individual to the community; and it seems very difficult in reason to show why the State should not pay for property of which it destroys or impairs the value, as well as for what it physically takes. If by reason of a consequential damage the value of real estate is positively diminished, it does not appear arduous to prove that in point of fact the owner is deprived of property, though a particular piece of property may not be actually taken. Objections of the same kind might be urged to our system of assessment for local improvements, by which, in too many cases, the only compensation for real estate actually taken, is in an hypothetical and imaginary benefit conferred. may be true that if the benefit conferred by an improvement on adjacent proprietors were not taken into consideration, some inequality would result; but it seems more conformable to equity, and indeed to the language of the constitutional clause, that an individual advantage should be conferred in a few cases on a citizen, than that in many he should be a direct and certain loser, in consequence of public improvements.

It

But considerations of this kind have been silenced by the universal demand for works tending to develop the internal resources of the country; a general disposition' has been felt not to cramp these enterprises by a too sweeping or extensive compensation; and the matter can only be now remedied by the insertion of carefully drawn clauses in our legislative acts, which shall give to property the full protection that the constitutional guaranty has failed to secure.

Compensation. (a)—In our examination of the clause which

(a) The Compensation.-Compensation is necessary, and must be expressly provided for. A statute for taking private property without provision for a just compensation is void. People v. Kimball, 4 Mich. 95: and the owner may bring trespass. Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588. The Constitution does not execute itself; the statute must provide for compensation. A taking without original authority of law cannot be so confirmed by subsequent act as to take away the right of action on account of the wrongful taking and substitute for it a statutory right and mode of compensation. Matter of Townsend, 39 N. Y. 171.

What is a "Just" Compensation, Method of Assessment, etc.—In the absence of express constitutional provisions, the compensation, it seems, cannot consist in laying out ways or other improvements instead of payment of money, unless by assent of the Central &c. R. R. v. Holler, 7 Ohio, N. S. 220.

owner.

The amount of the compensation must be determined by a fair tribunal; a stat

we are now discussing, the last head to be considered is in regard to the time and mode of making compensation.

On

ute providing that an agent of a railroad company should be one of a board to assess the damages ex parte, to be paid by the company was held invalid. Powers v. Bears, 12 Wisc. 213. A provision for assessment by a board of three citizens without notice was also held void. Langford v. Ramsey Co. 16 Minn. 375. But it is said in some States that notice is not necessary, at least to non-resident owners. Anderson v. Turbeville, 6 Cold, 150; Johnson v. Joliet &c. R. R. 23 Ill. 202; nor that the tribunal should be sworn, Ibid. The Tennessee case, while holding that notice is not necessary of the proceedings to condemn, does, however, require notice of the assessment of compensation. If the owner is notified and appears, he cannot object that the statute does not require notice. Kramer v. Cleveland &c. R. R. 5 Ohio, N. S. 140.

A statute providing for notice by publication, and that persons not making claims within a specified time should be barred is valid. Cupp v. Commrs. 19 Ohio, N. S. 173.

The decisions are directly conflicting in different States as to the necessity of a jury. In some a jury is expressly required, and in others is expressly waived by the Constitution. In most, however, the Constitution is silent upon this particular. In New Hampshire a jury is unnecessary. In re Mt. Washington &c. R. R. 35 N. H. 134. In Mississippi it is held that a jury is essential. Isom v. Mississippi &c. R. R. 36 Miss. 300; and in Indiana, Lake Erie &c. R. R. v. Heath, 9 Ind. 558, except in proceedings to open highways. Drouberger v. Reed, 11 Ind. 420; Hymes v. Aydelott, 26 Ind. 431. In Ohio a jury is required by the Constitution. Matter of Wells County Road, 7 Ohio, N. S. 16; see to the necessity of a jury, Norristown &c. Co. v. Burket, 26 Ind. 53; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588; Pennsylvania R. R. v. Lutheran Cong. 53 Penn. St. 445; Louisiana &c. Pl. R. v. Pickett, 25 Mo. 535 (jury of five good); H. T. & B. R. W. Co. v. Milburn, 34 Tex, 224; see also note upon "Trial by Jury."

The Constitution requiring a jury, a statute providing for a jury but not distinctly requiring that they should be sworn, was held void, and the fact that the jury were actually sworn made no difference. Lunesden v. Milwaukee, 8 Wisc. 485. This case would, doubtless, not be followed.

The right of a trial by jury in cases of assessing compensation involves the principle, that all the jurors must concur in the verdict. Chicago &c. R.. R. v. Sanford, 23 Mich. 418.

The Constitution providing for assessment by a jury or by commissioners, a statute authorizing the court, on appeal or on motion to confirm the report, to increase or diminish the award was held void. Rochester Water Co. v. Wood, 60 Barb. 137. The statutory method is exclusive of any other. Brown v. Beatty, 34 Miss. 227; Colclough v. Nashville &c. R. R. 2 Head, 171; Dunlap v. Pulley, 28 Iowa, 469; and it seems even when the statutory provisions for taking are not strictly observed. Indiana &c. R. R. v. Oakes, 20 Ind. 9. But the statutory authority must be strictly followed. Curran v. Shattuck, 24 Cal. 427.

The compensation must be made to the true owner; and if the owner is a married woman, her right to the money awarded must be protected. East Tenn. R. R. v. Love, 3 Head, 63.

When the Compensation Must be Made.-For cases which hold that the compensation must be simultaneous with the taking, see Walther v. Warner, 25 Mo. 277;

this subject much diversity of opinion has existed, as to whether payment or tender of compensation should be made a

San Francisco v. Scott, 4 Cal. 114; Drouberger v. Reed, 11 Ind. 420; Comms. v. Bowie, 34 Ala. 461; Penrice v. Wallis, 37 Miss. 172; Henry v. Dubuque &c. R. R. 10 Iowa, 540; Shute v. Chicago &c. R. R. 26 Ill. 436; Ferris v. Bramble, 5 Ohio, N. S. 109; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588; Fox v. Western Pacific R. R. 31 Cal. 538.

Where the compensation is to be a condition to or simultaneous with the taking, equity will enjoin the use of the land until the compensation be made. Shute v. Chicago &c. R. R. 26 Ill. 436; People v. Law, 34 Barb. 494; Western &c. R. R. v. Owings, 15 Md. 199; Curran v. Shattuck, 24 Cal. 427; Penrice v. Wallis, 37 Miss. 172.

When the Constitution requires the compensation to be paid prior to the taking, and a statute authorizing the taking does not specify whether the compensation is to be made before or after the property is taken, it will be construed to intend the former. Sharpless v. West Chester, 1 Grant's Cases, 257.

The owner can waive prepayment, and a short period of acquiescence in the progress of the work will amount to such waiver. McAuley v. Western &c. R. R. 33 Vt. 311; but, per contra, it was held in California that when compensation is a prerequisite, taking without such compensation made at the time is wholly void, and the owner cannot afterwards affirm the taking and recover the compensation in an action. Johnson v. Alameda Co. 14 Cal. 106.

Preliminary steps, such as entry, location, and survey may be made before payment of compensation. Fox v. Western Pac. R. R. 31 Cal. 538; and see State v. Seymour, 6 Vroom, 47.

But until payment or tender no title is vested, and the party who has taken preliminary steps for condemnation of the property may withdraw. A city will not be compelled by mandamus to go on and complete the taking of land for a street, either at the suit of the owner or of one who purchased materials and a portion of a lot at a sale by the city of such materials, etc., on the route of the proposed street, although damages and betterments may have been assessed, and although such purchaser may have paid the betterments assessed on him. State v. Graves, 19 Md. 351; but whether the city would not be liable in damages, qu.

A provision in a charter that, in case of appeal from the commissioners, and refusal by owner of a tender of the amount awarded, such amount may be paid into court, and the corporation may thereupon take the land, is valid under a Constitution requiring the payment to precede the taking. Cooper v. Chester R. R. 4 C. E. Green (N. J.), 199. See also Peterson v. Ferreby, 30 Iowa, 327. But on the contrary, there is a reported case which holds that a statute authorizing the taking of land on tender of the damages awarded by viewers, without awaiting the result of an appeal, is unconstitutional and void. Watson v. P. & C: R. R. 2 Pittsb. 99.

There are cases which, in the absence of constitutional requirements of prepayment, hold it sufficient if compensation is secured. Smith v. Taylor, 34 Tex. 589; Rexford v. Knight, 11 N. Y. 308; People v. Mich. So. R. R. 3 Mich. 496; Taylor v. Marcy, 25 Ill. 518; Harper v. Richardson, 22 Cal. 251; People v. Hayden, 6 Hill, 359; Commonwealth v. Pittsburg &c. R. R. 58 Penn. St. 26.

Pledge of taxes to be raised in a school district as security for the compensation for land taken for the district school-house, was held a sufficient compliance with

condition precedent to any act of interference with private property. The only certain guaranty, of course, would be

the Constitution. Long v. Fuller, 68 Penn. St. 170. Providing that a mill owner flowing the land of another shall pay what the land is worth, "to be ascertained by the verdict of a jury in an action of trespass," is not providing a just compensation; but aliter, it seems, if the judgment to be recovered in such action is made a lien from the institution of the proceeding. Newell v. Smith, 15 Wisc. 101.

Compensation by judgment to be rendered at least two terms after the taking, is not adequate. Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588.

Amount of the Compensation.-The owner is entitled to the fair value of the land taken, its value to sell, and not any value special or peculiar to himself. Somerville &c. R. R. v. Doughty, 2 Zab. 495; Sater v. Burlington &c. R. R. 1 Iowa, 386; Henry v. Dubuque &c. R. R. 2 Iowa, 288; Lexington v. Long, 31 Mo. 369; Dickinson v. Fitchburg, 13 Gray, 546. In ascertaining the present worth of land condemned for a railroad, the fact that it is necessary for the railroad to have it is not to be considered. Virginia &c. R. R. v. Elliott, 5 Nev. 358. And if land of one corporation is taken by another, its value in the market, and not its value for the purposes of the particular corporation holding it, is to be given. Boston & Wor. R. R. v. Old Colony R. R. 12 Cusb. 605; and see Goodin v. Cincinnati Canal Co. 18 Ohio, N. S. 169. When the franchise of a railroad is taken in whole or in part, it is not just compensation to repay the expense of construction of the road. Commonwealth v. Pittsburg &c. R. R. 58 Penn. St. 21, 50.

A statute provided for compensation for commodities impressed, according to a scale of prices, fixed from time to time by commissioners, and to be in force for a certain period of time; this was held invalid under the Constitution of the Confederate States; the fair value at the time of taking must be paid. Cunningham v. Campbell, 33 Geo. 625.

When part of a tract is taken, the compensation includes the consequential injury to the remaining portion. The owner is entitled to the amount in which this remaining portion is depreciated in value; and in ascertaining this amount, all circumstances which naturally injure the property, resulting from the use of the part taken, are to be taken into account, such as difficulty of access, difficulty in carrying on business, danger from fire, increased expense, and the like. But the owner is not to be compensated for injuries speculative and too remote. Bigelow v. West Wiscon

sin R. R. 27 Wisc. 478; Wilmington &c. R. R. v. Stauffer, 60 Penn. St. 374; Matter of Utica &c. R. R. 56 Barb. 456; Hatch v. Cincinnati &c. R. R. 18 Ohio, N. S. 92; Denton v. Polk Co. 9 Iowa, 594; Newby v. Platte Co. 25 Mo. 258; Pacific R. R. v. Chrystal, 25 Mo. 544; Carpenter v. Landaff, 42 N. H. 218; Winona & St. P. R. R. v. Waldron, 11 Minn. 515; Nicholson v. N. Y. & N. H. R. R. 22 Conn. 74; Nichols v. Bridgeport, 23 Conn. 189; Mayor v. Long, 31 Mo. 369; St. Louis &c. R. R. v. Richardson, 45 Mo. 466; Little Miami R. R. v. Collett, 6 Ohio, N. S. 182; Somerville &c. R. R. v. Doughty, 2 Zab. 495; Sater v. Burlington &c. Pl. R. 1 Iowa, 393; Henry v. Dubuque &c. R. R. 2 Iowa, 300; In re Poughkeepsie &c. R. R. 63 Barb. 151.

Set-off of Betterments or Benefits.-There is direct conflict in the authorities upon the question whether, in estimating the compensation, the benefits or betterments resulting to the owner may be set off against the gross amount awarded him. In some States this is expressly forbidden by constitutional provision; and in others by

to make compensation, in all cases, precede the first act of interference with individual property; but it is at once apparent, in this as in many other acts of administrative power, that conflicting interests present themselves, difficult to be reconciled. In the construction of works of public improvement, as railroads or canals, for instance, before it is known what lands will be wanted, preliminary steps, such for instance as surveys, are indispensably necessary. These preliminary steps are, in themselves, a trespass, and may sometimes, as by the felling of trees, work actual injury to the proprietor. On the other hand, if payment be not made before the work is actually begun, then,

statute. In those States where there is no constitutional prohibition, there is a conflict of decision. Many cases hold, and perhaps this is the general rule, that in estimating that portion of the compensation which results from the injury to that portion of the proprietor's land not taken, any benefits to such portion special and peculiar to himself resulting from the improvement are to be offset against the injuries. Columbus P. & I. R. R. v. Simpson, 5 Ohio, N. S. 251; Kramer v. Cleveland &c. R. R. 5 Ohio, N. S. 140; Newby v. Platte Co. 25 Mo. 258; Garrett v. St. Louis, 25 Mo. 505; People v. Williams, 51 Ill. 63; In re Mt. Washington R. R. 35 N. H. 134. That benefits cannot be offset, see, Brown v. Beatty, 34 Miss. 227; Trow v. Mississippi R. R. 36 Miss. 300; Penrice v. Wallis, 37 Miss. 172; Alabama &c. R. R. v. Burkett, 42 Ala. 83; Carson v. Coleman, 3 Stockt. 106.

The Legislature may cause the tax for payment of the compensation to be assessed on the particular locality. Miller v. Craig, 3 Stockt. 175; People v. Nearing, 27 N. Y. 306; Cleveland v. Wick, 18 Ohio, N. S. 303 (under the new Constitution of Ohio, which prohibits offset of benefits); Sessions v. Crunkilton, 20 Ohio, N. S. 349.

The value of land taken, must be given without any deduction for benefits: but the benefits may be offset against the damage to the remaining lands. Robbins v. Milwaukee &c. R. R. 6 Wisc. 636; Buffalo Bayou &c. R. R. v. Ferris, 26 Tex. 588; Elizabethtown &c. R. R. v. Helm, 8 Bush, 681; See Hayes v. 0. O. & R. V. R. R. 54 Ill. 373.

In those States where benefits may be offset, only those peculiar to the owner are allowed; those which he shares in common with the community about him cannot be. St. Louis &c. R. R. v. Richardson, 45 Mo. 466; In re Mt. Washington R. R. 35 N. H. 134; Penrice v. Wallis, 37 Miss. 172; Pacific &c. R. R. v. Chrystal, 25 Mo. 544;. Winona &c. R. R. v. Waldron, 11 Minn. 515; Nichols v. Bridgeport, 23 Conn. 189; and see also cases last above cited.

If the owner is satisfied with the provision made for his compensation, an occupant holding under him cannot complain that the act is void. Detmold v. Drake, 46 N. Y. 318.

When the damages for the erection of a bridge have been assessed and paid, it will be presumed that they included all liability to injury from a future change in the height of the bridge. Skinner v. Hartford Bridge Co. 29 Conn. 523; Benden v. Nashua, 17 N. H. 477.