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and to a judgment of uncertain efficacy. For the consequence would be, in some cases, that the party might lose his estate without redress, in violation of the inflexible maxim upon which the right is based.

What the tribunal shall be which is to assess the compensation must be determined either by the constitution or by the statute which provides for the appropriation. The case is not one where, as a matter of right, the party is entitled to a trial by jury, unless the constitution has provided that tribunal for the purpose.2 Nevertheless, the proceeding is judicial in its character, and the party in interest is entitled to have an impartial tribunal, and the usual rights and privileges which attend judicial investigations. It is not competent for the State itself to fix the compensation through the legislature, for this would make it the judge in its own cause. And, if a jury is provided, the party must have the ordinary opportunity to appear when it is to be empanelled, that he may make any legal objections. And he has the same right to notice of the time and place of assessment as he would have in any other case of judicial proceedings, and the assessment will be invalid if no such notice is given.5 These are just as well as familiar rules, and they are perhaps invariably recognized in legislation.

It is not our purpose to follow these proceedings, and to attempt to point out the course of practice to be observed, and which is so different under the statutes of different States. An inflexible rule should govern them all, that the interest and exclusive right of the owner is to be regarded and protected so far as may be consistent with a recognition of the public necessity. While the owner is not to be disseized until compensation is provided, neither, on the other hand, when the public authorities have taken such steps as to finally settle upon the appropriation, ought he to be left in a Shepardson v. Milwaukee & Beloit R. R. Co., Wis. 605; Walther v. Warner, 25 Mo. 277; Curran v. Shattuck, 24 Cal. 427; Memphis & Charleston R. R. Co. v. Payne, 37 Miss. 700; Henry v. Dubuque & Pacific R. R. Co., 10 Iowa,

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540.

* Petition of Mount Washington Co., 35 N. H. 134.

Charles River Bridge v. Warren Bridge, 7 Pick. 344; Same case, 11 Pet. 571, per McLean, J.

4 People v. Tallman, 36 Barb. 222; Booneville v. Ormrod, 26 Miss. 193. A jury, without further explanation in the law, must be understood as one of twelve persons. Lamb v. Lane, 4 Ohio, N. S. 167.

Hood v. Finch, 8 Wis. 381; Dickey v. Tennison, 27 Mo. 373.

state of uncertainty, and compelled to wait for compensation until some future time, when they may see fit to occupy it. The land should either be his or he should be paid for it. Whenever, therefore, the necessary steps have been taken on the part of the public to select the property to be taken, locate the public work, and declare the appropriation, the owner becomes absolutely entitled to the compensation, whether the public proceed at once to occupy the property or not. If a street is laid out over the land. of an individual, he is entitled to demand payment of his damages, without waiting for the street to be opened.1 And if a railway line is located across his land, and the damages are appraised, his right to payment is complete, and he cannot be required to wait until the railway company shall actually occupy his premises, or enter upon the construction of the road at that point. It is not to be forgotten, however, that the proceedings for the assessment and collection of damages are statutory, and displace the usual remedies; that the public agents who keep within the statute are not liable to common-law action; 2 that it is only where they fail to follow the statute that they render themselves liable as trespassers; though if they construct their work in a careless, negligent, and improper manner, by means of which carelessness, negligence, or improper construction a party is injured in his rights, he may have an action at the common law as in other cases of injurious negligence.1

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Philadelphia v. Dickson, 38 Penn. St. 247; Philadelphia v. Dyer, 41 Penn. St. 463; Hallock v. Franklin County, 2 Met. 559; Harrington v. County Commissioners, 22 Pick. 268; Blake v. Dubuque, 13 Iowa, 66; Higgins v. Chicago, 18 Ill. 276; County of Peoria v. Harvey, Ibid. 364; Shaw v. Charlestown, 3 Allen, 538; Hampton v. Coffin, 4 N. H. 517; Clough v. Unity, 18 N. H. 77. · And where a city thus appropriates land for a street, it would not be allowed to set up in defence to a demand for compensation its own irregularities in the proceedings taken to condemn the land. Higgins v. Chicago, 18 Ill. 276; Chicago v. Wheeler, 25 Ill. 478.

2 East & West India Dock, &c. Co. v. Gattke, 15 Jur. 61; Kimble v. White Water Valley Canal, 1 Ind. 285; Mason v. Kennebec, &c. R. R. Co., 31 Me. 215; Aldrich v. Cheshire R. R. Co., 1 Fost. 359; Brown v. Beatty, 34 Miss. 227; Pettibone v. La Crosse & Milwaukee R. R. Co., 14 Wis. 443; Vilas v. Milwaukee & Mississippi R. R. Co., 15 Wis. 233.

Dean v. Sullivan R. R. Co., 2 Fost. 316; Furniss v. Hudson River R. R. Co., 5 Sandf. 551.

Lawrence v. Great Northern R. Co., 20 L. J. Rep. Q. B. 293; Bagnall v. London & N. W. R., 7 H. & N. 423 ; Brown v. Cayuga & Susquehanna R. R. Co., 12 N. Y. 487.

The principle upon which the damages are to be assessed is always an important consideration in these cases; and the circumstances of different appropriations are sometimes so peculiar that it has been found somewhat difficult to establish a rule that shall always be just and equitable. If the whole of a man's estate is taken, there can generally be little difficulty in fixing upon the measure of compensation; for it is apparent that, in such a case, he ought to have the whole market value of his premises, and he cannot reasonably demand more. The question is reduced to one of market value, to be determined upon the testimony of those who have knowledge upon that subject, or whose business or experience entitles their opinions to weight. It may be that, in such a case, the market value may not seem to the owner an adequate compensation; for he may have reasons peculiar to himself, springing from association, or other cause, which make him unwilling to part with the property on the estimate of his neighbors; but such reasons are incapable of being taken into account in legal proceedings, where the question is one of compensation in money, inasmuch as it is manifestly impossible to measure them by any standard of pecuniary value. Concede to the government a right to appropriate the property on paying for it, and we are at once remitted to the same standards for estimating values which are applied in other cases, and which necessarily measure the worth of property by its value as an article of sale, or as a means of producing pecuniary returns.

When, however, only a portion of a parcel of land is appropriated, just compensation may perhaps depend upon the effect which the appropriation may have on the owner's interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition in which it may leave the remainder in respect to convenience of use. If, for instance, a public way is laid out through a tract of land which before was not accessible, and if in consequence it is given a front, or two fronts, upon the street, which furnish valuable and marketable sites for building lots, it may be that the value of that which remains is made, in consequence of taking a part, vastly greater than the whole was before, and that the owner is benefited instead of damnified by the appropriation. Indeed, the great majority of streets in cities and villages are dedicated to the public use by the owners of lands, without any other compen

sation or expectation of compensation than the increased benefit; and this is very often the case with land for other public improvements, which are of peculiar value to the locality where they are made. But where, on the other hand, a railroad is laid out across a man's premises, running between his house and his outbuildings, necessitating, perhaps, the removal of some of them, or upon such a grade as to render deep cuttings or high embankments necessary, and thereby greatly increasing the inconveniences attending the management and use of the land, as well as the risks of accidental injuries, it will often happen that the pecuniary loss which he would suffer by the appropriation of the right of way would greatly exceed the value of the land taken, and to pay him that value only would be to make very inadequate compensation.

It seems clear that, in these cases, it is proper and just that the injuries suffered, and the benefits received, by the proprietor, as owner of the remaining portion of the land, should be taken into account in measuring the compensation. This, indeed, is generally conceded; but what injuries shall be allowed for, or what benefits estimated, is not always so apparent. The question, as we find it considered by the authorities, seems to be, not so much what the value is of that which is taken, but whether what remains is reduced in value by the appropriation, and, if so, to what extent; in other words, what pecuniary injury the owner sustains by a part of his land being appropriated. But, in estimating either the injuries or the benefits, those which the owner sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, should be altogether excluded, as it would be unjust to compensate him for the one, or to charge him with the other, when no account is taken of such incidental benefits and injuries with other citizens who receive or feel them equally with himself, but whose lands do not chance to be taken.1

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1 In Somerville & Easton R. R. Co. ads. Doughty, 2 Zab. 495, a motion was made for a new trial on an assessment of compensation for land taken by a railroad company, on the ground that the judge in his charge to the jury informed them 66 that they were authorized by law to ascertain and assess the damages sustained by the plaintiff to his other lands not taken and occupied by the defendants; to his dwelling-house, and other buildings and improvements, by reducing their value, changing their character, obstructing their free use, by subjecting his buildings to the hazards of fire, his family and stock to injury and obstruction in their necessary passage across the road, the inconvenience caused by embank

The question, then, in these cases, relates first to the value of the land appropriated; which is to be assessed with reference to what ments or excavations, and, in general, the effect of the railroad upon his adjacent lands, in deteriorating their value, in the condition they were found, whether adapted for agricultural purposes only, or for dwellings, stores, shops, or other like purposes."

"On a careful review of this charge," says the judge, delivering the opinion of the court, "I cannot see that any legal principle was violated, or any unsound doctrine advanced. The charter provides that the jury shall assess the value of the land and materials taken by the company, and the damages. The damages here contemplated are not damages to the land actually occupied or covered by the road, but such damages as the owner may sustain in his other and adjacent lands not occupied by the company's road. His buildings may be reduced in value by the contiguity of the road, and the use of engines upon it. His lands and buildings, before adapted and used for particular purposes, may, from the same cause, become utterly unfitted for such purposes. The owner may be incommoded by high embankments or deep excavations on the line of the road, his buildings subjected to greater hazard from fire, his household and stock to injury or destruction, unless guarded with more than ordinary care. It requires no special experience or sagacity to perceive that such are the usual and natural effects of railroads upon the adjoining lands, and which necessarily deteriorate not only their marketable but their intrinsic value. The judge, therefore, did not exceed his duty in instructing the jury that these were proper subjects for their consideration in estimating the damages which the plaintiff might sustain by reason of the location of this road upon and across his lands." And in the same case it was held that the jury, in assessing compensation, were to adopt as the standard of value for the lands taken, not such a price as they would bring at a forced sale in the market for money, but such a price as they could be purchased at, provided they were for sale, and the owner asked such prices as, in the opinion of the community, they were reasonably worth; that it was matter of universal experience that land would not always bring at a forced sale what it was reasonably worth, and the owner, not desiring to sell, could not reasonably be required to take less. In Sater v. Burlington & Mount Pleasant Plank Road Co., 1 Iowa, 393, Isbell, J., says: "The terms used in the constitution, 'just compensation,' are not ambiguous. They undoubtedly mean a fair equivalent; that the person whose property is taken shall be made whole. But while the end to be attained is plain, the mode of arriving at it is not without its difficulty. On due consideration, we see no more practical rule than to first ascertain the fair marketable value of the premises over which the proposed improvement is to pass, irrespective of such improvement, and also a like value of the same, in the condition in which they will be immediately after the land for the improvement has been taken, irrespective of the benefit which will result from the improvement, and the difference in value to constitute the measure of compensation. But in ascertaining the depreciated value of the premises after that part which has been taken for public use has been appropriated, regard must be had only to the immediate, and not remote, consequence of the appropriation; that is to say, the value of the remaining premises is not to be depreciated by heaping consequence on conse

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