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pany may abandon purpose.

compelled to take the property condemned, was under a statute regulating the manner in which the city could avoid liability, and that was by dismissing the petition before final judgment, and the city failing to do so this court held it was an election to take the property. In Garrison v. City of New York, 21 Wall. (U. S.) 196, where damages had been allowed by the commissioners, and their report confirmed, the legislature authorized an appeal from the order when no such right existed at the date of the confirmation, and, further, gave power to the supreme court in chambers to vacate the order of confirmation, and appoint other commissioners. This was acted upon by the court, and other commissioners appointed to award damages. It was held on the appeal of the property owner that no contract existed by reason of the confirmation of the original commissioner's report as to the damages, and, further, " until the property is actually taken, and compensation is made or provided for, the power of the state over the matter is not ended." In this state compensation must be

actually paid or tendered before any right passes When com

to the railway company, and hence there is no reason for requiring it to pay for property with the title and possession in the owner as it existed be

fore condemnation. It is liable for all the cost of the proceeding, but no more. Nor does such a doc. trine work any hardship on the owner of the land. He com. plains, not only of the damage to be measured by the actual value of his land, but says there are incidental damages, such as affect the value of the balance of the tract, and that is allowed also. Now, when the company concludes not to enter and inflict this injury, the owner ought not to insist upon its doing so. The weight of authority undoubtedly is that, in the absence of statutory provision, the effect of provisions for condemnation is simply to fix the price at which the party condemning can take the property, and that even after condemnation or judgment the purpose of taking the property may be abandoned without incurring any liability to pay the damages awarded. Lewis, Em. Dom. $ 656. Such is the correct rule on the subject, and to adjudge otherwise would require the applicant, whether a private corporation or a state or municipality, to submit to the imposition of exorbitant values upon property condemned for public use, and to often take possession or purchase that which would be det. rimental instead of beneficial to the public interests. Whether the power is exercised by the government, or by a corporation to whom that power is delegated, the same rule should apply. The right is given for the reason that the public good demands the use of the property, and the rule applicable to the state should apply to the corporation. The judgment sustaining the demurrer, and dismissing the petition, is therefore sustained. Gear v. Dubuque & S. C. R. Co., 20 Iowa, 523; St. Louis & S. E. R. Co. v. Teters, 68 Ill. 144; State v. Cincinnati & I. R. Co., 17 Ohio St. 103.

Eminent Domain --Right of Railroad Company to Abandon its Purpose of Taking Property.- See Cooper v. Anniston & A. R. Co., (Ala.) 36 Am. & Eng. R. Cas. 581, note 583; Chicago v. St. L. & W. R. Co., 30 Íd. 268, note 571; Cathedral of Holy Trinity v. West Ontario Pac. R. Co., 30 Id. 422; Denver & N. O. R. Co. v. Lamborn (Colo.), 23 Id. 115, note 122; Schreiber v. Chicago & E. R. Co., 23 Id. 130.

WALLACE et al.

V.

New CASTLE NORTHERN R. Co.

(138 Pa. St. 168.) Eminent Domain --Bond to Secure Compensation-Insolvency of Sureties. --Constitution Pa., art. 1, § 10, and art. 16, § 8, provides that private property shall not be taken for public use until compensation shall be paid or secured. Act Pa. April 9, 1856, § 2, provides that railroad companies must secure the landowner's compensation where his property is taken, by giving a bond " with at least two sufficient sureties," "and if the bond and sureties are approved the bond shall be filed ” for the benefit of those interested. Held, that the word "secure" in the constitution, should be construed to mean that it shall be made reasonably safe and sure that the owner of property taken shall be able to collect the compensation for it ; and the words “sufficient sureties" in the statute mean such sureties as at the time they are taken make it reasonably certain that the property owner can collect from them just compensation. The railroad company's right to property condemned is rot conditional on the security given by it being adequate for all future time until the compensation be paid. Accordingly, after the company has filed its bonds and secured the landowner's compensation, and such bond has been approved by the court and filed, under the provision of the statute, the landowner cannot maintain a bill in equity to restrain the completion of the road, on the ground that both the company and its sureties on the bond have become insolvent.

APPEAL from Lawrence County Court of Common Pleas. On August 28, 1886, George Wallace and Nancy I., his wife, filed a bill in equity against the New Castle Northern Railway Company. The franchises and property of the defendant company having subsequently been purchased by the New Castle and Shenango Valley Railroad Company, an amended bill was filed on July 31, 1888, making the last named company also a defendant.

The bill averred, in substance, that the New Castle N. Ry. Co., desiring to enter upon the lands of the said wife for the construction of its road, tendered a bond in the sum of $5,000,

with D. H. Wallace and W. C. Harbison as sureties, which bond the plaintiffs refused to accept ; that on August 1, 1885, the said bond was presented to the Court of Commmon Pleas, and, against the objections of the plaintiffs, was approved and directed to be filed, etc., whereupon the said company en. tered upon the plaintiff's land and had partly constructed its railroad ; that on January 23, 1884, proceedings for the assessment of damages were instituted which resulted in a re. port of viewers awarding the sum of $3,000 for damages from which report the company entered an appeal that was still pending and undetermined ; that at the time of the approval of the said bond, both the said company and its sureties in the bond were really insolvent, and shortly after said approval became notoriously insolvent, and still so remained praying:

1. That the court would decree that the approval of said bond was secured by fraud, and that such bond and its approval were totally without effect to give any right to the defendants.

2. For an injuction to restrain the company, its agents, etc., from further entry upon said lands until compensation was paid or secured.

3. For further relief.

The cause, having been put at issue by answers and replications, was referred to Mr. James H. Sword, as master and examiner, who on August 17, 1890, filed a report, finding that the sureties to the bond were not insolvent at the time the bond was approved, but became insolvent about September, 1883, and had since so remained ; that there was no sufficient evidence that a fraud was practiced upon the court to obtain an approval of such bond; and that an order of the court discharging a rule to show cause why the bond should not be stricken off

, made on February 12, 1885, upon the petition of plaintiffs filed September, 24, 1884, though modified by an order made on September 7, 1888, that it should be without prejudice to any rights of the plaintiffs by bill in equity or any other judicial proceedings, and also without prejudice to any rights of the purchasers of the said railway company acquired since February 12, 1885, was conclusive against the right of the plaintiffs to have relief in the present proceeding. The master, therefore, recommended that the plaintiff's bill be dismissed.

To the said report, the plaintiffs filled exceptions, alleging, inter alia, that the master erred:

2. In not finding that all the obligors in the bond were really insolvent at the date of its filing and approval by the court, and in finding the sureties solvent at that time.

Case stated.

4. In finding that the order, discharging the rule to show cause why the bond should not be stricken off, was conclusive against the plaintiffs in the present proceeding.

5. In finding that the defendant, the New Castle & Shenango V. R. Co., was rightfully on plaintiff's land.

McMICHAEL, J., filed the following opinion :

" On September 24, 1884, these plaintiffs presented their petition to court, in which they alleged the same facts, substantially, which are alleged in the original bill in the present case, and praying the court to strike off and cancel the approval of the bond, (the same bond mentioned in the present bill,) and to compel the New Castle Northern Railway Company to give other and better sureties before proceeding further in the construction of its road. Several other petitions of like character were presented by other parties over whose lands the New Castle Northern Railway had been located. After hearing the arguments in all these cases, the court, on February 12, 1885, made an order in each case refusing to grant the prayer of the petition, and in the case of Elizabeth Welsh v. New Castle Northern Railway Co., at No. 26 Sept. Term, 1883, filed an opinion giving the reasons for the orders so made. The same question came up again in 1888, in the case of Wm. Bryant v. The New Castle Northern Railway Co., at No. 25 Sept. Term, 1883, when the subject was again considered, and the former ruling of the court was adhered to. Now the court is, in effect, asked to reconsider and reverse these former decisions. I do not blame the counsel for

property their earnest persistence to find some relief for their clients. This railroad is located across quite a number of farms whose owners are in precisely the same condition, respecting their damages, that the plaintiffs are. The former decisions of this court on their rights doubtless appear unjust to these land owners, who as the case stands, cannot collect any damages for the injuries done them by the construction of this railroad. Hence their persistence ought to be excused. There has not been anything presented, however, in the present case, which convinces me that the court erred in its former decisions on this subject. In article 1, § 10, of the constitution it is written, · Nor shall private property be taken or applied to public use without authority of law, and without just compensation being constitufirst made or secured. In article 16, § 8, it is provided that corporations shall make just compen- strued. sation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured

Hardship on Legislaturo

46 A. & E. R. Cas.-8

owner.

tional prori. sions con

before such taking, injury or destruction.' These clauses are restrictive in their character. They grant no right to any one to take private property for public use. They probibit the state from granting the franchise of eminent domain so that it can be used, and they prohibit every corporation from using that franchise, without paying or securing just compensation for property taken, injured, or destroyed. The legislature can grant the right to take private property for public use subject to these restrictions, and it has

never been doubted that the legislature may pre

scribe the kind and character of the security to be may proscribe security.

given, and the manner in which it shall be given.

The power to so prescribe must be lodged somewhere else than in the parties immediately concerned, viz., the corporation and the property owner; because they inight never agree. The state has retained this power, and has exercised it, and its right to do so will not, I think, be questioned. Then we have this case : The New Castle Northern Railway Company had the right to take plaintiff's property for its use in constructing its railroad, upon securing to the plaintiff the payment of just compensation for the property taken. The kind and character of the security to be given, and the manner of giving it, were prescribed by law. The company observed and obeyed all the legal requirements respecting the security, and took the property. Did it have the right to take it? It is surely difficult to answer • No' to that question. It had the right under

certain conditions and restrictions, and it complied Suroties need with these conditions and restrictions. Then its not always bo suftlcient.

right was absolute. There is nothing anywhere in

this legal machinery which makes the company's right to the property conditional on the security being adequate for all future time or until the compensation shall be in fact paid. The company must give a bond with at least two sufficient sureties, and, if the bond and sureties are approved” by the court, the bond shall be filed in said court for the benefit of those interested.' Act April 9, 1856, $ 2. The sufficiency of the sureties is to be decided by the court, where the parties do not agree respecting them, and, if the court decide them sufficient, that is an end of the question. There is no further condition that they must remain sufficient. If there was such a condition, then the company's right to take property upon giving security would be value. less. It would be no right at all. The only right to take private property for public use then would be to pay the owner the just compensation. Until actual payment, the owner would retain his grasp on the property. The right to take

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