it is worth for sale, in view of the uses to which it may be applied, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to leave it.1 Second, if less than the whole estate is taken, then there is further to be considered how much the portion not taken is increased or diminished in value in consequence of the appropriation.2

quence. While we see no more practical mode of ascertainment than this, yet it must still be borne in mind that this is but a mode of ascertainment; that after all, the true criterion is the one provided by the constitution, namely, just compensation for the property taken." See this rule illustrated and applied in Henry v. Dubuque & Pacific R. R. Co., 2 Iowa, 300, where it is said: "That the language of the constitution means that the person whose property is taken for public use shall have a fair equivalent in money for the injury done him by such taking; in other words, that he shall be made whole so far as money is a measure of compensation, we are equally clear. This just compensation should be precisely commensurate with the injury sustained by having the property taken; neither more nor less." And see the recent Kentucky cases of Richmond, &c. Co. v. Rogers, 1 Duvall, 135; Robinson v. Robinson, Ibid. 162.

1 Matter of Furman St., 17 Wend. 669; Tide-Water Canal Co. v. Archer, 9 Gill & J. 480; State v. Burlington, &c. R. R. Co., 1 Iowa, 386; Parks v. Boston, 15 Pick. 206; First Parish, &c. v. Middlesex, 7 Gray, 106; Dickenson v. Inhabitants of Fitchburg, 13 Gray, 546; Lexington v. Long, 31 Mo. 369.

66

Denton v. Polk, 9 Iowa, 594; Parks v. Boston, 15 Pick. 198; Dickenson v. Fitchburg, 13 Gray, 546; Newby v. Platte County, 25 Mo. 258; Pacific R. R. Co. v. Chrystal, Ibid. 544; Somerville & Easton R. R. Co. ads. Doughty, 2 Zab. 495; Carpenter v. Landaff, 42 N. H. 218; Troy & Boston R. R. Co. v. Lee, 13 Barb. 169; Tide-Water Canal Co. v. Archer, 9 Gill & J. 480; Winona & St. Paul R. R. Co. v. Waldron, 11 Minn. 515; Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn. 74; Nichols v. Bridgeport, 23 Conn. 189. Compensation is an equivalent for property taken, or for an injury. It must be ascertained by estimating the actual damage the party has sustained. That damage is the sum of the actual value of the property taken, and of the injury done to the residue of the property by the use of that part which is taken. The benefit is, in part, an equivalent to the loss and damage. The loss and damage of the defendant is the value of the land the company has taken, and the injury which the location and use of the road through his tract may cause to the remainder. The amount which may be assessed for these particulars the company admits that it is bound to pay. But as a set-off, it claims credit for the benefit the defendant has received from the construction of the road. That benefit may consist in the enhanced value of the residue of his tract. When the company has paid the defendant the excess of his loss or damage over and above the benefit and advantage he has derived from the road, he will have received a just compensation. It is objected that the enhanced salable value of the land should not be assessed as a benefit to the defendant, because it is precarious and uncertain. The argument admits that the enhanced value, if permanent, should be assessed. But whether the appreciation is permanent and substantial, or transient and illusory, is a subject about

*

But in doing this, there must be excluded from consideration those benefits which the owner receives only in common with the community at large in consequence of his ownership of other property,1

which the court is not competent to determine. It must be submitted to a jury, who will give credit to the company according to the circumstances. The argument is not tenable, that an increased salable value is no benefit to the owner of land unless he sells it. This is true if it be assumed that the price will decline. The chance of this is estimated by the jury, in the amount which they may assess for that benefit. The sum assessed is therefore (so far as human foresight can anticipate the future) the exponent of the substantial increase of the value of the land. This is a benefit to the owner, by enlarging his credit and his ability to pay his debts or provide for his family, in the same manner and to the same extent as if his fortune was increased by an acquisition of property." Greenville and Columbia R. R. Co. v. Partlow, 5 Rich. 437. And see Pennsylvania R. R. Co. v. Reiley, 8 Penn. St. 445; Matter of Albany St., 11 Wend. 153; Upton v. South Reading Branch R. R., 8 Cush. 600; Proprietors, &c. v. Nashua and Lowell R. R. Co., 10 Cush. 385; Mayor, &c. of Lexington v. Long, 31 Mo. 369. In Newby v. Platte County, 25 Mo. 358, the right to assess benefits was referred to the taxing power; but this seems not necessary, and indeed somewhat difficult on principle. See Sutton's Heirs v. Louisville, 5 Dana, 30 - 34.

1 Dickenson v. Inhabitants of Fitchburg, 13 Gray, 546; Newby v. Platte County, 25 Mo. 258; Pacific R. R. Co. v. Chrystal, Ibid. 544; Carpenter v. Landaff, 42 N. H. 218; Mount Washington Co.'s Petition, 35 N. H. 134; Penrice v. Wallis, 37 Miss. 172; Palmer Co. v. Ferrill, 17 Pick. 58; Meacham v. Fitchburg R. R. Co., 4 Cush. 291, where the jury were instructed that, if they were satisfied that the laying out and constructing of the railroad had occasioned any benefit or advantage to the lands of the petitioner through which the road passed, or lands immediately adjoining or connected therewith, rendering the part not taken for the railroad more convenient or useful to the petitioner, or giving it some peculiar increase in value compared with other lands generally in the vicinity, it would be the duty of the jury to allow for such benefit, or increase of value, by way of set-off, in favor of the railroad company; but, on the other hand, if the construction of the railroad, by increasing the convenience of the people of the town generally as a place for residence, and by its anticipated and probable effect in increasing the population, business, and general prosperity of the place, had been the occasion of an increase in the salable value of real estate generally near the station, including the petitioner's land, and thereby occasioning a benefit or advantage to him, in common with other owners of real estate in the vicinity, this benefit was too contingent, indirect, and remote to be brought into consideration in settling the question of damages to the petitioner for taking his particular parcel of land. Upton v. South Reading Branch R. R. Co., 8 Cush. 600. It has sometimes been objected, with great force, that it was unjust and oppressive to set off benefits against the loss and damage which the owner of the property sustains, because thereby he is taxed for such benefits, while his neighbors, no part of whose land is taken, enjoy the same benefits without the loss; and

and also those incidental injuries to other property, such as would not give to other persons a right to compensation,1 while allowing those which directly affect the value of the remainder of the land. not taken; such as the necessity for increased fencing, and the like. And if an assessment on these principles makes the benefits equal the damages and awards the owner nothing, he is nevertheless to be considered as having received full compensation, and consequently as not being in position to complain.3

The statutory assessment of compensation will cover all consequential damages which the owner of the land sustains by means of the construction of the work, except such as may result from

the courts of Kentucky have held it to be unconstitutional, and that full compensation for the land taken must be made in money. Sutton v. Louisville, 5 Dana, 28; Rice v. Turnpike Co., 7 Dana, 81; Jacob v. Louisville, 9 Dana, 114. And some other States have established, by their constitutions, the rule that benefits shall not be deducted. See Deaton v. County of Polk, 9 Iowa, 596; Giesy v. Cincinnati, W. & Z. R. R. Co., 4 Ohio, N. S. 308; Woodfolk v. Nashville R. R. Co., 2 Swan, 422. But the cases generally adopt the doctrine stated in the text; and if the owner is paid his actual damages, he has no occasion to complain because his neighbors are fortunate enough to receive a benefit. Greenville & Columbia R. R. Co. v. Partlow, 5 Rich. 438; Mayor, &c. of Lexington v. Long, 31 Mo. 369.

1 Somerville, &c. R. R. Co. ads. Doughty, 2 Zab. 495; Dorlan v. East Brandywine, &c. R. R. Co., 46 Penn. St. 520; Proprietors, &c. v. Nashua & Lowell R. R. Co., 10 Cush. 385; Louisville & Nashville R. R. Co. v. Thompson, 18 B. Monr. 735; Winona & St. Peter's R. R. Co. v. Denman, 10 Minn. 267.

2 Pennsylvania R. R. Co. v. Reiley, 8 Penn. St. 445; Greenville & Columbia R. R. Co. v. Partlow, 5 Rich. 439; Dearborn v. Railroad Co., 4 Fost. 179; Carpenter v. Landaff, 42 N. H. 220; Dorlan v. East Brandywine, &c. R. R. Co., 46 Penn. St. 520; Winona & St. Peter's R. R. Co. v. Denman, 10 Minn. 267; Mount Washington Co.'s Petition, 35 N. H. 134. Where a part of a meetinghouse lot was taken for a highway, it was held that the anticipated annoyance to worshippers by the use of the way by noisy and dissolute persons on the Sabbath could form no basis for any assessment of damages. First Parish in Woburn v. Middlesex County, 7 Gray, 106.

3 White v. County Commissioners of Norfolk, 2 Cush. 361; Whitman v. Boston & Maine R. R. Co., 3 Allen, 133; Nichols v. Bridgeport, 23 Conn. 189. But it is not competent for the commissioners who assess the compensation to require that which is to be made to be in whole or in part in anything else than money. An award of" one hundred and fifty dollars, with a wagon-way and stop for cattle," is void, as undertaking to pay the owner in part in conveniences to be furnished him, and which he may not want, and certainly cannot be compelled to take, instead of money. Central Ohio R. R. Co. v. Holler, 7 Ohio, N. S. 225.

negligence or improper construction,1 and for which an action at the common law will lie, as already stated.

1 Philadelphia & Reading R. R. Co. v. Yeiser, 8 Penn. St. 366; Aldrich v. Cheshire R. R. Co., 1 Fost. 359; Dearborn v. Boston, Concord, & Montreal R. R. Co., Fost. 179; Dodge v. County Commissioners, 3 Met. 380; Brown v. Providence, W. & B. R. R. Co., 5 Gray, 35; Mason v. Kennebec & Portland R. R. Co.,

31 Me. 215.

CHAPTER XVI.

THE POLICE POWER OF THE STATES.

ON questions of conflict between national and State authority, and on questions whether the State exceeds its just powers in dealing with the property and restraining the actions of individuals, it often becomes necessary to consider the extent and proper bounds of a power in the States, which, like that of taxation, pervades every department of business and reaches to every interest and every subject of profit or enjoyment. We refer to what is known as the police power.

The police of a State, in a comprehensive sense, embraces its system of internal regulation, by which it is sought not only to preserve the public order and to prevent offences against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.1

In the present chapter we shall have occasion to speak of the police power principally as it affects the use and enjoyment of property; the object being to show the universality of its presence, and to indicate, so far as may be practicable, the limits which settled principles of constitutional law assign to its interference.

"We think it is a settled principle," says Chief Justice Shaw, 1 Blackstone defines the public police and economy as "the due regulation and domestic order of the kingdom, whereby the inhabitants of a State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." 4 Bl. Com. 162.. Jeremy Bentham, in his General View of Public Offences, has this definition: "Police is in general a system of precaution, either for the prevention of crimes or of calamities. Its business may be distributed into eight distinct branches: 1. Police for the prevention of offences; 2. Police for the prevention of calamities; 3. Police for the prevention of endemic diseases; 4. Police of charity; 5. Police of interior communications; 6. Police of public amusements; 7. Police for recent intelligence; 8. Police for registration." Edinburgh Ed. of Works, part ix., p. 157.