 118 Mass. 391, §§46,115. TABLE OF CASES biTED. xlv Houston E. H. v. Chaffln, 60 Tex. 653, § 346. Houston Ryi v. Adams, 63 Tex. 200. §§ 168, 212. Houston K. E. v. Meador, 50 Tex- 77, § 84. V. McKinney, 55 Tex. 176, § 113. — ^ V. MUburn, 34 Texas, 224, §§ 91, 246. Hovey v. Mayo, 43 Me. 322, §§ 87, 197. Howard v. Providence, 6 E. I. 514, §§ 168, 169. Howcott's Executor v. Coffleld's Executor, 7 Ired. 24, § 307. V. Warren, 7 Ired. 20, ^ 67. Howland v. Commissioners, 49 Me. 143, g 330. Hubbard v. Webster, 118 Mass. 599, § 197. V. Kansas City E. E., 63 Mo. 68, §113. V. Wickliffe, 2 A. K. Marsh. 503, § 235. Hudson' Canal Co. v. New York E. K., 9 Paige, B23, § 58. Hudson Eiver E. E. v. Cutwater, 3 Sandf. 689, §§ 312, 313. Hueston a. Eaton E. E., 4 Ohio St. 685, § 147. Hughes V. Sellers, 34Ind.337, § 77. Hull V. Westfield, 133 Mass. 433, § 220. Humes v. Mayor, 1 Humph. 403, § •195. Hunt V. Armbruster, 17 N. J. Eq. 208, §9. V. New Yorlc Ey., 99 Ind. 593, §§ 48, 116, 122. . V. "Smith, 9 Kan. 137, §§ 98, 118. Hunter v. Jones, 13 Minn. 307, § 212. V. Matthews, 12 Leigh, 228, § 262 ; 1 Bob. fVa.) 468, § 301. V. Newport, 5 E. I. 325, §§ 24, 274, 275, 279. Hunting *. Curtis, 10 Iowa, 152, §§ 292, 309. Hupert V. Anderson, 35 Iowa, 579, §312. Hursh V. St. Paul E. E., 17 Minn. 439, §§ 90, 166, 316. Hutchinson v. Parlsersburg, 25 W. Va. 226, §187. Huttou V. London & South- Western Rail. Co., 18 L. J. (Ch.) 345, § 194. Huyettu. Philadelphia E. E., 23 Pa. 373, §220. Hyde v. Mayor of Manchester, 5 De G. &Sm. 249, § 148. V. Middlesex, 2 Gray, 267, § 276. Hyde Park v. Oakwood Cemetery Assn., —111.—, § 40. Hymes v. Aydelott, 26 Ind. 431, § 91. Hyslop V. Finch, 99 111. 171, §§ 158, 333. ^ Illinois Canal v. Chicago E. E., 14 111. 814, §§ 39, 40, 41, 45. Illinois Central E. R. v. Blooming- ton, 76 III. 447, §§ 43, 214. Illinois E. R. v. McClintock, 68 111. 296, § 175. V. Maynard, 93 111. 591, §167. V. Van Horn, 18 111. 257, §§ 164, 168. Imlay v. Union Branch R. R., 26 Conn. 249, § 32. Imler v. Springfield, 65' Mo. 119, §§ 189, 195. Indiana R. E. v. Allen, 100 Ind. 409, §§ 66, 72, 148. V. Cook, 102 Ind. 133, § 92. V. Hunter, 8 Ind. 74, § 174. V. Oakes, 20 Ind. 9, §§ 87, 108, 345. V. The State, 3 Ind. 421, § 351. Indianapolis E. E. v. Brower, 12 Ind. 374, § 13 9. V. Hartley, 67 111. 439, §§ 193, 207. V. Kingsbury, 101 Ind . 200, § 204a. V. McAhren, 12 Ind. 552, § 204. V. Newsom, 54 Ind. 121, § 116. V. Pugh, 85 Ind. 279, § 168. V. Smythe, 45 Ind. 322, § 334 . V. The State, 37 Ind. 489, §§ 199, 202. xlvi TABLE OF CASES CITED. Inge V. Police Jury, 14 La. An. 117, 34 2.§ Ingraham». Chicago R. R. 34, Iowa, 249, §§82,203. Ingram v. C. D. & M. R. K., 38 Iowa, 669, § 203. Inhabitants of N. Reading u. County Commissioners, 7 Gray, 109 § 330. Inhabitants of W. Newbury ^;. Chase, 5 Gray, 421, §§ 168, 323. Inhabitants of Wavlaud v. Middle- sex, 4 Gray, 500, §§ 12, 18. International Ry. v. Benitos, 69 Tex. 326, § 89. V. Pape, 62 Tex. 313, §§162, 208, 216, 220. Ipswich u. Essex, 10 Pick. 519, § 227. Irish V. Burlington R. R., 44 Iowa, 380, § 131. Iron R. R. Co. v. Ironton, 19 Ohio St. 299, §41. Irwin w. Telephone Co., 37 La. An. 63, § 14a. Isom V. Mississippi R. R., 36 Miss. 300, §§ 91, 135, 151, 168. Jackson v. Hathaway, 16 Johns. 447, §§ 51, 52, 63, 54. V. Centerville Ry., 64 Iowa, 292, § 89. ■ V. Jackson, 16 ")hio St. 163, § 318. V. Portland, 63 Me. 56, §§ 220, 357. 0. Rutland R. R., 25 Vt. 150, § 208. Jackson Co. v. Waldo, 86 Mo. 637, §§ 151,152, 153. Jackson Co. Horse Ry. v. Inter- state Ry., 24 red. Rep. 306, §202. Jacksonville R. R. v. Kidder, 21 111. 131, §§ 180, 219. V. Walsh, 106 111. 253, §§ 168, 173, 191. Jacob V. Louisville, 9 Dana, 114, §5 149, 168. James River Co. v. Anderson, 12 Leigh, 278, § 90. -V. Thompson, 3 Gratt. 270, §*2. I James River Co v. Turner, 9 Leigh^. 313, §§ 149, 152, 153, 162. Jamieson v. Commissioners of Cass- County, 56 Ind. 466, § 338. Jamisons;. Springfield, 53 Mo. 224,. §§ 88, 107, 207. Jefferson County v. Cowan, 54 Mo. 234, §271. Jeffersonville R. R. v. Daugherty, 40 Ind. 33, §§41, 126. V. Esterle, 13 Ky. 667, §§ 90, 193. Jerome v. Ross, 7 Johns. Ch. 315, §§ 49, 84, 123. Jersey City v. Central R. R., 40 N. J. Eq. 417, §§ 197, 199. Jersey City & B. R. R. v. Jersey Citv&H.R. R.,20N. J. Eq. 61, §§ 44, 205. Jeter v. Board, 27 Gratt. 910, § 324. Jewett V. Israel, 35 Iowa, 261, § 321. John and Cherry Streets, 19 Wend. 659, §§11,51,74. Johns V. Marion County, 4 Ore. 46, §§ 270, 328. Joliet R. R. V. Barrows, 24 111. 562, § 95. Johnson v. Alameda County, 14Cal. 106, § 130. V. Boston, 130 Mass. 462,. §289. V. Freeport Ry., Ill 111. 413, § 89, 164, 165, 169. V. Joliet R. R., 23 111. 202, §§ 91, 98, 147. V. Kittredge, 17 Mass. 76, § 297. V. Parkersburg, 16 W. Va. 402, §§ 88, 197. V. United States, 4 Ct. of CI. 248, § 3 ; 8 Ct. of CI. 243, § 37. Johnston v. Rankin, 70 N. C. 5^0, §§ 124, 249, 323, 333. V. C. M. & St. P. R. R., 68 Iowa, 637, § 586. V. Eoane, 3 Jones L. 523, § 295. V Supervisors, 19 Johns. 272, § 145. Jones V. Barclay, 2 J. J. Marsh. 73, §§ 72, 101, 160. D. Chicago K. R., 68 111. 380, §§ 163, 167, 170, 212. TABLE OF CASES CITED. xlvii Jones V. Festiniog Rail. Co., L. E. 3 Q. B. 733, §220, 221. V. Goflstown 39 N. H. 254, §237. V. Oxford County, 4:3 Me. 419, §312.' V. Phillips, 30 Me. 455, § 295. V. Seligman, 81 N. Y. 190, §214,217. u. Wabash By., 18 Mo. App. 251, § 189. V. United States, 48 Wis. 385, § 347. V. Walker, 2 Paine C. Ct. 688, § 37. V. Wills Valley R. R., 30 Ga. 43, § 158. Jordan v. Hyatt, 3 Barb. 275, § 92. V. Haskell, 63 Me. 189, 193, §§ 57, 324. V. Woodward, 40 Me. 317, §§ 15, 287, 301. Jubb V. Hull Dock Co., 9 Q. B. 443, § 177. Judson V. Bridgeport, 25 Conn. 426, ■ §227. Justice V. Nesquehoning "Valley R. R., 87 Pa. St. 32, § 148. Justices V. Jefferson, 1 Coldw. 419, § 145. Kaiser v. St. Paul R. R., 22 Minn. 149, § 204. Kamer v. Clatsop County, 6 Ore. 238, §§ 271, 272. Kane v. Baltimore, 15 Md. 240, §§ 18, 56, 79. Kankakee R. R. v.^ Chester, 62 111. 235, § 327. V. Straut, 102 111. 666, § 254. Kanne v. Minneapolis Ry., 30 Minn. 423, §§ 138, 140, 143. Kansas City v. Kansas Pacific R. W., 18 Kan. 331, § 137. Kansas City R. R. v. Campbell, 62 Mo. 585, §§ 107, 244. V. Kregels, 32 Kan. 608, § 213. V. Weaver, — Mo — , § 73. Kansas Pacific R. R. v. Hopkins, 18 Kan. 494, § 113, V. Streeter, 8 Kan. 133, § 89. Karber v. Nellis, 22 Wis. 215, § 329. Keasy v. Louisville, 4 Dana, 154, § 207. Keenan, ex parte, 21 Ala. 558, § 333. Keene v. Bristol, 26 Pa. 46, § 126. V. Chapman, 25 Me. 126, § 64. Keithsburg R. R. v. Henry, 79 111. 290, §§ 153, 163, 165, 166. Keller v. Corpus Christi, 50 Tex. 614, §§ 4, 5. Kelley w. Horton, 2 Cow. 424, § 64. Kellinger v. Forty-second Street R. R., 50 N. Y. 206, §§ 203, 207. Kellogg ?;.Mallin, 50 Mo. 496, § 50. V. Price, 42 Ind. 360, § 227. Kelsey v. King, 32 Barb. 410, § 65. Kemp I). Smith, 7 Ind. 471, §91. Kendall v. Railroad Co., 65 Vt. 438, §142. Kennedy v. Milwaukee R. R, 22 Wis. 581, §§ 74, 148. Kennett's Petition, 24 N. H. 139, § 183. Kensington Turnpike Co., 97 Pa. St. 260, § 41. Kent V. Wallingford, 42 Vt. 651, §§ 114,319. Kenton County Court v. Turnpike Co., 10 Bush, 529, §§32, 58. Kepple V. Keokuk, 61 Iowa, 653, § 197. Kerr (Matter of), 42 Barb. 119, §§ 42, 44, 60. Kidder v. Jennison, 21 Vt. 108, § 95. II. Oxford, 116 Mass. 166, §§ 175,338. Kile V. Yellowhead, 80 111. 208, §§ 115, 278, 329. Killbuck Private Road, 77 Pa. 39, §§^ 12, 27. Kimball v. Whitewater Canal Co., 1 Ind. 285, § 87. Kitael V. Kimel, 4 Jones L. 121, § 300. Kine v. Deffenbaugh, 64 111. 291, § 91. Kinealy v. St. Louis Ky., 69 Mo. 658, §317. King V. Iowa Midland R. R., 34r Iowa, 464, §§ 170, 220, 254. V. Minneapolis Ry., 32 Minn.. 224, §§ 168, 173. XlVlll TABLE OF CASES CITED. King; v. Wycombe Rail. Co., 29 L. J. (Ch.) 462, § 120. Kingman v. Plymouth, 6 Gush. 306, § 333. Kingsland v. Clark, 24 Mo. 24, § 69. Kinsman St. R. R. v. Broadway St. R. R., 36 Ohio St. 239, § 44. Kipt). New York R.R., 13 N. Y. Sup. Ct. 24, §63; 67N.Y.,22r, §§37, 63. Kirtlandv. Merideu, 39 Conn. 107, § 319. Kissinger v. Hanselman, 33 Ind. 80, §§ 27, 101. Kittrell u.Railroad, 56 Vt. 96, §§ 142, 144. Knapp V. London, etc.. Rail. Co., 32 L. J. (Exch.) 236, § 142. V. McAuley, 39 Vt.275, § 142. Knauft V. St. Paul R. R., 22 Minn. 173, §§ 161, 175, 263. Knight V. Carrollton R. R., 9 La. An. 284, § 59. Knoth V. Barclay, 8 Col. 300, §§ 77, 87. Knowles' Petition, 22 N. H. 361, § 24-. Koch V. Williamsport Co., 65 Pa. 288, §§ 87, 194. Kohl V. tjQited States, 91 U. S. 367, §§ 68, 261, 347, 349. Kohlhepp V. West Roxbury, 120 Mass. 596, § 115. Kokomo V. Mahan, 100 Ind. 243, § 197. Koppikus V. State Capital Commis- sioners, 16 Cal. 248, § 91. Kramer ■«. Cleveland R. R., 5 Ohio St. 140, §§ 85, 94, 237, 322. Kroop V. Forman, 31 Mich. 144, §§ 333, 356. Kucheman v. 0. C. & D. R. R., 46 Iowa, 306, §§ 32, 106, 203, 204. Kuhlman v. Hecht, 77 111. 570, § 29. Kvle V. Auburn R. R., 2 Barb. Ch. 489, § 213. Lackland •■!). North Missouri R. R., 31 Mo. 180, §§ 200, 206. Lacroix v. Medway, 12 Mete. 123, §§ 264,319. La Crosse R. R. v. Seeger, i Wis . 268, §§92, 161. Lafayette v. Shultz, 4 Ind. 97, §§ 130, 312. V. Spencer, 14 Ind. 399, § 195. Lafayette Plank Road v. New Alba- ny R, R., 13 Ind. 90, §§ 42, 216, 217. ■ V. Pickett, 25 Mo. 535, § 91. Lafayette R. R. v. Murdock, 68 Ind. i37, §§ 162, 163. Lafayette R. K.V. Smith, 6 Ind. 249, § 87. V. Winslow, 66 111. 219, §§ 159, 168, 223. Lake V. Virginia R. R., 7 Nev. 294, §43. Lake Erie R. R. r. Heath, 9 Ind. 558, §91. V. Kinsey, 87 Ind. 514, §§ 137, 139. Lake Merced Water Co. v. Cowles, 31 Cal. 215, § 47. Lake Pleasanton Water Co. v. Con- tra Costa Water Co., 67 Cal. 659, § 18. Lake Shore Ry. v. Chicago R. R., 96 111. 125, §93; 97111. 506, §§ 42, 44a, 45, 180; 100 111. 21, §§ 42, 44a, 168, 173. Lake Shore R. W. v. Cincinnati R. W., 30 Ohio St. 604, § 44. i). New York Central Ry., 8 Fed. Rep. 858, § 46. V. Springfield R. R., 96 111.274, §44a. Lake Superior R. R. v. Greve, 17 Minn. 322, §§ 166, 208, 263. Lamb v. Lane, 4 Ohio St. 167, § 91. Lambert v. Hoke, 14 Johns. 383, § 26. Lamont v. St. Louis Ry.j 62 Iowa, 193, § 173. Lancashire Rail. Co. v. Evans, 15 Beav. 322, § 217. Lancaster v. Kennebeck Co., 62 Me. 272. §2], 36a, 115, 311. • V. Pope, 1 Mass. 86, § 101. V- Richardson, 4 Lans. 136, § 53. Lance's Appeal, 55 Pa. 16, § 69. Lance v. Chicago R. R., 57 Iowa, 636, §§ 163, 220, 268. Lane v, Saginaw, 53 Mich. 442, § 107 TABLE OF CASES CITED. xlix Xane v. Boston, 125 Mass. 619, § 197. Landaff (Petition of), 3i N. H. 163, § 237. Lanesborougli v. Berkshire, 22 Pick. 278, §§ 264, 267. Langdon v. Mayor of New Tork, 93 N. Y. 129, § 37. liangford v. Commissioners, 16 Minn. 375, § 85. Lansing v. Caswell, 4 Paige, 519, § 121. V. Smitli, 8 Cow. 146, § 80 ; s. c, 4 Wend. 9, § 80. Larson t!. Superior Ry., 64 Wis. S9, §268. Lawler v. Baring Boom Co., 56 Me. 443, §§ 21, 182. Lawrence v. Boston, 119 Mass. 126, §§ 65, 168, 171. V. Great Northern Kail. Co., 16 Q. B. 643, §§ 216, 217, 220. Lawrence R. R. v. Cobb, 35 Ohio St. 94, §161. V. Williams, 35 Ohio St. 168, §§ 32, 89, 202, 203. Leach v. Day, 27 Cal. 643, § 64. Leak v. Selma R. R., 47 Ga. 345, § 338. Leavenworth Ry. v. Paul, 28 Kan. 816, §§49,212. Leavitt v. Cambridge, 120 Mass. 157, § 49. V. Eastman, 77 Me. 117, §§ 87, 95, 129. Lebanon v. Olcott, 1 N. H. 339, §§ 64, 88. Leber v. Minneapolis Ry., 29 Minn. 256, §221. Lecour v. Police Jury, 20 La. An. 308, § 11. Lee v.. North- Western R. R., 33 Wis. 222, § 322. V. Pembroke Iron Co., 57 Me. 481, §§ 64, 78, 88. V. Tebo R. R., 63 Mo. 178, § 244. Lefevre's Appeal, 32 Cal. 565, § 160. Legg V. Belfast Rail. Co., 1 L R. C. L. 124ra, §68. Lehigh Valley Coal Co. v. Chicago, 26 Fed. Rep. 415, §§189, 162, 167, 170, 177, 254. Lehigh Valley R. R. v. Lazarus, 28 Pa. 203, § 163. V. Dover R. R., 43 N. J. L. 528, §§ 44a, 58a, 233, 236. V. Trone, 28 Pa. 206, §§ 79, 82. Lehmicke o. St. Paul R. R., 19 Minn. 464, §§ 165, 169, 170. Leisse v. St. Louis & Iron Mountain R. R., Mo.Ct. App., § 811. Leland v. Woodbury, 4 Cush. 245, § 291. Leonard v. Wading River Co., 113 Mass. 235, § 292. Lennnt v. Knox R. R., 62 Me. 322, § 269. Leslie v. St. Louis, 47 Mo. 474, § 107. Levee Commissioners v. Harkle- roads, 62 Miss. 807, §§ 159, 162, 168. Levering v. Philadelphia R. R., 8 Watts &S. 469, § 139. Lewenthal v. Npw York, 5 Lans. 532, § 358. Lewes v. Cambrian R. R., 36 L. J. (Ch.) 665, § 144. Lewis u. Jones, 1 Pa. St. 336, § 56. ■;;. New Brittain, 62 Conn. 568, § 216. V. Rough, 26 Ind. 39,8, § 90. V. Smith, 1 A. K. Marsh. 159, § 114. Lewis St. (Matter of), 2 Wend. 472, §226. Lewistou «. Commissioners, 30 Me. 19, §§115, 277. Lexington v. Long, 31 Mo. 369, § 86. V. McQuillan's Heirs, 9 Dana, 513, §2. Lexington R. R. u. Applegate, 8 Dana, 289, §§ 201, 206. V. Fitchburg R. R., 14 Gray, 266, §44. ■«. McMurtry, 3 B.' Mon. 516, §35. Limerick Turnpike Co.'s Appeal, 80 Pa. 425, § 189. Linblom v. Ramsey, 75 III. 246, §§ 274, 275, 284. Lincoln v. Colusa County, 28 Cal. 662, §§ 103, 107. d 1 tab/jB of cases cited. Lind V. Clemeas, 44 Mo. 540, § 107. Llndeli's Administrators. Hannibal & St. Joe K. E., 6 Mo. 543, §§ 87, 89. Lindsay v. Commissioners, 2 Bay, 38, § IL'5. Linsley v. Hubbard, 44 Conn. 109, §9. Little V. Dublin & Drosheda Rail. Co., 7 I. R. C. L. 82, § 81. V. Thompson, 24 Ind. 146, § 27,1. Little Miami R. R. u. Commission- ers, 31 Ohio St. 338, § 198. — - M. Dayton, 23 Ohio St. 610, § 45. V. NayJor, 2 Ohio St. 285, § 58. u. Whitacre, 8 Ohio St. 590, §§ 64, 87. Little RockRy. v. Allen, 41 Ark. 431, §§ 162, 216. V. McGehee, 41 Ark, 202, §§ 63, 89, 216. V. Dyer, 35 Ark. 360, § 89. Livermore v. Jamaica, 23 Vt. 361, § 151. Liverpool Improvement Act (In re), 16 W. R. 667, § 335. Livins;ston v. Mayor of New York, 8 Wend, ^5, §§ 91, 151,225. , Local Board of Health ii. Jones, 20 L. J. (Exch.) 33, § 270. Lockwood V. Gregory, 4 Dav, 407, §276. Lodjje V. Philadelphia R. R., 8 Phila. 345, §§ 58, 59. LogansDort v. McMillen, 49 Ind. 493, § 165. V. Shirk, 88 Ind. 563, §§ 11, 57. Logansport R. R, v. Buchanan, 52 Ind. 163, §174. Lohman v. St. Paul R. R., 18 Minn. 174, § 142. London & North-Western Rail. Co. V. Bradley, 6 Eng. Rail. Cas. 551, § 193. Long (Appeal of). Pa. Sup. Ct., §§ 93, 87, 114. Long ?;. Fuller, 68 Pa. 170, §§ 17, 126. Long Island R. R. (Matter of), 6 N. Y. Sup.Ct. 298, §148. Long Island R. R. v. Bennett, 17 N. Y. Sup. Ct. 91, §§ 97, 151. I Loomis ». Andrews, 49 Cal. 239, §■ 130. Loop V. Chamberlain, 20 Wis. 135, & 89; 17 Wis. 504, §§ 89, 90. Loring v. Boston, 12 Gray, 209, f 341. Lorenz v. Jacob, 63 Cal. 73, § 12. Loughbridge v. Harris, 42 Ga. 600, §15. Louisville v. Eolling-Mill Co., S Bush, 416, § 207. Louisville, etc., R. R. v. Covington^ 2 Bush, 526, § 51. V. Glazebrook, 1 Bush, 325, § 158. V. Louisville City R.W., 2 Duv. 175, §§ 38, 39. V. Quinn, 14 Lea, 65, § 28. V. State, 9 Bax. 522, §§ 28,. 44a. V. Thompson, 18 B. Mon. 735, §142. Louisville R. R. v. Brown, 17 B. Mon. 763, §§ 195, 200. Low V. Galena R. E., 18 111. 324, §§ 59, 228. Lowe V. Ryan, 94 Ind. 450, § 166. Lowell V. Boston R. R., 23 Pick. 24, § 220. V. Shaw, 15 Me. 242, § 306. Lower v. Chicago E. R., 59 Iowa, 563, §§ 63, 115. Loweree v. Newark, 38 N. J. L. 151, §§ 124, 126, 149. Lull V. Curry, 10 Mich. 397, § 77. Lumbard v. Stearns, 4 Cush. 60, § 18. Lumsden v. Milwaukee, 8 Wis. 485, §§ 85, 250. Lund B. New Bedford, 121 Mass. 286, §§ 30, 116. Luntley {Be), 14 W. R. 93, § 68. Lycoming Gas & Water Co. v. Mayer, 99 Pa. St.;615, §§ 31, 144. Lyman v. Burlington, 22 Vt. 131, §§ 237,239, 241, 333. Lynch v. Mayor, 76 N. Y. 60, § 189. Lynch v. Stone, 4 Denio| 356, § 49. Lyon V. G. B. & M. R. R., 43 Wis. 538, § 148. ■«. Jerome, 26 Wend. 485, § 60. TABLE OF CASES CITED. li Macey v. Metropolitan Board of Works, 33 L. J. (Ch.) 377, § 206. Macon v. Owen, 3 Ala. 116, §§ 115, 309. Macon R. B. v. Bowen, 45 Ga. 531, § 111- Macy V. Indianapolis, 17 Ind. 267, § 195. Magnolia St. (Matter of), 8 Phila. 468, § 236. Mahady v. Brunswick R. K., 91 N. Y. 148, §§ 205, 206, 207. Mahonti.New York Central E. R., 24 N. Y. 658, § 32. I'. Utica E. R., Lalor, 156, § 32. Mahony v. Spring Valley Water Works, 52 Cal. 159, § 63. Mair-i v. Gallahue, 9 Gratt. 94, § 303. Makepeace u. Worden, IN. H. 16, §53. Mallard v. Lafayette, 5 La. An. 112, § 313. Malone v. Toledo, 28 Ohio St. 643, §§ 50, 57. Manhattan Co., ex parte, 22 Wend. 653, §§ 46, 62. Manser v. North Eastern Rail. Co., 2 Eng. Rail. Cas. 380, § 220. Mansfield R. R. v. Clark, 23 Mich. 519, §§ 160, 251, 275. Marble v. Whitney, 28 N. Y. 297, § 111. March v. Portsmouth R. R., 19 N. H. 372, §§ 81, 170, 175, 180, 213. Marcy v. Fries, 18 Kan. 353, §§ 135, 300.-- Market Street R. R. v. Central R. R., 51 Cal. 583, § 205. Markham ■». Brown, 37 Ga. 277, § 7. V. Mayor, 23 Ga. 402, § 207. Marling v. Burlington Ey., 67 Iowa, 331, § 63. Marquette R. n.v. Harlow, 37 Mich. 554, § 90. V. Probate Judge, 53 Mich. 217, §§ 90, 243, 244, 245. Marsh (Matter of), 71 N. Y. 315, §§ 107, 356. Marshall Fishing Co. v. Hadley Falls Co., 5 Cush. 602, § 336. Marson v. London Rail Co., 37 L. J. (Ch.) 483, § 120. Martin v. Benoist, 20 Mo. App. 262,- § 189. Martin v. Dix, 52 Miss. 53, §§ 2, 348. , ex p^rte,' IS Avk. 198, § 1. V. Gleason, 139 Mass. 183, § 18. V. Leicester Water Works Co., 27 L.J. (Exch.) 432, § 338. Martin v. London, Chatham &, Dover Rail. Co., 35 L. J. (Ch.) 795; L. R. 1 Eq. 145, §§ 65, 148.. V. Mayor of Brooklyn, 1 Hill, 545, §§ 311, 312. V. Eushton, 42 Ala. 289, §§ 288, 296. Martinsville R. R. v Bridges, 6 Ind. 400, § 89. Mason v. Brooklyn City R. R., 35 Barb. 373, § 58. V. Harper's Ferry Brids;e Co., 17 W. Va., 396, §§38, 42. V. Kennebec R. R., 31 Me.. 215, §§87, 216,220. Massachusetts R. R. v. Boston R.. R., 121 Mass. 124, § 44. Mattingly v. Plymouth, 100 Ind. 545, § 197. Matthias v. Grain Commissioners, 49 Mich. 465, §§ 115, 356. Mayer v. New York E. E., 88 N. Y. 353, § 189. Mayo V. Turner, 1 Munf. 405, § 289. Mayor v. Bailey, 2 Denio, 483, § 220. V. Central E. E., 53 Ga. 120, §^ 46, 61, 158. V. Delachaise, 22 La. An. 26, § 84. V. Gardner, 33 N. J. Eq. 622, §§. 145, 312. V. Hopkins, 13 La. 326, § 317. V. Nichol, 59 Tenn. 338, § 197.. V. Perkins, 30 Ga. 154, § 130. V. Richardson, 1 Stew. & P. 12, §§ 145, 161. V. Warren Mnfg. Co., 59 Md. 96, §81. Mayor of Baltimore v. St. Agnes Hospital, 48 Md. 419, § 79. Mayor of Chattanooga v. Geiler, 13 Lea, 611, § 162. lii TABLE OF CASES CITED. Mayor of Cumberland??. 'Willisoi), 50 Md. 138, § 181, 189, 195. Mayor of Helena v. Thompson, 29 Ark. 669, § 190. Mayor of Macon v. Harris, 73 Ga. 428, §§ 11, 22. V. Hillj 58 Ga. 595, §§ 54, 196. Mayor of New York v. Lord, 18 Wend. 126, §§ 4,5; 17 Wend. 285, §§ 4, 5. Mayor of Troy v. Coleman, 58 Ala. 570, § 190. -Mayor of Union Sorings v. Jones, 58 Ala. 654, § 190. McArthur V. Kelly, 5 Ohio, 139, § 23. V. McEachin, 64 N. C. 454, § 60. McAulay v. Western R. R., 33 Vt. 311, §§ 140, 141, 142. McAuley v. Chicago E. R., 83 HI. 348, §§ 61, 63. McCann«. Sierra County, 7 Cal. 121, §128. McCarthy v. Syracuse, 46 N. Y. 194, §66. M'cCauley v. Dunlap, 4 B. Mon. 57, §26. V. Weller, 12 Cal. 600, § 85. McClary v. Hartwell, 25 Mich. 139, §275. McClean v. Chicago Ey., 67 Iowa, 568, §168. McClelland v. Miller, 28 Ohio St. 488, § 323. McClenachan v. Curwen, 6 Binn. 509, § 125. McClinton v. Pittsburg E. R., 66 Pa. 404, §§ 88, 346. McCollister v. Shuey, 24 Iowa, 362, §98. McCombs V. Akron, 15 Ohio, 474, § 196. V. Stewart, 40 Ohio St. 647, §§ 50,57. McCord V. High, 24 Iowa, 336, § 64. McCormack v. Terre Haute R. R., 9 Ind. 283, § 87. McCormlck v. Lafayette, 1 Ind. 48, §130. V. St. Joseph E. E., 57 Mo. 433, § 220. McCoy V. Grandy, 3 Ohio St. 463, §9- McCoy V. Railroad Co., 13 Ped. Rep. 3, §61., McCrorv v. Griswold, 7 Iowa, 248, §§ 322, 333. McDonald v. Red Wing, 13 Minn. 38, § 4. McDougle V. Clark, 7 B Mon. 448, § 288. McElroy v. Kansas City, 21 Ped. Eup. 257, § 204a. McPadden v. Johnson, 72 Pa. 335, § 66. Mclntire v. Easton R. R., 26 N. J. Eq. 425, § 76. V. The State, 5 Blackl. 384, § 149. V. Western E. R., 67 N. C. 278, §§ 87, 124. McKee v. St. Louis, 17 Mo. 184, §§ 261, 267. McKeeii v. Delaware Division Canal, 49 Pa. 424, § 80. McKenney v. Commissioners, 40 Me. 136, § 187. McKenzie v. Mississippi Boom Co., 29 Minn. 288, § 30. McKinney v. Monongahela Nav. Co., 14 Pa. 65, § 87. McLauchlin v. Charlotte R. R., 5 Rich. 683, §§ 1, 31, 87, 195, 340. McLaughlin v. Municipality, 6 La. An. 604, § 313. McLellan v. Commissioners, 21 Me. 390, § 230. McLendon v. Atlanta E. E., 64 Ga. 293, § 66. McMahon v. Cincinnati E. E., 5 Ind. 413, § 149. McMasters v. The Commonwealth, 3 Watts, 292, § 149. McMicken v. Cincinnati, 4 Ohio St. 394, § 85. McOsker v. Burrell, 55 Ind. 425, § 126. McQuillen !>. Hatton, 42 Ohio St. 202, §§ 10, 12, 13, 16. McEeynolds v. Burlington Ey., 106 111. 152, §§ 92, 253. McWhirter v. Cockrell, 2 Head, 9, § 275. Meacham v. Fltchburg E. E., 4 Cush. 291, §§ 74, 152, 153, 247. TABLE OF CASES CITED. liit Mead v. Heln, 28 Wis. 533, § 306. Mears v. Wilmington, 9 Ired. 73, § 195. Meily v. Zurmehly, 23 Ohio St. 627, § 138. Mellen v. Western R. K., 4 Gray, 301, §§ 64,220. Memphis v. Bolton, 9 Heisk. 508, §§ 153, 158, 168. Memphis Freight Co. v. Memphis, 4Coldw,419, §§ 10, 21. Memphis v. Water Co., 5 Tenn. 495, §55. Memphis R. R. v. Payne, 37 Miss. 700, § 130. Mendez v. Dugart, 17 La. An. 171, §51. Menges v. Albany, 56 N. Y. 374, § 226. Mercer v. Pittsburg R. R., 36 Pa. 99, § 200. V. Williams, Walk. Ch. (Mich.) 85, § 139. Merrill v. Berkshire, 11 Pick. 269, §§ 255, 262, 282, 324. Messer v. Wildman, 63 Conn. 494, § 137. Methodist Church v. Baltimore, 6 Gill, 391, § 61. Metropolitan Board v. Metropolitan Rail. Co., 38 L. J. (C.P.) 172, § 184. Metropolitan E. R. v. Highland R. E., 118 Mass. 290, § 44. V. Quincy R. K., 12 Allen, 262, §44. Metier, 37 N. J. L. 222, §§ 174, 175, 338. Mettler v. Easton R. E., 25 N. J. Eq. 214, § 139. Michigan Ev. v. Barnes, 44 Mich. 2^2, §§"173, 257, 259. Michigan E. R. v. Probate Judge, 48 Mich. 638, § 232. Micklethwait v. Winter, 20 L. J. (Exch.) 313, § 52. Midland Rail. Co. v. Checkley, 36 L. J. (Ch.) 380; L. K. 4 Eq. 19, § 62. V. Wescomb, 2 Eng. Rail. Cas. 211, § 335. Mifflin V. Railroad, 16 Pa. 182, § 200. Durkee, 34 Kan. 609, § Mikesell i 23. Milhau V Sharp, 15 Barb. 198, §§ 55, 203. MilhoUin v. Thomas, 7 lud. 165, § 97. Military Parade Ground, 60 N. Y. 319, §§ 311, 344. Milburn v. Cedar Rapids, 12 Iowa,. 246, §§ 201, 203. Mills V. St. Clair County, 8 How. 569, § 348. Miller v. Auburn E. R., 6 Hill, 61, §^ 142. 0. Bridgewater, 24 N. J. L. 54, § 145. V. Brown, 56 N. Y. 383, §§ 107, 238. V. Craig, 11 N. J. Eq. 175, § 43. — — V. Keokuk Ey., 63 Iowa, 680, § 220. — - V. Mayor of Newark, 35 N. J. L. 460, § 160. -u. New York E. E., 21 Barb. 513, § 43. V. Stowman, 26 Ind. 143, § 296. V. Troost, 14 Minn. 305, § 15. Milwaukee u. Milwaukee E. E., 7 Wis. 85, § 204. Milwaukee R. R. v. Bble, 4 Chand. 72, §§ 152, 153, 174, 212. V. Faribault, 23 Minn. 167, §§ 11, 46. V. Strange, 63 Wis. 178, §§ 66, 140, 32204 Mineral Range R. R. v. Detroit Copper Co., 25 Fed. Rep. 515, §§ 1, 60. Minneapolis Ey. v. Kanne, 32 Minn. 174, §§ 95, 97. 1). Wilkin, 30 Minn. 145, §§ 175, 227, 243, 249. Minnesota E. R. v. Doran, 17 Minn. 188, §§92, 153, 162; 15 Minn. 230, § 167. V. Peterson, 31 Minn. 42, § 322a. Minot V. Cumberland Commission- ers, 28 Me. 121, §§ 160, 234. V. McNamara, 13 Miuu. 508, § 153. liv TABLE OF CASES CITED. Mississippi Boom Co. v. Patterson, 8 Otto, 403, § 349. Mississippi River Bridge Co. v. Ring, 58 MO. 491, §§ 152, 166, 173, 223, 232. Mississippi R. R. v. Byington, 14 Iowa, 572, § 329. V. Devaney, 42 Miss. 555, §§ 58a, 59. V. Rosseau, 8 Iowa, 373, § 109. Missouri R. R. v. Haines, 10 Kan. 439, § 216. V. Owen, 8 Kan. 409, §§ 77, 146, 165, 172, 175. V. Ward, 10 Kan. 352, § 90. Missouri Pacific Ry. v. Carter, 85 Mo. 448, §§ 92, 115. B. Hays, 15 Neb. 224, §§ 153, 216, 239o. V. Coon, 15 Neb. 232, §§ 169, 239a. Mitcliell V. Bass, 33 Texas, 259, § 61. V. Bridgewater, 10 Cusli. 411, § 251. Mitcliell V. Harmony, 13 How. 115, § 3. V. Illinois R. R., 68 111. 286, §§ 91, 136. V. Rome, 49 Ga. 19, § 195. ». Tliornton, 21 Gratt. 164, §§ 158, 2*2. V. Turnpike Co., 2 Humpli. 456, § 87. Mix V. Lafayette R. R., 67 111. 319, §§ 167, 173, 180. Moale •«. Baltimore, 5 Md. 314, §§ 2, 170, 22-5. Mobile V. Yuille, 3 Ala. (n. s.) 140, § 9- Mobile County v. Kimball, 102 U. S. 691, § 2. Moblev V. Breed, 48 Ga. 44, §§ 89, 101. Mohawk Bridge v. Utica R. R., 6 Paige, 554, §§ 39, 115. Mohawk R. R. v. Artcher, 6 Paige, 83, § S3. Molett V. Keenan, 22 Ala. 484, §§ 95, 250, 251. Moll V. Benckler, 30 Wis. 584, ? 279. Mollandin v. Union Pac. Ry., 14 Fed. Rep. 394, § 204a. Monagle v. Bristol, 8 Cush. 360, §§ 330, 344. Monongahela Nav. Co. v. Coon, 6 Pa. 379, §§ 61, 194. Monongahela Nav. Co. v. Coons, 6 Watts & S. 101, § 38. Monson Mfg. Co. v. Fuller, 15 Pick. 554, § 298. Montolair R. R. v. Benson, 36 N. J. L. 557, § 170. Montgomery R. R. v. Varner, 19 Ala. 185, §§ 164, 165. V. Sayre, 72 Ala. 443, §§ 91, 322. V. Walton, 14 Ala. 207, § 147. Montmorency Road v. Rock, 41 Ind. 264, § 212. V. Stockton, 43 Ind. 328, §§ 166, 216. Moodv V. Jacksonville R. R., 20 Fla. 697, §§ 2, 14, 60, 61, 84, 131, 136. Moore v. Albany, 98 N. Y. 396, § 185. Moore v. Boston, 8 Cush. 274, §§ 67, 341. V. Great Southern Rail. Co., 10 I. R. C. L. 46, § 207. V. Mayor of New York, 8 N. Y. 110, § 71; 4 Saudf. 456, § 71. V. Atlanta, 70 Ga. 611, § 197. Moorhead v. Little Miami R. R., 17 Ohio, 340, §§ 58, 59. Moran v. McCl earns, 63 Barb. 185, §56. Moran v. Troy, 16 N. Y. Sup. Ct. 540, § 2. Morin v. St. Paul Rv., 30 Minn. 100, §174. Moraan v. Banta, 1 Bibb, 579, § 288. V. Chicago R. R., 36 Mich. 428, §98. V. Des Moines Ry., 64 Iowa, 589, § 204a. V. Kinsr, 35 N. Y. 454, § 81; 18 Barb. 277, § 81. Morris v. Council Bluffs, 67 Iowa, S43, § 197. 1-. Schallsville Branch R. R., 4 Bush, 448, § 120. TABLE OF CASES CITED. Iv TMorris v. Turnpike Road, 6 Bush, 671, § 51. Morris Canal Co. v. Eyerson, 27 N. J. L. 457, § 220. V. Seward, 23 N. J. L. 219, §30. ti.The State, 24 N. J. L. 62, § 43; 14 N.J. L. 411, § 833. V. Townsend, 24 Barb. 658, §§ 60,61. Morris R. R. v. Blair, 9 N. J. Eq. 635, § 47. V. Central R. R., 31 N. J. L. 205, §§ 46, 47, 58a. V. Hudson Tunnel Co., 25 N. J. Eq. 384 §§ 36, 134. V. Newark, 10 N. J. Eq. 352, § 204. Morrison v. Bueksport R. R., 67 Me. 363, § 189. Morse, petitioner, 18 Pick. 443, §§ 112, 338. Morseraan v. Ionia, 32 Micli. 283, § 107. Morss V. Boston R. R., 2 Cush. 536, § 113. Mortimer v. Soutli Wales Rail. Co., 28 L.J. (Q. B.) 129, § 160. Morton v. Franklin Co., 62 Me. 455, tj 308. Moses V. Pittsburgh R. P.., 21 111. 526 §§ 199, 201. Moss V. St. Louis Ry., 85 Mo. 86, §§ 189,216. ■;;. St. Louis Sectional Dock Co., 84 Mo. 242, § 103. Mossman v. Forrest, 27 Ind. 233, § 278. Moulton V. Newburyport Water Co., 137 Mass. 163, §§ 168, 173. Mount Washington Road, 35 N. H. 134, §!^ 1, 14, 18, 91, 128, 132, 166, 191. Mouse's Case, 12 Coke, 62, § 4. Muire v. Falconer, 10 Gratt. 12, §§ 76,97,99. Mulholland v. Des Moines Ry., 64 Iowa, 589, § 2040!. Muller V. Earle, 3 Jones & S. 461, § 68. Munford w. Terry, 2 Car. L. Repos. 308, § 291. Munger v. Tonawanda R. E., 4 N. Y. 349, § 208. Munkwitz v. Chicago Ry., 64 Wis. 403, § 254. Munn V. Tlie People, 69 111. 80, § 9. V. Illinois, 94 IT. S. 113, § 9. Munns v. Isle of Wiaht Rail. Co., 17 W. K. 1081, § 144. Munkers v. Kansas City R. E., 60 Mo. 334, §§ 189, 211. Munson v. Mallory, 36 Conn. 165, §55. Murdock v. Prospect Park R. R., 17 N. Y. Sup. Ct. 598, § 111. Murphy v. Chicago, 29 111. 279, §§ 199, 201, 207. V. DeGroot, 44 Cal. 51, § 135., Murray v. Berkshire, 12 Mete. 455, §34. Mutual Union Tel. Co. v. Katkamp, 103 111. 420, § 165, Myers v. Simms, 4 Iowa, 500, § 202. V. St. Louis, 82 Mo. 367, §; 79. Nadin, ex parte, 17 L. J. (Ch.) 421, §68. Nash CIn re), 25 L. J. (Ch.) 20, § 335. V. Upper Appomattox County, 5 Gratt. 332, §§ 218, 294. Nashville R. R. v. Cowardin, 11 Humph. 348, § 59. Nason v. Woonsocket R. R., 4 E. I. 377, § 180. Natchez E. E. v. Currie, 62 Miss. 506, § 153. National Docks R. R. v. Central E. E., 32 N. J. Eq. 755, § 61. Neal V. Pittsburgh R. R., 31 Pa. 19, § 311; 2 Grant Cas. 137, §315. . V. Knox R. E., 01 Me. 298, § 67. Nebraska R. R. r. Van Deusen; 6 Neb. 160, §§ 136, 322. Neeld's Road, 1 Pa. 353, § 72. Neff V. Cincinnati, 32 Ohio, 215, §§ 92,255. Neilson v. Chicago Ry., 58 Wis. 516, §§ 165, 166, 220, 253, ^ Nelson v. Fleming, 56 Ind. 310 (1877), § 50. V. Vermont Central E. E., 26 Vt. 717, § 7. Nesbitt V. Trumbo, 39 111. 110, § 26. Nevins v. Peoria, 41 111. 502, § 196. Ivi TABLE or CASES CITED. New All)aTiy R. R. v. O'Daily, 13 Ind.353, §61. New Bedford «. Bristol, 9 Gray, 34:6, §313. New Brighton v. Peirsol, 107 Pa. St. 280, § 197. New Britain v. Sargent, 42 Conn. 137, §§ 173, 322. Newby v. Platte County, 25 Mo. 258, §§ 2, 149, 152, 162. Newcastle E. R. v. Brumback, 5 Ind. 643, § 168. V. Peru E. R., 3 Ind. 464, §§ 40, 42, 46. Newcomb v. Smith, 1 Chand. 71, §15. Newell V. Wheeler, 48 N. Y. 486, §84. New Haven v. Sargent, 38 Conn. 50, §54. New Haven Co. v. Northampton, 102 Mass. 116, §§ 333, 336, 338. New Jersey R. R. v. Long Branch Commissioners, 39 N. J. L. 28, §46. V. Sviydam, 17 N. J. L. 25, §§ 245, 333. New Orleans v. Sohr, 16 La. An. 393, § 84. V. United States, 10 Pet. 662, §46. , New Orleans E. R. v. Drake, 60 Miss. 621, §§ 84, 91, 226. New Orleans R. R. v. Frederic, 46 Miss. 1, §§ 65, 103. V. Hemphill, 35 Miss. 17, §§94, 227, 228, 248. V. Jones, 68 Ala. 48, §§ 36, 72. V. Lagarde, 10 La. An. 150, §§130,158. V. Moye, 39 Miss. 374, § 111. • V. Second Municipality, 1 La. An. 128, § 59. V. Zeringue, 23 La. An. 521, §241. New Orleans Telegraph Co. v South- ern Telegraph Co., 53 Ala. 211, §§ 14a, 21, 30, 37. Newport Bridge v. Foote, 9 Bush, 264, § 207. Newport Highway, 48 N. H. 433, §236. New River Co. v. Johnson, 29 L. J. (M. C.) 93, § 81. Newton v. Agricultural Branch K. R., 15 Gray, 27, § 268. Newville Road, 8 Watts, 172, § 111. New York & Boston R. R. (Matter Ol), 62 Barb. 85, §§ 117, 122, New York Central R. R. (Matter of), 11 N. Y. Sup. Gt. 381, §§ 58; 13 N. Y. Sup. Ct. 149, §§ 167, 173; 60 N. Y. 116,"§§76, 138; 64 N. Y. 60, § 232; 66 N. Y. 407, § 11; 20 Barb. 419, §74; 79 N; Y. 248, §§46, 79, 81, 182; 94 N. Y. 287, §§ 138, 322a; 99 N. Y. 338, §322a; 99 N. Y. 12, §§11, 46, 63. New York Rv. (Matter of), 89 N. Y. 453, § 92. New York, etc., E. R. v. Boston R. R., 36 Conn. 196, §§ 40, 42, 58a. V. Forty-second Street R. E., 50 Barb. 309, § 203. V. Gunnison, 8 N. Y. Sup. Ct. Barb. 285, § 39. V. Kip, 46 N. Y. 546, §§48, 49,. 69; 13 N. Y. Sup. Ct. 24, § 49. V. Metropolitan Gas-Light Co., 63 N. Y. 326, §§ 47, 59. V. Stanley's Heirs, 34 N. J. Eq. 56, §§ 113, 144; 35 N. J. Eq. 283, §§ 113, 144, 212. V. Stanley, 39 N. J. Eq. 361, § 159. V. Young, 33 Pa. 175, §§ 38, 39, 60, 62. Ney V. Swinney, 36 Ind. 454, §§ 109, 323, 333. Niagara Co. v. Bachman, 4 Lans. 523, §§ 63, 54. Niagara R. R. u. Hotchkiss, 16 Barb. 270, § 334. Nichols V. Bridgeport, 23 Conn. 189, §§149, 161. V. Salem, 14 Gray, 490, §§ 90, 268. V'. Somerset R. R., 43 Me. 356. § l-'9. Nicholson u.-Stockett, Walk. (Miss.) 67, §51. Niemeyer v. Little Rock Ry., 43 Ark. HI, §§61, 89. Ninth Avenue (Matter of), 45 N. Y, 729, §§ 46, 351. Noble V. Des Moines Ey., 61 Iowa,.. 637, §§ 138, 338. TABLE OF CASES CITED. Ivii Noble St., 1 Ashm. 276, § 76. Nobles V. Langly, 66 N. C. 287, § 56. Nolensville Turnpike v. Baker, 4 Humph. 315, § 3-t. Noll V. Dubuque R. E., 32 Iowa, 66, § 320. Norfleet v. Cromwell, 70 N. 0. 634, §§ 16, 355. Norris v. Clymer, 2 Pa. 277, § 25. V. Philadelphia, 70 Pa. 332, §175. V. Vermont Central R. E., 28 Vt. 99, §§ 81, 110. V. Waco, 67 Tex. 635, § 2. Norristown Turnpike Co. v. Burket, 26 lucl. 53, §§ 90, 91, 161. North Carolina E. R. v. Carolina Central R. R., 83 N. C. 489, §§ 37, 44, 45. North-East R. R. h. Sineath, 8 Rich. L. 185, §212. North Missouri R. R. v. Gott, 25 Mo. 540, §§ 11, 60. V. Lackland, 25Mo. 515, §§311, 322. North Pennsylvania R. R. v. Davis, 26 Pa. 238, §§ 65, 68. North Vernon v. Voegeler, 89 Ind. 77, § 189. Northern Central Coal Co. v. Coal & Iron Co., 37 Md. 537, §§ 10, 11, 28, 323. Northern R. R. v. Concord R, S., 27 N. H. 183, § 45. Northern Pacific R. R. v. Bu'-lington Ry., 4 Fed. Rep. 298, § 90. Northern Transporta'ion Co. v. Chi- cago, 99 TJ. S. 635, §§ 30, 285. Northampton Bridge, 116 Mass. 442, §240. Norton v. Walkill R. R., 61 Barb. 276, § 62. -v. Walkill Valley R. R., 63 Barb. 77, § 103. Noyes v. Chapln, 6 Wend. 461, §§ 110, 111. V. Mason City, 53 Iowa, 418, § 107. Null V. Whitewater Canal Co., 4 Ind. 431, § 341. Nutting V. Page, 4 Gray, 581, § 295. O'Brien v. Norwich R. R., 17 Conn. 372, § 78. Occum Co. V. Sprague Co., 35 Coun. 496, §§ 15, 23, 296. O'Connor v. Pittsburgh, 18 Pa. 187, § 195. V. St. Louis Ey., 66 Iowa, 735, § 206. O'Hara v. Lexington R. R., 1 Dana, 232. § 14. V. Ponnsylvania E. E., 25 Pa. 445, §§ 107, 119. Ohio, etc., R. R. v. Wallace, 14 Pa. 245, § 246. Old Colony R. R. v. Miller, 125 Mass. i, §§ 174, 175. Old Colony E. R. v. Plymouth, 14 Gray, 155, §§ 33, 44, 154. Oliphant v. Commissioners of Atch- i.son County, 18 Kan. 386, §§ 271,346. Olmstead v. Camp, 33 Conn. 532, §§ 13, 15. V. Proprietors of Morris Aque- duct, 46 N. J. L. 495, §§ 18, 54. Omaha R. R. v. Menk, 4 Neb. 21, § 238. V. Gerrard, 17 Neb. 587, § 107. V. Rogers, 16 Neb. 117, § 207. V. TJmstead, 17 Neb. 459, § 92. V. Walker, 17 Neb. 432, §§ 92, 259. O'Reiley w. Draining Co., 32 Ind. 169, §§ 12, 16. Oreffon R. R., v. Bailey, 3 Ore. "164, § 47. V. Barlow, 3 Ore. 311, §§ 90, 92, 163, 220. V. Oregon Nav. Co., 3 Ore. 178,. §§ 105, 254, 259. V. Oregon R. E. Co., 10 Oreg. 444, §§ 22, 24. 107. Oregonian Rv. v. Hill, 9 Ore. 377, §§ 36, 89, 126. Ormerod v. New York E. E., 13Eed. Rep. 370, §§ 78, 353. Orr V. Quimbv, 54 N. H. 690, §§ 21, 126, 127, 347. ' Ortman v. Union Pacific Ey., 32. Kan. 419, § 254. Osborn v. Hart, 24 Wis. 89, § 26. Iviii TABLE OF CASES CITED. Overman 'u. May, 35 Iowa, 89, §§ 51, 52. Overman Mining Co. v. Corcoran, 15 Neb. 147, § 20. Owen V. Jordan, 27 Ala. 608, §§ 250, 255. Owners v. Mayor of Albany, 15 Wend. 37+, §§ 98. 157. Pace V. Freeman, 10 Ired. 103 § 305. Pacific R. R. V. Chrystal, 25 Mo. 544, §§ 152, 162. V. Leavenwortli, 1 Dill. 393, § 204. Pagei). Boston, 106 Mass. 84, § 197. V. Chicago R. R., 70 111. 324, §§ 149, 151, 167. 1). Heineberg, 40 Vt. 81, § 110. Paine v. Boston, 4 Allen, 168, § 170. V. Leicester, 22 Yt.,44, §§ 333. V. Woods, 108 Mass. 160, §§ 294, 300, 301. I Palairet's Appeal, 67 Pa. 479, § 25. Palmor v. Highway Commissioners, 49 Mich. 45, § 251. Palmer ?;. The State, Wright (Ohio) , 364, § 14. Palmer Co. v. Perrill, 17 Pick. 58, §§ 298,299, 300,322. Palmyra v. Morton, 25 Mo. 593, § 149. Pantoii Turnpike v. Bishop, 11 Vt. 198, § 34. Parham v. Justices, 9 Ga. 341. §§ 4, 10, 89, 128, 315. Paris V. Mason, 37 Texas, 447, §§ 90, 149. Parish «. Gilraantou, 11 N. H. 293, §§ 97, 101, 103. Park Commissioners v. Western Union Tel. Co., 103 III. 33, § 61. Parke's Appeal, 64 Pa. 137, § 63. Parker v. Boston R. R. , 3 Cush. 107, §§ 31, 183, 185, 207, 326. V. Cutler Milldam, 20 Me. 353, § 78. V. East Tennessee R. R., 13 Lea 669, § 144. Parker, petitioner, 36 N. H. 84, § 103. Pa,rks V. Boston, 8 Pick. 218, §§ 2J, 333; 15 Pick. 19S, §S 6.5, 69, Parks V. Hampden, 120 Mass. 395, § 153. • i>. Wisconsin R. R., 33 Wis. 413, §§ 165, 166. Parmelee v. Oswego R. R., 7 Barb. 699, § 40. Parnell v. Commissioners, 34 Ala. 278, § 2C9. Parrot v. Cincinnati R. R., 10 Ohio St. 624, § 193, 200. Parsons v. Howe, 41 Me. 218, § 123. Parsons v. Pettlngell, 11 Allen, 507, § 6. Paschall St, {In re), 81 Pa, 118, § 91. Passmore v. Philadelphia E. R., Phila. (C. P.), § 65. Patchen v. Morrison, 3 Vt. 590, § 286. Patchin «. Brooklyn, 2 Wend. 377, §§ 254, 281. Patrick ». Commissioners, 4 McCord, 541, § 1. Patten's Petition, 16 N. H. 277, § 241. Patten v. Northern Central R. R., ' 33 Pa. 426, §§ 166, 193. Patterson v. Baumer, 43 Iowa, 477, § 356. V. Boom Co., 3 Dill. 465, §§ 21, 168, 170, 173, 174, 349. V. Boston, 20 Pick. 159, §§ 69, 70, 192; 23 Pick. 425, §§ 70, 192. V. Chicago R. R., 75 111. 588, §§ 194, 203. Paul V. Detroit, 32 Mich. 108, §§ 26, 49, 85, 91, 255 256. Payne v. Taylor, 3 A. K . Marsh. 328, §288. Peabody v. Sweet, 3 Ind. 514, § 95. Pearce v. Gilmer, 54 111. 2.5, § 284. Pearl St. (Matter of), 19 Wend. 651, §§ 243. 246. Peavev v. Calais R. R., 30 Me. 498, §§ 58a, 62. V. Wolfborough, 37 N. H. 286, §§ 72, 97, 235. Peck V. Smith, 1 Conn. 103, § 56. V. Van Rensselaer, 8 Blackf. 312, § 332. V. Whitney, 6 B. Mon. 117, § 254 TABLK OF CASES CITED. lix Peckbam v. Lebanon, 39 Conn. 231, §279. V. School District, 7 R. I. 545, §§ 17,231. Peddirord v. Baltimore Passenger R. W., 86 Md. 463, § 205. Peirce v. Boston R. E., 141 Mass. 481, §§ 50,59,208. Peirce v. Somersworth, 10 N. H. 3G9, § 34. Pekin v. Brereton, 67 111. 477, §§ 199, 207. V. Winkel, 77 111. 56, § 199. Pell V. Northampton Kail. Co., L. R. 2 Ch. App. 100, § 144. Pence v. St. Paul Ry., 28 Minn. 488, §63. Peninsular R. "W. v. Howard, 20 Mich. 18, § 249. Pennsylvania Canal v. Hill, 6 W. N. C', No. 14 (Pa.), §32. Pennsylvania R. R.'s Appeal, 93 Pa. St. 150, § 42. V. Baltimore R. R., 60 Md. 263, §§ a, 85. Pennsylvania R. R. v. Bruner, 55 Pa. -318, §§115, 119. •». Bunnell, 81 Pa. 414, §§ 159, IBS, 170, V. Eby, 107 Pa. St. 166, § 65. V. Heister, 8 Pa. 445, § 246. V. Keiffer, 22 Pa. 356, §§ 237, 338. V. Lutheran Consn^egation, 63 Pa. 445, §§234, 246. v. New York R. R., 23 N. J. Eg. 157, § 351. V. Porter, 29 Pa. 165, §§ 115, 213. V. Relchert, 58 Md.261, §§ 113, 115. Penny (/ra re), 7 El. & Bl. 660, §§ 182, 333. V- Penny, 37 L. J. (Ch.) 340, §§ 108, 333. V. South-Eastern Rail. Co., 26 L.J. (Q. B.) 225, §l!33. Penrice v. Wallace, 37 Miss. 172, §§ 127, 151. People (The) v. Board of Spring Wells, 12 Mich. 434, § 283. V. Board of Supervisors, 20 Mich. 95, § 318. People V. Bowen, 30 Barb. 24, § 55. V. Brighton, 20 Mich. 57, § 275, V. Brooklyn, 1 Wend. 318, § 312. = V. Burton, 65 N. Y. 452, §§ 97, 333. V. Canal Appraisers, 33 N. Y. 401, § 80. V. Canal Board, 7 Lans. 220, § 333. V. Collins, 19 Wend. 56, § 322. v. Commissioners of Green- bush, 24 Wend. 367, § 324. V. Commissioners of Highways, 57 N. Y. 549, § 121 ; 1 N. Y. Sup. Ct. 193, § 318. V. Commissioners of Milton, 37 N. Y. 360, § 280. V. Commissioners of Nankin, 14 Mich. 528, § 101. V. Commissioners of Palatine, 53 Barb. 70, § 351. ■ V. Common Council, 78 N. Y. 66, §§ 139, 311, 312, 334. v.. Cortelyou, 36 Barb. 164, §§ 269,331. People (The) v. Eldredge, 10 N. Y. Sup. Ct. 541, § 52. V. Eerris, 41 Barb. 121, § 242, V. First Judge, 2 Hill, 308, §§ 251, 333. V. Goodwin, 5 N. Y. 568, § 111. V. Gri=T^•old, 2 N. Y. Sup. Ct. 351, § 31S; 67 N. Y. 59, § 318. • V. Haines, 49 N. Y. 687, § 857. ■ V. Hawley, 3 Mich. 330, § 8. V. Hayden, 6 Hill, 35:1, § 124. V. Hynds, 30 N. Y. 470, § 230. V. Judges Dutchess County, 23 Wend. 360, § 121. V. Kp-t, 27 N. Y. 188, §§ 51, 202,203,205; 3S Barb. 369, § 51. V. Kingman, 24 N. Y. 569, §§ 81, 121, 279, 322. ■ V. Kniskern, 64 N. Y. 52, § 95. V. La Grange, 2 Mich. 187, §§ 98, 145, 175. ■!'. Lake Co., 33 Cal. 487, §§ 85, 331. V. Lawrence, 54 Barb. 689, §§ 57, 333. V. Lowell, 9 Mich. 144, § 145. Ix TABLE OF CASES CITED. People CThe) 11. Mayor of Brooklyn, 4 N. Y. 419, § 2. V. McNeil, 2 N. Y. Sup. Ct. 140, §281. V. McRoberts, 62 111. 38, §§ 91, 136, 388. V. Michisau Southern E. E., 3 Mich. 496, § 144. V. Mott, 9 N. Y. Sup. Ct. 672, § 238. V. Murray, 5 Hill, 468, § 326. V. Wearing, 27 N. Y. 306, §§ 128. 357. V. New York E. E., 45 Barb. 73, §§ i7, 59. V. Osborn, 20 Wend. 186, § 97. V. Eobinson, 29 Barb. 77, §§ 65, 67. V. Scio, 3 Mich. 121, § 145. V. Smith, 21 N. Y. 595, §§ 84, 91. V. Stewart, 41 Barb. 121, § 242. V. Stuart, 97 111. 123, § 91. V. Supervisors, 4 Barb. 64, § 93. V. Supervisors, 19 Wend. 102, § 212. V. Supervisors Allegany Coun- ty, 36 How. Pr. 544, § 95. V. Supervisors Eichmond Co., 20N. Y. 252, § 113. V. Syracuse, 20 How. Pr. 491, §312. V. Tallman, 36 Barb. 222, § 102. V. Taylor, 34 Barb. 481, § 251. V. Third Avenue R. E., 45 Barb. 63, § 36. V. Town of Seward, 27 Barb. 94, §§ 275, 333. V. Tubbs, 59 Barb. 401, § 62. V. Walsh, 96 111. 232, § 111. V. Wasson, 64 N. Y, 167, § 323. V. White, U Barb. 26, § 50; 59 Barb. 666, §241. 1!. Williams, 36 N. Y. 441, § 230. V. Van Alstyne, 3 Keves, 35, ?§ 279, 338; 32 Barb. 131, §§ 279, 322. People's Passenger E. E. v. Mem- phis City E. R., 10 Wall. 38, § 202. Peoria^. Kidder, 26 111. 351, § 149. Peoria R. E. v. Birkett, 62 111. 332, §§ 164, 180, 212, 219, 244, 257. V. Bryant, 67 111. 473, §§ 161, 185, 314. V. Laurie, 63 111. 264, § 16) . V. Eailroad, 66 111. 174, §§ 41, 47, 130. V. Exe, 75 111. 329, § 67. V. Schertz, 84 111. 135, § 90. V. Warner, 61 III. 62, §§ 95, 96. Peoria Ey. v. Peoria E. R., 103 111. 110, §§ 44a, 45, lii4. Perley v. Chandler, 6 Mass. 454', § 56. V. Railroad, 57 N. H. 212, §216. Perrine v. Parr, 22 N. J. L. 356, § •27. Perry v. Sherborn, 11 Gush. 388, §§ 255, 318. V. Webb, 22 La. An. 247, § 29. V. Worcester, 6 Gray, 544, §§ 87, 220. Peters v. Mayor, 15 N. Y. Sup. Ct. 405f § 223. Peterson v. Fereby, 30 Iowa, 327, § 137. Pettibone v. Lacrosse E. E., 14 Wis. 443, § 142. Pettigrew v. Evansville, 25 Wis. 223, § 80. Pettis V. Providence, 11 R. I. 372, §§ 68, 330. Pfeiferi). Sheboygan E. R., 18 Wis. 155, § 144. Pflegar B. Hastings Ey., 28 Minn. 510, § 189. Pfleger {Be), L. E. 6 Eq. 426, § 73. Phifer B. Carolina E. R., 72 N. C. 433, §126. V. Cox, 21 Ohio St. 248, § 63. Philadelphia v. Dyer, 41 Pa. 463, §§ 76, 175. V. Scott, 81 Pa. 80, § 82. Philadelphia R. E.'s Appeal, 102 Pa. St. 123, §§ 40, 60. Philadelphia R. R. v. Johnson, 2 Whart. 275, § 336. V. Philadelphia, 9Phila. 563, §§ 33, 45. V. Cooper, 105 Pa. St. 239, §§ 142, 144. V. Llnnard, 97 Pa. St. 242, § 159. TABLE OF CASES CITED. Ixi Philadelphia R. E. v. Trimble, i Whart. 45, § 215. V. Williams, 54 Pa. 103, §§ 31, 69, 65. V. Reiser, 8 Pa. 3G6, § 1G3. Philadelphia & Trenton E. E., 6 Whart. 25, §§200,202. Philips' Trusts (Be), L. R. 6 Eq. 250, § 73. Phillips V. Council Bluffs, 63 Iowa,. 576, § 197. Phillips V Dunkirk E. E., 78 Pa. 177, §§ 51, 202. V. Pease, 39 Cal. 582, § 175. V. Watson, 63 Iowa, 28, §§ 20, 37, 323. Pick V. Rubicon Co., 27 Wis. 433, §§ 293, 306. Pickert v. Eidgefield Park E. R., 25 N. J. Eq.316, §76. Piokford v. Lynn, 98 Mass. 491, §§ 104, 268. Pierce v. Drew, 136 Mass. 75, §§ 14o, 187, 209. Pierce v. Somersworth, 10 N. H. 369, § 49. V. Worcester E. E., 105 Mass. 199, § 163. Pierpoint v. Harrisville, 9 W. Va. 215, § 90. Pinchin v. London & Blackwall Rail. Co., 5 De G.M. & G. 851, § 30. Pine Grove v. Talcott, 19 "Wall. 666, §!+• Pinkerton v. Boston R. R., 109 Mass. 527, §§ 75, 319. Pinkham v. Chelmsford, 109 Mass. 225, §§ 88, 169, 173, 324. Piper 0. Connersville Turnpike, 12 Ind, 400, § 92. V, Union Pacific E. R., 14 Kan. 568, § 113. Piscataqua Bridge v. N. H. Bridge, 7N. H. 35, §§ 39, 42, 128, 132. Pittsburg R. R., 104 Pa. St. 275, § 193. Pittsburgh v. Scott, 1 Pa. St. 309, § 11. Pittsburgh R. R. v. Bruce, 102 Pa. St. 23, §§ 32, 57. V. Commonwealth, 101 Pa. St. 192, § 36a. Pittsburgh E. R. v. Reich, 101 111. 157,''§§ 158, 207. V. Gilleland, 56 Pa. 445, §§ 216, 220. V. Hall, 25 Pa. 336, § 73. V. Patterson, 107 Pa. St. 461, §§ 159, 170, 173, 191. V. Robinson, 95 Pa. St. 426, §§ 152, 153, 159, 169, 181. V. Rose, 74 Pa. 362, §§ 162, 165, 170, 207. V. Swinney, 97 Ind. 586, § 210. Pitzer V. Williams, i Eob. (Va.) 241, §§ 94, 97. Plainfield v. Packer, 11 Conn. 576, § 274. Plant V. Long Island E. E., 10 Barb. 26, § 192. Piatt u. Bright, 29 N. J. Eq. 128, §§ 65, 74; 31 N.J. Eq. 81, § 74. V. Pennsylvania E. E., — Ohio, — , § 586. Plum V. Morris Canal Co., 10 N. J. Eq. 256, § 195. Plumer v. Warsaw Boom Co., 49 Wis. 449, § 95. Plummer v. Sturtevant, 32 Me. 225, §285. V. Warsaw Boom Co., 49 Wis. 449, § 66. Plymouth v. County Commission- ers, 16 Gray, 341, § 230. Plymouth Eoad, 5 Rawle, 150, § 236. Plympton v. Woburn, 11 Gray, 415, § 180. Pocopson Eoad, 16 Pa. 15, § 375, Point No-Point Road, 2 Serg. & R. 277, § 330. Polack V. Trustees, 48 Cal. 490, §§ • 202, 318. Pollard's Lessee v, Hagan, 3 How. 212, § 347. Pollard V. Ferguson, 1 Litt. 196, §§ 228, 241. • V. Moore, 51 N. H. 188, §§ 309, 312. Polly V. Saratoga R. R., 9 Barb. 449, §§ 36, 97, 98. Pomeroy v. Chicago E. E., 25 Wis. 641, §§ 66, 90. V. Milwaukee R. E., 16 Wis. 640, § 204. Ixii TABLE OF CASES CITED. Porter v. North Missouri E. R., 33 Mo. 128, § 200. Port Huron Ey. v. Voorheis, 50 Mich. 506, §§ 167, 206, 233, 237, 243. Portland v. Lee Sam, 7 Ore. 397, § 224. Portland E. B. v. Commissioners, 64 Me. 694, § 333. V. Commissioners of Yorli County, 65 Me. 292, § 115. Post V. Logan, 1 N. Y. Leg. Obs. 59, § 69. Poston V. Terry, 5 J. J. Marsh. 220, §§ 77, 275. Potter V. Ames, 43 CaL 75, §§ 88, 340. Pott's Appeal, 15 Pa. 414, §§ 119, 241, Pottstown Gas Co. v. Murphy, 39 Pa. 257, § 182. Poughkeepsie E. E. (^In re), 63 Barb. 151, § 179. Powell V. Sammons, 31 Ala. 552, § 85. Powers' Appeal, 29 Mich. 504, §§ 11, 275. Powers V. Armstrong, 19 Ga. 427, § 131., V. Bears, 12 Wis. 213, §§ 15, 85, 126, 130. V. Bergen, 6 N. Y. 358, § 25. V. Hurmert, 51 Mb. 136, § 332. Prather v. Ellison, 10 Ohio, 396, § 53. V. Jeffersonville E. E., »2 Ind. 16, § 586. V. Western Union Tel. Co., 89 Ind. 501, §§ 1, 586, 59. Pre.sbrey v. Old Colony B. B., 103 Mass. 1, §§ 166, 167, 170, 213. President y. Givens, 17 111. 255, § 161. President, etc., of Brooklyn v. Patchen, 8 Wend. 47, § 48. Preston u. Dubuque B. E., 11 Iowa, 15, § 210. Princeton v. Gieske, 93 Ind. 102, § 253. Pritchard v. Atkinson, 3 N. H. 335, § 270. Proprietors of Locks v. Lowell, T Gray, 223, §§ 40, 46. V. Nashua E. E., 104 Mass. 1, ^ 57; 10 Cush. 385, §§ 75, 182, 183, 186, 186, 191, 193, 220. Prospect Park E. R. (Matter of), 67 N. Y. 371, §§ 686, 108; 15 N. Y. Sup. Ct. 30, § 134. V. Williamson, 91 N. Y. 552, §§ 18, 37, 46. Prosser v. Wapello County, 18 Iowa, 327, §§ 36, 165. Protzman v. Indianapolis E. E., 9 Ind. 467, §§ 59, 206. Proud V. Bates, 34 L,.T. (Ch.) 405, § 52. Provolt V. Chicago R. E., 57 Mo. 256, §§ 131, 140, 141 ; 69 Mo. 633, § 63. Providence E. R. v. Norwich E. E., 138 Mass. 297, § 46. Public Highway (Matter of) , 22 N. J. L. 293, § 125. Pueblo R. R. V. Eudd, 5 Col. 270, §§• 239a, 241. Pulling V. London, Chatham, etc., Bail. Co., 4 N. E. 45, 386; 33 L. J. (Ch.) 505, § 120. Pumpellv V. Green Bay Co., 1 3 Wall. 166,"§§ 30, 80. Purdy V. Martin, 31 Mich. 455, § 101. Pusey's Appeal, 83 Pa. 67, § 91. Pusey V. Allegheny, 98 Pa. St. 522, § 111, 204a. Pusey V. Wright, 81 Pa. 387, § 113. Putnam v. Douglas County, 6 Ore- 328, §§ 151, 159. Quayles v. Missouri E. E., 63 Mo. 465, § 230. Quimby u. Vermont Central E. E., 23 Vt. 387, §§ 49, 212. Quincy E. E. v. Kellogg, 54 Mo. 334, §§ 115, 261. V. Eidge, 57 Mo. 599, §§ 152, 243. — — V. Taylor, 43 Mo. 35, § 100. Eadcliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195, § 195. Eader v. Township of Union, 39 N. J. L. 509, § 48. Bailroad Co. v. Boyer, 13 Pa. 497, § 73. V. Bucher, 7 Watts, 33, § 73. TABLE OF CASES CITED. Ixiii Railroad Co. v. Chappell, Rice, 383, §14. u. Foreman, 24 W. Va. 662, §§ 152, 166. V. Gesner, 20 Pa. 240, § 175. V. Gilson, 8 Watts, 243, § 152. V. Halstead, 7 W. Va. 301, §§ 112, 135. y. Hambleton, 40 Ohio St. 496, § 199. V. Leavenworth, 1 DiU. 393, § 202. V. Schurmeir, 7 Wall. 272, §§ 32, 79. ». Tyree, 7 W. Va. 693, §§ 152, 153, 158. Railway Co. v. Tait, 63 Tex. 223, § 189. Raleigh R. R. v. Davis, 2 Dev. & B. 451, §§ 1, 14, 50, 91, 124. V. Wicker, 74 N. C. 220, §§ 158, 162, 166, 189, 198, 212. Ramsdenu. Manchester Rail. Co., 12 Jur. 293, § 30. Raymond u. Countv Commissioners, 63 Me. 110, §251. Rand v. Newton, 6 Allen, 38, § 169. Randall v. Jacksonville St. R. R., 19 Fla. 409, § 205. Rankin v. East & West India Dock Rail. Co., 12 Beav. 298, § 74. Raphael v. Thames Valley Rail. Co., 36 L. J. (.Ch.) 209; 2 Ch. App. 147, §113. Ray c. Atchison R. R., 4 Neb. 439, § 130. Raxedale«. Seip, 32 La. An. 435, § 204a. Read V. Cambridge, 126 Mass. 427, § 74. Read J). Leeds, 19 Conn. 182, § 56. -M.Victoria Rail. Co., 1 N. R. 446; 32 L.J. (Ex.) 167, § 160. Reading v. Sethouse, 93 Pa. St. 400, §§81, 204a. Readington v. Dilley, 24 N. J. L. 209, §§86, 166, 249, 251, 252. Reckner v. Warner, 22 Ohio St. 275, §§ 91, 340. Red River Bridge v. Clarksville, 1 Sneed, 176, § 42. Red River R. R. v. Sture, 32 Minn. 95, § 71. Reddall v. Bryan, 14 Md. 444, § 347. Reddin v. Metropolitan Board of Works 31 L. J. (Ch.) 660, §§ 120, 121. Redman v. Philadelphia R. R., 33 N. J. Eq. 165, §§ 126, 129, 130. Reed v. Brenneman, 72 lud. 289, § 275. Reed v. Chicago Ry., 25 Fed. Rep. §886, §175. Reed v. Hanover Branch R. R., 105 Mass. 303, §§ 65, 75, 175, 248. V. Louisville Bridge, 8 Bush, 69, §69. Rees V. Chicago, 38 111. 322, § 329. Reese v. Addams, 16 Serg. & R. 40, § 76. * Reeves v. Wood Co., 8 Ohio St. 333, §356. Regent's Canal Co. v. Ware, 26 L. J. (Ch.) 566, § 334. Regina ». Berkly, 1 Keny. 99, § 333. V. Board of Health of Halifax, 14 L. T. (N. s.) 447, § 333. V. Brown, 36 L. J. (Q. B.) 322, § 173. V. Bristol Rail. Co., 2 Eng. Rail. Cas. 99, §§ 90, 220. «. Commissioners of Rochdaie Improvement Act, 2 Jur. N. S. (Q. B.) 861, § 311. V. Ea«iton Counties Rail. Co., 2 Q. B. 347, § 199. V. London Rail. Co., 3 El. & Bl. 443, § 160. ». Metropolitan Board, L. R. 4 Q. B. 368, § 206. -V. North Midland Rail. Co., 2 Eng. Rail. Cas. 1, § 81.^ V. North Union Rail. Co. , 1 Eng. Rail. Cas. 729, § 189. V. Rynd, 16 L R. C. L. 29, §§ 79, 182. V. Sheriff, 3 Eng. Rail. Cas. 396, §121. V. Shedffof Middlesex, 5 Q. B. 365; 3 Q. B. 744, § 331. V. Southampton Rail. Co., 10 Ad. &E. 3, §68. 1>. Watertord Rail. Co., 13 I. L. R. 272, §§ 106, 338. Lxiv TABLE OF CASES CITED. Eegina v. Wilts & Berks Canal, 8 Dowl. 623, § 331. Eeisner v. Strong, 24 Kan. 411, § 61. Eeisner D. Uaion Depot Co., 27 Kan. 382, § 586. Reitenbanffht!. Chester E. E.,21 Pa. 100, §§ 107, 246. Remy v. Municipality, 15 La. An. 657, §§ 248, 253, 254. Eensselaer E. E. (Matter of), 4 Paige, 558, § 212. Eensselaer E. H-v. Davis, 43 N. Y. 137, §§ 58, 59; 55 M. Y. 145, § 311. Eenthorp v. Bourg, 4 Mart. (o. s.) 97, § 348. Eentz V. Detroit, 48 Mich. 544, §§ 65, 267. Reock V. Newark, 83 N. J. L. 129, §§ 195, 197. Eepublican Valley R. E. v. Arnold, 13 Neb. 485, §§ 169, 253. Republican Valley R. R. v. Fellers, 16 Neb. 169, §§ 167, 204ffi. Republican Valley R. E. v. Fink, 18 Neb._82, §§ 36, 89, 138. V. Linn, 15 Neb. 234, §§ 162, 168, 167. 1>. Hayes, 13 Neb. 489, § 324. Reserve Township Road, 80 Pa. 165, § 280. Respublica v. Sparhawk. 1 Dall. 383, § 3. Reusch V. Council Bluffs Ry., 57 Iowa, 687, § 21. Eettinger v. Passaic, 45 N. J. L- 146, § 324. Revere v. Boston, 14 Gray, 218, § 340. Rex V. Bristol Dock Co., 12 East, 429, § 79. V. Hungerford Market Co., 5 Ad. &E. 668, § 184. V. Leeds & Selby RaiL Co., 3 Ad. & E. 683, § 217. V. Trustees of Roads, 5 Ad. & E. 663, § 267. Resfordt). Knight, 11 N. Y. 308, §§ 50, 340. Reynolds v. Reynolds, 15 Conn. 83, §26. V. Speers, 1 Stew. 34, § 30. Rheiner v. "Union Depot Co., 31 Minn. 289, §§ 95, 324. Rhine v. McKinney, 53 Tex. 354, § 86. Ehinebeck E. E. (Matter of), 15 N. Y. Sup. Ct. 34, §§ 312, 313; 67 N. Y. 242, § 312. Eice V. Alley, 1 Sneed, 51, § 26. ■ V. Parkman, 16 Mass. 326, § 9. V. Turnpike Co., 7 Daba, 81, § 115. Eich V. Chicago, 59 111. 286, § 85. Eichards v. Des Moines E. E., 18 Iowa, 259, § 143. Eichardson v. Monson, 23 Conn. 94, §9- Biohe V. Bar Harbor Water Co., 75 Me. 91, §§ 18, 84, 98, 115. Bichmond E. E. v. Louisa E. E., 13 How. 71, §§ 39, 42, 45. V. Richmond, 106 tJ. S. 521, § 9. V. Wicker, 13 Gratt. 375, § 120. Eichmond Turnpike v. Eogers, 1 Duv; 135, §§ 38, 39, 166. Rickets v. Metropolitan Rail. Co., 34 L.J. (Q. B.) 257, § 162; L- E. 2 H. L. 175, § 192.- Ridge St. {In re), 29 Pa. 391, § 195. Ridge Turnpike Co. v. Stoever, 6 Watts & S. 378, §55. Eider v. Striker, 63 N. Y. 136, §§ 124,173,223,341. Eigney v. Chicago, 102 111. 64, §§ 204a, 207. Eiker v. Mayor, 3 Daly, 174, § 112. Einard v. Burlington Ey., 66 Iowa, 440, § 207. Eing V. Mississippi Bridge, 57 Mo. 496, § 130. • Eio Grande E. E. v. Brownsville, 45 Texas, 88, §§ 111,115, 20O. Eippe V. Chicago E. E., 22 Minn. 44, § 136; 23'MiuQ. 18, §§ 79, 161, 180. Eising Sun Turnpike v. Hamilton, 60 Ind. 580, § 280. Eiverside Park, in Application of Commissioners of Central Park, 61 Barb. 40, § 51. Eoad Commissioners ^..Fickinger, 51 Pa. 48, § 333. Eoad in Chartiers, 34 Pa. 413, § 252. TABLE OF CASES CITED. Ixv Boad in Lower Merion, 58 Pa. 66, § 278. Kobb V. Maysville Turnpike, 3 Mete. (Ky.) 117, § 168. Eobbins v. Borman, 1 Pick. 122, § 56. V. Milwaukee E.R., 6Wis. 636, §§ 151, 161, 166, 167. Eoberts v. "Williams, 15 Ark. 48, §§ 27, 66, 77; 13 Ark. 355, §§ 229, 240. Hobinson v. Logan, 31 Ohio St. 466, § 2'83. Mathwick, 5 Neb. 352, §§95, 271. V. New York E. E., 27 Barb. 512, §81. V. Robinson, 1 Duv. 162, § 168. V. West Pennsylvania E. E., 72 Pa. 316, § 60. V. Swope, 12 Ky. 21, § 26. Eochester E. E. v. Beckwith, 10 How. Pr. 168, §§ 238, 242, 244. 11. Budlong, 6 How. Pr. 467, §159. Eochester Water Commissioners (Matter of), 66 N. Y. 413, § 47. Eochette v. Chicago Ey., 32 Minn. 201, § 207. Eockford E. K. ■«. Coppinger, 66 HI. 610, §§ 92, 325. V. McKinley, 64 111. 338, §§ 165, 166, 250. V. Schunick, 65 111. 223, § 110. Eock Island E. E. v. Lynch, 23 111. 645, §§ 212, 227. Eodemacher v. Milwaukee E. E., 41 Iowa, 297, §§ 7, 163. Eoehrborn v. Schmidt, 16 Wis. 519, §97. Eogers, e» parte, 7 Cow. 526, § 230. V. Bradshaw, 20 Johns. 735, §§ 14, 51, 64, 124. V. Kennebec E. E., 35 Me. 319, §78. ^. St. Charles, 64 Mo. 229, § 335; 3 Mo. App. 41, §§ 107, 311, 316. Eoll V. Augusta, 34 Ga. 326, § 195. Eome V. Omberg, 28 Ga. 46, § 195. Eondout E. E. v. Deyo, 5 Lans. 298, §§ 169, 180. Eondout E. E. v. Pield, 38 How. Pr. 187, §246. Eonninger v. Simmons, 88 Ind. 453, §§ 4:0, 45. Eooker «. Perkins, 14 Wis. 79, § 295. Boot's Case, 77 Pa. 276, § 149. Rosau. Missouri E. E., 18 Kan. 124, §350. Eoss 13. Adams, 28 N. J. L. 160, § 76. ■». Chicago E. E., 77 111. 127, § 113. V. Clinton, 46 Iowa, 606, §§ 189, 196. V. Davis, 97 Ind. 79, §§ 12, 16, 355. V. Elizabethtown E. E., 20 N. J. L. 230, §§ 65, 76; 2 N. J. Eq. 422, §§ 73, 141. Eossignac St., 4 Eob. (La.) 367, §§ 241, 312. Eossiter v. Eussell, 18 N. H. 73, § 142. Bounds V. Mumford, 2 E. I. 154, § 195. Eowe V. Addison, 34 N. H. 306, §64. 1). Granite Bridge Co., 21 Pick. 344, §§ 81, 220. Rubottomj). McClure, 4 Black! . 505, §130. Eudisill V. The State, 40 Ind. 485, §§ 126, 145. Eugby Charity v. Merri weather, 11 •East, 376re, § 279. Euhland v. Jones, 65 Wis. 674, § 90. V. Supervisors, 56 Wis. 664, §286. Bundle u. Delaware Canal Co., 14 How. 80, §38. Euppert ». C. O. & St. Joe E. E., 43 Iowa, 490, §§ 73, 262. Eusch V. Milwaukee Ey., 54 Wis. 136, § 88, 89, 140. Eush V. McDermott, 60 Cal. 471, §67. Russell V. Mayor of New York, 2 Denio, 461, § 5. V. St. Paul Ey., 33 Minn. 210, §§ 157, 165, 217. V. Turner, 62 Me. 496, § 308. Eyan v. Hoffman, 26 Ohio St. 109, § 145. Ixvi TABLE OP CASES CITED. Kyers (7nj-e),72 N. Y. 1, § 354; 10 Hun, 03, § 854. Eyerson u. Brown, 35 Mich. 333, § 15. Sabin v. Vermont Central R. E., 25 Vt. 363, §§ 186, 216, 220, 222. Sabine v. Johnson, 35 "Wis. 185, § 306. Sacramento E. R. v. Moffatt, 7 Cal. 577, § 77. Sadd V. Maiden Rail. Co., 20 L. J. (Exch.) 102, § 586. Sadler v. Langham, 34 Ala. 311, §§ 10, 12, 15, 26, 27, 287. Sage V. Brooklyn, 89 N. Y. 189, §§ 124, 126, 129, 130. V. Laurain, 19 Mich. 137, §§ 64, 234. Salem Turnpike v. Lyme, 18 Conn. 451, §§ 42, 43. Salisbury Mills v. Forsaith, 57 N. H. 124, § 292. Salt Co. V. Brown, 7 "W. Va. 191, §28. Saltpeter Case, 12 Coke, 13, § 4. Sampson v. Bradford, 6 Cash. 303, § 307. Sams V. Port Royal Ey., 15 S. C. 484, § 66. Sanborn v. Belden, 51 Cal. 266, §§ 126, 136. Sanderson v. Haverstick, 8 Pa. 294, §53. Sandford v. Martin, 31 Iowa, 67, §48. Sandy Lick Eoad, 51 Pa. 94, § 27. San Francisco v. Scott, 4 Cal. 114, §85. V. Water-Works, 48 Cal. 493, §51. San Francisco E. E. v. Caldwell, 31 Cal. 367, §§ 149, 159. V. Mahoney, 29 Cal.' 112, § 160. San Francisco Water Co. i). Ala- meda Water Co., 36 Cal. 639, §47. San Mateo Water-Works v. Sharp- stein, 60 Cal. 284, § 136. Sappington v. Little Rock R. B., 37 Ark. 23, § 110. Sargent v. Machias, 65 Me. 591, §66. Sater v. Burlington B. R., 1 Iowa, 386, §§ 159, 165. Satterfleld, Admrx., v. Crow, 8 B. Mon. 553, § 67. Savannah R. R. -v. Savanaah, 45 Ga. 602, §§ 202, 203, 205. , Sawver v. Keene, 47 N. H. 173, §§ 197, 216. D. Landers, 56 Iowa, 422, § 74. V. Meyer, 45 Iowa, 152, § 318.. Schoff V. Improvement Cp., 57 N. H. 110, §§21, 115. Schattner v. Kansas City, 53 Mo. 162, § 195. Schehi v. Detroit, 45 Mich. 626,, § 26. Schermeely v. Stillwater E. E., 16 Minn. .506, § 113. Schmidt v. Densitore, 42 Mo. 225, §60. Schroeder v. Detroit Ey., 44 Mich. 387, § 61. 'V. De Graff, 28 Minn. 299, §- 148. Schroeder v. De Graff, 28 Minn. 299, § 89. Schuchardt v. New York, 53 N". Y. 202, § 54. Schuler ij.Eailroad, 3 Whart. 555, §- 138. Schumachers. St. Louis, 3 Mo. App. 297, § 197. V. Taberman, 56 Cal. 508, § 74^ Schuylkill Co. v. Decker, 2 Watts^ 343, § 66. V. Farr, 4 Watts & S. 362, §§ 159, 174. V. Freedley, 6 Whart. 109, § 191. V. Kittera, 2 Rawle, 438, § 338. V. Thoburn, 7 Serg. &E. 411, §§ 74, 159, 173, 174. Schurmeier v. St. Paul E. E., 10 Minn. 82, § 204. Scott V. St. Paul E. E., 21 Minn. 322, §§ 166, 175. Scudder v. Trenton Falls Co., 1 N. J. Eq. 694, §§ 15, 61, 91, 141. Searle v. Lackawanna E. R., 33 Pa. 57, § 168. Sears v. Marshalltown St. Ry., 65 Iowa, 742, § 205. TABLE OF CASES CITED. Ixvii Secombe v. Milwaukee R. E., 23 Wall. 108, §§11, 14, 90,323: 2 Dill. 469, § 98. Sedalia^. Missiouri By., 17Mo. App. 105, § 322a. Sedalia Ry. v. Abell, 18 Mo. App. 633, §§ 174,212. Sedgwick v. Watford Rail. Co., 36 L. J. (Gh.) 379, § 144. Seifert v. Brooks, 34 Wis. 443, §§ 95, 328. Selden v. Delaware Canal Co., 24 Barb. 362, §§ 30, 87; 29 N. Y. 634, § 59. SelmaR. R. v. Camp, 45 Ga. 180, §S 161, 191. V. Keith, 53 Ga. 178, §§ 159, 170, 173, 220. V. Red Wiae, 51 Ga. 470, § 166. Senakeru. Justices, 4 Sneed, 116, § 338. Seneca Rd. Co. v. Auburn R. R., 5 Hill, 170, § 32. Senior v. Metropolitan Rail. Co., 32 L. J. (Exch.) 225, § 153. Seventeenth St. (Matter of), ,1 Wend. 262, § 225. Severin v. Cole, 38 Iowa, 463, § 74. Sexton V. New Bridge water, 116 Mass. 200, §§ 153, 168, 169. Shackleford v. Coffey, 4 J. J. Marsh. 40, §291. Shamlefter v. Peerless MUl Co., 18 Kan. 24, § 79. Shane v. Kansas City R. R., 71 Mo. 237, § 189. Sharp V. Johnson, 4 Hill, 92, §§ 103, 267. Shattuck V. StonehamR. R., 6 Allen, 115, §§ 168, 170. V. Waterville, 27 Vt. 600, § 322. V. Wilton R. R., 23 N. H. 269, § 175. Shaver v. Starrett, 4 Ohio St. 494, §§ 12, 27. Shaw V. Charlestown, 2 Gray, 107, § 157; 3 Allen, 538, §319. V. Wells, 5 Cush. 637, § 302. Shawneetown v. Mason, 82 111. 337, §§ 153, 190, 195. Shea V. Potrero R. R., 44 Cal. 414, § 205. Shearer v. Commissioners, 13 Kan 145, § 345. Sheldon v. Minneapolis Ry., 29 Minn.318, §§ 167, 169. Shelton v. Dertiy, 27 Conn. 414, SS 65, 67, 73. Shenandoah R. R. v. Shepherd, 26 W. Va. 692, §§ 152, 173. Shenango R. R. v. Braham, 79 Pa. 447, §§ 159, 173. Shepardson v. Milwaukee R. R., 6 ' Wis. 605, §§ 89, 126. Sherman v. Buick, 32 Cal. 241, 8S 12, 27. V. Milwaukee R. R., 40 Wis. 645, §§ 89, 204. V. St. Paul Ry., 30 Minn. 227, §§ 165, 169, 173, 174. Sherwood v. Lafayette, — Ind. — , §74. V. St. Paul R. E., 21 Minn. 122, §§ 113, 162, 167, 174, 316. Shinkle v. Magill,68 111. 422, SS lOl. 284, 344. Shipley v. Baltimore E. R., 34 Md. 336, § 158. Shippen v. Paul, 31 N. J. Eq. 439, § 34. Shoenberger v. MulhoUan, 8 Pa. 134, § 28. Shough, ex parte, 16 N. J. L. 264, S 230. Shrunk v. Schuylkill Co., 14 Serg. & R. 71, § 80. Shute V. Chicago R. R., 26 111. 436, § 128. V. Decker, 51 Ind. 241, § 278. Sidener v. Essex, 22 Ind. 201, § 159. Sidener u.Norristown Turnpike, 23 Ind. 623, § 90. Sigafoos V. Talbot, 25 Iowa, 214, § 91. Silver Spring Co. v. Wanskuck Co., 13 K. I. 611, § 79. Sinickison v. Johnson, 17 N. J. L. 129, §§ 1, 124, 134. Simmons v. Camden, 26 Ark. 276, § 195. V. St. Paul E. E., 18 Minn. 184, §§ 92, 159, 165, 166, 168. Singleton v. Commissioners, 2 Nott & M. 526, § 27. JXVlll TABLE OF CASES CITED. Sisson V. New Bedford, 137 Mass. 255, § 330. Sioux City R. K. v. Brown, 13 Neb- 317, § 175. Sixth Avenue E. E. v. Kerr, 45 Barb. 138, §§ 39, ii. Skinner v. Hartford Bridge Co., 29 Conn. 523, § '195. V. Lake View Avenue Co., 57 111. 161, §§95, 96, 101. Slatten D.Des Moines E. E., 29 Iowa, 148, §§ 199, 200. Sleight V. Kingston, 18 N. Y. Sup. Ct. 594, §§ 189, 190. Slocumb V. Chicago Ey., 57 Iowa> 675, § 141. Small V. Pennell, 31 Me. 267, § 51. Smart «. Portsmouth E. E., 20 N. H. 233, § 140. Smeaton v. Martin, 57 Wis. 364, §§ 10, 11, 60, 354. Smedleyi;. Erwin, 51 Pa. 445, § 11. Smith Vi Alexander, 24 Ind. 454, §§ 97, 328. V. Applegate, 23 N. J. L. 352, § 24. V. Boston, 7 Cush. 254, § 318 ; 1 Gray, 72, § 330. V. Chicago B. E.,67 111. 191, §§ 87, 89, 90,142; 105111. 511, §§ 58a, 259. V. Connelly, 1 T. B. Mon. 58, § 267. V. Conway, 17 N. H. 586, §§ 24, 49, 237. 1). Duck Pond Ditching Assn., 54 Ind. 235, § 356. V. Ferris, 13 N. Y. Sup. Ct. 553, §§ 66, IIL V. Gould, 59 Wis. 631, §§ 10, 11, 16, 81, 87, 126; 61 Wis. 31, § 81. V. Helmer, 7 Barb. 416, § 124. V. Leavenworth, 15 Kan. 81, § 51. v. Martin, 2 Wms. Saund. 394, § 120. V. Olmstead, 5 Blackf . 37, § 291. V. Point Pleasant E. E., 23 W. Va. 432, § 89. , V. Eochester, 92 N. Y. 463, § 81. Smith V. Eome, 19 Ga. 89, § 53. - — - V. Taylor, 34 Texas, 589, § 322. V. Washington, 20 How. 135, § 195. Snell V. Bridgewater Co., 24 Pick. 296, § 299. Snow V. Boston E. E., 65 Me. 230, §§ 166, 168,254. Snyder v. Pennsylvania E. E., 55 Pa. 340, § 200. V. Plass, 28 N. Y. 465, § 121. ■». Eockport, 6 Ind. 237, §§ 195, 197. V. Trumpbour, 38 N. Y. 355, §§ 100, 121. V. Warford, 11 Mo. 513, § 29. V. Western E. E., 25 Wis. 60, §§ 159, 165. Sohier v. Massachusetts General Hospital, 3 Cush. 496, § 9. Somerville E. E. v. Douglity, 21 N. J. L. 442, §§ 118, 139; 22 N. J. L.495, §§163, 166, 168, 173. Soulard v. St. Louis, 36 Mo. 546, §§ 89, 90. South Carolina E. E., lex parte, 2 Rich L. 434, § 58a. V. Blake, 9 Eioh. L. 228, § 62. V. Steiner, 44 Ga. 546, f§ 32, 193, 207, 266, 266. South Chicago E. E. v. Dix, 109 HI. 237, § 59. South Minnesota E. E. v. Stoddard, 6 Mlun. 150, § 62. South Seventh St. ("Matter of), 48 Barb. 12, §§ 49, 243. South Side B. E. v. Daniel, 20 Gratt. 344, §§ 66, 220. South Wales Co. u. Richards, 6Eng. Rail. Cas. 197, §§ 166, 333. South Wales Rail. Co. {In re), 14 Beav. 418, § 336. Southampton Bridge Co. v. South- ampton, 21 L. J. (Q. B.) 41, § 220. Southern Boulevard, 3 Abb. Pr. (n. S.)447, §§227,269. Southern Pacific E. E. v. Eaymond, 6Kep.708 (Cal.),§ 59. V. Eeed, 41 Cal. 256, §§ 134, 204. V. Wilson, 49 Cal. 396, § 263. TABLE OF CASES CITED. Ixix Southwark E. E. v. Philadelphia, 47 Pa. 314, § 203. South Chicago R. E. v. Dix, 109 111. 237, § 28. South Park Commission&rs v. Todd, 112 111. 379, §§ 74, 76, 161. Southwestern E. E. v. Southern Telegraph Co., 46 Ga.43, §§ 131, 209. Sowlei!. Cosner, 56 Ind. 276, § 324. Spacktoan v. Great Western Eail. Co., 1 Jur. (N. s.) 790, § 121. Spangler's Appeal, 64 Pa. 387, §§ 87, 194. Sparhawki). Walpole, 20 N. H. 317, § 323. Sparrow v. Oxford, Worcester & Wolverhampton E. E., 2 De G. M. &G. 94,,§§30, 121. Spauldlng v. Arlington, 126 Mass. 492, § 93. Spaulding v. Milwaukee Ry., 67 Wis. 304, § 268. gpenceru. Hartford E. E., 10 E. I. 14, § 220. V. Point f Pleasant R. R.,23 W. Va. 406, §§ 203, 204, 204a. Spofford V. Bucksport R. R., 26 Me. 26, § 14. Spring*. Russell, 7 Me. 273, § 87. Spring Garden St., 4 Eawle, 192, § 235. Spring Valley Water-works v. San rrancisco, 23 Cal. 434, § 160. V. San Mateo Water-works, 64 Cal. 123, § 18. Springfield v. Schmook, 68 Mo. 394, §§159, 166, 170. Springfield E. E. v. Hall, 67 111. 99, §§ 84, 93. V. Henry, 44 Ark. 360, §§ 189, ' 221. V. Schmook, 68 Mo. 394, § 168. V. Ehea, 44 Ark. 258, §§ 92, 168, 170, 172, 216, 220, 221, 259. Squiers v. Neenah, 24 Wis. 588, § 111. Squire v. Somerville, 120 Mass. 679, §168. St. Albans v. Seymour, 41 Vt. 579, § 67. St. Anthony Palls Co. v. King Bridae Co., 23 Minn. 186, §§ 54, 60. St. Joseph V. Hamilton, 43 Mo. 282, §311. St. Joseph E. E. v. Callender, 13 Kan. 496, § 143. V. Orr, 8 Kan. 419, §§ 166, 170, 172, 180, 326. St. Julien v. Morgan E. E., 35 La. An. 924, § 140. St. Louis V. Gurno, 12 Mo. 414, §§ ' 195, 196. V. Stern, 3 Mo. App. 48, § 7. St. Louis E. E. V. Almeroth, 62 Mo. 343, § 232. V. Anderson, 39 Ark. 167, §§ 135, 159, 162, 169, 212. — — V. Blind Institution, 43 111. 303, §§ 46, 351. V. Brown, 58 111. 61, §§153, 167. V. Capps, 67 111. 607, §§ 159, 177, 203. V. Evens & Howard Brick Co., 85 Mo. 307, § 138. V. Haller, 82 111. 208, § 170. V. Karnes, 101 111. 402, § 136. V. Kirby, 104 111. 345, § 152. V. Morris, 35 Ark. 622, § 153. V. Mitchell, 47 111. 165, §§ 113, 212, 219. V. Mollett, 59 111. 235, § 216. V. Eichardson, 45 Mo. 466, §§ 152, 243. V. Smith, 42 Ark. 265, § 168. . V. Springfield E.E., 96 111. 274, §44a. V. Teters, 68 111. 144, §§ 161, 163, 163, 312. St. Louis E. E. V. Wilder, 17 Kan. 239, §§ 65, 130, 312. St. Paul E. R. V. Matthews, 16 Minn. 3tl, §§ 77, 161. V. Murphy, 19 Minn. 500, §§ 165, -167, 213, 316. St. Peter v. Denison, 66 N. Y. 416, §§ 60, 186. Stacey v. Vermont Central R. R., 27Vt.39, §311. Stackpole v. Healy, 16 Mass. 33, § 53. Ixx TABLE OF CASES CITED. Stafford v. Mayor of Albany, 7 Johns. 541, § 312; 6 Jolins. 1, §326. V. Providence, 10 E. I. 567, § 178. Stainton v. Metropolitan Board of Works, 26 L. J. (Ch.) 300, § 81. Stamps ■0. Birminfiham Rail. Co., 17 L. J. (Ch.) 431, § 586. Stanford v. Worn, 27Cal. 171, §95. Stange v. Dubuque, 62 Iowa, 303, § 52, 207. Stange v. Street Ry., 54 Iowa, 669, § 204a. Stanley v. Davenport, 54 Iowa, 463, § 204a. Stark ■«. SiouxCitvE. R., 43 Iowa, 501, §§ 62, 211. Starr v. Camden R. R., 24 N. J. L. 592, § 32. V. Rochester, 6 Wend. 664, § 312. State (The) v. Administrator of Public Accounts, 26 La. An. 336, § 317. V. Allen, 8 N. J. L. 301, § 228. V. Anderson, 39 Iowa, 274, § 95. V. Armell, 8 Kan. 288, §§ 586, 222, V. Ayres, 15 N. J. L. 479, § 228. B. Baker, 20 Fla. 616, § 129. ' V. Barnes, 13 N. J. L. 268, § 228. V. Bennett, 25 N. J. L. 329, § 77. V. Berdette, 73Ind. 185, §204a. V. Bergen, 21 N. J. L. 342, §§ 234, 236. V. Blake, 36 N. J. L. 442, § 16. V. Blauvelt, 33 N. J. L. 36, § 77 ; 34 N. J. L. 261 ; §§ 268, 333. V. Bruggerman, 31 Minn. 493, § 126, 129. V. Burnett, 14 N. J. L. 385, § 228. V. Cake, 24 N. J. L. 516, § 268. V. Canterbury, 28 N. H. 195, § 42; 40N. H. 307, § 281. V. Carragau, 36 N. J. L. 52, § 225. State (The) u. Central R. R., 17 Ohio St. 103, § 311. V. Cincinnati R. R., 17 Ohio St. 103, §313. V. City Council, 12 Rich. L. 702, §1- V. Cooper, 23 N. J. L. 381, § 330. V. Crane, 36 N. J. L. 394, § 227. V. Davis, 13 N. J. L. 10, § 228. V. Dawson, 3 Hill (S. C), 100, §§ 1, 125. V. Delesdernier, 11 Me. 473, § 227. 17. Demarest, 32 N. J. L. 528, §2. V. Dickson, 3 Mo. App. 464, § 334. V. Digby, 5 Blackf. 543, § 153. V. Easton R. R., 36 N. J. L. 181, §§ 46, 71, 75, 95. V. Elizabeth, 32 N. J. L. 357, § 100. V. Emmons, 24 N. J. L. 45, § 268. V. Evans, 3 111. 208, §§ 50, 153, 162. V. Everltt, 23 N. J. L. 378, § 330. V. Fischer, 26 N. J. L. 129, § 73. V. Eon du Lac, 42 Wis. 287, §§ 98, 324. V. Garretson, 23 N. J. L. 388, § 65. V. Gill, 84 Mo. 248, § 322a. V. Glen, 7 Jones L. 321, § 81. V. Graves, 19 Md. 351, §§ 149, 311. V. Green, 15 N. J. L. 88, § 228; 18N. J. L. 179, §§278, 333. V. Hewell, 90 N. C. 705, § 51. V. Hotaoken, 35 N. J. L. 205, § 202. V. Hopping, 18 N. J. L. 423, §§ 118, 119. V. Hudson Tunnel Co., 38 N.J. L. 548, §§ 40, 41. V. Hug, 44 Mo. 116, § 311. V. Hnlick, 33 N. J. L. 307, §§ 65, 280, 323. V. Hutchinson, 10 N. J. L. 242, § 228. TABLE OF CASES CITED. Ixxi State (The) v. Jersey City, >25 N. J. L. 309, §§ 95, 227, 233. V. Justice, 24 N. J. L. 413, §§ 234, 236, 243, 322. V. Keokuli, 9 Iowa, 438, §§ 145, 311. V. Langer, 29 Wis. 68, § 97. , V. Laveracli, 34 N. J. L.201, §§ 34, 56. V. Leslie, 30 Minn. 533, § 158. V. Lubke, Judge, 15 Mo. App. V. Mclver, 88 N. C. 686, § 84. V. Maine, 27 Conn. 641, §§ 14, 34. V. Mansfield, 23 N. J. L. 610, § 59. V. Messenger, 27 Minn. 119, §§ 86, 126, 129, 340. V. Miller, 23 N. J. L. 383, §§ 117,234. . V. Mills, 29 Wis. 322, § 293. ■«. Montclair R. W., 35 N. J. L. 328, § 46. V. Northrop, 18 N. J. L. 271, §§ 228, 278. V. Noyes, 47 Me. 189, §§ 38, 39, 43, 46. V. Oliver, 24 N. J. L. 129, § 77. v. Orange, 32 N. J. L. 49, §§ 67, 95. V. Otoe County, 6 Neb. 129, § 101. - — V. Plainfleld, 41 N. J. L. 138, § 107. V. Prine, 25 Iowa, 231, §§ 95, 98. V. Railway Co., 40 Ohio St. 504, § 28. , V. Reed, 38 N. H. 59, § 103. V. Richmond, 26 N. H. 232, §§ 268, 323. V. Rives, 5 Ired. 297, § 60. V. Eunyan, 24 N. J. L. 256, § 66. V. Sargent, 45 Conn. 358, § 79. V. Scott, 9 N. J. L. 17, § 229. V. Seymour, 35 N. J. L. 47, §§ 36, 125, 128, 225. V. Shreeve, 15 N. J. L. 57, § 101. V. Shreve, 4 N. J. L. 297, §§ 228, 230. State (The) v. Smith, 21 N. J. L. 91, § 333. V. Snedelier, 30 N. J. L. 80, § 318. V. Snow, 3 R. I. 64, § 8. V. Stockhouse, 14 S. C. 417, § 27. V. Stites, 13 N. J. L. 172, § 24. V. Stout, 33 N. J. L. 42, § 270. V. St. Louis, 62 Mo. 244, § 161. V. Ten Eyek, 18 N. J. L. 373, § 333. V. Trenton, 36 N. J. L. 79, § 48. V. Troth, 34 N. J. L. 377, § 120. V. Van Buskirk, 21 N. J. L. 86, §278. V. Van Geison, 15 N. J. L. 339, §230. V. Walters, 69 Mo. 463, § 225. V. Wilson, 17 Wis. 687, §§ 146, 251. V. Woodruff, 36 N. J. L. 204. §§ 268, 278, 333. V. Woodward, 9 N. J. L. 21, § 268. Steele v. Midland Rail. Co., L. E. 1 Ch. App. 275, § 120. V. West Lock Nav. Co., 2 Johns. 283, § 216. Stein V. Burden, 24 Ala. 130, §§ 48, 79, 89, 165. Stetson V. Bangor, 60 Me. 313, § 31. V. Chicago R. R., 75 111. 74, §§ 194, 203. Steuart v. Mayor, 7 Md. 500, §§ 36, 91. Steven v. Borough of Danbury, 53 Conn. 9, §§ 41, 169, 311, 313, 336. Stevens v. Duck River Co., 1 Sneed, 237, §§ 254, 265, 312, 313. V. Middlesex Canal, 12 Mass. 466, §§ 64, 87, 88, 124. V. Paterson R. E., 34 N. J. L. 532, § 82. Stewart v. Board of Police, 25 Miss. 479, § 94. V. Hartman, 46 Ind. 331, §§ 26, 29,279. V. Polk County, 30 Iowa, 9, § 14. Ixxii TABLE OF CASES CITED. Stewart B. Raymond E. R., TSmed. & M. 568, § 131. V. Wallis, 30 Barb, 314, § 230. Stickford v. St. Louis, 7 Mo. App. 217, § 197. Stiles V. Middlesex, 8 Vt. 436, § 311. Still, ex parte, 4 Barn. & Adol. 592, § 68. Stinson v. Chicago Ry., 27 Minn. 284, § 170. K. Dunbarton, 46 N. H. 385, § 274. Stockett V. Nicholson, Walk. (Miss.) 75, § 84. Stockport, etc., Rail. Co. (In re), 33 L. J. (Q. B.; 251, § 163. Stockton V. Baltimore R. R., 1 In- ter-state Com. Rep. 411f s. c, 32 Fed. Rep. 9, § 353. Stockton R. R.u. Galgiani, 49 Cal. 139, § 168. V. Stockton, 41 Cal. 147, §§ 10, 13, 14. StodgWU V. Chicago E. R., 43 Iowa, 26, § 216. Stone V. Boston, 2 Mete. 220, § 95. . Commercial Rail. Co., 9 Sim. 621, § 121. V. Fairbury R. R., 68 111. 394,' §§ 193, 199, 203. V. Heath, 135 Mass. 56 § 212. V. Mayor of New Tork, 25 Wend. 157, § 5. Storer v. Hobbs, 62 Me. 144, § 106. Story St. (/a re), — Pa. — , § 225. Stourbridge Canal Co. v. Earl of Dudley, 30 L. J. (Q. B.) 108, § 52. Stowell i;. Flagg, 11 Mass. 364, §§ 292, 297. Strans ^. Beloit E. R., 16 Wis. 635, §§ 117, 227. Street R. W. v. Cumminsville, 14 Ohio St. 524, §§ 205, 206, ,207. v. West Side Ry., 48 Mich. 433, § 200. Striker v. Kelly, 7 Hill, 9, § 149. Strohecker v. Alabama E. R., 42 Ga. 509, § 49. Strong V. Brooklyn, 68 N. Y. 1, § 57. Struthers v. Dunkirk E. E., 7 Cent. L. J. (Pa.) 213, § 200. Stuber's Eoad, 28 Pa. 199, § 317. Sturtevant ». Plymouth, 12 Mete. 7, § 111. Suffield V. Hathaway, 44 Conn. 521, §§ 51,56. Sullivan ». Lafayette Co., 61 Miss. 271, §§ 152, 153, 173. V. Supervisors, 68 Miss. 790, §167. Sumner ■». Commissioners, 37 Me. 112, §§ 115, 277. V. Eichardson Dam. Co., 71 Minn. 106, § 183. Sunbury E. E. v. HummeU, 27 Pa. 99, § 163. Supervisors v. Gorrell, 20 Gratt, 484, §§ 62, 268, 269. V. McFadden, 56 Wis. 618, § 60. Surocco V. Geary, 3 Cal. 69, § 4. Susquehanna Canal Co. v. Wright, 9 Watts &S. 9, § 38. Sutliff 13. Johnson, 17 Neb. 675, § 30. Sutton's Heirs v. Louisville, 5 Dana, 28, §§ 135, 149, 151, 158. Swan V. Middlesex, 101 Mass. 173, §§ 165, 168. V. Williams, 2 Mich. 427, § 14. Sweanyv. U. S., 62 Wis. 396, §§30, 174, 175. Sweet 5). Buffalo, 79 N. Y. 293, §§ 49, 50,84. Swensonu. Lexington, 69 Mo. 167, §§ 189, 200. Symonds v. Cincinnati, 14 Ohio, 147, § 149. Syracuse E. E. (Matter of), 11 N. Y. Sup. Ct. 311, §311. Talbot V. Hudson, 16 Gray, 417, §§ 12, 16, 22, 45, 126. Talbott V. Eichmond E. E., 31 Gratt. 685, § 200. Tammu. Kellogg, 49 Mo. 118, § 146. Tasker v. Small, 7 L. J. (Ch.) 19, §65. Tate v. Missouri E. E., 64 Mo. 149, §§ 165, 169, 200, 202. V. Ohio R. R., 7 lud. 479, §§ 200, 206. TABLE OP CASES CITED. Ixxiii Taylor (Be), 6 Bng. Eafl. Cas. 741, §75. V. Armstrong, 24 Ark. 102, §§ 51, 56. V. Cedar Rapids R. R., 25 Iowa, 371, § 113. V. Chicago Ry., 63 Wis. 327, § 140. — r- V. Commissioners of Worces- ter, 105 Mass. 225, § 227. V. Hampden, 18 Pick. 309, §§ 67, 98. V. Nasliville R. E., 6 Coldw. 646, §3. Taylor v. New York R. R., 38 N. J. L. 28, § 210. V. Plymouth, 8 Mete. 462, §§ 4,5. V. Porter, 4 Hill, 140, § 26. V. St. Louis, 14 Mo. 20, § 195. Teese, ex parte, 4Pa. 69, § 344. Teick V. Commissioners, 11 Minn. 292, § 116. Telegraph Co. v. Rich, 19 Kan. 517, §§ 59, 209. Telephone Telegraph Co. v. Forke, 2Tex. App. 367, §§ 14a, 167. Ten Brooke v. Jahke, 77 Pa. 392, § 66. Ten Eyck v. Delaware Canal, 18 N. J. L. 200, § 80. Tennessee R. R. v. Love, 3 Head, 63, § 65. Terre Haute v. Turner, 36 Tnd. 522, § 197. Terre Haute R. R. v. Crawford, 100 Ind. 550, § 138. Terre Haute R. R. v. McKinley, 33 Ind. 274, § 220. Terre Haute R. R. v. Scott, 74 Ind. 29, §§ 51, 105, 142. Terry v. Hartford, 39 Conn. 286, § i52'. Texas R. R. v. Parrell, 60 Texas, 267, § 142. Texas R. r! v. Sutor, 59 Texas, 29, § Ill- Texas Ry. V. Eddy, 42 Ark. 527, §§ 172, 259. Texas Ry. u. Kirby, 44 Ark. 103, §§ 66, 169. Texas R. R. v. Mathews, 60 Texas, 215, §§ 174, 223. Texas Ry. v. Cella, 42 Ark. 528, §§^ 174, 175, 212. Texas Pacific Ry. ■». Eosedale St. Ry., 64 Texas, 80, § 206. Texas Ry. v. Sutton, 56 Texas, 496, § 110. Thacheri). Dartmouth Bridge Co., 18 Pick. 501, §§ 48, 128. Tharp v. Witham, 65 Iowa, 566, § 91. Thayer v. County Commissioners, 10 Cush. 161, § 324. Thetford v. Kilburn, 36 Vt. 179, §• 264. Thomas v. Pord, 63 Md. 346, § 51. Thompson v. Androscoggin Im- provement Co., 54 N. H. 545, §§ 80, 184, 191; 58 N. H. 108, § 80. ■». Conway, 53 N. H. 622, §J 234, 246. V. Grand Gulf R. R. 3 How. (Miss.) 240, § 131. V. Keokuk, 61 Iowa, 187, § 254. Thorn i;. Sweeney, 12 Nev. 251, §§■ ■ 18, 90. Thorndike v. Norfolk, 117 Mass- 566, § 325. Thorpe v. Rutland R. R., 27 Vt. 140, §§ 7, 43. Thursion v. Hancock, 12 Mass. 220, § 181. V. Portland, 63 Me. 149, § 160. V. St. Joseph, 51 Mo. 610, & 196. Tide- Water Co. v. Archer, 9 Gill & J. 479, §§ 60, 76, 159, 253. V. Coster, 18 N. J. Eq. 54, 518,. §§ 16, 149. Tifft V. Buffalo, 82 N. Y. 204, § 50. Tileston v. Brookline, 134 Mass. 438, § 340. Tingley v. Providence, 8 R. I. 493, §§ 152, 165; 9R. I. 388, §97. Tinicum Co. v. Carter, 61 Pa. 21, §^ 80; 90Pa. St. 86,§187. Tinsman v. Belvidere R. R., 26 N. J. L. 148, §§61, 81. Tipton V. Miller, 3 Yerg. 423, §§ 20, 248. Titusville R. R. v. Warren R. R. — Pa. — , § 47. Todd V. Austin, 34 Conn. 78, § 1, 23, 108. Ixxiv TABLE or CASES CITED. Todd V. Kankakee R. R., 78 111. 530, ) Trenton Water Co. v. Chambers, 13 , §§ 153, 158. V. Todd, 10 N. Y. Sup. Ct. 298, §230. Todemier i>. Aspinwall, 43 111. 401, §§71,116. Toledo R. R. v. Daniels, 16 Ohio St. 390, § 68a. V. Datst, 61 111. 231, § 143. r.'Dunlap, 47 Mich. 456, §§ 63, 71, 85, 138. V. Green, 67111. 199, §208. Tomlin v. Dubuque R. R., 32 Iowa, 106, §-82. Tomlinson v. Wallace, 16 Wis. 224, §343. Tompkins v. Augusta R. R., 21 S. C. 420, §§ 65, 142, 326. Tompkins v. Hodgson, 9 N. Y. Sup. Ct. 146, § 55. Toney v. Johnson, 26 Ind. 382, §§ 87, 291. Tonica R. R.'B. Unsrcker, 22111. 221, §§ 162, 166, 212. Towanda Bridge Co. ,91 Pa. St. 216, §§14,42,91. Towamencin Road, 10 Pa. 195, § 241. Tower v. Pittstick, 55111. 116, § 117. Towle V. Eastern R. R., 17 N. H. 519, § 199. Town V. Faulkner, 56 N. H. 255, § 303. Town of Old Town v. Dooley, 81 111. 256, §§ 61, 56. Town of Wright v. Butler, 64 Mo. 166, § 161. Towns V. Stoddard, 30 N. H. 23, §§ 227, 228. Townsend (Matter of), 39 N. Y. 171, §§ 60, 61, 93, 352. Townsend v. Chicago R R., 91 III. 545, §§216, 243. Townsend II. Hoy le, 20 Conn. 1, § 24. Township Board v. Ilackman, 48 Mo. 243, § 17. Tracy v. Elizahethtown R. R., 80 Ky. 269, §§ 10, 11, 14, 322a. Trabue v. Macklin, 4 B. Mon. 407, § 288. Treat v. Middletown, 8 Conn. 243, §§145,272. N. J. Eq. 199, § 216. Trinity College v. Hartford, 32 Conn. 452, §§ 108, 149, 151. Tripp V. Commissioners, 2 Allen, 556, §§ 261, 255. V. Overaker, 7 Col. 72, §§ 30, 85. Trombley v. Humphrey, 23 Mich. 471, § 347. Trosper v. Commissioners, 27 Kan. 391, § 207. Troy V. Cheshire R. R., 23 N. H. 83, §§ 32, 54, 88. Troy R. R. v. Kane, 16 N. Y. Sup. Ct. 506, § 164. V. Lee, 13 Barb. 169, § 243. V. Northern Turnpike Co., 16 Barb. 100, § 237. V. Potter, 42 Vt. 265, §§ 110, 141, 208. True !). Freeman, 64 Me. 573, §§ 323, 342. Trustees v. Auburn R. R., 3 Hill, 667, § 32. V. Davenport, 7 Iowa, 213, § 137. V. Dennett, 9 N. Y. Sup. Ct. 669, § 83. ' V. Salmond, 11 Me. 109, §§ 41, 99. V. Worcester, 1 Mete. 437, § 77. Trustees of Cincinnati Ry. v. Haas, 42 Ohio St. 239, § 340. Trustees of Emmanuel Hospital v. Metropolitan Rail. Co. 19 L. T. (N. s.) 692, § 227. Tucker (Petition of), 27 N. H. 405, § 333. V. Campbell, 36 Me. 346,;§ 262. V. Eldred, 6 R. I. 404, §§ 51, 52, 63. V. Erie R. R., 27 Pa. 281, §§ 108, 216. V. Tower, 9 Pick. 109, §§ 53, 56, Tuckahoe Canal Co. v. Tuckahoe R. R., 11 Leigh, 42, §§ 39, 42, 4fi. Tufts V. Charleston, 4 Gray, 637, §§ 74, 168. Tunbridge v. Tarbell, 19 Vt. 453, § 92. TABLE OP CASES CITED. Ixxv Tuobey v. Great Southern Rail. Co., 101. R. C. L. 98, §207. Turner v. Dartmouth, 13 Allen, 291, § 189. V. Rising Sun Turnpike, 72 Ind. 5i7, §§-30, 34, 64. V. Sheffield Rail. Co., 3 Eng. Rail. Cas. 222, § 220; 10 Mee. & W. 425, § 220. V. Village of Stanton, 42 Mich. 506, §§92' 271. V. Williams, 10 Wend. 140, §§ 69, 70. Turner v. Whitehouse, 68 Me. 22, § 263, 305. Turnpike Co. v. News Co., 43 N. J. L. 381, §§ 14a, 59. Turnpike Co. ■o. The State, 3 Wall. 210, §39. Turnpike Road «. Brosi, 22 Pa. 29, §§ 66, 68. Twenty-second Street {In re), 102 Pa. St. 108, §§ 37, 40, 42. "Tyler v. Beacher, 44 Vt. 648, §§ 10, 11, 15, 287. V. St. Louis, 56 Mo. 60, § 110. Tyson v. Milwaukee, 50 Wis. 78, § 197. IJnangst's Appeal,, 65 Pa. 128, § 113. Underwood v. Bailey, 59 N. H. 480, §22. Underwood «. North Wayne Co., 41 Me. 291, §291. Union Depot Co. v. Brunswick, 31 Minn. 297, §§ 79, 168, 173. Union Institution for Savings v. Boston, 129 Mass. 82, § 74. Union Canal Co. i^. Stump, —Pa — , § 308. Union Ferry Co. {In re), 98 N. Y., 139, §§11,14. Union R. R. v. Moore, 80 Ind. 458, §§ 165, 166, 169, 170, 173. Union R. W. ■;;. Continental R. W., Phila. (C. P.), § 44. United States (Matter of), 96 N. Y. 227, §§ 124, 126, 347. United States v. Ames, 1 Woodb. & M. 76, § 350. V. Block, 3 Biss. 208, §§ 74, ■347. . V. Chicago, 7 How. 185, § 350. United States v. Fox, 94 U. S. 315, §9. V. Harris, 1 Sumn. 21, § 49. V. Illinois Central R. R., 2 Biss. 174, § 37. V. Jones, 109 U. S. 513,§§ 1, 347. V. Lee, 106 U. S. 220, § 348. V. Railroad Bridge, S McLean, 517, § 350. — - V. Reed, 56 Mo. 665, §§ 107, 347. V. Tract of Land, 47 Cal. 615, §148. Updyke v. Wright, 81 III. 49, § 360. Upham V. Worcester, 113 Mass. 97, §150. Upton V. South Reading R. R., 8 Cush. 600, § 170. Uren v. Walsh, 67 Wis. 98, § 89. UticaR. R. (Matter of), 66 Barb. 456, ,§§ 110, 159, 163, 166. Vailc. Morris R. R., 21 N. J. L. 189, §§ 99, 107, 115, 122. Van Auken v. Commissioners, 27 Mich. 414, §101. Vanblaricum v. The State, 7 Blackf. 209, § 174. Vandegrift v. Delaware R. R., 2 Houst. 287, § 212. Van Home's Lessee v. Dorrance, 2 Dall. 304, §§ 22, 25, 85, 91, 135. Van Riper v. Essex Public Road, 38 N. J. L. 23, § 281. Van Schoick v. Delaware Canal, 20 N. J. L. 249, §§ 216, 219. Van Steenbprgh v. Blgelow, 3 Wend. 42, §§ 230, 2*3, 323. Van Valkenburgh v. Milwaukee, 43 Wis. 574, § 313. Van Vorst, ex parte, 2 N. J. Eq. 292, § 76. Van Wickle v. Camden R. R., 14 N. J. L. 163, §§ 101, 237. Varick v. Smith, 5 Paige, 137, § 23. Varner v. Martin, 21 W. Va. 534, §§ 10, 11, 14, 22, 26, 241. V. St. Louis R. R., 55 Iowa, 677, § 113. Vassalborough (Inhabitants of), 19 Me. 338, § 333. Ixxvi TABLE OF CASES CITED. "Vaugh V. Wetherell, 116 Mass. 138, §307. Vaughan v. Taff Valley Eall. Co., 29 L. J. (Exch.) 2i7, § 163. Vaughn «. Stuzaker, 16 Ind. 338, § 61. Vawter v. Gilliland, 55 lud. 278, § 77. Verdier v. Port Royal Ey., 15 S. C. 476, § 66. Vermilyea v. Chicago Ey., 66 Iowa, '606, § 210. Vermont R. R. v. Baxter, 22 Vt. 365, §§ 60, 123, 222. V. Franklin, 10 Cush. 12, § 214. Vicksburg R. R. v. Calderwood, 15 La. An. 481, §§ 153, 158, 338. Vlele V. Troy R. E., 20 N. Y. 184, § 113. Vilas V. Milwaukee E. E., 15 Wis. 233, § 142. Village of Byron v. Blount, 97 111. 62, §§ 115, 277. Village of Middletown Capplication of), 82 N. Y. 196, §§ 83, 95, 107, 261. Viner v. Hoylake Rail. Co., 17 W. E. 92, § 144. Virginia E. R. v. Elliott, 6 Nev. 358, §§ 62, 168, 243. V. Henry, 8 Nev. 165; §§ 135, 159, 166, 172, 237, 239, 243. V. Lovejoy, 8 Nev. 100, §§ 58a, 228, 230, 239. V. Lynch, 13 Nev. 92, § 206. Voegtly V. Pittsburgh R. E., 2 Grant Cas. 243, § 69. Wabash v. Alber, 88 Ind. 428, § 197. Wabash Canal v. Spears, 16 Ind. 441, §§ 30, 217. Waddell's Appeal, 84 Pa. 90, § 27. Waddell v. Mayor of New York, 8 Barb. 95, § 195. Waddy v. Johnson, 5 Ired. 333, § 292. Wadhams v. Lackawanna R. R., 42 Pa. 303, §§ 109, 136. Wager v. Troy Union E. E., 25 N. Y. 526, §§ 32, 204, 205. Wagner v. Gage County, 3 Neb. 237, - § 158. Wainwright v. Ramsden, 5 Mee. & W. 602, § 69. Wakefield v. Boston E. E., 63 Me. 385, § 254. Walker v. Board of Public Works,. 16 Ohio, 640, § 81. V. Boston, 8 Cush. 279, § 168. V. Boston E. R., 3 Cush. 1, §§ 247, 251, 259, 324. V. Caywood, 31 N. Y. 51, § 34.. V. Chicago R. R., 57 Mo. 276> §140. V. Mad River Co., 8 Ohio, 38, § 62. V. Old Colony R. E., 103 Mass- 10, §§ 167, 189. V. Oxford Woollen Co., 10* Mete. 203, § 307. Wall St. (Matter of), 17 Barb. 617^ §§ 224, 225. Wallace v. Karlenowesfki, 19 Barb^ .118, §§ 1, 125. Walters v. Houck, 7Iowa, 72, §§ 259. Walther v. Warner, 25 Mo. 277, §§ 36, 126, 131. Wamesit Power Co. v. Allen, 120 Mass. 352, § 116. Ward V. Turnpike Co., 6 Ohib St. 15, § 56. V. Union R. E., — lU.— (1887; » §326. Ware v. County Commissioners, 3S Me. 492, § 95. V. Regent's Canal Co., 7 Eng.. Eail. Cas. 780; 23 L.J. (Exch.) 145, §§ 69, 216. Warner v. Doran, 30 Iowa, 521^ §345. V. Railroad Co., 39 Oh. St. 70, §58a. Warren v. Bunnell, 11 Vt. 600, §§ 12, 27. V. Grand Haven, 30 Micb. 24, §55. V. St. Paul E. E., 21 Minn. 424, §§ 174, 175; 18 Minn. 384, §§ 313, 316. Wisconsin Valley E. E., 6 Biss. 425, § 349. Warwick Institute v. City of Provi- dence, —R. I. — , §§ 74, 103. Washburn v. Milwaukee R. E., 59- Wis. 364, «§ 153, 165, 166, 167, 170. 173, 253, 254, 261, 268. TABLE OP CASES CITED. Ixxvii "Washington Cemetery v. Prospect Park R. K., 68 N. Y. 591, § 49. Washington Park, 66 N. Y. 14,5 §§ 312, 313. Washington Park Commissioners, 52N. Y. 131, § 115. Washington E. E. v. Switzer, 26 Gratt. 661, §§ 237, 242. Water Commissioners of Amster- dam, 96 N. Y. 352, §§ 49, 50, 84. Water Commissioners v. Law- rence, 3 Edw. Ch. 552, §§ 50, 153. V. Van Cortlandt, 4 Edw. Ch. 546, § 80. Waters v. Boy View, 61 Wis. 642, § 189. Waterbury v. Dry Dock E. E., 54 Barb. 388, § 47. Waterman v. Connecticut E. E., 30 Vt. 610, §§ 189, 216, 220. Waters v. United States, 4 Ct. of CI. 389, § 3. Waterworks Co. v. Burkhart, 41 Ind. 364, §§ 11, 50. Watkins v. Great Northern Bail. Co., 20 L. J. (Q. B.) 391, § 31. V. New Central E. E., 47 N. Y. 157, § 74. •». Walker County, IS Texas, 585, §§ 127, 128. Watson V. Crowsore, 93 Ind. 220, §§ 152,212. Watson V. Pittsbugh E. E., 37 Pa. 469, §§166, 218. V. Milwaukee Ey., 67 Wis. 332, §§ 175,261,262,263. 1;. South Kingstown, 5 E. I. 562, §§ 24, 229. V. Trustees, 21 Ohio St. 667, § 128. ». Van Meter, 43 Iowa, 76, § 289. Waverly Waterworks Co. (In re), 85N. Y. 478, § 311. Watuppa Eeservoir Co. v. Fall Eiver, 134 Mass. 267, § 83. Weaver's Road, 45 Pa. 405, § 328. Weaver v. Mississippi Boom Co., 28 Minn. 634, § 21, 30, 129. Webb V. Manchester & Leeds EaiL Co., 4 Myl & Cr. 116, § 48. Webber v. Eastern E. E., 2 Mtetc. 147, §§ 163, 165. Weber v. County of Santa Clara, 69 Cal. 265, § 91. Welch V. Chicago Ry., 19 Mo. App. 127, § 340. Weirv. St. Paul E. E., 18 Minn. 165, §§ 11, 14, 61, 91, 94, 152. Weis V. Madison, 75 Ind. 241, §§ 189, 195. Welch V. Milwaukee E. E., 27 Wis. 108, § 167. Welles V. Cowles, 4 Conn. 182, § 67. Wellington, petitioner, 16 Pick. 87, §§ 40, 46, 128, 268. Wells St. V. Somerset R. R., 47 Me. 345, §-120. Wells County Road, 7 Ohio St. 16, §§327,228. Wentworth v. Earmington, 51 N. H. 128, §§ 228, 231. Werges v. St. Louis E. E., 35 La. An. 641, § 204, 204a. Werth V. Springfield, 78 Mo. 107, ' § 204a. West V. Bancroft, 32 Vt. 367, § 55. V. West. E. E. 61 Miss. 536, § 1151. V. Milwaukee Ey., 56 Wis. 318, § 175. West Boston Bridge v. Middlesex, 10 Pick. 270, § 46. West Branch Canal Co. v. Mulliner, 68 Pa. 357, § 181. West Covington v. Ereking, 8 Bush 121, § 52. West Jersey E. E. ■;;. Cape May E. E., 34 N. J. Eq. 164, § 205. West Marvland E. R. v. Owings, 16 Md. 199, § 130. V. Patterson, 37 Md. 125, § 322. West Pennsylvania Inst. v.. Edge- wood E. E., 79 Pa. 257, §§ 10, 11,28. West Pennsylvania E. E. v. Hill, 66 Pa. 460, § 207. V. Johnson, 59 Pa. 290, § 144. West Pikeland Eoad, 63 Pa. 471, § 279. West River Bridge v. Dix, 6 How. 507, §§11,22, 37,41,42,91; 16 Vt 446, § 322. Ixxviii TABLE OF CASES CITED. West Virginia Transp. Co. v. Oil Co., 5 W.Va. 382, §§ 14, 108. '- V. Ohio River Pipe Line Co., 22 W.Va. 600, §§37, 40. Westbrooli v. Nortli, 2 Me. 179, § 51. Western R. R. v. Diclison, 30 Wis. 389, §§ 226, 322. Western Paciflo R. R. v. Reed, 35 Cal. 621, §§ 113, 246. V. Tevis, 41 Cal. 489, § 350. Western Union Tel. Co. v. American Union Teh Co., 65 Ga. 160, § 209. Weston V. Foster, 7 Mete. 297, §§ 208, 262. Wetmore v. Story, 22 Barb. 414, § 203. Weyl V. Sonoma Valley R. R., 69 Cal. 202, § 204a. Wheeler v. Essex Road Board, 39 N. J. L 291, § 126. V. Rochester R. R., 12 Barb. 227, § 214. Whitbeck v. Cook, 15 Johns. 483, §§51,57. Whitcher v. Benton, 48 N. H. 157, §§ 103, 152, 262. White V. Boston R. R., 6 Cush. 420, §§ 113, 172. V. Charlotte R. R., 6 Rich. L. 47, §§ 162, 166. V. Coleman, 6 Gratt. 138, § 338. V. FitohburgR. R., 4 Cush. 440, §170. V. Nashville, 7 Tenn. 518, § 144. V. Norfolk, 2 Cush. 361, §§ 24, 111. «. South Shore R. R. 6 Cush. 412, § 45. V. Wabaah Ry., 64 Iowa, 281, §§ 131, 132. V. Yazoo City, 27 Miss. 357, § 195. White Deer Creek Co. v. Sassaman, 67 Pa. 415, §§ 81, 166. White River Turnpike Co. v. Ver- mont Central R. R., 21 Vt. 590, §§ 39, 41, 42. Whitehead v. Arkansas R. R., 2S Ark. 460, §§ 91, 149. Whitehouse v. Androscoggin R. R., 62 Me. 208, §§ 186, 220. Whiteman's Executors «. Wilming- ton R. R , 2 Harr. 514, §§ 11, 61, 91, 149. Whitewater R. R. v. McClure, 29 Ind. 536, §§ 149, 162, 166, 212. Whitman v. Boston R. R., 7 Allen, 313, §§ 32, 152, 153, 168, 169, 170, 175; 3 Allen, 133, §§ 106, 151, 191. Whitmore v. Smith, 29 L. J. (Exch.) 402, § 237. Whitney u. Boston, 98 Mass. 312, §§■ 152, 169, 173. V. Lynn, 122 Mass. 338, § 313. Whittieer v. Portland R. R., 38 Me. 26, §§ 182, 185, 199. Whittlesey v. Hartford R. R., 23 Conn. 421, § 329. Whitworth v. Puckett, 2 Gratt. 528, §§ 217, 294. Wiggin V. Exeter, 13 N. H. 304, § 280. V. Mayor, 9 Paige, 1 6, § 76. Wilbur V. Taunton, 123 Mass. 522, §• 197. Wilcox V. Oakland, 49 Cal. 29, §■ 160. Wild V. Deig, 43 Ind. 455, § 26. Wilkerson v. Buchanan County, 12 Mo. 328, § 311. Wilkin V. St. Paul R. R., 16 Minn. 271, §§ 98, 180. Willcheck v. Edwards, 42 Mich. 105, 356. Willey V. Epping, 16 N. H. 58, § 319. V. South-Eastern Rail. Co., 18 L. J. (Ch.) 201, § 65. V. Hunter, 57 Vt. 479, § 295. William and Anthony Sts., 19 Wend. 678, §§ 68, 69, 71, 173, 243, 245. Williams, petitioners, 59 Me. 517, § 264. Williams v. Hartford R. R., 13 Conn. 397, §§ 99, 108. V. Natural Bridge Plank Road, 21 Mo. 580, §§ 34, 51, 134, 207. V. New York Central R. R., 16 N. Y. 97, § 32.' TABLE OF CASES CITED. Ixxix ■Williams v. Nelson, 23 Pick. 141, § 290. V. New Orleans K. E., 60 Miss. 689, §§ 130, 311, 313. V. Pittsburgh, 83 Pa. 71, §91. V. School District, 33 Vt. 271, §17. V. Taunton, 126 Mass. 287, § 338. Williamson v. Cass County, 84 111. 361, § 91. V. Hall, 62 Mo. 405, § 37. Willing «. Baltimore R. E., 6 Whart. 460, § 246. Willougbby v. Shipman, 28 Mo. 60, §§ 288, 289. Willson V. Blackbird Creek Marsh Co., 2 Pet. 245, § 16. Willyard v. Hamilton, 7 Ohio, pt. 2, 111, §§ 13, 14, 91. Wilmarth v. Knight, 7 Gray, 294, §§ 295, 308. Wilmesi). Minneapolis Ey.,29 Minn. 242, §§ 30, 167. Wilmington Canal Co. v. Domin- guez, 50 Gal. 505, § 322. Wilmington E. E. v. Condon, 8 Gill. &J. 443, §322. V. Stauffer, 60 Pa. 374, § 163. Wilson V. Des Moines Ey., 67 Iowa, 509, § 162, 163, 221. Wilson V. European E. E., 67 Me. 358, §§ 74, 103. V. Hathaway, 42 Iowa,* 173, §§ 94, 98, 104. V. Lynn, 119 Mass. 174, § 116. V. Mayor of New York, IDenio, 295, § 195. V. Meyers 4 Hawks, 73, § 291. V. EockfordE. E., 59 111. 273, §§ 149, 162. V. Whitsell, 24 Ind. 306, §§ 258, 269, 275. Winchester E. E. o. Washington, 1 Eob. (Va.) 67, § 258. Windham v. Commissioners, 26 Me. 406, §§ 270, 277. Windsor v. Field, 1 Conn. 279, §§ 97, 112, 275, 277. Winebiddle v. Pennsylvania E. E., 2 Grant, 32, § 246. Winklemans v. Des Moines Ey., 62 Iowa, 11, § 167, 169, 216, 242. Winkley v. Salisbury County, 14 Gary, 443, § 292. Winnisimmet Co. v. Grueby, 111 Mass. 543, §§ 92, 170. Winona R. E. v. Denman, 10 Minn. 267, §§ 50, 166, 212, 316. V. Waldron, 11 Minn. 615, §§ 151, 153, 162, 166, 212. Winslow V. Gifeord, 6 Cush. 327, § 36. Winter v. Peterson, 24 N. J. L. 524> §§ 52, 63. Winterbottom v. Earl of Derby, 36 L.' J. (Bxch.) 194, § 206. Withers v. Buckley, 20 How. 84, § 348. Wisconsin E. E. v. Cornell TTniver^ sity, 52 Wis. 537, § 586 ; 49 Wis. 163, § 586, 322a. Wolcott Mfg. Co. V. Upham, 5 Pick. , 292, § 302. Wolfe V. Covington R. E., 15 B. Mon. 404, § 199. Wood V. Commissioners, 62 111. 391, §§ 95, 240. V. Macon E. E., 68 Ga. 539, §§ 45, 46. u. Stourbridge Eall. Co., 16 C. B.(N. s.) 222, § 193. V. Truckee Turnpike Co., 24 Cal. 474, § 14. V. Westborough, 140 Mass.403J §74. Woodfolk's. Nashville E. E., 2 Swan, 422, §§ 135, 151, 158. Woodman v. Commissioners, 24 Me. 151, § 337. Woodring v. Forks Township, 28 Pa. 355, § 56. Woodruff V. Neal, 28 Conn. 165, §§ 52, 53, 56. V. Glendale, 26 Minn. 78, § 126. V. North Bloomfleld Gravel Mining Co., 18 Fed. Eep. 753, § 80. Woods V. Nashua Co., 4 N. H. 527, § 64. Woodstock V. Gallup, 28 Vt. 687, § 18. Woolsey v. Hamilton County, 32 Iowa, 130, §§ 98, 100, 228. Ixxx TABLE OF CASES CITED. Woolsey v. Tompkins, 23 Wend. 324, §§ 230, 284. Wooster v. Great Falls Co., 39 Me. 246, §§291, 292. V. Sugar River K, E. 57 Wis. 311, § 163, 167, 322a. Wooten V. Campbell, 7 Dana, 204, § 289. Wooters v. International E. E., 64 Tex. 294, § 114. "Wootton's Trusts (In re), 7 L. T. (N. s.) 630, § 67. "Worcester Gaslight Co. v. Commis- sioners, 138 Mass. 289, § 36a. "Worcester R. E. v. Eailroad Com- missioners, 118 Mass. 561, §§ 44, 46. Workman v. Mifflin, 30 Pa. 362, § 69. Wright V. Carter, 27 N. L. 76, §§ 34, 65. 17. Pugh, 16 Ind. 106, §§ 288, 289, 303. V. Stowe, i Jones L. 616, § 294. u. Wells, 29 Ind. 354, §§ 100, 101. ' Town of Butler v. Wisconsin E. E., 29 Wis. 341, § 161. Wyman v. Lexington E. E., 18 Mete. 316, §§ 168, 169, 170, 248 V. Mayor of New York, 11 Wend. 487, § 225. Wyoming Coal Co. v. Price, 81 Pa. 156, § 50. Yates !). Milwaukee, 10 Wall. 497, §§ 6, 79, 80. Yost's Report, 17 Pa. 524, §§ 93, 126. Young V. Buckingham, 5 Ohio, 486, §§ 60, 230, 238. Young «. Harrison, 17 Ga. 30, §§ 158, 162, 173, 175. V. Mackenzie, 3 Ga. 31, § 37. V. Price, 2 Munf. 534, § 308. Youngstown v. Moore, 30 Ohio St. 133, §§ 180, 196. Zack V. Pennsylvania E. R., 26 Pa. 394, § 119. Zimmerman v. Union Canal Co., 1 Watts & S. 346, §§ 66, 80, ■y.'Canfield, 42 Ohio St. 463, § 96, 126. EMINEI^T DOMAIN. CHAPTEE I. DEFINITIONS. § 1. Definitions and sources of power. 2. Distinction between tlie power of eminent domain and that of taxa- tion. 3. Taking by virtue of tlie war-power. 4. Taking by virtue of overruling necessity. 5. Destruction of buildings to prevent the spread of conflagration. 6. Condemnation of property as a nuisance. 7. Interference with property by the police power. 8. Forfeiture for violation of law. 9. Regulation of the use of private property. § 1. Definitions and sources of power. — Eminent do- main, or the power of the sovereign to condemn private property for public use, has been recognized and treated of by jui'ists for centuries. The commentators on the civil law treat it as an established power of long standing. Puffendorf calls it the " exercise of transcendental pro- priety; " as if the sovereign thereby resumed possession of that which had been previously granted to the subject upon the condition that it might be again resumed to meet the necessities of the sovereign.^ The seizure of private prop- erty in time of war to answer the military necessities of the sovereign, qml the imposition of uniform contributions from the subject, in the shape of taxation, are coordinate powers, and do not require a return or compensation to the subject. As a general rule, any contribution raade by a subject to a sovereign, greater than his quota or propor- tion, requires compeBsation to the subject.^ The Civil Code of France'* rccujuizos the necessity of just compensa- tion, and the annals of all nations enjoying a constitutional government, and of many despotic nations, show that the a 81 § 2 DEFINITIONS. moral sense of mankind requires such compensation.* la the United States this right of the subject is secured by the Federal Constitution, and by a separate clause in the bill of rights of almost every state in the Union. In the ab- sence of provisions in the constitutions, the courts iiavs considered that the principle was so universal ^ and fmida« mental that laws not recognizing theright of the subjeefi CO compensation would be void.* The constitutions of ths states do not confer upon the legislatures the power of em!= nent domain, but they recognize its existence and attach conditions upon the exercise of the power.* It is an inci- dent of sovereignty and requires no constitutional recogni- tion.' The right existed prior to constitutions.^ It is inherent in the state and belongs to every independent government.' It is in the nature of a compulsory purchase of the property of a citizen for the purpose of applying it. to public use.^" 1 Puffendorf, b. 8, c. 5, § 3 ; Fletcher v. Peck, 6 Cranch, 87. 2 Puffendorf, b. 8, c. 3. 3 Art: 545 : " No one can be compelled to give up his property, except, for the public use, and for a just and previous Indemnity." * Binney's Case, 2 Bland, 99. 5 Mount Washington Road, 35 N. H. 134; Bradshaw u. Rogers, 20> ' Johns. 103; Gardner ^. Newburgh, 2 Johns. Ch. 162; Sinnickson d. John- son, 17 N. J. L. 129; Harness v. Chesapeake Canal Co., 1 Md. Ch. 248; Hamilton «. Annapolis R. R., 1 Md. Ch. 107; Freedle v. North Carolina R. R.,4 Jones L. 89; Raleigh R. R. v. Davis, 2 Dev. & B. 451. The only- cases doubting this proposition are in South Carolina. The State v. City Council, 12 Rich. L. 702 ; Patrick u. Commissioners, 4 McCord, 541 ; McLauchlin v. Charlotte R. R., 5 Rich. L. 583; The State v. Dawson, 3 Hill (S. C), 100. « Todd V. Austin, 34 Conn. 78 ; Wallace v. Karlenowefski, 19 Barb. 118. ' United States v. Jones, 109 TJ. S. 513. 8 Heyward v. Mayor of New York, 7 N. Y. 314; Brown v. Bcattyj 3-3 Miss. 227; Martin, ex parte, 13 Ark. 198. ° Mineral Range R. R. v. Detroit, 25 Fed. R. 515; Hope v. Norfolk E. R., 79 Va. 283; Alexandria R. R. v. Railroad Co., 75 Va. 780; Prather v. Western Union Tel. Co., 80 Ind. 501, i» Moody V. Jacksonville R. R., 20 Fla. 597. § 2. Distinction between the power of eminent domain and tliat of taxation. — Taxation exacts property from 82 DEFINITIONS. § 3 individuals as their respective shares of contribution to a public burden. Private property taken by the power of eminent domain is not taken as the ovyner's share of such a contribution, but as so much beyond it. Taxation oper- ates upon a class of persons and things, and by some rule of apportionment. The exercise of eminent domain oper- ates on individual persons and things, and without any reference to what is exacted from others.^ Local assess- ments for water rates or benefits,^ or to pay subscriptions to railroads,' are not properly in the exercise of eminent domain, but of the power of taxation. Taxation to raise bounty for soldiers is not a taking of private property for public use,* although levied on a party not subject to draft.^ The taking of money by a tax is not a taking of private property for public use, within the meaning of the consti- tutional provision concerning eminent domain,® and the sale of property for taxes is not by virtue of that power.^ Nor is the issue of bonds for the purpose of making public improvements a taking of private property for public use and such issue is not invalid.* 1 The People v. Mayor of Brooklyn, 4N. Y. 419; Newbyw. Platte Coun- ty, 25 Mo. 258; Gilman v. Sheboygan, 2 Black, 510; Booth v. Woodbury, 32 Conn. 118; Hammett u. Philadelphia, 65 Pa. St. 146; Moalei). Baltimore, 5 Md. 314; Aurora v. West, 9 Ind. 74; Emery v. San Trancisco Gas Co., 28Cal. 345; Mobile County «. Kimball, 102 U. S. 691; Norris v. Waco, 57i Tex. 635. 2 Allen D. Drew, 44 Vt. 174; Lexington v. McQuillan's Heirs, 9 Dana, 513; Chambers v. Satterlee, 40 Cal. 497; Emery i). San Francisco Gas Co., 28 Cal. 345; Moran v. Troy, 16 N. T. Sup. Ct. 540; Palmer v. Way, 6 Col. 106. 3- Grant u. Courter, 24 Barb. 232. * Booth V. Woodbury, 32 Conn. 118. 5 The State v. Demarest, 32 N. J. L. 528. 6 Emery v. San Prancisco Gas. Co., 28 Cal. 345; Martin ■«. Dix, 52 Miss. 53. ' Griffin u.Dogan, 48 Miss. 11; Norris u. Waco, 57 Tex. 635. 8 Mobile Co. v. Kimball, 102 TJ. S. 691. § 3. Taking by virtue of the war power.^ — The state is not oblio-ed to make compensation for damages done to its citizens by its own troops in time of war, although done 83" § 3 DEFINITIONS. wantonly and without authority, or for damages caused by the occupation of the enemy. The destruction of crops or supplies, to prevent their falling into the hands of the enemy, is supported on the grounds of the public safety.'^ By the strict rules of international law, the property of citizens, found in the enemy's lines, may be taken by the state without liability for compensation. This power will not justify an officer of the volunteer militia in ordering an encampment of militia on a man's laud without his consent, such act in time of peace being atrespass,^ or of impressing provisions for the purpose of sending the same to the armies in the field, there being no immediate urgency.* Private property impressed by virtue of the war-power is not controlled by the constitutional provisions in relation to eminent domain, and does not revert to the owner, although existing in specie, after the wav.^ The Supreme Court of Kentucky ^ has held, but without good reason, that the emancipation of the slaves, during the civil war, was an exercise of the power of eminent domain, requiring compensation to the owners of the slaves. The Federal government, in the kite civil war, mitigated the harshness of the ancient rule by legislation. Com- pensation has been generally provided for property taken or occupied in the loyal states during the war. When land was entered upon and occupied, the occupa- tion was considered to be under an implied lease, at a reasonable rental, which was determined by an appraise- ment.' ■■ For a valuable series of articles on the war power of the State, and the distinctions between the powers of eminent domain and the war power for military purposes, see 13 Am. L. Reg. 265, 337, 401. 2 Bospublica v. Sparhawli, 1 Dall. 383. ■'' Brigham v. Edmands, 7 Gray, 359. ■* Cunninghard v. Campbell, 33 Ga. G25; Cox v. Cummings, 33 Ga. 649 See, also, Mitchell v. Harmony, 13 How. 115. s Taylor v. Nashville E. R., 6 Coldw. 646. « Corbin v. Marsh, 2 Duv. 193. ' Johnson v. United States, 4 Ct. of CI. 248; Waters v. United States, 4 Ct. of.Cl. 389. 84 DEFINITIONS. §§ 4, 5 § 4. Taking by virtue of overruling necessity. — An- other power of the state by which private property is taken or injured, where no compensation is provided to the owner, is that of a taking by virtue of overruling necessity. Exigencies arise which no law has anticipated, and which cannot await the action of the legislature.^ Property may be de troyed to make bulwarks against floods, and houses may be razed to prevent the spreading of fire, because for the public goocl.^ A destruction of a building not on fire, to prevent the spreading of fire is not a taking of the prop- erty for public use. ^ The common law protected individuals, on the ground of overruling necessity, from acts which would otherwise have been trespass. If a road be founder- ous, a passenger may lawfully go through a private enclos- ure.* So if a man is assaulted, he may fly through another's close.* 1 Parham v. Justices, 9 Ga. 341 ; Hale v. Lawrence, 23 N. J. L. 605 ; Keller v. Corpus Christi, 50 Tex. GU. 2 Saltpeter Case, 12 Coke, IS ; Mouse's Case, 12 Coke, 62 ; Taylor v. Ply- mouth, 8 Mete. 462; Mayor of New York v. Lord, 18 Wend. 126; s. c, 17 Wend. 285; Field i;. Des Moines, 39 Iowa, 675; Surocco v. Geary, 3 Cal. 69; McDonald v. Red Wing, 13 Minn. 38. 3 McDonald v. Red Wing, 13 Minn. 38. * 2 Bla. Com. 36, note by Christian. . = Bac. Abr. 173. § 5. Destruction of buildings to prevent the spread, of 'a conflagration. — By the common law, the actors in de- stroying buildings were liable for an injudicious exercise of the right, and in order to prevent a failure to exercise promptness and vigor in time of such emergencies, on ac- count of reluctance of individuals to assume the risk, statutes have been passed in several of the states giving authority to certain ofBcials to exercise the right. Com- pensation has also been provided to owners for the de- struction of their property. These statutes are considered as giving a right where otherwise there was none, and, being in derogation of the common law, have been strictly construed.^ So strict was the construction in New York, 85 § 6 DEFINITIONS. that compensation was refused to the owner of merchandise within the buildings destroyed, because the statute only- provided for compensation for buildings destroyed or in- jured.^ The Massachusetts statute required that the effort should be the means of stopping the fire, and that ■«»"c6Yn- pensation should be allowed when the house was partly burnt, and would have been destroyed in any event.' In- dependently of above statutes, an officer directing the destruction of the buildings under such circumstances would be justified if the exercise was necessary and judicious, * and the owner of the property so destroyed would be without remedy.* There is, however, a distinction to be made between the exercise of the power of eminent domain and the destruc- tion of property to meet an impending danger of spread of fire. The former can await the slow process of law, but the latter is governed by necessity in which delay may be certain destruction.^ 1 Taylor v. Plymouth, 8 Mete. 462; Mayor of New York v. Lord, 18 Wend. 126. 2 Eussell V. Mayor of New York, 2 Denio, 461; Stone v. Mayor of New York, 26 Wend. 157, qualifying Mayor of New York v. Lord, 17 Wend. 285. 3 Taylor's. Plymouth, 8 Mete. 462; Parsons v. Pettingell, 11 Allen, 607. * American Print Works v. Lawrence, 23 N. J. L. 590; where a citizen of New Jersey endeavored to hold the Mayor of New York personally lia- ble for destruction of his property in New YoKk, which had been destroyed" under the direction of the Mayor. 5 Bowditch V. City of Boston, 101 U. S. 16 ; Keller v. Corpus Christi, 60 Tex. 614. 6 Keller v. Corpus Christi, 50 Tex. 614. § 6. Condemnation of property as a nuisance. — A nuisance, whether public or private, maybe abated without compensation to the owner of the property interfered with. Whether or not certain property, or the use of it, consti- tutes a nuisance, cannot arbitrarily be determined by the legislative branch of the government, unless the property in fact has that character. To allow that question to be determined by the legislature would place every house, 86 DEFINITIONS. § 7 "business, and all property at the uncontrolled will of legis- lative bodies.^ The* public cannot make changes which will -cause private property to become a nuisance, — as, by ob- structing a stream, — and then declare the property a nui- sance, so as to require its removal without compensation.^ The object of the interference must be the preservation of the public health, or the interference will not be supported. 'A burying-ground may be condemned as a nuisance, but a law cannot be passed forbidding the burial of a certain ■class of people in the burying-ground, while another class is still allowed to be buried there. Such a law plainly indi- cates that the burying-ground is not such a nuisance as requires abating.* A law limiting the distance within which burying-grounds may not be laid out is a special restriction on the right of eminent domain.* The fact that the lots belong to individuals, and have been used for burial pur- poses for over a hundred years, does not create any additional right in the owner, or make the condemnation as a nuisance a taking by eminent domain," In Massa- chusetts a city may be compelled to take lands in order to abate a nuisance by filling,^ and the owner may elect whether to pay the expense of filling or surrender the property to the city at a fair compensation.' 1 Yates V. Milwaukee, 10 Wall. 497. » Chicago V. Laflin, 49 111. 172. ' Austin V. Murray, 16 Pick. 121. * Carter v. Moulton, 58 N. H. 64. 6 Coates V. Mayor of New York, 7 Cow. 585. ^ Famsworth v. Boston, 126 Mass. 1. ' Bancroft v. Cambridge, 126 Mass. 438. § 7. Interference with property by the police power. — Property may be taken or its use interfered with by the state, without compensation, by exercise of the police power of the state. Regulations which tend to benefit the public health, to remove causes of disease or public discom- fort, are legitimate exercises of this power. The owner of property may be restrained from a noxious use of his prop- «rty, and there can be no claim for damages for being com- 87 5 7 DEFINITIONS. pelled to render obedience to such regulations,' and suck restraint is not a taking of the property^. • There can never be any necessity for permanently appropriating land without, compensation by the exercise of the police power ; the property may be temporarily interfered with or appropri- ated ; but the power ceases with the necessity of its exer- cise. The owner is restrained, not because the public hav^ occasion to make the like use, or any use of the property, oi* to take an}' benefit or profit f i-om it, biit because the use is noxious to the public. It is not an appropriation to the public use, but the restraining of an injurious private use by the owner. ^ No compensation is provided, as the owner is presumed to be compensa ted by his share in the advantages arising from such beneficial regulations.^ While it is proper to control property so as to secure the public health, it is not proper to impress property for use as hos- pitals, or pest houses, without compensation.* The police power maybe exercised to prevent the spread of disease by disinfecting property and destroying infected clothing, but cannot justify the occupation of a house as a hospital with- out paying for it.^ To compel railroads to erect cattle- guards is an exercise of police power, and not of eminent, domain, as it tends to protect the lives of the traveling public as well as the lives of animals.* Railroads may be made responsible for damages from fire communicated by engines, without impairing the privileges of their charters or taking their property.' The legislature may, by gen- eral laws, make railroad companies responsible for the torts and negligence of companies leasing their roads.^ Owners may be restrained from taking sand and gravel from beaches on their own land because it would endanger the safety of a harbor, from cutting through the embank- ment of a river, or from removing trees which protect the banks of a river .^ A riparian owner may be compelled to keep up a levee to protect the surrounding country from inundation ; and if he refuses, it may be kept up at his ex- 88 DEFINmONS. §§ 8, 9 pense.^" The course of a river may be straightened for the protection of a populous district, although injurious conse- quences may accrue to individuals, and such proceeding is a proper exercise of police power. ^^ As also is the fillii)g of lands to abate a nuisance. ^^ , 1 1 Chicago E. E. v. Joliet K. R., 105 III. 388. 2 The Commonwealth v. Alger, 7 Cash. 63; Baker v. Boston, 12 Pick^ 184; St. Louis v. Stern, 3 Mo. App. 48. 8 Baker v. Boston, 12 Pick. 184. * Dooley v. City of Kansas, 82 Mo. 444. 5 Markham v. Brown, 37 Ga. 277. « Thorpe v. Rutland K. E., 27 Vt. 140. ' Eodemacher v. Milwaukee E. R., 41 Iowa, 297. " Nelson v. Vermont Central E. E., 26 Vt. 717. * The Commonwealth u. Tewksbury, 11 Mete. 55, 1° Bouligny u. Dormenon, 2 Mart. (n. s.) La. 455. u Green v. Swift, 47 Cal. 636. 12 Bancroft v. Cambridge, 126 Mass. 438. § 8 . Forfeiture for violation of lavF. — Property takea and destroyed as forfeited for yiolation of law is not taken for public use, but under a penalty, and hence requires no compensation.^ The forfeiture to the state of the property of a corporation, on account of abuse of charter powers, gives to the corporation no claim for compensation^^ Tools and appliances for iuimoral or criminal purposes are prop- erly forfeited and destroyed. The manufacture and sale of intoxicating liquor may be declared unlawful and the liquor forfeited. The fact that buildings and machinery devoted to the mimufacture of liquor thereby became greatly re- duced in value does not call for compensation to the owner. ^ Regulations are made whereby the weight of a loaf of bread sold by vendors is controlled, and bread short in weight forfeited. For the forfeiture of such •bread the owner has no remedy.* 1 The State v. Snow, 3 E. I. 64. 2 Erie E. E. v. Casey, 26 Pa. 287. ' The People v. Hawley, 3 Mich. 330. * Guillotte V. New Orleans, 12 La. An. 432. § 9 . Kegulatlon of the use of private property. — There seems to be a power in the legislature, other than that of 89 ■§ 9 DEFINITIONS. eminent domain, by which the enjoyment of private prop- erty is controlled without the consent of the owner, and without compensation to him. The legislature may control the management and prescribe rules for the occupation and use of wharves.^ There are regulations for the better and more economical management of the property of adjoining owners, which, for various reasons, may be better managed by joint operation. The legislature may prescribe regula- tions, as to the building of party- walls ,^ division fences and ditches,^ and may provide for the payment to occupying claimants for the improvements which they may have erected believing that they possessed a good title. The laws pro- tecting the equities of occupying claimants have been ex- tended so as to give occupying claimants the option of taking the land without the consent of the owner.* Such an extension of the law seems to present a case where pri- vate property is taken from, one individual and given to another without the owner's consent." The power of the the legislature to enact such laws can hardly be considered as a part of the power of eminent domain, or of the police power, for the reason that it is exercised, in fact, for the benefit of individuals, and as a convenient method of set- tling private disputes.* The Illinois Legislature has made provisions regulating the charges of public elevators, and the Supreme Court of that state has sustained the regulation, arguing that such regulations do not change the title, possession, or use of the warehouse ; that such occupation is a public one, and may be regulated in the same manner as that of hackmen, of ■draymen, and on the same grounds of policy which have sustained laws fixing the price and weight of bread, the rate of interest on money, etc. ; and that such regulations do not amount to a taking of private property for public use.' On appeal, the Supreme Court of the United States ^ affirmed the decision of the court below, Waite, C J., delivering the opinion; Field and Strong, JJ., 90 DEFINITIONS. § 9 dissenting. In the course of the opinion, Waite, C. J., says : — " Statutes regulating the use, or even the price of the Tise, of private property do not necessarily deprive the owner of his property without due process of law." * * * "Property becomes clothed" with a public interest when used in a manner to make it of public consequence, and effect the community at large. When, therefore, one ■devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good. He may withdraw his grant by dis- continuing the use, but so long as he maintains the use he must submit to the control." The states may regulate the tenure of real property with- in their limits, and the modes of its acquisition and transfer and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, and hence may prohibit the devise of real property to corporations.' " Statutes which authorize the sale of land held in joint tenancy, tenancy in common, or coparcenary, whenever partition cannot be conveniently made, are constitutional.^" The legislature may authorize the sale of property in which certain persons have life-estates and others remainders, taking care that the proceeds shall go to trustees for the use and benefit of those having the life-estate and of those having the remainder, as they are entitled under the will. This is depriving no one of his property, but is merely changing real into personal estate, for the benefit of all par- ties in interest." It is unconstitutional to interfere with the use of private property by prohibiting the owners of land within three hundred yards of fair-grounds from opening stables for the purpose of receiving for pay horses, vehicles, «tc., during the continuance of the fair." ^ There is no implied contract in granting a charter that 91 § 9 DEFINITIONS. no change shall be made in the laws then existing which will result in making the use of property more burdensome or less profitable. ^^ 1 Union Ferry Co., In re, 98 N. T. 139. * Hunt u. Armbruster, 17 N. J. Eq. 208; 3 Kent's Com. 438; Hart v. Kucher, 5 Serg. & E. 1. 3 Coster V. Tide-Water Co., 18 N. J. Bq. 54. * Rev. Stat. Mo., §§ 2260-2263. » McCoy V. Grandy, 3 Ohio St. 463. « Harts. Kucher, 5 Serg. & R. 1; Richmond R. R. v. Richmond, 106 U. S. 621. ' Munn V. The People, 69 111. 80. Statutes regulating the weight and price of bread are sustained in Alabama. Mobile v. YuiUe, 3 Ala. (n. s.) 140. Munn V. Illinois, 94 U. S. 113. 9 United States v. Fox, 94 U. S. 315. '^'> Richardson v. Monson, 23 Conn. 94. " Linsley v. Hubbard, 44 Conn. 109 ; Sohier v. Massachusetts Generals Hospital, 8 Cush. 496; Rice v. Parkmari, 16 Mass. 326. '2 The Commonwealth v. Bacon, 13 Ky. 210. "" Drady v. DesMoines R. R., 57 Iowa, 393. ' 92 OF USES CONSIDERED PUBLIC. § 10 CHAPTER II. OF USES CONSIDERED PUBLIC. ^ 10. Whether the use is public — Province of the legislature. 11. The propriety or policy of the condemnation not a judicial question- 12. How many people must use, in order to make the use public. 13. The public need not own nor operate the improvement — Inci- dental private advantage. 14. Means of transportation — Railroads, canals, ferries, roads and bridges. 14a. Public character of telegraph and telephone lines. 15. Public character of mills. 16. Draining of marshes — Reclaiming land. 17. School-houses. 18. Facilities for public health or recreation — Parks — Water-works. 19. Burying-grounds. 20. Encouragement of mines. 21. Improvements unknown to the framers of the Constitution — Mis- cellaneous public uses. § 10. Whether the use is public — Province of the legislature. — The legislature cannot so determine that the use is p«blic as to make the determination conclusive upon the courts. The attempt of the legislature to determine the public character of the use does 'not settle that it has the right to do so, but the existence of the public use in any class of cases is a question to be determined by the courts.^ The presumption is in favor of the public charac- ter of a use declared to be public by the legislature,^ and unless it is seen at the first blush that it is not possible for the use to be public, the courts cannot interfere. The tyrant of the ri De Bual v. Freeport Ey., Ill 111. 499. § 11. The propriety or policy of the condemnatloiiiiot a judicial question. — If the use is certainly a public one, then the legislative authority over the subject cannot be restrained or supervised by the courts. Only when it is plainly perceived that there is an attempt to evade the law ■ind procure the condemnation of property for a private 94 OF USES CONSIDERED PUBLIC. §11- use, or to accomplish an end not public in its character, will tho courts declare the act void ; ^ or if it was doubtful or questionable whether the use was public or not, testimony might be admissible to determine the fact. The legisla- ture is the proper body to determine the necessity of the exercise of the power, and the extent^ to which the exer- cise shall be carried, and there is no restraint upon the power save that requiring that compensation shall be made,*- and no further adjudication is essential unless the constitu- tion of the state expressly requires it.* Parties to the pro- ceedings have no right to be heard on the question or whether the use is a necessary one or not.® As soon as the ~ court has arrived at the conclusion that the use is public, then the judicial function is gone, and there is no restraint on the legislative discretion. The degree of public useful- ness need not be determined by the court,^ or whether the proposed plan will accomplish the end desired.' Statutes palpably improvident and hasty must still be sustained by the courts.^ The particular property needed may be pointed out by the legislature,' and the courts cannot con- sider the question whether or not other land equally feasible can be obtained by purchase,^" and such a determination is not a grant of an exclusive privilege." The question of necessity or propriety may be delegated by the legislature to boards of commissioners or to the courts, ^^ but in the absence of such delegation the legislative determination is conclusive. If conditions are attached, the courts may determine whether they have been observed. The con- demning party cannot decide as to the existence of the necessity or the character of the use." Judge Wood- bury," in the case of West River Bridge v. Dix, seemed to doubt whether pro^Derty which was not absolutely necessary, but only convenient, for public use could be condemned, and indicated that if property could be purchased, it should not be condemned for such purposes as hospitals, court- houses and jails ; but the practice of all the states and of 95 § 11 OF USES CONSIDEEED PUBLIC. the federal government, since that time, in condemning land for such purposes has been so frequent that the legis- lative control over the necessity and the particular location id almost universally conceded. The present New York doctrine is that the court is to determine,, upon the appli- cation by a railroad company to acquire lands, the question of the necessity and extent of the appropriation, and that the land-owner may contest the question. The burden is on the company to show the necessity." The test whether a use is public or not, is not what the condemning party may choose to do, but what under the law it must do, and whether a public trust is imposed upon it." 1 Pittsburgh V. Scott, 1 Pa. St. 309; Varner v. Martin, 21 W. Va. 534 Baltimore R. E. «. Railroad, 17 W. Va. 812; Central R R. v. Pennsylvania R. R., 31 N. J. Eq. 475. 2 North Missouri R. R. v. Gott, 25 Mo. 540; Bonaparte v. Camden R. R., Baldw. 205; Concord E. R. u. Greely, 17 Nj H. 47; Hingham Bridge ti. Norfolk, 6 Allen, 353; Water- Works Co. ii.Burkhart, 41 Ind. 364; Challiss V. Atchison R. R., 16 Kan. 117; Smeaton v. Martin, 57 Wis. 364; Tracy v. Elizabethtown R. E., 80 Ky. 259; Smith v. Gould, 59 Wis. 631; Varner v. Martin, 21 W. Va. 534; Union Ferry Co., matter of, 98 N. Y. 189. 3 County Court of St. Louis County «. Griswold, 58 Mo. 175; Brook- lyn Park ?;. Armstrong, 45 N. Y. 234; Secombe D.Milwaukee R. E., 23 Wall. 108; Weir v. St. Paul E. R., 18 Minn. 155; Dickey v. Tennison, 27 Mo. 373; Tyler v. Beacher, 44 Vt. 648; Haverhill Bridge v. County Com- missioners, 103 Mass. 120; John and Cherry Streets, 19 Wend. 659; Bloodgood «. Mohawk R.R., 18 Wend. 9; Harris d. Thompson, 9 Barb. 350; Beekman v. Saratoga E. R., 3 Paige, 45; Coster ■». Tide- Water Co., 18 N. J. Eq. 54; Whlteman's Executors v. Wilmington R. R., 2 Harr. 514; Northern Central Coal Co. v. Coal and Iron Co., 37 Md. 537; Anderson v, Turbeville, 6 Coldw. 150; Bankhead v. Brown, 25 Iowa, 540; Logansport «. Shirk, 88 Ind. 563; Mayor of Macon u. Harris, 73 Ga. 428; Fosters. Stafford National Bank, 57 Vt. 128. ' Alexandria E. E. v. Eailroad Co., 75 Va. 780. 5 Holt V. City Council, 127 Mass. 408. "> Dietrich v. Murdoch, 42 Mo. 279 ; Tracy v. Elizabethtown E, R., 80 Ky. 259 ; Varner v. Martin, 21 W. Va. 534 ; Holt v. City Council, 127 Mass.' 408. ' West Pennsylvania Inst. v. Edgewood R. R., 79 Pa. 257. ' Smedley v. Erwin, 51 Pa. 445. 9 Aldridge v. Tuscumbia R. B., 3 Stew. & P. 199 ; Baltimore B. R, v. Eailroad Co., 17 W. Va.812; Union Ferry Co., matter of , 98 N. Y. 139. " Giesy v. Cincinnati R. R.,.4 Ohio St. 308. 96 OF trSES CONSIDERED PUBLIC. § 12 " Union Ferry Co., matter of, 98 N. Y. 139. ^2 Lecour v. Police Jury, 20 La. An. 308 ; Power's Appeal, 29 Mich. !SOi. Tlie decision of a municipal corporation, to which is delegated cer- tain powers ot condemnation, is not always conclusive on the courts. Milwaukee E. E. v. Faribault, 23 Minn. 167. " Baltimore E. E. v. Eailroad Co., 17 W. Va. 812. M 6 How. 607. See, also, "Varner o. Martin, 21 W. "Va. 534; Green v. Jllliott, 86 Ind. 53. " Matter of New York Central E. E., 66 N. Y. 407. i« Matter ot New York Ey., 99 N. Y. 12. § 12. How many people must use In order to make the use public. — It is not essential that the vvhole commu- Tiity, or any considerable portion thereof, should directly enjoy or participate in an improvement, to make the use public. If the proposed improvement tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the com- munity, the use is public.^ Where the franchise is in its nature a public franchise, the number of persons who will :avail themselves ofits privileges will not be closely looked into.^ The use, to be public, must concern the commu- nity, but not necessarily every individual in the community, or that every individual should have an equal interest, that some persons will be benefited above others not depriving the improvement of its public character,* and the commu- nity may be a small one.* The legislature determines the sufficiency of the number of people to be benefited in order to constitute the use a public one.* The fact that the public will be incidentally benefited by affording additional facilities for business, commerce or manufactures will not make the character of the use public* Water-works for a particular town are for the public use.' Ways denominated private, which the public may use, are sustained as consti- tutional.* A park may be established in a county, in such a place that it could be beneficial only to a city immediately tidjacent. Although the city is a distinct municipality, it is .«tiU a part of the county, because the greater portion of the population of the county may be ia the city.' Private 7 97 § 13 OF USES CONSIDERED PUBLIC. property cannot be taken by a mining company for the- purpose of obtaining. water for use in its own mines even though it appear that it occasionally rents water to others for mining or irrigating purposes.^" 1 Talbot V. Hudson, 16 Gray, 417; O'Eeiley v. Draining Co;, 32 Ind. 169; Chesbroiisli v. Commissioners, 37 Ohio St. 508; Koss -q. Davis^Sr lud. 79; Riche u. Bar Harbor Water Co., 75 Me. 91. 2 DeCarap v. Hibernia R. R., 47 N. J. L. 43. s Gilmer v. Hme Point, 18 Cal. 229; Keller?;. Corpus Ghristl, 50 Tex. 614; McQuilleh v. Hatton, 42 Ohio St. 202 ; Ross v. Davis, 97 Ind. 79. * McQuillen o. Hatton, 42 Ohio St. 202. 5 Aldridge v. Tuscumbia R. R., 2 Stew. & P. 199. « Matter of Eureka Basin Co., 97 N. Y. 42. ' Inhabitants of Wayland v. Middlesex, 4 Gray, 500. 8 Sherman?). Buick, 32 Cal. 241; Warrea v. Bunnell, 11 Vt. 600; Kill- buck Private Road, 77 Pa. 39; Sadler v. Langham, 34 Ala. 311 ; Shaver ». Starrett, 4 Ohio St. 494. 9 County Court of St. Louis v. Griswold, 58 Mo. 175. i» LorenzD. Jacob, 63 Cal. 73. § 13. The public need not own nor operate the im- provement — Incidental private advantage. — It is not necessary that the public should own the property taken. It may be owned by a private corporation, such as a railroad company, canal company, or even by a private individual. Ownership and use are not synonymous. The constitution is satisfied if the use is public and the public may have the privilege of using the same.^i The public use is not confined to actual uses by the government or its officers. It is suffi- cient if of advantage or benefit to the community.^ Should those to whom is delegated the control of the improvement refuse to allow the public, under reasonable regulations, to enjoy the improvement, their charters or franchises would be subject to forfeiture.* It does not signify that profit will accrue to private individuals, or that tolls are charged.* A particular improvement palpably for private advantage will not become a public use because of the theoretical right of the public to use it.* The government habitually moves through the agency of employees, and they may be com- pensated by the profits of the enterprise. No great public 98 OF USES CONSIDERED PUBLIC. § 14 work could be completed by the government in which some profit would not accrue to individuals.^ The agents who accomplish the objects do not determine the public charac- ter of the use, but the fact that the public may use and that the improvement may be useful to the public.'' . 1 Concord R. B. v. Greely, 17 N. H. 47; Bloodgood «. Mohawk R. R.,. 18 Wend. 9; Brown v. Beatty, 34 Miss.- 227; De Camp v. Hibernia R. R., 47 N. J. L. 43. 2 Olinstead v. Camp, 33 Conn. 533; McQuUlcn v. Hatton, 42 Ohio St. 202. 3 Bloodgood V. Mohawk R. R., 18 Wend. 9. 1 Concord R. R. v. Greely, 17 N. H. 47; Galveston Wharf Co. v. Galves- ton, 63 Tex. 14. 6 De Camp v. Hibernia R. R., 47 N. J. L. 43. « Stockton R. R. v. Stockton, 41 Cal. 147. ' Willyard v. Hamilton, 7 Ohio, pt. 2, p. 111. § 14. Means of transportation — Railroads, canals ^ ferries, roads, and bridges. — The best examples of public use, jind the most frequent exercise of the power of eminent domain, occur in securing means of transportation and in- tercommunication between different portions of the state. ^ Railroads are compelled by law to transport over their lines, at reasonable times, and at prices frequently limited by law, all such passengers and freight, not of a dangerous charac- ter, as shall be offered for transportation, and this consti- tutes the use a public one;^ and corporations organized for the purpose of carrying freight only may exercise the power of eminent domain.' Although a railroad corporation may be a private one, yet its work is public as much as if the road were constructed by the state. Tlie ownership of the property taken may be vested in a private corporation,* but upon no other ground than that the purpose is public can the exercise of the power of eminent domain in behalf of such corpor- ations be supported.^ On this ground alone rests the au- thority for the issue of bonds to assist railroads, and of taxation to meet the same.* Railroads are, in fact, public highways.' The circumstance that the railroad company uses 99 § 14 OF USES CONSIDERED PUBLIC. its own cars exclusively is not material,^ or that the tolls are collected for its own exclusive use.' Under the head of railroads may be included lines of tubing for the trans- portation of oil, and terminal facilities such as depots, yards, and storehouses.^" The power of the state to con- demn land for the use of canals," ferries,^ public roads, turnpikes,^' and bridges," has never been denied. An in- crease of ferry accommodations is a proper purpose for exer- cising the right. ^* The tolls.or profits of all these means ■of intercommunication may properly be collected by the •corporations or individuals owning them. The true criterion •by which to judge of the character of the use is whether the public may enjoy it by right or only by permission, and not to whom the tax or toll for supporting them is paid.^ 1 Buffalo R. R. «. Ferris, 26 Tex. 588; O'Hara v. Lexington R. R., 1 Dana, 232; Arnold v. Covington Bridge, 1 Dav. 372. ' Buffalo R. R. «. Brainard, 9 N. Y. 100; Beekman v. Saratoga R. R., 3 Paige, 45; Raleigh R. R. v. Davis, 2 Dev. & B. 451; Swan v. Williams, 2 Mich. 427; Tracy v. Elizabethtown R. R., 80 Ky. 259; Moody v. Jackson- irille R. R., 20 Ma. 597. » De Camp v. Hibernia R. R., 47 N. J. L. 43. * Varner v. Martin, 21 W. Va. 534. 6 Pine Grove v. Talcott, 19 Wall. 666; Secombe v. Milwaukee R. R., 23 Wall. 108; Weir v. St. Paul R. R, 18 Minn. 155; Concord R. E. v. Greely, 17 N. H. 47; Brown u. Beatty, 34 Miss. 227; Swan v. Williams, 2 Mich. 427; Stewart ». Polk County, 30 Iowa, 9. « Pine Grove v. Talcott, 19 Wall. 666 ; Stockton E. R. v. Stockton, 41 Cal. 147. ' Railroad v. Chappell, Rice, 383. ' Bloodgood V. Mohawk E. R., 18 Wend. 9; Swano. Williams, 2 Mich. 427. ' Swan V. Williams, 2 Mich. 427; Bonaparte v. Camden R. R., Baldw. 205. 10 West Virginia Transp. Co. v. Oil Co., 6 W. "Va. 382 ; Spofford c. Bucksport R.R., 66 Me. 26. " Chesapeake Canal Co. v. Key, 3 Cranch C. Ct. 599 ; WiUyard ». Hamil- ton, 7 Ohio, pt. 2, p. 111. 12 Day V. Stetson, 8 Me. 365. 13 Mount Washington Road, 35 N. H. 134; The State v. Maine, 27 Conn. 641. " Arnold v. Covington Bridge, 1 Duv. 372; Palmer®. The State, Wright ^Ohio), 364, Bridges are highways as much as any other section of the 100 OP USES CONSIDERED PUBLIC. §§ 14a, IS' road. Crosby ». Hanover, 36 N. H. 404; In re Towanda Bridge Co., 91 Pa. St. 216. 15 Matter of Union Ferry Co., 98 N. Y. 139. 1' Bonaparte v. Camden R. E., Baldw. 205; Rogers *. Bradshaw, 29 Johns. 735; Mount Washington Road, 35 N. H. 134; The State v. Maine, 27 Conn. 641 ; Wood v. Truckee Turnpike Co., 24 Cal 474. § 14a. Public character of telegraph and telephone lines. — The use of land by a telewriiph company is a^ public use,^ the transmission of intelligence by electricity being a business of public character, and the legislature may grant to such companies the privilege of exercising the power of eminent domain.^ Telegraph lines are entitled to the same privileges for condemning land as railroad and similar corporations,' and cities may authorize the erection of poles along their streets for the purpose of carrying wires.* ' Turnpike Co. v. News Co., 43 N. J. L. 381. 2 Pierce v. Drew, 136 Mass. 75; New Orleans Telegraph Co. v. South- ern Telegraph Co., 53 Ala. 211. 3 Telephone Telegraph Co. v. Forke, 2 Tex. App. 367. * Irwin V. Telephone Co., 37 La. An. 63. § 15. Public character of mills. — In the early history of the country, when power to drive mills was almost ex- clusively confined to water-power, a system of legislation arose for the encouragement of mills, by which the power of eminent domiiin was delegated to persons desiring ta erect mills, enabling them to condemn favorable sites for mills which they could not obtain by purchase on account of the obstinacy of the owners. This wus the most fre- quent occasion on which the sta.te exercised the I'ight. Th© theory was that the general public had a direct interest in the mill, the owner of the mill, being, in a sense, a public servant, compelled to grind grain at prices fixed by law,, and required to grind for all alike in the order in which the grain was brought to the mill. In Massachusetts and Maine the mill-acts are sustained on account of a policy in force prior tothe adoption of their constitutions. Many of the courts which formerly have sustained the public charao- 101 § 15 OF USES CONSIDERED PUBLIC. ter of mills, and the propi-iety of taking private property for that purpose by the exercise of eminent domain, continue to do so with reluctance, and consider that, if the question was brought up for decision anew, the decision would be adverse to the costitntionality of such statutes.^ Such statutes are sustained in Massachusetts,^ Vermont,^ N-ew Jersey,* Connecticut,* and Tennessee.'' In Minnesota' and Kansas* they are sustained because other states with similar consti- tutions have sustained them, although they are considered as going to the extreme of legislative power. The Wiscon- sin Suprenie Court doubt the public character of the use.' The doctrine is denied in Maine,'" New York," Georgia,^^ Alabama,'* and Michigan." Judge Cooley, in the leading ■case of Ryerson v. Brown, .35 Mich. 333, has reviewed the entire law on the subject, and the history of the legislation on the subject, and concludes that the question is not one of necessity, but of comparative cost, and that the use is not properly a public one. The Supreme Court of the United States, in Holyoke Company v. Lyman,'* recognize to a •certain extent the public use of mills, and approve the ex- ercise of eminent domain in cases where, from the nature of the country, mill-sites sufficient in number could not otherwise be obtained. This decision, however, was by Judge Clifford, who was familiar with the long course of decisions in Massachusetts supporting the constitutionality of the mill-acts, and in a case in error from the state of Massachusetts. The reasons for encouraging mills in early times, when capital was small and steam as a motive power had not been discovered, have largely ceased to exist, and there is now no reason for indulging owners of mills over •owners of public groceries, hotels, or theaters.'^ 1 Occam Co. «. Sprague Co., 35 Conn. 496; Powers ». Bears, 12 Wis. 213; Fisher v. Horicon Co., 10 Wis. 351. 2 Hazen v. Essex Co., 12 Cusli. 475; Andover v. Sutton, 12 Mete. 182; Boston Mill-Dam v. Newman, 12 Picls. 467. 8 Tyler ». Beactier, 44 Vt. 648. * Scudderw. Trenton Falls Co., 1 N.J. Eq. 694. ° Olmstead v. Camp, 33 Conn. 532. 102 OF USES CONSIDERED PUBLIC. § 16 ' Harding v. Goodlett, 3 Yerg. 41. ' Miller v. Troost, 14 Minn. 365. * Harding v. Funis, 8 Kan. 315. ' Powers «. Bears, 12 Wis. 213. 1" Jordan ». Wo6dward, 40 Me. 317. ^ Hay«. echoes Co., 3 Barb. 42. ^ Loughbridge v. Harris, 42 6a. 500. M Sadler «. Langham, 34 Ala. 311. 1 Kyersons). Brown, 35 Mich. 333, overruling Newcomb v. Smith, I Chand. 71. " 15 Wall. 500. ^ Jordan v. Woodward, 40 Me. 317. § 16. Draining of marshes — Reclaiming land. — The draining of a marsh, whereby valuable land is reclaimed and the health of the community is improved, is a work of such public benefit as to justify the exercise of the power of eminent domain.' It is not an usurpation of judicial functions for the le islature to declare a marsh a nuisance, and provide for its reclamation.^ A dam which flows a large and valuable tract of land may be cut down for the purpose of reclaiming the land and devoting it to tillage. The agricultural interests may be promoted in the exercise of eminent domain as well as any other interest.* Drains which the public may use on proper terms are public* The drainage of one's farm simply to render it more valuable to the owner would not be a public, but a private, undei'- takirig, and it does not make the use more public that the work is done by a corporation formed for. purposes of draining.* Land may be condemned for the purpose of making sewers to drain a city," and in the country land may be taken for the purpose of constructing a ditch to drain a public highway.' In New Jei sey^ and Indiana' the regula- tions concerning drainage are referred to the police power. In like manner laws assessing the entire damages on lands benefited are held valid under the same power." 1 Willson «. Blackbird Creek Marsh Co., 2 Pet. 245; Henry ». Thomas, 119 Mass. 583 ; Dingley v. Boston, 100 Mass. 544 ; Hartwell v. Armstrong, 19 Barb. 166; Tide-Water Co. v. Coster, 18 N. J. Eq. 518; Norfleet©. Cromwell, 70 N. C. 634; Anderson ». Kerns Draining Co., 14 Ind. 199; 103 §§ 17, 18 OF USES CONSIDERED PUBLIC. Anderson «. Baker, 98 Ind. 587; McQnlllen d. Hatton, 42 Ohio St. 202; Chesbfough v. Commissioners, 37 Ohio St. 508. » Dingley v. Boston, 100 Mass. 544. » Talbot V. Hudson, 16 Gray, 417. * Norfleet v. Cromwell, 70 N. C. 634 ; Boss v. Davis, 97 Ind. 79. ° Anderson v. Kerns Draining Co., 14 Ind. 199. « Hildreth v. Lowell, 11 Gray, 345. ' Donnelly v. Decker, 58 Wis. 461; McQuillen v. Hatton, 42 Ohio St, 202; Smith D. Gould, 59 Wis. 631. 8 The State v. Blake, 36 N. J. L. 442. 9 O'Reiley v. Draining Co., 32 Ind. 169. J" Donnelly ii. Decker, 58 Wis. 461. * § 17. Scliool-houses. — Land maybe appropriated for the erection of a school-house^ and for a school-yard.** The use proposed is not local and limited, but public. Schools- are a public necessity, and as taxation lor schools is sup- ported, the exercise of eminent domain is equally justified in providing suitable locations. The use need not be uni- versal.^ The practice of condemnation for this purpose exists without question in many of the states.* ' Township Board «. Hackman, 48 'Mo. 243. ' Wmiams v. School District, 33 Vt. 271. » Williams v. School District, 33 Vt. 271. * Peckham v. School District, 7 E I. 545; Appointment of Viewers, Wyoming Common Pleas, 4 Leg. Gaz. 410; Long v. Fuller, 68 Pa. 170. § 18. Facilities for public health or recreation — Parks — Water-works. — Lund may be condemned in order to promote the public heidth, or to provide public parks^ for the use of the public at large, and drives for pleasure or recre- ation. A traveler for pleasure or recreatioQ has his rights in the use of a road when laid out, and his voice may unite with others in making a public demand for a new road ; but such travel will have less weight than that which is perma- nent.^ In laying out a road, it need not be considered with what purpose people will travel the proposed road. Koads are not made solely for the travel of those engaged on bus- iness or duty, but may be made for healthy recreation, or to visit points esteemed as pleasing natural scenery,* or to supply a drive-way, or avenue to a burying-ground.* At a summer resort land may be condemned for a restauraut 104 OF USES CONSIDERED PUBLIC. § Id' and appliances for accommodation of the visiting public.*^ The public health of cities requires iin abundant supply of pure water, and for this purpose land may be condemned for reservoirs and other facilities for supplying cities with water J although the act contains no provision in express terms requiring the corporation to supply, on reasonable terms, all persons applying for water.* In like manner, supplies of water may be condemned.' The public have a right to an unstinted supply of water and the corporation to which the riglit of taking land has been granted, has the= capacity, to appropriate enough for that purpose, but this- capacity is limited to the actual necessities.'" The early" doctrine was that property could not be taken for orna- mental purposes only," and it has been doubted whether land could be condemned to ornament and beautify court- house grounds.^ Streets may be widened, and court-yards left which are for ornament and not open to public travel,^' and property taken for use as a public market place.^* 1 County Court of St. Louis v. Grisvyold, 68 Mo. 175 ; Hig2;inson y. Nahant, 11 Allen, 530; Brooklyn Park v. Armstroag, 45 N. Y. 234; Rich* V. Bar Harbor Water Co., 75 Me. 91; Grilmaa v. Milwaukee, 55 Wis. 328i Hoet V. City Council, 127 Mass. 408. " Mount Washington Road, 35 N. H. 134. a Boyan V. Branford, 50 Conn. 246. * Higglnson v. Nahant, 11 Allen, 530. * Balch V. Commissioners of Essex, 103 Mass. 106.- 6 Prospect Park R. R. v. Williamson, 91 N. Y. 552. ' Inhabitants of Wayland v. Middlesex, 4 Gray, 500; Kane©. Baltimore,. 16 Md. 240; Thorn v. Sweeney, 12 Nev. 251; Olmsted ». Proprietors of Norris' Aqueduct, 46 N. J. L. 495. Bailey ■». Woburn, 126 Mass. 416 j Lake Pleasanton Water Co. v. Contra Costa Water Co., 67 Cal. 659. Lumbard v. Stearns, 4 Cusli. 60. ' Burden v. Stein, 27 Ala. 104; Martin v. Gleason, 139 Mass. 183. 1" Spring Valley Water- Works v. Saa Mateo Water- Works, 64 CaU 123. u Bynkershoek, as cited In Gardner v. Newburgh, 2 Johns. Ch. 162. M Woodstock V. Gallup, 28 Vt. 587. i«BQshwick Ave., 48 Barb. 9. 1* Henkel v. Detroit, 49 Mich. 249. § 19. Burying-grounds. — Public burying-grounds may be established and enlarged, and for such purposes land ■ 105 ^ 20 OP USES CONSIDERED PUBLIC. may be condemned.^ An old burying-ground or a private burying-ground may be condemned for the use of the pub- lic.^ If the association is a private one, and the right of burial is not vested in the public, or in the public authori- ties, or subject to their control, but only in the individual lot owners, and the land so taken is only to be divided out among individual owners, the use cannot be considered public* In a recent case* the court says, «' the safety of the living requires the burial of dead in proper time and place, and inasmuch as it may so happen that no individual may be willing to sell land for such use,, of necessity there must remain to the public the right to acquire and use it under such regulations as a proper respect for the memory of the dead and the feelings of the survivors, demands." The use does not cease to be a puljlic use, Vjecause varying sums are required for rights to bury in different localities ; not even if the cost of the right is the practical exclusion of some ; so long as all persons have the same measure of right for the same amount of money the use is a public one.* Statutes forbidding a cemetery within a given distance of a' dwelling house do not prevent the condemnation of the land on which such a house stands/ 1 Edgecombe v. Burlington, 46 Vt. 218 ; Edwards v. Stonington Ceme- tery Assn., 20 Conn. 466. " 2 Balch V. Commissioners of Essex., 103 Mass. 106, ' Matter of DeansvlUe Cemetery Assn., 66 N. Y. 569. * Evergreen Cemetery Association v. Beecher, 53 Conn. 551. 6 Evergreen Cemetery Association v. Beecher, 53 Coaa. 551. ^ Crowell V. Londonderry, 63 N. H. 42 § 20. Bacouragement of mines. — Akin to the acts which allow condemnation for mill-sites are those acts for the encouragement of mines. In mining districts valuable intere^its may remain undeveloped on account of the obsti- nacy of owners who refuse to allow their lands to be used for the necessary tunnels, ditches, flumes, pipes, and dumping-places. Roads may be necessary to reach the mines and to transport the wood, lumber, and materials 106 OF USES CONSIDERED PUBLIC. § 21 necessary for carrying on the business of mining. Such statutes have been passed in California and Nevada.. In the former state they are held not to justify the condemna- tion of land for the use of an individual or single corpora- tion.,^ while in the latter the act does not seem to confine the exercise to cases where the roads or appliances would or could be used by more than one imlividual.^ There is no doubt that the public may establish a public road to mines, as it is important to the public that mineral wealth should be developed.' The sinking of a new shaft is a pub- lic use which justifies the exercise of the power of eminent domain.* In Pennsylvania and Maryland similar statutes are passed for the development of mines, which will be considered hereafter under the head of Private Roads, [ron-works have been suggested as a proper public use.^ In (jreorgia the condemnation of right of way over unoccu- pied lands, for the carriage of water necessarily used in gold raining, is recognized as legitimate.* 1 Channel Co. v. Eailroad, 51 Cal. 269. " Dayton Mining Co. ■». Seawell, 11 Nev. 394; Overman Mining Co. v. Corcoran, 15 Nev. 147, » Banlvhead v. Brown, 25 Iowa, 540; Pliillips v. Watson, 63 Iowa, 28. * Overman Mining Co. v. Corcoran, 15 Nev. 147. ° Tipton©. Miller, 3Terg. 423. « Hand Gold Mining Co. b. Parlier, 59 Ga.419. § 21. Iraprovements unknown to the framers o£ the constitution — Miscellaneous public uses. — -The term *' public use," is flexible and cannot be confined to the public use known at the time of. the framing of the con- stitution. Ail improvements that may be made, if useful to the public, may be encouraged by the exercise of eminent domain. Any use of anything which will satisfy a reasona- ble public demand for facilities for travel, for transmission of intelligence or of commodities,^ or the improvement of the navigation of a stream,^ would be a public use. In view of the large logging and lumber interests of some of the states, it has been held that land might be condemned for the erection of booms. ^ Dam.^ known as " spla-h dams," 107 § 21 OF USES CONSIDERED PUBLIC. for the purpose of floating lumber, are recognized in Penn- sylvania.* The coast survey carried on under the auspices, of the United States government is a public use and justifies^ the taking of private property for its accomplishment. Trees may be felled and land occupied for that purpose.*^ It has been doubted whether the power could be exercised to encourage the erection of warehouses for the convenience of the puplic alone, and where the legislature fixed no rates- of toll or storage, and assumed no regulation of charges.'' A railroad may be authorized to run a track to an elevator for the general convenience of the public using the elevator .'^ Land may be condemned by a railroad for the purpose of straightening the channel of a river frequently crossed by its track, the promotion of the safety of the traveling pub- lic being such a public use, as will justify the condemna- tion.^ 1 Concord E. R. v. Greely, 17 N. H. 47. * Weaver v. Mississippi Boom Co., 28 Minn. 634. 3 Patterson v. Boom Co., 3 Dill. 465; Lancaster v. Kennebeck Co., 63;- Me. 272; Lawler v. Baring Boom Co., 36 Me. 443; Cotton v. Boom Co.,. 22 Minn. 372; Weaver ». Mississippi Boom Co., 28 Minn. 534; Schoff Ov Improvement Co., 57 N. H. 110. * Finney v. Somerville, 80 Pa. 59. « Orr V. Quimby, 64 N. H. 590. * Memphis Freight Co. v. Miimphis, 4 Coldw. 419. » Clarke v. Blacltmar, 44 N. Y. 150. ' Reusch V. Council Bluffs R. Co., 57 Iowa, 687. 108 OP USES CONSIDERED P.-JIVATB. § 22 CHAPTEE III. OP USES CONSIDERED PRIVATE. ^ 22. Condemnation for private use. 23. Condenlnation of property for sale or for use by others. 24. Inducements to declare use public — Donations of land — Payment , of damages by individuals. 25. Settlement of private disputes — Sales of land of minors, 26. Private or neighborhood roads. 27. Roads denominated private which the public may use. 28. Lateral railroads. 29. Ways of necessity. § 22, Condemnation for private use. — The use to which, property is condemned must be public. As between indl- "viduals, no necessity however great, no exigency how- ever imminent, no improvement however valuable, no refusal however unneighborly, no obstinacy however unreasonable, no offers of compensation however extravagant, can compel or require a man to part with one inch of his estate.'^ Nei- ther has the legislature the right to take the property of one individual or corporation and give it to another, even if compensation is provided.^ If consent be given, the ques- tion does not in fact arise. ^ It is immaterial to the state in which one of its citizen's land may be vested, but it is of pri- mary importance that when once vested it shall be secured.* The fact that individuals may be greatly benefited by a public improvement cannot operate to prevent the exercsie ■of legislative power, if the use is in fact public.® It is proper to consider whether or not a large number of individuals maj'^ not be benefited by the proposed im- provement,* The fact that the structures to be built on the land sought to be condemned will incidentally benefit the public, will not sufice to bring the case within the operation of the rieht so lonar as the structures are to remain under private ownership and control and the public have no voice 109 § 23 OF USES CO^tSIDERED PBIVATE. in their management.' Wtien the title acquired may be freed from the use, it cannot be obtained by the exercise of the rio;ht of eminent domain.* ' Bangor R. R. v. McComb, 60 Mu. 290; Underwood v. Bailey, 69 N. H. 480. 2 Hepburn's Case, 3 Bland, 95 ; West River Bridge v. Dix, 10 How. 607; Bangor R. E. v. McComb, 60 Me. 290. For an exception to this general statement, see anU, § 9. Underwood v. Bailey, 59 N. H. 480; Foster'!;. Stafford National Bank, 57 Vt. 128; Matter of Eureka Basin Co., 97 N. Y. 42 ; Varner v. Martin, 21 W. Va. 534 ; Mayor of Macon v. Harris, 73 Ga. 428; Anderson ». Baker, 98 Ind. 587; Cole v. Lagrange, 113 U. S. 1. 8 Embury v. Connor, 3 N. Y. 511. * Van Home's Lessee v. Dorrance, 2 Dall. 310. 5 Cottrill V. Myrick, 12 Me. 222. 6 Hopkinton v. Winship,35 N. H. 209; Talbot v. Hudson, 16 Gray, 417^ ' Matter of Eureka Basin Co., 97 N. Y. 42. ^ Oregon Railway, etc., Co. v. Oregon Real Estate Co., 10 Ore. 444. § 23. Condemnation of property for sale or for use by others. — Property cannot be taken for the puriDose of be- ing leased out or sold to private parties. The surplus be- yond the amount required by the public is not properly taken, not being needed for the public use, and the owners are entitled to such surplus.^ An entire lot cannot be taken in widening a street^ when the entire lot is not needed, and with the intention of afterwards, selling the remainder. Such portions of lots not needed for public use cannot be taken under such condemnation, without the owner's con- sent, although compensation is made. Such statute may be construed so as to stand, by holding that the owner's consent must be given. ^ In England the laws provide " that no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house, or other building, or manufactory, if such party be willing and able to sell and convey the whole thereof." ^ The land taken can be taken only for the particular use for which it is condemned.* In Connecticut* it has been considered that there may be a grant for the erection of a structure the result of which will be the production of an article or thing intended to be furnished or sold to the public to supply 110 OF USES CONSIDERED PRIVATE. § 24 their reasonable wants ; and that for this purpose. an exten- sive water-power may be created, portions of which are to be offered for sale to the piil)lio. The land of one person cannot be taken to be used by another, and thereby lessen his damages, although such condemnation is proposed by a corporation authorized to condemn. The owner of a mill- privilege was damaged in the construction of a canal, by having his water-supply taken away. The" canal company endeavored to supply his loss, and thereby lessen the dam- ages to be paid by it, 1)y condemning a portion of the land of an adjoining owner for the purpose of constructing a feeder to the mill. The adjoining owner objected that his land was taken for the private use of the owner of the mill, and his objection was sustained. The mill-owner could be compensated in money, and not in privileges. The con- demnation was plainly not for the use of the canal. Land cannot be condemned for wharves or basins, in which the public will have no rights, such a project not being a public use, which will justify the taliing of tha land ;' on similar grounds, a city cannot authorize the construction of a railroad in its. streets for purely private ^ Varick v. Smith, 5 Paige, 137; Buckingham v. Smith, 10 Ohio, 288; Cooper V. Williams, 5 Ohio, 391. ' Embury v. Connor, 3 N. Y. 511 ; Matter of Albany St., 11 Wend. 149. 3 8 and 9 Vict., c. 18, § 92; Baltimore R. R. Co. v. Railroad Co., 17 W. Va. 812. ^ Oregon Railway, etc., Co. v. Oregon Real Estate Co., 10 Ore. 444. ^ Todds. Austin, 34 Conn. 78; Occum Co. v. Sprague Co., 35 Conn. 496> 6 McArthur v. Kelley, 5 Ohio, 139. ' Matter of Eureka Basin Co., 97 N. Y. 42. 8 Mikesell v. Durkee, 34 Kan. 509. § 24. Inducements to declare use public — Donations of land — Payment of damages by individuals. — The question of determining the necessity of a public improve- ment is frequently delegated to the commissioners or to the courts. The laying-out of highways is a matter of public concern. They are laid out because the public need them, 111 i§' 24 OF USES CONSIDERED PKIVATE. .and the judgment of the court or of the commissioners .should not be determined by proposed donations of land,^ or releases from damages,^ or on the fact that the damages -were to be paid by individuals.* If the agreement is not -the basis of the adjudication, it would be proper that the public should be relieved of a portion or all of the damages by individuals.* The public have a right to consider the ■expense, and that the public will not need an expensive road, but would be greatly benefited by one of moderate •expense to the public.'' Donations of money or land^ may be made, bonds of indemnity given,' and releases of dam- .ages made,^ without interfering with the discretion to be exercised by public authorities in deciding upon the public necessity or convenience of a proposed improvement, and such bonds and releases are valid and may be enforced.' The damages due a particular remonstrant may be paid into the treasury for his use by individuals, without invalidating Ihe adjudication ■^'' but it would be against public policy to permit interested individuals to induce, by payment of money, the withdrawal of opposition to the laying-out of a road, when such remonstrance is made because there was no necessity for the road." The entire damages of a way for the peculiar benefit of the aijplicant may be assessed .against such applicant. '^ > Dudley v. Cilley, 6 N. H. 558; Dudley v. Butler, 10 N. H. 281; The .State V. Stites, 13 N. J. L. 172. 2 Smith V. Conway, 17 N. H. 586. 8 Gurnseys. Edwards, 26 N. H. 224; Knowles's Petition, 22 N. H. 361. * Denham?). Bristol, 108 Mass. 202; Harringtons. Harrington, 1 Mete. 404; Parks ». Boston, 8 Pick. 218; Hays c. Eisher, 32 Pa. 169; Hoadley -t>. Waterbury, 34 Conn. 38; Townsend v. Hoyle, 20 Conn. 1. ' Hunter v. Newport, 5 R. I. 326; Townsend v. Hoyle, 20 Conn. 1; Hoadley v. Waterbury, 34 Conn. 38. « Hoadley «. Waterbury, 34 Conn. 38; Cummins ». Shields, 34 Ind. 154. ' Watson ■». South Kingstown, 5 E. I. 562; Hunter «. Newport, 5 E. I. .325; Townsend D. Hoyle, 20 Conn. 1. 8 Crockett ■». Boston, 5 Cash. 182; White «. Norfolk, 2 Cush. 361, over- arnling the Commonwealth v. Sawin, 2 Pick. 547. ' Hoadley ■». Waterbury, 34 Conn. 38; Townsend r. Hoyle, 20 Conn, 1, 112 OP USES CON8IDBEBD PKITATE. §§ 25, 26 *» Cummins v. Shields, 34 Ind. 164. " Smith V. Applegate, 23 N. J. L. 352. J^ Denham v. Bristol, 108 Mass. 202; HarriDgton v. Harrington, 1. 3Ietc 404; Parks v. Boston, 8 Pick. 218; Hays v. Eishey, 32 Pa. 169. § 25. Settlement of private disputes — Sales of land of minors. — It cannot be claimed that the taking of prop- -erty from one and giving it to another, to bring to an end -an extensive litigation of disputed titles, can be a taking :for public use, although such settlement would tend to produce public harmony and a more extended improvement of the property in question. This question received an able discussion in the case of Van Home's Lessee v. Dorrance.^ The Pennsylvania legislature passed an act confirming the title of claimants under Connecticut grants, to certain lands in Luzerne county, and providing compensation for those xinder the Pennsylvania title by arranging to give them vacant or unoccupied land of equal value. This act was invalid as being a condemnation for private use. In Phila- delphia there exist a number of irredeemable ground-rents, and the legislature, in order to relieve owners of lands out -of which issued such ground-rents, passed an act to cause the rent to be valued, and to be extinguished by the pay- ment of a capital sum. This act was declared to be uncon- stitutioniil, as being a taking for private use. The policy of the law against tying up property perpetually could not affect the private contract already existing.^ vThe legisla- ture may authorize the sale of lands of those who are incompetent to convey, but otherwise, cannot compel the sale of private property for other than public uses without the consent of the owners.^ 1 2 Dall. 304. 2 Palairet's Appeal, 67 Pa. 479 (Agnew, J., dissenting), overruling Jlorris v. Clymer, 2 Pa. 777. 3 Powers v. Bergen, 6 N. Y. 358. See also ante, § 9, for sales of lands ield in joint tenancy, life-estates, remainders, etc. § 26. Private or neighborhood roads. — Land cannot Toe condemned for the purpose of making a private road for -the particular use of an individual, although he may pay 8 113 § 26 OF USES CONSIDEKED PRIVATE. the entire cost of opening and maintaining it. The use is^ not public.^ It does not signify that compensation is pro- vided. Private property cannot be taken for private use even on compensation.^ Owners may consent, and if they sue in assumpsit for the damages they waive their constitu- tional rights,* although their consent is not to be presumed or extended.* A private way cannot be changed into a public way without compensation to the owner thereof.* The rights of owners cannot De evaded by calling th& road a " neighborhood road" or a "right of way," if the- road could be lawfully used by none other except the appli- cant.* It has sometimes been considered that the public have an interest in securing private ways to individuals, so that they may reach public roads on duties which may be public, such as voting, paying taxes, testifying,' etc.,' but this may more properly be accomplished by making a highway which the public may use. The public use does not depend on the number of people who may use the road.^ Whenever a private pass-way is necessary to enable a citizen to discharge those duties which he owes the public, and to enjoy the benefits of the government under which he lives, the private property of another citizen may be taken for the establishment of such pass-way upon compensatioa being made, and such use will be regarded as public within the meaning of that term as used with reference to the right of eminent domain. The public have a right to com- pel the attendance of any citizen upon the tribunals of jus- tice, either as a witness, juror, or party, and have an interest in his attendance upon elections and the public worship of Almighty God; and, because of these rights and interests, the public also have a further interest that the citizen shall be provided with a practicable way to a market at which he can buy and sell, and thus provide himself with those things without which he could not dis- charge his civil and social duties. But the legislature cannot autiiorize the condemnation of a private pass-way 114 OF USES CONSIDEKED PRIVATE. § 27 simply for the purpose of connecting two tracts belonging to the same party. It might provide that communication from each of said tracts to the outside world, to enable the owner or his tenants or employees to attend courts, elec- tions, a church, or a mill, but not for a pass-way simply to enable him to pass from one tract of land to another.* Iii Reynolds v. Reynolds,^'* the Supreme Court of Connecticut recognize that a private way for the sole use of the applicant may be lawfully laid over the lands of others, although such road only connect two tracts of the applicant. In this case the question of constitutionality of the statute w;is not in- sisted ou, but the practice was approved. The constitu- tion of the state of Michigan" provides for private ways,. and for the determination of the necessity of such roads by a jury. And in Georgia'^ and California'* private ways^ may be granted in case of necessity on payment of com- pensation. 1 Taylor v. Porter, 4 Hill, 140 (overruling Lambert v. Hoke, 14 Johns. 383) ; Kice v. Alley, 1 Sneed, 51^ Clack v. White, 2 Swan, 540; Stewart v. Hartman, 46 Jnd. 331 ; Wild v. Deig, 43 Ind. 455 (overruling Barnard v. Ha worth, 9 Ind. 103) ; Osborn v. Hart, 24 Wis. 89; Bankhead ». Brown, 25 Iowa, 540; Sadler v. Langham, 34 Ala. 311; Nesbitt v. Trumbo, 39 111. 110; Crear v. Crossley, 40 111. 175; Dickey c.Tennison, 27 Mo. 373; Var- neri!. Martin, 21 W.Va. 534. 2 Clack V. White, 2 Swan, 540. 3 Baker v. Braman, 6 Hill, 47. * Dempsey v. Kipp, 62 Barb. 311; Nesbitt i?. Trumbo, 39 111. 110. 6 Ayres v. Richards, 41 Mich. 680. 6 Dickey v. Tennison, 27 Mo. 373; Crear «. Crossley, 40 111. 175. ' Brewer v. Bowman, 9 Ga. 37 ; McCauley v. Dunlap, 4 B. Mon. 67. 8 Bankhead v. Brown, 25 Iowa, 640 ' Robinson ■». Swope, 12 Ky. 21. lo 15 Conn. 83. w Art. 18, § 4; Paul v. Detroit, 32 Mich. 108; Schear v. Detroit, 45 Mich. 626. , ^ Commissioners v. Harris, 71 Ga. 250. 13 Butte County o. Boydston, 64 Cal. 110. § 27. Beads denominated private which the public may use. — The fact that few persons will use the road is not essential in considering the public character of the road. 115 ■§ 27 OF USES CONSIDEIIKD PRIVATE. If the public may use the way, the way is public though it may be termed a private road.' It is not considered un- reasonable that common convenience and necessity might require that access to the dwelling of a single inhabitant should be afforded to persons visiting on business or friend- ship, without commission of trespass.^ Over such roads the applicant has no particular control. The public may discontinue against the will of the applicant, and they are only private in respect to certain matters of practice in opening and maintenance.' It does not signify that such road is laid out at the expense of the applicant,* and is to "be kept in repair by him.^ A road may be wholly on the land of an individual, and may enter from the highway and return to the highway at about the same place, and it is not necessary that the road should be in the line of business travel, if the public may use it for the purposes of pleasure- driving.* In Pennsylvania, one terminus of roads denom- inated private must be at the plantation or dwelling of the petitioner.' In Pennsylvania, legislation on the subject of private roads has been extensive. Roads .are permitted under as well as above ground. Private roads are sus- tained which lead over the land of one man for the benefit of another, for the purpose of access to highways or places of necessary public resort, or even to private ways lead- ing to highways.* It is the connection of these private ways with public highways, or with places of necessary pub- lic resort, together with the implied right or license of the jDublic to use them, at least in going to and from the premises of the person laying them out, quite much as, if not more than, the consideration of purely individual rights, that have won for these private-road acts judicial recogni- tion of constitutionality. The roads laid out are quasi- public roads. If the public cannot use the roads, the ■constitutionality of the acts cannot be sustained.' 1 Warren v. Bunnell, 11 Vt. 600; Killbuck Private Eoad, 77 Pa. 39; Singleton v. Commissioners, 2 Nott & M. 626 ; Sadler v. Langham, 34 Ala. 116 OF USES CONSIDERED PRIVATE. § 28 311; Kissinger ». Hanselman, 33 Ind. 80; Sherman i;.Buick, 32 Cal. 241; Sliaver v. Starrett, i Ohio St. 494; Brock v. Barnett, 57 Vt. 172. 2 Denham v. Bristol, 108 Mass. 202; Roberts v. Williams, 15 Ark. 43 j Sherman v. Buick, 32 Cal. 241. s Allen V. Stevens, 29 N. J. L. 509; Ferrine v. Farr, 22 N. J. L. 356. * Sherman v. Buick, 33 Cal. 241. * Shavers. Starrett, 4 Ohio St. 494; Allen v. Stevens, 29 N. J. L. 509; Perrine v. Farr, 22 N. J. L. 366. * Higginson v. Nahant, 11 Allen, 530. ' Killbuck Private Road, 77 Pa. 39; Sandy Lick Road, 51 Pa. 94. 8 State V. Stackhouse, 14 S. C. 417. * Waddell's Appeal, 84 Pa. 90. § 28. Lateral railroads. — In Pennsylvania^ and Mary- land,^ railroads are authorized by statute to extend from public railroads, canals, and streams to mines belonging to individuals, but these acts cannot be abused for purposes purely private.^ The acts were passed for the purpose of developing mineral lands, by enabling the owner to obtain access to the transportation facilities of railroads, canals, and streams, when parties owning the adjoining lands refuse access through their lands. Land may be condemned for the purpose of connecting the track of one railroad with that of another.* If the owner of the land desired to use his wharfage facilities, he would be entitled to the fii-st right, but he must bona fide intend to make such improvements himself.* These roads may be u.sed by all who will pay- proper toll.* No lateral road can be established if the ap-^ plicant has another right of way.' But land cannot be taken for an independent branch road to subserve private^ interests.^ There is a statute authorizing such railroads in West Virginia, but the constitutionality of the act has^ never been distinctly affirmed. In the only case decided under the statute,^ it appeared to the court that the public could not in any way use the subterraneous way proposed,, and that the use was for the applicant solely, and hence de- cided that public utility did not require the laying-out of the proposed road . 1 Shoenberger u. Mulhollan, 8 Pa. 134; Harvey v. Lloyd, 3 Pa. 331 j Harvey v. Thomas, 10 Watts, 63. 117 § 29 OF USES CONSIDERED PKIVATE. 2 Northern Central Coal Co. v. Coal and Iron Co., 37 Md. 537. ° West Pennsylvania Inst. v. Edgewood R. E., 79 Pa. 257 ; also cited Edgewood Co.'s Appeal, 79 Pa. 257. But see State v. Railway Co., 40 Ohio St. 604. * Louisville R. E. v. Qainn, 14 Lea, 65; Louisville R. R. v. State, 9 Bax. 622. 6 Hays V. Briggs, 74 Pa. 373; Hays v. Risher, 32 Pa. 1C9. " Brown v. Corey, 43 Pa. 495; Boyd v. Negley, 40 Pa. 377; Hays v. Risher, 32 Pa. 169. ' Boyd V. Negley, 40 Pa. 377. 8 South Chicago R. R. v. Dix, 109 111. 237. 9 Salt Co. V. Brown, 7 W. Va. 191. § 29. Ways of necessity. — By the common law, if a person has a close bounded on every side by hi-s own lands, and grants the close to another, the grantee shall have a way to the close over the grantor's land, as incident to the grant, or, as it is sometimes termed, a way of necessity ; if otherwise he cannot derive any benefit from the grant. ^ There can be no such way when there is a possible way over the owner's own land. If the grantee has access to the highway, a right to a way of necessity does not exist, al- though lands of the grantor may lie between the land granted and the highway.* Such a way only arises out of land granted or reserved by the grantor, and not out of the lands of a stranger.* A legislative regulation of the man- ner ill which this right shall be ascertained and determined •is not an exercise of eminent domain, nor a taking of pri- vate property for private use.* There is also a common law of necessity where the way is fouuderous. This is only a temporary right of way, and does not apply to a case where a highway laid along the bank of a river has been permanently destroyed by changes in the course of the stream. The adjoining land cannot be used after such per- manent change, but there must be a new condemnation.^ \ 1 Selw. N. P. 1041. 2 Perry v. Webb, 21 La. An. 247. 8 Kuhlmani;. Hecht, 77 111. 570. * Stewart!!. Hartman, 46 Ind. 331. * Snyder u. Warford, 11 Mo. 513. * The Commonwealth v. Beeson, 3 Leigh, 821. ' 118 OF WHAT CONSTITUTES A TAKING. § 30 CHAPTER IV. OF WHAT CONSTITUTES A TAKING. ^ 30. Injury or depreciation of property. 31. Taking an easement. 32. Additional burden of railroad upon highways, turnpikes, and canals. 38. Highway an additional burden on a railroad. 34. Turnpike not an additional burden on public road. 35. Ferry-landing additional burden on highway. 36. Preliminary survey not a taking. 36a. "Taking" as construed in decisions. § 30. Injury or depreciation of property. — There should be a liberal constructioa of the word "taking." The constitutional provision is adopted for the protection of and security to the rights of the individual as against the government, and the term " taking" cannot be limited to the absolute conversion of real property to the use of the public, and not include cases where the value is de- stroyed by irreparable and permanent injury inflicted on it,"^ or where it is in any manner injuriously invaded. It includes not only the appropriation of the land, but also the direct consequences of such appropriation.^ Any permanent change in title, or encumVjrance on property, or exclusion of the owner from its enjoyment,* or substantial injury to the land, — such as discharging water upon it, — is a taking within the meaning of the constitution.* A partial destruction or diminution in value is a taking,* as also is a permanent flooding,* and the overflowing of land by means of a dam.' The using or enlarging of an irrigat- ing ditch without the owner's consent is a taking,^ the main- tenance of a boom whereby lands and crops are damaged by overflow every few years, while it may not impair the land-owner's rights or damage him in the same degree as if it were permanent or constant, is, as far as it goes, a taking.' A deposit of stone, rubbish, sand or other material upon 119 § 30 OF WHAT CONSTITUTES A TAKING. land is such a taking as to require compensation.^" It does not signify that the improvements are miide with proper skill and care." The injury to the owner's enjoyment of his property is the basis of his claim. For damages result- ing from unskillful and negligent construction, the owner has his remedy at common law. Throwing an arch over property, or tunnelling it, is such a permanent use of land as to constitute a taking.^^ Although the damage may be nominal, yet if the act violates the rights of any one, and the violation is of such a nature that, if it be continued for a sufficient period of time, the wrong-doer may acquire a title by adverse possession or presumption of a grant, the person whose rights are violated may maintain an action therefor without proof of any other actual dam- ages.*' 1 Pumpelly v. Green Bay Co., 13 Wall. 166; Foster v. Stafford National Bank, 57 Vt. 128; Wilmes v. Minneapolis Ry., 29 Minn. 242. ' Hamilton County v. Garrett, 62 Tex. 602. 3 Cusliman v. Smith, 34 Me. 247. * Pumpelly v. Green Bay Co., 13 Wall. 166 ; Lee v. Pembroke Iron Co., 57 Me. 481; Selden v. Delaware Co., 24 Barb. 362; Chase B. New Tork. Central E. E., 24 Barb. 273; Morris Canal Co. v. Seward, 23 N. J. L. 219; Wabash Canal v. Spears, 16 Ind. 441; Grand Bapids Co. «. Jarvis, 30 Mich. 308; Arimond v. Green Bay Co., 31 Wis. 316; Hooker v. New Haven Co., 14 Conn. 146; Turner v. Rising Sun Turnpike Co., 71 Ind. 547. Taking materials for repair of roads cannot be justified unless com- pensation is provided. Reynolds v. Speers, 1 Stew. 34. 5 Glover v. Powell, 10 N. J. Eq. 2U. « Northern Transportation Co. v. Chicago, 99 U. S. 635; Sweeney ». U. S., 62 Wis. 396. ' SuUiff V. Johnson, 17 Neb. 575 ; Weaver v. Mississippi Boom Co., 2& Minn. 634. ^ Tripp's. Overacker, 7 Col. 72. ' McKenzie u. Mississippi Boom Co., 29 Minn. 288; Weaver v. Mis- sissippi Boom Co., 28 Mian. 534. 1" East Pennsylvania E. E. v. SchoUenberger, 54 Pa. 144. " Selden v. Delaware Co., 24 Barb. 362. ^ Plnchin v. London & Blackwall Eail. Co., 5 De G. M. & G. 851 ; Spar- row ». Oxford, Worcester & Wolverhampton Eail. Co., 2 De G. M. & G. 94; Eamsden v. Manchester Eail Co., 12 Jur. 293. M Lund V. New Bedford, 121 Mass. 286; New Orleans Telegraph Co.«. Southern Telegraph Co., 53 Ala. 211. 120 OF WHAT CONSTITUTES A TAKING. § 31 § 31. Taking an easement. — The right to use property is the valuable feature of property. Property is the right to possess, use, enjoy, and dispose of a thing. Under the terna " property" is included not only the land owned, but also every right which accompanies ownership and is its in-^ cident.^ The right of using necessarily includes the right and power of excluding others from using the same property. The constitution is intended to protect all the essential el- ements of ownership which make property valuable, and when an easement of any sort is taken in property, a certain portion of the property is taken, and that taking requires compensation.^ Easements which owners have over the lands of others are property, and a taking or interference with the same is a damage for which compensation should be paid.^ The change from a private way of necessity, to a public highway, is an additional burden, and requires com- pensation. A public way is a new and larger use of the lands, and generally imposes new duties as to fences and. repairs, for which the owner should have indemnity.* A railroad is an additional burden upon a private right of way.* A change from one public use to another, essen- tially the same, gives no claim for compensation.' A right to shoot and fish over certain lauds was not considered to be included in the subjects of compensation covered by the English Lands Clauses Consolidation Act.' A corporation formed to construct an underground railroad, can condemn only an easement suflScient for the needs of the road ; it can- not condemn anything more unless the owner makes some use of the laud inconsistent with the easement acquired by the company.^ ' Gulf Railway v. Fuller, 63 Tex. 467; Lycoming Gas and Water Co. w. Mayer, 99 Pa. St. 615. 2 Eaton V. Boston & Maine R. R., 51 N. H. 504; Bransons. Philadel- phia, 47 Pa. 329; McLauchliu v. Charlotte R. R., 5 Rich. L. 583. 3 Arnold V. Hudson R. R., 65 N. Y. 661. < Abbott V. Stewartstown, 47 N. H. 228. 5 Greenwood v. Wilton R. R., 23 N. H. 261 ; Parker v. Boston R. R., 3 Cush. 107; Philadelphia R. R. v. Williams, 54 Pa. 103; Gear i). Railroad,, 121 § 32 OF WHAT CONSTITUTES A TAKING. 39 Iowa, 23 ; Glover 1). North Staffordshire Rail. Oo., 20L.J. (Q. B.) 376j Watklns v. Great Northern Rail. Co., 20 L. J. (Q. B.) 391. « Stetson ». Bangor, 60 Me. 313. ' Bird V. Great Eastern Rail. Co., 84 L. J. (C. P.) 366. 8 HiberniaR. R. v. Be Camp, 47 N. J. L. 518. § 32. Additional burden of railroads upon highways, turnpikes and canals. — The imposition of an additional burden upon property constitutes a taking. Damages are paid to owners for the burden upon their premises of a public highway or turnpike. These damages are accepted on the understanding that the easement taken shall be for the purpose of a turnpike or highway, and not for a use which will be more burdensome to the adjoining owner. For the additional burden additional compensation should be pro- vided.^ The public may change the character of its high- ways, and pay no additional damages, when the use is not essentially changed.^ The use of a plank road by a rail- road is not considered an additional burden as to the owner.' The use of a highway by a railroad is not a mere modifica- tion of the public servitude, but an entirely new use. It is not like the change of a highway into a turnpike road. The public cannot use the railroad with their own vehicles on paying toll. On a discontinuance of the highway, the land reverts to the former owner; but a discontinuance of a liighway on which there is a railroad would leave the rail- road there. For such an occupation there should be addi- tional damages to the adjoining owner.* The consent of the owner to a highway which benefits his land and renders access to it easy does not extend to an occupation by a rail- road, which makes access both diflScult and dangerous, and which depreciates the value of his land.® A railroad is an additional burden on a turnpike,* especially when such por- tion is used for depot or platform purposes.' This burden is not only additional to the turnpike company, but to the adjoining owners and the turnpike company cannot convey their road to a railroad company so as to cut out the rights of the adjoining owner ; for the change of the turnpike to a 122 OF WHAT CONSTITUTES A TAKING. § 32 Tailroad operates as an abandonment of the turnpike to a different use, thereby allowing a reversion to the owner, who may recover damages in trespass." If any change is made wholly foreign to the ordinary purposes of a highway the adjoining owner is entitled to compensation.' A town which has paid damages for the establishment of a public highway may also recover damages for the expense necessary in establishing and maintaining a new road.^" This doctrine would not apply to necessary crossings,^' but to permanent occupations-of sections of roads. In Penn- sylvania,^'^ Iowa," and Louisiana,^* no compensation is pro- vided, as the use is considered a proper modification of an existing use. The construction of a railroad on the site of a canal is not an additional burden,^^ unless it destroys cer- tain easements which are inconsistent with the changed Tise,^^ or renders the access to the land more difficult by cuts and embankments," or the canal company has not abandoned the easement.'^ The construction of a railroad across a right of flowage,^' or on a levee or landing,^" is an additional burden. 1 Hatch V. Cincinnati E. R., 19 Ohio St. 92 ; Chapman v. Oshkosh E. K., 33 Wis. 629; Kucheman v. C. C. & D. R. R, 46 Iowa, 366. ' Whitman v. Boston E. E., 7 Allen, 318. 3 Brainardu. Missisquoi R. R., 48 Vt. 107. * Imlay». Union Branch R. E., 26 Conn. 249 ; Wager v. Troy Union E. R., 25 N. y. 526; Williams ti. New York Central R. R., 16 N. Y. 97; Trust- ees V. Auburn R. R., 3 Hill, 567; Starr v. Camden R. E., 24 N. J. L. 592; Troy V. Cheshire R. R., 23 N. H. 83; South Carolina R. R. v. Steiner, 44 H3a. 546 ; Drake t;. Chicago Ry., 63 Iowa, 302 ; Stange v. Dubuque, 62 Iowa, 303; Buchner v. Chicago Ry., 60 Wis. 264; Citizens' Coach Co. ■». Camden R. R., 33 N. J. Eq. 267. 5 Williams ». New York Central R. R., 16 N. Y. 97; Mahon u. New York Central R. R., 24 N. Y. G68; Davis v. Mayor ofNew York, 14 N. Y. 506; Craig V. Rochester R. R., 39 Barb. 494; Kucheman v. C. C. & D. R. R., 46^ Iowa, 366; Citizens' Coach Co. v. Camden R. R., 33 N. J. Eq. 267; Xawrence R. E. Co. v. Williams, 35 Ohio St. 168. " Seneca Rd. Co. v. Auburn R. R., 5 Hill, 170; Mahon v. Utica R. R., Xalor, 156; EUicottville Rd. ■». Buffalo E. R., 20 Barb. 644; Keuton County .'Court V. Turnpike Co., 10 Bush, 629. ' Higbee v. Camden R. E., 19 N. J. Eq. 276. « Mahon v. New York Central E. R., 24 N. Y. 658. 123 § 33 OF WHAT CONSTITUTES A TAKING. » Denver v. Bayer, 7 Col. 113. w Troy V.Cheshire K. R., 23 N.H. 83. ^ Bordentown Turnpike Co. v. Camden R. E., 17 N. J. L. 314. 12 The Commonwealth v. Erie R. R., 27 Pa. 339; Cleveland K. E. v^ Speer, 66 Pa. 325. 1' Gear ». Railroad, 39 Iowa, 23. But see Kucheman v. C. C. & D. E. E., 46 Iowa, 366, where the owner has the fee in the street. 1* Harrison v. New Orleans Pacific Ry., 34 La. An. 462. ^ Chase ». Sutton Mfg. Co., 4 Cush. 152. 16 Whitman v. Boston E. R., 7 Allen, 313. " Hatch V. Cincinnati R. R., 19 Ohio St. 92. In the case of Gordon ».. Pennsylvania R. E., 6 Eep. 727 (decided by the supreme court but not re- ported) the canal, which was subsequently purchased by a R. R. Co.. and adapted to its uses, had carried off the surface water, which before- the construction of the canal had been carried off by a natural channel. The railroad company filled up the canal, and provided no channel for the water in place of the natural one, or canal, and built a box-sewer under the railroad ; and the water, shooting through the sewer at a, point where there was no natural channel, formed a pond and over- flowed plaintiff's land. The damages were increased by the course taken by the railroad. It was not alleged that in the assessment of damages the absurd, yet possible, act of placing a culvert under the canal to convey water to the land below entered into the consideratioa of anybody. No jury could anticipate such folly. When the damages were assessed for a canal, no railroad injury therefrom was in contem- plation. The railroad company had no right to inflict that injury because of the settlement of all probable damages from the building of the canal. i» Pittsburg E. R. V. Bruce, 102 Pa. St. 23. w Davidson v. Boston R. R., 3 Cush. 91. 2» Railroad Co. v. Schurmeir, 7 Wall. 272. §'33. Highway an additional burden on a railroad. The laying of a highway across a railroad track is consid- ered an additional burden in those states where the law imposes upon the railroad company the additional expense of erecting and maintaining signs at the crossings, of erect- ing and maintaining cattle-guards, and of flooring the cross- ings and keeping the planks in repair. These expenses, being directly imposed, must be paid for.^ In New York and Pennsylvania the laying of highways across the tracks of railroads may be done without compensation,^ and the railroad company may be compelled to make the necessary^ excavations, embankments, and bridges to safely accommo- date the highway.' This authority would not include the^ 124 OF WHAT CONSTITUTES A TAKING. § 34 opening of roads through grounds used for necessary build- ings, yards, etc.,* although it was suggested in Pennsylvania that a street might be opened through depot grounds, and that the wisdom of such action could not be questioned by the courts.^ , 1 Old Colony R. R. v. Plymouth, 14 Gray, 155; Crossley v. O'Brien, 24 Ind. 325. * Boston E. E. v. Greenbush, 52 N. Y. 510; Albany R. R. v. Brownell, 24 N. Y. 345; Philadelphia R. R. v. Philadelphia, 9 Pbila. 563. » Albany R. R. ■». Brownell, 24 N. Y. 345. * Boston R. R. ■». Greenbush, 52 N. Y. 510; Mohawk R. R. v. Artcher, 6 Paige, 83. 5 Philadelphia R. R, ». Philadelphia, 9 Phila 563. § 34. Turnpike not an additional burden on public road. — A change from a highwaj' to a turnpike charging toll is not such an essential change as to require compensa- tion to adjoining owners. When a highway is taken for a turnpike, it does not cease to be a highway, and the land -does not revert to the owner. The payment of tolls to the turnpike company is in lieu of payment of taxes to support the road. The change is only a change of mode in sustain- ing the road, and not a change of use.^ The easement that already existed is all that is acquired.^ The same rule has been applied to changes from public roads to piank-roads.' In Williams w. Natural Bridge Plank-Road,* the Supreme Oourt of Missouri consider that a change which will in- crease the injury and inconvenience resulting to the owner, on account of deep cuts necessary for a plank-road, renders . the burden additional, and demands compensation to the owner ; but this can hardly be considered sound law, as the public and turnpike companies may make changes in the grades of roads and streets without compensation to own- ers.* The converse of the proposition is also true, that a change from a turnpike to a public road is not a material change, requiring additional compensation.* The reservation of a way for a turnpike in a deed does not give any company that may choose to occupy it the jight to do so, unless compensation is made.' 125 §§ 35, 36 OF WHAT CONSTITUTES A TAKING. ' Benedict v. Goit, 3 Barb. 459; Walker v. Caywood, 31 N. T. 51;^^ Wright •». Carter, 27 N. J. L. 76; The State v. Laveracl^, 34 N. J. L, 201 j Douglass w. Turnpike Koad, 22 Md. 219; Callison ii. Hedrick, 15 Gratt. 244; Nolensville Turnpike v. Baker, 4 Humph. 315; Panton Turnpike Co. V. Bishop, 11 Vt. 198. Contra, Cape Girardeau Koad v. Benfroe, 58 Mo. 265. '■' Turner v. Rising Sun Turnpike Co., 71 Ind. 547. » Walker v. Caywood, 31 N. Y. 51 ; Chagrin Falls Koad v. Cane, 2 Ohio St. 419. ♦ 21 Mo. 580. 5 Douglass V. Turnpike Road, 22 Md. 219. 8 Peirce v. Somersworth, 10 N. H. 369; The State v. Maine, 27 Conn. 641; Heath v. Barman, 49 Barb. 496; Murray v. Berkshire, 12 Mete. 456^ ' Shippen v. Paul, 31 N. J. Eq. 439. § 35. Ferry-landing additional burden on highway. A public highway is devoted to furnishing a right of pas- sage to the public, and nothing more. The highway, although abutting on a navigable stream, cannot be used for the purpose of lauding goods or passengers ; and for such attempt the adjoining owner, or the turnpike company owning the turnpike, may recover damages.^ The grant of a ferry license does not authorize the use of the land of another as a landing, nor can the landing be on a county road or city street, unless compensation is provided for the additional burden.* 1 Lexington R. R. v. McMurtry, 3 B. Mon. 516. " Prosser v. Wapello County, 18 Iowa, 327; Haight v. Keokuk, 4 Iowa, 199. § 36. Preliminary survey not a taking. — An entry may be made on land, to ascertain boundaries for public purposes without compensation, provided the entry was reasonably necessary, not too long continued, and accom- panied with no unnecessary damage. Selectmen may per- ambulate boundaries or view land prior to laying out a road.^ A sheriff may also enter upon land to arrest a man. An entry may be authorized for preliminary survey of a public improvement, and no compensation will be due if the occupation is temporary only, and accompanied with no unnecessary damage.* A railroad company may go upoa 126 OF WHAT CONSTITUTES A TAKING. § 36af land for the purpose of surveying and locating its lines of loiid, but the actions of its agents and employees must be in strict compliance with law.* For all wanton and un- necessary acts, those entering would be liable in trespass.* A continuance of the entry made for survey, and a construc- tion of an embankment or roadway,^ or grading ofthe same,* will not be justified. After the construction commences, the entry can only be justified by a condemnation.' Tem- porary occupation can onlj? be by legislative sanction. A city council have no authority to grant such privileges with- out legislative delegation. * Property cannot be occupied for a temporary road, to be used during sleighing-time, or while a regular road is being laid out, without compensa- tion.* Experimenting with land will not be permitted without compensation paid or secured.^" An exploration which consists of digging a shaft thirty feet in diameter, which was to be continued to a depth of sixty-five feet, from which a tunnel was to be made under a river, is too exten- sive an exploration to be called a preliminary survey, when made on land occupied by a rail road. ^^ 1 WiQslow V. Gifford, 6 Cash. 327. 2 Walther v. Warner, 25 Mo. 277; Polly v. Saratoga E. E., 9 Barb. 449; The State v. Seymour, 35 N. J. L. 47; Steuart i;. Mayor, 7 Md. 500. ' Republican Valley R. R v. Fink, 18' Neb. 82; Oregonian Railway w. Hill, 9 Ore. 377. * Bonaparte v. Camden R. R., Baldw. 205 ; New Orleans E. R. v. Jones,. 68 Ala. 48. 6 Eidemiller v. Wyandotte City, 2 Dill. 376. « Steuart v. Mayor, 7 Md. 500. ' Hazen». Boston R. R., 2 Gray, 574; Davie v. San Lorenzo R. R., 47 Cal. 517. 8 The People v. Third Avenue R. R., 45 Barb. 63. 9 Holcomb V. Moore, 4 Allen, 529; Holden v. Cole, 1 Pa. 303, M Ash -0. Cummings, 50 N. H. 591. " Morris E. R. v. Hudson Tunnel Co., 25 N. J. Bq. 384. § 36a. «< Taking "as construed in decisions. — Any proceeding, the efi'ect of which is to vest in the public the right of using the property, constitutes a taking within the constitutional provisions.^ A flow of water by underground 127 § 36a OF WHAT CONSTITUTES A TAKING. currents, pipes, conduits, canals, or percolation is a taking.* So also is the obtaining of water by means of a filtering •basin.'' A vote of a city council, laying out a section of a stream as a sewer, followed by construction, is a taking of the waters of the stream, an actual withdrawal of the water not being necessary to constitute an actual taking unless expressly required ; the character and extent of the dominion assumed is determined by the vote of the coun- cil.* But a simple vote will not be construed as a taking,* > FinkD. Newark, 40 N. J. L. 11. 2 ^tna Mills v. Brookllne, 127 Mass. 69; Bailey v. Woburn, 126 MadS. -416; ^tna Mills v. Waltham, 126 Mass. 422. 3 Brookline v. MacKintosh, 133 Mass. 215. * Worcester Sas-ljight Co. v. Commissioners, 138 Mass. 289. s Lancaster v. Kennebec Co., 62 Me. 272. 128 IMPAIRMENT OF EIGHTS. § 37 CHAPTER Y. IMPAIRMENT OF EIGHTS SECURED BY CONTRACTS AND CHARTERS. ■^ 37. Impairment of private contracts. 38. Interference witli rights secured l(y charters. 39. Charters not In terms exclusive. 40. Legislative contract not to condemn. 41. Condemnation of the property of a corporation. 42. Condemnation of a franchise. 43. Impairment of the enjoyment of a franchise, and regulation of the use of it. 44. Condemning a use of the property of a corporation. 44a. Condemnation of a right of way at railway crossings. 45. Condemnation of property devoted to another public use. 46. Express legislative authority. 47. Condemnation under general la^ws of property devoted to another public use — Priority of location. § 37. Impairment of private contracts. — The legisla- "ture may not destroy or impair the rights secured to individuals by virtue of their contracts.^ The rights of in- dividuals in and to property contained in their contracts of transfer are protected by the constitution, but this does not interfere with the power of the state to condemn the prop- erty thus affected, on giving due compensation. The prop- erty and the contracts must yield to the demands of the sovereign.^ Damages for the taking of property by emi- nent domain do not arise out of contract. The entry of the company is without consent of the owner, and needs no con- sent. Hence a statute allowing a stay of execution in ac- tion for the recovery " of money due by contract, or of damages arising from breach of contract," does not apply to the case of recovery of damages for taking land by the power of eminent domain.^ The contract is not thereby impaired, for full compensation is given. A state may not annul or modify a grant of land, or a lease, or a mortgage on it, but it may take the land for public use on making 9 129 § 37 IMPAIKMENT OF KIGHTS. compensation. Such an appropriation does not impair the obligation of the contract contained in the grunt* or lease,^ or of the covenants of warranty,^ or for quiet enjoyment/ or of the encumbrance upon the land.^ There is no reason ■why land obtained under a legislative grant for a public use should be exempt from the exercise of the right w^henthe public interest requires it for other public uses any more than other property. The rights of the owner whose property is taken are as sacred in one case as the other.' Land just granted by the state may be taken for a road.^" Land pur- chased for the purpose of laying out a private road may be taken for a public road.^^ "When the state once makes a valid grant of property, it cannot resume the property for public use without making compensation, the right of emi- nent domain being neither surrendered nor impaired by such a grant. ^^ The exercise of the right of eminent domain, in condemning the estateof a lessee, does not impair the ob- ligation of the covenant to surrender, or any other covenant in the lease. The covenant to surrender is transferred to the person or corporation acquiring the title. '^ The owner is protected from arbitrary seizure, and not from an appro- priation by public right for public use. All persons hold their property subject to requisitions for the public service. '*^ The conditions imposed upon a grant of land dedicated by an owner for a particular public purpose protect it from being applied to another and different use, unless compen- sation is paid.'' The contract of a railroad company with one .telegraph company to allow it the exclusive use of its right of way does not prevent a condemnation of the use of the right of way by another telegraph company.'* In conferring the power of eminent domain, the legislature in effect declares that the business is of a public character, and any contract which tends to restrict or prevent the exercise of the right is void as being against public policy. No one can give a rail- road or telegraph company the exclusive right of way 130 IMPAIRMENT OP RIGHTS. § 38 through his land, no matter how small a parcel it may be." " 1 Const. U. S., art. I., § 10; Jones v. Walker, 2 Paine C. Ct. 688. ' Brown v. Corey, 43 Pa. 495. In re Twenty-second St., 103 Pa. St. 108; Phillips v. Watson, 63 Iowa, 28; Langdon v. Mayor of New York, 93 N. Y. 129; Prospect ParkE. E. v. Williamsoa, 91 N. Y. 552. ' Harrisburg R. R. v. Peffer, 84 Pa. 295. ' West River Bridge v. Dix, 6 How. 507; Fletcher v. Peck, 6 Crancli,. 87; Johnson v. United States, 8 Ct. of CI. 243; Young v. McKenzie, $■ Ga. 31. * Frost V. Earnest, 4 Whart. 86; Alabama R. R. v. Kenney, 39 Ala. 307. « Bailey v. Miltenberger, 31 Pa. 37; Dobbins v. Brown, 12 Pa. St. 75> ' Frost V. Earnest, 4 Whart. 86. 8 Alabama R. R. v. Kenney, 39 Ala. 307; Williamson v. Hall, 62 Mo. 405. ' North Carolina R. R. v. Carolina Central E. R., 83 N. C. 489. w Enfield Bridge Co. v. Hartford R. R., 17 Conn. 40. '1 Phillips V. Watson, 63 lo-wa, 28. 1' Langdon . Mayor of Ne* York, 93 N. Y. 129. M Kip V New York R. R., 67 N. Y. 227. " Bonaparte v. Camden R. R., Baldw. 205; Donniher v. Mississippi, 8' Smed.&M. 649. ^ 15 United States v. Illinois Central E. R., 2 Biss. 174. The English act admits of the condemnation of land Inalienably settled upon a family by act of Parliament. In re Cuckfleld Burial Board, 24 L. J. (Ch.) 585. M New Orleans Telegraph Co. v. Southern Telegraph Co., 53 Ala. 211. " West Virginia Transportation Co. v. Ohio River Pipe Lihe Co., 22 W. Va. 600. § 38. Interference witU rights secured by charters. — Charters granted by the legislature to private corpora- tions are in their nature contracts, and any curtailment of the franchises granted is considered an impairment of the obligation of a contract, and hence forbidden by the United States constitution. ^ If, however, the state has passed a general law declaring that acts of incorporation shall be subject to alteration, amendment, and repeal, this reserves to the legislature the authority to make any altera- tion or amendment which will not defeat or substantially im- pair the object of the grant, or any rights under it, which the legislature may deem necessary. Manufacturing cor- porations, having erected dams, may be compelled to erect fish-ways for the passage of fish, notwithstanding they 131 <§ 39 IMPAIRMENT OF EIGHTS. may have paid compensation for the destruction of private rights of fishery.^ The erection of a bridge near a ferry which has been given an exclusive privilege is damaging private property for which compensation must be made. The privileges granted to municipal corporations in their charters are not in the nature of property, and may be withdrawn by subsequent legislation.* Licenses granted to corporations are revocable at the will of the legislature,, without damages."' The right of selecting a route secured hy charter is impaired by a subsequent grant to another ■company of one of the routes,® but where a choice of three routes is given, one not selected may be granted to another company. 1 Dartmouth College v. Woodward, i Wheat. 518 ; The State v. Noyes, 47 Me. 189; where the legislature endeavored to compel one railroad company to hold its trains at a crossing with another road a certain time, for the arrival of trains. Crenshaw ». Slate River Co., 6 Band. 345. 2 Holyoke Co. v. Lyman, 15 Wall. 500; Commissioners of Fisheries v. Holyoke Water-Power Co., 104 Mass. 446. ' Mason v. Harper's Ferry Bridge Co., 17 W. Va. 396. * East Hartford v. Hartford Br. Co., 10 How. 511 (reversing «. c, 17 €onn. 79). 5 Susquehanna Canal Co. v. Wright, 9 Watts & S. 9; Richmond Turn- pike v, Rogers, 1 Duv. 135; Rundle v. Delaware Canal Co., 14 How. 80; Uew York R. R. v. Young, 33 Pa. 175; Monongahela Nav. Co. v. Coons, 6 Watts & S. 101. 6 Chesapeake Canal Co. v. Baltimore R. R., 4 Gill & J. 1. ' Louisville R. R. v. Louisville City R. W., 2 Duv. 173. § 39. Charters not in terms exclusive. — Charters grant- ing privileges, and not in terms excluding other grants of a similar character, or with terms so general as to comprehend the entire privilege, are not considered as contracts that similar charters shall not be subsequently granted, even if the operation of the subsequent grant is injurious and fatal to the former grant.^ Charters are to be construed most strongly against the company and in favor of the public* Street-car lines are permitted on the same , or parallel , streets with lines previously authorized by charters not exclusive.^ A striking instance of construction of a charter in favor of 132 IMPAIRMENT OF EIGHTS. § 40 the public is found in the case of Kichmond Railroad v. Louisa Railroado* The charter granted to the first railroad was to a railroad to run between two points, with a stipula- tion that no other raih'oad be chartered for the period of thirty years, the probable effect of which would be to diminish the number of passengers on the railroad. Another railroad was chartered to run between the same points, but the granting of the charter was not considered an impair- ment of the obligation of the contract, for the reason that it, did not appear but that the second road would be used exclusively for merchandise, and not for passengers. An exclusive charter for a horse-railroad does not exclude the construction of a steam-rairload,* and vice versa.^ 1 Turnpike Co. v. The State, 3 Wall. 210; The State v. Noyes, 47 Me. 189; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 33; White River Turn- pike Co. V. Vermont Central R. R.,21Vt. 590; Sixth Avenue R. R. v. Kerr, 45 Barb. 138; Hamilton Avenue, 14 Barb. 405; Mohawk Bridge 17. TItica R. R., 6 Paige, 554; New York R. R. v. Young, 83 Pa. 175; Tucka- hoe Canal Co. ». Tuckahoe R. R., 11 Leigh, 42; Richmond Turnpike ». Rodgcrs, 1 Duv. 135; Illinois Canal v. Chicago R. R., 14 111. 314; Dyer v. Tuscaloosa Bridge Co., 2 Port. 296; Fuller v. Edings, 11 Rich. L. 239. = Charles River Bridge v. Warren Bridge, II Pet. 420; Mohawk Bridge ". tJtica R. R., 6 Paige, 554. 8 Sixth Avenue R. R. v. Kerr, 45 Barb. 138; New York R. R. v. Forty- second Street R. R., DO Barb. 285 ; Brooklyn City R. R. v. Coney Island R. B., 35 Barb. 364. * 13 How. 71. 6 Louisville R. R. v. Louisville City R. W., 2 Duv. 175. « Denver R. W. v. Denver City R. W., 2 Col. 673. § 40. Legislative contract not to condemn. — The power of eminent domain is one of the essential incidents of sover- eignty, and one legislature cannot contract with a corpora- tion that its property shall not be taken by the exercise of eminent domain. Such provision has no binding force upon a subsequent legislature, ^ the contract -being void as against public policy. ^ There is no such thing us an extinction of the right of eminent domain.' Even where a special act grants perpetual immunity against the opening of a street through a given tract, a street may nevertheless 133 § 40 IMPAIRMENT OF EIGHTS. be opened through the tract under the exercise of the right of Gmin(5nt domain.* The use may be changed, notwithstanding the original condemnation devoted the land to a specific purjDose for- ever. The word " forever " would mean until the legisla- ture otherwis^e directed.* A provision in a charter by which the legislature reserves a right to repurchase docs not bind the legislature to purchase rather than to condemn.® Lands reserved from sale by constitution or by legislation would be subject to condemnation for public improvements.' The contracts or conveyances of a municipal corporation do not prevent a subsequent condemnation of the property.^ The action of railroad commissioners, approving the abandon- ment of a railroad depot, is not a contract between the state and the railroad, and the legislature may subsequently reverse the action of the commissioners. The action of the commissioners in approving the proposed change is not such a. judgment as to prevent the legislature from nullifying and reversing the approval by taking a different course. Their duties are gwast-legislative. The discretion which is sometimes exercised by the legislature itself is delegated to the board of commissioners, and the power may be resumed by the legislature, and the course modified, without impair- ilng the obligation of a contract.^ 1 Backus V, Lebanon, UN. H. 19; Proprietors of Locks v. Lowell, 7 Gray, 223; Charles Elver Bridge v. Warren Bridge, 7 Pick. 344; The ,State V. Hudson Tunnel Co., 38 N. J. L. 548; Newcastle R. R. v. Peru E. R., 3 Ind. 464; Illinois Canal v. Chicago E. E., 14 111. 314; Eominger «. Simmons, 88 Ind. 453. ' West Virginia Transportation Co. v. Ohio Eiver Pipe Line Co., 22 W. Va. GOO; Hyde Park v. Oakwoods Cemetery Association, 119 111. 141. 3 New York R. R. v. Boston E. E., 36 Conn. 196; Beckman v. Saratoga E. E., 3 Paige, 45. * In re Twenty-second St., 103 Pa. St. 108. ' Wellington, petitioner, 16 Pick. 87. ^ Backus V. Lebanon, 11 N. H. 19. ' Parmelee^. Oswego E. E., 7 Barb. 599; The Stater. Hudson Tunnel Co., 38 N. J. L. 548. ^ Brimmer v. Boston, 102 Mass. 19. ■* Connecticut v. New Haven Co., 43 Conn. 351. 134 IMPAIRMENT OF EIGHTS. § 41 § 41. Condemnation of the property of a corpora- tion ■ While the legislature may not repeal or matorially modify the charter of a corporation, unless the power is reserved, the property of the corporation is subjeot to con- demnation for public uses.^ The taking of the property of a corporation is not an alteration, modification, or repeal of its charter. It is the enforced purchase of its prop- erty.^ The banking-house of a bank, the bridge of a bridge •company,^ a part of its buttress,* a mill privilege," and the grounds of an academy,* may betaken, as well as the prop- erty of an individual.' The property is held subject to the necessities of the public. The franchise and the property, ■when inseparable, can be taken together, compensation being made for both.^ The property of a corporation, not actually in use or absolutely necessary for the enjoyment of the franchise, or which is only convenient, and not such as the corporation might condemn, and which they had acquired by purchase, is subject to condemnation for other purposes, as the property of an individual f and the com- pany owning the land so sought to be condemned by another company cannot prevent the condemnation of the land by putting it to a use not necessary for the proper exercise of its franchise.^" It is no excuse far failure to make compen- sation that the stock of the company owning the land sought, has no market value or that the property itself is unproductive." 1 Trustees®. Salmoad, 11 Me. 109; Jeffersoaville R. R. ■». Dougherty, 40 Ind. 33; Illinois Canal v. Chicago R. R., 14 111. 3U; East and West R. E. V. Bast Tennessee E. E., 75 Ala. 275. ^ Grand Junction E. E. ». Middlesex, 14 Gray, 553; Boston R. R. v. Salem R. R., 2 Gray, 1 ; The Stato v. Hudson Tunnel Co., 38 N. J. L. 648. • Charles Elver Bridge v. Warren Bridge, 11 Pet. 420. '- Baltimore E. E. v. F. W. & K. E. R., 17 W. Va. 812. 5 Stevens v. Borough of Dmbury, 53 Conn. 9. « Trustees©. Salmond, 11 Me. 109. ' White Eiver Turnpike Co. v. Vermont Central E. R., 21 Vt. 590; Bel- Jona Co.'s Case, 8 Bland, 443. ' West River Bridge «?. Dix, 6 How. 607, per McLean, J. ; Crosby v, Hanoverj 36 N. H. 404. 135 § 42 , IMPAIEMENT OF EIGHTS. Peoria K. B. v. Railroad, 66 111. 174; IroQ E. E. v. Ironton, 19 Ohio St. 299. 10 Baltimore E. E. ». P. W. & K. E. E., 17 W. Va. 812. " Zra re Kensington Turnpike Co., 97 Pa. St. 260; Baltimore E. R. ».- P. W. & K. E. E., 17 W. Va. 812. § 42. Condemnation of a franchise. — Franchises are held in subordination to the exercise of eminent domain, and must yield to its proper exercise. The investiture of the franchise is not absolute. Conditions enter into all con- tracts, superinduced by the preexisting and higher authority of the laws of nature, of nations, or of the community. There is no distinction between corporeal and incorporeal property, and a franchise is as subject to the power of eminent domain as any other property.^ There is no im- pairment of the obligation of a contract if, on the condem- nation of the entire franchise, or on the authorization of a material injury to it, compensation is made.^ The provis- ion for compensation recognizes the validity of the contract.* There is no greater sacredness in the grant of a franchise to a corporation by legislative power than of a grant to an individual, and such franchises may be taken when the public necessities require, it, on making suitable compen- sation. It must be a necessity that arises from the very nature of things over which the corporation has no control : not a necessity created by the corporation itself for its own con- venience or for the sake of econouiy.* It must clearly ap- pear that the legislature intended that the franchise should yield to public use, and it should not be taken when the public purpose can otherwise be accommodated.^ A fran- chise may be valuable, although the property upon which it is exercised may belong to the public. In condemning such a franchise, the value of the property should not be included.' In the case of Central Bridge v. Lowell,* the court gives rules for the computation of the amount of compensation for a franchise which determines at a fixed time when the property of the corporation is to vest in thft 136 IMPAIRMENT OF RIGHTS. § 43 state. In New Jersey it is suggested that the shares of stock of dissenting stockholders of a corporation may be condemned by the corporation upon a valuation.* A ferry franchise '" and the right to use land for operating a railway thereon " are both considered as property. 1 West River Bridge v. Dix, 6 How. 507 ; Enfield Toll-Bridge Co. v. Hartford R. E., 17 Conn. 40; Backus v. Lebanon, 11 N. H. 19; Central ■ Bridge v. Lowell, 15 Gray, lOfi ; New York E. E. v. Boston R. R., 36 Conn. 196 ; Salem Turnpike v. Lyme, 18 Conn. 451 ; James River Co. v. Thomp- son, 3 Gratt. 270 ; Tuckahoe Canal Co. v. Tuckahoe R. R., 11 Leigh, 42 ; La- fayette Plank Road v. New Albany R. R., 13 Ind. 90; Newcastle E. R. v. Peru R. R., 3 Ind. 464; Pennsylvania E. R.'s Appeal, 93 Pa. St. 150; Lake ShoreEailwayv. Chicago R.R., 97 111.506; Dunlap «. Toledo Ey., 60 Mich. 470. 2 Eichmond E. R. v. Louisa E. E., 13 How. 71; Charles Eiver Bridge v. Warren Bridge, 11 Pet. 420, 7 Pick. 344; White River Turnpike v. Ver- mont Central E. E., 21 Vt. 590; Central Bridge v. Lowell, 4 Gray, 474; Boston E. E. v. Salem E. E., 2 Gray, 1 ; Matter of Kerr, 42 Barb. 119; En- field Toll Bridge Co. v. Hartford Bridge, 17 Conn. 454 ; Baltimore Turn- pike V. Union E. W., 35 Md. 224; In re Towanda Bridge Co., 91 Pa. St. 216; Pennsylvania R. E.'s Appeal, 93 Pa. St. 150; Philadelphia E. E.'s Appeal, 102 Pa. St. 123. = West Eiver Bridge v. Dix, 6 How. 507; In re Twenty-second St., 102 Pa. St. 108. * Eichmond E. E. v. Louisa E. E., 13 How. 71 ; The State v. Canter- bury, 28N. H. 195; Barber v. Andover, 8 N. H. 398; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; West Eiver Bridge i>. Dix, 16 Vt. 446; Arming- ton V. Barnett, 15 Vt. 745; Eastern E. E. v. Boston E. E., Ill Mass. 125; Central Bridge v. Lowell, 4 Gray, 474; Boston Water Power Co. v. Bos- ton E. E., 23 Pick. 360; Eed Eiver Bridge v. Clarksville, 1 Sneed, 176.- '■ Pennsylvania E. E.'s Appeal, 93 Pa. St. 150. ' West River Bridge v. Dix, 6 How. 507, per Woodbury, J. ' Central Bridge v. Lowell, 15 Gray, 106. 8 15 Gray, 106. 9 Black V. Delaware Canal Co., 22 N. J. Eq. 130. i» Mason ». Harper's Ferry Br. Co., 17 W. Va. 396. " Lake Sliore Railway V. Chicago R. R., 100 111.21. § 43. Impairment of the enjoyment of a franchise^ and regulation of the use of It. — The enjoyment of an exclusive franchise may be impaired, under legislative sanc- tion, but compensation must be provided.^ There is no im- plied contract that there shall be no change in the laws which will render the use of the franchise less profitable.^ If 137 § 43 IMPAIRMENT OF EIGHTS. the act of incorporation of one company is repealed by the state and a new corporation created with similar powers, requiring the exercise of the right of eminent domain, such a repeal is not unconstitutional if compensation for the property ■of the extinct corporation is provided.^ The establishment of a railroad bridge within the exclusive privilege of a toll- bridge is an impairment of the exclusive privilege of a *« bridge " within such limits. Although the manner of construction and use may be different, the railroad bridge must be considered " another bridge" within the meaning •of the act, although not a similar bridge, and the damages suffered must be assessed and paid.* The use of the prop- erty of a corporation by the corporation itself is subject to the regulation of the legislature, and such regulation is not a taking of the property for the use of others. A railroad may be compelled to make cattle-guards on the line of the road, to protect the lives of animals and of the traveling public.® A railroad maybe compelled to build a depot in a ■certain place, and to cause trains to stop there. ° This is not a taking of the property of the railroad. The depot, when built, belongs to the company. The legislature may regulate the enjoyment of the franchise by proyiding for connecting railroads together, and may prescribe by whom, in what manner, and under whose supervision the work should be accomplished, and in what proportion, according to their respective interests, the expenses shall be met by the railroads themselves ; and this without compensation, and without regard to the wishes of either corporation.'' Kail- roads may be compelled to make wider and better bridges -over streets, in order to accommodate public travel,^ and to make the necessary excavations, embankments, and bridges for new highways.^ In some states it has been considered too onerous to impose upon railroads and canals the burden of making new crossings and bridges for roads and streets subsequently made, without compensation, while they may be compelled to provide for existing roads and streets.^" 138 IMPAIRMENT OF RIGHTS. § 44 » The State v. Noyes, 47 Me. 189; Eafleld Toll-Bridge r. Hartford Bridge •Co., 17 Conn. 454; Salem Turnpike v. Lyme, 18 Conn. 451. 2 Drady v. Des Moines U. R., 57 Iowa, 393. 3 Greenwood v. Union Preigtit R. R., 105 U. S. 13. * Enfleld Bridge Co. ■;;. Hartford R. R., 17 Conn. 40; Cliarles River Bridge v. Warren Bridge, 11 Pet. 420. Contra, Lake v. Virginia R. R., 7 Nev. 294. ^ Tiiorpe V. Rutland R. R., 27 Vt. 140. ' The Commonwealth v. Eastern R. R., 103 Mass. 254. ' Fitchburg R. R. v. Grand Junction R. R., 4 Allen, 198. ' English V. New Haven Co., 32 Conn. 240. * Albany R. R. v. Brownell, 24 N. Y. 345 (overruling Millerw. New York Central R. R., 21 Barb. 613). i» Morris Canal Co. v. The State, 24 N. J. L. 62 ; Illinois Central R. R. ■». Bloomington, 76 111. 447. § 44. Condemning a use of the property of a corpora- tion. — It is not always necessary to coaderan the entire property or francliise of a corporation. Two street-cars may be run on the same track as well as one. Two rail- road companies may use the same track under proper regu- lations. The property may still remain in the road having located first, with aa easement in the second road to use the track in a proper manner, to be regulated by law.^ But unless compensation is required to be made a horse railway company may exclude cars of another company from its tracks in the streets of a city, even though authority is given the second company by the legislature.^ This easement, being a property, must be paid for.^ In Some states it is provided that one railroad corporation may use the tracks of another company for a limited distance, but such use cannot be lawfully effected except by the proper exercisei of the right of condemnation.* In Massachusetts the system has probably been perfected to a greater extent than in any other state. The railroad commissioners have the matter of compensation under their control. The com- pensation may be limited to the damages for the use and wear of tracks* and may exclude compensation for the dim- inution of profits or the value of the franchise. Each com- pany has an equal right to use the track. ^ The legislature .may require the keeping and rendering of particular ac- 139 § 44a IMPAIRMENT OF RIGHTS. counts, so as to show the amouat of business done by one railroad on the track of another.* In considering: the value of the easement taken, it is proper to consider the nature and extent of business transacted by the first railroad, as tending to prove the actual effect of the location on the value of the property taken, but no evidence is admissible as to the damages resulting from inconvenience and inter- ruption.' Commissioners may fix the times at which trains shall be run over the road, if not agreed upon between the parties, and may award the right to the condemning com- pany to run a certain number of independent trains over- the other's road, and to fix the times when the same shall be run and the stations at which they shall stop, and deter- mine whether the cars shall be run in independent or con- solidated trains.^ The award of rates for carrying pas- sengers and freight may be difterent from the same station on one road to the junction, when they are to be carried to different stations on the other road.® 1 Worcester R. E. v. Railroad Commissioners, 118 Mass. 561 ; Sixth' Avenue E. R. v. Kerr, 45 Barb. 138; Matter o£ K?rr, 42 Barb. 119; Jersey City & B. R. R. v. Jersey City & H. R. R., 20 N. J. Eq 61 ; Union R. W. w. Continental R. W., H Pliila. 321; C-'cag) R. B. u. IlUnois Central R. R., 113 111. 156; North Carolina R. R. v. Carolin i Central R. R., 83 N. C. 4S9; Kinsman St. R. E. v. Broadway St. R. R., Sf! Ohio St. 239. ' Citizens' Coach Co. v. Camden E. R. Co., 33 N. J. Eq. 267. 3 Jersey City &B. R. R. v. Jersey City & H. R. R., 20 N. J. Eq. 61. * Pennsylvania R. R. v. Baltimore R. R., 60 Md. 263. 5 Metropolitan R. E. v. Highland R. R., 118 Mass. 290. « Metropolitan R, R. v. Quincy R. R., 12 Allen, 262; Lexington R. R- V. Fitchburg R. R., 14 Gray, 266. ' Boston R. R. v. Old Colony R. R., 3 Allen, 142. " Lexington R. R. ». Fitchburg R. R., 14 Gray, 266. " Boston R. R. v. Western B. R., 14 Gray, 253. § 44«. Condemnation of a right of way at railway crossings. — Where one railroad company desires to cross the tracks of another company a right of \^ay may be con- demned across the tracks of the older company. The land itself cannot be condemned as this would result in severino^ the track of the other company. The right obtained is tha 140 IMPAIRMENT OF KIGHTS. § 44a Tight to cross the structure as it exists at the time of the hearing; the older company, however, cannot prevent the younger company from crossing by laying another track after proceedings have been commenced. ^ The use obtained is not exclusive ; the condemnation leaves the franchises unimpaired.^ The railroad corporation, across whose road another railroad or a highway is laid out, hns tiie like right as all individuals or bodies corporate, owning lands or ease- ments, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures on the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. But it is not entitled to damages for the interruption and inconvenience occasioned to its business ; nor for the in- creased liability to damages from aecidents ; nor for in- creased expense for ringing the bell; nor for the risk of being ordered b}'^ the county commissioners, when in their judgment the safety and convenience of the public may re- quire it, to provide additional safeguards for travelers crossing the railroad ; nor for the expenses of maintaining, a flagman, alleged to be necessary to guard against the greater liability to accidents occasioned by the obstruction of the view along its railroad, at the crossing of a highway, by means of the abutments of the new railroad of the other corporation.^ The condemnation of such a right of cross- ing is for the benefit of the public* The compensation made should cover all loss and damage which ms^y reason- ably be expected. In estimating the amount of this compensation, in addition to the value of the land taken, the inconvenience caused by the operation of the second road, the increased difficulty of access to the first road and the impairment of its capacity for doing business will be. considered. Evidence of the amount of traffic is admissi-. ble to show the extent of the use." No compensation will 141 § 4405 IMPAIBMENT OF EIGHTS. be made for the necessity of stopping trains at the cross- ing, nor for reduction in hauling capacity nor for increased danger of accidents.* In considering the right of one company to condemn and use the property of another company, it makes no differ- ence as to which is the elder company. If the elder com- pany has exercised its power to condemn property for its right of way, and has constructedand is operating its road, that does not withdraw its property from the equal power of condemnation of its right of way, for a crossing, to be enjoyed in common by a junior company. The right to cross is equal, and does not arise out of purchase. When the younger corporation has acquired its right or property in common with the older in a crossing, they become joint and equal owners, bound by mutual obligations to each other and to the public to so use this common right as to do no unnecessary harm to the other or to the public. It may be provided that all railroad crossings shall be made, kept up, and watchmen maintained at the joint expense of the companies, without regard to the priorities of either in^ the location and construction of its road. The elder com- pany does not possess any paramount or vested privilege to operate its road over that of the younger. Nor can it im- pose all the burdens of maintaining this crossing upon the road last constructed. When the appropriation is made, paid for, and put to the new use, both companies stand on a perfect equality as to the rights and privileges in the use of the crossing.' The company seeking to obtain the right to cross should pay a sum of money sufficient to enable the old company to place its track in as safe a condition as before the crossing was made.* If the right to cross with one track has been obtained, it is not necessary to surrender that right if it is desired to cross with a larger number of tracks, an additional proceeding being all that is necessary.' The statutes of Tennessee " provide that all railroads shall have power to construct their tracks so 142 IMPAIKMENT OP RIGHTS. § 45 as to cross each other if necessary, by main tracks or branches. > Central Vermont R. R. v. Woodstock R. R., 50 Vt. 452; Fitchburg R. E. V. New Haven E. R., 134 Mass. 547. 2 Lehigh Valley R. R. v. Dover E. R., 43 N. J. L. 528. 8 Massachusetts R. R. v. Boston R. R., 121 Mass. 124; Lake Shore iR. W. V. Cincinnati R. \V., 30 Ohio St. 604; Old Colony R. R. v. Plymouth, 14 Gray, 155. In re First Street, 58 Mich. 641. Bat see St. Louis R. R. V. Springfield R. R., 96 Hi. 274. * Lake Shore Ry. v. Chicago R. R., 97 111. 506; Chicago R. R. v. Illinois Central R. R., 113 111. 166. 5 Lake Shore Ry. v. Chicago R. E., 100 111. 21; Chicago E. R. v. Engle- woodE-E., 115 111. 375. « Chicago E. R. v. Joliet R. R., 105 111. 388; Peoria Ey. v. Peoria, etc., E. E., 105 111. 110. ' Lake Shore E. W. ». Cincinnati E. W., 30 Ohio St. 604; St. Louis R.- R. V. Springfield R. R., 96 111. 274. 8 St. Louis R. E. V. Springfield R. R., 96 111.274. 9 Chicago R, R. v. III. Central R. R., 113 111. 156. w Code, § 1118; Louisville E. E. v. State, 9 Baxter, 522. § 45. Condemnation of property devoted to another public use. — Land already taken by the exercise of emi- nent domain for a public use, and actually used for that purpose, may be taken by legislative authority for other public uses. When so taken, it is presumed that the for- mer use has ceased, or become detrimental,^ or relatively of less importance,^ or that the second use is not incon- sistent with or destructive to, the former use.* The new use should be a different use and the change should be for the benefit of the public, whether this change will be such a boi^efit is for the legislature to determine.* The compen- sation to be paid is to be determined by a. proceeding in the courts.^ A turnpike may be condemned for a public high- way,* and a portion of a railroad may be condemned for the use of another railroad.' A right of way for a telegraph company may be condemned along a railroad track.^ But land of one corporation cannot be taken for another use no more important, unless under clear expression of the leg- islative intent.* It is not presumed that roads will be laid lengthwise of a right of way, unless it is shown that no 143 § 45 IMPAIRMENT OF RIGHTS. other practical route could be had.^" Such authority will not be implied from a grant made in general terms where it appears that both uses cannot stand together. An express legislative authority is generally requisite, except where the proposed appropriation would not destroy or greatly injure the franchise, or render it difficult to prose- cute the object of the franchise, when a general grant would be sufficient. Railroads entering towns are subject, under the general authority given to towns and counties, to have roads and streets laid across their tracks. The franchise is taken subject to any inconvenience that may arise from such opening. ^^ Railroads and canals ^'^ must allow improvements subsequently authorized to cross or tunnel -their rights of way, on reasonable terms^' and proper compensation.^' Real estate and buildings held by a township for school purposes may be taken. ^° A fran- chise which is subject to forfeiture is valid until forfeited by some action on the part of the state, and the property of such corporation is still protected by the constitution and must be paid for according to its proper value." If the company may abandon its business and sell it's lands by an absolute title without any responsibilitj'- to the state, its property is not so held as to be exempt from condemnation." ' Miller v. Craig, 11 N. J. Eq. 175. 2 Talbot V. Hudson, 16 Gray, 417; Miller «. Craig^ 11 N. J. Eq. 175. ' Peoria Ry. v. Peoria, etc., Ry., 105 111. 110; Woodu. Macon R. R., 68 Ga. 539; Chicago Ry. v. Chicago R. R., 112 111. 589. * Lake Shore Ry. v. Chicago R. R., 97 III. 506. 5 Chicago R. R. -v. Illinois Central R. R., 113 111. 156; Lake Shore Ry. V. Chicago R. R., 97 111. 506. « Barber v. Andover, 8 N. H. 398. ' Eastern R. R. v. Boston R. R., Ill Mass. 125. s Chicago Ry. v. Chifiigo R. R., 112 111. 589; North Carolina R. R. v. Carolina Central R. R., 83 N. C. 489. " North Carolina R. R, u. Carolina Central R. R., 83 N. C. 489. w Crossley^;. O'Brien, 24 Ind. 325. " Hannibal v. Hannibal R. R., 49 Mo. 480; Enfleld Bridge Co. ■». Hart- iord E. E., 17 Conn. 40; New Orleans v. United States, 10 Pet. 662; 144 IMPAIRMENT OF RIGHTS. § 46 TMiladelphia R. R. «. Philadelphia, 9 Phila. 563; Little Miami R. R. r. Dayton, 23 Oliio St. 510. " Illinois Canal v. Chicago R. E., 14 111, 314. 1' Richmond R. R. v. Louisa R. R., 13 How. 71; Northern R. R. v. Con- •cord R. R., 27 N. H. 183; Broolilyn Central R. R. v. Broolilyn City R. R., 33 Barb. 420. " Glover v. Powell, 10 N. J. Eq. 211. ^ Rominger v. Simmons, 88 Ind. 453. i« White V. South Shore R. R., 6 Cush. 412. " Baltimore R. R. v. North, 103 Ind. 486. § 46. Express legislative authority. — To take property ■already appropriated to another public use, the act of the legislature must show the intent so to do by clear and ex- press terms, or by necessary implication, leaving no doubt or uncertainty respecting the intent.^ " It must also appear by the act that they recognize the right of private prop- •erty, and mean to respect it." ^ An act which provided for assessment of damages to land-owners in laying out roads does not indicate a right to take an easement or fran- chise which the legislature had previously given, ^ such as laying out a road on a turnpike,* or across a public park.* Authority to flow land does not include authority to flow a public road.* Under a general act authorizing the laying out of a turnpike, such turnpike could not be laid out the ■whole length of a railroad.' Without special authority, a reservoir cannot be established so as to cover public streets.^ A general authority to lay out a railroad does not authorize a location over land already devoted to another railroad or pub- lic use ; but where it appears that the contemplated road can- not reasonably be built without appropriating land already devoted to public use, it will be presumed that the legislature intended that such appropriation might be made." The act must be distinct on that point,!" unless the route specified necessarily crossed another railroad, turnpike, or canal," when the right to cross would arise by necessary implica- tion. ^^ General authority delegated to a city council can- not be exercised in the condemnation of property of the state devoted to public purposes. i' If the powers of the 10 145 § 46 IMPAIRMENT OF EIGHTS. subsequent charter can, by reasonable intendment, be ex- ercised without the appropriation of pr6perty already^ actually held and used for another public use, it must be done. The legislature is not presumed to have abandoned the former use, and turned over the property to the later uses, without clear and unmistakable expression of that intention. Lands held for purposes of public parks,^* reservoirs,^' or institutions^* for the blind cannot be taken for railroad purposes, even though the railroad company was authorized to take for its route all lands nec- essary belonging to the state." Under a general authority to condemn lands for streets,, a street may be laid out across a railroad, but not longitu- dinally on the railroad track. Under general laws prop- erty cannot be taken where .the appropriation will destroy or impair the exercise of the franchises of another corpora- tion, unless the power to take is given in express terms, or ai'ises from a necessary implication. The right to lay a^ street across a railroad track arises from a necessary im- plication. Under the condemnation of a right to cross, nothing is acquired but a mere right of way, and the place of crossing will remain in common use of the parties for the exercise of their several franchises. But where the use for which the condemnation is prosecuted is of such a. character as necessarily to require for its enjoyment the exclusive possession and occupation of the premises, it is manifest the condemnation will be utterly futile, unless it may operate also to extinguish the right of the corporation, whose title is condemned, to use the lands for its corporate purposes. The power to invade the privileges of a cor- poration in such a manner will not be inferred from a naked grant of the power to condemn.** In the case Matter of the City of Buffalo,'* the defini- tion of implication is given, and the construction which must be placed on statutes claimed to confer power by implica- tion. The court sny : "An implication is an inference of 146 IMPAIRMENT OF RIGHTS. § 46 something not directly declared, but arising from what is admitted. or expressed. In determining whether a power generally given is meant to have operation upon lands already devoted by legislative authority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is applied, the extent to which that use would be impaired or diminished by the taking of such part of the land as may be demanded by the subse- quent public use. If both uses may not stand together, with some tolerable interference which may be conapensated for by damages paid ; if the latter use, when exercised, must supersede the former ; it is not to be implied from a general power given, without having in view a then existing and particular need therefor, that the legislature meant to subject lands devoted to a public use already in exercise, to one which might thereafter arise. A legislative intent that there should be such an effect will not be inferred from a gift of power made in general terms. To defeat the at- tainment of an important public purpose to which lands have already been subjected, the legislative intent must une- quivocally appear. If an implication is to be relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject-matter of it, so that, by reasonable intendment, some especial object sought to be attained by the exercise of the power granted could not be reached in any other place or manner." The city of Buffalo proposed to excavate a canal sixty feet in width across the tracks of several railroads, and entirely through the yard of one of them, at a place where there are numer- ous tracks, turn-outs, and switches. The present grade of these tracks was but a few feet above the natural level of the canal. The land, if taken by the city, would be taken in fee, and hence the railroad companies would have no right to bridge the canal, and the bridging, if done, would be at an immense expense. This interference, the court say, would not be a tolerable interference with an 147 § 46 IMPAIRMENT OF RIGHTS. existing public use, which may be compensated for in dam- ages, but an entire superseding of it by another public use. Both uses cannot stand together. It is not to be presumed that the legislature, by the general terms in which it gave power to the city to take lands, with no especial reference to thi-i particular place or occasion, meant to produce such an effect.^" A general authority to lay out streets and alleys will not justify the laying-out of a street across depot grounds when the easement of the railroad company and of the city oiiniiot reasonably coexist.^'- 1 The state v. Noyes, 47 Me. 189; Worcester R. R. v. Railroad Com. missi oners, 118 Mass. 561; Proprietors of Locks v. Lowell, 7 Gray, 223; Boston Water-Power Co. v. Boston R. R., 23 Pick. 360; West Boston Bridge v. Middlesex, 10 Pick. 270; Bridgeport v. New Tork R. R., 36 Conn. 255; Matter of Nintli Avenue, 45 N. Y 729; Manliattau Co., ex ^arte, 22 Wend. 653; Commissioners of Central Park, 63 Barb. 282; Hickok v Hiiie, 23 Oliio St. 523; Hatch v. Cincinnati E. E., 18 Ohio St. 92; Matter of City of Buffalo, G8 N. Y. 167; Milwaukee R. R. o. Faribault, 23 Minn. 167. Baltimore R. R. v. North, 103 lud. 486; Wood v. Macon R. R., (18 Ga. 539; Boston R. R. v. Lowell R. R., 124 Mass. 368; Providence R. R- 11. Norwich E. K , 138 Mass. 297, Baltimore E. R. v. P. W. & K. E. K., 17 W. Va. 812; Lake Shore Ey. v. New York Central Ey., 8 Fed. E. 858; Belcher Sugar Eeflning Co. v. Sr. Louis Grain Elevator Co., 82 Mo. 121. 2 Shaw, C. J., in Boston E. R. o. Salem E. R., 2 Gray, 1. 3 Barber v. Andover, 8 N. II. 398. * West Boston Bridge v. Middlesex, 10 Pick. 270. s Wellington, petitioner, 16 Pick. 87. ^ The Commonwealth «. Stevens, 10 Pick. 247. ' Bridgeport v. New YorkR. R., 36 Conn. 255. 8 Manhattan Co., ex parte, 23 Wend. 653; Boston E. E. v. Lowell E. R., 124 Mass. 368; Matter of New York E. R , 77 N. Y. 248. » Providence R. R. v. Norwich R. E., 138 Mass 297. "> Housatonic R. E. v. Lee R. E., 118 Mass. 391. " Tucliahoe Canal v. Tuckahoe R. R , U Leigh, 42. 12 The State v. Easton E. E., 36 N. J. L. 181 ; Morris E. E. v. Central E. E.,31 N. J. L. 205; B.altimore Turnpikes. Union E. E., 35 Md. 224; At- lantic E. E. -w. Mann, 43 Ga. 200; Newcastle E. E. u. Peru R. R., 3 Ind. 464. 12 Mayor v. Central R. R., 53 Ga. 120. " In re Boston R. E., 53 N. Y. 574. 1- The State v. Mont Clair E. W., 35 N. J. L. 328. >" St. Louis E. E. V. Blind Institution, 43 111. 303. 1' Ibid. 1' New Jersey E. R. v. Long Branch Commissioners, 39 N. J. L. 28. ^^ 68 N. Y. 167. 148 IMPAIRMENT OF RIGHTS. § 47 ''0 Matter of City of Buffalo, 68 N. Y. 167; Matter of Nev YorkRy., 99 N. Y. 12. 21 Milwaukee R K. v. Faribault, 23 Minn. 167; Prospect Parlv R. R. v. Williamson, 91 N. Y. 552. § 47. Condemnation under general laws of property devoted to another public use — Priority of location. — In many states the granting of special charters and special privileges to private corporations has ceased. The condem- nation of private property for pnblic use is governed by general laws. No restriction on routes is imposed by the acts, and conflicts have frequently arisen. Land already de- voted to another public use cannot be taken, under general laws, where the effect would be to extinguisha franchise. If, however, the taking would not materially injure the prior holder, the condemnation maybe sustained;^ or if the prop- erty sought to be coiademned was not in use, or absolutely necessary to the enjoyment of the franchise.^ A corpora- tion, either private or municipal, cannot under a general power to take lands for a public use, take from another cor- poration, having the like posver, lands or property held.by it for a public purpose pursuant to its charter. But an easement may be acquired in invitum, by legislative author- ity, in lands held and occupied for a public use, when such easement may be enjoyed without detriment to the public or interfering; with the use to which the lands are devoted. Lands held simply as a proprietor, but not used or neces- sary to the public purpose, may be taken as of a private person. Property abandoned by a former corporation may be taken. The taking is not a forfeiture of the fran- chise, for the state alone can declare such forfeiture ; but the land may be taken because not necessary to the old corporation, and because one company cannot condemn and hold land not necessary or convenient for its business, merely to prevent a rival company from competing with it.* A portion of a horse-railroad which constitutes the most valuable portion of the road cannot be condemned under a general law. A crossing may properly be made, 149 § 47 IMPAIKMENT OF EIGHTS. but the condemnation should be of the whole road, and not of the most valuable portioa of it.^ When different cor- porations desire the same location, the one that is prior in point of time is also prior in point of right, and the first lo- cation, if followed by construction, operates to secnre the prior right. ^ Unless an exclusive right is given to a par- ticular route, the company which files the first survey is en- titled to the route. It does not signify that the articles of incorporation of one are prior in date to those of the other, or that one has made preliminary surveys over a particular route, or has made purchases of individuals along that route. Until the survey is made and filed, the company would hold the land purchased as any other individual land- owner, and such land could be condemned by the rival company upon compensation.' The priority of construc- tion gives no rights where another company has perfected its location first." A right of way taken and occupied by one road cannot be taken by another, by a general pro- ceeding, without stating in the petition that the land was. occupied by another company, and without showing any necessity for taking that particular land.^ The commis- sioners who assess the damages cannot determine the prior- ity of right,^" nor can the owner raise questions of priority between the two companies claiming the laud under sepa- rate proceedings, to defeat condemnation." 1 New York R. R. v. Metropolitan Gas-Light Co., 63 N. Y. 326 ; Morris R. R. V. Central R. R., 31 N. J. L. 205. ^ Peoria R. R. v. Railroad, 66 111. 174 ; Oregon R. R. o. Bailey, 3 Ore. 164. 3 Matter of Rochester Water Commissioners, 66 N. Y. 413. ' Oregon R. R. u. Bailey, 3 Ore. 164. 5 Central Horse R. R. v. Ft. Clark Horse R. R., 81 HI. 523. " Waterbury v. Dry Dock R. R., 54 Barb. 388; The Peoples. New YorkR. R., 45 Barb. 73. ' Morris R. R. v. Blair, 9 N. J. Eq. 635. » Titusville R. R. v. Warren R. R., 4 Leg. Gaz. 117; Chesapeake Canal Co. V. Baltimore R. R., 4 Gill & J. 1. ^ Cincinnati R. R. v. Danville R. R., 75 III. 113; San Francisco Water Co. V. Alameda Water Co., 36 Cal. 639. 1" San Francisco Water Co. v. Alameda Water Co., 36 Cal. 639. 11 Lake Merced Water Co. v. Cowles, 31 Cal. 215. 150 EXTENT OF AUTHORITY TO CONDEMN. § 48 CHAPTER VI. EXTENT OF AUTHORITY TO CONDEMN. § 48. Authority to coodemn not presumed. i9. Extent of interest condemned. 50. A fee may be condemned. 51. Pee in public road-s and streets. 52. Minerals in land talien for street. «3. Timber and grass in highways. Si. Materials and buildings in highway. 55. Public use of highway — Construction of sewers, drains, markets, etc. 56. Use of a highway by adjoining owner. 57. Cessation of public use — Reversion to owner. 68. Power exhausted by one exercise. ■58a. Opposing views. •586. Limitations as to time and amount — Width. 59. Necessary and convenient buildings — Maintenance — Repairs — Side tracks, telegraph lines, etc. § 48. Authority to condemn not presumed. — The act authorizing condemnation must be express and clear. If there are doubts as to the extent of the power, after all reasonable intendments in its favor, the doubts should be resolved by a decision adverse to the claim of power. ^ Statutes authorizing the taking, are not to be extended by inference nor are they to be so strictly or literally con- strued as to defeat the evident purpose of the legislature.^ Although a corporation may be engaged on a great public work, in which the power of condemnation would be of great service, yet the authority must be clearly conferred. Otherwise the corporation must purchase from the owners as best they can.^ Parties to condemnation proceedings may question the authority to institute such proceedings, without showing any interest in the land.* A city, by rea- son of its general control over streets, is not authorized to impose a new use on streets.'^ Authority to make and con- trol streets does not include a right to make parks." An 151 § 49 EXTENT OF AUTHORITY TO CONDEMN. act authorizing a city to construct and regulate sewers^ drains, and cisterns does not confer power to condemn pri- vate property for sewers and drains.' Authority to condemn lands for streets, alleys, highways, and squares does not confer power to condemn land for a city prison.* Acharter to construct a public improvement, such as a boom, confers no power to condemn or injure lands without consent of the owner.^ Authority to condemn for the construction of railroads, canals, and bridges cannot be extended to own- ers of ferries. Such rights only exist by force of legisla- tive enactment,, £|,nd are limited to the persons and purposes named ; and it does not change the principle that the bene- fits from bridges and ferries are similar.^" If particular property is specified as subject to condemnation, all other property is excluded by implication. Authority to lay out a road through uncultivated lands, or through cultivated lands, when demanded by twelve freeholders, does not authorize the laying-out through mills, manufactories, or yards connected therewith. -^^ 1 New York K. E. v. Kip, 46 N. Y. 546; Webb v. Manchester & Leeds Kail. Co., 4MyI. & Cr. 116. 2 Hunt v. New Yorli Ry., 99 Ind. 593. 8 Tliatclier v. Dartmouth Bridge Co., 18 Pick. 501; President, etc., of Brooklyn t>. Patchen, 8 Wend. 47 ; Grand Rapids Co. ?). Jarvis, 30 Mich^ 308; Stein t!. Burden, 24 Ala. 130. « Central R. R. u. Hudson Terminal Co., 46 N. J. L. 289. 5 The State r. Trenton, 36 N. J. L. 79. 6 Rader v. Township of Union, 39 N. J. L. 509. ' Allen V. Jones, 47 Ind. 438. 8 East St. Louis v. St. John, 47 HI. 463. ^ Grand Rapids Co. i). Jarvis, 30 Mich. 308. 10 Sandford v. Martin, 31 Iowa, 67. " Clark V. Phelps, 4 Cow. 190. § 49. Extent of interest condemned Although the propriety of the condemnation cannot be questioned by the courts, yet the extent is, in a degree, subject to their con- trol. There is no sacredness in a building over land, so that the building may not be taken under the authority to take "land." The word "land" includes all improve- 152 EXTENT OF AU'J'HORITY TO CONDEMN. § 49 mentsonthe same, such as buildings/ bridges,^ etc. Per- sonal property,^ necessary materials,* and supplies of water * maybe condemned. Anabuse of the power, where- by an amount is condemned greater than can be reasonably required for the public use, i-; subject to the correctioil of the courts, and the construction will be against extendinor the power. No more is to be tuken than is necessary for the accomplishment of the public object, and if the language of the act admits of a construction which will leave a fee in the owner, subject to the public easement, it will be so con- strued.^ In Washington Cemetery u. Prospect ParkK. E.,^ the court say :" The legislature determines the estate or interest to be taken. No implication ought to be indulged that a greater interest or estate is taken than is absolutely necessary to satisfy the language and object of the statute making the appropriation. Authority to take land for an avenue does not require a taking in fee. The purpose is fully satisfied by the taking of an easement. There is nothing inconsistent in the public use of the land for an avenue and the retention by the land-owners of the fee, subject to the easement. It is not necessary that exact or technical language should be used in a statute for taking private property for public use, in order to vest the fee in the public, but it must clearly appear, before this effect can be given to a statute, that it was the intention of the legis- lature, disclosed by the act itself, to take a fee." The power to take land for a sewer does not confer the right to take an absolute estate in fee simple. The use of the land only, is to be taken. For all purposes consistent with the enjoyment of the easement, the right to use the land remains in the owner of the fee. The land-owner may well use and cultivate the surface of his land, erect fences and perhaps other structures thereon without any invasion of the rights of the owner of the easement. It is a question which must be submitted to the jury, unless the invasion of the rio-ht is so manifest as to leave no question of fact for their 153 § 49 EXTENT OF AUTHORITr TO CONDEMN. consideration.' The use of the words " lay out " import the taking of an easement, and not of a fee; and this construc- tion is not qualified hy a further enactment barring any action for possession or damages, after the laying out.' A right in a company to " be seized and possessed of the land " does not necessarily require a fee to be taken." There must be no uncertainty in the degree of interest to bo acquired .^i Property may be taken for such time as is necessary in -order to carry out the end desired, and the compensation should be based upon the length of the use and the damage to the owner. ^^ The right of way acquired by condemna- tion proceedings is to occupy and use the surfa^ce of the land tiiken for the purposes of a railway and to appropriate and use so much of the earth or other material upon the land as may be necessary for the construction of its road. The owner is not divested of his title and the interest remainmg in him mtiy in some cases be of great value.'' The public cannot be compelled to take a fee when a temporary use or easement will suffice.'* The use of land required for rail- roads,'^ roads, streets, and alleys'' is that of a perpetual easement, and a fee cannot be taken unless directed by the statute. An entire lot cannot be taken unless the public Tise require the entire lot.'' The owner may consent to the taking, or statutes may allow the owner who is dissatisfied Avith an assessment of the expense of raising the grade of his land to give notice, and require the city to take his land. These statutes would apply to the case of a tenant in common, '*or the owner of an equity of redemption." The difficulties should not militate against the rights of the •owner. The statutes are intended to give the owner the privilege of electing whether he would pay the expense of filling his land and retain his estate, or surrender his estate to the public for a fair compensation. The company which condemns, if authorized, cannot be controlled in the ex- ercise of discretion, and may condemn land although held by it under lease, ^'' or already occupied by it.'" 154 EXTENT OF AUTHOKITY TO CONDEMN. § 49 The English Lands Clauses Consolidation Act provides for the temporary use of adjoining property and of private roads, when the same becomes necessary in constructing a railroad, and compensation is to be paid for the temporary use.^ If the private road is so obstructed as to render it impassablefor, or dangerous or extraordinarily inconvenient to, passengers or other persons, or carriages, the company is required, before the commencement of construction, to ■open a sufficient road in lieu of -the one so obstructed. ^^ After the conclusion of the construction, the old road is to be restored or a new road substituted.^* Under sections 128, 129, and 130 of the act, the owners of lands con- demned have a right of pre-emption as to all lands con- demned which are in excess of the needs of the company. 1 Peirce v. Somersworth, 10 N. H. 369; Ferree v. School District, 76 Ta. 376; Brockett v. Ohio R. R., 14 Pa. 241. 2 Smith V. Conway, 17 N. H. 586. 3 Canal Co. v. Commissioners of Drainage, 26 La. An. 740. * Jerome u. Ross, 7 Johns. Ch. 315. 5 Strohecker v. Alabama R. R., 42 Ga. 509; Bailey v. Woburn, 126 Mass. 416. « New York R. R. v. Kip, 46 N. Y. 546; s. c, 13 N. Y. Sup. Ct. 24; Ap- pointment of Viewers, Wyoming Common Pleas, 4 Leg. Gaz. 410 ; Heyne- man v. Blake, 19 Cal. 679; Leavenworth Ry. v. Paul, 28 Kan. 816; •Sweet V. Buffalo Ry., 79 N. Y. 293; Gardner v. Brookline, 127 Mass. 358; Matter of Water Commissioners of Amsterdam, 96 N. Y. 352. ' 68 N. Y. 501. 8 Clark V. Worcester, 125 Mass. 226. 8 United States v. Harris, 1 Sumn. 21. i» Quimby v. Vermont Central R. R., 23 Vt. 387. " Matter of Water Commissioners of Amsterdam, 96 N. Y. 352. 12 Lynch?;. Stone, i Denio, 356. " HoUingsworth v. Des Moines Ry. Co., 63 Iowa, 443. 1* Jerome v. Ross, 7 Johns. Ch. 315. 15 Henrys. Dubuque R. R., 2 Iowa, 288; Alabama R. R. v. Burliett, 42 Ala. 83. 16 Paul V. Detroit, 32 Mich. 108 ; Commissioners of Shawnee County p. Beckwith, 10 Kan. 603. " Chesapeake Canal v. Mason, 4 Cranch C. Ct. 123; Commissioners of . Central Park, 51 Barb. 277, qualifying South Seventh Street, 48 Barb. 12. 18 Leavitt «. Cambridge, 120 Mass. 157. ^' Parnsworth v. Boston, 121 Mass. 173. 155 § 50 EXTENT OF AUTHORITY TO CONDEMN. 2» New York E. R. v. Kip, 46 N. Y. 546; s. c, 13 N. Y. Sup. Ct. 24; Ap- poiQtment of Viewers, Wyomius Common Pleas, 4 Leg. Gai,. 410. 2' Coster V. New Jersey R. R., 24 N. J. L. 730; IJarrisburg v. Crangle, 3 Watts & S. 460. 22 8 Vict., c. 20, § ^0. 23 evict., C.20., § 31. '* 8 Vict., c. 20, § 56. § 50. A fee may be condemned. — It is the exclusive province of the legisUiture to determine the degree and quality of interest which may be taken from au individual, as well as the necessity of taking it. An easement or usu- fruct may be taken, or the entire property may be taken, so as to be vested absolutely,^ without reversion to the original owner in case of a change in the use.^ In such cases the owner is paid the entire value of the laud, and should have no reversion.' When only an easement is taken, it is pre- sumed that the full value is not given and that the owner receives a lesser amount, when there is reserved to him the chance of reversion on a discontinuance of the public use. The use of a ijublic park is continuous, unlimited, and in- consistent with the existence and exercise of any private right therein and the city may take the fee.* When the full value has been paid, the land, with all the materials thereon, belongs to the public,^ there is no right of easement remaining in the owner,^ and the land so taken may be sold for other purposl3s.' Land taken originally for an alms- house 01- hospital may, after years of increase in the popu- lation of a city, become unsuitable for such purposes, and may be sold by the public.^ Otherwise the owner, having received the full value of his land, might either compel the public to continue a public institution in an unsuitable place, or receive, in addition to the valuo of his land, the erections made on it." Though the appropriation or conveyance of lands may be for a public use, and it be so expressed in the law authorizing tlie appropi-iation, or in a deed conveying them, that does not pj-event the passing of absolute title so as to cut off all right of reverter to the former owner or grantor.'" Lands so taken may be sold on execution against 156 EXTENT OF AUTHORITY TO CONDEMN. § 51 the corporation owning it." If tlie act provided that full value should be given for the land, and that the land so taken should he pledged to secure park bonds, it must be inferred that a fee was to be taken. ^^ In the full value which is to be given for the land there should be no allow- ances made for benefits and advantages. That would indi- cate that there would be a reversion.'^ When the state takes land for its own purposes, it is presumed to take in fee.^* Though technically an easement, yetit is permanent in its nature and practically exclusive.^' 1 Chesapeake Canal v. Uaion Bank, i Cranch C. Ct. 75; Dingley v. Boston,' 100 Mass. 544; Hingham Bridge v. Norfolk, 6 Allen, 353; Water Commissioners v. Lawrence, 3-Eclw. Ch. 552; Attorney-General v. Turpin, 3 Hen. &M. 548; Ealeigh R. R. v. Davis, 2 Dev. & B. 451; The State v. Evans, 3 111. 208 ; Cotton v. Boom Co., 22 Minn. 372 ; Challiss v. Atchison R. R., 16 Kan. 117; Matter of Water Commissioners of Amsterdam, 96 N. X. 352; McCombs v. Stewart, 40 Ohio St. 647; Sweet v. Buffalo Ry. Co., 79 N. Y. 293 ; Tifft V. Buffalo, 82 N. Y. 204'. 2 De Varaigne v. Fox, 2 Blatchf . 95 ; Brooklyn Park v. Armstrong, 45 N. Y. 234; Rexford v. Knight, 11 N. Y. 808; Heyward v. Mayor of New York, 7 N. Y. 314; Robinson v. West Pennsylvania R. R., 72 Pa. 316; Wyoming Coal Co. V. Price, 81 Pa. 156; Craig v. Mayor, 53 Pa. 477; Water- Works Co. «. Burkhart, 41 Ind. 3C4; Winona R. R. b Denman, 10 Minn. 267; Challiss w. Atchison E. R.,. 16 Kan. 117; Nelson •<;. Fleming, 56 Ind. 310. 3 Brooklyn Park v. Armstrong, 45 N. Y. 34; Heyward v. Mayor of New York, 7 N. Y. 314 (overruling The People- v. White, 11 Barb. 26) ; Water-Works Co. v. Burkhart, 41 Ind. 364. 4 Holt V. Somerville, 127 Mass. 408. 5 Baker v. Johnson, 2 Hill, 342. 6 Water-Works Co. v. Burkhart, 41 Ind. 364 (overruling Edgerton v. Hufe, 26 Ind. 35). ' Haldeman v. Pennsylvania R. R., 50 Pa. 425; Waterworks Co. u. Burkhart, 41 Ind. 364. Doubted in Malonc v. Toledo, 28 Ohio St. 643. 8 DeVaraigne v. Fox, 2 Blatchf. 95. ^ Heyward v. Mayor of New York, 7 N. Y. 314. 1" Tifft V. Buffalo, 82 N. Y. 204. " The State v. Eives, 5 Ired. 297. 13 Brooklyn Park v. Armstrong, 45 N. Y. 234. 13 Kellogg V. Malin, 50 Mo. 496. 1* Craig V. Mayor, 53 Pa. 477; Nelson v. Fleming, 56 Ind. 310. w Peirce v. Boston R. R. Corp., 141 Mass. 481. § 51. Fee in public roads and streets. — Although the fee in land may be taken by legislative authority, the gen- 157 § 51 EXTENT OB' AUTHORITY TO CONDEMN. eral rule is that, subject to the easement of the public, the fee of land taken for roads and streets is in the owner of the adjoining soil,^ and upon the discontinuance of the highway ojc street, the soil and freehold revert to the adjoining owner. While it is true that the fee remains in the owner, yet the use taken is of such a character that the measure of damages is not different from what it would be if the proceedings divested the owner of all interest in the land." The con- demnation is made on the theory that the use of the sur- face will be perpetual.* The taking of land for a highway is presumably for a permanent use, but the fee is not taken, only an easement; and, subject to the public use, the title and all consistent uses remain in and belong to the owner.* Should the streets and adjoining land be both condemned for purposes other than a street, — as, for a park or navy- yard, — compensation must be made for both.^ On a dis- continuance and reversion of the land, the public cannot recover back the money paid. The owner cannot be com- pelled to repurchase the easement at any price.' The pre- sumption always is that the fee of highways is in the adjoining owner, ^ and the profits thereof, consistent with the existence of the easement, remain in the original owner.' The existence of an ordinary highway over the land of an owner, whether it has its origin by condemnation, dedica- tion, or prescription, does not divest him of the property in the soil.^'' A portion of the street" or railroad^^ discon- tinued reverts. The fee of streets in the city" of New York is in the city; and in Kansas, in the county" where situated. The Roman law held the title of abandoned roads to be still in the public." ' Williams v. Natural Bridge Plank-Road, 21 Mo. 580; Barclay ». How- ell's Lessee, G Pet. 498; Gidney ?). Earl, 12 Wend. 98; Rogers v. Brad- shaw, 20 Johns. 735; Higbee v. Camden R. R., 19 N. J. Eq. 276; Nichol- son V. Stockett, Walk. (Miss.) 67; Cox u. Louisville R. R., 48 Ind. 178 (qualifying New Albany R. R. v. O'Daily, 13 lud. 353) ; Vaughn v. Stuza- ker, 16 lud. 338; Overman v. May, 35 Iowa, 89; Small v. Pennell, 31 Me. 267; Town of Old Town v. Dooley, 81 111. 255; Suffield v. Hathaway, 44 158 EXTENT OP 'authority TO CONDEMN. § 52" Conn. 521 ; Terre Haute R. R. Co. v. Scott, 74 Ind. 29 ; State v. Hewell, 90 N. C. 705. 2 Brown v. Freeman, 1 Root (Conn.), 118; Buel v. Clark, 1 Root (Conn.), 49; Jackson v. Hathaway, 15 Johns. 447; Whitbeck v. Cook, 15 Johns. 483; Phillips v. Dunkirk R. R., 78 Pa. 177; Mendez v. Dugart, 17 La. An. 171; Hatch v. Arnault, 3 La. An. 482; Taylor v. Armstrong, 24 Ark. 102 ; Morris v. Turnpike Road, 6 Bush, 671 ; San Francisco v. Water- Works, 48 Cal. 493. * Cummins v. Des Moines Ry., 63 Iowa, 397. * HoUingsworth v. Des Moines Ry., 63 Iowa, 443. 5 Hagaman v. Moore, 84 Ind. 496. s Riverside Park, 61 Barb. 40; Harris v. Elliott, 10 Pet. 25. ' Westbrook v. North, 2 Me. 179; Hampton v. Coffin, 4 N. H. 517; Nicholson v. Stockett, Walk. (Miss.) 67. s Copp V. Neal, 7 N. H. 275. s Tuckers. Eldred, 6 R. I. 404. J" Thomas v. Ford, 63 Md. 346. u John and Cherry Streets, 19 Wend. 659. ^2 Louisville R. R. v. Covington, 2 Bush, 526. 13 The People v. Kerr, 27 N. Y, 188; s. c, 38 Barb. 369 ; 37 Barb. 357. 1^ Smith V. Lea'veuvForth, 15 Kan. 81. " Hatch V. Arnault, 3 La. An. 482 ; Mitchell v. Bass, *33 Texas, 259. § 52. Minerals In land taken for street. — The miner- als found below the bed of the road, the excavation of which is not necessary for the construction of the road, be- loug»to the owner of the soil.' If the land should be un- derlaid with coal, stone, or other mineral, the owner would have the right to quarry or mine the same, provided this could be done without interferino; with the use of the sur- face by the railroad.^ The adjoining owner is entitled to the stone^ in the streets, tlie gypsum* under the highways, and t(J the mines.' In the construction of streets and high- ways, the authorities may remove, but not use such mate- rials.^ The owner may work the mines under the road in such a manner as not to interfere with the public use.' The use of the stone in the highway, for repairing the highway, is considered admissible ;^ but it cannot be quarried for the purpose of constructing a bridge, although the stone is taken from the bed of the river under the proposed bridge.^ The English Lands Clauses Consolidation Act makes elab- orate provision for supervision of the working of mines 159 § 53 EXTENT OF AUTHORITY TO CONDEMN. under railways, so that the railroad company shall not be injured in its property by the unsafe and improper work- ing of the mines. ^^ The compensation to the owner should include all damages to the owner occasioned by the fact that he may be prevented from removing the minerals un- der the right of way." There is a distiriction between " minerals" which are properly dug out of tlie earth by means of a mine having a roof overhead, and materials quarried out where there is no roof.^^ 1 Barclay v. Howell's Lessee, 6 Pet. 498; Blake v. Rich, 34 N. H. 283; Tucker v. Eldred, 6 R. I. 404; Woodruff v. Neal, 28 Conn. 165; Jackson V. Hathaway, 13 Johns. 447; Winter v. Peterson, 24 N. J. L. 524. 2 Holllngsworth v. Des Moines Ry., 63 I6wa, 443. ' Pisher v. Rochester, 6 Lans. 223; Smith v. Rome, 19 Ga. 89; Over- man V. May, 35 Iowa, 89. * The People v. Bldredge, 10 N-, Y. Sup. Ct."541. 5 Boiling V. Mayor, 3 Rind. 563. « Smiths. Rome, 19 G i. 89. ' West Covington v. Preking, 8 Bush. 121; Dubuque u. Benson, 23' Iowa, 248; Pletcher v. Great Western Rail. Co., 29 L. J. (Exch.) 263; Midland Rail. Co. ■;;. Checkley, 36 L. J. (Ch.) 380; L. R. 4 Eq. 19; Stour- bridge Canal Co. v. Earl of Dudley, 30 L. J. (Q. B.) 108. 8 Evans v. Haefner, 29 Mo. 141; Chapina. Sullivan R. R., 39 N. H. 564. ^ Overman v. May, 35 Iowa, 89. 1" 8 Vict., o. 20, §§ 78, 79, 80, 81, 82, 83. The company may enter and inspect the mines. Benuitt v. Whitehouse, 29 L. J. (Ch.) 326. 11 Barnsley Canal Co. v. Twibell, 13 L.J. (Ch.) 434; Proud u. Bates, 34 L. J. (Ch.) 406; Pletcher v. Great Western Rail. Co., 29 L. J. (Exch.) 253. 12 Davvell v. Roper, 24 L. J. (Ch.) 779; Micklethwait v. Winter, 20 L. J. (ExcU.) 313; Bell v. Wilson, 13 W. R. 708; 35 L. J. (Ch.) 337. § 53. Timber and grass in highways. — The timber and grass found in public highways belong to the owner of the ad- joining soil.^ When the damages awarded for the land taken include the timber thereon, evidence of the value of the tim- ber taken by the owner is admissible as going to reduce the amount of damage.^ In order to make the road passable, it may be necessary for the authorities to cut down trees found in the road ; but the trees thus cut down belong to the •owner,* and should be removed to a convenient distance for the use of the owner.'' The public require a right of passage, 160 ■ ' EXTENT OF AUTHORITT TO CONDEMN. § 53 and do not require the use of the thnher taken off, although it may be necessary to remove the siame.^ It is a trespass for officers to cut down trees not obstructing the highway,^ •or to use the timber found on the land for any purpose/ or for repairing the road.^ Trover maybe maintained against •a stranger cutting trees.' In some of the states, the use of the trees in the highway for the purpose of repairing and ■constructing the way is sustained.^" Trees may be cut down for a site to erect a toll-house. ^^ Trees in the highway, use- ful for shade, may be cut down by the adjoining owner. The penalties for injuring shade-trees do not apply to owners of the soil.^* The grass in a highway may be cut down in order to make a highway passable, but it would constitute a trespass db initio to carry off, use, or pasture the grass. ^^ A legislative act allowing others to depasture grass in the road in front of land belonging to adjoining proprietors would be placing an additional burden on the land, and would be void if compensation were not pro- vided.^* In New York, the right of pasturage in highways is supported by ancient usage, and because compensation is made on the basis of such well-known nse.i' A hedge- fence in a road belongs to the adjoining owner, and he may remove it and transplant it so as to conform to the new line of the road.'^ A hedge which overruns the highway may "be trimmed by an officer, biit it is a trespass on the part of any other party. 1' •■ Barclay v. Howell's Lessee, 6 Pet. 498; Adams v. Emerson, 6 Pick. 57; Tucker v. Eldred, 6 E. I. 404; Woodruff v. Neal,'28 Conn. 165; Jackson v. Hathaway, 15 Johns. 447; Niagara Co. v. Bachman, 4 Lans. 523; Sander- ■sou ». Haverstick, 8 Pa. 294; Chambers v. Furry, 1 Yeates, 167; Boiling V. Mayor, 3 Rand. 563; Phifer v. Cox, 21 Ohio St. 248. ■' Gardner v. Brookline, 127 Mass. 358. 8 Blake «. Rich, 34 N. H. 282. ' Baker v. Shephard, 24 N. H. 208; Makepeace v. Worden, 1 N. H. 16; JSTiagara Co. u. Bachman, 4 Lans. 528; Reynolds u. Spears, 1 Stew. 31. " Tuckers. Eldred, 6 R. I. 404; Lancaster s. Richardson, 4 Lans. 136. « Winter v. Peterson, 24 N. J. L. 524. ' Baker ?;. Shephard, 2 1 N. H. 208; Deatonu. Polk County, 9 Iowa, 594. * Niagara Co. v. Bachman, 4 Lans. 523 ; Reynolds v. Speers, 1 Stew. 34. 11 161 § 54 EXTE.VT OF AUTHORITY TO CONDEMN. ' Sandersoa v. Haverstiok, 8 Pa. 294. i» Cole v. Drew, 44 Vt. 49; Deaton v. Polk County, 9 Iowa, 594 ; Prather V. Ellison, 10 Ohio, 396. " Tucker v. Tower, 9 Pick. 109. 1' Lancaster v. Richardson, 4Lans. 136. 13 Stackpole v. Healy, 16 Miss. 33; Woodruff v. Nial, 28 Conn. 165. 1* Woodruff V. Neal, 28 Conn. 165. 15 Hardenbur5h v. Lockwood, 23 Barb. 9; Griffin v. Martin, 7 Birb. 297. 1^ Commissioners of Shawnee Co. v. Beckwith, 10 Km. 603. " Phifer v. Cox, 21 Ohio St. 248. § 54. Materials aad buildiags ia higtiway. — The ma- terials, earth, and gravel found in the roadway may be used' in constructing and repairing the way^ and the bridges,^ which are parts of the way ; and materials may be taken from one point, where there is an gxcess, to another point, where there is a deficiency.' The owner may be enjoined from removing from the road materials necessary for the construction and repair of the road.* Materials already separated from the soil, for other uses, cannot be taken and used for roads subsequently located.^ If the materials in the street, which must be removed, are not desired by thfr owner, the authorities may sell the same, and maintain an action for the contract price of such materials against thfr purchaser.^ The materials in buildings on land which has been taken for a street may be claimed by the owner. '" "Where a turnpike company appropriates the public highway it appropriates only an easement in the highway as it exists then, and does not acquire the right to take gravel and mate- rials without making compensation to the owner of the fee.* The removal of rock from a street, in order to construct the street, or to construct a bridge, may properly be done by the public, or by a contractor with the city for that pur- pose, and he m ly use the materials in the construction of the street or bridge. Notwithstanding this, the contractor may make a valid contract to pay for the material at a cer- tain rate.' The earth must be removed in improving the street, and not slmoly to furnish earth for filling other streets." The public do not need the materials in a house 162 EXTENT or AUTHORITY TO CONDEMN. § 55 situated on land condemned, and the owner may take them if he desires to do so, but in that event he would not be compensated for the value of the materials in the house. This would not be making part of the compensation for property taken in materials. ^^ In an ordinary taking, the materials of buildings are condemned as well as the land. The owner could not be compelled to take the materials and remove them.i^ 1 Troy v. Cheshire R. E., 23 N. H. 83; Cole v. Drew, 44 Vt. 49; Hig- giiisi7. Reynolds, 31 N. Y. 151; Jackson v. Hathaway, 15 Johns. 447; Fish ?;. Rochester, 6 Paige, 268; Niagara Co. u. Bachman, 4 Lans. 523. 2 Felchv. Gilman, 23 Vt. 38. 8 Delphi V. Evans, 36 Ind. 90; Bissell v. Collins, 28 Mich. 277 (quali- fying Cuming v. Prang, 24 Mich. 514). * New Haven v. Sargent, 38 Conn. 50. ^ Higgins V. Reynolds, 31 N. Y. 151. ^ Grisvpold v. Bay City, 35 Mich. 452. This case, when published in 4 Cent. L. J., was accompanied by a valuable note, collecting the author' ities. ' Dorgan v. Boston, 12 Allen, 223. '^ Turner u. Rising Sun Turnpike Co., 71 Ind. 547. 9 St. Anthony Fall Co. v. King Bridge Co., 23 Minn. 186. 1" Mayor of Macon v. Hill, 58 Ga. 595. " Dorgan v. Boston, 12 Allen, 223. 12 Schuchardt v. New York, 53 N. Y. 202. § 55. Public use of a highway — Construction of sew- ers, drains, markets, etc. — The power of the public over a highway is not confined to travel only, but the public may construct drains, sewers, gutters, water-pipes, cisterns» wells,^ and reservoirs in highways.^ Such use is necessary to carry off surplus water, and to provide water for sprink- ling and cleansing streets, and for extinguishing fires.' The right to lay gas-pipes in a country highway is not such an use of the highway as was contemplated at the time of the condemnation.* There is a greater variety in the uses to which city streets are put than in those to which public highways in the country are put,* and in a city street the laying of gas-pipes would probably be considered legiti- mate.^ The original compensation paid is supposed to cover damages for all such uses,' and in case of a dedication of 163 §56 EXTENX OF AUTHORITY TO CONDEMN. the street, the owner is presumed to have contemplated such use.* The public is entitled to the use of the entire high- way, and may widen the portion used so as to cover the entire highway as laid out.' A toll-house and dwelling for the toll-Iieeper may be erected on the land used as a road, and a cellar and well may be provided for the use of the toll-keeper, but such house must be confined to the uses of the road and the collection of tolls.*" An ordinance estab- lishing a market in a public street is an additional burden. The occupation of the street by market- wagons standing continually is an obstruction to the street, and operates to depreciate the value of property, and hence no such occu- pation can be justified without payment of compensation.'* The public may occupy a portion of the street with a statue.*^ 1 Memphis v. Water Co., 5 Tenn. 495; Warren v. Grand Haven, 30 Mich. 24. 2 Barter v. The Commonwealth, 3 Pen. & Watts, 259. " West V. Bancroft, 32 Vt. 367; Boston?). Richardson, 13 Allen, 146; Cone V. Hartford, 28 Conn. 363 ; Kelsey vl Kins;, 32 Barb. 410. 4 Bloomfield Gas Co. v. Calkins, 62 N. Y. 386; s. c, 1 N. Y. Sup. Ct. 541 (qualifying Bloomfield Gas Co. v. Richardson, 63 Barb. 437). 5 Kelsey v. King, 32 Barb. 410; Milhan v. Sharp, 15 Barb. 193. « The People v. Bowen, 30 Barb. 24. ' Boston V. Richardson, 13 Allen, 146; Cone v. Hartford, 28 Conn. 363. 8 Warren 1?. Grand Haven, 30 Mich. 24. ' Munson v. Mallory, 36 Conn. 165. " Tucker t). Tower, 9 Pick. 109; Ward v. Turnpike Co., 6 Ohio St. 15; Ridge Turnpike Co. v. Stoever, 6 Watts & S. 378. Contra, The State v. Laverack, 34 N. J. L. 201 (overruling Wright v. Carter, 27 N. J. L. 76) . " The State v. Laverack, 34 N. J. L, 201. '2 Tompkins v. Hodgson, 9 N. Y. Sup. Ct. 146. § 56. Use of highways by adjoining' owner. — All use of property condemned which is not inconsistent with the enjoyment of the public easemont remains with, and may be enjoyed by, the owner.* He may maintain ejectment for an adverse occupation,^ or for occupying it with a struc- ture,^ even if such structure is on the portion of the high- way which abuts upon a river.* His interest is such that 164 EXTENT OF AUTHORITV TO CONDEMN. § 56 he may maintain trespass for its obstruction/ or for plough- ing up the road, when not done iji the course of repairing it,^ or for depositing rails on the highway/ or for occupying it as a ferry-landing.^ But he caunot use it in any way which obstructs the right ofthe public in the highway.^ He may sink a water-course below it, covering it so that the highway remains safe and convenient, and the public must continue his water-courses, whether natural or artiJSclal, and cannot shut them up.^" The owner must bridge such ditches or water-courses, aud keep them in repair, or the public may do so at his expense." He may excavate and use the space under the street, so long as no injury is done to the, street.-'^ The owner of a spring on land adjoining a highway is entitled to any and all uses of it which do not interfere with the public safety, do not obstruct or hinder public travel, and do not increase the public burden of making repairs. If the water of a spring in a highway may be allowed to flow upon the land of the owner, and the way can at the same cost and with equal safety be maintained, this must be done. The right of the owner to the use of the spring, under these limitations, takes pre- cedence of the right of the officers to divert it to the lands of others, if in so doing their sole motive is to establish a public watering-place. The court may inquire as to the -purpose for which the selectmen diverted the flowing water from the owner ; if, not in the line of governmental duty, solely to secure the proper degree of safety to the traveler, they cannot be sustained in their action. The selectmen are not authorized to impose the additional burden on the land of ministering to the public comfort. ^'^ The diversion of the waters of a spring or stream should not be allowed, even upon liberal compensation, unless obviously necessary for the public good, and the court before which the ques- tion arises should be entirely satisfied of the necessity. Provision for long summer droughts should, however, be considered." The right of way existing in the public is a 165 § 57 EXTENT OF AUTHORITY TO CONDEMN. right of passage along the highway, and not a right to get water, either in streams or springs, on the soil of the land- owners. Tlie water is no part of the highway, and its use is not an incident to the use of the highway. Hence it is proper for highway commissioners to allow, under statutory authority, the owners of land to connect their fences with the abutments of bridges, although by so doing the public are deprived of the use of the stream as a ford, or of the use of a spring in the owner's land near by.^^ 1 Kane v. Baltimore, 15 Md. 240. 2 Perley v. Chandler, 6 Mass. 454 ; Read v. Leeds, 19 Conn. 182 ; Taylor V. Armstrong, 24 Ark. 102. 8 Peck V. Smith, 1 Conn. 103. ^ Binghain v. Doane, 9 Ohio, ICo. ' Barclay i>. Howell's Lessee, 6 Pet. 498; Gidney v. Earl, 12 Wend. 98 ; Cortelyou v. Van Brundt, 2 Johns. 357 j 1 Burr. 143 ; 2 Stra. 1004 ; 1 Wills. 107; 6 East, 154. " Eobblns v. Bowman, 1 Pick. 122 . ' Lewis V. Jones, 1 Pa. St. 336. ^ Chess D. Manown, 3 Watts, 219; Chambers v. Eurry, 1 Yeates, 167. ' Clark V. Worcester, 125 Mass. 226. 10 Perley v. Chandler, 6 Mass. 454; Woodruff, v. Neal, 28 Conn. 165; Woodring ?;. Eorks Township, 28 Pa. 355; Boiling d. Mayor, 3 Rand. 563; Moran v. McClearns, 63 Barb. 185. 1' Woodring «. Forks Township, 28 Pa. 355; Nobles r. Langly, 66 N. C. 287. 12 McCarthy i>. Syracuse, 46 N. Y. 194. 13 Suffleld V. Hathaway, 44 Conn. 521. " Olrastead v. Proprietor of Morris Aqueduct, 46 N. J. L. 495. IS Town of Old Town v. Dooley, 81 111. 255. § 57. Cessation of public use — Reversion to owner. — When the public use has ceased, the property originally condemned or dedicated reverts to the former owner. This right of reversion is valuable, and cannot be taken for pub- lic purposes without an additional compensation.^ What- ever easement is acquired by right of eminent domain ex- pires with the dissolution of the corporation.^ A change in the public use, from one kind of public use to another, which is not a material change, will not operate as an ahanaon- ment of the prior use so that a reversion to the owner would supervene. A change from a plank-road to a public 16G EXTENT OF AUTHORITY TO CONDEMN. § 57 road/ or from a canal into a railroad,* would not be of such a nature that there would be a reversion to the owner. On a taking of a plank-road by a road, the owner cannot claim that the fee reverts to him on account of the non-nser •of the plank-road. The uses are similar, and the owner can- not claim a second c.ompensation.^ A use for private pur- poses, of lands condemned for public use, is certainly an abandonment of the public use. The owner, in such case, might have a writ of entry. A railroad cannot condemn land, and then adapt the same to the use of tenants, and rent the same. That use is beyond the authority of the > Lawrence, 23 N. J. L. 590, where the remedy is said to be by injunction! and contesting the constitutionality of the act. ^ Benjamin u. Wheeler, 8 Gray, 409; Sage v. Laurain, 19 Mich. 137. 188 OF INTERESTS AND OWNERSHIPS AFFECTED. § 65 CHAP TEE yilL OF THE INTERESTS AND OWNERSHIPS WHICH MAY BE AFFECTED BY CONDEMNATION. ' § 65. What persons are considered "owners." 66. Vendor and vendee — Change of title. 67. Change of title by death — Claims of heirs and administrators. 68. Landlord and tenant. 69. Landlord and tenant — Apportionment of rent. 70. Landlord and tenant — Rebuilding when part of leased buildings are taken. 71. Dower interest — Separate property of wife — Homestead. 72. Infants. 73. Joint-interests — Tenants for life — Remainder-men — Residuary legatees. 74. Rights of holders of encumbrances and liens — Judgment-liens. 76. Legal and equitable titles — Trustees and oestuis que trust — Re- ceivers — Guardians. 76. Unknown owners — Conflicting claims — Payment into court. 77. Duty of condemning party to ascertain ownership of property taken. § 65. Wliat persons are considered "owners." — In the land or property taken there may be various interests, in different individuals. The entire value of the land is all that can be awarded to the several owners, and no contracts between the owners can oblige the public to pay more than the entire value of the land as a whole.^ In settling the damases between the owners, the situation and manner of the occupation should be considered.^ Among the various titles and interests recognized as entitled to compensation as owners, are lessees and landlords,* mortgagors and mort- gagees,* mortgagees of leaseholds,* trustees and cestuis que trust,^ residuary legatees under wills,' executors of active trusts,^ widows,^ heirs,'" married women with separate es- tates," tenants for life,'^ owners of private ways.^^ and of rights in public common,l* and holders of bonds for deeds. '^ Such holders are entitled to damages as owners in fee. The Eno-lish rule does not recognize as an owner one who simpi}' 189 § 66 OF INTERESTS AND OWNERSHIPS AFFECTED. has a contract of purchase, but such owner may intervene after the compensation has been paid, and assert his rights to the fund.i* The term " owner " includes all jjersons who have an interest in the property. i' Damages are to be as- sessed to evei-y owner, although no claim may have been made.i^ In Michigan the jury are required to apportion the damages between the owners of lot, including mortgagees, lessees, and others interested. i' ' Burt V. WIgglesworth, 117 Mass. 302; Burt «. Merchants' Ins. Co.^ 115 Mass. 1; Edmanda v. Boston, 108 Mass. 535; Ross v. Blizabethtown, R. R., 20N. J.L. 230. 2 Burt V. Merchants' Ins. Co., 115 Mass. 1. 3 Parks V. Boston, 15 Pick. 198 ; Biddle v. Hussman, 23 Mo. 597 ; Law- rence V. Boston, 119 Mass. 126; North Pennsylvania R. R. v. Davis, 26 Pa. 238 ; Frost v. Earnest, i Whart. 86 ; Pennsylvania R. R. v. Eby, 107 Pa. St. 166. ' ' Cool V. Crommet, 13 Me. 250; Piatt v. Bright, 29 N. J. Eq. 128. " Hagari;. Brainard, 44 Vt. 294; Astor v. Hoyt, 5 Wend. 603. 6 Reed v. Hanover Branch R. R., 105 Mass. 303. Equitable interests are included. Martin v. London, Chatham & Dover Rail. Co., 35 L. J. (Ch.) 795; 1 L. R. 1 Eq. 145. ' Shelton «. Derby, 27 Conn. 414. ^ The People v. Robinson, 29 Barb. 77. ' Columbia Bridge Co. v. Geisse, 35 N. J. L. 558 ; New Orleans R. R. ■». Frederick, 46 Miss. 1. '0 Booneville v. Ormrod's Admr., 26 Mo. 193. " The State v. Hulick, 33 N. J. L. 307; Tennessee R. R. ■«. Love, 3 Head, 63. ^ Harrisburg v. Crangle, 3 Watts & S. 460; Passmore ?7. Philadelphia R. R., Phila. (C. P.) 1872; Colcough v. Nashville R. R., 2 Head, 171; Burbridge v. New Albany R. R., 9 Ind. 546. " Philadelphia R. R. v. Williams, 54 Pa. 103. 1* Bell V. Ohio R. R., 1 Grant, 103. '» St. Louis R. R. V. Wilder, 17 Kan. 239. 1" Tasker v. Small, 7 L. J. (Ch.) 19; Bird v. Great Eastern Rail. Co., 34 L. J. (C. P.) 366; Willeyi). South-Eastern Rail. Co., 18 L. J. (Ch.) 201. " Gerrard v. Omaha R. R., 14 Neb. 270; Dietrichs v. Lincoln R. R. Co., 14 Neb. 356; Tompkins v. Augusta R. R., 21 S. C. 420. " The State v. Runyon, 24 N. J. L. 256; The State v. Garretson, 23 N. J. L. 388. w Rentz v. City of Detroit, 48 Mich. 544. § 66. Vendor and vendee — Change of title. — The claim for damages and of title to land may be distinct. 190 OF INTERESTS AND OWNERSHIPS AFFECTED. § 66 Damages for taking and injury to land belong to the owner at the time of the injury, and do not pass to a subsequent vendee.^ One who buys an interest in property pending proceedings to condemn it and assess damages, takes such interest subject to any award which may be made, and is not entitled to notice of subsequent and final proceedings.^ Purchasers pendente lite are bound by proceedings had prior to their coming into the case.^ The owner alone can take advantage of a claim for damages, and if he does not claim, his subsequent vendee cannot.* If proceedings are only in- choate, a quit-claim deed would carry the damages to the vendee.* A conveyance not recorded authorizes an assess- ment in the name of the apparent owner, and if the real owner knows of the assessment, and does not disclose his ownership, he cannot have the proceedings quashed.* When one becomes the owner of property pending the pro- ceedings, he may intervene, and object to irregularities in the proceedings.^ The owner of the legal title is the party to be treated with, notwithstanding he may have made an executory contract of sale.^ When the entire property is taken the power of the owner to sell or mortgage it is en- tirely taken away pending proceedings." Pendency of pro- ceedinfs against the vendor does not operate as notice to the vendee.^* Damages for improper construction go to the owner at the time the damage is suffered, who may be the vendee.^^ Where a railroad company builds its road over lands belonging to the United States in accordance with the statute provided, a subsequent purchaser, who had knowl- edge of its possession and use, cannot bring action for dam- awes.^^ When a person has purchased property on a street in which a change of grade has been legally established, and the work of grading begun, before his purchase, the dam- ages will not be divided so as to give the purchaser a share thereof. He takes the property cum onere}^ 1 Sargent v. MacMas, 65 Me. 591; AUyn v. Providence K. R., 4 R. I. 457; Ten Brooke v. Jahke, 77 Pa. 392; Turnpike Road «. Brosi, 22 Pa. 29; Dobbins v. Brown, 12 Pa. St. 75; Zimmerman v. Union Canal Co., L ' 191 § 67 OP INTERESTS AND OWNERSHIPS AFFECTED. Watts & S. 346; Schuylkill Co. w. Decker, 2 Watts, 343; McLendon v. Atlanta E. E., 54 Ga. 293; Pomeroy v. Chicago E. E., 25 Wis. 641 ; Ver- dier I). Port Eoyal Ey., 15 S. C. 47G; Indiana Ey. v. Allen, 100 Ind. 409; Galveston E. E. v. Pfeuffer, 66 Tex. 66; Milwaukee E. E. v. Strange, 63 Wis. 178. But see Caldwell u. Bank, 20 Ind. 294. 2 Plummer-i). Warsaw Boom Co., 49 Wis. 449. 3 Texas Ey. v. Kirby,44 Ark. 103. * Haskell v. New Bedford, 108 Mass. 208; Hentz v. Long Island E. E., 13 Barb. 646; McFadden v. Johnson, 72 Pa. 335. 5 Carll V. Stillwater E. E., 16 Minn. 260. « Brown v. Essex, 12 Mete. 208. ' Eoberts v. Williams, 15 Ark. 43. 8 Smith V. Perris, 13 N. Y. Sup. Ct. 553. » Drath v. Burlington E. E. Co., 15 Neb. 367. 10 Curran v. Shattuok, 24 Cal. 427. " Southside E. E. v. Daniel, 20 Gratt. 344. " Sams II. Port Eoyal Ey. Co., 15 S. C. 484; Verdier v. Port Eoyal Ey., 15 S. C.476. w New Brighton v. Peirsol, 107 Pa. St. 280. § 67. Change of title by death — Claims of heirs and administrators. — Proceedings to condemn land belonging to the estate of a decedent should be brought against the heirs, and notice should be served on them. The adminis- trator is not the owner of the land.^ If tbe land is taken before the death of the former owner, the administrator is entitled to the damages, and must take the proper steps to obtain them.^ In New York it is held that if the owner dies after land is taken and before award of damages is made, the title descends to his heir-at-law subject to widow's dower with a claim for damages, but that after an award is made it is a personal asset. ^ Notice given to the owner is good, notwithstanding death occurs before the assessment, and the heirs are non-residents.* By the death of the ancestor the fee descend^ to the heirs, and there should be a revivor against them.^ The administrator Gimble u. Stolte, Admrx., 59 Ind. 446. " Ohieago R. R. v. Chamberlain, 84 111. 333. § 75, Liegal and equitable titles — Trustees and cestnis que trust — Receivers — Guardians. — There is no inflexi- ble rule of law that requires the court to shut its eyes to the real interests of the parties claiming land, or to their substantial rights and equities in relation to each other. It will not order the payment of damages to one holding a naked legal title, when another party was entitled to a deed Tjefore the taking, and had a good equitable, but not legal, title, and will not compel the equitable owner to an addi- tional action to charge the holders of the legal title as trust- ees for the holders of the equitable title.' It is proper to join cestui que trust with trustee, in proceedings,^ and the owner with one to whom has been given a bond for a deed.' Equitable owners are held not necessary parties, in prooeed- ingsto value land.* No objections can be made, however, if they join with the legal owner.* They certainly have the right to intervene and claim a hearing on the distribution of the fund ; and it seems that the proposition should follow, that if they had a right to the fund, they should be heard on the assessment of the amount of their Interests. When land is in custody of a receiver, or guardian of lunatic, ap- plication should be made to the court having charge of said estates, before cumpulsory proceedings are had.® One who holds real estate under a contract for sale of lands, is en- titled to recover to the extent of his estate. Holder of legal title should, however, be joined.' 1 Pinkerton v. Boston R. R., 109|Mass. 527. 2 Reedw. Hanover Branch R. R., 105 Mass. 303. ' Proprietors of Locks v. Nashua E. R., 10 Cush. 385. •• Hidden v. Davisson, 51 Gal. 138; The State v. Easton B. R., 36 N.J. X. 181. 6 Drury v. Midland R. R., 127 Mass. 571. « Be Taylor, 6 Eng. Rail. Cas. 741; Be Brown, 1 Mac. & G. 201. ' Hastings R. R. Co. v. Ingalls, 15 Neb. 123. 14 209 § 76 OF INTERESTS AND OWNERSHIPS AFFECTED. § 76. Unknown owners — Conflicting claims — Payment into court. — The party coademuing must find out the cor- rect owners of the property, for a payment to one not the owner does not operate as a solution of the damages. i If there be a dispute as to the title to an award of damages for change of grade, and the city be aware of it, it cannot pay to the person named in the award, or by his direction to an- other person, and use such a payment as a defense against the one who is truly entitled to the award. ^ Where the person who is entitled to receive the compensation is a non- resident or unknown, the amount should be paid in for the use of the person entitled to it ; if paid to one not entitled to it, the courts will compel a second payment to the rightful owner. ^ Statutes generally provide a method of procedure where the owners are unknown, or where there are conflict- ing claims, or where the land is encumbered by liens. In the absence of such provisions, the money may be paid into court for the benefit of all the claimants.* An order direct- ing the money to be paid to the county treasurer for the benefit of the owners or those interested in it does not de- termine the owner. The condemning party cannot object to such an order.* The amount awarded as damages in- cludes all interests in the land. If in any special case the owner ought not in equity to receive the fund, the court of chancery will, at the instance of any interested complainant, , take charge of its proper distribution.* The money paid in represents the fee, and when deposited belongs to the true owners, and is to be distributed according to the own- ership of the land.' When the interests in the lots are un- divided ones of several different owners, and there are adverse conflicting claims, by tax-titles; attachments, and judgment-liens, it is proper to report the compensation to which the owners of each particular lot are entitled, leaving it for the court to determine in regard to the rights of the respective claimants to the money awarded.* The commis- sioners assessing the damages to the land taken are not to 210 OF INTERESTS AND OWNERSHIPS AFFECTED. § 76- pass on the validity of the conflicting claims." After the money is paid into court, the company paying it can have no further interest in the contest, and cannot appeal.^" Thei-e is no occasion for appeal, because the court will see to the proper distribution of the fund." When the entire amount is paid in, it does not signify that owners of some interests have not been notified.*^ All claims are discharged by the payment.^^ If the company fail to pay, the old ac- tions still remain. The only defense must be payment. i* The court, in distributing the fund, will examine into the. various titles and claims, and require unknown owners to make their proofs of right,^' and may require the claimants to make publication of notice of their application, and to give security in case the real owner is subsequently found. '^ Owners claiming by unrecorded deeds cannot enjoin con- struction, when they knew of the entry and gave no notice of ownership." They may be entitled to compensation, but not to such a harsh measure as an injunction, when they are principally in fault in causing the failure to pay com- pensation by concealing from the company their ownership and claim for damages. The words " unknown owners," in an award of damages, include not anly the owners of the ultimate fee, but also all persons having any interest what- ever in the lands. Under such an award, the owner of the naked fee is not entitled to the whole award when there are others who have an easement in the same.'^ The jury should find the aggregate amount, and then, if possible, apportion the same among the several claimants.'' The English Lands Clauses Consolidation Act, 8 Vict., c. 18, § 54, provides that " the purchase money or compensation t» be paid for any lands to be purchased or taken hy the pro- moters of the undertaking from any party who, by reasoa of absence from the kingdom, is prevented from treating, or who cannot after diligent inquiry be found, or who shall not appear at the time appointed for the inquiry before the jury as hereinbefore provided for, after due notice thereof, 211 § 77 OF INTERESTS AND OWNERSHIPS AFFECTED. and the compensation to ' be paid for any permanent injury to such lands, shall be such as shall be determined by the valuation of such able practical surveyor as two justices shall nominate as hereinafter mentioned," and the amount awarded is to be invested in bank for the owner. 1 Hagar v. Bralnard, 44 Vt. 294. ' Hatch V. Mayor, etc., of New York, 82 N. Y. 436. 3 South Park Commissioners v. Todd, 112 111. 379. * Wiggins V. Mayor, 9 Paige, 16; Philadelphia v. Dyer, 41 Pa. 463; Muire v. Falconer, 10 Gratt. 12. 6 Chicago E. E. Co. v. Prussing, 96 111. 203. 6 Crane v. City of Elizabeth, 36 N. J. Eq. 339. ' Matter of New York Central E. E., 60 N. Y. 116 ; Eoss v. Adams, 28 N. J.L. 160. 8 Chicago E. E. v. Chamberlin, 84 111. 333 . 9 Eoss V. Elizabethtown E. E., 20 N. J. L. 230; Mclntire v. Easton E. E., 26 N. J. Eq. 425. Haswell v. Vermont Central E. E., 23 Vt. 228; Van Vorst, ex parte, 2 N. J. Eq. 292. " Columbia Bridge Co. 11. Geisse, 34 N. J. L. 268; Mclntire v. Easton E. E., 26 N. J. Eq. 425; Eeese v. Addams, 16 Serg. & E. 40. 12 Tide-Water Co. v. Archer, 9 Gill & J. 479. " Philadelphia v. Dyer, 41 Pa. 463. 1* Fisher v. New York, 57 N. Y. 344. 1^ Fisher v. New York, 57 N. Y. 344; Noble St., 1 Ashm. 276. '« Matter of Art St., 20 Wend. 685. " Pickert V. Eidgefleld Park E. R., 25 N. J. Eq. 316. 18 Matter of Eleventh Avenue, 81 N. Y. 436. 19 Getz V. Philadelphia E. E., 105 Pa. St. 547. § 77. Duty of condemning' party to ascertain owner- ship of property taken. — The statutes may require the condemning party to ascertain and set out the names of owners. The assessment of damages should appear in the report to have been made to the parties entitled, by name, for the confirmation of the report is in the nature of a judg- ment in favor of that party. The condemning party can cer- tainly go to the records, for the recording of a deed imparts notice of ownership.^ The question of owner's interest or estate inland is a proper one for consideration in award- ing damages. If he does not hold the title and has taken BO steps to obtain same, he is not entitled to damages for 212 OF INTERESTS AND OWNEKSHIPS AFFECTED. § 77 taking.'' The party in possession should be considered, because adverse possession may have ripened into title,, and such owner be entitled to compensation. The pre- sumption is certainly in his favor as between him and the condemning party,' and he is entitled to compensation be- fore dispossession, notwithstanding the commisioners re- ported that the title was claimed by other parties.* The payees who are to receive the compensation are entitled to know with certainty the amounts set apart to them individ- ually, and cannot be put oif with an order to pay "to the owner or occupant, or to the person entitled thereto." ® An assessment to A. B. and others is bad, for each name should be set out,^ especially when objection is made by such owner;' and if an owner is omitted, the report will be set aside.* The use of such expressions as *' estate of ," •' burying-grouud," "descendants of J. C, deceased," " Cornelia Jackson, trustee," " estate of Cowenhoven," " unknoM'n owners," " heirs and devisees," etc., is not suffi- cient.^ The names of owners petitioning for a highway must be given in full, and it is not sufficient compliance to sign with initials, or with firm-names.^" The petition may be amended so as to show ownership of tracts when all par- ties have been served. ii 1 Curran v. Shattuck, 24 Cal. 427. 2 Knotht;. Barclay, 8 Colo. 300. 3 Hawkins v. County Commissioners, 2 Allen, 254 ; Trustees v. Wor- cester, 1 Mete. 437; St. Paul R. R. v. Matthews, 16 Minn. 341; Missouri R. R. V. Owen, 8 Kan. 409. * Sacramento R. E. v. Moffatt, 7 Cal. 577. 5 Lull V. Curry, 10 Mich. 397. • The StSite v. Oliver, 24 N. J. L. 129. ' Roberts v. Williams, 15 Ark. 43. 8 The States. Bennett, 25 N. J. L. 329. » Matter of Flatbush Avenue, 1 Barb. 286; Hughes v. Sellers, 34 Ind. 337 ; The State v. Blauvelt, 33 N. J. L. 36 ; Boston v. Terry, 5 J. J. Marsh. 220. i» Vawter v. Gilliland, 55 Ind. 278. n Hedrick v. Hedrick, 55 lad. 78. 213 § 78 OF THE RIGHTS OF RIPARIAN OWNERS. CHAPTER IX. OF THE EIGHTS OF KIPARIAN OWNERS. ' § 78. Interference with tide-waters. 79. Eights of riparian owners. 80. Improvement of navigable rivers. 81. Diversion of streams — -Improvement of streams not navigable. ■82. Eights between low and high-water marli. 83. Eights of owners on lakes and great ponds. § 78. Interference with tide -waters. — Ail interference ■with tide-waters can only be justified by legislative grant. The right of eminent domain over the shores and the soil under the waters resides in the state for all municipal purposes, and within the legitimate limitations of this right the power of the state is absolute.! The legislative author- ity prevents the action from being unlawful, but does not protect from the damages resulting to owners of property injuriously affected by a structure interfering with the flow of tide-waters.^ The legislature may authorize a bridge across tide-waters. If a riparian owner is inconvenienced or disturbed by impeding the access to his property on ac- count of the obstruction of the bridge, the damase arisino; is from a partial impediment of a public right, and the dam- age resulting is of the nature that the general public suffers, and compensation is not provided for such damage.^ The right to free access to tide-water is a right, the obstruction of which is an element of damage.* A riparian owner has no right which is greater than that of others to have vessels in the stream tied to his bank.^ Damages for interfering with the flow of tide-waters can be obtained in action on the case.* 1 Ormerod v. New York E. E., 13 Fed. Eep. 370. 2 Lee V. Pembroke Iron Co., 57 Me. 481 (qualifying Parker v. Cutler Mill-Dam, 20 Me. 353). 214 OF THE EIGHTS OF RIPARIAN OWNERS. § 79 3 Fitchburg R. E. v. Boston R. R., 3 Gush. 58; O'Brien v. Norwich E. H., 17 Conn. 372. * Drury ?;. Midland R. R. Co., 127 Mass. 571. 5 Boston R. R. v. Old Colony R. R., 12 Cush. 605. ^ Rogers v. Kennebec R. E., 35 Me. 319. § 79. Klghts of riparian owner. — Among the rights of a riparian owner, whether he owns to the center of the j^ river or to the baulc,i is that of access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use or the use of the public, subject to reasonable regulations.^ The riparian owner possesses the right of constructing suitable landings and wharves for the convenience of commerce and naviga- tion, and to extend such constructions out into the river to the point of navigability.^ Riparian rights are property. Of this property the owner cannot be deprived without Just compensation, nor can the state itself exercise such a power of deprivation, or confer it upon some subordinate munici- l^ality, without mailing compensation for the property taken.* The property fronting on the river cannot be taken without compensation to the owner,^ or his right to land against his own land be interfered with bj' the erection of a bridge, railroad, 'or other structure.^ He also owns the accretions to the soil, although a street may have been established on the bank; ' and he is entitled to damages for interference with the deposit of sediment upon his land, although the embankment diminishing the deposit is not at all on his land.® A city cannot allow other wharves and obstruc- tions, to be built outside of a previously established wharf, imless compensation is made for the damage thus caused. "The riffht to use such a wharf and the emoluments therefrom in the shape of wharfage and cranage is a private right, which cannot be taken away without making compensation. The enactment of a law, the effect of which is to restrain proprietors of wharves and land from projecting structures into navio-able waters is in no sense an exercise of the right «f eminent domain. The public do not in any manner ap- 215 § 79 OF THE RIGHTS OF RIPARIAIV OWNERS. propriate or use any right in the soil of the shore, but only enforces the maxim sic utere tuo, ut alienum non Icedas.^" He is entitled to the customary flow of the water, and a diversion of the water for the supply of water-works is a damage requiring compensation." Under a statute authorizing the taking of water, a town can take only so much water as is required, not merely enough for their present wants, but for their future or prospective wants .^^ A city owning land bordering on a river cannot take there- from water sufficient to supply the town, three or five miles distant. The use sanctioned by the common law is that of water sufficient to supply the wants of a riparian owner and his family.^* Such a water-supply may properly be con- demned by a municipal corporation. After that supply is taken, the owner may use the water remaining, for his millf or any other purpose not interfering with the iJublic ease- ment." Where a town is authorized to take water for sup- plying the inhabitants with water, it is no defense to a petition for assessment of damages that the inhabitants of of the town have had from time immemorial the right to take water for drinking and domestic purposes.^* No dam- ages will be allowed to owners near the river who are in- jured by a use of the waters of the river by a corporation making a public improvement, by which use the waters are rendered unfit for the manufacture of beer.^^ A fishery will not be included among those riparian rights for which com- pensation must be made ; the owner can recover only for the land taken and not for the value of the fishery to him.^'^ But in Virginia it is held that arailroad company cannot, in constructing their road, injure' a fishery without making just compensation therefor. ^^ Access to the sea from one's residence is a valuable privilege, and an interference with the same requii-es compensation.^' 1 Lehigh Valley R. R. v. Trone, 28 Pa. 206. In Pennsylvania the ripa- rian owner owns only to the margin, and has no exclusive rights in the soil or water of the river. 2 Yates V. Milwaukee, 10 Wall. 497; Railroad Co. v. Schurmeir, 7 Wall 216 OF THE RIGHTS OF EIPARIAN OWNERS. § 80 272; Chapman ». Oshkosh R. R., 33 Wis. 629; Hickok v. Hine, 23 Ohio St. 523; Be Cooling, 19 L. J. (Q. B.) 25; Union Depot Co. v. Brunswick, 31 Minn. 297; Alexandria R. R. v. ITauace, 31 Gratt. 761. * Rippe V. Chicago K. R., 23 Minn. 18. * Myers v. St. Louis, 82 Mo. 367 (affirming 8 Mo. App. 266). * Chicago R. R. v. Stein, 75 111. 41; Uoioa Depot Co. v. Brunswick, 31 Minn. 297; Davenport E. R. v. Renwick, 12 Otto, 180; Mayor of Balti- more V. St. Agnes Hospital, 48 Md. 419; Garitee v. Mayor of Baltimore, 53 Md. 422; Matter of New York R. R., 77 N. Y. 248. « Hickok V. Hine, 23 Ohio St. 623; Bell v. Hull Rail. Co., 6 Mee. & W. 699. ' Banks v. Ogden, 2 Wall. 57. This right may be regulated by statute. The case of Baltimore Railroad v. Chase, 43 Md. 23, gives interesting rules in case of irregular fronts. « Concord R. R. u. Greely, 23 N. H. 237. Crocker v. City of New York, 15 Fed. Rep. 405. 10 State v. Sargent, 45 Conn. 358. » Burden v. Stein, 27 Ala. 104; ShamlefEer v. Peerless Mill Co., 18 Kan. 24; Silver Spring Co. v. Wauskuck Co., 13 R. I. 611. 12 Bailey v. Woburn, 126 Mass. 416. w Steins. Burden, 24 Ala. 130 " Kane v. Baltimore, 15 Md. 240. / 15 ^tna Mills v- Inhabitants of Waltham, 126 Mass. 422. 16 Eext). Bristol Dock Co., 12 East, 429. 1' Cole V. Eastman, 133 Mass. 65. 18 Alexandria R. R. v. Faunce, 31 Gratt. 761. » Regina v, Eynd, 16 I. R. C. L. 29 (qualifying Falls v. Belfast & Ballymena Rail. Co., 12 Irish L. R. 233). § 80. Improvement of navigable rivers. — Navigable rivers are public highways. They may be altered, deep- ened, and improved, and their channels changed, and dam- ages resulting from such improvement are not proper subjects of compensation, resembling in that respect the damages resulting from repairs and improvements of ordi- nary highways.^ The public have the right to make a reasonable use of a river as a natural highway, and if the riparian owner is injured by such use he is without remedy.^ Damages resulting to individuals from changes m navigable rivers, caused by private corporations not en- o-ao-ed in improving the river for purposes of navigation, require compensation.'' Dredging the bed of a stream is a. proper improvement of a pubUc highway, although the 217 § 80 OF THE EIGHTS OF RIPARIAN OWNERS. riparian owner may be compelled to deepen the river in front of his land in order to have the same water-front as before.* The improvement of the rivet- may destroy fords/ fisheries,^ springs,' and bridges,^ and the damage will be damnum absque injuria. These improvements shonld be confined to the bed of the stream ; ' and there is a growing inclination to hold that any change in the banks of the stream, which operates to throw water, earth, sand, or other material on real estate, or the erection of any structure which effectually impairs the usefulness of fhe land, is a taking of the land, within the meaning of the constitutional jjrotection, although it may be done in the course of the improvement of a navigable river. ^^ A state cannot, except under its power of eminent domain, and upon making just compensation, interfere with the navigable streams within its territory, in any manner or for any purpose other than that of regulating, preserving, and protecting the public easement of navigation therein, and the United States has no power to authorize grantees of piiblio lands to invade the private rights of other proprietors, and the injuring of property by a mining company, by allowing debris to run into the river, thus channing the channel, raising the bed, and overflowing adjacent lands with sand, gravel, and water is a taking for which compensation must be made.^'^ A new channel, cannot be constructed so as to cut off the riparian owner from access to the river ,^^ although done by establishing a new wharf-line at a distance from the navigable part of the river. ^' ^ Thompsoa ■«. Androscoggin Improvement Co., 54: N. H. 545; The People V, Canal Appraisers, 33 N. Y. 461; Lansing v. Smith, 3 Cow. 146; s. c, 4 Wend. 9 ; Canal Appraisers v. The People, 17 Wend. 571 ; Tinicum Co. i!. Carter, 61 Pa. 21; McKeen v. Delaware Division Canal, 49 Pa. 424; Homochitto River v. Withers, 29 Miss. 21 ; Chicago R. R. v. Stein, 75 111.41; Hollister u. Union Co., 9 Conn. 436; Holyoke Water-Power Co. V. Connecticut River Co., 20 Fed. Rep. 77. ^ Thompson u. Androscoggin River Improvement Co., 68 N. H. 108. 2 Ten Eyck V. Delaware Canal, 18 N. J. L. 200; McKeen v. Delaware Division Canal, 49 Pa. 424. * Holton V. Milwaukee, 31 Wis. 27. 218 OF THE KIGHTS OF RIPARIAN OWNERS. § 81 6 Zimmermaa v. Union Canal Co., 1 Watts & S. 346. « Shrunk v. Schuylkill Co., U Serg. & E. 71. ' The Commonwealth v. Fisher, 1 Pa. 462. » Biiley v. Philadelphia R. R., 4 Harr. 389. ' Pottigrew V. Evansville, 25 Wis. 223. »» Pumpelly v. Green Bay Co., 13 Wall. 166; Avery v. Fox, 1 Abb. IT. S. 246; Yates D. Milwaukee, 10 Wall. 497; Ten Eyck v. Delaware Canal, 18 N. J. L. 200. " Woodruff V. North Bloomfield Gravel Mining Co., 18 Fed. Rep. 753. '- Avery v. Fox, 1 Abb. XJ. S. 246; Gardner ■«. Newburgh, 2 Johns. Ch. 162 ; Water Commissioners v. Van Cortland, 4 Edw. Ch. 545. 1" Yates V. Milwaukee, 10 Wall. 497. § 81. Diversion of streams — Improvement of streams not navigable. — The diversion of a stream from its natural channel into an artificial one, or changing the course by an enbanljment, is a tailing of the private property of the iiidiviJual, although such improvement is made with skill and care. The injury is none the less because the work is performed with skill and care.^ Ancient natural streams or drains may be reopened without compensation to those affected thereby.^ The proprietor of the bed and banks of a navigable fresh water stream has the right to the usufruct of the waters and is entitled to compensation for damages sustained by an interruption in the enjoyment of this right in consequence of pai)lic improvements made by the state. The state can divert and detain the waters for other uses only by its sovereign right of eminent domain.^ In a stream in which the tide does not ebb and flow, the public have only the right of passage and nothing more. The proprietor has a right to use the land and water of the river in any way not inconsistent with this eiisement. The beds and banks are the property of the riparian owners. The legislature, except under the power of eminent domain upon making compensation, can interfere with such streams only for the purpose of regulating, pursuing, and protect- ing the public easement. It may make laws for regulating booms, dams, ferries, and bridges only so far as is necessary to protect and preserve the public easement, and when it goes further, it invades private rights protected under the 219 § 81 OF THE RIGHTS OF RIPARIAN OWNERS. constitution.* Land under water may be taken.* Owners have a right to the acijustomed flow of streams not naviga- ble. Public improvements should provide sufficient cul- verts, bridges, etc., to accommodate the flow of such streams ; and if it becomes necessary to flow lands in order to carry out the public improvement, the damages resulting should be paid.^ A riparian owner has the right to the nat- ural stream of water flowing by or through his land in its or- dinary state, both as to its quantity and quality of water .^ The use which is made of th^ waters of a river or creek by means of a canal or ditch is property.* It is not absolutely necessary to leave the stream exactly as it was before,® but the alteration must be skillfully done and afterward maintained.^" The construction of a ditch in such a man- ner as to divert water of a river from one part of riparian proprietor's land to another part is a taking for which com- pensation must be made." A change in the course of a stream below a bridge erected, by which change the banks are washed in a different manner, will not justify damages if the work is skillfully performed ; otherwise, if the im- provement causes the water to flow hack, or be obstructed in its flow.'^ Damages resulting from a necessary ob- struction are presumed to have been considered in condem- nation proceedings, if such have been had, but those arising from an uuuecesary obstruction are to be obtained by a subsequent action of tort.'^ A stream tlnit is not nav- igable, is on a common footing with other private property so far as the right of eminent domain is concerned.^* A change in a stream not navigable, by which such stream is rendered navigable, impairs the rights of riparian owners, and the damages resulting therefrom must be paid to the owners.'* The legislature cannot by act de- clare a private stream public, and take away the rights of riparian owners, without compensation ;'* and cannot open a stream, and remove a dam which has been placed there under legislative sanction, without providing for damages. 220 OF THE RIGHTS OF EIPAEIAN OWNERS. § 82 suffered by tbe owners." No damages will be allowed for diversion" of subterranean streams.'* For diversion of streams and springs, tbe action should be at law for dam- ages and not in equity, to restrain the construction of the work.^* 1 Tinsman v. Belvidere R. R., 26 N. J. L. 148; Gardner v. Newbargb, 2 Johns. Ch. 162; Little v. Dublin & Drogheda Rail. Co., 7 I. R. C. L. 82; Regina v. North Midland Rail. Co., 2 Eng. Rail. Cas. 1; Ferrand ». Corporation of Bradford, 21 Beav. 412; Bottoms v. Brewer, 54 AU. 288. * Avery v. Police Jury, 12 La. An. 554. ' Commissioners of Canal Fund v. Kempshall, 26 Wend. 404. * The Chenango Bridget. Paige, 83 N. Y. 178. 6 Matter of New York Central R. R., 77 N. Y. 248. « March v. Portsmouth R. R., 19 N. H. 372 ; Hatch v. Vermont Central R. R., 25 Vt. 49; Bowe v. Granite Bridge Co., 21 Pick. 344; The People V. Kingman, 24 N.Y. 559; Smith v. City Rochester, 92 N, Y. 463. ' Mayor v. Warren Mfg Co., 59 Md. 96. 8 City of Reading v. Althouse, 93 Pa. St. 400. *> Rowe V. Granite Bridge Co., 21 Pick. 344. l» Cott V. Lewiston R. R., 36 N. Y. 214; Brown w. Cayuga R. R^ 12 N. Y. 487; Robinson v. New York R. R., 27 Barb. 512. « Smith V. Gould, 61 Wis. 31. 12 Henry v. Vermont Central R. R., 30 Vt. 638; Norris v. Vermont Cen- tral R. R., 28 Vt. 99. ^ Estabrooks v. Peterborough R. R., 12 Gush. 224; Robinson v. New York R. R., 27 Barb. 512; Baltimore R. R. v. Magruder, 34 Md. 79. M Smith «. Gould, 59 Wis. 631, 1° White Deer Creek Co. v. Sassaman, 67 Pa. 415; The State v. Glen, 7 Jones L. 321. M Morgan?). King, 35 N. Y. 454; s. c, 18 B£.rb. 277; Walker v. Board of Public Works, 16 Ohio, 540. " Glover v. Powell, 10 N. J, Eq. 211. ^ Galgay ». Great Southern Rail Co., 4 I. R. C. L. 456; Acton v. Blun- dell, 13 Mee. & W. 324; New River Co.©. Johnson, 29 L. J. (M. C.) 93; Chasemore v. Richards, 29 L. J. (Exch.) 81. w Stainton v. Metropolitan Board of Works, 26 L. J. (Ch.) 300. § 82. Rights between low and liigh-water mark. — The bank of a river between low and high-water mark belongs to the sovereign, and may be used for public purposes with- out compensation to the riparian owner. A railroad may be constructed by legislative authority between low and Mgh-water mark, although the communication of the ripa- rian owner with the river is cut off, except over the rail- 221 § 83 OF THE RIGHTS OF RIPAKIAN OWNERS. road. The rights of a riparian owner below high-water mark are the same as the rest of the public, and these pub- lic rights may be controlled by the legislature without compensation, any more than is m;ide for the improvements of an ordinary highway.^ In Pennsj'lvania, the civil law is followed, and the riparian owner is held to own to low- water mark, and may have compensation from a railroad for a spring between low and high-water mark, cut off by con- struction of the railroad.^ The owner of land on an inland tide-water river has an absolute title to the soil to the high-water line, qualified, to the low-water line by the public right of navigation. The owner cannot be compelled to improve the land between low and high-water mark, for the benefit of navigation. The state may do it, but not at the owner's expense. After im- provements have been made by the state, the duty of re- pair falls upon the owner ; and in case of neglect, the ex- pense of repairs may be charged against him.^ A riparian proprietor who has lawfully entered the water for the con- struction of a breakwater cannot thereby acquire title in fee ti) the land occupied by suchbreakwater beyond his original boundary ; nor can he, in a proceeding for compensation for the alleged taking of such land, recover for any injury done to the breakwater.* ' Goulds. Hudson River R. R., 6 N, Y. 522 (affirming s. c, 13 Barb. fil6); Stevens v. Paterson R. R.,34: N. J. L. 532; Ingraham v. Chicago R. R., 34 Iowa, 249; Tomlin v. Dubuque R. R., 32 Iowa, 106. Beck, J., dissenting, claiming the right of the riparian owner to establish mills on. the bank of a river, with free access to the stream. 2 Lehigh Valley R. R. v. Trone, 28 Pa. 206 (qualifying the Common- wealth V. Fisher, 1 Pa. 462) . 3 Philadelphia V. Scott, 81 Pa. 80. * Diedrich v. North-Western R. W., 42 Wis. 248. § 83. Bights of owners on lakes and great ponds. — The owner whose land borders on a lake or great pond has a right to the use of the waters as a water supply, a mill- pond, or an ice-pond, and any tJiversion of water from the lake is a proper subject of damages.^ la Massachusetts, 222 OF THE RIGHTS OF KIPARIAN OWNERS. § 83 great ponds are considered public property, and the riparian owner cannot claim damages for water drawn off by an aqueduct company, under legislative authority.^ Under a statute authorizing a city to take the waters of great ponds for the pui-pose of supplying its inhabitants with water, and providing for the payment of damages, the owners of mill privileges along the out-let of such ponds are entitled to compensation for the privileges thus destroyed or impaired, and parties who are using the waters for other purposes than for power, are entitled to damages. Each mill owner can bring a proceeding, and a corporation owning a mill at some distance from the stream, the water being conveyed to it by a canal, may also bring a proceeding for the assess- ment of damages.^ Water rights may be taken so far as may be necessary for the preservation and purity of water, including prescriptive rights to discharge sewage into such waters.* A provision empowering the owners to appraise the compensation and fix the maximum of water to be taken is not unconstitutional ; the latter provision enables the commissioners to determine the damages.' ' Trustees u. Dennett, 9 N. Y. Sup. Ct. 669. 2 Fay V. Salem County, 111 Mass. 27. s Watuppa Eeservoir Co. v. Fall Biver, 134 Mass. 267. * Gray v. Aldermen of Boston, 139 Mass. 328. ■ * Application of VUlage of Middletown, 82 N. Y. 196. 223 § 84 OF EEMEDIES PKOVIDED BY THE STATE. CHAPTEK X. OP THE BEMEDIES PROVIDED BY THE STATE AND OPEN TO THE OWNER. § 84. Remedy to be provided by the legislature. 85. The assessment of damages under judicial control. 86. Disqualification of Court on account of Interest. 87. Statutory remedy is exclusive. 88. Where the statutory remedy is not complete, the common-law remedy.survives. 89. The initiative in proceeding; — Where the condemning party alone may institute proceedings — Where the owner alone may insti- tute — Where either party may institute. 90. Remedy of owner, where condemning party does not follow statu- tory remedy. 91. Not necessary that the assessment should be by a jury, 92. Rules governing proceedings — Open and close — Change of venue — Reference — Due process of law. 93. Effect of subsequent legislation on proceedings — Reversal of pro- ceedings. § 84. Remedy to be provided by the legislature. — The right to appropriate private property to public uses lies dormant in the state until legislative action is had point- ing out the occasion , the modes, conditions, and agencies for its appropriation. Private property can only be taken pursuant to law; but a legislative act declaring the neces- sity, being the customary mode in which tliat fact is determined, must be held for this purpose the law of the land, and no further finding or adjudication can be essen- tial unless the constitution of the state has expressly required it. The legislature may prescribe the terms, conditions, and methods by which the compensation to be paid on a taking of private property for pul)lic use should be ascer- tained. The proceedings are in the nature of an inquisi- tion on the part of the state, and are necessarily under its control. The original ad quod damnum proceeding was a writ issued out of chancery at the mere motion of the sov- 224 OF REMEDIES PROVIDED BY THE STATE. § 84 •ereign himself, to iaform his conscience, and was an ex j)arte proceeding," and was returnable into chancery. A proceeding to Condemn land is not an action at law, but an inquest under authority of the State in the performance of a duty, and is under its control.' In like manner statutes have taken away the common-law remedy, of trespass, and dam- ages must be assessed in the mode provided by the stat- utes.* It is the duty of the state to see that the estimates made are just, not merely to the individual whose property is taken, but also to the public, which is to pay for it.^ No particular mode is prescribed by which the amount of compensation is to be ascertained. That maybe submitted to any impartial tribunal the legislature may designate.' There is no other restraint upon the power of the legisla- ture to authorize the taking of land for public use, except the condition of making compensation to the owners. While the property to be taken and the purpose for which it is to be applied may be designated in the statute, it must be by unequivocal words, and in pursuing it all prescribed requirements must be strictly observed.^ It is not abso- lutely necessary that the owner should have an opportunity of appearing before the tribunal. It is not necessary to invest the proceedings with the forms or substance of legal process. The act may allow the owner to intervene, or may leave the whole matter to the discretion of the tribunal.^ Kio'ht of emhient domain can only be exercised under the protection of the legislative grant, and under the condi- tions and liabilities which the statute attaches to the grant.' The o-ranting of the right and the determining of the method of compensation are all vested in the legislature and the courts have no such power. The courts may construe the constibution and determine whether the power has been properly conveyed and see that it is properly exercised.'" The legislature has control over the remedy so as to affect pending prooeedi»gs and change the remedy," and may pro- vide that claims shall be brought in writing,^" and within a 15 225 § 85 OF REMEDIES PROVIDED BY THE STATE. limited time. Every requisite of a statute, having a sem- blance of l)enefit to the owner, must be complied with.^*" The rule is that statutes are to be so construed as not to advance a private and destroy a public interest, but always to advance the public interest, doing as little damage as possible to the private interest." The Court of Claims is a proper im[)artial tribunal, designated by the act and pos- sessed of all the requisite means to investigate and deter- mine all questions which could arise iu respect to such a claim." 1 Alexandria E. E. v. A. & W. E. E., 75 Va. 780. 2 Chesapeake Canal Co. v. Union Bmk, 4 Cranch C. Ct. 75. -' New Orleans E. E. v. Drake, 60 Miss. 621. ■■ HoUoway v. University E. E., 85 N. C. 452. " Garrison u. New York, 21 Wall. 196. 8 Bonaparte v. Cmlen R. R., Baldw. 205; The People v. Smith, 21 N. Y. 695; Riche u. Bar Harbor Water Co., 75 Me. 91. Bachler's Appeal; 90 Pa. St. 207; State v. Mclver, 88 N. C. 686. ' In re Water CommissioQers of Amsterdam, 96 N. Y. 352 ; Sweet v^ Buffalo Ey., 79N.Y. 293. 8 The People v. Smith, 21 N. Y. 595. ' Houston B. E. v. Meador, 50 Texas, 77. J» Moody 11. Jacksonville E. E., 20 Fla. 597. « Springtleld E. E. v. Hall, 67 111. 99. 1' Hazen v. Essex Co., 12 Cush. 475. 13 Newell «. Wheeler, 48 N. Y. 486; Stocketti). Nicholson, Walk. (Miss.)- 75 ; Mayor v. Delachaise, 22 La. An. '26 ; New Orleans ». Sohr, 16 La. An. 393. 1* Jerome v. Boss, Johns. Ch. 315; Chesapeake Canal Co. v. Key, 3 Cranch C. Ct. 599. ^' Great Falls Mfg. Co. v. Garland, Attorne3--GeneraI, 25 Fed. Bep. 521. § 85. The assessment of damages under judicial con- trol. — The sovereisfu cannot assess the damaares in the case of a condemnation by himself ; nor can the state, by legis- lation, fix the amount to be paid.^ An arbitrary schedule of prices to be paid cannot be established, but there must be a fair appraisement by an independent tribunal. 2 The legislature iu exercising the right of eminent domain can- not, in the law itself, fix the compensation to be paid. Such compensation must be awarded by an impartial tribunal.' A statute which undertakes to limit the compensation to be paid 226 OF REMEDIES PROVIDED BY THE STATE. § 85' for property is void.* The tribunal must be impartial, and may be a jury, or commissioners, or court without a jury ;* but the legislature cannot appoint the commissioners directly, without consent of, or notice to, the owners, and without giving an opportunity to the owner to be heard.^ A board of public officers created under the general laws of- the state and acting under the obligation of an official oath, is a competent and impartial tribunal.^ The corporation con- demning cannot be invested with the office of assessing damages or benefits, because that must be done by an impar- tial tribunal.® An assessment may be made by a committee of a city council, if there is a provision that the owner may have a review by the courts on application;' but it would be extending too far the control of the city over the proceedings, for the charter to direct that the city attorney should give the jury legal advice concerning their duties whenever required, and that heshoulddraw up their report. That would not give the owner equal privileges with the party condemning.'" The amount cannot be fixed by the sworn statement of the agent of the company and of two disinterested freeholders. Such a method is an evasion, is ex parte and secret, and one of the members of the body is interested in the event." It would be improper to provide that the city council should nominate the jury for the con- demnation of land for street-openings. '' The legislature cannot declare a leasehold or franchise forfeited, and authorize a reentry. These interests are property, and cannot be taken except on payment of compensation judi- cially ascertained." A city ordinance cannot divest the title to property ex propria vigore. This can only be done by judicial proceedings." The tribunal need not be from the county in which the land lies, but may be from another county." Proceedings to condemn lands are not in them- selves judicial proceedings : the inquiry is an appraisal of value and not a contest on litigious rights, and the neces- sity of the taking." 227 § 86 OF REMEDIES PROVIDED BY THE STATE. Coui-tg do not have this right, all they can do is to appoint commissioners to ascertain and report what com- pensation and damage the owner of the property is entitled to receive, when he and the company cannot agree upon it, and to determine what is a just compensation. It has no jurisdiction to consider any. question as to the company's title." 1 Charles River Bridge v. Warren Bridge, 11 Pet. 420, per McLean, J. ; "Van Home's Lessee v. Dorrance, 2 Dall. 304; Eich v. Chicago, 59 111. 286; Langford v. Commissioners, IC Minn. 375. 2 Cunningham v. Campbell, 33 Ga. C25; Cox v. Cummings, 33 Ga. 549; Kramer v. Cleveland R. E., 5 Ohio St. 140. 3 Pennsylvania R R. v. Baltimore R. R., 60 Md. 263. * Tripp V. Overoclier, 7 Colo. 72. 5 Ames V. Lake Superior R. E., 21 Minn. 241. s Langford o. Commissioners, 16 Minn. 375; Heyneman v. Blake, 19 Cal. 579. ' State V. Messenger, 27 Minn. 119. ^ Hessler v. Drainage Commissioners, 63 111. 105. ' McMicken v. Cincinnati, 4 Ohio St. 394. J" Paul V. Detroit, 32 Mich. 108. ^ Powers u. Bears, 12 Wis. 213. ^ Lumsden v. Milwaukee, 8 Wis. 485. 13 McCauley v. Weller, 12 Cal. 600; Powell v. Sammons, 31 Ala. 552. 1* Saa Prancisco v. Scott, 4 Cal. 114. 15 Tlie People v. Lake Co., 33 Cal. 487. 16 Toledo Ry. Co. v. Dunlap, 47 Mich. 456. " Alexandria R. R. v. A. & W. B. E., 75 Va. 780. § 86. Disqualiflcatioa of court on account of interest. — A judge cannot act in a cause to which he is a party, or where he has an interest in one of the parties to the contro- versy, — as, where he is a stockholder in a corporation con- demning.^ If. the judge or person presiding over the in- quiry has no personal interest in the controversy, he may preside notwithstanding he is a nominal party to the pro- ceedings. Although proceedings for street-openings may be brought in the name of the mayor of the city, yet the mayor may summon the jury and preside over the hearing. In that matter he is an executive officer, simply. The jury pass on the question of damages. His position, summon- ing the jury, could not make him exercise judicial func- 228 OF REMEDIES PROVIDED BY THE STATE. § 87 tions. He is also not disqualified for the reason that a portion of the land condemned beloiiofed to him.^ Com- missioners laying out highways are not judges in their own causes, although the highways may be partly on their own lands. The rule preventing a judge from acting in his own cause applies to judges eo nomine sitting in the trial of causes.' A judge is not incompetent to appoint commisT sioners because he had beea employed in surveying the route, nor because he had expressed an opinion that the road was unnecessary, nor because he had once been a member of the town committee. These matters do not affect the assessment of the amount of damages.* Pro- ceedings to condemn land should be before an impartial tri- bunal, under the usual rights and privileges which attend judicial investigation. A statute prescribing that the party seeking condemnation (city) shall appoint commissioners to assess amount of compensation is unconstitutional. Neither party should have the exclusive right to select the apprais- ers.^ > Giesy V. CiQcmaati R. R., 4 Ohio St. 308. 2 Lexington v. Long, 31 Mo. 369. 3 Foot V. Stiles, 57 N. Y. 399. 4 Readington v. Dilley, 24 N. J. L. 209. ' Rhine v. City of MoKinney, 53 Texas, 354. § 87. Statutory remedy Is exclusive. — The legislature ordinarily provides by general laws for the condemnation of property and the assessment of damages, and it is not necessary that each taking should be by a separate legisla- tive act.^ When the remedy provided by statute is com- plete, the common-law remedy is superseded by the statute, and the person injured must pursue the course pointed out by the act. The statutory remedy is not merely cumulative upon the common-law action, but an entire substitution for it, and must be exclusively pur- sued.^ The rule of construction is the same as of the con- struction of a statute which creates a new offense, gives a penalty, and directs how it shall be recovered. In suck 229 § 87 or REMEDIES PROVIDED BY THE STATE. cases the statutory remedy can alone be followed.^ The state caa only be sued by permission ; and when property is condemned by the state, the legislature can i)rovide the manner of ascerta!ining the damages in exclusion of all other remedies.* The owner is entitled to compensation only in the manner provided by law ; and if he fails to ask for compensation, or fails to apply in tune, or his applica- tion is unsuccessful in showing his right thereto, he cannot resist the appropriation simply because his compensation has not been paid. He should persist in a proper mainte- nance of his suit as provided by statute, and should appeal in case of error. ^ The ascertainment of damages is not within the province of a court of equity.^ An action of tort will not lie against those making a public improvement under statutory povver,^ but if the mode provided is not followed the owner may bring an action of trespass, or for value and damages under the eminent domain act.' A party may waive a statutory and even a constitu- tional provision made for his benefit, and having once done St) he cannot afterward ask for its protection.' The con- demning party must strictly follow the statute, or the appropriation maybe enjoined.^" If the statute does not show an intention to make the statutory remedy exclusive, and does not negative the idea that the common-law rem- edy shall be used, the statutory remedy is considered cu- mulative.^^ ' Backus V. Lebanon, 11 N. H. 19. 2 Liodell's Administrator v. Hannibal & St. Joe R. R., 36 Mo. 543; Stevens v. Middlesex, 12 Mass. 466; Calking u. Baldwin, 4 Wend. 667; Spring 1). Russell, 7 Me. 273; Hovey ti. Miyo, 43 Me. 322; Masons. Ken- nebec R. R., 30 Me. 215; Henniker v. Contoocook R. R., 29 N. H. 146 Aldrich v. Clieshire R. R., 21 N. H. 359; Plagg v. Worcester, 13 Gray, 601 Perry t). Worcester, 6 Gray, 544; Heard v. Middlesex C.inal, 5 Meto. 81 Gedney v. Tewksbury, 3 Mass. 307; Kocli v. Williamsport Co., 65 Pa. 288 Spangler's Appeal, 64 Pa. 387; McKinney v. Mouongahela Nav. Co., 14 Pa. 65; Molntlre v. Western R. R., 67 N. C. 278; Puller v. Edings, 11 Eich. L. 239; McLauctiliu v. Charlotte R. R., 5 Rich. L. 583; Brown v. Beatty, 34 Miss. 227; Colcough v. Nasliville R. R., 2 Head, 171; Mitchell V. Turnpike Co., 3 Humph. 45G; Smith v. Chicago R. R., 67 111. 191 ; Little 230 or REMEDIES PROVIDED BY THE STATE. § 88 Miami R. R. v. Whitacre, 8 Ohio St. 590; Cairo R. R. v. Turner, 31 Ark. 494. Leavitt w. Eastman, 77 Me. 117; Duck River E. R. v. Cochrane, 3 Lea, 178; Detroit R. R. v. City of Detroit, 49 Mioh. 47; Knothu. Barclay, 8 Col. 300; Denver R. R. u. Lamborn, 8 Col. 380; Baltimore R. R. v. Algire, 63 Md. 319; Carolina Central R. R. v. McCaskill, 94 N. C. 746. 2 Elder?;. Bemis, 2 Mete. 599. * McKlnney v. Monongahela Nav. Co., 14 Pa. 65. ^ Dunlap V. Pulley, 28 Iowa, 469; Connolly ii. Griswold, 7 Iowa, 416. 6 Buchner v. Chicago Ry. Co., 56 Wis. 403. I Smith V. Gould, 59 Wis. 631. ' Duck River E. B. v. Cochrane, 3 Lea, 478. » In re Cooper, Mayor, etc., 93 N. Y. 507. i" Commissioners v. Humphrey, 47 Ga. 565. 11 Selden v. Delaware Caniil Co., 24 Barb. 362; Carr. v. Georgia R. R., 1 Ga. 524; Atchison R. R. v. Weaver, 10 Kan. 344; Toney ?;. .Johnson, 26 lud. 382 (qualifying Indiana R. R. v. Oxkes, 20 Ind. 9); McCormack v. Terre Haute R. R., 9 Ind. 283; Lafayette R. R. o. Smith, 6 Ind. 249; Conwell V. Canal Co., 2 Ind. 588; Kimble v. Whitewater Canal Co., 1 lud. 285. § 88. Where the statutory remedy is not complete, the <5omaion-law remedy remains. — For lui entry ou land, or the taking or destruction of property, of another, the com- mon law gave the inJLired party the remedies of trespass, trespass on the case, or ejectment. These remedies gave the owner complete compensation for the invasion of his rights of property. The statutory remedy which is pro- vided must be complete in ascertaining the damages and securing their payment, or the common-law remedy maybe pursued.^ The provision of a specific mode of ascertaining damages confers no riafht which did not exist before. The omission of a specific mode leaves the party his common- law right. ^ If the statute only provides a partial remedy,' there is a remedy for the remainder at common law.^ The payment of damages must be secured ; and if after con- demnation there is a refusal to pay, trespass,* or ejectment with mesne profits^ may be maintained. Ejectment will also lie against parties claiming under condemnation pro- ceedings, and exercising rights of ownership over land, although not occupying it, when the compensation has not been paid.® An opportunity should also be given to the 231 § 89 OF REMEDIES PROVIDED BY THE STATE. owner to assert his rights to the property takea ; and if this; is denied, he may sue in trespass for an entry .^ If the amount of compensation is ascertained, but the statute pro- vides no means of enforcing the payment, the common-law action of debt will lie.* The owner cannot pursue his claim for damages and also proceed to nullify the action of the commissioners in taking the property. Tha pursuit of one remedy waives the right to the other. ^ Trespass cannot be broughtwhile condemnation proceedings are pending.^" The right of way condemned endows the company making the condemnation with no rights beyond those expressed in its charter. When these are exceeded it becomes a trespasser .^"^ 1 Charles River Bridge v. Warrea Bridge, H Pet. 420, per McLean, J.; Lee V. Pembrolie Iron Co., 57 Me. 481; Stevens u. Middlesex Canal, 12 Mass. 466; Cogswell v. Essex Mill Co., 6 Pick. 94; Amoskeag Co. o. Goodale, 46 N. H. 53; Ciaciuaati v. Cjombs, 16 Ohio, 181; Johnson v. City of Parkersburg, 16 W. Va. 402; Commissioners u. Miller, 82 Ind. 572. 2 Lee V. Pembroke Iron Co., 57 Me. 481; Comias v. Bradbury, 10 Me. 447; Denslow v. New Haven Co., 16 Conn. 98. 3 Troy V. Cheshire K. B., 23 N. H. 83; Barlington R. R. v. Reinhackle, 15 Neb. 279. * Jamison v. Springfield, 53 Mo. 224. s McClinton v. Pittsburgh R. R., 66 Pa. 404. « Carpenter v. Oswego B. R., 24 N. Y. 655. ' Potter y. Ames, 43 Cal. 75. ^ Bigelow V. Cambridge Turnpike Co., 7 Mass. 202; Lebanon v. Olcott, 1 N. H. 339; Battles u. Braintree, 14 Vt. 348. * Pinkham 13. Chelmsford, 109 Mass. 225. ^ Rusch V. Milwaukee Ry., 54 Wis. 186. " Carrige u. East Tenn. R, B. Co., 7 Lea, 888. § 89. The initiative in proceedings — Wliere the con- demning party alone may institute proceedings — Where the owner alone may institute — Where either party may institute. — If the statute leaves the institution of proceedings to assess damages with the condemning party solely, an entry made without taking advantage of the benefits of the act leaves the owner in such a condition that he may bring trespass or ejectment.^ He may recover his land, or the value of it, and is not compelled to bring a mandamus to compel a condemnation.^ There is no 232 OF REMEDIES PROVIDED BY THE STATE. § 89' reason why he should not also be entitled to an injunction.^ The condemning party has abused his rights, and can only claim immunity by showing that his proceedings have been thoroughly regular.* In Kansas' it is held that where a company has con- structed and is operating a road through a piece of land belonging to another, without having first obtained the right of way by any formal condemnation proceedings and without having procured any title to the land or any ease- ment therein, the owner of the land may waive any formal condemnation proceedings and uU formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and. may commence an ordinary action to recover compensation for all the damages which he has sustained by reason of the permanent taking and appropriation. When the initiative of the remedy is given to the owner alone, he must pursue his remedy, and the condemning party will not be liable in trespass until refusal to pay the d;images assessed, or to give the security required by law.^ The owner is not required to present his claim with all the regularity and formality required in regular pleadings, but must indicate with reasonable certainty what his claim is.' In some states either party may begin the condemnation proceedings by applying for the assessment of damages.' In Texas,* the right to institute a proceeding to condemn land is given to the company seeking it, and to no other person. If the company fails to avail itself of this right, and without the consent of the owner, enters upon his land, such owner is entitled to resort to any court having juris- diction, for redress of the wrong, and in Ohio '" the land- owner may compel the railroad to appropriate the right of way. If the initiative is given to either party, neither can complain that the other did not first begin j^^ and an entry made under legislative authority would not be a trespass,'^ and an injunction would not be allowed to the owner where 233 § 89 OF REMEDlliS PROVIDED BY THE STATE. he might have pursued the statutory remedy and obtained his damages.^' In most of the states, a strict rule has grown up requiring the payment of compensation before entry. The condemning party, iu order to enter, must have paid damages, and must necessarily have ascertained the amount. Hence it has been held, generally, that an entiy without payment or tender would furnish the owner sufficient grounds for maintaining trespass," ejectment, ^^ or for obtaining an injunction, ^^ and that there is no obliga- tion on the part of the owner to institute such proceedings. When some property is damaged and other property is taken for public use at the same time, it is almost indispensable to the ends of justice that the questions should be consid- ered together, and the most convenient way to do this is by cross-petition. A cross-petition is an appropriate mode of bringing before the court property of the defendant taken or damaged and not descrilied in the petition. Under the eminent domain act of Illinois, an answer or plea is not allowable ; if a plea is filed, it should be stricken from the files." When the land-owner takes the initiative, he should so frame his declaration as to enable him to recover the en- • tire amount of damages in one action, for he cannot main- tain repeated actions at law to recover damages necessarily resulting from the taking. ^^ 1 Atlantic R. E. v. Fuller, 48 Ga. 423; Eward v. Lawrenceburg R. R., 7 Ind. 711; Sherman v. Milwaukee R. R., 40 Wis. 645; Kansas Pacific R. R. •0. Streeter, 8 Kan. 133; Steia v. Burden, 24 Ala. 130; Soulard v. St. Louis, -36 Mo. 546; Blesch v. Chicago R. R., 43 Wis. 183; RusoU v. Milwaukee Ry., 54 Wis. 136; Schroeder v. DeGraff, 28 Minn. 299; Blest d. Chicago Ry., 44 Wis. 593; Little Rock Ry. v. McGehee, 41 Ark. 202; Oregonian Ey. V. HiU, 9 Ore. 377; Hays v. Texas Ry.,62 Texas, 397; Republican Val- ley R. R. V. Fink, 18 Neb. 82; Little Rock R. R. v. Dyer, 35 Ark. 360; Dimraick v. Council Bluffs R. R., 58 Iowa, 637; Greene v. First Division St. Paul R. R., 26 Minn. 66; Birge v. Chicago Ry., 65 Iowa, 440. 2 Smith V. Chicago R. W., 67 IU. 191; Shepardson v. Milwaukee R. R., « Wis. 605; Wren v. Walsh, 57 Wis. 98; Hays v. Texas Ey., 62 Texas, 397; Niemeyer v. Little Rock Ry., 43 Ark. Ill ; Dimmick v. Council Bluffs R. R., 58 Iowa, 637; Jackson v. CeuterviUe Ry., 64 Iowa, 292. 3 Harrington v. St. Paul R. E., 17 Minn. 215. * Mobley v. Breed, 48 Ga. 44. 234 OF EEMEDIES PROVIDED BY THE STATE. § 90 ^ Cohen v. St. Louis R, R. Co., 34 Kan. 158. « Davis V. Russell, 47 Me. 443. ' Martinsville R. R, v. Bridge«i, 6 Ind. 400. 8 Pittsburgh Ry. v. Commonwealth, 101 Pa. St. 192; Republican Valley H. R. ■«. Fink, 18 Neb. 82. " International Ry.-u. Benitos, 59 Texas, 326. 1" Lawrence R. R. Co. i>. Williams, 35 Ohio St. 1C8. ^1 Liudell's Administrators. Hannibal & St. Joe R. R,, 36 Mo. 543. '2 Calking v. Baldwin, 4 Wend. 667. " Parham v. Justices, 9 Ga. 341. '* Loop V. Chamberlain, 20 Wis. 135; Crittenden v. Wilson, 5 Cow. 165; Ash V. Cummings, 50 N. H. 591; Daniels v. Chicago R. R., 41 Iowa, 52. >^ Daniels v. Chicago R. R., 35 Iowa, 129. '6 Bohlman v. Green Bay R. R., 30 Wis. 105; Loop v. Chamberlain, 20 Wis. 136, s. c, 17 Wis. 504. " Johnson v. Freeport Ry. Co., Ill 111. 413. '» Smith V. Point Pleasant R. R., 23 W. Va. 453. § 90. Remedy of owner, where condemning party does not follow statutory remedy. ■ — Should the coudernii- ing party follow the statute strictly, he obtains a title to or easement in the property. While pursuing that remedy he is removed from the multiplicity of common-law actions which might otherwise be brought. If the statutory remedy is not strictly followed, no title or easement is obtained, and the condemning party has no defense to the usual common- law actions.^ If a company take possession under a charter permitting it to do so and have compensation adjusted thereafter, it is not a trespasser, and an injunction would not be allowed; but this rule would not prevail where the right of eminent domain is granted to corporations by the legislature of a state whose constitution requires compensa- tion to be first paid or secured before the property is taken. ^ The owner may enjoin the entry, -^ either when the company condemning is insolvent,'' or where, from the per- sistency of the officers, it is evident that an injunction will be necessary to avoid a multiplicity of suits of trespass ;' or the court may order compensation to be made, or a cessa- tion of the use of the condemned property.^ The necessities of the corporation for the immediate use of the land for the purpose of constructing its road are not sufficient 235 § 90 OP REMEDIES PROVIDED BT THE STATE. • to nullify the constitutionsil rights of private property/ Injunction will not lie to prevent a trespass, or in air of an action of trespass, unless it appear that the injury will be irreparable ; that pecuniary compensation will be inadequate, or that a multiplicity of suits will thereby be avoided. The fact that the defendant threatens to continue his trespasses is not sufficient, if the defendant is solvent.* An attempt to take jjermanent possession of land for pub- lic use without the assent of the owner express or im- plied, and without payment or tender of damages in advance, would, if consummated, he in the nature of an irreparable injury to prevent which an injunction will ordinarily be granted.^ The owner may bring ejectment, '^ and the pend- ency of proceedings to condemn will be no defense to the action of ejectment." Although a judgment may be main- tained in ejectment or trespass, and the condemning party has paid the mesne profits or the damages, such payment does not operate to pass the title. The action for trespass does not admit that the condemnation was regular, or that any title has passed, and hence the damages paid are not as compensation for the land, but only for the damage up to the time of bringing the suit.'^ The way to settle the com- pensation and obtain title is underthe statute. ^^ Inca-^eof an entry on land for the purpose of constructing a railroad, where the forms of the statute have not been observed, a judgment in trespass in favor of the owner gives the railroad company no title. The verdict and judgment ought not to include the value, but only compensation for such damages to it as the railroad company has perpetrated, increased by such punitive damages as the law might authorize." These damages are to be recov ered down only to the time of bringing the action. ^° The owner of land which has been unlawfully and wrongfully taiien and appropriated by a corporation authorized by law to appropriate land, cannot maintain an action for the value of the land so taken and appropriated and also damages accruing by reason of such taking and 236 OF REMEDIES PROVIDED BY THE STATE. § 90 appropriation, if the circumstances are such that he may re- cover the land itself.'^ Should a company enter and construct undercolor of appropriation proceedings,but without making compensation, such unauthorized acts of the company can afford no defense to an action of the owner to recover pos- session, where such owner had no information of the trespass until long after it had been committed." A court of equity will intervene to keep corporations invested with the right, within the line of authority and to compel obedience to the constitution, because of the necessity that they should be kept within control and in subjection to the law, rather than upon the theory that they are trespassers or that the injury which they are inflicting is irreparable.^^ It has been suggested, and without apparent good reason, that the damages obtained in a suit for trespass should be deducted from the compen- sation afterward ascertained.^" The trespass and the con- demnation are separate and distinct.''"' The award cannot cover the damages for past trespasses ;^^ neither can con- demnation proceedings subsequently commenced operate as a bar to actions for previous trespasses. ^^ The only way the company can prevent liability on its part for the con- tinuance of the trespass, is to proceed to appropriate the lands for the use of the road, and pay the compensation to the owner which should be fixed by such proceedings as a just compensation for the taking of the same. ^* The fact that an action of trespass might be maintained does not prevent a condemnation. That should have been had before the trespass, and certainly can be had afterward.^ The owner has his remedy at common law for auy act done in excess of the statutory powers.^ One cannot sue a railroad company for rent, who has never consented to their using his land, and has warned them that they went upon it at their peril, and had no right in the soil. Rights adverse to another's cannot be asserted, and at the same time a claim for rent be made, arising out of an alleged tenancy by contract.* 1 Blaisdell v. Winthrop, 118 Mass. 138; Bwlng v. St. Louis, 5 Wall, 413; Peoria E. B. v. Schertz, 84 111. 135. 237 § 90 OF EEMEDIES PROVIDED BY THE STATE. - Northern Pacific R. R. v. Burlington Ky., 4 Ted. Rep. 298. 8 Cameron v. Supervisors, 47 Miss. 264; Paris v. Mason, 3T Texas, 447; Floyd?). Turoer, 23 Texas, 292; Pierpoint t). Harrisville, 9 "W. Va. 215; Church v. Joint School District, 55 "Wis. 399; Chicago By. o. Jones, 103 Ind. 386. 4 Norristown Turnpike Co. «. Burket, 26 Ind. 53; Sidener «. Norris- town Turnpike, 23 Ind. 623. The fact that the owner did not enjoin the entry is not a waiver of his action of trespass. Blesch v. Chicago R. W., 43 Wis. 183. * Lewis V. Rough, 26 Ind. 398; Bonaparte v. Camden K. R., Baldw. 206. Ordinarily, injunction will not lie to prevent trespass. Hickerson V. Mexico, 68 Mo. 61; Anderson v. St. Louis, 47 Mo. 479; Nichols v. Salem, 14 Gray, 490; James River Co. v. Anderson, 12 Leigh, 278. « Davis V. La Crosse E. E., 12 Wis. 16. ' Marquette E. E. Co. v. Probate Judge, 53 Mich. 217. * Thorn v. Sweeuy, 12 Nev. 251. " Northern Pacific E. R. v. Burlington, 4 Fed. Rep. 298. 10 Chicago E. E. v. Smith, 78 111. 96; Smith v. Chicago R. E., 67 111.- 191 ; Chicago R. E. v. President of Knox College, 34 111. 195. " Coburn v. Pacific Lumber Co., 46 Cal. 31. 12 HartzD. St. Paul R. R., 21 Minn. 358; Adams U.Hastings R. R,, 18 Minn. 260; Harrington v. St. Paul R. R., 17 Minn. 216. 13 Davis V. La Crosse R. R., 12 Wis. 16; Healey v. New Haven, 49' Conn. 894; Adams v. Clarksburg, 23 W. Va. 203; G. H. & S. A. R. R. v. Mud Creek Co., 1 Texas App. 393; Ruhland v. Jones, 55 Wis. 674. 1* Anderson E. E. v. Kernodle, 64 Ind. 314. 15 Blesch V. Chicago R. R., 43 Wis. 183. ' 16 Atlantic R. R. Co. v. Robbins, 35 Ohio St. 531. " Bothe V. Dayton R. E. Co., 37 Oliio St. 147. 18 East & West R. E. Co. v. East Teun. E. E. Co., 75 Ala. 275. '' Pomeroy v. Chicago E. E., 25 Wis. 641. If damages were assessed at value of property, the recovery would be a bar to further actions of trespass. , Soulard v. St. Louis, 36 Mo. 546. In Kentucky, but one re- covery can be had for damages for running railroad in street, as the lot- owner in effect consents that the railroad may use the street in consider- ation of the judgment. Jeffersonville E. E. v. Esterle, 13 Ky. 667. ™ Loop V. Chamberlain, 17 Wis. 504; Carli v. Union Depot Co., 32 Minn. 101. 21 Hursh V. St. Paul E. R., 17 Minn. 439; Oregon R. E. v. Barlow, 3 Ore. 311. 22 Missouri E. E. u.Ward, 10 Kan. 352 ; Brakken o. Minneapolis By., 32 Minn. 425; Carl v. Sheboygan R. R., 46 Wis. 625. 2' Carl V. Sheboygan R. R., 46 Wis. 625. 2* Secorabe v. Milwaukee R. R., 23 Wall. 108. 25 Broadbent v. Imperial Gas Co., 26 L. J. (Ch.) 276; Regina v. Bristol E. R., 2 Eng. Rail. Cas. 99. 26 Marquette R. R. v. Harlow, 37 Mich. 554. 238 OF REMEDIES PROVIDED BY THE STATE. § 91 § 91. Not necessary that the assessment should be by a jury. — Most of the state constitutions contain a provision that the right of trial by jury shall remain iuviolate, and this has been frequently invoked as an iusuperablp barrier to an assessment of damages, in condemnation proceedings, by a body of less thau twelve men. The weight of author- ity is against this proposition. In condemuations of private property for public use in the exei-cise of the right of emi- nent domain, neither by the provision of the constitution of the United States guarantying the right of trial by jury in common-law cases, nor under the provision forbidding a citizen being deprived of his property without due process of law, nor under similar provisions in the constitutions of states, has it been held that a trial by jury is requisite.^ An act of congress is not unconstitutional because it does not provide for the ascertainment of the value of the property taken through the verdict of a jury. The persons appointed to assess damages in cases of this kind do not perform the proper and usual functions of a jury, and their number is a matter of discretion with tho legislature.- Juries are for the trial of issues of fact in civil and criminal proceedings in courts of justice, and are not necessarily required in the as- sessment of land-damages.^ The early practice in many of the states, both before and after the adoption of their first constitutions, was to assess the damages by commissioners, instead of a jury, which would indicate that the preserva- tion of the right of trial by jury was to be confined to cases other than those of the condemnation of land.* Tho right to trial by jury is not claimed in equity cases, although rights of property are involved and issues of fact arise. Condemnation is not an action at law, but an inquisition on the part of the state for the ascertainment of a particular fact, and may be conducted without the intervention of a jury." Later constitutions and legislation secure to the owner the risht of assessment of his damages by a jury of twelve men, in a court of record.*' The constitutional pro- 239 § yi OP REMEDIES PROVIDED BY THE STATE. vision requiring a trial by jury repeals, to that extent, all former acts and charters allowing compensatioQ to be as- sessed in other ways, and the condemnation must be by jury.' The former acts and charters may be followed in other respects, but in regard to the requirement of a jury- trial the constitution executes itself, without additional leg- islation.* In order to have the preliminary assessment as inexpen- sive as possible, the first examination is made, in many states, by commissioners, from whose award there may be an appeal and a trial by jury.' This will satisfy the con- stitutional requirements of a trial by jury. If the owner does not appeal, he is presumed to have abandoned his right to trial by jury."^" The owner, in appealing for a trial by jury, should not be compelled to give a bond with sureties, as that would fetter the right to trial by jury.'^ On such an appeal, the preliminary proceedings need not be repeated. The object of such an appeal is to have, under proper instructions, a jury-trial of questions of public utility and damages. All irregularities are ordinarily waived by appeal,'^ including the irregularity that the owner was refused the right of trial by jury below. ^^ The right of trial by jury may be given below, with a trial by commissioners above, in the discretion of the court. ^* A provision for paying the amount of damages for land taken for a state house, determined by commissioners, is void, "when state constitution provides that all such amounts shall be determined by a jury. ^* 1 Great Falls Mfg. Co. v. Garland, Atty-General, 25 Fed. Rep. 521. ^ Lafayette Plank-Road v. Pickett, 25 Mo. 535; West River Bridge v. Dix, 6 How. 507, per Woodbury, J.; Raleigh R. R. v. Davis, 2 Dev. & B. 451 ; Evansville R. R. v. Miller, 30 Ind. 209 ; Ames v. Lake Superior R. R. 21 Minn. 241. Contra, Day?;. Stetson, 8 Me. 365; Isom v. Mississippi R. R., 36 Miss. 300; Central Branch U. P. R. R. v. Atchison R. R., 28 Kan. 453. ' Livingston v. Mayor of New York, 8 Wend. 85; The People v. Smith, 2\ N. Y. 595 (overruling Clark v. Utica, 18 Barb. 451) ; Beekman v. Sara- toga R. R., 3 Paige, 45- Scudder v. Trenton Falls Co., 1 N. J. Eq. 694; 240 or REMEDIES PKOVIDED BY THE STATE. § 92 "Whiteman's Executors v. Wilmington R. R., 3 Harr. 514; Houston R. R. V. MillDurn, U Texas, 224; Buffalo R. R. v. Ferris, 26 Texas, 588; Hymes V. Aydelott, 26 Ind. 431; Droaberger ». Reed, 11 Ind. 420; Lake Erie R. R. V. Heath, 9 Ind. 558; Norristown Turnpike v. Burket, 26 Ind. 53; Johnson v. Joliet R. R., 23 111. 202; Heyneman u. Blake, 19 Cal. 579; Willyard v. Hamilton, 7 Ohio, pt. 2, 111. * Van Home's Lessee v. Dorrance, 2 Ball. 304; Mount Washington Road, 35 N. H. 134; Backus v. Lebanon, UN. H. 19; Baker «. Holderness, 26 N. H. 110; Dalton v. Northamton, 19 N. H. 362; Gold v. Vermont •Central R. R., 19 Vt. 478; In r.e Paschall St., 81 Pa. 118; Norristown Turnpikes. Burket, 26 Ind. 53; New Orleans R. R. v. Drake, 60 Miss. 621; Montgomery Ry. v. Sayre, 72 Ala. 443. » Koppikus V. State Capital Commissioners, 16 Cal. 248; Tharp v. Witham, 65 Iowa, 566. 6 Mitchell-!), niinois R. R., 68 111. 286; Paul v. Detroit, 32 Mich. 108; Chicago R. R. v. Sanford, 23 Mich. 418; Whitehead v. Arkansas R. R., 28 Ark. 460; Const. Ark., art. V., § 48; New Const. Pa., art. XVI., part § 8: "And the amount of such damages in all cases of appeal shall, on the de- mand of either party, be determined by a jury, according to the course of the common law." Pusey's Appeal, 83 Pa. 67; Williams v. Pittsburgh, 83 Pa. 71. In re Towanda Bridge Co., 91 Pa. St. 216; ■ Weber v. County of Santa Clara, 59 Cal. 265. ' Kine'v. Defenbaugh, 64 111. 291; The People v. MoRoberts, 62 111. 38; Campau v. Detroit, 14 Mich. 276. » The People v. McRoberts, 62 111. 38. Contra, Lamb v. Lane, 4 Ohio St. 167. ' Hord V. Nashville R. R., 2 Swan, 497; Norristown Turnpike v. Burket, 36 Ind. 53; Sigafoos v. Talbot, 25 Iowa, 214. i" Steuart v. Mayor, 7 Md. 500; Reckner v. Warner, 22 Ohio St. 275; Lamb v. Lane, 4 Ohio St. 167. u Weir V. St. Paul R. R., 18 Minn. 155. 12 Kemp V. Smith, 7 Ind. 471. 18 Williamson v. Cass County, 84 111. 361. 1* Des Moines 1). Layman, 21 Iowa, 153. 15 Peoples, Stuart, 97 111. 123. § 92. Rules governing proceedings — Open and close — Change of venue — References — Due process of law. — In proceodings for the condemnation of land, the owners have the affiiinative of the issne as to the value of the land, and hence the right to open and close, without regard to which party initiated the proceedings ^ or prosecuted the aopeal.^ On appeal the owner is treated as plaintiff in Ne- braska'.' In New York, the commissioners decide which party shall have the open and close, and their decision is 16 241 § 92 OF REMEDIES PROVIDED BY THE STATE. final.* In South Carolina, the appellant has the open and close on appeal.^ In Georgia, the party originally moving- has the open and close on appeal.' In "West Virginia,' the party seeking the appropriation of the land has the affirma- tive of the issue and is entitled to open and conclude the argument to the jury on that question. A condemnation proceeding may be taken, by change of venue, to another county from that in which the land lies.* The party asking for the change thereby waives the right to a jury of view, for the reason that the court cannot send its jury into another county.^ An amicable reference is a bar to a further appraisement by commissioners.-''' The majority of arbitrators thus con- stituted may act.^^ An agreement to arbitrate the matter of damages is binding, and is not within the statute of frauds. ^^ The Supreme Court of Maine, pushing to its furthest limit the doctrine that the statutory remedy is ex- clusive, hold that the parties cannot submit the question of damages to referees and recover on their award, although there is a statute providing for the submission to arbitra- tion of matters in dispute. The bills of rights of many of the states contain a clause that private property shall not be taken " without due process of law."^' This means the judgment of the law j)ronounced upon trial, after the matter is judicially ascer- tained,^* and does not refer to a taking of private property for public use.^^ After a petition has been served the land-owner has a right to file answer to same, and the com- pany has no right to amend by making an alteration of a vital character. ^^ All the facts necessary to support a proceeding to condemn ought to appear of record." 1 Burtu. AVigglesworth, 117 Mass. 302; Minnesota K. R. v. Doran, 17 Minn. 188; Oregon R. R. v. Barlow, 3 Ore. 311; Omaha R. R. v. Um- stead, 17 Neb. 459; Omaha R. R. v. Walker, 17 Neb. 432; Springfield Ry. v.'R&ea., 44 Ark. 258; McReynolds v. Burlington Ry., 106 111. 152; Indiana Ey. u. Cook, 102 Ind. 133. It is not such error as to warrant reversal that the court below allowed the corporation to open and close the evidence and argument to the jury. Neff v. Cincinnati, 32 Ohio, 215- 242 OF REMEDIES PROVIDED BY THE STATE. § 93 ' Winnisimmet Co. «. Grueby, 111 Mass. 543; Connecticut River E. E. ■». Clapp, 1 Casli. 559; Omalia R. R. „. Umstead, 17 Neb. 459; In- diana Ey. V. Cook. 102 Ind. 133. " Omaha R. E. v. Umstead, 17 Neb. 459. * Albany E. E. v. Lansing, 16 Barb. 68. ^ Charleston E. E. v. Blake, 12 Rich. L. 634. ^ Harrisons. Young, 9 Ga. 359. ' Baltimore R. R. d.P. W. & K. R. R., 17 W. Va. 812. » Simmons v. St. PaulR. R., 18 Minn. 184; California Southern R. E. 0. Southern Pacific E. E., 65 Cal. 394; s. c, 65 Cal. 409; Missouri Pac. Ey. V. Carter, 85 Mo 448. 9 Eockford E. E. v. Coppinger, 66 111. 510. i" Tunbridge u. Tarbell, 19 Vt. 453. " Piper V. Connersville Turnpike, 12 Ind. 400. 1' La Crosse E. E. v. Seeger, 4 Wis. 268. " Eastman ». Stowe, 37 Me. 86. " Heyward v. Mayor of New York, 7 N. Y. 314. 15 Jordan v. Hyatt, 3 Barb. 275. ^ Application of New York Ry. Co., 89 N. Y. 453. " Turner v. Village of Stanton, 42 Mich. 506. ^ 93. Effect of subsequent legislation on proceed- ings — Reversal of proceedings. — The legislature cannot pass an act, with a retroactive effect, providing for the assessment, in a particular way, of damages which have already been suffered. Damages inflicted without legisla- tive sanction could not be for public use, and a subse- quent declaration that they were such could not make them so.-' Proceedings that are pending, instituted under proper authority, may be vacated by subsequent legislation. A new inquisition may be ordered by the sovereign before the first one is concluded. There is nothing in the nature of a contract between the owner and the state, by which the owner has a vested right in the amount awarded, so that a subsequent examination, provided for by subsequent legis- lation, shall operate as an impairment of the obligation of a contract,^ even though no appeal were allowed from the award.'"' The repeal of a law operates to render all pro- ceedings void from beginning. It is as if no such law had ever been passed.* A subsequent act may provide for a construction to be placed upon a former act, and that the damages shall be thus determined.^ The remedy may be 243 § 93 OF REMEDIES PROVIDED BY THE STATE. changed to affect pending pi'oceedings, and strike out the allowance of benefits as a set-off to damages. * When the re- port of damages had been confirmed, and the delay was only in paying the damages assessed, the, subsequent act could not affect the proceedings,' or operate to turn the claimant over to another municipal subdivision for his damages.^ The reversal of proceedings on appeal does not constitute the party entering under authority of the judgment below a trespasser.' The law-making power may not only amend the present remedy, but may even substitute a new one, provided there be no interference with the company's fran- chise or the citizen's right. The corporation cannot claim that a change in the remedy violates the contract of its charter. The form of the remedy is within the legislative power, and this power cannot be restrained by contract, although the new remedy be less convenient, or less prompt and speedy, than the old. The addition of the right of appeal to the remedy of the owner, where formerly no such right existed, is only an enlarging of the remedy, and not an impairment of the rights of the company.'" Where the defense is of a character which may be made at law in the condemnation proceedings, there is no reason for ordering a stay of those proceedings in the court in which it may be interposed. 1 Matter of Townsend, 39 N. Y. 171, Miller, J., dissenting. 2 Baltimore R. R. v. Nesbit, 10 How. 395; Hampton v. The Common- wealth, 19 Pa. 329. 3 Garrison v. New York, 21 Wall. 196. * Hampton v. The Commonwealth, 19 Pa. 329; The Commonwealth v. Beatty, 1 Watts, 382. 5 Yost's Report, 17 Pa. 524; Fenelon's Petition, 7 Pa. 173. « Springfield R. R. v. Hall, G7 111. 99. ' The People v. Supervisors, 4 Barb. 64. 8 Daley «. St. Paul, 7 Minn. 390. ^ Dussuau V. Municipality, 6 La. An. 575. 1° Appeal of Long, 87 Pa. St. 114; Spaulding v. Arlington, 126 Mass. 492. « Lake Shore Ry. Co. v. Chicago R. R. Co., 96 111 125. 244 OF NOTICE OF PROCEEDINGS. § 94 CHAPTBE XL OF NOTICE or PROCEEDINGS. § 94. Notice not absolutely necessary. 95. Notice generally required, to give jurisdiction. 96. Necessity of notice inferred from provisions of the statute. 97. Appearance — Waiver of notice. 98. Notice by publication and by posting. 99. Reasonable notice. 100. What the notice should contain. 101. Return of service of notices. 102. New notice of new proceedings. 103. Notice to known owners. 104. Notice to unknown owners. § 94. Notice not absolutely necessary. — It is the rule generally recognized by all civil governments, to give notice, to the owner, of proceedings which affect the title of property. If the law does not require notice to be given, it has been considered not essential to give notice to the owner. ^ The exigency may be such that the notice must be dispensed with.^ The condemnation proceedings, being in the nature of proceedings in rem, the judgment is conclusive against every party interested, whether notified or not. The seizure is constructive notice. The court obtains jurisdiction over the land seized.^ The owner is made a party only for the purpose of giving him an oppor- tunity to assert his claim for damages ; and if he neg- lects to assert such claim when the opportunity to assert it is given him, the opportunity may be made without any regard to the question of damages.* The court in con- demnation proceedings has jurisdiction of the subject-mat- ter and parties ; its judgment is conclusive unless reversed in some appellate proceeding.^ Public convenience would not allow proceedings to be set aside for want of notice to individuals.® The notice may be given to the party in possession, though he may not be the true owner. It is 245 § 95 OF NOTICE OF PROCEEDINGS. not necessary in these ijroceedings to enter into the contest of the title to the fund.' Commissioners to assess damages may be appointed without notice to the owner.* The gen- eral sense of equity and justice requires that notice should be given,' and if notice is not required In the statute, all other proceedings will be required to be in the strictest conformity to the statute, or they will be set aside.'" When a statute authorizes a legal proceeding against any one, and does not expressly provide for notice to be given, it is implied that an opportunity shall be afforded him to appear in defense of his rights, unless the contrary appears clearly." 1 Harper v. Lexington R. R., 2 Dana, 227; Kramer ?;. Cleveland R. R., 5 Ohio St. 140. 2 George's Creek Co. v. Coal Co., 40 Md. 425. 3 Wilson V. Hathaway, 42 Iowa, 173; Cupp v. Commissioners, 19 Ohio St. 173; Stewart v. Board of Police, 25 Miss. 479. » Costello V. Burke, 63 Iowa, 361. '' Baltimore R. R. Co. u. P. W. & K. R. R. Co., 17 W. Va. 812. s Stewart ?;. Board ot Police, 25 Miss. 479 ; New Orleans R. R. a. Hemp- hill, 35 Miss. 17. ' Pitzer u. Williams, 2 Rob. (Va.) 241. 8 Weir V. St. Paul R. R., 18 Minn. 155. ' Booneville v. Ormrod's Admr., 26 Mo. 193. M Hood V. Pinch, 8 Wis. 381. " Baltimore R. R. v. P. W. & K. R. R., 17 W. Va. 812. § 95. Notice generally required, to give jurisdiction. — Notice to the adverse party is generally required, to obtain jurisdiction,' and the failure to give such notice will not be considered waived except by litigation on the merits.^ Jur- isdiction will be presumed if the record shows that the court decided that sufficient notice had been given.* The legis- lature cannot take private property for public use without just compensation. The owner of the property mu>!t have reasonable notice of the proceeding to fix such compensa- tion and an opportunity to be heard upon the question. The fourteenth amendment, which provides that property shall not be taken without due process of law, includes at least legal notice of the proceedings and a prescribed opportun- 246 OF NOTICE OF PKOCEEDINGS. § 95 ity to be heard upon the question involved therein.* Want of notice of meeting of commissioners goes not to the jurisdiction of the person of the land-owner, but to the authority of the commissioners to act. This notice has respect to the compensation of the land-owner, and the ob- ject of it is give him an opportunity to be heard on that question. If the award is void for want of notice to plaint- iflF of the time and place of their meeting to assess damages the owner is not required to set it aside, but may attack it collaterally in any action in which rights are claimed under it.® Generally no one can take advantage of want of notice except the party himself.* The owner is entitled to a hearing in court on the question of compensation, not upon the question of appropriation for public use.' Where a non-resident receives actual notice and appears he can- not assail the proceedings on the ground that the man- ner of giving notice is unconstitutional.^ If an opportunity is given the land-owners under such an act to appear and te heard, the legislature may determine the form, time, and manner of notice to be given.' The notice should clearly indicate to all parties interested what the application is and what proceedings are intended. The owner cannot be bound by the notice unless it notify him of an authorized application, to be followed by appropriate proceedings, provided by statute for such a case. If there be any de- grees in the importance of the requirements, that of notice of the intended proceedings would be chief .i" The return of an officer may be disproved, so as to show that notice had not been given as returned by the officer. ^^ Where jurisdiction has once attached, the failure to give notices required in subsequent stages of proceedings will not inval- idate the subsequent proceedings.^^ The proceedings would be valid to those who had received notice, although invalid as to those who had not.^** Notices must be given by the proper party ; and a city council, when directed to give notice of meetings for condemnation purposes, cannot 247 § 96 OP NOTICE OF PEOCEEDINGS. devolve that duty on their clerk." Proceedings continued without the notice above required are illegal,^^ and on certiorari will be quashed.^® 1 Cruger 11. Hudson River E. K., 12 N. Y. 190; The State v. Orange, 32 N. J. L. 49; The People v. Supervisors of Allegany Co., 36 How. Pr. 5H; Peabody ». Sweet, 3 Ind. 514; Peoria R. R. v. Warner, 61 111. 62; The State v. Anderson, 39 Iowa, 274; Robinson v. Mathwick, 5 Neb. 252 ; Commissioner's Court ■». Bowie, 34 Ala. 461; Molett u. Keenan, 22 Ala .. 484; Stanford u. Worn, 27 Cal. 171; Baltimore v. Grand Lodge, 44 Md. 436; Rheinerc. Union Depot Co., 31 Minn. 289; Harlow «. Pike, 3 Me. 438; Great "Falls Manufacturing Co. v. Garland, Attorney-General, 25 Fed. Rep. 521. 2 The State v. Orange, 32 N. J. L. 49; Cruger v. Hudson River R. R., 12 N. Y. 190. ' The State v. Anderson, 39 Iowa, 274; The State v. Prine, 25 Iowa, 231. * Burns v. Multnomah R. Co., 15 Ped. Rep. 177; s. c. 8 Sawy. 543. * Kanne v. Minneapolis Ry., 33 Minn. 419 " Plumer v. Warsau Boom Co., 49 Wis. 449. ' Zimmerman ?). Canfleld, 42 Ohio St. 463. « Cage «. Trager, 60 Miss. 563. 9 Application of Village of Middletown, 82 N. Y. 196. M Leavitt v. Eastman,. 77 Me. 117. u Adams v. Saratoga R. R., 10 N. Y. 328; Taber v. Ferguson, — Ind. — , 1887. 12 Commissioners of Leavenworth «. Espen, 12 Kan. 531. 13 The State v. Easton R. R., 36 N. J. L. 181; Kidder ». Jennlson, 21 Vt. 108; Connable v. Chicago Ry., 60 Iowa, 27, Minneapolis Ey. 13. Kanne, 32 Minn. 174 ; Bixby v. Goss, 54 Mich. 551. 15 The State v. Jersey City, 25 N. J. L. 309. 15 Case 1;. Thompson, 6 Wend. 634; Caseu. Meyers, 6 Dana, 330; Wood V. Commissioners, 62 111. 391; Seifert v. Brooks, 34 Wis. 443; Anderson V. Tubeville, 6 Coldw. 150; The People v. Kniskern, 54 N. Y. 52; Skinner V. Lake View Avenue Co., 57 111'. 151; Ware v. County Commissioners, 38 Me. 492; The People v. Supervisors of Allegany Co., 36 How. Pr. 544; Stone v. Boston, 2 Mete. 220. 1^ Atlantic R. R. v. Commissioners, 51 Me. 36; Joliet R. R. v. Barrows, 24 111. 562. § 96. IS'ecessity of notice inferred from provisions of the statute. — Where, the statute gives the right of an appeal, the legislature must have contemplated that notice should be given to the party whose land was to be taken ; otherwise, he could not be benefited, because he might not know of the proceedings until after the time of appeal had 248 OF \NOTICE OF PROCEEDINGS. § 97 elapsed.^ An act requiring an effort to agree on compen- sation clearly indicates that the legislature required notice to be given. ^ A statute requiring viewers to hear evidence implies a notice to parties, so that they may produce evi- dence and contest the finding before the court. ^ 1 Dickey ■». TennisoQ, 27 Mo. 373. ^ Booneville «. Ormrod's Admr., 26 Mo. 193; Peoria K. E. v. Warner, 61 111. 52. ' Skinner v. Lake View Avenue Co., 57 111. 151. § 97. Appearance — "Waiver of notice. — Notice is pro- vided for the purpose of giving opportunity for appearance and contest. The general rule is that the appearance of a party waives the failure to formally notify him,^ especially if he litigates without entering objection to the sufficiency of the notices.^ But where a land-owner casually meets the commissioners on his land, such meeting is not a waiver of notice,* The litigation should probably be on the merits. Appearances in answer to a subpcena to appear as a wit- ness,* or an appearance and an objection to a juror ,° have been held not to constitute a waiver of notice. That doc- trine is rather strict, and is supported by those cases which hold that notice must be given in order to acquire jurisdiction, and that, if this notice is not given, the party would not be estopped by his presence at the proceedings and entering other objections.^ It certainly is better rea- soning to hold that jurisdiction of the party may be obtained by his appearance and entering other objections.^ It might as well be said that an appearance voluntarily entered by attorney would not be binding because the statute provided for service of notice. Objections to notices should be taken at the earliest possible moment, or such objections will be considered waived.® They cannot be made for the first time on appeal.^ A long acquiescence will prevent a quash- ino- of the proceedings, although one of the parties was non compos mentis, and had no guardian." An appearance at an adjourned hearing Cures any irregularity in the first ad- journment." The prosecution of an appeal is a waiver of 249 § 98 OF NOTICE OF PKOCEEDINGS. notice.^^ By filing appeal from the award of commissioners the owner thereby enters appearance to that proceeding and cannot thereafter question the jurisdiction of such commissioners. Such an appeal waives all question as to sufficiency of notice. ^^ 1 Boston E. E. «, Folsom, 46 N. H. 64 ; Copeland v. Packard, 16 Pick. :217; Muire v. Falconer, 10 Gratt. 12; East Saginaw E. E. u. Benliam, 28 Mich. 459; The People i). Burton, 65 N. Y. 452; Long Island E. E. v. Ben- nett, 17 N. Y. Sup. Ct. 91. " Parish v. Gilmanton, 11 N. H. 293; Barre Turnpike Co. v. Appleton, 2 Pick. 430; The Commonwealths. Westborough, 3 Mass. 406; Tingleys. Providence, 9 E. 1.388; Windsors. Field, 1 Conn. 279; Polly b. Saratoga U. E., 9 Barb. 449; Pitzer «. Williams, 2 Eob. (Va.) 241. ' Minneapolis Ey. Co. v. Kanne, 82 Minn. 174. * The People 1). Osborn, 20 Wend. 186. 5 Cruger v. Hudson Eiver E. E., 12 N. Y. 190. 6 Eoehrbornc. Schmidt, 16 Wis. 519; the State v. Langer, 29 Wis. 68. ' Milhollin v. Thomas, 7 Ind. 165. 8 Peavey v. Wolfborough, 37 IS. H. 286. ' Smith V. Alexander, 24 Ind. 454. 1" Hancock v. Boston, 1 Mete. 122. u Anderson v. Wood, 80 111. 15. 12 Canty t!. Latterner, 31 Minn. 239. 13 Atchison E. E. Co. v. Patch, 28 Kan. 470. § 98 . Notice by publication and by posting. — The mode of giving notice is under the control of the legislature, and notice need not be personal, but may be by advertisement, even to resident owners.^ An act authorizing condemna- tion should provide for actual or constructive notice to the property holder, and afford him an opportunity to present his claim for compensation and prohibit the taking posses- sion or appropriation of his land by the public until his claim has been adjudicated by an impartial tribunal and the amount found due him been paid or tendered.^ Where actual service cannot be had, constructive service, if authorized by law, will be regarded as " due process of law." ' A notice is effective only from the date of its publication.* The com- mon law notice by personal service cannot be given to non- residents or unknown owners. Hence the only notice possible is the constructive notice which may be given by 250 OF NOTICE OF PROCEEDINGS. § 98 advertisement in newspapers,'' by posting,^ or by mail ;' and as constructive notice is a creature of statute, tiiat notice may also be dispensed with.* Tiie statute may require serv- ice of personal notice on owners in actual occupancy ; and if not in actual occupancy, by publication.^ In Wisconsin,^" the owner of the land proposed to be taken, when known and liv- ing within the city, should have personal notice of the time and place of the appointment of the jury, and when they will meet to view the premises, in order that he may object to the -selection of any unfit pei'sonon the jury, and have a full op- portunity to be heard before them on the question of neces- sity. The failure of a city charter to provide for such notice "to resident owners renders the proceedings void. Notice by advertisement may properly be given to non-resident own- -ers, but not to resident owners, or those having tenants or resident agents. Where the statute requires service of notice personally on an agent of owner residing in the state or on the non-resident owner of land personally, wherever lie maybe, or by publication in a newspaper for six weeks, and by sending to the land-owner by mail, if known and non-resident, if his residence is known, a copy of the petition and notice of hearing, thirty days before the time -of presentation, the record should show that there was no resident agent ; and a service by mail on a non-resident owner would not be sufficient if the record was silent as to the existence or non-existence of a resident agent." Notice by advertisement should be directed to the person by name, when known. If not known, he may be described as un- known. ^^ The posting of notices in public places is a proper means of bringing home notice to the owners of prop- erty. This notice must be given strictly according to the statutory requirement, or else the proceedings 'will be void as to non-residents.'^ If the statute does not require the proof of the posting to be in writing, the record declaring that such notice has been given is presumptive evidence of its having been properly done.'* Parol evidence of proper 251 § 99 OF NOTICE OF PEOCEEDINGS. posting is also admissible, and it will be presumed that due proof was made before the board of commissioners.^* In Michigan, the statute required notice by posting on the- door of the house where township meetings were usually- held, and if there was no usual place, in one of the most public places in the township. Township meetings were held alternately in two places. There was no usual place. The notice was posted on the inner d-oor of a tavern, being one of the most public places in the township. This no- tice was held to be suiEcient.^' 1 Owners v. Mayor of Albany, 15 Wend. 374; Polly v. Saratoga R. R.,9' Barb. 449; Wilkin ». St. Paul E. R., 16 Minn. 271; CuppiJ. Commissioners,. 19 Ohio St. 173. 2 Cage V. Trager, 60 Miss. 563. 3 Baltimore R. E. v. P. W. & K.E. E., 17 W. Va., 812. * Riche ■«. Bar Harbor Water Co., 75 Me. 91. 5 Secombe v. Milwaukee E. R., 2 Dill. 469 ; Wilson v. Hathaway, 42; Iowa, 173. 6 Hildreth v. Lowell, 11 Gra'y, 345; Taylor u. Hampden, 18 Pick. 309. ' Crane v. Camp, 12 Conn. 464. ' Johnson v. Joliet E. R., 23 111. 202; Cowan v. Glover, 3 A. K. Marsh» 357. 9 Hunt V. Smith, 9 Kan. 137. 1" State V. Fond du Lac, 42 Wis. 287. " Morgans. Chicago R. R., 36 Mich. 428. 12 Chicago R. R. v. Smith, 78 111. 96. " Curran v. Shattuck, 24 Cal. 427. " McCoUister v. Shuey, 24 Iowa, 362 ; The State u. Prine, 25 Iowa, 231- ^ Woolsey v. Hamilton County, 32 Iowa, 130. i« The People v. La Grange, 2 Mich. 187. § 99. Reasonable notice. — Reasonable notice depends to a certain extent on the residence of the owner. When they live in the same town, seven days' notice has been held sufficient.^ Reasonable notice may be by advertisement published in, the county paper,^ or may be sent by mail to non-residents.^ When no time of notice is given, it is suffi- cient that it be served before the return-day. If notice is served before the return-day, it devolves upon the owner to show the insufficiency of the notice.* Where the owner- lived within eighty rods of land, and received notice the 252 OF NOTICE OF PROCEEDINGS. § 100 <3ay previous to the hearing, and requested no delay, but contested the condemnation on other grounds, he could not except as to sufficiency of notice.* Notice ordinarily means notice in writing.® * Trustees v. SalmoDd, 11 Me. 109. * Freetown v. Bristol, 9 Pick. 46. ' Crane D.'Camp, 12 Conn. 464. ^ Muire v. Falconer, 10 Gratt. 12. '■ Williams v. Hartford R. R, 13 Conn. 397. « Gilbert ■». Turnpike Co., 3 Johns. Cas. 107; Vailr. Morris R. K., 21 N J. L. 189. § 100. What the notice should contain. — The notices given should follow strictly the requirements of the statute, or they will be unavailing. The notice should inform the owners how they are to be afFectod, and hence should con- tain a description of the land.^ The day on which the hear- ing is to be had must be specified in the notice, and a motion to hear the application cannot, without the consent of the land-owners, be made upon another day; if not made on the day specified in the notice, another notice will have to be given .^ The notices posted need not be signed by any one.^ A statute requiring notice of the time and place where commissioners would meet " to decide upon applica- tion " for a road is not satisfied by a notice of a meeting of commissioners "to take into consideration the applica- tion" for a road. It would not follow that the commis- sioners would decide at that meeting.* A statute required an advertisement to non-residents, and that such advertise- ment should recite the substance of the petition. Under such statute it would not be necessary to set out the entire petition. It would be sufficient to give notice that an ap- plication would be made to the court on a certain day to appoint commissioners to view and assess damages which the owner might sustain in consequence of the establish- ment, erection, and maintenance of the railroad over the land of the owner, which was particularly described.^ A notice will not be vitiated because it erroneously stated that 2f)3 § 101 OF NOTICE OF PROCEEDINGS. some of the improved lands were unimproved.^ Nor is it necessary when a statute requires a notice from the owner, on beginning an action, that such notice should state that damages will be claimed.' A statute requiring notice of the time when application will be mude for the " appointment of commissioners" is satisfied by notice for the establish- ment of a road.^ If the statute requires the publication of the application, and this is omitted, the notice is not suffi- cient to give jurisdiction.* 1 The State v. Elizabeth, 32 N. J. L. 357. 2 Adams v. Clarksburg, 23 W. Va. 203. 3 Wright V. Weljs, 29 Ind. 354. * Babb V. Carver, 7 WU. 124; Austin u. Allen, 6 Wis. 134. 5 Quincy R. R. v. Taylor, 43 Mo. 35. 6 Snyder v. Trumpbour, 38 N. Y. 355. ' Gulf Ry. V. Donahoo, 59 Texas, 128. ^ Woolsey«. Hamilton County, 32 Iowa, 130. 9 Harbeck v. Toledo, 11 Ohio St. 219. § 101 . Return of service of notices. — The court passes on the correctness and validity of notices ;^ and the court can judge from the returns on the notices, better than from the testimony or affidavit of witnesses, that the notices were served according to law, or were waived by the par- ties.^ Where service is defective or illegal there is no juris- diction.^ The record or report of commissioners or view- ers should contain the returns of service of notices.* It is not sufficient to allege service, but there should be a return showing on whom notices were served, and how'. The serv- ice of notice is necessary in order to obtain jurisdiction, and proceedings will be quashed when it is not thus shown thatjurisdiction has attached.* It would make no differ- ence that one of the commissioners had personal knowledge that the notices were properly given. Such oral state- ments do not preclude the right of third persons to have proceedings regular.* If the statute does not require no- tices to be preserved, it is sufficient for commissioners to recite that notices were given, and not how they were given.' If the statute does not require a return of the serv- 254 OP NOTICE OF PROCEEDINGS. §§ 102, 103 ice of notices, any other proof of service is admissible.* In Nebraska, it is required that proof of posting the no- tices should be made by affidavits of the party posting the same, stating when, where, and by whom the notices were posted.' 1 The state v. Slireeve, 15 N. J. L. 57; Hoagland v. Culvert, 20 N. J. L. 387. 2 Mobley v. Breed, 48 Ga. 44 ; Dupont v. Highway Commissioners, 28 Mich. 362. = Dunlap V. Toledo Ry., 46 Mich. 190. ^ Lancaster «. Pope, 1 Mass. 86; Van Wlckle v. Camden E. R., 14 N. J. L. 162; Skinner «. Lake View Avenue Co., 57 111. 151; Jones v, Barclay, 2 J. J. Marsh. 73; Purdy«. Martin, 31 Mich. 465;. The People v. Commis- sioners of Nankin, 14 Mich. 528. 5 The People «. Commissioners of Nankin, 14 Mich. 528; Dupont v., Highway Commissioners, 2S Mich. 362; Van Auken u. Commissioners, 27 'Mich. 414; The State v. Otoe County, 6 Neb. 129; DoodyB. Vaughan, 7 Neb. 28. « Dupont «. Highway Commissioners, 28 Mich. 362. ' Shinkle v. Magill, 58 111. 422; Kissinger -». Hanselman, 33Ind. 80; Commissioners' Court v. Bovpie, 34 Ala. 461 ; Wright «. Wells, 29 Ind. 354. 8 Parish v. Gilmanton, 11 N. H. 293. - ' The State v. Otoe County, 6 Neb. 129; Doody v. Vaughan, 7 Neb. 28. § 102. New notice of new proceedings. — Proceedings which have been vacated or abandoned, for any reason, can- not be revived without new notice, — as, where notice had been given and a hearing had heen had, but before formal verdict one of the jurymen died. In such case there should be a new notice of any subsequent proceeding ; and if the court, without such notice, admits new jurors, who hear additional testimony, the proceedings will be utterly void. ^ In case of a rehearing or a reassessment, there should also be additional notice.^ 1 Anderson v. St. Louis, 47 Mo. 479. 2 The People v. Tallman, 36 Barb. 222. § 103. Notice to known owners. — Notice must ordina- rily be given to owners of every interest in the land, or the condemnation will, as to those omitted, be invalid.* The notices should be given to the owners specifically. The person occupying the land may be known by going on the 255 § 104 OF NOTICE OF PROCEEDINGS. land and making inquiry. Tiie owners may be found by going to the records and tracing the title. If the last record owner is dead, his heirs may be properly described as un^- known, but notices may not be given to all owners by pub- lication, when the owners and occupiers may be known. ^ Those who are so injuriously affected by a proposed im- provement as to entitle them to damages are also entitled to notice.^ Notice should be given to heirs and widow, when known.* Notice to tenants in common 'should bo given to both, in order to affect the interests of both, al- though the parties are husband and wife.^ Notice either to the mortagor or mortgagee is sufficient, especially if the mortgagee is in possession.^ The mortgagee in possession should certainly receive notice.'^ It has sometimes been doubted whether the mortgagee, not in possession, is en- titled to. notice.* The better doctrine is that a mortgagee whose mortgage is recorded is entitled to notice, although not in possession. The condemning party must see that the mortgagee is somehow paid or satisfied for the laud taken, so far as covered by the mortgage. Without notice, a mortgagee might lose his entire security, by proceedings carried on without his kuowledge or consent.' , 1 The State v. Eeed, 38 N. H. 59 ; Detroit R. B. v. City of Detroit, 49 Mich. 47; Moses v. St. Louis Sectional Doclj Co., 84 Mo. 242. 2 Cliicago R. E. v. Smith, 78 111. 96; Sharp v. Johnson, 4 Hill, 92. 3 Norton v. Wallkill Valley E. E., 63 Barb. 77. * New Orleans E. E. v. Frederic, 46 Miss. 1. 5 Whitcher v. Benton, 48 N. H. 157. " Cool ■». Crommet, 13 Me. 250. The mortgagee should receive notice or he may afterward foreclose his mortgage on the land taken. Warwick Institute?!. City of Providence, 12 E. I. 144. ' Parker, petitioner, 36 N. H. 84. ' Parish v. Gilmanton, 11 N. H. 293. See ante, § 74. 9 Wilson V. European E. E., 66 Me. 358. § 104. Kotlce to unknown owners. — When the owners of property are unknown, the service must be on the appar- ent owners, and, iu addition, advertising or posting to notify unknown owners.^ Where the statute provides that the party seeking condemnation of land the shall "nameeach 256 OF, NOTICE OF PROCEEDINGS. § 104 person whose land is to be taken or affected," it is not enough to use the expression, " all other persons having any interest in or owning any of the following real estate."^ Notice should be given to parties appearing by the records to be owners of lands. Owners by unrecorded convey- ances, or by contracts for title, or by subsequent purchase, cannot complain of want of notice.' Deeds should be recorded and contracts perfected. There should be evi- dence of ordinary diligence in endeavoring to ascertain ownership, before proceedings as against unknown owners will be allowed ; and the court may refuse to proceed until such diligence is shown.* 1 Healey v. Newton, 119 Mass. 480. 2 Bridget. Chicago Ey. Co., 65 Iowa, 440. 8 Wilson u. Hathaway, 42 Iowa, 173; Pickford v. Lynn, 98 Mass. 491. * Harbeck v. Toledo, 11 Ohio St. 219. 17 257 § 105 OF COMPENSATION AND CONTRACTS. CHAPTER XII. OF THE NECESSITY OE EFEOKTS TO AGREE ON COMPENSA- TION, AND OF CONTRACTS BETWEEN THE PARTIES. § 105. Property should be purchased. 106. Tender of amount of damages. 107. The effort to agree should appear aflBrmatively on the record. 108. Election not to agree — Inability to agree. 109. Waiver of argreement. 110. Contracts for rights of way. 111. Relinquishment of damages — Licenses to owners — Licensea granted by owner. 112. Reservations to owner — Easements not to be granted in lieu of damages, against the will of owner. 113. How contracts are to be enforced — Damages for breaches of contract. 114. Construction of contracts. § 105. Property should be purchased. — There is a re- luctance on the part of the courts to the exercise of emi- nent domain, when the same end may be accomplished by agreement of the parties. The remedy is harsh in it.s nature, liable to gross perversion, and one which, in prac- tice as in theory, encroaches upon the rights of the indi- vidual. In this country, as in England, it has always been the object of suspicion and distrust. When, therefore, the action of the government in taking private property can be attributed to a contract, instead of an exercise of eminent domain, it will be so treated.^ The legislatures generally show the same spirit in requiring an agreement to be made w ith the owner, if possible, and that condemnation shall not be resorted to if an an;reement can be made.^ The owner, also, when he initiates proceedings, may properly be called upon to show an effort to agree, and to name some sum which he will take for his damages.^ Provisions of this nature have been considered optional with either party ifl_ Tennessee* and Illinois. ' 258 OF COMPENSATION AND CONTEACTS. §§ 106, 107 1 Bogert V. United States, 2 Ct. of CI. 159. 2 Oregon E. R. v. Oregon Nav. Co., 3 Ore. 178; Gilmer v. Lime Point, 19 Cal. 47; Terre Haute E. E. o. Scott, 7i Ind. 29. 3 Lincoln v. Colusa County, 28 Cal. 662. * Bigelow V. Mississippi E. E., 2 Head, 624. 5 Hall V. The People, 57 111. 307. § 106. Tender of amount of damages. — An agreement to sell, and a tender of the amount by the condemning party, do not operate as a transfer of the property so as to justify an entry. If the owner refuses to sell, there is a remedy at law for breach of contract, or in equity by spe- cific performance, but an entry cannot be justified.^ In Maine, there is a statute providing for the ascertainment of an amount considered reasonable, and for the tender of the same. It provides for the appraisement of the land and a tender of the damages. A tender made after an entry would be no justification for an action of trespass for the entry. ^ The English Lands Clauses Consolidation Act pro- vides that the company shall make an offer of a certain sum as compensation and if the owner refuses to accept the amount, and the same or a less sum is awarded to him, the costs will fall upon him. Having made the offer, the claimant will not even be entitled to the costs of a man- damus proceeding to compel the company to summon a jury, when the verdict of the jury is shown to be for a less sum than the offer. ^ 1 Whitman v. Boston R. E., 3 Allen, 133. 2 Storerv. Hobbs, 52 Me. 144. ' Eegina v. Waterford Eail. Co., 13 I. L. E. 272. § 107. The effort to agree should appear on the record. — The record of the preliminary proceedings should affirmatively show a failure to agree.' The refusal of the owner is a jurisdictional fact, and is not to be eked out by extraneous evidence.^ The allegation in the record makes a prima facie case.^ There should properly be an allega- tion of the attempt to agree in the petition or complaint.* An allegation in the words of the statute, that the parties could not agree upon the proper compensation, is a sufficient 259 § 107 OF COMPENSATION AND CONTRACTS. allegation to put the adverse party to his defense on the merits.^ A statement in the petition, that the condemning party could not obtain ijermission of the owner of a quarry to take materials from the quarry, although such taking would do very little or no injury to the owner's property, is not a sufficient compliance with a statute authorizing a seizure of materials " when no private bargain could be made on fair terms." Such a petition does not show that any compensation was ever offered. The owner might have made a bargain if a fair remuneration had been offered him. Asking permission to use materials could not be considered as an attempt to make a bargain, without any offer of com- pensation.® If the allegation of failure to agree is made in the petition, the owner cannot except, on appeal, on the ground that there was no effort to purchase, not having raised the point below.' The burden of proving the failure to agree devolves upon the party claiming title under the exercise of eminent domain.^ The evident intent of the legislature was that the owner should have the right and opportunity to dispose of his property for a just and fair compensation before proceedings should be instituted to deprive him of it against his will,'^ and also that the public may know the amount at which the owner will settle for his damages.^" The reasons for the inability of the parties to agree must be stated in the petition, and if the reasons be not stated, the court acquires no jurisdiction and the pro- ceedings fail." A law which does not require attempt and failure to agree to be shown is not unconstitutional .^^ An al- legation that petitioner has not been able to acquire a right of way over defendant's land is equivalent to an allegation that the parties have been unable to agree. '^ Presence of owner at time of hearing and refusal or failure to treat is enough to constitute failure to agree. ^* Under a statute authorizing proceedings when the parties fail to agree, an effort to agree is all that is necessary. ^"^ 1 Miller ■y. Brown, 56 N. Y. 383; Vail b. Morris R. R, 21 N. J. L. 189; O'Hara v. Pennsylvauia R. R , 35 Pa. 445; Cuuningham v. Pacific R. E., 260 OF COMPENSATION AND CONTRACTS. § 108 61 Mo. 33; Gilbert v. Turnpike Co., 3 Jolins. Cas. 107; Eeitenbaugh v. Cliester E. R., 21 Pa. 100; Morseman «. Ionia, 32 Micli. 283; Arnolds. Decatur, 29 Micli. 77; Graf v. City of St. Louis, 8 Mo. App. 562; In re Boston Ey., 79 N. Y. 69 ; Oregon Ey. & Nav. Co. v. Oregon E. E. Co., 10 Ore. 444; State v. Plainfield, 41 N. J. L. 138. 2 Ells V. Pacific R. R. 61 Mo. 200; Jamison v. Springfield, 53 Mo. 224; Kansas City R. R. ■!;. Campbell, 62 Mo. 585; Rogers v. St. Charles, 3 Mo. App. 41; Moses v. St. Louis Sectional Dock Co., 84 Mo. 242; State v. Plainfield, 41 N.J. L. 138; In re Boston Ey., 79 N. Y. 69; Lane «. City of Saginaw, 53 Mich. 442; Omaha E. R. v. Gerrard, 17 Neb. 587. ' Dyckman v. Mayor of New York, 5 N. Y. 434. * Lincoln v. Colusa County, 28 Cal. 662. Petition alleged that the com- pany " has not been able to acquit e the title to said several tracts, etc., from the persons interested therein, by voluntary grant or otherwise." The petition does aver that the title to the land could not be obtained by purchase, and is suflacient in that respect. Chicago R. R. v. Chamber- laln,-84Ill. 333. s Hannibal R. R. v. Muder, 49 Mo. 165. ' Lind V. Clemens, 44 Mo. 540. ' United States v. Reed, 56 Mo. 565; Dyckman v. Mayor of New York, 5N. Y. 434. 8 Dyckman v. Mayor of New York, 5 N. Y. 434. ' Leslie v. St. Louis, 47 Mo. 474. 1" Lincoln v. Colusa County, 28 Cal. 662. 11 Matter of Marsh, 71 N. Y. 315. " Eirst St., matter of, 58 Mich. 641. 1' Booker v. Venice Ry. Co., 101 111. 333. " State V. Plainfield, 41 N. J. L. 138. 15 Village of Middletown, application of, 82 N. Y. 196. § 108. Election not to agree — Inability to agree. — If the owner names an exorbitant sum, or refuses to give any terms, it is proper to hold that the parties are unable to agree. ^ The requirement that an agreement should be made is for the benefit of the owner. If he signifies that he will not or cannot agree, by demanding a jury for the as- sessment of damages, no further evidence of effort to agree is necessary, and no actual effort need be proved.^ If par- ties holding the title are unable to sell, on account of dis- ability, their disability would operate as a refusal to agree on price.' The inability of parties to agree is the fact required. No formal negotiation is necessary in such cases. A tender and refusal is sufficient.* An infant cannot con- 261 § 109 OF COMPENSATION AND CONTRACTS. vey land, and hence cannot agree on price, and in such case there need not be an effort to agree/ Agreement might be difficult or impossible with non-residents, and in their case it would be sufficient to show that offers had been made to agents of the non-residents/ An affidavit that parties had failed to agree implies an effort to agree/ By inability to agree on the price of land the law does not mean that it must be impossible to purchase the right at any price, how- ever large. It means that the owner must be either un- willing to sell at all, or willing to sell only at a price so large as, in the good judgment of the agents of the corpora- tion, to be considered excessive.* Where the petition alleges failure to agree, such failure may be shown by defendant's own evidence.' The filing of a petition shows the petition- er's election not to agree and no previous attempt is neces- sary.^" 1 Todd u. Austin, 34 Conu. 78; Trinity College u. Hartford, 32 Conn. 452. 2 Burt V. Brisham, 117 Mass. 307. ' Balch V. Commissioners of Essex, 103 Mass. 106. * Williams v. Hartford K. R., 13 Conn. 397. 5 Indiana E. E. v. Oakes, 20 Ind. 9. " West Virginia Transp. Co. v. Oil Co., 5 W. Va. 382. ' Tacker v. Erie E. E., 27 Pa. 281. « Matter of Prospect Park E. E., 67 N. Y. 371. 3 De Bualu. Ereeport Ey., Ill 111. 490. 1" ^tna Mills v. Inhabitants of Watham, 126 Mass. 422. § 109. Waiver of agreement. — A mere appearance before a jury does not operate to waive the right of notice to agree and effort of agreement.^ An appeal on the ques- tion of damages is a waiver of the agreement, and estops the owner from setting up that no effort to agree was made. The exception must be taken below. The appeal is pre- sumed to be made from an assessment, which assessment could only be made on a failure to agree. Such an error as a failure to agree can be corrected on ceriiorari,^ or appeal,* but cannot be inquired into in a collateral proceeding.* An approval, by the court, of a bond for appeal is an adjudica- 262 OF COMPENSATION ANP CONTRACTS. § 110 tion that all such preliminaries have been properly con- <3ucted to entitle the party to file a bond." I Hinckley, petitioner, 15 Pick. 447. ' Mississippi E. K. v. Rosseau, 8 Iowa, 373. ' ' Ney V. Swinney, 36 Ind. 454.^ ^ Mississippi R. R. v. Rosseau, 8 Iowa, 873. ^ Williams v. Lackawanna E. R., 42 Pa. 308. § 110. Contracts for rights of way All contracts made by the condemning party with the owner, whereby the privileges desired are wholly or in part obtained with- out condemnation, are favorably regarded by the courts, and are construed strongly in favor of the owner .^ Con- tracts for rights of way and payment of compensation need not be in writing to satisfy the statute of frauds.^ Such ■contracts are to be construed so as to put the burden on the condemning party of njaking good the grounds on which it sought to divest the owner of his rights; and he may show that he was unlettered, and that he did not know the character of the instrument he was signing.^ The title acquired by contract is ordinarily the same as that acquired by condemnation,* although a fee may be ob- tained by deed when the company would not be authorized to condemn a fee." Land thus obtained does not revert on a discontinuance of the improvement." As condemnation proceedings are presumed to consider and include all dam- ages suffered, so deeds of rights of way are presumed to include all damages arising from proper construction of the improvement. The price agreed upon in the deed is sup- jDosed to be the same that the commissioners would have arrived at on an assessment,' and to include such dam- ages as result from laying of drains and deepening the bed of a stream, if reasonably required.^ The evidence as to the extent of the condemnation and of the rights reserved is found in the description filed ; and if the description does not contain the reservations, they cannot be proved on the trial to assess damages. The party condemning cannot show, in reduction of damages, that fences had been put up 263 § 110 OF COMPENSATION AND CONTRACTS. at its expense for the benefit of the owner, and that gaps and ways were offered to be put in.' The rights must be preserved to the owner by a proper description, and, if thus secured to him, may be shown in reduction of damages. To show this, a deed may be offered in evidence to show rights or easements reserved to the owner, — such as the right to make a crossing.^" An agreement to build a road- bed so as to serve as a levee in return for right of way is an obligation for breach of which an action at law for damages will lie. Such an obligation is not a lien and a company purchasing the road will not be bound to answer in dam- ages. ^^ If the agreement under which the railroad enters is to pay a fixed sum, such sura will be construed as penalty, not liquidated damages. ^^ Where a corporation, which is authorized to construct a macadamized road and to con- demn land for that purpose, has contracted with the owner for the construction of the road on an agreed line, and has partly constructed the road on that line, the corporation is not barred from proceeding to condemn a right of way across the same land on a different line. The corporation has the right to change the location of its line, subject to the right of the other party to maintain an action for such damages as he may have sustained by reason of the breach of agreement.^* Should the owner consent to the occupation of land by a railroad, without compensation other than what accrues to all the property owners alike from a completion of the road, he thereby dedicates the same to that publjc use — to acquiesce in occupancy for a long time and by such acquiescence to induce the belief that condemnation is un- necessary and then to allow the owner to revoke such con- sent, and recover the value of the land and damages, would be to permit the owner to speculate on his own laches.'* 1 Tyler u. St. Louis, 66 Mo. 60. 2 Noyes v. Chapin, 6 Wend. 461. 3 Rockford R. R. v. Shunick, 65 111. 223. * TroyR. R. v. Potter, 42 Vt. 265. "■ Page V. Heiueberg, 40 Vt. 81. s Ibid. 264 OF COMPENSATION AND CONTRACTS. § 111 " Norrisu. Vermont Central R. R., 28 Vt. 99; Matter of TJtica E. R., 56- Barb. 456; Chicago Ey. v. Smith, HI 111. 363. 8 Babcock v. Western E. R., 9 Mete. 663. 9 Ham V. Salem, lOp Mass. 350. " Boston R. R. »., Middlesex, 1 Allen, 324. " Sappington ■». Little Rock R. E., 37 Ark. 23. " Hooper V. Savannah R. R. Co., 69 Ala. 529. 13 Cape Girardeau Macadamized Road Co. v. Lewis, 67 Mo. 438. " Texas Ry. Co. v. Sutor, 56 Texas, 496. § 111. Kelinquishment of damages — Licenses to own- ers — Licenses granted by owner. — A relinquishment of damages may be by parol. It is not in the nature of a con- veyance of land, so as to require a written instrument to satisfy the statute of frauds. It is rather a license, and if acted upon by the public, or the party condemning, is and must be construed to be a waiver of damages.^ If'he waives his right no one can litigate for him either in his 6wii name or tlie name of the public. A consent in writing can- not be revoked.^ If the owner has agreed not to claim damages, while the commissioners are determining whether or not the road shall be laid out, the waiver is binding, and may be proven before the jury assessing damages. The question before the jury is as to whether the owner is en- titled to any damages, and, if so, how much.' That an owner has petitioned for the improvement does not bar bis claim for damages.* The assent of the owner may be proved by long acceptance, as well as by parol. ^ A release of a portion of the damages does not take away the right, of the owner to have the rest of his damages assessed by a jury, and by proceedings in regular form.^ A relinquish- ment of land does not operate as a relinquishment of dam- ages for removing buildings, and rendering the remainder of the land suitable for occupation.' Licenses to enter without damages must be acted on before revocation by the owner.* After entry they cannot be revoked. Officers acting under a license, without being informed that such license was revoked, would not be liable personally, if act- inc in good faith.' A mere consent to enter does not waive= 265 § 112 OF COMPENSATION AND CONTRACTS, damages, but waives the prior payment." Licenses granted to the owner by the condemning party may also be revoked. ^^ One who voluntarily consents to the occupancy of his land by a railway company without compensation other than the benefit that accrues to him in common with others, cannot afterwards be allowed damages for the use of his land." In Pennsylvania," it is held that if a property owner neglects to submit any part of his claim for damages caused by opening streets, he will be deemed to have waived his claim. The owner of land may, notwithstanding his protest, after the road has been opened against it, withdraw further oppo- sition thereto and acquiesce in the results. He does not thereby waive his right to be compensated for permanent damages.^' 1 Clement 1). Durgin, 6 Me. 9; Fuller v. Plymouth, 15 Pick. 81 ; Marble •B. Whitney, 28 N. ,Y. 297 ; The People v. Goodwin, 6 N. Y. 568 ; Noyes v. Chapin, 6 Wend. 461. Consent given by a city to the use of a street by a railroad cannot be withdrawn by repealing the ordinance granting con- sent. If prior to that time the railroad had made expenditures on the strength of such consent. Rio Grande R. R. u. Brownsville, 45 Texas, 88. 2 People V. Walsh, 96 111. 232. 2 Squiers v. Neenah, 24 Wis. 588. 4 White V. Norfolk, 2 Cush. 361. " Barker v. Taunton, 119 Mass. 392; Newville Road, 8 Watts, 172. « Cottrill V. Myrlck, 12 Me. 222. ' Sturtevant v. Plymouth, 12 Mete. 7. " Poster V. Boston, 22 Pick. 33. " The People v. Goodwin, 5 N. Y. 568 ; Macon R. R. n. Bowen, 45 Ga. 531; New Orleans R. R. v. Moye, 39 Miss. 374; Hetfleld v. Central R. R.. 29 N. J. L. 571;,East Pennsylvauia R. K. v. Heister, 40 Pa. 53; Murdock ■0. Prospect Park B. R.. 17 N. Y. Sup. Ct. 598. 10 Squiers v. Neenah, 24 Wis. 588. « Smith v. Ferris, 13 N. Y. Sup. Ct. 553. '2 Haldeman v. Pennsylvania R. R., 50 Pa. 425. J« Texas R. R. v. Sutor, 59 Texas, 29. " Pusey ». City of Allegheny, 98 Pa. St. 522. w Hamilton Co. v. Garrette, 62 Texas, 602. § 112. Reservations to owner — Easements not to be granted In lieu of damages, against the will of owner. — Compensation is ordinarily to be made in money, yet reser- vations of rights to owners are favored, and the condemn- 2G6 OF COMPENSATION AND CONTEACTS. § 113 3ng party may ratify an award a part of which requires certain improvements to be made for the benefit of the owner. ^ The reservation of rights to the owner is only carrying out the spirit of the law, that the public improve- ment shall be made with the least damage to private indi- viduals.^ These conditions and reservations cannot be :fixed against the will of the parties. The owners are not compelled to accept, or the condemning party to grant, the easements.' Hence it is irregular to fix the compensation at a certain sum, with a wagon-way, etc., unless such ease-' ment is accepted.* When agreed upon and accepted, such reservations may be shown in reduction of damages, — as, that commissioners had ordered a drain, which would obvi- ate the principal damages.' The fact that reservations have been made to the owner and accepted by him does not oper- ate as a waiver of his claim for damages.^ * Morse, petitioner, 18 Pick. 443. ' Windsor v. Field, 1 Conn. 279. 3 Hill ». Mohawk K. E., 7 N. Y. 152; s. c, 5Denio, 206 ; Kiker u. Mayor, -3 Daly, 174 ; Railroad Co. v. Halstead, 7 W. Va. 301 ; Chesapeake E. E. v. Patton, 6 W. Va. 147; Chicago R. E. v. MelviUe, 66 111. 329. < Central R. R. c-'Holler, 7 Ohio Stl 220. 6 Chapin «. Boston R. R., 6 Cush. 422. " Brown v. Worcester, 13 Gray, 31. § 113. How contracts are to be enforced — Damages lor breaches of contract. — The reservations to the owner -constitute a part of the compensation. If the party con- demning fails to fulfill the conditions of the contract, there will be an action for damages^ on the contract, or for spe- cific performance of the contract.'' There should not be a proceeding to assess damages anew.^ The owner of the land is entitled to payment for his land and for all subse- quent injuries occasioned by the construction of the road as though no such grant of the right of way had ever been made. Nor is the company entitled, in the estimation of damages, to any considerations such as would be appropri- ate in a proceeding for an original condemnation or an ex- ercise of the power of eminent domain.* The damnges for 267 § 113 OF COMPENSATIOlSr AND CONTRACTS. breaches of contract must be obtained in a separate actioiL from that in which compensation is adjusted.^ The party condemning cannot escape the conditions of its contracts- by afterward condemning.^ The corporation may condemn, but the rights obtained by contract must still be preserved to the owners. The rights secured by contracts are not to be offered in mitigation of damages.^ If there is a failure to fulfill conditions, the owner may treat the contract as broken, and claim the land, and may refuse to give up the 'same if entry has not been made f or he may enjoin an entry until the compensation for the entire injury is fidly made.' If the condemning party is in possession, and has. gone to great expense in making improvements, it has been' doubted whether an injunction will lie.'" An action on tbe^ case will be sustained for damage," and ejectment has also been sustained. ^^ The action of ejectment will not be sus- tained where the entry was by virtue of a contract which the condemning party subsequently failed to observe. The license or contract of the owner cannot be revoked or an- nulled by him after entry is made and improvements entered upon. The license to enter, in such cases, becomes coupled with an interest. The owner should make the conditions, in his contract, conditions precedent to entry, and not sub- sequent. After entry and occupation, the remedy is by specific performance or in damages, and not in ejectment. ^*^ The owner may be compelled to a specific performance of his contract, and after the company has incurred expense he may be enjoined from pursuing an action of ejectment." A specific performance may be decreed in favor of the owner, although the owner was not at first able to give an unen- cumbered title, which was afterward done.^^ A reservation imposed in the verdict in the trial below is not binding, unless the same condition is imposed by the jury on ap- peal.'" An agreement for damages at a certain sura is a contract which may be enforced, and the board ot super- visors may be compelled to allow the demand by manda- 268 OF COMPENSATION AND CONTBACTS. § 113 Tnusy In a late case in Maryland 18 the court discuss the question whether an agreement for damages is in the nature of a penalty and say: " Wh-ere the parties have declared in clear and unambiguous terms that a certain sum shall be paid by way of compensation upon a breach of the con tract, or where the covenant is to do certain acts, the damages arising from a breach of which are uncertain and incapable of being ascertained by any fixed pecuniary standard, and especially where the contract provides that the sum so named shall be paid as liquidated damages, the sum so fixed and agreed upon will be considered as oompen sation for damages resulting from the breach and not as a p enalty." When the agreement is in the alternative, to do some par- ticular thing or pay a given sum of money, the court will hold the party failing to have had his election and compel him to pay the money. The covenants or contracts to erect improvements do not run with the land, and ca nnot be sued upon by the grantee of the original owner. ^^ J Morse i;. Boston K. R., 2 Cush. 536; Hubbard v. Kansas City E. E.i ^3 Mo. 68; Houston E. E. v. McKinney, 55 Texas, 176; New York E. E. -!>. Stanley's Heirs, 34 N. J. Eq. 55, s. c, 35 N. J. Bq. 283. 2 Viele V. Troy E. R., 20 N. Y. 18i; Eastern Counties Eail. Co. v. Hawkes, 24 L. J. (Ch.) 601; Variier ». St. Louis E. E., 55 Iowa, 677; Hubbard v. Kansas City E. E., 63 Mo. 68; Hooper v. Savannali E. E., 69 Ala. 529. Possible inconvenience to the public is no ground for refusing specific performance. Eaphael «. Thames Valley Eail. Co., 36 L. J. CCh.) 209; L. R. 2 Ch. App. 147. ' White V. Boston E. E., 6 Cush. 420; Kansas Pacific E. R. v. Hopkins, 18 Kan. 494. * Hubbard v. Kansas City R. R., 63 Mo. 68. 5 Sherwood v. St. Paul R. R., 21 Minn. 122; "Western Pacific R. R. v. Eeed, 35 Cal. 621 ; Bechnel-o. New Orleans R. R., 28 La. An. 522. « Gray.u. Burlington R. R., 37 Iowa, 119. ' Schermeely v. Stillwater R. R., 16 Minn. 506. 8 Taylor v. Cedar Rapids R. R., 25 Iowa, '371. 3 Unangst's Appeal, 55 Pa. 128. "> Pusey V. Wright, 31 Pa. 387. w St. Louis R. R. V. Mitchell, 47 111. 165. ^^ Cases cited in Baker «. Chicago R. R., 57 Mo. 265. Denied, Horn- back V. Cincinnati R. R., 20 Ohio St. 81. '■^ Baltimore R. R. v. Highland, 48 Ind. 381 ; Hornback v. Railroad, 20 Ohio St. 81 ; Baker v. Chicago R. R., 57 Mo. 265 . 269 § 114 OF COMPENSATION AND CONTRACTS. 1* Chesapeake Canal v. Young, 3 Md. 480 ; Ross v. Chicago R. R., 77 UU 127. The owner may also be enjoined from resorting to compulsory pro- ceedings. Duke of Norfolk v. Tennant, 9 Hare, 745; 16 Jur. 398. 15 Viele V. Troy R. R., 20 N. Y. 184. 16 Morss V. Boston R. R., 2 Cash. 53tj. 1' The People v. Supervisors of Richmond County, 20 N. Y. 252. 18 Pennsylvania R. R. v. Reichert, 58 Md. 261. » Piper V. Union Pacific R. R., 14 Kan. 568. § 114. Construction of contracts. — The courts incline to construe contracts in favor of tiie owners, and do not extend their meaning by construction. A permission to build in one place does not operate as a permission to build elsewhere.' But the owner may be estopped from pursuing the company as a trespasser by allowing the company to build in another place. The original agreement as to com- pensation in one place would have no bearing on the claim for damages in the place taken. ^ A consent to a change of survey does not operate as a waiver of damages.' In an agreement to establish a depot as near a certain place as " practicable," practicable means to locate at the nearest point at which it can be done at a reasonable and ordinary cost.* An act authorizing the condemnation of land " ad- joining the road as constructed on their right of way as located " does not authorize the condemnation of lands adjoining a side track leading to a freight house.' 1 Hall V. Pickering, 40 Me. 548 ; Hosher v. Kansas City E. E., 60 Mo. 329; Lewis v. Smith, 1 A. K. Marsh. 159. 2 Hosher v. Kansas City E. E., 60 Mo. 329. s Kent V. Wallingford, 42 Vt. 651. * Wooters v. International R. R., 54 Texas, 294. ' Akers v. United New Jersey R. R., 43 N. J. L. 110. 270 DESCRIPTION OP PROPERTY TO BE TAKEN. § 115 CHAPTER XIII. DESCRIPTION OF PROPERTY TO BE TAKEN. § 115. Certainty of description required. 116. Filing survey. 117. Maps. 118. Map need not show whole road, or entire tracts of land. 119. Quality of land — Improvements. 120. Exception of dwelling-houses from condemnation — Dwelling- house defined. 121. Exemption of gardens, yards, orchards, and manufactories from condemnation. 122. Variation of location and occupation. 123. Necessary materials. § 115. Certainty of description required. — Statutes, vary greatly as to requirements of maps, plats, and sur- veys, and of the descriptions deemed necessary in petitions. Plans must be intelligible, and give angles, distances, etc., sufficient so as not to require parol testimony to explain the plan and scale of distances.-^ The report of commissioners should contain such a description that the property taken and valued may be ascertained from the record,^ or a cer- tiorari will be granted.^ The certainty is of the same nature as the certainty required in conveyances of land,* so that a. surveyor could go on the land and mark out the land desig- nated.* The taking of the land is in the nature of a con- veyance from the owner, and he is entitled to know how much land is taken from him, and the exact boundaries of what remains. The actual contents of the tract taken need not be shown or set forth, if that is- a matter of calculation from the length, breadth, and courses given. ^ The location should state the width and boundaries of the location ; if not, the location will be invalid.' A description of the land sought to be condemned as " so many feet on each side of the center lino of the railroad as the same is located^ 271 § 115 DESCRIPTION OF PROPEETY TO BE TAKEN. staked and marked," is sufficient.' A statute requiring a ^description in a petition is satisfied by having a description in a schedule attached to the petition.^ A petit ion for a county road is sufficiently certain if it sets forth the termini, and the general course between them.-"* The certainty should be such as to prevent surprise, or such as would not mislead. If the strip has been staked off, and the descrip- tion filed shows the strip and its width, direction, and other sections over which it runs, and a profile and plat has been filed, sufficient certainty is obtained. ^^ It is not sufficiently definite to place one terminus at a point on the Ohio and Pennsylvania state line in the county of Trumbull, and the other at a point on the Ohio River, in either the county of Brown or Adams. '^ A statute authorizing the construction of a railroad " to Brownsville " does not require the ter- mination of the road at the boundary of the city, but the terminus may be anywhere in the city.^^ Under a statute requiring a precise description of the land taken, it is in- sufficient description to describe as follows; " Said embank- ment extending diagonally through said tract of land, from ^ point near the northeast corner to a point near the south- west corner." Near is an indefinite word at all times, and ■as used in this description, without any other qualifying word, it is impossible to locate therefrom, with any degree of precision, the beginning of the embankment. It might be on either side of the corner. Further, the width is not given. A precise description is a definite, accurate, and correct description. The description given is inaccurate, iucorrect, and unprecise.^* " At or near the residence " of a person is too indefinite a description of a terminus to authorize a location of a highway. ^^ The description of a -course as "passing over and upon the line dividing the lands of certain owners " is sufficient.^* During the pen- dency of a proceeding by a railway company to condemn land the court may permit the plaintiff to amend the descrip- tion of the land." It is not necessary in a petition to give 272 DESCRIPTION or PROPERTY TO BE TAKEN. § 115 any other or more particular description than is furnished by a plat referred to therein.'^ ' Portland K. R. v. Commissioners of Yorli County, 65 Me. 292; Vail v' Morris R. R., 21 N. J. L. 189. 2 Pennsj'lvanla K. R. v. Porter, 29 Pa. 165; Todemier v. Asplnwall, 43 111.401; Missouri Paclflo Ry, u. Carter, 85 Mo. 448; Lancaster ■«. Kenne- bec Co., 62 Me. 272; Fort Worth Ry. o. Lamphear, 1 Tex. App. 308; Fort Worth Ry. v. Hogsett, 1 Tex. App. 444 - 3 Lewiston v. Commissioners, 30 Me. 19. * Rice V. Turnpike Co., 7 Dana, 81 ; Galveston R. E, v. Mud Creek Co., 1 Tex, App. 393. A Massachusetts statute required the filing In the of- fice of the registry of deeds for the county in which the lands are situated a description of the land so taken, "as certain as is required in a com- mon conveyance of land." The description may refer to a plan, or to the fact that the plan referred to was recorded. Mathias v. Drain Com- missioaers, 49 Mich, 465. The question is of identity, which it is compe- tent to prove by evidence. That is a question of fact. As to the cer- tainty of the description, the question is. Can one familiar with the land and the monuments upon and about it, by the courses, distances, monu- ments, and other means of identification therein given, apply the descrip- tion, as filed in the registry, to the land, with such reasonable certainty as to show the limits of the taking? If so, this is all which the statutes demands, and this is a question of evidence, and not of law. Kohlhepp V. West Roxbury, 120 Mass. 596. " Macon v. Owen, 3 Ala. 116; Schoff v. Improvement Co., 57 N. H- 110; Conawayi). Ascherman, 94 Ind. 187; Village of Byron •«. Blount, 97 111. 62; Galveston R. R. v. Mud Creek Co., 1 Tex. App. 393. « Pennsylvania R. R. v. Bruner, 55 Pa. 318. ' Housatonic R. R. v. Lee R. R., 118 Mass. 391; Vailt). Morris R. R., 21 N. J. L. 189. 8 Lowers. Chicago R. R., 59 Iowa, 563; Duck River R. R. v. Coch- rane, 3 Lea, 478. " Washington Park Commissioners, 52 N. Y. 131. ^" Sumner v. Commissioners, 37 Me. 112. " Quincy R. R. v. Kellogg, 54 Mo. 334; West v. West R. R., 61 Miss. 536. The court will take judicial cognizance of certain monuments. Kile V. Yellowhead, 80 111. 208, See, also, § 278, post. '2 Atlantic R. R. v: Sullivant, 5 Ohio St. 276. " Rio Grande R. R. v. Brownsville, 45 Texas, 88. Road from "Troy to city of Hudson," need not stop on arriving at the boundary of Hudson. Farmers' Turnpike Co., 10 Johns. 388. " At or near the city of Schenec- tady" means at or .within the city. Mohawk Bridge v. Utica E. R., 6 Paige, 564. 1* Indianapolis E. R. v. Newsom, 64 Ind. 121. '5 De Long v. Schimmel, 58 Ind. 64. 1" Hedrick v. Hedrick, 55 Ind. 78. 18 273 §§ 116, 117 DESCRIPTION OF riiOPEKTY TO BIO TAKEN. " Hunt V. New York Ry., 99 Ind. 593. " Pennsylvania R. E. v. Eeichert, 58 Md. 261; Riche u. Bar Harbor Water Co., 75 Me. 91. § 116. Filing survey. — lb is reasonable that a private corporation condemning property shall inform owners of the exact property proposed to be talcen, and hence it is- frequently provided that a survey of the route shall be filed in some public office to which all persons may have access. Unless this is done, the action of the corporation in entering will be unwarranted, and subject its officers to an action of trespass.! The survey filed constitutes the written, perma- nent record evidence of the exact land taken. It is con- clusive both on the condemning party and the owner. ^ The filing of a survey being a necessary preliminary to con- demnation, the owner cannotj in the absence of such survey, and without actual occupation by the condemning party, sue for the recovery of the value of the land.'' 1 Bonaparte v. Camden R E., Baldw. 205; Wilson ■». Lynn, 119 Mass. 17i; Wamesit Power Co. v. Allen, 120 Mass. 353; Lund v. New Bedford, 1^1 Mass. 286. 2 Hazen v. Boston E. R., 2 Gray, 574. 3 Teick V. Commissioners, 11 Minn. 292. § 117. Maps. — Maps should be plain enough to be under- stood by a plain, ordinary maa.i A map means, not only a delineation giving a general idea of the land taken, but also such full and accurate notes and data as are necessary to furnish complete means for identifying and ascertaining the precise position of every part, with courses and distances, so that every part can be found. ^ In condemnation of land already in the occui)ation of the condemning party, the requirements as to maps need not be so strictly complied with. The requirement is to apprise the owner of the par- ticular land to be taken. After it is taken and occupied, the owner knows from the occupation.'* Surveyor's maps need not be signed by the surveyor.*. A map which is slightly defective, but which may be corrected by the writ- ten return, and the course and distances given, will not for that cause be set aside. ^ 274 DESCRIPTIO.V OF PROPERTY TO BE TAKE^^. §§ 118-120 1 New York & Boston R. E., 62 Barb. 85. 2 Cjnvers v. Grand Rapids R. R., 18 Mich. 459. 8 Strang tJ. Biloit R. R., 16 Wis. 635. * Tower u. Pitstidi, 55 III. 115. s Tlie State v. Miller, 23 N. J. L. 383. § 118. Map need not show whole road, or entire tracts of land. — It is not necessary that an entire map of the whole road be filed. It is sufficient that the map be com- plete through and beyond the' owner's land, so as to show what is to be taken from him.l The parts which are to be condemned are the parts necessary to be shown. ^ The en- tire tracts of land through which the road passes need not be given, but only the part taken and the lines and fences crossed.' 1 Somervllle R. R. v. Douglity, 21 N. J. L. 442; Hunt v. Smitli, 9 Kan. 137. 2 Hunt V. Smith, 9 Kan. 137. " The State v. Hopping, 18 N. J. L. 423. § 119. Quality of land — ^ ImprovementSi. — Lai^d may be described in quality as barren or fertile, town land or farm land, woodland or cultivated, hillside or bottom, and the character should be set forth. i In describing town land taken, it is not necessary to show, under the head of qual- ity, that it was arable, meadow, or otherwise. It is suffi- cient to say that it was used as a lumber-yard.^ Maps should show the improvements on the land taken, or through which the road passes.^ 1 O'Hara v. Pennsylvania R. R., 25 Pa,. 445; Zaok v. Pennsylvania R. R., 25 Pa. 394. 2 Pennsylvania R. R. v. Bruner, 55 Pa. 318. » The State v. Hopping, 18 N. J. L. 423; Pott's Appeal, 15 Pa. 414. § 120. Exemption of dwelling-houses from condemna- tion — Dwelling-house defined. — A dwelling-house is , of itself, no more exempt from condemnation for public uses than any other property. The legislature may properly provide that public improvements, shall not take any dwell- ino--house or other building. ^ A dwelling-house would not include a garden, orchard, or curtilage.^ A billiard-saloon attached to a hotel is within the exemption.' The exemp- 275 5 120 DESCEIPTIOX OF PROPERTY TO BE TAKEN. tion is not violated by joassing near a dwelling-house, but on land of another. One proprietor could not have control over the property of his neighbor, and prevent his giving his consent or having a railroad on his land, if he so desired, although the rai-lroad was in fact within the prohibited dis- tance from the house of complainant.* The statute cannot be evaded by erecting a shanly in the line of the proposed improvement, and inducing negroes to live in the house. The house must be a bona fide dwelling-house, and not erected or occupied for the purpose of defeating a con- demnation.* Where a company does not condemn its full width, and the adjoining owner builds within the full width, the company cannot afterwards extend its right of way, so as to interfere with the building under a charter providing that it may condemn land only on condition that it does not interfere with any building." The word " house " has been held to include not only a court-yard, but also office, houses, and garden, and all that is necessary to the enjoyment of the house, if within the same ambit or circuit, whether at- tached to the main building or not, and though purchased subsequently to the erection of the main building.' Gar- dens attached to houses, and out-houses used in connection with houses, are included under the term " houses." ^ Un- finished houses, and property bought for the purpose of making necessary additions, are within the protection.' The rule is to be construed liberally in favor of the owner of the property. 10 The test to be applied in doubtful cases is whether the field, or portion required, would pass in a conveyance of the house, as part of the appurtenances. If it would pass under the word " house," then it is within the protection of the act, and in England the owner could require the company to take the whole of the premises. ^ The appurtenances must be necessary for the convenient use and occupation of the house, and not devoted merely to out-door amusements. 12 1 The state v. Troth, 34 N. J. L. 377; Wells v. Somerset R. K., 47 Me. 276 DESCRIPTION OF PROPERTY TO BE TAKEN. § 121 ' Wells V. Somerset R. R., 47 Me. 345. » The State v. Troth, 84 N. J. L. 377. * Richmond R. R. v. Wicker, 13 Gratt. 375. * Morris v. Schallsville Branch Road, 4 Bush, 448; Carris v. Commis- sioners of Waterloo, 2 Hill, 443. « Alabama R. R. v. Gilbert, 71 Ga. 591. ' Governors of St. Thomas Hospital ■«. Charing Cross Rail. Co., 30 L.J. (Ch.) 395; Marson v. London Rail. Co., 87 L. J. (Ch.) 483. 8 Dakln v. London & North-Western Rail. Co., 26 L. J. (Ch.) 734; King V. Wycombe Rail. Co,, 29 L. J. (Ch.) 462; Cole v. West London & Crystal Palace Co., 27 Beav. 242. 9 Alexander v. West End & Crystal Palace Co., 81 L. J. (Ch.) 500; Grosvenor v. Hampstead Junction Rail. Co., 26 L. J. (Ch.) 731. J» Reddin ii. Metropolitan Board of Works, 31 L. J. (Ch.) 660. u Ferguson v. London Rail. Co., 32 L. J. (Ch.) 20 ; Grosvenor «. Hampstead Junction Rail. Co., 1 De G. & J. 446; Smith v. Martin, 2 Wms. Saund. 394. 12 Doe d. Clements V. Collins, 2 T. R. 498; Steele v. Midland Rail. Co., L. R. 1 Ch. App. 275; Pulling v. London, Chatham, etc., Rail. Co., 4 N. R. 45, 386; 33 L. J. (Ch.) 505. § 121. Exemption of gardens, yards, orchards, and man- ufactories from condemnation. — Some statutes extend the immunity to gardens, yards, orcliards, warehouses, and manufactories. A lumber-yard would not be within the protection of the statute.^ A protection to agai'den which hud been cultivated for four years does not extend to an uncultivated portion of such garden. The garden mus^ be actually cultivated.^ A field is not an orchard, although there may be fruit-trees in some part of it.' Although the line of a survey runs into a tract used as an orchard, yet the laying-out would not be void unless the trees came within the survey, or the owner would be deprived of the use of them,* and then the road would be invalid only as to the points encroaching.^ All the ground around a mill is not exempted, although such land might be used for storing logs, provided sufficient mill-yard is left, and on this ques- tion the decision of the commissioners cannot be reviewed." It is doubtful whether the owner can claim the immunity after seeking damages and claiming an increase on appeal,^ especially when the point that the road would encroach was not made in the first instance.^ Officers layiug out roads 277 / § 122 DESCRIPTION OF PItOPEKTY TO BE TAKEN. through yards qv buildings exempt from condemnation will be liable in trespass.^ The terra " manufactory " has been the subject of con- struction in the English courts. Land used by an iron and tin-plate manufactory as a place of deposit for rubbish, and the scoricB which came from the furnace, would be included." A workshop is a manufactory. ^^ Ground used by a dust-contractor for assorting dust, with an assorting house, would not constitute a manufactory .^'^ Warehouses used in connection with a manufactory would be included, although separated from the manufactory by a road.'* The taking of a manufactory includes all the fixtures, and machinery, although some of them were known as trade fixtures, which might have been removed by the lessee at the end of his term.'* 1 Stone t). Commercial Rail. Co., 9 Sim. 621; Regina v. Sheriff, 3 Eng. Rail. Cas. 396. 2 The People i). Commissioners of Highways, 57 N. Y. 549; Lansing v. Caswell, 4 Paige, 519. s The Peoples. Judges Dutchess County, 23 Wend. 360. * Snyder v. Trumpbour, 38 N. Y. 355; Snyder v. Plass, 28 N. Y. 465. » Snyder v. Plass, 28 N. Y. 465. * The People v. Kingman, 24 N. Y. 559. ' Lansing v. Caswell, 4 Paige, 519. * Cummins v. Shields, 34 Ind. 154; Crossley v. p'Brien, 24 Ind. 326. ' Clapper, ex parte, 3 Hill, 458. '0 Sparrow ■». Oxford R. R., 2 De G. M. & G. 94. " Giles V. London, Chatham & Dover R. R., 30 L. J. (Ch.) 603. 12 Reddin v. Metropolitan Board of Works, 31 L. J. (Ch.) 660. w Spackmau v. Great Western Rail. Co., 1 Jur. (n. s.) 790. " Gibson 17. Hammersmith Rail. Co., 32 L. J. (Ch.) 337; s. c, 2 Drew. & Sm. 603. § 122. Variation of location and occupation. — The burden of proof is on the condemning party to show that the authorized location actually covers the land taken. The company cannot resort to extrinsic evidence to show that the land taken was intended to be taken, although not described in the location. The location as filed is conclus- ive, and any variation will constitute a trespass. ^ The company condemning cannot object that the description is 278 DESCRIPTION OF PEOPEKTY TO BE TAKEN. § 123 not accurate, after they have located and occupied.^ If there has been error, the only way to remedy is by filing a record of the changes in the proper office.^ It will be pre- sumed that the jury considered any changes in the quantity of land taken or increase of damages occasioned, in their assessment of the same.* After the land has been entered upon and the road constructed, the road having been pre- viously, surveyed and staked out, the jsresumptiou is that the occupation and location are the same, especially where "the stakes have been removed in constructing the road. Such a location could not be set aside for uncertainty when the location was rendered certain by the, occupation.^ 1 Hazen v. Boston R. R., 2 Gray, 574; Matter of New York & Boston E. R., 62 Barb. 85. 2 Callender v. Painesville E. R., 11 Ohio St. 516. a Vail V. Morris R. R., 21 N. J. L. 189. * Hunt V. N. Y, Ry. Co., 99 Ind. 593. 5 Cleveland R. R. v. Prentice, 13 Ohio St. 373. § 123. Necessary materials. — Materials are not always ■convenient to a public improvement, and hence authority may be given to take necessary materials from adjoining land. The work "necessary" does not mean absolutely indispensable, or that without the use of those particular materials the work could not possibly go on. The word means needful and conducive to the object, and more conven- ient in the appropriation than others that might be readily selected.^ The materials need not all be taken from the land immediately adjacent, but may be taken where they may be easily procured. Timber need not be taken from o-roves in a town, when it can be taken outside more abun- ■dantly and cheaply.^ An authority to take materials from one portion of a road, to be used on another portion of it, will not justify a taking of materials from land not taken.'* Stone may be hewed on land not taken.* The commission- ers for assessing the value of materials cannot be called until after it is ascertained what materials are to be taken .* The Eno-lish Lands Clauses Consolidation Act contemplates 279 § 123 DESCRIPTION OF PKOPERTY TO BE TAKEN. the entry oa land temporarily, for the purpose of takinf^ earth or soil by side cuttings therefrom ; for the purpose of depositing soil thereon; for the purpose of obtaining min- erals therefrom ; for the construction or repair of the rail- way, or such accommodation-works as aforesaid ; for the purpose of forming roads thereon, to or from, or by the side of, the railway.' 1 Jerome v. Eoss, 7 Johns. Ch. 315. , 2 Bliss V. Hosmer, 15 Ohio, 44. 3 Parsons v. Howe, 41 Me. 218. ' Vermont E. E. v. Baxter, 22 Vt. 365, Kedfleld, J. ' Ibid. 6 8 Vict., c. 20, § 32. 280 OF TIME AND MANNER OF COMPENSATING. § 124 CHAPTEE XIY. OF THE TIME AND MANNER OF MAKING COMiPENSATION § 124. Early doctrine that compensation need not precede taking. 125. Public roads under proprietary governments — Koads on wild land. 126. Distinctionbetween a taking by the state or a municipal subdivision and a taking by private corporations. 127. Prepayment of damag es which cannot be estimated — Imperative necessity. 128. Statutes or charters failing to provide compensation do not authorize^ the exercise of eminent domain. 129. Preliminary occupation. 130. Payment a condition precedent to entry. 131. Judgment not compensation. 132. Eight to sue not compensation. 133. Consideration of public welfare not compensation. 134. Consent of authorities cannot affect the payment of damages. 135. Compensation in money — Just compensation. 136. Bond to secure damages^ Bond pending appeal. 137. Entry pending appeal. 138. Deposit pending an appeal. 139. Tender pending an appeal. 140. Waiver of prepiymeut by allowing entry to be made. 141. Continuedassent to use. 142. Where original entry is lawful — Delay in perfecting title. 143. Acquiescence not a waiver of damages. 144. Liendn land for compensation — Change of corporations — Subse- quent purchaser of franchise. 145. Refusal of officers to pay compensation assessed. 146. Payment to wrono; claimant. 147. Refusal to take money — Failure to claim. 148. Ownership of improvements made during unlawful occupation. § 124. Early doctrine that compensation need not pre- cede taking-. — In the earlier days of our state govern- ments, private property, when taken for public use, was taken mainly by the state or its municipal subdivisions, and the compensation was paid by the state ; and the laws passed provided for an immediate entry, and a payment from the public treasury. Such condemnations were considered, for every practical purpose, as cash sales, and were held to b& 281 ■§ 124 OF TIME AND. MANNER OF COMPENSATING. valid by the courts, although the law authorized the taking before the actual payment ; and in this manner and to this extent, at least, it became the doctrine of several of the state courts that the payment of the compensation need not precede or be simultaneous with the taking.^ And in one case it was considered that an act authorizing condemna- tion might not be unconstitutional although no compensa- tion was provided in it, because it would be presumed that the legislature would afterwards provide a remedy.^ In this case. Chancellor Kent considered that although the consti- tution imposed an absolute duty on the legislature to make provision for compensation whenever there was an inter- ference with private right, yet he would not declare an act 41 nullity because no compensation was provided. • It would be presumed that the legislature would, in a subsequent act, remedy the omission ; and in some cases the exercise of the power might be restrained until compensation was provided. Judge Baldwin, in the later case of Bonaparte v. Camden Eailroad,* held that such a law, if not void, would be in- operative to pass the right of property until just compen- sation was made. The courts would suspend the execution of the law until compensation was provided, or would allow the common-law remedies of trespass and ejectment to be ■enforced. The constitution would thus render the legisla- tive act inoperative in so far as it assumed to take private property without compensation.* Many state constitutions declare positively that the payment of compensation, or se- curity for its payment, shall precede the taking, or at least be concurrent with it.^ The New York doctrine is that where certain and adequate means are provided for obtain- ing satisfaction for land taken by the power of eminent domain, compensation need not be paid in advance. ° It is doubtful whether an assessment of benefits on adjoining un- improved lands constitutes a. certain fund.' The New Jer- sey doctrine is similar, with the addition that the remedy is such that the owner may seek his compensation on his own 282 OF TIME AND MANNER OF COMPENSATING. . § 125 motion.* The owner, however, is not to be turned over to the generosity of the legislature.^ In North Carolina, com- pensation need not be first made,^" but there may be an •entry, and an adjustment afterward .^'^ In South Carolina, compensation is made subsequently, because it cannot be known in advance what the damages will be, and because assessments made prior must be made at a venture.'^ In Alabama, it is provided that within six months after a road Is completed the owner may have an assessment of dam- ages, and direct payment out of the county treasury. ^^ In Arkansas, it is held that in the absence of a distinct provis- ion in the constitution requiring payment of compensation to precede the taking of the property, it need not precede ■entry, provided there is an adequate remedy afforded be- fore such entry is made, which may be provided in the •charter or in existing laws.'* 1 Compton V. Susquehanna E. B., 3 Bland, 386. '^ Rogers v. Bradshaw, 20 Johns. 735. See, also, Cairo R. R. v. Turner, SI Ark. 494. 8 Baldw. 205. ' See, also, Stevens v. Middlesex Canal, 12 Mass. 466 ; Ash v. Cummings, SON. H. 691; Charles River Bridge v. Warren Bridge, 11 Pet. 420, i)er McLean, J. 6 Garrison v. New York, 21 Wall. 196. « Rider v. Striker, 63 N. Y. 136; Bloodgood v. Mohawk R. R., 18 Wend. ■9; The People w. Hayden, 6 Hill, 359 ; Smith ». Helmer, 7 Barb. 416; Sage V. City of Brooklyn, 89 N. Y. 189; Matter of United States, 96 N. Y. 227. ' Rider v. Striker, 9 N. Y. Sup. Ct. 115. 8 Lovferee v. Newark, 38 N. J. L. 151. 9 Sinnickson v. Johnson, 17 N. J. L.- 129. M Johnston v. Rankin, 70 N. C. 550; Carolina Central E. E. v. McCas- ,iill, 94 N. C. 746. 11 Mclntire v. Western E. R., 67 N. C. 278; Carolina Central E. R. v. "McCaskill, 94 N. C. 746. 12 Raleigh R. R. v. Davis, 2 Dev. & B. 451. " Commissioners' Court v. Bowie, 34 Ala. 461. 1* Cairo R. R. v. Turner, 31 Ark. 494. In the same case it was held that a legislative grant of a right of way without previous payment of com- pensation is valid; and, if acted on, cannot be interfered with by a sub- sequent constitutional provision requiring compensation to be first paid. § 125. Public roads under proprietary governments — 283 § 126 OF TIMK AXD MANXER OF CO:\IPEXSATING. Roads on wild land. — Neither the proprietary govern- ments nor the state governments which succeeded them made any compensation to the owners of land through which public roads were laid out, as a certain per cent of excess of land was allowed in all grauts for that purpose.^ This right did not include the takino; of materials or the im- provements on land without compensation.^ The reserva- tion was only for roads, and not for canals or other public improvements.^ As private corporations were afterwards formed for turnpike and other purposes, compensation was given by statute,* but the right of the public to sufficient land for highways was claimed in the New Jersey constitu- tion of 1844.^ In Louisiana, the use of the river-front for levees and roads was one of the conditions of ancient grants of land on the Mississippi. The riparian owner could not appropriate the river-front exclusively to his own use. ^ In constructing roads, there should be no damage done to the proprietor by obstructing a bayou ; and works for the gen- eral reclamation of a large territory would require compen- sation to the person injured.'' The fact that the property is wild and unimproved does not justify the legislature in directing its appropriation for roads without compensa- tion.^ 1 Bonaparte v. Camdea R. R., Baldw. 205; Hays v. Eisher, 32 Pa. 169; The Commonwealth v. Fisher, 1 Pa. 462 ; McCIenachaa v. Curwen, 6 Binn. 509; The State u. Dawson, 3 Hill (S. C.)> 100; Lindsay ^. Commissioners,. 2 Bay, 38. 2 Matter of Public Highways, 22 N. J. L. 293; The Commonwealth o. Fisher, 1 Pa. i62; McClenachan v. Curwen, 6 Binn. 509. = The Commonwealth v. McAllister, 2 Watts, 190. * The State v. Seymour, 35 N. J. L. 47; Doughty v. Somerville K. K., 7 N. J.Eq. 51. - Doughty V. Somerville B. K., 7 N. J. Eq. 51. " Hanson v. Lafayette, 18 La. 295. ' Cash V. Whit worth, 13 La. An. 401. 8 Gould V. Glass, 19 Barb. 179; Wallace v. Karlenowefski, 19 Barb. 118. § 126. Distinction between a taking by the state op a, municipal subdivision and a taking by private corpora- 284 OP TIME AND MANNER OF COMPENSATING. § 126 tions. — The state is presumed to be able to pay, and to be honest, and this presumption has been frequently considered as sufficient to justify a different rule in behalf of the state, in reference to requiring previous payment of compensation, from that established in reference to private corporations, whose solvency may be doubtful.' The state and its muni- cipal subdivisions are presumed to be solvent.^ 'i'he taxa- ble property of a town or municipality constitutes a pledge or fund to which the owner may resort for payment.^ The constitutional requirement is satisiied if in the act of mak- ing the appropriation an impartial tribunal is provided for determining the question of compensation to which the owner may resort, and if the payment of the sum to which he is entitled is made, when ascertained, a charge upon the public treasury, either of the state or some municipal subdivision thereof.* If the statute provides that the gov- ernor of the state is to sign a warrant on the treasury of the state, it is to be presumed by the courts that he will do so, and that the treasurer will pay the warrant.* Experience has frequently shown that in reference to the solvency of municipal corporations there may be as much doabt as to that of private corporations, and if the municipal corpora- tion is so hampered in its taxing power that the damages could not be paid within a reasonable time, an injunction would be granted until security is given to meet the dam- ages.® In Mississippi' the doctrine that a state may enter before making compensation is not sanctioned, and in Maryland ^ it is held that a city, without payment, tender or investment, as provided by statute, acquires no title or right of entry for the purpose of appropriating one's prop- erty to public use, even though the condemnation proceed- ino-s may have been regular in other respects. The United States is supposed to be honest, and able to pay damages incurred in making the coast survey, although the appropri- ations made by Congress for that purpose had been irregu- lar, and occasionally insufficient." Orders on a county 285 § 126 OF TIME AND MANNER OF COMPENSATING. treasury are proper compensation for land taken for public purposes by the state, and in such cases compensation need not be paid in advance." It is not unconstitutional to defer payment until the state or municipal corporation can collect the compensation by the process of taxation. ^^ An act authorizing a town to issue bonds is sufficient provision for compensation for property taken for public use.^^ It is no objection that the damages awarded are to come from others against whom they have been assessed as benefits. ^^ The compensation under the legislation is based on the suppo- sition that there may be a delay before the compensation is paid." The fund to which the owner must look for his com- pensation must be adequate ; and in California it has been held that there must be a sum set apart in the treasury be- fore an entry can be made, even in road cases." Although the taking of private property by a private corporation is a taking by the sovereign, and although the power is dele- g.ated to private corporations formed for pecuniary gain, yet it .is proper to require the payment of damages in advance, or abundant security for the same.^^ Title does not vest in the state until the amount of damages becomes fixed by ap- praisement." Private corporations frequently have their propert}^ mortgaged, even in advance of construction, and it would be unjust to turn over an owner to the mercy of an insolvent corporation.'^ The taking by a supervisor for a public road is a taking by the state, and does not require prior compensation.^' 1 Walther v. Warner, 25 Mo. 277; Ash v. Cumrnings, 50 N. H. 591 ; Ku- disill V. The State, 40 Ind. 485; DrOnberger v. Reed, 11 Ind. 420; Powers V. Bears, 12 Wis. 213; Shepardson u. Milwaukee R. R., 6 Wis. 605; Low- eree v. Newark, 38 N. J. L. 151; Wheeler v. Essex Road Board, 39 N. J. L, 291. Contra, Cushman v. Smith, 34 Me. 247; Redman v. Philadelphia R. E., 33 N. J. Bq. 165; Matter of First Street, 58 Mich. 641; Sage v. City of Brooklyn, 89 N. Y. 189; Connecticut River R. R. v. County Commis- sioners, 127 Mass. 50; Woodruff v. Town of Glendale, 26 Minn. 78; Ore- gonian Ry. v. Hill, 9 Ore. 377. ' Long V. Puller, 69 Pa. 170 (the case of a school district) ; Yost's Report, 17 Pa. 524 (the case of a county) ; Zimmerman v. Canfield, 42 Ohio St. 463. 286 OF TIME AND MANNER OF COJIPENSATING. § 127 3 Smith V. Gould, 69 Wis. 631. * State V. Messenger, 27 Minn. 119; State v. Bruggerman, 31 Minn. 493. ' Talbot V. Hudson, 16 Gray, 417; Zimmerman v. Canfleld, 42 Ohio St> 463. ° Keene v. Bristol, 26 Pa. 46. ' Cagei>. Trager, 60 Miss. 563. 8 Baltimore E. E, v. Boyd, 63 Md. 325. » Orr V. Qu#by, 54 N. H. 690. i» Eudislllu. The State, 40 Ind. 485; Jeffersonville E. E. v. Daugherty, 4fr Ind. 33; Dronberger v. Reed, 11 Ind. 420; Brock v. Hishen, 40 Wis. 674. '1 Hamersley v. New York, 57 N. Y. 533 (qualifying Chapman v. Gates, 54 N. Y. 132) ; Hatermehl v. Dickson, 8 Phila. 282 ; Brock v. Hishen, 40- Wis. 674. " Church, application of, 92 N. Y. 1. ^ Edgerton v. Mayor, etc.. Green Cave Springs, 19 Pla. 140. 14 Detnold v. Drake, 46 N. Y. 318. M Sanborn v. Belden, 51 Cal. 266; Brady v. Bronson, 45 Cal. 640? Grigsby v. Bnrtnett, 31 Cal. 406. M Dronberger v. Eeed, 11 Ind. 420; Powers v. Bears, 12 Wis. 213. " Ballou V. Ballon, 78 N. Y. 326. M Phifer v. Carolina E. E., 72 N. C. 433. 1* McOsker ■;;. Burrell, 55 Ind. 425. The constitution of Indiana, art. 1, sec. 21, is as follows: " No man's property shall be taken by law, with- out just compensation; nor, except in case of the state, without such compensation first assessed and tendered." § 127. Prepayment of damages which, cannot be esti- mated — Imperative necessity. — There are some damages which cannot he estimated in advance. In such cases it would be impossible to pay or secnre compensation in ad- vance. Where the payment of compensation is reasonably certain, and the amount cannot be easily ascertained, the strict rule has been relaxed. This is the doctrine of the Supreme Court of New Hampshire in Orr v. Quimby,^ where the damages consisted of occupation and temporary works for the purpose of exploring, surveying, and trian- gulating the coast of New Hampshire, under the United States Coast-Survey. This case seems to have been decided with a desire not to interfere with the completion of what the court deemed to be a public worii of great importance and benefit to the state, for in the prior case of Ash u. Cummings ^ the court held that the damages must be paid 287 § 128 OF TIME AND MANNER OF COMPENSATING. in advance, notwithstanding the diiSculty of arriving at the damages before the taking. The difficulty of ascertaining the damages is one to be met by the party condemning. There are exigencies ^ where the state may require the property immediately, and without compensation to the owner. Such are the calamities of fire or pestilence. There must, however, be an imperative necessity to justify an entry on private property without compensation ; and the ordinary progress of public works is not such as to jus- tify such entry without compensation.* 1 5iN. H. 590. 2 50 N. H. 591. 3 See Ch. I., § 5. ^ Penrice«. Wallis, 37 Miss. 172; Watkinsu. Walker County, 18 Texas, 585. § 128. Statutes or charters failing to provide compen- sation-do not authorize the exercise of eminent domain. — By holding that the statute which pretends to take private property for public use, without compensation, is inopera- tive to exclude the common-law remedies, the courts sub- stantially hold the acts to be unconstitutional. Some courts have gone further, and distinctly declared such acts to be unconstitutional and void.^ The constitutional pro- vision requiring compensation does not execute itself,^ and a corporation would be restrained from entering until the compensation was paid.' If compensation is not pi-ovided, the law will conclude that it was not the intention of the legislature to exercise the right of eminent domain, but simply to confer a right to do the act, or exercise the power given, on first obtaining the consent of those thus affected,* or on payment of compensation, outside of the charter.' In New York,* it is held that compensation need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy is provided whereby the owner of such property may compel pay- ment of his damages. The certainty must be reasonable 288 OF TIME AKD manner OF COMPENSATING. §' 128 legal certainty. A law authorizing a railroad company to enter on lands and begin constructing their road, after pay- ing into court the amount awarded, pending an appeal from such award, is unconstitutional in that compensation or a tender thereof to the land-owner does not precede the use .and occupation of the lands.' A charter which grants other valuable privileges in connection with the power to con- demn, would not be void because no compensation was pro- vided, but the authority to condemn could not be exercised. The company might purchase, and then enjoy the other privileges of their charter.^ The constitutional require- ment for securing just compensation is satisfied by provid- ing an impartial tribunal to assess the same and making it a charge upon the public treasury.^ A statute authorizing the manager of a railroad owned by the state, to take land for the use of that and other roads, and providing no other mode of compensation than the earnings of the road owned by the state, is unconstitutional, even if the earnings would probably be sufficient for that purpose. The owner of land taken under such a provision iS entitled to a writ of pro- hibition to prevent the commissioners from going on with the assessment of damages caused by the taking. The duty of paying an adequate compensation is inseparable from the exercise, etc. The act granting the power must pro- vide for compensation and "a ready means for ascertaining the amount. Payment need not precede the taking, but the means for securing compensation must be such as to oc- casion no risk or unreasonable delay .1° If the remedy is inadequate, the common-law remedies of trespass and eject- ment remain to the owner," or possession and entry may be enjoined.^^ Acts are to be construed so as to require compensation, if possible.^* General acts providing the remedy control special acts not providing compensation, for the reason that the special acts are supposed to be in con- templation of the general act, and this construction will .save them from being unconstitutional." It has been 19 289 § 129 OF TIME AND MANNER OF COMPENSATING. argued that if there is no effectual remedy provided for obtaining the compensation which is recognized to be requis- ite in this act, the act will not be void, for the legislature may supply a remedy by a subsequent enactment,^ but really the obligation is no stronger on a future legislature than on the legislature which passed the act without provid- ing a remedy, and there is no greater reason for relying on one than the other .^^ To recoguize in the act that an owner was entitled to compensation, and to neglect to provide him any means for obtaining the same, is worse than failing to recognize the right. ' Thacher^. Dartmouth Bridge, 18 Pick. 501; Easton v. AmoskeagCo., i4N. H. 143; Mount Washington Eoad, 35 N. H. 134; Boston K. R. ». Salem R. R., 2 Gray, 1; Parham v. Justices, 9 Ga. 41; Watkins v. Walker- County, 18 Texas, 585; Beckwith v. Beckwith, 22 Ohio St. 180; Watson ©.Trustees, 21 Ohio St. 667; Foster v. Stafford National Bank, 57 Vt. 128; Weaver v. Mississippi Boom Co., 30 Minn. 499. 2 Watson V. Trustees, 21 Ohio St. 667; Sage v. City of Brooklyn, 89 N. Y. 189. 3 Shute v. Chicago R. R., 26 111. 436. * Boston R. B,.v. Salem R. R., 2 Gray, 1; Thacherw. Dartmouth Bridge Co., 18 Pick. 501; Wellington, petitioner, 16 Pick. 87; Shute i;. Chicago R. E., 26 111. 436. 5 Gray v. St. Paul R. R., 13 Minn. 315. ■■ Matter of United States, 96 N. Y. 227. 7 Redman v. Philadelphia R. R., 33 N. J. Bq. 165. " Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Carson v- Coleman, 11 N. J. Eq. 106. ' State V. Bruggerman, 31 Minn. 493; State ». Messenger, 27 Minn. 119. '" Connecticut River R. R. Co. v. County Comrs., 127 Mass. 50. " Denslow v. New Haven Co., 16 Conn. 98; The People d. Nearing, 27 N. Y. 306. '2 Andersons. Turbeville, 6 Coldw. 150; McCann v. Sierra County, 7 Cal. 121. 13 Harrisburg ©.'Crangle, 3 Watts & S. 460. " Harrison v. Courtwright, 4Luz. L. Reg. 297; 7 Leg. Gaz., 406. 15 The State v. Seymour, 35 N. J. L. 47. i« Buffalo R. R.v. Ferris, 26 Texas, 588. § 129. Preliminary occupation. — The Supreme Court of M;iine seem to permit a temporary occupation of land, incipient to the acquisition of title in land, or to an easement 290 OF TIME AND MANNER OF COMPENSATING. § 13t> in it, without compensation. Tlie title of the corporation must be perfected within a reasonable time, which the statute fixes at three years. Until that time has expired, the occu- pation would not be a trespass.^ This, however, was un- der a special statute. The clause in the constitution which prohibits the taking of private property for public use was not designed to operate, and it does not operate, to pro- hibit the legislature from authorizing an exclusive occupa- tion of private property temporarily as an incipient proceeding to the acquisition of a title to it or to an easement in it.' The general rule is that preliminary occupation shall be only as an incipient proceeding to the acquisition of title or easement.^ Under such an occupation the company could not claim a right in fee. If such a claim is set up, the com- paay would be a trespasser ab initio.* The right to such temporary occupation as an incipient proceeding will become extinguished by an unreasonable delay to perfect proceed- ings (including the actual payment or tender of compensa- tion) to acquire the title to the land, or the necessary easement ; and in cases of neglect, damages might be re- covered for all the prior occupation." While original entry may be tortious, subsequent condemnation is legal. The legislature may prescribe reasonable rules for the purpose of staying such as seek to dispossess a railroad pending con- stitutional proceedings for condemnation. I Nishols V. Somerset R. B., 43 Me. 356. ' Leavitt v. Eastman, 77 Me. 117. « Ante, § 3S. * Hall I!. Pickering, 40 Me. 548 : » Cashmainj. Smith, 34 Me. 247. • State ex rel. Moody o. Baker, Judge, etc., 20 Fla. 616. § 130. Payment a condition precedent to entry. — Payment must be made before entry, where the owner insists on this rifyht. An entry without payment is a trespass.*^ The owner cannot be compelled to institute proceedings, and can rely on his own constitutional protection, and may in- sist that the corporation shall tender him the damages as- 291 § 130 OF TIME AND MANNER OF COMPENSATING. sessed before entry .^ He need not await the collection of damages by assessments.^ And the order cannot be made authorizing possession to be taken without payment, or staying all actions on account of taking such possession.* A law authorizing the taking of a man's land and remitting him for his sole remedy for compensation to a fund to be ob- tained by taxation of certain specified lands in a limited district according to benefits, is not a sure and adequate provision for compensation.^ An injunction may issue to prevent the taking of possession ; or the owner may waive his right to an injunction, and sue for his damages^* or for the possession of his property.'' The right of the owner to an injunction in such cases cannot be affected by a stat- ute declaring that no injunction shall be granted uatil the damages had been ascertained. Such statute would not be constitutional when the owner resisted the^ entry .^ The title does not pass until payment made.^ The , payment must be an entire payment. If only part of the compensa- tion is paid, the owner may re-enter and treat the land as his own.'" An appeal bond without a deposit of damages is not a payment." That bond is simply for the prosecu- tion of the appeal.*^ If the owner has the land undisturbed until payment of damages, there should not be a judgmeat :for the amount of the compensation, and execution thereon, but an order authorizing entry on payment of damages.'^ If the company does not pay within a reasonable time after decree, injunction will bo granted, if necessary, from running trains over the owner's land until the decree is complied with." The compensation must be made at the time of the taking, or some certain security must be given, or fund pro- vided for its ultimate payment. A party whose property has thus been taken cannot be divested of it upon the se- curity that an award or judgment may furnish him alone." » Brown v. Powell, 25 Pa. 229; Memphis R. R. v. Payne, 37 Miss. 700; Henry v. Dubuque R. R., 10 Iowa, 540; Ray v. Atchison R. R., i Neb. 439; Johnson v. Alameda County, 14 Cal. 106. " Cox V. Louisville R. R., 48 Ind. 178; Graham v. Columbus R. R., 27 292 OF TIME AND MANNER OF COMPENSATING. § 131 Ind. 260; Kedman ». Philadelphia E. R. Co., 3.3 N. J. Eq. 165. Under the old constitution of Indiana, payment was not made a condition prece- dent to entry. 5 Commissioners of Highways v. Durham, 43 111. 86; Lafayette v. Shultz, 44 Ind. 97. Contra, under old constitution, McCormick v. Iiafay- ette, 1 Ind. 48 ; Kubottom v. McClure, 4 Blackf . 505. * Loomis V. Andrews, 49 Cal. 239. <> Sage V. City of Brooklyn, 89 N. Y. 189. ' Mayor v. Perkins, 30 Ga. 154. As to injunctions. Commissioners of Highways D. Durham, 43 III. 86; West Maryland R. R. v. Owings, 15 Md. 199; Bohlman v. Green Bay E. R,, 30 Wis. 105; Powers v. Bears, 12 Wis> 213. ' Graham v. Columbus E. R., 27 Ind. 260; Cox v. Louisville E. R., 48 Ind. 178. « Bohlman v. Green Bay E. E., 30 Wis. 105, » New Orleans R. R. v. Lagarde, 10 La. An. 150; GUlan i>. Hutchinson, 16 Cal. 153. i» Colton V. Rossi, 9 Cal. 595. n Rayi;. Atchison R. R., 4 Neb. 439. 1^ Ring V. Mississippi Bridge, 57 Mo. 496. w Peoria R. E. v. Eailroad, 66 111. 174 ; Chicago E. R. v. Bull, 20 111. 218; St. Louis E. R. v. Wilder, 17 Kan. 239. " Williams i;. New Orleans R. R., 60 Miss. 689. 16 Foster v. Stafford National Bank, 57 Vt. 128. § 131. Judgment not compensation. — A mere judg- ment, which might turn out to be wholly uncollectible, can- not be .considered just compensation. Before title can be absolutely vested by virtue of condemnation proceedings,, payment becomes indispensably necessary.^ And if the property nominally passes, it passes subject to the condition that the price shall be subsequently paid ; so that, if for any cause it be not paid, the party may repossess himself of it on account of condition broken.^ An execution on a Judg- ment to be rendered two terms after the taking cannot be considered adequate compensation, unless there is a sub- stantial guaranty fund to secure the payment of such judg- ment.' An arbitration, with not even a judgment by which the award could be enforced, is not compensation.* A sub- mission to arbitration is not a waiver of the payment of the award before entry .^ A judgment that is not paid does not operate as compensation ; and the fact that execution waa 293 ^§ 132-134 OF TIME AND MANNER OF COMPENSATING. stayed by the owner for two years would not render the proceeding a purchase on the part of the company. Pos- session taken under such a proceeding is by virtue of a parol license, which is revocable by the owner. Upon a revocation, the owner, in default of payment, would be entitled to an injunction.^ 1 Provolt V. Chicago E. R., 57 Mo. 256; Powers v. Armstrong, 19 Ga. 427; Thompson r. Grand Gulf E. R., 3 How. (Miss.) 240; White ». Wa- bash Ry., 64 Iowa, 281; Moody b. Jacksonville K. R., 20 Fia. 597. = Waltheri;. Warner, 25 Mo. 277. ' Buffalo E. E. V. Ferris, 26 Texas, 588. ^ Southwestern R. E. v. Southern Telegraph Co., 46 Ga. 43. Stewart v. Raymond R. R., 7 Smed. & M. 568. Irish V. Burlington R. R.,44 Iowa, 380. § 132. Right to sue not compensation. — The constitu- tional provision requiring just compensation is not satisfied by imposing upon the owner the burden of pursuing an expensive remedy, and leaving him exposed to the risk of obtaining judgment and satisf action. ^ The owner should, be free from such burden and risk.'^ It is not enough that the owner mav have his action to recover his damages.^ 1 Avery w. Fox, 1 Abb. tJ. S. 246; White v. Wabash Ry., 64 Iowa, 281. 2 Bonaparte v. Camden R. R., Baldw. 205. " Mount Washington Road, 35 N. H. 134; Piscataqua Bridge?). New Hampshire Bridge, 7 N. H. 35. § 133. Consideration of public welfare not compensa- tion. — While the public are not to lose the benefit of im- proved modes of travel, or other grent improvements, by the reluctance or obstinacy of individuals in refusing to give up their property for the public good, 3^et the public should be compelled to pay for its benefit. The burden of benefiting the public is not to be imposed upon the individual alone, and no considerations of the benefit to the public can stand in lieu of compensation.^ ' Enfleld Bridges. Hartford R. R., 17Coan. 40. § 134. Consent of authorities cannot affect the pay- ment of damages. — The grant of the legislatui-e, or of the legislative body of any of the municipal subdivisions of the 294 OF TIME AND MANNER OF COMPENSATING. § 135 state, cannot operate to transfer private property or to re- lease damages.^ Such consent and authority can only opei- ate to protect the party occupying the street or property from indictment as a public nuisance, but not against the claims of private individuals, arising from injuries to their rights.^ 1 Williams i;. Natural Bridge Plank Road, 21 Mo. 580. 2 Fletcher v. Auburn E. R., 25 Wend. 462 ; Matter of Prospect Park E. E., 15 N.Y. Sup. Ct. 30; Sinnickson v. Johnson, 17 N. J. L. 129; Morris E. E. V. Hudson Tunnel E. E,, 25 N. J. Eq. 384; Southern Pacific E. R. V. Reed, 41 Cal.256. § 135. Compensation inmoaey — Just compensation. — Nothing except money can be forced on the owner of lands condemned, in payment of his damages. ^ He cannot be compelled to take other land,^ or the bonds of the company,^ as compensation. An order on a particular fund not shown to contain any money is not sufficient ; but if the damages were set apart in the treasury for the owner, the constitu- tional requirement would be satisfied.* Unpaid acceptances are not compensation, and the owner may call for the pro- tection of a coui't of equity to secure his property until the compensation is in fact paid.^ Particular easements or con- ditions cannot be forced on the parties against their will, in reduction of damages;® and there is a very respectable showing of authorities to the efiect that a payment in bene- fits is not a payment in money, or a just compensation to the owner.' " Just compensation " and "damages" are supposed to be synonymous terras.^ Neither term is satis- fied with the simple value of a strip of land taken, when other damages have been suffered by the taking, nor by turning the owner over to litigation." Benefits are not to be included in just compensation.^" A person whose land has been taken for public use is entitled to be paid in money and cannot be compelled to accept as compensation the estimated enhancement in the value of his remaining property." Nothing can be fairly termed compensation which does not put the party injured in as good a 295 § 136 OF TIME AND MANNER OF COMPENSATING. condition as it would have been if the injury had not oc- curred.'^ In a case in New Jersey,'* the method of remu- neration provided was the issue, by the commissioners, of improvement certificates, in their own names, therein and thereby pledging the faith and credit of the cities of Jersey City and Hoboken, payable at such times as they may desig- nate, not exceeding two years from the date of issu*, bear- ing interest at the rate of seven per cent from the date of issue. Such provision was held not to be a just compen- sation. The compensation must be in money. The power to postpone the right of the owner to receive his price, for one day, or to substitute for it something other than money, is a power to postpone payment so long that the land-owner may be ruined, and to pay in something of little pecuniary- value at the time of its reception. 1 The Commonwealth u. Peters, 2 Mass. 125; Railroad Co. v. Hal- stead, 7 W. Va. 301; Woodfolk ». Nashville R. R., 2 Swan, 422; Arnold. V. Covington Bridge, 1 Duv. 372. 2 Van Home's Lessee v. Dorrance, 2 Dall. 304. 5 Hamilton v. Annapolis R. R., 1 Md. Ch. 107. ' Murphy v. De Groot, 44 Cal. 51. ^ Harness v. Chesapeake Canal, 1 Md. Ch. 248. s Railroad Co. v. Halstead, 7 W. Va. 801; Chicago R. E. v. Melville, 66 HI. 329. ' Is'om V. Mississippi R. R., 36 Miss. 300; Brown «. Beatty, 34 Miss. 227; Buffalo R. E. v. Ferris, 26 Texas, 588; Elizabethtown R. R. v. Helm, 8 Bush, 681; Sutton's Heir's v. Louisville, 6 Dana, 28; Alabama R. E. v, Burbett, 42 Ala. 83; Marcy v. Fries, 18 Kan. 353. See post, Ch. XIV. " Henry v. Dubuque R. R., 2 Iowa, 288. ° Virginia E. R. o. Henry, 8 Nev. 165. w Alabama R. R. «. Burkett, 42 Ala. 88. " St. Louis R. R. V. Anderson, 39 Ark. 167. 12 Grand Rapids R. E. v. Heisel, 47 Mich. 393. 13 Butler V. Sewer Commissioners, 39 N. J. L. 666. § 136. Bond to secure damages — Bond pending ap- peal. — The constitutions of some of the states provide that entry may be made after security is given for the pay- ment of compensation. This clause is satisfied by a bond approved by the court. An entry before bond given is a trespass.! The execution of such a bond will stay an actioa 296 OF TIME AND MANNER OF COMPENSATING. § 136 of ejectment.' Such bonds cover damages for construction, as well as of the value of the property.^ In the absence of such constitutional provision, a bond would not be just compensation. The legislature might as well declare a bond to be good compensation at the end of the condemna- tion proceedings, as at the beginning. Hence p^ossession cannot be given simply on an offer to give or on the giving of a bond.* Such an order would be void, and the owner could maintain a trespass on such entry, or might by certiorari take up the proceedings and have the order re- scinded.* A bond given in this manner would not cover damages in case the corporation abandoned proceedings.® In case the damages have been approximately ascertained by one assessment, statutes generally allow an entry to be made on giving bond to secure the payment of judgment to be obtained on appeal. An entry without the execution of such bond is illegal, and subjects the party entering to a recovery back of the premises under the forcible entry and detainer laws.' The question of the sufficiency of such bond is to be determined by the court below, and can- not be inquired into on appeal.^ The owner of property taken should not be compelled to give bond on his own ap- peal.* In case of appeal by defendant, if the company gives bond for any further compensation which the court may find and enters into possession, the reversal of judgment does not divert the possession, or render its continuance unlawful. 10 The court has no power to dissolve an injunc- tion, requiring the company to give a bond to pay any amount awarded as damages.^! 1 Dimmick v. Broadhead, 75 Pa. 464; Carr v. Georgia K. R., 1 Ga., 624. 2 Harrisburg v. Crangle, 3 Watts & S. 460. s Wadhams v. Lackawanna R. E., 42 Pa. 303. < Sanborn v. Belden, 51 Cal. 266; San Mateo Water-Works v. Sharp- stein, 60 Cal. 284; Ferris v. Bramble, 5 Ohio St. 109; Downing w. Des- Moines Ry., 63 Iowa, 177. » California Pacific E. E. v. Central Pacific E. E., 47 Cal. 528. e Davis v. San Lorenzo E. R., 47 Cal. 517. ' Mitchell ». Illinois R. R., 68 111. 286. • 297 § 137 OF TIME AND MANNER OF COIIPENSATING. " Eippe V. Chicago R. B,., 22 Minn. 44; Campbell v. Point Pleasant R. E., 23 W. Va. 448. 3 The People v. McKoberts, 63 111. 38. See, also, Nebraska E. E. v. Van Deusen, 6 Neb. 160. "> St. Louis E. E. Co. v. Karnes, 101 111. 402. " Moody V. Jacksonville R. E., 20 Fla. 597. § 137. f Entry pending- appeal. — Neither party may be satisfied with the first assessment of d;images, and may de- sire a new assessment in an appellate court, or may further desire to have questions of law settled by the courts of last resort. If an appeal is given by law, and the owner avails himself of it, he is entitled, in the absence of provisions to the contrary, to the possession of his land during its pen- dency, and to an injunction, if necessary, to protect such possession,^ even though the appraisers found that no dam- ages were suffered. J!fon constat that, on the appeal, dam- ages will be awarded. 2 The property is not taken actually until the amount assessed on appeal is paid. If the original award is deposited in court, and a less amount is found on appeal, the deposit is security ; and if a greater amount, the owner can enjoin the absolute appropriation until the amount is paid.* The payment of the judgment on appeal can be enforced with the same remedies with which the original judgment might have been enforced, although en- try has been made. The corporation may be enjoined from using the property until the amount is paid. There is a vendor's lien when property is sold, and a fortiori the doctrine should apply where property is seized in invitum, in derogation of common law. The owner, in such case, need not have recourse to ejectment, or apply to have a re- ceiver appointed. His best remedy is injunction until the damages are paid.* The pendency of an appeal from damages awarded, does not prevent a town from going on with the alteration proposed.^ 1 Eidemiller u. Wyandotte, 2 Dill. 376; Kansas City v. Kansas Pacific E. W., 18 Kan. 331; Chambers v. Cincinnati ft. E., 69 6a. 820; Lake Erie Ey. V. Kinsey, 87 lud. 514. " Trustees v. Davenport, 7 Iowa, 213. 298 • OF TIME AND MANNER OF COMPENSATING. § 138 s Peterson v. Fereby, 30 Iowa, 327. ■• Evans v. Missouri E. E., 64 Mo. 453. ' Messer v. Wildman, 53 Conn. 494. § 138. Deposit pending an appeal. — In order to allow ■the work of construction to proceed during the pendency of an appeal, a provision is generally made that a deposit of an amount sufficient to cover the original judgment shall be made.^ If this deposit is not made, and an effort is made to enter, such entry may be restrained by injunction. An offer, in the injunction proceedings, to deposit the highest probable amount, in order to have the injunction dissolved, will not avail. The deposit should be made in the original proceedings.^ The fact that a higher amount was awarded on appeal does not make the corporation trespassers ab initio.^ In a leading case in Kansas,* the court says (Brewer, J.): "We are met with the objection that the appeal sets aside the award of the commissioners ; that there then exists no adjudication of the amount of compen- sation; that upon the trial of the appeal it not infre- quently happens that the jury award a much higher sum than the commissioners, and that if the railroad company be already in possession of the land, having constructed its road over it, it may result that the railroad appropriates the land without prior payment or deposit of the compensa- tion. To that we reply, that the land-owner is under no obligation to appeal. His compensation has been deter- mined bv a competent and constitutional tribunal, and the amount of that compensation is paid or deposited for him, and hence he has no right to complain if, at his own volition, he initiates further proceedings. Secondly, the occupation of land by the railroad, pending the appeal, is provisional merely ; its entry is not a permanent appropriation of the right of way, and it acquires by such entry no vested rights. It takes upon itself all the risks of the final award by the jury on appeal. If the verdict of the jury and the judg- ment of the court exceed the award of the commissioners, the railroad company must promptly pay such increased 299 § 138 OF TIME AND MANNER OF COMPENSATING. amount, or the land-owner may maintain ejectment." The company is not obliged to make deposit on appeal ; it cart appeal without ; the object of the deposit is to enable the company to take possession immediately. If on appeal the judgment is for less the company has had the use of the land to compensate it for the excess of money deposited. The loss of interest on this excess is a misfortune which it must bear.® Where a deposit is authorized to be made for the use of the land-owner, a deposit of the amount of an award of damages is unavailing if a condition is imposed respect- ing the payment of the money deposited to the owner.* An appeal after the company has taken possession, does not affect either the title or right of possession of the company, but only the amount paid by it. If on a second appraisal the damages should be reduced, the company would be en- titled to have the difference refunded. If it should be increased the company would be bound to pay the increased amount and it would become a lien upon the land.^ The deposit, pending the appeal, belongs to the owner, and can- not be retained by the court. The owiier has a right to the use of the money or the land, and the company might not be liable for interest as the amount was deposited, or might not be able to pay at the end of the litigation. Hence in a suit against a judge for retaining the deposit pending the appeal, the owner recovered judgment for the amount of the deposit.* The question whether, after a deposit of the amount of an award, an appeal with bond will prevent the land-owner from receiving the deposit is considered in the case of State v. Lubke, Judge,' where the court holds that it is unconstitutional, if a company may, by filing exceptions to the award, after having acquired the right to enter on the land by paying the damages awarded, tie up the fund in court and at the same time take the land. The meaninsr of the section permitting appeal is that the corporation shall not disturb the property or divest the proprietary rights of the owner until the compensation, ascertained by 300 OF TIME AND MAXNER OF COMPENSATING. § 138 .-a jury, or by a board of commissioners, sliall either be paid "to the owner or be paid into court for the owner. The -clause permitting payment into court for the owner was evidently intended as a provision for cases where the owner might refuse payment when tendered, or might be unknown or not sui Juris. Its meaning cannot be that the corpora- tion may make a deposit in court, take the land and then litigate the question of the amount of compensation with the owner, and by long delays harass the owner into com- pliance with its desires. The difference between payment and deposit in court is vital. T^he constitution means that if the railroad company is not satisfied with the award which the commissioners have made, it must delay taking the land until the amount of damages to be paid is finally set- tled. It cannot take the land and give the land-owner in ex- change for it a lawsuit which may not terminate for years. No supposed public inconvenience which may result from the delay in building the road is to be considered. It has been said by an eminent equity judge : " The company may come to terms with him (the land-owner) if they can, but if they cannot, and are unai)le to comply with the act with- out closing the railroad, much as such a result may be to be regretted, they must close it." In many jurisdictions it has been held, that payment of compensation need not actually precede the taking, but it is sufficient that compensation be actually secured by a de- posit of money in court. Such was the law in this state (Missouri), prior to the adoption of our present constitu- tion, but our bill of rights has changed this. Similar consti- tutional provisions exist in other states, and their courts have not hesitated to hold that a statute permitting a cor- j)oration to take the land before payment has been made is unconstitutional and void. The payment of the sum awarded into coui-t cannot be regarded as other than an adoption and satisfaction of the award of the commission- ters, unless the taking of the land be regarded as au inde- 301 § 139 OF TIME AND MANNER OF COMPENSATING. pendent and collateral trespass. The proceeding was. substantially ended when the railroad company paid the award to the clerk of the court and entered into possession by virtue of such payment. The court lightfully ordered it paid to the land-owner. Where there is no statute in re- gard to the matter, the land-owner is not deprived of his right by a deposit pending appeal.^" When the act author- izing the taking of land provided that land should not be taken until a certain deposit as security for damages should be made, a deposit of one hundred and thirty-eight United States bonds for the amount named was held good. A. deposit of bonds being equivalent to a deposit of money, when accepted as such by the officer authorized to receive the deposit, owners of land have no ground of complaint on this account." 1 Matter of New York Central R. R., 60 N. Y. 116; Evans i!. Missouri Ry., 64 Mo. 453; Dowoing v. Des Moines Ry. Co., 63 Iowa, 177; Republi- can Valley R. R. v. Mnk, 18 Neb. 82 ; St. Louis Ry. v. Evans & Howard Brick Co., 85 Mo. 307; Denver R. R. v. Lamborn, 8 Col. 380. " Eidem-lleri). Wyandotte, 2 Dill. 376. 3 Schulcri). Railroad, 3 Whart. 555; Terra Haute R. R. v. Crawford,. 100 Ind. 550. * Central Branch Union Pacific R. R. v. Atchison R. R., 28 Kan. 458. ' Noble V. Des Moines Ry., 61 Iowa, 637. s Kanne v. Minneapolis Ry. Co., 30 Minn. 423. ' New Tork Ry., matter of, 94 N. Y. 287. 8 Meily v. Zurmehly, 23 Ohio St. 627; Meyer v. Milwaukee R. R., 5T Wis. 329. ° 15 Mo. App. 152 (quoted in substance). i» Toledo Ry. v. Dunlap, 47 Mich. 456. " Briggs V. Cape Cod Ship Canal Co., 137 Mass. 17. § 139. Tender pending an appeal. — The corporation may not desire to await the end of the litigation, when the owner appeals, and hence it is provided that an entry may be made if the compensation already assessed is tendered, notwithstanding a reassessment has been or may be ordered.^ The amount found due on appeal must be paid^ before the title passes, and if that is not paid, the owner may have ejectment* or trespass. ^ A tender of the amount found due below does not pass the title, as it cannot 302 OF TIME AND MANNER OF COMPENSATING. § 140 be known what is the proper amount to tender until that is determined on appeal.* Besides, in case the owner appealed, the tender might be withdrawn by the corporation and proceedings discontinued.* If the company is dissatis- fied with the award, it may tender the amount and enter, and still appeal the qiieslion of damages.* The correct amount must be tendered, and if there is a dispute pending as to whether the interest and costs should be added a court of equity will enjoin the entry until it is decided whether a full tender has been made; but the court would release the injunction on payment into court of the amount, with the disputed interest and costs, which interest and costs should be paid to the owner if so adjudged.' 1 Somerville R. E. o. Doughty, 21 N. J. L. 442 ; Levering v. Philadelphia E. E., 8 Watts & S. 459; Mercer v. Williams, Walk. Ch. (Mich.) 85; Lake Erie Ey. v. Kinsey, 87 Ind. 514. ' Levering v. Philadelphia E. E., 8 Watts & S. 459. » CoIvIUb. Langdon, 22 Minni 566. * Colvill V. Langdon, 22 Minn. 565. * Blackshire v. Atchison E. E., 13 Kan. 614. ' Indianapolis E. R. v. Brower, 12 Ind. 374; People v. Syracuse, 78 N. Y. 56. ' Mettler v. Easton R. E., 25 N. J. Bq. 214. § 140. Waiver of prepayment by allowing entry to be made. — The owner may, by his action, waive his right to the prepayment of damages. The courts should not be in- genious in drawing inferences of a waiver, where corpora- tions are to be benefited, which would be scouted were natu- ral pel-sons concerned. The fact that the public would be discommoded by the owner's persistence adds nothing to the presumption of waiver. The public have no interest in a completed public improvement which should cause the rights of the owner of land to be disregarded. * Slight acts of acquiescence on the part of the owner will estop him from interfering with the running of a railroad. He will not be deprived of his claim for damages, or his right to enforce it in all proper modes ; but if he has, in any sense, for the shortest periods clearly given the corporation, either by his 303 ^ 141 OF TIME AND MANNER OF COMPElS^SATING. express consent or by his silence, to understand tliat he did not intend to object to their proceeding with the construc- tion and operation, he cannot, on non-payment of compen- sation, maintain ejectment. If there was a waiver in fact, either express or implied, by acquiescing in the proceedings of the company to the extent of not insisting upon prepay- ment as a condition precedent, but consenting to let the damages lie and remain a mere debt, with or without a lien upon the road-bed, then it is impossible to regard the cor- poration, in any sense, in the light of trespassers, or liable in ejectment.^ The inquiry should be, What is the fair in- ference from the conduct of the parties ? If the owner was not present, and therefore could not object he might still maintain his action of ejectment on non-payment of damages. The owner is not bound to be present and object.' 1 Evans v. Missouri E. K., 64 Mo. 463. ' Provolt V. Cliicago B. R., 57 Mo. 256;. Smart v. Portsmouth K. R., 20 N. H. 233; McAulay v. Western E. E., 33 Vt. 311; Galveston E. E. v. Pfeuffer, 56 Texas 66; Griffin v. Augusta E. E. 70 Ga. 164; Bourdier v. Morgan's R. E., 35 La. An. 947; St. Julien v. Morgan E. E , 35 La. Au. 924; Ruschi;. Milwauliee Ry., 54 Wis. 136; Kannec. Minneapolis Ey., 33 Minn. 419; Milwaukee E. R. v. Strange, 63 Wis. 178; Taylor v. Chicago Ry., 63 Wis. 327; Hanlin», Chicago Ey., 61 Wis. 515. 3 Walker v. Chicago E. R., 57 Mo. 275. § 141. Continued assent to use. — Although there may be defect in the condemnation proceedings, yet if the owner does not prevent the execution of the work, and stands by for years and allows the company to make valuable improve- ments on the land, the law would protect the company in the enjoyment of the property used in connection with such occupation, and if compelled to leave the premises by proper proceedings, would permit such property to be removed.^ The owner may by inaction estop himself from maintaining an action of ejectment, but may cause the company to be placed in the hands of a receiver until the damages are paid from the earnings.' No assent to use will carry the title when compensation has not been paid.* After an entry has ibeen made without opposition, the owner cannot take advan- 304 OF TIME AND MANNER OF COMPENSATING. § 142 "tage of formal errors, such as the omission of the company to have a certificate of survey properly recorded,* or of selectmen to file certificate of opening,' An injunction will not lie until all the ordinary means of obtaining the indem- nity are tried and have proved unsuccessful,* and especially it parties have slept on their rights and failed to disclose their titles.^ The owner cannot stipulate to be entitled to an injunction in case of failure of company to fulfill its con- tracts after an entry has been made.* A change of use from a canal to a railroad, if acquiesced in by an owner, cannot give such owner a right to an injunction to prevent the operation of the road. The remedy must be at law.' ' Dietricli». Murdoch, 42 Mo. 279; Griffin©. Augusta R. B., 70 Ga. 164; Baltimore E. R. v. Algire, 63 Md. 319. ^ Provolt V. Chicago E. R., 57 Mo. 256 ; McAulay v. Western E. R., 33 Vt. 311 ; 2 Redf. Am. Railw. Cas. 253; Evans v. Missouri By., 64 Mo. 453. ' Evansville R. R. v. Grady, 6 Bush, 144. * TroyR. R. v. Potter, 42 Vt. 265. 5 Felch V. Gilman, 23 Vt. 38. ' Hentz V. Long Island B. E., 13 Barb. 646, referring to case of Hodg- iinson v. Long Island E. E. (unreported). , ' Boss 17. Elizabethtown E. E., 2 N.J. Eq. 422; Scudder j>. Trenton Falls Co., 1 N. J. Eq. 694; Baltimore B. B. v. Strauss, 37 Md. 237; Slo- cum V. Chicago Ey., 57 Iowa, 675. 8 Coe V. Columbus B. B., 10 Ohio St. 37S. 9 Goodin v. Canal Co., 18 Ohio, 169. § 142. Where original entry is lawful — Delay in per- fecting title. — After a lawful entry has been made by the consent of the owner, or on a tender made, the parties entering cannot be considered as trespassers, although they afterward fail to pay the award. There may be an action for the money due, but not in trespass. • An original Sntry by the consent of a tenant for life is lawful, and will not subject the party entering to an action of ejectment on the part of the remainder-man, although damages have not been paid. Other remedies must be sought.* An agree- ment to take land-damages in stock foregoes the right to have the damages ascertained before entry, and prevents 1;he owner from hindering the progress of the work, or 20 305 § ]42 OB" TIME AND MANNEK OF COMPENSATING. claiming a lien on the roadway, or of pursuing an action of ejectment.' The owner cannot obstruct the road although the damages have not been paid.* The consent to enter must be acted on, or the license may be revoked." Such consent cannot be implied.* Ejectment will not be per- mitted when the original entiy was under a constitution which did not require prior compensation. The damage* must be paid, but cannot be recovered in that action.' Although consent was originally given, the owner has been held entitled to ejectment on notice of the intention to bring such action in the event, that the damages were not paid,' but there would be no eviction until a refusal to pay after reasonable notice given.' If the consent had not been originally given, the company would have proceeded with a regular condemnation, and it would be a harsh measure to enjoin the operation of the public improvement under such circumstances.^" Opportunity should be given the company to acquire the title and pay the damages, especially where the title has not passed on account of defects in the con- demnation proceedings which were instituted in good faith,"^ and in such case the judgment might be that the injunction should not issue if the defendant forthwith institutes pro- ceedings to condemn, and promptly prosecutes the same, — otherwise to be granted.^'' Notwithstanding the original entry is lawful, yet the company may be guilty of such de- lay in perfecting the title and paying the damages as to render it a trespasser ab initio."^ J Rossiterij. Eussell, 18 N. H. 73; LoaisvlUe R. R. v. Thompson, 18 B. Men. 735; Texas R. R. v. Jarrell, 60 Texas, 267; Tompkins v. Augusta E. R. 21, S. C. 420; Kittrell v. Railroad, 56 Vt. 96. 2 Austin D.Rutland R. R., 45 Vt, 215; Galveston R. R. v. Pleuffer, 56 Texas, 66. s Knapp V. McAuley, 39 Vt. 275; McAulayu. Western R. R., 35 Vt. 311. * Chapman v. Gates, 54 N. Y. 182. ' Miller v. Auburn R. R., 6 Hill, 61. When the license has been acted on, it cannot be revolted. Knapp v. London, etc., Rail. Co., 32 L. J. (Exch.) 236; Doe d. Hudson v. Leeds Rail. Co., 20 L. J. (Q. B.) 486. » Terre Haute R. R. v. Scott, 74 Ind. 29. ■ ' Den i>. Morris Canal Co., 21 N. J. L. 587. 306 OF TIME AND MANNEK OF COMi'ENSAT^^■G. § 143 9 Smith V. Chicago B. B., 67 111. 191 ; Chicago B. B. v. President Knox College, 34 111. 195; Philadelphia B. B. v. Cooper, 105 Pa. St. 239. » Chicago B. B. v. President Enox College, 34 111. 195. 1" Vilas t>. Milwaukee B. B., 15 W\a. 233; Pettibone v. Lacrosse R. B.^ 14 Wis. 443. " Lohman v. St. Paul E. E., 18 Minn. 174. " Harrington v. St. Paul B. B., 17 Minn. 215; Pisher v. Chicago B. B.^ 104 Ili. 323. " Bloodgoodi). Mohawk B. B., 14 "Wend. 51; Kendall v. Eailroad, 55 Vt. 438. § 143. Acquiescence not a waiver of damages. — Al- though an ovvaer may acquiesce in the location of a road, and accommodate his fences to the new road, yet that will not constitute a waiver of a reassessment of damages by a jury.* Acquiescence must be continued for the statutory time of limitations to constitute a bar to an action i'or the recovery of the premises. There is no presumption that a trespass is a benefit ! or that it has been waived by allow- ing its continuance.' Where the title does not puss until payment, the owner does not waive liis title or occupation from the mere fact that the company has entered without payment, nor from the fact that the owner has appealed from the award. By appealing he gives notice that a larger amount must be paid before the title shall pass ; and if entry is made under such circumstances, the owner may maintaia ejectment,^ and in some cases have an injunction.* The court, however, would grant a reasonable stay of proceed- ings, to give time for the corporation to pay the damages and interest ; and, if that is not done, possession would be siven." A license to enter constitutes no waiver of an ob- jection to the validity of an award." 1 Endicott, petitioner, 24 Pick. 339. » Chicago V. Wright, 69 111. 318 ; Toledo E. B. v. Darst, 61 111. 231 (qual- ifying Curry «. Mount Sterling, 15 111. 320); Ferris v. Ward, 9 111.499, where it was presumed that the damages were waived because they were not claimed. ' St. Joseph E. E. v. Callender, 13 Kan. 496. * Richards v. Des Moines R. R., 18 Iowa, 259; Blanchard v. Maysville Turnpike, 1 Dana, 86. 307 § 144 OF TIME AND MANNER OF COMPENSATING. ' Conger v. Burlxngton R. R., 41 Iowa, 419; Hlbbs ». Chicago B. S., 89 Iowa, 340. ' Kanne v. Minneapolis Ry., 33 Minn. 419. § 144. Lilen on land for compensation — Change of cor- porations — Subsequent purchase of franchise. — Some authorities argue that, as a condeaiuation is a forced sale, there remains a lieu ou the land for the unpaid purchase- money, which would follow the land into the hands of a subsequent purchaser of the franchise.^ If no title passes until compensation is paid, the subsequent purchaser or mortgagee would only take the interest of his vendor or mortgagor, which would be the land subject to the claim of the original owner, and the operation of the improvement may properly be enjoined until the compensation is paid, especially where the original corporation is insolvent.' The owner would have a lien for land damages and for dam- age for refusal to construct the road according to contract, ■even against a subsequent purchaser of the road.^ The sale or mortgage of its property by a corpor:ition does not affect the right of the owner to his compen-< itioa unpaid. Al- though the trespass of entry without compensation may be waived, the claim for damages is not waived, and the cor- poration in possession of and operating the improvement must pay the damages, unless they can show some conduct of the owner estopping him from setting up such claim,* and the purchasing company may be enjoined from opera- tion until the damages are settled." A mortgage can only cover the interest of the mortgagor, and if the title has never passed from the original owner, for the reason that the compensation has not been paid, he may enjoin the operation of the road until his compensation is paid. There can be no innocent purchaser from him who never had a title.* The lessee of a railroad is in no better position than the lessor. Both may be enjoined.' The old debts and judgments against a corporation which has sold out its property cannot be enforced, as such, against the corpora- tion which succeeds it, but the operation of the improve- 308 OF TIME AND MANNER OF COMPENSATING. § 144 ment constructed over the land of an owner whose damages have not been paid may be restrained until that compensa- tion is paid.' There may be such a delay in asserting the claim that it will not be considered by the courts. In Michigan, a delay of eight years after a sale of a railroad by the state was held to prevent maintaining a claim against the purchaser.' In Wisconsin, it is considered that no de- lay, except for the statutory limitation against real, not civil, actions, would operate to bar a claim or raise the pre- sumption of a waiver.^" Such sales are ordinarily made by insolvent corporations, and it would be a hardship to raise a presumption of waiver against an owner, short of the limitation for real actions. "Where the company taking the land is bankrupt, the owner may proceed in chancery ; he is not obliged to go on in law, and get judgment only to find it worthless." The Pennsylvania constitution of 1838, art. VII., sec. 4, is as follows: "The legislature shall not in- vest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of said property, or give adequate security therefor, before such property shall be taken." Further legislation provided for a, bond, which was to be approved by the court and filed in court, for the benefit of those interested. The Southern Pennsylvania Iron and Railroad Company gave bond which was satisfactory to the court, and entered. Subsequently their property and franchises were sold out under a mortgage, and bought in by the Southern Pennsyl- vania Railroad and Mining Company. The owner obtained' a judgment on his assessment of damages, and attempted to levy out of the property held by the purchaser at the mortgage-sale. The Supreme Court of Pennsylvania held that the purchaser took a clear title, unincumbered by any lien, and the land-owner was remitted to his action on the boml.i^ 1 Adams v. Kailroad, 67 Vt. 240; Drury v. Midland R. R., 127 Mass. 671 ; Kittrell v. Railroad, 56 Vt. 96 ; Phlladelpliia R. R. «. Cooper, 105 Pa, 309 § 145 OF TIME AND MANNER OF COMPENSATING. St. 239; Doctrine denied in Forward v. Hampshire Canal Co., 22 Pick. 462; The People v. Michigan Southern E. E., 3 Mich. 496. This is the Dnglish doctrine. Sedgwick v. Walford Eail. Co., 36 L. J. (Ch.) 379; Viner v. Hoylalie Rail. Co., 17 W. E. 92. . 2 White V. Nashville E. E., 7 Tenn. 518; Dayton E. E. ii. Lewton, 20 Ohio St. 401. Or a receiver of the income may be appointed. Pell v. Northampton Eail. Co., L. E. 2 Ch. Ap. 100; Lewes v. Cambrian Eail. Co., 36 L. J. (Ch.) 505. s Dayton E. E. v. Lewton, 20 Ohio St. 401; Buffalo E. R. v. Harvey, 107 Pa. St. 319. ■* West Pennsylvania E. E. v. Johnston, 59 Pa. 290. Consent to en- ter does not waive the lien. Munns v. Isle of Wifiht Eair. Co., 17 W. E. 1081; Adams v. Eailroad, 57 Vt. 240; New York Ey. v. Stanley's Heirs, 35 N. J. Eq. 283 ; s. c. 34 N. J. Eq. 55. ' Gilman v. Sheboygan E. E., 40 Wis. 653; Dayton E. E. v. Lewton, 20 Ohio St. 401. ' White V. Nashville R. R., 7 Tenn. 518; Gilman v. Sheboygan E. E., 40 Wis. 653; Pfeifer v. Sheboygan K. E., 18 Wis. 155; Lycoming Gas and Water Co. v. Mayer, 99 Pa. St. 615. ' Hibbs V. Chicago E. E., 39 Iowa, 340. Especially if the lessee is a ioreiga corporation. Holbert v. St. Louis E. R., 45 Iowa, 23. 8 Gilman v. Sheboygan E. E., 37 Wis. 319. » The People v. Michigan Southern E. R., 3 Mich. 496. 1" Gilman v. Sheboygan R. E., 37 Wis. 319. •»i Parker v. East Tenn. E. E. Co., 13 Lea. 669. ^ Fries v. Southern Pennsylvania E. E. and Mining Co., 85 Pa. 73. § 145. Kefusal of oflQcers to pay compensation as- sessed. — On refusal of public officers to pay damages which have been assessed, they may be compelled by man- damus to pay the damages,^ or to levy taxes and collect the damages,^ or to issue the bonds authorized for that purpose,' or to draw the proper vouchers* or warrants,' or to audit the accounts and collect the damages.* In such e.n action the condemning party cannot dispute the correctness of the amount awarded, or take advantage of any irregularities in the proceedings,^ especially when possession has been taken. Irregularities in proceedings, errors in amount of award, fraud or misconduct of officers, cannot be set up as a de- fense to such an action, as the proper remedy would have been an appeal in the original proceedings.* If the road has never been opened or used, and there were irregulari- ties in the laying out, a mandamus would not lie to compel 310 OF TIME AND MANNKR OF COMPENSATING. § 146 the payment of the damages.' When the amount has been jiscertained, a direct suit maybe brought against the city or town for the amount appropriated for the payment of dam- uges." 1 Treat v. MLddletown, 8 Conn. 243 ; Justices v. Jefferson, 1 Coldw. 419; The People v. Lowell, 9 Mich. 144. ' Johnston v. Supervisors, 19 Johns. 272; Miller v. Bridgewater, 24 N. .J. L. 54; Higgins v. Chicago, 18 111. 276; Brock v. Hisheii, 40 Wis. 674; The State v. Keokuk, 9 Iowa, 438. ' Duncan v. Louisville, 8 Bush, 98. * Ryan v. Hoffman, 26 Ohio St. 109. ' Eudisill V. The State, 40 Ind. 485. ■> The State v. Wilson, 17 Wis. 687. ' Higgins V. Chicago, 18 111. 276; The People v. Lowell, 9 Mich. 144. » The People v. La Grange, 2 Mich. 187; Higgins v. Chicago, 18 111. 276. » The People v. Scio, 3 Mich. 121. 1" Mayor v. Hichardson, 1 Stew. & P. 12; Allen v. Williams, 33 N.J. Eq. 684; Mayor v. Gardner, 33 N. J. Eq. 622. § 146. Payment to wrong claimant. — The true owner must be compensated, and payment to another, although made in good faith, is no defense to the action of the, owner,^ and no entry could be made on proceedings which ignored the true owner .^ The true owner, by afterwards suing for damages, affirms the seizure, and treats the action -of the condemning party as he might treat a conversion of personal property.^ Payment to one tenant in common does not operate to divest the title of the other tenant, or his claim for damages.* The condemning party may call on the claimant to show his title. Title is one of the ques- tions to be tried as between the condemning party and the •claimant. If the claimant has no title, he should receive no damages. Although the name may be inserted in the list of the owners, he could not recover damages unless he was in fact the owner.* 1 Missouri R. R. v. Owen, 8 Kan. 409; Tamm v. Kellogg, 49 Mo. 118. 2 Hood V. Finch, 8 Wis. 381. 3 Tamm ». Kellogg, 49 Mo. 118. * Brinckerhoff v. Wemple, 1 Wend. 470. » Costello V. Burke, 63 Iowa, 361 ; AUyn v. Providence R. R., 4 R. I. 457. 311 §§ 147,148 OF TIME AND MANNER OF COMI'ENSATING § 147. Refusal to take money — Failure to claim. — If the owner refuses to take the compensation awarded, the court may order the amount to be paid into court for his use, and thereupon the condemning party is justified in entering on the premises.' After such deposit, the title passes, and no refusal on the part of the owner, or protest, will constitute the condemning party a trespasser.^ If the owner obstructs the progress of the work, he will be liable criminally ; but an injunction will not be granted because he has refused to receive the money and threatens to obstruct the road.* A claim for damages is not to be presumed, but must be made at the proper time, so that if the authorities think the payment of damages too great a sacrifice for the benefits to be obtained, they may abandon, and locate else- where.* 1 Evans v. Haefner, 29 Mo. 141 ; Montgomery R. E. b. Walton, 14 Ala. 207. » Hueston v. Eaton E. R., 4 Ohio St. 685; Johnson v. Joliet E. E., 23- III. 202. 3 Montgomery E. R. v. Walton, 14 Ala. 207. • Ferris v. Ward, 9 111. 499. § 148. Ownership of improvenients made during un- lawful occupation. — We have seen that in most states the title does not pass until compensation made, and that an entry made before that time is a trespass. A trespasser is not entitled to any benefit for improvements made on the land during the time of his occupation. Houses erected on the land of another belongs to the owner, without compensa- tion to the party erecting, except where legislatures have granted relief to those who have made improvements on land in good faith, believing they had good title. The rule follows, that all erections belong to the owners, and cannot be removed by the parties placing them there; and hence on a subsequent condemnation the value of the land, with the structures also, must be paid.' Such improvements cannot be said to be made in good faith.' A purchase of the equity of redemption of a mortgagor in possession, and 312 OF TIME AND MANNER OF COMPENSATING. § 148 iin entry thereunder would give the corporation the right to the improvements, so that it would not be compelled to answer for the valu^ of the improvements on a subsequent foreclosure of the mortgagee and condemnation of his inter- est.* An entry made after condemnation proceedings have been commenced, which were afterward abandoned, is of such a nature that the company, on a new condemnation, would not be compelled to pay for the value of the struct- ure put upon the land at the time of the former entry.* If the owner knew that the improvements were being made, and remained willfully passive, equity will not allow him to profit by the mistake, but will give hini the value of the land, but not of the improvements.* lu a recent case in Wisconsin, the court enunciates the following rule : "Where the company has built its road over the land of another, without authority, and proceedings are afterward taken to condemn the land, the measure of the appraisement is the value which the land taken would now have if the road had not been constructed upon it, together with the difference between the present value of the owner's contiguous land with the road where it is, and what would have been its present value if the road had not been built ; and in deter- mining the damages under the aVmverule, the condition and value of the land as it was just before the road was con- structed may be considered as evidence." ® The same ques- tion arose in Pennsylvania, in the case of Justjne v. Nes- quehoning Valley Railroad Company,' and Agnew, J., enunciated the following doctrine : " This is not a case of mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter and to place these materials on the land taken for a public use, — materi- als essential to the very purpose which the state had de- clared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to wit, to make compensa- 313 § 148 OF TIME AND MANNER OF COMPENSATING. sation or to give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend be- yond his injury. It cannot extend to taiiing the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, hot to what he had not. Then, why should the materials laid down for.the benefit of the jDublic be treated as dedicated to him? In the case of a ■common trespasser, the owner of the land may take and keep his structures nolens volens; but not so in this case, for though the original entry was a trespass, it is well set- tled that the company can proceed in due course of law to appropriate the land, and, consequently, to reclaim, and avail itself of the. structures laid thereon." If the ties and rails increase the value of the land, they are to be consid- ered in determining the amount of damages ; but if the farm was in no way benefited or enhanced in value by the ties and rails being laid across it, no deduction from the damage done to the farm should made on account of the value of the ties and rails.* When a grade is constructed by a previous company and abandoned, >-uch grade becomes the absolute property of the owner. He has the right to use it for any purpose which he may choose. If any other per- son or corporation afterwards enters upon the land and procures a right to such grade by virtue of condemnation Ijroceedings, the owner has the right to recover from such person or corporation the full value of the land taken, in- -cludingthe value of the grade. The owner has no right to re- cover the cost of making the grade nor the benefit which it will be to the second company.^ The English Lands Clauses Con- solidation Act provides that the company shall not be dis- turbed in its possession by claimants setting up title to lands, when the company, by mistake or inadvertence, have omitted to purchase such interests. The interests, when discovered, must be promptly purchased ; but the improve- ments would not belong to the claimants, but they should 314 OF TIME AND MANNER OF COMPENSATING. § 148 be compensated for their interest at the time of the taking. The company must show that through a mistake or inad- ■vertence they had failed to pay compensation for the in- terest, i" 1 Matter of Long Island E. E., 6 N. Y. Sup. Ct. 298; Graham v. Con- aersville, 36 Ind. 463; Hibbs v. Chicago E. E., 39 Iowa, 340. In United States V. Tract of Land, 47 Cal. 515, the government was compelled to pay, in addition to the value of the land, the value of a light-house erected on an entry without condemnation. ' Graham v. Connersville E. E., 36 Ind. 463. » Kennedy v. Milwaukee E. E., 22 Wis. 581. * California Pacific E. E. v. Armstrong, 46 Cal. 85. s Emerson v. Weston E. E., 75 HI. 176; Grave v. First Div. H. E., 26 Minn. 66; Indiana Ey. v. Allen, 100 Ind. 409. 6 Lyon V. G. B. & M. E. E., 42 Wis. 538. ' Eeported In 18 Alb. L. J. 171. 8 Schroeder v. DeGraff, 28 Minn. 299. » Cohen v. St. Louis E. E., 34 Kan. 158. '" Hyde v. Mayor of Manchester, 5 De G. & Sm. 249; Martin v. Lon ■don, etc., Eail Co., L. E. I Eq. 145; 35 L. J. (Ch.) 795; 8 & 9 Vict., c. 18, § 125. 315 § 149 , OF BENEFITS AS COMPENSATION. CHAPTEE XV. OF BENEFITS AS AN ELEMENT OF COMPENSATION. § 149. Power to deduct benefits from compensation. 150. Classes of benefits. 151. Payment in benefits. 152. Benefits allowed in reduction of damages must be direct and pe» culiar. 153. General benefits not to be considered. ' 154. Benefit to railroad of establistiment of a highway. 155. From what time shall benefits be calculated. 156. Privilege of giving up entire lot and escaping assessment. 157. Where use of property is limited — Increase of business — .B*- pert testimony. 158. Setting off benefits against disadvantages. § 149. Power to deduct benefits from compensation. — This power must pioperly be considered as belonging to that of eminent domain, rather than to that of the taxing power.' When no property is actually taken from the sub- ject, and he is called upon to contribute his share of the expense of a public improvement, the call made upon him is properly a tax.^ When property is taken, and there is deducted from the value of the property taken, and of the incidental damages suffered, the benefits to the land remain- ing, that must be considered as a step in the process of arriving at the just compensation required to be made when property is taken by the exercise of eminent domain.' Constitutions do not generally provide that the value of the land shall be paid, but that just compensation shall be paid, — just as regards the public as well as the individual.* The taxation of benefits does not affect the indemnity. ' It often happens that one may by taxation pay a certain por- tion of a claim he may have against the state ,^ and it is proper to settle the mutual accounts of the public and the owner in one transaction.® The legislature cannot fix the amount of benefits. That is to be arrived at by a judiciaL 316 OF BENEFITS AS COMPENSATION. § 149 proceeding similar to that used in ascertuining damages^ Of later years the tendency has been to define by constitu- tional and legislative enactments the limitations to which benefits may be set off in reduction of damages, and gen- erally with the result that benefits shall not be allowed to be set off against the value of the land taken.' The Illinois Constitution of 1867, art. II., sec. 13, and the Missouri Constitution of 1875, art. II., sec. 21, provide that private property shall not be taken or damaged without just compen- sation, and this section has been held to exclude the set-off of all benefits and advantages.^ This proceeds on the doctrine that, in the absence of the constitutional provision, benefits may properly be set off against disadvantages, but that when payment for damages is required by the constitu- tion, benefits cannot be set off against the damages. Pay- ment must exclude the idea of set-off. The Constitution of Kansas provides, in art. XII., sec. 4, that compensation, irrespective of benefits, shall be made for rights of way taken for corporations. This is held to leave the common rule of setting off benefits against damages in opening highways still in force. ^^ Although there may not, under the late constitutions, be a setting-off of benefits against the damages, there still may be a tax assessed locally on the property of the owner remaining, as well as on all other property in that locality, to pay for the improvements ; and Such taxation is not an evasion of the constitutional pro- vision prohibiting benefits, the taxation being uniform." 1 Cooley, in Constitutional Limitations, 569, considers the opinion of Leonard, J., in Newby v. Platte County, 25 Mo. 258, to the point that the right to assess benefits should be referred to the taxing power, as unnecessary, and indeed somewhat diflScult on principle. The assess- ment of benefits has been considered as taxation, when set off against incidental damages. Holton v. Milwaukee, 31 Wis. 27. » Garrett v. St. Louis, 25 Mo. 505; Palmyra v. Morton, 25 Mo. 593; Striljer v. Kelly, 7 Hill, 9 ; Astor v. Mayor of New York, 6 Jones & Sp. 589. 2 Nichols V. Bridgeport, 23 Conn, 189; Trinity College v. Hartford, 32 Conn. 452 ; Root's Case, 77 Pa. 276 ; The State v. Graves, 19 Md. 351 ; James River Co. v. Turner, 9 Leigh, 313; Page v. Chicago R. R., 70 111. 324, Pepriav. Kidder, 26111. 351; San BranciscQ R. B. v. Caldwellj 81 317 §§ 150, 151 OF BENEFITS AS COMPENSATION. Cal. 367; California Taciflc R. R.U.Armstrong, 46 Cal.85; Harlow «^ Marquette R. E., 41 Mich. 336 Genet v. City of Brooklyn, 99 N. Y. 296. * Chesapeake Canal Co. v. Key, 3 Cranch C. Ct. 599 ; Betts v. Williams- burgh, 15 Barb. 255; San Francisco R. K. v. Caldwell, 31 Cal. 367. ■> Dorgan v. Boston, 12 Allen, 223. •• Dorrance St., 4 R. I. 230; Loweree v. Newark, 38 N. J. L. 151; Mc- Mastersij. Commonwealth, 3 Watts, 292; Whiteman's Executors «. Wil- mingtod R. R., 2 Harr. 514. ' Carson v. Coleman, 11 N. J. Eq. 106. An assessment of the entire expense of an improvement upon land benefited would be unconstitu- tional if the expense was greater than the actual benefit to the land. Tide-Water Co. v. Coster, 18 N. J. Eq. 518; s. c. 18 N. J. Eq. 54. 8 Const. Texas, art. I., § 14; Paris v. Mason, 37 Texas, 447; Buffalo E. E. V. Ferris, 26 Texas, 588; Const. Ark., art V., § 48; Whitehead «. Arkansas R.E., 28Ark. 460; Elizabethtown E. E. v. Helm, 8 Bush, 681; Henderson E. E. v. Dickerson, 17 B. Mon. 173; Jacob v. Louisville, 9 Dana, 114; Sutton's Heirs v. Louisville, 5 Dana, 28; Grand Rapids E. E. V. Horn, 41 Ind. 479 ; Whitewater R. E. v. McClure, 29 Ind. 536 ; McMahon V. Cincinnati R. R., 5 Ind. 413 (earlier Indiana doctrine in Mclntire ■«. The State, 5 Blackf. 384) ; Wilson v. Eoickford E. E., 59 111. 273; Hayes 17. Ottawa E. R., 54 111. 373; Alabama R. R. v. Burkett, 42 Ala. 83. ' Carpenter v. Jennings, 77 111. 250. Even direct and peculiar advan- tages. Frederick v. Shane, 32 Iowa, 254. '" Commissioners u. O'Sullivan, 17 Kan. 58. " Cleveland v. Wick, 18 Ohio St. 303. Under the earlier Constitutions of Ohio, benefits were set off against damages. Brown v. Cincinnati, 14 Ohio, 541; Symondsu. Cincinnati, 14 Ohio, 147. § 150. Classes of benefits. — The Supreme Court of Massachusetts divides benefits into three kinds: 1. Those directly occasioned to the estate bounded on the highway, and peculiar to the estate itself, as distinguished from other estates not bounded thereon. 2. Those shared by the estate in common with other estates iu the neighborhood. 3. Those which extend to all estates in the same town or city. The first class is properly subject to set-offs in the taking of property ; the second is of a nature to be assessed under betterment acts ; and the third, subject to no claim from the owner. -"^ I Upham V. Worcester, 113 Mass. 97. § 151. Payment in benefits. — An entire payment of damages may be made in benefits.^ When no damages are suffered over the local and peculiar benefit, the owner ha& 318 OP BENEFITS AS COMPENSATION. § 15L already been compensated,^ and direct benefits are to be set off against the general as well as the special damages to the remaining land." When only an easement is taken, it is proper to consider benefits, although the constitution should require the payment of an equivalent in money. That would mean an equivalent in mpney for the amount not covered by the benefits. An easement does not take away the entire beneficial enjoyment of the land, while condemna- tion for some purposes does divest the owner from all bene- ficial enjoyment of his land.* Some of the courts consider the doctrine well settled, but manifest a reluctance to the perpetuation of it, and rely on the ground of stare decisis, while they indicate that a payment in benefits is not the just compensation intended by the constitution.' As we have seen in section 149, there are some states which deny the doctrine, that there can be a payment in benefits for the value of the land taken , but that such payment must be in money. ^ It is considered unjust that the owner can be thus compelled to dispose of the land he desires to keep,' or have his damages reduced by the imaginary projection of a railroad in space, before any improvement ia made.* 1 Whitman v. Boston R. E., 3 Allen, 133; The Commonwealth v. Mid- dlesex, 9 Mass. 388; Livingston i>. Mayor of New York, 8 Wend. 85; Page V. Chicago K. K., 70 111. 324 ; Elgin v. Eaton, 83 111- 635; Putnam v. Doug- las County, 6 Ore. 328; Jacljson County v. Waldo, 85 Mo. 637; Atlanta V. Green, 67 Ga. 386; Guess v. Stone Mountain Granite Co., 72 Ga. 320. " Nichols V. Bridgeport, 23 Conn. 189; Trinity College u. Hartford, 32 Conn. 452 ; Chicago R. E. v. Francis, 70 111. 238 ; Long Island R. R. v. Ben- nett, 17 N. Y. Sup. Ct. 91. 1 3 Winona E. R. v. Waldron, 11 Minn. 515. * Livermore v. Jamaica, 23 Vt. 361. 6 The State v. St. Louis, 62 Mo. 244. ° Isomi;. Mississippi R. R., 36 Miss. 300 ; Penrice ^i. Wallis, 37 Miss. 172; Brown v. Beatty, 34 Miss. 227; Woodfolkw. Nashville R, E., 3 Swan, 422; Ellzabethtown E. E. v. Helm, 8 Bush, 681; Sutton's Heirs «. Louis- ville, 5 Dana, 28; Bobbins v. Milwaukee R. R., 6 Wis. 636; Bland v. Hix- enbaugh, 39 Iowa, 532. ' Sutton's Heirs v. Louisville, 6 Dana, 28. * Isom ».' Mississippi R. R., 36 Miss. 300. 319 § 152 OF BENEFITS AS COMPENSATION. § 152. Benefits allowed In reduction of damages must 1)6 direct and peculiar. — The general benefit accruing to the remainder of land not taken, in common with other land which is enhanced in value by the construction of the improvement, cannot be allowed in reduction of damages for land taken. The benefits must be direct and peculiar, resulting to the land in particular.^ The benefit to be de- ducted must be a benefit which is direct and special to the estate and not a general benefit shared in common with other estates in the vicinity, yet peculiar and special benefits may be set off although they are shared in common with other estates on the same street.^ The fact that the road gave the owner of laud convenient access to his forests, or lands at some distance, is a general benefit, as also the additional facility of taking produce to market.* Advantages of more convenient access to one's lot in town, and of making the lot a corner-lot, or of making it front on a more desirable avenue, or of increasing the front of the lot, are direct and peculiar benefits.* The benefit of the improvement of other property, at a distance from the tract through which the improvement passes, is a benefit too general in its charac- ter. ° It is a direct benefit that a proposed improvement will discontinue a portion of an old road, which might then betaken possession of by the owner adjoining.* Although land may be left in nari'ow strips which could not be used, yet if their value was increased if they could be added, by purchase or sale, to the land of adjoining owners, the bene- fit may be considered. Nothing is to prevent a purchase or sale when both owners would be benefited by the operation.' Benefits cannot be allowed for the construction of a railroad when another railroad was already on the same land.* If a lot is drained or fertilized by a public improvement, the benefit would be considered to be a direct one.' The direct and peculiar benefits can always be set off against the disad- vantages occasioned by an improvement," although an objec- tion is entertained against setting them off against the value of the land taken. a20 OF BENEFITS AS COMPENSATION. § 153 1 Hosher v. Kansas City R. E., 60 Mo. 329; Quincy E. R. v. Eidge, 67 Mo. 699; James Eiver Co. v. Turner, 9 Leigh, 313; Railroad Co. v. Tyree, 7 W. Va. 693 ; Mississippi Eiver Bridge v. Eing, 58 Mo. 491 ; Pacific E. R. ■■». Ctirystal, 25 Mo. 54:4; Newby v. Platte County, 23 Mo. 258; St. Louis E. R. V. Richardson, 45 Mo. 466; Lee v. Tebo R. R., 63 Mo. 178; Whit- man V. Boston R. R., 7 Allen, 313; Meacham v. Fitchburg R. E., 4 Gush. .291; Freedle v. North Carolina R. R., 4 Jones L. 89; Weir«. St. Paul R. E., 18 Minn. 155; Atlanta v. Green, 67 Ga. 386; GuK Ry. v. Fuller,' 63 Texas, 467; Adams v. Railroad, 67 Vt. 240; Donovan u. Springfield, 125 Mass, 371; Railroad v. Foreman, 24 W. Va. 632; Shenandoah R. E. ». Shepherd, 26 W. Va. 692; Pittsburg E. E. v. Eobinson, 95 Pa. St. 426; St. Louis R. R. V. Kirby, 104 111. 345; Watson v. Cramsore, 93 Ind. 220; •Clark ». Worcester, 125 Mass. 226; Mayor of Chattanooga u. Geiler, 13 Lea, 611; Sullivan «. Lafayette Co., 61 Miss. 271; Jackson Co. v. Waldo .85Mo. 637. 2 Cross V. Plymouth, 125 Maps. 657. 8 Adden v. White Mountains R. E., 65 N. H. 413; Whitcher v. Benton, m N. H. 25; Carpenter v. Landaff, 42 N. H. 218. * Allen V. Charlestown, 109 Mass. 243; Whitney •«. Boston, 98 Mass. 312; Farwell v. Cambridge, 11 Gray, 413; Milvpaukee E. E. ■». Eble, 4 ■Chand. 72. '• Railroad Co. v. Gilson, 8 Watts, 243. "> Tingley v. Providence, 8 R. I. 493; Cross v. Plymouth, 125 Mass. 557. ' Terry v. Hartford, 39 Conn. 286. 8 Tonica R. R. v. Unsicker, 22 111. 221. < » Milwaukee R. E. v. Eble, 4 Chand. 72. *> Bornstein v. Atlantic R. R., 51 Pa. 87; Harvey «. Lackawanna R. E., 47 Pa. 428. § 153. General benefits not to be considered. — A rail- road or highway benefits the entire community, and the entire community should pay for it. If the improvement is partly for private advantage, the general benefit should not be collected from one and not from another. To deduct a general benefit from the damages suflFered by the taking of land would be unjust, unless the general benefit should also be collected from those whose lands are not taken. Hence the owners of land taken cannot be charged with general benefits.^ The increase in value of the remaining property is not conclusive as a benefit, for the owner may show that he made the improvements himself. The benefit not allowed is that which comes from the common advantages .and convenience of increased facilities, and the general 21 321 § 153 OF BENEFITS AS COMPENSATION, advance iu the value of real estate.^ The kiad of benefit which is not allowed to be estimated for the purpose of be- ins: deducted from the damages is that which comes from owners sharing in the common convenience of increased public facilities and the general advance in value of real estate in the vicinity by reason thereof.* The benefit which accrues to land separated from that over which the improvement passes is general. The benefit must be con- fined to that particular tract,® and cannot include benefits to other lots of owner, detached,® or other blocks than those through which the road runs, although adjoining blocks.^ The fact that the owner of land had made large profits by selling wood and tiqs to the railroad is not a peculiar, but a general, benefit. Any one else might have the same profit.^ The possible opportunity to use the tracks and cars and the chance that the company might consent to the building of side tracks and spurs, are elements not proper to be con- sidered in estimating damages.' The removal of a ceme- tery, caused by running a railroad through it, although a benefit to adjoining lands, cannot be considered a direct, but rather a general, benefit to the adjoining owners.^" 1 Carpenter v. Landaft, 43 N. H. 218; Sexton v. New Bridgewater, 116 Mass. 200; Water Commissioners v. Lawrence, 3Edw. Ch. 552; Preedle v. North Carolina R. E., 4 Jones L. 89; Commissioners?). Johnston, 71 N. C 398; Vicksburg R. R. v. Calderwood, 15 La. An. 48i; The State v. Evans, 3 111. 208; Milwaukee R. R. ■». Eble, 4 Chand. 72; Carli v. Still water R.R., 16 Minn. 260; "Winona R. E. ■«. Waldron, 11 Minn. 615; Senior V. Metropolitan Rail. Co., 32 L. J. (Exch.) 225; Parks e. Hampden, 120 Mass. 395; Shawneetown v. Mason, 82111.337; Keithsburg R. R. ». Henry, 79111. 290; Natchez R. R. v. Currie, 62 Miss. 506; St. Louis Ry. v. Morris, 35 Ark. 622; Missouri Pacific Ry. v. Hays, 15 Neb. 224; Jackson Co. v. Waldo, 85 Mo. 637 ; Sullivan v. Lafayette Co., 61 Miss. 271 ; Pittsburg R. R. V. Robinson, 95 Pa. St. 426; Donovan v. Springfield, 125 Miss. 371. ' Barker v. Taunton, 119 Mass. 392. » Allen V. Charlestowji, 109 Mass. 243; Whitman v. Boston R. B., 7 Allen, 313; James River Co. v. Turner, 9 Leigh, 313; Railroad Co. v. Ty- ree, 7 W. Va. 693; Memphis v. Bolton, 9 Heisk. 508; Washburn o. Mil- waukee R. R., 69 Wis. 364. » Arbrush v. Town of Oakdale, 28 Minn. 61. ' Meacham v. Fitchburg R. R., 4 Cash. 291 ; St. Louis R. R. v. Brown,. 68 111.61; HarrisburgR.R. u. Moore (Sup. Ct. Pa.), 4 W.N. 532. 322 OF BENEFITS AS COMPENSATION. §§ 154-15S "^ The State II. Digby, 5 Blackf. 543. The later doctrine in Indiana, rejects benefits altogether. ' Todd V. Kankakee R. R., 78 111. 630. = Minnesota Valley R. R. v. Doran, 17 Minn. 188. ' Drury r. Midland R. R., 127 Mass. 571. i" Minnesota R. R. v. McNamara, 13 Minn. 508. § 154. Benefit to railroad of estal>lisliment of a hlg'h- way. — Th(^ benefit, to a railroad, of the establishment of a highway across it is too remote to be considered.^ The increase of business is general, and evidence that fewer accidents will happen at the new highway, on account of the safer crossing, is too remote, although the former crossing was dangerous, and the company had been put to expense in paying for accidents.^ In New York, the benefits of a street improvement may be charged against a railroad com- pany, and be assessed against the track, the property ben- efited. The fact that no one might wish to purchase a portion of a railroad track is no argument against the right to sell.^ > Bridgeport v. New York R. R., 36 Conn. 255. ' Boston R. R. v. Middlesex^ 1 Allen, 324 ; Old Colony R. R. v. Ply- mouth, 14 Gray, 155. ' Troy R. R. v. Kane, 16 N. Y. Sup. Ct. 506. § 155. From what time shall benefits be calculated. — Following the analogy of damages, benefits should be con- sidered as of the time of taking, as benefits are deducted from damages in order to find the justcompensation. How- ever, if the benefit is one arising after the taking, as the construction of a depot near the ground, or, on the contrary, the refusal to construct a depot according to stipulation, the matter may be considered according to the condition of affairs at the time of the trial. ^ 1 Hayes v. Ottawa R. R., 54 III. 373. § 156. Privilege of giving up entire lot and escaping assessment. — To obviate the seeming injustice and frequent hardships of assessment of benefits on remaining lands, statutes have been passed allowing the owner to give up his whole lot, and receive the value in money, rather than ta 323 §§ 157,158 OF BENEFITS AS COMrENSATION. - keep the remainder charged with the assessment.^ This cannot be done against the will of the owner, as the excess over the needs of the public would be taken for a use not public; but it is proper to give the" election to the owner^ whether or not he should keep the remainder, or allow the public to take it at a valuation.^ ' Dorganr. Boston, 12 Allen, 223; Genet iJ. Brooklyn, 99 N. Y. 296. ' Baltimore v. Clunet, 23 Md. 449; Dunni;. Cbarleston, Harp. 189. § 157. Where use of property is limited — Increase of 1>uslnes8 — Expert testimony. — Land devoted to a partic- ular use, such as a church, cemetery, or water-works, and ■which cannot be changed from that use, should not be charged with benefits as property open to sale for general purposes.^ As no damages will be allowed on account of diversion of business, caused by a public improvement, the converse is -also true, and no benefit will be allowed on account of in- crease of business, occasioned by the improvement.* Expert testimony is admissible to show the benefits to an estate by a public improvement! A witness may be asked the increased value per foot of a lot on a street as wide as the one proposed.' Evidence as to the practicability of a railway connection by a track to or upon the lot is admissi- ble.* • Owners v. Mayor of Albany, 15 Wend. 374. 2 Brown v. Providence R. K., 5 Gray, 35. 3 Shaw V. Charlestown, 2 Gray, 107. * Russell V. St. Paul Ry., 33 Minn. 210. § 158. Setting off benefits against disadvantages. — The fairest rule in dealing with benefits and- disadvantages is to set off the benefits against the disadvantages only,' allowing the owner to recover any excess of disadvantages over benefits, but not allowing the excess of benefits to re- duce the claim for the actual value of the land and materials taken. This is the doctrine of many of the states.^ This doctrine is generally the result of legislation to that end.* If the jury should find no damages, it would be presumed 324 OF BENEFITS AS COMPENSATION. § 158 that they had set off benefits against the value of lands, and hence their reports would be quashed.^ The doctrine is de- nied in Mississippi, on the general principle of rejecting all benefits.* The doctrine is upheld in Tennessee, as a proper construction of " just compensation." ° In Kentucky, the incidental damages for separating a part from the remainder must be paid in money, and benefits cannot be set off against such damages,' but they may be set off against con- sequential damages.' Where commissioners in laying outa road, in their award, specify the damages to each of several tracts of land, describing them, a statement that "in all other cases the benefits are equal to the damages," is suffi- cient as to remaining tracts.* Benefits to one piece of prop- erty cannot be set off against damages done to another and distinct piece.' ' 1 Shipley v. Baltimore R. R., 34 Md. 336 ; Mitchell t). Thornton, 21 Gratt. 164; Railroad Co. v. Tyree, 7 W. Va. 693; Raleigh R. R. b. Wicker, 74 N. C. 220; Mayor v. Central R. R., 53 Ga. 120; Jones v. "Wills Valley R. R., 30 Ga. 43; Newcastle R. R. v. Brumback, 5 Ind. 543; Todd v. Kankakee R. R., 78 111. 530; Wagner v. Gage County, 3 Neb. 237; Sutton's Heirs v. Louisville, 6 Dana, 23; Robinson c. Robinson, 1 Duv. 162; Louisville R. R. u. Glazebrook, 1 Bush, 325; Buffalo R. R. v. Ferris, 26 Texas, 588; New Orleans R. R. v. Lagarde, 10 La. An. 150 ; Vicksburg R. R. v. Calder- wood, 15 La. An. 481 ; Memphis v. Bolton, 9 Heisk. 508; Fremont R. R. V. Whalen, 11 Neb. 585; Britton v. Des Moines Ry., 69 Iowa, 540; Hyslop D. Finch, 99 111. 171. 2 Augusta J). Marks, 50 Ga. 612; ^oung v. Harrison, 17 Ga. 30; Eliza- •bethtown R. R. v. Helm, 8 Bush, 681 ; Hayes v. Ottawa R. R., 54 111. 373.. 3 Mitchell i). Thornton, 21 Gratt. 164. * Isom V. Mississippi R. R., 36 Miss. 300. " Woodfolk V. Nashville R. R., 2 Swan, 422. « Elizabethtown R. R. v. Helm, SBush, 681; Louisville R. R. v. Glaze- brook, IBush, 325 (^qualifying Jacob v. Louisville, 9 Dana, 114). "< Henderson r! R. u. Dickerson, 17 B. Mon. 173. Same doctrine. Chap- man V. Oshkosh R. R., 33 Wis. 629. «, State V. Leslie, 30 Minn. 533. * Pittsburg R. R. v. Reich, 101 111. 157. 325 § 159 OP THE NATURE AND AMOUNT OF DAMAGES. CHAPTEK Xyi. OF THE NATUEE AND AMOUNT OF DAMAGES. § 159. Adequacy of damages. 160. Title a proper subject of inquiry in determining damages. 161. Condemning party cannot dispute title. 162. Direct damages — Disadvantages. 163. Exposure to Are. 164. Jury or commissioners to determine tiie damages. 165. Testimony as to the amount of damages. 166. Effect of taking a part on the land left. 167. Damage to tract — Extent of tract — Separate blocks. 168. Market value. 169. Expert witnesses. 170. Sales of similar property. 171 . Eents of similar property. 172. Evidence of assessment for taxation — Of commissioners' report- Admissions of owner. 173. Value not estimated solely from present use. 174. Assessment should be of the value at the time of taking. 175. Interest on award. 176. Interference with the use before taking. 177. Interference with use during construction — Loss of profits. 178. On a taking subsequent to the improvement. 179. Taking part of a railroad. 180. Plan of proposed improvement. § 159. Adequacy of damages. — Damage, when arising from an exercise of eminent domain, is au actual diminution in present value or price of property, caused by construc- tion of a public improvement; or a physical injury to the property, that renders it less valuable in the market if offered for sale-^ or for rent.^ Hence the value of premises as a building must be given, and not of the materials only.' The compensation for the damages should not be restricted to the actual value of the laud taken, nor to the depreciation in value caused by the separation of the piece from the whole, but to the diiference in value of the property before and after the improvement,* and should not include any pros- 326 OF THE NATURE AND AMOUNT OF DAMAGES. § 159 pective damages.' The rule would not be an absolute one in cases where valueof property is affected by other causes.' The compensation iiUowed should be cquivalentto the value •of that of which the owner is deprived.' The cost of re- placing erections or improvements elsewhere is not the measure of damages, but the difference in value before and after the taking is complete.^ The expense of removing per- sonal property from the premises is not to be included.' It is not proper to consider the difference iu value between the land with the railroad on it, and with the railroad run- ning near, but not on it, as owners near are not compelled to account for benefits. i" "Where a railroad used a part of a wall made to protect land from washing, and the wall still answered the purpose, the damage would not be what the wall cost, but what would make the owner whole." The ■question of the adequacy' of the damages allowed is generally one for the viewers or the jury, and not for the appellate court, except where the error is of such a gross nature that the court would, if the matter were an ordinary suit at law, set aside the finding as against the evidence. ^^ Some of the states, as we have seen in the chapter just preceding, do not consider the damages adequate unless all benefits are excluded,^* and declare the rule set forth in the cases cited in note 4 to substantially allow benefits to be set off against damages. 1* Where land is condemned for a railroad and a part of the land so condemned is taken for a public road after the condemnation, the land thus taken should be in- cluded in estimating the damages sustained by the owner." 1 Chicago R. R. v. Francis, 70 III. 238; Snyder v. Western R. R., 25 "Wis. 60. 2 St. Louis R. R. V. Capps, 67 111. 607. ' Lafayette R. R. v. Winslow, 66 111. 219. < San I'rancisco R. R. v. Caldwell, 31 Cal. 367; Matter of Utica R. R., £6 Barb. 456; Rochester R. ,R. v. Budloni;, 12 N. Y. Leg. Obs. 46; Bangor E. R. V. McCsmb, 60 Me. 290; Pennsylvania R, E. v. Bunnell, 81 Pa. 414; Shenango R. R. v. Braham, 79 Pa. 447; East Pennsylvania R. R. v. Hot- -tenstine, 47 Pa. 28 ; Schuylkill Nav. Co. v. F.arr, 4 Watts & S. 362 ; Schuyl- iill Co. V. Thoburn, 7 Serg. & R. 411 ; Tide-Water Co. v. Archer, 9 Gill & J. 479; Selma R. R. v. Keith, 53 Ga. 178; Sidener v. Essex, 22 Ind. 201; 327 § 160 OF THE NATUEB AND AMOUNT OF DAMAGES. Chicago R. R. v. Stein, 75 III. 41 ; Eberhart «. Chicago R. R., 70 111. 347^ Bigelow V. Wisconsin R. R., 27 Wis. 478; Gear v. Railroad, 39 Iowa, 23;; Brooks D. Davenport R. R., 37 Iowa, 99; Harrison v. Iowa R. R., 36 Iowa,. 323; Simmons «. St. Paul R. R., 18 Minn. 184; Virginia R. R. v. Henry, 8 Nev. 165; Cummings v. Williamsport, 84 Pa. 473; Putnam d. Douglas County, 6 Ore. 328; St. Louis R. R. jj. Anderson, 39 Ark. 167; Grand Rapids R. R. v. Heisel, 47 Mich. 393 ; Balfour v. Louisville R. R,, 62 Miss. 508; Pittsburg r\ R. i>. Patterson, 107 Pa. St. 461; Pittsburg R. R. o. Rob- nson, 95 Pa. St. 426 ; Philadelphia v. Linnard, 97 Pa. St. 242 ; Henderson v. New York Central R. R., 78 N. Y. 423; Lehigh Valley Coal Co. v. Chicago,. 26 Fed. Rep. 415. 5 Canandaigua R. R. v. Payne, 16 Barb. 273; Brooks v. Davenport R, R., 37 Iowa, 99; Springfield v. Schmook, 68 Mo. 394; Levee Commission- ers V. Harkleroads, 62 Miss. 807. ' Gregg V. Mayor of Baltimore, 56 Md. 256. ' Chicago R. H. v. Goodwin, 111 111. 273; HoUingsworth v. Des Moines By., 63 Iowa, 443. 8 SchuylKill Nav. Co. v. Farr, 4 Watts & S. 362 ; Stevens v. Danbury,, 63 Conn. 9. » Central Pacific R. R. v. Pearson, 35 Cal. 247. M Carli V. Stillwater R. R., 16 Minn. 260. " Gear v. Railroad, 39 Iowa, 23. 12 Hannibal R. R. v. Morton, 27 Mo. 317; City of Kansas v. Railway Co., 84 Mo. 412. " Harrison v. Iowa R. R., 36 Iowa, 323; Henry v. Dubuque R. R., 2 Iowa, 288; Sater v. Burlington R. R., 1 Iowa, 386; Blizabethtown R. R> V. Helm, 8 Bush, 681. " Atchison R. R. v. Blackshire, 10 Kan. 477 ; San Francisco R. R. v. Caldwell, 31 Cal. 367. 1* New York R. R. Co. v. Stanley, 39 N. J. Eq. 361. § 160. Title a proper subject of inquiry in determin- ing damages. — The damages paid must be according to the estate taken, and hence it is proper to show that the damages are nominal, because the estate was of nominal value. ^ If the claimant does not own the land, he will not be entitled to damages for its taking. Although commis- sioners or juries to assess damages are not the proper tri- bunals for passing upon title to land, yet the title must be taken into consideration in estimating the damages.' Evi- dence of the claimant's title is admissible to show that nO' damages have been suffered.^ In the absence of exceptions,, it will be presumed that the jury found correctly as to the title.* The damage to the estate may properly be esti- 328 OP THE NATURE AND AMOUNT OP DAMAGES. § 160- mated, and, in a suit by the claimant to compel payment, the title may be tried. A deed may be offered in evidence to show the title,* and such evidence is relevant and mate- rial to the issue.® If owner takes title to land subject to a prior dedication or appropriation of the same to public use he is entitled to only nominal damages.^ Evidence that petitioners have a qualified fee only to the portion of the land taken is inadmissible in reduction of damages.* The question of title cannot be conclusively settled by the commissioners as to whether or not the land belongs to individuals or the public' But the commissioners may report in favor of the particular claimant they consider entitled to damages, al- though their opinion is not conclusive. In such cases, the damages would be paid into court, for the benefit of whom- soever the court may adjudge to be entitled to the< same.^* In the petition, the title need not be set forth with exactness, as the damages are to be paid according to the title at the hearing.^^ In ciise the condemning party, in its petition, fails to state the title of owners or claimants correctly, the owner is not thereby concluded from assert- ing and proving his real claim. Whenever, therefore, either by an indefinite statement in the petition as to the interest of the claimant in the property, or by one not ac- cepted by him as true before the commissioners, it becomes necessary for them to inquire into and decide the question of title or interest as incidental to the question of damages, it is proper matter for their consideration, and their de- cision on that matter is reviewable in the appellate court." But when a claim for damages is filed, the proceedings had therein is in the nature of a personal action ; the damages must be estimated without reference to the extent of the interest of the claimant in the property .^^ 1 Miller v. Mayor of Newark, 35 N. J. L. 460. 2 Thurston v. Portland, 63 Me. 149 ; Anthony v. Lawhorne, 1 Leigh, 1 ; Jones V. Barclay, 2 J. J. Marsh. 73. ' Minot ■!;. Cumberland Commissioners, 28 Me. 121. * Directors v. Railroad, 7 Watts & S. 236; Horrocks v. Metropolitan. 329 § 161 OF THE NATURE AND AMOUNT OF DAMAGES. Eall. Co., 4 B. & S. 315; Regina v. London Rail. Co., 3 El. & Bl. 443. » Anthony v. Lawhorne, 1 Leigh, 1 ; MansBeld R. R. v. Clark, 23 Mich. 619; Mortimer v. South Wales Rail. Co., 28 L. J. (Q. B.) 129; Bead V. Victoria Riil. Co., 1 N. R. 446; 32 L. J. (Ex.) 167. « Carli V. Stillwater R. E., 16 Minn. 260. ' Common Council of City of Brooklyn, 73 N. Y. 179. ' Chandler v. Jamaica Pond Aqueduct, 125 Mass. 144. " Wilcox V. Oakland, 49 Cal. 29. ^ " Lefevre's Appeal, 82 Cal. 565; San Francisco R. R. i). Mahoney, 29 Cal. 112; Spring Valley Water-Works v. San Francisco, 22 Cal. 434. u Grand Junction R. R. v. Middlesex, 1 4 Gray, 553, " Brisbine v. St. Paul R. R., 23 Minn. 114. " Costello 1). Burke, 63 Iowa, 361. § 161. Condemning party cannot dispute title. — The •condemning party cannot dispute the title of the party in possession, against whom proceedings have been instituted,! rinless such party has acquired a paramount title. The condemning party cannot raise the question of transfers void as to creditors, or void on any other ground.' The owner need not offer evidence of his title on the trial, ^ or on ap- peal.'' In considering damages to land not taken, there is no presumption as to the title, and the owner should show his title." A resolution of a city council appropriating com- pensation to a party is an admission of the right of the party in the land appropriated.* If there is a defect in the title of the owner proceeded against, the remoily of the company is to have the inquest set aside,' or to di-^miss the proceedings already brought.* The case is different where the owner institutes the proceedings,' In such case he must show a title more than sufficient to maintain trespass," and the condemning party should set up his failure of title, or the rights of others in the proceedings, by answer. ^^ In an action for an injury to abutting property by reason of the construction of a railway on a public street or highway, plaintiff's title may be established by proof of adverse possession.!^ 1 Selma E. R. v. Camp, 45 Ga. 180; Auditor ». Crise, 20 Ark. 640; Crise v. Auditor, 17 Ark. 672; Norristown Turnpike v. Burket, 26 Ind. 53; St. Loun R. R. v. Teters, 68 III. 144; Peoria R. R. v. Laurie, 63 111. 330 OF THE NATURE AND AMOUNT OF DAMAGES. § 162 ^64; Peoria R. R. v. Bryant, 57 111. 473; President v. Givens, 17 111. 255; St. Paul E. R. ». Matthews, 16 Minn. 341; Soutli Park Commissioner d. Todd, 112 111. 379; Omaha R. R. v. Garrard, 17 Neb. 587; Town of Wright V. Butler, 64 Mo. 165. Especially if the question is for the first time raised on appeal. Wright v. Town of Butler, 64 Mo. 165. 2 La Crosse R. R. v. Seeger, 4 Wis. 268. ' Selma R. R. v. Camp, 45 Ga. 180. ' Knauft V. St. Paul R. R., 22 Minn. 173. The company cannot, on ap- peal, dispute the title of the owner, where the proceedings wera insti- tuted by the company on a petition setting forth the claimant as the owner, and describing the property as his. On appeal, this (Question of title should not arise unless it was also litigated below. Rippe v. Chi- cago R. R., 23 Minn. 18; Gerrard v. Omaha R. R., 14 Neb. 270; Town of Wright V. Butler, 64 Mo. 165. » St. Paul R. R. V. Matthews, 16 Minn. 341. " Mayor v. Richardson, 1 Stew. &P. 12. ' Auditor v. Crise, 20 Ark. 640. " Peoria R. R. v. Laurie, 63 111. 264 ; Wright v. Wisconsin B. R., 29 Wis. 341. ' Peoria R. R. v- Bryant, 57 111. 473. " Robbins v. Milwaukee R. R , 6 Wis. 636. " Daley v. St. Paul, 7 Minn. 390. ^ Lawrence R. B. Co. v. Cobb, 35 Ohio St. 94. § 162. Direct damages — Disadvantages. — Inestimat- inor damages for the taking of land, the award must be re- stricted to the direct damages to the lot. No damages which affect the individual and the community generally are admissible.^ In securinor to the owner just compensation, there should be given, in addition to the actual value of the land taken, a further indemnity for damages resulting from the use to which the land taken is to be applied.^ The danger from the use of land as a railroad is greater than that from its use as a highway, and the inconvenience of each is to be considered.' Disadvantages would include the impairment of the value of the property remaining, on account of the removal of a part,* the bringing of owners' buildings into proximity to a railroad ; the inconveniences from the sound- •ing of whistles, ringing of bells, rattling of trains, and jar- rino' of "-round,* inconveniences from new fences or ditches,* ii-om embankments,' or cuts,^ or leaking from a canal,^ or 331 § 162 OF THE NATURE AND AMOUNT OF DAMAGES. liability of stock to be killed,^" or family to be injured ;^^- inconvenience in opening gates and bars.^* and crossing from one part of an establishment to another, over a rail- road track, ^* and inconvenient shape in which the remain- ing land is left.^* In the case of a road compensation for damages caused by necessarily leaving stones on land should be included in the damages awarded.^* In case of one railroad crossing another, nothing should be allowed for possible difficulties and embarrassments, that may never be experienced.!* 1 Bangor E. R. v. McComb, 60 Me. 290; Levee Commissioners v. Har- kleroads, 62 Miss. 807; Lehigh Valley Coal Co. v. Chicago. 26 Fed. Rep. 415; Green v. Chicago, 97 HI. 370; Chicago R. R. v. Ayres, 106*111. 611. No personal injury or inconvenience not connected with lands, etc., can. be the subject of compensation. Bird v. Great Eastern Rail. Co., 34 L. J. (C. P.; 366; Rickets v. Metropolitan Rail. Co., 34 L. J. CQ- B.). 267. 2 Newby v. Piatt County, 26 Mo. 268; White v. Charlotte R. R., 6 Rich. L. 47; Young v. Harrison, 17 Ga. 30. ' Curtis V. St. Paul E. R., 20 Minn. 28; Carrige -b. East Tenn. R. E., 7 Lea, 388. * Pacific R. R. V. Chrystal, 26 Mo. 644; James River Co', v. Turner, 9 Leigh, 313; Raleigh R. R. v. Wiclfer, 74 N. C. 220; Eddings v. Seabroob. 12 Rich. L. 504; The State v. Evans, 3 111. 208; Hartshorn v. Burlington- R. R., 52 Iowa, 613; Lafayette R. R. v. Murdock, 68 Ind. 137. * Bangor E. R. v. McComb, 60 Me. 290; White v. Charlotte R. E., 6 Rich. L. 47; Bowen v. Atlantic R. E., 17 S. C. 574; Gulf E. R. v. Eddins, 60 Texas, 666; Gulf R. R. v. Bock, 63 Texas, 245; Wilson v. Des Moinea Ey., 67 Iowa, 609; County of Blue Earth v. St. Paul B. R., 28 Minn. 503; Little Eock Ry. v. Allen, 41 Ark. 431. " Danville R. E. v. Gearhart, 32 Leg. Int. (Pa.) 219; Whitewater R. R.. ... McClure, 29 Ind. 536; St. Louis R. R. v. Anderson, 39 Ark. 167. ' Pittsburg E. E. v. Eose, 74 Pa. 362. " Atchison E. E. v. Blackshire, 10 Kan. 477. * James Elver Co. v. Turner, 9 Leigh, 313. M St: Louis R. R. V. Teters, 68 III. 144; Wilson «. Rockford R. R., 59' 111. 273; Little Eock Ry. v. Allen, 41 Ark. 431; Eepublican Valley R. E. V. Linn, 15 Neb. 234. " Wilson V. Eockford R. R., 59 111. 273; Curtis v. St. Paul R. R., 20' Minn. 28; Little Eock Ry. v. Allen, 41 Ark. 431; Eepublican Valley E. R.. V. Linn, 15 Neb. 234. ^ Minnesota R. R. v. Dorau, 17 Minn. 188. ^' Sherwood v. St. Paul R. R., 21 Minn. 122; Winona R. R. v. Waldron,. 11 Minn. 515; Dreher v. Iowa Ey., 59 Iowa, 599; County of Blue Earth v^ 332 OF THE N-ATURE AND AMOUNT OF DAMAGES. § 163 rSt. Paul R. R., 28 Minn. 503; International Ry. v. Pape, 62 Texas, 313; .St. Louis Ry. V. Anderson, 39 Ark. 167. " St. Louis R. R. V. Anderson, 39 Ark. 167. " Hatch V. Hawkes, 126 Mass. 177. 10 Ctiicago R, R. v. Joliet R. R., 105 111. 388. § 163. Exposure to fire. — Among the damages occa- sioned by the location of a railroad on a portion of land is the exposure of the crops and buildings on the land to fire, from the sparks emitted from passing ttains. The appre- hension of fire is an element of damages, notwithstanding the railroad company may be compelled by law to answer all damages, whether resulting from nefjlisence or not.^ The owner may prudently insure, notwithstanding the lia- bility of the company to pay damages. • The adjacency of the road to the property is an increase of risk, and in- creases the cost of insurance. Increase of cost of insur- ance diminishes the value of the buildings. An action against a railroad compajup for damages caused by fire is a poor substitute for insurance. The owner may select his insurance company, but cannot select his railroad.^ The present value of a building for purposes of residence or for sale is diminished by the effect of a coflstant liability to fire, on account of proximity to a railroad.' The danger, to be considered, must be real and imminent, and will not be considered, when buildings are at some distance from the railroad.* If the danger is such as to render it advisable to remove the buildings, the cost of removal is a proper sub- ject of damages." A secretary of an insurance company can sive an estimate of damages from the increase of a rate of insurance, and can also testify that his company had refused the risk on accJount of increased hazard.* In some states the doctrine is denied,' because of the uncertain and cou- tineent nature of the damages,' and because the railroad would, be responsible for fires caused by negligence.* Kail- road companies are not responsible for accidental fires unless guilty of some negligence, and it la not negligence to employ locomotive engines.^" 333 § 164 OF THE NATURE AND AMOUNT OF DAMAGES. 1 Bangor K. E. v. McComb, 60 Me. 290; Pierce ». Worcester R. K., 105- Mass. 199; Somerville B. E. v. Doughty, 22 N. J. L. 495; Keithsburg E. E. u. Henry, 79 111. 290; Lance v. Chicago E. R., 57 Iowa, 63.6; Wooster V. Sugar Eiver R. E., 57 "Wis. 311 ; Wilson v. Des Moines Ey., 67 Iowa, 500; Republican Valley R. R. •». Linn, ]5Neb. 234; Dreher i). Iowa Ry., 59 Iowa, 599; St. Louis R. R. i). Anderson, 39 Ark. 167; Gulf R. R. v. Eddlns, 60 Texas, 656; Gulf E. R. v. Bock, 63 Texa«, 245. 2 Adden v. White Mountains R. R. SoN. H. 413; Lafayette R. R. v. Mur- dock, 68Ind. 137; Lance?!. Chicago R. R, 57 Iowa, 636. By the New Hamp- shire statute, the railroad company, on paying the loss, might be subro- gated to the claim against the insurance company. The damages should be paid by the railroad company, because the owner, to be perfectly secure, is compelled to pay for insurance at an increased rate ; and, for this increase in the rate, he should receive compensation from the rail- road company. Inre Stockport, etc., Rail. Co., 33 L. J. (Q. B.) 251.' ' Pierce v. Worcester R. R., 105 Mass. 199; Matter of Utica R. E., 56 Barb. 456; Wilmington E. B. v. Stauffer, 60 Pa. 374; Colvill m. St. Paul R. R., 19 Minn. 283; Curtis v. St. Paul E. E., 20 Minn. 28; Oregon R. R. ■0. Barlow, 3 Ore. 311. • Jones V. Chicago R. E., 68 111. 380; St. Louis R. E. v. Teters, 68 111. 144; Hatch v. Cincinnati E. E., 19 Ohio St. 92. 5 Oregon R. R. v. Barlo^v, 3 Ore. 311. " Webber v. Eastern R. E., 2 Mete, 147. ' Bodemacher v. Milwaukee E. R., 41 Iowa, 297. " Lehigh Valley R. R. v. Lazarus, 28 Pa. 203; Sunbury E. E. v. Hum- mell, 27 Pa. 99 ; Patten v. Northern Central R. E., 33 Pa. 426. 9 Sunbury R. B. a. Hummell, 27 Pa. 99 (qualifying Philadelphia B. B.o. Teiser, 8 Pa. 3G6. 1" Vaughan R. B. v. Taff Valley Ball. Co., 29 L. J. (Exch.) 247. § 164. Jury or commissioners to determine the dam- ages. — The only way to determine the damages is by an assessment by a jury or commissioners, and not otherwise.^ Witnesses are to detail facts tending to prove inconvenience and injury, and from these facts, and not the opinions of witnesses, the jury are to ascertain the quantity of damages.' The jnry are to harmonize the testimony, and where the testimony placed the damages at from $1,800 to $18,000, a finding of $5,500 will not be set aside.' The court cannot average the testimony of witnesses and endeavor to har- monize the conflict of testimony.* Opinions of witnesses are not to be passively received! and blindly followed, but are to be weighed by the jury and judged of in view of all the evidence in the case and the jury*s own general knowl- OF THK NATURE AND AMOUNT OF DAMAGES. § 165 edge of affairs, and only such consideration should be given them as the jury believes them entitled to receive/ If the amount of damages cimnot be ascertained the jury should award a nominal sum oiily.^ 1 Barrickman t!. Commissioners, 11 Gill & J. 50. 2 Montgomery, R. R. v. Varner, 19 Ala. 185. ' Peoria E. R. v. Birkett, 62 111. 332. * Illinois R. R. v. Von Horn, 18 III. 257. ' Johnson v. Freeport Ry., Ill 111 413. • Peoria Ey. v. P. &. F. Ry., 105 111. 110. § 165. Testimony as to the amount of damages. — The general rule is, that witnesses shall not testify how much the property is damaged, or give their opinion as to the amount of damages, They may testify as to the value of property,^ and as to the value of property before and after the improvement, but not as to the effect of the change in adding to or taking from such value. ^ The extent of dam- ages is to be proved by facts, and estimated by the jury.* Hence a witness cannot be asked the value of the land with the strip taken out.* Notwithstanding the authorities above cited, there seems to be a growing tendency to allow wit- nesses to give an opinion on the amount of damages.^ It can hardly be seen how the jury c;in with any greater fair- ness arrive at the amount of damages by subtracting for themselves the present value from the former value, than by allowing a witness to do the same thing. A witness familiar with the facts may properly give an opinion of the damages.* The Supreme Court of Massachusetts, in Swan V. Middlesex,' allowed this question to be put to a witness : " What, in your opinion, would be the effect, upon the value of the estate in question, of widening the street and cutting off the lasd and trees? " although the witness had no actual knowledge of any similar case. This is not the same thing as asking what amount would induce him to have a street similarly widened in front of his own prop- erty. A witness may be asked how much the building of a road would diminish the value of the land, and how much 335 § 165 OF THE NATURE AND AMOUNT OF DAMAGES. less it would be worth with the railroad than without it.^ Also, What a fair value would be for the damages to the residue of the tract of land excluding all benefits," or what should be allowed as an offset because of peculiar benefits which the owner would derive in respect to the residue not taken, specifying what the witness considers peculiar bene- fits.* He may give an estimate of the damages to an estate caused by the passing of engines within one hun- dred feet of a building, in diminishinff the rent and iiicreas- ing the rate of insurance.^" Witnesses may give evidence as to the reasons why they think the land is depreciated in value. 11 The jury cannot always see the land, and wit- nesses cannot always describe the situation and condition of land so that a jury can determine damages. Hence they are permitted to state values before and after, and may be asked how much the residue is worth in consequeuce of the railroad crossing it as it did.^^ But testimony as to the amount of damages, where there is no basis of damages for estimating such, is of no value as evidence.!^,. Any existing facts, however, which enter into the value of land in the public and general estimation, and tending to influence the minds of buyers and sellers, may be considered. i* In Illi- nois,!^ the court adopts the rule that witnesses who are ac- quainted with the farm, and its productiveness, and its value, may give their opinion as to the extent of damages which the construction of the road will occasion, leaving it to the jury to weigh such evidence as it deserves. If property has a special value from whatever cause, that special value belongs to the owner of the property, and he is entitled to be paid it by the party seeking condemnation. In determining the value m such cases witnesses may give their opinions and any special circumstances upon which those opinions are founded, for what they are worth. i' It is within the discretion of the court to limit the num- ber of witnesses to be examined as to the value of the iand." When one introduces witnesses to show that the 336 OF THE NATURE AND AMOUNT OF DAMAGES. § 166 value of his land will be decreased by the location of a highway he cannot object to opinions showing that its value will be increased. ^^ 1 Prosser v. Wapello County, 18 Iowa, 327. 2 Dalzell V. Davenport, 12 Iowa, 437; Sater v. Burlington E. E., 1 Iowa, ■386; Simmons v. St. Paul E. E., 18 Minn. 184; Curtis v. St. Paul E. E., 20 Minn. 28; CoMll v. St. Paul E. E., 19 Kinn. 283 ; Atlantic E. E. v. Camp- bell, 14 Ohio St. 683; Tingley v. Providence, 8 E. 1.493; Hosherij. Kansas City E, E., 60 Mo. 329; Eockford E. E. «. McKinley, 64 111. 338; Tate v. Mo. E. E., 64 Mo. 149. 3 Kvansville E. E. v. Pitzpatrick, 10 Ind. 120; Farrand v. Chicago E. E., 21 "Wis, 435; Harrison v. Iowa E.Ji., 36 Iowa, 323; Alabama E. E. v. Bur-- kett, 42 Ala. 83; Montgomery E. B. v. Varner, 19 Ala. 185; Armstrong v- St. Louis, 69 Mo. 309; Burlington E. K. ■». ScMuntz, 14 Neb~ 421. * Logansport v. McMillan, 49 Ind. 493. "• White Deer Creek Co.'y. Sassaman, 67 Pa. 415; East Pennsylvania E. E. V. Hottenstine, 47 Pa. 28; Lehmicke v. St. Paul E. E., 19 Minn. 464. « Stein V. Burden, 24 Ala. 130; Washburn v. Milwaukee E. E., 59 Wis. 364; Neilson u. Chicago Ey., 58 Wis. 516; Sherman v. St. Paul Ey., 30 Jllnn. 227; Johnson v. Freeport Ey., Ill 111. 413. ' 101 Mass. 173. 8 Brainard v. Boston E. E., 12 Gray, 407; Pittsburgh E. E. v. Eoae, 74 -Pa. 362; Eberhart v. Chicago R. E., 70 111. 347. 9 Railroad Co. v. Foreman, 24 W. Va. 662. 1" Webber v. Eastern E. E., 2 Mete. 147; Pittsburgh E. E. v. Rose, 74 Pa. 362. u Parks v. Wisconsin E. R., 33 Wis. 413; Neilson v. Chicago Ey., 58 Wis. 516; Gardner v. Brookline, 127 Mass. 358; Dreher «. Iowa Ey., 59 Iowa, 599. ^ Snyder «. Western R. R., 25 Wis. 60; Farrand v. Chicago E. E., 21 Wis. 435; St. Paul E. E. v. Murphy, 19 Minu. 600; Missouri E. E. v. Owen, 8 Kan. 409. M Mutual Union Tel. Co. v. Katkamp, 103 111. 420. M Eussell V. St. Paul Ey., 33 Minn. 210. 15 Keithsburg R. R. v. Henry, 79 111. 290. i» Johnson v. Freeport Ry., Ill 111. 413. w Everett v. Union Pacific Ey., 59 Iowa, 243; Union H. R. w. Moore, 80 Ind. 458. M Lowe V. Ryan, 94 Ind. 450. § 166. Effect of taking a part on the land left. — When less than the wliole is taken, there is to be considered how much the portion not taken is increased or diminished in value in consequence of the appropriation. ^ The valuation of the strip taken is of its value in relation to the whole, not , 22 ^^' § 166 OF THE NATURE AND AMOUNT, OF DAMAGES. its value as a strip alone. ^ To arrive at this, the jury may consider the damages by reason of the lot or building being severed or disfigured on account of the taking of the strip, and the use of it, and the effect of the pro- posed use of the strip upon the remainder of the lot," the fact that the improvement will separate a well, garden, or highway from the house, or change the grades of cross- ings to reach the parts separated,* or make the crossings more inconvenient,® or cut up the land inconveniently, sa as to interfere with watering gtock, or to interrupt the flow of surface water and water in the accustomed chan- nels.^ It is proper to ask a witness the value of the land before the taking, and the value of the remainder after the taking with the improvement thereon.^ The effect must b& on the remaining land. No damages will be allowed for frightening horses.* The effect of future occupation by the railroad company upon the residue of the land may be con- sidered, and evidence as to the amount of travel over the railroad is admissible.' If a new road would obviate the in- convenience arising from cutting up land into inconvenient parcels, the cost of the new road and of maintaining it beyond that of the road formerly used would be a proper measure of damages. 1" The damages should be for the inconven- ience ; not what it would cost to build buildings on the other side of the track, which were separated by the track. ^^ A stand iised as a public-house may be greatly injured by the proximity of a railroad and by cutting up the grounds. ^^ In a second condemnation of another portion of a tract through which a portion has been previously taken, the inconvenience from cutting a tract into inconvenient par- cels will not justify the allowance of the same damages as on the firdt condemnation. ^^ J Mississippi River Bridge u. Ring, 58 Mo. 491 ; First Church v. Bos- ton, 14 Gray, 214; Tiie Commonwealth v. Coombs, 2 Mass. 489; Bangor B. E. V. McComb, 60 Me. 290; Selma R. R. v. Redwine, 51 Ga. 420; Hen- derson R. R. V. Dicliersoa, 17 B. Mon. 173; Virginia E. R. v. Henry, 8 Nev. 1C6; Ham v. Wisconsin Ry., 61 Iowa, 716; Hooper v. Savannah 338 OF THE NATURE AND AMOUNT OF DAMAGES. § 166 E. K., 69 Ala. 529; Chandler v. Jamaica Pond Acqneduct, 125 Mass. 544. " Winona R. E. v. Denman, 10 Minn. 267; Bigelow v. Wisconsin R. R., 27 Wis. 478; Washburn v. Milwauljee E. R., 59 Wis. 364; Freemont R. E. V. Whalen, 11 Neb. 585. " Bangor E. E. v. McComb, 60 Me. 290; Mount Washington Eoad, 35 N. H. 134; Edmands v. Boston, 108 Mass. 536; Presbrey v. Old Colony E. E., 103 Mass. 1; Albany E. E. v. Lansing, 16 Barb. 68; SomerviUe E. E. w. Doughty, 22 N. J. L. 495; Watson v. Pittsburg R. R., 37 Pa. 409; Raleigh E. E. V. Wicker, 74 N. C. 220; White v. Charlotte R. R., 6 Eich. L. 47; Richmond Turnpike v. Rogers, 1 Duv. 135; Baltimore E. R. v. Lansing, 52 Ind. 229; Whitewater R. R. d. McClure, 29 Jnd. 536; Montmorency Road i;. Stockton, 43 Ind. 328; Keithsburg E. E. «. Henry, 79 111.290; Eockford E. E. v. McKinley, 64 111. 338; Tonicj. E. R. v. Unsicker, 22 111. 221 ; Parks v. Wisconsin R. R., 33 Wis. 413; Bigelow v. Wisconsin R. R., 27 Wis. 478; Brooks v. Davenport R. E., 37 Iowa, 99; Scott v. St. Paul R. R., 21 Minn. 322; Simmons v. St. Paul E. R., 18 Minn. 184; Hursh v. St. Paul E. R., 17 Minn. 439; Winona R. R. v. Waldroii, 11 Minn. 515; St. Joseph R. R. V. Orr, 8 Kan. 419; Cleveland R. R. v. Ball, 5 Ohio St. 6G8; Cincinnati R. R. v. Longworth, 30 Ohio St. 108; Kucheman v. C. C. & D. R. R., 46 Iowa, 366; Neilson i). Chicago Ey., 68 Wis. 616; Drake i). Chicago Ey., 63 Iowa, 302; Cummins v. Des Moines Ey., 63 Iowa, 397. The use, for a canal, of the strip taken may render additional land belonging to the same tract unfit for cultivation by leakage through the banks. The measure of damages is not merely the value of the strip taken, but the difference in value of the whole tract before and after the taking, occa- sioned by the use to which the strip is put. Pennsylvania Canal v. Hill, 6 W. N. C, 182. Dearborn v. Boston R. R., 24 N. H. 179; Albany R. E v. Lansing, 16 Barb. 68; Eeadington v. Dilley, 24 N. J. L. 209; SomerviUe E. R. u. Doughty, 22 N. J. L. 495. 5 East Pennsylvania R. R. v. Hiester, 40 Pa. 53 ; Patten d. Northern Central R. R., 33 Pa. 426; Baltimore R. R. v. Lansing, 52 Ind. 229; Rob- bins v. Milwaukee R. E., 6 Wis. 636. An inconvenience caused by a railroad company improperly allowing trains to obstruct a crossing is to, be reached by an action as for a nuisance. Patten v. Northern Central E. R., 33 Pa. 426. « Grand Rapids R. R. v. Horn, 41 Ind. 479 ; Eockford R. R. v. McKin- ley, 64 111. 338; Tonica E. E, v. Unsicker, 22 111. 221; Bobbins v. Milwau. kee E. E., 6 Wis. 636. ' Snowi». Boston R. R., 65 Me. 230; Matter of Utica R. R., oG Barb. 456; Watson v. Pittsburgh R. E., 37 Pa. 409. « Presbrey v. Old Colony E. E., 103 Mass. 1. » Union E. E. v. Moore, 80 Ind. 458. M Presbrey v. Old Colony R. R., 103 Mass. 1. The English Railway Act provides for the compulsory construction of means of communica- tion between the severed parts at the expense of the company, and hence 339 § 167 OF THE NATUKE AND AMOUNT OF DAMAGES. such damages would not be allowed, South Wales Co. v. Richards, 6 Eng. Rail. Cas. 19T. " Carpenter v. Easton E. R., 2i N. 3. Eq. 408. 12 White V. Charlotte R. E., 6 Eich. L. i7 . " Lake Superior R. E. v. Greve, 17 Minn. 322. § 167. Damage to tract — Extent of tract — Separate blocks. — Ordinarily, the damages must be confined to the lot or subdivision from which the land is taken, and injury to other lots, separated by streets and alleys, is not generally taken into consideration. The damages and benefits should be considered in relation to the entire tract, and not to a limited strip immediately adjoining the railroad or improve- ment.^ Damages to lands of same owner, at a considerable distance, caused by injuring a franchise out of such land, cannot be added to damages to land actually taken. ^ "Farm as a whole" means farm as owned at time of trial. '^ The damages to separate tracts are to be considered separately.* If, however, more than one lot or block is occupied in one business, as in that of a brewery, with necessary buildings on each side of an alley the damages to the entire property must be paid, and not only the damages to the lot from which the strip of land is taken. But if the fixtures, engines, and appliances could be transferred to the other side of the alley, and placed in such a situation that the brewery could have been just as effectively operated as it was before, then the actual loss to the owners would have been the trouble and expense of making the removal, together with compensation for the use of the brewery for whatever time it would have been necessarily idle whilst the change and transfer were being made. ^ Again, if the several lots are used as one property, as a lumber-yard and saw-mill, and all the blocks were necessary to the enjoy- ment of the mill property, damages may be allowed to the whole tract, for taking away and separating necessary poi - tions of the establishment, although the lots may be sepa- rated from each other by a public street." The same doctrine has been applied to the case of a brick-yard, where the dif- 340 OF THE NATURE AXD AMOUNT OF DAMAGES. § 167 ferent lots wei"e used together, and where the owners were prevented from enlarging by proximity to the railroad.' The fact that a tract has been laid out into city lots, bnt not used as such, will not prevent the consideration of the damages to the entire tract. The court is not to consider the map, but the land as it stands, and the use to which it is applicable. The division into lots is accidental.* Where land is divided into lots, evidence may be offered as to the value of part of the tract considered separate from the whole. ^ Hence one tract, separated from the rest of a farm by a public road, may be considered as a part of the farm, if actually so in fact.^" If land is used, improved and occu- pied as one farm, it cannot properly be valued in parcels. ^^ The tract is to be a compact tract, and not two farms sep- arated by a high bluff and distant from each other, through only one of which the railroad passed. ^^ Government sub- divisions are entitled to no consideration in determining the amount of damages. The damage to the whole farm should be considered.^' When the blocks and tracts are not used together, no damages can be allowed for blocks separated by streets from the block in which the land is taken ;^* and if a strip is taken adjoining an existing railroad, there would be no damages for land on the other side of the existing railroad. i" The sale of a parcel of land to a railroad company does not estop the owner from claim- ing damages to other property, unless it was included in the contract. ^^ The question cannot arise in consid- ering damages to vacant and unoccupied land." Where the company institutes proceedings, and describes the land in its ijetition, the damages are to be confined to the land mentioned in the petition, unless the owner, by cross-bill, shows that he owns contiguous land v.'hich will be damaged. ^^ This rule does not obtain in Minnesota i" and Illinois,^" where it is held that neither commissioners nor court are con- fined in their inquiries to the damages done to that part of the tract described in the petition of the railroad com- 341 § 167 OP THE NATURE AND AMOUNT OF DAMAGES. pany, but may inquire into the effect of sucli taliiug upon the entire farm or tract out of which the right of way is taken, although only a part of such farm or tract is described iu the petition. The owner is not required to proceed by cross-petition or otherwise to have the description in the petition corrected or enlarged so as to include the entire tract, or else be limited in his recovery of damages to the land described in the petition. The En- glish Lauds Clauses Act^^ provides, that if a tract of land of less than half an acre is separated by the railway from the main tract of land, the owners may insist on the company's taking the same ; or, if the expense of making suitable com- munication with the separated piece is greater than the value of such tract, the company may insist on purchasing at a valuation. 1 Page I). Chicago R. E., 70 111. 324; Bobbins v. Milwaukee B. R., 6 Wis. 636; Washburn v. Milwaukee E. R., 59 Wis. 364; Republican Valley E. E. V. Linn, 15 Neb. 234 ; Lehigh Valley Coal Co. v. Chicago, 26 Fed. Bep. 415 ; Telephone Tel. Co. v. Forke, 2 Texas App. 365 ; Port Huron Ey. v. Voorheis, 50 Mich. 506; Sullivan ij. Supervisors, 68 Miss. 790; Boles b. Boston, 136 Mass. 308; Preemont E. E. v. Whalen, 11 Neb. 685. ' Wooster v. Sugar Eiver E. E., 57 Wis. 311. 3 PuUeri). Edings, 11 Rich. L. 239. * St. Louis E. E. V. Brown, 58 111. 61. ' Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582. ' Chapman v. Oshkosh E. E., 33 Wis. 629. Contra (in a case almost exactly similar), Fleming ■». Chicago E. E., 34 Iowa, 353. ' Sherwood v. St. Paul E. E., 21 Minn. 127; s. c. 21 Minn. 123. « Welch V. Milwaukee E. E., 27 Wis. 103; Driver u. Western E. B.. 32 Wis. 569; Cummins v. Des Moines By., 63 Iowa, 397; ' Cherokee v. Land Co., 52 Iowa, 279. 1" St. Paul R. R. V. Murphy, 19 Minn. 500. " Wilmes v. Minneapolis Ry., 29 Minn. 242; Winklemans v. Des Moines Ry., 62 Iowa, 11. 12 Minnesota E. R. a. Doran, 15 Minn. 230. 'S Hartshorn v. Burlington Ry., 52 Iowa, 613. " Matter of New York Central R. R., 13 N. Y, Sup. Ct. 149. " Ibid.; Ham v. Wisconsin Ry., 61 Iowa, 716. 16 Republican Valley R. R. v. Fellers, 16 Neb. 169. 1' Walker?). Old Colony R. K., 103 Mass. 10, Presbrey v. Old Colony R. R., 103 Mass. 1. i« Jones V. Chicago R. R., 68 111. 380; Mix D.Lafayette B. B., 67111. 318- 342 OF THE NATURE AND AMOUNT OF DAMAGES. § 168 ^' Sheldon v. Minneapolis Ey., 29 Minn. 318. *> Illinois K. R. Co. ■». Mayrand, 93 111. 691. » 8 & 9 Vict., c. 18, §§ 93, 94. § 168. Market value — The owner is entitled, not simply to such sum as the property would bring at forced sale, or under peculiar circumstances, but to such sum as the prop- ■erty is worth in the market, — that is, to persons gen- erally, if those desiring to purchase were found, who were willing to pay its just and full value.^ The damages to be awarded should be th^ market value of the prop- erty for any purpose for which it is adapted or for which it may be used.* It is not proper to consider what one would give rather than be turned out of the premises ; ^ •or what was given as a comptomise price by the public, when there could be no other purchaser, and the seller had the option of selling, or awaiting condemnation proceedings to assess the price.* Nor is it proper to add to the value because the land was necessary and indispensable to the rail- road." The question is not what is the value and import- ance of the land to the party condemning the land.* In order to prove damages to land which is not taken, but which formed a part of the same parcel, it is competent to show the uses to which it might be profitably applied, be- fore and after the taking. That is one way of showing the diminution in value caused by the taking. It is evidence of the actual capacity of the land for future improvement as -a fact affecting its value.' Where the owner testifies as to the value of his property before and after the taking, for the purpose of showing the ground of his opinion, he may show that it was adapted to residence purposes before but not iifter.* Offers by way of compromise are not admissible. The question whether an offer was made by way of com- promise is a question of law, to be settled by the court be- fore the evidence would be admissible as coulpetent.' The market value must be arrived at by the opinion of witnesses, the value of whose testimony may be shown by cross-exami- iiation.^" Value rests merely in opinion. Hence persons 343 § 168 OF THE NATURE AND AMOUNT OF DAMAGES. acquainted with the value of the property may state their opinions as to the value and the amount of damages ; and such persons are not necessarily experts." It is competent to ask the value of the property without restricting the question to cash market value. ^^ Any evidence is compe- tent and any fact is proper to be considered which legiti- mately bears upon the question of the marketable value of the property .^^ In the case last cited, the court say: " When we speak of the market value of property as being what purchasers generally would pay for it, we do not mean what men would pay who had no particular object in view in purchasing, and no definite plan as to the use to which to put it." The owner has a right to its value for the use for whichit would bring the most in the " market." The ques- tion whether witnesses are sufficiently acquainted with the \land in question is largely a matter of discretion with the court. ^* Knowledge acquired as a county commissioner, assessor, or selectman, in laying out public ways or assessing damages, or from sales of other property in the vicinity, make a person a proper witness.-'* The price which the owner gave may be put in evidence ; and then the owner may be permitted to show the circumstances under which he bought, and the improvements made by him, and in so doing may put in his deeds. ^^ It is not proper to ask the average annual net profits of the strip taken. Profits vary with cost of labor, etc. The basis should be the market value of the land.^' Market value would not include the price of coal or minerals in the land, because that would necessitate inquiry into the cost of raising it ; and hence what would be given for the land with the coal in it is the only rule.^' The market value of the land is to be considered, and the jury should not con- sider the expenditures that may have been made upon the property. The expenditures may not have increased the value to the amount of the expenditures. Whether the expenditures which had been made upon the land were wise 344 OF THE NATURE AND AMOUNT OF DAMAGES. § 168 or unwise, whether vohiuttirily or compulsorily made in order to abate a nuisance, the cost of such expenditures is not necessarily to be taken as additional value to the laud as it would have been without such expenditures.^' It is not competent to show what other persons had been allowed for their property, in order to establish the amount of one's injury by comparison. The assessment of dam- ages in other cases may have proceeded upon incorrect principle, or the amount paid may have been the result of contract and in excess of the true value. Such a mode of inquiry was improper, because it furnislied no accurate standard for estimating the defendant's damages, and was likely to lead to the introduction of many collateral issues. Where the owner of land to be taken for a street agrees to take a certain sum therefor, and said offer was not made by way of compromise or for the purpose of avoiding lit- igation, such fact will be considered as evidence of the value that the owner placed upon the land.^" The measure of the land-owner's compensation isthe value of tiie land at the time it is taken ; therefore, any supposed future increase of value, by reason of the building of the proposed road, should not be taken into account.'^^ In an action for damages from a railway which had not condemned the right of way the same rule of damages is admissible as if the proceedings were to condemn.^'' 1 King V. Minneapolis Ey., 32 Minn. 224; Patterson v. Boom Co., 3 Dill. 465; Lawrence v. Boston, 119 Mass. 126; Somerville B. R. V. Dou<;hty, 22 N.J. L. 495; Eobb v. MaysvUIe Turnpike, 3 Mete. (Ky.) 117; Memphis v. Bolton, 9 Heisk. 508; Green o. Chicago, 97 111. 370; Jacksonville Ry. v. Walsh, 106 111. 25.'?; Gulf Ey. v. Puller, 63 Texas, 467; Hooper v. Savannah E. E., 69 Ala. 529; Everett V. Union Pacific Ey., 59 Iowa, 243; County of Blue Earlh v. St. Paul E. E., 28 Minn. 603; Levee Commissioners v. Harkleroads, 62 Miss. 807. " Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544; Lake Shore Ey. V. Chicago E. E., 100 111. 21; Chicago R. B. v. Jacobs, 110 111. 414; Chi- cago Ey. V. Chicago E. E., 112 111. 589. 2 Lawrence v. Boston, 119 Mass. 1'26; Tufts v. Charlestown, 4 Gray, 637; Eobb v. Maysville Turnpike, 3 Mete. (Ky.) 117; Moultonu. Newbury- port Water Co., 137 Mass. 163. 345 § 1()9 OF THE NATURE AND AMOUNT OF DAMAGES. • Cobb V. Boston, 112 Mass. 181; Fall River Works v. Fall Elver, 110 Mass. 428; Howard v. Providence, 6 R. I. 514. ' Virginia E. R. v. Elliott, 5 Nev. 358; Penny v. Penny, 37 L. J. (Ch.; 340; Union Depot Co. v. Brunswick, 31 Minn. 297. "> Gardner v. Brookllne, 127 Mass. 358 ; Moulton v. Newburyport Water Co., 137 Mass. 163. ' Drury v. Midland R. R. Co., 127 Mass. 571. ' McClean v. Chicago Ry., 67 Iowa, 668. » Davis V. Charles River R. K., 11 Cush. 506. ii> Snow 1). Boston R. R., 65 Me. 230; Dwight v. Hampden, 11 Cash. ■201 ; Pennsylvania R. R. v. Bunnell, 81 Pa. 414 ; Lafayette R. R. v. Win- slow, 66 III. 219; Illinois R. R. v. Von Horn, 18 111. 257; Simmons v. St. Paul R. R., 18 Minn. 184; Springfield Ey. v. Rhea, 44 Ark. 258. u Shattucku. Stoneham R. E., 6 Allen, 115; Swan v. Middlesex, 101 Mass. 173; Whitman B. Boston E. E., 7 Allen, 313; Wyman ». Lexington R. R., 13 Mete. 316 : Inhabitants of West Newbury v. Chase, 6 Gray, 421 ; Walker v. Boston, 8 Cush. 279; Indianapolis R. E. v. Pugh, 85 Ind. 279. 12 Cincinnati E. E. v. MIms, 71 Ga.-240. ^ King V. Minneapolis Ey., 32 Minn. 224. " Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544. 1' Swan u. Middlesex, 101 Mass. 173; Sexton ». New Bridgewater, 116 Mass. 200 ; Dickenson v. Pitchburg, 13 Gray, 546. " Ham w. Salem, 100 Mass. 350; Commonwealth v. Pittsburgh R. R., -58 Pa. 26; St. Louis Ey. v. Smith, 42 Ark. 265. " Stockton R. R. v. Galgiani, 49 Cal. 139. " Searle ■!;. Lackawanna R. R., 33 Pa. 57. 1' Squire v. Somerville, 120 Mass. 579. =» Springfield v. Schmook, 68 Mo. 394. 21 Union Depot Co. u. Brunswick, 31 Minn. 297. 22 Houston Ey. Co. v. Adams, 63 Texas, 200. § 169. Expert witnesses. — There must be some special knowledge on the part of the witness to render him admis- sible as a witness to give an opinion on values. A farmer cannot be a witness as to the value of a fishing-privilege.^ The true inquiry is, whether the witness is sufficiently in- formed on the subject to give evidence of the value of the property. How that information or knowledge was ac- quired is quite immaterial if it really exists.^ The witness may be called upon to state his reasons for fixing the dam- ages at the sum stated-.^ There is no presumption that a witness is competent to giVe a reliable estimate of the market value of land.* Witness may be asked if he knows the value of the land." Persons having particular knowl- ,346 OF THE NATURE AND AMOUNT OF DAMAGES. § 169 . Hampden, 11 Cash. 201; Matter of Furman St., 17 Wend. 649; Matter of New York Central E. E., 13 N. Y. Sup. Ct. 149; Shenango E. R. V. Braham, 79 Pa. 447; Schuylkill Co. v. Thoburn, 7 Serg. & E. 411 ; Harrison v. Young, 9 Ga. 359; King v. Minneapolis Ey., 32 Minn. 224; Chicago Ey. v. Chicago R. R., 112 III. 589; Pittsburgh R. R. v. Patterson, 107 Pa. St. 461 ; Washburn v. Milwaukee R. R., 59 Wis. 364 ; Wakefield v. Boston R. R., 63 Me. 385; County of B'.ue Earth v. St. Paul R.R., 28 Minn. 503; Sherman u. St. Paul Ry., 30 Minn. 227; Michigan Ry. v. Barnes, 44 Mich. 222. * ' Chicago Ry. v. Chicago R. R., 112 111. 589. * Shenandoah R. R. v. Shepherd, 26 W. Va. 672. ' King t). Minneapolis Ry., 32 Minn. 224. " Burt V. Wigglesworth, 117 Mass. 302; Levee Commissioners o. Har- Meroads, 62 Miss. 807; Sedalia Ey. v. Abell, 18 Mo. App. 637. ' Union R. R. Co. v. Moore, 80 Ind. 458. » Cobb D. Boston, 112 Mass. 181 ; William and Anthony Sts., 19. Wend. 678; Matter of Furman St., 17 Wend. 649. » ■Eastern R. R. v. Boston R. R., Ill Mass. 125; Boston R. R. v. Old Colony R. R., 12 Cush. 605. 356 or THE NATURE AND AMOUNT OF DAMAGES. § 174 ^ Whitney v. Boston, 98 Mass. 312. u Dorian v. East Brandywine E. E., 46 Pa. 520; Selma E. E. v. Keith, S3 Ga. 178. ^ Eddings V. Seabrook, 12 Rich. L. 504. i' Central Pacific E. E. v. Pearson, 35 Cal. 247. " Selma E. E. v. Keith, 53 Ga. 178. 1' Fleming v. Chicago E. E., 34 Iowa, 353. '^ New Britain v. Sargent, 42 Conn. 137. 1' Eider c. Striker, 63 N. Y. 136. 18 Colville V. St. Paul E. E., 19 Minn. 283. 19 Chicago E. E. v. Jacobs, 110 111. 414. 2» Fairbanks v. ITitchburg E. E., 110 Mass. 224; Pinkham v. Chelms ford, 109 Mass. 225. 21 Conter v. St. Paul E. E., 22 Minn. 342. 22 Gardner ■«. Brookline, 127 Mass. 358. 23 Dickenson v. Eltchburg, 13 Gray, 546 ; Cohen v. St. Louis E. E., 34 Kan. 158. 2» Mix V. Lafayette E. E.,, 67 111. 319. 25 Haslam v. Galena E. E., 64 111. 353. 2s Young V. Harrison, 17 Ga. 30; Harrisons. Young, 9 Ga. 359. 2' Union Depot Co. v. Brunswick, 31 Minn. 297. 28 Sullivan «. Lafayette Co., 61 Miss. 271. 29 First Parish v. Middlesex, 7 Gray, 106; Matter of Albany St., 11 Wend. 149. If land devoted to consecrated purposes, is taken and de- voted to secular purposes, the English rule would require compensation according to its value for secular purposes. Hilcoat v. Archbishops of Canterbury and York, 19 L. J. (C. P.) 376; Ee Burial Ground of St. Pan- eras, 36 L. J. (Ch.J 52. '» Patterson v. Boom Co., 3 Dill, 465 ; Moulton v. Newburyport Water Co., 137 Mass. 163. 31 BlackEiver E. E. B.Barnard, 16 N. Y. Sup. Ct. 104. 32 Cincinnati E. E. v. Longworth, Supreme Court Commission, Ohio, 5 Cent. L. J. 333; 30 Ohio St. 108. " La Mont v. St. Louis Ey. Co., 63 Iowa, 193. § 174. Assessment should be of the value at the time of taking.^ — The owner is not entitled to the increased value occasioned by the proposed improvement. The value should he estimated irrespective of the proposed improvement.^ Land which is taken by widening of a street is not to be estimated as of the value of land on a street as wide as the proposed street.' The assess- ment should be of the value at the time of taking, although the statute provided that the title should vest only when compensation was paid.* The time of taking cannot be 357 § 174 OF THE NATURE AND AMOUNT OTT DAMAGES. referred to the time of the trial, or to a time when the proceedings were continuing, but should be from the time of the appropriation ^ or appraisement.^ It frequently hap- pens that long intervals occur between the taking and the trial ot the question of compensation, especially when com- pensation is not required to be paid in advance. The damages should include the most injurious consequences to the property by the proposed taking, as if the proposed occupation were complete and the damages resulting were all known.' The legislature cannot fix the time of taking as prior to the time when the taking really occurs, so as to cause the owner to lose the enhanced value at the time of the taking; that is, when the land cannot bo occupied until compensation is paid, the owner could not be charged with rent from the time fixed by the legislature to the time of the actual condemnation.' The owner is not prevented from improving his property, although the proposed condemna- tion was known to him. He need not wait on the move- ments of the corporation, and damages must be paid for improvements made up to the time of the condemnation.' The value at the time of the actual condemnation,-'^'* or of the constructive appropriation, must be paid when such an act as the filing; an award is declared to constitute the taking. ^^ When the time is fixed for an appropriation, it does not signify that the improvement itself is not completed for two years. ^^ The company cannot, however, delay the proceed- ings, without payment of compensation, as long as four years, and then endeavor to assess the value at the time of a constructive appropriation. The owner is entitled, under such circumstances, to a new valuation, to cover the enhanced value of the property. A year's delay is all that could be countenanced. 1^ 1 Hosher ». Kansas City R. R., 60 Mo. 329; Patterson v. Boom Co., 3 Dill. 465; Arnold v. Covington Bridge, 1 Duv. 372; Texas R. R. Co.i;. Matthews, 60 Texas, 215; Hampden Paint Co. v. Springfield, etc., R. R., 124 Mass. 118; OldColonyR. R. y. Miller, 125 Mass. 1; Sweaneyu. United States, 62 Wis. 396; Texas Ry. v. Cella, 42 Ark. 528; Sedalla Ry. v. Abell, 358 OF THE NATURE AND AMOUNT OF DAMAGES. § 175 18 Mo. App. 633; Sherman v. St. Paul Ey., 30 Minn. 227; County of Blue Earth v. St. Paul R. E., 28 Minn. 503. 2 Vanblaricum «. The State, 7Blackf. 209. 3 Dorgan v, Boston, 12 Allen, 223. * Burt V. Merchants' Ins. Co., 115 Mass. 1. ' Logansport E. E. v. Buchanan, 52 Ind. 163; Indiana E. R. v. Hunter, 8Ind. 74; Milwaukee E. E. u. Eble, 4 Chand. 72; HolUngsworth ?j. Des Moines Ey., 63 Iowa, 443. « Metier v. Easton E. E., 37 N. J. L. 222; Burnett v. Nicholson, 86 N. -C. 99 ; Morin v. St. Paul Ry., 30 Minn. 100. ' Schuylkill Nav. Co. v. Farr, 4 Watts & S. 8G2; Schuylkill Co. v. Tho- iDurn, 7 Serg. & E. 411. ' Cook V. Park Commissioners, 61 111. 115. 9 Driver v. Western E. E., 32 Wis. 569. ''■" Daniels v. Chicago, E. R., 41 Iowa, 62. u Warren v. St. Paul R. E., 21 Minn. 424; Sherwood v. St. Paul E. E., 31 Minn. 122. 12 Delaware R. E. v. Burson, 61 Pa. 369. 13 Bensley v. Mountain Water Co., 13 Cal. 306. § 175. Interest on award. — Interest should run from the time of the taking, ^ for until that time the owner has the use of the land, and until then there could be no de- mand and no default.^ Interest will always run from the time of demand.^ If the payment is delayed by litiga- tion, interest should be allowed.* ' The owner should not be liept out of his property and his money at the same time. Hence the court will always allow interest, unless a tender or deposit is made.* If the amount is deposited in the state treasury for the use of the owner, and might be taken with- out prejudice to his right of appeal and claim for increase of damages, interest will not be allowed on the tender dur- ino- the time of appeal, but only on the excess given on appeal.^ If no increase is obtained on appeal, no interest will be given.' Otherwise, if security alone is given; in that case, the owner would be out of his money and his land at the same time, and should have interest to cover the use of the land.^ The right to use the land is not always equiva- lent to the interest, for the owner cannot dispose of his_ land, or rent or improve it ; and when it is shown that the owner actually derived less value from the land than the 359 § 175 OF THE NATURE AND AMOUNT OF DAMAGES. interest, this may be shown, and the amount derived be deducted from the interest.' The right to taiie may de- pend on the confirmation of the proceedings. Until that time, the owner has the use of the property, and can ordi- narily claim only from the time the title passes.^" The duty of making compensation includes the duty of ascertaining it, and hence the condemning party must pay from the time of taking, although proceedings were not instituted until later. ^^ If the statute allows the condemning party two years iu which to collect and pay damages, the interest would commence running after the expiration of the two years. 1^ Delays in payment require interest to be paid; but where there is a delay of only two days between the award and the tender of the money, the interest will be dis- regarded by the courts. ^^ By statute, the time of payment may be placed at thirty days from the award, and in such cases the interest will not run until the expiration of that time.^* 1 Bangor K. R. v. McComb, 60 Me. 290; Kidder v. Oxford, 116 Mass.. 165; Delaware E. E. v. Burson, 61 Pa. 369; Illinois E. R. v. McClintock,. 68 111. 296; Cook v. Park Commissioners, 61 111. 115; Missouri E. R. w. Owen, 8 Kan. 409; Minneapolis v. Wilkin, 30 Minn. Ii5; Eeed». ^Chicago Ey., 25 Fed. Eep. 886; Sioux City E. E. v. Brown, 13 Neb. 317; Hayes v Chicago Ey., 64 Iowa, 753 ; Chandler v. Jamaica Pond Aqueduct, 125 Mass.. 544; Hartshorn v. Burlington Ey., 52 Iowa, 613; Boles v. Boston, 136 Mass. 398 ; Getz v. Philadelphia R. E., 105 Pa. St. 547 ; Cohen v. St. Louis E. E., 34 Kan. 158 ; Hollingsworth «. Des Moines Ry., 63 Iowa, 443 ; Texas Ey. V. Cella, 42 Ark. 528; Sweaney v. United States, 62 Wis. 396; Old Colony E. E. ■». Miller, 125 Mass. 1; Fink v. Newark, 40 N. J. L. 11; West V. Milwaukee Ey., 56 Wis. 378. In Michigan, interest is not considered to be due except by custom or statute. The People v. La Grange, 2 • Mich. 187. 2 Gay V. Gardiner, 54 Me. 477; Eeed v. Hanover Branch R. E., 105 Mass. 303; Detmold c. Drake, 46 N. Y. 318; Hamersley «. New York, 56 N. y. 533 ; Metier v. Easton E. E., 37 N. J. L. 222 ; Warren v. St. Paul E. E., 21 Minn. 424; Knauft v. St. Paul E. E., 22 Minn, 173. 3 Clough V. Unity, 18 N. H. 75 ; Fiske v. Chesterfield, 14 N. H. 240 -^ Beaveridge v. Park Commissioner, 100 III. 75. * Haverhill Bridge v. County Commissioners, 103 Mass. 120; Whitmaa V. Boston E. E., 7 Allen, 313; Warren v. St. Paul E. R., 21 Minn. 424. ' Concord R. R. v. Greely, 23 N. H. 237. « Shattuck V. Wikon R. R., 23 N. H. 269; Watson v. Milwaukee Ry., 5T 360 OF THE NATURE AND AMOUNT OF DAMAGES. §§ 176, 177 Wis. 332; Westu. Milwaukee By., 56 Wis. 318. The English rule is sub^ stantially the same. Crystal Palace Rail. Co., 19 Jur. 995. ' March v. Portsmouth B. R., 19 N. H. 372. 8 Shattuck V. Wilton R. R., 23 N. H. 269. » Warren v. St. Paul R. R., 21 Minn. 424; Fink v. Newark, 40 N. J. L. 11. 1" Norris v. Philadelphia, 70, Pa. 332 (qualifying Philadelphia u. Dyer, 41 Pa. 463); Harness v. Chesapeake Canal, 1 Md. Ch. 248; Hamilton v.. Annapolis R. R., 1 Md. Ch. 107; Chesapeake R. R. v. Bradford, 6 W. Va.. 220. u Railroad v. Gesner, 20 Pa. 240; Young v. Harrison, 17 Ga. 30. 12 Chicago 1), Wheeler, 25 111. 478. 1' Scott ». St. Paul R. R., 21 Minn. 322. " Phillips -B. Pease, 39 Cal. 582. § 176. Interference with use before taking, — The general rule is, that the damages should date from the tak- ing, and that interest should run from that time. The oc- cupation, \)j the owner, of his property, up to the time of the taking, is presumed to compensate for interest on award. In the case, however, of a building which is de- voted to offices to be sublet to various parties, the owners of the building may show that, by reason of the proceed- ings, they have been unable to derive any benefit from the use of the buildings, and may recover a reasonable allow- ance for this interference.^ 1 Edmands v. Boston, 108 Mass. 535. § 177. Interference with, use during construction — lioss of profits. — No damages are allowed for loss of profits or decline of business, caused by a public improve- ment, — as, that a railroad has diverted business from a turnpike, or that a new road had changed the line of travel so that the patronage of an old inn had been decreased.^ Still, there may be such an interruption in business by tear- ing down the front of a building in widening a street, or constructing a railroad in a street, that damages should be allowed. The rental value of such building, for use, is de- creased by such improvement, and damages should be allowed for the necessary expense in moving to another place equally eligible, and the loss of regular, reasonable 361 ^178 OP THE NATURE AND AMOUNT OF DAMAGES. profits during^ the time of interruption. "The owner cannot properly remain in the old locality and charge up the loss,^ So, a railroad is entitled to incidental damages occasioned by interruption by another road making a crossing with its road by cutting through an embankment.^ If time is given to remove, so that business is not interfered with, there will be no damage for interruption. In a case arising in Illinois, the commissioners awarded as follows : "And if the said improvements shall be retained by the said owners for a period of three months, then we find that no damage has accrued to them (the said owners) by reason of the inter- ruption of their said business ; and if the said owners shall retain the possession for two months, then we fix the dam- age of interruption at sixteen huudred dollars ; and if the said owners shall retain the possession one month, then we fix the damages at thirty-two hundred dollars; and for the removal of their tools and implements necessary to carry on their business, we fix the damages at two hundred dol- lars." The owners tendered the keys within one month, and claimed the $3,200. The court held that the company could take possession at any time it pleased, and that the owners could not dictate the time; and that if entry was not made within the three months, no damages could be Tecovered.* ^ Lehigh Valley Coal Co. v. Chicago, 26 Fed. Bep. 415; Burnett v. Nicholson, 86 N. C. 99. 2 GetziJ. Philadelphia K. H., 105 Pa. St. 547; St. Louis R. R. v. Capps, 67 III. 607; Jubb v. Hull Docli Co., 9 Q. B. 443. 3 Chicago R. E. v. Springfield E. E., 67 III. 142. * Glennon v. Milwaukee R. R., 79 111. 501. § 178. On a taking subsequent to the Improvement. — It may become necessary to take other land than that orig- inally taken, and, since the first taking, the land has been enhanced in value by the improvement already made. In such a case, the estimate should be of the value at the time of the subsequent taking, and should include the value added by the improvements. The owner might have sold his land, in the interval, at'the enhanced value, and his 362 OF THE NATURE AND AMOUNT OF DAMAGES. §§ 179, 180 purchaser could not be compelled, on the subsequent con- •demnation, to take only the original value before the orig- inal improvement was contemplated. The owner would be -entitled to the same enhanced value as the purchaser. 1 Stafford v. Providence, 10 E. I. 567. § 179. Taking part of a railroad. — The damage for taking a part of a railroad cannot be estimated as of the value of the part taken alone, when the taking would ren- der the rest useless until a new railroad could be erected. The damages should also include loss of time in erectins: the new railroad. ^ 1 In re Poughkeepsie R. E., 63 Barb. 151. Case where a railroad used for bringing minerals from a mine was taken. § 180. Plan of proposed improvement. — It is proper to put in evidence tiie plan of the proposed improvement ; and the engineer may be asked as to the cuts, embank- ments, culverts, etc., in order to give an additional idea as to the damages.^ If the proposed road requires excavation or filling, in order to be reached from adjoining land, that fact is admissible in evidence, to reduce benefits.'' The official record of the location is admissible.^ The company may show that a culvert was necessary to the safety of the road, aud that such culvert would obviate damages appre- hended from an embankment shown on the plan, although the culvert was not shown on the plan. It is presumed that the company will build bridges and culverts in the safest manner for the road ; and it will not be presumed that they will be negligent, and make unnecessary damages."* If the railroad is to be built iu the street, according to a certain ordinance, it is proper to put the ordinance in evi- dence, as tending to show the probable amount of dam- ao-es." It is not admissible to ask the engineer how he proposes to make a cut across one railroad for the use of another railroad, or whether the railroad company expected to keep the work in repair. Expectations or intentions of engineers and conductors are not binding on the company. The damage to the company whose road is crossed is such. 363 OF THE NATURE AND AMOUNT OF DAMAGES. § 180 sum as will enable them to keep their track in repair, taking into consideration the changes occasioned by the new cross- ing.* The actual plans are evidence, and must be strictly followed, or there will be a new inquiry of damages.^ If the company refuse to exhibit plans and profiles, the jury will be authorized to presume that the most injurious mode will be followed in which it might probably be done.^ The company may be compelled to disclose the proposed use, so that the award may be iu reference to the same.' In a con- demnation proceeding where a right of way is sought by one company for a bridge over land of another company, the defendant company may ask for an order requiring plaint- iff to exhibit plans, etc., of the proposed structure, so as to show the character, extent and location of the structure to be erected.^" The statements of the city engineer, as to the extent of a proposed change in the grade of a street, is com- petent to be given in evidence in an action for damages by the lot-owner against the city, for injury occasioned by the improvement." A plat properly verified may be used in evidence, to show the situation of lots in controversy, and a witness acquainted with the land and the plat may point out their relative situations to the jury.^' 1 March v. Portsmouth E. R., 13 N. H. 372; Nasoa li. WoonsocketB. R., 4 R. I. 377; Rondout R. R. b. Deyo, 5 Lans. 298; Jacksonville R. R. v. Kidder, 21 1.1. 131 ; St. Joseph R. R. v. Orr, 8 Kau. 419 ; Lake Shore R. R. V. Chicaso R. E., 97 III. 506. ■" Plympton v. Woburn, 11 Gray, 415. 3 Dwight 17. Hampden, 11 Cash. 201. ^ Nason «. Woonsocket R. R., 4 R. I. 377. 5 Mix». Lafayette E. R., 67 111. 319. 8 Chicago R. R. v. Springfield R. R., 67 111. 142. ' Jacksonville R. R. v. Kidder, 21 111. 131; Peoria R. R. v. Birkett, 62 111. 333 ; 8 Jacksonville E. R. . Eastern R. R., 14 Allen, 65; Brown v. Providence R. R., 5 Gray, 35. ^ Proprietors of Locks t). Nashua R. R., 10 Cush. 385; Parker v. Boston E. R., 3 Cush. 107. * Clarke. Saybrook, 21 Conn. 313. <: Chamberlain v. West End Rail. Co., 31 L. J. (Q. B.) 201. ' Caledonia Rail. Co. v. Ogilvy, 2 Macq. H. L. Cas. 229. ^ Cummins v. Des Moines Ry., 63 Iowa, 397; Blesoh v. Chicago Ry., 48 Wis. 168. § 184. Reasonable use of adjoining property. — An owner has the right to demand that his neighbor shall not use his property in a way injurious to his own, and a vio- lation of this right constitutes a cause of action. Corpora- tions, when created by the legislature for the purpose of 368 OF DAMAGES CONSIDERED CONSEQUENTIAL. § 185 making improvements, are liable as individuals. While their acts may not be trespasses, being done under legis- lative authority, they will be responsible in damages for violations of the right, set forth in the maxim, sicutere tuo ut alienum non loedas} Throwing dirt against the side of a fence, in constructing a road, if unreasonable, or unneces- sary, or Tuiskillf ul, gives an action on the case.^ An adjoin- ing owner might, without liability, pull down a party wall, and a corporation having acquired the adjoining property may treat it as a private owner might. ^ The fact that a publiq improvement, such as a sewer, may be on land adjoining that of a private owner, does not prevent such owner from excavating on his land, although in doing so he may withdraw soil which gives lateral support to the sewer. The public owner has no greater rights than i, pi'ivate owner. The public might condemn an easement of lateral support, if it was so minded.* The public property cannot be so used as to cause a deposit of earth on land of adjoining owner.^ An estate opposite a park, but separated :from it by a county road, is not an abutting estate.* 1 Thompson v. Androscoggin Improvement Co., 54 N. H. 546; Eaton ". Boston & Maine R. R., 51 N. H. 504. 2 Kelch V. Gilman, 23 Vt. 38. » Rdx v. Hungerford Market Co., 5 Ad. & E. 668. * Metropolitan Board v. Metropolitan Rail. Co., 38 L. J. (C. P.) 172. 5 Hendershott v. Ottumwa, 46 Iowa, 58. 8 Holt V. City Council of Somerville, 127 Mass. 408. § 185. Excavations on adjoining land. — Although no land is taken, damages will be allowed for incidental injury resulting from excavations on adjoining land.l A railroad company have a right to dig for water on their rio-ht of way, even if that digging impairs wells of adjoining owner-i. Obtaining water for use of the railroad is a proper Tise of the right of way.^ The corporation has a right to make excavations on its own land, as an ordinary owner has ' on his own land, and no damages will be allowed for injuries resulting from careful construction. An individual might not dio- his own soil so that his neighbor's soil shall fall-in 24 369 §§ 186,187 OF DAMAGES CONSIDEKED CONSEQUENTIAL. of its own weight : but the charter of a company excavating^ is a legislative license for such excavation,^ and the com- pany is not compelled to erect walls to protect adjoining^ owners from falling-in of their soil, when no carelessness is shown.* Damages will be considered arising from the disappearance of a spring or well, caused by an excavation, on adjoining land, as being the results of the use to which the land is put.^ Public authorities, while grading or re- pairing, have no right to go upon adjoining land and pur- posely take soil." 1 Whittieer v. Portland K. R., 38 Me. 26; Alexander i;. Milwaukee, IS Wis. 247. 2 Hougan v. Milwaukee R. R., 35 Iowa, 558. 3 Bootliby V. Androscoggin R. R., 61 Me. 318. * Hortsman v. Lexington R. R., 18 B. Mon. 218. 5 Aldrich i;. Cheshire R. R., 21 N. H. 359; Proprietors of Locks v^ Nashua R. R., lOCush. 385; Parker v. Boston R. R., 3 Cush. 107; Peoria. R. R. V. Bryant, 57 111. 473. « Moore v. City of Albany, 98 N. Y. 396. § 180. Blasting on adjoining' lands. — Damages oc- casioned by blasting on adjoining lands have been allowed, as being occasioned by the proper construction of the road, although no land is taken from the individual injured. Blasting is proper, and, if conducted carefully and with dua precaution, the damages are direct, and should be estimated in the compensation.^ Such an intrusion on land of others as casting rocks upon it is a taking.^ 1 Dodge V. Commissioners of Essex, 3 Mete. 380; Whitehouse v. An- droscoggin R. R., 52 Me. 208; Sabine v. Vermont Central R. R., 25 Vt.. 363; Brown v. Providence R. R., 5 Gray, 35; Proprietors of Locks B. Nashua R. R, 10 Cush. 385. 2 St. Peters. Denison, 58 N. Y. 416. § 187. Effect of structures on adjoining lands. — The public may use the property condemned, in any way in which a private owner might use the same. The private owner may erect such structures as he desires, and if the effect is deleterious on his neighbor, the damage is conse- quential. A structure on land condemned rany interfere with the flow of surface-water, may cause an accumulation. 370 OF DAMAGES CONSIDEEED CONSEQUENTIAL. §§188, 1S9 of snow Oil a neighbor's land,^ or may cause adjoining land to be damaged by wasliing, and may threaten further dam- age,* and yet the damage be considered consequential. A private owner could not erect an embankment which would obstruct the flow of a stream, and a corporation can do no more ; and damages may be recovered in a common-law action, although the embankment may be erected in a proper manner,' The damages sustained by the owner in fee of the highway along which telegraph poles are erected, are indirect or consequential, and no compensation is to be made therefor.^ 1 Tiuicum Pishing Co. v. Carter, 90 Pa. St. 85; Carson v. Western E. R., 8 Gray, 423. 2 McKenney v. Commissioners, 40 Me. 136. ' Evansville K. E. v. Dick, 9 Ind. 433. ' Pierce v. Drew, 136 Mass. 75. § 188. Cut through a natural barrier. — The proper use of adjoining soil would prevent the cutting of a natural barrier which protected land from overflows from a river. A case illustrating this rule arose in New Hampshire,' and the decision is one of marked ability. The cut was not on the plaintiff's land, but on land adjoining. Another case, decided at the same time, was that of the man who owned part of the rid^e which served as a barrier. He was allowed such dam- ages only as occurred to him by the cutting of that portion of the ridge beyond his line ; that occurring by the cut on his own land is presumed to, have been considered in the original assessment. This doctrine is denied in the case of Alexander v. Milwaukee;' but that case is now looked on as an extreme case, even in "Wisconsin. 1 Eaton V. Boston & Maine R. R., 51 N. H. 604. 2 16 Wis. 247. §189. Interference with the flow of surface-water. — An interference with the flovv of surface-water, caused by a public improvement authorized by law, is a consequential injury. If a railroad or public road, made with reasonable <3are and skill, incidentally injures adjoining land by ob- 371 § 189 or DAMAGES CONSIDERED CONSEQUENTIAL. / structing the flow of surface-water, there can be no recov- ery for such injury;^ otherwise of an obstruction of a stream or water-course, or of a ditch in which surface-water should be carried off. ^ In Texas and a few other States, following the civil law, the rule is that damages are to be given for obstruction of the flow of surface-water.^ A city cannot lawfully by drains gather surface-water into one chan- nel and pour it out even upon its own streets to the injury of property owners, without making some provision for its es- cape.* An individual owner would not be allowed to use his property so as to cause the overflow of a natural steam. The owner may build on his own land a barrier, and thus stop a flow of surface-water on his own land, although in so doing he may stop up a culvert.'' The damages which result from all obstructions of the kind mentioned, where they necessarily result from the taking, are pre- sumed to have been considered by the commissioners in as- sessing damages, and hence are not the subject of a subse- quent action.^ Compensation should be given for making and maintaining a railway without sufficient drainage to protect the neighboring property.' For failure to maintain drains sufficient to carry off rain and spring water, the English doctrine gives an action for damages, outside of the compensation allowed by the Lands Clauses Consolidation Ac.^ If the construction of a raih-oad across a farm lessens its value by preventing the flow of surface-water from one part of the farm to another, tiiis is a proper element to be taken into consideration in fixing the amount of compensa- tion to which the owner is entitled.' ' Hosher v. Kansas City R. R., 60 Mo. 329; Munkers d. Kansas City R. R., 60 Mo. 334 ; Bellinger v. New Yoik Central R. R., 23 N. Y. 42; Ral- eigh E. R. V. Wicker, 74 N. C. 220; Jones u. Wabash Ry., 18 Mo. App. 251; Henderson v. Minneapolis, 32 Minn. 319; Waters v. Village of Bay View, 61 Wis. 642; Swenson v. Lexington, 69 Mo. 157; Abbott v. Kansas City R. R., 83 Mo. 271 ; Imler v. Springfield, 65 Mo. 119 ; Moss v. St. Louis Ry., 85 Mo. 86; Martin v. Beuoist, 20 Mo. App. 262; Hanlinu. Chicago Ry., 61 Wis. 615; Lynch v. Mayor, etc., 76 N. i'. 60; Mayer ti. New York R. R., 88 N. Y. 353; Morrison v. Bucksport R. R., 67 Me. 353; Mayor of 372 OF DAMAGES CONSIDEKKD CONSEQUENTIAL. § 190 Cumberland v. Willison, 60 Md. 138. But see Shane v. Kansas City E. R., 71 Mo. 237, with dissenting opinion by Hougli, J. Higliways may be constructed on embankments which do not provide a sufflcient culvert for carrying off the surface-water from adjoining lands. Gould v. Booth 66 N. Y. 62. 2 Waterman v. Connecticut E. E., 30 Vt. 610; Franklin v. Fisk, 13 Allen, 211; Ealeigh E. E. v. Wicker, 7i N. C. 220; Eoss v. Clinton, 46 Iowa, 606. A railroad company is not responsible for interference with flow of surface-water where there is no marked stream or brook, and where there is no water but at exceptional seasons of the year There may be injury to land left, by the use that was to be made of the land taken ; and that should be included in the assessment, as a damage properly recoverable in that form. Morrison v. Bucksport E. E., 66 Me. 353. Surface-water arising from rains and snows cannot be collected into a single channel, and cast in large volume upon the premises of another. Bastable v. Syracuse, 15 N. Y. Sup. Ct. 687; Sleight v. Kingston, 18 N. Y. Sup. Ct. 594. 3 Gulf Ey. V. Donahoo, 69 Texas, 128; Railway Co. v. Tait, 63 Texas, 223; Gilbert v. Savannah R. R., 69 Ga. 396; Springfield Ey. v. Henry, 44 Ark. 360. * Weis V. City of Madison, 75 Ind. 241; North Vernon v. Voegler, 89 Ind. 77; Crawfordsville v. Bond, 96 Ind. 236. s Franklin u. risk, 13 Allen, 211; Flagg ■». Worcester, 13 Gray, 601- Water flowing in several drains upon a highway cannot be collected in one drain, and the flow imposed upon the land of an adjoining owner. The natural outlets for the drainage must not be changed; and the owner may obstruct the flow of such water, although such obstruction may in- jure the turnpike. Limerick Turnpike Co.'s Appeal, 80 Pa. 425. « Walker V. Old Colony R. R., 103 Mass. 10; Tamer v. Dartmouth, 13 Allen, 291; Flagg v. Worcester, 13 Gray, 601; Grand Rapids R. R. v. Horn, 41 Ind. 479. ' EegiDat). North Union Rail. Co., 1 Bng. Rail. Cas. 729. » Bagnall v. London, etc.. Rail. Co., 31 L. J. (Exch. Ch.) Exch. 480. 9 Pflegaru. Hastings Ry. Co., 28 Minn. 610. § 190. Discliarging' contents of sewer, or water-course, or of canal, on land. — The conveyance of water from land condemned, upon that of an owner adjoining, is a damage to be considered, although no land be taken. The question should be submitted to a jury, whether or not the discharge of the water was necessary and proper in constructing the railroad. Not that the necessity should be an absolute physical necessity, but reasonably necessary ; that is, if the work could not otherwise be accomplished without great or disproportionate expense or labor, or not so safely or effect- 373 § 191 OF DAMAGES CONSIDERED CONSEQUENTIAL. ively.^ A sewer is a proper improvement, and consequen- tial damages should not be allowed; but if the sewer oiJerates as a nuisance, by discharging filth into private docks, or upon flats owned by individuals, the damages cease to be consequential, and become damages directly resulting from the construction of the public improvement.^ A city is liable for damages caused by constructing ditches ,to drain streets ; in concentrating water on adjoining land.^ A canal company cannot discharge water on land not taken, notwithstanding such injury was necessary to save a greater injury to the canal. Such an use of adjoining land could not have been contemplated by the commissioners who assessed damages on the taking. Such damages would be direct, and not consequential. If the company needed lands for such purposes, they should have been regularly con- demned.* A city cannot discharge the drainage of a city into a mill-race used by a mill company, without providing an assessment for such taking, as if taken by the exercise of erninent domain.^ The diversion of a natural sti-eam, by street improvements, is a damage requiring compensation,* 1 Curtis V. Eastern E. E., 14 Allen, 55; Brink v. Kansas City Ry., 17 Mo. App. 177. 2 Haskell v. New Bedford, 108 Mass. 208; Shawneetown v. Mason, 82 111. 387; Breed B. City of Lynn, 126 Mass. 371; Mayor of Union Springs V. Jones, 58 Ala. 654. The diversion of a stream just above a ferry-slip, by the construction of a new sewer, which caused the discharge of the waters of the stream, together with surface-water and sewage, whereby the slip WHS filled with sand and dirt, is actionable. Sleight v. Kingston, 18 N. Y. Sup. Ct. 594. s Mayor of Troy v. Coleman, 58 Ala. 570. * Hooker v. New Haven Co., 15 Conn. 312. 5 Columbus V. Vyooleu Mills, 33 Ind. 435. ^ Mayor of Helenas. Thompson, 29 Ark. 569. § 191. Diversion of trade — Lioss of profits. — The diversion of trade from one locality to another, caused by the building of a public improvement, is a damage strictly consequential, for which no compensation should be made.^ Every man who invests in business does so on the risk of improvements in methods of doing business, and that the 374 OP DAMAGES CONSIDERED CONSEQUENTIAL. § 192 improvement may cause loss to him. A man who has made money by the profit of letting bridle-horses to carry tourists Tip a mountain cannot be allowed damages on account of an improved road up the mountain, although his business may thereby be destroyed.^ No damages can be allowed for the good-will of a business interfered with by condem- nation of buildings,^ or to prospective profits rendered impossible by public improvements.* Where future profits depend upon the productiveness of the soil they are too uncertain to be depended upon as a measure of damages.* 1 Thompson v. Androscoggin Improvement Co., 54 N. H. 545; "Whit- man V. Boston R.R., 3 Allen, 133; Bostoa E. E. «. Old Colony E. R., 12 Cush. 605; Proprietors of Locks v. Nashua E. R., 10 Cush. 385; Charles Elver Bridge v. Warren Bridge, 7 Pick. 344 ; Selma E. E. v. Camp, 45 Ga. 180; Cherokee v. Land Co., 52 Iowa, 279. 2 Mount Washington Eoad, 35 N. H. 134. " Edmunds v. Boston, 108 Mass. 535. * Schuylkill Co. v. Preedly, 6 Whart. 109; Pittsburg E. E. v. Patterson, 107 Pa. St. 461; Jacksonville Ey. v. Walsh, 106 lU. 253; Chicago E. E. v. Dresel, 110 111. 89. s Booker i;. Venice Ey. Co., 101 111. 333. § 192. Interruption of business. — Damages should be allowed for interruption to business caused by taking down the front of a building in widening a street. Compensation should not embrace losses caused by being compelled to move to a less advantageous business stand while the alter- ations are going on, nor the losses by customers going in other stores ; but should embrace the damages to the aver- age earnings which a man in business, with a stock of merchandise on hand, may be supposed temporarily to lose for the actual time his business is necessarily suspended, taking into consideration the nature of the business and the season of the year. If a removal is rendered necessary, there should be added the necessary expense of removal. ^ In case of a lessee, either the rent he would have to pay or the expense of removal, — not both. Rent would not be allowed on an unreasonable delay to rebuild.^ The simple fact that sales were less would not be admissible, unless 375 § 193 OF DAMAGES CONSIDERED CONSEQUENTIAL. connected with other evidence showing that the diminutioti was ill fact occasioned by the operation of widening the street.^ Ordinary improvements in a public street, where no land is taken, give no claim for damages.* Obstruction of the means of access to business houses, entailing a per- ceptible loss of custom, constitutes a damage proper to be considered,* 1 Patterson u. Boston, 23 Pick. 425; s. c, 20 Pick. 169. 2 Patterson v. Boston, 23 Pick. 425. 3 Brooks «. Boston, 19 Pick. 174. * Plant V. Long Island E. R., 10 Barb. 26. 5 East and West India Docls Rail. Co. u. Gattke, 3Mac. &G. 165; Cham- berlain V. West End Rail. Co., 31 L. J. (Q. B.) 201. But where the obstruction is of a public street and temporary in its nature, no compen- sation would be allowed. Rickets v. Metropolitan Rail Co., L. R. 2 H. L. 175. This last case discusses the whole question of obstruction of ways, at great length, and with a full citation of the English and Irish cases. § 193. Noise — Smoke — Frightening horses — "Vibra- tion. — The annoyance from noise, smoke, etc., caused by passing trains ; the frightening of horses, endangering the lives of children and cattle, are consequential damages, for which no compensation is to be made.^ Damages based on supposed insufficiency of culverts, possible destruction by fire, are too uncertain and remote.^ For any negligence in killing of stock, a recovery can be had.^ It has been con- sidered a damage to grazing land to run through the tract a railroad, as the cattle would thereby be disturbed so as not to fatten so readily.* Anticipated annoyance of wor- shipers in a meeting-house, by the use of a new highway brought up close to the church, caused by noisy and disso- lute persons riding by for pleasure on the Sabbath, is no legal ground for damages. The jury cannot act on the assumption that the land-owners will be annoyed by the unlawful acts of others. If others act unlawfully, they may be punished.* No damages will be allowed for inter- fering with the privacy of one's estate, caused by a railroad bringing unwelcome visitors near the owner's grounds,® It was considered to l),e a proper claim for damages that 376 OF DAMAGES CONSIDERED CONSEQUENTIAL. § 194 vibration, caused by the running of a railroad, rendered beer in a public-house unfit for consumption.'' This is a species of damages which cannot be demanded after the con- struction and operation of the road in the ordinary manner of operating roads, but is to be settled, once for all, in the assessment for damages for the takino'." 1 Parrot v. Cincinnati R. R., 10 Ohio St. 624; Proprietors of Locks v. Nashua R. R., 10 Cash. 385; Bordentown Turnpike Co. v. Camden R. R., 17 N. J. L. 314; Caledonia Rail. Co. v. Ogilvy, 2 Macq. H. L. Cas. 229; Wood V. Stourbridge Rail. Co., 16 C. B. (n. s.) 222. Contra, Elizabeth- town R. R. V. Combs, 10 Bush, 382 ; Chicago R. R. v. McGinnis, 79 111. 269;^ Stone V. Pairbury R. R., 68 111. 394; Indianapolis R. R. o. Hartley, 67 111. 439; South Carolina R. R. v. Steiner, 44 Ga. 54G; Jeffersonville R. R. v^ Esterle, 13 Ky. 667; Dimmick v. Council Bluffs Ry., 58 Iowa, 637. 2 Preemont R. R. v. Whalen, 11 Neb. 585; Gilmore v. Pittsburgh R. R.,^ 104 Pa. St. 275. ' Alabama R. R. v. Burkett, 46 Ala. 669; Raleigh R. R. v. Wicker, 74 N. C. 220. < Baltimore R. R. v. Thompson, 10 Md. 76. ' First Parish v. Middlesex, 7 Gray, 106. ' Patten v. Northern Central R. R., 33 Pa. 426. ' London & North-Western Rail. Co. ■». Bradley, 6 Eng. Rail. Cas. 651 f_ Brand v. City R. R., L. R. 2 Q. B. 223. ' Croft V. London Rail. Co., 32 L. J. (Q. B.) 113. § 194. Statutes rAlowing' damages considered conse- quential. — Sometimes statutes regulating the assessment of damages are so general in their terms that they are allowed to include damages otherwise considered conse- qu;8ntjal.i A statute providing for the payment of damages to any person " sustaining any damages " may recover for inconveniences not covered by the general acts.^ A statute providing for " all damages that may be occasioned by the taking of any such lands " should include damages other- wise considered consequential, — such as inconveniences from excavations endangering houses, embankments in streets, obstructing streets, obstructing air and light, and rendering buildings undesirable or unfit for occupation.* Under the expression, "those that may be injured," will be included any injuries which would be actionable at com- mon law.* Damages of this nature need not be secured 377 § 194 OF DAMAGES CONSIDERED CONSEQUENTIAL. hefore taking, or paid in advance, as in case of ordinary damages." It is difficult, and in some cases impossible, to estimate these damages in advance, and hence they may be better settled by a subsequent action at law.' ^ Monongahela Nav. Co. v. Coon, 6 Pa. 379. 2 Boston Mill Co. v. Gardner, 2 Pick. 33. ' Bradley v. New York R. R., 21 Conn. 294. * Columbia Bridge Co. v. Geisse, 35 N. J. L. 658. 6 Kochu. Williamsport Co., 65 Pa. 288; Spangler's Appeal, 64 Pa. 387; Jatterson v. Chicago E. R., 75 III. 588; Stetson v. Chicago R. E., 75 111. '74; Hattou u. London & South- Western Rail. Co., 18 Ii. J. (Ch.) 345. 8 Stetsons. Chicago R. R., 75 111. 74 378 USES OF HIGHWAYS AND STREETS. § 195 CHAPTER XVIII. OF THE XTSES TO WHICH HIGHWAYS AND STREETS MAY BE PUT— CHANGES OF GRADE — RAILROADS IN STREETS. § 195. Changes of grade. 196. Dissenting views. 197. Statutes allowing damages for change of grade. 198. Restoring property to former condition. 19,9. Change rendered necessary by railroad track. 200. Use of streets by railroads. 201. Railroad an improved method of use. 202. Legislative control over streets and highways. 203. Where the fee of streets is in the city or ia the public. 20i. Where the fee is in the adjoining owner. 204a. Recent decisions. 205. Horse-railroads. 206. Easement of adjoining owner in the street a valuable property. 207. Inconvenience of access — Embankments in streets — Obstruction of ingress and egress to property. § 195. Changes of grade. — L'aiid takea for a road or ■street is taken for all the purposes to which said street may be properly put, and subject to any changes or improvements the public authorities may see fit to make. The public authorities may determine that the grade of the streets should be lowered or raised ; and although injury may result to an individual from this change, yet no damages are recoverable.^ The damage resulting from a change of grade is consequen- tial, and, as it is a consequence of the exercise of a power granted by the state to the public authorities controlling the street, the public authorities are not responsible, unless the power has been abused by an unskillful execution.^ People who buy lots are presumed to buy them subject to any changes that may be made in the highway. The unequal burdens which owners have to bear can only be equalized by legislation.' An ordinance establishing a certain grade is not a contract between the city and those building, so as to entitle them to damages on a change of grade.* All "damages for changes of this nature are presumed to have 379 § 195 USES OF HIGHWAYS AND STREETS. been considered in the original laying-out." A city council have no power to direct the cutting-down of one street ta furnish soil to fill up another street. There must be an ordinance for the improvement of the street from which the soil is taken.' Some cases indicate that the city would not be responsible for changes in the streets, affecting adjoining owners, although an individual proprietor adjoining, making similar improvements, might be ;' and that there could be no claim, on the part of the owner, for the lateral support of the neighboring soil.* These cases must proceed on the theory that, in the condemnation of the land for a street, such use was contemplated and paid for in the assessment. A city may be enjoined from establishing a grade and doing work upon a street if the proposed grade and work would_ not be beneficial to the public, but would render the street impassable and the place to which it leads inaccessible. Such act is a perverse abuse of the power of the city council, and the establishment of a nuisance, instead of a public highway.' Damages occasioned by change of grade which have been ascertained and paid to property owners, cannot he reimbursed to the city by means of a special assessment laid upon the lots abutting said street.^" ^ Schattner v. Kansas City, 63 Mo. 162 ; Matter of Furman St., 17 Wend. 649; Wilson ■». Mayor of New York, 1 Denio, 595; Waddell v. Mayor of New York, 8 Barb. 95; Reock v. Newark, 33 N. J. L. 129; Plam v. Morris Canal Co., 10 N. J. Eq. 256; Carr». Northern Liberties, 35 Pa. 324; Green V. Reading, 9 Watts, 382; McLanolilin v. Charlotte R. E., 5 Rich. L. 583; Roll V. Augusta, 31 Ga. 326 ; Rome v. Omberg, 28 Ga. 46 ; Humes v. Mayor, 1 Humph. 403; Matter of Beale St., 39 Cal. 495; Shawneetown o. Mason, 82 111. 337; Weis v. City of Madison, 75 Ind. 241; Mayor of Cumberland V. Willison, 50 Md. 138 ; Imler v. City of Springfield, 55 Mo. 119; Fellowes V. City of New Haven, 44 Conn. 210; Healey v. City of New Haven, 47 Conn. 305; Aldrich v. Alderman of Providence, 12 R. I. 241 ; Northj Vernon V. Voegler, 103 Ind. 314; Harrison v. Supervisors, 51 Wis. 645. 2 Taylor v. St. Louis, 14 Mo. 20; St. Louis v. Gurno, 12 Mo. 414; Smith V. Washington, 20 How. 135; Rounds v. Mumford, 2 R. I. 154; Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195; Matter of Ridge St., 29 Pa. 391 ; O'Connor v. Pittsburgh, 18 Pa. 187; Meares v. Wilmington, 9 Ircd. L. 73; White v. Y.izoo City, 27 Miss. 357; Simmons v. Camden, 26 Ark. 276; Macy v. Indianapolis, 17 Ind. 267; Snyder v. Rockport, 6 Ind. 237; 380 , USES OF HIGHWAYS AND STREETS. § 196 Iiafayette v. Spencer, 14 Ind. 399; City of Denver v. Bayer, 7 Col. 113; Iinler v. City of Springfield, 55 Mo. 119. Por an unauthorized cliange in grade there is an action. In sucli action, tiie plaintiff must siiow tliat tlie action of the city was not authorized by charter, or was not in accord- ance with the provisions of the charter. Dore v. Milwaukee, 42 Wis. 108. For negligence in making charge there is an action. Hendershott V. Ottumwa, 46 Iowa, 68. 2 Callenders). Marsh, 1 Pick. 417; Bounds ». Mumford, 2 E. I. 164; Skinner ^!. Hartford Bridge Co., 29 Conn. 523; Louisville E. E. v. Brown, 17 B. Mon. 763; Fellowes v. City of New Haven, 44 Conn. 240; City of Denver v. Bayer, 7 Col. 113; City of Denver v. Vernia, 8 Col. 399. * Goszler«. Georgetown, 6 Wheat. 593. ^ Skinner u. Hartford Bridge Co., 29 Conn. 523; Eadcliff's Executors V. Mayor of Brooklyn, 4 N. Y. 195; Fellowes v. New Haven, 44 Conn. 240. " Delphi V. Evans, 36 Ind, 90. Earth may be removed from a street in the legitimate process of grading the streets, but may not be removed simply for the purpose of filling up other streets. Mayor of Macon v. Hill, 58 Ga. 595. If the change in the grade of the street is for the pur- pose of making a levee, to prevent a river from overflowing a town, and the grade is raised for such purpose only, then, under the Illinois Con- stitution of 1870, the owners of property damaged thereby are entitled to just compensation. Shawneetown v. Mason, 82 111. 837. ' Alexander v. Milwaukee, 16 Wis 247. 8 Mitchell V. Eome, 49 Ga. 19. ' Armstrong v. St. Louis, 3 Mo. App. 151. 1" Goodrich v. City of Omaha, 10 Neb. 98. § 196. Dissenting Views. — There have been several ^Jecisions protesting against the rule laid down in the last section ; but the law is too well settled, now, to further con- sider the question. The legislature can be appealed to, and a certain remedy given. The Supreme Court of Ohio, on general principles, have declared that damages must be allowed for injury to improvements already made, caused by changes of grades. Unimproved property must conform, to grades afterward established, for the reason that the owner is presumed to purchase in view of such changes. Changes made subsequent to the improvements are for the benefit of others, and others should pay for them, and not one alone. The doctrine is conceded to be proper in England, where the acts of Parliament are supreme, but as inapplicable to this country, governed by written constitutions. One de- cision in Illinois, that of Nevins v. Peoria,^ goes a long 381 § 197 USES OF HIGHWAYS AND STKEBTS. distance in support of the same doctrine, holding that the municipality is the proprietor of tlie streets, and cannot use its property to the detriment of an adjoining property- owner to any greater extent than could a private individual. Neither a private individual nor the city c;'n turn floods of unwholesome surface-water, or sewer-water, upon adjoining^ property without making compensation for the use, which, in fact, constitutes a taking. If the raising of the grade destroys drainage which formerly existed, the city would be liable for failure to provide means of escape for surface- water.' In Massachusetts* it has been held that when a city repairs roads, lays sewers, etc., on old grade, although an- other grade has been previously established, damages may be awarded for change to the new grade, where such change is made many years after grade is established ; and in a late case in Missouri^ it is held that, under the constitution of 1875, a city can no more alter or change the grade of a street to the damage of a lot abutting upon it, without compensa- tion to the owner, than it can take private property for public use, without compensation to the owner. ^ Crawford v. Delaware, 7 Ohio St. 459; McCombs v. Akron, 15 Ohio^ 474; Akron v. McComb, 18 Ohio, 229; Youngstown v. Moore, 30 Ohio St. 133. See also dissenting opinion of Judge Adams, in Thurston v. St. Joseph, 51 Mo. 510, and of Judge Birch, in St. Louis v. Gurno, 12 Mo. 414. 2 41 111. 502. * Ross V. Clinton, 46 Iowa, 606. * City of Cambridge v. County Commissioners, 125 Mass. 529. * Householder v. City of Kansas, 83 Mo. 488. § 197. Statutes allowing damages for changes of grade. — On account of the hardship resulting from the refusal of damages for injuries resulting from changes of grades, statutes have been passed, in a number of states, allowing damages for changes of grades.^ These statutes have not always been construed with liberality. A statute allowing damages for an alteration of a street has been held not to justify damages for digging down an existing street.* The assessment of damages is similar to that for damasres for laying out highways.^ It will include damages done by 382 USES OF HIGHWAYS AND STREETS. § 197 change of grade of a sidewalk. Sidewalks are a part of the street, and the whole damages may be assessed together.* The action is based alone on the statute, which is different from the common law," and hence the statutory remedy is exclusive,^ and is to be strictly construed.' A statute that allowed damages to improved property could not be ex- tended to cover damages to unimproved property, but would extend to damages to property improved, as well as to the improvements thereon.* In assessing damages for contem- plated flooding by surface-water, the damages are covered for flooding afterwards occurring, and they are not to be con- sidered separately.' The right to compensation is confined to the owner of land adjoining the street which is repaired. There is no right to compensation beyond what the statute gives, and no damages can be had f )r injury occasioned by repairing other streets.^" The later constitutions which re- quire compensation for property taken or damaged for public use are construed to include damages for changes in grades, and for such changes an action will lie.^^ Dam- ages of this nature are not due until the act of changing is completed. This differs from the case of laying-out of a highway, which appropriates the laud, while the other is a declaration of an intention to use the land in a particular way.^* Damages, when allowed for changes in grades of streets, will be granted for changes in any portion of the width of the streets. It is not essential to a claim of damages that the change should be of the width of the entire street. ^^ It is not necessary that the grading should be completed, in order to give foundation for the action. It is enough if the owner has been injured by the work done.^* Before the adjacent owner can recover for damages to improvements by reason of change of grade, he mast show that he built them on the old grade, and that this grade was one estab- lished by the city. If his improvements were made prior to any grade at all no damages will be awarded.^* In Wis- 383 § 197 USES OF HIGHWAYS AND STREETS. consin, by special act, the owner may receive damages for change of grade, if it becomes necessary to alter the grade of his lot to suit the new grade. ^* The statute in regard to change of grade as it existed when the improvement was undertaken or entered upon, must determine the right of parties." As to the establishment of the grade of streets, the records of the city council on the subject are proper evidence to go to the jury.i' If a corporation first fixes the grade of a street, and, after an owner of a lot has built with reference to this grade, changes the grade by raising or depressing it, this is a damaging of property without compensation. If one builds outside of the city limits, and the city is after- ward extended so as to take in his lot, and grades street so as to damage the same, compensation should be given.-'' In Pennsylvania,^" a change from the natural grade of a street in a village is looked upon in the same way as a change from an established grade in a city, and adjoining owner may recover damages. No damages will be awarded for change of grade until grade is established. Such a grade is established when it is approved and adopted and made a matter of record. To recover damages, established grade must be showti and the change from it.^^ Compensation is made for such damages only when owners have improved their lots with reference to previously established grade. An oi'dinance is evidence of established grade. ^ 1 Columbus V. Woolen Mills, 33 Ind. 435; Moore v. City of Atlanta, 70 Ga. 611; Lanew. City of Boston, 125 Mass. 519; City of Wabash ». Alber, 88 Ind. 428; Philips ». City of Council Bluffs, 63 Iowa, 576 ; Noyes v. Mason City, 53 Iowa, 418; City of Kokomo v. Mahan, 100 Ind. 242; Gregg «. Mayor of Baltimore, 56 Md. 256; Jersey City v. Central R. R., 40 N. J. Bq. 417; Hempstead v. City of Des Moines, 63 Iowa, 36. 2 Hovey v. Mayo, 43 Me. 322. The Tennessee Code, ?§ 1392, 1393, 1394, authorize any owner of property within corporate limits, who desires to build on or improve such lot, to apply to the corporate authorities, and require such authorities to fix and establish the grade of the street or streets on which the applicant proposes to build, that he may construct his improvements so as to conform to the grade established. It is provided that the authorities shall pay such applicant full damages that he may :sustam in consequence of any subsequent change of grade of such street 384 USES OF HIGHWAYS AND STREETS. § 198 "by said authorities, and that " said corporate authorities shall also pay "to any citizen who has made permanent and valuable improvements on his property, situated on a street or streets the grade of which said authorities have neglected to establish, any material damage he may sus- tain in consequence of any grade which they may subsequently establish." In the case of Mayor v. Nichol, 59 Tenn. 338, the court say: " Such stat- utes are to be liberally construed in favor of the right of a citizen to be reimbursed for damages done to his property by city authorities, occa- sioned by works for the advantage of the general public. The citizen whose property is thus injured ought not to be required to bear the entire burden, the benefits of which he shares, perhaps, very slightly in common with other inhabitants of the city, the improvements frequently being of no personal advantage to him whatever." « Sawyer v. Keene, il N. H. 173. * Barker v. Taunton, 119 Mass. 392. ' Brown v. Lowell, 8 Mete. 172; Fernald v. Boston, 12 Cush. 574; Elder v. Bemis, 2. Mete. 599 ; Reock v. Newark, 33 N. J. L. 129. • Cole V. Muscatine, 14 Iowa, 296; Dore v. Milwaukee, 42 Wis. 108. ' Terre Haute v. Turner, 36 Ind. 522; Snyder v. Eockport, 6 Ind. 237; Burlington v. Gilbert, 31 Iowa, 356; Cole v. Muscatine, 14 Iowa, 296; Dalzell V. Davenport, 12 Iowa, 437; Matter of Beale St., 89 Cal. 495. 8 Dalzell V. Davenport, 12 Iowa, 437. 9 Hubbard v. Webster, 118 Mass. 599. 1° Wilbur V. Taunton, 123 Mass. 522. " Elgin V. Eaton, 83 111. 535. " Page V. Boston, 106 Mass. 84 ; Brown v. Lowell, 8 Mete. 172. 1' Dore V. Milwaukee, 42 Wis. 108. w Schumacher v. St. Louis, 3 Mo. App. 297. « Morris v. City of Council Bluffs, 67 Iowa, 343. i« Tyson v. City of Milwaukee, 50 Wis. 78. " Healey v. City of New Haven, 49 Conn. 394. w Johnson v. City of Parkersburg, 16 W. Va. 402. i» Hutchinson v. City of Parkersburg, 25 W. Va. 226. 2» New Brighton v. United Pres. Ch., 96 Pa. St. 331; Hendricks, Appeal, 103 Pa. St. 358. 21 Mattingly v. City of Plymouth, 100 Ind. 545. 22 Kepple V. City of Keokuk, 61 Iowa, 653. § 198. Restoring' property to former condition. — The diminution in value of property on account of a change in grade includes the expense which a prudent man would reasonably incur in putting the property, with reference to the new grade, in as good a condition as it was before. There cannot be recovered the cost of the particular im- provements made, or of improvements unnecessarily made, or not necessary to put the property in as good a coudi- 26 385 § 198 USES OF HIGHWAYS AND STREETS. tion as it was before.^ Substantial changes cannot be con- sidered, — such as moving a house back from a street, so as to leave a space in front of it, when it was not left on the street by the widening.* The damage is not simply to the right of lateral support of soil, but to the property in gene- ral, and, will include the cost of cutting down the land, and building a basement under the house, with an interior ascent into the house ; if such alterations are found reasonable and an economical means of restoring the estate to its former value. ^ While the damages to a claimant are not to be measured by the cost of the improvements or changes which he may think desirable, in order to adapt his estate to the new condition of the street, yet, in connection with evidence that a protecting wall was necessary, or that it was a rea- sonable and economical mode of obviating the difficulty occasioned by the change of grade, such evidence might be competent.* Power given by a charter of a railroad company to construct its road across a highway, upon condition tha* the same be restored to its former state, " or in a sufficient manner not to impair its usefulness," does not author- ize a permanent occupation or obstruction of the highway. The word " usefulness " implies capabilities for use, and appertains to the future, as well as the present. The fact that the public travel over the road may, for the time be- ing, be limited, does not lessen the duty to restore. A failure to restore constitutes a public nuisance, and the statute of limitations does not run against the right to abate a public nuisance. An encroachment on a public highway cannot be justified by adverse possession and enjoyment. The continuance of the nuisance is, in judgment of law, a fresh nuisance.^ ' Buell V. Worcester, 119 Mass. 372; Chase v. Worcester, 108 Mass. 60; The Commonwealth v. Boston R. E., 3 Gush. 26. 2 Chase v. Worcester, 108 Mass. 60. • Hartshorn v. Worcester, 113 Mass. 111. * Bemis v. Springfield, 122 Mass. 110. ' Little Miami R. R. v. Commissioners, 31 Ohio St. 338. 386 USES OS" HIGHWAYS AND STREETS. § 199" § 199. Change rendered necessary by railroad track. — The authorities of a city, having a right to mulie changes in grades of streets, are authorized to direct such changes to be made by a railroad company for the use of its track, and no damages will be allowed for such changes.^ The right of a railroad to use a public street without compensation to adjoining owners will be hereafter considered.' The town or city would not be liable for the change,' or the railroad causing the same,* it not appearing that any portion of the land of the owner wastaken,^ unless the changes made wete: such as to render the lot inaccessible from the street.^ A railroad, in crossing streets, must, without any special con- dition in the charter, restore the street to a passable condi- tion, especially in a city, and a mandamus will lie to compel it so to do.' In order to make the crossing safe, a bridge over the track may be necessary where formerly there was a grade, or a wider bridge maybe necessary ; and for the failure to complete these improvements the railroad company is responsible, and not the city.* This reconstruc- tion must be made within a reasonable time. The company must first break ground.* When a railroad company lays its track upon a public highway, it undertakes, at its peril, by some means to put the public highway in as good condi- tion for travel as before. For its neglect to do this it may be indicted ; and, if necessary to protect the public in the use of the highway, the obstruction may, by a proper order, be abated, even if the result be the destruction of the railroad at the point where it obstructs the public travel ; and the company cannot purchase the right to obstruct the highway by payment of compensation to individuals.^* The owner of property adjacent to a street has a right to presume that the city will not permit an embankment above the established grade to remain in the street, or that it will provide proper culverts to prevent the embankment from impeding the flow of surface-water ; and it does not signify that this impediment is caused by a horse-railroad track, 387 § 200 USES OF HIGHWAYS AND STREETS. ■which the city has authorized to be built." Where a railroad raises or lowers the grade of a highway to adjust it to the grade of its track, it is a taking of the property of the abutting owner, for which and the injury to the lots the company must make compensation. 1 Wolfe V. Covington E. E., 15 B. Mon. 404; Slatten v. Des Moines E. B., 29 Iowa, 148. 3 Post, §§ 200-204. s Burritt v. New Haven, 42 Conn. 174. * Cliapinau v. Albany E. E., 10 Barb. 360. » Whittieer v. Portland E. E., 38 Me. 26; Towle v. Eastern B. B., 17 N. H. 619; Bendeni;. Nashua, 17 N. H. 477. * Pekin v. Wiukel, 77 111. 56 (modifying Murphy v. Chicago, 29 111. 279; ; Moses V. Pittsburgh E. E., 21 111. 516; Begina v. Eastern Counties Bail. €o., 2 Q. B. 347. See also Pekin v. Brereton, 67 111. 477; Stone v. Fair- toury E. E., 68 111. 894. ' Indianapolis E. E. v. The State, 37 Ind. 489. * Burritt v. New Haven, 42 Conn. 174. » Danville E. E. v. The Commonwealth, 73 Pa. 29. i» Gear v. C. C. & D. E. E., 43 Iowa, 83. ^ Damour v. Lyons City, 44 Iowa, 276; Buchner v. Chicago By., 56 Wis. 403; Bailroad Co. v. Hambleton, 40 Ohio St. 496; Jersey City «. Central E. B., 40 N. J. Eq. 417. § 200. Use of streets by railroads. — The use of a street l)y a railroad, under authority of its charter, is not a per- version of the highway from its original purpose, and the damages resulting from such obstruction is damnum absque injuria.^ It is held in Iowa that streets of towns may, by public authority, be occupied by railway tracks without the consent of the adjacent proprietor, and without compensation , although no permanent obstruction lilve a depot building can be erected thereon ; this right exists even though the fee of the street is in the adjacent proprietor or in a third person. An owner of lots on a street, over which a city has authorized a railroad company to construct and operate its railroad under a law authorizing the city to grant a right of way for that purpose, will have to submit to such interrup- tion as the construction and operation of the railroad occa- sions, if the railroad be properly constructed and operated ; otherwise if he is entirely deprived of the use of the street.* 388 USES OF HIGHWAYS AND STREETS. § 200 The company, in the location, may lay such number of tracks as are essential to the convenient transaction of business, and, for that purpose, may haake any necessary alteration in the grade or surface of the highway.* But where there is an entire conversion of the street by per- manent structures of various kinds, to such uses as vir- tually block it up for all the purposes of a street, such use cannot be justified or included under a grant of a right of way. The street cannot be occupied as a depot-yard for cars to stand in while they are loaded and unloaded; nor, can the track on the street be raised on embankments, so that it cannot be used by ordinary vehicles,* nor can the street be obstructed by earth, timber, or rails, so as to in- terfere with its use.^ The company must for itself provide sufficient ground for depot purposes, and cannot use the public street for such purjaoses. That would be devoting the public street to purposes entirely inconsistent with the grant of a mere right of way, ^hich must mean a way at the ordinary grade/ Such use could not be justified by the consent of the city authorities, although the city char- ter authorized the corporation to abolish streets. Such an occupation would not be the abolition of a street, but a monopoly of it. Further than that, the abolition of the street would operate in a reversion of the land to the owner, which would prevent the occupation by the railroad.® An entire occupation of a street by a railroad is a nuisance.* The owner of land adjoining may recover damages for neg- li. Pennsylvania. R. R., 55 Pa. 340; Mercer u. Pittsburgh R. R., 36 Pa. 99; Struthersw.Dun- 389 §§ 201, 202 USES OP HIGHWAYS AND STREETS. kirk E. R., 87 Pa. St. 282; Louisville E. E. v. Brown, 17 B. Mon. 763; Slatten v. Des Moines R. R., 29 Iowa, 148; Parrot v. Cincinnati R. E., lOOhio St. 624; Eio Grande E. R. v. Brownsville, 45 Texas, 88; Hanlin v. Chicago Ey., 61 Wis. 515; Tate v. Missouri Ey., 64 Mo. 149; Dwenger v. Chicago Ey., 98 Ind., 153. 2 Barney •». Keokuk, 4 Dill. 663 ; s. c, 4 Otto, 324; Drady v. Des Moines Ey., 157 Iowa 393. 5 Swensour. City of Lexington, 69 Mo. 157. » The Commonwealth v. Hartford E. E., 14 Gray, 379; Snyder v. Pennsylvania E. R., 65 Pa. 340. 5 Lackland v. North Missouri E. R., 31 Mo. 180 ; Tate v. Ohio E. E., 7 Ind. 479; Higbee v. Camden E. E., 19 N. J. Eq. 276. 6 Parrot v. Cincinnati E. E., 10 Ohio St. 624; Street Ey. Co. v. "West Side Ey., 48 Mich. 433. ' Tater. Ohio R. E., 7 Ind., 479. » Lackland v. North Missouri E. E., 31 Mo. 180. * Louisville E. E. v. Brown, 17 B. Mon. 763. Any occupation of a street by a railroad is held to be a nuisance, in Harrington v. St- Paul E. E., 17 Minn. 215. ^o Cadle v. Muscatine E. E., 44 Iowa, 11. u Talbott V. Eichmond E. E. Co., 31 Gratt. 685. § 201. Kailroad an improved method of use. — Arail- Toad is not an unreasonable obstruction of the free use of a street, but rather a new and improved method of using the same, germain to its principal object as a passage-way, to wliich the genius of the law will readily accommodate itself.^ A prudent running of cars through a city is not a purpresture or a nuisance ; ^ and unless the use operates as an obstruction or an exclusive use, it will not be interfered Tvith. An occasional blocking of streets may be produced by long lines of wagons or coaches, and the damage or obstruction would not be different from the obstruction by trains of cars, and neither obstruction would constitute a ground for damages.^ 1 Milburu'!;. Cedar Eapids, 12 Iowa, 246; Lexington E. E. v. Apple, gate, 8 Dana, 289. 2 Chicago E. E. v. Joliet, 79 111. 25; Murphy v. Chicago, 29 lU 279; Moses v. Pittsburgh E. E., 21 111. 516. 8 Lexington E. E. v. Applegate, 8 Dana, 289; Chicago R. R. v. Joliet, 79 111. 25. § 202. LiCgislative control over streets and highways. — The streets of cities are public highways, and, as such, 390 USES OF HIGHWAYS AND STREETS. § 202 under the control of the state alone, and the state may ^rantthe use of them against the will of the municipality. The city cannot alone grant to a railroad the privilege of using its streets, as the power is in the legislature.^ The legislature may discontinue the use, without restraint from private citizens claiming to be interested in the continuance of the street, as adjoining owners or otherwise.^ Cities cannot grant to an association of persons the right to con- struct and maintain for a term of years a railroad in one of "the streets of the municipality for the transportation of passengers for private gain, and an ordinance or resolu- tion of the authorities granting such a right is void, unless the city is invested with such power, over and beyond the power to lay-out, open, alter, repair, and amend streets.* Where a city is authorized to permit a railroad com- pany to occupy streets, it is not liable in damages to adjacent x)wners for giving such permission.* A highway cannot be properly used by a railroad, without legislative sanc- tion.* Whether the fee in the street is in the adjpining owners of the city, yet such parties are trustees for the public use, and the public is represented by the legislature.* Public roads are laid out by direction of t-ie legislative authority, exercised either directly or by delegated author- ity, and the state may resume control against the will of the municipality or of the owner. The owner on whose land the road has been built has no voice or control in the mat- ter.' The control of city streets may be properly delegated to the city authorities, with discretion to impose con- ditions on the use of the street f but the power is not in the city unless expressly delegated.' When such authority is delegated, the city may establish conditions, and reenter for the violation of them. ^^ An ordinance giving the right of way to a railroad is not a contract binding on the city, so as to prevent a subsequent action by the legislature.l^ The legislature may delegate to county commissioners the power to lay out roads ; and, when this is done, their decis- 391 § 203 USES OF HIGHTVATS AND STREETS. ion asta the necessity and policy of opening the road can- not be interfered with by private individuals.^^ The courts have no power to change the location of roads unless that power is specially conferred upon them by statute, when the proceedings are denominated special proceedings. ^^ 1 Carpenter v. Oswego E. E., 24 N. Y. 655; Davis v. Mayor of New York, 14 N. Y. 606; Indianapolis R. R. v. The State, 37 Ind. 489; Chicago R. R. v. Jollet, 79 111. 25; The State v. Hoboken, 33 N. J. L. 205 ; Attorney-General ■». Passenger R. R., 32 Leg. Int. (Pa.) 238; Phila- delphia & Trenton R. E., 6 Whart. 25; Savannah E. R. u. Savannah, 45 Ga. 602. Jackson Co. Horse Ry. .v. Interstate Rapid Transit Ry., 24 Fed. Eep. 306; Tate v. Missouri Ry., 64 Mo. 149. 2 Southwark R. R. v. Philadelphia, 47 Pa. 314; Gray v. Iowa Land Co., 26 Iowa. 387. » People's Passenger R. R. v. Mecphls City E. R., 10 Wall. 38. " Hedrick v. City of Olathe, 30 Kan. 348. 5 Phillips V. Dunkirk R. R., 78 Pa. 177. 6 The People v. Kerr, 27 N. Y. 188. ' Holcraft v. King, 25 Ind. 352. « Covington Street R. R. v. Covington, 9 Bush, 127; Philadelphia & Trenton E. R., 6 Whart. 25. » Polack V. Trustees, 48 Cal. 490 ; Davis v. Mayor of New York, 14 N. Y. 506 ; The State v. Hoboken, 35 N. J. L. 205 ; East Portland v. Mul- tomah County, 6 Ore. 62; Lawrence R. R. v. WiUiam, 35 Ohio St. 168. lo Railroad Co. v. Leavenworth, 1 Dill. 393. u Indianapolis E. E. v. The State, 37 Ind. 489. ^ Myers v. Simms, 4 Iowa, 500. -13 Dewitt V. Duncan, 46 CaL 342. § 203. Where the fee of streets Is in tlie city or in the public. — If the fee in the public streets has been con- demned, and is in the city or the public, the legislature has entire and exclusive control ; and the legislature may authorize the use of the streets by a railroad,^ au elevated railway,^ or a horse-railway,^ without compensation to the adjoining owners or to the city, and against the will of both. Railroads may be authorized even to the extent of two tracks in a street.* The city cannot, by ordinance, compel a company occupying a street to abandon, take up, and remove a track when authority has been given by the legis- lature to construct the tracks.* The uses of a city street are more various than those of a country road, and one of these 392 b USES OP HIGHWAYS AND STREETS. § 203 uses is that of a horse- rail way. The use of the city streets is under the control of the legislature, even if the fee of the street is in the city, as it is in the city of New York.* When the fee is in the city, an action may be maintained for trespass for unauthorized use of streets by a railroad. '^ The owner adjoining may also claim damages for obstruct- ing and blocking up streets.^ While it is true that when the fee of the streets is not owned by the adjoining proprietors a railroad company has the right to take and use streets for the purpose of building and operating railroads, yet it does not follow that in so doing the road may not be so negli- gently built, or the street so occupied, as to create a nuisance. And, in such case, any one who suffers special damages, not common to the whole public, may recover. To entitle a party to recover such damages, it is not necessary that he should own the fee in the street.' In some cases, it is suggested that the city owning the fee is entitled to compensation for the additional burden.^" In the exercise of the right of eminent domain the state may delegate to a railroad corporation the power to appropriate a right of way for its road along and upon a public highway, but the appropriation for this purpose cannot be constitu- tionally made without making compensation to the public, for the injury thereby occasioned to its easement in the highway, and also making compensation to the owner of private property taken for the use indicated : The rights of the owner and the rights of the public are entirely distinct, and the consent of one will not bind the others. ^^ In lowa^^ it is held that there is no substantial difference between streets in which the legal title is in private indi- viduals, and those in which it is in the public, as to the rights of the public therein. 1 Clinton V. Cedar Eapids R. R., 24 Iowa, 455 (qualifying Milburn v. Cedar Eapids, 12 Iowa, 246, where the court indicated that the consent of the city was necessary) ; Barr v. Oskaloosa, 45 Iowa, 275; The People V. Kerr, 27 N. Y. 188; Drake v. Hudson Eiver E. E., 7 Barb. 508; Savan, nah E. E. v. Savannah, 45 Ga. 602; Chicago E. E. v. Joliet, 79 III. 25; 393 ■§ 204 USES OF HIGHWAYS AND STREETS. Stetson I). Chicago R. R. 75 111. 74 ; Stone v. Fairbury R. R. 68 111. 394 ; Grand Rapids R. R., v. Heisel, 47 Mich. 393; Carson v. Central R. R., 35 Cal. 325; Atchison R. R. v. Garside, 10 Kan. 652; Davenport v. Stevenson, 34 Iowa, 525; Hine v. Keokuk R. R., 42 loyya, 636; Ingram v. C. D. & M. R. R.,' 38 Iowa, 6G9; Denver v. Bayer, 7 Col. 113; Franz v. Sioux City Ry., 55 Iowa, 107; Spencer D. Point Pleasant R. R., 23 W. Va., 406; Central Branch U. P. R. R. V. Andrews, 30 Kan. 690. As to cases where the fee is in the adjoining owner, see the recent Iowa case, Kucheman v. C. C. & D. R. R., 46 Iowa, 366 2 Currier v. Elevated E. R., 6 Blatchf. 487. 3 Kellingerw. Forty-second Street R.R., 50 N. Y. 206; The People v. Kerr, 27 N. Y. 188; Wetmore v. Story, 22 Barb. 414; Milhau v. Sharp, 15 Barb. 193. ■* Ingraham ». Chicago R. R., 34 Iowa, 249. s Chicago E. R. v. Joliet, 79 111. 25. • The People v. Kerr, 27 N. Y. 188; s. c, 38 Barb. 369; 37 Barb. 357. ' Clinton v. Cedar Rapids R. R., 24 Iowa, 455; Patterson v. Chicago R. E., 75111. 588. In St. Louis R. R. u. Capps, 67 111. 607, the company agreed to pay damages. 8 Atchison R. R. v. Garside, 10 Kan. 552. ' Frith V. Dubuque, 45 Iowa, 406. i» Donnaherii. Mississippi, 8 Smed. & M. 649; Department of Public Parks, 13 N. Y. Sup. Ct. 386. " Lawrence E. R. Co. v. Williams, 35 Ohio St. 168. 12 Barney v. Keokuk, 4 Otto., 324. § 204. Where the fee is lu the adjoining owner. — In those states which consider the fee in public roads and streets to be in the adjoining owner, and not in the public or the city, the weight of authority seems to consider the use of the street, or highway, by the railroad, as an additional burden, requiring compensation.^ The legislature may authorize the use of a street by a railroad, so as to make the entry lawful ; but the use is an additional burden, and the right will not become fixed in the company until compensa- tion is made.^ If no remedy is provided, there is remaining the remedy at common law.^ The payment of these damages may be required in advance.* The consent of the <;ity to the use does not impair the owner's right to com- pensation." When the ownership is in the adjoining owner, the city cannot enjoin the running of the railroad, while the lot-owners may.^ A dedication of a lot for a street is for the ordinary purposes of a street, and not for use by a 394 USES OF HIGHWAYS AND STREETS. § 204 railroad;' and one railroad that has obtained a right of way cannot dispose of the right to another, to lay another track in the same street, if the laying shall seriously obstruct the street.* The fact that only a part of the width of the track was on the owner's portion of the street will not affect the rule of damages.' Decisions which deny a right for compensation for injury where abutting owner does not own fee in street, have been rendered under constitutions which required com- pensation only for the taking of property.^" In a late case in Kentucky" it is held that the occupation and use of streets of a town or city by a steam railway does not entitle adja- cent proprietors who own the fee to the center of the street to compensation as for property taken for public use ; but that this rule does not hold where the street is outside of the corporate limits of the city. ' Cooley's Const. Lim. 649; Note to Pacific E. R. v. Leavenworth, 1 Dill. 393; Grand Rapids E. K. u. Heisel, 47 Mich. 393; Sherman ■V. Milwaukee R. E., 40 Wis. 645; Ford v. Chicago R. E., 14 Wis. 609; Kaiser v. St. Paul E. E., 22 Minn. 149 ; South Pacific E. R. v. Eeed, 41 Cal. 256 ; Kucheman ■«. C. C. & D. E. R., 46 Iowa, 366 ; Buchner v. Chicago Ey., 60 Wis. 264; Henderson v. New YorkCentral E. R., 78 N. Y. 423 ; Harri- son V. New Orleans Pacific Ey., 34 La. Ann. 462; Eichels v. Evansville Ey., 78 Ind. 261 ; Citizens' Coach Co. v. Camden R. R., 33 N. J. Eq. 267; Spencer v. Point Pleasant R. E., 23 W. Va. 406. 2 Wager v. Troy Union E. E., 25 N. Y 526 ; B-issell v. New York Cen- tral R. R., 23 N. Y. 61; Hinchmanti. Paterson H. E. E., 17 N. J. Eq. 75 (overruling Morris E. R. v. Newark, 10 N. J. Eq. 362) ; Cox v. Louisville R. E., 48 Ind. 178; Harrington v. St. Paul E. E., 17 Minn. 215; Gray v. St. Paul R. R., 13 Minn. 315; Schurmeier u. St. Paul E. E., 10 Minn. 82; Kucheman v. C C. & D. E. R., 46 Iowa, 366 ; Werges v. St. Louis R. K., 35 La. Ann. 641. ' Indianapolis E. E. v. McAhren, 12 Ind. 552. * Sherman v. Milwaukee R. R. 40 Wis. 645. 5 Eord V. Chicago R. R., 14 Wis. 609 ; Pomeroy v. Milwaukee R. E., 16 Wis. 640. « Milwaukee v. Milwaukee E. E., 7 Wis. 85. ' Schurmeier v. St. PaulR. E. 10 Minn. 82; South Pacific E.E. o Reed, 41 Cal. 256. « South Pacific E. E. v. Eeed, 41 Cal. 256. 9 Blesch V. Chicago E. W., 43 Wis. 183. 1" Denver v. Bayer, 7 Col. 113. J- Elizabethtown E. E. v. Thompson, 79 Ky. 62. 395 § 204a USES or highways and streets. § 204a. Recent decisions. — The constitution of the State of Missouri, article 2, section 21, provides " that private property shall not be taken or damaged for public use without just compensation * * • 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 disturbed." Article 4, section 53, prohibits the legislature from " granting to any corporation, associa- tion or individual any special or exclusive right, privilege or immunity, or to any corporation, association or individual, the right to lay down a railroad track." The expression " damaged for public use " first appeared, as a constitutional provision in the Illinois constitution of 1870. Since then a similar provision has been incorporated into the constitutions of the states of Arkansas, Colorado, California, Georgia, Illinois, Nebraska and West Virginia. In Pennsylvania the expression is " for the taking, injury or destruction." In Texas the form is " taken, damaged or destroyed for or applied to public use." Mr. Justice Miller, in the case of Blanchard v. City of Kansas, ^ carefully considered the change brought about by the new provision in the constitution of Missouri, and held that the damage to an owner abutting on the street whose land was not touched, should be paid compensation and paid in advance.- In Arkansas^ the court holds that an abutting owner, whether he has a fee in the street or not, can recover dam- ages for injury to his property by laying of a railroad track in the street, although no property is taken. In Colorado,* in a case where a city had passed an ordinance allowing a railroad to lay track in a street, and the owner of an adjacent lot sued for damages, the court say: "Whatever per- manently prevents the adjacent owner's free use of the slroet for ingress or egress to or from his lot, and whatever inter- ference with the street permanently diminishes the value of his premises is as much a damage to 'his private property as- though some direct physical injury were inflicted thereon."" 396 USES OP HIGHWAYS AND STREETS. § 204rt 3n California* it is held that a steam railroad cannot run over a street without compensation to the abutting owner first being made. Iq Georgia^ the court presume that it was intended that eompensation be made for any damage, whether direct or consequential, done to private property for public use. In Illinois,® Nebraska' and West Virginia' the same doctrine is held. In Pennsylvania^ the court say " corporations, municipal as well as others, in whom are vested the right of eminent domain, are required to make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, high- ways or improvements," they being " liable for such dam- ages as are ordinarily called consequential." In Texas ^^ the provision is held to protect the abutting owner from damages resulting in depreciation of market value caused by the construction of a i-ailroad in a public street. Prior to these changes in the constitution the above states, almost without exception, held the damages resulting from construction of railroads in streets in the ordinary way, as consequential damages and not within the protection of the constitutional provision. In Louisiana the courts hold that no act of the legislature nor ordinance of the city council, nor both combined, authorizing a railroad to run its trains through the streets of a city can protect it against the claims for damages of those whose property is injured thereby .^^ The later decisions in lowa^^ and Indiana ^^ are also in favor of granting compensation to the adjacent owner when a railroad track is laid in a street. 1 16 Fed. Rep. 444. See, also, McElroy v. Kansas City, 21 Fed. Rep. 257; Worth v. Springfield, 78 Mo. 107; Householder v. City of Kansas, 83 Mo. 488. ' Hot Springs R. R. v. Williamson, 45 Ark. 429. s Denver v. Bayer, 7 Col. 113. See, also, MoUandin v. tJnionPac. Ry., 14 Fed. Rep. 394. ♦ Weyl V. Sonoma Yalley R. R., 69 Cal. 202; Ford v. Santa Cruz R. R., £9 Cal. 290. •■ Atlanta v. Green, 67 Ga. 386; Guess i;. Stone Moontain Co., 72 Ga. 320. « Rigney v. Chicago, 102 111. 64. 397 § 205 USES OF HIGHWAYS AND STREETS. ' Gottschalk v. Chicago E. R., 14 Neb. 550; Republican Valley R. R. c. Fuller, 16 Neb. 169; HastlDgs R. R. v. Ingalls, 15 Neb. 123. « Spencer v. Point Pleasant E. R., 23 W. Va. 406. » Pusey V. Allegheny, 98 Pa. St. 536. See, also, Reading v. Althouse,. 93 Pa. St. 400. 10 Gulf R. E. V. Eddins, 60Texas, 656 ; Gulf R. E. v. Fuller, 63 Texas, 648.- 11 Werges v. St. Louis E. E., 35 La. An. 641. See, also, Hepting v. N. 0. Pacific Ry., 36 La. An. 898; Raxedale v. Seep, 32 La. An. 435. 1' Drady ?;. Des Moines Ey., 57 Iowa, 393; MulhoUand v. Des Moines Ry., 60 Iowa, 70; Morgan v. Des Moines Ry., 64 Iowa, 589. See, also, Stange v. Street Ry., 54 Iowa, 669 ; Stanley v. Davenport, 54 Iowa, 463. " State V. Berdetta, 73 Ind. 185; Indianapolis v. Kingsbury, 101 Ind. 200; Eichels v. Evansville Ry., 78 Ind. 261. § 205. Horse-rallroads. — The use of a street by a horse-railroad, wlien laid on a grade with the street, with- out cuttings or embankments, is a proper modification of an existing servitude. The servitude is not new because the form of vehicle is new. There is no annoyance from fire, smoke, steam- whistles, or rapid progress of trains, and it does not signify that the street-railroad has an exclusive right to use its own track when occasion requires. The use of streets by a horse-railroad company under proper re- strictions is not an imposition of an additional servitude upon the land of the adjacent owner. It is simply the right to lay tracks in streets already appropriated to the uses of public travel for the purpose of facilitating such travel; to modify public use, and to change to some extent the law of the road.^ The right thus to use the streets of a city for a horse railway rests on the ground that such a use is neither inconsist- ent with nor does it in any manner supersede the ordinary uses for which the street was dedicated as a highway ; that the easement thereby acquired was the right to use the streets of a city, not only occording to the then existing modes of travel and transportation, but all such other modes as may arise in the ordinary course of improvement, and that a horse railway is but one of the legitimate contingencies within the objects and purposes for which the street was dedicated to the public, and which it is to be presumed was 398 USES OF HIGHWAYS AND STREETS. § 205 within the contemplation of the parties at the time damages were assessed to the abutting owners. The cars may be an annoyance, but not greater perhaps than other modes of conveyance running at regular periods.'' If the railway changes grades, and thereby impairs access to buildings, additional compensation must be made.* After a long sc- ries of cases on both sides, the Court of Appeals of New York have decided, in Craig v. Rochester City Railway,"* that a horse-railway is an additional burden on a public street; that the interference is of the same nature as that of a steam-railroad, but not so great in degree ; that the use of the track is exclusively in the company, for their own vehicles, and that vehicles of other kinds must give way.'^ The street-railroad has only an equal right with the public in the use of the street, with the exception that vehicles must give way in order to allow the cars to run on the track. ^ One horse-railway cannot object to the use of the street by another horse-railway, in making a crossing over its track, if done without unnecessary damage.^ Railroads operated by animal power for the purpose of transferring freight cars from the terminus of one railroad to that of another in a city, there- by connecting such lines, is an additional servitude upon the street for which the of owners adjacent property is entitled to compensation.^ 1 Elliott ■u.Fairhaven R. K., 32 Conn. 579; Jersey City & B. R. «. Jersey City & H. R. R., 20 N. J. Eq. 61; Hiuchman w. PitersonH. R. E., 17 N. J. Eq. 75; Peddicordw. Baltimore Passenger B. W., Si Md. 463; Savannah R. R. V. Savannah, 45 Ga. 602; Brown v. Duplessis, 14 La. An. 842; Grand Rapids R. R. v. Heisel, 47 Mich, 393 ; Clinton v. Horse R. W., 37 Iowa, 61 ; Carson 17. Central R. R., 35 Cal. 325; Street R. W. ■!). Cumminsville, 14 Ohio St. 524 ; Sears v. Marshalltovi'n Street Railway, 65 Iowa 742 ; Randalls. Jack- sonville St. E. R., 19 Fla. 409; Hodges v. Baltimore Passenger Ry. Co., 58 Md. 603; West Jersey R. R. Co. v. Cape May R. R., 34 N. J. Eq. 164; Texas & Pacific Ry. v. Rosedale St. Ry., 64 Texas 80; Elchels v. Evans- ville Ry., 78 Ind. 261; Citizen's Coach Co. v. Camden E. R., 33 N. J. Eq. 267. 2 Attorney-Gen. v. Metropolitan E. R., 125 Mass. 615. ' Hodges V. Baltimore Passenger Ry., 58 Md. 603. * Street R. W. v. Cumminsville, 14 Ohio St. 524. » 39 N. Y. 404. 399 § 206 USES OP HIGHWAYS AND STREETS. ' Wager i>. Troy Union R. R., 25 N. Y. 526 (overruling and qualify- ing cases 39 Barb. 49i; 37 Barb. 35; 35 Barb. 404, 373; 33 Barb. 420i 23 Barb. 482). Tlie case of The People v. Kerr, 27 N. Y. 188, is under a peculiar statute, by which the fee of the streets of New York City is in the city. ' Shea V. Potrero R. R., 44 Cal. 414; Mahady v. Brunswick R. B., 91 N. Y. 148. " Market Street R. R. v. Central R. R., 51 Gal. 583. ' Carli u. Stillwater Transfer Co., 28 Minn. 373. § 206. Xjasement of adjoining owner In the street a valuable property. — Besides the right of way which the public has of passing over a street in a city, there is a pri- vate right which passes to the owner of the lot upon the street, and as appurtenant to it, which he holds by an im- plied covenant that the street in front of his lot shall for- ever be kept open to its full width. ^ And it is immaterial whether or not the title of the owner extends to the middle of the street, as the right of action grows out of the own- ership of the lot.^ While a proper use of a street by a railroad, under legislative and municipal authority, may be had without payment of damages to adjoining owners, the use of the street cannot be materially interfered with.^ This is a valuable portion of the owner's property, and if he is prevented by high embankments frona ingress and egress to his lots, there is a special damage to such owner, an ad- ditional burden, for which compensation in damages must be made.* The street must be still capable of use as a street, and not interfered with so as to prevent its reasona- ble use by adjoining proprietors.' The authority to occupy a street must be at the company's peril, and with the under- standing 'that injuries of this nature to private individuals must receive compensation.^ The adjoining owner has an easement to go from his house out upon the public highway ; when there, his rights in the highway are no greater than those of the general public' The remedy for an obstruction to one's entering his own house is by action for the special Tvrongdone ; but for obstructing a street, when one's house isvas at some distance from the obstruction, the remedy is by 400 trSES OF HIGHWAYS AND STREETS. § 207 indictment.' The measure of damao'es where a railroad is built on a street to abutting ownet is the diflference between the rental value of the lot with the road as constructed and the rental value if it had been properly constructed.' An owner of a possessory title to land abutting on a street taken by a railroad company, has certain rights which are entitled to protection, and which cannot be taken away without compensation.'" If the company owns all the prop- erty on one side of an alley, and seeks to condemn the property on the other side, the value of the owner's ease- ment in such alley is an element of damage for which compensation is to be' paid. ^' In awarding compensation for damages to entire lot, easement in alley is to be in- -cluded, when the alley runs through the lot.'^ 1 Haynes'W. Thomas, 7 Ind. 38; Protzman v. Indianapolis E. R., 9 Ind. 467; Mahady v. Brunswick E. E., 91 N. Y. 148. '^ Lackland ». North Missouri E. E., 31 Mo. 180; Anderson v. Turbe- ville, 6 Coldw. 150; Blizabethtown E. E. v. Combs, 10 Bush, 382; Lexing- ton R. R. V. Applegate, 8 Dana, 289; Cox?;. Louisville R. R., 48 Ind. 178; •Crawford v. Delaware, 7 Ohio St. 459; Street R. W. v. Cumminsviile, 14 Ohio St. 524; Bingham v. Doane, 9 Ohio, 165. ^ Cosby t). Owensboro E. R., 10 Bush, 288; Burlington R. R. v. Eein- hackle, 15 Neb. 279. * Tate V, Ohio E. E., 7 Ind. 479; Fletcher v. Aubu rn E. E., 25 Wend. 462: Denver v. Bayer, 7 Col. 113. * Lexington E. E. v. Appelgate, 8 Dana, 289; Cox v. Louisville E. E., 48 Ind. 178; Guess v. Stone Mountain Granite Co., 72 Ga. 320. « Elizabethtown E. E. v. Combs, 10 Bush, 382; Lexington E. E. v. A.pplegate, 8 Dana, 289. ' Winterbottom v. Earl of Derby, 36 L. J. (Exch.) 194; Regina v. Met- ropolitan Board, L. R. 4 Q. B. 358. 8 Macey v. Metropolitan Board of Works, 33 L. J. (Ch.) 377. 9 O'Connor v. St. Louis Ry., 56 Iowa, 785. i» Virginia E. E. v. Lynch, 13 Nev. 92. u Cincinnati E. R. c. Mims, 71 Ga. 240. 1^ Port Huron Ry B. Vorheis, 50 Mich. 506. § 207. Inconvenience of access — Embankments in vstreets — Obstruction of ingress and egress to prop- erty. — While it may be conceded that changes of grade may be made without compensation, yet this applies to the .ordinary changes which may probably be made by a city, 26 401 § 207 USES OF HIGHWAYS AND STREETS. for use as a street, but would not apply to such changes as; are made in streets by deep cuts or embankments erected by railroads. These injuries require compensation to ad- joining property-owners.^ Where egress and ingress is possible, no damages will be allowed, although the grade is raised four or five feet ; ^ but it was never understood that railroads could block up a street, so that ingress and egress to buildings would be rendered almost impossible, or so that vehicles could not stand in the street while trains were passing. The adjoining owner has a property in the street, which is as much property as the lot itself. States whicb allow the running of railroads in streets, without compen- sation, confine the giving of damages to those cases where the railroad hinders materially the ordinar;^ use of the street, and where the property is thereby measurably de- preciated in value.' The public cannot authorize railroads to wholly block up or obstruct an alley without leaving owner at liberty to recover full and complete damages.* Whatever permanently prevents the adjacent owner's free use of the- street, for ingress or egress to or from his lot, and whatever interference with the street permanently diminishes the value of his premises, is as much a damage to his private prop- erty as though some direct physical injury were inflicted. * Inconvenience of access on account of a high embankmentor^ excavation constitutes a damage deserving of compensation.* Trestling in a street, for a bridge-approach, was a damage considered consequential under a constitution which allowed damages only for land taken.' Where the railroad occupies the street with a ditch, not leaving sufficient room for the road, the damages could not be confined to the strip actually taken, but to the loss of the entire street, and the consequent damages.^ Mere inconvenience is not the subject of dam- ages ; — as, where the street is brought inconveniently near the door,' or where depreciation is anticipated because there will be some danger and inconvenience in crossing the track to reach the house. ^^ The owner is to be paid to the extent to» 402 USES OF HIGHWAYS AND STREETS. § 207 which the change deprives him of its legitimate use.^^ The embankments may cut off liglit, and air, and a passage-way, as in a case in Kentucky, where the ingress and egress to a hirge and valuable mill was cut off by changes in street grades. The court held the damages to be too large for the O DO individual owner to bear, and that the city should pay ; and if they could not pay, they should not impose the burden on the citizen.'^ The rule allowing damages for interfei-ence with ingress and egress conforms to that other rule of esti- mating damages, — that tlie value of the strip should be given, in its relation with the rest of the land, and consid- ering the use to which the strip is to be put. A strip which is to be devoted to a deep cut or a high enbankment is worth more to the owner, to escape the injurious use, than the simple value of the land. Any change in the use of the land taken, from that originally contemplated, would make an additional burden, and make the value of that strip still greater to the former owner. Hence, where a county road was changed into a plank-road, and in the construction tliereof the road was cut so deep as to leave the house on a hio-h elevation, impending the road, and so near as to endano-er its stability and incommode the entrance to it, additional damages were allowed over those previously granted for a road at grade." Depreciation to mill prop- erty, caused by a railroad running alongside of the public road, which would lay between the railroad and high bank of a river, is to be considered where the access to the mill, was rendered dangerous and the custom of the mill was injured." Where a railroad is located in an alley, the ad- jacent own6r may eitlier consider the obstruction as a temporary injury and sue for special or temporary damages, or consider it as permanent, and proceed under condem- nation proceedings.** Where there is a mere encroach- ment upon a street, which is no injury to abutting property, no action can be maintained.*® Where abutting owner sues for damao-es from operation of a road in the street, he may 403 § 207 USES OF HIGHWAYS AND STREETS. show such damages as would have been proper to consider by a jury on a trial for condemnation, etc." Diversion of travel from a street may be shown to show one of the ways in which the rental value of the property had become dimin- ished.i° 1 Pittsburgh K. B. v. Rose, 74 Pa. 362 (qualifying Henry u. Pittsburgh Bridge, 8 Watts & S. 85) ; Street E. W. v. Cumminsville, 14 Ohio St. 524 ; South Carolina R. E. v. Steiner, 44 Ga. 546; Moore v. Great Southern Eall. Co., 10 r. R. C. L. 46; Tuohey v. Great Southern Rail. Co., 10 I. R. C. L. 98, 2 Newport Bridge v. Foote, 9 Bush, 264. 3 Elizabethtown R. R. v. Combs, 10 Bush, 382. Owner may rely on grades already established. Street R. W. v. Cumminsville, 14 Ohio St. 524. Narrowing a street and interfering with the approach to a house are substantial injuries. Beckett v. Midland Rail. Co., L. E. 3 C. P. 82. * Central Branch Union Pacific R. R. ». Andrews, 30 Kan. 590; Mahady 1). Brunswick R. E., 91 N. Y. 148. * Denver!). Bayer, 7 Col. 113. ^ « Parker v. Boston R. R., 3 Cush. 107; Bradley v. New York R. R., 21 Conn. 294. In the last case, the statute provided for compensation for all damages occasioned by the improvement. Eochettes. Chicago Ey. Co. 32 Minn. 201; Eigney i!. City of Chicago, 102 111. 64; Dreher «. Iowa South- western Ry., 59 Iowa, 59^; Omaha R. R. Co. v. Rogers, 16 Neb. 117; Trosper v. Commissioners of Saliue Co., 27 Kin. 391 ; Pittsburgh E. E. v. Reich, 101 111. 157; Hanlin v. Chicago Ey. Co., 6-1 Wis. 515. ' Chicago R. R. v. MoGinnis, 79 111. 269. Under the Constitution of Illinois of 1872, any injury to abutting owner is construed to be a proper subject of compensation. Indianapolis R. R. v. Hartley, 67 111. 439. 8 Hegar v. Chicago R. R., 26 Wis. 624. * Jamison v. Springfield, 53 Mo. 224; Markham v. Mayor, 23 Ga. 402. '» Boston R. R. v. Old Colony E. E., 12 Cush. 605; KeUinger v. Forty- second Street E. E., 50 N. Y. 206; Glover v. North Staffordshire Rail. Co., 16Q. B.912. ButseeCaledoniaEail. Co.'!). Ogilvy, 2 Macq. H.L. Cas. 229. 11 Pekin v. Brereton, 67 111. 477 (modifying Murphy v. Chicago, 29 111.279). 1^ Louisville !). Eolling-Mill Co., 3 Bush, 416; Keasy v. Louisville, 4 Dana, 154. Diminution of light in a building is also to be considered. Eagle!). Charing Cross Eall. Co., 36 L J. (C. P.) 297; Beckett v. Midland Rail. Co., L. R. 3 C. P. 82. 1' Williams v. Natural Bridge Planlc-Road, 21 Mo. 580. " West Pennsylvania E. R. v. Hill, 56 Pa. 460. 15 Central Branch Union Pacific E. E. o. Andrews, 26 Kan. 702 ; Gott- schalk V. Chicago R. E., 14 Neb. 550. i« Rinard v. Burlington Ey. Co., 66 Iowa, 440. " Grand Eapids E. E. Co. v. Heisel, 47 Mich. 393. ^* Stange v. City of Dubuque, 02 Iowa, 303. 404 OF CONTROL OVER EIGHTS OP WAY. ^ 208 CHAPTER XIX. OF THE CONTROL OF RAILROAD COMPANIES OVER RIGHTS OF WAY, AND OF THEIR DUTIES IN RELATION THERETO. § 208. Railroad to have exclusive control over right of way. 209. Telegraph line a,n encroachment — Railroad company may erect telegraph line. 210. Materials in right of way. all. Track need not be in center of right of way — Obstruction of pri- vate ways. 212. Fencing. 213. Farm crossings. 214. Failure of company to make crossings. 215. Bridges over cuts — Ditches. § 208. Railroad to liave exclusive control over right of way. — The property of a railroad, although taken for pub- lic use, and to a certain extent under the control of the public, is private property as far as the management is con- cerned. Any use which is inconsistent with the efficient management, of the road, or to its complete dominion over its right of way, is a taking of private property, and un- authorized, unless by virtue of a legislative act which pro- vides compensation.^ The right of the railrond to repair and change the structure of its road, and to use the mate- rials found in its right of way, requires an exclusive occu- pation and control,^ and it is no answer that the railroad did not need all the right of way for its own purposes.' Land-owners cannot enter on land for the purpose of cutting garbage or turf,* or of pasturing cattle on the right of way," or of flowing right of way, or using the embankment of a railroad for the wall of a dam.* The inconvenience of having men, teams, and cattle on the right of way is not to be tolerated, and the danger to the traveling public should be considered. The removal of turf renders the road liable to dust, which is annoying to travelers, and hence the com- pany may promote the growth of turf; and the removal of 405 § 209 OF CONTROL OVER RIGHTS OF WAY. the growth of turf by an adjoining owner would be a tres- 2)ass. The railroad company may trim a hedge which encroaches on its right of way.' -The raih'oad acquires, by its condemnation, either an easement or a several estate, and not one in common with the tenants in common over whose land the r;iilroad is situated." The necessity of laying a town-way over a railroad should appear to the county com- missioners to be plain and manifest; and the company may take advantage of errors in proceedings.' The only limit to the use which a railroad company may make of land taken hy virtue of the right of eminent domain is that it shall be authorized by its act of incorporation ; within that limit the manner in which the land shall be used and occupied is in the discretion of the corporation. i" Railroad companies have unlimited power to locate depots for the best interests of the enterprise, even though a money consideration be re- ceived therefor, but they cannot make a matter of commerce of them as a punishment to a non-subscribing town nor establish them for any other purpose than the best interests of the community and of the road. 1^ A company is under no obligation to so construct its line ot road through land as to cause the least possible injury or inconvenience.^ 1 Atlantic Telegraph Co. u. Chicago R. R., 6 Biss. 158. 2 Jackson v. Rutland R. R., 25 Vt. 150. 3 Burnett v. N. & C. R. R., 4 Sneed, 528. * Troy R. R. «. Potter, 42 Vt. 265 ; Connecticut River R. R. v. Holton, 32 Vt. 43. * Jackson v. Rutland R. R., 25 Vt. 150; Chicago R. R. v. Patchin, 16 111. 198. And if cattle are injured, the railroad company is not responsible. Munger v. Tonawanda R. R., 4 N . Y. 349. * Lake Superior R. R. v. Greve, 17 Minn. 322. ' Toledo R. R. V. Green, 67 111. 199. * Weston V. Foster, 7 Mete. 297. ' Commonwealth v. Haverhill, 7 Allen, 523. 1" Pierce v. Boston R. R. Co. 141 Mass. 481. " Currie v. Natchez R. R., 61 Miss. 725. J2 International Ry. v. Pape, 62 Texas, 313. § 209. Telegraph line an encroacliment — Railroad company may erect telegraph line. — The use by a tele- 406 OF CONTEOIi OVER RIGHTS OF WAY. § 210 ^raph company of the right of way of a railroad, for the pur- poses of erection and maintenance of a telegraph line, is an -encroachment on the exclusive rights of the railroad.^ The railroad might be crowded out of its right of way by tele- graph lines, and might be interfered with in necessary repairs and maintenance of its road-bed. The construction of a telegraph line involves, necessarily, the actual taking of property, and its exclusive occupation. The owner of the land can have no claim for damages, because the rail- road company constructs a telegraph line upon its right of way. Such use by the railroad company is a proper use of its right of way; and it does not signify that the line was erected by a telegraph company for the joint use of such company and the railroad.^ A railroad company can make a contract with a telegraph company, permitting it to estab- lish a line of wire on its right of way, but cannot make an exclusive contract. In so doing it seeks to add an unlim- ited franchise to one which is itself limited.^ ' Atlantic Telegraph Co. v. Chicago E. E., 6 Biss. 158; South- Western K. E. V. Southern Telegraph Co., 46 Ga. iz. 2 Telegraph Co. v. Eich, 19 Kan. 517; Pierce B.Drew, 136 Mass. 75. 3 Western Union Tel. Co. v. Americaa Union Tel. Co., 65 Ga. 160. § 210. Materials in right of way. — The corporation condemning the land is entitled to the whole or any portion of materials, stone, or gravel excavated on one portion of the land, to be used in the proper construction or repair of any other portion thereof.^ Otherwise, if only a license to use the right of way has been given. ^ The company may cut down the trees in the right of way. The burden of show- ing that the cutting was not necessary is on the owner. The presumption is, that the officers of the railroad are exercis- ing a proper discretion. The removal of trees may be necessary to prevent obstruction of view.' The entire tim- ber may not be destroyed simply because the company deems such course necessary and convenient. The company is to use materials only for the purposes required in the statute. Unless necessary for the construction of the road, the pro- 407 § 211 OP CONTROL OVER RIGHTS OF WAY. prietor may remove the timber and use it as his own.*^ Construction of the roucl means makiug the road-bed. Timber in the road-bed could not be used as fire- wood by. the company.^ The minerals in the land belong to the owner, and he may remove them if it will not endanger the railroad.® The materials cannot be removed, and sold ta' third parties. This would be an abuse of the power of condemnation, to condemn for the purpose of selling again ; and when materials are so sold, the owner may recover their value.' Trespass will lie fortaking materials outside of the right of way, unless such taking is pursued under the statu- tory power of condemning materials.^ Under a statute per- mitting a railroad company to enter pending an appeal, to voluntarily abandon the proceedings after having taken, as much gravel and other material, etc., as is desired, is aa abuse of the license, and the company will be regarded as a trespasser ab initio.^ 1 Chapino. Sullivau R. R., 39 N. H. 564; Aldrichu. Drury, 8 K. I. 554; Taylor u. New York R. R., 38 N. J. L. 28; Preston v. Dubuque R. R., 11 Iowa, 15. Contra, as to gravel, New York B. R. v. Gunnison, 8 N. Y. Sup. Ct. 496. 2 Chapin v. Sullivan R. R., 39 N. H. 564. 3 Brainard v. Clapp, lOCush. 6. * Taylor v. New York R. R., 38 N. J. L. 28; Preston v. Dubuque R. R., 11 Iowa, 15; Vermllya v. Chicago Ry., 66 Iowa, 606. ' Preston v. Dubuque B. R., 11 Iowa, 15. « Hasson ■o. Oil Creek R. R., 8 PMla. 556. ' Aldrich v. Drury, 8 R. I. 554; Taylor ». New York R. R., 38 N. J. L. 28. 3 Crawfordsville R. R. v. Wright, 5 Ind. 252. « Pittsburg Ry. v. Swinney, 97 Ind. 586. § 211. Track need not be in center of right of way — Obstruction of private ways. — The strip of land used as a right of way is under the control of the company, and they may locate their tracks in such portion of the right of way as they may deem proper. In conveyances, the owner should specify if he desires a particular location ; other- wise, the company may use their discretion.^ In a public street, the track may be located on one side of a street, 408 OF CONTROL OVER EIGHTS OF WAT. § 212" but a change of location to the other side would require the damages to be paid to the owner injured by the proximity.^ There is a vast difference between the location of a risht of way and the location of a track on a right of way. The company has the right to locate its track at its will and pleasure upon any part of its right of way. One location of its track does not deprive it of the right to make another loca- tion.* Land taken by a railroad may be used by the com- pany in the erection of buildings or other structures, and hence may obstruct a private way across the lands so taken.* 1 Hunkers v. Kansas City K. R., 60 Mo. 334; Stark v. Sioux City K. R., 43 Iowa, 601 ; Dougherty v. "Wabash Ry., 19 Mo. App. 419. 2 Central R. R. d. Hetfield, 18 N. J. Eq. 323. ' Dougherty v. Wabash Ry. Co., 19 Mo. App. 419. * Boston Gas-Light Co. v. Old Colony R. E., 14 Allen, 444; Cumber- land Valley R. E. v. Rhoodarmer, 107 Pa. St. 214. § 212. Fencing. — The expense of new fencing required by the taking of the land should be borne by the party con- demning. This liability does not impose a contract upon the party condemning, but the expense should be included in the land damuges,^ or the obligation may be defined by the legislature. It has been further held that the compensation should include the cost of maintaining the fence. ^ The difiSculty of estimating the cost of maintaining fences has led some courts to deny that doctrine, and hold that the cost of maintaining the fence foi- an indefinite period of time should not be included, but only for the changes ren- dered necessary,^ and not for annual damages corresponding to those allowed for overflowing lands.* The owner is not compelled to expend the money he receives in making a fence.® The fencing should be reasonable fencing;® not an iron fence or stone wall, or the fence which the owner chose to construct, but reasonable fencing, such as an ordinary owner might put up.' Hence the cost of fencing has been refused when the fences were not necessary, or had not been formerly used, as where the land was uncultivated.^ Evi- dence should be offered of the cost of fencing, and in the absence of such, evidence the jury must omit damages for 409 §212 OF CONTROL OVER RIGHTS OF WAY. fencing.' The owner has time in which to remove his iences. If he removes them voluntarily, his vendee can- not replace them and claim the same time to remove.^" The •expense of removing and resetting a fence which the owner liad erroneously built on the right of way, when the dam- ages for taking the right of way had already been assessed, cannot be allowed to the owner. He should have put the fence on the proper line.^^ The owner cannot occupy the lands of the railroad company with fences,^ and the law relating to partition fences does not apply. ^ The jury is not bound by estimates of witnesses as to amount of fence I'equired and value of land ; they are to reach their con- clusions from all the circumstances.^* The company is Bot necessarily an adjoining owner in fee, so as to require it to join in erecting a fence. Until the company does erect a fence, it is not negligence in the owner to allow his cattle to be on his adjoining land, from vvhence they may stray on the track. ^^ In Illinois, there is a statute giving an action by the railroad company against the owner for failing to fence. ^^ In some states, the statute makes it compulsory upon the company to fence the track. In such case, the jury cannot consider, in the damages, the probability that the company would not maintain the fence. The remedy under the statute would be sutficient." In New York, it has been suggested that the railroad should bear one-half of the cost of fencing, as the fence is for the mutual benefit ■of both owner and railroad.^' In Pennsylvania, the cost of fencing is not allowed, but the jury may consider, in dam- ages, the depreciation caused by having to provide addi- tional fences.^' The claim for compensation can best be sustained on the rule requiring the condemning party to pay not only the value of the strip taken, but its value in relation to the land not taken. But for the taking no new fencing would be necessary. Hence the value of the strip ■over and above the value of the land in the strip is the cost •of the additional fencing rendered necessary, In Missouri,^" 410 ■ or CONTROL OVER EIGHTS OF WAY. § 212 itia held that the cost of building fences should not be considered, it being the law of thatstate that railroad cor- porations shall fence their tracks, and penalties in the shape of double damages to stock being prescribed in case they do not. If the road, whether a railroad or public road, is laid out on the line of the owner's land, and no land is taken, there can be no damages for compelling the owner to main- tain the whole of a fence, the expense of one-half of which, only, was formerly borne by him.^^ 1 Vandegriff «. Delaware R.R., 2 Houst. 287; Greenyllle R. R. v. Part- lo-w, 6 Rich. L. 428 ; Baltimore R. R. ■«. Lansing, 52 lad . 229 ; Montmorency Road V. Rock, 41 Ind. 264; Whitewater R. R. v. McCIure, 29 Ind. 636; Milwaukee E. E. ■«. Eble, 4 Chand.72; Winona R. R. v. Denman, 10 Minn. ^67; Carpenter v. Sims, 3 Leigh, 675; Tonica R. R. ■». TJnsicker, 22 111.221. 2 St. Louis R. E. V. Mitchell, 47 111. 165. ' Evansville R. R. v. Fitzpatrick, 10 Ind. 120; Rock Island R. B. v Lynch, 23 lU. 645. * Henry D. Dubuque R. R., 2 Iowa, 288. ' Chesapeake R. E. v. Patten, 6 W. Va. 147. » Henry v. Dubuque R. R., 2 Iowa, 288. ' Bland v. Hixenbaugh, 39 Iowa, 532. « First Parish v. Plymouth, 8 Cush. 475 ; Raleigh E. E. v. Wicker, 74 N. C. 220; North-East R. R. v. Sineath, 8 Rich. L. 185; Leavenworth Ry. Co. 1!. Paul, 28 Kan. 816; Texas Ry. •». Cella, 42 Ark. 628; St. Louis R. R. V. Anderson, 39 Ark. 167; New York Ry. v. Stanley's Heirs, 35 N. J. Eq. 283; Houston Ry. v. Adams, 63 Texas, 200. 9 Peoria E. E. v. Blrkett, 62 111. 332 ; Stone v. Heath, 135 Mass. 561 ; New York Ey. v. Stanley's Heirs, 35 N. J. Eq. 283. 1" Hunter v. Jones, 13 Minn. 307. " Holton V. Butler, 22 Iowa, 657. 12 Alton R. E. V. Baugh, 14 111. 211. " Henry v. Dubuque E. E., 2 Iowa, 288. M Watson V. Crowsore, 93 Ind. 220. w Quimby v. Vermont Central E. E, 23 Vt. 387. " St. Louis E. E. V. Mitchell, 47 111. 165. « Jones V. Chicago R. E., 68 III. 380; Winona E. R. v. Waldron, 11 Minn. 515. w Matter of Rensselaer R. E., 4 Paige, 663. Doubted in Henry ti. Dubuque R. R., 2 Iowa, 288. " Delaware R. R. v. Burson, 61 Pa. 369. a> Sedalia Ry. v. Abell, 18 Mo. App. 633. ^ The People v. Supervisors, 19 Wend. 102 ; Hoag v. Switzer, 61 m. ^94. This last case was decided before the Constitution of Illinois o{ 1872, which would allow damages for such an injury. 411 § 213 OF CONTKOL OVER RIGHTS OF WAT. § 213. Farm-crossings. — It is doubtful whether rail- roads are compelled to construct farm-crossings ; but if constructed, they become the property of the land-owner, and cannot be removed except by his consent, or when necessary for the improvement of the road. Where the railroad company make the crossings at then' own expense, no damages for them should be allowed to the owner. ^ The erection of farm-crossings is under the control of the railroad, and the owner has no right to make them when and where he pleases. His convenience must yield to the public safety.' The company are boimd to erect crossings according to the plan of their road, because on that basis it is presumed that the damages have been assessed. Tiie company is not bound to construct brid^ges or viaducts, except as stated on their plan.* Crossings include crossings under as well as over a railroad, and if a crossing under is necessary and proper, the jury are bound to assess the damages, on the theory that the proper crossings should be forever maintained.* The owner is entitled to crossino;s when the railroad separates the house from the highway ; and the crossings should be suitable, and heavy gates are not of that nature.^ In the condemnation of a right of way across a farm, the necessities and conveniences of location for farm-crossings should be taken into consideration, and after condemnation it will be presumed that they were, and that the damages were estimated upon the hypothesis that a farm-crossing would not be constructed and maintained at any point where it would affect the safe and efficient opera- tion of the road.* If crossings are a part of the plan of a railroad wh-ere it crosses the farm and are shown on the maps and profile of the road on record, and are taken into consideration by the commissioners in making the award of damages, the damages should be assessed on application with reference to such plan of construction and the railroad company becomes bound to construct such crossings. Aa a general rule a land-owner has a reasonable right to farm- 412 OF CONTROL OVER RIGHTS OF WAY. § 214 crossings at such places as the necessities of his farm de- mand, provided such crossings and the use thereof, will not interfere with the paramount rights of the railroad company.'' 1 March v. Portsmouth E. E., 19 N. H. 372. 2 Connecticut Eiver E. E. v. Holton, 32 Vt. 43; Presbrey v. Old Colony E. E., 103 Mass. 1; Alton E. E. v. Baugh, 14 111. 211; Clayton v. Chicago Ey., 67 Iowa, 238. 3 Kyle V. Auburn E. E , 2 Barb. Ch. 489. * St. Paul E. E. V. Murphy, 19 Minn. 500. ' Gray v. Burlington E. E., 37 Iowa, 119. » Chalcraft v Louisville E. E., 113 111. 86. ' Kansas City v. Kregels, 32 Kan. 608. § 214. Failure of company to make crossings. — The remedy for failure to make crossings is to sue for penalty given by statute, or by bill in equity to compel the con- struction, but not by assessment of damages under the statute.^ For failure to make crossings over public roads, the remedy is by indictment.^ Where the company is com- pelled by statute to make crossings, the interest and conven- ience of the owner should be first considered ; and if the the places are not designated on the map, it is presumed that the company will make them in their proper places for the owner, and for a failure to make them in proper and convenient places the company would be liable for dam- ages.^ The company cannot be compelled, without com- pensation, to make new crossings for streets instituted after the condemnation has been had.* If no rights of crossing a railroad have been reserved or provided, damages must be assessed as if no such rights existed.* Proceedings taken to condemn land and the damages paid by reason thereof, do not necessarily preclude the plaintiff from main- taining an action to compel the company to provide suitable and proper crossings, in case it has failed to fulfill the duty imposed by law.^ The English Lands Clauses Consolidation Act provides that owners and occupiers of adjoining lands may cross the track of the railroad at any point, until the company provides a communication, without interfering with the operation of the railway.' 413 § 'i?15 OP CONTROL OVEE RIGHTS OF WAY. * 1 Vermont R. E. v. Franklin, 10 Cush. 12. ' Brainard v. Connecticut E. E., 7 Cush. 506. ' Wlieeler v. Rochester E. R. 12 Barb. 227. * Illinois Central E. R. . Bloomington, 76 111. 447. 6 Drury v. Midland R. R., 127 Mass. 571. « Jones V. Seligman, 81 N. Y. 190. ' 8 Vict., c. 20, § 74. § 215. Bridges over cuts — Ditches. — If the railroad' company is compelled by statute to erect bridges over cuts, it is error to assess as part of the damages the cost of a bridge over the cut. The duty of the railroad company can better be enforced in another manner.^ The railroad company cannot be compelled to make ditches, but damages may be allowed for the expense of ditches rendered necessary by the construction of the rail- road.^ 1 Philadelphia R . E. d. Trimble, 4 Whart. 47. » St. Louis R. R. V. Mollett, 59 111. 235. 414 OF DAMAGES INCLUDED IN ASSESSMENT. § 216 CHAPTEE XX. OF THE VARIOUS DAMAGES PRESUMED TO BE INCLUDED IN THE ASSESSMENT. §216. All damages presumed to have been considered in the assessment- 217. Damages arising afterward — Unforeseen damages. 218. Assessment after construction of the improvement. 219. Change in plan after assessment. 220. No compensation for damages caused by negligent or tortious acts 221. Damages while and is unlawfully occupied 222. Trespasses on lands adjoining. 223. Value of erections on land condemned — O^'Tiership of buildings. 224. Continuing buildings already commenced. 225. Buildings on streets not laid out — Dedication by plat. § 216. All damages presumed to have been considered, in the assessment. — All elements of damages should be presented to the commissioners or jury assessing the dam- ages. The appraisement embraces all past, present, and future damages which the improvement may thereafter reasonably produce.^ Damages resulting from tearing down fences, or expense in construction ot new fences, or, in fact, any damage not resulting from negligent or unskillful con- struction, is presumed to be included in the assessment.* The fact that the land over which the road passed was mineral land is presumed to have been considered, and that the corporation condemning would be entitled to the exca- vations made by it, whether or not they were necessary in the construction of the road.* When the statute allows pamages for inconveniences resulting from cuttings and embankments, which render passage to and from different parts of a farm difficult, such damages are presumed to have been considered.* Where permission is given to construct, and operate road over one's land, leaving rights of property to be adjusted, the owner must present all claims at the insti- tution of proceedings ; a part cannot be reserved for future litigation.* The assessment embraces damages by causing 415 § 216 OF DAMAGES INCLUDED IN ASSESSMENT. a spring to disappear on account of an excavation, notwith- standing, as a matter of fact, the damages could not have been anticipated.® Although rights of excavating and blast- ing are included in the rights obtained by condemnation of a right of way, yet when the company comes with its appli- cation for a right of way across land which is crossed by a stream of water, the company does not indicate to the owner, by necessary implication, that it wants to take and pay for the privilege of diverting the stream, when such diversion would destroy a mill-privilege or the land-owner's stock-water. It cannot be known to the commissioners, in ordinary cases, that a diversion of the stream will be neces- sary ; for the question of diverting a stream, and filling to save the cost of bridging, is a question of civil engineering^ and because there is no necessity, in any case, of diverting a stream to save bridging, excej)t in view of greater economy and safety. In order to allow the diversion of a stream, there should have been an assessment with a view to finding the damages which would accrue on such diversion.' Where tiie charter of a city provides that owners of land on pub- lic streets shall grade and construct sidewalks at their own expense, the expense of grading, etc., is not to be in- cluded in damage awarded for land taken for a public way.' 1 Sawyer ■» Keene, 47 N. H. 173; Waterman v. Connecticut R. E., 30 Vt. 610; Furniss t!. Hudson River R. R., 5 Sandf. 551; Van Schoick v. Delaware Canal, 20 N. J. L. 2i9 ; Trenton Water Company v. Chambers, 13 N. J. Eq. 199 ; Chesapeake Canal v. Grove, 11 Gill & J. 398 ; Baltimore E. E. V. Magruder, 34 Md. 79 ; Montmorency Road ■». Stockton, 43 Ind. 328; Lafayette Plank-Road II. New Albany R. E., 13 Ind. 90; Missouri B. E. o. Haines, 10 Kan. 439; Caledonia Rail. Co., v. Lockart, 3 Macq. H. L. Cas. 808; Lawrence v. Great Northern Rail. Co., 16 Q. B. 643; Perley v. Railroad, 57 N. H. 212; Chicago Ry. v. Smith , 111 111. 363; Townsend v, Chicago R, E., 91 111. 545; Gilbert v. Savannah R. R., 69 Ga. 396; Little Rock Ry. V. Allen, 41 Ark. 431; Moss v. St. Louis Ry., 85 Mo. 86; Lit- tle Rock Ey. V. McGehee, 41 Ark. 202 ; International Ey. ■». Rape, 62 Texas 313 ; Hempstead v. City of Des Moines, 63 Iowa 36 ; Springfleld Ry. V. Rhea, 44 Ark. 258. 2 Clark V. Hannibal R. R., 36 Mo. 202 ; Sabin v. Vermont Central R. R., 26 Vt. 363; Steele v. West Lock Nav. Co., 2 Johns. 283; Pittsburgh R. R. 416 OF DAMAGES INCLUDED IN ASSESSMENT. § 217 w. Gilleland, 56 Pa. 445; Tucker v. Erie E. B., 27 Pa. 281 ; Chicago Ey. v. Smith, 111 111. 363. 3 Evans v. Haefner, 29 Mo. 141; Baker v. Johnson, 2 Hill, 342. * Mason v. Kennebec E. E., 31 Me. 216; Missouri By. v. Hays, 15 Neb. 224. The damage should be estimated. There should not be a deter- mination as to future access to the land so cut oflE; "Ware v. Eegent's Canal Co., 23 L. J. (Exch.) 145. * Harlow v. Marquette E. E., 41 Mich. 336. « Aldrich i>.|Cheshire E. B., 21 N. H. 359; Lafayette Plank-Eoad v. New Albany E. E., 13 Ind. 90; Winklemans v. Des Moines Ey., 62 Iowa> 11. . ' Stodghill V. Chicago E. E. 43 Iowa, 26. * Lewis V. City of New Britain, 62 Conn. 668. § 217. Damages arising' afterward — Unforeseen dam- ages. — The damages estimated in the assessment are those resulting from the construction of the road on the land taisen from the owner, but cannot include damages resulting from construction on the land of others. If the public im- provement removes, on the land of others, a natural barrier which previously prevented the flooding of water upon the land of plaintiff, there is a valid claim for damages. The fact that the parties inaking the assessment did not, or could not, anticipate the damages, does not exclude the right to dam- ages.^ Such damages may be recovered by common-law action, if not within the purview of the parties making the assessment.^ The fact that the legislature did not provide for damages arising afterward, does not prove that the damages are not recoverable. The omission would indicate that the legislature left that to be covered by a common-law action.' The fact that the loss was not suffered within a short time after the construction of the road, does not make it any the less a taking. The taking must depend on the injurious effect, and not on the length of time necessary to produce the effect.* The limitation on bringing ot actions would run, although such damages could not have been foreseen.^ This doctrine is denied in the earlier case of Heard v. Middlesex Canal,^ where Chief Justice Shaw holds that the damages must be assessed once for all, and cannot be determined by any after use, and that subsequent suits 27 417 § 218 or DAMAGES INCLUDED IN ASSESSMENT. should not be sustained. The limitation against such actions would be the ordinary limitation on actions, and not the special one provided by statute on actions for assessing damages/ The English doctrine is, that the ordinary damage is included, but that "any future extraordinary damage is notintended to be included in it."* While in New York' it has been held that the proposition, that, when lands are taken compulsorily, the proceeds for condemnation, contemplate and provide for every form of damage or in- convenience, is not well founded and cannot be upheld. For a new description of injury, not considered in the first as- sessment, there may be an additional claim. ^'' When the character and extent of a contingent future injury is capable of being ascertained, the amount of compensation should be ascertained once for all.^^ 1 Eaton V. Boston & Maine R. R., 51 N. H. 504. 2 Ibid.; Calhoun v. Palmer, 8 Gratt. 88; Whitworth v. Puckett, 2' Gratt. 528. " Wabash Canal v. Spears, 16 Ind. 4il. * Ibid.; Eastou v. Boston & Maine R. R., 51 N. H. 504. 5 Call V. Middlesex, 2 Gray, 232; Davis v. City of New Bedford, 133 Mass. 549. « 5 Mete. 81. See, also, Russell v. St. Paul' Ry., 33 Minn. 210; Gilmore V. Pittsburgh R. R., 104 Pa. St. 275. ' Wabash Canal v. Spears, 16 Ind. 441 (qualifying Lafayette Plank- Road V. New Albany R. R., 13 Ind. 90). " Lancashire Rail. Co. v. Evans, 15 Beav. 322; Lawrence v. Great- Northern Rail. Co., 16 Q. B. 643. 9 Jones V. Seligman, 81 N. Y. 190. w Rex V. Leeds & Shelby Rail. Co., 3 Ad. & E. 683. " Croft V. London, etc., Rail. Co., 32 L. J. (Q. B.) 113. § 218. Assessment after construction of the improve- ment. — If, pending an appeal from commissioners to a iury, the road is completed, the jury may see whether the road has been constructed in a proper manner, and what is the actual damage from running the road. The damages are assessed as of the time of the taking, but the jury, with, the light of the construction, may determine more certainly what the damage really was then.^ The same rule would 418 OP DAMAGES INCLUDED IN ASSESSMENT. § 219 apply where damages were assessed after the taking and construction.^ 1 Dearborn v. Boston K. R., 24 N. H. 179. 2 Watson 0. Pittsburgh R. R., 37 Pa. 469; Nash v. Upper Appomattox County, 5 Gratt. 332; Greenville R. R. v. Nutinamaljer, 4 Rich. L. 107. § 219. Change in plan after assessment. — When dam- ages have been assessed according to a certain plan, which would cause certain damages, it would be inequitable to allow the adoption of a new plan, more injurious to the owner, without providing for a new assessment.^ If the^ company build in a different manner from the plan pro- posed, and according to which damages has been assessed,, they may be restrained from construction until the addi- tional damages ai-e assessed.^ If the proceedings are not concluded, such errors might be set aside and remedied iii a direct proceeding, but not collaterally; and it does not signify that incorrect instructions had been given on the assessment. The remedy for those errors would be by appeal, and not by a separate action.^ Errors in the com- missioners' report, even when founded on misrepresenta- tions of the company, cannot be remedied in a collateral action or treated as being otherwise than completed.* When the damages have been settled by agreement, and afterward there is a change of plan, involving more damages, the owner may demand an assessment under the statute,^ and the same rule would apply if damages were assessed by- regular proceedings.* There may also be a recovery on the case, or on the implied undertaking to construct according to the p(an.' 1 Boyd V. Negley, 68 Pa. 387; Chicago R. R. u. Joliet R. R., 105 111. 388. 2 Carpenter v. Easton R. R., 26 N. J. Eq. 168; ». c, 24 N. J. Eq. 249; Jacksonville R. R. v. Kidder, 21 111. 131. » Van Schoick u. Delaware Canal, 20 N. J. L. 249. * Butman v. Vermont Central R. R., 27 Vt. 600. " Bertsch v. Lehigh Co., 4 Rawle, 130. 6 Peoria R. R. v. Birkett, 62 111. 332. ' St. Louis R. R. V. Mitchell, 47 111. 166; Jacksonville R. R. v. Kidder, 21 ni. 131. 419 § 220 OF DAMAGES INCLUDED IN ASSESSMENT. § 220. No compensation for damages caused by negli- gent or tortious acts. — The damages which are assessed Tinder condemnation proceedings are only those arising from the skillful and proper construction and lawful use of the public improvement.^ Damages arising from unsafe ap- pliances or careless construction of public improvements give a right of action in favor of the party injured, and the fact that the damages assessed have been paid would be no defense. The parties making the assessment cannot con- template in their assessment that the company will use un- safe appliances or abuse its powers.^ All such damages are to be recovered in other forms of action.* Damages for failure to remove stones thrown upon land by blasting should be obtained by an action at law.* The construction of public improvements in a manner to cause unnecessary damages leaves to the owner his common-law action, in which the entire damages, past, present, and prospective, should be settled ,^ and for such damages he cannot apply to the commissioners assessing damasjes to consider his claim. ^ These public works must be maintained in a skillful and jjerfect manner, and damages resulting from negligence in maintenance are not included in the original compensation.' An action will lie for dama<;;es resulting; from a defective bridge or culvert, which caused water to accumulate and flow back on lands above. ^ Separate actions must be insti- tuted for failure of the railroad company to construct cattle- guards, as required by law, damage having accrued to the owner thereby.' The damages arising from improper con- struction accrue to the owner who owns the property at the time the injury is suffered, who may be the vendee of the owner at the time of the takino;.'" Damages resulting S O O from a skillful execution of public work are lawful, al- though injurious to individuals, and are not the subject of actions of tort, but are to be recovered by the statutory proceedings." » Mccormick v. St. Joseph R. U., 57 Mo. 433; Jackson v. Portland, 63 Me. 55; Bangor E. E. v. McComb, 60 Me. 290; Dodge v. Commissioners 420 OF DAMAGES INCLUDED IN ASSESSMENT. § 220 of Essex, 3 Mete. 380; Bailey ». Mayor of New York, 3 Hill, 631; Dela- ware Cxnal V. L=e, 22 N. J. L. 243; Caledonia Bail. Co. v. Colt, 3 Macq. H. L. Cas. 833; Turner v. Sheffield Rail. Co., 3 Eng. Rail. Cas. 222; Law- rence V. Great Northern Rail. Co., 6 Eng. Rail. Cas. 656, 16 Q. B. 643; Brine i). Great Western Rail. Co., 31 L. J. (Q. B.)10I; Southampton Bridge Co. v. Southampton, 21 L. J. (Q. B.) 41 ; International Ry. v. Pape, 62 Texas, 313; Neilson v. Chicago Ry., 58 Wis. 516; Fremont R. R. B. Whalen, U Neb. 585; Chicago R. R. v. Goodwin, 111 111. 273; Hull v. Westfleld, 183 Mass. 433; Springfield Ry. u. Rhea, 44 Ark. 268; Miller v. Keokuk Ry., 63 Iowa, 680. 2 Mason D. Kennebec R. R., 30 Me. 215; McCormick v. St. Joseph R.R. 67 Mo. 433; Dearborn v. Boston R. B., 24 N. H. 179; Hatch u. Vermont Central R. R., 25 Vt. 49; Lowell v. Boston R. R., 23 Pick. 24; Spencer v. Hartford R. R., 10 R. I. 14; Mayor v. Bailey, 2 Denio, 433; Huyett u. Philadelphia R. R., 23 Pa. 373; Southside R. R. v. Daniel, 20 Gratt. 344;. Selma R. R. v. Keith, 63 Ga. 178; King v. Iowa Midland R. R., 34 Iowa, 458; Fleming v. Chicago R. R., 34 Iowa, 363; Oregon R. R. u. Barlow, 3 Ore. 311; Jones v. Eestiniog Rail. Co., L. R. 3 Q. B. 733. ^ Perry v. Worcester, 6 Gray, 644; Terre Haute R. K. ». McKinley, 33 Ind. 274; Regina v. Bristol Rail. Co., 2 Eng. Rail. Cas. 99; Turner «. Sheffield Rail. Co., 10 Mee. & W. 425; Brine v. Great Western Rail. Co., 31 L. J. (Q. B.) 101 ; Manser v. North-Eastern Rail. Co., 2 Eng. Rail. Cas. 380; Lawrences. Great Northern Rail. Co., 16 Q. B. 643, Milleri). Keokuk Ry., 63 Iowa, 680; Hull v. Westfleld, 133 Mass. 433; Eremont R. R. v.. Whalen, 11 Neb. 585 ; Lance v. Chicago Ry., 57 Iowa, 636. * Whitehouse v. Androscoggin R. R., 52 Me. 208; Sabin v. Vermon.. Central R. R., 25 Vt. 363. * Fowle V. Northampton Co., 112 Mass. 334; Proprietors of Locks v^ Nashua R. R., 10 Cush. 385. « Waterman?;. Connecticut R. B., 30 Vt. 610; Perry v. Worcester, 6 Gray, 644. There should be no damages allowed against a railroad com- pany because the construction of the railroad would obstruct a public highway. The railroad company should be liable in just such damages as would naturally and fairly result from a careful and proper construc- tion of the road, according to law. For an obstruction the company would be liable to indictment, and tho payment of the damages assessed, would confer no right. Gear v. C. C. & D. R. R., 43 Iowa, 83. ' Morris Canal Co. v. Byerson, 27 N. J. L. 457; Pittsburgh B. R.u. Gll- leland, 66 Pa. 445; Waterman v. Connecticut R. R., 30 Vt. 610; Perry v. Worcester, 6 Gray, 554. « Mellen v. Western R. B., 4 Gray, 301 ; Eowe v. Granite Bridge Co., 21 Pick. 344; King v. Iowa Midland R. B., 34 Iowa, 458. 9 King V. Iowa Midland E. E., 34 Iowa, 458. w Southside R. B. v. Daniel, 20 Gratt. 344. 11 Perry v. Worcester, 6 Gray, 644; Mellen v. Western E. B., 4 Gray,. 301. 421 §§ 221, 222 OF DAMAGES INCLUDED IN ASSESSMENT. § 221. Damages while land is unlawfully occupied. — The damages occasioned while hind is unlawfully occupied are not to bo considered by the tribunal assessing damages. The commissioners are to assess for future damages, and not for trepasses already committed, or for rights of action already accrued.^ When a company exceeds its chartered rights, — as, for instance, occupying its right of way, which was properly used for a team-road for wagons, by passenger trains propelled by locomotive engines, — it will be held to a greater degree of responsibility, and will be liable for fires occasioned by sparks, although no negligence is shown. Damages for such use are not included in the assessment.^ But if the road has been completed through the land at the ■date of the trial the jury may consider the state of facts then existing, and with the light afforded by the actual con- struction, determine what the damage has been.^ 1 Blodgett V. TJtica R. R., 04 Birb. 580; Wilson v. Des Moines Ry., 67 Iowa, 509; Leber n. Minneapolis Ry., 29 Minn. 256; Carl«i. Sheboygan R. R., 46Wis. C25; Springfield Ey. f. Henry, 4-t Ark. 360. But see Blesch v. Chicago Ey., 48 Wis. 168. See ante, § 90. 2 Jones V. Festiniog Ry., L. E. 3 Q. B. 733. 3 Springfield Ey. v. Ehea, 4t Ark. 258. § 222. Trespasses on lands adjoining. — As the corpora- tion condemning would be authorized only to use the land condemned, and the matoriids on it, nny use of land adjoin- ing — as, for a cart-way to remove materials — would be unauthorized, and hence such damages would not be in- cluded in the report of the commissioners, and would properly be recoverable by a separate action at law. i Only the damage to the land through which the improvement runs is to be recovered before the cummissionors. If, however, the corporation, at a point distant from plaintiff's land, diverts a stream so as to cause water to flow back on his land, an action will lie.* If the corporation has power to take stone from land adjoining, it would have power to hew it on land not taken. ^ Damages for di'aining water upon land adjoining the right of way are not included in the assessment of damages, and must be considered sepa- 422 OF DAMAGES INCLUDED IN ASSESSMENT. § 223 Tately. The corporation, in order to protect itself from actions of trespass , should see to it that the engineers in charge of the work ascertain the laud necessary for drainage purposes, and should condemn the same.* 1 Sabin v. "Vermont Central E. E., 25 Vt. 363. 2 Delaware Canal v. Lee, 22 N. J. L. 213 ; Eaton o. Boston & Maine E. E., 51 N. H. 504. 3 Vermont E. E. v. Baxter, 22 Vt. 365. * The State v. Armell, 8 Kan. 288. § 223. Value o£ erections on land condemned — lOwnership of building^s. — When land is condemned, the condemnation carries with the land all the erections upon it, including buildings, fences, gravel, stone, or wood paving, planks, flag-stones, bridges, culverts, guard or lamp posts, etc. It does not signify that these have been used for a' private use of a similar characte r, — as, where a private way is taken for a public way.i The owner cannot remove the property from the land, and it is irregular to deduct from the damages the value of the property removed ; bat, as the deduction worked substantial justice, the court, in one case, refused to disturb the judgment.'' The condemnation of a part of a building does not carry with it the materials of the rest of the building.' If the owner appropriates the ■ debris of a building taken, the value of the debris must be deducted from the damages to the building as such.* In the adjustment, the owner may be allowed the expense of removing any improvements ; and in such case the owner is entitled to the materials of buildings, or their proceeds.^ No suit can be instituted against the owner of the land for removing trees from the land, until the condemnation pro- ceedings are perfected.^ No separate account should be taken of trees cut from the land, but the value of the land, with the trees growing upon it, should be assessed. They are part of the realty and should not be separated from it in arriving at the value of the land.' A house on i;he land taken is a part of the realty and cannot he considered except in connection therewith. An inquiry 423 § 223 OF DAMAGES INCLUDED IN ASSESSMENT. as to the cost of removing it is altogether foreign to the- question of damages.' The owner of lund taken for widen- ing a street is entitled to recover the value of the land taken, by the city at the time of taking, together with all damages to the remaining part of the estate caiistd by such taking and interest on the amount so determined f i-om the time of taking. When the owner finds it more advantageous to take down the remainder of a building and erect a new and substantial building, the liability of the city ought not to be based upon the length of time required to rebuild. Loss of rent or of beneficial occupation during the erection of the building is essentially a part of the cost of the building" when fit for occupation. At trial the question, " How long was it before the building was ready for occupancy," was rightly excluded.' Fixtures can only be considered in esti- mating the value of the land and building. In their estimate of damages, the jury may take the fixtures into account as being a part of the building and they should make allow ances for them so far and only so far as they enhance the market value of the estate for any purpose for which it might be used.'" A bridge as such is not the subject of dis- tinct appraisal if it is to be regarded as an erection upon the land, as such it is removable. The land alone could be properly appraised. The land should be so appraised as to give the owner full compensation for all damages sustained by the sequestration of his property for public use. The damages should be in proportion to the injury. If an erection is to be i-emovedand its removal can only be made at a great diminution of its value the expenses of removal and the consequent diminution of value are to be considered in estimatinff damages." ' Ford V. Commissioners, 64 Me. 408. * Missi.ssippl Eiver Bridge ■». Ring, 58 Mo. 491. " Bennett v. Boyle, 40 Barb. 651. • Lafayette E. R. v. Winslow, 66 111. 219. " Peters v. Mayor, 15 N. Y. Sup. Ct. 405. « Rider «. Striker, 63 N. Y. 136. ' Texas R. R. Co. i;. Matthews, 60 Texas, 215. 424 OF DAMAGES INCLUDED IN ASSESSMENT. §§ 224, 225 « Finn v. Providence Gas & Water Co., 99 Pa. St. 631. » Boles «i. Boston, 136 Mass. .398. ^ » Allen V. City of Boston, 137 Mass. 319. 11 Ford V. County Commissioners, 64 Me. 408. § 224. Continuing' building's already commenced. — The mere fact that proceedings are pending to open or widen a street does not prevent the owner from using his property or obtaining benefit from it. The proceedings may be discontinued, and the owner thus lose the use of his land. The damages are to be based on the value of premises at the time commissioners may make their view. The public are not bound to accept the improved prop- erty, and are not further bound by their application for commissioners. The appointment of commissioners does not operate as a lis pendens. Besides, a lis pendens does not prevent the owner from improving his property. This matter was thoroughly considered in the case of Matter of Wall Stree^,^ where a bank had commenced a valuable building before proceedings had been commenced, and the bank was allowed for the building erected up to the time of the taking. 1 17 Barbo 617. See, also, to same effect CHy of Portlands. Lee Sam, 7 Ore. 897. § 225. Buildings on streets not laid out — Dedication, by plat. — Property cannot be taken from the owner, ex- cept on compensation. Until taken, it remains his own, to use as he pleases. When taken, it should be paid for according to the value at the time of taking, which would include the cost of erections on it. The case of Furman Street,^ decided by Judge Bronson, establishes a doctrine, that if the city had adopted a map, designating certain streets to be afterward laid out, then the owner building on any such street thereafter should not be entitled to com- pensation for any such building,^ notwithstanding the order for opening the street was not made until seventeen years after the adoption of the map. The doctrine might prop- erly apply to a case where the owner had subdivided his- 425 § 225 OF DAMAGES INCLUDED IX ASSESSME^fT . land and filed a plat in a public office, designiitinj^ streets and selling lots in conformity with such plat; and in such cases, the owner, or his successors, have been held entitled only to nominal damages for streets taken, or for any erec- tions thereon.' Any interference, however, with the right of the owner to use his property as he pleases is certainly unauthorized, unless compensation is made. A plan of proposed streets cannot prevent the owner from using his own property and improving it ; and not to allow for im- provements made before the taking, would operate as a tak- ing without compensation.* The city may change its plan, and the lot-owner cannot hold the city to a particular plan. There is no mutuality, and no contract binding either party.' Where nominal damages are allowed on the ground of ded- ication, and there is no proof of any dedication, substan- tive damages will be given.* When the owner of land divides it into streets and building-lots, and makes a plan of the land thus divided, and then sells one or more lots by reference to the plan, he thereby annexes to each lot sold, a right of way in the streets which cannot afterwards be interrupted or destroyed. It is an incipient dedication. Platting alone will have no such effect, but platting and selling will.' 1 17 Wend. 649. 2 This doctrine is approved in District of Pittsburgli, 2 Watts & S. 320. 3 Wyman v. Mayor of New York, 11 Wend. 487; Livingstone. Mayor of New York, 8 Wend. 85; Matter of Lewis St., 2 Wend. 472; Matter of Seventeenth St., 1 Wend. 262; Department of Public Parks, 13 N. Y. Sup. Ct. 486 (overruling Matter of Brooklyn Heights, 48 Barb. 288) ; In re Story St., 11 Phila. 456; Clark f. City of Elizabeth, 40 N. J. L. 172; Bayliss v. Supervisors, 5 Dill. 549. * The State v. Carragan, 36 N. J. L. 52; The State v. Seymour, 35 N. J. L. 47; Matter of Wall St., 17 Barb. 617; Moale v. Baltimore, 5 Md. 314. * Moale V. Baltimore, 5 Md. 314. « Hall V. Mayor of Baltimore, 56 Md. 187. ' Bartlett v. City of Bangor, 67 Me. 460. 426 ASSESSMENT OF DAMAGES BY COMMISSIONERS. § 226 CHAPTER XXI. OF THE ASSESSMENT OF DAMAGES BY COMMISSIONERS. § 226. Appointment of commissioners. 227. Disinterested persons — Freeliolders, 228. Oath of commissioners. 229. Place and time of meeting — Adjournments. / 230. Power of majority of commissioners to act. 231. Vacancy in board. 232. Supervision of court over proceedings of commissioners. .233. Control of the commissioners over proceedings — Application to commissioners. 234. Prejudice of commissioners. 235. Conversing or discussing with commissioners. 236. Treating and entertaining commissioners. 237. Evidence before commissioners — Admissibility. 238. Record of commissioners. 239. Preserving rulings and evidence. 239a. What the report should contain. 240. When report should be made. 241. Review of report — Recommitting report. 242. IIow to obtain a review. 243. Presumption in favor of the regularity of action of commissioners. 244. Irregularity in arriving at the amount of damages. 245. Wrong principle in estimating. 246. Error in amount of damages — Itemized findings. § 226. Appointment of cominissioners. — The appoint- ment of commissioners to assess damages is generally delegated to a court of record, which generally retains supervision of their proceedings. If the court refuses to appoint commissioners, it may be compelled to, by man- damus.^ When commissioners are to be appointed by a court, there must be an exercise of judgment in the selec- tion, and such commissioners cannot properly be selected by lot ; nor can the selection be confined to a number of indi- Tiduals previously selected by a city council.* I Western R. R. v. Dickson, 30 Wis. 389 ; New Orleans R. R. v. Drake 60 Miss. 621. » Menges v. New Albany, 56 N. Y. 374. 427 § 227 ASSESSMENT OF DAMAGES BY COMMISSIONEKS. § 227. Disinterested persons — Freeholders. — In order to obtain a fair assessment of damages, the statutes fre- quently require that the commissioners shall be disinter- ested, and in some cases disinterested freeholders. The qualification would exclude a relative of one of the peti- tioners,^ or an owner of land affected.^ A stockholder in a railroad over which the proposed highway is to be laid is not disinterested.* A stockholder in a railroad is not a dis- interested commissioner in condemning land for the use of the railroad.* The company cannot object, after an ap- praisement, that commissioners were stockholders in it ; because the bias, if any, would be in favor of the company.^ The interest intended is a pecuniary interest , and does not referto a disqualification from being within the fourth degree of consanguinity to one of the petitioners.* In Indiana, the relationship of sister-in-law, niece, and nephew, owning land alongthe proposed improvement, would disqualify the brother-in-hiw or uncle from acting as appraiser, and the disqualification is held to extend to the sixth degree of con- sanguinity, or within the degree of second cousins.' Where one of the commissioners was brother-in-law of the land- owner entited to damages, the proceedings were coram non judice, and utterly vo.id.* The pecuniary interest should be more than that of a simple tax-payer, whose taxes niisrht be affected. There must be a more direct and peculiar benefit or advantage to be obtained.' An omis- sion to make the objection that the commissioner was interested, if the fact was known, would operate as a waiver.'" The report of persons disqualified by statute as interested parties is a nullity.^' The fact that the commis- sioners were disinterested freeholders should appear in the record of appointment.'^ The fact is jurisdictional. i'* In the absence of evidence on the subject, it is presumed that the commissioners were duly qualified." It is no an- swer, to an exception that one commissioner was disqual- ified, that the commissioners need not be unanimous. They 428- ASSESSMENT OF DAMAGES BY COMMI8SIONEKS . § 228 should all be competent and disinterested, even though they do not all concur.'^ One who has a bond for a deed, not having paid all the purchase-money, may properly be considered a freeholder.^* 1 Clifford V. Cammissioners, 59 Me. 262; Bradley v. Frankfort, 99 Ind. 417. 2 The State v. Delesdernier, 11 Me. 473; The State v. Crane, 36 N. J. L. 394 ; Bradley v. Erankfort, 99 Ind. 417. Contra, Matter of Southern Boulevard, 3 Abb. Pr. (n. so 447. 8 Friend, appellant, 53 Me. 389. * Bock Island R. K. v. Lynch, 23 111. 645. » Strang v. Beloit E. R., 16 Wis. 635. 6 Chase u. Rutland, 47 Vt. 393. ' Highu. Ditching Assn., 44 Ind. 356. ' Taylor 1). Commissioners of Worcester, 105 Mass. 225. 3 Chase v. Rutland, 47 Vt. 393; The State v. Crane, 86 N. J. L. 394; Minneapolis v. Wilkin, 30 Minn. 140. The rule in New Jersey was form- ' erly different. M Town V. Stoddard, 30 N. H. 23 ; Ipswich v. Essex, 10 Pick. 519; Gro- ton V. Hulburt, 22 Conn. 178; Baldwin v. Calkins, 10 Wend. 167; Matter of Southern Boulevard, 3 Abb. Pr. (sr. s.) 447; Matter of Wells County Road, 7 Ohio St. 16; Baddeley, ex parte, 5 Dow. & L. 575; Trustees of Emanuel Hospital v. Metropolitan Rail. Co., 19 L. T. (n. s.) 692. u Daggy V. Green, 12 Ind. 303. '2 Judson V. Bridgeport, 25 Conn, 426 ; The State v. Jersey City, 25 N. J. L. 309. Contra, Kellogg v. Price, 42 Ind. 360, where it is considered to be a matter to be raised by answer. " The State v. Jersey City, 25 N. J. L. 309. " App's Road, 17 Serg. & B. 388. M Rock Island E. R. v. Lynch, 23 111. 645. " New Orleans R. R. v. Hemphill, 35 Miss. 17. § 228. Oath of commissioners. — Commissioners should be sworn before entering upon their duties.^ The public have an interest in the regularity of proceedings of matters such as the laying-out of roads, and the commissioners of view must be sworn, or the proceedings will be quashed.* The action of commissioners is not defeated from the fact of their being sworn by an officer not authorized to admin- ister oaths. This defect does not defeat the action of judi- cial or executive officers.* The certificate of the oath returned by the clerk is constructive notice to all parties of all the facts contained in the certificate, and parties desir- ■ 429 § 229 ASSESSMENT OF DAMAGES BY COMMISSIONERS. ing to object to their qualification as commissioners should do so before the hearing on the report, or the objection will be considered as waived,* especially if the party apjiears in the proceedings.^ If the justice fails to certify when th& oath was' taken, the return would be defective, and could not be supplied by supplemental certificate.' The record should show the fact of swearing the commissioners,' and, in New Jersey, should return the o:ith taken;* and the re- port will be set aside for verbal inaccuracies in the oath.' It would be irregular to swear only ten out of twelve viewers, or less than all.-"' The commissioners need not be sworn when the report is recommitted to them.^^ 1 Frith V. Justices, 30 Ga. 723. " Fisher v. Smith, 5 Leigh, 611. ^ Woolsey v. Hamilton County, 32 Iowa, 130. * Wentworth v. Farmington, 51 N. H. 128; Goodwin v. Milton, 25 N. H. 458. ^ Towns V. Stoddard, 30 N. H. 23. 6 The State v. Northrop, 18 N. J. L. 271; The State v. Burnet, 14 N. J. L. 385; Bennett v. Camden R. R., 14 N. J. L. 145. ' Pollard V, Ferguson, 1 Litt. 196; Virginia R. R. v. Lovejoy, 8 Nev.. 100. 8 The State v. Barnes, 13 N. J. L. 268; The State v. Davis, 13 N. J. L. 10; Hoagland v. Culvert, 20 N. J. L. 387; The State v. Allen, 8 N. J. L. 301; The State v. Hutchinson, 10 N. J. L. 242. Contra, New Orleans R. R. V. Hemphill, 35 Miss. 17. 9 The State v. Ayres, 15 N. J. L. 479; The State v. Green, 15 N. J. L. 88; The State v. Shreve, 4 N.J. L. 297; Cambria St., 75 Pa. 357. i» Broad Street Road, 7 Serg. & R. 444; Wells County Road, 7 Ohio St. 16. " Low V. Galena R. R., 18 111. 324. § 229. Place and time of meeting — Adjournments. — Commissioners must meet at the time and place designated in the order, or the proceedings will be set aside. ^ The parties interested have a right to be heard, to except, and appeal; and in order to do this, the appointment must be kept.^ Failure of the commissioners to adjourn from day to day is not a defect jurisdictional in its character, and is not waived by appeal.* Committees may adjourn then hearings from time to time, any unreasonable, unfair, or 430 ASSESSMENT OF DAMAGES BY COMMISSIONERS. § 230 partial condact on their part, in tiiis respect, being reason for setting aside any report which they may make. An ad- journment publicly announced is the easiest and most com- mon mode of securing the attendance of parties ; a written notice, signed by the committee, and duly served upon every person interested, involves much more labor, but is equally effective. The committee, having opened the trial at the- place specified in the commission from the court, have power to continue it at another place, giving due notice of the change, and being responsible to the court for their ac- tion in this respect.* 1 The State v. Scott, 9 N. J. L. 17. 2 Roberts v. Williams, 13 Ark. 355. ' Allisons. Commissioners, 54 111. 170. * Goodwin v. Wethersfield, 43 Conn. 437. § 230. Power of majority of commissioners to act. — A majority of commissioners may make a good award, if all have heard the evidence.^ All must be present at the examination and determination of the questions referred to them.^ It must appear that all wore notified to attend the meeting.^ If all are not notified, or pi'esent, they must adjourn.* One commissioner cannot authorize another to sign his name to the order of laying out.* The common- law rule is that all should act, but, for convenience, this rule is altered by statute, so as to allow the majority to act ; but all the facts must appear on the record.^ The failure of one commissioner to act is an irregularity which cannot be questioned in a collateral proceeding, after the report has been confirmed.' In Maine, where a committee is agreed upon instead of a jury, they must concur, or the proceed ings will be void.* 1 Plymouth County Commissioners, 16 Gray, 341 ; Van Steenbergh v. Bigelow, 3 Wend. 42; Rogers, ex parte, 7 Cow. 626; Baltimore Turnpike, 5 Binn. 481 ; Hall v. The People, 57 111. 307 ; Youngi;. Buckingham, 5 Ohio, 485. 2 Board of Commissioners v. Lansing, 45 N. T. 19; Woolsey v. Tomp- kins, 23 Wend. 324 ; Fourth Avenue, 11 Abb. Pr. 189. 3 Chapman v. Swan, 65 Barb. 210; Christy v. Newton, 60 Barb. 332; 431 §§ 231, 232 ASSESSMENT OF DAMAGES BY COMMISSIONERS. ■Stewart v. Wallis, 30 Barb. 344; Shough, ex parte, 16 N. J. L. 264; Gris- com V. Gilmore, 16 N. J. L. 105; The State v. Shreve, 4 N. J. L. 297. • The State v. Van Geison, 15 N. J. L. 339. ' Todd V. Todd, 10 N. Y. Sup. Ct. 298. « The Peoples. Williams, 36 N. Y. 441 ; The People v. Hynds, 30 N. Y. 470; Broadway Widening, 63 Barb. 572; The State v. Van Geison, 16 N. J. L. 339 ; Virginia R. E. v. Lovejoy, 8 Nev. 100. ' Quaylesc. Missouri E. E., 63 Mo. 465; Austin v. Helms, 65 N. C. 560; Hays V. Parrish, 52 Ind. 132. * McLellan v. Commissioners, 21 Me. 390. § 231. "Vacancy in board. — In case of a vacancy in the board of commissioners, the remaining members have no i power to act in laying out a highway, — not even to make their report, although all had agreed before the vacancy occurred.^ 1 Wentworth v. Parmington, 49 N. H. 128. § 232, Supervision of court over proceedings of com- missioners. — The supervision of the court is not confined to technical errors, but its supervision is like its supervision over the verdict of a jury. The report of commissioners may be set aside for reasons that would justify the setting aside of the verdict of a jury, and evidence is admissible to the same extent in one case as the other. ^ The couil can- not make an alteration in the report, by adding to or deduct- ing from it. But, for minor errors, the court will not refuse to confirm the report.^ The court may set aside proceed- ings if there has been such carelessness or irregulai'ity on the part of the commissioners as amounts to misconduct, by which a party has been harmed. The same reason which would lead to the setting aside of a verdict of a jury or a report of a referee, for the misconduct, palpable mistake, or accident of either, will suffice for the like interference with the report of commissioners.' The court cannot direct a continuance in condemnation proceedings pending before commissioners appointed by it.* 1 Hannibal Bridge ». Schaubacher, 49 Mo. 555. 2 St. Louis E. E. V. Almeroth, 62 Mo. 343; Mississippi River Bridge v. lEing, 68Mo. 491. 3 Matter of New York Central R. R., 64 N. Y. 60. ^ Michigan R. R, v. Probate Judge, 48 Mich. 638. 432 ASSESSMENT OP DAMAGES BY COMMISSIONERS. §§ 233,234 § 233. Control of the commissioners over proceed, Ings. — Commissioners assessing damages may allow an amendment of petition before the warrant is issued to the jury. The commissioners act judicially, and the action is a civil action.^ Commissioners may decide which party shall have the open and close. ^ In a hearing on the merits, they will not be justiiied in restricting the owners to the present- ation of objections in writing.* Objections should be taken before the com missioners, in order to give them an opportu- nity to obviate their mistakes ; and hence objections would not be entertained in the appellate court, unless also made before the commissioners.* Application must be made to commissioners at a regular term, or session ;^ and the appli- catida should n ot be filed with the clerk of the commission- ets, but be made to the commissioners themselves.^ The proceedings are special and have little resemblance to an ordinary trial. Commissioners are judges of law as well as facts.' Hearing the parties or not is in the discretion of the commissioners.* 1 Grand Junction E. R. v. Middlesex, 14 Gray,, 553. ' Albany R. R. v. Lansing, 16 Birb. 68. 3 The State v. Jersey City, 25 N. J. L. 309. ' Matter of Clear Lalie Water Co., 48 Cal. 586. ^ Eaton V. Farniingham, 6 Cush. 245. » Charles River R. R. v. County Commissioners, 7 Gray, 389. ' Port Huron Ry. u. Voorhois, 50 Mich. 606. 8 Lehigli Valley R. R. v. Dover R. E., 43 N. J. L. 528. § 234. Prejudice of commissioners. — Reports of com- missioners may be impeached for partiality, bias, prejudice, or inattentio n, or unfaithfulness in discharge of their trust or for error of such extraordinary character or grossness as should furnish a just inference of the existence of such influences,^ lu case of such prejudice being shown, the report would be set aside, and the owner would be excused irom failing to off"er evidence to a tribunal which he knew would be prejudiced.^ The allegations of such prejudice should be certain and particular. A general allegation that the commissioners were actuated by motives of gross par- 28 433 §§ 235,236 ASSESSMENT OF DAMAGES BY COMMISSIONERS . tiality is too indefinite and uncertain to require the consid- eration of the court.' The fact that commissioners received larger than statutory fees will not avoid the report, unless corruption is charged.* No action will lie against the com- missioners for malice, but errors committed may be reme- died by appeal.^ If cither party has been excluded from a hearing, the a^jpraisement will be void.^ ' BryaD t v. Glidden, 36 Me. 36; Thompson v. Conway, 53 N. H. 622;- The State i). Justice, 24 N. L. J. 413; Bennett v. Camden E. K., 14 N. J. L. 145; Pennsylvania E. E. v. Lutheran Congregation, 53 Pa. 445; Inge «. Police Jury, 14 La. An. 117. 2 Cole V. Peoria, 18 111. 301. ' Minot 17. Cumberland Commissioners, 28 Me. 121. ^ The State v. Miller, 23 N. J. L. 383; The State v. Bergen, 21 N. J.. L. 342. ^ Sage V. Laurain, 19 Mich. 137. 8 Peckham v. School District, 7 B. I. 545. § 235. Conversing or discussing with commissioners. — The commissioners should be free from prejudice or undue influence. They should not converse or discuss with one party in the absence of the opposing party. If a report is- made in favor of one party, after such a discussion has been had by him, the report will be set aside. ^ Especially is it exceptionable to leave viewers to the direction of the appli- cant for a road.^ The commissioners may converse with adjoining owners, that being proper evidence on which to base conclusions.^ Influence used, to change the opinion of a committee appointed to report on the necessity of a road, will not cause the report to be set aside, if the influ- ence was not used by the prevailing party, and was not exerted in his interest. The action, although irregular, should not prejudice the rights of the innocent party.* ' Peavey v. Wollborough, 37 N. H. 286. 2 Hubbard v. V?ickliffe, 2 A. K. Marsh. 503. ' Spring Garden St., 4 Rawlc, 192. * Goodwin v. Wethersfield, 43 Coan. 437. § 236. Treating and entertaining commissioners. — The furnishing of liquor, by petitioner ibr a highway, to commiss ioners, while engaged in their labors, is an abuse 434 ASSESSMENT OF DAMAGES BY COMMISSIONERS. § 237 for which the court will ordinarily set aside a report in favor of the petitioner, without inquiry as to how far the com- missioners were affected by it.^ Prima facie, it is improper that commissioners should be entertained at the house of one of the petitioners ; but where there was no public-house, and it was necessary for commissioners to stay all night, and there was no improper influence shown, and where counsel for both sides stayed at the same bouse and ac- quiesced, the report would not be set aside, although the entertainment was handsome and liberal, and without charge.* It is not sufficient, to set aside the report, that dinners were furnished to commissioners,^ when the place appointed for meeting was at the house of the applicant who furnished the entertainment,* or if no abuse is shown.® The entertainment of the commissioners while, to say the least, is not in good taste, is not sufficient reason for a re- versal of their award. ^ 1 Newport Highway, 48 N. H. 433. 2 Beardsley v. Washington, 39 Conn. 265. 3 The State v. Justice, 24 N. J. L. 413. * The State v. Bergen, .21 N. J. L. 342. ^ Coleman v. Moody, 4 Hen. & M. 1; Plymouth Eoad, 5 Kawle, 150. In a later case, in Pennsylvania, not in the Supreme Court (Matter of Mag- nolia St., 3 Phila. 468), the practice is condemned, as giving the rich and unscrupulous too much advantage. « Lehigh Valley K. K. v. Dover R. K., 43 N. J. L. 528. § 237. Evidence before commissioners — Admissibil- ity. — The commissioners must pass on the competency of evidence. They must regulate the order and course of busi- ness before them, and having heard all the evidence on a point that they may deem necessary, may refuse to hear other evidence on the same point. A refusal to give a fair hearing would cause a reconsideration of the report,! bat they may refuse to hear further cumulative evidence." If incompetent evidence has been received, the Supreme Court will not receive evidence to prove that the commissioners did not deem the evidence material, and disregarded the same, but may, on certiorari, quash the proceedings ;^ but the award 435 § 238 ASSESSMENT OF DAMAGES BY COMMISSIONERS. will not be set aside for technical error. The error should be of such a character as to show that the commissioners have misapplied the principles upon which they were to make their appraisement.* Commissioners appointed to view and appraise are not compelled to examine witnesses, although they may,^ and their refusal to do so is not sufficient ground for reversal.^ Commissioners are not governed exclusively by the evidence before them, but may be guided by a view made by them ;' and may be guided by their knowledge of the country, and the wants and wishes of the people, and the ability of the neighborhood to keep the road in refjair.* The commissioners are not compelled to hear arguments.' Arbitrators, under the English Lands Clauses Consolidation Act, may consult other persons, pro- vided they act on their own judgment, but they must not bind themselves to abide by the opinions of such per- sons." Commissioners or jury may conduct proceedings without counsel or parties and large discretion is left them in receiving and rejecting testimony .^^ ^ 1 Washington K. R. c. SwUzer, 26 Gratt. 661^ Central Pacinc E. E. v. Pearson, 35 Cal. 247; Jones v. Goff stown, 39 N. H. 254; Hawley v. Nortli Staffordshire Bail. Co., 2 De G. & Sm. 33. 2 Jones V. Goffstown, 39 N. H. 254. 3 Petition of Laudaff, 34 N. H. 163 (overruling Goodwin v. Milton, 25 N. H. 458) ; Smith v. Conway, 17 N. H. 686. * Troy R. R. v. Northern Turnpike Co., 16 Barb. 100; Virginia E. E. V. Henry, 8 Nev. 165." * Pennsylvania R. E. ti. Keiffer, 22 Pa. 356. « Lyman v. Burlington, 22 Vt. 131; Van Wiclile v. Camden E. E., 14 N. J. L. 162. ' Virginia E. E. v. Henry, 8 Nev. 165; Kramer v. Cleveland R. E., 6 Ohio St. 140. * Commissioners' Court v. Bowie, 34 Ala. 461. ' Kramer v. Cluveland R. R., 5 Ohio St. 140. i" Whitmore v. Smith, 29 L. J. (Exch.) 402; Caledonia Rail. Co. •». Lockhart, 3 Macq. H. L. Cas. 808. " Port Huron Ey. v. Voorheis, 50 Mich. 506. § 238. Record of comiuissioners. — The proceeding, must show that the commissioners acquired jurisdiction. A record which fails to show that jurisdiction attacheds 436 ASSKSSMENC OF DAMAGES BY COMMISSIONERS. § 239 cannot be helped out by any intendment or presumption^ Such record need not set forth in full all the proceedings had. For instance, the oath of viewers need not be set forth in the report, if the report showed that they took the oath prescribed by law.^ The proceedings should be re- duced to writing, and show the extent of laud taken.* Com- missioners cannot correct errors after assessment filed.* If the record does not show the irregularities which have been committed in their proceedings, the report may be set aside for that reason.® Proceedings in pais by commissioners may be proved by parol, when no complete record is made and the original papers are lost.° 1 Miller v. Brown, 56 N. Y. 383. 2 Hannibal R. R. v. Morton, 27 Mo. 317. » Hayes v. Shackford, 3 N. H. 10. ' The People v. Mott, 19 N. Y. Sup. Ct. 672. 5 Rochester R. R. v. Beckwith, 10 How. Pr. 168. ' Young V. Buckingham, 5 Ohio, 485. § 239. Preserving rulings and evidence. — Bills of exceptions to action of commissioners cannot be taken to their proceedings, unless provided by charter or statute.^ The irregularities in proceedings can only be proved by parol in case of absence of statute providing for the preser- vation of the rulings and instructions of the commissioners, or the party presiding over the jury. When such certifi- cates of exceptions can be made, that is the proper and only way of preserving them.^ It is good practice for commis- sioners to return the evidence produced before them,"^ but a failure to do so does not invalidate the report.* In order to comply with a statute requiring report of "proceedings in the premises," there should be, in the report, minutes of testimony, and rulings on all points as to admissibility and rejection of testimony, and also the rules or principles of the decision of commissioners.* Commissioners may properly itemize damages, so that the court may understand the finding. They need not itemize the benefits and dam- ages, but may give the excess of damages o^^er benefits.® 437 §§ 239a-241 assessment of damages by commissioners. Where bills of exceptions are not allowed to such proceed- ings, they may be corrected by certiorari.'' 1 Hannibal E. E. v. Morton, 27 Mo. 317. 2 Allen V. Androscoggin E. K , 60 Me. 494. -' Virginia E. E. v. Lovejoy, 8 Nev. 100. - Virginia R. E. v. Henry, 8 Nev. 165. s Central Paoiflc E. E. v. Pearson, 35 Cal. 247. « California Pacific R. E. v. Frisbie, 41 Cal. 356. ' Lyman «. Bnrlington, 22 Vt. 131. § 239a. What the report should contain. — When questions of utility and damages are included in the same remonstrance, it is the duty of the viewers to report on both questions.^ Where plat is introduced in evidence, the record is not complete without it.^ If the report fails to show that the question of benefits was considered, it should either be set aside or resubmitted. The report must show on its face a strict compliance with the provisions of the statute.^ ' Brown v. Stewart, 86 Ind. 377. 2 Missouri Pacific Ey. «. Hays, 15 Neb. 224; Missouri Pacific By. v. Coon, 15 Neb. 232. 3 Pueblo E. E. V. Eudd, 5 Col. 270. § 240. When report should be made. — Report need not be made to a regular term of court. An appeal from such a report does not require any judicial actio n, and may be made out of regular term-time.^ When the appeal is to be taken at a certain time, the report must be filed so that the appeal maybe perfected in time, and the commissioners have no right to postpone their action;^ and if the oppor- tunity of appealing is lost, the report will, on motion, be quashed.* 1 Northampton Bridge, 116 Mass. 442. ' Wood v. Commissioners, 62 111. 391. 3 Roberts v. Williams, 13 Ark. 355. § 241. Review of report — Recommitting report. — When commissioners are sent back to make their report according to law, the proceedings cannot be called a review of the report, but merely seeing that the report of commis- sioners was in conformity to law. One review is generally 438 ASSESSMENT OP DAMAGES BY COMMISSIONEES. § 242 granted to one pfirty, and the operation of sending back the report would not be such a review as the statute con- templates.! The court cannot amend the assessment of commissioners, but, on consideration, must approve, reject, or recommit the report.^ A recommitment is not a failure of the proceedings, within a statute providing that when proceedings have failed a new application could not be made within a limited time.^ If the report is various and conflicting, the court may in its discretion recommit.* The failure of commissioners to find damages for an owner,® or to give a hearing,^ are causes for setting aside a report. The same commissioners may make a new report, and, if satisfactory to the court, the same may be approved ;' and the report may be recommitted even after it has been con- firmed, when it is in fact illegal and unjust.' An applica- tion for a reassessment is not in the nature of an appeal, but of a motion for a rehearing, and several owners maj' join in such application.' In Virginia, it is considered that, on the setting aside of a report, the commissioners must be newly appointed and re-sworn. i" The practice of raising objections by exceptions to the commissioners' report should be discouraged. ^^ "When the commissioners do not comply with the requirements of the act, the court may set aside or resubmit and direct a further finding.'^ 1 Hannibal E. E. v. Eowland, 29 Mo. 337. 2 Matter of Claiborne St., 4 La. An. 7; Eossignac St., i Eob. (La.) 357. 3 Towamencin Road, 10 Pa. 195. ■* New Orleans E. E. v. Zeringue, 23 La. An. 521. 6 Patten's Petition, 16 N. H. 277. 8 Central Pacific E. E. v. Pearson, 35 Cal. 247. ' Lyman v. Burlington, 22 Vt. 131 ; Pott's Appeal, 15 Pa. 414. 8 Broadway Widening, 61 Barb. 483. 9 The People v. Wliite, 59 Barb. 666. M Pollard V. Ferguson, 1 Litt. 196. 11 Varner v. Martin, 21 W. Va. 534. 12 Pueblo E. E. V. Rudd, 5 Colo. 290. §242. How to obtain a review. — ^The proper process of brino"ing the proceedings of selectmen, city councils, com- missioner^, and other inferior tribunals, in laying out roads 439 § 243 ASSESSMENT OF DAMAGES BY COMMISSIONERS. and streets, before a superior court, is by writ of error, certiorari, or mandamus. The proceedings cannot be re- viewed on a bill in equity.^ Either party may show cause against the report, and are not confined to specific objec- tions,^ and may move to quash the report.^ The land- owner has a right to object to the report, and obtain a reconsidei'ation, independent of statute. He should be per- mitted to show that the property was not taken for public uses, or that the compensation was wholly inadequate.* Affidavits will not be received tending to contradict the report on matters of fact, nor will the commissioners be permitted to stultify themselves by alleging that they signed the report without reading it.^ The case cannot be re- opened before the commissioners after the parties have submitted the matter.* Commissioners who assessed dam- ages in the first instance cannot be asked if their assess- ment correctly expressed their judgment as to amount of damages sustained by the owner.' 1 Baldwin v. Bangor, 36 Me. 518. 2 Washington E. R. «. Switzer, 26 Gratt. 661. » Mitchell V. Thornton, 21 Gratt. 164. * Parmer v. Stewart, 2 N. H. 97. ' Rochester R. R. w. Beckwith, 10 How. Pr. 168. » The People v. Ferris, 41 Barb. 121. ' Winklemans v. Des Moines Ry., 62 Iowa, 11. § 243. Presumptions in favor of the regnlarity of action of commissioners. — In order to set aside a report of commissioners, something must be shown tending to prove that the principles on which they proceeded were in- correct ; but, until that is shown, the presumption is in favor of their adjudication, ^ and their proceedings will be upheld until quashed or reversed.^ In collateral proceed- ings, the action of commissioners is presumed to have been correct if jurisdiction attached.^ Instead of bringing trespass because the proceedings are irregular, a certiorari should be sought.* Reports are only to be set aside on good cause shown ; not because the parties are dissatisfied with the 440 ASSESSMENT OF DAMAGES BY COMMISSIONEES. § 244 amount of the award.' It is a good cause that the amount awarded was unreasonable. ° While evidence as to the amount of the award, and its justice, is admissible, it is not controlling. It is simply the opinion of witnesses, and should not have greater weight than the official acts of the commissioners, who have considered all the evidence.^ Keports or awards which are ambiguous will, if possible, be construed by the courts as within the legal exercise of the powers of the commissioners.* Equity does not interfere with awards, except upon extrinsic evidence not before the commissioners, and then only in a very clear case.' Where the report is silent as of the time of assessment, the pre- sumption is that the commissioners adopted the correct date.i" 1 Quincy E. R. v. Ridge, 5Y Mo. 699 ; Matter of Pearl St., 19 "Wend. 651 ; Commissioners of Central Parlt, 4 Lans. 467; Troy R. R. v. Lee, 13 Barb. 169; Ttie State v. Justice, 24 N. J. L. 413; Pennsylvania E. E. v. Porter, 29 Pa. 165; Crawford v. Valley R. R., 25 Gratt. 467; Virginia E. E. ■». Henry, 8 Nev. 165; Port Huron Ey. v. Voorhels, 50 Mich. 506. 2 Cyr V. Dufour, 62 Me. 20; Matter of South Seventh St., 48 Barb. 12.. ' Townsend v. Chicago E. E., 91 111. 545 ; Van Steenbergh v. Bigelow, S Wend. 42. * Van Steenbergh u. Bigelow, 3 Wend. 42. » Virginia R. R. v. Elliott, 5 Nev. 358. » Chapman v. Groves, 8 Blackf. 308. ' St. Louis E. R. V. Richardson, 45 Mo. 466 ; William and Anthony Sts., 19 Wend. 678; Matter of Pearl St., 19 Wend. 651 ; Commissioners of Cen-^ tral Park, 51 Barb. 277; Virginia R. E. v. Elliott, 6 Nev. 358; Marquette- E. E. V. Probate Judge, 53 Mich. 217. 8 EiStern E. E. «. Concord E. E., 47 N. H. 108, 9 Baldwin v. Buffalo, 35 N. Y. 375. 1" Mianeapolis v. Wilkin, 30 Minn. 140. § 244. Irregularity iu arriving at the amount of dam- ages. — The manner of arriving at the result of an assess- ment is subject to examination, but not the conclusion of the commissioners on the facts.^ The three commissioners cannot put down the amount respectively determined on by them, and divide the sum by three, and return the quotient as the result. Such a finding would be set aside.'' If the damages are flagrantly excessive, or if there are manifest 441 § 245 ASSESSMENT OF DAMAGES BY COMMISSIONERS. indications, on the part of tiie commissioners, of an entire luck of appreciation of tlieir duties, the court will interfere.^ A jury cannot add up the amounts sworn to by witnesses, and divide by thd number of witnesses, to find the amount of damages.* Any agreement in advance on the part of the commissioners, which shall leave the amount as the re- sult of chance, cannot be upheld ; but where there is no previous agreement to be bound by the result, there can be no objection to a subsequent adoption of an average amount if, in view of all the evidence, the commissioners become convinced that the amount thus determined is just and right. An ao^reement to averasje in advance is not the result of compromise or conviction, and affords designing persons on the commission the opportunity to mark an extravagantly high or low amount, so that the average will not yield a just average of the unbiased judgment of the persons com- posing the commission. If the commissioners each an- nounce how much the award ought to be, and then agree to add these sums together and divide and make the quotient their award, there can be nothing objectionable in this. Whether such facts shall be presented by affidavits and -counter-affidavits, or by oral testimony of witnesses, is a matter within the discretion of the court. ^ 1 Lee V. Tebo E. R., 53 Mo. 178 ; Rochester R. R. u. Beckwith, 10 How. Pr. 168. 2 Kansas City R. R. o. Campbell, 62 Mo. 585. 2 Kansas City R. R. v. Campbell, 62 Mo. 585; Bowen v. Atlantic R. R., 17 S. C. 574. * Peoria R. R. v. Birkett, 62 111. 332. 5 Marquette R. R. v. Probate Judge, 53 Mieh. 217. § 245. Wrong principle in estimating. — When it is certain that an award of damages is arrived at on a wrong principle, the presumption is that the jury or commissioners have been influenced by an improper motive, and the court will not attempt to correct the estimate, however small, but will, in its discretion, grant a new assessment.^ The errors to be corrected must be in the principle of assessing 442 ASSESSMENT OF DAMAGES BY COMMISSIONERS. § 246 "Values, or some obvious error in calculatiou.^ The grounds may be shown by the affidavits of the commissioners. The •commissioners are not like a common-law jury, and their finding may be impeached by their own affidavits showing that they proceeded on wrong principles.' The rule on which commissioners acted is a fact, and may be shown as any other fact ; and if they awarded for a fraction of a tract a larger sum than the value of the whole tract, the principle on which they acted must be erroneous.* 1 Cyr «. Dufour, 63 Me. 20; Marquette E. E. v. Probate Judge, 53 Mich. 217. 2 Matter of Beale St., 39 Cal. 195; William and Anthony Sts., 19 Wend. 678; Coster v. New Jersey E. E., 34 N. J. L. 730; New Jersey E. K. v. Suydam, 17 N. J. L. 25. ' Canal Bank v. Albany, 9 Wend. 244. See § 242, note 5, as to errors -of fact. Marquette E. E. v. Probate Judge, 53 Mich. 217. ^ New Jersey R. E. v. Suydam, 17 N. J. L. 25. § 246. Error in amount of damages — Itemized find- Ings. — An appellate court will not interfere with the report of commissioners, to correct the amount of damages, ex- cept in cases of gross error, showing prejudice or corrup- tion.^ The commissioners cannot find a greater amount of damages than is claimed by thq owner. ^ The commission- ers hear the evidence, and frequently make their principal evidence out of a view of the premises ; and this evidence cannot be carried up so as to correct the report as being ao-ainst the weisht of evidence.' Hence, for an error in the judgment of commissioners in arriving at the, amount of damao'es there can be lio correction, especially where the evidence is conflicting.* Commissioners are not bound by the opinions of experts, or by the apparent weight of evi- dence, but may give their own conclusions." Whei"e items are distinctly stated, and improper items are included, the court may disregard the improper items and give judgment for the proper items.® It is proper for the court to direct a finding by items.' When the statute requires various items to be set out, a lumping verdict will be set aside,* and the matter recommitted.' On appeal from the finding of the 443 § 246 ASSESSMENT OF DAMAGES BY COMMISSIONERS. commissioners as to the amount of damages to be awarded^ the court may reduce as well as increase the amount given by the commissioners.^" 1 The Commonwealth v. McAllister, 2 Watts, 190; Chesapeake E. B. V. Pack, 6 W. Va. 397; Eeitenbaugh v. Chester E. E., 21 Pa. 100; Eliza- bethtown E. E. ti.Thompson, 79 Ky. 52. " Houston E. E. v. Milburn, 34 Texas, 224. 2 Winebiddle v. Pennsylvania E. E., 2 Grant, 32. * Thompson o. Conway, 68 N. H. 622 ; Matter of Pearl St., 19 Wend. 661 ; Matter of Bushwick Avenue, 48 Barb. 9; Eondout R. E. v. Field, 38 How. Pr. 187; Pennsylvania E. E. v. Lutheran Congregation, 53 Pa. 445; Pennsylvania E. E. v. Heister, 8 Pa. 446; Willing v. Baltimore E. E., & Whart. 460; Western Pacific R. E. v. Eeed, 35 Cal. 621. ' Antoinette St., 8 Phila. 461 ; Albany R. R. v. Dayton, 10 Abb. Pr. N.) 8.) 182. ^ Dalrymple v. Whitinghaus, 26 Vt. 346. ' Harvey v. Lackawanna R. R., 47 Pa. 428. * Ohio R. R. «. Wallace, 14 Pa. 245. " Greenville R. R. v. Nunnamaker, 4 Rich. L. 107. w Hall V. City of Meriden, 48 Conn. 416. 444 ASSESSMENT OF DAMAGES BY A JURY. §§ 247, 248 CHAPTEE XXII. OF THE ASSESSMENT OF DAMAGES BY A JUBY. § 247. How the jury should be summoned. 2i8. Qualifications of jurors — Freeholders. 2+9. Disqualification from interest. 250. Swearing jury. 251. Objections to jurors. 252. Submission of similar issues to same jury. 253. Sources of information. 264. Jury of viewers. 255. Proceedings before jury — Practice — Evidence. 256. Depision of majority. 257. Itemizing verdict — Averaging. 258. Conditions in verdict. , 269. Setting aside verdict of jury. 260. Reassessment by jury. § 247. How the jury should be summoned. — When the statute provides that the jury shall be drawn, sum- moned, and notified as in ordinary cases, they may be sum- moned by constables, or sheriffs, or partly by either.^ Fourteen men may be summoned, from whom a jury of twelve may be selected.^ The drawing should be in pres- ence of the court, and under judicial supervision.^ The warrant for the jury should show the land over which the railroad passes, the title, and location.* An objection that there is an error on the part of the sheriff in the method taken by him to secure a jury, cannot be consid- ered in the appellate coui't, when the cei'tificate of the sheriff does not show that such facts existed." ' 1 Meacham v. Fitchburg R. R., 4 Cash. 291. " Fitchburg R. R. v. Boston R. R., 3 Cash. 68. ' Convers v. Grand Rapids R, R., 18 Mich. 459. < Walker v. Boston R. R., 3 Gush. 1. ' Childs V. New Haven, etc., Co., 133 Mass. 253. § 248. Qualifications of jurors — Freeholders. — The legislature may prescribe that the jurors assembled to assess 445 § 249 ASSESSMENT OF DAMAGES BY A JURY. damages shall be freeholders ; and this is done because thej^ are supposed to have personal knowledge of the value of real estate in the vicinity, which entitles them to rely some- what on their own opinions.^ Freeholders need not be freeholders of the county in which they are summoned, if freeholders withiii the state." A man who has a bond for a deed, not having paid for the land, is still a freeholder.' A juror from the " vicinage " means from the county where the land is situated, — not from the town or neighborhood.* A jury from the three nearest towns means, from the three towns nearest to the town in which the land lies, — not nearest to the land taken." The town in which the land lies is not included. When there are applications from owners in different adjoining towns, the only practicable way is to take a jury from three of the towns nearest to the town in which the piece of laud taken is situated* Where the act calls for a jury of " freeholders or house- holders," failure of record to show that the jury was selected by the sheriff, who is only a ministerial officer, is fatal .^ The fact that some of the jurors summoned turn out to be incompetent cannot aflfect the whole array.* Where the act requires a jury of freeholders or householders it is not necessary that the record show this, where they are appointed by court presumption of correctness attaches to their acts.* ' Bemy v. Maniclpality, 12 La. An. 657; Tipton v. Miller, 3 Yerg. 423. » New Orleans B. B. v. Hemphill, 35 Miss. 17. 3 Ibid. * Convers v. Grand Bapids B. B., 18 Mich. 469. ' Bead v. HauQver Branch B. B., 105 Mass. 303. « Wymau v. Lexiogtoa B. B., 13 Mete. 316. ' Levee Commissioners v Allen, 60 Miss. 93. 8 First Street, Matter of, 68 Mich. 641. » Cage V. Trager, 60 Miss. 663. §249. Disqualification from interest. — A juror who has a similar claim for damages to the one on trial is not a competent juror. ^ Stockholders in a railroad are incompe- tent on the trial of the case against the railroad, and parties may object as soon as they learn the fact.' The fact that 446 ASSESSMENT OF DAMAGES BY A JUEY. §§ 250, 251 a juror was a stockholder in another railroad against whicb a similar case was pending, wliich was to be tried imme- diately aifterwards, is no objection.' A juror is not incompe- tent because he ia a citizen of the town in which the road is- to be built, and hence liable to pay taxes.* A freeholder is not incompetent because he had signed a remonstrance against the road, but ia incompetent if he had expressed an opinion as to the amount of damages." A corporator or tax-payer of a municipal corporation is not an interested person so as to be disqualified to serve as juror.* Gift of money as part of a bonus for the construction of a road does not give such an interest as to disqualify one from acting as juror in condemnation cases.' 1 Flagg V. "Worcester, 8 Cush. 69. 2 Peninsular R. W. v. Howarcl, 20 Mich. 18. ' Tbe Commonwealth v. Boston E. E, 3 Cash. 26. 4 Johnston v. Eankin, 70 N. C. 550. * EeadingtOn v. Dilley, 24 N. J. L. 209. * Minneapolis v. Wilkin, 30 Minn. 140. ' Detroit E. E. v. Crane, 60 Mich. 182. § 250. Swearing jury. — It is presumed that the jury should be sworn, although there be no particular provision requiring it.^ The return of the jury must show that they were sworn.^ The oath must conform to the statutes, and should show the subjects the jury are to consider.' Ob- jections as to the manner of swearing the jury should be made before verdict.* The record must show that proper oath was taken.' 1 Lumsden v. Milwaukee, 8 Wis. 486. ' Owen «. Jordan, 27 Ala. 608. ' Molett V. Keenan, 22 Ala. 484. * Eockford E. S. i;. McKinley, 64 111. 338. ' Bowler v. Perrin, 47 Mich. 154. § 251. Objections to jurors. — Challenges must be made before the jury are sworn, and before they enter on their duties.^ Peremptory challenges are not allowed in Michigan, except in criminal cases, and would certainly not be allowed in case of a jury assessing damages.' Ob- 447 § 252 ASSESSMENT OF DAMAGES BY A JURY. jections to the competency of jurors should be taken at the trial, or the objection will be presumed to be waived.' Parties should not take the chances of a favorable verdict, and, when the same is unfavorable, except.* The objection cannot be raised for the first time in the appellate ^court." An objection that the jurors were not free- holders may be waived, especially where there is an ab- sence of proof that the jurors were not freeholders, and no objection was made at the time.' If the statute provides for a jury of six, and the parties go to trial with five, the defect, being one not of jurisdiction, is waivexJ.' The error of the disqualification of a juror is not an error of jurisdiction.' It is not a valid objection to a juror that he ha d been an appraiser of damages on another railroad in the same county, or that he was a stockholder in a railroad that had long before that time acquired the lands necessary for its use.' It is no objection to jurors that they have served in ineffectual proceedings.'" " According to law " is a sufficient direction to a sheriff in summoning a jury.^^ 1 Molett V. Keenan, 22 Ala. 484. ' Convers v. Grand Kapids R. R., 18 Mich. 469. ' Fowler «. Middlesex, 6 Allen, 92; Tripp u. Commissioners, 2 Allen, 566 ; Eeadington v. Dilley, 24 N. J. L. 209 ; Mansfield R. R. v. Clark, "23 Mich. 519; Bradley ». Frankfort, 99 Ind. 417. * Walker v. Boston R. R., 3 Cush. 1; Raymond v. County Commis- sioners, 63 Me. 110. 5 Commissioners' Court v. Bowie, 84 Ala. 461. » The People v. Taylor, 34 Barb. 481. ' Avery v. Groton, 36 Conn. 304. 8 The State v. Wilson, 17 Wis. 687. » The People v. First Judge, 2 Hill, 398. "> Palmer v. Highway Commissioners, 49 Mich. 46. " Mitchell i;. Bridgewater, 10 Cush. 411. § 252. Submission of similar Issues to the same jury. — It is proper to submit the assessment of damages for taking land to widen a highway, and a petition to revise damages to the same land by altering the grade, to the same jury.^ There is no objection to the appointment of the 448 ASSESSMENT OF DAMAGES BY A JURY. § 253 same freeholders to three different cases of reassessment;' and the same viewers may reassess damages where the recommitment is on account of a formal error.' In Vir- ginia, it is considered a fatal error that two jurors had been on a former inquisition in the same case.* If viewers do not act, others may be appointed to fill their places, from term to term, until the road is either located or the peti- tion rejected. ° The same jury may assess the damages to Jands of different persons, all being embraced in one ro- ceeding.* 1 Dickenson v. Fitchburg, 13 Gray, 546. 2 Readington i-. Dilley, 24 N. J. L. 209. 3 Road in Chartiers, 34 Pa. 413. 4 Hunter v. Matthews, 12 Leigh, 228. * Henline v. The People, 81 III. 269 . 9 Levee Commissioners v. Allen, 60 Miss. 93 ; GrayviUe R. R. v. Christy, 92 III. 337. § 253. Sources of information. — In assessing damages, the jury are left free to determine not only what informa- tion they need, but to obtain it from any source in any way which would be open to a private citizen seeking similar in- formation in his own business.^ The jury may hear oral statements and arguments, and examine leases and books, and may even receive affidavits.^ If they are misled, their report may be set aside f and this maybe learned by examina- tion of the jury as to the grounds and motives of their finding.* In a late case in Wisconsin^ it is held, however, that to allow the jury to make up their verdict on their indi- vidual knowledge or upon their private opinions would be most dangerous and unjust. If the testimony as to value and damages is conflicting, the jury may resort to their own general knowledge of the elements which affect the assess- ment in order to determine the relative weight of conflicting testimony ; but their assessment must be supported by the testimony or it cannot stand. 1 Princeton v. Gieske, 93 Ind. 102; Green v. Chicago, 97 111. 370; City of Kansas i». Railway Co., 84 Mo. 412; Gilmore w. Pittsburg R. R., 104 Pa. St. 275. 29 449 § 254 ASSESSMENT OF DAMAGES BY A JURY. 2 Columbia Bridge Co. v. Geisse, 36 N. J. L. 537; s. c. 35 N. J. L. 558; Eemy u. Municipality, 12 La. An. 667; Neilson v. Chicago Ey., 68 Wis. 616 ; Re publican Valley R. R. v. Arnold, 13 Neb. 485 ; McReynolds v. Bur- lington Ry., 106 111. 152; Green v. Chicago, 97 111. 370. 3 Coster V. New Jersey K. R., 24 N. J. L. 730. * Tide-Water Co. v. Archer, 9 Gill & J. 479. ' Washburn v. Milwaukee E. E., 59 Wis. 364. § 254. Jury of viewers. — Although a view of the prem- ises is generally given, and frequently required to be made, by statute, yet the absence of such a provision does not prevent a view by the jury, in the discretion of the court. ^ On the other hand, the court may refuse such view without error. ^ A view is suggested, in some cases, as eminently proper.' Viewers should be attended, in their view, by an officer.* A jury of view do not decide, necessarily, on evi- pence furnished by the parties, but may find on their own judgment .^ The report of viewers should show the conven- iences to the public and the inconveniences to the owner, so that it can be determined whether there is a public neces- sity for the improvement.* The jury may view the prem- ises, to thoroughly understand the testimony concerning it, although it is denied that they can consider as evidence the impressions derived from a view of the premises.' In as- sessing damages and benefits, the jury have the right to be guided by their own observation with respect thereto, as well as the evidence presented to them. For that purpose, they should go to and upon the property to be taken for street improvement and that to be assessed with benefits and examine all such property in person before arriving at a verdict.^ In order to enable the jury to form a correct judgment of the amount of damages sustained by reason of the location of a railroad, they should " viewthe premises " from such standpoint aud in sucii a manner as will give them an accurate knowledge of the considerations that go to make up the damages, such as the value of the land taken and the use to be made of it, the effect of the severance upon the character, situation, present and prospective use of the re- mainder of the lot, ;md any other facts that diminish the 450 o ASSESSMENT OF DAMAGES BY A JURY. § 254 value of the premises. The view of the premises is for the enlightenment of the jury alone, and the verdict found and rendered upon their oath must be theirs exclusively. The view is a portion of the evidence to be submitted to and con- sidered bythe jury ill determining their verdict, and whether taken upon the premises within or without the location, or both, it is competent evidence, and the presiding officer has no right to exclude it by denying to the jury the opportu- nity to receive it.' Where the statute gives the right of having the jury view the premises, but fixes no time, this right may be exercised at any time before the court in- structs the jury, and it is error to deny the exercise of this right. ^^ If counsel accompany a jury to view the premises, and consent to conclude the trial, they cannot afterward raise the point that the jury did not have a full view of the premises. ^^ In Tennessee, a jury of view is not authorized to call witnesses, and should not hear the evidence of wit- nesses.'^ ' Where the allowing of view of the property is left to the discretion of the court, appellate courts will not interfere with this discretion.'^ After evidence and before argument, it is misconduct for jurymen, without the consent or direction of the judge, to go to the property in contro- versy for the purpose of examining it.'* 1 King V. Iowa Midland E. R., 34 Iowa, 468. 2 Snow V. Boston E. E., 65 Me. 230; Evansville E. E. u. Cochran, 10 Ind. 560. Such evidence cannot conveniently be carried up. Omaha E.R. V. Walker, 17 Neb. 432. ^ Remy v. Municipality, 12 La. An. 659. * Patchin v. Brooklyn, 2 Wend. 377. s Harper v. Lexington R. R., 2 Dana, 227. ' Peckv. Whitney, 6 B. Mon. 117. ' Heady v. Vevay Turnpike, 52 Ind. 117; Evansville E. B. v. Cochran, 10 Ind. 560; Thompson v. Keokuk, 61 Iowa, 187; Lehigh Valley Coal Co. V. Chicago, 26 Fed. Rep. 415; Munkwitz v. Chicago Ry., 64 Wis. 403; Washburn v. Milwaukee E. R., 59 Wis. 364; Green v. Chicago, 97 111. 370. 8 City of Kansas v. Railway Co., 84 Mo. 412. » Wakefield v. Boston R. R., 63 Me. 385. w Kankakee R. R. v. Straut, 102 111. 666. " Oregon R. R. v. Oregon Steam Nav. Co., 3 Ore. 178. 451 §§ 255, 256 ASSESSMENT OF DAMAGES BY A JURY. 12 Stevens i;. Duck River Co., 1 Snead, 237, 13 Clayton v. Chicago Ry., 67 Iowa, 238. " Ortman v- Union Pacific Ry., 32 Kau. 419. § 255. Proceedings before the jury — Practice — Evi- dence. — A sheriff's jury may be left in charge of a deputy-sheriff,^ and the deputy may impanel the jury and administer the oath.' A jury to assess damages is not to pass upon the title to property.^ A petition for a sheriff 's jury cannot be amended at the hearing before the sheriff's jury.* The owner has a right to be heard and to offer evidence before the jury, both on the question of necessity and of damages." The jury is not to pass on the admissi- bility of evidence. The court or officer in charge is alone authorized to do that." The jury are to be charged by the sheriff or deputy in charge.' A civil engineer may exhibit a plan to the jury, showing the lots and the number of feet taken from each, and the memorandum may properly be given to the jury for inspection.' A new juror cannot be impaneled in place of an absent juror, when the examina- tion has been partially concluded.' 1 Tripp V. Commissioners, 2 Allen, 556. 2 Stevens v. Duck River Co., 1 Sneed, 287. ^ Davidson v. Boston R. R., 3 Gush. 91. * Perry v. Sherborn, 11 Gush. 388. » Paul V. Detroit, 32 Mich. 108. « Merrill v. Berkshire, 11 Pick. 269. ' Owen V. Jordan, 27 Ala. 608. « Neft V. Cincinnati, 32 Ohio, 215. ' Gilkerson v. Scott, 76 111. 509. § 256. Decision of majority. — In New York, jurors selected for the purpose of assessing damages are not like jurors in ordinary criminal or civil trials. Their verdicts need not be unanimoiis, but a majority may decide, and make a valid report.-' The opposite doctrine is held in Michigan,^ and in Georgia a new jury must be called in case of a disagreement.^ ' Cruger v. Hudson River R. R., 12 N. Y. 190; Broadway Widening, 63 Barb. 572; Astor «. Mayor of New York, 5 Jones&Sp. 539. "' Paul V. Detroit, 32 Mich, 108; Chicago R. R. v. Sanford, 23 Mich. 418. 8 Hicks V. Foster, 32 Ga. 414. 452 ASSESSMENT OF DAMAGES BY A JURY. §§ 257-259 § 257 . Itemizing verdict — Averaging. — Damages may be properly itemized, and then the court can allow the proper items without setting aside the verdict.^ The jury cannot add up the amounts testified to, and divide by the number of witnesses and call the quotient their verdict.* They may average the testimony by a consideration of all the matters in testimonj', and a consideration of the charac- ter of the witnesses, and their means of knowledge, but not by a simple division.^ When there are several causes of damage, it is not necessary to specify what damage is allowed for each separate cause.* 1 Fitchburg E. R. i;. Boston R. R., 3 Cush. 68. " Peoria R. R. v. Birkett, 62 111. 332. ' Peoria R. R. v. Birkett, 62 111. 832. •■ Michigan Ey. ■». Barnes, 44 Mich. 222. § 258. Conditions in verdicts. — The verdict of a jury may properly contain a condition extending to the owner time in which to remove houses, fences, trees, etc., from land.^ But the verdict cannot be in favor of the utility of the road in case the applicants should construct the road, otherwise not. There would be no road established under such a finding.^ The judgment should be for a certain and definite sum; and the verdict cannot find a certain sum to be paid in case the railroad, made a certain culvert, and a larger sum in case they did not.- An execution could not be issued on such a judgment, and the finding should be of such certainty that an execution may be issued on it.* Conditions cannot be imposed upon the parties against their wills.* 1 D wight V. Springfield, 6 Gray, 442; Omaha R. R. v. Menk, 4 Neb. 21. " Wilson V. Whitsell, 24 Ind. 306. 8 Winchester R. R. v. Washington, 1 Rob. (Va.) 67. * Ante, § 112. § 259. Setting aside verdict of jury. — The verdict of a jury may be set aside on error apparent on the face of the record, or misconduct of the jury, or because the jury has been tampered with,^ or because the verdict is against the weight of evidence.* Excessive verdicts are only set 453 § 259 ASSESSMENT OF DAMAGES BY A JUKY. aside when they are not supported by proof, or when they are so excessive as to indicate passion, prejudice, or an in- correct appreciation of the law applicable to the case.' Al- though there is no provision for preserving the evidence, the court may use any authentic manner of bringing such evidence before it.* The inquiry must be full and intelli- gent, and if conducted in a defective or negligent manner, so as to show that the damages have not been properly in- quired into, the verdict will not be sustained. If it can be shown that the proper items of damages were ignored by the Jury, the verdict ought to be set aside.^ The affidavit of a juror is not admissible, on a motion to set aside the verdict, to show that after the trial he has a different con- ception of the law, or of the facts, from that under which the verdict was given." The verdict will not be set aside because excessive when the jury viewed the premises, un- less it is clear that there was error on the part of the jury in making the award.' A motion to set aside a verdict because the jurors, at the view, held communications with the petitioner, his counsel and witnesses, will not be heard by the court when there is no specification in the motion as to what jurors are thus charged, nor as to what was said or done in such communications ; especially where from a re- port of the evidence in the trial, which is made a part of the case, the verdict seems to be well sustained by the evi- dence reported.* A verdict for excessive damages may be set aside. But the right should be exercised cautiously by the trial court. The appellate court should not do so, un- less it can plainly see that injustice has been done.* AVhen it is not fairly evident that any substantial injustice has been done, the proceedings of the jury will be affirmed, the presumption being that the jury took into account all facts bearing on the question of damage, and that there was no bias on the part of the jury that stood in the way of a fair verdict.^" ^ Walker v. Boston R. R., 3 Cush. 1. " Fitchburg R. R. v. Eastern R. R., 6 Allen, 98; Philadelphia R. R. ». 454 ASSESSMENT OF DAMAGES BY A JURY. § 260 Cake, 95 Pa. St. 139. But see Brown v. Ipswich Manufacturing Co., 5 ■Gray, 460. s Texas & St. Louis Ry. v. Eddy, 42 Ark. 527 ; Smith v. Chicago R. R., 105 111. 511 ; Chicago R. R. v. Jacobs, 110 HI. 414. * Fltchburg R. R. v. Eastern R. R., 6 Allen, 98. ' Walters v. Houck, 7 Iowa, 72. ' Oregon R. R. o. Oregon Steam Nav. Co., 3 Ore. 178. ' Omaha R. R. v. "Walker, 17 Neb. 432. * Lennox v. Knox R. R., 62 Me. 322. » Alexandria R. R. Co. v. Eaunce, 31 Gratt. 761. '"' Detroit R. R. v. Crane, 60 Mich. 182; Michigan Ry. v. Barnes, 44 Mich. 222; Matter of Eirst St., 68 Mich. 641; Springfield Ry. v. Rhea, -44 Ark. 258 ; Green v. Chicago, 97 111. 370. § 260. Ke-assessment Iby jury. — There may be a re-as- sessment by a jury, although the first assessment was by commissioners. A refusal to grant a re-assessment in a proper case will render the supervisors liable in damages.* J Clark V. Miller, 64 N. Y. 528 ; s. c, 42 Barb. 265. 455 § 261 OF PAETIES TO PEOCEEDIXGS. CHAPTEK XXIII. OF PARTIES TO PROCEEDINGS. §261. Joinder of defendants. 262. Tenants In common. 263. Joint Interests. 264. Town a proper party. 265. Parties pursuing statutory authority not tort-feasors. 266. Equity may bring in all parties. 267. Separate assessments, verdicts, and appeals. 268. Who may appeal. 269. Who are "iijterested or aggrieved " — Interest of tax -payers. § 261. Joinder of defendants. — There is no reason why all the persons who sustain damages should not be joined in one proeceding. Such a mode of procedure com- mends itself by its cheapness and convenience, and cannot injure the interest of any one concerned, provided the damage is assessed to each owner separately. An assess- ment thus made must be regarded as a separate inquiry for each owner of the land.^ Otherwise, each owner might ejiercise his right of challenging, and thus render it impos- sible to obtain a jury.^ / A lessor and lessee would be re- garded together as the owner of the land, and would not be entitled to a separate inquiry as to their separate interests in the parcel.* If the statute provided that any number of residents of the county or circuit might be joined as defend- ants, that would exclude all non-residents from that peti- tion, and such proceedings against non-residents would be set aside, on timely application. The statutory remedy must be strictly followed.* In New York^ it is held that it is not necessary that the damages of all the parties interested should be assessed in one proceeding. If any owner is omitted he may be proceeded against afterward. ' McKeev. St. Louis, 17Mo. 184; Evergreen Cemetery Assn. v. Beecher> 63 Conn. 551; Washburn t>. Milwauliee R. R., 69 Wis. 379; Watson v. Mil- waukee Ry., 57 Wis. 332. 456 OF PARTIES TO PROCEEDINGS. , §§ 262, 263 ' Giesy v. Cincinnati, 4 Ohio St. 308. 3 KoM V. The United States, 91 U. S. 367. *. Quincy R. E. v. Kellogg, 64 Mo. 334. ^ Application of Village of Middletown, 82 N. Y. 196 ; Boston Ey., Mat- ter of, 79 N. Y. 69. § 262. Tenants in common. — The title of tenants in common being joint, they should all join in prf)ceedings to have damages assessed. Suit cannot be brought by one alone. If such suit was allowed, there would be several trials, and contradictory verdicts as to the value of the same, land.^ There siiould be one trial for each tract of land coiidemned, but not separate trials for the separate interests of joint owners. Joint owners should be joined in pro- ceedings brought against them to condemn the lands. ^ A tendor to one of tenants in common, acting for others, is a sufficient tender as to all ;^ but a payment to one is not a payment to all, unless all consent.* When property of one tenant in common is condemned by a railroad, the railroad does not thereby become a tenant in common as to the others.* A subsequent petition cannot affect the right of the company, when tjie damages had already been paid to the sheriff. All conveyances made afterward were made subject to the right of way so acquired. Nothing remained to be determined on appeal, except the question as to whether the damages assessed should be increased or diminished.' 1' Tucker v. Campb.ell, 36 Me. 346; Merrill v. Berkshire, 11 Pick. 269. 2 Whitcher!). Benton, 48 N. H. 157. But see Dyckman v. Mayor of New York, 5 N. Y. 434 ; Grayville E. E. v. Christy, 92 111. 337 ; Watson v. Milwaukee By., 57 Wis. 332. ' Dyckman v. Mayor of New York, 5 N. Y. 434. * Brinckerhoff v. Wemple, 1 Wend. 470. s Weston V. Foster, 7 Mete. 297. ' Euppert V. C. O. & St. Joe E. E., 43 Iowa, 490. § 263. Joint Interests. — Where there are joint interests in property, all those having an interest should be joined ;^ and if they appear jointly and demand a jury, they cannot afterward object that their interests were not separately considered, and an undivided sum may be awarded to 457 ■§§ 264, 265 OF PARTIES TO PROCEEDINGS. tliem.' The assessment having been made to two jointly, one cannot appeal without uniting the other, or making him a party by notice or otherwise.^ An objection that separate assessments should have been given to two undi- vided interests comes too late after verdict ;* or that sepa- rate parcels should be considered, when a verdict in gross had been rendered.' A holder of an undivided interest cannot move to set aside the report as to his interest alone, but in reference to the whole tract in which he has an interest. Otherwise, if his interest should be found to be greater than on the former hearing, the company would be compelled to pay a greater amount for one share, although the interest of the parties stood just as before.* 1 Ashby V. Eastern E. E., 5 Mete. 368. 2 East Saginaw E. E. v. Benham, 28 Mich, 459 ; Turner v. 'Whitehouse, 68 Me. 221 ; Watson v. Milwaukee Ey., 57 Wis. 332. 3 Chicago R. E. v. Hurst, 30 Iowa, 73. •• Knauft V. St. Paul E. E., 22 Minn. 173. ^ " Lake Superior E. E. v. Greve, 17 Minn. 322. « Southern Pacific E. R. v. Wilson, 49 Cal. 396. § 264. Town a proper party. — There is an interest in the town or community through which a road is to be laid, as well as in the petitioner for such road. The town will have to levy taxes for the construction and maintenance of the road, and should have some voice in preventing the laying-out of injudicious and uncalled-for roads. Hence, in the eastern states, the town should be treated as a party, and should receive notice of proceedings.^ The damages found are in the nature of a judgment, and no party can be bound by a judgment without notice. The town may appeal, and demand a jury.^ » Williams, petitioner, 59 Me. 617; Thetford v. Kilburn, 36 Vt. 179; Hinckley, petitioner, 15 Pick. 447. " La Croix v. Medway, 12 Mete. 123 ; Lanesborough v. Berkshire, 22 Pick. 278. § 265. Parties pursuing statutory authority not tort- feasors. — At common law, either of tort-feasors could be sued for damages separately. Statutes allowing condem- 458 OF PARTIES TO PROCEEDINGS. §§ 266, 267 nation relieve the officers from action of tort,i and they should he sued jointly, a-nd not separately.^ 1 South Carolina E. B. v. Steiner, 44 Ga. 646. » Hill ?). Baker, 28 Me. 9. § 266. Equity may bring In all parties. — In Georgia, it is suggested tha-t a court of equity may take jurisdiction over various suits for damages brought against railroads in streets, by bill of peace, and adjust their equities and rights by one decree ; ^ but this course has never been taken in any reported case. 1 Sonth Carolina K. R. v. Steiner, 44 Ga. 546. § 267. Separate assessments, verdicts, and appeals. — Each owner is entitled to a separate assessment of his lots, and cannot be bound by an assessment of a block in which his lots are, when the value of the lots varies.^ Juries, in passing on various claims for damages, should find separate verdicts, so that the verdicts in the cases in which they agree may be confirmed., and new trials can be had where they disagree.^ The jury cannot find a gross amount for a .strip of land taken which belongs to several owners. The land may vary in quality and value. Some lots may be ruined by the improvement, while others will be scarcely injured. There must be a separate consideration of each several parcel.^ The appeals are to be separate. No indi- vidual has the right to disturb the assessment made as to -any one else except himself. The fact that one owner appeals cannot enure to the benefit of one not appealing.* There may be separate interests in the same tract, and each is entitled to separate consideration,* and the compensation •of all is not to be assessed in one sum.'' 1 Sharp V. Johnson, 4 Hill, 92; Rentz v. Detroit, 48 Mich. 644. s Lanesburough v. Berkshire, 22 Pick. 278 ; Smith v. Connelly, 1 T. B. Mon. 68. s Chicago R. E. v. Sanford, 23 Mich. 418. * McKee v. St. Louis, 17 Mo. 184. ' Abrahams v. Mayor of London, 37 L. J. (Ch.) 732. « Rex V. Trustees of Roads, 5 Ad. & E. 563. ^ 459 § 268 OF PARTIES TO PKOCEEDINWS. § 268. Who may appeal. — Only those whose rights have been disregarded may appeal. There can be no appeal for errors affecting only those who do not aijpeai.^ Even if an act is plainly an encroachment on the rights of others, it is presumed that the party injured consents, unless he himself objects; and no one else can object for him.' Where there are several owners, there is no objection to one notice signed by all if each party gives the notice separately and on his own behalf.* Want of notice to other parties cannot be taken advantage of by those who have received notice ;* nor can a deviation in the route, at some other point than on complainant's land,' or a deviation caused by the com- plainant himself, be complained of.^ An individual who has had an award of his own damages cannot object that there has been no findings as to others.' There is a line of oases which indicate that in matters of public moment, like that of laying out a road, irregularities may be brought to the notice of the court by others than those whose hinds are taken. The pu'blic should not be saddled with maintaining unnecessary roads, and hence defects may be insisted on, in proceedings, afi'ecting others only who do not complain.* Proceedings may be considered as an entirety, and valid as to all or valid as to none.' When the assessment is made to the owner and mortgagee jointly, the owner may appeal with- out joining mortgagee.^" Where compensation is fixed at a certain sum iu gross, and respective interests of several par- ties in that sum are mentioned, the company has no interest in this division and can only appeal from the gross award. The company cannot appeal from a portion awaraed to one.i^ One not a party to the proceedings is not bound by the award of the commissioners. He has no right of appeal there- from even though he be the owner of the land. The pro- ceedings as to him are a nullity.'^ One of several parties to whom an award of damages is made may appeal separately and will not be required to bring other parties in. The 460 ' OF PARTIES TO PROCEEDINGS. § 269 •company must bring them in if it desires tliem to be before the court. 1^ A party cannot complain in the appellate court that no award of damages was made for its interest where the record does not show what interest, if any, it had in the land taken. 1* 1 The State v. Richmond, 26 N. H. 232; Pickford v. Lynn, 98 Mass- 491; Hingham Bridge u. Norfolk, 6 Allen, 353; Supervisors r. Gorrell, 20 ■Gratt. 484. 2 Hingham Bridge v. Norfolk, 6 Allen, 353; Wellington, petitioner, 16 Pick. 87; Anderson v. Turbeville, 6 Coldw. 150; Clifford c. Eagle> ^5 111. 444. » Larson v. Superior Ey., 64 Wis. 59. * Nichols V. Salem, 14 Gray, 490. * Newton v. Agricultural Branch R. R., 15 Gray, 27. « The State v. Woodward, 9 N. J. L. 21. ' Clifford V. Eagle, 35 111. 444. « Appleby Road, 1 Grant, 443; The State v. Woodruff, 36 N. J. L. 204; The State v. Cake, 24 N. J. L. 516 ; The State v. Emmons, 24 N. J. L. 45. 3ut see The State v. Blaurelt, 34 N. J. L. 261. 9 Brush V. Detroit, 32 Mich. 43. 1° Lance v. Chicago R. R., 57 Iowa, 636. 11 Spaulding v. Milwaukee Ey. Co., 57 Wis. 304. " Counable v. Chicago Ry. Co., 60 Iowa, 27. " Washburn v. Milwaukee R. R., 59 Wis. 379. " City of Kansas v. Railway Co., 84 Mo. 412. § 269. Who are "interested or aggrieved" — Interest -of tax-payers. — The interest of those "interested or ag- grieved" does not embrace every citizen, but only those who are peculiarly concerned on account of some special interest not common to others. ^ They must be proprietors of land affected, and not simply members of the commu- nity." Only petitioners and remonstrators can question the jurisdiction in road proceedings.* They need not reside im- mediately upon the line of the road or proposed change, but must reside in the vicinity, within reasonable distance, so as to be injuriously affected by the change.* A person who lives so near that he may be compelled to work on the road has not sufficient interest to justify him in suing out a cer- tiorari to revise the proceedings of commissioners.' Tax- 461 § 269 . OF PARTIES TO PKOCEEDINGS. payers, as such, do not have sufficient interest to inter- fere.' 1 Goldman v. Justice, 8 Head, 107. '' Creswell v. Commissioners, 24 Ala. 282. 3 Canyonville Road v. Douglas County, 5 Ore. 280. * Wilson V. "Whitsell, 24 Ind. 306. 5 Parnell v. Commissioners, 34 Ala. 278. Supervisors v. Gorrell, 20 Gratt. 484; Southern Boulevard, 3 A.bb. Pr- (n. s.) 447. But see The People v. Cortelyou, 36 Barb. 164. 462 OPENING HIGHWAYS AND STREETS. § 270 CHAP TEE XXiy. OP PROCEEDINGS IN OPENING HIGHWAYS AND STREETS. § 270. Application for road. 271. Petition of householders or freeholders. 272. Refusal of officers to lay out roads. 273. Road an encumbrance on land. 274. Ability of public to maintain road. 275. Public necessity — Public convenience. 276. Extent of easement. 277. Description of road. 278. Termini should be certain. 279. Terminus need not be on highway. 280. Course of road. 281. Widening and straightening roads and streets. 282. Alteration of road. 283. The road must be laid out as petitioned for. 284. The road must be built as laid out. 285. Entry on adioining land — Removal of fences. 286. Certificate of opening. § 270. Application for road. — No particular form of words is required in aa application for a road, and the greatest technical accuracy and precision is not to be ex- pected. Jurisdiction does not fail because the word "road," instead of "highway," is used in the petition or record.^ The word "street" and "road" are synonymous.* The application should be in writing.* The petition should show the place of beginning, intermediate points, and terminus,*' and should show the names of owners or occupants of land,, or the board may not act on the same.^ It is no objection that proceedings were carried on in the name of one who was named in the petition, but who did not actually sign it, of the signers were sufficient in number.^ Improper induce- ments to parties to apply for roads — as, that damages shall in any event be paid to them — will render proceedings void.' 1 Windham v. Commissioners, 26 Me. 406. 2 Fitzwater Road, 4 Serg. & R. 106. The word " street " applies to and. 463 §§ 271, 272 OPENING HIGHWAYS AND STREETS. includes any highway (not being a turnpike road), and any road, public feridge (not being a county bridge), lane, footway, square, court, alley, passage, whether a thoroughfare or not, and the parts of any such high- ■way. London, Chatham, etc., Eail. Co. v. Mayor of London, 19 L. T. (n- 8.) 250; Local Board of Health v. Jones, 26 L. J. (Exch.) 33. 3 Prltchard v. Atkinson, 3 N. H. 335. * .Tohns V. Marion County, i Ore. 46. s Hays V. Campbell, 17 Ind. 430. " Hays V. Parrish, 52 Ind. 132. ' The State v. Stout, 33 N. J. L. 42. § 271. Petition of householders or freeholders. — The propriety of establishing county roads is frequently made to depend upon the desire expressed by those ■whose lands are to be affected, or whose convenience is to be advanced by the establishment of the road. The applica tion of these householders or freeholders is the foundation of the order for opening the road, and the record shall show such peti- tion, as jurisdiction will not otherwise attach.^ As to the question whether the record should show whether or not the petitioners were freeholders, there is a division of opinion, the supreme court of Indiana^ holding that the fact maybe shown on the hearing, and the supreme court of Kansas^ holding that the record should show the fact. The jurisdic- tion is not lost by one of the freeholders dismissing the pro- ceedings as to himself. Jurisdiction cannot be defeated aft- er it has once attached.* Unmarried men keeping houses and servants are " householders," and may make valid peti- tions in road matters.^ One who petitions for the laying out of a street which will cross his land is not precluded from claiming compensation for land taken.' 1 Jefferson County v. Cowan, 54 Mo. 234; Eobinson k. Mathwick, 5 Neb. 252; Doody v. Vaughn, 7 Neb. 28. 2 Brown V. McCord, 20 Ind. 270. -■" Board of Commissioners «. Muhlenbacher, 18 Kan. 129; Oliphant v. Commissioners of Atchison County, 18 Kan. 386. ■» Little V. Thompson, 24 Ind. 146. ' Kramer v. Clatsop County, 6 Ore. 238. ' Turner v. Village of Stanton, 42 Mich. 506. § 272. Kefnsal of officers to lay out road. — On the unreasonable refusal of municipal officers to lay out the 464 OPENING HIGHWAYS AND STREETS. §§ 273, 274 road, the commissioners of the county may be called upon to lay out such road. The petition must show distinctly that the refusal was unreasonable. ^ If commissioners refuse to lay out a road, that is no ground for refusing to entertain a new petition. What may seem to be unneces- sary and inconvenient at one time may at some subsequent time be^ manifestly both necessary and convenient. The dismissal of proceedings does not operate as a bar.^ 1 Goodwin v. Commissioners, 60 Me. 328 ; Treat v. Middletown, 8 Conn. 243. ' Krameri). Clatsop County, 6 Ore. 238. § 273. Road an encumbrance on land. — The existence of a road on land is an encumbrance upon it,^ — a breach or a covenant of warranty. For an old location, damages may be recovered on the warranty. For a ne^ location, damages must be claimed from the public, notwithstanding the new location was to take the place of the old road dis- continued. If a part only was discontinued and newly located, the damages should be divided, and be sought both from the public and the covenantor.' 1 Hampton v. Coffin, i N. H. 517; Herrick v. Moore, 19 Me. 313. 2 Herrick v. Moore, 19 Me. 313. § 274. Ability of public to maintain road. — In deter- mining whether an occasion exists for a new highway, the legislature allows other considerations besides the public exigency to enter. Tliere is a burden on the town through which the road will run, of constructing and maintaining the road. It is not proper that a few individuals shall, by simple petition, impose upon the public the burden of a useless road, and hence the town may object ;^ and for this purpose may show its financial condition and its tax-list as a reason why the road should not be laid out.'' The ability of the public to build a road may be affected by the fact that private individuals will bear the expense, and this should be considered.' After the road has been declared to be one of public necessity, it cannot be shown, on appeal, as a reason that it was not of convenience or neces- 30 465 § 275 OPENING HIGHWAYS AND STREETS. sity, that the expense, as shown \>y a reassessment, would be too great. The court will not try that question, or per- mit it to be tried twice.^ A location is not invalid though a private individual pays all the expense.* 1 Stinsoa v. Duubarton, 46 N. H. 385; Dudley v. Cilley, 5 N. H. 658; Linblom v. Eamsey, 75 111. 246. ' Bristol V. Branford, 42 Conn. 321. a Hunter v. Newport, 5 E. 1. 325, * Plainfleldi). Packer, 11 Conn. 576. ' Coombs V. Franklin Commissioners, 68 Me. 484. § 275. Public necessity — Public convenience. — In many states, there is a provision that there shall be a find- ing hy a jury, committee, commissioners, or by the court, of the public convenience or necessity of the proposed road.^ Such commissioners decide on evidence satisfactory to themselves, and may take testimony and hear evidence which might not be strictly admissible in a case on trial before a court." A finding that public convenience requires a highway is equivalent to a finding that it is necessary.^ A report that there was occasion for such a road is sufficient. Such reports are not to be drawn up with the pre- cision of an indictment.* A finding that the taking is need- ful for the proposed undertaking is not sufficient to show that it is for the use or benefit of the public ;° and a find- ing that the taking is for public use is not a finding of the necessity of the faking for public use. The finding of the necessity cannot be dispensed witi).^ A finding that it is necessary to take said real estate for public use is sufficient.' A finding of the necessity is a jurisdictional fact, without which all further proceedings are void.* The necessity is not that the particular land is necessary, but that the public improvement is necessary.' The public necessity de- pends to a considerable extent on the finances of the muni- cipality, and whether they will justify a new road. i° The necessity cannot be found conditionally, — as, that the road would be of public utility in case the applicants con- structed the road at their own expense. ^^ The petition 466 OPENING HIGHWAYS AND STREETS. § 275 •should contain allegations sufBcient to support the inference that it would be of convenience and necessity .^ It is suffi- cient adjudication that the road is public, that the viewers lay it out for public use.^^ If the public necessity is net manifest, and the private inconvenience great, or if the private inconvenience overbalances the public necessity, the road will not be laid out." It is a sufficient necessity for -changing an old road, and making a new one, that the old one had been rendered dangerous by proximity to a rail- road.^* The public utility of a road laid on the right of way of a railroad is doubtful, especially if it was laid out under the impression that no damages were to be paid to •the railroad when compensation was properly claimed.^' It is not necessary for the petition to aver that the proposed road will be of public utility."' Wh ere the report of the viewers is silent as to the public utility of the road sought to be laid out it will be presumed that they consider it of pub- lic utility. i' One may remonstrate against the inutility of a highway and at the same time claim damages.^' 1 Arnold v. Decatur, 29 Mich. 77; Horton v. Grand Haven, 24 Mich. -466; Bristol v. Branford, 42 Conn. 321. " Bristol V. Branford, 42 Conn. 321. s Hunter r. Newport, 5 K. I. 325. '■ Pocopson Eoad, 16 Pa. 15. » Mansfield E. E. 1). Clark, 23 Mich. 619; Grand Eapids R. E. ■». Van Driele, 24 Mich. 409. ' McClary v. Hartwell, 25 Mich. 139. ' East Saginaw E. E. v. Benham, 28 Mich. 459. « The People v. Town of Seward, 27 Barb. 94. ' Powers' Appeal, 29 Mich. 504; The People v. Brighton, 20 Mich. 67. i» Linblom v. EamseyJ 75 111. 246. ^ Wilson V. Witsell,*24 Ind. 306. ^ Windsor v. Field, 1 Conn. 279; Lockwood v. Gregory, 4 Day, 407. M App's Eoad, 17 Serg. & E, 388. " McWhirter v. Cockrell, 2 Head, 9 ; Poston*. Teriy, 6 J. J. Marsh. 220; IFletcher v. Pugate, 3 J. J. Marsh. 631. 15 Helm V. Short, 7 Bush, 623. IS Crossley v. O'Brien, 24 Ind. 325. " Conaway v. Ascherman, 94 Ind. 187. M Heogy V. Black, 90 Ind. 634. 1' Eeed v. Brenneman, 72 Ind. 289. 467 §§ 276, 277 OPENING HIGHWAYS AND STREETS. § 276. Extent of easement. — The public have aright to use the whole of the highway, and may remove door- steps, eaves-spouts, and bay-windows projecting over the land talien. Hence, damages should be allowed for the right of the public to remove, and there should be no reduction of damages on the ground that the public will not insist on the right. ^ The public generally have the right of using the road, although a particular town may pay for the road. The easem ent does not belong to the particular town, but to the general public.'' Where the ease, ment obtained by condemnation is simply that of passing, a tall house cannot be built on land thus taken.' For a further discussion of the extent of the public easement iu roads and streets, see ante, §§ 51-56. 1 Hyde v. Middlesex, 2 Gray, 267. 2 Galen v. Plank-Road Co. 27 Barb. 543. s Danville Road Co., v. Campbell, 87 Ind. 67. § 277. Description of road. — The description of the land proposed to be taken for a road should be sufficiently distinct to ascertain the . Bridges, 31 Iowa, 138. ■« Pearce v. Gilmer, 54 111. 25. 473 §§ 285, 286 OPENING HIGHWAYS AND STREETS. § 285. Entry on adjoining land — Removal of fences. — When persons engaged in making the road necessarily enter on adjoining land, they are not liable in trespass if they do no unnecessary damage, or if the cattle used in throwing up the road stray on the land against the will of the owner.^ Throwing earth against the side of the fence, if unreasonable or unnecessary, would give an action on the case for dam- ages ;' and an entry to make a ditch for carrying off water would be a trespass.' The surveyor of highways may re- move a fence without first notifying the owner to remove it.* 1 Cool V. Crommet, 13 Me. 250; Northern Trans. Go. v. Chicago, 99 U. S. 635. 2 Felcli V. Gllman, 22 Vt. 38. ' Plummer v. Sturtevant, 32 Me. 325. * Cool V. Crommet, 13 Me. 250. § 286. Certificate of opening. — The certificate of open- ing is the final and best evidence of the opening of the road. Until that is filed, the owner has a right to keep his land inclosed.^ The certificate is the official act of opening, and any disturbance of the owner in his possession before that is done is a trespass.* A town is not compelled to pay damages awarded by supervisors, unless such proceedings are conducted in the manner prescribed by the statut^.^ ' Emerson v. Reading, 14 Vt. 279 ; Patchen v. Morrison, 8 Vt. 690. ^ Evans «. James, i Wis. 408. ^ Huhland v. Supervisors, 65 Wis. 664. 474 OF PROCEEDINGS UNDEK THE MILL ACTS. § 287" CHAPTER XXy. OF PROCEEDINGS UNDER THE MILL ACTS. § 287. Public character of -mills. 288. Necessity of mill — Private inconvenience. 289. Effect upon health — Eights of fishery. 290. Conflicting applications — Improvement by owner — Prescriptive rights. 291. Mill act excludes common-lavp remedy. 292. Where the statutory remedy is not adequate — Failure to compljr with statute. 293. Act protects from indictment. 294:. How damages are determined. 295. Questions before the jury — Nature of damages. 296. Damages to mill-site — Damages below dam. 297. Damages not authorized by charter. 298. Inconveniences. 299. Annual damages. 300. Benefits to be considered. 301. Use by owner of land flowed. 302. Reservoir for dam — Outlets. 303. Height of mill-dam. 304. Mill must be built. 305. All owners of mills to be joined — Owners of lands. 306. Transfer of dam — Liability of vendee of dam. . 307. Transfer of land flowed — Claimfordamagesby vendorandvendee. 308. Regularity of proceedings — Waiver of errors. 309. Abandonment of proceedings. 310. Limitations on actions and on payment of damages. § 287. Public character of mills. — The reasons for en- couraging mills in the early times, when mills were few and capital small, have lai'gely ceased to exist, and there is now no reason for indulging owners of mills over owners of public groceries, or other branches of business.^ There are, however, a number of states which continue to recognize the erection of a mill as of suiBcient public interest and im- portance to justify the exercise of eminent domain.* In order to make the mill a public use, the public should have the control of it. There should be regulations requiring 475 ^ 288 OF PROCEEDINGS UNDER THE MILL ACTS. the owners to grind for the public at rates to be fixed by the legislature, and that the mills should be prepared to grind at all reasonaI)le times. If there be no such pro- visions, the mills would be a private use, and flowing of private property could not be sustained as a proper exer- cise of eminent domain.' In most of the states where the acts lire sustained, the mills are required to grind for all in turn, and at regular tolls.* 1 Jordan v. Woodward, 40 Me. 317= 3 Ante, § 15. 3 Tyler v. Beacher, 44 Vt. 648; Harding v. Goodlett, 3 Yerg. 41; Sadler v. Langham, 34 Ala. 311 ; Bottoms v. Brewer, 54 Ala. 288. * Crenshaw v. Slate Elver Co., 6 Rand, 245; Harding v. Goodlett, 3 Yerg. 41; Bottoms v. Brewer, 64 Ala. 288. § 288. Necessity of mill — Private inconvenience. — In Kentucky, the court considers the question of the necessity of the public demand for a new mill; and if the private in- conveniences overbalance the public necessity, or the public is already sufficiently supplied, the application to erect a new mill will be refused.^ When the returns show a pri- vate inconvenience, such as the destruction of a spring, and it does not affirmatively appear that the public convenience requires the mill, the condemnation cannot be made.'' It will be sufficient if the neighborhood is sufficiently supplied with mills, or that a man's house, orchard, or garden would be overflowed.* The question of the public utility of the mill is settled by the writ of ad quod damnum.* The jury must return whether or not out-houses, gardens, or or- chards are overflowed.^ In considering the question of neces- sity , it is not proper to discuss whether or not damages have been paid in proper amount, or that there were errors in the verdict of the jury, — as, that they had omitted proper items. Those questions should properly arise on motion to set aside the verdict of the jury. ^ 1 McDongle v. Clark, 7 B. Mon. 448. 2 Trabue v. Macklin, 4 B. Mon. 407 ; Payne v. Taylor, 3 A. K. Marsh. *!28; Morgan v. Bauta, 1 Bibb, 579; Willoughby v. Shipman, 28 Mo. 50. ^ Morgan v. Banta, 1 Bibb, 679. 476 OF PROCEEDINGS UNDER THE MILL ACTS. § 289 " Wright ». Pagh, 16 Ind. 106. » Martin v. Eusliton, 4:2 Ala. 289. * Gammell v. Potter, 6 Iowa, 648. § 289. Effect upon health — Rights of fishery — Inter- ference with buildings. — Statutes ordinarily require a^ findiug by tiie jury as to the effect of the proposed dam on the health of the community ; and if the publio health will probably be injuriously affected, then there shall be no per- mission to build the mill/ and any one whose health would be affected can oppose the application, and appeal.^ A writ of ad quod damnum may be instituted by the owner of a mill already erected, to establish that the health of the com- munity is not disturbed by his mill.^ A failure to report as to the effect on the health of the community will reverse the report.* The condemuation of lands for mill purposes does not operate to destroy the rights of fishery formerly enjoyed by the owners of the soil, and the legislature may properly require compensation to be paid to the owners.^ The re- port should show whether or not fish of passage would be interfered with.* The Missouri statute does not permit of the erection of mills when the mansion-house of any pro- prietor, or the out-houses, curtilages, or gardens thereto immediately belonging, or the orchard, would be overflowed thereby. Under that statute, a spring-house would be con- sidered an out-house.' Evidence as to healthfulness of a locality, as affected by a dam, must be of the comparative healthfulness before and after the erection of the dam — not simply after the erection of the dam.' 1 Mayo V. Turner, 1 Munf. 405; Wooten v. Campbell, 7 Dana, 204. But see Hartford Manilla Co. v. Olcott, 52 Conn. 452; Johnson v. Boston, 130 Mass. 452. . 2 Wooten V. Campbell, 7 Dana, 204. » Wright V. Pugh, 16 Ind. 106. * Gherkey v. Haines, 4 Blackf . 159. ' Holyoke Co. v. Lyman, 15 Wall. 500; Cole v. Eastman, 133 Mass. 66» » Eubank v. Pence, 5 Litt. 338. I Willoughby v. Shipman, 28 Mo. 50. " Watson V. Van Meter, 43 Iowa, 76. 477 §§ 290, 291 OF PUOCEEDINGS UNDER THE MILL ACTS. § 290 . Conflicting applications — Improvement by own- er — Prescriptive rights. — The first applicant acquires an inchoate right to the privileges which are conferred by the statute, and, provided he proceeds with reasonable dili- gence, he is entitled to a decree establishing his mill. If applications are made on the same day, parol evidence is admissible to show which one came in first. An amended writ is entitled to the same time as the writ first filed. All parties are presumed to know of the applications filed, and must act accordingly.^ The Connecticut statute gives to the owner of the mill-site the first privilege of improving it ; and if it appears that a mill-dam has been erected and used, the site will be exempt from condemnation, unless by long-continued non-user the site is abandoned.^ The indul- gence of a reasonable time in which to improve the site is given to the owner or his vendee.^ Flowing for twenty jrears without claim for damages gives an easement, which will not be lost by a non-user of less than twenty years.^ Non-user for twenty years is an abandonment, giving a right to flow the site previously occupied. ° When there are con- flicting applications, the court may grant permission to the one which will cause the lesser damage to individuals.^ ' Hendricks v. Johnson, 6 Port. 472. In Hook v. Smith, 6 Mo. 225, the court considered the fact that one application was made a few hours be- fore the other to be of no importance. " Curtiss V. Smith, 35 Conn. 156; Elting Woollen Co. v. Williams, 36 Conn. 310. " Elting Woollen Co. u. Williams, 36 Conn. 310. « Williams v. Nelson, 23 Pick. 141. ' French v. Braintree Mfg. Co., 23 Pick. 216. « Hook V. Smith, 6 Mo. 225. § 291. Mill act excludes common-law remedy. — The common-law remedy against the owner of a mill for flowing land by means of a dam is taken away by the mill acts, aud recovery can only be had by the statutory remedy,^ except in case of wrongful flowage.^ Hence no action at law or in equity can be brought, nor can the cause of action be submitted to arbitration.^ The mill acts were passed to 478 OF PROCEEDINGS UNDER THE MILL ACTS. § 292 prevent continual actions of trespass,* and to provide a mode •of assessing all damages.^ The mill acts must be strictly followed in every particular;' and if the owner builds his mill before asking for his writ, the petition will come too late to protect him from common-law actions.^ No action will lie for a flowage back through a drain into a cellar, except under the mill act.* In Indiana, where the mill act contains no new remedy, but one cumulative only on one already existing at common law, and the statute is not affirmative, it is held that the common-law action is not excluded.' 1 Underwood v. North Wayne Co., 41 Me. 291 ; Wooster v. Great Falls •Go., 39 Me. 246; Leland v. Woodbury, i Ciish. 245; Fehr v. Schuylkill Na-v. Co., 69 Pa. 161. 2 Gile V. Stevens, 13 Gray, 146 j Fehr v. Schuylkill Nav. Co., 69 Pa. 161. ^ Henderson v. Adams, 6 Cush. 610. ^ Gilliam v. Canaday, 11 Ired. 106. ' Gillet V. Jones, 1 Dev. & B. 339 ; Wilson v. Myers, 4 Hawks, 73 ; Mun- iord V. Terry, 2 Car. L. Eepos. 308. « Shackleford v. Coffey, 4 J. J. Marsh. 40. ' Smith V. Olmstead, 5 Blackf. 37. * Cotton V. Pocasset Mfg. Co., 13 Mete. 429. 9 Toney v. Johnson, 26 Ind. 382. § 292. When the statutory remedy Is not adequate — J'allure to comply with statute. — If the statutory remedy is not adequate to fairly compensate the owner, the com- mon-law remedy survives, — as, where the mill was in an adjoining state, and caused a flow over lands in Maine, the mill act could not be extended to such mill, and the owners , Tvould be liable at common-law.^ If the owner of the mill, after pursuing the statutory remedy, refuses to comply with the requirements of the verdict, he would still be liable at common law, and the land-owner would not be confined to his remedy under the mill act.^ Raising the water beyond the limit prescribed by the verdict, without new proceed- ings on the part of the mill-owner, would be a trespass at common law, and the action would ^ survive. In North Carolina, the mill act only gives damages for injury to land, and hence other damages, such as to health, must be 479 §§ 293, 294 OF PROCEEDINGS UITDER THE MILL ACTS. recovered in an action at common law.* When the initia- tive of proceedings is given to the mill-owner, the owner of the land is left to his common-law remedy, or his equit- able remedy, if the mill-owner fails to obtain necessary authority, or fails to make compensation." 1 Woosterw. Great Falls Co., 39 Me. 246; Salisbury Mills v. Porsaith, 57 N. H. 124. 2 Leonard v. Wading River Co., 113 Mass. 235; Winkley v. Salisbury County, 14 Gray, 443; Stowell v. Flagg, 11 Mass. 364. ' "Winkley B. Salisbury County, 14 Gray, 443; Andover a. Sutton, 12 Meto. 182. * Waddy v. Johnson, 6 Ired. 333. ' Hunting v. Curtis, 10 Iowa, 152. § 293. Act protects from Indictment. — The legisla- tive authority to build dams jDrotects from indictments for nuisance and for obstructing streams, but leaves the build- ers liable to common-law actions if compensation is not paid.^ If the damages are not paid, and the company is insolvent, the owner may proceed to have the dam abated as a nuisance.^ ' Baston v. Amoskeag Co., 44 N. H. 143; Hooksett o. Amoskeag Co., 44 N. H. 105; The State a. Mills, 29 Wis. 322; Pick v. Rubicon Co., 27 Wis. 433. 2 The State v. Mills, 29 Wis. 322. § 294. How damages are determined. — The question of damages can only be settled by the testimony of ex- perts. It is competent to show a plan of the territory pro- posed to be flowed, and examine an expert on the extent of the damages.^ It is competent to show the state of the land, the character of the soil, and the nature and value of the productions prior to the erection of the dam. Such evidence is admissible although the dam has been erected twenty years. ^ Nominal damages may be recovered al- though no actual damages may be shown.' If damages are assessed after the erection of the dam, it is proper to in- clude all actual damages, including those that might not have been foreseen at the time of the taking.* the pay- ment of damages does not vest the title in the excess of 480 OF PROCEEDINGS UNDER THE MILL ACTS. § 295 lands flowed over the amount of land taken, the damages for which wei-e assessed by the jury.^ Witnesses may be nsked for what purpose they made the examiuatiou of the damages, and the character of the examination.^ » Paine v. Woods, 108 Mass. 160; Hosmer ti. Warner, 15 Gray, 46. ' Hosmer v. Warner, 15 Gray, 46. 3 Wright V. Stowe, 4 Jones L. 516. * Nash V. Upper Appomattox County, 5 Gratt. 332. " Whitworth v. Puckett, 2 Gratt. 528. « Polmar v. Polmar, 71 Ala. 136. § 295. Question before the jury — Xature of dam- ag-es. — The jury are to deterinine the damages, and not ■the title. A jury presided over by a sheriff is not a proper tribunal to try questions of title, and hence such questions should be settled before the warrant for the jury issues.^ A question of a prescriptive right is properly for the court, and not for the sheriff's jury.'' The sheriif's jury is to determine the damages, because they examine into all the circumstances and view the premises; and hence the question of damages is not to be inquired into at the bar of the court. ^ The jury should include ia the damages injury to fences, and for the annual expense of keeping them up;* and for interfering with the drainage, although no land is taken.' The damages are to the land, and not to the air, which may be filled with noxious vapors by the maintenance of the dam.* There is no damage to a ripa- rian proprietor from simply deepening the water in the channel of the stream, when no land is overflowed, although such deepening would lessen the fall of a dam if erected on the land above.' The jury in assessing damages, are to decide how much the market value of the defendant's land has been lessened by the dam and flash-boards; and in de- termining this they should consider the value of the land in all its parts and elements, its capabilities for agricultural, manufacturing or any other purpose for which it was adapted or likely to be used, and all its relations to the whole water power.' Where a dam is raised causing water 31 481 §§ 296, 297 OF PBOCEEDINGS UNDER THE MILL ACTS. to overflow a cellar, in estimating damages, it is proper to take into account the damages to the building by reason of dampness and decay and also to the rental value.' 1 Darlings. Blaokstone Mfg. Co., 16 Gray, 187. 2 Wilmarth v. Kaight, 7 Gray, 294. « Nutting ij. Page, 4 Gray, 581. * Jones V. Phillips, 30 Me. 455. s Johnston v. Eoane, 3 Jones L. 623. ' Rooker'B. Perkins, 14 Wis. 79. ' Hook V. Smith, 6 Mo. 225. ' Amoskeag Co. v. Worcester, 60 N.H. 522. ' Willey V. Hunter, 57 Yt. 479. § 296. Damages to mill-site — Damages below dam. — The erection of one dam frequently operates to destroy or impair a mill-privilege further up the stream. If, how- ever, the site above is unimproved and unproductive, no damages will be allowed.* The first dam erected, or in process of erection, has the precedence, and cannot be interfered with by one subsequently erected.* A fall below the mill-site, not actually in use, but reserved as a means of increasing the power when needed, is a part of the mill- site, and cannot be destroyed by flowing back from below.' Damages resulting below the dam from flowing may be re- covered under the mill acts.* There should be an examina- tion of the land below as well as above the dam, to deter- mine the damages accruing.^ 1 Pullerii. Chicopee Mfg. Co., 16 Gray, 43. 2 Bigelow 0. Newell, 10 Pick. 318; Miller v. Stowmau, 26 Ind. 143. ' Occum Co. V, Sprague Co., 35 Conn. 496. » Gile V. Stevens, 13 Gray, 146; Honenstine v. Vaughan, 7 Blackf. 620.. 5 Martin b. Eushton, 42 Ala. 289. § 297. Damages not autliorized, by charter. — Where the flowage is greater than that authorized by charter, the remedy is by action at common law. Statutes do not pro- vide for the consideration of acts outside of the chartered powers, and full damages may be recovered at common law for repairs rendered necessaiy byflowage, and for building a wall to protect from further flowage.^ The act only pro- vides for damages resulting from the proper erection and: 482 OF PROCEEDINGS UNDER THE MILL ACTS. §§ 298, 29& maintenance of the mill, and not for negligent and tortious acts.* If the mill is not built under the authority of the mill acts, the courts will not interfere by injunction until "the right ot redress is established by an action at law, and until that action has proved unavailing.' 1 Andover v. Sutton, 12 Mete. 182. Contra, Fehr v. Schuylkill Nar. Co., 69 Pa. 161. 2 Hill V. Sayles, 12 Mete. 142; Stowell v. Flagg, 11 Mass. 364; Johnson V. Kittredge, 17 Mass. 76; Fiske v. Framingham Mfg. Co., 12 Pick. 68. « Arnold v. Klepper, 24 Mo. 273. $ 298. Inconveniences. — Damages should be allowed for inconveniences resulting from cutting up lands into in- convenient parcels,^ or for destroying fords which formerly rendered different parts of a farm accessible.* The dam- ages would not necessarily be the cost of bridges, for the benefits accruing might reduce the damages.* Damages will be allowed for saturating the soil so that good crops cannot be produced,* and may include damages to cellar or dwelling-house; but no damages will be allowed for noxious smells arising from land flowed, and which render the, up- lands less desirable for residence.* If the inconveniences from cutting up the land could be remedied by making a new way, then the damages might be the cost of a new way; but if the value of the land is not sufficient to justify ■ the building of a new way, then the damage would be the loss of productive value. ^ 1 Fuller V. Chicopee Mfg. Co., 16 Gray, 43; Palmer Co. v. Ferrlll, 17 Pick. 58; MonsQn Mfg. Co. v. Fuller, 15 Pick. 554. 2 Harding «.Funk, 8 Kan. 315. 8 Ibid. * Monson Mfg. Co. ■». Fuller, 15 Pick. 554. ' Fuller. ■!;. Chicopee Mfg. Co., 16 Gray, 43; Eames v. New England Worsted Co., 11 Mete. 570. " Bates V. Eay, 102 Mass. 458. § 299. Annual damages. — Damages are allowed by the Massachusetts Mill Act for damages annually accruing, not- withstanding the mill may be destroyed. The owner may rebuild at any time.^ These damages may be reassessed, while damages once given in gross cannot. Hence, judg- 483 §§ 300, 301 OF PROCEEDINGS UNDER THE MILL ACTS. meut for damages allowed for one year is not conclusive on the amount in future years. ^ lu assessing damages for subsequent years, regard is to be had, not to the condition of the land as it may have been affected by maintaining the dam for several years, but to the condition of the land at the commencement of the injury.^ In North Carolina, the annual damages are assessed to be p lid for five years con- tinuously, after which there is a new assessment.* 1 Fuller «. French, 10 Mete. 359. ' 3 Saell V. Bridgewater Co., 24 Pick. 296. ' Palmer Co. v. Ferrill, 17 Pick. 68. * Gilliam v. Canaday, 11 Ired. 106; Hester v. Brooch, 8i N. C. 25. It is not error to give judgment for sum in gross. Goodson v. Mullen, 92 N. C. 211. § 300. Benefits to be considered. — The owner of the land may be benefited by the flowage. Ice may be formed, which is salable by the owner; water is supplied for the use of cattle, and for purposes of fiirrigation, etc. These benets may go in reduction of damages.^ Soil p reviously barren may be fertilized by the irrigation, and this benefit should be considered.^ The general benefits which arise from increase of markets, establishment of schools, stores, etc., are too general to be admitted.^ Such benefits are enjoyed equally by others, whose lands are not injuriously affected; and it is not jjroper that one should pay for the general benefit, while the other cannot be compelled to pay.* ^ Paine v. Woods, 108 Mass. 160; Kimel v. Klmel, i Jones L. 121; Avery v. Van Deusen, 5 Pick. 182. 2 Palmer Co. v. Ferrill, 17 Pick. 58. 3 Palmer Co. v. Ferrill, 17 Pick. 58. * Marcy v. Fries, 18 Kan. 353. § 301. Use, by owner, of lands flowed. — The use of land flowed for mill purposes, by the owners of the mill, is not intended to exclude the use by the owner of the land, when the same will not interfere with the proper operation of the mill. The mill act was to enable a head of water to be raised; and hence the owner may make a boom on his own land by driving piles in the dam, although he thereby 484 OF PROCEEDINGS UNDER THE MILL ACTS. §§ 302, 305 excludes the mill owner from making it a depository of lumber for his mills.^ The owner is entitled to ice formed above his land; to the use of water for his cattle, for irri- gation, or any reasonable purpose not interfering with the use of the mill.^ He cannot fill up the flats, and thus diminish the capacity of the basin. He can use his land, but not so as to interfere with the efficient use of the dam.* The fee to the land remains in the owner, subject only to the easement.* 1 Jordan v. Woodward, 40 Me. 317. 2 Paine v. "Woods, 108 Mass. 160. 3 Boston Mill-Dam v. Newman, 13 Pick. 467. * Hunter v. Matthews, 1 Rob. (Va.) 468. § 302. Reservoir for dam — Outlets. — In order to pro- vide a sufficient supply of water for the dam, the owner may create a reservoir by erecting a dam or reservoir as a feeder. Such an erection is necessary to a dam, and is authorized by the statute.-' Outlets cannot be made so as to discharge surplus water on the lands of others, without condemnation of the lands flowed.^ A reservoir dam, built for the pur- pose of supplying several mills, is a dam within the mill act, and damages should be sought under that act.^ A dam to raise wfiter to float logs is not within the mill act.* 1 Wolcott Mfg. Co. iJ.Upham, oPick.292; Shaw u. "Wells, 5 Cush. 537. 2 Fiske V. Framingham Mfg. Co., 12 Pick. 68. 3 Dingles v. Gardiner, 73 Me. 63. * Dixon V. Eaton, 68 Me. 542. § 303. Height of mill-dam. — The height of the dam is the common and convenient instrument wherewith to measure and describe the extent of a water-right, but such right may be defined and limited by any other appropriate monument on the ground. The actual interference by the water should measure the damages, and not such interference as was rendered possible by the height of the dam. A dam may be of any height, if there are appli- ances to keep the water down.^ The owner of the mill erected has the right to have permanent record evidence of the 485 § 304 OF PROCEEDINGS UNDEE THE MILL ACTS. height at which he may maintain his dam, specified in feet and inches, or otherwise permanently marked, and for this pur- pose may resort to a writ of ad quod darrmum.'^ A perma- nent raising of a dam is a new taking, and requires a new assessment.^ If tlie petition or order does not specity the height of the dam, the jury may specify it in their inquisi- tion.* In assessing damages on a petition to increase the height of a dam, the only damages to be considered are those occasioned by the increased heiglit ; not those occas- ioned by the former taking, but not foreseen in that assessment.^ Where the plaintiff has accepted dam- ages, he cannot complain of the unreasonable height of the dam.* 1 Town V. Faulkner, 56 N. H. 265^ Daniels v. Citizens' Savings Insti- tution, 127 Mass. 634. 2 Wright V. Pugh, 16 Ind. 106. ' Union Canal Co. v. Stump, 32 Sm. 355; Bristol Hydraulic Co. v. Boyer, 67Ind.236. • Mairs v. Gallahue, 9 Gratt. 94. » Eppesu. Cralle, 1 Munf. 258; Godfrey v. Maberry, 84 N. C. 2S5. • Aken v. Parfrey, 35 Wis. 249. § 304. Mill must be built. — The object of the mill act is for the encouragement of mills, by giving the right to flow lands. The right to flow is attached to a mill and the dam to raise, water for working it, and the act does not embrace the case of a dam erected independently of a mill. The statute would form no defense to a man who should build a dam without a mill. The mill is the principal, and the dam the incident. Hence the mill-owner must show- that the dam is connected with a water-mill, either actually existing or in process of construction ; and if no mill is erected, the proceedings will be quashed on certiorari} Another mill may be erected so as to interfere with a dam ^hich has no mill attached.' On the disuse and removal of a mill, the dam ceases to be under the protection of the statute, and the common-law remedy revives,* A tempo- rary non-user would not operate as an abandonment ; but an express declaration, by the mill-owner, of an intention 486 OF PEOCEEDINGS UNDER THE MILL ACTS. §§ 305, 306 i;o abandon, accompanied by a removal of a dam, and giv- ing notice to the owners of land flowed of his intention so to do, is an abandonment, and the owner cannot rebuild and flow back on a new dam.* Adam below a mill, not used in running a mill, is not within the protection of the -statute.^ ' Barnard v. Eitch, 7 Mete. 605; Fitch v. Stevens, 4 Mete. 426. 2 Fitch V. Stevens, 4 Mete. 426. 3 Baird v. Hunter, 12 Pick. 556. * French v. Braintree Mfg. Co., 23 Pick. 216; Curtis v. Smith, 35 Conn. 156. ' Bryan v. Burnett, 2 Jones L. 305. § 305. All owners of mills to be joined — Owners of lauds. — In actions against owners of mills, all should be joined. The mill act renders the owners subject to an action, but the action is not of tort. At common law, an action could be brought against either of tort-feasors ; but under the mill act, all should be joined.^ All owners of lands who may have been injuriously affected by the dam should be joined, whether their lands are above or below the dam.^ The possession of land flowed is sufficient to maintain a petition under the mill act, as jpossession would support a common-law action on the case for flowing lands.* Any owner injuriously affected may object to the verdict of the jury, even in the absence of a statutory provision for the intervention of owners into the proceedings. The owner has a right to be heard on the amount of damages to his lands.* 1 Hill V. Baker, 28 Me. 19; Turner v. Whitehonse, 68 Me. 221. 2 Honenstine v. Vaughan, 7 Blackf. 520. ' Pace V. Freeman, 10 Ired. 103. * Groce v. Zumwalt, 4 Mo. 667. § 306. Transfer of dam — Liiabllity of vendee of dam. — The owner of a dam at the time when the yearly dam- "iiges for flowing become due is liable to pay the damages for the whole of that year.^ The damages are a lien on the property. The claimant for damages is not ^compelled to follow the several owners. He looks to the party in pos- 487 §§ 307, 308 or peoceedings under the mill acts. session. A mortgagee in possession must be regarded as an owner for this purpose.^ The former owner is also lia- ble for damages accruing during his ownership.^ The sale of a mill does not abate the proceedings for the assessment of damages. They may be carried on in the name of the successors.* In case of joint owners, buying at different, limes, the rule in Wisconsin is that they shall be liable from the date of the oldest title, not exceeding three years from the proceedings, and the person purchasing an interest in mill property may insist on indemnity from his grantor.*' For increase in flowage, the rule is that the grantors should pay the damages up to the time of sale, and the grantee afterward.* ' Bryant v. Glidden, 36 Me. 36. 2 Lowell V. Shaw, 16 Me. 2i2; Abbott v. TJpham, 13 Meto. 172; Fuller V. French, 10 Mete. 359. 3 Bean v. Hinman, 33 Me. 480; Charles v. Monson Mfg. Co., 17 Pick. 70. * Forney v. Ralls, 30 Iowa, 559. * Sabine v. Johnson, 35 Wis. 185. « Sabine v. Johnson, 35 Wis. 185; Mead v. Hein, 28 Wis. 533. And see- Pick V. Bubicon Co., 27 Wis. 433. § 307. Transfer of land flowed — Claim for damages toy vendor and vendee. — The owner of the land at the time the damage by flowing is done is entitled to the dam- a.ges, notwithstanding he subsequently conveys it,^ or has his interest t;ikenaway by foreclosure^ or legal jaroceedings, or has leased the land for a term of years. ^ Hence the proper party against whom to bring proceedings to con- demn land would be the executor of the owner during whose life the damages accrued, and not the heirs.* 1 Walker v. Oxford Woollen Co., 10 Mete. 203; Ballard v. Ballard Val& Co., 5 Gray, 468. 2 Vaugh ». Wetherell, 116 Mass. 138. 3 Sampson v. Bradford, 6 Cush. 303. * I-Iowcott's Executor v. CoflBeld's Executor, 7 Ired. 24 ; Fellow v. Ful- gham, 3 Murph. 254. § 308 . Kegularity of proceedings — Waiver of errors . — Long acquiescence in the building of a mill raises the IJresumption that the damages have been paid,^ at least to 488 OF PROCEEDINGS UNDEE THE MILL ACTS. §§ 309, 310 such an extent as to cause the court to refuse an injunc- tion or action to abate the dam, and that the court will leave the parties to their common-law remedy for damages.* The proceedings must show a reasonable conformity to the requirements of the statute. A failure to show in the re- cord that commissioners were appointed, or that a petition was filed, or that commissioners took the oath and filed their report in proper time, discloses errors so gross as to confer no rights on the mill-owner.^ Appearance of parties waives defects in the form of the sheriff's warrant.* 1 Young V. Price, 2 Munf. 634. ' Cobb V. Smith, 16 "Wis. 661. , 8 Akin V. Davis, 11 Kan. 580. As to allegation of ownership, see Mor- ton V. Pranklin Co., 62 Me. 455; Bussell v. Turner, 62 Me. 496. " Wilmarth v. Knight, 7 Gray, 294. § 309. Abandonment of proceedings. — The mill-owner cannot abandon proceedings commenced by him and become non suit after a report of the damages has been filed, ^ but may at any lime before that time.^ In case two parties desire to condemn the same site, and one commences pro- ceedings, but neglects and delays the completion of them, the presumption would be that he had abandoned h!s right, and in favor of the one who continues the construction.' ^ Pollard V. Moore, 51 N. H. 188. - Hunting v. Curtis, 10 Iowa, 152. ' Macon v. Owen, 3 Ala. 116, § 310. liimitations on actions and on payment of dam- ages. — The commencement of proceedings dates from the service of process, and not from the negotiations to pur- chase.^ The riffht to apply for damages accrues when the dam is complete and put in operation, and the limitation on the bringing of actions should begin to run from that time,, although there may be damages afterward resulting which could not have been foreseen.^ The damages must be known and determined by the projectors, and are not to be determined by any after use.^ When the statute provides 489 § 310 OF PK0CEEDING8 UNDER THE MILL ACTS. that damages shall be paid within a certain time or the mill owner will be precluded from the benefit of the act, this leaves the owner his common-law remedy as soon as the limitation is passed.* > Elting Woollen Co. v. Williams, 36 Conn. 310. 2 Call V. Middlesex, 2 Gray, 232. ' 3 Heard v. Middlesex Canal, 5 Mete. 81. ^ Fowler v. Holbrook, 17 Pick. 188. 490 OF ABANDONMENT OP PROCEEDINGS. § 311 CHAPTEE XXVI. OF ABANDONMENT OF PROCEEDINGS AND DISCONTINXJANCE OF PUBLIC IMPROVEMENTS. ^311. Proceedings may be abandoned. 312. Proceedings cannot be abandoned after report is confirmed. 313. Delay in determining whether or not proceedings shall be aban- doned. 314. Discontinuance or abandonment as to a part. 315. Experimental assessments. 316. Right of owner to improve property pending proceedings. 317. Discontinuance of public improvements. 818. Discontinuance of roads and streets. 319. Where no entry has been made. 320. Evidence of abandonment — Non-user. 321. Relocation. § 311. Proceedings may be abandoned. — An assess- ment of damages does not oiJerate as a payment, and, as possession cannot generally be taken before payment, it follows that the proceedings may be abandoned before con- summation ; and if the owner has never been disturbed in his possession, he cannot claim damages, nor can he force the sale on the condemning party. ^ A town, after an assessment of damages, has still the right to abandon the idea of taking the land. There may be hardship in com- pelling a land or mill-site owner to hold his property in entire uncertainty after an assessment, whether it will be taken or not ; but the inconvenience is of the same kind which attends all proceedings for the taking of land for public improvements, and which is incident to the owner- ship of property in a community, and especially in a city.^ Juries frequently award damages so exaggerated and enor- mous that the enterprise cannot profitably be carried out. Hence, on payment of costs,* proceedings may be discon- tinued, and the parties will be left in the same situation they were in before the commencement of the proceedings.* 491 § 311 OF ABANDONMENT OF PEOCEEDIxaS. The costs will embrace all the costs of the case, and counsel- fees.^ The owners of land have no vested right in the ver- dict of the jury.' A company may abandon proceedings even though it has taken possession, i)ending appeal, but the owner must be reimbursed for all damages occasioned by the occupancy and use; the sum deposited is a security for the payment of such damages when ascertained. The amount of compensation is not finally determined until the appellate court has acted, and the right of abandonment remains until such time.' A simple vote of a corporation to take land is not in itself a taking, so as to justify the owner in proceeding to collect the damages for a taking, as if the taking had already been completed.* The officers of a city cannot make a contract by which they shall deprive themselves of the exercise of discretion in discontinuing a street. Such agreements would be contrary to public policy.* No preliminary step prior to actual payment, or tender, so fixes the liability of the city as to prevent an abandonment. The fact that benefits had already been collected would not change the matter. No individual can compel the corpora- tion to persevere in an enterprise which, in the judgment of its legally constituted directors, would prove detrimental to the community.'" A portion of a projected street may also be abandoned, and the proceedings continued as to the remainder. ^^ Where, however, the proceedings are con- sidered as transferring the title before actual payment, the owner has a vested right to the compensation, for the reason that the public have a vested right to the property ;^* and he also has that right where a road has been opened once, and afterwards abandoned. Until the last step is taken to cause the divesting of the title from the owner, the proceedings may be discontinued.'^ It is not the judg- ment of confirmation that confers title, but actual payment or tender of compensation. Condemnation is always, in a sense, conditional ; when the amount is paid the property passes ; until such payment one party acquires nothing, and 492 OF ABANDONMENT OF PROCEEDINGS. § 311 "the other loses nothing. If the owner has suffered any losg by preliminary work, he is entitled to full comperisatiou "therefor, but not to the specific sum found by the inquest. When nothing prevents the attainment of complete justice, the party who has sought the condemnation should not be ■compelled to take land it does not want, nor the owner allowed to receive compensation for property in the posses- sion and ownership of which he has not been disturiied.^* After the owner has a right to surrender his property for compensation, the city cannot discontinue, and the mayor of the city may be compelled, by mandamus, to perform such a ministerial act as the filing of the description of the jDroperty with the registry of deeds, so as to complete the remedy of the owner. ^^ The company may dismiss the pro- ceedings pending an appeal, withdraw deposit, abandon all riarhts, and afterwards besrin another action to condemn the right of wiiy.i^ Where the charter provides that the award shall be paid or set apart in the treasury, and this is not done, the proceedings are, ipso facto, abandoned." 1 Stacey v. Vermont Central R. R., 27 Vt. 39; Stiles v. Middlesex, 8 Vt. 436; Martin a. Mayor of Brooklyn, 1 Hill, 545; Graff c. Mayor of Baltimore, 10 Md. 544; The State v. Central E. R., 17 Ohio St. 103; Dayton R. R. ■». Marshall, 11 Ohio St. 497; Black i). Mayor of Baltimore, 50 Md. 235. 2 Stevens v. Danbury, 53 Conn. 9. s North Missouri R. E. v. Lackland, 25 Mo. 515; Matter of Anthony St. 20 Wend. 618 ; Burlington E. E. o. Sater, 1 Iowa, 421 ; Eegina v. Commis- sioners of Rochdale Improvement Act, 2 Jur. N. S. (Q. B.) 861; Leisse v. St. Louis & Iron Mountain R. R., 2 Mo. App. 105. The court can de- termine upon what terms it may grant leave to a company seeking to con. demn lands, to discontinue its action. Its discretion is not limited to the payment of costs, Waverly Water Works Co. (Matter of), 85 N. Y. 478. * The State v. Hug, 44 Mo. 116; Matter of Syracuse E. E., 11 N. Y. Sup. Ct. 311; Rensselaer E. R. ■». Davis, 55 N. Y. 145; Rogers v. St. Charles, .3 Mo. App. 41. ' North Missouri R. R. v. Lackland, 25 Mo. 515. 6 St. Joseph V. Hamilton, 43 Mo. 282; Baltimore R. R. v. Ne.sbit, 10 How. 395. ' Denver R. E. v. Lamborn, 8 Col. 380. ' Lancaster v. Kennebeck Co., 62 Me. 272. 9 Martin v. Mayor of Brooklyn, 1 Hill, 545. 493 § 312 OF ABANDONMENT OF PROCEEDINGS. " The States v. Graves, 19 Md. 351; The State v. Keokuk,,9 Iowa, 438... " Curtis V. Portland, 60 Me. 55, 32 Wilkerson v. Buchanan County, 12 Mo. 328 ; Neal v. Pittsburgh E. R.,. 31 Pa. 19. " Military Parade Ground, 60 N. Y. 319. " Williams v. New Orleans E. E., 60 Miss. 689. i« Farnsworth v. Boston, 121 Mass. 173; Denver R. R. v. Jackson, 6 Col. 340; People v. Common Council, etc., T8 N.Y. 56. 1" Corbin v. Cedar Rapids Ey., 66 Iowa, 73. " Battleson v. City of Minneapolis, 33 Minn. 468. § 312. Proceedings cannot be abandoned after report is confirmed. — After a report of damages has been acted on or confirmed, the party commencing the proceedings for his own benefit cannot, because dissatisfied with the amount awarded, abandon the proceedings and become non suit,^ although he may at any time before the report is confirmed.^ It is the acceptance and confirmation of the report that fixes the rights of the parties.^ Until confir- mation, the court may recommit the inquiry. The report may be unsatisfactory in some particulars, and may be sent back for review, although satisfactory in most respects.* The report may show that the damages to be paid are so heavy that the improvement cannot be prudently entered upon, and in such case it is perfectly proper to discontinue the proceedings before the confirmation of the report.* In case any change occurs in the situation or condition of the property condemned, before accepting the report, there should be a new inquiry. If a bridge which had been con- demned is destroyed before the acceptance of the report, the report should be recommitted. Tiie public are not to pay for what does not exist. The title does not pass, or rights become vested, until the report is accepted.^ An award may be confirmed by lapse of the time in which an appeal may be taken, and then the proceedings cannot be discontinued.' Although a depo.sit has been made by the condemning party, pending an appeal by the owner, the proceedings may be discontinued. The money deposited does not belong to the land-owner who refused to accept it 494 OF ABANDONMENT OF PROCEEDINGS. § 312 and took his chances of appeal. By appealing, the questiofa of the amount of compensation is still left open, and dur- ing that time the company can abandon.^ "When the title does not pass until compensation is paid, the proceedings may be formally discontinued after a judgment has been ren- dered that on payment of damages an entry may be made. There could be no disturbance of the owners until title passed, which could only be on payment of the compensation.* Hence, execution would not be allowed on such judgments.^* In the case of First National Bunk v. West Eiver R. R. i"- the company had concluded the condemnation of the land of Brown, and deposited the compensation in bank; but, before the demand of the money by Brown, the railroad company was enjoined from constructing its road on tlie route leading across the lands of Brown, on a bill in chan- cery brought by other parties, alleging that the railroad company had no right to construct its road over the route where it had located its line. There was a motion to dis- solve the injunction ; but the company did not contest the matter further, and abandoned the work on, and the loca- tion of, their road over the land of Brown. The court held that the abandonment of the road was a virtual confession and establishment of the fact that the railroad company had no risht to locate and build its road over the lands of Brown, — not from an adjudication in the injunction pro- ceedings, but as the result of the facts conceded to exist. If, then, the company had no right to condemn, it acquired no title to the land, and the owner had no right to the de- posit. The entry on the land was a mere trespass, and for. that alone could damages be allowed. 1 Pollard V. Moore, 51 N. H. 188 ; Stafford u. Mayor of Albany, 7 Johns. 641; Lafayette v. Shultz, 44 lad. 97; Hupert v. Anderson, 35 Iowa, 579; Gear v. Dubuque R. R., 20 Iowa, 523 ; Jones v. Oxford, 45 Me. 419 ; Drath V. Burlington R. R., 15 Neb. 367; Mayor of Jersey City v. Gardner, 33 N. J. Eq. 622; People v. Common Council, etc., 78 N. Y. 66; Denver R. R. v. Lamborn, 8 Col. 380; Allen v. Williams, 33 N. J. Eq. 584. » Washington Parli, 56 N. Y. 145; Stevens v. Duck River Co., 1 Sneed,. 237; Matter of Canal St., 11 Wend. 154; The People «. Brooklyn,! Wend. 495 § 313 OF ABANDONMENT OF PROCEEDINGS. ^18; Dover St., 18 Johns. 506; Hudson River R. R. v. Cutwater, 3 Sandf. €89; Matter of Commissioners ot Jersey City, 31 N, J. L. 72. ^ Hawkins v. Rochester, 1 Wend. 63; Martin 'v. Mayor of Brooklyn, 1 Hill, 645; Matter of Rhinebeck R. R., 15 N.Y. Sup. Ct.34; Graff ». Mayor of Baltimore, 10 Md. 544 ; Ci ty. Praying for Opening Streets, 20 La. An. 497 ; Rossignac St., 4 Rob. (La.) 357. On confirmation ot report of appraise- ment, the option of the condemning party to abandon proceedings ceases. It li not necessary, in order to conclude the corporation, that the title to the laud should have become vested in it under the proceedings. It is sufficient if the right to acquire it on payment of the award is fixed, and "the duty of the corporation to pay the award is absolute. Matter of Rhinebeck R. R., 67 N. Y. 242. ^ Matter of Anthony St., 20 Wend. 618. 5 Matter of Canal St., 11 Wend. 154; The People v. Brooklyn, 1 Wend. 318; Starr o. Rochester, 6 Wend. 564; Gear v. Dubuque R. R., 20 Iowa, 523; St. Louis R. R. v. Wilder, 17 Kan. 239. « Farmer v. Hooksett, 28 N. H. 244. ' The People v. Syracuse, 20 How. Pr. 491. * Blackshire v. Atchison R. R., 13 Kan. 514. Contra, Crowner v. Water- town R. R., 9 How. Pr. 457. " Chicago V. Barbiau, 80 111. 482. Especially where there has been «rror in stating the title of parties. Chesapeake R. R. v. Bradford, 6 W. Va. 220. i" St. Louis R. R. V. Teters, 68 III. 144; Bloomington v. Miller, 84 111. €21. ' 11 49 Vt. 167. § 313. Delay In determining whether or not proceed- ings shall be abandoned. — There should be no unreason- able delay in determining whether or not the proceedings shall be abandoned.* The public authorities, in the ab- sence of any statutory provision to the contrary, have a reasonable time given them, after the ascertainment of the expense of the scheme, to decide whether to accept or re- fuse the land at the price fixed. ^ The owner may compel the condemning party to elect promptly whether or not they will abandon. =* In case of delay, damages should be allowed for trouble and expense, as the owner cannot know whether his land is to be taken or not, and is disturbed in its use.* There is a discretion in the court as to the fixino-, the terms on which the discontinuance shall be had.** Dur- ing the time of delay, the owner is entitled to the rents and profits," and the damages suffered.'' Among the dam- 496 OF ABANDONMENT OF PROCEEDINGS. § 313 ages should be the expense ia removing or building fences, or forbearance to cultivate land, when done on faith that the company would accept the route.* The rule would not cover a temporary depreciation in value of property pend- ing the proceedings.^ The owner cannot recover for labor, time, and expense in conducting proceedings on his part, nor his attorney's and witnesses' fees. There is no contract on the part of the company, and hence ho breach, and the action of the company is not tortious. i" The public must be held to a speedy and prompt termination of the proceed- ings. The fact of great delay, and abandonment, of the proceedings is prima facie evidence that they were unnec- essary, and, until fully justified by proof, must subject the corporation to the necessity of indemnifying the owner for injury resulting from such delay. ^ Should the delay con- tinue as long as four 3'ears, or to an unreasonable time, there should be a new valuation to cover enhanced value. The value is estimated as for immediate payment, and the condemning party cannot wait until the property has in- creased in value, and then claim the right to proceed and pay the first valuation. The court cannot permit delays in proceedings, any more than delays in payment of compen- sation.^ The owner, in case of delay, may move the court on the subject,'' and have the order for confirmation en- tered." If a corporation delay until the judgment is entered, they lose their election to abandon.^^ While proceedings are pending, the city council may suspend the proceedings temporarily, so that the presentation of the report would be irregular ;^° but an unreasonable delay would justify a confirmation of the report, or a new inquiry of damages. An abandonment of proceedings restores to the owner all his interest in the lots sought to be condemned. A sepa- rate action may be instituted for damages suffered which are the direct and proximate result of the condemnation proceedings, and the acts of the city under them." 1 Baltimore R. R. v. Nesbit, 10 How. 395; Stevens v. Danbury, 53 <;onn. 9. 32 497 § 314 OF ABANDONMENT OF PROCEEDINGS. 2 O'Neil V. Freeholders of Hudson, 41 N. J. L. 161. 3 The State v. Clacinnati R. R., 17 Ohio St. 103; Williams v. New Or- leans R. R., 60 Miss. 689. * Drury v. Boston, 101 Mass. 439; New Bedford v. Bristol, 9 Gray, 346 ; Gear v. Dubuque R. R., 20 Iowa, 523 ; Black v. Mayor of Baltimore^ 50 Md. 235. In Whitney v. Lynn, 122 Mass. 338, the street was laid out, but no entry made within two years from the time when the right of ac- tion accrued. The court hold that, under a statute allowing " full in- demnity for the trouble and expense " to which an owner has been put by the commencement and subsequent abandonment of proceedings, there cannot be an allowance for "vexation, disquietude, annoyance, or uncertainty," but only the trouble from which some material or pecuni- ary injury results, involving labor and the expenditure of time, or occa- sioning inconvenience to the owner in the use and occupation of the land ; all of which may be estimated in damages by a standard common to all cases. But mental troubles, so difficult to estimate by any pecuni- ary standard, and which may vary in different individuals, according to their temperament or health, do not come within the meaning of the statute, and are not the subject-matter of damages. 6 WashingtoQ Park, 56 N. Y. 145. « Hamersley v. New York, 56 N. Y. 533; Detmold v. Drake, 46 N. Y. 318; McLaughlin v. Municipality, 5 La. An. 504. ' Stevens v. Duck River Co., 1 Sneed, 237. 8 Gear v. Dubuque R. R., 20 Iowa, 523. ' Mallard. u. Lafayette, 6 La. An. 112. i» Bergmans. St. Paul R. R., 21 Minn. 533. ^' McLaughlin v. Municipality, 5 La. An. 504. Here the proceedings- were delayed eighteen months, and were twice abandoned, and the owner was deprived of rents of buildings in process of erection, which he sus- pended to await the termination of the proceedings. '2 Bensley v. Mountain Water Co., 13 Cal. 306; Warren v. St. Paul R. R., 18 Minn. 384. ^ Hudson River R. R. v. Outwater, 3 Sandf. 689. " Matter of RhinebeckR. R., 15 N. Y. Sup. Ct. 34. 16 Duncan v. Louisville, 8 Bush, 98. " Common Council of Brooklyn, 12 N. Y. Sup. Ct. 175. " Van Valkenburgh v. Milwaukee, 43 Wis. 574. § 314. Discontinuance or abandonment as to a part. — Although a certain portion of land is described in a petition as necessary for the construction of the improvement, a certain portion may be left out if not needed. The con- demning party is not estopped by the allegation in the peti- tion as to the quantity of land to be taken, when it& engineer is of opinion that a less quantity would be suffi- 498 OF ABANDONMENT OF PBOCEEDINGS. § 315 cient.i Again, the power of condemnation extends only to property necessary for the public use, and if a less quantity will suffice, the condemnation of more will not be justified. Where the greater portion of a railroad is constructed and in operation, it will not be presumed that the part not con- structed is abandoned. But where there is not a single fact to show an intention, to resume work on the part not constructed, the company will be held to have aban- doned that part.^ 1 Peoria R. E. v. Bryant, 57 111. 473. 2 Central Iowa Ey. v. Moultoa Ey., 57 Iowa, 249. § 315. ExperimentaL assessments. — A corporation au- thorized to condemn land may make experimental surveys^ but cannot institute experimental suits at law to determine amounts of damages by various routes. When a location is made, either party may institute proceedings to assess damages, and the company cannot withdraw.^ The state may go so far as to assess damages and order the road to be opened, without paying damages, but before the road is actually opened the damages should be paid.^ In the case of Kogers v. St. Charles,* the court severely condemns the practice of municipalities in having recourse tentatively to a number of juries, and in rejecting such findings as are not thought reasonable, and fastening upon and holdingthe citi- zen to the first one which places an estimate on the value of the property sufficiently low. The court further say : " We cannot perceive what possible advantage can arise from the constitutional declaration that private property shall not be taken for public use without just compensation, if the state, or any of its deputies, exercising the right of eminent domain, may cause as many inquests as it pleases of the value of the property to be condemned, and set aside as many of them as it sees fit, until one is found sufficiently small to suit its notions of a just compensation, and to de- clare it to be so. Of course, this permits one of the parties to a controversy to determine a judicial question in his own 499 ^316 OF ABANDONMENT OF PROCEEDINGS. fiivor, and compels the other party to submit to the decis- ion." Proceedings maybe abandoned, but " in such cases, however, the party exercising, by delegation, the tremen- dous power known as the right of eminent domain must act in good faith. The exercise of this right can only be justi- fied on the ground of the necessity of the particular prop- erty for the public use. To allow the state, or any deputy of the state, to pronounce a particular piece of property necessary or unnecessary, according to the terms on which it may be possible to acquire it ; to enable the state, or any corporation, to be the sole judge of the due correspondence between the property and its variously estimated value ; to cause a thousand estimates to be made, and to have the un- restricted right of rejecting, toiies quoties, every estimate which did not suit its views, would l)e thought an extrava- gant idea of arbitrary power if it were imagined in u satire. But if the purpose, instead of being abandoned in good faith, is merely modified so as to make the party exercising the right of eminent domain to take the chances of a ver- dict of another jury, the first proceedings are a flat bar to such a course, and this for the sufficient reason that any other rule would work monstrous oppression and spolia- tion. We do not mean to say that there may not be, on the part of municipal or other corporations, an abandon- ment of a particular project in a given year, let us say in the year 1870, and in the year 1874 a revival of the same measure. What we do mean to say- is, that such a cor- poration shall not, under the color of this power, set at naught the constitutional provision that just compensation shall be made for all private property taken for public use." 1 Neal V. Pittsburg R. R., 2 Grant Cas. 137. ' Parham v. Justices, 9 6a. 341. => 3Mo. App.41. § 316. Kight of owner to improve property pending proceedings. 1 — Owners have a right to improve their own property, notwithstanding a liue of public improvements 500 OF ABANDONMENT OF PKOCKEDING8. § 317 has been marked out, unless such improvements were made in gross bad fuith.^ In case of improvements made, the company must pay for the enhanced value, ^ and the same rule would cover enhancement in value arising from other causes, during the time of delay.* 1 See also, ante, § 148. 2 Sherwood v. St. Paul E. E., 21 Minn. 122. ' St. Paul E. E. V. Murphy, 19 Minn. 500; Winona E. E. v. Denman, 10 Minn. 367; Hursh v. St. Paul E. E., 17 Minn. 439. * Warren v. St. Paul E. E., 18 Minn. 384. § 317. Discontinuance of public improvements. — There is no contract with surrounding property owners that a public improvement shall always exist as at present ; and no damages will be allowed for its discontinuance, notwith- standing improvements may have been made on the suppo- sition that they will remain, and notwithstanding property has been thereby enhanced in value. ^ If the property is used for a certain public purpose, — as, for drainage, — for which monthly damages are paid, the damages would cease as soon as the public use ceased, and the owner could not claim as on a contract to continue to use.^ On the discon- tinuance of a railroad, the fee reverts to the owner, and the railroad cannot recover back the amount paid for right of way ; nor re-occcupy, after abandonment, without further proceedings. It would be unjust to give the owner back the land, subject to a right in the railroad to re-enter.^ There can be no claim of damages resulting from the deprivation of the use of a plank road which has been condemned for the use of a railroad. That inconvenience is common to the entire community, and similar in character to that aris- ing from an abandonment of the road, for which no dam- ages could be claimed. The owner should be allowed damages for the expense of a private way from his prem- ises to the public highway, rendered necessary by the occu- pation of the plank road by a railroad company. The use of the land by the railroad would not admit of a use as a road by the adjoining owner.* Where a railway company 501 4 318 OF ABANDONMENT OP PROCEEDINGS. ■discontinues its route a laud-owner has no right of action unless the depreciation iti the value of the property was special and peculiar to the party complaining, not shared by the other members of the community.^ 1 Brooklyn Park v. Armstrong, 45 N. Y. 234; Stiiber's Bead, 28 Pa. 199; Mayor v. Hopkins, 13 La. 326; Kinealy v. St. Louis Ry., 69 Mo. 658. 2 The State v. Administrator of Public Accounts, 26 La. An. 336. 3 Hastings v. B. & M. R. R., 38 Iowa, 316. 4 Brainard v. Missisquoi E. R., 48 Vt. 107. s Kinealy v. St. Louis Ry., 69 Mo. 658. § 318. Discontinuance of roads and streets. — Damages for discontinuance of a highway may be allowed to one whose only communication was by a private way into the road thus discontinued,^ or whose only means of ingress and egress was by such highway.^ No damages will be al- lowed for the discontinuance of a highway which was not legally laid out,' or had not been opened,* or had not been used for twenty years.* No damages will be allowed to an ■owner of land not abutting on the wav discontinued, whose land is accessible by other ways,* and to whom the way dis- continued was simply convenient, and although the dis- continuance iujuriously affected the value of the property.' The same rule would also apply to the discontinuance of a bridge.^ The land-owner cannot recover for the vacation of a portion of the road not adjoining his lands. The va- cation is a matter of public policy. There is a distinction between the right to use an existing highway and a right to its continuance. The latter is entirely under the public control.^ A discontinuance of a public way is legal, not- withstanding there was no determination as to damages, iind no previous action taken upon that subject.^" If the owner has advanced money to secure the construction of the road, the road cannot be abandoned without refunding the money. ^^ One desiring to enjoin the vacation of a street must establish the fact that he has rights which will be abridged by such vacation. ^^ 1 Petition of Concord, 50 N. H. 530; Candia u. Chandler, 58 N. H. 127. 502 OF ABANDONMENT OP PROCEEDINGS. § 319 ' Butterworth v. Bartlett, 50 Ind. 637; Candia v. Chandler, 58 N. H. 137. ' Perry ». Sherborn, 11 Gush. 388. * The People v. Griswold, 2 N. Y. Sup. Ct, 351; The People v. Com- mlssioners of Highways, 1 N. Y. Sup. Ct. 193. The first case was, on -appeal, affirmed, the court holding that the discontinuing of old roads applies to such roads as have been opened and used, and not to such as have been newly laid out and are not yet opened. Old roads are to be •discontinued when they have " become useless and unnecessary." The .finding of the jury as to the necessity at the time of laying out the road is conclusive, and cannot be defeated by the discontinuing of the highway "before it is opened. The People v. Griswold, 67 N. Y. 59. ^ Eames v. Northumberland, 44 N. H. 67. « Castle V. Berkshire, 11 Gray, 26; Smith v. Boston, 7 Cush. 254; JFearing ?). Irwin, 65 N. Y. 486; Coster ij. Albany, 43 N. Y. 399; The State V. Snedeker, 30 N. J. L. 80. ' The People v. Board of Supervisors, 20 Mich. 95; Jackson v. Jack- ;Son, 16 Ohio St. 163; Barr v. Oskaloosa, 45 Iowa, 275. ' Coster V. Albany, 43 N. Y. 399. 9 Brady v. Shinkle, 40 Iowa, 576 ; Polack v. Trustees, 48 Cal. 490. !» Hicks V. Ward, 69 Me. 436. ^1 Brown v. Bridges, 36 Iowa, 279. 12 Sawyer v. Meyer, 45 Iowa, 152. § 319. When no entry has been made. — The ancient rule was, that when a street had been laid out the damages were due, although no entry had been made for the purpose of construction. 1 The rights of the parties were considered as fixed by the laying out, although the highway was forth- with discontinued, or was never, in fact, opened.^ The easement taken was presumed to be perpetual, and the ■chance that it would be discontinued very remote, and hence mandamus would be sustained to compel the payment of the money.' This gave the owner damages although not disturbed ; and further, gave him the land after the discon- tinuance.* To remedy this hardship on the public, statutes were passed restricting the damages in such cases to those actually suffered, and that no damage should be paid unless the land was actually taken. The owner could appeal from the award, and have an assessment by jury, although his land had not been taken. Under the statute, the award is a judgment on which execution is stayed until the land is 503 § 320 OF ABA3SrDONMEKT OF PROCEEDINGS. actually taken ,* A location of a railroad may be abandoned , and a deed tendered to the owner, but this will not bar the recovery of all damages, but the fact may go in mitigation of damages.^ J Shaw V. Charlestown, 3 Allen, 638. 2 Hallock V. Franklin, 2 Mete. 558; Cloughu. Unity, 18 N. H. 75; Shaw V. Charlestown, 3 Allen, 538; Willey v. Epping, 16 N. H. 58; Kent v. Wal- lingford, 42 Vt. 651; Battles v. Braintree, 14 Vt. 348. 8 Harrington's. Berkshire, 22 Pick. 363; Kirtland o. Meriden, 39 Conn. 107. * Clark V. Hampstead, 19 N. H. 365. " Harding 17. Medway, 10 Mete. 465; Lacroix v. Medway, 12 Mete. 123; Clark V. Hampstead, 19 N. H. 365. « Pinkerton v. Boston R. R., 109 Mass. 527. § 320. Evidence of abandonment — Non-user. — That a track, once used as a main track for a railroad has been superseded by another track, leaving the old track to be used as a switch, does not operate as an abandonment of the old track, and it cannot be taken up against the will of the company.-' The fact of abandonment may be shown^ to defeat the recovery of damages over and above the amount paid, where the owner has applied to increase dam-- ages.^ The grantee of a right of way does not lose his right by non-user. The grant is as of an easement by deed, which is not lost by non-user.^ If the railroad company abuses its franchise, and does not keep the railroad in opera- tion, the legislature may interfere, or the corporation be controlled in a direct proceeding,* but not at the suit of the owner of the land taken. ^ The question of abandonment- of a right of way is one of fact and no general rule can be laid down.^ If land condemned by a company is abandoned after the payment of compensation, and is condemned by a second company the damages awarded in the latter case be- long, not to the original owner but to the company which first condemned the land, its successors or assigns,' 1 Columbus c. Columbus R. R., 37Ind. 294. 2 Hastings v. B. & M. R. R., 38 Iowa, 316. » Washb. on Ease. C40; Barlow v. Chicago R. R., 29 Iowa, 276; Noll D.- Dubuque R. B.,32 Iowa, 66. 504 OF ABANDONMtENT OF PKOCEEDINGS. § 321 < Noll V. Dubuque K. H., 32 Iowa, 66. 5 Hamilton v. Annapolis R. E., I Md. Ch. 107. * Central Iowa Ey. v. Moulton Ey., 57 Iowa, 249. ' Dubuque Ey. •». Diehl, 64 Iowa, 635. §321. Relocation. — - Actual damages only are to be paid on a relocation, — that is, the excess of damages suffered in consequence of the new road over that of the old road. If the damages fall below that, no judgment could be given for damages.^ • Jewett V. Israel, 35 Iowa, 261. 505 § 322 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. OHAPTEK xxyn. I OP PROCEEDINGS SUBSEQUENT TO THE ASSESSMENT OF DAMAGES — APPEALS AND REVISION OF PROCEEDINGS. § 322. Right to appeal. 322c!. From what an appeal lies — Subject-matter. 323. Errors to be taken advantage of by appeal. 324. Waiver of irregularities in proceedings. 325. Waiver of right of trial by jury. 326. Errors waived by condemning party. 327. Timely objection to irregularities. 328. Claim of damages. 329. Receipt of damages. 330; Failure to find damages — A judgment. 331. ilfaradfflmtss to compel finding. 332. Subsequent proceedings do not cure former defects. 333. Certiorari. 334. Deed to condemning party — Obtaining possession. § 322. Kiglit to appeal. — In ordinary cases either party may appeal. Tiiat is a proper method of ascertaining what is the just compensation.^ The action of the inferior tri- bunals may be made final and conclusive, so that no appeal will be permitted.^ The action of the court in the appoint- ment of viewers,^ the report of the commissioners as to the expediency and necessity of roads and improvements,* or on the amount of damages,* or as to whether a sufficient mill- yard is left, where the statute exempts mills, and part of a mill-yard is taken, ^ may all be made final. The remedy is statutory, and the result may be made final, so that there is no appeal.' The mere silence of the act on the subject of appeals, or failure to provide for appeals, will not exclude an appeal as in ordinary cases .^ The legislative provision prohibiting appeals would not preclude a resort to other methods for the correction of the finding where irregularity, mistake, or fraud have interfered.' The remedy for an abuse of discretion, where no appeal is allowed, is by cer^i- 506 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. § 322a orari or writ of error. ^^ In case the owner appeals, he should not be compelled to give bond.^^ 1 Lee V. North-Western R. R., 33 Wis. 222; Montgomery Ry. v. Sayre, 72 Ala. 443; Towanda Bridge Co. (in re), 91 Pa. St. 216. 2 lu Maryland, the legislation relating to eminent domain allows no appeals. West Maryland R. R. v. Patterson, 37 Md. 125; Wilmington R. R. 1!. Condon, 8 Gill & J. 443. In Texas, the proceedings may be final, being considered as in the nature of a proceeding in rem. Smith v. Tay- lor, 34 Texas, 589. Doubted in North Missouri R. R. u. Lackland, 26 Mo. 515; Brown v. Philadelphia R. R., 58 Md. 639; Cumberland R. R. ■». -Pennsylvania R. R., 57 Md. 267. 3 Hannibal R. R. u. Morton, 20 Mo.- 70. * McCrory v. Griswold, 7 Iowa, 248; Wilmington Canal Co. v. Domln- /guez, 60Cal. 606; Commissioners' Courts. Bowie, 34 Ala. 4C1; Hill t). Bridges, 6 Port. 197; Shattuck v. Waterville, 27 Vt. 600; West River Bridge v. Dix, 16 Vt. 446 ; Harwinton v. Catlin, 19 Conn. 520 ; In re Fowler, 63 N. Y. 60; The People v. Collins, 19 Wend. 66; The People v. Van Al- styne, 32 Barb. 131; The State i). Justice, 24 N. J. L. 413; Hanson «;. Lafayette, 18 La. 296. * New Britain v. Sargent, 42 Conn. 137. 6 The People v. Kingman, 24 N. Y. 559. ' Western R. R. v. Dickson, 30 Wis. 389; Kranier v. Cleveland R. R., S Ohio St. 140. 8 Bridge v. New Hampton, 47 N. H. 151. ' Garrison v. New York, 21 Wall. 196; Harwinton v. Catlin, 19 Conn. 620. i» The People v. Collins, 19 Wend. 66 ; Palmer Co. v. Ferrill, 17 Pick. 58. " Nebraska R. R. ■». Van Deuson, 6 Neb. 160. See, also, § 136. § 322a. From wliat an appeal lies — Subject-mat- ter. The overruling of a motion to set aside an award of commissioners is such a final determination as will authorize an appeal. ^ An appeal does not lie to re- view questions of fact passed upon by the commis- sioners after hearing testimony and viewing the land,^ on appeal the whole matter may be tried de novo.^ An appeal is not allowable from interlocutory rulings, but only from final judgments.* Where the circuit court con- firms the verdict of the jury, the appellate court has jurisdiction of an appeal from that judgment. * There is no appeal from an order refusing to dismiss an appeal from the award of the commissioners in condemnation proceed- ings. ^ An order condemning land for the use of a railroad is 507 § 323 PKOCEEDINGS SUBSEQUENT TO ASSESSMENT. a final order and appealable ; ' and an order refusing to set aside an order condemning land for use of a railroad com- pany is a final order and is appealable.^ "Where the con- demnation is complete and final nothing can be reviewed on appeals but the amount of the award.' When one or more of several defendants appeal from award of dam- ages and such appeal is sustained and a new trial ordered, such new trial shall be as to all the defendants and not. merely those who took the appeal.^" 1 Denver E. K. v. Jackson, 6 Col. 340. 2 Matter of New York R. R., 99 N. Y. 388. ' Sedalia v. Missouri Ry., 17 Mo App. 105; Wooster v. Sugar Kive~^ E. E., 57 Wis. 311. * American Telegraph Co. v. Wilmington R. R. Co., 83 N. C. 420. « Tracy c. Blizabethtown E. E., 78 Ky. 309. 8 Minnesota E. E. v. Peterson, 81 Minn. 42. ' Wisconsin E. E. v. Cornell University, 49 Wis. 163. 8 Milwaukee R. E. v. Strange, 63 Wis. 178. New York Ey. (matter of), 94 N. Y. 287; Gerrard v. Omaha R. R., 14 Neb. 270. w State V. Gill, 84 Mo. 248. § 323. Errors to be taken advantage of by appeal. — The validity of a condemnation, or the question whether or not the land was necessary, cannot be called in question in a collateral proceeding. Errors complained of should be corrected by appeal ^ or cer^eorarz,^ and not inequity.* Otherwise, a corporation would have no assurance that the steps taisen would conclude any one, and they would be constantly subjected to vexatious litigation.* Errors in adjudication which are merely voidable, and do not render the adjudication void, cannot be availed of by the public after action has been taken. The only remedy is by ap- pealing from the adjudication.* In an action by a tenant for life for the sum awarded as damages to her, the town cannot show that there was error in awarding the entire sum to the tenant for life, instead of to the tenant and re- versioner jointly. Such an error should have been reme- died by an appeal from the award.* It cannot be shown in_ 508 PEOCEEDINUS SUBSEQUENT TO ASSESSMENT. § 323 a collateral action for damages that commissioners, in their original report had been misled by misrepresentations of the railroad company as to the manner in which the road would be built.^ The question of the adequacy of damages is to be remedied by appeal, and not by certiorari} An injunction is not a proper method of correcting errors in proceedings. An injunction is in that case a collateral pro- ceeding. By appealing from an appra:isement, the only question left is the adequacy of the damages.' A direct action to set aside an award will not be sustained where an appeal is allowed, and it is not alleged that an appeal was prevented by fraud, collusion, accident, or mistake.^" Where the irregularity of the proceedings is the ground of objection, the claimants will not be permitted to resort to the remedy of injunction, but will be confined to an appeal ; or, if the proceedings are so erroneous as to be reversible, to a petition in error; unless, indeed, special circumstances of fraud, accident, mistake, or the like, are shown." 1 Hamilton v. Annapolis R. R., 1 Md. Ch. 107; Evans v. Haefner, 29 Mo. 141; Clement v. Burns, 43 N. H. 609; The State v. Richmond, 26 N. H. 232; Crise v. Auditor, 17 Ark. 572; Ney v. Swinney, 36 Ind. 454; Ga- lena R. K. V. Pound, 22 111. 399; Clark v. Drain Commissioners, 50 Mich. 608. In a collateral proceeding, — as, an indictment for obstructing a highway, — the presumption is in favor of the validity of the establish- ment of the road; that the viewers had taken the proper oath; that no- tices had been properly given ; that the petitioners were legal voters, and that jurisdiction had been acquired. Henline v. The People, 81 lU. 269. 2 Van Steenbergh v. Blgelow, 3 Wend. 42. 3 Northern Central Coal Co. v. Coal and Iron Co., 37 Md. 537. Invalid proceedings are not a cloud upon title, to be remedied in equity. Ewing V. St. Louis, 5 Wall. 413. * Secombe v. Railroad Co., 23 Wall. 108., 6 True V. Freeman, 64 Me. 673. "> Sparhawk v. Walpole, 20 N. H. 317. I Butman v. Vermont Central R. R., 27 Vt. 500. 8 The State v. Hulick, 33 N. J. L. 307; Johnston v. Rankin, 70 N. C. .550. » Ney V. Swinney, 36 Ind. 454; Phillips v. Watson, 63 Iowa, 28. w The People v. Wasson, 64 N. Y. 167. " Frevert ■». Frifrock, 31 Ohio St. 621 ; McClelland v. Miller, 28 Ohio :St. 488^. 509 §§ 324, 325 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. § 324. Waiver of Irregularities in proceedings. — The owner may waive irregularities in the statutory proceed- ings, and thus lose his right to resort to his common-law remedies of trespass "and ejectment. If he makes his only- contest upon the question of damages, and obtains an in- crease of damages, he cannot afterward maintain an action for occupation.^ An endeavor on the part of the owner to obtain an assessment on an increase of damages is a waiver of irregularities. The owner cannot claim damages for the taking, and at the same time say the land was not taken. ^ Exceptions to form of petition for a jury or to irregulari- ties in summons cannot be taken after verdict,^ especially if the party is present and does not specifically object.* The parties must preserve their objections, so that the record shall show them.* An objection that the commissioners did not report especially whether any yard, garden, orchard, or any part thereof, was taken by the establishment of the road, will be waived if timely exception is not taken.* Fil- ing a remonstrance to a petition, without objecting to the insufficiency of the petition, waives objections as to its suffi- ciency.^ An appeal cures the objection that no notice of the meeting of commissioners was given.* 1 Jordan v. Haskell, 63 Me. 193; Republican Valley R. R. v. Hayes, 13 Neb. 489; Boston Ry. (matter of), 79 N. Y. 64; Bridgeport v. Eisenman, 47 Conn. 34; Hatch v. Hawkes, 126 Mass. 177; Rettinger v. Passaic, 45 N. J. L. 146; Rheiner v. Union Depot Co., 31 Minn. 289. 2 Piukham v. Chelmsford, 109 Mass. 225. 3 Thayer v. County Commissioners, 10 Cush. 151 ; Merrill u. Berkshire, 11 Pick. 269. * The People v. Commissioners of Greenbush, 24 Wend. 367. " Walker v. Boston R. R., 3 Cush. 1. 6 Jeter v. Board, 27 Gratt. 910. ' Sowle V. Cosner, 56 Ind. 276. « The State v. Pond du Lac, 42 Wis. 287. § 325. Waiver of right of trial by jury. — The right of trial by jury, whether considered as preserved in condemna- tion cases by the constitution or prescribed by statute, is of such a nature that it may be waived. As, for instance, in Massachusetts, the owner desiring a jury must apply for 510 PKOCEEDINGS SUBSEQUENT TO ASSESSMENT. § 326 the issue of a jury-warrant ; otherwise, he will be presumed to have abandoned his right to a jury.^ A railroad com- pany, asking for a change of venue, waives the right to a Jury of view, for the reason that one court cannot send its jury into another county.^ 1 Thorndyke v. Norfolk, 117 Mass. 566. 2 Rockford R. R. v. Coppinger, 66 111. 610. § 326. Errors waived by condetnning party. — If a proceeding for condemnation has gone on and been con- summated, the town, city, or party condemning cannot take advantage of such errors in the preliminary proceedings as failure to give notice, or to include names of all owners in the laying-out,^ or any error which was known during the progress of the trial,^ or that damages were excessive,* or that damages were assessed in an unconstitutional manner, when the corporation had accepted and acted on the legis- lation.* The corporation cannot object that the preliminary proceedings are informal and iriegular, when the owner has appealed from the report of the commissioners, which report was, on application of the condemning party, con- firmed.* The corporation cannot object that the structure was not made by competent authority, or that the proper preliminary proceedings had not been had, including the consent of the selectmen.® The rule would not apply t» cases where towns are really adverse parties to the proceed- ings, as where a town may resist the laying-out of a high- way as unnecessary. In such a case the town is not prop- erly a condemning party, and may except to errors in the proceedings, and may also appeal.' Errors of power or jurisdiction cannot be waived by the condemning party .^ Unless question of unconstitutionality of act is raised in the trial court, or by bill of exceptions, it cannot be con- sidered in the appellate court.' 1 Haskell v. Bristol, 9 Gray, 341; Stafford v. Albany, 6 Jolins. 1. " Flagg V. Worcester, 8 Cush. 69. » B'etts V. New Hartford, 25 Conn. 180. * The People v. Murray, 6 Hill, 468. 511 §§ 327, 328 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. 5 St. Joseph R. R. v. Orr, 8 Kan. 419. 6 Parker v. Boston R. R., 3 Cush. 107. ' Inhabitants of West Newbury v. Chase, 5 Gray, 421. » Cuyler v. Rochester, 12 Wend. 165; Ward v. Union R. R,, — 111. — (1887). 9 Tompkins v. Augusta R. R. Co., 21 S. C. 420. § 327. Timely objection to irregularities. — The party affected must make timely objection to errors, or they will be deemed waived. The fact that the matter had beea re- ferred to arbitrators cannot be raised on appeal, after a regular proceeding has been had.^ When parties introduce evidence on one theory of a case, they cannot afterward, on appeal, claim that their theory was erroneous. The time of objection should have been at the time of introduc- ing the evidence, or of giving the instructions to the jury, so that the other party could have accommodated himself to the evidence produced and the issues presented. ^ If objections exist, and the owner does not bring them forward at the first opportunity he will be estopped from entering on the inquiry at the time of later proceedings.^ ' Field V. Vermont R. R., 4 Cush. 150. 2 Kankakee R. R. v. Chester, 62 111. 235. 3 Cooper ■». Mayor of New York {in re, etc.), 93 N. Y. 507. § 328. Claim of damages. — The prosecution of a claim for damages, without exception to errors of form, will estop an owner from taking advantage of such defects, in case the allowance proves unsatisfactory to him.^ The owner can- not prosecute a claim for damages, and at the same time contest the utility of the road.^ If the proceedings are void, and the owner claims greater damages than have been awarded to him, such claim cannot be regarded as a waiver of irregularities, unless the party could, in those proceed- ings, have raised or taken the objection that the prior pro- ceedings were void. A party cannot waive unless he has also an opportunity of insisting on his rights. Objecting to the sum offered as damages, and accepting the damages awarded, are acts widely different.^ Filing a claim for 512 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. § 329 "damages does not waive errors constituting a failure to ob- tain jurisdiction.* 1 Weaver's Eoad, 45 Pa. 405. 2 Fisher v. Hobbs, 42 Ind. 276; Smith v. Alexander, 24 Ind. 464. » Seifert V. Brooks, 34 Wis. 443. * Johns V. Marlon County, 4 Ore. 46. § 329. Receipt of damages. — After receiving damages, parties cannot be heard against the validity of proceedings,^ or appeal from the same,^ although they may be in fact erroneous.^ A receipt of part of the damages, which part was the proper share of the proceeds from mortgaged premises, and acquiescence in the use, will operate as a waiver of irregularities. It does not signify thait the dam- ages were not paid directly to the claimant, but to his' brother, the mortgagee, if the claimant actually received the money as his share of the damages.* The receipt of dam- ages waives the question of the authority of the company to condemn outside of the limitations of the charter. Con- demnation and receipt of damages operate as a conveyance. The individual cannot take the money, and reclaim the prop- erty because the company could not condemn or buy the land. The slate may institute proceedings against the com- pany for taking more land, or other land, than that allowed by the charter, but the individual who has received pay- ment of damages cannot.^ Where money awarded in a con- demnation proceeding has been paid to a party having the apparent title, and another, claiming an interest in the land which has been condemned, exhibits his bill in chancery to set aside the title under which the former claimed, and asserting claim to a portion of the condemnation-money thus paid, this will be such an acquiescence in and ratifica- cation of the award as will render it conclusive in respect to the interest so claimed in the bill, and will waive questions of irregularities in filing reports, etc.^ 1 relch V. GUman, 22 Tt. 38 ; Hitchcock v. Danbury E. K., 25 Conn. 616; Hawley ». Harrall, 19 Conn. 142; Embury v. Connor, 3 N. Y. 611; Town V. Blackbury, 29 111. 137; Karber v. Nellis, 22 Wis. 215; Kile v. Yel- 33 513 § 330 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. lowhead, 80 111. 208; Chatterton v. Parrott,.46 Mich. 432; Baltimore R^ E. V. Johnson, 84 Ind. 420; Hatch v. Hawkes, 126 Mass. 177. 2 Mississippi E. E. v. Byington, 14 Iowa, 572. ' Eees V. Chicago, 38 111. 322. * Whittlesey v. Hartford E. E., 23 Conn. 421. '^ Burns v. Milwaukee E. E., 9 Wis. 450; Dodge v. Burns, 6 Wis. 514. 6 Chicago E. E. v. Chamberlain, 84 111. 333. § 330. Failure to find damages a judgment. — In order to give a foundation for an appeal, a judgment must be ren- dered. If the commissioners make no adjudication whether or not damages have been sustained, such action is, in ef- fect, an adjudication that no damages have been sustained, and the party objecting may appeal as from a judgment. '^ It is proper to report that no damages have been allowed, but no mention is equivalent to an adjudication that there are no damages. ^ It is proper to report the names of owners, and if they are unknown, to certify that fact,^ but a failure to do so operates merely as a judgment of no dam- ages. It should appear that each claimant's rights had been adjudicated upon, but the owner's name need not be mentioned, except that he was one of those to whom no damages were awarded.* In New Jersey, there must be a return of no damages, so that the owner can appeal ; other- wise, the report will be set aside.' If the damages appear to be nominal or infinitesimally small, there may properly be a return of no damages.® Failure to find damages would not be a finding that the damages and benefits were equal, under a statute requiring a finding of the excess of either benefits or advantages, and that when the damages and benefits were equal, a finding of that fact.' 1 Howland v. Commissioners, 49 Me. 143; Monagle v. Bristol, 8 Cush. 360; Sisson c. New Bedford, 137 Mass. 255; Cambridge v. County Com- missioners of Middlesex, 117 Mass. 79; Goddard v. Worcester, 9 Gray, 88; Smith v. Boston, 1 Gray, 72; Point No-Polat Eoad, 2 Serg. & E. 277. 2 Hildrethi!. Lowell, 11 Gray, 345; Inhabitants of North Eeading v. County Commissioners, 7 Gray, 109; Grangers. Syracuse, 38 How. Pr. 308 ; Be Duke of Beaufort and Swansea Harbor Trustees, 29 L. J. (C. P.) 241. 2 The Commonwealth v. Great Barrington, 6 Mass. 492. 514 PROCEEUIXGS SUBSEQUENT TO ASSESSMENT. §§ 331, 332 * Granger v. Syracuse, 38 How. Pr. 308. 5 The State v. Cooper, 23 N. J. L. 881 ; The State v. Everltt, 23 N. J. Xi. 378. 6 Bradby v. Southampton Board of Health, i El. & Bl. 1014, ' Pettis V. Providence, 11 E. I. 372. § 331. Mandamus to compel finding'. — The office of a mandamus is to require a tribunal of special, particular, or inferior jurisdiction to take cognizance of a case properly brought before it, and to decide upon it one way or the other,^ not to revise the decision of such a tribunal on its merits. A refusal to give damages may be appealed from, and a mandamus will not lie to compel the tribunal to take further action.^ If the tribunal has a further duty to per- form, such as issuing a warrant to a jury, it may be com- pelled by maTicZamws to issue such warrant.^ If the owner obtains a mandamus to compel a public officer to institute an inquiry of damages, the railroad company cannot be called on to pay the costs incurred in making the applica- cation.* In order to entitle the petitioner to i. mandamus, it is desirable that a. direct refusal, or something equivalent, should be shown.* 1 The People ■». Cortelyou, 36 Barb. 164; The People v. Lake County, 33 Cal. 487; Eegina v. Sheriff of Middlesex, 5 Q. B. 365; 3 Q. B. 744. 2. Smith V. Boston, 1 Gray, 72; Goddard u. Worcester, 9 Gray, 88. 5 Carpenter v. Bristol, 4 Pick. 258; Smith v. Boston, 1 Gray, 72. * Eegina v. Sheriff of Middlesex, 5 Q. B. 365. 6 Eegina v. Wilts & Berks Canal, 8 Dowl. 623. § 332. Subsequent proceedings do not cure former defects. — An entry on land which is not condemned is a trespass, and this trespass is not cured by the fact that the entry was made under proceedings for condemnation sup- posed to have been perfect, and that subsequent valid pro- ceedings have been instituted and perfected. There is no reason for holding that the condemnation would relate back to the inception of the invalid proceedings. ^ Eelation is allowed to prevent injustice where a previous right existed^ but no right to enter can exist until damages are paid. Although the former proceedings were defective, and were 515 § 333 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. enjoined, yet that would not prevent subsequent valid pro- ceedings.^ 1 Powers t). Hurmert, 51 Mo. 136; Hooper n, Bridgewater, 102 Mass. 512. See, also, ante, § 90. 2 Peck V. Van Eensselaer, 8 Blackf. 312. § 333. Certiorari. — The office of a certiorari is to bring up proceedings of a lower court, generally one of inferior jurisdiction, such as commissioners' courts, boards of alder- men,^ etc., that they may be either affirmed or quashed, and not to enforce any right,^ or to correct errors of fact,^ or to try title.* The original record must be brought up, and the certiorari is directed to the officer having custody of the record.^ Irregularities in proceedings of commissioners are to be remedied by certiorari, and not by application for a jury, or by taking an appeal. Either of those courses admits the regularity of the proceedings.^ The appellate court is to decide whether the inferior tribunal had juris- diction to perform the act, and whether in the performance it has kept within the powers given it by law,^ and for this purpose they examine into the facts constituting juris- diction. * Substantial irregularity in proceedings makes a prima facie case of legal injury, and actual injury need not be shown.' If the remedy by appeal is not adequate, there may be issued a writ of certiorari. ^'^ The principles on which the commissioner sacted may be reviewed on cer- tiorari.^^ The sufficiency of the damages is not to be inquired iuto.^^ This remedy will not be granted because the record does not show notice was given to parties, ^^ or because there were defects in the notices,^* or because the commissioners erred in taxing costs, ^* or because all the owners were not named, — those only being named who claimed damages, — or because out of a committee of three only two acted, or because the damages sustained by certain individuals were paid by those having a deep personal interest in the establishment of the road,^* or because the damages assessed have not been paid." Certiorari is granted in the discretion of the court, and not for every 516 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. § 333 slight informality or irregularity. ^^ A delay of three terms in making application for a certiorari will cause the appli- cation to be refused.^' The extent of the delay necessary to cause the court to dismiss is in the discretion of the court. 2" Ordinarily, a certiorari stands or falls by the record as returned, and no parol evidence is admissible except as to want of jurisdiction, and corruption, of the inferior tribunal. ^^ Errors which may be taken advantage of by appeal cannot be taken up by certiorari. ^'^ Although there may be lack of jurisdiction in only one part of the proceedings, yet a certiorari may issue to remove the whole proceedings.^^ The English act provides that proceedings shall not be removed by certiorari, but this cannot apply to cases where it is shown that jurisdiction has not attached. In such cases the proceedings are not properly under the act.^* Where final action in the court below has not been had, it is not wise to retain a writ of certiorari?^ 1 Brimmer v. Boston, 102 Mass. 19 ; Parks ». Boston, 8 Pick. 218. In lay- ing out a street, a city council is considered as acting in a judicial capacity. » Petition of Tucker, 27 N. H. 405; Tlie People v. Lawrence, 54 Barb. 589; Bennett v. Camden E. R., 14 N. J. L. 145. ' Paine D. Leicester, 22 Vt. 44; Kingman u. Plymouth, 6 Cusli. 306; The People V. Mrst Judge, 2 Hill, 398; The State v. Greeu, 18 N. J. L. 179. * Church V. Northern Central R. E., 46 Pa. 339. « Morris Canal Co. v. The State, 14 N. J. L. 411 ; Hyslop v. Finch, 99 111. 171 ; On oertioran the court can only take notice of the facts stated in the commissioners' return. The affldavits on which the writ is granted form no part of the return, and facts stated in the affldavits, or appearing outside, cannot be considered on the hearing. The allegations of service of notices are conclusive. The People v. Burton, 65 N. Y. 452. " Pitchburg E. R. ■«. Boston E. R., SCush. 68; Delaware R. Vi-v. Burson, 61 Pa. 369; Johnson v. Eankin, 70 N. C. 650; Ney v. Swinney, 36 Ind. 454; Central E. E. v. Pennsylvania E. R., 31 JST. J. Eq. 475. ' The People «. Canal Board, 7 Lans. 220; /d re Bdmondson, 17 Q. B. 67. ' The People t). Town of Seward, 27 Barb. 94. For this purpose affidavits are admissible. In re Penny, 7 El . & Bl. 660. ' Ex parte Keenan, 21 Ala. 558. M Kroop V. Forman, 31 Mich. 144. " New Jersey R. R. v. Suydam, 17 N. J. L. 25 ; Allen v. Levee Commis- sioners, 57 Miss. 163. '2 McCrory v. Griswold, 7 Iowa, 248; Eegina v. Board of Health of Hali. fax, 14 L. T. (N. s.) 447. 517 334 § PROCEEDINGS SUBSEQUENT TO ASSESSMENT. 13 Petition of Tucker, 27 N. H. 405. Contra, Barnett ». The State, 15 Ala. . 829. " Cambridge u. County Commissioners of Middlesex, 117 Mass. 79. But see The State v. Smith, 21 N. J. L. 91. 15 New Haven Co. v. Northampton, 102 Mass. 116. 16 Inhabitants of Vassalborough, 19 Me. 338. 1' Petition of Tucker, 27 N. H. 405. 18 Lyman'!). Burlington, 22 Vt. 131; Paine v. Leicester, 22 Vt. 44 j- The State V. Blauvelt, 34 N. J. L. 261 ; Portland R. R. v. Commissioners, 64 Me. 505; Carpenter v. Strabel, — Mich. — (1887). 13 The State ii. Woodruff, 36 N. J. L. 204; The State v. Ten Eyck, 18 N. J. L. 373. 2» The State v. Green, 18 N. J. L. 179. 21 Road Commissioners v. Fickinger, 51 Pa. 48. 22 Boston R. R. v. Folsom, 46 N. H. 64; Petition of Tucker, 27 N. H. 405; Cedar Rapids Ry. u. Whelan, 64 Iowa, 694 ; Detroit R. R. v. Graham, 46 Mich. 642; Dunlap v. Toledo Ry., 46 Mich. 190; Plint R. R. i). Norton, — Mich. — (1887). 25 South Wales Rail. Co. v. Richards, 6 Eng. Rail. Cas. 197. 2^ In re Edmondson, 17 Q. B. 67; Penny v. South-Eastern Rail. Co., 26 L. J. (Q. B.) 225; Regina >c. Berkley, 1 Keny. 99. 25 Detroit R. R. Co. v. Backers, 48 Mich. 582. § 334. Deed to condemning' party — Obtaining posses- sion. — The title to the laad condemned is vested by the proceedings, and no deed is necessary to justify entry/ unless specifically required by the act.^ If the owners interfere with the corporation after the land is condemned, their action is unlawful ; but to put the company in possession, the company is not entitled to the process which usually follows a judgment in ejectment.^ After the proper condemnation proceedings have been had, the officers and agents of the company may enter without being liable in trespass, or to criminal proceedings for taking possession of real estate by violence. The regularity of the condemnation proceedings constitutes a complete defense to a criminal prosecution, and it is not necessary for the company to enter suit in ejectment against the owners of the land. The pendency of exceptions to the report of commissioners does not affect the right of entry, but only the amount of compensation.^ The English! Lands Clauses Consolidation Act authorizes the issuance to 518 PROCEEDINGS SUBSEQUENT TO ASSESSMENT. § 334 the sheriff of a warrant to deliver possession, where the owner refuses to allow the entiy ; and if, in consequence of the owner's refusal, damage ensues, the company will be entitled to compensation.'' The costs accruing by reason of the issuing and execution of such warrant are to be paid by the person refusing to give possession ; and the amount of such costs are to be deducted from the compensation, if any, then payable ; or, if no such compensation be payable, or if the same be less than the amount of such costs, then such costs, or the excess thereof beyond such compensation, if not paid on demand, shall be levied by distress.^ 1 Indianapolis R. R. ■». Smytlie, 45Ind. 332; Alexandria R. R. ■». A. & W. R. H., 75 Va. 780; People ti. Common Oouncil of Syracuse, 78 N. Y. 66. 2 Evansville R. R. v. Miller, 30 Ind. 209. 3 Niagara R. R. v. Hotchkiss, 16 Barb. 270. ^ The State v. Dickson, 3 Mo. App. 464 ; 4 Cent. L. J. 478. ^ Regent's Canal Co. v. Ware, 26 L. J. CCh.) 666. * 8 Vict., c. 18, § 91. 519 335 OF COSTS OF PROCEEDINGS. CHAPTER XXYin. OF COSTS 01" PEOCEEDINGS. -§ 335. Costs of condemnation. 336. What costs allowed. 337. Costs In discretion of trialcourt. 338. Costs to prevailing party. 339. Services of county commissioners. § 335. Costs of condemnation. — Costs of proceedings are recoverable with the compensation,^ although in Penn- sylvania it is held that no costs are recoverable unless the statute so provides.^ la road cases, the matter is of public* interest, and the county or municipality must pay the costs, and not the applicant or contestant.^ It would seem to be a sufficient hardship to deprive an owner of his land by assessing the entire compensation in benefits. But the courts have gone so far, in some instances, as to compel the owner, out of his other property, to pay the costs of con- demnation. In Rogers v. St. Charles,* the property con- demned was land which was supposed to have been dedi- cated to public use by acts in pais; but the owner refused to relinquish the land to the city, and hence it was con- demned, and the costs assessed against the owner, as the benefits equaled the damages. The owner then endea- vored to escape the payment of costs by claiming that the land at all times belonged to the public. However, as his refusal to relinquish had caused the costs to be incurred, he was held bound to pay the same. If a land-owner dies, having made an agreement of sale, or if tlie land descends to infants, the expense of procuring proper conveyances should be defrayed out of the purchase-money,^ but where it is necessary to take out administration to perfect the legal title of a legatee under a will, the expense must be borne by the company.^ 520 1 OF COSTS OF PEOCEEDINGS, §§ 336, 337 1 Chicago R. E. v. Bull, 20 III. 218. 2 Herbein v. Bailroad, 9 Watts, 272. 5 Hawkins v. Robinson, 5 J. J. Marsh. 9. < 54 Mo. 229. « Midland Rail. Co. v. Wescomb, 2 Bng. Rail. Gas. 211 ; Eastern Coun- ties Rail. Co. V. Tufnell, 3 Eng. Rail. Cas. 133; In re South Wales Rail. Co., U Beav. 418; In re Nash, 25 L. J. (Ch.) 20. • In re Liverpool Improvement Act, 16 W. E. 667. § 336. What costs allowed. — Costs maybe recovered for petition, entry, travel, and attendance before commis- sioners and before the appellate court ; and for travel, attendance and witness fees before the jury, and for other matters usually taxable, and for costs of the supreme court. Term fees^ and attorneys' fees are not allowed.^ If the jury is a jury of view, costs of witnesses will not be allowed unless specially provided for.^ The court will not award costs, on setting aside a verdict, to the party object- ing to the verdict.* The English Land Clauses Consolidation Act allows " all reasonable costs, charges, and expenses incurred in summoning, impaneling, and returning the jury, taking the inquiry, the attendance of witnesses, the employment of counsel and attorneys, recording the verdict and judgment thereon, and otherwise incident to such inquiry." * The company cannot recover of the owner any portion of their expenses fot counsel, attorneys, or wit- nesses, but where the recovery is the same or less than the tender, the owner shall share what may be termed the formal costs, each party bearing his own costs over and above the formal costs.® 1 Abbot «. Penobscot, 52 Me. 584. 2 New Haven Co. v. Northampton, 102 Mass. 116; Marshall Pishing Co. V. Hadley Falls Co., 5 Cush. 602; Stevens v. Danbury, 63 Conn. 9. s Philadelphia v. Johnson, 2 Whart. 275. * Connecticut Elver R. R. v. Clapp, 1 Cush. 659. « 3 Vict., c. 18, § 52. 6 Brayi;. South-Bastern Rail Co., 19 L. J. (Q. B.) 11. § 337. Costs In discretion o£ trial court. — The allow- ance of all costs is largely in the discretion of the court allowing the same, and the appellate court will not grant a. 521 § 338 OF COSTS OF PROCEEDINGS. mandamus to compel the allowance of items rejected ■ below. 1 ^ Woodman v. Commissioners, 24 Me. 151. § 338. Costs to prevailing party. — The general rule is to impose on the appellant the costs of a useless appeal, shown to be useless by a failure to obtain a modification in favor of the appellant. ^ The same rule applies to contests over the utility or necessity of laying out roads. The unsuccessful party must pay costs. ^ He must be considered the prevailing party who obtains a modification of the judg- ment in his favor. Hence, if the owner recovers no dam- ages below, and is awarded damages above, he would be entitled to recover costs as the prevailing party. ^ In some cases, if the recovery has been diminished, the owner would be entitled to his costs if he still has a recovery allowed on his appeal.* The original costs in the court below should go against the party unsuccessful below and in favor of the party recovering damages, and the costs in the appellate court be allowed in favor of the successful party on appeal." The English act requires the condemning party to offer a sum as compensation, and if the owner refuses the oflFer, and on compulsory arbitration it be determined that the same, or a less sum shall be allowed, then the costs fall on the claimant. If the company makes no offer, the owner may recover his costs. ^ The offer made must be of money, and not encumbered by any conditions or reservations.' The costs of a mandamus to compel a railway company to summon a jury should fall on the claimant, in case the verdict shows a less sum than that previously offered by the company.^ Where two appeals are taken by a remon- strant, one from the order of the board locating the high- way, and the other from an order of the board approving the report of reviewers that remonstrant is entitled to no damages, they should be consolidated in one action ; and if, on appeal, damages are allowed, but the highway is estab- lished, the remonstrant should pay costs of one appeal and 522 OF COSTS OF PROCEEDINGS. § 339 the petitioners of the otWr.' Statutory provisions giving <50sts to the party prevailing in civil actions, do not apply to proceedings for assessing damages for land taken by city under the Massachusetts statutes. i" 1 Kidder v. Oxford, 116 Mass. 165; Harvard E. K. v. Rand, 8 Cush. 218; Morse, petitioner, 18 Pick. 443; Tlie People ti. Van Alstyne, 3 Keyes, 35; Mettler v. Easton E. E., 37 N. J. L. 222; Scliuylkill Co. v. Klttera, 2 Eawle, 438; Wliite v. Coleman, 6 Gratt. 138; Eppes v. Cralle, 1 Munf. 258; Leak «. Selma E. E., 47 Ga. 346; Vicksburg E. E. v. Calderwood, 15 La. An. 481 ; Helm v. Sliort, 7 Busli, 623 ; Tlie People v. McEoberts, 62 111. 88; Harrison v. Iowa E. E., 36 Iowa, 323; Noble v. Des Moines Ey., 61 Iowa, 637. 2 Senaker v. Justices, 4 Sneed, 116; Helm v. Short, 7 Bush, 623. ' Abbott «. Penobscot, 52 Me. 584; Pennsylvania E. E. i). Kelffer, 22 Pa. 356. ^ Burrlll V. Martin, 12 Me. 345; New Haven Co. u. Northampton,' 102 .Mass. 116. « Schuylkill Co. v. Kittera, 2 Eawle, 438. 6 Martin v. Leicester Water-Works Co., 27 L. J. (Exoh.) 432; 8 Vict., c. 18, § 61. ' Balls V. Metropolitan Eail. Co., 35 L. J. (Q. B.) 101; Balls v. Metro- politan Board of Works, L. E. 1 Q. B. 337. 8 Eegina v. Waterford Eail. Co., 13 I. L. E. 272. ' Jamieson v. Commissioners of Cass County, 56 Ind. 466. w Williams v. City of Taunton, 126 Mass. 287. § 339. Services of county commissioners. — If county commissioners are designated by the act as the parties to estimate damages in cases of condemnation by railroad 'Compan.es, the companies cannot be compelled to pay them for their services, in the absence of an express statute.^ 1 Atlantic B. E. ii. Cumberland Commissioners, 28 Me. 112. 523 § 340 - LIMITATIONS TO ACTIONS AND PROCEEDINGS. CHAPTER XXIX. ON LIMITATIONS TO ACTIONS AND PROCEEDINGS. § 340. Prompt adjustment necessary. 341. From what time the limitation should run. 342. Evidence of taking. 343. Limitation on pendency of proceedings. 344. Limitation on reports, appraisements and appeals. 345. Excuses for failure to comply with statute. 346. Absence of special statute of limitations. § 340. Prompt adjustment necessary. — The legislature may properly limit the time in which actions shall be brought to have damages assessed, and unless the owner brings his action within a reasonable time, it would be presumed that he waived his damages on account of the benefit received by him from the public improvement.^ It is presumed that these matters shall be inquired into and adjusted within a short and limited period, while the trans- action is fresh and evidence easily obtainable, and while the public affairs are administered by the officers who are conversant with the transaction. ^ The legislature may fix a time in which a petition must be filed, and one jenv from the adjudication is not unreasonable.^ A limit of sixty days from date of the act is an unreasonable time in which the owner must take the initiation.* A failure to take property condemned within the specified time is no bar to a new proceeding to condemn the same property.^ In order to secure an accurate adjustment, it is proper to provide that no damages shall be allowed except as to those filing a written claim, and hence any other application would be considered as no application.® 1 McLauchlin v. Charlotte B. R., 5 Rich. L. 583; Harper v. Richardson, 22 Cal. 251; Reckner v. Warner, 22 Ohio St. 275; Davis o. New Bedford, 133 Mass. 549; Anuess v. Providence, 13 R. I. 17; Tileston «. Brookline, 134 Mass. 438; Carolina Central R. R. v. McKaskill, 94 N. C. 746; WelshL V. Chicago Ry., 19 Mo. App. 127. 524 LIMITATIONS TO ACTIONS AND PROCEEDINGS. §§ 341, 342 "^ Goddard v. Boston, 20 Pick. 407; Rexford v. Knight, 11 N. Y. 308; Callison v. Hedrickj 15 Gratt. 244; Potter v. Ames, 43 Cal. 75. * Eevere o. Boston, 14 Gray, 218; Erskine v. Boston, 14 Gray, 216; Haggt!. Worcester, 13 Gray, 601; Rexford v. Knigtit, 11 N. Y. 308. * State V. Messenger, 27 Minn. 119. 5 Trustees of Cincinnati Ey. v. Haas, 42 OMo St. 239. 1 Keckner v. Warner, 22 Oliio St. 275. § 341 . From what time the limitation should run . — The limitation should run only from the completion of the last work done ; and work done on a sidewalk will extend the time limited for damages to be assessed on changino' the grade of a street.^ In Indiana, the limitation is from the time of the application. So, if the laud is restored to its former condition by an accident, and is afterwards repaired so as to continue the damaj^es complained of, the limitation will run from the first appropriation.^ When the remedy of the owner is to commence' at a certain time, and to expire by limitation dating from that time, that time must be taken as the time of taking. If that time is the vote of the mayor and aldermen, the vote perfects the taking. At least, the owner may so consider, and act accordingly.* The filing of a location or survey made be made conclusive as to the act of taking.* Hence, from that date should run the limita- tion in appealing or bringing further proceedings. Until the map is filed, the commissioners could not maintain tres- pass, as being in possession of the premises.^ The time of taking may precede the filing of the survey, in which case the time may be fixed by parol.^ 1 Barker ». Taunton, 119 Mass. 392. 2 Null V. Whitewater Canal Co., 4 Ind. 431. ' Loring v. Boston, 12 Gray, 209. ' Hazen u. Boston B. K., 2 Gray, 574; Davidson v. Boston E. B-i 3 Cush. 91 ; Charlestown Branch E. E. v. Middlesex, 7 Mete. 78 ; Eider v. Striker, 63 N. Y. 136. « Eider v. Striker, 63 N. Y. 136. 8 Mpore V. Boston, 8 Cush. 274. § 342. Evidence of taking. — The actions of the sover- eign, or of the municipal subdivisions of the state, in taking possession of land should be most strongly construed against 525 §§ 343, 344 LIMITATIONS TO ACTIONS AND PROCEEDINGS. them. Irregularities in their action will not avail as a de- fense, if possession has been taken. The owner is presumed to rely on the apparent intention of the public agents as shown by their actions. If land is ploughed and thrown up by the crew working under the control of the highway offi- cers, and the selectmen are directed to settle the damages, the owner can rely on that action as a taking, although the selectmen testify that they did not intend to make the town liable, and designed only to repair an old bridle-road. Such repairs cannot materially change the character of the road without constituting a further taking.^ 1 True V. Freeman, Gi Me. 573. § 343 . Lilmltation on pendency of proceedings . — There may be a limitation on the pendency of proceedings, — as, that if the damages are not paid within a certain time, the proceedings shall be void. After the time designated has elapsed, there can be no proceedings to recover damages, by mandamus or otherwise.^ The limitation on opening roads does not run as to the time spent in litigation concerning the same. 2 Where the statute provides that roads used for ten years should be considered public highways, the stat- ute is essentially a statute of limitations, barring claims by owners of land for damages. ^ 1 The Commonwealth v. Commissioners of Philadelphia, 2 Whart. 286. 2 Commissioners of Highways «. The People, 38 lU. 347. • 8 Tomlinson v. Wallace, 16 Wis. 224. § 344. Liimitation on reports — Appraisements and ap- peals. — It is proper to require reports of assessments to be filed within a certain time,^ or hearings to be had,^ and if the requirements are not observed, the proceedings may properly be considered as abandoned. Reports, however, may be continued from time to time.^ The statute may authorize the title to pass on the completion of the ap- praisement,* which is then the date from which the limita- tion would run. Appeals must be made within the time limited by the statute,* and ten days' time from the date of the award is not unreasonable.^ 526 LIMITATIONS TO ACTIONS AND PROCEEDINGS. §§ 345, 346 ' Teesej ex parte, 4 Pa. 69; Baldwin Koad, 3 Grant, 62. 2 Shlnkle v. Magill, 68 111. 422; Commissioners v. Harper, 38 111. 103. ' Baldwin Eoad, 3 Grant, 62. * Military Parade Ground, 60 N. Y. 319. 6 Monagle v. Bristol, 8 Gush. 360. 8 Harper v. Richardson, 22 Cal. 251. i § 345. Excuses for failure to comply with statute. — In case of infants, or persons under disability, the limita- tion is from tlie removal of disability. Where sufficient excuse is given for not filing a claim within the statutory time, the claim may be considered if made before final action on the road. ^ Sickness of one's family, or missing of a train, are not sufficient excuses for failure to present claim of damages within the time prescribed. Such a failure to present a claim, or any failure, may properly he declared by the legislature to be a waiver of damages.^ 1 Indiana R. R. v. Oakes, 20 Ind. 9. 2 Warner v. Doran, 30 Iowa, 521. ' Shearer v. Commissioners, 13 Kan. 145. § 346. Absence ot special statute of limitations. — In Pennsylvania, it is considered that, in the absence of a statute limiting the time in which actions for damages may be maintained, such actions can always be maintained against the company condemning. ^ In later cases, it is held that the company condemning can obtain a title by adverse possessioa for the statutory time for obtaining a title by adverse possession,^ while possession for the statu- tory time in which petitions for damages might be main- tained would not give a title by adverse possession to the company.^ In Michigan, it is considered that the running of the regular statute of limitations presumes the consent of the owner, or a donation by him to the public use.* The unauthorized use of land as a road, under color of void condemnation proceedings, will not convey a title, or take away the right of the owner to enjoin such use, until the regular statutory time of limitations to real actions has run.^ .527 § 346 LIMITATIONS TO ACTIONS AND PROCEEDINGS. 1 Delaware E. K. v. Burson, 51 Pa. 369 (qualifying Forster v. Cumber- land Valley B. R., 23 Pa. 371). 2 Hannum v. Westchester, 63 Pa. 475. 3 McClinton v. Pittsburgh E. E., 66 Pa. 404; Hannum v. Westchester, 63 Pa. 475. * Bumpus V. Miller, 4 Mich. 169. ^ Oliphant v. Commissioners of Atchison County, 18 Kan. 386. As to highways by limitation or adverse user, see article with that title in 7 Cent. L. J. 124. Houston E. E. v. Shaffln, 60 Texas, 663. 528 CONDEMNATION Br FEDERAL GOVERNMENT. § 347 CHAP TEE XXX. OF CONDEMNATION BY THE FEDERAL GOVERNMENT AND OF PUBLIC LANDS. a 347. Federal government has power to condemn. 348. Clause in constitution of the United States. 349. Removal of condemnation proceedings to United States courts. 360. Condemnation of land belonging to the Federal government. 851. Condemnation of land owned by state or municipality. 352. Condemnation by corporation of another state. 353. Bridges between states. § 347. Federal government has power to condemn. — The Federal government, being an independent sovereignty, has the power of condemning lands within the states, ^ al- though this doctrine seemed to be in doubt in the earlier cases. ^ The present position of the United States Supreme Court has been clearly defined in the recent case of Kohl v. United States.^ Judge Strong, in delivering the opinion, says : " There is an independent power in the Federal gov- ernment to condemn lands of private persons, in the several states for its own public use. The right is the offspring of political necessity, and it is inseparable from sovereignty, unless denied to it by its fundamental laws." The Federal government is as sovereign within its sphere as the state governments are in theirs. Neither is under the necessity of applying to the other for permission to exercise its law- ful powers. When the power to establish post-offices and to create courts within the states was conferred upon the Federal government, included in it was the power to obtain sites for such offices and for court-houses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of those means, well known when the constitution was adopted, and employed to obtain land for public uses. The fact that the United States has not previously exercised the right does not dis- 34 529 § 347 CONDEMNATION BY FEDERAL GOVERNMENT. prove its existence. It is doubtful whether the state caa condemn land for the use of the United States as was done in the cases of Gilmer v. Lime Point,* and Burt v. Mer- chant's Insurance Company.^ The consent of the state, although frequently granted in practice,^ cannot be a con- dition precedent to its enjoyment. Such consent is only needed for the transfer of jurisdiction. The proceedings may be had in'the courts of the United States, or in the state courts in the name of the United States. The prac- tice should conform to the practice and proceedings in the state courts in like cases,' and may, by act of Congress, be made to conform to a particular statute of a state.* Judg& Cooley, in the case of Trombley v. Humphrey,^ anticipated the decision in Kohl v. United States, and decided that the state could not condemn for the use of the United States, so as to bind the United States on the amount of compen- sation. There is no necessity for the state to exercise the power in behalf of the United States, because the United States already has the power. i" Judge Baldwin, in Gilmer v. Lime Point, ^^ argues that, as a state may authorize a foreign or domestic corporation to condemn for its use, it may allow a foreign government, and hence may delegate to the United States, as its agent, authority to condemn for the purposes of forts, light-houses, etc. The right of eminent domain the court incorrectly supposed to be in the states alone. -^^ InReddall v. Bryan ,^^ the court considered the uses of the general government to be public uses of the state wherein the land is condemned. The United States may institute condemnation proceed- ings in a state court without any special legislative permis- sion. The suit may be in form a suit against the United States and be so entitled, when the proceeding is instituted by the , owner of the property already taken for public use by the United States. But this form of proceeding does not change its substance and it remains, until the ascertainment of the compensation, a judicial proceeding by the United 530 CONDEMNATION BY TEDERAL GOVERNMENT. § 348 States to enforce the right of eminent domain by the con- demnation of property to public use. But if it be a suit both in form and substance as the United States, then there is no principle better established than that the United States may by act of congress waive its sovereignty and authorize, per- mit or consent that Fuch suit may be brought in the state court. Without such consent it cannot be sued. 1* If lands may be taken for the use of the people of the United States^ it cannot prejudice the proceedings for that purpose that they are instituted by consent of the legislature of the state in which they lie, and in a way prescribed by it.^^ 1 Cooley's Const. Lim. 525; Jones v. United States, 48 Wis. 385. 2 Pollard's Lessee v. Hagan, 3 How. 212; Chesapeake Canal v. Union. Bank, 4 Crancii C. Ct. 75. This last case was in the District of Columbia. 3 91 U. S.367. ' 18 Cal. 229. « 106 Mass. 356. " In United States v. Reed, 56 Mo. 565, and Eeddall v. Bryan, 14 Md. 444, the land was condemned under state laws granting the privilege of condemning lands. ' Kohl V. United States, 91 U. S. 367; Darlington v. United States, 82- Pa. 382; United States (matter of), 96 N. Y. 227; Jones «. United States, 48 Wis. 385; United States v. Jones, 109 U. S. 513. * United States v. Block, 121, 3 Biss.208; Darlington i). United States,. 82 Pa. 382. 9 23 Mich. 471. 1" Trombleyi;. Humphrey, 23 Mich. 471. Contra, Orr v. Quimby, 54 N. H. 690; Burt v. Merchants' Ins. Co., 106 Mass. 356. 11 18 Cal. 229. 12 To the same effect is Boggs v. Merced Mining Co., 14 Cal. 279. 1' 14 Md. 444. 1* Jones V. United States, 48 Wis. 385; United States v. Jones, 109 U. S. 513. IS United States (Matter of), 96 N. Y. 227; United States v. Jones, 10» U. S. 613. § 348. Clause in constitution of the United States. — The fifth amendment to the Federal constitution, being on the subject of eminent domain, was designed to be a modi- fication of the powers vested in the Federal government. It is applicable to the Federal government alone, and not to the states, except so far as it was designed for their secu- 531 § 349 CONDEMNATION BY J-EDEEAL GOVERNMENT. rity against the exercise of Federal power. ^ The general government cannot interfere with the discretion of the legis- lature of a state in the exercise of eminent domain. The state authorities must decide how much land the public con- venience requires. This power may be, and is frequently, abused by the state authorities, but this gives no jurisdic- tion to the United States supreme court. In such abuse there is no violation of a contract. The party injured has recourse alone to the state courts and the state legislature. ^ The states are separate communities, and can exercise that right which every community must exercise of possessing itself of the property of the individual for jjublic uses. The provision in the United States constitution as to the impair- ment of contracts does not operate as a restriction upon the states as to the exercise of that right. ^ The exercise of the right of eminent domain on the part of the Federal government was always regarded with jealousy by the states, and the unrestricted right to resort to it given by "the constitution was a leading objection to the adoption of that instrument ; and so strongly was that objection grounded in the public mind, that a restraining safe-guard was deemed necessary as one of the first constitutional amendments.* 1 Withers v. Buckley, 20 How. 84 ; Barron v. Baltimore, 7 Pet. 243 ; Charles River Bridge v. Warren Bridge, 11 Pet. 420, per McLean, J. ; Con- cord B. E. V. Greely, 17 N. H. 47; Eenthorp v. Bourg, 4 Mart. (o. s.) 97; Martin v. Dix, 52 Miss. 63; Cairo R. E. v. Turner, 31 Arli. 494. 2 Mills V. St. Clair Co., 8 How. 569. 2 Fletcher v. Peck, 6 Cranch, 87. ■■ Bogertw. United States, 2 Ct. of CI. 159; United States v. Lee, 106 U. S. 220. § 349. Removal of condemnation proceedings to the United States courts. — A. suit involving the condemnation of lands, where the question to be tried is the value of the land, maybe removed from the state to the Federal courts, although the proceeding in its inception was an appraise- ment by commissioners under a charter granted by the leg- islature of the state. 1 The proceedings should conform to 532 CONDEMNATION BY FEDERAL GOVERNMENT. § 350 the practice of the state courts in like cases. ^ The exercise of eminent domain is not, in fact, a suit in law or equity against the state,* when the title is to be vested in a rail- road, and not in a state. The state has no interest in that controversy, which relates only to the amount of compen- sation to be paid. The form of action by which proceed- ings are commenced does not signify. If there is a provis- ion by which the proceedings may be brought iato the state circuit court, it is an action when there; and if one of [the parties is a non-resident of the state, the right of removal is plain. The state cannot limit the remedy to its own courts.* 1 Patterson v. Boom Co., 3 Dill. 4f>5; s. c, Mississippi Boom Co. v. Pat- terson, 8 Otto, 403. 2 Kohl V. IjQited States, 91 TJ. S. 367. * The eleventh amendment to the United States constitution is as fol- lows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." ' Warren v. Wisconsin Valley R. R., 6 Biss. 425. § 350. Condemnation of land belonging to the Fed- eral government. — Land within a state, and held by the United States as a mere proprietor, and not reserved or appropriated to any special purpose, is liable to condemna- tion for streets, highways, and as railroads,^ like the lands of other persons. If, however, the land is occupied and used as a fort, light-house, armory, or for other public purposes, it cannot be taken for an ordinary local object, though public.^ Lands so occupied cannot be flowed under the flowage acts. This was the doctrine in United States V. Ames,^ where a mill-owner endeavored to flow back upon the premises occupied by the Springfield armory. The city of Chicas^o endeavored to cut streets through the grouiid on which Fort Dearborn was situated. The proposed streets would prostrate some of the public buildings, and materially impair the public uses to which the land was devoted. The supreme court of the United States * sustained an injunc- 533 § 351 CONDEMNATION BY FEDERAL GOVERNMENT. tion against the city, restraining tlie opening of tlie streets. The court seemed to recognize that there must be a public ohject so clearly superior and paramount that preference might be given to it ; but we doubt whether the supreme court would, at this time, countenance an effort of one of the states to condemn land occupied and used by -the T'ederal government for public purposes. The Federal government has a certain control over railroads as post- roads, yet the railroads must be considered as the private property of the corporations building them, unless the right of way has been acquired by act of congress, or over the Ijublic domain. Any interference with such roads, ap- proaching a taking or occupation to their rights of way, Tvould be unconstitutional, unless compensation was pro- vided.^ The grant by congress of a right of way over pub- lic land is good against pre-emptors who have not perfected that right by proving up aud paying for the land, ^ or against mere squatters.^ 1 United States v. Railroad Bridge, 6 McLean, 617. 2 United States v. Chicago, 7 How. 185;" United States v. Railroad JBridge, 6 McLean, 517; United States v. Ames, 1 Woodb. & M. 76. = 1 Woodb. & M. 76. " United States v. Cliicago, 7 How. 185. ^ Atlantic Telegraph Co. v. Chicago,R. R., 6 Biss. 158. ' « Western Pacific R. R. v. Tevis, 41 Cal. 489 (qualifying California R. R. «. Gould, 21 Cal. 254). ' Rosa V. Missouri R. R., 18 Kan. 124; 4 Cent. L. J. 596. § 351. Gondemnatioii of land owned by state or mu- nicipality. — The state may be a proprietor of lands, and when such laud is taken it must be paid for. The author- ity to locate over lands belonging to the state, when there is no expression in the act of a design on the part of the legislature to aid the corporation by a gift of the land, is an authority to use the land on payment of compensation, aud the state may institute proceedings for compensation as an individual proprietor.^ In some states the contrary doctrine jorevails, and the authority to enter on the land presumes a gift by the state. ^ In Indiana, itis considered that authority 534 CONDEMNATIOJS^ isY FEDERAL GOVERNMENT. § 352 to make a road between two designated points includes the right to take, witliout compensation, lands belonging to the state intervening. The constitutional provision refers only to the taking of private, and not of public, property, and the company need not avoid a tract of land because it was owned by the state.^ Such a privilege could not be ex- tended to the taking of land already devoted by the state to another public use, such as a blind-asylum.*. When the state grants its own lands, or rights of way over the same, the law is not one taking private property for public uses.^ The rule which might, perhaps, apply to vacant lands owned by the state could not, in reason, apply to the taking of a ferry franchise owned by a city,^ or to a park which a city owned in fee,' or to a road which had been condemned a,nd paid for.^ 1 The Commonwealth v. Boston R. R., 3 Cush. ^5. 2 Pennsylvania E. R. a. New York E. R., 23 N. J. Eq. 157; Davis v. East Tennessee E. R., 1 Sneed, 94. 3 iQdiana R. R. v. The State, S lud. 421. * St. Louis E. R. c. Blind Institution, 43 111. 303. " Hobart v. Eord, 6 Nev. 77. 6 Benson v. Mayor of New York, 10 Barb. 223. ' Matter of Ninth Avenue, 45 N. Y. 729. 8 The Peoples. Commissioners of Palatine, 53 Barb. 70. § 352. Condemnation by corporation of another state. — A foreign corporation may be authorized to condemn land within the state, although the improvement may be operated entirely outside of the state, A water supply in one state may be condemned for the use of a canal in another state. Such an improvement may be of great use to the citizens of the state where the land lies ; and, besides, the discretion of the legislature in such matters is not to be interfered with by the courts.^ The power must be con- ferred in express terms. Under a general act authorizing condemnation for railroad purposes, a foreign corporation could not condemn land, nor could the owner institute pro- ceedings against such corporation for the assessment of damages in the statutory mode. Such corporation, occupy- 535 § 353 CONDEMNATION BY FEDERAL GOVERNMENT. ing the right of way of a home corporation, could be enjoined from operating its road until the damages due on the original taking of the right of way should be paid.^ It is doubtful whether one state can authorize the raising of a dam so as to flow land in another state. ^ 1 Matter of Townsend, 39 N. T. 171. 2 Holbert ». St. Louis R. R., 45 Iowa, 23. ' Farnum v. Blackstone Canal Corp., 1 Sumn. 46. § 353. Bridge between states. — One state cannot con- demn property or franchises in another state. All may be taken that is within its own borders. The Connecticut river is the boundary between New Hampshire and Ver- mont, the state line of New Hampshire being the west line of the river. A bridge across the river may be condemned by the state of New Hampshire, although the corporation owning it might be a Vermont corporation. The condemna- tion could extend up to the Vermont line.^ It is only when the exercise of this power of eminent domain comes in col- lision with the paramount authority of the United States that it is inhibited and impotent. The power of the state ends where that of the national sovereignty begins, but unti congress has asserted its power to regulate commerce and by legislation has assumed to restrict the jurisdiction of the state over its navigable waters, no conflict can arise, and the authority of the state is comprehensive.^ Congress can authorize a private corporation to construct a bridge across navigable waters for purposes of intex'state commerce, without consent of state.* 1 Crosby i;. Hanover, 36 N. H. 404. 2 Ormerod v. New York Ky. Co., 13 Fed. Rep. 370. " Deckers. Baltimore R. R, 1 Interstate Com. Rep. 434; Stockton v^ Baltimore R. R., 1 Interstate Com. Rep. 411 ; 32 Fed. Rep. 9. 536 OF DRAINAGE AND SEWERAGE ACTS. §§ 354, 355 CHAPTEE XXXI. OF DRAINAGE AND SEWERAGE ACTS. § 354. Improvement of swamps — Sewers. 355. Private drains. 356. Application. 357. Nature and extent of damages. 358. Pollution of stream. 359. Hearing before jury. 360. Act to be confined to damage purposes. § 354. Improvement of swamps — Sewers. — The im- provement of waste land by drainage, and the consequent improvement of the general health of the public, are such manifest and general advantages as to justify the exercise of eniment domain. ^ Statutes authoriziaoc drainage do not authorize the withdrawal of water from the lands of one person and accumulating the water on the lands of another.^' The sewerage of a large city may properly require the con- demnation of private property ;* and the use of the public streets for sewers is a proper use, and one contemplated in the original condemnation.* 1 See cases cited, ante, § 16 ; In re Ryers, 72 N. Y. 1 ; Clark u. Worces- ter, 25 Mass. 226; Smeaton v. Martin, 57 Wis. 364. 2 French v. WMte, 24 Uonn. 170. ' Hildreth v. Lowell, 11 Gray, 345. * See ante, § 55. § 355. Private-drains. — The use must be for the general public, and not for the sole benefit of private individuals, irrespective of the public welfare. ^ The public character does not depend on the number of individuals using, but the use must be common to a considerable area of country ; and the ditches should not be for the sole use of the applicants, but open to the use of the general public on proper terms. ^ 1 Reeves v. "Wood Co., 8 Ohio St. 333; Anderson v. Baker, 98 Ind 587. The doctrine of the above case would make the Missouri statute of 1877 (Myer's Supp. 147) unconstitutional. See ante, § 22. 2 Norfleet v. Cromwell, 70 N. C. 634. Chesbrough v. Commissioner, 37 Ohio St. 508; Ross v. Davis, 97 Ind. 79. 537 §§ 356, 357 OF DKAINAGE AND SEWEKAGB ACTS. § 356. Application. — Application for the benefit of the drainage act must be in writing. ^ A petition for the im- provement of swamps, by a " greater portion of them in interest" means the proprietors having the greatest inter- est in value, and not in territorial atea.^ In Indiana, the statute requires that the articles of association should show the commencement, course, and terminus of such proposed ditch, and the description of the hinds to be affected by the construction thereof.^ The drainage must be for the public good, and must be on " a petition signed by a majority of persons resident in the county, owning lands adjacent to such improvements." ^ The petition makes a. prima facie case of public necessity. The application should state the inability of parties to agree ; and if the fact of failure to agree, and the reasons, be not stated, the court acquires no jurisdiction, and the proceedings fail.'' Applications should not only give the line to be followed and the width, but state from which side of the line land must be taken for it.« 1 Kroop V. rorman, 31 Mich. 144. 2 Henry v. Thomas, 119 Mass. 583. 2 Smith V. Duck Pond Ditching Assn., 54 Ind. 235. ^ Patterson v. Baumer, 43 Iowa, 477. « Matter of Marsh, 71 N. Y. 315. ^ Bennett v. OIney, 56 Mich. 634; Mathias c. Drain Commissioners, 49 Itfich. 465; Willcheck v. Edward, 42 Mich. 105. § 357. Nature and extent of damages. — The digging of a ditch on the property of an individual is a taking of his property, and requires compensation. ^ Damages fre- quently result from improper and insufficient construction and maintenance of sewers and drains ; but it is the scope of this work to discuss only the matter of compensation for land taken or injured by the proper construction of such public improvement. The damages for improper construc- tion must be sought at common law.^ 1 The People v. Nearing, 27 N. Y. 306; The People v. Haines, 49 N. Y. 587. See cases cited under § 30, note 3. 538 OF DEAINAGE AND SEWERAGE ACTS. §§ 358-360 2 See article " Responsibility.of Municipal Corporations for Imperfect Drainage and Sewerage." 1 Southern Law Rev. (n. s.) 210; Jackson v. Portland, 63 Me. 55; ante, § 220. § 358., Pollution of stream. — In the construction of sewers, the discharge of sewage may render the waters of streaps unwholesome, or unfit for manufacturing purposes. Such water and material cannot be discharged upon adjoin- ing lands ;^ or into a private docli, thereby damaging it by the collection therein of unwholesome substances ;^ or into a mill-race.* Under the English Metropolis Local Manage- ment Act, compensation may be claimed for pollution of stream. For the compensation, the action must be under the statute, and not against the board ; but the board were not authorized to carry the sewage of the district, by meaps of a new system of sewers, into the plaintiff's land, and he would be entitled to an action of nuisance.* 1 Lewenthal v. New York, 5 Lans. 532. 2 Haskell v. New Bedford, 108 Mass. 208. ' 5 Columbus V. Woolen Mills, 33 lad 435. < Cater 11. Board of Works, 34 L. J. (Q. B.) 74. § 359. Hearing before jury. — Afterthe jury have heard the evidence, and meet to correct the assessment and make such alterations as, on the evidence, shall seem just, it is fatal error to impanel a new juror in the place of an absent juror. Such juror would not have the benefit of a personal ■ examination of the land. The same jury should complete the examination and assessment.^ 1 Gilkerson v. Scott, 76 111. 509. § 360. Act to be confined to drainage purposes. — Drainage acts are to be confined to drainage of lands for agricultural purposes by means of drains or ditches, and not to levees, unless in connection with a system of drainage. The construction of a levee several miles long, along a river, cannot be said to be a drainage by drains and ditches ; nor is such levee necessary to drainage of lands. ^ 1 Updike V. Wright, 81 111. 49. 539 I INDEX. ABANDONMENT OP PROCEEDINGS, under the mill acts, g 309. when proper, g 311. as to portion of a street, ^J 311, 314. rights of owner, J 311. cannot be, after report is confirmed. § 312. may be, after deposit made, where there is error in proceedings, ^312. effect of delay in determining whether there shall be, J 313. costs on, ^§ 311, 313. experimental assessments discountenanced, § 315. ABANDONMENT OP PUBLIC USE, not to be presumed, § 46. of property of corporation renders it subject to condemnation, J 47. devoting to private uses an, J 57. land reverts to owner of fee, J 57. evidence of, | 320. ACCESS, obstruction of, to house, a damage, J§ 192, 207. ADDITIONAL BURDEN, railroad on private way, ^ 31. highways, turnpikes, canals, J 32. highway on railroad, § 33. ferry-landing on highway, § 35. sewers, drains, etc., in streets, not, J 55. telegraph-line for use of railroad not, on right of way, J 59. ADJOINING OWNER, what is reasonable use of land of, § 184. where no land of, is taken, consequential damage, J 183. excavation on land of, | 185. blasting on lands of, J 186. structures on lands of, § 187. I cut through barrier on land of, § 185. ADJOURNMENT, of meetings of commissioners, § 229. (541) 542 INDEX. ADMINISTRATOR, can collect damages for condemnation before death of decedent, | 67. when estate is insolvent, J 67. ADMISSIONS, of owner as proving value of property taken, ^ 172. ADVERTISEMENT, of notices, requisites of, 2 98. AGREEMENT OE PURCHASE, attempt to agree generally rerjuired before condemnation permitted, ? 105. effort to agree sbculd appear on record, ^ 107. what are suiScient allegations of efforts to agree, § 107. election not to agree, inability to agree, § 108. waiver of agreement, ^ 109. contracts of conveyance, how construed, J 110. ALTERATION, of road or street, § 282. ANNUAL DAMAGES, allowed in condemnation for mill purposes, | 299. APPEAL, operates as a waiver of effort to agree on purchase-price, J 109. entry pending ; when bond is given, J 136. when entry is not allowed pending, § 137. deposit pending, § 138. tender pending, § 139. ' separate, for separate owners, § 267. who may; interest required, J§ 268, 269. right to, not absolute in owner, § 322. when it may be taken, § 322a. errors to be taken advantage of on, ^ 323. limitation as to, J 344. APPEARANCE, waives notice of proceedings, J 97. APPLICATION, for road, requisites of, g 270. for condemnation for mill-dam ; conflicting applications, J 290. APPORTIONMENT, of rent between landlord and tenant, J 69. ARBITRATION, of amount of damages, ^ 92. submission to, not a waiver of prepayment of damages, J 131. ASSESSMENT, of benefits not exercise of eminent domain, 2 2. of value of property should be of value at the time of taking, | 174. how determined when proceedings are delayed, J 174» of property for taxation not evidence as to value, 2 172. INDEX. 543 ASSESSMENT — Continued. of damages on a taking subsequent to the improvement, ? 178. supposed to cover all damages, § 216. of damages arising afterward, and not foreseen, § 217. should be separate for each owner, § 267. after construction, ^ 218. (See Damages ; Compensation.) AUTHOEITT, to condemn not presumed ; not to be extended by implication, J 48. BElSTEiFITS, powerto deduct, from compensation, g 149. not taxation, but exercise of eminent domain, J 149. classes of, § 150. payment in, § 151. must be direct and peculiar to be allowed, J 152. general, not to be considered, § 153. to railroad of establishment of highway, § 154. from what time, calculated, J 155. privilege of giving up entire lot and escaping assessment, | 156. where use of property is limited, ^ 157. setting off, against disadvantages, § 158. tp be set off in condemnation under mill acts, J 300. BLASTING. on adjoining lands, when a damage, I 186. BOND, appeal, without deposit does not justify entry, § 130. of company notsuiBcient compensation, § 135. to secure damages by entry pending appeal, ^ 136. when given, relieves from lien of owner of land for unpaid damagev §144. BOND POK DEED, owner of, entitled to compensation, | 65. BOOMS, for lumber, public use, 2 21. BREAD, regulation of price and weight of, J 8. BRIDGB, a public use, § 14. condemnation of, between states, § 353. BUILDINGS, necessary and convenient for railroad, § 59. materials in, ownership of, where land is condemned, J 223. continuing erection of, after proceedings commenced, J 224, on streets not laid out, § 225. 544 INDEX. BITRYESTG-GKOUNDS, public use of, J 19. whether or not a nuisance, § 6. 'CANALS, railroad additional burden on, J 32. water from, cannot be discharged on surrounding land, J 190. public use of, J 14. ■CATTLE-GUAEDS, railroads may be compelled to erect, without compensation, | 7. ■CERTIFICATE, of opening of road, when required, ^ 286. ■CEETIOEAEI, ofSce of, in correction of errors, ^J 323, 333. directed to custodian of records, § 333. ■CHANGE OP GEADE, no damages allowed for, J 195. , dissenting views, § 196. statutes allowing damages, construction of, § 197. (See Grade, Ohajstqe of.) •CHANGE OE VENUE, in condemnation proceedings, J 92. CHARTERS, interference with rights secured by, J 38. - when, are not exclusive, | 39. construction of, § 39. void when compensation is disregarded, J 128. CLAIM, for damages, when owner fails tci make, J 147. not precluded by legislative authority to condemn, 1 182. waives question of public necessity, §J 328, 329. -COAST SURYEY, a public use, J 21. ■COMMISSIONERS, appointment of, J 226. disinterested persons, freeholders, J 227. oath of, how taken and returned, ? 228. place and time of meeting of; adjournments, | 229. power of majority of, to act, § 230. vacancy in board of, § 231. supervision of court over proceedings of, | 232. ■control of, over their own proceedings, J 233. prejudice of, § 234. ■conversing or discussing with, § 235. INDEX. 545 OOMMISSIONEKS — Continued. treating and entertaining, § 236. power of, to admit or reject evidence, J 237. record of, § 238. ■ preserving rulings of, and evidence produced before, ^ 239. when report of, should be made, J 240. review of report of; recommitting report of, J 241. how to obtain review of report of, J 242. presumptions in favor of regularity of proceedings of, § 243. irregularity by, in arriving at amount of damages, J 244. wrong principle pursued by, in estimating, J 245. errors by, in itemized findings, ^ 246. COMMON, owner of right of, entitled to compensation, J 65. •COMPENSATION, to be ascertained in the mode provided by the legislature, §,^^.4. owner cannot be forced to take easements or privileges for, gj 112, 1 35. time of payment ; early doctrine, g 124. for roads under proprietary governments, J 125. for roads on wild lands, g 126. fimd must be adequate, § 126. statutes and charters failing to provide, void, J 128. must all be paid before entry, ^ 130. ' judgment not, I 131. right to sue not, § 132. - -''■ ■ consideration of public welfare not, § 133. consent of authorities cannot affect right to, J 134. must be in money, g 135. not in benefits, J 135. right of subject to, recognized, J 1. remedy against oflicers failing to pay, 2 145. statutes not providing, void, J 1. refusal to take, 147. power to deduct benefits from, J 149. no, for negligent or tortious acts, I 220. CONDEMNATION, for private use, J 22. for sale or use by others, J 23. to prevent damage to others, J 23. of property devoted to another public use, Jg ^5, 47. legislative authority for, must be express, J 46. under general laws, 47. authority for, not presumed, nor to be extended, J 48. second, when sufficient land has not been condemned, g 58. after completion of road, § 58. by corporation after sale or lease of franchise, g 63. CONELICTIN& CLAIMS, payment into court of damages, in case of, | 78. 35 546 INDEX. CONSEQUENTIAL DAMAGES, early doctrine objected to, § 181. where no land is taken, § 183. what is reasonable use of adjoining property, J 184. excavations on adjoining land, g 185, obstruction of surface-water, §2 187, 189. diversion of trade ; loss of profits, J 191. effect of noise, smoke, vibration, etc., ^ 193. construction of statutes allowing, § 194. CONSTITUTION, clause in Federal Constitution applies to U. S. government, J 348^ CONSTITUTIONALITY OF STATUTES, not recognizing right of compensation, § 1. CONSTRUCTION, allowing consequential damages, § 194. of statutes and charters, must recognize right to compensation, J 128. allowing damages for changes of grades, J 197. CONSTRUCTION OF PUBLIC IMPROVEMENTS, liability of public for lack of skill, J 81. CONTINGENT REMAINDER, owner of not entitled to compensation, J 73^ CONTRACTORS FOR PUBLIC "WORK, their authority to condemn, J 60. CONTRACTS, impairment of, ^ 37. for purchase of land, how construed, Jg 110, 114. reservations in, for the benefit of owners, ^ 112. for purchase of land, how enforced ; damages for breach, J 113. whether conditions of, are precedent or subsequent, g 113. specific performance of, J 113. CONTENIBNCE, of public, how determined, J 275. CORPORATION, property may be condemned, § 41. use of property of, may be condemned, | 44. express legislative authority to, J 46. delegation to, of authority to condemn, §| 60, 61. delegation to, of another state, Jg 61, 352. must be regularly organized in order to condemn, | 61. public and private, distinction between taking by, g 126. change of, does not relieve from payment of damages, J 144. COSTS, when recoverable, § 335. what, allowed, ? 336. ' in discretion of trial court, J 337. to prevailing party, § 338. for services of county commissioners, J 339. INDEX. 547 COUNTY COMMISSIONERS, when entitled to compensation for services in condemnation proceedings, §339. OOUESE OF EOAD, how described, § 280. COURT, disqualification of, on account of interest, § 86. has supervision over proceedings of commissioners, J 232. COVENANTS, as to lands condemned, J 37. CROSSINGS, highway, duty, of railroad as to, § 33. on highways subsequently constructed, 2 43. farm, duty of railroad as to, § 213. remedy for failure to make, J 214. DAM, (Sbe Mills.) PAMNUM ABSQUE INJURIA, nature of such damage, § 182. DAMAGES, nominal damages to be respected, J 31. for right of way over railroad, how determined, J 44a. to be assessed in mode provided by legislature, J 84. assessment under judicial control, § 85. - assessment need not be by jury, § 91. relinquishment of, how made, g 111. adequacy of, measure of, § 159. title to be considered in estimating, J 160. must be direct and peculiar to the property, § 162. exposure to fire from engines, to be considered, § 163. to be estimated by jury or commissioners, § 164. effect of taking part of tract on land left, § 166. when estimated after the improvement is completed, g 178. plan of improvement may be offered to show damage, J 180. all damages considered in assessment, J 216. arising after improvement, ^ 217. unforeseen, how considered, g 217. assessment o^ after construction, § 218. when plan is changed after assessment, § 219. frond negligent or tortious acts, not subject of compensation, | 220. while land is unlawfully occupied, J 221. irregularity in estimating, § 244. wrong principle in estimating, § 245. error in amount of, how corrected, § 246. how, determined under mill act, J 294. nature of, in condemnation under mill act, J 295. - ' annual, allowed under mill act, J 299. nature of, under drainage acts, ^ 357. 548 INDEX. DEBT, common-law action proper, wlien statutory remedy not complete, J 88. DEDICATION, of street by plat, ^ 225. DEED, to condenming party not nefiessary, ^ 334. DEFINITION, of "dwelling-houses," wlien exempted from condemnation, § 120. of "near" in descriptions, J 115. of "due process of law," J 92. of "necessary implication," § 46 of "owner," ^ 65. of terms "necessary" and "convenient," J 46. of "eminent domain," § 1 of term "taking," ^ 36o. of term "laying out," g 49 of "property," J 31. DELAY, in proceedings should cause a new assessment, ?J 174, 313, in determining whether or not proceedings shall be abandoned, ^ 313. DELEGATION, of eminent domain to individuals and corporations, 2 60. DEPOSIT, pending appeal, § 138. DEPOT GEOUNDS, streets across, § 46. DESCENT OE PEOPEBTT, laws regulating, not in exercise of eminent domain, J &. DESCRIPTION, certainty required in, § 115. quality of land, improvements, how set forth in, J 119. of road, certainty required, § 277. of course of road, how set forth, ^ 280. (See Maps, Stjstey.) DESTRUCTION, of property to prevent spread of fire, J 5. statutes governing the same, J 5. DISABILITY, persons under, limitations do not run against, J 345. DISADVANTAGES, setting off benefits against, g 158. allowed, what, | 162. exposure to fire from engines, ^ 163. of separating parts of a tract, houses from roads, etc., J 166. of cutting up lands into inconvenient parcels, J 166. DISCONTINUANCE OE PUBLIC IMPROVEMENTS, rights of reversion and recovery of compensation paid, § 3^.7. INDEX. 549 DISCONTnsrUANOE OF EOADS AND STREETS, rights of adjoining owners, J 318. rights to damages when street never opened, ^ 319. DISESTTEKESTED PERSONS, definition of, J 227. DISCEETION, of corporations as to the extent of land or interest condemned, §| 49, 62. as to route, § 62. DISPUTES, settlement by legislation, § 25. DISTINCTION, between eminent domain and power of taxation, J 2. war power, g 3. DITCHES, rendered necessary by construction of railroad, ^ 215. (See DRAUfs.) DIVISION FENCES, laws regulating, not in exercise of eminent domain, J 9. DONATIONS OP LAND, effect on character of use, § 24. DOWEE, interest, inchoate and consummate, § 71. when condemned during lifetime of husband, § 71. DRAINAGE OP MARSHES, public use, J 16. DRAINS, in roads and streets, proper use, §§ 55, 354. private, not justified, § 355. applications for, § 356. nature and extent of damages from, § 357. pollution of stream by, damage resulting from, J 358. hearing before jury concerning, g 359. acts in reference to, not to extend to construction of levees, J 860. DUB PROCESS OP LAW, definition of, g 92. DWELLING-HOUSES, when exempt from condemnation ; " dwelling-houses " defined, J 120. EASEMENT, property subject to taking, § 31. compensation when, is taken, § 50. may be accepted as compensation, § 112. owner cannot be compelled to take, against his will, § 112, extent of, in public road, §2 51, 52, 56, 276. 550 INDEX. EJBCTMENT, will lie where statutory remedy not complete, J 88. statutory modeia not observed by condemning party, § 90. judgment for mesne profits does not apply on compensation in, § 90. will lie where compensation not provided, J 128. remedy in, lost by acquiescence, §^ 140, 141. ELEVATORS,* regulation of, not exercise of eminent domain, g 9. tracks to, J 21. I EMBANKMENTS, in streets, nature of damage, § 207. EMINENT DOMAIN, definition of, ^ 1. power of, limited as to time and amount, J 58. Whether exhausted by one exercise, § 58. may be delegated to individuals and corporations, ^ 60. ENCUMBRANCERS, rights to compensation, § 74. ENGINEERS, authority to condemn, § 60. ENTRY, without proceedings to assess damages, J 89. where owner can institute proceedings ; where either party may, § 89. pending appeal, J J 136, 137. where originally lawful, effect of delay, ^ 142. on adjoining land in building road, J 285. EQUITY, may bring in all parties in condemnation proceedings, ^ 266. cannot correct errors in proceedings, except in cases of fraud, accident, or mistake, ^ 323. EQUITABLE TITLES, holders of, protected ; entitled to distribution, J 75. ERRORS, should be corrected by appeal or certiorari, not in equity, J 323. waiver of, by owner, § 324. condemning party, § 326. timely objection to, must be made, J 327. in former proceedings, not cured by subsequent proceedings, J 832. EVIDENCE, whether witnesses can give opinion as to amount of damages, J 165. as to market value of property, g 168. by expert witnesses, § 169. sales of similar property, to prove value, g 170. rents of similar property, to prove vaJue, J 171. of value, assessment for taxation not admissible as, g 172. INDEX. 551 EVIDENCE — Continued. of value, commissioners' report not admissible as, g 172. admissions of owner as to value, J 172. of value, present use not conclusive, J 173. plan of proposed improvement may be offered In, to show damages, 2 180. commissioners must pass on, and may exclude, § 237. ' report of commissioners may preserve rulings and, g 239. sources of information for jury, J 253. admissibility of; powers of jury, § 255. of abandonment of public improvements, J 320. EXCAVATIONS, what allowed on adjoining land, J 185. damages from, coiisidered in assessment, § 216. EXBCUTOKS, interest of, in land condemned, ^§ 65, 67. of active trusts can collect damages to real estate, | 67. EXEMPTION PKOM CONDEMNATION, of dwelling-houses ; " dwelling-house " defined, | 120. of gardens, yards, orchards, and manufactories, § 121. of buildings, on lands sought to be condemned for mill purposes, J 289. EXPERIMENTAL ASSESSMENTS, discountenanced, J 815. EXPERT WITNESSES, qualifications of, J 169. EXPLORATIONS, extent authorized in a prelimmary survey, J 36. EXTENT, of interest taken, J 49. when, originally authorized has not been taken, whether full, can after- wards be taken, J 58. FAILURE TO FIND DAMAGES, , operates as a judgment, § 330. FARM-CEOSSING-S, rights of owners and condemning party in respect of, § 213. remedy for failure to make, J 214. FEDERAL GOVERNMENT, has power to condemn, J 347. limitation of clause in Federal Constitution, J 348. condemnation by State of land belonging to, 2 350. i'EB, in lands may be taken ; terms allowing the taking of, JJ 49) 60. compensation when taken, J 50. in public roads and streets, I 51. 552 INDEX. FENCING, obligations of owner and condemning party in respect of, J 212. removal of, in construction of roads, J 285. FERRIES, • public use, § 14. FERRY-LANDING, burden on highways, J 35. FIRE, exposure to, from engines to be considered, 2 163. FISHERY, rights of, exist after condemnation for mill purposes, J 289. FIXTURES, when compensation is to be made for, J 223. FLOWAGE, (Sek Mills.) railroad on, an additional burden, J 32. FORFEITURE, franchise subject to, must be paid for; if not, forfeited by state, ^ 45^ must be enforced by state alone, J 58. FORFEITURE FOR VIOLATION OF LAW, not exercise of eminent domain, J 8. FRANCHISES, interference with, §§ 38, 43. may be condemned, §J 41, 42. nature of, g 42. regulation of exercise of, g 43. (See Charters ; Contracts.) FREEHOLDERS, definition and qualifications of, § 227. selected to act as jurors, § 248. petition by, for road, requisites of, J 271. GARDENS, when exempt from condemnation ; defined, ^ 121. GAS-PIPES, laying down, in country roads and city streets, § 55. GENERAL LAWS, condemnation under, of property devoted to another use, 2§ 46, 47, delegation to corporation under, J 61. GOVERNMENT, taking by, or subdivisions, distinguished from taking by a private cor- poration, § 126. GRADE IN STREET, CHANGES OF, no damages allowed for, § 195. dissenting views, § 196. INDEX. 553 GEADB IN STREET, OHAMGES OF — Continued. statutes allowing damages for, J 197. duty of restoring property to former condition, § 198. rendered necessary by railroad track, § 199. GRASS, in highways, ownership of; rights of pasturage, J 53. {See HiSHWAYS.) GROUND-RENTS, condemnation of, ^ 25. GUAEDIAN, of lunatic, condemnation of land in charge of, J 75. HEALTH, of public to be guarded by state, and facilities provided for its main- tenance, 5 18. as controlling the erection of mill-dams, 2 289. HEIRS, interest in land condemned, J 65. entitled to notice, § 67. HIGHWAYS, railroad additional burden on, g 32. additional burden on railroad, ^ 3-3. turnpike not additional burden on, § 34. materials in, used for repair of, §§ 52, 54. grass in ; rights of pasturage, ^ 53. ownership of buildings on land taken for, J 54. use of; construction of sewers, drains, reservoirs, markets, etc., J 55» use of, by adjoining owner, ^ 56. water-courses and springs in ; rights of owners of soil to use of, g 56» legislative control over, g 202. HOMESTEAD, condemnation of, J 71. HOKSE-EAILEOAD, use of street, admissible without compensation, § 205. HOUSEHOLDERS, petition of, for road, requisites of, g 271. IMPAIRMENT, of contracts, g 37. of franchises, § 43. (See CoNTEACTs; Fkaitchises.) IMPLICATION, necessary, definition of, g 46. 554 INDEX. IMPEOVEMENTS, on land, how described, | 119. made before land is properly condemned, § 148. right of owner to make, pending proceedings, § 316. INCONVENIENCES, peculiar, should be compensated for, J 162. arising from separating portions of tract from each other, J 166. cutting up tract into parcels, § 166. damages to establishment occupying several blocks, § 167. some, must be sutfered for public good, § 182. of access to property caused by improvement, § 207. of individuals may overcome public necessity for erection of mill, g 288. by erection of mill-dam require compensation, § 298. (See OoisrsEQnENTiAL Damages.) INDIVIDUALS, profit of, from public improvement does not impair the public character of the improvement, § 13. number to be benefited to make use public, ? 22. inconvenience of, considered, to overbalance public necessity of an im- provement, ^ 288. INFANTS, condemnation of property and protection of rights of, § 72. HSrGKESS, to property, obstruction of, § 207. INJUNCTION, by owner, when condemning party does not follow statute, § 90. when compensation not provided, ^ 128. when damages not prepaid, § 130. remedy by, lost by acquiescence, J 141. when entry is made by consent, but damages not paid, ^ 142. when there has been sale or lease to corporation, until damages are paid, ^ 144. INSURANCE, increase in rate to be considered in damages, J 163. INTEREST IN EVENT OE SUIT, disqualification of court having, g 86. commissioners having, J 227. jurors having, g 249. what sufficient, to justify appeal, ^ 269. INTEREST, extent of, condemned, § 49. INTEREST ON AWARD, when allowed, § 175. INDEX 555 INTEEPERElSrCB, with use before taking, J 176. during construction, JJ 177, 192. witli buildings by mill-dam not allowed, J 289. INTEBRUPTION OP BUSINESS, by construction, § 192. ITEMIZED EINMNG, of damages recommended, 22 246, 257. JOINDER OF PARTIES TO ACTIONS, of defendants, J 261. of tenants in common, § 252. of joint owners, J 263. of town, in road openings, 2 264. of officers engaged in condemnation proceedings, ^ 265. equity may bring in all parties, § 266. of owners of mills, in actions for damages, § 305. of owners of lands condemned for mill purposes, g 305. JOINT TENANTS, bow treated in proceedings to condemn, J 263. interest of, in land condemned, bow ascertained, J 73. JUDGMENT, not compensation of itself, § 131. failure to find damages operates as a, that there are no damages, g 330. JUDGMENT-GEEDITORS, do not have a lien on damages, 2 74. JUDICIARY, control the ascertainment of the amount of damages, | 85, JURISDICTION, acquired by notice on parties, 2 95. JUET, may be the tribunal to assess damages, 9, 85. not the only tribunal ; constitutional requirements. | 93 right to jury-trial on appeal, 2 91. how, should be summoned, 2 247. qualifications of jurors, freeholders, 2 248. disqualification of, from interest, 2 249. ■should be sworn, 2 250. when objections to, must be made, 2 251. similar issues submitted to the same, 2 252. sources of information of, 2 253. may view property taken, 2 254. proceedings before, 2 255. ■decision of majority of, 2 256. 556 INDEX. JUET — Continued. itemizing verdict of, averaging, g 257. setting aside verdict of, ^ 259. reassessment by, J 260. riglit to trial by, may be waived, g 325. hearing before, under drainage acts, J 359. LAKES, rights of owners bordering on, g 83. LANDING, railroad an additional burden on, g 32. burden on highway, J 35. LANDLORD AND TENANT, considered owners, g 65. distribution of damages awarded, J 68. value of estates, how estimated, § 68. apportionment of rent, J 69. loss of rent during construction, J 192. rebuilding, when part of building leased is taken, \ 70. LATERAL RAILROADS, condemnation for ; constitutionality of practice, J 28. LAYING OUT, of roads must be according to petition, § 283. LEASE, land under, condemned ; measure of damages, J 87. LEGATEES, considered owners, § 65. residuary legatees entitled to notice, g 73. LEGISLATURE, has power to determine necessity and extent of exercise of eminent domain, ^ 11, 49. cannot limit its power to subsequently condemn, | 40. must give express authority to condemn property devoted to another public use, § 46. to provide remedy, g 84. may control and modify existing laws so as to affect pending proceed- ings, ? 93. cannot exclude claim for damages, § 182. LESSEE, considered an owner, ^ 65. LESSORS OF RAILROADS, may be made responsible for acts of l, J 52. MINES, encouragement of public use, g 20. ■working of mines under public road, J 52. MISTAKE, in failing to condemn lands; ownership of improvements, 2 148. MORTGAGEOES AND MOETGAGEES, considered owners, § 65. distribution of fund among, J 74. notice to, of proceedings to condemn ; questions of record-title, J 103. mortgagee of railroad franchises must pay land damages on foreclosure, MUNICIPAL OOEPOKATIONS, charters of, not contracts, J 38. condemnation of property of, J? 38, 351. contracts of, not to condemn, J 40. condemnation of land belonging to, ^ 351. NEGBSSAET BUILDINGS, ETC., definition of, J 59. NECESSITY, legislature determines, of exercise of eminent domain, § 11, imperative, what considered, § 127, when to be determined by the courts, § 11. when found by commissioners or juries, J 275. of mill ; private inconvenience, J 283. NECESSITY, OTEEEULING, taking by virtue of, § 4. NEGLIGENCE, damages from, not subject of compensation. J? 30, 220. NEIGHBORHOOD EOADS, condemnation for, J 26. NOISE, considered as a damage to property, § 193. NOMINAL DAMAGES, to be regarded, J 31. NON-EESIDENTS, notice of proceedings, how given to, § 98. NON-USEE, evidence as to abandonment, § 320. NOTICE, not absolutely necessary, g 95. generally' required to give jurisdiction, | 95. by whom given, J 95. 560 INDEX. j!fOTICE— Continued. necessity of giving, inferred by provisions of statute, § 96. waiver of, by appearance, g 97. by publication and by posting, J 9S. by advertisement and by mail, | 98. what constitutes reasonable, J 99. what, should contain, § 100. service and return of, § 101. new, of now proceedings, g 102. to known owners, § 103. to unlcnown owners, J 104. l^UISAJSrCB, condemnation of property as a, I 6. province of courts in deciding what is a, | 6. OATH, of commissioners, how taken and returned, 2 228. of jurors, how taken, § 250. OBSTRUCTION, of work after damages tendered, g 147. OCCUPATION, of condemning party must correspond with location, ^ 122. damages for unlawful; how considered, §J 221, 222. OOCUPYINQ- CLAIMANTS, laws regulating, not in exercise of eminent domain, J 9. OFFICERS, PUBLIC, authority of, to condemn, § 60. immunity of, from actions, of trespass, J 64. may be compelled by mandamus to pay damages, J 145. pursuing statutory authority, not tort-feasors, ^ 265. refusal of, to lay out road, § 272. OIL, lines of tubing for transportation of; public use, g 14. OPEN KSD CLOaE Oi' PROCEEDINGS, rights of parties, J 92. OPENING OF ROAD, when certificate of, required, ? 286 ORCHARDS, when, exempt from condemnation ; " orchard " dellned, J 121. ORNAMENTAL PURPOSES, taking for, when justified, 2 18. OUTLETS FOR DAMS, land may be condemned for, § 302. OWNERSHIP, public need not own improvement for which land is condemned, J 18. classes of, § 65. INDEX. 561 -OWNERSHIP — Continued. ' duty of condemning party to ascertain, ^J 77, 103. names of owners must be set out distinctly, g 77. notice to Icnown owners, liow given, § 103. unlcnown owners, how given, J 104. duty of examination of records, ^ 103. of improvements made during unlawful occupation, § 148. on land condemned, J 223. right of owner to improve property pending condemnation, J J 148, 316. PARKS, for particular territory justified, J 12. public character of, J 18. PARTITION LAWS. not in exercise of eminent domain, J 9. PARTIES TO ACTIONS, joinder of defendants, ^ 261. tenants in common, g 262. joint tenants ; joint interests, § 263. town a proper party in road openings, § 264. public officers engaged in condemning property are not tort-feasois, ?265. all parties may be brought in, g 266. PARTY-WALLS, laws regulating, not exercise of eminent domain, J 9. PASTURAGE, in roads and streets, § 53. PAYMENT, of damages by promoters of undertaking ; effect on character of use, J 24. into court for benefit of unknown owners and conflicting claims, g 76. of damages ; distinction between public and private corporations as to time of, J 126. of damages may be enforced by mandamus, § 145. to wrong claimant, § 146. may he made in benefits, J 151. PETITION, of householders for road, requisites of, g 271. PLAN, of improvement may be offered in evidence, J 180. how damages are estimated after change in, g 219. PLANK-ROAD, turnpike on, J 34. PLEASURE-DRIVES , may be provided, g 18. POLICE POWER, distinction between, and eminent domain, J 7. 562 INDEX. POLICY OP CONDEMNATIOISr, not a judicial question, J 11. POLLUTION, of stream ; compensation for, J 358. PONDS, rights of owners of land on, I S3, POSSESSION, how obtained after condemnation, § 334. POSTING OF NOTICES, requisites of, J 98. PREJUDICE, of commissioners invalidates proceedings, ^ 2'ii, PRELIMINARY OCCUPATION, allowed in Maine without prepayment of damages, J 129. PRELIMINARY SURVEY, when allowed, § 36. PREPAYMENT OF DAMAGES, early doctrine, § 124. required of private corporations, ? 126. when damages cannot be estimated in advance, ^ 137. not required for preliminary occupation, ^ 129. condition precedent to entry, ^ 130. waiver of, by allowing entry, § 140. continued use, | 141. PRESCRIPTIVE RIGHTS. in mill-dams, how gained and lost, | 290. PRESENT USE, as affecting value of property taken, f 173. PRINCIPLE, wrong, in estimating damages, J 245. PRIVATE USE, definition of, J 22. PRIVATE WAYS AND ROADS, definition of, J 26. lawful when public may use, J 12, 27. railroad on, J 31. obstruction of, by railroad, J 211. PROCEEDINGS. must be strictly according to statute § 87. initiative in, by condemning party or owner, J 89. rules governing, § 92. modified by subsequent legislation, § 9^. new notice should be given of new, J 102. INDEX. 563 iPEOGEEDINGS — Continued. of commissioners, presumption of regularity of, J 243. control of jury over their own, J 255. separate assessments, verdicts, and appeals, J 267. regularity of; waiver of errors under mill act, J 308. effect of pendency of, on right of owner to improve property, J 316. limitation on pendency of, § 343. PROFITS, loss of, where owner is compelled to remove, 2 177. where use of property is interfered with during construction, §177. generally dainnum absque injuria, § 191. PROFITS OF PUBLIC mPROYEMENTS, may go to individuals, §J 13, 14. PUBLIC OONVENIENCB, when determined by commissioners or jury, § 375. PUBLIC USE. how many must use to make the use public, § 12. improvements unknown to framers of constitution, § 21. province of legislature and of the courts, § 10. subsequent, superseding prior, ^ 45. cessation of, for private uses, J 57. question of ability of public to maintain road, effect on question of, J 274. public necessity, finding of, by commissioners, J 275. PUBLICATION OF NOTICES, requisites of, § 98. PUECHASE, property should be purchased rather than condemned, § 105. tender of damages, § 1()6. allegations of efforts to, § 107. construction of contracts of, J 110. specific performance of contracts of, § 113. PURCHASER, of franchise must pay damages assessed on taking of land, J 144. ^3UALITY, of land, how set forth, 1 119. ilAILEOAD, highway an additional burden on, § 33. duty of, to make bridges, embankments, etc., for crossings, J 38. buildings necessary for, | 59. ipublic use, J 14.* streets condemned across track of, § 45. >no benefit to, of establishment of highway, I 154. 564 INDEX. RAILROAD — Continued. condemnation of part of, J 47. regulation of tolls of, § 14. crossings, cattle-guards, and running of trains of, § 43, 45.. connecting, g^ 43, 44. rights of connecting, § 44. condemnation of, for right of way crossing another railroad, 2 44a. use of land condemned by, for pnvate purposes, J 57. terminal facilities necessary for, J 59. damage for taking part of, § 179. restoring property to former condition; duty as to streets and crossings^ J§ 198, 199. use of streets; improve:? nethod of use, §§ 200, 201. obstruction of street by, § 200. use of streets by, when fee is in the public, § 203. adjoining owner, § 204. control ever right of way by ; rights of former owner, J"208. may erect telegraph-line on right of way, § 209. track need not be in centre of right of way, | 211. obstruction of private ways, J 211. obligations as to fencing, ^ 212. farm-crossings, ^§ 213, 214. bridges over cuts, and as to ditches, | 215. REASSESSMENT, by jury, when ordered, J 260. EECEIVEE, damages for lands in hands of, § 75. may be appointed when corporation fails to pay damages, J 14) RECORD, of commissioners must shov,' proceedings^ J, 23S. may preserve rulings and evidence, § 239. REFERENCE, of assessment of damages to referee, J 9a. REGULATION, of use of private property, J 9. RELIN QUISHMENT, of damages, how effected, J 117. RELOCATION, damages to be paid, J 321. REMAINDER-MEN, interest in land condemned, j 7^. REMEDY, provided by legislature, J 84, statutory, exclusive, § 87, at common law remains when statutory, not complete, JJ 88, 292.- INDEX. 565- B,F,M.EDY — Continued. when statutory, not fnllowod by condemning party, gg 90, 292, 297. whether corporation has any right in existing, g 93. in mill acts excludes common-law, § 291. following statutory, relieves from indictment, § 293. REMOVAL OP PROCEEDtNGS, may be had from state to Federal courts, J 349. KENT, apportionment of, between landlord and tenant, ^ 69. depreciation in, caused by public improvement, a ground of damages^ §m. EEPOET OF DAMAGES, effect of confirmation of, § 93. when commissioners', should be made, J 240. what it should contain, g 239a. reviewing and recommitting, § 241. how to obtain review of, § 242. presumptions in favor of regularity of proceedings, § 243, limitation on presentation of, g 344. EESERVOIES, in streets and highways, § 55, when necessary to mill-dams, may be condemned, J 302. REVERSAL, of proceedings on appeal, effect of, § 93. REVERSION, of property after public use has ceased, § 32. of highway with railroad on it, J 32. on devotion of property to private use, ? 57. no, on change of use, when the use is substantially the same, J 57» no recovery back of compensation paid in case of, § 817. does not apply to property impressed by war power, J 8. REVIEW. of report, when ordered, ^ 241. how to obtain a, J 242. RIGHT OF "WAT, contract for, how construed, J 110. contract for, how enforced ; damages for breach, 113. control of railroad over its, ? 208. use of, by former owner, g 208. telegraph-line an encroachment on. J 2QS', to whom materials belong in, | 210. track need not be in centre of, § 211. KIPARIAN OWNERS, may be compelled to keep up levee, J 7. rights on tide- waters, J 78. 566 INDEX KIT APJAN OWNERS— CoKifmueci. rights of, generally defined, | 79. improvement of navigable rivers, § 80. streams not navigable. J 81. rights of, between low and high water-mark, ^ 82. EIVEE, improvement of navigable, J 80. changes in bank of, J 80. rights between low and high water-mark, § 82 , EOAD, a public use, § 14. not solely for business travel, § 27. reversion of, to owner on discontinuance of public use, J 51. when fee of, in adjoining owner; when in public, § 51. minerals in land taken for, § 52. materials in, taken for repair I'f, §§ 52, 54. timber and grass in ; rights of pasturage, § 53. , ownership of buildings on land taken for, § 54. construction of sewers, gas-pipes, drains, reservoirs, and markets in, §55. under proprietary governments, § 125. compensation for, on wild lands, § 125. application for, § 270. petition of householders or freeholders, J 271. refusal of ofiicers to lay out, § 272. an encumbrance on land, § 273. ability of public to maintain, § 274. necessity of, how determined, § 275. extent of easement acquired in, J 276. description of, § 277. • termini of, how described, § 278. ierminua need not be on highway, g 279. ' course of, § 280. widening and straightening, § 281. alteration in, ^ 282. must be laid out as petitioned for, § 283. must be built as laid out, § 284. entry on adjoining land ; removal of fences, J 285. certificate of opening of, § 286. discontinuance of; damages to owner, § 318. damages on discontinuance of proceedings before opening of, § 319, EOUTE, change of, after location, J 58. caused by difficulty ot construction, 568. KULINGS, of commiasioners to be preserved in record, J 239. INDEX. 567 SALE, condemnation for, to others, J 23. condemnation by corporation after, of its franchise, ? 63. of similar property evidence as to value of property taken, J 170. SCHOOL-HOUSE AND "SfAKDS, a public use, J 17. SELECTION OF ROUTE, right impaired by subsequent grant, J 38. when condemnation is under general laws, § 47. priority of location, g 47. discretion of corporations, J 62. SERVICE OF NOTICES, how made and returned, J 101. SEWERS, construction of, in roads and streets, JJ 55, 354. cannot be discharged on land of another, J 190. use is public, § 354. SIDE TRACKS, necessary, definition of, §J 58, 59. SMOKE, considered as a damage to property, J 193. SPECIFIC PERFORMANCE, of contracts of conveyance of rights of way, J 113. SPRINGS, in highways ; rights of owners of soil, J 56. damages to, considered in assessment, J 216. STATE, takes a fee in land condemned for its use, ^ 50. condemnation of lands owned by, § 351. when lands owned by, are used for public purposes, g 351. condemnation by corporation of another, J 352. bridge between states, § 353. power to condemn inoperative when it conflicts with authority of U. S., 2 353. STATUTES, construction of, in favor of owner, g 84. \ remedy provided by, exclusive, J 87. allowing consequential damages, construction of, J 194. STATUTORY REMEDY, exclusive, g 87. when not complete, common-law remedy remains, J 88. STOCK, condemnation of shares of, § 42. STOCK. LIVE, frightening of, considered as a damage to property, g 193. 568 INDEX, STEEAM, diversion of; improvement of, not navigable, J 81. rights between low and high water-mark, J 82. ' must not be obstructed, §§ 187, 189. cut through barrier which protects from, J 188. discharging contents of, on another's land, § 190. damages for diversion of, when considered by commissioners, J 21G. damages from pollution of, J 358. STEEET, through depot grounds, §§ 33, 46. fee of, in adjoining owner; sometimes in the public, J 51. minerals in land taken for, § 52. materials in, taken for repair of, ^f 52, 54. timber and grass in ; rights of pasturage, § 53. ownership of buildings on land taken for, § 54. construction of sewers, gas-pipes, drains, reservoirs, markets, etc., in §55. changes of grade in ; no damages allowed for, J 195. dissenting views, § 196. statutes allowing damages for changes of grade in, J 197. restoring property on, to former condition, § 198. ■change in, rendered necessary by railroad track, J 199. use of, by railroads, g 200. legislative control over, § 201. use by railroad, where fee is in public, § 203. adjoining owner, § 204. casement of adjoining owner in ; right of access to, H 206, 207. embankments in, § 207. widening and straightening, J 281. discontinuance of; claim of adjoining owner for damages, J 318. damages when discontinuance occurs before entry, J 319. (See G-BADB, Changb of; Hoksb-Kailboa.ds.) SUPPOKT, of neighboring soil, when required, JJ 185, 187. -SUEPACE-WATEE, obstructed by structures, § 187. may be diverted from land of owner upon that of another, | 189 . SUEEBNDEE, of land by owner, in preference to payment of benefits, J 156. SUEVEY, filing of, when required, § 116. TAKING, depreciation of property a taking, J 30. of more than the public needs, J 49. evidence of time of, § 342. INDEX. 569 TAXATION, definition of, § 2. distinction between, and eminent domain, ^ 2, TAX-PAYEES, interest of, in opening of roads, when their land is not taken, J 269. TELEGKAPH-LINE, public character of, J 14a. necessary for railroad, J 59. public use, §2 14a, 21. when, may be erected on right of way of railroad, J 209. TBMPOEAKY USE OP PROPEETT, rules regulating the, J 49. TENANTS IN COMMON, notice to, of proceedings to condemn, § 103. how joined in proceedings to condemn, § 262. TENANTS FOE LIFE, interest of, in land condemned, ^ 65. rules of estimating the, g 73. TENDEE, of damages, effect of; does not justify entry, J 106. pending an appeal, when allowed, § 139. to owner, who refuses to take, justifies entry, g 147. TEEMINAL FACILITIES, of railroads, definition of, J 59. TERMINI, desrription of, when sufllcient, J 115. of public road, how described, § 278. need not be on highway, J 279. TIMBEE, in roads and streets ; rights of owner of fee, J 53. TIDE-WATEBS, Interference with ; bridges across, g 78. TITLE, damages must be paid according to true ownership, J 146. to be considered in estimating damages, J 160. remedy when ownership is not properly stated in proceedings, § 160. owner's, cannot be disputed by condemning party ; exceptions, g 161. TOLLS, of public improvement may be collected by individual or corporation, I 13. toll-house in highway; proper use of highway, J 55. TOETS. no compensation fcr tortious acts, ^ 220. TOWN, a proper party to proceedings to open roads, ^ 264. 570 INDEX. TKACT, effect of taking part of, on land left, J 166. extent of; establishments occupying several blocks, J 167. TREATING, commissioners, generally invalidates proceedings, | 236. TEESPASS, public officers engaged in condemnation are free from actions of, ? 6i. will lie wben statutory remedy is not complete, J 88. followed by condemningparty, 2 90-.- payment of damages in, does not apply on compensation, J 90. will lie when occupation varies from location filed, § 122. when compensation not provided, J 128. . damages for, on adjoining lands, § 222. unlawful occupation of land, § 221, TRIBUNAL, to assess damages must be under judicial control, § 85. whether jury or commissioners, §2 85, 91. disqualification of, on account of interest, | 86. TRUSTEES, considered owners, J 65. TURNPIKE, railroad additional burden on, | 32. not additional burden on highway, ^ 34. may be condemned for highway, ^ 45. UNITED STATES, has power to condemn property for governmental use, ^ 347. may condemn in state courts, § 347. limitation of clause in Constitution of, § 348. proceedings may be removed from state to, courts, ^ 349. condemnation of land belonging to, ^ 350. UNKNOWN OWNERS, payment into court of damages for, g 76. USE OE PROPERTY, regulation of, ^ 9. by owner after condemnation for mill purposes, J 301. VALUE, market, how proved, J 168. proved by sales of similar property, J 170. rents of similar property, J 171. effect of assessment for taxation, commissioners' report, aad admissions* of owner in fixing, § 172. not estimated solelj' from present use, ? 173. estimate should be of, at the time of taking, J 174. YENDOR'S LIEN, exists when damages are not paid, g 137, INDEX. 571 VENDOE AND VENDEE, claim of, to damages for land condemned, J 68. damages for improper construction go to vendee, 2 66. claim for damages against, of mill-dam, § 306. of, of land condemned, J 307. VENUE, change of; effect of, in condemnation proceedings, { 92. VERDICT, may be decision of majority of jury, § 256. itemizing damages in ; averaging testimony in, ^ 257. conditions in, § 258. setting aside, § 259. separate, for individual owner, ^ 267. TIBEATION, considered as a damage to property, J 193. VIEWEES, when there may be jury of, J 254. duties of jury of, J 254. "WAIVER, of notice by appearance, g 97. of agreement or eifort to purchase, J i09. of damages, J 111.. of prepayment by allowing entry and use, J? 140, 141. simple acquiescence not a, of damages, J 143. of objection to jurors, J 251. of errors in condemnation under mill act, 2 808. of irregularities in proceedings, J 324. of right of trial by jury, J 325. of errors by condemning party, 2 326. claiming damages is, ^ 328. receiving damages is, § 329. WAR, damage by enemy's troops, § 3. by friendly troops, § 3. destruction to prevent property falling into hands of enemy, § Si, WAREHOUSES, public character of, J 21. WARRANTIES, as to lands condemned, 2 87, WATEE-COURSES IN HIGHWAYS, rights of owners of soil, J 56. WATER-POWER, condemnation for, § 23. .572 INDEX. -WATEE-WOEKS, may be provided for particular town, g 12. use of streets for water-pipes ; proper use, ^ 55. public character of use, ^ 18. rigbt of municipal corporation owning bank of stream to talre supply I of water, g 79. WATS OP NECESSITY, definition of; legislation concerning, J 29. WATS, PEIVATE, justified where public may use, g 12. owners of, entitled to damages when condemned, | 65, WELL, damage to, by construction of improvement, 2 185. WIDENING, of roads and streets, J 281. WIDOWS, interest of, in land condemned, § 65. WITNESSES, who may prove market value, § 168. qualifications of expert, ^ 169. YARDS, when, exempt from condemnation; "yard" defined, § 121.