contemplation of a future public employment of the property gives no exclusive right.' § 241. Exercise of the power by foreign corporations.— The legislature may in its discretion delegate the power to a corporation of another state.2 But under a general act a foreign corporation has no power to condemn lands.3 It is well settled that foreign corporations may be excluded from the privilege of exercising the power, but generally have the right extended to them by statute.5 § 242. The power must be exercised impartially.— While all property rights are equally subject to destruction or loss in the necessary exercise of the power, yet all are equally sacred in the absence of such necessity, and the property of one citizen should not be selected for condemnation rather than another's unless it be done to subserve some public use, or a higher and more obvious public use than that to which it is at 1 East St. L. C. Ry. Co. v. East St. L. U. Ry. Co., 108 Ill. 265; Lake S. & M. S. Ry. Co. v. Chicago & W. I. R. Co., 97 Ill. 506. 2 Matter of Townsend, 39 N. Y. 71; Morris Canal Co. v. Townsend, 24 Barb. 658. 3 Holbert v. St Louis R. R. Co., 45 Ia. 23. Koenig v. Chicago, B. & Q. R. Co. (Neb.), 43 N. W. 423; State v. Scott (Neb.), 36 N. W. 121; Trester v. Missouri Pac. Ry. Co., 23 Neb. 242; 36 N. W. 502. 5 Laws N. Y. 1881, c. 649, amending act, April 2, 1850, provide that "if at any time after the construction of any railroad operated by steam, by any company now existing, or that might hereafter be created, such company, or any company owning, operating, or leasing such railroad, or any mortgagee or mortagees in possession of such railroad, or person or persons appointed as receiver or receivers of any such railroad, in the possession of and operating the same, shall require, for the purpose of its incorporation, or for the purpose of running or operating any railroad so owned," etc., "any real estate in addition to what has been already required for the purposes of such railroad,” in the manner therein provided. It is held that foreign corporations are entitled to the benefits of the act. In re Marks, 6 N. Y. 105. See also Abbott v. New York & N. E. R. Co., 145 Mass. 450; 15 N. E. 91. present devoted. Whenever it is sought to take the property of one man which he has fairly acquired, and the general law protects, in order to transfer it to another, even upon a complete indemnification, it will naturally be considered as an extraordinary act of legislation, which ought to be viewed with jealous eyes, examined with critical acuteness, and scrutinized with all the severity of legal exposition. An act of this sort deserves no favor; to construe it liberally would be sinning against the rights of property. In England, it has been said that all courts have, for obvious reasons, at all times construed such legislative enactments most strictly.1 243. How held by the appropriator. On the same principle that the taking of property under the power can only be exercised for the supposed public benefit, it cannot after having been taken be held otherwise than in its application to the public use for which it was taken.2 § 244. The authority strictly construed. An act authorizing any person or corporation to construct any railroad, canal, turnpike, toll bridge, etc., and to take real estate for the purpose does not justify a taking for public convenience merely. It could only be taken to satisfy a public necessity. The right to exercise the power of eminent domain is in derogation of common right and the statute conferring it should be strictly construed. If the power or the right to exercise it in a 1 Binney's Case, 2 Bland. Ch. 99. 2 Lance's Appeal, 55 Pa. St. 16; Nesbitt v. Trumbo, 39 Ill. 110; Osborn v. Hart, 24 Wis. 89; Bankhead v. Brown, 25 Iowa, 540; Brown v. Beatty, 34 Miss. 227; Crear v. Crossley, 40 Id. 175; Bonaparte v. Camden & Amboy R. R. Co., Baldw. 205. 3 Memphis Freight Co. v. Memphis, 4 Coldw. 419. given case is doubtful, the doubt should be resolved adversely to the claim of right. Yet it should not be construed so strictly and literally as to defeat the evident purpose of the legislature in granting it. 1 A railroad company will not be confined in the acquisition of property under the power to a sufficient amount for its railway, but will be allowed to appropriate in addition lands on which to erect passenger depots, shelter for cars, engines and other rolling stock when not in use, and warehouses for the storage and delivery of freight intended for transportation or delivery to consignees at its place of destination. It cannot, however, be extended by implication. The prescribed method of giving notice by publication must be strictly complied with.3 The general statute law relating to condemnation proceedings by railroad companies contemplates that such rights of private use of the land taken as are of the nature to interfere with the operation of the railroad shall be determined in the condemnation proceedings; but the landowner has not a reserved right of private 1 Lackland v. Northern Missouri R. R. Co., 31 Mo. 185; Zack v. Pa. R. R. Co., 25 Pa. St. 394; 185 State v. Jersey City, 25 N. J. 309; Van Winkle v. R. R. Co., 14 Id. 162; Gilmer v. Lime Point, 19 Cal. 47; Locks v. Nashua & Lowell R. R. Co., 104 Mass. 1. 2 Power given to a railroad company to construct its track along a river does not authorize its construction in or upon the river. Stevens v. Erie R. Co., 21 N. J. Eq. 259. See also New York & H. R. R. Co. v. Kip, 46 N. Y. 546; Browning v. Camden & W. R. R. Co., 4 N. J. Eq. 47; Rensselaer & S. R. R. Co. v. Davis, 43 N. Y. 137; Bonaparte v. Camden & H. R. R. Co., Bald. 205. The power cannot be exercised after the time given a railroad company within which to complete its road has expired; Atlantic, etc., R. Co. v. St Louis, 66 Mo. 228; nor is the right assignable. Mahoney v. Spring, etc., Co., 52 Cal. 159. A railroad company in Iowa cannot condemn land for an elevator. Johnson v. Chicago, etc., R. Co., 58 Ia. 537. A similar view obtains in New Jersey State v. United, etc., R. R. Co., 43 N. J. L. 110. It was held that a bridge company cannot, under a change in its approaches designated in a special charter, condemn land under the change. Re Poughkeepsie, etc., Co., 108 N. Y. 483. 3 Hull v. Chicago B. & Q. R. Co., 21 Neb. 371; 32 N. W. 162. Compare In re Metropolitan E. Ry. Co., 2 N. Y. S. 278. crossings unless so defined, and compensation to the landowner is to be assessed accordingly.1 A constitutional provision imposing additional conditions to the exercise of the right applies to corporations in existence at the time of its adoption." But in some cases neither a strict nor a liberal but a reasonable construction has been applied.3 A company succeeding to the franchises and property 1 Cedar Rapids I. F. & N. W. Ry. Co. v. Raymond, 37 Minn. 204; 33 N. W. 704. 2 Pennsylvania R. Co. v. Magee (Pa.), 13 A. 839. An act extending boundaries so as to include private lands and which does not provide for compensation for the lands so taken, is unconstitutional. Hancock Stock Fence Law Co. v. Adams, 87 Ky. 417; 9 S. W. 246; Daly v. Georgia S. & F. R. Co., 80 Ga. 793; 7 S. E. 146; In re Poughkeepsie Bridge Co., 108 N. Y. 483; 15 N. E. 601. An act giving a railroad company a right to acquire land for railroad purposes does not give the company a right to dig a ditch three miles long, at right angles to its track, to carry off the water accumulating along the road bed and turn it on the land of another. Olson v. St. Paul M. &, M. Ry. Co., 38 Minn. 419; 37 N. W. 953. Under act Ill., July 1st, 1887, it was held that a company whose road terminated on the Ohio river at Cairo could not condemn land for an incline track and transfer ferry-boat landing, in order to connect with another road. St. Louis & C. R. Co. v. Thomas, 34 F. 774. An act giving a company authority to conduct the waters of a certain pond, by subterranean pipes, into its own lands, and construct and maintain dams, pipes, fountains, and reservoirs upon and over any land whatsoever, and providing a remedy only for damages caused by the taking of the water, did not authorize it to construct a dam and sluice-ways at the mouth of said pond, and to flow the lands adjacent thereto. Pickman v. Town of Peabody, 145 Mass. 480; 14 N. E. 751. Land dedicated for a public street cannot be condemned to the use of a railroad, in the absence of an express statutory right. Cornwall v. Louisville & N. R. Co., 87 Ky. 72; 7 S. W. 553. 3 Proprietors of Locks, etc., v. Nashua & L. R. R. Co., 104 Mass. 1; Lackland v. North Mo. R. R. Co., 31 Mo. 180; Currier v. Marietta & Cim. R. R. Co., 11 O. St. 228; State v. Jersey City, 25 N. J. L. 309; Zack v. Pennsylvania R. R. Co., 25 Pa. St. 394; Doughty v. Somerville & E. R. R. Co., 21 N. J. L. 442; Van Wickle v. Camden & A. R. R. Co., 14 N. J. L. 162. In Com. v. Erie & N. E. R. Co., 27 Pa. St. 339, the court refused to enjoin a company from operating its road which it had built in an unauthorized place, and made an order requiring a relocation and reconstruction. See also Lance's Appeal, 55 Pa. St. 16; Gilmer v. Lime, etc., Co., 19 Cal. 47. condemn land for the use of its lessee. company succeeding to the franchises and complete its condemnation proceedings. 234; 36 N. W. 345. It was held a lessor company might F of another may revive and complete its condemnation proceedings.1 But it seems that sites for the manufacture of cars and for the erection of dwellings of operatives cannot be taken. And where a railroad corporation sought to condemn land over which to build a switch branch road or lateral work to reach a private manufactory, a steel mill, for the purpose of transporting freight to and from the same over the company's road, it was held that the use to which the land was to be subjected was private.3 § 245. The legislature cannot bind the state not to exercise it in the future. The power of eminent domain being an inherent element of sovereignty, it cannot be divested out of the State or abridged by contract or treaty so as to bind future legislatures. Nor can the right be divested by private contract.5 § 246. Only to be exercised for the purposes mentioned and subject to the conditions imposed in the Constitution.-The 1 N. Y. & Harlem R. R. Co. v. Kip, 46 N. Y. 546. 2 Eldridge v. Smith, 34 Vt. 484. Among the purposes for which railroad companies may take land are, for cattle yards, repair shops, turnouts, for the deposit of wood and lumber transported and additional tracks needed on account of an increase of business. Hannibal, etc., R. R. Co. v. Muder, 49 Mo. 165; N. Y. Cent. R. R. Co. v. Metrop. Gas Light Co., 63 N. Y. 326; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. St. 23; State v. Mansfield, 23 N. J. 510; Chicago, etc., R. R. Co. v. Wilson, 17 Ill. 123. It was held that the land may be taken for those purposes notwithstanding the fact that other land equally convenient can be had at private sale. N. Y. & Harlem R. R. Co. v. Kip, 45 N. Y. 546. 3 Pittsburg W. & K. R. R. Co. v. Benwood Iron Works, 31 W. Va. 710. See also, Railroad Co. v. Dix, 109 Ill. 237; Railroad Co. v. Wiltse, 6 N. E. Rep. 49. Compare Getz's Appeal (Pa.), 13 Am. & Eng. R. Cas. 186. 4 Per COLT, J., in Eastern R. R. Co. v. Boston, & C. R. R. Co., 111 Mass. 125, 131. See also Cooley on Constitutional Limitations, 342-344. 5 Cornwall v. Louisville & N. R. Co., 87 Ky. 72; 7 S. W. 553, where land was ceded to a city for use of a railroad, on condition that no more should be taken for that purpose, and proceedings were instituted by the company to have additional lands condemned. |