dormant in the State until legislative action is adopted pointing out the occasions, the mode, conditions and agencies for its appropriation. Private property can only be taken pursuant to law; but a legislative act declaring the necessity is for this purpose "the law of the land," and no further adjudication or finding is essential.1 But here is to be kept in view that general, as well as reasonable and just rule, that whenever in pursuance of law the property of an individual is to be divested by proceedings against his will, there must be a strict compliance with all the provisions of the law which are made for his protection and benefit. Those provisions must be regarded as in the nature of conditions precedent, which must not only be complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must affirmatively show such compliance. For example: if by a statute prescribing the mode of exercising the right of eminent domain, the damages to be assessed in favor of the property owner for the taking of his land are to be so assessed by disinterested freeholders of the municipality, the proceedings will be ineffectual unless they show on their face. that the appraisers were such freeholders and inhabitants.2 So if the statute only authorizes proceedings in invitum after an effort has been made to agree with the owner on the compensation to be made, the fact of such effort and its failure must appear.3 So if the statute vests the title to lands appropriated in the State or in

1 "Whatever may be the theoretical foundation for the right of eminent domain, it is certain that it attaches as an incident to every sovereignty, and constitutes a condition upon which all property is holden. When the public necessity requires it, private rights to property must yield to the paramount right of the sovereign power. We have repeatedly held that the character of the work for which the property is taken, and not the means or agencies employed for its construction, determines the question of power in the exercise of this right. It requires no judicial condemnation to subject private property to public uses. Like the power to tax, it resides in the legislative department to whom the delegation is made. It may be exercised directly or indirectly by that body; and it can only be restrained by the judiciary when its limits have been exceeded, or its authority has been abused or perverted." Kramer v. Cleveland & Pittsburg R. R. Co., 5 Ohio, N. S. 146.

Nichols v. Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Conn. 428. Reitenbaugh v. Chester Valley R. R. Co., 21 Penn. St. 100. But it was held in this case that if the owner appears in proceedings taken for the assessment of damages, and contests the amount without objecting the want of any such attempt," the court must presume it to have been made.

a corporation on payment therefor being made, then it is plain that such payment is a condition precedent which must first be complied with. So where a general railroad law authorized routes to be surveyed by associated persons desirous of constructing roads, and if the legislature, on being petitioned for the purpose, should decide by law that a proposed road would be of sufficient utility to justify its construction, then the company, when organized, might proceed to take land for the way, it was held that, until the route was approved by the legislature, no authority existed under the law to appropriate land for the purpose.2 These cases will perhaps, sufficiently for our present purposes, illustrate the general rule, without particularizing further.3

1 Stacy v. Vermont Central R. R. Co., 27 Vt. 44. By the section of the statute under which the land was appropriated, it was provided that when land or other real estate was taken by the corporation, for the use of their road, and the parties were unable to agree upon the price of the land, the same should be ascertained and determined by the commissioners, together with the costs and charges accruing thereon, and upon the payment of the same, or by depositing the amount in a bank, as should be ordered by the commissioners, the corporation should be deemed to be seised and possessed of the lands. Held that, until the payment was made, the company had no right to enter upon the land to construct the road, or to exercise any act of ownership over it; and that a court of equity would enjoin them from exercising any such right, or they might be prosecuted in trespass at law. This case follows Baltimore & Susquehanna R. R. Co. v. Nesbit, 10 How. 395, and Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 10, where the statutory provisions were similar. In the case in Howard it is said: "It can hardly be questioned that without acceptance in the mode prescribed [i. e. by payment of the damages assessed], the company were not bound; that if they had been dissatisfied with the estimate placed on the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption." Daniel, J., 10 How. 399.

Gillinwater v. Mississippi, &c. R. R. Co., 13 Ill. 1. "The statute says that, after a certain other act shall have been passed, the company may then proceed to take private property for the use of their road; that is equivalent to saying that that right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its intention to reserve that power until it could judge for itself whether the proposed road would be of sufficient public utility to justify the use of this high prerogative. It did not intend to cast this power away, to be gathered up and used by any who might choose to exercise it." Ibid. p. 4.

See also the cases of Atlantic & Ohio R. R. Co. v. Sullivant, 5 Ohio, N. S. 277; Parsons v. Howe, 41 Me. 218; Atkinson v. Marietta & Cincinnati R. R. Co., 15 Ohio, N. S. 21.

34

So the powers granted by such statutes are not to be extended by intendment, especially when they are being exercised by a corporation by way of appropriation of land for its corporate purposes. "There is no rule more familiar or better settled than this, that grants of corporate power, being in derogation of common right, are to be strictly construed; and this is especially the case where the power claimed is a delegation of the right of eminent domain, one of the highest powers of sovereignty pertaining to the State itself, and interfering most seriously and often vexatiously with the ordinary rights of property." It was accordingly held that where a railroad company was authorized by law to "enter upon any land to survey, lay down, and construct its road," "to locate and construct branch roads," &c., to appropriate land "for necessary side tracks," and "a right of way over adjacent lands sufficient to enable such company to construct and repair its road," and the company had located and was engaged in the construction of its permanent main road along the north side of a town, it was not authorized under this grant of power to appropriate a temporary right of way, for the term of three years, along the south side of the town, to be used as a substitute for the main track while the latter was in course of construction.2

The Purpose.

It is conceded, on all hands, that the purpose for which this right may be exercised must be a public purpose; and that the legislature has no power, in any case, to take the property of one individual and pass it over to another without reference to a public use to which it is to be applied. "The right of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer." The legislature, therefore, cannot authorize

3

1 Currier v. Marietta & Cincinnati R. R. Co., 11 Ohio, N. S. 231.

2 Currier v. Marietta & Cincinnati R. R. Co., 11 Ohio, N. S. 228. And see Gilmer v. Lime Point, 19 Cal. 47; Bensley v. Mountain Lake, &c. Co., 13 Cal. 306; Brunnig v. N. O. Canal & Banking Co., 12 La. An. 541.

Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 73; Hepburn's case, 3 Bland, 95; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 139; Matter of Albany St., 11 Wend. 149; Matter of John and Cherry Sts., 19 Wend. 659; Cooper v. Williams, 5 Ohio, 393; Buckingham v. Smith, 10 Ohio, 296; Reeves v. Treasurer of Wood Co., 8 Ohio, N. S. 333. See this sub

private roads to be laid across the land of unwilling parties by an exercise of this right. Such ways would be the property of those for whom they were established; and although they would not deprive the owner of his fee, they would take from him to some extent the beneficial use and enjoyment of his property. It would not be material, however, to inquire what quantum of interest would pass from him. It would be enough that some interest, some portion of his estate, no matter how small, had been taken from him without his consent. Nor can it be of importance that the public will be incidentally benefited through the increased improvement of the land, or otherwise. The public use implies a possession, occupation, and enjoyment of the land by the public, or public agencies;2 and there could be no protection whatever to private property, if the right of the government to seize and appropriate it could exist for any other use.

There is still room, however, for much difference of opinion as

ject considered on principle and authority by Senator Tracy in Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 55 et seq. See also Embury v. Conner, 3 N. Y. 511; Kramer v. Cleveland & Pittsburg R. R. Co., 5 Ohio, N. S. 146; Pratt v. Brown, 3 Wis. 603; Concord R. R. v. Greeley, 17 N. H. 47.

1 Taylor v. Porter, 4 Hill, 142, per Bronson, J.; White v. White, 5 Barb. 474 ; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 139. A neighborhood road is only a private road, and taking land for it would not be for a public use. Dickey v. Tennison, 27 Mo. 373. To avoid this difficulty it is provided by the constitutions of some of the States that private roads may be laid out under proceedings corresponding to those for the establishment of highways. There are provisions to that effect in the constitutions of New York, Georgia, and Michigan. But in Harvey v. Thomas, 10 Watts, 65, it was held that the right might be exercised in order to the establishment of private ways from coal fields to connect them with the public improvements, there being nothing in the constitution forbidding it. See also the Pocopson Road, 16 Penn. St. 15. But this seems a very insufficent reason, and the doctrine is directly opposed to Young v. McKenzie, 3 Georgia, 44; Taylor v. Porter, 4 Hill, 146; Buffalo & N. Y. R. R. Co. v. Brainerd, 9 N. Y. 108; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 305; Reeves v. Treasurer of Wood Co., 8 Ohio, N. S. 344, and many other cases: though possibly convenient access to the great coal fields of the State might be held to be so far a matter of general concern as to support an exercise of the power on the ground of the public benefit. In Eldridge v. Smith, 34 Vt. 484, it was held that the manufacture of railroad cars was not so legitimately and necessarily connected with the management of a railroad that the company would be authorized to appropriate lands therefor. So also of land for the erection of dwelling-houses to rent by railroad companies to their employees.

Per Tracy, Senator, in Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 60.

to what is a public use. It has been said that "if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose. It is upon this principle that the legislatures of several of the States have authorized the condemnation of the lands of individuals for mill sites, when from the nature of the country such mill sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned. Upon the same principle of public benefit, not only the agents of the government, but also individuals and corporate bodies, have been authorized to take private property for the purpose of making public 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. In all such cases the object of the legislative grant of power is the public 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." 2

It would not be safe, however, to apply with much liberality the language above quoted, that " where the public interest can be in any way promoted by the taking of private property," the taking can be considered for a public use. It is certain that there are many ways in which the property of individual owners can be better employed or occupied when the general public is considered than it actually is by the owners themselves. It may be for the public benefit that all the wild lands in the State be improved and cultivated, all the low lands drained, all the unsightly places. beautified, all dilapidated buildings replaced by new; because all these things tend to give an aspect of beauty, thrift, and comfort to the country, and thereby to invite settlement, increase the value of lands, and gratify the public taste; but the common law has never sanctioned an appropriation of property based upon these considerations alone; and any such appropriation must therefore 12 Kent, Com. 340.

2 Walworth, Chancellor, in Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 73. And see Wilson v. Blackbird Creek Marsh Co., 2 Pet. 251.