of Charleston to take land for highway purposes, but having made no provision for compensation to the owners of the land to be taken. For this reason it was sought to restrain the commissioners, by an injunction, from proceeding to lay out the highway. The Constitution of the State was silent upon the subject; and the court being evenly divided in opinion, the constitutionality of the act was sustained, and no injunction issued, half of the court declaring that neither Magna Charta nor the law of the land required compensation to be made where land was taken for highway purposes, as every freeholder held subject to the public necessities.' The conclusion thus reached was afterwards adhered to."

So, too, in Virginia, up to the time when the law expressly required compensation to be made, the doctrine was uniformly asserted, in its broadest terms, that a right of way might be taken for highway purposes and no compensation. need be provided.3

It is true that in Pennsylvania land was also taken for highway purposes without compensation, but it was in consequence of express reservations in the original grants, in the earliest periods of the Commonwealth. The proprietor took his land charged with the general public servitude of highways. He received his compensation in advance, for in every grant the State threw in, without charge, six acres in the hundred, reserving to itself the right of making as many roads through the land as the public interests might require, without compensation. The very nature of the reservation shows that otherwise it was expected that compensation would be required. It is one of the many cases where the exception proves the rule.

We have already noticed the fact that in New Jersey the courts held compensation to be a necessary incident of the

i

Lindsay . The Commissioners, 2 Bay, 38.

Patrick . The Commissioners, 4 McCord, 541; McLauchlin. The

Railroad Co., 5 Rich. 583, 599; The State v. Dawson, 3 Hill, 100.

3 See Stokes 7. Upper Appomattox Co., 3 Leigh, 337.

McClenachan . Curwen, 6 Binn. 509. And see Beeson's Case, 3 Leigh,

821, 828.

right of eminent domain, and yet even in this State, as in Pennsylvania, it was customary to take land for highway purposes without compensation. Nay, more; the Constitution of 1844, which expressly provided that compensation must be made in taking private property for a public use, declared that lands might be taken for highway purposes without compensation, until the Legislature should see fit to require otherwise. But the reason and explanation of this is the same as in the case of Pennsylvania. The proprietors of East and West Jersey, in their original grants, had reserved the right to take land for highways, and had made compensation in advance by allotting an extra allowance to their grantees in consideration of the reservation.'

It is true that in the Constitution of the Federal as well as in those of the several State governments, with but two exceptions, it has been deemed prudent to incorporate, among the fundamental articles of right, provisions requiring compensation to be made whenever private property is taken for public use. But these provisions are to be regarded not as establishing a new principle of law, but only as placing an old one beyond legislative control. As expressed by Mr. Justice Miller in the Supreme Court of the United States, these provisions have received "the commendation of jurists, statesmen, and commentators, as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them." 2

Similar constitutional provisions were embodied in the Constitution de la Republique Française of 1795, in the Code Napoleon, and in the constitutional charter of Louis XVIII., as well as in the Constitution of the Confederate States of America. But, notwithstanding it has been deemed prudent to incorporate these provisions into written constitutions, it appears to be a principle, not only of the common law, but of universal law, that the necessity of making just compensation is a limitation upon the right to exercise the power of eminent domain.

The State v. Seymour, 35 N. J. L. 47, 53. 2 Pumpelly v. Green Bay Co., 13 Wall. 177.

This fact, important in more lights than one, is especially so in view of the farther fact that in the Constitutions of two of the States there is no constitutional provision which expressly requires compensation to be made where private property is taken for public use. The provision in the Constitution of the United States is held to be a limitation upon that government only, and in no manner applies to the States.3

II. Mode of ascertaining Compensation. A just compensation, then, follows the right as "the shadow follows the substance," and the two cannot be separated. It must be apparent, therefore, that some definite mode must be prescribed, in pursuance of which it may be determined, in each particular case, what constitutes a just compensation to the owner for the property of which he has been summarily deprived.

As a rule, the constitutional provisions upon this subject are silent as to the manner in which this shall be done. In their silence, it must be presumed that it was intended to leave the matter to legislative discretion; otherwise, the right of eminent domain would be reduced to a nullity, and the hands of government so fettered that the property of the citizen could never be taken against his consent, there being no method provided whereby he could be recompensed. We say that his property could not be taken against his conThe owner, if he was so disposed, might, of course, suffer his property to be taken, and seek his redress for the

sent.

1 New Hampshire and North Carolina.

2 Amendments to the Constitution, art. v.

3 Barron v. The City of Baltimore, 7 Pet. 243; Withers v. Buckley, 20 How. 84; Pumpelly v. Green Bay Co., 13 Wall. 166, 176; Murphy v. The People, 2 Cow. 815, 818; Jackson v. Wood, 2 Cow. 819; Livingston v. The Mayor, etc., of New York, 8 Wend. 85; Concord R. Co. v. Greely, 17 N. H. 47; Orr v. Quimby, 54 N. H. 590, 599, 606; Woodfolk v. The Nashville, etc., R. Co., 2 Swan, 422, 431; The Railroad Co. v. Davis, 2 Dev. & B. 459; Johnston v. Rankin, 70 N. C. 550; Martin v. Dix, 52 Miss. 53; Cairo, etc., R. Co. v. Turner, 31 Ark. 494; North Missouri R. Co. v. Maguire, 49 Mo. 490; Weimer v. Bunbury, 30 Mich. 201.

injury in an action at law, in which case the value of the property would be recovered as from a wrong-doer. But if, instead of consenting, he should be disposed to resist, there would be no lawful power to overcome that resistance, as it is held that the owner can never be compelled to resort to an action at law to recover the value of property taken under the right of eminent domain. Under the constitutional provision that "private property shall not be taken for public use without just compensation," it was never intended, say the courts, to drive the owner into a lawsuit. "No such obligation," it has been said, "can be imposed upon him; he is entitled to the damages he has sustained, without resorting to a legal tribunal to enforce the payment." This has been so well expressed by one of the most learned and painstaking judges that to-day adorn the American bench, that we cannot refrain from here quoting his language: "There can be no necessity for casting upon him the burden of any legal proceedings. Legal proceedings may be necessary, and he may be entitled to notice if he can be found; but, so far as such proceedings are necessary for his enjoyment of his constitutional right, they are to be instituted and carried on by the public, because the public power is limited by his reserved right. His property is taken without payment, if it is taken with the payment of a sum procurable only by his unremunerated outlay of an equal or greater amount. And whether he must lose a sum equal to, or greater, or less than his compensation, the principle is the same." 2

The legislature, then, must in its discretion prescribe the mode of assessing the owner's compensation. It must not itself, however, undertake arbitrarily to fix the value of the property, and by calling it a just compensation compel the owner to receive it as such. What amounts to just com

1 San Francisco v. Scott, 4 Cal. 114.

2 Orr v. Quimby, 54 N. H. 590, 642, per Doe, J. See also Piscataqua Bridge Co. v. The New Hampshire Bridge Co., 7 N. H. 35, 70; Hall v. The People, 57 Ill. 307, 316; Shepardson v. Milwaukee, etc., R. Co., 6 Wis. 613; Lee . North-Western, etc., R. Co., 33 Wis. 222.

pensation is a judicial question; and, moreover, the legislature cannot be a judge in its own cause.' The discretion with which the legislature is thus intrusted is not unlimited. The owner has a right to insist that the legislature shall provide him with an impartial tribunal that shall hear evidence, and where both parties may meet and discuss their claims. on equal terms, and nothing can be prescribed which shall in any manner impair or destroy the rights of the owner to his just compensation.3

For a long time it was eagerly contended before the courts that any method of assessing damages without a jury, and against the owner's refusal to waive a jury-trial, would be unconstitutional and void; it having been supposed by some that, under the general constitutional provisions securing the right of trial by jury, the owner was entitled to insist that the case should be submitted to a jury, to pass upon the amount of compensation which would be just to him in that particular case.

The courts, however, have held from the beginning, with perfect unanimity, that condemnation proceedings were not embraced within the meaning of these constitutional provisions, and that the owner could not, as a matter of right, demand a jury-trial. The constitutional provisions relative to the trial by jury relate to the trial of issues of fact in civil and criminal proceedings, and have no reference to special proceedings of condemnation under the right of eminent

1 Charles River Bridge v. Warren Bridge, 7 Pick. 344; s. c., 11 Pet. 571; United States . Illinois Central R. Co., 2 Biss. 174; County Court v. Griswold, 58 Mo. 175, 199; Rich v. The Chicago R. Co., 59 Ill. 286; Isom v. Mississippi, etc., R. Co., 36 Miss. 300.

2 Langford . The Commissioners, 16 Minn. 375, 380.

3 Potter 7. Ames, 43 Cal. 75.

4 Livingston v. The Mayor, etc., of New York, 8 Wend. 85; Raleigh, etc., R. Co. v. Davis, 2 Dev. & B. 451; McIntire v. Western, etc., R. Co., 67 N. C. 278: Pennsylvania R. Co. v. Lutheran Congregation of Pittsburgh, 53 Pa. St. 445: Mount Washington Road, 35 N. H. 134; Ames . The Lake Superior R. Co., 21 Minn. 241; Buffalo, etc., R. Co., 26 Texas, 588; Houston, etc., R. Co. v. Milburn, 34 Texas, 224; Dronberger v. Reed, 11 Ind. 420; Haverhill Bridge Co. v. County Commissioners, 103 Mass. 120; Willyard v. Hamilton, 7 Ohio (pt. 2), 111.