in the case of some classes of public ways, and especially of city and village streets, the dedication or appropriation to the public use shall vest the title to the land in the State, county, or city; the purposes for which the land may be required by the public being so numerous and varied, and so impossible of complete specification in advance, that nothing short of a complete ownership in the public is deemed sufficient to provide for them. In any case, however, an easement only would be taken, unless the statute plainly contemplated and provided for the appropriation of a larger interest.1 The Damaging of Property. In addition to providing for compensation for the taking of property for public use, several States since 1869 have embodied in their constitutions provisions that property shall not be "damaged" or " injured" in the course of public improvements without compensation. The construction of these provisions has not been uniform. In some cases they are held to require compensation only where like acts done by an individual would warrant the recovery of damages at common law.3 In others a 1 Barclay v. Howell's Lessee, 6 Pet. 498; Rust v. Lowe, 6 Mass. 90; Jackson v. Rutland & B. R. R. Co., 25 Vt. 150; Jackson v. Hathaway, 15 Johns. 447. 2 Constitution of Alabama, Art. XIII., § 7; Arkansas, Art. II. § 22; California, Art. I. § 14; Colorado, Art. II. § 14; Georgia, Bill of Rights, I. § 3; Illinois, Art. II. § 13; Louisiana, Art. 156; Missouri, Art. I. § 20; Nebraska, Art. I. § 21; Pennsylvania, Art. I. § 8; Texas, Art. I. § 17; West Virginia, Art. III. § 9. 3 The purpose was to impose on corporations having the right of eminent domain a liability for consequential damages from which they had been previously exempt," when for doing the same act an individual would have been liable. Edmundson v. Pittsburgh, &c. R. R. Co., 111 Pa. St. 316, 2 Atl. 404. 'Injured' means such legal wrong as would have been the subject of an action for damages at common law. Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541, 13 Atl. 690; Pa. S. V. R. R. Co. v. Walsh, 124 Pa. St. 544, 17 Atl. 186. "In all cases, to warrant a recovery it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where but for some legislative enactment an action would lie at the common law." Mulkey, J., in Rigney v. Chicago, 102 Ill. 64; followed in Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. Rep. 820; Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257. To the same effect is Trinity & S. Ry. Co. v. Meadows, 73 Tex. 32, 3 L. R. A. 565, 11 S. W. 145; [Austin v. Augusta T. Ry. Co., 108 Ga. 671, 34 S. E. 852, 47 L. R. A. 755. To "damage" property within the meaning of that term as used in the Georgia constitution there must be some physical interference with property or with a right or use appurtenant to property. A railway company is not liable, therefore, to the owner of real property for diminution in the market value resulting from the making of noise or broader scope has been given to them.1 Compensation has been awarded under them for the laying of a railroad track in the street, the fee of which the abutter does not own; 2 for a change. in the grade of the street; for cutting off egress by it; and for 3 sending forth of smoke and cinders causing personal inconvenience and discomfort only to the occupants. Austin v. Terminal Ry. Co., 108 Ga. 671, 34 S. E. 852, 47 L. R. A. 755. Under constitution providing for compensation where property is "injured," one whose property is depreciated, in common with others of the general public, by reason of noise, smoke, etc., resulting from the ordinary operation of a railway, and suffered by the public generally, is not entitled to compensation. But if by reason of the near location of a turn-table this depreciation is unusual he is entitled to compensation. Louisville Ry. Co. v. Foster, 22 Ky. L. 458, 57 S. W. 480, 50 L. R. A. 813.] In Alabama the provision in case of a change of grade is held to cover only such alterations as could not have been anticipated at the time of the first tak ing. City Council of Montgomery v. Townsend, 80 Ala. 489. The English statute covering the same ground as these provisions receives substantially the same construction as that put upon them in the Pennsylvania cases noted above. Caledonian Ry. Co. v. Walker's Trustees, L. R. 7 App. Cas. 259. 1 The word "damaged" embraces more than physical invasions of property. It is not restricted to cases where the owner is entitled to recover as for a tort at common law. Reardon v. San Francisco, 66 Cal. 492, 6 Pac. 317. The language is intended to cover "all cases in which even in the proper prosecution of a public work or purpose the right or property of any person in a pecuniary way may be injuriously affected." Gulf C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467. See Gottschalk v. Chicago, &c. R. R. Co., 14 Neb. 550, 16 N. W. 475, 17 N. W. 120; Hot Springs R. R. Co. v Williamson, 45 Ark. 429; Atlanta v. Green, 67 Ga. 386; Denver v. Bayer, 7 Col. 113, 2 Pac. 6; 4 Rigney v. Chicago, 102 Ill. 64; Chicago v. Taylor, 125 U. S. 161, Sup. Ct. Rep. 820; Chicago, K. & N. Ry. Co. v. Hazels, 26 Neb. 364, 42 N. W. 93. So if access is rendered dangerous where not Denver Circle R. R. Co. v. Nestor, 10 Col. 403, 15 Pac. 714. The damages are not restricted to such as could reasonably have been anticipated when the structure was built. Omaha & R. V. R. R. Co. v. Standen, 22 Neb. 343, 35 N. W. 183. [Depreciation in value by reason of noise, smoke, and vibration incident to the operation of a railway near by, but entirely on lands of private persons, is "damage" within meaning of the term in the constitution, though no land taken. Gainesville, H. & W. Ry. Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298.] 2 Hot Springs R. R. Co. v. Williamson, 45 Ark. 429; Columbus & W. Ry. Co. v. Witherow, 82 Ala. 190, 3 So. 23; Denver v. Bayer, 7 Col. 113, 2 Pac. 6; Denver & R. G. Ry. Co. v. Bourne, 11 Col. 59, 16 Pac. 839; McMahon v. St. Louis, &c. Ry. Co., 41 La. Ann. 827, 6 So. 640; Gulf C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467; Gottschalk v. Chicago, &c. R. R. Co., 14 Neb. 550, 16 N. W. 475, 17 N. W. 120. [Reining v. N. Y. L. & W. Ry. Co., 128 N. Y. 157, 623, 28 N. E. 640, 14 L. R. A. 133; Jones v. Erie & W. V. Ry. Co., 151 Pa. St. 30, 25 Atl. 134, 31 Am. St. 722, 17 L. R. A. 758. So damages have been awarded under such circumstances though no such specific constitutional provision. Kansas N. & D. Ry. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051, 16 Am. St. 479.] So of a street railroad. Campbell v. Metrop. St. Ry. Co., 82 Ga. 320, 9 S. E. 1078. In Illinois it is so held as to a track in a road: Chicago & W. I. R. R. Co. v. Ayres, 106 Ill. 511; but not as to one laid in the street of a city by its permission under legislative authority. Olney v. Wharf, 115 Ill. 519, 5 N. E. 366. Nor can a railroad which crosses a street complain that another crosses it in the street. Kansas City, St. J., &c. R. R. Co. v. St. Joseph, &c. Co., 97 Mo. 457, 10 S. W. 826. 3 Reardon v. San Francisco, 66 Cal. cut off. Pa. S. V. R. R. Co. v. Walsh, 124 Pa. St. 544, 17 Atl. 186, 10 Am. St. 611. See also Quigley v. Pa. S. V. R. R. Co., 121 Pa. St. 35, 15 Atl. 478. It has other damage from the construction of public works. been denied, however, where a railway viaduct has been built on the other side of a narrow street from the plaintiff's lot,2 and where the street has been rendered impassable at some distance from the property of the complaining party, and where the damage results from the operation and not the construction of the work.1 Compensation for Property Taken. It is a primary requisite, in the appropriation of lands for public purposes, that compensation shall be made therefor. Eminent domain differs from taxation in that, in the former case, the citizen is compelled to surrender to the public something beyond his due proportion for the public benefit. The public seize and appropriate his particular estate, because of a special need for it, and not because it is right, as between him and the government, that he should surrender it.5 To him, therefore, the benefit and protection he receives from the government are not sufficient compensation; for those advantages are the equivalent for the taxes he pays, and the other public burdens he assumes in common with the community at large. And this compensation must be 492, 6 Pac. 317; Atlanta v. Green, 67 Ga. 386; Moon v. Atlanta, 70 Ga. 611; Sheehy v. Kansas City, &c. Co., 94 Mo. 574, 7 S. W. 579; New Brighton v. Peirsol, 107 Pa. St. 280; Hutchinson v. Parkersburg, 25 W. Va. 226. So as to the establishment of the grade. Harmon v. Omaha, 17 Neb. 548, 23 N. W. 503. But if after a grade is established one buys and the walk is then cut down to grade, there is no damage. Denver v. Vernia, 8 Col. 399, 8 Pac. 656. In Alabama there is none, if the change might have been anticipated. City Council of Montgomery v. Townsend, 80 Ala. 489. 1 In Omaha Horse Ry. Co. v. Cable Tramway Co., 32 Fed. Rep. 727, the laying of a cable road by the side of a horse railroad was held a damaging. So of the erection of a bridge near a ferry. Mason v. Harper's Ferry B. Co., 17 W. Va. 396. But the clogging of a stream caused by the removal of timber incidental to proper railroad construction is not a ground for damages. Trinity & S. R. Ry. Co. v. Meadows, 73 Tex. 32, 11 S. W. 145. 2 Pennsylvania R. R. Co. v. Lippincott, 116 Pa. St. 472, 9 Atl. 871; Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541, 13 Atl. 690, 4 Am. St. 659. [See Pennsylvania, &c. Ry. v. Walsh, 124 Pa. St. 544, 17 Atl. 186, 10 Am. St. 611, where these cases are interpreted as holding that the constitutional provision was not intended to apply to injuries which are the result of the operation of the railway, as distinguished from such as result from its construction. It is here held that where access to abutting property is cut off or rendered dangerous, the provision is applicable.] 8 Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257; East St. Louis v. O'Flynn, 119 Ill. 200, 10 N. E. 395. + Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541, 13 Atl. 690, 4 Am. St. 659. See Caledonian Ry. Co. v. Walker's Trustees, L. R. 7 App. Cas. 259. Nor may damages be given for negligence in the construction. Edmundson v. Pittsburgh, &c. R. R. Co., 111 Pa. St. 316, 2 Atl. 404; Atlanta v. Word, 78 Ga. 276. Contra, Omaha & R. V. R. R. Co. v. Standen, 22 Neb. 343, 35 N. W. 183. 5 People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; Woodbridge v. Detroit, 8 Mich. 274; Booth v. Woodbury, 32 Conn. 118. pecuniary in its character, because it is in the nature of a payment for a compulsory purchase.1 The time when the compensation must be made may depend upon the peculiar constitutional provisions of the State. In some of the States, by express constitutional direction, compensation must be made before the property is taken. No constitutional principle, however, is violated by a statute which allows private property to be entered upon and temporarily occupied for the purpose of a survey and other incipient proceedings, with a view to judging and determining whether or not the public needs require the appropriation, and, if they do, what the proper location shall be; and the party acting under this statutory authority would neither be bound to make compensation for the temporary possession, nor be liable to action of trespass. When, however, the land has been viewed, and a determination arrived at to appropriate it, the question of compensation is to be considered; and in the absence of any express constitutional provision fixing the time and the manner of making it, the question who is to take the property whether the State, or one of its political divisions or municipalities, or, on the other hand, some private corporation — may be an important consideration. When the property is taken directly by the State, or by any municipal corporation by State authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right of eminent domain, that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by the law by which the party can obtain compensation, and that an impartial tribunal is provided for assessing it. The decisions upon this point assume that, when the 1 The effect of the right of eminent domain against the individual " amounts to nothing more than a power to oblige him to sell and convey when the public necessities require it." Johnson, J., in Fletcher v. Peck, 6 Cranch, 87, 145. And see Bradshaw v. Rogers, 20 Johns. 103, per Spencer, Ch. J.; People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; Carson v. Coleman, 11 N. J. Eq. 106; Young v. Harrison, 6 Ga. 130; United States v. Minnesota, &c. R. R. Co., 1 Minn. 127; Railroad Co. v. Ferris, 26 Tex. 588; Curran v. Shattuck, 24 Cal. 427; State v. Graves, 19 Md. 351; Weckler v. Chicago, 61 Ill. 142, 147. [Constitutional requirement of compensation is not satisfied by taxing back on portion of lands not taken, the value of that taken and the amount of damages for injury to that not taken. This results in a taking without compensation. City of Bloomington v. Latham, 142 Ill. 462, 32 N. E. 506, 18 L. R. A. 487.] The power of a treaty is such that it may take private property without compensation. Cornet v. Winton, 2 Yerg. 143. 2 Bloodgood v. Mohawk & Hudson R. R. Co., 14 Wend. 51, and 18 Wend. 9; Cushman v. Smith, 34 Me. 247; Nichols v. Somerset, &c. R. R. Co., 43 Me. 356; Mercer . McWilliams, Wright (Ohio), 132; Walther v. Warner, 25 Mo. 277; Fox v. W. P. R. R. Co., 31 Cal. 538; State v. Seymour, 35 N. J. 47, 53. 3 Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9; Rogers v. Brad State has provided a remedy by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction; since the property of the municipality, or of the State, is a fund to which he can resort without risk of loss.1 shaw, 20 Johns. 744; Calking v. Baldwin, 4 Wend. 667, 21 Am. Dec. 168; Case v. Thompson, 6 Wend. 634; Fletcher v. Auburn & Syracuse R. R. Co., 25 Wend. 462; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 Ill. 518; Callison v. Hedrick, 15 Gratt. 244; Jackson v. Winn's Heirs, 4 Lit. 828; People v. Green, 3 Mich. 496; Lyon v. Jerome, 26 Wend. 485, 497, per Verplanck, Senator; Gardner v. Newburg, 2 Johns. Ch. 162, 7 Am. Dec. 526; Charlestown Branch R. R. Co. v. Middlesex, 7 Met. 78; Harper v. Richardson, 22 Cal. 251; Baker v. Johnson, 2 Hill, 342; People v. Hayden, 6 Hill, 359; Orr v. Quimby, 54 N. H. 590; Ash v. Cummings, 50 N. H. 591; White v. Nashville, &c. R. R. Co., 7 Heisk. 518; Simms v. Railroad Co., 12 Heisk. 621; State v. Messenger, 27 Minn. 119, 6 N. W. 457; Chapman v. Gates, 54 N. Y. 132; Hamersley v. New York, 56 N. Y. 533; Loweree v. Newark, 38 N. J. 151; Brock v. Hishen, 40 Wis. 674; Long v. Fuller, 68 Pa. St. 170 (case of a school district); Smeaton v. Martin, 57 Wis. 364, 15 N. W. 403; Com'rs of State Park v. Henry, 38 Minn. 266, 36 N. H. 874. [Provision requiring payment into court in case of an appeal from assessment, of double the amount of the assessment is adequate. Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct. Rep. 965; Sweet v. Rechel, 159 U. S. 380, 40 L. ed. U. S. 188, and note, 16 Sup. Ct. Rep. 43; Backus v. Fort St. Union Depot Co., 169 U. S. 557, 42 L. ed. U. S. 853, and note, 18 Sup. Ct. Rep. 445; Consumer's Gas Trust Co. v. Harless, 131 Ind. 446, 29 N. E. 1062, 15 L. R. A. 505. But provision for payment into court of only the amount awarded is not sufficient. Harrisburg C. & C. T. R. Co. e. Harrisburg & M. E. Ry. Co., 177 Pa. St. 585, 35 Atl. 850, 34 L. R. A. 439.] The same rule applies to the United States. Great Falls M'f'g Co. v. Garland, 25 Fed. Rep. 521: "Although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid before property It is thus taken, it is, I apprehend, the settled doctrine, even as respects the State itself, that at least certain and ample provision must first be made by law (except in cases of public emergency), so that the owner can coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay; otherwise the law making the appropriation is no better than blank paper. Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9. The provisions of the statute prescribing the mode of compensation in cases like the present, when properly understood and administered, come fully up to this great fundamental principle; and even if any doubt could be entertained about their true construction, it should be made to lean in favor of the one that is found to be most in conformity with the constitutional requisite." People v. Hayden, 6 Hill, 359, 361; [Branson v. Gee, 25 Oreg. 462, 36 Pac. 527, 24 L. R. A. 355; Old Colony Ry. Co. v. Framingham Water Co., 153 Mass. 561, 27 N. E. 662, 13 L. R. A. 332; Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. Rep. 43.] "A provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property." Gardner v. Newburg, 2 Johns. Ch. 162, 168, 7 Am. Dec. 526; Buffalo, &c. R. R. Co. v. Ferris, 26 Tex. 588; Ash v. Cummings, 50 N. H. 591, 613; Haverhill Bridge Proprietors v. County Com'rs, 103 Mass. 120, 4 Am. Rep. 518; Langford v. Com'rs of Ramsay Co., 16 Minn. 375; Southwestern R. R. Co. v. Telegraph Co., 46 Ga. 43. [Statute making no provision for measuring compensation is void. Mulligan v. City of Perth-Amboy, 52 N. J. L. 132, 18 Atl. 670. See also Tuttle v. Justice of Knox County, 89 Tenn. 157, 14 S. W. 486; Cherokee Nation v. Southern K. Ry. Co., 135 U. S. 641, 10 Sup. Ct. Rep. 965; Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. Rep. 48.] 1 In Commissioners, &c. v. Bowie, 34 Ala. 461, it was held that a provision by |