domain of public uses for which private ownership may be displaced by compulsory proceedings. Railroads are highways furnishing means of communication between different points, promoting traffic and commerce, and facilitating exchanges; in a word, they are improved ways. In every form of government the duty of providing public ways is acknowledged to be a public duty." Judge Cooley's remark is quoted (Const. Lim. 669) that "when the government is supplying its own needs, or is furnishing facilities for its citizens in regard to these matters of public necessity which, on account of their peculiar character, and the difficulty, perhaps impossibility, of making provision for them otherwise, it is alike proper, useful, and needful for the public to provide." In this case the proposed road was to be about 3 miles long, beginning at or on state land, and terminating on private land, without access from any public highway, and intended only for the convenience of visitors who might wish to see the falls, the river, and the whirlpool. The court say that this "is not a public purpose which justifies the exercise of the high prerogative of sovereignty" in taking property by condemnation proceedings.

The same rule was applied in Deansville Cemetery Asso. (1876) 66 N. Y. 569, 23 Am. Rep. 86, in which it was held that cemetery associations organized under a general law could not, by condemnation, take land for cemetery purposes. See also Re Townsend (1868) 39 N. Y. 171; Re Eureka Basin Warehouse & Mfg. Co. (1884) 96 N. Y. 42, where an act was declared unconstitutional which assumed to authorize a manufacturing corporation to take land by condemnation; Re New York, L. & W. R. Co. (1885) 99 N. Y. 12, I N. E. 27; Re Rochester, H. & L. R. Co. (1888) 110 N. Y. 119, 17 N. E. 678.

§ 7. [Compensation for private property, how ascertained; private roads; drainage.]-When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall

be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches, and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.

[Const. 1846, art. 1, § 7.]

COMPENSATION, HOW ASCERTAINED.

"The historical fact is that complaints had existed in respect to the methods of appraisement, and the Convention [of 1846] solved that difficulty by selecting and approving these two methods, inferentially forbidding all others." Clark v. Miller (1874) 54 N. Y. 528.

It seems that the provisions of this section relating to the method of ascertaining the compensation to be made on taking private property for public purposes, which were included in the Constitution of 1846, were prospective, and applicable only to cases occurring after January 1, 1847. These provisions are not selfexecuting, and could only be put into operation by legislation; hence, existing provisions of law relating to the method of ascertaining compensation are applicable, in the absence of legislation providing other machinery. People ex rel. Dubois v. Ulster County (1848) 3 Barb. 332.

Compensation must be ascertained by a jury or by commissioners appointed by a court of record. An assessment of damages by assessors under the Rochester charter was held invalid. House v. Rochester (1853) 15 Barb. 517. A similar provision in the Utica charter was also held invalid in Clark v. Utica (1854) 18 Barb. 451. The constitutional provision that compensation must be ascertained either by a jury or by commissioners cannot be waived by the owner of the land. "The determination of the amount of compensation is in the nature of a judicial proceeding, and where the amount is to be paid for by the public, the public, as a party in

interest, have a right to that proceeding." Hanlon v. Westchester County (1870) 57 Barb. 383.

The legislature cannot vest in the supreme court the power to increase or diminish the sum awarded as damages by a jury or by commissioners. Rochester Waterworks Co. v. Wood (1871) 60 Barb. 137; Re Middletown (1880) 82 N. Y. 196; Re Malone Waterworks Co. (1891) 38 N. Y. S. R. 95, 15 N. Y. Supp. 649.

The legislature may constitutionally authorize a reassessment of damages in a manner different from that adopted for the first assessment, provided such reassessment is by one of the methods prescribed in the Constitution. The act of 1847, chap. 455, authorizing a reassessment by a jury where the first assessment had been made by commissioners, was sustained. Clark v. Miller (1874) 54 N. Y. 528.

In Re Ulster & D. R. Co. v. Gross (1883) 31 Hun, 83, the court expressed great doubt whether the expenses of taking the land can ever be charged against the owner, and said that "whenever he is made to pay such expenses, he fails to receive just compensation to that extent."

"The provisions of the Constitution as to the mode and manner of ascertaining the compensation to be paid for private property when taken for public use are for the sole benefit of the owner.” Re Hand Street (1889) 55 Hun, 132, 8 N. Y. Supp. 610.

The Constitution does not secure the right to review an award by a jury or by commissioners. The subject of such a review is within the discretion of the legislature. Re De Camp (1896) 151 N. Y. 557, 45 N. E. 1039.

See Re Borup (1905) 102 App. Div. 262, 92 N. Y. Supp. 624, as to damages on change of grade under Laws 1903, chap. 610, adding 11a to the highway law.

Notice. The property owner is entitled to notice of the impaneling of the jury and of the subsequent proceedings before them. People ex rel. Stephens v. Tallman (1862) 36 Barb. 222.

The owner is not entitled to notice of application for appointment of commissioners. Long Island R. Co. v. Bennett (1877) 10 Hun, 91; Re New York Elev. R. Co. (1877) 70 N. Y. 327; Re Middletown (1880) 82 N. Y. 196.

An owner of land is entitled to notice of an intention to take the same for a public purpose, and of the proceedings to ascertain the damages. People ex rel. Dexter v. Mosier (1890) 56 Hun, 64, 8 N. Y. Supp. 621; McLaughlin v. Miller (1891) 124 N. Y. 510, 26 N.

E 1104

Jury. The act of 1847, chap. 31, § 4, relating to the power of the Hudson River Railroad Company to take lands for railroad purposes, which, among other things, authorized a judge of a court of record to appoint "a jury of appraisers," to be composed of twelve men whose names were to be drawn from the grand jury box, to assess the damages in cases where property was taken by condemnation, and which permitted the certificate of appraisement to be signed by a majority of the appraisers, was held a compliance with the constitutional provision requiring damages to be ascertained by a jury. An examination of the subject of taking private property for public use during twenty years immediately preceding the Convention of 1846 shows that "the term 'a jury' had been in frequent use as descriptive of a body of jurymen drawn in the ordinary mode of drawing juries, to whom was committed the appraisement of damages for private property taken for public uses, and whose decision was to be made by a majority." Four such statutes were passed by the legislature of 1846 immediately preceding the Convention. These instances were deemed sufficient "to establish the position that at the time of the Convention there was a known legislative usage in respect to this subject, according to which the term 'jury' did not necessarily import a tribunal consisting of twelve men acting only upon an unanimous determination, but, on the contrary, was used to describe a body of jurors of different numbers and deciding by majorities or otherwise, as the legislature in each instance directed." The Convention of 1846, which incorporated in the Constitution for the first time the provision requiring compensation to be ascertained by a jury or by commissioners, "ought, therefore, to be deemed to have used this term [jury] in the sense in which it was then known to the law, and to have selected out of the modes of proceeding theretofore in use in taking private property, those two modes which they thought best calculated to secure both public and private rights,-appraisement by commissioners or by juries,—giving to this latter term, not the restricted meaning which belongs to it when used in reference to trials, civil or criminal, but the broader sense which it had acquired by legislative use." Cruger v. Hudson River R. Co. (1854) 12 N. Y. 190.

The term "jury," as used in the Constitution, "means a body of jurymen drawn in the ordinary mode of drawing jurors for service in the courts." People ex rel. Eckerson v. Haverstraw (1896) 151 N. Y. 75, 45 N. E. 384; Clark v. Utica (1854) 18 Barb. 451.

Commissioners.-It is not competent for the legislature to appoint

commissioners to ascertain the compensation on taking private property for a public use, or devolve the duty upon any body or set of men other than those indicated by the Constitution. People ex rel. Cook v. Nearing (1863) 27 N. Y. 306.

Considering the powers and duties of commissioners appointed to ascertain damages, the court, in Re New York (1885) 34 Hun, 441, say that the Constitution, neither in terms nor by fair implica tion, requires that the commissioners shall take evidence concerning the value of the property intended to be appropriated, "but they have been left at liberty to proceed upon their own personal examination and investigation, and to act upon the knowledge or information obtained in that manner."

Where a statute provides for commissioners to ascertain the compensation, such commissioners must be appointed by the court, and such appointment "must not only in form be made by the court, but it must be its independent, untrammeled act, in the exercise of judicial responsibility." It was accordingly held that an act authorizing the common council to nominate twelve persons, three of whom were selected by lot, to become commissioners for the purpose of ascertaining the compensation to be awarded for property taken, was unconstitutional; the persons selected did not constitute a jury, and the common council could not constitutionally select commissioners. Menges v. Albany (1874) 56 N. Y. 374; Hilton v. Bender (1877) 69 N. Y. 75.

A majority of the commissioners may act. Astor v. New York (1875) 62 N. Y. 580; Re New York (1885) 99 N. Y. 569, 2 N. E. 642; Re Fourth Ave. (1854) 11 Abb. Pr. 189.

A local court of record cannot be authorized to appoint commissioners to appraise property outside the territorial jurisdiction of the court. The Constitution evidently means that the commissioners must be appointed by a court of competent jurisdiction; that is, a court possessing lawful jurisdiction over the subject and the persons affected by the proceeding. So held in a proceeding under a statute which authorized the superior court of Buffalo to appoint commissioners to appraise the damages caused by taking land outside the city for city park purposes. Re Buffalo (1893) 139 N. Y. 422, 34 N. E. 1103.

PRIVATE ROADS.

In Taylor v. Porter (1843) 4 Hill, 140, 40 Am. Dec. 274, the supreme court declared unconstitutional the provisions of the Re