not necessary the amount of the compensation should be actually ascertained and paid before such property was taken and appropriated to the public use. It was sufficient if a certain and adequate remedy was provided by which the individual could obtain such compensation without any unreasonable delay. In a subsequent case the above rule was qualified by Chancellor Kent. The doctrine was countenanced by him, that it was not even necessary a remedy for obtaining compensation should be provided.(a) Chancellor Walworth, however, has refused to sanction the reasoning of Chancellor Kent in the case last cited. He held, that before the legislature could authorize the agents of the state, or others, to enter upon, or occupy, or destroy, or materially injure the private property of an individual, except in cases of actual necessity which would not admit of any delay, an adequate and certain remedy must be provided whereby the owner of such property might compel the payment of his damages or compensation. He was not bound to trust to the justice of the government to make provision for such compensation by future legislation. By this he did not intend to decide, that the legislature might not authorize a mere entry upon the land of another, for the purposes of examination, or of making preliminary surveys, which otherwise would be a technical trespass, but no real injury to the owner of the land, although no previous provision was made by law to compensate the individual for his property if it should afterwards be taken for public use. But it was not the intention of the framers of the constitution to authorize the property of the citizen to be taken, and actually ap propriated to the use of the public, and compel him to trust to the future justice of the legislature to provide

(a) Jerome v. Ross, 7 Johns. Ch. R. 344.

him a compensation therefor. The compensation must be either ascertained and paid to him before his property was thus taken and appropriated, or an appropriate remedy must be provided, and an adequate fund whereby and out of which he might obtain such compensation, through the medium of courts of justice, if those whose duty it was to make such compensation should refuse to do it. In the ordinary case of lands taken for the making of public highways, or for the use of the state canals, such a remedy was provided, if the town, county, or state officers refused to do their duty, in ascertaining, raising, and paying such compensation, in the mode prescribed by law; the owner of the land had a remedy by mandamus to compel them to perform their duty. In such cases the public purse, or the property of the town or county upon which the assessment was to be made, might be justly considered an adequate fund: but when it was left to future legislation, he would have no such remedy against the legislature to compel the passage of the necessary laws, either to ascertain the amount of compensation he was to receive, or the fund out of which he was to be paid. He also held that the citizen whose property was thus taken from him without his assent, was not bound to trust to the solvency of an individual, or even a corporation, for such compensation.(a)

§ 323. When the case last cited was before the supreme court, (b) that court held, that the legislature might authorize a rail road company, by their agents, surveyors and engineers, to enter upon the lands of an individual for the purpose of making a survey and examinations, so as to determine the most advantageous

(a) Bloodgood v. The Hudson and Mohawk R. R. Co., 18 Wend. 17. (b) Bloodgood v. The Hudson and Mohawk R. R. Co., 14 Wend. 51.

route for the proper line or course whereon to construct their road or way, previous to acquiring the title to lands required for that purpose, or the assessment and payment of damages. It also held, that the company might enter upon the land in like manner, previous to acquiring title to the land, or having the damages appraised or paying the same. The purchase of the land it held, was a condition precedent to the vesting of the fee simple, but not to the right to enter, and take possession and use the land for the purposes of a rail road. But when this case came under review in the court for the correction of errors,(a) that decision was overruled, and it was decided that it was a condition precedent that the damages should be assessed and paid, before the company had any right to enter upon and actually appropriate the land for the purposes of a rail road. It was not to be presumed the legislature intended, or that it meant to authorize the company to enter upon the land of an individual, pull down his buildings and other erections, before assessment and payment for the same; or to leave the individual to seek an uncertain remedy by action. The decision above referred to, by the court of dernier resort, settles the construction to be put upon this clause in our constitution in this respect.

§ 324. The constitution of Mississippi is explicit. "The compensation shall be first made." Under the provisions of that constitution it has been held, payment is a condition precedent; such payment must precede the seizure for public use. Hence an act which authorized such seizure for public use without providing such previous compensation was declared unconstitutional and void.(b)

(a) 18 Wend. 9.

(b) Thompson v. Grand Gulf Rail Road and Banking Company, 3 How. Miss. R. 240.

§ 325. The question has frequently arisen, what use of property, under this right of eminent domain, was to be regarded as a public use. This question, as we have already seen, is not without embarrassment, as the line of demarcation between a use that is public and one that is strictly private is not easily drawn. One thing, however, is certain, the necessities of the public for the use to which the property is to be appropriated must exist as the basis upon which the right is founded. Hence it is, that where the property is wanted merely for ornamental purposes, this right cannot be exercised, as the purpose must be both necessary and useful.(a) It must also be a public one. The reason why it must be a public and not a mere private one seems to be, that the right itself is one founded upon the exigencies of the public, which are paramount to private interest, and upon the principle of an implied assent on the part of those who hold property, that it shall yield to the paramount demands of the public exigencies. But so far as it regards private interest, and private rights, there is no such implied assent, nor is there any such thing as a preponderance in favor of a mere private right of one citizen over the private right of another citizen, which should turn the scale against the right of the one in favor of the right of the other. Chancellor Walworth has, in one case, recognized the doctrine, that the right of eminent domain is founded upon the implied assent of the citizen. He held, "it was no part of the contract between the crown and its grantees, or their assigns, that the property should not be taken for public use upon paying a just compensation, whenever the public interest or necessities required it should be so taken. All separate interest of individuals in property is held of the

(a) Paterson, J., 12 Pick. 480.

government under this tacit agreement, or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remained in the government, or in the aggregate body of the people, in their sovereign capacity, and they had a right to resume the possession of the property in the manner directed by the constitution and the laws of the state whenever the public interest required it." It was doubtless from the view of the non-existence of the right to take private property for mere private purposes, no provision was made in our written constitution providing for compensation in case private property should be taken for private purposes. It has been justly said, "if the right exists to take private property for private purposes, it may, under our constitution, be exercised without any reference to compensation."

§326. That the use must be a public one has frequently been recognized in the courts of this state, under its former constitution, which provided, "private property shall not be taken for public use without just compensation." In The Matter of Albany Street,(a) it was determined, that the corporation of New York had not the power to take more of the land of an individual for the purpose of a street than was actually required for that purpose, and that an act relating to the city of New York, which authorized the commissioners of assessment and estimate to include in their assessment the whole of a lot, when part only was required for the use of a street, by means whereof the fee became vested in the corporation, upon the confirmation of the report, was unconstitutional, when such lands were taken without the assent of the owner. Chief Justice Savage in that case said, "If this provision was intended merely to give

(a) 11 Wend. 149.

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