tion is always one of strictly political character, not requiring any hearing upon the facts or any judicial determination. Nevertheless, when a work or improvement of local importance only is contemplated, the need of which must be determined upon a view of the facts which the people of the vicinity may be supposed best to understand, the question of necessity is generally referred to some local tribunal, and it may even be submitted to a jury to decide upon evidence. But parties interested have no constitutional right to be heard upon the question, unless the State constitution clearly and expressly recognizes and provides for it. On general principles, the final decision rests with the legislative department of the State; and if the question is referred to any tribunal for trial, the reference and the opportunity for being heard are matters of favor and not of right. The State is not under any obligation to make provision for a judicial contest upon that question. And where the case is such that it is proper to delegate to individuals or to a corporation the power to appropriate property, it is also competent to delegate the authority to decide upon the necessity for the taking.1

. People v. Smith, 21 N. Y. 597; Ford v. Chicago and N. W. R.R. Co. 14 Wis. 617; Matter of Albany St. 11 Wend. 152; Lyon v. Jerome, 26 Wend. 484; Hays v. Risher, 32 Penn. St. 169; North Missouri R.R. Co. v. Lackland, 25 Mo. 515; Same v. Gott, ib. 540; Bankhead v. Brown, 25 Iowa, 540. In the case first cited, Denio, J., says: "The question is, whether the State, in the exercise of the power to appropriate the property of individuals to a public use, where the duty of judging of the expediency of making the appropriation, in a class of cases, is committed to public officers, is obliged to afford to the owners of the property an opportunity to be heard before those officers when they sit for the purpose of making the determination. I do not speak now of the process for arriving at the amount of compensation to be paid to the owners, but of the determination whether, under the circumstances of a particular case, the property required for the purpose shall be taken or not; and I am of opinion that the State is not under any obligation to make provision for a judicial contest upon that question. The only part of the Constitution which refers to the subject is that which forbids private property to be taken for public use without compensation, and that which prescribes the manner in which the compensation shall be ascertained. It is not pretended that the statute under consideration violates either of those provisions. There is, therefore, no constitutional injunction on the point under consideration. The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the appropriation; or it may be delegated to public officers, or, as it has been

[*539]

*How much Property may be taken.

*

The taking of property must always be limited to the necessity of the case, and consequently no more can be [*540] appropriated in any instance than the proper tribunal shall adjudge to be needed for the particular use for which the appropriation is made. When a part only of a man's premises is needed by the public, the necessity for the appropriation of that part will not justify the taking of the whole, even though compensation be made therefor. The moment the appropriation goes beyond the necessity of the case, it ceases to be justified on the principles which underlie the right of eminent domain.1 repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint upon the power, except that requiring compensation to be made. And where the power is committed to public officers, it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. The constitutional provision securing a trial by jury in certain cases, and that which declares that no citizen shall be deprived of his property without due process of law, have no application to the case. The jury trial can only be claimed as a constitutional right where the subject is judicial in its character. The exercise of the right of eminent domain stands on the same ground with the power of taxation. Both are emanations from the law-making power. They are attributes of political sovereignty, for the exercise of which the legis lature is under no necessity to address itself to the courts. In imposing a tax, or in appropriating the property of a citizen, or of a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law; though it would not be if it should undertake to appropriate the property of one citizen for the use of another, or to confiscate the property of one person or class of persons, or a particular description of property upon some view of public policy, where it could not be said to be taken for a public use. It follows from these views that it is not necessary for the legislature, in the exercise of the right of eminent domain, either directly, or indirectly through public officers or agents, to invest the proceedings with the forms or substance of judicial process. It may allow the owner to intervene and participate in the discussion before the officer or board to whom the power is given of determining whether the appropriation shall be made in a particular case, or it may provide that the officers shall act upon their own views of propriety and duty, without the aid of a forensic contest. The appropriation of the propriety is an act of public administration, and the form and manner of its performance is such as the legislature in its discretion shall prescribe.”

By a statute of New York it was enacted that whenever a part only of a lot or parcel of land should be required for the purposes of a city street, if the commissioners for assessing compensation should deem it expedient to include the

*

If, however, the statute providing for such appropriation [* 541] is acted upon, and the property owner accepts the compensation awarded to him under it, he will be precluded by this implied assent from afterwards objecting to the excessive appropriation. And where land is taken for a public work, there is nothing in the principle we have stated which will preclude the appropriation of whatever might be necessary for incidental conveniences; such as the workshops or depot buildings of a railway company, or materials to be used in the construction of their road, whole lot in the assessment, they should have power so to do; and the part not wanted for the particular street or improvement should, upon the confirmation of the report, become vested in the corporation, and might be appropriated to public uses, or sold in case of no such appropriation. Of this statute it was said by the Supreme Court of New York: "If this provision was intended merely to give to the corporation capacity to take property under such circumstances with the consent of the owner, and then to dispose of the same, there can be no objection to it; but if it is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to private use, it assumes a power which, with all respect, the legislature did not possess. The constitution, by authorizing the appropriation of property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the private use of another. It is in violation of natural right; and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported. This power has been supposed to be convenient when the greater part of a lot is taken, and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. In such case the corporation has been supposed best qualified to take and dispose of such parcels, or gores, as they have sometimes been called; and probably this assumption of power has been acquiesced in by the proprietors. I know of no case where the power has been questioned, and where it has received the deliberate sanction of this court. Suppose a case where only a few feet, or even inches, are wanted, from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot; would the power be conceded to exist to take the whole lot, whether the owner consented or not? The quantity of the residue of any lot cannot vary the principle. The owner may be very unwilling to part with only a few feet; and I hold it equally incompetent for the legislature to dispose of private property, whether feet or acres are the subject of this assumed power." Matter of Albany St. 11 Wend. 151, per Savage, Ch. J.

Embury v. Conner, 3 N. Y. 511. There is clearly nothing in constitutional principles which would preclude the legislature from providing that a man's property might be taken with his assent, whether the assent was evidenced by deed or not; and if he accepts payment, he must be deemed to assent. The more recent case of House v. Rochester, 15 Barb. 517, is not, we think, opposed to Embury v. Conner, of which it makes no mention.

2 Chicago B. and Q. R.R. Co. v. Wilson, 17 Ill. 123; Low v. Galena and C. U.

and so on. Express legislative power, however, is needed for these purposes; it will not follow that, because such things are convenient to the accomplishment of the general object, the public may appropriate them without express authority of law; but the power to appropriate must be expressly conferred, and the public agencies seeking to exercise this high prerogative must be careful to keep within the authority delegated, since the public necessity cannot be held to extend beyond what has been plainly declared on the face of the legislative enactment.

What constitutes a Taking of Property.

Any proper exercise of the powers of government, which does not directly encroach upon the property of an individual, or disturb him in its possession or enjoyment, will not entitle him to

compensation, or give him a right of action.1 If, for in[*542] stance, the *State, under its power to provide and regulate

the public highways, should authorize the construction of a bridge across a navigable river, it is quite possible that all proprietary interests in land upon the river might be injuriously affected; but such injury could no more give a valid claim against the State for damages, than could any change in the general laws of the State, which, while keeping in view the general good, might injuriously affect particular interests. So if, by the erection of a dam in order to improve navigation, the owner of a fishery finds it diminished in value, or if by deepening the channel of a river to

R.R. Co. 18 Ill. 324; Giesy v. Cincinnati, W. and Z. R.R. Co. 4 Ohio, N. s. 308.

1 Zimmerman v. Union Canal Co. 1 W. & S. 346; Shrunk v. Schuylkill Navigation Co. 14 S. & R. 71; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Davidson v. Boston and Maine R.R. Co. 3 Cush. 91; Gould v. Hudson River R.R. Co. 12 Barb. 616, and 6 N. Y. 522; Radcliff v. Mayor, &c., of Brooklyn, 4 N. Y. 195; Murray v. Menifee, 20 Ark. 561; Hooker v. New Haven and Northampton Co. 14 Conn. 146; People v. Kerr, 27 N. Y. 193; Fuller v. Eddings, 11 Rich. Law, 239; Eddings v. Seabrook, 12 Rich. Law, 504; Richardson v. Vermont Central R.R. Co. 25 Vt. 465; Kennett's Petition, 4 Fost. 139; Alexander v. Milwaukee, 16 Wis. 247; Richmond, &c., Co. v. Rogers, 1 Duvall, 135; Harvey v. Lackawana, &c., R.R. Co. 47 Penn. St. 428; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21.

2 Davidson v. Boston and Maine R.R. Co. 3 Cush. 91.

3 Shrunk v. Schuylkill Navigation Co. 14 S. & R. 71. ̧

improve the navigation a spring is destroyed,1 or by a change in the grade of a city street the value of adjacent lots is diminished,2 —in these and similar cases the law affords no redress for the

injury. So if, in consequence of the construction of a public work, an injury occurs, but the work was constructed on proper plan and without negligence, and the injury is caused by accidental and extraordinary circumstances, the injured party cannot demand compensation.3

*This principle is peculiarly applicable to those cases [*543] where property is appropriated under the right of eminent domain. It must frequently occur that a party will find his rights seriously affected without any property to which he has lawful claim being appropriated. As where a road is laid out along the line of a man's land without appropriating any portion of it, so that in consequence he is compelled to keep up the whole of a fence where before was a partition fence, one-half of which his neighbor was required to support. No property being taken in this case, the party has no relief, unless the statute shall give it. The loss is damnum absque injuria. So a turnpike company, whose profits

1 Commonwealth v. Richter, 1 Penn. St. 467.

2 British Plate Manufacturing Co. v. Meredith, 4 T. R. 794; Matter of Furman Street, 17 Wend. 649; Radcliff's Ex'rs v. Mayor, &c., of Brooklyn, 4 N. Y. 195; Graves v. Otis, 2 Hill, 466; Wilson v. Mayor, &c., of New York, 1 Denio, 595; Murphy v. Chicago, 29 Ill. 279; Roberts v. Chicago, 26 Ill. 249; Charlton v. Alleghany City, 1 Grant, 208; La Fayette v. Bush, 19 Ind. 326; Macy v. Indianapolis, 17 Ind. 267; Vincennes v. Richards,, 23 Ind. 381; Green v. Reading, 9 Watts, 382; O'Conner v. Pittsburg, 18 Penn. St. 187; In re Ridge Street, 29 Penn. St. 391; Callendar v. Marsh, 1 Pick. 417; Creal v. Keokuk, 4 Greene (Iowa), 47; Smith v. Washington, 20 How. 135; Skinner v. Hartford Bridge Co. 29 Conn. 523; Benden v. Nashua, 17 N. H. 477; Goszler v. Georgetown, 6 Wheat. 703. The cases of McComb v. Akron, 15 Ohio, 474, and 18 Ohio, 229; and Crawford v. Delaware, 7 Ohio, N. s. 459, are contra. Those cases, however, admit that a party whose interests are injured by the original establishment of a street grade can have no claim to compensation; but they hold that when the grade is once established, and lots are improved in reference to it, the corporation has no right to change the grade afterwards, except on payment of the damages.

3 As in Sprague v. Worcester, 13 Gray, 193, where, in consequence of the erection of a bridge over a stream on which a mill was situated, the mill was injured by an extraordinary rise in the stream; the bridge, however, being in all respects properly constructed.

4 Kennett's Petition, 4 Fost. 139. And Eddings v. Seabrook, 12 Rich. Law, 504.