*

[527] equitable rights of every description are liable to be thus appropriated. From this statement, however, must be excepted money, or that which in ordinary use passes as such, and which the government may reach by taxation, and also rights in action, which can only be available when made to produce money; neither of which can it be needful to take under this power.1

41; s. c. 5 Am. Rep. 329. In Central City Horse Railway Co. v. Fort Clark Horse Railway Co., 87 Ill. 523, this subject is somewhat considered. The question involved is thus stated by the court: "Can a competing horse railway company in an incorporated city acquire by compulsion a title to or the joint use of [a part of] the track and superstructure of another like corporation, and for the express purpose of making the tracks so compulsorily taken a portion of its own line?" This question is answered in the negative, though at the same time it is intimated that "proceedings might be instituted, perhaps, to condemn the entire road and franchise, and thus pass it over as an entirety to the competing road."

Hanover, 36 N. H. 420; Boston Pennsylvania Canal Co., 66 Penn. St. Water Power Co. v. Boston and Worcester R. R. Co., 23 Pick. 360; Central Bridge Corporation v. Lowell, 4 Gray, 474; West River Bridge v. Dix, 6 How. 507; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 81, per Grier, J.; Chesapeake and Ohio Canal Co. v. Baltimore and Ohio R. R. Co., 4 Gill & J. 1; State v. Noyes, 47 Me. 189; Red River Bridge Co. v. Clarksville, 1 Sneed, 176; Armington v. Barnet, 15 Vt. 745; White River Turnpike Co. v. Vermont Central R. R. Co., 21 Vt. 594; Newcastle, &c. R. R. Co. v. Peru and Indiana R. R. Co., 3 Ind. 464; Springfield v. Connecticut River R. R. Co., 4 Cush. 63; Forward v. Hampshire, &c. Canal Co., 22 Pick. 462; Commonwealth v. Pittsburg, &c. R. R. Co., 58 Penn. St. 50. "The only true rule of policy as well as of law is, that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional rights of the subject.

If in such cases suitable and adequate provision is made by the legislature for the compensation of those whose property or franchise is injured or taken away, there is no violation of public faith or private right. The obligation of the contract created by the original charter is thereby recognized." Per Bigelow, J., in Central Bridge Corporation v. Lowell, 4 Gray, 482. This subject receives a very full and satisfactory examination by Judges Pearson and Sharswood, in Commonwealth v.

1 Property of individuals cannot be appropriated by the State under this power for the mere purpose of adding to the revenues of the State. Thus it has been held in Ohio, that in appropriating the water of streams for the purposes of a canal, more could not be taken than was needed for that object, with a view to raising a revenue by selling or leasing it. "The State, notwithstanding the sovereignty of her character, can take only sufficient water from private streams for the purposes of the canal. So far the law authorizes the commissioners to invade private right as to take what may be necessary for canal navigation, and to this extent authority is conferred by the constitution, provided a compensation be paid to the owner. The principle is founded on

Legislative Authority requisite.

The right to appropriate private property to public

uses lies * dormant in the State, until legislative action is [* 528] had, pointing out the occasions, the modes, conditions,

and agencies for its appropriation. Private property can only be taken pursuant to law; but a legislative act declaring the necessity, being the customary mode in which that fact is determined, must be held to be for this purpose" the law of the land," and no further finding or adjudication can be essential, unless the constitution of the State has expressly required it. When, how

ever, action is had for this purpose, there must 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 devested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the proceeding will be ineffectual.1 Those provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must show affirmatively 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. So if a statute only authorizes proceedings in invitum after an effort shall have been made to agree with the owner on the compensation to be paid, the fact of such effort and its failure

must appear. So if the statute vests the title to lands [* 529] appropriated in the State or in a corporation on payment therefor being made, it is evident that, under the rule stated, the payment is a condition precedent to the passing

1 Gillinwater v. Mississippi, &c. R. R. Co., 13 Ill. 1; Stanford v. Worn, 27 Cal. 171; Dalton v. Water Commissioners, 41 Cal. 222; Stockton v. Whitmore, 50 Cal. 554; Supervisors of Doddridge v. Stout, 9 W. Va. 703; Mitchell v. Illinois, &c. Coal Co., 68 Ill. 286; Chicago, &c. R. R. Co. v. Smith, 78 Ill. 96; Springfield, &c. R. R. Co. v. Hall, 67 Ill. 79; Powers's Appeal, 29 Mich. 504; Kroop v. Forman, 31 Mich. 144; Arnold v. Decatur, 29 Mich. 77; Lund v. New Bedford, 121 Mass. 286; Wamesit Power Co. v. Allen, 120 Mass. 352; Bohlman v. Green Bay, &c. R. R. Co., 40 Wis. 157; Moore v. Railway Co., 34 Wis. 173; United States v. Reed, 56 Mo. 565; Decatur County v. Humphreys,

47 Geo. 565; Commissioners v. Beckwith, 10 Kan. 603.

2 Nichols v. Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Conn. 428; People v. Brighton, 20 Mich. 57; Moore v. Railway Co., 34 Wis. 173.

Reitenbaugh v. Chester Valley R. R. Co., 21 Penn. St. 100; Ellis v. Pacific R. R. Co., 51 Mo. 200; United States v. Reed, 56 Mo. 565; Burt v. Brigham, 117 Mass. 307; West Va. Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382. But it was held in this last 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.

of the title. And where a general railroad law authorized routes to be surveyed by associated persons desirous of constructing roads, and provided that 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 could be claimed under the law to appropriate land for the purpose. These cases must suffice as illustrations of a gen

eral rule, which indeed would seem to be too plain and obvious to require either illustration or discussion.1

[* 530]

*

So the powers granted by such statutes are not to be enlarged by intendment, especially where 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 has accordingly been 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 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 a term of years along the south side of the town, to be used as a substitute for the main track whilst the latter was in process of construction. And substantially the same strict rule is applied when the State itself seeks to appropriate private property; for it is not unreasonable that the property owner should have the right to insist that the State, which selects the occasion and prescribes the conditions for the appropriation of his property, should confine its action strictly within the limits which it has marked out as sufficient. So high a prerogative as that of devesting one's estate against his will

rogative. 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.

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

2 Currier v. Marietta and Cincinnati R. R. Co., 11 Ohio, N. s. 228;

Miami Coal Co. v. Wigton, 19 Ohio,
N. s. 560. See ante, pp. *391–*396.

8 Currier v. Marietta and 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 and Banking Co., 12 La. Ann. 541; West Virginia Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382.