Cairo and Fulton Railroad Company v. Turner.

altering, maintaining, preserving in complete operation of said road; all such lands, waters, materials and privileges belonging to this State are hereby granted to said corporation for said purpose; but, when owned or belonging to any person, company or corporation, and cannot be obtained by voluntary grant or release, the same may be taken and paid for, if any damages are awarded, in the manner provided for by law; provided, nothing in this section contained shall be so construed as to authorize the said corporation to interrupt the navigation of said streams."

By act of Congress of February 9th, 1853, the right of way through the public lands was given to the States of Arkansas and Missouri, and a large amount of lands granted to said States to aid in the construction of the Cairo and Fulton railroad, and its branches, etc., with a provision that said railroad and branches should be, and remain a public highway for the transportation of the property, troops and mails of the United States, etc.

The line of the Cairo and Fulton railroad was surveyed, located and fixed under the provisions of the act incorporating the company, and, by act of 16th January, 1855, the survey and location so made were approved, and the lands donated by Congress to the State for that purpose, granted to the company to aid in the construction of the road, etc.; and by act of 26th November, 1856, the grant was confirmed, etc.

By act of Congress of 28th July, 1866, the act of 9th February, 1853, giving the right of way, and granting lands to aid in the construction of the road and branches, was revived and extended, and an additional grant of lands made, etc.

Article V, amendments to the Constitution of the United States, declares that private property shall not be taken for public use without just compensation, but this provision is intended only as a limitation upon the exercise of that power by the government of the United States. Barron v. Baltimore, 7 Peters, 243; Fox v. Ohio, 5 How. (U. S.) 410, 434-5; 1 Redf. on Railw. 231.

The Constitutions of most of the American States contain a similar provision. Our Constitution of 1836 contained no such provision, but, in Martin et al., ex parte, 13 Ark. 206, it was well said by Chief Justice WATKINS: "That this prohibition upon the legislature is implied from the nature and structure of our government, even if it were not embraced by necessary implication in other provisions of the bill of rights. The right of eminent domain is

Cairo and Fulton Railroad Company v. Turner.

inherent in the government or sovereign power, and equally is, or ought to be, in every government of laws the vested right to his property in the citizen; and the right of eminent domain means, that when the public necessity or common good requires it, the citizen may be forced to sell his property for its fair value. The duty of making compensation may be regarded as a law of natural justice, which has its sanction in every man's sense of right, and is recognized in the most arbitrary governments."

The duty to make compensation for property taken for public use is regarded, by most enlightened jurists, as founded in the fundamental principles of natural right and justice, and as lying at the basis of all-wise and just government, independent of all written constitutions or positive law. 1 Redf. on Railw. 231; Bradshaw v. Rodgers, 20 Johns. 103; 2 Kent's Com. 339; Henry v. Dubuque and Pacific R. R. Co., 10 Iowa, 543.

Railroads for the conveyance of travelers, or the transportation of merchandise, etc., from one part of the State to another, are public improvements, and for the public benefit, for the construction of which private property may be taken under the authority of the legislature, upon paying a just compensation therefor to the owners. The eminent domain, or right to resume the possession of private property for the public use upon paying a just compensation therefor, remains in the government, or the people in their Sovereign capacity; and such right of resumption may be exercised, not only for the public safety, but also where the interest, or even the convenience of the State, or of its inhabitants, is concerned; as for the purpose of making turnpike and other roads, railways, canals, etc., for the accommodation of the public. It belongs to the legislative power of the State to determine whether the benefits which the public are to derive from such improvements are of sufficient importance to justify the exercise of this right of eminent domain, in thus interfering with private rights of individuals; and the right itself may be exercised by the government through its immediate officers or agents, or indirectly through the medium of corporate bodies, etc. WALWORTH, Chancellor, in Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 9; Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige, 45.

There is much conflict and confusion in the adjudications of the State courts in relation to the time when compensation is to be made to the owner for property taken for public use, growing in

Cairo and Fulton Railroad Company v. Turner.

part out of the diversity of constitutional provisions on the subject, and the want of uniformity in the statutes of the States regulating the ascertainment and payment of damages.

The Constitution of 1836, as above remarked, was silent on the subject of the exercise of the right of eminent domain by the State

In Martin et al., ex parte, Chief Judge WATKINS remarked: "To suppose that the legislature, under our Constitution, possessed the power of divesting the citizen of his right to property, without first providing in some equitable mode for ascertaining its value, and making him compensation for it, and could exercise this power without restraint, would be subversive of the government, and equivalent to revolution and anarchy, since it would defeat one of the primary objects for which the government was established."

This is in harmony with the prevailing views of American jurists on the subject. Mr. Kent says: "A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the law-giver to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence is founded on natural equity, and is laid down by jurists as an acknowledged principle of universal law." 2 Kent's Com. (8th ed.) 399.

But further along in the opinion of Chief Judge WATKINS, in Martin et al., ex parte, he uses the following language: "Now we feel it our duty to express the opinion we entertain, that the prohibition upon the power of the legislature to take private property for public use without providing for just compensation to be first made to the owner, is necessarily implied in the articles (of the bill of rights) above quoted.'

Had he said in this sentence that it was not in the power of the legislature to take private property for public use without first providing for just compensation to be made to the owner, it would have been in harmony with his previous expression on the same subject, above copied, and with the prevailing adjudications in the States where there is no express constitutional provision requiring the compensation to be actually paid before the property is taken for public use.

The question as to the time when compensation should be made, or, in other words, when the damages occasioned to the owner of property by its appropriation to public use should be paid, was not before the court in Martin et al., ex parte.

VOL. XXV.72

Cairo and Fulton Railroad Company v. Turner.

The act of 6th January, and supplemental act of 10th January, 1851, providing for the reclaiming of swamp and overflowed lands by levies, drains, etc., made no provision whatever for the compensation of individuals for property taken or injured in constructing such levies or drains. The swamp land commissioner constructed a levee across a bayou, or lake, which stopped the natural flow or drain of waters, and caused the flooding of the cultivated lands of Martin and others, who applied for an injunction. The court held, in effect, that the legislature having made no provision for compensating them for such damages, the commissioners might be enjoined upon a proper showing, notice, etc.

In Roberts v. Williams, 15 Ark. 49, Judge SCOTT remarked that private property could not be taken for public use without providing for just compensation to be first made to the owner, reciting Martin et al., ex parte. That was a proceeding to open a private road under sections 61-66, ch. 149, Gould's Digest, and the proceedings were held invalid because of the non-compliance with the provisions of the statute in relation to ascertaining and ordering the payment of damages occasioned to land-owners by the opening of the road.

Whitehead and Wife v. Arkansas Central Railroad Company, 28 Ark. 460, was decided under a provision of the Constitution of 1868, and will be noticed again below.

According to the current of authorities, in the absence of a distinct provision in the Constitution requiring the payment of compensation to precede the taking of the property, the assessment and payment of the compensation need not precede the entry upon the land by the company for the construction of its road, provided there is an adequate remedy, afforded before such entry is made, for obtaining compensation, which may be provided in the charter or existing laws. The payment or tender of the compensation, or an appropriate provision therefor, is generally required to precede an appropriation of the owner's property by the road. Pierce on American Railway Law, 162; Bloodgood v. Mohawk and Hudson Railroad Company, 18 Wend. 9; Smith et al. v. Helmer, 7 Barb. 416; Gould v. Glass, 19 id. 190; Rexford v. Knight, 1 N. Y. 308; Thatcher et al. v. Dartmouth Bridge Co., 18 Pick. 501; Tuckahoe Canal Co. v. Tuckahoe Railroad Co., 11 Leigh, 77; Symonds et al. v. Cincinnatı, 14 Ohio, 171; Hatch v. Vt. Cent. R. R. Co., 25 Vt. 66; People ex rel. Green v. Michigan Southern R. R. Co., 3 Mich. 496; Smith v. McAdam, id. 506; Rubottom et al. v. M'Clure, 4

Cairo and Fulton Railroad Company v. Turner.

Blackf. 505; Hankins v. Lawrence, 8 id. 266; New Albany and Salem R. R. Co. v. Connelly, 7 Ind. 32; Hamilton v. Annapolis and Elk Ridge R. R. Co. et al., 1 Md. Ch. 107; Commissioners, etc., v. Bowie, 34 Ala. 461; Raleigh and Gaston Railroad Co. v. Davis, 2 Dev. & Batt. Law, 451.

The act incorporating the Cairo and Fulton Railroad Company after giving the right of way, etc., over public and private lands, provides, as above shown, that where the land belongs to any person, etc., and cannot be obtained by voluntary grant or release, the same may be taken and paid for, if any damages are awarded, in the manner provided for by law. § 3.

The act provides no mode for ascertaining the damages, and. enforcing the payment of compensation to the land-owner. this not been done by a subsequent act, passed before the road was constructed over the land of appellee, he might have treated the corporation, its officers, employees, etc., as trespassers, or enjoined the corporation from appropriating his land until compensation was made to him. Martin et al., ex parte, supra.

But by act of 22d January, 1855, this omission in the charter was supplied. See Gould's Digest, ch. 140.

It has been held that provisions for compensation may be in a subsequent law, and that an act taking private property for public use is not void because it does not provide compensation or a mode of ascertaining it, but that its execution will be enjoined until such provision is made and the compensation paid. Bonaparte v. Camden and Amboy Railroad Company, 1 Baldwin's C. C. and C. 205.

The act providing for compensation, above referred to, provides in substance that if any person owning lands over or upon which any railroad shall be surveyed and located, by any company incorporated to build a railroad, shall not have relinquished the right of way, etc., etc., the case shall be stated in writing, accom-: panied by a plat description of the land required for the road, to the judge of the Circuit Court of the county in which the land is situated, etc., in term or vacation, and the judge shall appoint fiveimpartial and disinterested freeholders and citizens of the county, etc., to view said lands, etc., and report, under oath, what damages will be done to said land or improvements thereon, stating the amount of damages, etc., and return the petition and plat of the land condemned. Notice to the owner, etc., is provided for. § 1. The persons appointed to view and value the land are required to file their report in the office of the clerk of the Circuit Court, and