Stat. 1893, ch. 337, § 1, provides "The city of Cambridge, by its city council, at any time after the passage of this act, may take and hold, by purchase or otherwise, any and all such real estate and lands within said city as it may deem advisable, upon the recommendation of the board of park commissioners hereinafter mentioned, and may lay out, maintain and improve the same as a public park or parks. The fee of such real estate and lands shall vest in said city." Under this statute it is held that the city cannot take for park purposes lands within the location of a railroad. Boston & A. R. Co. v. City Council, 166 Mass. 224 (44 N. E. Rep. 140). The court say: "While the legislature may authorize the taking for a public use of property already appropriated to a different public use, and such authority may be given without an express statement that the property was already so appropriated, the legislature will not be deemed to have given such authority unless its intention to do so has been plainly manifested." Under § 1240, Cal. Code Civ. Proc., providing that property appropriated for public use shall not be taken, unless for a more necessary public use than that to which it has already been appropriated, a plaintiff railroad company had the right to appropriate a part of a street, purchased by defendant railroad company, subject to the right of the public for highway purposes, such appropriation by plaintiff being necessary for the construction of its road, but not materially curtailing defendant's right to operate its road. Southern Pacific R. Co. v. Southern California R. Co. et al, 111 Cal. 221 (43 Pac. Rep. 602). Water rights which have already been granted or appropriated for "a quasi public use" may be appropriated to the use of the state for the preservation of the public health and safety upon just compensation being made. Van Reipen v. Mayor of Jersey City, 58 N. J. L. 262 (33 Atl. Rep. 740). Depot grounds may be taken for the purposes of a street even though it interferes with the convenience of the railroad company but does not deprive it of the right to operate its road. Chicago, M. & St. P. Ry. Co. v. Starkweather, 97 Ia. 159 166 N. W. Rep. 87; 59 Am. St. Rep. 404; 31 L. R. A. 183).

Sec. 234. Additional servitude-Street railwaysSewers.

It is held that the use of the streets for an electric

railroad operated by means of trolly wires overhead, is not an additional servitude which will entitle the abutting owner to compensation. Howe v. West End St. Ry. Co., 167 Mass. 46 (44 N. E. Rep. 386). The court say: "It is obvious that the use made of a public way in the operation of an electric railway is of the same general kind as that for which the way was originally laid out, viz., the transportation of persons and things from place to place along the way. It is equally obvious that the actual operation of the electric railway shown in the present cases does not exclude ordinary travel from the way, that there is no exclusive operation by the railways of any part of the surface of the way, and that the overhead structure is incidental to the use of the surface of the way, and does not prevent the public from using the way in the ordinary manner. The use of the ordinary steam railroad, when it crosses a public way, or runs along the way, is intended to be in a sense exclusive. Provision is made by statute for the erection of gates at some of the crossings of public ways by railroads or for signals which shall indicate the approach of trains, and the express or implied intention is that the railroad trains shall not give way to travelers on the way, but that travelers shall give way to them, and the gates or signals are intended to warn such travelers against being on the track at the time of the passage of trains. The whole system of street railways is founded on the theory that the use of the ways by the railways must be consistent with the use of the ways for other travelers at the same time." The substitution of electric motors with the trolly system for horses in a street 'railroad does not, per se, create an additional easement. Roebling v. Trenton Pass. R. Co., 58 N. J. L. 666 (34 Atl. Rep. 1090; 33 L. R. A. 129). The use of a street by a street railway is not an additional servitude. Merrick v. Interamontaine R. Co., 118 N. C. 1081 (24 S. E. Rep. 667). The construction of a sewer in a street is not an additional burden although the fee remains in the abutting owner. Cabot v. Kingman, 166 Mass. 403 (44 N. E. Rep. 844; 33 L. R. A. 45).

Sec. 235. As to what is a taking. Under a statute providing that private property shall not be taken or damaged

H

for public use without compensation, it is held that a city is liable for damages resulting from a material change of a grade of its streets from the natural surface and that the measure of damages in such case is the depreciation in value of the property occasioned by the change of the grade.

City of Harvard

v. Crouch, 47 Neb. 133 (66 N. W. Rep. 276). See Change of grade. An ordinance accepting the dedication of a street is not a taking. Beasley v. Common Council of Belvidere, 59 N. J. L. 408 (35 Atl. Rep. 797).

Sec. 236. Compensation must precede the taking. The right to have compensation actually paid as a prerequisite to the taking of private property for public purposes is a right which the legislature cannot dispense with by statute. A statute providing that title may vest in the condemning party pending an appeal from an appraisement upon payment into court of the amount thereof, is unconstitutional. Harrisburg & C. Turnpike Road Co. v. Harrisburg & M. Elec. Ry. Co., 177 Pa. 585 (35 Atl. Rep. 850). The court say: "It might well happen that, when a judgment was finally entered on the verdict in favor of the property owner ascertaining the amount of compensation due him, the corporation would be found to be insolvent, the line of railway with all its appurtenances incumbered to its full value, or transferred to a purchaser, and the plaintiff left without security or any responsible party to whom to look for the larger part of his just compensation for the injury sustained by him. This is a result that the constitutional provision was intended to guard against, and would effectually prevent if it was fully enforced." Private property cannot be taken or damaged for public use without compensation therefor, and this rule applies to municipalities and counties exercising the right of eminent domain. Hodges v. Board of Sup'rs, 49 Neb. 666 (68 N. W. Rep. 1027).

Sec. 237. Manner of determining amount of compensation-Due process of law. It is held that where a city provides for the appointment by the mayor and aldermen of freeholders to assess the damages sustained by lot owners in consequence of the opening or extension of any

street, with power to the mayor and aldermen to enforce the award or decision of these assessors, without providing for notice of any kind to such lot owners as to these matters, it would not render the charter violative of the constitutional prohibition against depriving persons of their property without due process of law, if the charter made any provision for such notice to lot owners as would allow them an opportunity to be heard with reference to the amount of the compensation to be paid them before such assessment should become finally binding and conclusive upon them. In the absence of any provision whatever for such notice in a city charter, it is unconstitutional in the respect above indicated; and a mere general declaration therein that the owner or owners of land affected by the decision of the assessors shall have the right to appeal therefrom to a jury in the superior court, without providing for any notice to such lot owner or owners of the rendition of such decision, so as to enable them to exercise the right of appeal, is too vague, indefinite, and uncertain to cure the defect in the charter. Savannah, F. & W. Ry. Co. v. Mayor of Savannah, 96 Ga. 680 (23 S. E. Rep. 847). A municipal corporation, having the power of eminent domain, cannot constitute itself or its officers a tribunal to determine what shall be just compensation. In re Fisher, 178 Pa. 325 (35 Atl. Rep. 922).

Sec. 238. Practice-General principles. A special authority delegated by statute to particular persons to take away a man's property and estate against his will must be strictly pursued, and must appear to have been so pursued on the face of the proceedings in which the authority is exercised. Loucheim v. Hemsley, 59 N. J. L. 149 (35 Atl. Rep. 795). Where the lessees are not made parties to the proceeding, damages to the leasehold estate should not be awarded. damages should not be included in the award made to the owners of the fee. Little Rock & Ft. S. Ry. Co. v. Alister, 62 Ark. 1 (34 S. W. Rep. 82). Where land sought to be condemned is owned by a husband and wife as tenants by entireties, notice of the condemnation proceedings must be given to both of them. Grosser v. City of Rochester, 148 N. Y. 235 (42 N. E. Rep. 672). Where a condemnation pro

Such

ceeding has been carried to judgment, it cannot be abandoned by either party for the purpose of proceeding a second time for an assessment of damages on account of the appropriation of the same property. Illinois Cent. R. Co. v. Champaign, 163 III. 524 (45 N. E. Rep. 120). Where the law requires the damages to be assessed by a jury, the word "jury " means a body of jurymen drawn in the ordinary mode of drawing jurors for service in the courts. People v. Board of Trustees, 151 N. Y. 75 (45 N. E. Rep. 384). Where the assessment of damages has been made in any way other than by a constitutional tribunal, the right of appeal therefrom by the landowner must be unfettered by requirement of bond or payment of costs. People v. Board of Trustees, 151 N. Y. 75 (45 N. E. Rep. 384).

Sec. 239.

of statutes.

Practice-Particular cases-Construction Under the Rhode Island statute it is held that the state is not entitled to a jury trial upon an appeal from the award of commissioners in proceedings for the condemnation of a site for a state house. In re Condemnation of Certain Land for New State House, 19 R. I. 326 (33 Atl. Rep. 448). Where the state has authorized a boom company to acquire an easement in tide water lands by condemnation proceedings the state is not a necessary party to such proceedings. North River Boom Co. v. Smith, 15 Wash. 138 (45 Pac. Rep. 750). The weight of authority seems to be that in condemnation proceedings, in the absence of a statute granting the right of possession, the right to abandon is waived by the taking of possession, and defendant is entitled to judgment for damages. Bellingham Bay & B. C. R. Co. v. Strand et al, 14 Wash. 144 (44 Pac. Rep. 140). Under the Pennsylvania statute, Act April 28, 1870, which authorized the appropriation of land for the erection of a bridge in a city, it is held that the decision of the commissioners appointed to make the appropriation is conclusive as to how much land was necessary, unless it can be shown that there was an abuse of their power. City of Philadelphia v. Ward, 174 Pa. St. 45 (34 Atl. Rep. 458). It is held that the Pennsylvania statute, Act 1869, authorizing canal companies to condemn land, empowers a canal and railroad company to change the bed of the canal