considered with the same result in Baker v. Johnson (1842) 2 Hill, 342; Smith v. Helmer (1849) 7 Barb. 416.

Private property may be taken for the purpose of making a railroad, or any other public improvement of the like nature, upon paying a just compensation, whether such public improvement is made by the agents of the state, or by the agents of a private corporation; but the benefit to result to the public must be 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." If private property is to be taken for a public use, the act authorizing it must provide in advance an adequate and certain remedy whereby the compensation is assured. "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." Bloodgood v. Mohawk & H. R. R. Co. (1837) 18 Wend. 9, 31 Am. Dec. 313.

The legislature has power to authorize a municipal corporation to acquire, by eminent domain, the absolute title to land taken for a public use, and when so taken no reversionary interest remains, and the property may afterwards be used for a purpose other than that for which it was originally taken. Heyward v. New York (1852) 7 N. Y. 314.

"The use and benefit is not required to be universal, nor, in the largest sense, even general. If it is confined to a specific district it may still be public. If some parties are more benefited than others, this forms no objection to the use, if the public interest and convenience are thereby subserved." Hartwell v. Armstrong (1854) 19 Barb. 166.

A private water company chartered to supply the people of a municipality with pure and wholesome water may take property, including springs and streams of water, and the use to which the same is to be devoted is public. Re Malone Waterworks Co. (1891) 38 N. Y. S. R. 95, 15 N. Y. Supp. 649.

Corporations organized under the water companies act of 1873, chap. 737, may acquire property by purchase or condemnation, and such property is held for a public use, although water is supplied to individuals as well as to municipal corporations. Stamford Water Co. v. Stanley (1886) 39 Hun, 424; Re New Rochelle Water Co.

(1887) 46 Hun, 525; Pocantico Waterworks Co. v. Bird (1891) 130 N. Y. 249, 26 N. E. 246.

Water to be taken under the Middletown act of 1866, chap. 347, as amended by chap. 85, Laws 1879, is for a public use. Re Middletown (1880) 82 N. Y. 196.

A public market is a public use, and land may be taken for it by eminent domain. Re Cooper (1883) 28 Hun, 515.

The courts of this state have repeatedly held that land taken in a city for public parks and squares, by authority of law, whether advantageous to the public for recreation, health, or business, is taken for a public use. Re Central Park (1872) 63 Barb. 282; Brooklyn Park v. Armstrong (1871) 45 N. Y. 234, 6 Am. Rep. 70; Re New York (1885) 99 N. Y. 569, 2 N. E. 642; Re Rochester (1893) 137 N. Y. 243, 33 N. E. 320.

The purpose for which land is to be taken or appropriated under the act of 1867, chap. 372, relating to the drainage of lands in certain towns, was held not to be a public use; the drainage was for the benefit of private owners of land. People ex rel. Pulman v. Henion (1892) 64 Hun, 471, 19 N. Y. Supp. 488.

A tramway about four miles in length, proposed to be constructed for the use of a private corporation, was held not to be a public purpose. "A possible limited use by a few, and not then as a right, but by way of permission or favor, is not sufficient to authorize the taking of private property against the will of the owner." Re Split Rock Cable Road Co. (1898) 128 N. Y. 408, 28 N. E. 506.

In Re Niagara Falls & W. R. Co. (1888) 108 N. Y. 375, 15 N. E. 429, a proceeding in which the company sought to take land by eminent domain, the court say: "The general principle is now well settled that when the uses are in fact public, the necessity or expediency of taking private property for such uses by the exercise of the power of eminent domain, the instrumentalities to be used, and the extent to which such right shall be delegated, are questions appertaining to the political and legislative branches of the government; while, on the other hand, the question whether the uses are in fact public, so as to justify the taking in invitum of private property therefor, is a judicial question, to be determined by the courts. What is a public use is incapable of exact definition." The expressions "public interest" and "public use" are not synonymous. "The establishment of furnaces, mills, and manufactures, the building of churches and hotels and other similar enterprises, are more or less matters of public concern, and promote, in a general sense, the public welfare. But they lie without the

domain of public uses for which private ownership may be displaced by compulsory proceedings. Railroads are highways furnishing means of communication between different points, promoting traffic and commerce, and facilitating exchanges; in a word, they are improved ways. In every form of government the duty of providing public ways is acknowledged to be a public duty." Judge Cooley's remark is quoted (Const. Lim. 669) that "when the government is supplying its own needs, or is furnishing facilities for its citizens in regard to these matters of public necessity which, on account of their peculiar character, and the difficulty, perhaps impossibility, of making provision for them otherwise, it is alike proper, useful, and needful for the public to provide." In this case the proposed road was to be about 3 miles long, beginning at or on state land, and terminating on private land, without access from any public highway, and intended only for the convenience of visitors who might wish to see the falls, the river, and the whirlpool. The court say that this "is not a public purpose which justifies the exercise of the high prerogative of sovereignty" in taking property by condemnation proceedings.

The same rule was applied in Deansville Cemetery Asso. (1876) 66 N. Y. 569, 23 Am. Rep. 86, in which it was held that cemetery associations organized under a general law could not, by condemnation, take land for cemetery purposes. See also Re Townsend (1868) 39 N. Y. 171; Re Eureka Basin Warehouse & Mfg. Co. (1884) 96 N. Y. 42, where an act was declared unconstitutional which assumed to authorize a manufacturing corporation to take land by condemnation; Re New York, L. & W. R. Co. (1885) 99 N. Y. 12, I N. E. 27; Re Rochester, H. & L. R. Co. (1888) 110 N. Y. 119, 17 N. E. 678.

7. [Compensation for private property, how ascertained; private roads; drainage.]-When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall

be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches, and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.

[Const. 1846, art. 1, § 7.]

COMPENSATION, HOW ASCERTAINED.

"The historical fact is that complaints had existed in respect to the methods of appraisement, and the Convention [of 1846] solved that difficulty by selecting and approving these two methods, inferentially forbidding all others." Clark v. Miller (1874) 54 N. Y. 528.

It seems that the provisions of this section relating to the method of ascertaining the compensation to be made on taking private property for public purposes, which were included in the Constitution of 1846, were prospective, and applicable only to cases. occurring after January 1, 1847. These provisions are not selfexecuting, and could only be put into operation by legislation; hence, existing provisions of law relating to the method of ascertaining compensation are applicable, in the absence of legislation providing other machinery. People ex rel. Dubois v. Ulster County (1848) 3 Barb. 332.

Compensation must be ascertained by a jury or by commissioners appointed by a court of record. An assessment of damages by assessors under the Rochester charter was held invalid. House v. Rochester (1853) 15 Barb. 517. A similar provision in the Utica charter was also held invalid in Clark v. Utica (1854) 18 Barb. 451. The constitutional provision that compensation must be ascertained either by a jury or by commissioners cannot be waived by the owner of the land. "The determination of the amount of compensation is in the nature of a judicial proceeding, and where the amount is to be paid for by the public, the public, as a party in

interest, have a right to that proceeding." Hanlon v. Westchester County (1870) 57 Barb. 383.

The legislature cannot vest in the supreme court the power to increase or diminish the sum awarded as damages by a jury or by commissioners. Rochester Waterworks Co. v. Wood (1871) 60 Barb. 137; Re Middletown (1880) 82 N. Y. 196; Re Malone Waterworks Co. (1891) 38 N. Y. S. R. 95, 15 N. Y. Supp. 649.

The legislature may constitutionally authorize a reassessment of damages in a manner different from that adopted for the first assessment, provided such reassessment is by one of the methods prescribed in the Constitution. The act of 1847, chap. 455, authorizing a reassessment by a jury where the first assessment had been made by commissioners, was sustained. Clark v. Miller (1874) 54 N. Y. 528.

In Re Ulster & D. R. Co. v. Gross (1883) 31 Hun, 83, the court expressed great doubt whether the expenses of taking the land can ever be charged against the owner, and said that "whenever he is made to pay such expenses, he fails to receive just compensation to that extent."

"The provisions of the Constitution as to the mode and manner of ascertaining the compensation to be paid for private property when taken for public use are for the sole benefit of the owner." Re Hand Street (1889) 55 Hun, 132, 8 N. Y. Supp. 610.

The Constitution does not secure the right to review an award by a jury or by commissioners. The subject of such a review is within the discretion of the legislature. Re De Camp (1896) 151 N. Y. 557, 45 N. E. 1039.

See Re Borup (1905) 102 App. Div. 262, 92 N. Y. Supp. 624, as to damages on change of grade under Laws 1903, chap. 610, adding 11a to the highway law.

Notice. The property owner is entitled to notice of the impaneling of the jury and of the subsequent proceedings before them. People ex rel. Stephens v. Tallman (1862) 36 Barb. 222.

The owner is not entitled to notice of application for appointment of commissioners. Long Island R. Co. v. Bennett (1877) 10 Hun, 91; Re New York Elev. R. Co. (1877) 70 N. Y. 327; Re Middletown (1880) 82 N. Y. 196.

An owner of land is entitled to notice of an intention to take the same for a public purpose, and of the proceedings to ascertain the damages. People ex rel. Dexter v. Mosier (1890) 56 Hun, 64, 8 N. Y. Supp. 621; McLaughlin v. Miller (1891) 124 N. Y. 510, 26 N. E. 1104