in regard to private property, the next important question arises, by whom the power must be exercised. It has been insisted that the power of taking property by virtue of the right of eminent domain, must be exercised by the State directly, without the intervention of any intermediate agents; but all doubts in regard to this are now put at rest, and the contrary doctrine firmly established. So, it has been decided in New York, that the right of eminent domain may be exercised in regard to railroads and other similar public works, either di-. rectly or through the medium of corporations or joint-stock companies; while at the same time it has been held, as we shall see hereafter, that statutes authorizing the appropriation, in order to be constitutional and valid, must make provision for the assessment and payment of the damages of the land owner.* "In all the cases where individuals or corporate bodies are authorized to take private property for the purpose of making highways, turnpike roads, and canals; of erecting and constructing wharves and basins; of establishing ferries; of draining swamps and marshes, and of bringing water to cities and villages, the object of the legislative grant of power is the pub lic benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through the medium of corporate bodies, or of individual enterprise."+ In Connecticut it has been said, "It is now established by the current of decisions, that the property of individuals taken by railroad companies and similar corporations under their charters is, from the public benefits resulting therefrom, to be deemed to be taken for the pub

*Bloodgood v. Mohawk and Hudson R.

Beekman v. The Saratoga and Sch'y R. Co. 18 Wend. 9; s. c. in error, 18 Wend. R. R. Co. 3 Paige, 75, per Walworth, Ch. 17, 78.

include the power to condemn for a city prison. East St. Louis v. St. John, 47 Ill. 463.

As the Legislature may itself lay out roads, it may do so through commissioners. Matter of Central Park, 51 Barb. 277.

As to whether the United States can exercise the power of eminent domain within the territory of the States, and as to whether the power can be exercised by the State courts in its behalf, see Gilmer v. Lime Point, 18 Cal. 229; Redall v. Bryan, 14 Md. 444; Trombly v. Humphrey, 23 Mich. 471; Burt v. Merchants' Ins. Co. 106 Mass. 356.

lic use within the constitutional provision on that subject." In Michigan, it has been said, "In the second of the articles of compact, the ordinance of 1787, it is among other things provided that no man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; or should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the

This provision was evidently framed with a jealous eye to arbitrary executive power, and was not designed to restrict judicial or legislative authority, but rather to limit and confine the power over persons and property to them;" and under the above clause it was held, that the territorial legislature could lawfully authorize a railroad corporation to take private prop erty for their use; in other words, that the power of eminent domain could be delegated.†

In Tennessee, it has been held that the taking of the land of an individual for the erection of a grist-mill thereon, at which all the inhabitants of the neighborhood should be entitled to have their grinding done in turn, and at fixed rates, was such a public use as to authorize the exercise of the right of eminent domain, though the whole property and profits of the mill were to belong to the individual proprietors, on the ground of the public utility of having such a mill, where each individual had an equal right to be served.

When Property is Deemed to be Taken. (a)—The next prining the same. Swan v. Williams, 2 Michigan,

* Bradley v. N. Y. and N. H. R. R. Co 21 Conn. 294.

In this case, it was also held that it was no objection to the charter of a railroad, in a constitutional point of view, that it did not provide for notice to the owners of the lands, of proceedings to assess the damages for tak

427.

Harding v. Goodlet, 3 Yerger, 41. In New Hampshire it has been said by the Supreme Court of that State, that the power of eminent domain may be exercised either through the action of general laws or of judicial tribunals. Bachus v. Lebanon, 11 N. H. 19.

(a) What Constitutes a Taking of Private Property for Public Use.—Under certain circumstances by the exercise of the police powers of the government, private property may be seized, confiscated, destroyed, interfered with, regulated or injured, and these acts will not constitute a taking for public use within the meaning of the Constitution. Such governmental acts are not done by virtue of the power of eminent domain. Some illustrations of this general principle are given. Ditches and drains may be required to be made under the police power. Sessions v. Crunkilton, 20 Ohio N. S. 349; O'Reiley v. Kankakee &c. Co. 32 Ind. 169, 191. A law for the

cipal subject of inquiry in regard to the guaranty of private prop erty, is as to what taking or appropriation the limitation applies.

seizure and forfeiture of bread illegally baked is valid. Guillotte v. New Orleans, 12 La. Ann. 432. And a law for the killing of dogs found abroad without a collar. Morey v. Brown, 42 N. H. 373. It has been held in California that the necessary destruction of private property by a public officer to stay a conflagration, is not a taking for public use. Sorocco v. Gearry, 3 Cal. 69. And the same was held in Minnesota when the destruction was not by authority of law. McDonald v. Red Wing, 13 Minn. 38; and see Reynolds v. Schultz, 4 Robt. (N. Y.) 282.

For cases where statutes for the confiscation of liquors have been sustained, see State v. Brennan's Liquors, 25 Conn. 278; Oviatt v. Pond, 29 Conn. 479.

Indirect and Consequential Injury.-For an exhaustive discussion of this subject, and a review of the authorities, see the recent case of Eaton v. Boston &c. R. R. 51 N. H. 504, 511. It is the settled doctrine of the States that under the general provision common to most of the Constitutions, and in the absence of any different statutory rule, there must be some actual, direct, physical interference with the property or some part thereof, to constitute the "taking" spoken of in the Constitutions. It is not necessary that the owner should be divested of all estate in the whole or in any part of the particular piece of property; nor that exclusive possession of the whole nor of any part thereof should be acquired as against him; but there must be some direct and physical interference with some part of the particular piece of property in question. As a consequence of this doctrine, indirect and consequential injuries to property, depreciations in value, and the like, unaccompanied by any direct physical interference, do not constitute the taking. We shall see, however, in the sequel, that if there be the required physical interference with some portion of a given piece of property-e. g., a tract of land—the owner is entitled, as a part of his compensation for that taking, to damages for the resulting, consequential injury to the rest of the piece or tract. The cases now cited are illustrations of the general doctrine, many of them stating it at large and discussing its extent and application. It has been held that if the State uses or diverts the waters of a navigable stream or lake, or authorizes them to be diverted, a riparian proprietor has no right to compensation as he has no private interest or ownership in the waters or in the bed of the stream or lake. Commrs. v. Withers, 29 Miss. 21; Boston & Wor. R. R. v. Old Colony R. R. 12 Cush. 605. But there are cases which seem to be opposed to this doctrine, and to hold that the riparian owner is entitled under the Constitution to compensation. Avery v. Fox, 1 Abb. U. S. R. 246; Yates v. Milwaukee, 10 Wal. 497. If the land of the riparian owner is actually flowed, this is a taking notwithstanding the stream is a navigable and public one; but this rests upon a different principle from the cases last above cited, for here the owner's land is actually invaded, and it is not a case of mere interference with his use of the stream which belongs to the public and not to him. Pumpelly v. Green Bay Co. 13 Wal. 166. A railroad running along within the lines of a navigable river and below low water-mark upon piles, cut off access to the land of a riparian owner and interfered with his use of the river; held not to be a taking, and that he was not entitled to compensation. Gould v. Hudson River R. R. 6 N. Y. 522. Dams constructed in a stream which indirectly injured a canal, held not to be a "taking." Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Nav. Co. v. Coon, 6 W. & S. 101.

Injury to the business of one turnpike, or such like means of travel, by the con

It seems to be settled that, to entitle the owner to protec tion under this clause, the property must be actually taken, in

struction of another route, such as a railroad, another turnpike, or the like, does not entitle the injured parties to compensation,-there is no "taking." Troy &c. R. R. v. Northern Turnp. Co. 16 Barb. 100; La Fayette Plank R. v. New Albany &c. R. R. 13 Ind. 90; Harvey v. Lackawana &c. R. R. 47 Penn. St. 428.

Laying out a highway along a proprietor's line, and thus making it necessary that he should construct and maintain the whole line fence, does not entitle him to compensation for such additional expense. Kennett's Petition, 4 Fost. 139; Eddings v. Seabrook, 12 Rich (Law.) 504.

It was held in Arkansas that granting and establishing a ferry landing within the limits of a highway where it abutted on the stream, was not a “taking" as against the abutting owner of the fee of the highway. Murray v. Menefee, 20 Ark. 561. But this decision cannot be reconciled with numerous others which hold that the imposition of an additional easement upon the soil of a highway is a "taking" as against the owner of the fee. See this subject infra in this note.

Consequential injury to a fishery gives no claim to compensation. Tinicum Fishery Co. v. Carter, 61 Penn. St. 21. The annexation of a country district to a city, thereby imposing an increased burden of taxation upon the inhabitants of that district, is in no sense a "taking." Wade v. Richmond, 18 Gratt. 583. It seems that the owner of a way is not entitled to compensation for the establishment of a railroad over it, although he is inconvenienced thereby. Boston & Worc. R. R. v. Old Colony R. R. 12 Cush. 605.

Injuries caused by a change of grade of streets do not constitute a "taking" so as to require compensation. Marcy v. Indianapolis, 17 Ind. 267.

For a statement and discussion of the general rule, see In re Mt. Washington R. R. 35 N. H. 134; Alexander v. Milwaukee, 16 Wisc. 247; Arnold v. Hudson Riv. R. R. 49 Barb. 108. A fortiori remote and speculative injuries are not entitled to be compensated for, and remote and speculative damages are not allowed. Swett v. Troy, 62 Barb. 630; Spangler's Appeal, 64 Penn. St. 387; Koch v. Williamsport &c. Co. 65 Penn. St. 288. As an illustration, when N.'s land is taken for a public wharf near his private wharf, the loss of his profits cannot be considered. Fuller v. Edings, 11 Rich. (Law.) 239; see Boston & Wor. R. R. v. Old Colony R. R. 12 Cush. 605; Richmond &c. Co. v. Rogers, 1 Duv. (Ky.) 135 (injury to a ferry).

It was held in Vermont that where a railroad constructed a high embankment upon its own land adjoining to the land of a private proprietor, which embankment interfered with the access of the latter to his house and lot, such proprietor was not entitled to compensation under the Constitution, and was without remedy in any. form of judicial proceeding. Richardson v. Vt. Cent. R. R. 25 Vt. 465. This is undoubtedly in accordance with the generally received doctrine. There are decisions, however, in some of the States, which are not in entire harmony with this doctrine, and which secure some remedy to the proprietor in analogous cases. Thus in Indiana, although the fee of public highways or streets is in the public and not in the abuttors, it is held that the abuttor has a legal right, in the nature of an easement, to have free access to the highway from his abutting land. If this right is interfered with either by private persons acting without right, or by railroad and other corporations acting under authority of the State, the abuttor has a remedy for his damages by action. But even here it is said the act of a railroad or other corporation in build

the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential

ing an embankment or the like in the highway, is not a "taking" which entitles the abuttor to compensation under the Constitution, but only an invasion of a right which entitles him to damages in an ordinary action. Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis &c. R. R. 9 Ind. 467; Evansville &c. R. R. v. Dick, 9 Ind. 433; New Albany &c. R. R. v. O'Dailey, 13 Ind. 353. The same rule prevails in Ohio. Crawford v. Delaware, 7 Ohio, N. S. 459; Street R. R. v. Cumminsville, 14 Ohio, N. S. 523. In New Jersey it was held in a well considered case that where a person or corporation is not acting solely for the public good, but in part for private gain—e. g., a railroad—and necessarily does some consequential injury to the lands of a proprietor although none of his lands are taken, such proprietor may recover his damages by action, although not entitled to "compensation" as for a taking. Tinsman v. Belvidere &c. R. R. 2 Dutch. 148; see also Glover v. Powell, 2 Stockt. (N. J.) .211; Plum v. Morris Canal Co. Ib. 256. In Missouri, also, it is held that obstruction to a highway cannot be legally authorized without compensation to the abuttor, although not the owner of the fee. Lackland v. North Mo. R. R. 31 Mo. 180; see also, McKeen v. Delaware &c. Co. 49 Penn. St. 424.

In some States compensation is required by statute to be made for "injuriously affecting" as well as for "taking." See Heyneman v. Blake, 19 Cal. 579.

The parties exercising the right of eminent domain, or carrying out the improvement under their authority, are liable for consequential damages arising from negligence or want of skill in constructing the works. Bellinger v. N. Y. Cent. R. R. 23 N. Y. 42; N. Y. & Erie R. R. v. Young, 33 Penn. St. 175.

Illustrations of "taking."—In the following instances property is "taken," within the meaning of the Constitution. Subjecting land to a perpetual flowage, even though on a navigable stream. Pumpelly v. Green Bay Co. 13 Wal. 166; depriving owner of the ordinary use of his land. Hooker v. New Haven &c. Co. 14 Conn. 146. Taking or injuring water front on a stream not navigable. Varick v. Smith, 9 Paige, 547. Taking an exclusive wharfage right on tide water. Murray v. Sharp, 1 Bosw. 539. Appropriating the herbage in highways which belongs to the abuttors. Tonawanda R. R. v. Munger, 5 Denio, 255; Woodruff v. Neal, 28 Conn. 165. Compelling owner to do acts on his property involving expense or injury to his property, e. g, compelling him to open a fish way in a private dam. State v. Glen, 7 Jones (Law), 321; or compelling an abuttor on a private way to grade the same. Morse v. Stocker, 1 Allen, 150.

Detention by government of a sum awarded by the Court of Claims is a taking of private property for public use. Brown v. United States, 6 Ct. of Claims (Nott & Huntington) R. 171. Whether seizure under the abandoned or captured property act is a taking. See Wylie's Case, 6 Ib. 295. The emancipation of slaves was held in Kentucky to be a taking for public use. Corbin v. Marsh, 2 Duv. 193.

The general rule was stated by the court in Pumpelly v. Green Bay Co. 13 Wall. 166, that property need not be absolutely taken in the narrowest sense of that word; there may be such serious interruption to the common and necessary use of it as will be equivalent to a taking. "Where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed upon it, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution." Per Miller, J. p. 181. See Redall v. Bryan,