the state, in the conduct of the inquest by which the compensation is ascertained, to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it.' Searl v. Lake County School Dist. No. 2, 133 U. S. 553, 562. The just compensation required by the constitution to be made to the owner is to be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public." See Wilson v. Lambert, 168 U. S. 611; Greenleaf Lumber Co. v. Garrison, 237 U. S. 251.

§ 104. The taking must be for a public use. In Wilkinson v. Leland, 2 Pet. 627, it was held that under the right of eminent domain private property can only be taken for a public use, upon the payment of just compensation; the right can not be asserted for the purpose of taking private property for private purposes. West River Bridge Co. v. Dix, 6 How. 507; Cole v. La Grange, 113 U. S. 1. The taking must be for some of the recognized necessities of government, such as the construction of arsenals, forts, armories, navy yards, light-houses, custom houses, postoffices, court houses, highways, railways, canals, bridges, wharves, parks for public use and recreation and the like. See Kohl v. United States, 91 U. S. 367; Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525; Shoemaker v. United States, 147 U. S. 282; Chappell v. United States, 160 U. S. 499; Wilson v. Lambert, 168 U. S. 611. In United States v. Gettysburg Electric R. Co., 160 U. S. 668, the Court, in giving perhaps the widest possible extension to the right of eminent domain, said: "The really important question to be determined in these proceedings is whether the use to which the petitioner desires to put the land described in the petitions is that kind of public use for which the government of the United States is authorized to condemn land. It

has authority to do so whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the Constitution. Kohl v. United States, 91 U. S. 367; Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641-656; Chappell v. United States, 160 U. S. 499. Is the proposed use to which this land is to be put a public use within the limitation? The purpose of the use is stated in the first act of Congress. The appropriation act of August 18, 1894, also contained the following: 'For continuing the work of surveying, locating, and preserving the lines of battle at Gettysburg, Pa., and for purchasing, opening, constructing, and improving avenues along the portions occupied by the various commands of the Armies of the Potomac and Northern Virginia on that field, . Any act of Congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, and which is germane to and intimately connected with and appropriate to the exercise of some one or all of the powers granted by Congress must be valid. This proposed use comes within such description. The provision comes within the rule laid down by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 421, in these words: 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adequate to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.''

§ 105. Right of legislature to determine what is a public use. There can be no doubt that the right to determine whether or no an appropriation of private property to a particular use, because of its public character, is justifiable, is vested primarily in the legislature. It is equally clear that after it has acted, stating its reasons thereof, the power of review is vested in the judiciary,—

to that department belongs the ultimate right to determine whether or no the use in question is in contemplation of law, a public use. A vivid illustration of the relations actually existing between the two departments is to be found in the foregoing case of United States v. Gettysburg Electric R. Co., 160 U. S. 668, in which the Court said: "In examining an act of Congress it has been frequently said that every intendment is in favor of its constitutionality. Such act is presumed to be valid unless its invalidity is plain and apparent; no presumption of invalidity can be indulged in; it must be shown clearly and unmistakably." That is to say that in reviewing the legislative declaration of a public use, the courts will permit it to prevail unless it is manifestly erroneous when measured by legal standards. "The judicial function is merely that of fixing the outside border of reasonable legislative action, the boundary beyond which the taxing power, the power of eminent domain, police power, and legislative power in general can not go without violating the prohibitions of the constitution, or crossing the line of its grants." Prof. J. B. Thayer, 7 Harvard Law Rev. 148. In Shoemaker v. United States, 147 U. S. 282, it was held that land in a city, appropriated by law for public parks and squares, is taken for a public use, no matter whether advantageous to the public, for recreation, health or business.

§ 106. What constitutes a taking. That a physical invasion and actual ouster of possession is necessary, at least such a serious interruption to the necessary and common use as will be equivalent to a taking, is explained in Pumpelly v. Canal Co., 13 Wall. 166, in which the Court said: "But there are numerous authorities to sustain the doctrine that a serious interruption to the common and necessary use of property may be, in the language of Mr. Angell, in his work on water courses, equivalent to the taking of it, and that under the constitutional provisions it is not necessary that the land should

be absolutely taken. Ang. Wat. Sec. 465, a; Hooker v. N. Haven and Northampton Co., 14 Conn. 146; Rowe v. Granite Bridge Co., 21 Pick. 344; Canal Appraisers v. People, 17 Wend. 604; Lackland v. North Mo. R. R. Co., 31 Mo. 180; Stevens v. Prop. of Middlesex Canal, 12 Mass. 466. And perhaps no state court has given more frequent utterance to the doctrine that overflowing land by backing water on it for dams built below is within the constitutional provision, than that of Wisconsin." See Head v. Amoskeag M. Co., 113 U. S. 26; Pennsylvania R. Co. v. Miller, 132 U. S. 83; United States v. Alexander, 148 U. S. 187. In United States v. Lynah, 188 U. S. 445, in which it was held that there was a taking of land within the meaning of the Fifth Amendment,by the turning of a valuable rice plantation into an irreclaimable bog as the necessary result of an improvement in navigation by the Federal Government, the Court said: "But if any one provision can be considered as settled by the decisions of this court, it is that, although in the discharge of its duties the government may appropriate property, it can not do so without being liable to the obligation cast by the 5th Amendment of paying just compensation." And yet where acts are done in the proper exercise of governmental power, not directly encroaching upon private property, although their consequences may injure its use, they do not entitle the owner to compensation. Northern Transp. Co. v. Chicago, 99 U. S. 635. See also, Montana Co. v. St. Louis Min., etc., Co., 152 U. S. 160. In Gibson v. United States, 166 U. S. 269, where the riparian owner was deprived during a greater part of the season of access to his landing by the construction of a dike by the Federal Government in the improvement of a navigable stream,-the Court said: "The 5th Amendment to the Constitution of the United States provides that private property shall not be taken for public use without just compensation. Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property,

whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power." In Scranton v. Wheeler, 179 U. S. 141, it was held that there was no violation of the Fifth Amendment, although a pier erected by the Federal Government on land submerged under navigable waters permanently destroyed access to such waters upon the part of a riparian proprietor owning the title, when the act complained of was merely for the improvement of navigation. It was said that no matter whether the title to the land was owned by a riparian proprietor or the state, it was acquired subject to the rights which the public have in the navigation of such waters. In Bedford v. United States, 192 U. S. 217, compensation was denied where damage to land was the consequence of flooding resulting from the construction of revetments by the United States. The Court said: "In the case at bar the damage was strictly consequential. It was the result of the action of the river through a course of years. The case at bar, therefore, is distinguishable from the Lynah Case [188 U. S. 445] in the cause and manner of the injury. In the Lynah Case the works were constructed in the bed of the river, obstructed the natural flow of its water, and were held to have caused, as a direct consequence, the overflow of Lynah's plantation. In the case at bar the works were constructed along the banks of the river, and their effect was to resist erosion of the banks by the waters of the river. There was no other interference with natural conditions." See also Manigault v. Springs, 199 U. S. 473; Union Bridge Co. v. United States, 204 U. S. 364; Monongahela Bridge Co. v. United States, 216 U. S. 177; Jackson v. United States, 230 U. S. 1; Peabody v. United States, 231 U. S. 530; Richards v. Washington Terminal Co., 233 U. S. 546; Greenleaf Lumber Co. v. Garrison, 237 U. S. 267.

§ 107. Necessity that justifies the taking. In Mississippi & Rum River Boom Co. v. Patterson, 98 U. S. 403,