made with the use in view to which the land is to be devoted: one use may bring with it important compensations in benefits, while another may be specially injurious far beyond the value of the land taken, and a new use may entirely reverse these conditions. For example, if a common highway is opened through agricultural lands, it will more often be beneficial to the premises than hurtful, and the award of damages to the owner will often be merely nominal. But if the highway is then converted into a canal, the injury is likely to be of a character to render the former assessment wholly inadequate. The general rule therefore is, that, when an appropriation of land is made for one purpose, the owner retains such an interest therein as entitles him, when the same land is taken for a new use, to a new estimate of his injury in view of the new conditions which the new use introduces, and of their effect upon his estate generally. And this right does not depend upon the question whether the fee was at first taken, or only an easement. The rule, however, can only apply where the first appropriation was of a part only of the parcel of land; for if all was taken, the change in the use cannot concern the former owner.

New Uses. It is not a new use if a common highway is taken for a plank road or a turnpike; the public being at liberty to avail themselves of its advantages in the same way as before, and the tolls exacted being only a substitute for the tax which must before have been levied for repairs. But when a highway or toll-road is taken for the purposes of a railway, the use is so different, and the probable influence upon the value of adjoining estates so different also, that it is justly held that a further property of the owner is appropriated when the change is made.2 At least, he has a right to an inquisi

1 Murray v. County Commissioners, 12 Met. (Mass.) 455.

2 Imlay v. Union Branch R. R. Co., 26 Conn. 249; Wager v. Troy Union R. R. Co., 25 N. Y. 526.

tion, to determine whether or not he suffers further injury. The case would be still plainer, if possible, were the highway taken for a canal. But the case of a city street afterwards appropriated to the purposes of a horse. railway is different. When land is taken for a city street, it is taken for all the purposes to which city streets are usually devoted: for sewers, and the laying of water, gas, and steam pipes, as well as for passage of men and teams, and for all such improved methods of passage and carriage as may come into use, and as may not be inconsistent with the enjoyment of the way for other customary uses. A horse railway is such an improved method, and it is permitted for the reason that it tends to relieve the street, instead of further burdening it.1 Similar to this, in some respects, is the case of a rafting and booming company on a natural water-course in the lumbering regions, whose operations under authority of law may constitute a virtual monopoly of the stream; but they are allowed, because they facilitate this peculiar navigation instead of hindering it, subject, nevertheless, to responsibility to the owners of the banks, should they cause them to be flooded or otherwise injured, and to any persons lawfully using the stream whom they might needlessly or unreasonably obstruct or inconvenience.

The rules respecting a second assessment are applicable to cases where the land was originally dedicated to a public purpose, as well as to those of a compulsory taking.

Assessment of Compensation. — It is not an uncommon provision of law, that, when land is to be taken for the public use, an attempt shall first be made to agree with the owner upon compensation, and when this fails the compensation may be assessed by some statutory tribunal. It

1 Elliott v. Fair Haven, &c. R. R. Co., 32 Conn. 579; People v. Kerr, 27 N. Y. 188.

2 Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308.

is not competent for the State to decide for itself what compensation shall be made, for the manifest reason that the question is one in respect to which the State and the property owner occupy antagonistic positions; and for the State to decide it would be to make itself judge in its own cause, in violation of an inflexible principle of constitutional right. The duty of the State is to provide an impartial tribunal, which can judge of the injury that will be sustained, and before which the land-owner shall be at liberty to appear and present his proofs in the customary modes.2

The rule by which compensation shall be measured is not the same in all cases, but is largely affected by the circumstances. If what is taken is the whole of what the owner may have lying together, it is clear that he is entitled to its value, judged by such standards as the markets and the opinions of witnesses can afford, and that this, except in extraordinary cases, must be the full measure of his injury. This rule will apply in all cases where the whole of any article or thing of value is taken, and not a part only, to the injury of what remains. But when less than the whole is taken, the question of just compensation becomes a question of damages merely; and in determining these the benefit to what is left may be offset against the damages, and the question to be determined will be to what extent the owner's interest in that a part of which is to be taken will be diminished thereby. If the taking is of some right in an easement, or exclusive franchise, or other intangible right, the question will also be one of damages merely. But in any case mere incidental injuries or benefits, like those suffered and received by the com

1 Co. Lit., § 212; Dimes v. Proprietors, &c., 3 House L. Cas. 759; · Rich v. Chicago, 59 Ill. 286.

2 Charles River Bridge v. Warren Bridge, 11 Pet. 420, 571; Powers's Appeal, 29 Mich. 504.

are

munity at large, such as the greater facility in travel when the taking is for a railway, or the greater danger of fright to teams when making use of the highway, to be excluded altogether from the computation.1 It may possibly happen that an assessment on these principles will award to the owner nothing, but he nevertheless in contemplation of law receives it in the benefits which overbalance his losses.2

Payment. It is sometimes expressly provided by law, that payment shall precede appropriation. But where that is not the case, it is still believed to be essential in all cases where the appropriation is made for, and payment to be made by, a private corporation, such as a railroad or toll-road company. But where the State takes the prop

5

erty for its own use, or for the use of one of its own municipalities, this is not essential. The reason is, that the property owner is supposed to be fully protected, in the faith and the means of the State or municipality, so that eventual payment is certain.

The party may waive his right to payment in any case, either expressly or by failing to claim it within such period of limitation as may be established by law."

1 Somerville, &c. R. R. Co. ads. Doughty, 22 N. J. 495; Greenville, &c. R. R. Co. v. Partlow, 5 Rich. (S. C.) 428.

2 White v. County Commissioners, 2 Cush. 361.

3 Powers v. Bears, 12 Wis. 220.

4 Orr v. Quimby, 54 N. H. 590; White v. Nashville, &c. R. R. Co., 7 Heisk. (Tenn.) 518.

5 Commissioners v. Bowie, 34 Ala. 461; Talbot v. Hudson, 16 Gray, (Mass.) 417.

6 Matter of Albany St., 11 Wend. (N. Y.) 149; Callison v. Hedrick, 15 Grat. (Va.) 244.

CHAPTER XVII.

MUNICIPAL CORPORATIONS.

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Their Functions. The place of municipal corporations in the structure of American governments has been incidentally referred to in the preceding pages, and little further mention is important here. It is axiomatic that the management of purely local affairs belongs to the people concerned, not only because of being their own affairs, but because they will best understand, and be most competent to manage them. The continued and permanent existence of local government is, therefore, assumed in all the state constitutions, and is matter of constitutional right, even when not in terms expressly provided for. It would not be competent to dispense with it by statute.1

Their Creation. Nevertheless there is no constitutional form or model of local government, or standard or measure of local powers; and these need to be different according to the circumstances. A city of a million of inhabitants, with boulevards, parks, water-works, docks, and other public property, may need an elaborate structure of government with extensive powers, while a very simple form and few powers may answer the purposes of a country hamlet. To determine the local needs in this regard, legislation is requisite; and the State, therefore, will create local governments, confer upon them such powers as in its wisdom may seem expedient, and prescribe such safeguards and limitations to their exercise as shall be deemed needful or prudent. The powers thus conferred the State may increase at discretion, so long as they are limited to govern

1 People v. Hurlbut, 24 Mich. 44; People v. Lynch, 51 Cal. 15.