case, to authorize lands already taken for one public use to be appropriated to another, there must be distinct and express legislative authority.1 with the use of his property any more than the ordinary highway?' It is clear that this reasoning can have no appropriate application to a case in which it appears that the use of the street is so far from being nearly identical with that of the ordinary highway that in law it has always been regarded as an injury to such public easement, and on that account an indictable offence. “I regard, then, a right to hold a market in a street as an easement additional to, and in a measure inconsistent with, its ordinary use as a highway. The question therefore is presented, Can such easement be conferred by the legislature on the public without compensation to the land-owner? I have already said that from the first it has appeared to me this question must be answered in the negative. I think the true rule is, that land taken by the public for a particular use cannot be applied under such a sequestration to any other use to the detriment of the land-owner. This is the only rule which will adequately protect the constitutional right of the citizen. To permit land taken for one purpose, and for which the land-owner has been compensated, to be applied to another and additional purpose, for which he has received no compensation, would be a mere evasion of the spirit of the fundamental law of the State. Land taken and applied for the ordinary purpose of a street would often be an improvement of the adjacent property; an appropriation of it to the uses of a market would, perhaps, as often be destructive of one-half the value of such property. Compensation for land, therefore, to be used as a highway, might, and many times would be, totally inadequate compensation if such land is to be used as a public market place. Few things would be more unjust than, when compensation has been made for land in view of one of these purposes, to allow it to be used without compensation for the other. The right of the public in a highway consists in the privilege of passage, and such priv. ileges as are annexed as incidents by usage or custom, as the right to make sewers and drains, and to lay gas and water pipes. These subordinate privileges are entirely consistent with the primary use of the highway, and are no detriment to the land-owner. But I am not aware of any case in which it has been held that the public has any right in a highway which is incongruous with the purpose for which it was originally created, and which at the same time is injurious to the proprietor of the soil. Such certainly has not been the course of judicial decision in our own courts. Indeed the cases appear to be all ranged on the opposite side. I have shown that the legalization of the use of a street by a horse railroad has been carefully placed on the ground that such an appropriation of the street was merely a new mode of its legitimate and ordinary use. The rationale adopted excludes by necessary implication the hypothesis that the dedication of a street to a new purpose, inconsistent with its original nature, would be legal with respect to the uncompensated land-owner. But beyond this it has been expressly declared that such superadded use would be illegal. In the opinion of Mr. Justice Haines, in Starr v. Camden & Atlantic R. R. Co., 24 N. J. 592, it is very explicitly held that the constitution of this State would prevent the legislature from granting to a railroad company a right to use a public highway as a bed for their road without first making compensation to the owner of the soil. And in the case of Hinchman v. The Paterson Horse Railroad Co., already cited, Chancellor Greene quotes these views, and gives the doctrine the high sanction of his own approval. See also the Central R. R. Co. v. Hetfield, 29 N. J. 206.” The learned judge then distinguishes Wright v. Carter, 27 N. J. 76, and quotes, as sustaining his own views, State v. Mayor, &c. of Mobile, 5 Porter, 279; s. c. 30 Am. Dec. 564; Trustees of Presbyterian Society v. Auburn & Rochester R. R. Co., 3 Hill, 567; Williams v. N. Y. C. R. R. Co., 16 N. Y. 97; Angell on Highways, § 243 et seq., and cases cited. 1 In re Boston, &c. R. R. Co., 53 N. Y. 574; State v. Montclair R. Co., 35 N. J. 328; Railroad Co. v. Dayton, 23 Ohio St. Although the regulation of a navigable stream will give to the persons incidentally affected no right to compensation, yet if the stream is diverted from its natural course, so that those entitled to its benefits are prevented from making use of it as before, the deprivation of this right is a taking which entitles them to compensation, notwithstanding the taking may be for the purpose of creating another and more valuable channel of navigation. The owners of land over which such a stream flows, although they do not own the flowing water itself, yet have a property in the use of that water as it flows past them, for the purpose of producing 510; Stanley v. Davenport, 54 Iowa, 463; s. c. 37 Am. Rep. 216. In a case where á steamboat company's dock was suffered to be taken by a railroad, it was said that the test of whether land is thus held for public use "appears to be not what the owner does or may choose to do, but what under the law it must do, and whether a public trust is impressed upon it." Matter of New York, L. & W. R. R. Co., 99 N. Y. 12. One railroad may condemn an easement to cross another East St. Louis Conn. Ry. Co. v. East St. Louis, &c. Co., 108 Ill. 265; Toledo A. A. &c. Ry. Co. v. Detroit, &c. R. R. Co., 62 Mich. 564. When by agreement it already has a crossing, a further one may be condemned. Chicago & W. I. R. R. Co. v. Ill. Centr. R. R. Co., 113 Ill. 156. One railroad may not condemn a strip lengthwise of another without express legislative authority: Alexandria & F. Ry. Co. v. Alexandria, &c. R. R. Co., 75 Va. 780; Barre R. R. Co. v. Montpelier, &c. R. R. Co., 17 Atl. Rep. 923 (Vt.); nor may it take a considerable portion of another's yard unless absolutely necessary. Appeal of Sharon Ry. 17 Atl. Rep. 234 (Pa.). But see Chicago & N. W. Ry. Co. v. Chicago, &c. R. R. Co., 112 Ill. 589. As to the right of condemnation where a track is already laid in a narrow pass, see Anniston, &c. R. R. Co. v. Jacksonville, &c. R. R. Co., 82 Ala. 297; Montana Centr. Ry. Co. v. Helena, &c. Co., 6 Mont. 416; Denver & R. G. Ry. Co. v. Denver, &c. Co., 17 Fed. Rep. 867; Ill. Centr. R. R. Co. v. Chicago, &c. R. R. Co., 122 Ill. 473. If by necessary implication under the circumstances such power is intended to be granted, a lengthwise condemnation is valid. Providence, &c. R. R. Co. v. Norwich, &c. R. R. Co., 138 Mass. 277. Streets may be opened across tracks: St. Paul, M. & M. Ry. Co. v. Minneapolis, 35 Minn. 141; Pres't, &c. D. & H. C. Co. v. Whitehall, 90 N. Y. 21; but not, without express authority, across necessary depot grounds acquired by condemnation. Prospect Park, &c. R. R. Co. v. Williamson, 91 N. Y. 552; or by purchase. St. Paul Union Depot Co. v. St. Paul, 30 Minn. 359. Compare New York & L. B. R. R. Co. v. Drummond, 46 N. J. L. 644. Nor may a ditch be located lengthwise of a railroad right of way. Baltimore & O. &c. R. R. Co. v. North, 103 Ind. 486. Without such authority a railroad may not condemn land dedicated as a levee: Oregon Ry, Co. v. Portland, 9 Or. 231; nor a school district, a poor farm for school site. Appeal of Tyrone School Dist., 15 Atl. Rep. 667 (Pa.). The existing use must be actual and in good faith. Rochester, H. & L. R. R. Co. v. New York, &c. Co., 110 N. Y. 128; Matter of Rochester, H. & L. R. R. Co., Id., 119; New York & A. R. R. Co. v. New York, &c. R. R. Co., 11 Abb. N. C. 386. See also cases, 647, note 1, ante. When for a way land already used for that purpose is taken, everything upon it is also taken; such as flagstones, bridges, culverts, &c.; and the assessment of damages should cover the whole: Ford v. County Commissioners, 64 Me. 408; also any buildings which it may be necessary to destroy. Lafayette, &c. R. R. Co. v. Winslow, 66 Ill. 219. 1 People v. Canal Appraisers, 13 Wend. 355. And see Hatch v. Vermont Central R. R. Co., 25 Vt. 49; Bellinger v. New York Central R. R. Co., 23 N. Y. 42; Gardner v. Newburg, 2 Johns. Ch. 162; s. c. 7 Am. Dec. 526; Thunder Bay, &c. Co. v. Speechly, 31 Mich. 336; Emporia v. Soden, 25 Kan. 588; s. c. 37 Am. Rep. 265. mechanical power, or for any of the other purposes for which they can make it available, without depriving those below them of the like use, or encroaching upon the rights of those above; and this property is equally protected with any of a more tangible character.1 What Interest in Land can be taken under the Right of Eminent Domain. Where land is appropriated to the public use under the right of eminent domain, and against the will of the owner, we have seen how careful the law is to limit the public authorities to their precise needs, and not to allow the dispossession of the owner from any portion of his freehold which the public use does not require. This must be so on the general principle that the right, being based on necessity, cannot be any broader than the necessity which supports it. For the same reason, it would seem that, in respect to the land actually taken, if there can be any conjoint occupation of the owner and the public, the former should not be altogether excluded, but should be allowed to occupy for his private purposes to any extent not inconsistent with the public. use. As a general rule, the laws for the exercise of the right of eminent domain do not assume to go further than to appropriate the use, and the title in fee still remains in the original owner. In the common highways, the public have a perpetual easement, but the soil is the property of the adjacent owner, and he may make any use of it which does not interfere with the public right of passage, and the public can use it only for the purposes usual with such ways.2 And when the land ceases to be used by the public as a way, the owner will again become restored to his complete and exclusive possession, and the fee will cease to be encumbered with the easement.3 1 Morgan v. King, 18 Barb. 284; s. c. 35 N. Y. 454; Gardner v. Newburg, 2 Johns. Ch. 162; s. c. 7 Am. Dec. 526; Emporia v. Soden, 25 Kan. 588; s. c. 37 Am. Rep. 265. 2 In Adams v. Rivers, 11 Barb. 390, a person who stood in the public way and abused the occupant of an adjoining lot was held liable in trespass as being unlawfully there, because not using the highway for the purpose to which it was appropriated. See, as to what is a proper use of highway by land, Bliss v. South Hadley, 145 Mass. 91; Gulline v. Lowell, 144 Mass. 491; by water, Sterling v. Jack son, 37 N. W. Rep. 845 (Mich.). Hay standing on land which has been condemned for right of way belongs to the land-owner. Bailey v. Sweeney, 64 N. H. 296. So of ice. Julien v. Woodsmall, 82 Ind. 568. Where in the course of a sewer improvement the fee of an island is not taken, the gravel taken from it may be used elsewhere in the sewer work. Titus v. Boston, 149 Mass. 164. 8 Dean v. Sullivan R. R. Co., 22 N. H. 316; Blake v. Rich, 34 N. H. 282; Henry v. Dubuque & Pacific R. R. Co., 2 Iowa, 288; Weston v. Foster, 7 Met. 297; Quimby v. Vermont Central R. R. Co., 23 Vt. 387; Giesy v. Cincinnati, &c. R. R. Co., 4 Ohio St. 308. See Skillman v. It seems, however, to be competent for the State to appropriate the title to the land in fee, and so to altogether exclude any use by the former owner, except that which every individual citizen. is entitled to make, if in the opinion of the legislature it is needful that the fee be taken. The judicial decisions to this effect proceed upon the idea that, in some cases, the public purposes cannot be fully accomplished without appropriating the complete title; and where this is so in the opinion of the legislature, the same reasons which support the legislature in their right to decide absolutely and finally upon the necessity of the taking will also support their decision as to the estate to be taken. The power, it is said in one case, "must of necessity rest in the legislature, in order to secure the useful exercise and enjoyment of the right in question. A case might arise where a temporary use would be all that the public interest required. Another case might require the permanent and apparently the perpetual occupation and enjoyment of the property by the public, and the right to take it must be coextensive with the necessity of the case, and the measure of compensation should of course be graduated by the nature and the duration of the estate or interest of which the owner is deprived." 2 And it was therefore held, where the statute provided that lands might be compulsorily taken in feesimple for the purposes of an almshouse extension, and they were taken accordingly, that the title of the original owner was thereby entirely devested, so that when the land ceased to be used for the public purpose, the title remained in the municipality which had appropriated it, and did not revert to the former owner or his heirs. And it does not seem to be uncommon to provide that, in the case of some classes of public ways, and especially of city and village streets, the dedication or appropriation to the public Chicago, &c. Ry. Co. 43 N. W. Rep. 275 Com'rs v. Armstrong, 2 Lans. 429; s. c. (Iowa); ante, p. 679, note 1. on appeal, 45 N. Y. 234; and 6 Am. Rep. 70. 1 Roanoke City v. Berkowitz, 80 Va. 616. See Matter of Amsterdam Water Commissioners, 96 N. Y. 351. This, however, is forbidden by the Constitution of Illinois of 1870, in the case of land taken for railroad tracks. Art. 2. § 13. And we think it would be difficult to demonstrate the necessity for appropriating the fee in case of any thoroughfare; and if never needful, it ought to be held incompetent. See New Orleans, &c. R. R. Co. v. Gay, 32 La. Ann. 471. 2 Heyward v. Mayor, &c. of New York, 7 N. Y. 314, 325. See also Dingley v. Boston, 100 Mass. 544; Brooklyn Park Heyward . Mayor, &c. of New York, 7 N. Y. 314. And see Baker v. Johnson, 2 Hill, 342; Wheeler v. Rochester, &c. R. R. Co., 12 Barb. 227; Munger v. Tonawanda R. R. Co., 4 N. Y. 349; Rexford v. Knight, 11 N. Y. 308; Commonwealth v. Fisher, 1 Pen. & Watts, 462; De Varaigne v. Fox, 2 Blatch. 95; Coster v. N. J. R. R. Co., 23 N. J. 227; Plitt v. Cox, 43 Pa. St. 486; Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234; s. c. 6 Am. Rep. 70; Water Works Co. v. Burkhart, 41 Ind. 364. Compare Gebhardt v. Reeves, 75 Ill. 301. use shall vest the title to the land in the State, county, or city; the purposes for which the land may be required by the public being so numerous and varied, and so impossible of complete specification in advance, that nothing short of a complete ownership in the public is deemed sufficient to provide for them. In any case, however, an easement only would be taken, unless the statute plainly contemplated and provided for the appropriation of a larger interest.1 The Damaging of Property. In addition to providing for compensation for the taking of property for public use, several States since 1869 have embodied in their constitutions provisions that property shall not be "damaged" or "injured" in the course of public improvements without compensation. The construction of these provisions has not been uniform. In some cases they are held to require compensation only where like acts done by an individual would warrant the recovery of damages at common law. In others a broader scope has been given to them. Compensation has been 1 Barclay v. Howell's Lessee, 6 Pet. 498; Rust v. Lowe, 6 Mass. 90; Jackson v. Rutland & B. R. R. Co., 25 Vt. 150; Jackson v. Hathaway, 15 Johns. 447. 2 Constitution of Alabama, Art. XIII., §7; Arkansas, Art. II. § 22; California, Art. I. § 14; Colorado, Art. II. § 14; Georgia, Bill of Rights, I. § 3; Illinois, Art. II. § 13; Louisiana, Art. 156; Missouri, Art. I. § 20; Nebraska, Art. I. § 21; Pennsylvania, Art. I. § 8; Texas, Art. I. § 17; West Virginia, Art. III. § 9. 8 The purpose was to impose on corporations "having the right of eminent domain a liability for consequential damages from which they had been previously exempt," when for doing the same act an individual would have been liable. Edmundson v. Pittsburgh, &c. R. R. Co., 111 Pa. St. 316. Injured” means such legal wrong as would have been the subject of an action for damages at common law. Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541; Pa. S. V. R. R. Co. v. Walsh, 124 Pa. St. 544. "In all cases, to warrant a recovery it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where but for some legislative enactment an action would lie at the common law." Mulkey, J., in Rigney v. Chicago, 102 Ill. 64; followed in Chicago v. Taylor, 125 U. S. 161; Rude v. St. Louis, 93 Mo. 408. To the same effect is Trinity & S. Ry. Co. v. Meadows, 11 S. W. Rep. 145 (Tex.). In Alabama the provision in case of a change of grade is held to cover only such alterations as could not have been anticipated at the time of the first taking. City Council of Montgomery v. Townsend, 80 Ala. 489. The English statute covering the same ground as these provisions receives substantially the same construction as that put upon them in the Pennsylvania cases noted above. Caledonian Ry. Co. v. Walker's Trustees, L. R. 7 App. Cas. 259. 4 The word "damaged" embraces more than physical invasions of property. It is not restricted to cases where |