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that it is not necessary that there be any physical invasion of the individual's property for public use to entitle him to compensation. Less v. City of Butte, 72 Pac. 140, 141, 28 Mont. 27, 61 L. R. A. 601, 98 Am. St. Rep. 545 (citing Root v. Butte, A. & P. Ry. Co., 20 Mont. 354, 51 Pac. 155).

A statute authorizing the taking of private property for public use, which makes such provision for reasonable compensation as will be certain and adequate, though such compensation is not required to be paid before the taking of the property, fully satisfies the requirements of the Constitution of Massachusetts that no part of the property of any individual can with justice be taken

from him without his own consent or that of the representative body of the people. Sweet v. Rechel, 16 Sup. Ct. 43, 45, 159 U. S. 380, 40 L. Ed. 188.

Property is "taken," within the provision of the Constitution prohibiting the taking of private property for public use without due compensation, when it passes from the possession and control of the owner, and not when the title ultimately passes to the corporation. Martin v. Tyler, 60 N. W. 392, 397, 4 N. D. 278, 25 L. R. A. 838 (citing Davis v. San Lorenzo R. Co., 47 Cal. 517, which overrules Fox v. Western Pac. R. Co., 31 Cal. 538).

The word "taken," as used in Bill of Rights, art. 1, declaring that no person's property shall be taken for a public use without adequate compensation being made, means a final transfer of title to property or its permanent subjection to an easement. A taking, in contemplation of the Constitution, can only be legally had or accomplished by paying the award or depositing the amount of damages and costs adjudged. Until that is done, the land being the land of the owner, any enhancement of its value is his, and of right should belong to him, just as he would also suffer any loss from a depreciation in value since the commencement of condemnation proceedings. Gulf, C. & S. F. Ry. Co. v. Lyons, 2 Willson, Civ. Cas. Ct. App. § 139.

Where there was no proceeding in condemnation instituted by government, no attempt in terms to take and appropriate the title, and no adjudication that the fee had passed from the landowner to the government, there was no taking of land within the meaning of the fifth amendment of the federal Constitution, requiring compensation on the taking of land for public use. United States v. Lynah, 23 Sup. Ct. 349, 356, 188 U. S. 445, 47 L. Ed. 539.

Consequential injury.

Acts done in the proper exercise of governmental powers, and not directly encroaching on private property, though their conse

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quence may impair its use, are universally held not to be a taking within the meaning of the constitutional provision prohibiting the taking of private property for public use without just compensation. Such acts do not entitle the owner of such property to compensation from the state, or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to find the decisions, will find them collected in Cooley, Const. Lim. p. 542, and notes. Northern Transp. Co. of Ohio v. City of Chicago, 99 U. S. 635, 644, 25 L. Ed. 336; Green v. State, 14 Pac. 610, 612, 73 Cal. 29; Holyoke Water Power Co. v. Connecticut River Co. (U. S.) 20 Fed. 71, 79.

"Taking," as used in the Constitution in the clause requiring compensation to be made for the taking of land for public use, means taking the property altogether, and not a consequential injury to it, which is no taking at all. In re Philadelphia & T. R. Co. (Pa.) 6 Whart. 25, 26, 36 Am. Dec. 202; Selden v. City of Jacksonville, 10 South. 457, 458, 28 Fla. 558, 14 L. R. A. 370, 29 Am. St. Rep. 278.

The proper construction of the word "taken," as used in Const. art. 1, § 21, enacting that no man's property shall be taken by law without just compensation, makes it synonymous with "seize, injure, destroy, or deprive of." It is evident that the Legislature had no power to authorize in any case either direct or consequential injury to private property without compensation to the

owner. Evansville & C. R. Co. v. Dick, 9 Ind. 433, 436.

A taking or deprivation of property, which is prohibited by the Constitution, unless due compensation is made, includes anything that affects or limits the free use and enjoyment of one's property, or of the easements or appurtenances thereto. Myer v. Adam, 71 N. Y. Supp. 707, 710, 63 App. Div. 540.

"Taking," as used in the Constitution relating to the taking of private property for public use, is not limited to the absolute conversion of property and applied to land only, but includes cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto. Pearsall v. Eaton County Sup'rs, 42 N. W. 77, 74 Mich. 558, 4 L. R. A. 193.

"Taking," as used in Gen. St. 1878, c. 34, relating to the taking of land for railway purposes, should be construed in a comprehensive sense, and implies, not merely the appropriation of the particular strip of land denominated the "right of way," considered by itself and alone, but also the facts, circumstances, and direct effects accompany

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The impairment of the utility of a person's property by the direct invasion of the bounds of his private dominion is a taking of his property, in the sense of the Constitution, prohibiting the taking of private property without recompense, though the owner has not less of material things than he had before. Whether the farmer's fields be flooded, so that they cannot be cultivated, or the bleacher's stream polluted, so that his fabrics are stained, or one's dwelling filled with smells or noise, so that it cannot be occupied with comfort, is equally the taking away of one's property. Pennsylvania R. Co. v. An

gel, 7 Atl. 432, 434, 41 N. J. Eq. (14 Stew.) 316 (cited in Bloom v. Koch, 50 Atl. 621, 626, 63 N. J. Eq. 10).

Property is "taken," within the constitutional meaning, where it is destroyed or materially impaired by rendering it impossible for the owner of it to enjoy it to the full extent that he is entitled to. Adams v. Chicago, B. & N. R. Co., 39 N. W. 629, 631, 39 Minn. 286, 1 L. R. A. 493, 12 Am. St. Rep. 644.

ing the use of such highway for all ordinary purposes, subject only to the inconvenience of the railroad, is not such a "takthe fee of the adjacent lands as is conteming" of private property from the owner of plated by the Constitution, prohibiting the sation. The easement of the highway is in taking of private property without compenthe public, although the fee is technically in the adjacent owner. It is the easement only which is appropriated, and no right or title of the owner interfered with. If the Legislature authorizes the company to take the highway and appropriate it to its own use, by destroying the ordinary and legal right of the public to use it as a highway, then compensation must be provided, because then the rights of the public in it cease, and the use of it reverts to the person who holds the fee in the land, and the Legislature authorizes to be taken something which belongs to the landowner, to wit, the use of the land. Morris & E. R. Co. v. City of Newark, 10 N. J. Eq. (2 Stockt.) 352, 358.

The building and operation of a street

railroad is not a taking of private property Co., 78 Ind. 261, 269, 41 Am. Rep. 561; West for public use. Eichels v. Evansville St. Ry. Jersey R. Co. v. Cape May & S. L. R. Co., 34 N. J. Eq. (7 Stew.) 164, 166; Jersey City & B. R. Co. v. Jersey City & H. H. R. Co., 20 N. J. Eq. (5 O. E. Green) 61, 78; Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. (2 C. E. Green) 75, 77, 86 Am. Dec. 252; Conshohocken Ry. Co. v. Pennsylvania R. Co., 15 Pa. Co. Ct. R. 445; Maris v. Union Pass. Ry. Co. (Pa.) 30 Leg. Int. 153; Dooly Block 9 Utah, 31, 24 L. R. A. 610; Randall v. v. Salt Lake Rapid Transit Co., 33 Pac. 229, Jacksonville St. R. Co., 19 Fla. 409, 428.

Under the old Constitution of Illinois, the words "taken for public use," in the provision requiring compensation for property so taken, meant any physical injury to pri- The use of a city street for a railroad is vate property by reason of the erection, con- not a taking of private property without struction, or operation of the public im- compensation, within the meaning of the provement, whereby the appropriate use or enjoyment of the property was materially interrupted. Rigney v. City of Chicago, 102 Ill. 64, 74.

A franchise is "taken," within the mean

Constitution. New Albany & S. R. Co. v. O'Daily, 12 Ind. 551, 552; Faust v. Passenger Ry. Co. (Pa.) 3 Phila. 164, 170; New Mexican R. Co. v. Hendricks, 30 Pac. 901, 6 N. M. 611; Houston & T. O. R. Co. v. West Grafton, 12 S. E. 1075, 34 W. Va. 783; Odum, 53 Tex. 343, 351; Yates v. Town of In re Philadelphia & T. R. Co. (Pa.) 6 Whart.

ing of the Constitution, providing that private property shall not be taken for public use without just compensation, where the party to whom such franchise belonged is 25, 46, 36 Am. Dec. 202; People v. Kerr (N. deprived of the power or means of exercis-Y.) 37 Barb. 357, 394; City of Newark v. ing it; but it is not taken when its emolu- Kerr (N. Y.) 38 Barb. 369, 374; Drake v. ments are diminished by an improvement which does not destroy or impair such power or means. Such a diminution is, of course, a damage, and may or may not constitute a

valid cause of action, but does not bring the case within the constitutional prohibition. In re Hamilton Ave. (N. Y.) 14 Barb. 405, 411.

Same-Additional use of streets.

The authority to use a public highway for the purpose of a railroad, retain

Hudson River R. Co. (N. Y.) 7 Barb. 508; N. J. Eq. (2 Stockt.) 352, 358; Ottawa, O. Morris & E. R. Co. v. City of Newark, 10 C. & C. G. R. Co. v. Larson, 19 Pac. 661, 664, 40 Kan. 301, 2 L. R. A. 59; Same v. Peterson, 19 Pac. 666, 40 Kan. 310.

The erection of telephone poles along the streets of an incorporated city, town, or village, with the consent of the council thereof, is not such a "taking" of private property for public use as will authorize the abutting owner to enjoin the prosecution of such

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work until his damages are paid or secured. Maxwell v. Central District & Printing Telephone Co., 41 S. E. 125, 126, 51 W. Va. 121.

The construction of a viaduct to carry the street at a higher level, for the benefit of the public, is a street use, and not a taking of public property. Sauer v. City of New York, 83 N. Y. Supp. 27, 28, 40 Misc. Rep. 585.

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where all access to the property is destroy-
ed, or where a part of the street abutting on
the property is taken, although the part ac-
of the street.
tually appropriated is beyond the center line
Rochette v. Chicago, M. &
St. P. Ry. Co., 20 N. W. 140, 141, 32 Minn.
201.

Where the result of the order of railroad commissioners closing a highway was to leave a house and lot which adjoined the

Same-Easements of light, access, and crossing without any mode of ingress or

support.

In the elevated railway cases in New York it has been determined that there is a "taking," within the meaning of the constitutional provision prohibiting the taking of private property without compensation, by the act of the railroad in obstructing the easements of light and air to an adjoining property owner, though no part of his land is actually taken in the construction of the road; such decisions being based on the theory that the owner has a kind of property in such easement. Bohm v. Metropolitan El. Ry. Co., 29 N. E. 802, 805, 129 N. Y. 576, 14 L. R. A. 344.

egress, except by the permission of the owner's neighbors, or by trespassing on the railroad location, the property of the owner of such house and lot was "taken" in the strictest sense. Cullen v. New York, N. H. & H. R. Co., 33 Atl. 910, 912, 66 Conn. 211.

It has been uniformly held, since the Story Case, 90 N. Y. 122, 43 Am. Rep. 146, that a partial destruction of easements by an elevated railroad is a taking of property within the meaning of the Constitution. Sadlier v. City of New York, 81 N. Y. Supp. 308, 315, 40 Misc. Rep. 78.

Same-Flowing land.

An injury to and a "taking" of private property are distinct things. Every taking The constitutional provisions, where only in law is an injury of some kind, though the "taking" of private property is to be every injury does not include a taking. Property is taken by an entry upon and occupation of it, as in the ordinary case of location. It is injured by obstructing access, as in Pennsylvania R. Co. v. Duncan, 5 Atl. 742, 111 Pa. 352, or drainage, as in Pennsylvania S. V. R. Co. v. Ziemer, 17| Atl. 187, 124 Pa. 560. Garrett v. Lake Roland El. Ry. Co., 29 Atl. 830, 832, 79 Md. 277, 24 L. R. A. 396 (citing Jones v. Erie & W. V. R. Co., 25 Atl. 134, 137, 151 Pa. 30, 17 L. R. A. 758, 31 Am. St. Rep. 722).

The word "taking," in the clause of the state Constitution forbidding the taking of property except for compensation, and in the charter of a railroad company, does not apply to its act in making a large excavation for the bed of its railroad in the land adjoining the plaintiff's, and so near his building and so deep as to weaken his foundation and render it unsafe to use, or the raising in the street opposite to and near the front of said building an embankment of much greater height than the street was, and thereby obstructing the passage to and from plaintiff's building, darkening the windows, obstructing the air, and rendering the building unfit for occupation. Bradley v. New York & N. H. R. Co., 21 Conn. 294, 308.

compensated, have frequently been held to include any direct physical obstruction or injury to the abutting premises, even if there be no actual appropriation or the land itself, as where by excavation or embankment water was caused to overflow the same; a kind or class of injuries for which, in the absence of constitutional and statutory enactment, a remedy existed at common law. City of Denver v. Bayer, 2 Pac. 6, 10, 7 Colo. 113 (citing Toledo W. & W. Ry. Co. v. Morrison, 71 Ill. 616; Hooker v. New Haven & N. R. Co., 14 Conn. 146, 36 Am. Dec. 477).

The flowing of land against the owner's consent and without compensation is a “taking" of his property in violation of that provision of the Constitution which prohibits the taking of property without compensa

tion.

Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, 321; Hooker v. New Haven & N. Co., 15 Conn. 312; Nevins v. City of Peoria, 41 Ill. 502, 510, 89 Am. Dec. 392; Pettigrew v. Village of Evansville, 25 Wis. 223, 231, 236, 3 Am. Rep. 50; Arimond v. Green Bay & M. Canal Co., 31 Wis. 316; Eaton v. Boston, C. & M. R. R., 51 N. H. 504, 535, 12 Am. Rep. 147; City of Cumberland v. Willison, 50 Md. 138, 33 Am. Rep. 304; Pumpelly v. Green Bay & M. Canal Co., 80 U. S. (13 Wall.) 166, 180, 20 L. Ed. There may be such a direct obstruction 557; Jones v. United States, 4 N. W. 519, 48 or injury to private property as would, with- Wis. 385; King v. United States (U. S.) 59 in the spirit of the Constitution, prohibiting Fed. 9; Winn v. Village of Rutland, 52 Vt. the taking of private property without just 481; Miller v. City of Morristown, 47 N. J. compensation, amount to a "taking," al- Eq. (2 Dick.) 62, 20 Atl. 61; Id., 48 N. J. though the corpus of the property itself was Eq. (3 Dick.) 645, 25 Atl. 20; Weaver v. not touched or disturbed, as, for example, Mississippi & R. R. Boom Co., 28 Minn. 534,

11 N. W. 114; Conniff v. City and County of San Francisco, 7 Pac. 41, 44, 67 Cal. 45. But, in order for such flooding to be a taking, it is necessary that there be an actual, physical invasion amounting to a practical ouster. High Bridge Lumber Co. v. United States, 69 Fed. 320, 326, 16 C. C. A. 460.

When real estate is actually invaded by superinduced additions of water, earth, sand,

or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a "taking," within the meaning of the Constitution, prohibiting the taking of property for public use without just compensation. City of Baltimore v. Merryman, 39 Atl. 98, 99, 86 Md. 584; Weaver v. Mississippi & R. R. Boom Co., 11 N. W. 114, 115, 28 Minn. 534; Memphis & C. R. Co. v. Birmingham, S. & T. R. R. Co., 11 South. 642, 643, 96 Ala. 571, 18 L. R. A. 166; Vanderlip v. City of Grand Rapids, 41 N. W. 677, 681, 73 Mich. 522, 3

L. R. A. 247, 16 Am. St. Rep. 597.

The injury to land by water flowing through the waste weirs of a canal over the land of the intervening landowners, and on plaintiff's land, is so equivalent to a taking within the meaning of constitutional provisions requiring compensation for land taken for public purposes, that plaintiff will be entitled to recover damages for such injuries; and the fact that the company acted as authorized and without negligence is no defense. Hooker v. New Haven & N. Co., 14 Conn. 146, 174, 36 Am. Dec. 477.

To maintain a boom, which, in the usual course of things, will have the effect of working more or less damage to a person's lands and the crops thereon growing, once or twice in the course of seven or eight years, is just as much a "taking" or appro priation of such person's property as it would be if the like effect occurred every year, or every two years, or during those months each year when the boom is in use. McKenzie v. Mississippi & R. R. Boom Co., 13 N. W. 123, 124, 29 Minn. 288.

Same-Grading streets.

The consequential injury occasioned by the grading of a street is not a "taking" of private property for public use, within the prohibition of the Constitution. Macy v. City of Indianapolis, 17 Ind. 267, 269; Weis v. City of Madison, 75 Ind. 241, 250, 39 Am. Rep. 135; Smith v. City of Eau Claire, 47 N. W. 830, 78 Wis. 457; Smith v. Village of White Plains, 22 N. Y. Supp. 450, 67 Hun,

81; Selden v. City of Jacksonville, 10 South. 457, 458, 28 Fla. 558, 14 L. R. A. 370, 29 Am. St. Rep. 278; Bradley v. New York & N. H. R. Co., 21 Conn. 294, 309.

Under the constitutional provision that private property shall not be taken for public use without just compensation, a city is

liable for damages to abutting property occasioned by a change in the grade of a street. Moore v. City of Atlanta, 70 Ga. 611, 613; City of Elgin v. Eaton, 83 Ill. 535, 536, 25 Am. Rep. 412. Contra, see Dickerman v. New York, N. H. & H. R. Co., 44 Atl. 228, 229, 72 Conn. 271; Garraux v. City Council Methodist Episcopal Church v. City of Wyof Greenville, 31 S. E. 597, 53 S. C. 575; andotte, 3 Pac. 527, 530, 31 Kan. 721.

Where an abutting owner is deprived of the practical use of his buildings by reason of a change of grade there is a taking of the property of the individual. In re Comesky, 81 N. Y. Supp. 1049, 1051, 83 App. Div. 137.

"Taken," as used in Bill of Rights, § 12, taken without just compensation, means a providing that private property shall not be trespass on or a physical invasion of the property. Property which is merely injured change of grade of an adjacent street or othby consequential damages resulting from a er improvement thereof, not constituting a diversion of the street from street purposes, is not taken or appropriated. Selden v. City of Jacksonville, 10 South. 457, 458, 28 Fla. 558, 14 L. R. A. 370, 29 Am. St. Rep. 278.

Deprivation of possession.

A "taking" under the right of eminent domain means the exclusion of the owner from use and possession of the property taken, and the actual assumption of the possession by the party authorized to take, and there would naturally be some proceeding in its nature judicial for the finding of the damages thereby occasioned. Nolan v. City of New Britain, 38 Atl. 703, 707, 69 Conn. 668 (citing Woodruff v. Catlin, 54 Conn. 277, 297, 6 Atl. 849).

Land is not "taken" for a public use, within the meaning of a statutory provision requiring compensation to be paid for all land so taken, unless the land is taken into the actual possession of the state or the grantee of its power of eminent domain. Richardson v. Vermont Cent. R. Co., 25 Vt. 465, 474, 60 Am. Dec. 283.

is prevented from exercising practical doWhen, and so far, as the owner of land minion over and the right to use his land at his own free will and pleasure, it is "taken” from him. Where a person takes exclusive possession and occupation of land, by covering it with a solid wall of masonry many feet high, he takes it from the owner in the though the legal title remains in the owner. most thorough and effective manner, alThe legal title is not at all involved in an unlawful taking of land, but the question is rather of practical dominion over and the right to use it at the owner's free will and pleasure, so long as he does not injure his neighbor or the public. Traute v. White, 19 Atl. 196, 197, 46 N. J. Eq. (1 Dick.) 437.

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Const. art. 1, § 14, declares that private property shall not be taken or damaged for public use without just compensation. Held, that the word "taken," as used in such section, meant the change of possession from the owner to the public, and that the property was taken, within such provision, when the possession passed from the control of the owner, and not when the title ultimately passed to the public or corporation entitled to exercise the right of eminent domain. Martin v. Tyler, 60 N. W. 392, 397, 4 N. D. 278, 25 L. R. A. 838.

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The term "taking," as used in a constitutional provision prohibiting the taking or damaging of private property for public use without compensation, does not include the legal vacation of city streets and alleys. City of East St. Louis v. O'Flynn, 10 N. E. 395, 396, 119 Ill. 200, 59 Am. Rep. 795.

Diminution of value.

A partial destruction or diminution of value is a "taking" of private property. Glover v. Powell, 10 N. J. Eq. (2 Stockt.) 211, 229; Rigney v. City of Chicago, 102 Ill. 64, The "taking" of property for public use 74. means, in Act N. J. 1893, that taking in the The mere injury to the value of land large and more comprehensive sense, where- occasioned by the placing of a railroad emby the owner is deprived of the beneficial bankment so near it as to impair its market ownership and possession of his land, and value is not a "taking" within the meaning such possession passes by the condemnation of the statute. Richardson v. Vermont Cent. proceedings to the condemned party. Nicoll R. Co., 25 Vt. 465, 474, 60 Am. Dec. 283.

v. New York & N. J. Tel. Co., 40 Atl. 627, 628, 62 N. J. Law, 156.

The word "take," as used in the ConAs used in a mortgage excepting from its stitution relating to the taking of private terms all that part of a lot already taken and property for public use, has been interpreted graded, the word "taken" will not be con- to mean a taking altogether, a seizure, a distrued as meaning only that fully taken by rect appropriation; and therefore property completed condemnation proceedings, but, in is not taken when it is merely depreciated connection with the word "graded," will be in value, or incumbered, or incidentally inheld to mean such part as had been taken | jured. Sharpless v. City of Philadelphia, 21 possession of and graded; and hence, where Pa. (9 Harris) 147, 166, 59 Am. Dec. 759.

a part of the lot had been graded, but not fully taken by condemnation proceedings, it was excepted from the mortgage. Lawrence v. London & Northwest American Mortg. Co., 74 N. W. 892, 71 Minn. 535.

Deprivation of use.

In Pumpelly v. Green Bay & M. Canal Co., 80 U. S. (13 Wall.) 166, 20 L. Ed. 557, it is said that a serious interruption to the common and necessary use of property may amount to a "taking," within the meaning of constitutional provisions. Memphis & C. R. Co. v. Birmingham, S. & T. R. R. Co., 11 South. 642, 643, 96 Ala. 571, 18 L. R. A. 166.

A statute imposing a penalty on any person who shall take, carry away, or remove any stones, gravel, or sand from any of the beaches in a certain town, passed for the purpose of protecting the harbor, and extending as well to the owners of the soil as to strangers, is not a "taking" of private property and appropriating it to public use, within the meaning of Declaration of Rights, art. 10, so as to render it unconstitutional and void, although no compensation is therein provided for the owners. Commonwealth v. Tewksbury, 52 Mass. (11 Metc.) 55, 56.

The destruction of the use of a private right of way across land adjoining the highway, by the location of a culvert and guard rails on such public highway, is a “taking" of private property for public uses. De Lauder v. Baltimore County Com'rs, 50 Atl. 427, 129, 94 Md. 1.

Easement.

A statute requiring a canal company, before ceasing work, to proceed along the line and procure releases for necessary lands and materials, which releases shall operate so as to vest in said state a full and complete right "to enter upon, use, and take" the same at any and all times, and authorizing the board, in consideration of any privileges granted by individuals to the state of right of way, to contract with said individuals on behalf of the state to erect across said canal any bridge or bridges for the benefit of such individuals and the public, indicates an easement, and not a fee simple absolute, and therefore the board has power to contract for an easement. Indianapolis Water Co. v. Kingan & Co., 58 N. E. 715, 718, 155 Ind. 476.

The act incorporating a canal company, and providing that, whenever lands, waters, and materials should not be attained by voluntary donation or fair purchase, it should be lawful for the corporation, by any of their officers, and each and every agent, superintendent, or engineer by them employed, to "enter upon, take possession of, and use" all such lands, real estate, and streams as might be necessary for the purpose of constructing and maintaining the canal and works connected therewith, does not confer a right to take the fee in land thus occupied, but that right is confined to use and occupation only, unless it be enlarged by the deed or gift of the owner. There was in the company but

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