more etc. R. R. Co. v. Baptist Church, 108 U. S. 317; Wood on Nuisances, sec. 611, and cases cited; Jeffersonville etc. R. R. Co. v. Esterle, 13 Bush, 667; Bangor etc. R. R. Co. v. McComb, 60 Me. 290.

There was evidence in this case tending to show that by reason of the noise, smoke, and vibration produced by the operation of the defendant's road the plaintiff's property had been greatly diminished in value. The following is the rule laid down by an eminent English judge as applicable to cases like this: "When by the construction of any works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of in connection with such property, and which gives an additional market value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to compensation, if by reason of such interference the property, as property, is lessened in value": Metropolitan Board v. McCarthy, L. R. 7 H. L. 243. The charge of the court was in accordance with these principles, and was not erroneous. The charge requested was based upon contrary principles, and was properly refused.

We deem it proper, before leaving this subject, to comment briefly upon the case of Hammersmith R'y Co. v. Brand, L. R. 4 H. L. 171, upon which appellant seems mainly to rely for a reversal of the judgment. In its decision a great amount of labor and a great wealth of learning was expended. The plaintiff's claim in that case was precisely like the claim in this. The court of queen's bench held that the plaintiff was not entitled to recover: Brand v. Railway Co., L. R. 1 Q. B. 130. This judgment was reversed in the exchequer chamber (L. R. 2 Q. B.), but upon final appeal to the house of lords was sustained. Four of the five judges who were cited to advise the lords were of the opinion that the plaintiff was entitled to recover, and in that opinion one of the law lords concurred. Two of the law lords held the contrary opinion, and the house gave judgment accordingly. The important fact, however, is, that the decision of the case turned upon the construction of the acts of Parliament which allowed compensation to owners "when lands were taken or injuriously affected" by the construction of public works. The question was, whether compensation was intended to be allowed only for damages occurring from the construction of the works, or whether it included also such damages as resulted from the

operation of the trains after the works had been constructed. The damages in the case were clearly of the latter character, and each of the judges who gave an opinion against the right of compensation placed it distinctly upon the ground that the acts of Parliament commonly called the Land Clauses Act and the Railway Clauses Act gave compensation only for such damages as resulted from the construction of the railroad, and not from the operation of its trains. The decision of the case was made to depend purely upon a matter of verbal construction. All the judges conceded that the plaintiff's property had been injuriously affected, "and that if the language of the statute had been broad enough to embrace damages reresulting from the operation of the works, the plaintiff would have been entitled to recover."

In the case of Metropolitan Board v. McCarthy, above cited, the damages claimed resulted from the construction of the works, and the right of recovery was maintained in the common pleas, in the exchequer chamber, and in the house of lords: L. R. 7 Com. P. 508; L. R. 8 Com. P. 191; L. R. 7 H. L. 243. The question was again considered, and the doctrine of the case last cited affirmed in Railway v. Walker's Trustees, L. R. 7 App. Cas. 259.

There is no such difficulty under the provision of our constitution as was presented in the construction of the English statutes. The language, "no person's property shall be taken, damaged, or destroyed for or applied to a public use without adequate compensation being made," is sufficiently comprehensive to include damages resulting from the operation of public works, as well as those which are inflicted by their construction merely. The property in this case was damaged for a public use by the operation of the railroad, and the damage comes as clearly within the provision of the constitution as damages which result immediately from the construction of the road. The property is subjected to a perpetual servitude for the benefit of the public, and the owner is entitled to his compensation for his damage. The following American cases bear upon the question we have been considering, and support the conclusion we have announced: Columbia etc. Bridge Co. v. Geisse, 35 N. J. L. 558; Chicago v. Taylor, 125 U. S. 161; Rigney v. Chicago, 102 Ill. 64; Reardon v. San Francisco, 66 Cal. 492; 56 Am. Rep. 109; Chicago etc. R. R. Co. v. Ayres, 106 Ill. 511; Hot Springs R. R. Co. v. Williamson, 45 Ark. 429.

During the progress of the trial, the following question was propounded to plaintiff on his behalf, while being examined as a witness, as well as to his other witnesses: "To what amount, if any, is your property depreciated in market value by reason of the construction and operation of defendant's railroad, taking into consideration the physical disturbances to said property only, if any, such as noise, smoke, noxious vapors, and vibrations, and excluding from your consideration all damages and inconveniences sustained in common with the community at large?"

The question was objected to by the defendant, on the ground that it called for the opinion of the witnesses upon a matter involving a mixed question of law and fact. We think that the question was improper, and that the objection should have been sustained. But in so far as the answer of the plaintiff was concerned, no harm resulted to the defendant. He did not give a direct response to the question, but answered that the market value of the place was almost totally destroyed; that without a railroad it would be worth, at a low estimate, four thousand dollars, and its value was decreased, from the causes enumerated, from one half to three fourths of that amount. The result was the same as if the witness had been asked the value of the property before the railroad was built and afterwards, and the cause of the depreciation in value, if any, and had answered it was worth, before the construction, four thousand dollars, but since the construction was not worth more than one thousand or two thousand dollars, and the cause of the decrease was the noise, smoke, and vibration caused by the moving trains. Neither the bill of exceptions nor the statement of facts show the answers of the other witnesses to the question, and without knowing what the answers were, we cannot say whether the defendant was prejudiced or not. They may have answered that in their opinion there was no damage.

We find no reversible error in the record, and the judgment is affirmed.

EMINENT DOMAIN. - Power to Take Private Property for Public Purposes. -The power to take private property for public use under the right of eminent domain is vested in the legislature alone: Groff's Appeal, 128 Pa. St. 621; Whitsett v. Union Dep. & R'y Co., 10 Col. 243; Matter of Ni agara Falls etc. R'y Co., 108 N. Y. 375; Matter of Poughkeepsie Bridge Co., 108 N. Y. 483; and the necessity for condemning private property is not a subject of judicial cognizance, but lies exclusively within the province of the legislature: State v. Rapp, 39 Minn. 65; Aldridge v. Spears, 101 Mo. 400;

Dalles L. Co. v. Urquhart, 16 Or. 67; Tait v. Central L. Asylum, 84 Va. 271. But the legislature may delegate this power to corporations or individuals: Moran v. Ross, 79 Cal. 159; Matter of Poughkeepsie Bridge Co., 108 N. Y. 483. Authority to exercise this right must be strictly construed: Matter of Poughkeepsie Bridge Co., 108 N. Y. 483; Godchaux v. Carpenter, 19 Nev. 415. For What Purposes 'may Private Property be Taken. The legislature can take private property for public uses only: Forney v. Fremont etc. R. R. Co., 23 Neb. 465; Hancock Stock etc. Co. v. Adams, 87 Ky. 417; Chicago etc. Ry Co. v. Chicago, 132 Ill. 372; Dalles L. Co. v. Urquhart, 16 Or. 67; and never for private purposes: In re Barre Water Co., 62 Vt. 27; Hancock Stock etc. Co. v. Adams, 87 Ky. 417. Whether the use is really a public use is a judicial question for the courts to determine: Matter of Niagara Falls etc. R'y Co., 108, N. Y. 375; St. Joseph etc. R. R. Co. v. Hannibal etc. R. R. Co., 94 Mo. 535; Aldridge v. Spears, 101 Mo. 400; and is subject to a review in the appellate court: Railroad Co. v. Iron Works, 31 W. Va. 710. The district court has power to decide the question as to whether a condemnation has been actually made, but not to make the condemnation: Ackerman v. Huff, 71 Tex. 317. Property already taken for public uses may be taken for other public purposes: Graff's Appeal, 128 Pa. St. 621.

What Constitutes a Taking of Private Property. The word "taken,” as used in statutes providing a compensation for private property “taken for public uses, means an actual assumption by the taking party of exclusive possession at the termination of the proper judicial proceedings: Woodruff v. Callin, 54 Conn. 277; but any restriction of the common use of private property which destroys its value or strips it of its attributes is a violation of the owner's rights therein: Janesville v. Carpenter, 77 Wis. 288; 20 Am. St. Rep. 123. Citizens cannot be disturbed in the enjoyment of their property, unless there exists a real and public necessity for condemnation under the right of eminent domain: Detroit v. Daly, 68 Mich. 503. Every land-owner may object to giving up his land to the use of a railroad company, and may base his objections upon the value of the land and a lack of the necessity for the location and extension of such railroad over his land under any conditions: Grand Rapids etc. R. R. Co. v. Weiden, 70 Mich. 390; but objections cannot be raised by third parties not interested in the lands: Kettle River R'y Co. v. Railway Co., 41 Minn. 461.

Proceedings to Condemn. The right of eminent domain can be exercised only in the manner pointed out by statute: Allen v. Railroad, 102 N. C. 381; Galveston etc. R'y Co. v. Railway Co., 72 Tex. 454; Fort Worth St. R'y Co. v. Queen City R'y Co., 71 Tex. 165; Chicago etc. R'y Co. v. Chicago, 132 Ill. 372; Matter of Union Elevated R. R. Co., 112 N. Y. 61. Condemnation proceedings are not, strictly speaking, ordinary civil actions: Lake Shore etc. R'y Co. v. Cincinnati etc. R'y Co., 116 Ind. 578; but are proceedings purely statutory, in which the statute must always be strictly complied with: Colorado etc. R. R. Co. v. Allen, 13 Col. 229; Chicago etc. R'y Co. v. Young, 96 Mo. 39; Ames v. Union County, 17 Or. 601; Neale v. Superior Court, 77 Cal. 28. When the statute gives the land-owner a specific remedy for the recovery of damages, that remedy must be pursued: Wagner v. Salzburg Township, 132 Pa. St. 636.

Necessity of Compensation. - Private property cannot be taken under the right of eminent domain, in the absence of the owner's consent, without fully compensating him therefor: Organ v. Memphis etc. R. R. Co., 51 Ark. 236; San Diego L. Co. v. Neal, 78 Cal. 63; Oliver v. Union Point etc. R. R. Co., 83 Ga. 257; Grand Rapids etc. R. R. Co. v. Chesebro, 74 Mich. 466; Grand AM. ST. REP., VOL. XXIL-4

Rapids etc. R. R. Co. v. Weiden, 70 Mich. 391; Dalles L. Co. v. Urquhart, 16 Or. 67; Fort Worth etc. R'y Co. v. Queen City R'y Co., 71 Tex. 165; Fisher v. Baden G. Co., 138 Pa. St. 301. But compensation need not be made for remote and consequential damages occasioned to private property as an indi. rect result of public works constructed by the state or under its authority: Green v. State, 73 Cal. 29; Howe v. Inhabitants of Weymouth, 148 Mass. 605; Land Co. v. Neale, 88 Cal. 50. Compare note to Currie v. Waverly etc. R. R. Co., 19 Am. St. Rep. 458, 459.

Measure of Damages: See Currie v. Waverly etc. R. R. Co., 52 N. J. L. 381; 19 Am. St. Rep. 452, and note 459, 460. Damages for which compensation must be made include all such damages as arise from a diminution in the value of the property: Chicago etc. R'y Co. v. Hazels, 26 Neb. 364; the proper measure of damages being, -1. Compensation for the property actually taken, equal to the actual value of the same at the time when condemned: Colorado etc. R'y Co. v. Brown, 15 Col. 193; Railway Co. v. Combs, 51 Ark. 324; Chicago etc. R'y Co. v. Wiebe, 25 Neb. 542; Kiernan v. Chicago etc. R'y Co., 123 Ill. 188; 2. Compensation for damages to the residue of the land or property, equal to the actual diminution of its market value for any reasonable use to which it might be put: Colorado etc. R'y Co. v. Brown, 15 Col. 193; Chicago etc. R'y Co. v. Wiebe, 25 Neb. 542; Kiernan v. Chicago etc. R'y Co., 123 Ill. 188; Thompson v. Sebasticook etc. R. R. Co., 81 Me. 40; North C. R'y Co. v. Holland, 117 Pa. St. 613; Forney v. Fremont etc. R. R. Co., 23 Neb. 465; St. Louis etc. R'y Co. v. McAuliff, 43 Kan. 185. In esti mating the amount of depreciation in the value of property, a portion of which has been condemned for public uses, evidence may be received of damages resulting to the owner by being deprived of a home or place of business: ·Covington etc. R'y Co. v. Piel, 87 Ky. 267; or of damages done to growing crops, both inside and outside of the land condemned: Haislip v. Wilmington etc. R. R. Co., 102 N. C. 376; or of damages to the land for farming purposes: Weber v. Stagray, 75 Mich. 33; or of a tendency to depreciate the value by frightening teams used for farm purposes: Railway v. Combs, 51 Ark. 324; or of a decrease in rental value by reason of dirt, ashes, smoke, and cinders filling the air: McGean v. Manhattan etc. R'y Co., 117 N. Y. 219. But a party cannot have his damages increased on account of the loss of a gratuitous priv. ilege which he has been enjoying only by sufferance: Ranlet v. Concord R. R. Corp., 62 N. H. 561. As tending to depreciate the market value of the land, the jury cannot consider such damages for stock as are liable to be killed, or fires liable to be set out by locomotives, passengers, or servants, without distinguishing between what may be negligently done and what may occur accidentally without negligence: Chicago etc. R. R. Co. v. Palmer, 44 Kan. 110.

Benefits Accruing to the Owner of the Land: See note to Currie v. Waverly etc. R. R. Co., 19 Am. St. Rep. 460. In arriving at the just compensation to be made to the owner of land appropriated for public use, the value of the land taken for actual use must be considered in relation to the entire tract, and must include the actual injury to the improvements, of every character and every tendency to diminish the value of the entire tract: Colusa County v. Hudson, 82 Cal. 633; Council Grove etc. R'y Co. v. Center, 42 Kan. 438; but nothing can be deducted by reason of benefits that may be reasonably anticipated: Asher v. Louisville etc. R. R. Co., 87 Ky. 391; Benton v. Inhabitants of Brookline, 151 Mass. 250; but in McKusick v. Stillwater, 44 Minn. 372, Wilcox · v. Meriden, 57 Conn. 120, Newman v. Metropolitan E. R. R. Co., 118 N. Y. 619, Long v. Harrisburg etc. R. R. Co., 126 Pa. St. 143, Haislif v. Wilming ton etc. R. R. Co., 102 N. C. 376, the rule is laid down that both the advan