land which the company had obtained under their act of incorporation; and thereby the company is brought directly within the statute under which the commissioners have proceeded, and which directs them to estimate the damage to be sustained by the owners of such lands and buildings as may be affected by the improvement." The learned Judge considered, that the case of the Seneca Road Company v. The Auburn and Rochester Railroad Company,1 was decisive of the point, that the turnpike company in question was entitled to recover the damage which it had actually sustained.

§ 98. If a turnpike company complete their road, and put the same in use, and erect a toll-gate thereon opposite the land of A, and A opens a road on his own land parallel to, and adjoining the turnpike road, so that the same is passable for travellers, and is used by them to avoid the toll-gate, a court of equity has power to order A's road to be closed.2

§ 99. A case of claim for damages, for remotely consequential damage, is that of Gould v. Hudson River Railroad Company. The defendants, in this case, it appeared, (under, and in pursuance of, their charter, authorizing them to construct their railroad from New York to Albany,) entered upon the Hudson River, in front of the plaintiff's farm, and between the ordinary high and the ordinary low water mark, raised a line of solid embankment across the whole river, in front of said farm, about five feet in height above the ordinary high-water mark, and formed a barrier to the passage of vessels, boats, &c. through the same, and laid a railroad track upon such embankment, and ran their cars thereon; and this without the consent of the plaintiff, and without making or tendering any

1 Seneca Road Co. v. Auburn and Rochester Railroad Co. 5 Hill, (N. Y.) R.

170.

2 Auburn, &c. Plank-road v. Douglass, 12 Barb. (N. Y.) Sup. Ct. R. 553.

3 Gould v. Hudson River Railroad Co. 12 Barb. (N. Y.) Sup. Ct. R. 616; 2 Selden, (N. Y.) R. 522.

compensation for damage sustained thereby. It was held, that the legislature had not transcended their authority in making the grant, (the State owning to high-water mark); and that the defendants were authorized to do the acts complained of, the plaintiff not having sustained any injury which was actionable.

§ 100. Again, where a municipal corporation, under an authority contained in its charter, grades and levels a street, an action will not lie by an adjoining owner, whose lands are not actually taken, for consequential damages to his premises, there being no want of care or skill in the execution of the work, and no provision in the charter for damages of that sort; because an act done by lawful authority, if done in a proper manner, will not subject the party doing it to an action for the consequences. The corporation of the city of Brooklyn regularly laid out and opened a street, and afterwards proceeded to grade the street for public use, and in thus doing, removed a high bank which constituted a natural support to the premises of an adjoining owner, so that a portion of his land fell. It was held, that the adjoining owner could not maintain an action on the case for the damage sustained by him.1

1 Radcliff's Ex'rs v. Mayor, &c. of Brooklyn, 4 Comst. (N. Y.) R. 195. In Thurston v. Hancock, (12 Mass. R. 220,) the plaintiff had built a valuable house on Beacon Hill, in Boston, one side of the house being within two feet of the side of his land, and had taken the precaution to sink his foundation fifteen feet below the ancient surface of the ground. Seven years afterwards, the defendant commenced digging and carrying away the earth from his adjoining land, and dug to the depth of from thirty to forty-five feet below the natural surface of the ground; by reason of which the foundation of the plaintiff's was rendered insecure, and he was obliged to take his house down; yet it was held, that no action lay for the injury to the house. A similar decision was made in Lasala v. Hobrok, 4 Paige, (N. Y.) Ch. R. 169. For a valuable collection of the authorities as to what a man may and may not do in the enjoyment of his own property, assuming that he acts with due care and proper skill, see the opinion of Ch. J. Bronson, in Radcliff's Ex'rs, &c. ub. sup.

6. Provision for Mode of Indemnity, and Proceedings under it.

§ 101. The legislature, in the exercise of its authority of taking private property, is not solely, by itself, to fix the amount of compensation to be awarded to the owner. This can constitutionally be ascertained, fixed and awarded only in three modes; first, by a mutual stipulation between the legislature or its agents, and the proprietor; secondly, by commissions mutually agreed on; and, thirdly, by the intervention of jury, or other mode equally equitable, as by commissioners or appraisers appointed by law. The government is clearly bound to provide some tribunal for indemnity, before which each party may meet and discuss their claims on equal terms;1 and herein is the important constitutional guard, and the proper degree of restraint upon the exercise of legislative authority on such occasions.2 The damages, of course, are to be estimated by persons who have previously expressed no opinion.3

1 2 Kent, Comm. 339, note.

2 Van Horne's Lessee v. Dorrence, 2 Dallas, (Penn.) R. 313; Beekman v. Saratoga and Schenectady Railroad Co. 3 Paige, (N. Y.) Ch. R. 45; Pennsylvania Railroad Co. v. Heister, 8 Barr, (Penn.) R. 445; Wyman v. Lexington and West Cambridge Railroad Co. 13 Met. (Mass.) R. 316; Morse v. Boston and Maine Railroad Co. 2 Cush. (Mass.) R. 536; Walker v. Boston and Maine Railroad Co. 3 Cush. (Mass.) R. 91; Fitchburg Railroad Co. v. Boston and Maine Railroad Co. 3 Cush. (Mass.) R. 58; Field v. Vermont and Massachusetts Railroad Co. 4 Cush. (Mass.) R. 450; Vermont Central Railroad Co. v. Baxter, 22 Vt. R. 365; Nashville, &c. Railroad Co. v. Concordia, 11 Humph. (Tenn.) R. 449; Baltimore Turnpike case, 5 Binn. (Penn.) R. 481; Armstrong v. Jackson, 1 Blackf. (Ind.) R. 374; Haight v. Morris Aqueduct, 4 Wash. (Cir. Ct.) R. 601; Vischer v. Hudson River Railroad Co. 15 Barb. (N. Y.) Sup. Ct. R. 37. "Liberties," says Guizot, "are nothing unless they have become rights-positive rights formally recognized and consecrated. Rights, even when recognized, are nothing so long as they are not intrenched within guarantees. And lastly, guarantees are nothing so long as they are not maintained by forces independent of them in the limit of their rights. Convert liberties into rights, surround rights by guarantees, intrust the keeping of these guarantees to forces capable of maintaining-such are the successive steps in the progress towards a free government." Guizot, on Rep. Gov. 302.

3 Redding v. Dilley, 4 Zabrisk. (N. J.) R. 209.

§ 102. The trial by jury, as generally secured by a State constitution, is applicable to trials of issues of fact in civil and criminal cases in courts of justice, and has no relation to assessments of damages sustained by owners of property taken for public uses.1 Accordingly, the legislature of a State may (as has long been the practice) direct the mode of ascertaining damages, either by a jury or by commissioners.2 The Constitution of the State of New York provides that assessments for damages for property taken for public uses shall be made by a jury or commissioners, "as shall be prescribed by law;" and the Courts of the State, hold, that no law prescribing such method having been passed since the Constitution, the board of supervisors should proceed to assess such damages according to the law previously in existence, until the legislature should prescribe a different mode under the Constitution; and that a mandamus would lie, on the relation of the owner of the land so taken.3 An act of the State of New Jersey, incorporating a

1 Livingston v. Mayor of Brooklyn, 8 Wend. (N. Y.) R. 85.

2 Ibid. Bonaparte v. Camden and Amboy Railroad Co. 1 Bald. (Cir. Ct.) R. 222; Willyard v. Hamilton, 7 Ham. (Ohio R. part 2d.) 112; M'Masters v. Commonwealth, 3 Watts, (Penn.) R. 292; Bloodgood v. Mohawk, &c. Railroad Co. 14 Wend. (N. Y.) R. 51; S. C. 18 Wend. (N. Y.) R. 9.

3 People v. Supervisors, 3 Barb. (N. Y.) Sup. Ct. R. 332. Duty of Commissioners, by the General Railroad Law of New York: mode, proceedings, and compensation to be awarded-their report. § 16. The commissioners shall take and subscribe the oath prescribed by the twelfth article of the Constitution. Any one of them may issue subpoenas, administer oaths to witnesses, and any three of them may adjourn the proceedings before them from time to time, in their discretion. Whenever they meet, except by the appointment of the Court or pursuant to adjournment, they shall cause reasonable notice of such meetings to be given to the parties who are to be affected by their proceedings, or their attorney or agent. They shall view the premises described in the petition and hear the proofs and allegations of the parties, and reduce the testimony, if any is taken by them, to writing; and after the testimony is closed in each case, and without any unnecessary delay, and before proceeding to the examination of any other claim, a majority of them, all being present and acting, shall ascertain and determine the compensation, which ought justly to be made by the company to the party or parties owning or interested in the real estate appraised by them; and in determining the amount of such compensation, they shall not make an

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railroad company, providing for the assessment of damages to the owners of land through which it passes, and appointing commissioners, instead of a jury, to estimate the damages, was held to be constitutional. By a long course of legislation in the State of New Hampshire, the damages occasioned by the laying out of highways were to be assessed by the Court, or by a committee; and no provision is found for the intervention of a jury in cases of this character. In Massachusetts, where proceedings for the assessment of damages by a jury for land taken by a railroad company, are conducted in part by a coroner, under the Revised Statutes, section .23, and in part by the sheriff, it is the duty of each of those officers to certify proceedings.3

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allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the construction of the proposed railroad. They, or a majority of them, shall also determine and certify what sum ought to be paid to a general or special guardian or committee of an infant, idiot or person of unsound mind, or to an attorney appointed by the Court to attend to the interest of any unknown owner or party in interest, not personally served with notice of the proceedings, and who has not appeared, for costs, expenses and counsel fees. They shall make a report to the Supreme Court, signed by them or a majority of them, of the proceedings before them, with the minutes of the testimony taken by them, if any. Said commissioners shall be entitled to three dollars for their expenses and services for each day they are engaged in the performance of their duties, to be paid by the company.

1 Bonaparte v. Camden and Amboy Railroad Co., Bald. (Cir. Ct.) R. 205. A charter of a railroad company, giving them authority to enter upon lands, &c., for their road, provided for the appointment of commissioners "to examine and appraise the said land and to assess damages." The order of the Court, appointing the commissioners directed them "to examine and appraise the said lands and to assess the damages to be paid by the said company for the said lands, so required as aforesaid, pursuant to the provisions of the above recited act.” Held, that the order was sufficient. Doughty v. Somerville, &c. Railroad Co. 1 New Jer. R. 442.

2 Breck v. Lebanon, 11 N. Hamp. R. 19. And see Baltimore Turnpike case, 5 Binn. (Penn.) R. 481; Armstrong v. Jackson, 1 Blackf. (Ind.) R. 374; Haight v. Morris Aqueduct, 4 Wash. (Cir. Ct.) R. 601.

3 Pittsfield, &c. Railroad Co. v. Foster, 1 Cush. (Mass.) R. 480. Where a jury summoned to reassess damages for land taken by a railroad, rendered a verdict in which they assessed the damages at a certain sum, "with interest thereon