property was taken enters into the account as an essential part. The obligation to make compensation, and the right to receive it, attach on the instant the property is taken; the compensation, therefore, must be reckoned as due at that time; otherwise it is not compensation for the whole, and therefore not just compensation. For it would be manifestly unjust that government should take a man's property, reckon up its value, keep it, e. g., twenty years, and then pay him no more than the value as originally estimated; and if it could not do this after twenty years, by what reason could it after a less time?

And as it is essential to the fulness of the compensation that it reckon from the time of taking, so it is important that it should be paid at the time of taking.2 The State cannot place an individual whose property is appropriated, in the same condition as before it was taken; but it is manifest that the nearer it comes to this, consistently with the public good, which is its first care, the more justly it deals with him. Compensation paid at the time of the taking, is the utmost that the State can do, or the individual can ask.

Yet it may be impossible to pay with this punctilious promptitude; the public welfare may not justify the delay in taking, necessary to ascertain the value of the property; in such case the same supreme necessity that authorizes the assumption, may well justify a delay in making compensation; 3 and so the property may be taken at once in order to satisfy this public exigency, while compensation should be made as soon as may be, of which that legal interest ought now to make a part, which is regarded as full satisfaction for the delay.4

(2.) As to the form, in which compensation should be made.

(1.) May it be made, wholly or in part, in benefits to the remaining property? When the State takes a piece of land, as, e. g., for a highway, worth five hundred dollars, and at the same time, by the public work or improvement for which it is taken, enhances the value of adjoining land, belonging to the same owner, to an equal amount, it is said that the owner has, by this means, received just compensation, and has no right to ask for anything more.5 The State takes his land, indeed, but by the construction of the highway or other public work, it adds the full value of that land to his adjoining property.

But, in the case of many kinds of public improvements, the increase they occasion in the value of adjoining property, is simply

1 Parks v. Boston, 15 Pick. 198.

2 Thompson v. R. R. Co., 3 How. (Miss.) 240.

Parks v. Boston, 15 Pick. 198.

15 Pick. 198, per Shaw, C. J.; 2 Kent, 339, n.; 26 Wend. 497; Thompson v. R. R. Co., 3 How. (Miss.) 240.

Symonds v. Cincinnati, 14 Oh. 147; People v. Mayor of Brooklyn, 4 Comst. 419.

the measure of the owner's share in the general good, produced by the public work or construction; it would seem so, for example, in the case of railroads. In such cases, why is not the owner justly entitled to this increase without paying for it? For, it may be asked, what is the object of the State in constructing the public work, if not that general good, of which this individual's good is a part ? Perhaps his share may be a larger one than falls to the lot of most members of the community, but it is in the nature of all public improvements to distribute their benefits with more or less of inequality.

By making an individual's property, thus taken, serve as a kind of payment to the State for his share of the public benefit, that person is evidently put at a disadvantage as compared with other property-holders, whose land may adjoin the public work and yet. not be taken, in any part, for the public purposes; and also, as compared with the great mass of neighboring property-owners, who, all of them, receive the bounty of the sovereign freely.2 The State, while undertaking to make recompense for property taken in benefits, seems to occupy the unworthy position of effecting a barter with those sovereign benefactions which it is the whole end of its being to work out and dispense.3

If it be said, however, that this is only a kind of taxation — that all who are specially benefitted ought to contribute specially— and that whether others are made to do so or not, it is at least an approach to equality upon the whole, if the individual in question and all who may have any property taken for this public work, are held to pay their proportions 4. this is partly answered already, by what has just been said. It may be said, however, that if others who are specially benefitted, without losing any property, are not obliged to pay for their special share, (and this is rarely, if ever, required, excepting, sometimes, when improvements are made in cities,) then it would seem that those whose land is taken, might justly complain of this method of approaching equality; they might be pardoned for not readily seeing the equality. Besides, if this reasoning be good, why are not all the benefits which these parties receive, offset, those affecting, not merely the lands of which that taken was part, but also other lands, more or less near, belonging to the same owner? But this, it is admitted, ought not to be done. Still further, it will often happen that the increased value of adjoining property is not, so far, nor to any extent, a compensation. A man's property may be more valuable in the market

1 People v. Mayor of Brooklyn, 6 Barb. 209.

2 State v. Miller, 3 N. J. 388.

3 Keasy v. Louisville, 4 Dana, 154; People v. Mayor of Brooklyn, 6 Barb. 209; Symonds v. Cincinnati, 14 Oh. 147, per Read, J.

4 People v.

Barb. 627.

Mayor of Brooklyn, 4 Comst. 419; Rexford v. Knight, 15

58 Watts, 243; State v. Digby, 5 Blackf. 543; James River Co. v. Turner, 9 Leigh, 313.

and yet of no more worth, but rather of less, for his own use.1 In such case, that can hardly be called a just compensation, which, while it serves to increase a man's taxes, can only be made available for any benefit, by his selling himself out of house and home; and, in that event, if he do sell his property and pocket this increase in its value, he will find, if he seek to locate again anywhere in that neighborhood, that his was not the only property that increased in value.

But admitting compensation by benefits to be impolitic and unequal where property is taken, so far as intended to be payment for the property itself, yet it is sometimes said that it may justly be made to balance consequential losses; that where the damage is consequential, it may well enough be offset by consequential. benefit.2

As to which, it is to be said that consequential damages ought not, on any general rule, to be awarded to the owner of property taken any sooner than to other persons; why shall not the same principle apply here as in all other cases of consequential loss? And still further, that what is sometimes called consequential damage, in this connection, would seem not to be such in fact, but rather a portion of the value of that which is taken; as, e. g., the expense to which the owner of land is put for fencing where the State takes a strip out of the middle of his field; here the position of the land must enter into any fair estimate of its value; it is not, merely, so many feet of land that is taken, but so many feet of land in the middle of a man's field.

But if, in particular instances of legislation, compensation is directed to be made for consequential loss or damage, there would seem no valid objection to a provision that consequential benefit should be offset.2

After all that has now been said, it must be admitted, nevertheless, that the weight of authority appears to be in favor of allowing compensation by benefits.3 It would appear that considerations of a practical nature, not easily susceptible of estimation on our pages, have something to do with this course of legislation and doctrine; the State, it is said, is compelled to pay extravagant prices for property taken; and an assumption by the public is, for this reason, apt to be courted as a favor. It may be, that provisions for payment in benefits are partly designed to reimburse the State for this alleged compulsory excess in its outlays. But it

1 People v. Mayor of Brooklyn, 6 Barb. 209; Jacob v. Louisville, 9 Dana, 114.

2 Jacob v. Louisville, 9 Dana, 114.

3 Livermore v. Jamaica, 23 Verm. 36; Com. v. Sess. of Middlesex, 9 Mass. 388; People v. Mayor of Brooklyn, 4 Comst. 419; Rexford v. Knight, 15 Barb. 627; 4 Whart. 47; Symonds v. Cincinnati, 14 Oh. 147. It may be said, however, of many of these decisions, that they only pass upon the power of the legislature, under the constitution of the State. We are here discussing the duty of the legislature on general principles.

would seem that this state of things, viz.: such excessive value put upon property, allowing all that is said to be true, ought to be accepted by the State as inevitable; as a part, so to speak, of its discipline; it can hardly furnish a justification for retaliatory measures, of a questionable character in themselves, retorted by the sovereign upon the citizen.

But, at all events, the conclusion indicated above, that compensation ought not to be made in benefits, seems, on principle, the sound one. It has the assent of various weighty authorities,' and has passed, as a specific provision into one, at least, of the more recent State constitutions.2

(2.) What then ought to be the form of compensation? It is manifest that it ought to be in some such shape, that it will be of a certain and steady nature, so far as may be, and as complete a substitute for the property taken as may be. And this is almost the same as to say that it ought to be in money, the fullest representative of everything that has legal value.3

(3.) As to the measure of compensation.

It has been observed repeatedly that no consequential damages, properly so called, ought to be allowed, as a general rule, in making compensation when property has been taken under the Right of Eminent Domain. What was said on a preceding page as to consequential damages in general, would seem to apply with equal force, when such damages are claimed by a party whose property is taken by the State.

The measure of compensation, then, should be the value of what is taken, and the value of it at the time it is taken; 4 which is the time, as we have seen, when the right to compensation arises, and when, if possible, it ought to be paid. For on what principle can we fix on any other time, before or after? And what shall that time be?

It would follow, then, if a man had purchased property and was holding it in expectation of a rise in its value, and it should be taken for public purposes, that no allowance could be made in his compensation for expected profits. It might be true that if the man were free to act, he would not sell this property on the day it is taken, for the market value of it on that day; but the true question, it is conceived, in ascertaining his compensation, would be,

12 Kent, 339, n.; State v. Miller, 3 N. J. 383; People v. Mayor of Brooklyn, 6 Barb. 209; Hatch v. R. R. Co., 25 Verm. 49; Keasy v. Louisville, 4 Dana, 154; Rice v. Tpk. Co. 7 Dana, 81; Jacob v. Louisville, 9 Dana, 114; Symonds v. Cincinnati, 14 Oh. 147, per Read, J.

2 Ohio State Const. (1851) Art. 1, s. 19.

32 Kent, 339, n.; Jacob v. Louisville, 9 Dana, 114; Van Horn's Lessee v. Dorrance, 2 Dall. 304; Rawle on Const. 134.

42 Kent, 239, n.; Jacob v. Louisville, 9 Dana, 114; Parks v. Boston, 15 Pick. 198; R. R. Co. v. Dougherty, 2 N. J. 495; Canal Co. v. Archer, 9 G. & J. 479.

Jacob v. Louisville, 9 Dana, 114; Canal Co. v. Archer, 9 G. & J. 479.

not what would he sell it for to-day, or what would any other man, if he owned it, sell it for to-day; but rather, it being settled that he must sell it to-day, what could it reasonably be expected to bring in the market at this present time.' The present market value of the property is regulated, to a certain extent, by the general prospect of a rise, and the owner is entitled to the benefit of that prospect; but beyond this, all is mere speculation. The loss of any further profit, anticipated from a continued possession of the property would seem to be, at best, one of those consequential losses whose character has been already sufficiently indicated.

One qualification ought, however, to be added, and that is, that while the measure of the compensation should be the market value of the property at the time it is taken, allowance ought to be made for any effect that the proposed improvement may have had upon its value, whether in raising or depressing it. For, on the one hand, if the value has been increased, it would be unjust that the State should be obliged to make compensation for that increase, and so to buy back its own gifts. And on the other, if it has been lessened, it would be unjust to the owner of the property that the State should come in and reap, in behalf of the public improvement, the benefit of that loss which this improvement itself had occasioned. In a case like this, in this sense, and to this extent, it would seem that consequential damage should be considered.

On the principle now laid down, it would appear that if benefits are to be allowed in the making of compensation, they should be reckoned as they exist when the property is taken; and not as they probably will exist at some future time. If it be said that they ought to be reckoned as they will stand when the public improvement or work is completed, it may be objected, first, that such benefits are a mere matter of speculation, and no certainty; and second, that a future increase in the value of property cannot be called just compensation for property taken to-day; at least not for property of the same nominal value. Compensation, it would seem, ought to be something certain, and available at present.

But if not only benefits are to be offset, but benefits as they will exist at a future day, then, one would suppose, the value of the property taken ought also to be reckoned as it will stand at the same future day.

But as we have taken the view that benefits ought not to be offset at all, it is hardly necessary that we should enter farther upon these hypothetical questions.

(4.) As to the manner of ascertaining the compensation. Where no restriction is placed upon the action of the legislature, the mode of ascertaining compensation must be at the discretion of In matter of Furman Street, 17 Wend. 669.

2 19 Wend. 679.