Bloodgood vs. The Mohawk and Hudson Railroad Company, 18 Wend. 9

After advisement, the following opinions were delivered: By the Chancellor. [14] [15] [16] The first and most important question in this case is, as to' the constitutional power of the legislature to authorize the taking of private property for the use of a railroad, upon paying a just compensation to the owner for the property thus taken. In the case of Beekman v.

The Saratoga and Schenectady Railroad Company, (3 Paige’s R., 45,) which came before me in another court, I decided that railroads for the conveyance of travellers, or the transportation of merchandise from one part of the State to another, were public improvements and for the public benefit, tor the construction of which private property might be taken under the authority of the legislature, upon paying a just compensation therefor to the owners.

That the eminent domain, or the right to resume the possession of private property for the public use, upon paying a just compensation therefor, remained in the government or the people in their sovereign capacity; and that such right of resumption might be exercised, not only for the public safety, but also where tlie interest or even the convenience of the State or of its inhabitants were concerned, as for the purpose of making turnpike and other roads, railways, canals, ferries, and bridges, for the accommodation of the public.

That it belonged to the legislative power of the State to determine whether the benefit, which the public were to derive from such improvements, were of sufficient importance to justify the exercise of this right of eminent domain, in thus interfering with the private rights of individuals; and that the right itself might be exercised by the government through its immediate officers or agents; or indirectly through the medium of corporate bodies or private individuals.

The reasons upon which these conclusions were founded, are stated at length in the report of that case, and it is therefore unnecessary to repeat them here. In .the subsequent case of Varick v.

Smith and the Attorney General, (5 Paige’s R., 137,) I also arrived at the conclusion that this right of eminent domain did not authorize the government to take the property of one citizen for the mere purpose of transferring it to another, even for a full compensation, where the public was not interested in such transfer ; and that such an arbitrary exercise of power would be an infringement of the spirit of the constitution, as not being within the powers delegated by the people to the legislature.

To justify the exercise of the right there must be a necessity, or at least an evident utility on the part of the public. (Ersk. Inst. B. 2, tit. 1, § 2. Per Lane, J. 4, Ohio R. 286. Per Green, J. 3 Yerg. R., 52.) Upon a further argument and examination of this subject, 1 have seen no reason to change the opinion I had expressed in the cases above referred to. On the contrary, since the decision in the case of Beekman v. The Saratoga and Schenectady Railroad Company, decisions have been- made in the courts of some of our sister states, which have tended to confirm my views of this constitutional question.

In the case of Cotrill v. Myrick, which came before the supreme court of Maine, in 1835, (3 Fairf.

R., 222,) it was claimed that the property, an alleged private right of fishery, which had been opened and improved for the benefit of the inhabitants farther up the stream, was not taken for public use, because the profits and emoluments of the improved fishery were granted to the inhabitants of two particular towns; but the court, in answer to this objection, said, “ The public had an interest in the preservation and regulation of the fishery, and in the removal of obstructions by which it might be impaired or destroyed.

This was best effected through the agency of persons appointed by the neighboring towns, and by quickening and rewarding their diligence by a grant of the profits. It is a course of proceeding adopted by the legislature in many other cases, the authority of which has not been questioned. If public purposes and uses were to be promoted, as they undoubtedly were in the case before us, it was no objection to the power of appropriation by the legislature that it contributed also to the emolument or advantage of individuals or corporations.

Many cases of this character exist, in which the legislative power is well established.” And the court refers to the case of the right granted by statute in that state and in Massachusetts to the owners of mills to raise a head of . water necessary for their operation, although the lands of others are thereby injured and rendered unproductive ; ample provision having been made by law for compensating the owners of such lands for the injuries which they may sustain. A similar decision upon this constitutional "question was made by the supreme court of Alabama in 1835, in the case of Dyer v.

The Tuscaloosa Bridge Company, 2 Porter’s R., 296, where a corporation was authorized by the legislature to take private property for the site of a bridge, and to make a passage to the same. A similar power has been exercised by the legislature of this state for the last fifty years, in relation to turnpike roads, toll, bridges, &c., without question, and also by the legislature of nearly every state in the union. In the case of Harding v.

Goodlett, (3 Yerger’s R., 41), to which this court were referred on the argument, which came before the supreme court of Tennessee in 1832, it was held that the law of that state authorizing the taking of the land of an individual for the erection of a grist-mill thereon, at which all the inhabitants of the neighborhood should be entitled to have their grinding done in turn and at fixed rates, was such a public use as to authorize the exercise of the right of eminent domain, although the whole property and profits of the mill "were to belong to the individual proprietor thereof.

It is true, in that case, each individual could not be permitted to go to the mill and grind his own grist, but still it was the public utility of having such a mill, where each individual had an equal right to be served, which authorized the taking of the private property for such" a purpose, upon payment of a full compensation for the same.

So in the case of a ferry or railroad, although each member of the community cannot cross the river in his own ferry-boat, or ride upon the railway in his own car, or travel thereon with his own locomotive engine, he has an unquestionable right to cross the ferry in the usual way, or to travel on the railway in the accustomed mode of. travelling thereon, paying the ordinary toll or fare ; and the "proprietors of the ferry or the "railway would be liable to an action for damages if they refused, without sufficient cause, to permit him to exercise this right.

It might as well be objected that a canal, made by an incorporated company, was not a public improvement, because each individual could not navigate it with a canal boat),or "travel thereon with a steam-engine; or that a turnpike road was of no public utility, because each "citizen could hot conveniently transport produce and passengers theréon with his wagon and horses.

I have no doubt, therefore, of the constitutional power of the legislature to take private property for the purpose of making a railroad, or any other public improvement of the like nature, upon paying a just compensation for such property, whether such public improvement is made by the agents of the state, or through the medium of a corporation or joint stock company.

But the exercise of the power to take private property, even for uses which are confessedly public, should not be resorted to in any case, unless the benefit which is to result to the public is of paramount importance in comparison with the individual loss or inconvenience, and an ample and certain provision should always be made for a full and adequate compensation to the individual whose property is thus taken ; and that legislator will best discharge his duty who exercises this power as seldom as possible, consistently with the real interests and general welfare of the state. [17] [18] Another very important question which arises in this case is, whether the legislature in fact authorized the defendants to enter upon the private property of the plaintiff and to construct their railroad thereon before his damages were actually assessed and paid, or offered to be paid to him; and if such is the construction of the law, whether such a power is authorized by the constitution.

In the case of Rogers v. Bradshaw, (20 Johns. R. 735,) this court decided that where private property was taken for public use, it was not necessary that the amount of the compensation should be actually ascertained and paid for before such property was appropriated to the public use; that it was sufficient if a certain and adequate remedy was provided by which the individual could obtain such compensation without any unreasonable delay. This decision has been followed by the courts of several of our sister states. To this extent the opinion of Chancellor Kent, in the case of Rogers v.

Bradshaw, must be considered as the settled construction of the constitutional provision on this subject, at least in this state. I cannot, however, agree with my learned predecessor, in his subsequent reasoning in that case, upon which he afterwards acted in the case of Jerome v. Ross. (7 Johns. Oh. R. 344,) that it is not necessary to the. validity of a statute authorizing private property to be taken for the public use that a remedy for obtaining compensation by the owner should be provided.

On the contrary, I hold that before the legislature can authorize the agents of the state and others to enter upon and occupy, or destroy or materially injure the private property of an individual, except in cases of actual necessity which will not admit of any delay, an adequate and certain remedy must be provided whereby the owner of such property may compel the payment of his damages, or compensation; and that he is not bound to trust to the justice of the government to make provision for such compensation by future legislation, I do not mean to be understood that the legislature may not authorize a mere entry upon the land of another for the purpose of examination, or of making preliminary surveys, See., which would otherwise be a technical trespass, but no real injury to the owner of the land, although no previous provision was made by law to compensate the individual for his property if it should afterwards be taken for the public use.

But it certainly was not the intention of the framers of the constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice of the legislature to provide him a compensation therefor. The compensation must be either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided and upon an adequate fund, whereby he may obtain such compensation through the medium of the' courts of justice, if those whose duty it is to make such compensation refuse to do so.

In the ordinary case of lands taken for the making of public highways, or for the use of the state canal, such a remedy is provided; and if the town, county, or state officers refuse to do their duty in ascertaining, raising, or paying such compensation in the mode prescribed by law, the owner of the property has a remedy by mandamus to compel them to perform their duty. The public purse, or the property of the town or county upon which the assessment is to be made, may justly be considered an adequate fund.

He has no such remedy, however, against the legislature to compel the passage of the necessary laws to ascertain .the amount of compensation he is to receive, or the fund out of which he is to be paid. In the case under Consideration, if this company were authorized to fake possession of the plaintiff’s property and complete the construction of their road before his damages were assessed and paid, or offered to be paid to him, he might have been wholly without redress, as he has no power to compel the assessment of damages, and no adequate fund was provided for the payment of the damages when ascertained.

The citizen whose property is thus taken from him without his consent, is not bound to trust to the solvency of an individual, pr even of an incorporated company, for corporations as well as individuals are sometimes unable to pay all their just debts; especially those corporations which are authorized to incur heavy responsibilities in anticipation of the payment of their capital by the subscribers for the stock; and if the true construction of this charter was such as is contended for by the defendant’s counsel, I should hold that the provision which authorized the appropriation of the plaintiff’s property to the use of the corporation before the damages had been ascertained and paid, was unconstitutional and void. [19] I cannot, however, agree with the learned judge who delivered the opinion of the supreme court in this case, that such is the fair and legitimate eónstruction and meaning of the defendant’s charter.

It is a primary rule ip the construction of statutes in those countries where the limits of the legislative power are restricted by the provisions of a written constitution, to endeavor if possible to interpret the language of the legislature in such a manner as to make it consistent with the constitution or fundamental law.

Applying that principle to the statute under consideration, and having ascertained that it would be inconsistent with the fundamental law of the state, to authorize the defendants to take possession of the lands of an individual without having made an adequate and certain provision for the recovery of the damages which he would necessarily sustain by such permanent occupation of his property for the purposes of the road, there appears to be no difficulty in giving such a construction to' this statute as will be consistent with the constitution and also with the probable intention of the legislature.

This may be done effectually by considering what is very inartificially appended as a proviso to the seventh section, as in the nature of a condition precedent, riot only to the acquisition of the legal title to the land, but also to the right to enter and take the permanent possession of the land for the use of the corporation. Indeed, such appears to me to be the more reasonable and fair construction of this section, independent of any constitutional difficulty in the way of a different construction.

For upon the supposition that no injustice was intended by the legislature, it can hardly be presumed they meant to authorize the company to enter upon the lands of individuals, pull down their buildings, &c., and then take their own time to get the damages appraised and to pay the same; leaving the individuals injured thereby to seek for some uncertain remedy by action, if the company neglected to get the damages assessed within a reasonable time. [20] The conclusion at which I have arrived, therefore, is, that the defendants’ plea is imperfect, in not averring that the damages had been regularly assessed and paid before the defendants entered upon the plaintiff’s land and appropriated it to"the use of the road; and that if they in fact entered and commenced the. construction of the "road before the damages were actually assessed and paid, the plaintiff has a technical right to re.covér in this action for all damages which he really sustained by such unauthorized entry, although these requisites of the statute were afterwards complied with.

In that case, the defence arising from the subsequent assessment and payment of the damages, can only be pleaded to that part of the declaration which charges a continuance of the trespass after the damages were assessed and paid as required by the statute. For these reasons I think the demurrer is well taken, and that the judgment of the supreme court should be reversed; with liberty to the defendants to amend their plea upon the payment of costs in this court and of the demurrer in the supreme court. By Senator Edwards.

The important questions which appear to me to be presented in this case for examination, are, first, whether the act is constitutional under which the defendants attempt to justify ? If not, no plea, however well pleaded, could justify the trespass. And secondly, if the act is constitutional, was the plea correctly pleaded ? The principal objection, in my opinion, urged against the constitutionality of the act is, that the property was taken for a use not authorized by the constitution.

The constitution authorizes private property to be taken for public use, on allowing the owner a just compensation. [21] [22] Let us inquire, then, whether the act incorporating this company authorized it to take the property of the plaintiff for public use. The use for which it was taken is declared in the act.

The company were authorized by the act to take it for the purpose of constructing a single or double railroad or way, between the Mohawk and Hudson rivers, &c.; to transport, take and carry property and persons upon the same, by the power and force of steam, of animals, or of any mechanical or other power, or of any com bination of them which the company might choose to employ. Does the fact that the power to construct the road is given to a company alter the nature of the grant ? Surely not. It is entirely immaterial who constructs the road, or who defrays the expense of the construction.

The object for which it is constructed must determine the nature of the grant, whether for public or private use. What object had the legislature in view in authorizing this company to construct the road in question over the plaintiff’s land? It was not the private emolument the company was to receive for the use of the road. For such a purpose the' right would never have been conferred. The legislature, who are constituted the judges of the expediency of taking private property for public use, came to the conclusion that the public required the use of a railroad between the cities of Albany and Schenectady.

It deemed it inexpedient to construct it at the public expense, and adopted the policy of having a company construct it at its own expense and risk, having the money expended refunded by way of tolls or fare from the individuals who should travel upon it; reserving the right, however, to take it as the property of the state within a certain period.

Because the legislature permitted the company to remunerate itself for the expense of constructing the road, from those who should travel upon it, its private character is not established; it does not destroy the public nature of' the road, or convert it from a public to a private use. If such would be the effect in relation to railroads, the receipt of tolls for the use of turnpike roads would also determine the question that they too were for private instead of public use.

The public have an interest in the use of these roads ; any individual has a right to be transported upon them, at all reasonable times, on paying the usual fare, as much as he has the right of using a turnpike or a ferry on paying the usual toll. In the case of Beekman v. The Saratoga and Schenectady Railroad Company, (8 Paige’s R., 75,) the chancellor says : “ The privilege of making a road and taking tolls thereon, is a franchise, as much as the establishment of a ferry or a public wharf, and taking tolls for the use of the same.

The public have an interest in the use of the road, and the owners may be prosecuted for the damages sustained, if they should refuse to transport an individual or his property, without any reasonable excuse, on being paid the usual rate of fare.’’ If it is a public franchise, and granted to the company for the purpose of providing a mode of public conveyance, the company in accepting it, engages on its part to use it in such manner as will accomplish the object for which the legislature designed it.

While the company, therefore, holds the property of individuals which it is authorized by the act to hold and use, it cannot convert it from the original design of the legislature by refusing to transport passengers.and their' property ; a departure from that design in the use, would work a forfeiture of their privileges ; and the legislature, from the nature of the grant, would have a right to interfere even had no such power been reserved in the act of incorpo* ration; but the power to alter, amend or modify, was reserved in express terms in the act.

The legislature, therefore, has the control over it, and may direct the management and use of the road in such manner as will best subserve the public interest. [23] [24] A difference in principle has often been attempted to be established between those acts of the legislature which authorize companies to take private property for the construction of railroads, and those which authorize it to be taken for the maintenance of ferries,, the erection of bridges and the construction of turnpike roads; but from the best reflection I have been able to give the subject, I have been unable to discover any such difference in principle.

In the use of railroads, the company furnish the cars and receive the fare for the transportation of passengers and their property; so in the use of ferries, the company furnishes the boat and receives the fare for the like services. The latter have been considered and treated as public franchises from the earliest grants; why, therefore, should not the former ? I admit that in the use of. bridges and turnpikes there is more latitude given to the individual who wishes to transport his person or his property, as to the mode and manner in which it shall be done, than there is in the use of railroads or ferries.

In the use of the former, he accomplishes his object by the aid of his own vehicle, and takes his own time to effect it; while in the latter, he and his property are to be transported in such vehicles as the companies provide.' But the mode does not alter the nature of the object; either method is to effect the same purpose, to wit, the transportation of the person and his property. The difference in the mode of accomplishing the object arises from the nature and necessity of the case.

In the one case, safety and expedition render it necessary that the company should furnish the vehicle ; in the other, the traveller may secure both of these objects by furnishing his own. In the one case it is practicable, in the other it is not, consistently with the safety of the traveller. It is not only necessary that railroad companies should provide the cars, and ferry companies the boats, to secure to the traveller safety and expedition, but it is so also as a matter of economy.

The privileges therefore allowed these companies, to provide the vehicles for the accommodation of travellers, is a public benefit, and this is an additional fact to show their design for public use, rather than evidence in favor of a contrary inference.

I cannot, therefore, realize any material difference in principle in these two classes of acts of incorporation; and it has been repeatedly held that the acts authorizing private property to be taken for the" use of ferries, bridges and turnpikes, are acts authorizing it to be taken for public use, although the individual companies to whom these privileges are granted receive the emoluments arising from the grants. In the case of The Charles River Bridge Company v. The Warren Bridge Company, (7 Pick.

R., 496), Putnam, J. says, that “ Bridges and ferries are-puhliei juris ; a toll is grantéd for services rendered to the publicand again he says, “ The proprietors of a bridge or ferry are under great liabilities to the public, and compellable to permit the públic to use them on paying toll.” In the case of The State v. The Town of Hampton, (2 N. Hamp. R. 25), Woodbury, judge, says: “ It has always been understood in this state, and all turnpike grants have been made on the hypothesis, that lands taken for'turnpike roads are taken for public purposes.” In the case of Rogers § Magee v. Bradshaw, (20 Johns.

R. 742), Chancellor Kent, in delivering the opinion of the court, remarks that “ Turnpike roads are in point of fact the most public roads or highways that are known to exist, and in point of law they are made entirely for public use, and the community have á deep interest in their construction and preservation.” If the acts authorizing companies to take private property for the maintenance of ferries, the erection of toll bridges, and the construction of turnpikes, are acts authorizing it to be taken for public purposes, as it appears to me they most clearly are; and if there is no material difference in principle between these acts and those incorporating railroad companies in this respect, reasoning from analogy, I feel myself constrained to come to the conclusion that the taking of private property for the construction of the railroad in question was the taking it for public purposes; and as the act made ample provision for the individual owners whose property was to be taken for this purpose, it appears to me it is strictly within the provisions of the constitution ; and the only remaining question to be considered is, whether it was properly pleaded in justification of the trespass alleged ? [25] Formerly, much diversity of opinion seems to have existed as to the true rule of pleading statutes with provisos and exceptions.

In the case of Cathcart v. Hurdy, (2 Maule & Sel., 540), Lord Ellenborough said, “ The rule was inflexible ; if there be a substantive proviso creating an exception, it was for the party who would bring himself within it to plead it.” Bacon, however, declared the rule to be, that if there be in that clause of

an act of parliament which is plead, any proviso or exception, this must be recited, although it should make against the party reciting it; for as the proviso or exception is parcel of the clause which is plead, if this should be omitted, it would amount to a misrecital of the clause (6 Bac. Abr. stat. L., 395) ; but the rule which seems to have prevailed, and which has been adopted by our judicial tribunals, is the one, with a single exception, laid down by Treby, Ch. J., in the case of Joes v. Axer, (1 Id. Raym. 120).

He says, “ Where an exception is incorporated in the body of a clause, he who pleads the clause ought also to plead the exception; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause and leave it to his adversary to shew the proviso.” In the case of Teal v. Fonda, (4 Johns. R., 305) Mr. Justice Van Bess says the only error in this rule of Chief Justice Treby is, in restricting it to provisos contained in a subsequent

section or statute which was not warranted by the cases; and in the case of Bart v. Oléis, (8 Johns. R., 48), the court says, “ If the exception or proviso forms no part of the plaintiff’s title or right of action, but merely a matter of excuse for the defendant, it need not be plead, but left to the opposite party. I think, therefore, we may fairly infer from the authorities, that it is immaterial whether the proviso or exception is in the same clause or a subsequent one : if the proviso or exception is necessary to give the party pleading the clause the right he claims under it, he must plead it.

If, on the other hand, the proviso or exception forms no part of such right, but merely a matter of excuse for the opposite party, he need not plead it, but may leave it to the party who is to avail himself of the benefit of it. [26] [27] The defendants in this plea set out substantially the part of the clause authorizing them to enter and take the plaintiff’s property for the construction of their road, without setting out the proviso ; and in order to determine whether it was necessary for them to set out the proviso, it becomes necessary to consider its nature and character.

The proviso prescribes the condition on which the property of individuals is to bp taken from them and converted to public use. It is a condition required by the constitution, and without which the property cannot be taken for the purposes contemplated by the act; it therefore constitutes an essential part of the clause to show the very existence of the right the parties claim under it. The plea treats the act in the same manner it would, had it not contained the proviso.

Suppose the act had been passed, authorizing the company to enter upon and take possession of and use all such lands and real estate as might be indispensable for the construction and maintenance of their road, without requiring the company to pay a compensation to the individuals whose property should be taken, could the company justify the taking of the property under it ? Would not such

an act be in direct violation of the constitution, and absolutely void F It appears to me it would, beyond all doubt, and that, such

an act, however well pleaded, could form no justification for the trespass alleged.

But it was said by the defendants’ counsel that this proviso formed a condition subsequent, and therefore it was unnecessary for the defendants to plead it, to justify their entering and taking the plaintiff’s property for the construction of their road; and the supreme court seem to have entertained the same views with respect to the construction of this statute, for they say, “ the purchase of the land on the payment of the appraised damages is a condition precedent to the vesting of the fee, simple of the .land required for the road in the corporation, but not to their right to enter upon and take possession of and use it for the construction of their road.” If the payment of damages was only a condition precedent to vesting the fie of the land, and not to taking possession and using the land for the construction of the road, then it is obvious the proviso does not require the defendants to pay damages for the use of the land for the construction of the road or for its continuance : for if the payment of damages is a condition precedent only to the vesting of the fee, and not to the construction and continuance of the road, the company may never desire the fee ; it is wholly unnecessary for the purpose of their road ; all they require is the use of the land during the time of their grant; and the individual who has lost the use of his property during that period, and if it consist in buildings which have been destroyed, has lost it forever, is without the means of redress, because the company do not desire to become seized in fee of the land they occupy.

If such be the true construction of the act, or if the act does not require the company, on taking possession of the land and constructing the road, (T will not say in making the necessary surveys to determine the route,) but on converting it from a private to a public use, then am I prepared to say that in my judgment it is in violation of the constitution and void, and of course could form no justification for the trespass alleged; The constitution declares that private property shall not betaken for public use without a just compensation.

When is the compensation to be made F Clearly on the taking of the property; for it declares it shall not be taken without a just compensation. It is to be simultaneous with the act of taking the. property, that is, depriving the owner of the use and benefit of it, and appropriating it to public use. This appears to me to be the fair and rational construction of this clause of the constitution; the framers of it could not have designed that the private property of individuals, which, in some instances might constitute their whole means of subsistence, should be taken upon credit.

Adopt the contrary construction, and it enables the company who may be authorized to take the property, to deprive the individual in some instances of his whole estate, for a time at least; and if the company finally prove insolvent, a total loss would ensue. Could thg framers of the constitution ever have intended to arrest from individuals, by the strong arm of government, their property, and compel them to rely upon the precarious and uncertain responsibility of railroad companies F I cannot for a moment believe.it.

The power of taking private property for public purposes is at best an arbitrary power, and justified only by the law of necessity, and therefore should never be exercised without rendering promptly a just equivalent to the individual sufferer. [28] [29] I am aware that under the statutes authorizing the construction of canals, the commissioners are authorized to take private property ; and that the damages are afterwards to be appraised and paid for by the state; and that the right of the commissioners to enter upon and take the property of individuals before the state compensates the owner;.has been sanctioned by the judicial decisions.of this state. (See Rogers & Magee v.

Bradshaw, 20 Johns. R. 744; Jerome v. Ross, 7 Johns. Ch. R. 343; Wheelock v. Pratt, 4 Wendell, 650.) And although I am decidedly of the opinion that the construction given to the constitution under these, decisions, is a"forced construction, and one which was pressed upon the court, from the extreme necessity of the case, I do not feel disposed to controvert them, nor is it necessary to do so, for the purpose of coming to the conclusion I have arrived at, in the case under review.

The strong reason why a strict and rigid compliance with the terms of the constitution has not been required, where private property has been taken for the construction of canals, is, from the undoubted responsibility of the state to compensate the owner. When legal provisions have been made for payment by the state, it ha» been deemed ready pay or an equivalent. But this reason cannot exist in its full force when applied to incorporated companies. They are often irresponsible, and no such general rule can be established as applicable to them, without greatly hazarding the property of the individual.

I am decidedly of the opinion, therefore, that no such construction can with propriety be given to the constitution, when applied to them ; and if the act admits of such a construction, and such only, then is'it unconstitutional and void, and could furnish no protection to the defendants, even had they set out the proviso, unless they had averred that they had satisfied the damages, or that they were ready and willing to make satisfaction. But I have before come to the conclusion that this act is constitutional, and I do not, therefore, give it the construction which it received from the supreme court.

I cannot believe it was the intention of the legislature that the defendants should be permitted to take possession and use the land of individuals for the construction and maintenance of the road, and afterwards pay the damages only as a condition of becoming seized and vested of the fee. They intended that the individual whose property was taken should be paid his damages; and although the fee was to vest on the payment of the damages, yet it was not for the fee the damages were to be paid, but for the occupancy, for the purpose of building and maintaining the road during the period of the grant.

Not that this occupancy was to precede the assessment, but the commissioners are to anticipate what the damages would be for the occupancy of these lands for the use and maintenance of the road during that period. Ifj however, occupancy should precede assessment, it does not follow that-it should be such an occupancy as would be necessary to construct the road; a mere location of the track, without breaking the ground, would be an occupancy.

From the view, therefore, I have taken of this case, I feel myself bound to come to the conclusion that the proviso in the clause granting the right of entry was an inseparable part of it, and essential to its very existence ; that without it the act would be imperfect, and form no ground on which the defendants could justify ; and that in order to justify, they were bound to set out the proviso as well as the enacting clause which preceded it; and not haying done so, their plea is insufficient, and the demurrer is well taken.

I am, therefore, for reversing the judgment of the supreme court, with leave to the defendants to amend their plea on payment of costs. By Senator Maison.

The question presented in this case is, whether the defendants have shown enough in their plea to justify themselves in taking possession of, and using the plaintiff’s property, in the manner they in their plea have admitted; and this involves the consideration, whether the act of the legislature of this state, as far as set forth in the plea, is or can be deemed a cunstitutional law ; for if it be unconstitutional, then clearly the defendants must fail in the justification which they have set forth in their‘plea, and the demurrant must prevail. [30] [31] [32]Our States and union are governed by written constitutions, the provisions of which are framed with the most studied caution, and designed to relieve tne people from an uncontrollable despotic power,under which they had lived, and to interpose barriers to the exercise of that power, to the preservation of their lives, liberty and property, which they saw and knew were so eminently endangered while subjected to the caprice of a parliament, whose political power was omnipotent, unregulated, and uncontrolled by any written constitution.

We read from Biachstone’s Commentaries, 1st vol., 160 that “ the power and jurisdiction of parliament [says Sir Edward Colee] is so transcendent and absolute, that it cannothe confined, either for causes or persons, within any bounds ; and of this high court he adds, it may be truly said, si antiquitatem species, est vetustissima ; si dignitatem, est honomtissima; si jurisdictionem, est capacissima.' It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or criminal: this being the place where that absolute, despotic power, which must in all governments reside somewhere, is entrusted by the eonstition of these' kingdoms.

All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown, as was done in the reigns of Henry VHI and William III. It can alter and establish the religion of the land, as was done in a variety of instances in the reigns of King Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union and the several statutes for triennial and septennial elections.

It can, in short, do every thing that is not naturally impossible; and therefore, some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. True it is, that what the parliament doth, no authority upon earth can undo.” Under our state and federal institutions, the powers of the general and state governments are clearly defined and well understood.

The government of the United States is a government of delegated power, and it can exercise none other than that which is clearly and distinctly given; to it the people have literally said, “ thus far shalt thou go, and no farther.” To guard against the right of assuming or exercising, by inference, any powers besides those delegated, provision was made in the 10th article, in amendment of that constitution, that “the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the peopleand delegated powers are so far restricted in their exercise, that “ no person shall he deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use without just compensation.” The constitution of this state is not a constitution delegating power, but a constitution regulating and restraining power.' The legislature of our state, composed of the representatives of the sovereign power, have the right to exercise sovereign power; and it is the same in degree as the English parliament, except so far as it is restrained by the constitution itself, and the constitution of the United States.

In our constitution is introduced the same restraint upon the exercise of absolute power, to wit, “no person shall be deprived of life, liberty or property, without due process of law ; nor shall private property be taken for public use without just compensation.” Without these restraints upon legislative power, private property, without compensation could be taken for the public use, as in England and in South Carolina, where no such restraints exist. (The Governor, &c., of the Cast Plate Manufacturing Company v. Meredith, 4 T. R. 794. Starke v. McGowan, 1 Nott & McCord's S. C.

R. 387.) And it is with great regret I notice this case in South Carolina, as existing in a free republican country, where the enjoyment of private property should always be held sacred, and inviolable, except in urgent pressing necessity, in regard to public health, public defence, or. public uses. Even in England, where no restraints exist, to their hondr be it spoken, and in high commendation of their regard for private right, they have not outraged public justice, by taking from the citizen his property for public use without compensation.

If any case could there have occurred, which would have justified the exercise of such despotic power, the public sense would not have been offended had the government exercised it towards the proprietors of the Isle of Man. ’“The distinct jurisdiction of this little suboi-n mte royalty,” says Blackstone, (1 Comm. 106,) being found inconvenient for the purposes of public justice and for the revenue, (it affording a commodious asylum for debtors outlaws and smugglers,) authority was given to the treasury, by statute 12 Geo.

I. ch. 28, to purchase the interest of the then proprietors, for the use of the crown; which purchase was at length completed in the year 1765, and confirmed by statutes 5 Geo.

III. ch. 26 and 39, whereby the whole island and all its dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishoprick and other ecclesiastical benefices,) are unalienably vested in the crown, and subjected to the regulations of .the British excise and customs." [33] Fortunately, in the case under consideration, the legislature of this state are not obnoxious to the imputation of usurping despotic power in violation of the constitution, by the grant which they have made to the defendants in error, authorizing the construction of their railroad, to take private property for public use' without rendering compensation, as the plea which they have interposed to the plaintiff’s declaration would seem to indicate.

That plea insists that the defendants stand justified of the trespass, because the legislature of this state has given them a right to enter upon, take possession of, and use the plaintiff’s land .for the purposes of their road, without alleging in that plea, as they should have done, that they had made to the plaintiff in error a compensation for the land thus used. I have, therefore, no hesitation in declaring, that any statute to the extent only as set forth in this plea, would be unconstitutional and void, and would consequently afford no justification for the trespasses charged.

In coming to this conclusion, I have anticipated the decision of another question raised in this case, to wit, whether it was incumbent on the defendants to set forth in their plea, that they had made to the plaintiff compensation for his lands, or whether this was matter for the plaintiff to reply. On this branch of the case we have heard much of exceptions and provisos in statutes, and what their legal effects are when found in the enacting clause, and when in a subsequent section.

It is unnecessary to pass in review the great number and variety of cases, which have been cited to us on this point, as they are all resolvable into a very plain and simple proposition, and that is, that a party in pleading must make out his case, clearly and distinctly; showing a state of facts which, if true, would entitle him to judgment.

Testing this plea by this rule, it is evident that the plea is defective, in that it reposes upon a void and unconstitutional law, (I mean if the law be only to the extent as set forth in the plea, and only so far can we regard it in this case,) for a justification, which is no justification, and upon which no judgment could be rendered for the defendants.

The fact of having made compensation for the land taken, is indispensable to a perfect justification; it is a fact intimately connected with the defendants’ case, and indeed the vitally important fact to be alleged, without which the plea cannot be sustained, unless we can sanction the constitutionality of a law authorizing the taking of private property for public use without compensation.

The act incorporating the defendants is declared, in the 20th section, to be a public act, and although the courts will, ex officio, take notice of a public act, without its being stated in the pleadings, yet it is incumbent on the party to state all the facts necessary to bring his case within the protection afforded by the statute. (See Bennet v. Hurd, 3 Johns. R., 438 ; Ted v. Fonda, 4 id. 306 ; Hart v.

Clies, 8 id. 43.) The fact of compensation having been made, is a link in the chain of a perfect defence, and as we cannot presume that payment has been made, it is necessary for the party in his pleading to allege it. The plaintiff cannot be called upon to reply to the defendants’ plea, unless that plea make out a perfect defence. Can it with any reason be pretended, that the plaintiff should be held to reply that the defendants had not made him compensation for the lands taken ? This would cast upon the plaintiff the burden of proving a negative.

How could he prove that the defendants had never naid him? and yet how perfectly within the power of the defendants to prove payment, if payment had actually been made. It is only necessary to state the proposition, that its palpable absurdity may be seen. [34] [35] I have thus far remarked upon the plea without any particular reference to the provisions of the act under which the defendants seek to justify. Let us examine that act, with a view of ascertaining the correctness of the conelusions to which I have arrived.

We are not to presume that the legislature intended to deprive the plaintiff of his lands without compensation ; and we are bound to give such construction to this

section as will carry out the intention of the legislature, without infringing upon or violating the provisions .of the constitution. Their enactments are to be intended to be made in subordination to, and not in violation of that instrument.

What, then, did the legislature understand, and what do we understand by the expression nor shall private property be taken for public use,” and what did they, and should we understand by the expression “ without júst compensationThe entering upon land and making the necessary surveys and examinations thereof, for the purpose of determining the most advantageous route, place or places, for the proper line, course, road and way, whereon to construct the single or double railroad or ways, is not, in ordinary acceptation or legal contemplation, the taking of land , there is no exercise of conclusive control or authority over the soil.

A mere passing over for the purpose o"f examining and surveying the most feasible route for the road, and of the lands necessary to bejtaken, on which to construct the road, cannot be said to be taking the land thus examined and surveyed.

But when the examinations and surveys are completed, and the defendants in pursuance thereof have selected the lands intended for the objects of the incorporation ; ^Mien they enter upon the possession of and use the lands thus selected in the construction of their road, regardless and in defiance of the rights and possession of the owner of the fee, then may it be said in common parlance and in legal sense, that the defendants have taken the plaintiff’s land ; they are using it as their own, in exclusion of the plaintiff’s right to use it.

Although the legal fee may not be in them, yet are they exercising all the attributes of absolute ownership ; they tear down houses and out-houses ; they cut up gardens, meadows, fields and farms ; they reduce hills and fill up valleys ; they tear down fences, cut up and use the soil, as best answers their purposes, and do every act in relation thereto, which the absolute owner of the fee can do. If this is not taking land, I know not what act shall be deemed evidence of taking. Can land be thus taken and used, and cutup, and disfigured, and occupied, without making compensation to the owner ?

The defendant’s plea in this case insists that it can, and we are called upon solemnly to determine that such pretensions are well founded and according to constitutional law. It is pretended that the taking of land, means the taking the fee of the land, that no citizen shall be deprived of the fee of his land without just compensation ? Is it, then, to be understood that the legislature can do any thing and every thing with the property of the citizen; and authorize its use and occupancy for all time to come, and that too, under constitutional sanction, so long as they do not interfere with the fee ?

Such a position would shock the common sense of the community—outrage public justice, and desecrate, upon the altar' of unrestrained omnipotent legislation, which is despotism, the life-blood ,and spirit of the constitution. But private property shall not be taken without just compensation. There can be no diversity of opinion as to the meaning of the words just compensation. It is a fair equivalent in money, a quid pro quo ; it is a recompense in value for the property taken. When the compensation is to be made, may perhaps be a matter of doubt; whether before the property is taken or used, or afterwards.

It must either be paid before the property is taken, or within a reasonable time thereafter; and the making of this compensation must be as absolutely certain, as that the property is taken ; it must not be dependent on any hazard, casualty ór contingency whatever. This I understand to be the spirit of our legislation hitherto, on subjects of this character. [36] The 16th

section of the act to regulate highways, (2 R. L. 217,) authorizes the laying out of roads, through improved and cultivated lands, and declares that the owner or owners thereof shall be paid such damages as he or they may. sustain by reason thereof. The

section then prescribes the manner in which such damages shall be ascertained; and declares that the whole of said damages, together with the charges of the commissioners, justices and freeholders, and summoning the jury, shall be presented to the board of supervisors of the county, who shall cause the same to be raised, levied and collected in the town in which the lands lie, in the same manner as the other town charges are by law directed to be raised, levied and collected, and order the same to be paid to the commissioners of the town, who shall pay the owner the sum assessed to him, and appropriate the residue to satisfy the costs.

Here, the faith and solvency of the town are pledged to the owner, that he shall certainly be paid for his property taken for the road. In such case the property is allowed to be taken and used before payment, and for the reason that the payment will certainly be made without hazard or doubt. (Cadwalladers’ heirs v. McIlvoy, 1 A. K. Marsh. R. 84. Jackson v. Winns’ heirs, 4 Litt. R. 323.) [37] So the act in relation to the opening and laying out streets in the city of New York, (2 R.

L. 409, § 178,) provides that when any lands, &c., shall be required fpr the purpose of opening any public square, place, street, or avenue, &c., or for the purpose of laying out and forming or extending, enlarging, straightening, altering or otherwise improving any street, or public place, so to be laid out, &c., the same may be taken, and compensation and recompense made to the parties, &c., and the mayor, aldermen and commonalty of the city may make application to the supreme court for the appointment of commissioners, who are to assess the damages to the owners whose lands are taken, &c., in the manner prescribed by the act, and to make report thereof to the supreme court, &c.; upon the final confirmation of the report, the corporation are declared seized in fee of the lands, &e., thus required for the public use, and may immediately take possession thereof, &c.

In this act, also, provision for certain payment, without hazard, is made; the 183 section, page 418, declares that the damages assessed, &c., shall, within four months after the confirmation of the report, be paid by the mayor, aldermen and commonalty; and the damages are to be .raised by tax, upon those of the citizens who ought to pay the same. The faith and solvency of the city are here pledged for payment.

To the same purport is the “ act for opening and improving the great roads within this state,” (3 Greenleaf’s ed. of the Laws, 284,) which provides for the assessment of damages, and directs payment out of the proceeds of three successive lotteries by that act authorized. [38] [39] The 3d

section of the Canal Act (Sess.

L. of 1817, ch. 262), declares it shall be lawful for the canal commissioners to enter upon, take possession of, and use all and singular, any lands, &c., for the promotion of the improvements intended by that act. 'lhe section' then prescribes the mode in which the damages are to be assessed, and declares “ the canal commissioners shall pay the damages so to be assessed and appraised, and the fee simple of the premises so appropriated shall be vested in the people of this state.” The act does not provide any funds for the payment of the damages thus assessed; and although the faith of the state is impliedly pledged for, the payment of these damages, yet was their payment dependent upon the contingency of the legislature being willing to make provision for their payment.

With all due respect for the decision of the court in the case of Rogers v. Bradshaw, (20 Johns.

R., 735), and while I am not disposed to arraign or question the high honor and integrity of the people’s representatives, 1 cannot subscribe to ihe constitutionality of the law. depriving the citizen of his property, without providing an, absolute, certain mean for making to him ample remuneration ; nor could I consent to surrender or compromise my judgment upon the faith I might have in the liberality, magnanimity or justice of the legislature, that they would make provision for a just compensation, or payment for the property taken. Neither can I subscribe to the doctrine of the case of Jerome v.

Ross (7 Johns. Ch. R., 344), which arose under the same canal act, in which Chancellor Kent says : “ If the act we are examining has omitted to make any provision for the assessment and payment of damages, for such temporary use, (the use of a rocky hill in getting stone for a dam) it may have escaped the attention of the legislature, or the case may have been deemed at the time immaterial and unimportant.

The omission, however, if it be one, does not prevent the right of the commissioners to enter and use the land ; nor prevent the just claim of the owner upon the commissioners or the legislature for his reasonable compensation. The commissioners are not trespassers, when the act authorizes them to enter before the damages are paid for. This was so understood and declared in Rogers v. Bradshaw.

The claim for compensation arises after the use has been had, and the damages cannot well lie assessed before they have arisen.” I would have been better satisfied .with that, decision if the power of the court had been exerted in restraining the canal commissioners from interfering with the private rights of the citizen, until adequate provision for certain satisfaction had been made, as the chancellor directed in the case of Gardner v. The Village of Newburgh, hereafter to be mentioned, and as has been the course of the court in analogous cases. (Shand v. Henderson, 2 Dows' Parl. R., 521; Agar v.

The Regent's Canal Company, Cooper's Eq. R., 77 ; Belknap v. Belknap, 2 Johns. Ch. R., 463). The case of Wheelock v. Pratt, (4 Wendell, 648), rests for its decision on the cases of Rogers v. Bradshaw, and Jerome v. Ross.

At page 650, the late chief justice says : “ Any law which should authorize- private property to be taken for public use, and should at the same time direct that no compensation should be allowed for it, would be unconstitutional ; but according to the preceding cases, a law which authorizes such appropriations, and merely omits to provide the mode of making such compensa tion, is not unconstitutional.” It never could have been the intention of the constitution to authorize the legislature to take from a citizen his property and leave him to trust for compensation, at the end of a law suit against the canal commissioners, or to lobby the legislature, appealing to their magnanimity, justice or mercy,' to provide him a compensation for his property taken for public use.

The language of the constitution is explicit and unambiguous. “ Private property shall not be taken for public use without just compensation.” But according to some of the above decisions, private property may b'e taken for public use without even any provision being made by law for compensation.

Compensation, according to my understanding, is to be made before the property be taken; or, indulging in great liberality of construction, the property may be taken, on there being an ample and absolute provision mm,is lor positive, certain payment, in a reasonable time, without subjecting the" citizen to hazard, contingency, litigation, or imploration. [40] The act relative to turnpike companies, 1 R. L., 231, has been died to us as more clearly indicative of the sense of the legislature, as to the extent of their constitutional power, in the particulars under consideration. The third

section of that act authorizes the commissioners appointed by the governor to layout the road directed by the act of incorporation, and directs the commissioners to file an accurate map of the survey of the same; and in case of disagreement between the company and the owner of the land as to the value thereof necessary for the use of the company, and the damages (if any) to be done to said land, the damages are to be assessed in the manner prescribed by the act, “ which each or any of the owner or owners of any parcel of land used, and to be used for such road, have sustained or will sustain; and the company, upon paying said owner or owners their damages, may have and hold to them and their successors and assigns forever, the lands and tenements, &c., provided that nothing in this act contained shall be construed to authorize the said president and directors to enter •upon such land for the purpose of making such road until they have paid such damages,” &c.

It was in the spirit of this law and of the constitution that Chancellor Kent, in the case of Gardner v. The Village of Newburgh, (2 Johns. Ch. R., 166, remarked: “ To render the exercise of the power valid, [the power of the legislature to take private property for necessary or useful public purposes.] a fair compensation must in all cases be previously made to the individuals affected, under some equitable assessment to be - provided by law. This is a necessary qualification accompanying the exercise of legislative power in taking private property for public uses.

The limitation is admitted by the soundest authorities, and is adopted by all temperate and civilized governments from a deep and universal sense of justice.” See also The People v. Platt, (17 Johns.

R., 215.) In this case, the chancellor with great propriety, exercised his judicial power in defence of private rights against legislative' encroachment, by ordering an injunction to issue, prohibiting the trustees of New-burgh from diverting a stream of water of the plaintiff, to the supplying the village with pure and wholesome water, until some provision was made for affording compensation to the plaintiff; no provision having been made by the statute to remunerate those through whose land the water issuing from the spring had been accustomed to flow. [41] [42] [43] [44] We are now prepared to look into the law incorporating this railroad company, with a view of ascertaining whether its provisions are in accordance with the constitution, or its spirit; whether it directs payment to the plaintiff, or whether provision is made that he shall most certainly be paid for the land taken by the defendants for their road.

If no provision be made for an absolute and certain payment at a future day, then we are bound so to construe the law as to make it conform with the provisions of the constitution. The act provides that th'e corporation shall pay the owner or owners for the land taken. When is this payment to be made ? There is no precise specified time of payment particularly designated in the act, nor is there any safe and unquestioned fund provided for payment, nor any security provided therefor, except the solvency of the corporation.

It cannot be admitted that the legislature intended to deprive the plaintiff of his property, compelling him to rely on the solvency of this company for compensation. There is no certainty of payment in this; for non constat but that the company may be utterly insolvent before they shall have completed their enterprise.

I have no doubt of the perfect solvency of this corporation, and their unquestioned ability to make compensation, either before they commenced or after they had completed their road; but we are looking for a principle which shall be of general application, irrespective of the solvency of any particular corporation—a principle which shall shield and protect the citizen from all hazard of loss, securing to him absolute certainty of compensation for his property taken for public use.

To render the law constitutional, then, we must intend that the legislature, in the provisions they have made,, have declared that compensation shall be made before the property can be taken. This is no forced construction of the act. In the construction of statutes made in favor of corporations or particular persons, and in derogation of common right, which are statutes not deserving of much favor, we are not only not to extend them beyond their express words and their clear import, (Sprague v.

Birdsall, 2 Cowen’s R., 420,) but are to confine them within the bounds and limits prescribed by the constitution; they are to be construed in favor of the legal owner, and in the preservation of his constitutiona. rights. The act declares that the corporation may enter upon, and take possession of, and use all such lands and real estate, &c., próvided that all lands or real estate thus entered and taken possession of and used by the corporation, shall be purchased by the said corporation of the owner or owners of the same, at a price to be mutually agreed upon betwixt them.

It is conceded that if the proviso had read, that all lands or real estate thus entered upon and taken possession of, and to he used by the said corporation, shall be purchased, &c., that there could have been no doubt that payment must precede the use. As, however, no certain payment at a future day is provided, we must construe this law, in order to sustain its constitutionality, so as to read as suggested. The payment must precede the use.

It is true, as suggested by the learned judge who delivered the opinion in the case in the court below, that “ an examination of the soil by ploughing or digging might be indispensable, in order to determine the practicability of a particular location, or the expediency of adopting one route in preference to another.

The quantity of land necessary for the construction of the road, and the damages sustained by the owner in consequence of the taking or occupation thereof by the company, would scarcely, in any instance, be accurately determined until the road was completed, or considerably advanced in its construction.” These are inconveniences easily to be foreseen in this case, as well as in all others where an attempt is made to violate the sanctity of private right; but they are not to be taken into the account, nor to be urged in favor of those who, under color of law, are seeking to wrest from the citizen his private property.

Inconvenience and necessity, the standing arguments in justification of usurpation, are not here to be urged in excuse for frittering away or overriding the plain and palpable intent of the constitution. The rights of the citizen, at the hazard of all inconvenience and necessity, are to be scrupulously guarded and protected. The inconvenience suggested is in the power of the citizen to obviate; which he may or may not do, at his pleasure.

If he is willing to assume upon himself the risk of receiving compensation for his land from the company, where no other certain means of payment is provided for him, he has the undoubted right to permit his laud to be taken and used before payment; this is a matter of arrangement between him and the- company, with which neither the government nor individuals have any right to interfere.

But the learned judge says : “ The proviso relates merely to the final and absolute vesting in the corporation of the fee simple of the land thus taken possession of; the land must be purchased, or appraised and paid for, before the title can vest in the corporation.” This is certainly true; but the final and absolute vesting in the corporation of the fee, is imposed as a condition to the use of the land.

The land is to be taken, provided the corporation purchase it of the owner; the fee in such case will be vested in the corporation by the conveyance; if they cannot agree as to the price, then the damages are to be assessed in the manner pointed out by the act, and upon the corporation depositing in any bank in the city of Albany, the amount of such damages to the credit of the owner, then the act transfers the fee to the corporation ; in either event, the fee must pass before the corporation have any right to use and occupy the land.

Any use or occupancy of the land without the consent of the owner, beyond examination and survey, before payment made in one or other of the modes prescribed by the act, is a trespass. (Hughes v. Trustees of Morden College, 1 Vesey, 188; Shand v. Henderson, 2 Dows’ Parl. R., 521, 523; Belknap v. Belknap, 2 Johns. Ch. R., 473.) The making or adequately providing compensation is a condition precedent; it must be fully and literally performed before the citizen can be deprived of the use, occupancy or fee of his land. Let us for a moment see the effect of a contrary rule.

If the corporation are justifiable in occupying and using the plaintiff’s land without paying for it, and are not liable in trespass for such occupancy and use, why should the company want the fee ? All the company want is the undisturbed use of the land; to them it is totally unimportant in whom the fee is vested. They want not the fee, but the use; and if they can enjoy the use without making any compensation for such use, the purchase of the fee by them would be an idle, nonsensical waste of their money.

Though corporations have no consciences, nor souls to commiserate the condition of others ; though they are not far-famed for a ready willingness to dispense justice to those who may have claims upon their coffers, yet they are proverbial for their keenness and sagacity in amassing wealth, and not too unfrequently at the expense of others. Who can imagine that a railroad corporation will pay for the fee of the land over which their road is laid, if they can have the undisturbed use of it for nothing ?

And what interest can they have in making an advance to have the amount of damages assessed, if they can fully enjoy the use and occupancy of the land without it; for it will be remembered that by the act, in case of a disagreement as to price, it is made the duty of the governor, upon a notice to be given to him by the said corporation, to appoint three commissioners, &c., to determine the damages. The owner of the land has nothing to do with it. He is not authorized by the act to take any measures to compel an assessment to be made ; he must wait patiently the good will and pleasure of the corporation.

I will here malee the passing remark, that this provision of the statute authorizing the appointment of these commissioners, upon the application of the company only, is clearly indicative of the sense and determination of the legislature that compensation must be made before the property can be taken or used.

It is only in this view of the statute that the company could have any interest to make such application; an interest which the legislature intended to create for the protection of private right, and to compel a rigid compliance with the provisions of the constitution. [45] But it is said that the corporation will be compelled by due course of law to make remuneration, or in the language of the learned judge below, “ That the plaintiff would have an ample remedy in such a case in some form of ación, there can be no question.” What form of action ?

I know of no action so simple and so well adapted to the attainment of full and equal justice as an action of trespass, particularly when trespass has been in point of fact committed, unjustified by any constitutional law, as that law would be, as set forth in the defendant’s plea as a justification. It is further contended that the ascertainment of damages, and the payment thereof, are conditions subsequent. Subsequent to what ? to the vesting of the fee ? The fee is vested simultaneously with the payment of the damages, and not before. Subsequent to the use and occupation of the land ?

Then may the owner be prohibited from asking indemnification until the corporation shall have ended by its own limitation. Subsequent to the completion of the road ? where is the law declaratory of this, and where the tribunal or authority to determine when the road shall be deemed to be completed ? But the road may never be completed ? the corporators may abandon their enterprise in despair, from a conviction that it is absolutely profitless not only, but that if persevered in, would involve every one concerned in insolvency and ruin.

Must, then, the owner’s compensation for his land depend upon the contingency of the enterprise being a profitable or successful one ? Who can subscribe to a proposition so monstrous and absurd ? If there be any one act, thing or event which can be named, subsequent to which the owner is to be paid for his land, what is the consequence of non-payment ? A forfeiture, it is answered. A forfeiture of what? not of the fee, for that does not vest till payment, but of the right to use and occupy the plaintiff’s land for a railroad; a right which never 'existed; and never can exist but upon a just compensation made.

But admit the right to exist, and that it be forfeited for non-payment of the damages, is this forfeiture compensation? Is this payment to the owner for the loss of his buildings, the disfiguration and mutilation of his property, his deprivation of the use of it, and the expense of replacing his buildings and fences, and restoring his fields to a condition fit for cultivation ?

Indeed, if this be the law of the land, far better would it be for us to be ruled with Asiatic despotism, (for then we should know we were slaves,) rather than live in a land of freedom, of written constitutions, guaranteeing to every citizen the enjoyment of his property, with assurance that it shall not be taken from him but upon just compensation, yet holding it upon s« frail and precarious a tenure as the whim or caprice of a legislature, which would render our condition still more intolerable. In Jackson v. Winne’s Heirs, (4 Litt.

R. 328,) it was held that it was not competent to the legislature to take or apply to public use the property of any individual, without just compensation being previously made therefor; and Parker, Ch. J., in Stevens v. The Proprietors of the Middlesex Canal, (12 Mass.

R. 468,) said: “ If the legislature should, for public advantage and convenience, authorize any improvement, the execution of which would require or produce the destruction or diminution of private property, without affording at the sanie time means of relief and indemnification, the owner of the property destroyed or injured would undoubtedly have his action at common law against those who should cause the injury, for his damages.

For although it might be lawful to do what the legislature should authorize, yet, to enforce the principles of the constitution for the security of private property, it might be necessary to consider such a legislative act as inoperative, so far as it trenched on the rights of individuals.” (See also Callendar v.

Marsh, 1 Pickering, 431.) [46] Upon the whole, I am of opinion that an action of trespass well lies in this case, and that the defendants’ plea is radically defective, in that it does not aver payment made to the plaintiff for his land, in one or the other of the modes prescribed by the act, and that the judgment of the supreme court, based upon contrary principles, should be reversed. The decision, on this point, in my judgment, disposes of this case.

The chancellor, however, at the argument, desired the court to pass distinctly on the question, whether the law incorporating the defendants was a constitutional law, and. as a sufficient number of the members of the court had manifested their assent to the proposition of the chancellor, I shall proceed very briefly to consider that question. I might perhaps be permitted to observe, that little remains to be said after the very able and elaborate argument of the counsel in the case of Beekman v.

The Saratoga and Schenectady Railroad Company, (3 Paige, 45,) and the no less able and satisfactory opinion of the present chancellor, delivered on that occasion. Indeed, after the decision of that case, I had supposed there was no longer any room for doubt upon the subject. Doubts, however, it seems, do exist, and it is meet and proper that that question should be put at rest by an express adjudication of this court. Vattel, (Book 1, ch. 9, § 100,) says : “ The utility of highways, bridges, canals, and in a word, of all safe and commodious ways of communication, cannot be doubted.

They facilitate the trade between one place and another, and render the conveyance of merchandise less expensive, as well as more certain and easy. The merchants are enabled to sell at a better price, and obtain preference; an attraction is held out to foreigners, whose merchandise is carried through the country, and who diffuse wealth in all places through which they pass. § 101.

One of the principal things that ought to employ the attention of the government, with respect to the welfare of the public in general and of trade in particular, must then relate to the highways, canals, &c., in which nothing ought to be neglected to render them safe and commodious. § 103. The construction and preservation of all these wSrks being attended with great expense, the nation may very justly oblige all those to contribute to them who receive advantage from their use.

This is the legitimate origin of the right of toll.” [47] [48] These propositions have the ready assent of every enlightened individual in every country, and under any and every kind of government.

In the days of Vattel there were no railroads, and in all probability the obligation of government to construct railroads in no measure entered into his consideration when inditing those general propositions; they nevertheless come within, the spirit of national obligation in a most emphatic manner, as the government are thereby most effectually enabled to fulfil the just expectations and serve the most substantial interests of the community.

That the government have not only the power, hut that it is most emphatically their duty and interest, to construct railroads where the public interest and convenience demand them, cannot admit of a doubt; for such purpose they are authorized to take private property, upon rendering just compensation; and they are in like manner justified in exacting toll from those who travel on them, as a mean to reimburse the state for the expense of their construction and reparation. I apprehend no one will be disposed to doubt or question the truth of these propositions.

This state, as well as many, if not all "of the states of this union, have, since the foundation of the government, exercised this rightful power in the construction of canals, some in the construction of railroads, and all in authorizing the construction of turnpike roads and bridges, and the establishment of ferries. Bridges and ferries are publici juris and turnpike grants are made on the hypothesis that lands taken for the road are taken for public purposes. (7 Pickering, 496. 2 N. Hamp. R. 25. 20 Johns.

R. 742, 743.) If, however, the state shall not deem it wise or expedient, at its own expense to construct a railroad, can there be any doubt of its power to impart this authority to others ? I know of no instance in which this state has at its own expense constructed a turnpike road, and yet our statute books are filled with turnpike grants ; and who has ever called them in question?

Indeed, upon the argument here, as on all other occasions, it has ever been conceded that the legislature have an undoubted constitutional right to charter a turnpike company, and to authorize the company to take private property on which to construct their road, upon rendering just compensation.

Such concessions having been always made by the most eminent counsel, and having been sanctioned by the most learned judges on constitutional law, practised upon and acquiesced in since the organization of our government, present such an exposition of the constitution, and so ratify the exercise of this legislative power under it, that the courts will not shake or control it. (Stuart v.

Laird, 1 Cranch, 299.) Railroads are constructed for the same purposes and with the same objects as turnpike roads, to facilitate travel and the transportation of property, and the receiving of toll for such travel and transportation. The grant of an exclusive right to toll, as well on railroads as on turnpikes, is the consideration by which individuals are invited to expend money in their construction, and to assume the hazard of their being profitable enterprises. (Newburgh Turnpike Company, 5 Johns. Ch.

R. 112.) Whether the toll be received by the state, or by the corpoz-ation, cannot affect the character of the z-oad for public usefulness, any moz-e than

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