ture had the undoubted right to determine when the public interest requires the assumption of private property, so, it seems to me to be the better construction of the constitution, that it shall rest in their wisdom to determine the nature and kind of compensation to be made, and also to point out the tribunal by whom the amount may be ascertained. Experience has shown, that the commonwealth, rather than individuals, have most reason to complain of the assessment of damages when lands have been appropriated to public use." Huston, J., in Satterlee v. Matthewson, (a) said, the accuracy of the decision in the case of Van Horne's Lessees v. Dorrance, had been questioned. "However this may be, yet there is one thing certain, that if it be considered a correct exposition of the constitution, the legislature have violated the provisions in question in more instances than one."

§ 317. In the case last cited, as well as several others which have come to our notice, it has been supposed that acts of the legislature providing for the assessment of damages to the owner for property taken for public use, which contain a provision, that in making such assessments an estimate shall be made of the benefits to accrue from such public use to the owner, and directing the amount of such estimated benefit to be deducted from the value of the property taken, were in direct conflict with the principle laid down in Van Horne's Lessces v. Dorrance. It was upon such an assumption Mr. Justice Huston made the remark above quoted. But we cannot perceive that there is any such conflict in reality. The just compensation the constitution demands shall be given to the owner, it seems to us, is fully provided for within the spirit of the constitution, when the party has a full equi

(a) 16 Serg. & Rawle, 179.

valent for the property taken; that equivalent must, and in justice ought to be ascertained, by estimating the actual damage the party sustains by the loss of the property taken. That damage is the value of the property, less the actual amount of benefit accruing to the residue of the property of the same individual, by reason of the use made of that taken. The benefit is in part an equivalent for the property taken, and as such equivalent, in the language of the constitution it is, to that extent, a "just compensation." Such acts of legislation have been for a long period acquiesced in, and have received a judicial sanction. In most turnpike acts, in the estimation of damages, the viewers are required to take into consideration the advantages accruing from the road, as well as the injury done to the owner of the land taken. The same principle has been engrafted into the canal system of several states, and has also been incorporated into many acts in reference to the opening or widening public streets in cities and villages. In the case of Livingston v. The Mayor, &c., of N. Y.,(a) such a provision received a judicial sanction. The court for the correction of errors in that case held, that the benefit accruing to a person whose land was taken for a street, the increased value of adjacent property belonging to him might be set off against the loss or damage sustained by him by the taking of his property for a street, and if equal to the damage or loss, it was a just compensation to the extent of such benefit for the property taken. In some instances such acts go still farther, and direct an assessment of benefit to lots owned by persons whose land is not taken for public use, for the advantage of those who may be injured by the improvement; such acts have also received a judicial sanction.(b)

(a) 8 Wend. 85.

(3) McMaster v. The Commonwealth, 3 Watts' R. 296.

318. We very much doubt the accuracy of, nor can we yield our assent to the doctrine laid down by Mr. Justice Rogers, in the case of McMaster v. The Commonwealth, above cited, that "it should rest in the wisdom of the legislature to determine the nature and kind of compensation to be made." It seems to us that such a doctrine ought not to be tolerated for a moment; it would, if sanctioned, authorize if not lead to an abuse which would, in effect, virtually remove all the protection it was the design of the constitution to throw around private property, as a shield against legislative aggression. If the legislature may, at its discretion, determine the nature and kind of compensation, if superadded to this such determination is to be conclusive upon the citizen, and that without his consent, the legislature, in the exercise of such a discretion, might determine as an equivalent whatever thing it might choose to designate, and force upon the citizen that which to him would be utterly worthless, nay more, that which would prove to be a curse, instead of just compensation. We cannot resist the conclusion in our mind, that the extent of the actual damages sustained, calculated upon the principle above stated by us, should be compensated by an actual payment of an equivalent in that which, by the law of the land, would be deemed a lawful tender in the payment of any other pecuniary demand. The moment private property is taken for public use the obligation on the part of the government to compensate arises, that obligation becomes, in fact, a debt, and, as such, should be paid in money. Indeed, state governments are expressly inhibited from making any thing but gold and silver coin a lawful tender for a debt. This inhibition ought to be construed as extending to such a case as this, for compensation due is in fact a debt.

§ 319. Mr. Justice Patterson, after stating the rule laid down by him in Van Horne's Lessees v. Dorrance,

uses the following clear and forcible argument: "It is contended, that the legislature may judge of the necessity of interposing their despotic authority; that it is a right of necessity upon which no other power in government can decide; that no civil institution is perfect; and that cases will occur in which private property must yield to urgent calls of public utility, or general danger. Be it so; but then it must be upon complete indemnification to the individual. Agreed. But who shall judge of this? Did there exist a state necessity, that the legislature, or persons solely appointed by them, must admeasure the compensation or value of the land seized or taken, and the validity of the title thereto? Did a third state necessity exist, that the proprietor must take lands by way of equivalent for his land? And did a fourth state necessity exist, that the value of this land equivalent must be adjusted by the board of property without the consent of the party, or the intervention of a jury? Alas! how necessity begets necessities. They rise upon each other and become endless. The proprietor stands afar off, a solitary and unprotected member of the community, and is stripped of his property without his consent, without a hearing, without notice; the value of that property judged upon without his participation, or the intervention of a jury, and the equivalent therefor in lands ascertained in the same way. If this be the legislation of a republican government, in which the preservation of property is made sacred by the constitution, I ask wherein does it differ from the mandate of an Asiatic Prince ?"

§ 320. Under the constitution of New Hampshire an express provision is made, that "In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore used and practised, the parties shall have a right to a trial by a jury." It has however been held, where

an act of the legislature took the property of a corporation for public use, in the exercise of this power of eminent domain, it was not necessary that the act should provide for a trial by jury to ascertain the damages occasioned by the laying out of a highway.(a) This decision was placed upon the ground that by a long course of legislation the damages occasioned by the laying out of highways had been assessed by the court or a committee, and no provision was found for the intervention of a jury in cases of that character. It had therefore been otherwise used and practised for nearly a century and a half before the adoption of the constitution, and a similar practice had prevailed since; hence, this case was not only within the express language of the exception, but there was abundant evidence that it had been within the view of the framers of the constitution.

§ 321. Until just indemnity is afforded to the party, the power of taking his property cannot be lawfully exercised. So strictly is this rule adhered to, that if an attempt is made under a statute to take such property without such an indemnity, a court of chancery will interpose by way of injunction.(6) Although it is true that the legislature may appropriate the lands of another to public uses without his assent, provided a reasonable compensation be made to him therefor; but without such compensation such an appropriation would be unconstitutional and void.(c)

§ 322. In Rogers v. Bradshaw, (d) it was held, that where private property was taken for public use, it was

(a) Backus v. Lebanon, 11 N. H. R. 19.

(b) Gardner v. Trustees of Newburgh, 2 John. Ch. R. 162.

(c) Perry v. Wilson, 7 Mass. R. 393. Stephens v. Middlesex Canal, 12 id. 466. Thatcher v. Dartmouth Bridge, 18 Pick. R. 501.

(d) 20 Johns. R. 735.