13. The fee of the streets of a city, where it has been acquired by the municipality under the right of eminent domain, Hampshire Bridge, 7 N. Hamp. R. 35, 69, as containing the views of the court upon the subject. See also Brewster v. Hough, 10 N. Hamp. R. 138; Northern Railw. v. Concord & Claremont Railw., 7 Foster, 183, 195.

The remarks of the late Professor Greenleaf, in his addition of Cruise, vol. 2, tit. 27, § 29, in note, p. 67, 68, upon this important subject, seem altogether " But worthy of commendation, and their insertion here will require no apology. in regard to the position, that the grant of the franchise of a ferry, bridge, turnpike, or railroad, is in its nature exclusive, so that the state cannot interfere with it by the creation of another similar franchise, tending materially to impair its value, it is with great deference submitted, that an important distinction should be observed between those powers of government which are essential attributes of sovereignty, indispensable to be always preserved in full vigor, such as the power to create revenues for public purposes, to provide for the common defence, to provide safe and convenient ways for the public necessity and convenience, and to take private property for public uses, and the like, and those powers which are not thus essential, such as the power to alienate the lands and other property of the state, and to make contracts of service, or of purchase and sale, or the like. Powers of the former class are essential to the constitution of society, as without them no political community can well exist; and necessity requires that they should continue unimpaired. They are intrusted to the legislature to be exercised, not to be bartered away; and it is indispensable that each legislature should assemble with the same measure of sovereign power which was held by its predecessors. Any act of the legislature, disabling itself from the future exercise of powers intrusted to it for the public good, must be void, being in effect a covenant to desert its paramount duty to the whole people. It is therefore deemed not competent for a legislature to covenant, that it will not under any circumstances open another avenue for the public travel within certain limits, or a certain term of time; such covenant being an alienation of sovereign powers and a violation of public duty.

“ But if, in order to provide suitable public ways, the state has availed itself of private capital, and secured its reimbursement by the grant of a charter of incorporation, with the right to take tolls for a limited period; and the public necessity should afterwards require the creation of another way, the opening of which would diminish the profits of the first, and so prevent the corporators from receiving the compensation intended to be secured to them; the state, thus sacrificing the private property of the corporation for public uses, would unquestionably be bound, as a sacred moral duty, to make full indemnity therefor in some other mode.

“All those grants of franchises, therefore, which are in derogation of the essential attributes of sovereignty above mentioned, are to be construed strictly; and nothing is to be taken by implication. It was on this ground that the case of the Warren Bridge was decided. The legislature had granted a charter for the building of the Charles River Bridge, with the right of receiving tolls, and

becomes a public trust for general public purposes, and is under the unqualified control of the legislature, and any legislative appropriation of it to public use is not be regarded as the appropriation of private property, so as to require compensation to the city or municipality to render it constitutional.17 The mere possibility of reverter to the original owner, or his heirs or grantupwards of forty years afterwards, the public exigency requiring another and free avenue between the same places, an act was passed authorizing the erection of the Warren Bridge, a few rods from the former, the opening of which, as a natural consequence, reduced the tolls of the former to a very small amount. And this act was held to be not unconstitutional. Charles River Bridge v. Warren Bridge, 11 Peters, 420, cited, and its reasoning affirmed, in Butler v. Pennsylvania, 10 How. (S. C.) 402 (1850); Woodfolk v. Nashville, &c. Railw. Co., 1 Am. L. Reg. 520. [See also Matter of Hamilton Avenue, 14 Barb. Sup. Ct. 405; Illinois and Michigan Canal v. Chicago and R. I. Railw. Co., 14 Ill. R. 314; Rundle v. The Delaware and R. Canal Co., 14 How. (U. S.) 80; 13 Ib. ; 10 Ib. 511, 541; Shorter v. Smith, 9 Ga. R. 517.]

71

"The learned chancellor Kent, in a note appended to the case of 11 Pet. 420, deeply regrets that decision, concurring in the opinion of Mr. Justice Story, who dissented from it. But against the weight of the opinion of this great judge may be placed that of the late Chief Justice Marshall, the writer having been informed, as a fact within the personal knowledge of the informant, that the chief justice held the charter of Warren Bridge constitutional, upon the first argument of the cause; and that it was on account of this division of the bench that a second argument was ordered, which he did not live to hear. And it is worthy of notice, in this connection, that Mr. Justice Story, in delivering his dissenting opinion in the same term, in the case of Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Pet. 328, supports it by referring to a similar opinion held by the late chief justice, upon the former argument of that cause; while in the case of Warren Bridge no such support is invoked; doubtless for the reason that it could not be had.

"The state being bound in good faith, as already stated, to make full and complete indemnity to individuals, whose private rights, in the exercise of its eminent domain, it has been obliged to sacrifice for the general good, the question is reduced to the mode of compensation; whether actual payment of the damages must precede or accompany the act of the state; or whether the individual ought to have at least a compulsory remedy at law; or whether the pledge of public faith is a sufficient security. On this subject various opinions are held. See 2 Kent, Comm. 338-440, and note (c) on p. 339, 5th ed.; 11 Pet. 471, 472, 642, 643; The People v. White, 4 Law Rep. (N. s.) 177." See also, to the same effect, the opinion of Mr. Justice Grier, of the United States Circuit Court, in Milnor v. The New J. Railw., 6 Law Reg. 6, 7; and Crosby v. Hanover, 20 Law Rep. 646; s. c. 36 N. H. R. 404.

17 People v. Kerr, 27 N. Y. R. 188. See also Philadelphia & Reading Railw. v. City of Philadelphia, 47 Penn. St. 325.

ees, is not regarded in such cases as any appreciable interest requiring to be compensated.17

*

15. In an award of farm accommodations time of the essence of the award.

§ 71. 1. The inquiry in regard to what compensation shall be made, for land taken for public works, would, on the face of it, seem to be a very simple one. One would naturally suppose the value of the land taken or the damage sustained, to be the fair measure of compensation, and that there could be no serious difficulty in ascertaining the amount.

*

2. But in consequence of numerous ingenious speculations in regard to possible advantages and disadvantages arising from the public works, for which lands are taken, the whole subject has become, in this country especially, involved in more or less uncertainty. All the cases seem to concur in excluding mere general and public benefit, in which the owner of land shares in common with the rest of the inhabitants of the vicinity, from being taken into consideration in estimating compensation.

3. It has been said, the appraisers are not to go into conjectural and speculative estimations of consequential damages,1 but

1 Meacham v. Fitchburg Railw., 4 Cush. 291; Upton v. South Reading Branch Railw. Co., 8 Cush. 600; Albany N. Railw. Co. v. Lansing, 16 Barb. 68; Canandaigua & N. Railw. v. Payne, 16 Barb. 273; Greenville & C. Railw. Co. v. Partlow, 5 Rich. 428; White v. Charlotte & S. C. Railw. Co., 6 Rich. 47; A. & S. Railw. Co. v. Carpenter, 14 Illinois R. 190; Symonds v. The *133-135

confine themselves to estimating the value of the land taken to the owner. This is most readily and fairly ascertained, by determining the value of the whole land, without the railway, and of the portion remaining after the railway is built. The difference is the true compensation to which the party is entitled.2

*4. But the appraisers are to assess all the damages, present and prospective, to which the party will ever be entitled, by the prudent construction and operation of the road.3

City of Cincinnati, 14 Ohio R. 147; Brown v. Cincinnati, Id. 541; McIntire v. State, 5 Blackford, 384; State v. Digby, 5 Blackf. 543; James River & Kanawha Co. v. Turner, 9 Leigh, 313; Schuylkill Co. v. Thoburn, 7 Serg. & R. 411. A jury may take into the account, in estimating the damages, the effect the construction of the railway will have in diminishing deposits of sediment, which had been made by a river, in high water flowing upon the land and greatly enriching it. Concord Railw. v. Greeley, 3 Foster, 237. And the deterioration of the adjacent parts of the same land, (but which are not taken,) either for agriculture, or sale for building lots; by risk from fire, care of family and stock, inconvenience caused by embankments, excavations, and obstructions to the free use of buildings, is to be taken into the account, in estimating damages. Somerville & E. Railw. v. Doughty, 2 Zab. 495. The increase or decrease in the price of the remaining land, and the expense of fencing, are to be taken into the account, in assessing compensation. Greenville & Columbia Railw. v. Partlow, 5 Rich. 428. The value of the land taken, considering its relation to the land from which it is severed, is to be given, and such further sum as the incidental injury to the land not taken, from the construction of the road, exceeds the incidental benefits. Nashville Railw. v. Dickerson, 17 B. Mon. 173, 180. Louisville & Nash. Railw. v. Thompson, 18 Id. 735.

2

Troy & Boston Railw. v. Lee, 13 Barb. 169, 171; Matter of F. Street, 17 Wend. 649; Canal Co. v. Archer, 9 Gill & J. 480; Parks v. City of Boston, 15 Pick. 198; Somerville Railw. v. Doughty, 2 Zab. 495. But no account is to be taken, in estimating land damages, of the benefit the railway may have been to other property of the plaintiff, disconnected with that taken. Railw. v. Gilson, 8 Watts, 243; but see Columbus, P. & I. Railw. v. Simpson, 4 Law Reg. 696; s. c. 5 Ohio St. 251; Rochester & Sy. Railw. v. Budlong, 6 How. Pr. 467; Sater v. B. & Mt. Pl. Railw., 1 Clarke, 386. The value of the land, at the time of trial, or at any time subsequent to the construction of the work, cannot be referred to in determining the benefits conferred upon that portion of the land not taken. Ind. Central R. v. Hunter, 8 Ind. R. 74.

3 Dearborn v. Boston, Concord, & Montreal Railw. Co., 4 Foster, 179. Clark v. Vt. & Canada Railw., 28 Vt. R. 103. The expense of fencing is to be included in the estimate of land damages. Winona & St. Peter Railw. Co. v. Denman, 10 Minn. R. 267. The matter of estimating land damages to the owner of a farm, a portion of which is taken for the construction of a railway, is

5. Some of the state constitutions in terms provide, that compensation for private property, taken for public use, shall be made "in money," and many eminent jurists have strenuously maintained that compensation, to the extent of the value of the land taken, must always be made in money, and that no deduction can be made, on account of any advantage which is likely to accrue to other property of the owner, by reason of the public work, for which the property is taken. Such accidental advantages to the portion of land not taken as drainage by means of cuts in the soil from grading the railway cannot be taken into account.5

6. In a late case in Vermont the court held, that taking land for a public highway is not appropriating it to public use, within the meaning of the constitution of that state, which requires compensation in such cases to be made "in money," but that this provision only applies, where the fee of the land is taken ; and that where an easement only is taken for the purpose of a highway, and the remaining land is worth more than the whole discussed very much in detail and with a very considerate regard to the equitable interests of all parties in the case of Robbins v. Milw. & Hor. Railw. Co., 6 Wis. R. 636. Damages done to mill property in lessening the advantages of the water-power, present and prospective, should be taken into the account in estimating land damages. Dorlan v. E. Br. & Waynesburg Railw. Co. 46 Penn. St. 520.

4

2 Kent, Comm. 7th ed. 394 and note; Jacob v. The City of Louisville, 9 Dana, 114; The People v. The Mayor of Brooklyn, 6 Barb. (S. C.) 209. But this last case was subsequently reversed in the Court of Appeals. 4 Comst. 419; Rice v. Turnpike Co., 7 Dana, 81; Woodfolk v. N. & C. Railw., 2 Swan, 422. In this case, it was said, benefits to the remaining land may be set off against injury, but the party cannot be compelled to apply such benefits towards the price of his land. Railway v. Lagarde, 10 Louis. Ann. 150. Under such a provision in the constitution of Ohio, it was held, that in assessing damages, the jury had no right to take into consideration the fact, that the value of the land had been increased by the proposal, or construction of the work. Giesy v. Cin. Wil. & Zanesv. Railw., 4 Ohio St. 308. General benefits resulting from the erection of a railway, to all who own property in the vicinity, are not to be taken into the account, in estimating land damages; and it was doubted if special benefits, accruing to the remainder of the land, could be so taken into account. Little Miami Railw. v. Collett, 6 Ohio State, 182. Pacific Railw. v. Chrystal,

25 Mo. R. 544.

5 Evansville & C. Railw. v. Fitzpatrick, 10 Ind. R. 120; Same v. Cochran, Id.

560.