the occasions, the modes, conditions, and agencies for its appropriations. Private property can only be taken pursuant to law; but a legislative act declaring the necessity, being the customary mode in which that fact is determined, must be held to be for this purpose" the law of the land," and no further finding or adjudication can be essential, unless the constitution of the State has expressly required it. When, however, action is had for this purpose, there must be kept in view that general as well as reasonable and just rule, that, whenever in pursuance of law the property of an individual is to be divested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the proceeding will be ineffectual. Those provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the 1 Barrow v. Page, 5 Hayw. 97; Railroad Co. v. Lake, 71 Ill. 333; Allen v. Jones, 47 Ind. 438. [But see Easthamp ton v. Hampshire County Com'rs, 154 Mass. 424, 28 N. E. 298, 13 L. R. A. 157, where it is held that express authority is not necessary to the taking of part of a schoolhouse lot for a town way.] It cannot be presumed that any corporation has authority to exercise the right of eminent domain until the grant be shown. Phillips v. Dunkirk, &c. R. R. Co., 78 Pa. St. 177; Allen v. Jones, 47 Ind. 438. A foreign corporation, it is held in Nebraska, which may not acquire real estate, cannot condemn land indirectly through a domestic corporation. State v. Scott, 22 Neb. 628, 36 N. W. 121; Koenig v. Chicago, &c. R. R. Co., 27 Neb. 699, 43 N. W. 423. 2 "Whatever may be the theoretical foundation for the right of eminent domain, it is certain that it attaches as an incident to every sovereignty, and constitutes a condition upon which all property is holden. When the public necessity requires it, private rights to property must yield to this paramount right of the sovereign power. We have repeatedly held that the character of the work for which the property is taken, and not the means or agencies employed for its construction, determines the question of power in the exercise of this right. It requires no judicial condemnation to subject private property to public uses. Like the power to tax, it resides with the legislative department to whom the delegation is made. It may be exercised directly or indirectly by that body; and it can only be restrained by the judiciary when its limits have been exceeded or its authority has been abused or perverted." Kramer v. Cleveland & Pittsburg R. R. Co., 5 Ohio St. 140, 146. The mode of exercise is left to the legislative discretion, when not restrained by the constitution. Secombe v. Railroad Co., 23 Wall. 108. An owner is not entitled to notice of meeting of commissioners to determine the necessity of an improvement. Zimmerman v. Canfield, 42 Ohio St. 463. 8 Gillinwater v. Mississippi, &c. R. R. Co., 13 Ill. 1; Stanford v. Worn, 27 Cal. 171; Dalton v. Water Commissioners, 49 Cal. 223; Stockton v. Whitmore, 50 Cal. 554; Supervisors of Doddridge v. Stout, 9 W. Va. 703; Mitchell v. Illinois, &c. Coal Co., 68 Ill. 286; Chicago, &c. R. R. Co. v. Smith, 78 Ill. 96; Springfield, &c. R. R. Co. v. Hall, 67 Ill. 99; Powers's Appeal, 29 Mich. 504; Kroop v. Forman, 31 Mich. 144; Arnold v. Decatur, 29 Mich. 77; Lund v. New Bedford, 121 Mass. 286; Wamesit Power Co. v. Allen, 120 Mass. 352; Bohlman v. Green Bay, &c. R. R. Co., 40 Wis. 157; Moore v. Railway Co., 34 Wis. 173; United States v. Reed, 56 Mo. 565; Decatur County v. Humphreys, 47 Ga. 565; Commissioners v. Beckwith, 10 Kan. 603. adverse proceeding must show affirmatively such compliance. For example, if by a statute prescribing the mode of exercising the right of eminent domain, the damages to be assessed in favor of the property owner for the taking of his land are to be so assessed by disinterested freeholders of the municipality, the proceedings will be ineffectual unless they show on their face that the appraisers were such freeholders and inhabitants. So if a statute only authorizes proceedings in invitum after an effort shall have been made to agree with the owner on the compensation to be paid, the fact of such effort and its failure must appear.2 So if the statute vests the title to lands appropriated in the State or in a corporation on payment therefor being made, it is evident that, under the rule stated, the payment is a condition precedent to the passing of the title. And where a general railroad law 1 Nichols v. Bridgeport, 23 Conn. 189; Judson ". Bridgeport, 25 Conn. 426; People v. Brighton, 20 Mich. 57; Moore v. Railway Co., 34 Wis. 173. 2 Reitenbaugh v. Chester Valley R. R. Co., 21 Pa. St. 100; Ellis v. Pacific R. R. Co., 51 Mo. 200; United States v. Reed, 56 Mo. 565; Burt v. Brigham, 117 Mass. 307; Oregon Ry. & Nav. Co. v. Oregon, &c. Co., 10 Oreg. 444; Howland v. School Dist., 16 R. I. 257, 15 Atl. 74; Reed v. Ohio, &c. Ry. Co., 126 Ill. 48, 17 N. E. 807; Grand Rapids & I. R. R. Co. v. Weiden, 70 Mich. 390, 38 N. W. 294; West Va. Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382, it was held that if the owner appears in proceedings taken for the assessment of damages, and contests the amount without objecting the want of any such attempt, the court must presume it to have been made. 8 Stacy v. Vermont Central R. R. Co., 27 Vt. 39. By the section of the statute under which the land was appropriated, it was provided that when land or other real estate was taken by the corporation, for the use of their road, and the parties were unable to agree upon the price of the land, the same should be ascertained and determined by the commissioners, together with the costs and charges accruing thereon, and upon the payment of the same, or by depositing the amount in a bank, as should be ordered by the commissioners, the corporation should be deemed to be seized and possessed of the lands. Held, that, until the payment was made, the company had no right to enter upon the land to con struct the road, or to exercise any act of ownership over it; and that a court of equity would enjoin them from exercising any such right, or they might be prosecuted in trespass at law. This case follows Baltimore & Susquehanna R. R. Co. v. Nesbit, 10 How. 395, and Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9, where the statutory provisions were similar. In Kentucky, payment in money must be made before entry. Covington Ry. Co. v. Piel, 87 Ky. 267, 8 S. W. 449. See further State v. Seymour, 35 N. J. 47; Cameron v. Supervisors, 47 Miss. 264; St. Joseph, &c. R. R. Co. v. Callender, 13 Kan. 496; Paris v. Mason, 37 Tex. 447; People v. McRoberts, 62 Ill. 38; St. Louis, &c. R. R. Co. v. Teters, 68 Ill. 144; Sherman v. Milwaukee, &c. R. R. Co., 40 Wis. 645; Bohlman v. Green Bay, &c. R. R. Co., 40 Wis. 157; Brady v. Bronson, 45 Cal. 640; Delphi v. Evans, 36 Ind. 90; Eidemiller v. Wyandotte, 2 Dill. 876. In the case in Howard it is said: "It can hardly be questioned that without acceptance by the acts and in the mode prescribed [i. e, by payment of the damages assessed], the company were not bound; that if they had been dissatisfied with the estimate placed on the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption." Daniel, J., 10 How. 395, 399. authorized routes to be surveyed by associated persons desirous of constructing roads, and provided that if the legislature, on being petitioned for the purpose, should decide by law that a proposed road would be of sufficient utility to justify its construction, then the company, when organized, might proceed to take land for the way, it was held that, until the route was approved by the legislature, no authority could be claimed under the law to appropriate land for the purpose. These cases must suffice as illustrations of a general rule, which indeed would seem to be too plain and obvious to require either illustration or discussion.2 So the powers granted by such statutes are not to be enlarged by intendment, especially where they are being exercised by a corporation by way of appropriation of land for its corporate purposes. "There is no rule more familiar or better settled than this that grants of corporate power, being in derogation of common right, are to be strictly construed; and this is especially the case where the power claimed is a delegation of the right of eminent domain, one of the highest powers of sovereignty pertaining to the State itself, and interfering most seriously and often vexatiously with the ordinary rights of property. It has ac 1 Gillinwater v. Mississippi, &c. R. R. Co., 13 Ill. 1. "The statute says, that after a certain other act shall have been passed, the company may then proceed to take private property for the use of its road: that is equivalent to saying that that right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its intention to reserve that power until it could judge for itself whether the proposed road would be of sufficient public utility to justify the use of this high prerogative. It did not intend to cast this power away, to be gathered up and used by any who might chose to exercise it." Ibid. p. 4. 2 See further the cases of Atlantic & Ohio R. R. Co. v. Sullivant, 5 Ohio St. 276; Parsons v. Howe, 41 Me. 218; Atkinson v. Marietta & Cincinnati R. R. Co., 15 Ohio St. 21. 3 Currier v. Marietta & Cincinnati R. R. Co., 11 Ohio St. 228, 231; Miami Coal Co. v. Wigton, 19 Ohio St. 560. See ante, pp. 564, 565. [Authority to construct is not authority to condemn: City of Madison v. Daley, 58 Fed. Rep. 751; City of Tacoma r. State, 4 Wash. 64, 29 Pac. 847; Brunswick & cordingly been held that where a railroad company was authorized by law to" enter upon any land to survey, lay down, and construct its road," ""to locate and construct branch roads," &c., to appropriate land "for necessary side tracks," and "a right of way over adjacent lands sufficient to enable such company to construct and repair its road," and the company had located, and was engaged in the construction of its main road along the north side of a town, it was not authorized under this grant of power to appropriate a temporary right of way for a term of years along the south side of the town, to be used as a substitute for the main track whilst the latter was in process of construction.1 And substantially the same strict rule is applied when the State itself seeks to appropriate private property; for it is not unreasonable that the property owner should have the right to insist that the State, which selects the occasion, and prescribes the conditions for the appropriation of his property, should confine its action strictly within the limits which it has marked out as sufficient. So high a prerogative as that of divesting one's estate against his will should only be exercised where the plain letter of the law permits it, and under a careful observance of the formalities prescribed for the owner's protection. (a) The Purpose. The definition given of the right of eminent domain implies that the purpose for which it may be exercised must not be a of Atlanta, 93 Ga. 468, 21 S. E. 74; Wilder v. Boston & A. Ry. Co., 161 Mass. 387, 37 N. E. 380; Kansas City, &c. Ry. Co. . Petty, 57 Ark. 359, 21 S. W. 884; Providence & W. Ry. Co., Petitioner, 17 R. I. 324, 21 Atl. 965; Kyle v. Texas and N. O. Ry. Co., 3 Willson, § 436; Kettle River Ry. Co. v. Eastern Ry. Co., 41 Minn. 461, 43 N. W. 469, 6 L. R. A. 111; Payne . Kansas, &c. Ry. Co., 46 Fed. Rep. 546; Chicago & N. W. Ry. Co. v. Galt, 133 Ill. 657, 23 N. E. 425, 24 N. E. 674; Dennis, Long & Co. v. City of Louisville, 98 Ky. 67, 32 S. W. 271; Ewing v. Alabama, &c. Ry. Co., 68 Miss. 551, 9 So. 295; Cheney r. Atlantic City Water Works Co., 55 N. J. L. 235, 26 Atl. 95; Illinois Central Ry. Co. v. City of Chicago, 138 Ill. 453, 28 N. 1 Currier v. Marietta & Cincinnati R. R. Co., 11 Ohio St. 228. And see Gilmer v. Lime Point, 19 Cal. 47; Bensley v. Mountain Lake, &c. Co., 13 Cal. 306; Bruning v. N. O. Canal & Banking Co., 12 La. Ann. 541; West Virginia Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382. (a) [Authority to condemn cannot be delegated to a foreign corporation: St. Louis & S. F. Ry. Co. v. Foltz, 52 Fed. Rep. 627; Koenig v. Chicago, B. & Q. R. Co., 27 Neb. 699, 43 N. W. 423; Trester v. Missouri P. R. Co., 33 Neb. 171, 49 N. W. 1110; contra, New York, N. H. & H. R. Co. v. Welsh, 143 N. Y. 411, 38 N. E. 378. A Railway company cannot pass authority to condemn to a manufacturing corporation: Appeal of Hartman Steel Co., 129 Pa. St. 551, 18 Atl. 553.] mere private purpose; and it is conceded on all hands that the legislature has no power, in any case, to take the property of one individual and pass it over to another without reference to some use to which it is to be applied for the public benefit.1 "The right of eminent domain," it has been said, "does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer." 2 It seems not to be allowable, therefore, to authorize private roads 1 [The constitutional prohibition seq. See also Embury v. Conner, 3 N. Y. against taking private property for 511; Kramer v. Cleveland & Pittsburgh public use, operates by implication to R. R. Co., 5 Ohio St. 140; Pratt v. Brown, prohibit the taking of property for pri- 3 Wis. 603; Concord R. R. v. Greeley, vate use. Richards v. Wolf, 82 Iowa, 358, 17 N. H. 47; N. Y. & Harlaem R. R. Co. 47 N. W. 1044, 31 Am. St. 501; Welton v. Kip, 46 N. Y. 546, 7 Am. Rep. 385. v. Dickson, 38 Neb. 767, 57 N. W. 559, [The closing of part of a public alley 41 Am. St. 771, 22 L. R. A. 456. For a whereby the lands within the alley revert discussion of the meaning of the term to the adjoining owner, held not to be for "public" as used in this connection, see public use. Van Witsen v. Gutman, 79 51 Cent. L. Jour. 323.] In a work of Md. 405, 29 Atl. 608, 24 L. R. A. 403. An this character, we have no occasion to act giving one street railway the right consider the right of the government to to use the tracks of another is not due seize and appropriate to its own use the process, when it is apparent that it was property of individuals in time of war, not a public benefit, but a benefit to the through its military authorities. That is company, to whom the grant is made. a right which depends on the existence Philadelphia, M. & S. S. R. Co., Petiof hostilities, and the suspension, par- tion of, - Pa. St. - 53 Atl. 191.] The tially or wholly, of the civil laws. For power can only be exercised to supply recent cases in which it has been considsome existing public need or to gain ered, see Mitchell v. Harmony, 13 How. some present public advantage; not with 115; Wilson v. Crockett, 43 Mo. 216; a view to contingent results dependent on Wellman v. Wickerman, 44 Mo. 484; a projected speculation. Edgewood R. R. Yost v. Stout, 4 Cold. 205; Sutton v. Co.'s Appeal, 79 Pa. St. 257. Nor for a Tiller, 6 Cold. 593; Taylor v. Nashville, mere public convenience; such as a com&c. R. R. Co, 6 Cold. 646; Coolidge v. pany for loading and unloading freight Guthrie, 8 Am. Law Reg. N. s. 22; on and from steamboats and other craft Echols v. Staunton, 3 W. Va. 574; Wilson touching at a river port. Memphis v. Franklin, 63 N. C. 259. Freight Co. v. Memphis, 4 Cold. 419. But land not needed at once may be condemned for extra tracks of a railroad. Matter of Staten Island Transit Co., 103 N. Y. 251, 8 N. E. 548. [Under the internal improvement clause of the Constitution of South Carolina, a statute authorizing condemnation for railway connecting a private manufacturing plant with a public railway is valid. Ex parte Bacot, 36 S. C. 125, 15 S. E. 204, 16 L. R. A. 586. A private way cannot be authorized on a public highway against an adjoining proprietor who has a fee in the street. Bradley v. Pharr, 45 La. Ann. 426, 12 So. 618, 19 L. R. A. 647 2 Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 73, 22 Am. Dec. 679; Teneyck v. Canal Co., 18 N. J. 200, 37 Am. Dec. 233; Hepburn's Case, 3 Bland, 95; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Pa. St. 309; Matter of Albany Street, 11 Wend. 149, 25 Am. Dec. 618; Matter of John & Cherry Streets, 19 Wend. 659; Cooper v. Williams, 5 Ohio, 391, 24 Am. Dec. 299; Buckingham v. Smith, 10 Ohio, 288; Reeves v. Treasurer of Wood Co., 8 Ohio St. 833. See this subject considered on principle and authority by Senator Tracy in Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 955 et |