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pensation assessed, when reasonable time and opportunity and a proper tribunal are afforded for the purpose, may well be considered a waiver.

Where, however, the property is not taken by the State, or by a municipality, but by a private corporation which, though for this purpose to be regarded as a public agent, appropriates it for the benefit and profit of its members, and which may or may not be sufficiently responsible to make secure and certain the payment, in all cases, of the compensation which shall be assessed, it is certainly proper, and it has sometimes been questioned whether it was not absolutely essential, that payment be actually made before the owner could be devested of his freehold.1 Chancellor Kent has expressed the opinion, that compensation and appropriation should be concurrent. "The settled and fundamental doctrine is, that government has no right to take private property for public purposes, without giving just compensation; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain." 2 And while this is not an inflexible rule unless in terms established by the constitution, it is so just and reasonable that statutory provisions for taking private property very generally make payment precede or accompany the appropriation, and by several of the State constitutions this is expressly required.3 And on general principles, it is essential that an adequate fund be provided from which the owner of the property can certainly obtain compensation; it is not competent to deprive him of his property, and turn him over to an action at law

This is the intimation in Shepardson v. Milwaukee and Beloit R.R. Co. 6 Wis. 605; Powers v. Bears, 12 Wis. 220; State v. Graves, 19 Md. 351; Dronberger v. Reed, 11 Ind. 420. But see Calking v. Baldwin, 4 Wend. 667. 2 2 Kent, 339, note.

3.The Constitution of Florida provides "that private property shall not be taken or applied to public use, unless just compensation be first made therefor." Art. 1, § 14. See also, to the same effect, Constitution of Georgia, art. 1, § 17; Constitution of Iowa, art. 1, § 18; Constitution of Kansas, art. 12, § 4; Constitution of Kentucky, art. 13, § 14; Constitution of Minnesota, art. 1, § 13; Constitution of Mississippi, art. 1, § 13; Constitution of Nevada, art. 1, § 8; Constitution of Ohio, art. 1, § 19. The Constitution of Indiana, art. 1, § 21, and that of Oregon, art. 1, § 19, require compensation to be first made, except when the property is appropriated by the State.

against a corporation which may or may not prove respon

*

sible, and to a judgment of uncertain efficacy.1 For [*563] the consequence would be, in some cases, that the party

might lose his estate without redress, in violation of the inflexible maxim upon which the right is based.

What the tribunal shall be which is to assess the compensation must be determined either by the constitution or by the statute which provides for the appropriation. The case is not one where, as a matter of right, the party is entitled to a trial by jury, unless the constitution has provided that tribunal for the purpose.2 Nevertheless, the proceeding is judicial in its character, and the party in interest is entitled to have an impartial tribunal, and the usual rights and privileges which attend judicial investigations. It is not competent for the State itself to fix the compensation through the legislature, for this would make it the judge in its own cause. And, if a jury is provided, the party must have the ordinary opportunity to appear when it is to be impanelled, that he may make any legal objections. And he has the same right to notice of the time and place of assessment that he would have in any other case of judicial proceedings, and the assessment will be invalid if no such notice is given.5 These are just as well as familiar rules, and they are perhaps invariably recognized in legislation.

It is not our purpose to follow these proceedings, and to attempt to point out the course of practice to be observed, and which is so different under the statutes of different States. An inflexible rule should govern them all, that the interest and exclusive right of the owner is to be regarded and protected so far as may be consistent with a recognition of the public necessity. While the owner is not to be disseised until compensation is provided, neither, on the other hand, when the public authorities have taken such steps as

1 Shepardson v. Milwaukee and Beloit R.R. Co. 6 Wis. 605; Walther v. Warner, 25 Mo. 277; Gilmer v. Lime Point, 18 Cal. 229; Curran v. Shattuck, 24 Cal. 427; Memphis and Charleston R.R. Co. v. Payne, 37 Miss. 700; Henry v. Dubuque and Pacific R.R. Co. 10 Iowa, 540.

Petition of Mount Washington Co. 35 N. H. 134.

* Charles River Bridge v. Warren Bridge, 7 Pick. 344; Same Case, 11 Pet. 571, per McLean, J.

People v. Tallman, 36 Barb. 222; Booneville v. Ormrod, 26 Miss. 193. A jury, without further explanation in the law, must be understood as one of twelve persons. Lamb v. Lane, 4 Ohio, N. s. 167.

5 Hood v. Finch, 8 Wis. 381; Dickey v. Tennison, 27 Mo. 373.

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to finally settle upon the appropriation, ought he to be left [*564] in a * state of uncertainty, and compelled to wait for compensation until some future time, when they may see fit to occupy it. The land should either be his or he should be paid for it. Whenever, therefore, the necessary steps have been taken on the part of the public to select the property to be taken, locate the public work, and declare the appropriation, the owner becomes absolutely entitled to the compensation, whether the public proceed at once to occupy the property or not. If a street is legally established over the land of an individual, he is entitled to demand payment of his damages, without waiting for the street to be opened.1 And if a railway line is located across his land, and the damages are appraised, his right to payment is complete, and he cannot be required to wait until the railway company shall actually occupy his premises, or enter upon the construction of the road at that point. It is not to be forgotten, however, that the proceedings for the assessment and collection of damages are statutory, and displace the usual remedies; that the public agents who keep within the statute are not liable to, common-law action; 2 that it is only where they fail to follow the statute that they render themselves liable as trespassers; though if they construct their work in a careless, negligent, and improper manner, by means of which carelessness, negligence, or improper construction a party is injured in his rights, he may have an action at the common law as in other cases of injurious negligence.4

1 Philadelphia v. Dickson, 38 Penn. St. 247; Philadelphia v. Dyer, 41 Penn. St. 463; Hallock v. Franklin County, 2 Met. 559; Harrington v. County Commissioners, 22 Pick. 268; Blake v. Dubuque, 13 Iowa, 66; Higgins v. Chicago, 18 Ill. 276; County of Peoria v. Harvey, ib. 364; Shaw v. Charlestown, 3 Allen, 538; Hampton v. Coffin, 4 N. H. 517; Clough v. Unity, 18 N. H. 77. And where a city thus appropriates land for a street, it would not be allowed to set up in defence to a demand for compensation its own irregularities in the proceedings taken to condemn the land. Higgins v. Chicago, 18 Ill. 276; Chicago v. Wheeler, 25 Ill. 478.

2 East and West India Dock, &c., Co. v. Gattke, 15 Jur. 61; Kimble v. White Water Valley Canal, 1 Ind. 285; Mason v. Kennebec, &c., R.R. Co. 31 Me. 215; Aldrich v. Cheshire R.R. Co. 1 Fost. 359; Brown v. Beatty, 34 Miss. 227; Pettibone v. La Crosse and Milwaukee R.R. Co. 14 Wis. 443; Vilas v. Milwaukee and Mississippi R.R. Co. 15 Wis. 233.

3 Dean v. Sullivan R.R. Co. 2 Fost. 316; Furniss v. Hudson River R.R. Co. 5 Sandf. 551.

4 Lawrence v. Great Northern R. Co. 20 L. J. Rep. Q. B. 293; Bagnall v.

*The principle upon which the damages are to be [* 565] assessed is always an important consideration in these cases; and the circumstances of different appropriations are sometimes so peculiar that it has been found somewhat difficult to establish a rule that shall always be just and equitable. If the whole of a man's estate is taken, there can generally be little difficulty in fixing upon the measure of compensation; for it is apparent that, in such a case, he ought to have the whole market value of his premises, and he cannot reasonably demand more. The question is reduced to one of market value, to be determined upon the testimony of those who have knowledge upon that subject, or whose business or experience entitles their opinions to weight. It may be that, in such a case, the market value may not seem to the owner an adequate compensation; for he may have reasons peculiar to himself, springing from association, or other cause, which make him unwilling to part with the property on the estimate of his neighbors; but such reasons are incapable of being taken into account in legal proceedings, where the question is one of compensation in money, inasmuch as it is manifestly impossible to measure them by any standard of pecuniary value. Concede to the government a right to appropriate the property on paying for it, and we are at once remitted to the same standards for estimating values which are applied in other cases, and which necessarily measure the worth of property by its value as an article of sale, or as a means of producing pecuniary returns.

When, however, only a portion of a parcel of land is appropriated, just compensation may perhaps depend upon the effect which the appropriation may have on the owner's interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition in which it may leave the remainder in respect to convenience of use. If, for instance, a public way is laid out through a tract of land which before was not accessible, and if in consequence it is given a front, or two fronts, upon the street, which furnish valuable and marketable sites for building lots, it may be that the value of that which remains is made, in consequence of taking a part, vastly greater than the whole was before, and that

London and N. W. R. 7 H. & N. 423; Brown v. Cayuga and Susquehanna R.R. Co. 12 N. Y. 187.

the owner is benefited instead of damnified by the appropriation. Indeed, the great majority of streets in cities and villages are dedicated to the public use by the owners of lands, with[*566] out any other compensation or expectation of compensation than the increase in market value which is expected to be given to such lands thereby; and this is very often the case with land for other public improvements, which are supposed to be of peculiar value to the locality in which they are made. But where, on the other hand, a railroad is laid out across a man's premises, running between his house and his outbuildings, necessitating, perhaps, the removal of some of them, or upon such a grade as to render deep cuttings or high embankments necessary, and thereby greatly increasing the inconveniences attending the management and use of the land, as well as the risks of accidental injuries, it will often happen that the pecuniary loss which he would suffer by the appropriation of the right of way would greatly exceed the value of the land taken, and to pay him that value only would be to make very inadequate compensation.

It seems clear that, in these cases, it is proper and just that the injuries suffered and the benefits received, by the proprietor, as owner of the remaining portion of the land, should be taken into account in measuring the compensation. This, indeed, is generally conceded; but what injuries shall be allowed for, or what benefits estimated, is not always so apparent. The question, as we find it considered by the authorities, seems to be, not so much what the value is of that which is taken, but whether what remains is reduced in value by the appropriation, and, if so, to what extent; in other words, what pecuniary injury the owner sustains by a part of his land being appropriated. But, in estimating either the injuries or the benefits, those which the owner sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, should be altogether excluded, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken of such incidental benefits and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken.1

'In Somerville and Easton R.R. Co. ads. Doughty, 2 Zab. 495, a motion was made for a new trial on an assessment of compensation for land taken by a rail

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