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that it is not necessary that there be any quence may impair its use, are universally physical invasion of the individual's prop- held not to be a taking within the meaning erty for public use to entitle him to com- of the constitutional provision prohibiting pensation. Less V. City of Butte, 72 Pac. the taking of private property for public use 140, 141, 28 Mont. 27, 61 L, R A. 601, 98 Am. without just compensation. Such acts do not St. Rep. 545 (citing Root v. Butte, A. & P. entitle the owner of such property to comRy. Co., 20 Mont. 354, 51 Pac. 155).

pensation from the state, or its agents, or

give him any right of action. This is supA statute authorizing the taking of pri-ported by an immense weight of authority. vate property for public use, which makes Those who are curious to find the decisions, such provision for reasonable compensation will find them collected in Cooley, Const. as will be certain and adequate, though such Lim. p. 542, and notes. Northern Transp. compensation is not required to be paid be- Co. of Ohio v. City of Chicago, 99 U. S. 635, fore the taking of the property, fully satis- | 644, 25 L. Ed. 336; Green v. State, 14 Pac. fies the requirements of the Constitution of 610, 612, 73 Cal. 29; Holyoke Water Power Massachusetts that no part of the property Co. v. Connecticut River Co. (U. S.) 20 Fed. of any individual can with justice be taken

71, 79. from him without his own consent or that of the representative body of the people. Sweet “Taking," as used in the Constitution in v. Rechel, 16 Sup. Ct. 43, 45, 159 U. S. 380, the clause requiring compensation to be 40 L Ed. 188.

made for the taking of land for public use,

means taking the property altogether, and Property is "taken,” within the provision not a consequential injury to it, which is no of the Constitution prohibiting the taking of taking at all. In re Philadelphia & T. R. private property for public use without due Co. (Pa.) 6 Whart. 25, 26, 36 Am. Dec. 202; compensation, when it passes from the pos- Selden v. City of Jacksonville, 10 South. 457, session and control of the owner, and not 458, 28 Fla. 558, 14 L. R. A. 370, 29 Am. St. when the title ultimately passes to the cor

Rep. 278. poration. Martin v. Tyler, 60 N. W. 392, 397, 4 N. D. 278, 25 L. R. A. 838 (citing Davis v. The proper construction of the word San Lorenzo R. Co., 47 Cal. 517, which over- “taken," as used in Const. art. 1, $ 21, enrules Fox v. Western Pac. R. Co., 31 Cal. acting that no man's property shall be tak538).

en by law without just compensation, makes

it synonymous with "seize, injure, destroy, The word “taken,” as used in Bill of or deprive of.” It is evident that the LegRights, art. 1, declaring that no person's islature had no power to authorize in any property shall be taken for a public use

case either direct or consequential injury to without adequate compensation being made, private property without compensation to the means a final transfer of title to property or

Evansville & C. R. Co. v. Dick, 9 its permanent subjection to an easement. A Ind. 433, 436. taking, in contemplation of the Constitution, can only be legally had or accomplished by A taking or deprivation of property, paying the award or depositing the amount which is prohibited by the Constitution, unof damages and costs adjudged. Until that less due compensation is made, includes anyis done, the land being the land of the own- thing that affects or limits the free use and er, any enhancement of its value is his, and enjoyment of one's property, or of the easeof right should belong to him, just as he wents or appurtenances thereto. Myer v. would also suffer any loss from a deprecia- Adam, 71 N. Y. Supp. 707, 710, 63 App. Div. tion in value since the commencement of 540. condemnation proceedings. Gulf, C. & S. F.

“Taking," as used in the Constitution reRy. Co. v. Lyons, 2 Willson, Civ. Cas. Ct. lating to the taking of private property for App. 8 139.

public use, is not limited to the absolute conWhere there was no proceeding in con- version of property and applied to land only, demnation instituted by government, no at- but includes cases where the value is detempt in terms to take and appropriate the stroyed by the action of the government, or title, and no adjudication that the fee had serious injury is inflicted to the property itpassed from the landowner to the govern- self, or exclusion of the owner from its enment, there was no taking of land within joyment, or from any of the appurtenances the meaning of the fifth amendment of the thereto. Pearsall v. Eaton County Sup’rs, 42 federal Constitution, requiring compensation N. W. 77, 74 Mich. 558, 4 L. R. A. 193. on the taking of land for public use. United

“Taking,” as used in Gen. St. 1878, c. States v. Lynah, 23 Sup. Ct. 349, 356, 188 U. 34, relating to the taking of land for railway S. 445, 47 L Ed. 539.

purposes, should be construed in a compre

hensive sense, and implies, not merely the Consequential injury.

appropriation of the particular strip of land Acts done in the proper exercise of gov- denominated the "right of way," considered ernmental powers, and not directly encroach- by itself and alone, but also the facts, ciring on private property, though their conse- cumstances, and direct effects accompany

Owner.

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Ing or flowing from such appropriation. Wil-jing the use of such highway for all ordimes v. Minneapolis & N. W. Ry. Co., 13 N. nary purposes, subject only to the inconW. 39, 40, 29 Minn. 242.

venience of the railroad, is not such a "takWhere a city did not actually take pos- the fee of the adjacent lands as is contem

ing” of private property from the owner of session of property, but made a great public improvement in the vicinity, which inci- plated by the Constitution, prohibiting the dentally produced injury, such act was not a sation. The easement of the highway is in

taking of private property without compen. "taking for public use,” within the meaning the public, although the fee is technically in of the Constitution requiring compensation

the adjacent owner. It is the easement only therefor. Alexander V. City of Milwaukee,

which is appropriated, and no right or title 16 Wis. 247, 253.

of the owner interfered with. If the Leg. The impairment of the utility of a per- islature authorizes the company to take the son's property by the direct invasion of the highway and appropriate it to its own use, bounds of his private dominion is a taking of by destroying the ordinary and legal right his property, in the sense of the Constitution, of the public to use it as a highway, then prohibiting the taking of private property compensation must be provided, because then without recompense, though the owner has the rights of the public in it cease, and the not less of material things than he had be- use of it reverts to the person who holds fore. Whether the farmer's fields be flooded, the fee in the land, and the Legislature auso that they cannot be cultivated, or the thorizes to be taken something which bebleacher's stream polluted, so that his fabrics longs to the landowner, to wit, the use of are stained, or one's dwelling filled with the land. Morris & E. R. Co. v. City of Newsmells or noise, so that it cannot be occupied ark, 10 N. J. Eq. (2 Stockt.) 352, 358. with comfort, is equally the taking away of

The building and operation of a street o'ie's property. Pennsylvania R. Co. v. Anzel, 7 Atl. 432, 434, 41 N. J. Eq. (14 Stew.) railroad is not a taking of private property 316 (cited in Bloom v. Koch, 50 Atl. 621, 626, Co., 78 Ind. 261, 269, 41 Am. Rep. 561; West

for public use. Eichels v. Evansville St. Ry. 63 N. J. Eq. 10).

Jersey R. Co. v. Cape May & S. L. R. Co., Property is "taken," within the consti- 34 N. J. Eq. (7 Stew.) 164, 166; Jersey City tutional meaning, where it is destroyed or & B. R. Co. v. Jersey City & H. H. R. Co., materially impaired by rendering it impos- 20 N. J. Eq. (5 0. E. Green) 61, 78; Hinchsible for the owner of it to enjoy it to the man v. Paterson Horse R. Co., 17 N. J. Eq. full extent that he is entitled to. Adams v. (2 C. E. Green) 75, 77, 86 Am. Dec. 252; Chicago, B. & N. R. Co., 39 N. W. 629, 631, Conshohocken Ry. Co. v. Pennsylvania R. Co., 39 Minn. 286, 1 L. R. A. 493, 12 Am. St. Rep. 15 Pa. Co. Ct. R. 445; Maris v. Union Pass. 644.

Ry. Co. (Pa.) 30 Leg. Int. 153; Dooly Block Under the old Constitution of Illinois,

v. Salt Lake Rapid Transit Co., 33 Pac. 229, the words “taken for public use,” in the pro- Jacksonville St. R. Co., 19 Fla. 409, 428.

9 Utah, 31, 24 L. R. A. 610; Randall v. vision 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 Constitution. New Albany & S. R. Co. v. enjoyment of the property was materially O'Daily, 12 Ind. 551, 552; Faust v. Passeninterrupted. Rigney v. City of Chicago, 102 ger Ry. Co. (Pa.) 3 Phila. 164, 170; New III. 64, 74.

Mexican R. Co. v. Hendricks, 30 Pac. 901, A franchise is “taken,” within the mean. Odum, 53 Tex. 343, 351; Yates v. Town of

6 N. M. 611; Houston & T. O. R. Co. v. ing of the Constitution, providing that pri- West Grafton, 12 S. E. 1075, 34 W. Va. 783; rate property shall not be taken for public in re Philadelphia & T. R. Co. (Pa.) 6 Whart. 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.

Hudson River R. Co. (N. Y.) 7 Barb. 508; ments are diminished by an improvement which does not destroy or impair such pow. N. J. Eq. (2 Stockt.) 352, 358; Ottawa, O.

Morris & E. R. Co. v. City of Newark, 10 er or means. Such a diminution is, of course,

C. & C. G. R. Co. v. Larson, 19 Pac. 661, a damage, and may or may not constitute a valid cause of action, but does not bring 664, 40 Kan. 301, 2 L. R. A. 59; Same v.

Peterson, 19 Pac. 666, 40 Kan. 310. the case withiņ the constitutional prohibition. In re Hamilton Ave. (N. Y.) 14 Barb. The erection of telephone poles along 405, 411.

the streets of an incorporated city, town, or

village, with the consent of the council thereSame-Additional ase of streets.

of, is not such a "taking” of private property The authority to use a public high- for public use as will authorize the abutting way for the purpose of a railroad, retain- owner to enjoin the prosecution of such

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work until his damages are paid or secured.' where all access to the property is destroyMaxwell v. Central District & Printing Tele- ' ed, or where a part of the street abutting on phone Co., 41 S. E. 125, 126, 51 W. Va. 121. the property is taken, although the part acThe construction of a viaduct to carry

tually appropriated is beyond the center line the street at a higher level, for the benefit of St. P. Ry. Co., 20 N. W. 140, 141, 32 Minn.

of the street. Rochette v. Chicago, M. & the public, is a street use, and not a taking

201. of public property. Sauer V. City of New York, 83 N. Y. Supp. 27, 28, 40 Misc. Rep. Where the result of the order of railroad 585.

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.

egress, except by the permission of the ownIn the elevated railway cases in New er's neighbors, or by trespassing on the railYork it has been determined that there is a road location, the property of the owner of "taking," within the meaning of the consti- such house and lot was “taken” in the stricttutional provision prohibiting the taking of est sense. Cullen v. New York, N. H. & H. private property without compensation, by R. Co., 33 Atl. 910, 912, 66 Conn. 211. the act of the railroad in obstructing the easements of light and air to an adjoining

It has been uniformly held, since the property owner, though no part of his land Story Case, 90 N. Y. 122, 43 Am. Rep. 146, is actually taken in the construction of the that a partial destruction of easements by road; such decisions being based on the an elevated railroad is a taking of property theory that the owner has a kind of property within the meaning of the Constitution. in such easement. Bohm v. Metropolitan Sadlier v. City of New York, 81 N. Y. Supp. El. Ry. Co., 29 N. E. 802, 805, 129 N. Y. 576, 308, 315, 40 Misc. Rep. 78. 14 L. R. A. 344.

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. compensated, have frequently been held to Property is taken by an entry upon and oc- include any direct physical obstruction or cupation of it, as in the ordinary case of injury to the abutting premises, even if there location. It is injured by obstructing ac

be no actual appropriation or the land itself, cess, as in Pennsylvania R. Co. v. Duncan, as where by excavation or embankment wa5 Atl. 742, 111 Pa. 352, or drainage, as in ter was caused to overflow the same; a kind Pennsylvania S. V. R. Co. v. Ziemer, 17 or class of injuries for which, in the absence Atl. 187, 124 Pa. 560. Garrett v. Lake Ro- of constitutional and statutory enactment, a land El. Ry. Co., 29 Atl. 830, 832, 79 Md. remedy existed at common law. City of 277, 24 L. R. A. 396 (citing Jones v. Erie & Denver_v. Bayer, 2 Pac. 6, 10, 7 Colo. 113 W. V. R. Co., 25 Atl. 134, 137, 151 Pa. 30, 17 (citing Toledo W. & W. Ry. Co. v. Morrison, L. R. A. 758, 31 Am. St. Rep. 722).

71 Ill. 616; Hooker v. New Haven & N. R.

Co., 14 Conn. 146, 36 Am. Dec. 477). The word "taking,” in the clause of the state Constitution forbidding the taking of

The flowing of land against the owner's property except for compensation, and in the consent and without compensation is a "takcharter of a railroad company, does not ap- ing” of his property in violation of that proply to its act in making a large excavation vision of the Constitution which prohibits for the bed of its railroad in the land ad- the taking of property without compensajoining the plaintiff's, and so near his build

tion, Grand Rapids Booming Co. v. Jarvis, ing and so deep as to weaken his founda- 30 Mich. 308, 321; Hooker v. New Haven & tion and render it unsafe to use, or the rais- N. Co., 15 Conn. 312; Nevins v. City of ing in the street opposite to and near the Peoria, 41 Ill. 502, 510, 89 Am. Dec. 392; front of said building an embankment of Pettigrew v. Village of Evansville, 25 Wis. much greater height than the street was, and 223, 231, 236, 3 Am. Rep. 50; Arimond v. thereby obstructing the passage to and from Green Bay & M. Canal Co., 31 Wis. 316; plaintiff's building, darkening the windows, Eaton v. Boston, C. & M. R. R., 51 N. H. obstructing the air, and rendering the build- 504, 535, 12 Am. Rep. 147; City of Cumbering unfit for occupation. Bradley v. New land v. Willison, 50 Md. 138, 33 Am. Rep. York & N. H. R. Co., 21 Conn. 294, 308.

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. got touched or disturbed, as, for example, Mississippi & R. R. Boom Co., 28 Minn. 534,

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11 N. W. 114; Conniff v. City and County of liable for damages to abutting property ocSan Francisco, 7 Pac. 41, 44, 67 Cal. 45. But, casioned by a change in the grade of a street. in order for such flooding to be a taking, it Moore v. City of Atlanta, 70 Ga. 611, 613; is necessary that there be an actual, physical City of Elgin v. Eaton, 83 Ill. 535, 536, 25 invasion amounting to a practical ouster. Am. Rep. 412. Oontra, see Dickerman Y. High Bridge Lumber Co. v. United States, New York, N. H. & H. R. Co., 44 Atl. 228, 69 Fed. 320, 326, 16 C. C. A. 460.

229, 72 Conn. 271; Garraux v. City Council When real estate is actually invaded by of Greenville, 31 s. E. 597, 53 s. C. 575;

Methodist Episcopal Church v. City of Wysuperinduced additions of water, earth, sand, or other material, or by having any artificial andotte, 3 Pac. 527, 530, 31 Kan. 721. structure placed on it, so as to effectually Where an abutting owner is deprived of destroy or impair its usefulness, it is a “tak- the practical use of his buildings by reason ing," within the meaning of the Constitu- of a change of grade there is a taking of the tion, prohibiting the taking of property for property of the individual. In re Comesky, public use without just compensation. City 81 N. Y. Supp. 1049, 1051, 83 App. Div. 137. of Baltimore v. Merryman, 39 Atl. 98, 99, 86

“Taken," as used in Bill of Rights, $ 12, Md. 584; Weaver v. Mississippi & R. R. Boom Co., 11 N. W. 114, 115, 28 Minn. 534; providing that private property shall not be

taken without just compensation, means a Memphis & C. R. Co. v. Birmingham, S. & T. R. R. 06., 11 South. 642, 643, 96 Ala. 571, 18 trespass on or a physical invasion of the L. R. A. 166; Vanderlip v. City of Grand property. Property which is merely injured Rapids, 41 N. W. 677, 681, 73 Mich. 522, 3 change of grade of an adjacent street or oth

by consequential damages resulting from a L. R. A. 247, 16 Am. St. Rep. 597.

er improvement thereof, not constituting a The injury to land by water flowing diversion of the street from street purposes, through the waste weirs of a canal over the is not taken or appropriated. Selden v. City land of the intervening landowners, and on of Jacksonville, 10 South. 457, 458, 28 Fla. plaintiff's land, is so equivalent to a taking 558, 14 L R. A. 370, 29 Am. St. Rep. 278. within the meaning of constitutional provisions requiring compensation for land taken Deprivation of possession. for public purposes, that plaintiff will be

A “taking" under the right of eminent entitled to recover damages for such in- domain means the exclusion of the owner juries; and the fact that the company acted from use and possession of the property takas authorized and without negligence is no en, and the actual assumption of the possesdefense. Hooker v. New Haven & N. Co., sion by the party authorized to take, and 14 Conn. 146, 174, 36 Am. Dec. 477.

there would naturally be some proceeding in To maintain a boom, which, in the usual its nature judicial for the finding of the damcourse of things, will have the effect of ages thereby occasioned. Nolan v. City of working more or less damage to a person's New Britain, 38 Atl. 703, 707, 69 Conn. 668 lands and the crops thereon growing, once (citing Woodruff v. Catlin, 54 Conn. 277, 297,

6 Atl. 849). or twice in the course of seven or eight years, is just as much a "taking" or appro Land is not "taken" for a public use, priation of such person's property as it within the meaning of a statutory provision would be if the like effect occurred every requiring compensation to be paid for all land year, or every two years, or during those so taken, unless the land is taken into the months each year when the boom is in use. actual possession of the state or the grantee McKenzie v. Mississippi & R. R. Boom Co., of its power of eminent domain. Richardson 13 N. W. 123, 124, 29 Minn. 288.

v. Vermont Cent. R. Co., 25 Vt 465, 474, 60

Am. Dec, 283. Same-Grading streets.

When, and so far, as the owner of land The consequential injury occasioned by the grading of a street is not a "taking" of minion over and the right to use his land at

is prevented from exercising practical doprivate property for public use, within the his own free will and pleasure, it is "taken” prohibition of the Constitution. Macy v.

from him. Where a person takes exclusive City of Indianapolis, 17 Ind. 267, 269; Weis v. City of Madison, 75 Ind. 241, 250, 39 am, ering it with a solid wall of masonry many

possession and occupation of land, by covRep. 135; Smith v. City of Eau Claire, 47 N. W. 830, 78 Wis. 457; Smith v. Village of feet bigh, he takes it from the owner in the White Plains, 22 N. Y. Supp. 450, 67 Hun, though the legal title remains in the owner.

most thorough and effective manner, al81; Selden v. City of Jacksonville, 10 South. The legal title is not at all involved in an 457, 458, 28 Fla. 558, 14 L R. A. 370, 29 Am. unlawful taking of land, but the question is St. Rep. 278; Bradley v. New York & N. rather of practical dominion over and the H. R. Co., 21 Conn. 294, 309.

right to use it at the owner's free will and Under the constitutional provision that pleasure, so long as he does not injure bis private property shall not be taken for pub- neighbor or the public. Traute v. White, 19 lic use without just compensation, a city is Atl. 196, 197, 46 N. J. Eq. (1 Dick.) 437.

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Const. art. 1, § 14, declares that private The term "taking," as used in a constiproperty shall not be taken or damaged for tutional provision prohibiting the taking or public use without just compensation. Held, damaging of private property for public use that the word “taken,” as used in such sec- without compensation, does not include the tion, meant the change of possession from legal vacation of city streets and alleys. the owner to the public, and that the property City of East St. Louis v. O'Flynn, 10 N. E. was taken, within such provision, when the 395, 396, 119 Ill. 200, 59 Am. Rep. 795. possession passed from the control of the owner, and not when the title ultimately Diminution of value. passed to the public or corporation entitled to exercise the right of eminent domain. value is a “taking” of private property.

A partial destruction or diminution of Martin v. Tyler, 60 N. W. 392, 397, 4 N. D. Glover v. Powell, 10 N. J. Eq. (2 Stockt.) 211, 278, 25 L, R. A. 838.

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, whereby the owner is deprived of the beneficial bankment so near it as to impair its market

occasioned by the placing of a railroad emownership 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

Easement. was excepted from the mortgage. Law A statute requiring a canal company, rence v. London & Northwest American before ceasing work, to proceed along the Mortg. Co., 74 N. W. 892, 71 Minn. 535. line and procure releases for necessary lands

and materials, which releases shall operate Deprivation of use.

so as to vest in said state a full and complete In Pumpelly v. Green Bay & M. Canal right “to enter upon, use, and take” the same Co., 80 U. S. (13 Wall.) 166, 20 L. Ed. 557, it at any and all times, and authorizing the is said that a serious interruption to the board, in consideration of any privileges common and necessary use of property may granted by individuals to the state of right amount to a “taking,” within the meaning of way, to contract with said individuals on of constitutional provisions. Memphis & c. behalf of the state to erect across said canal R. Co. v. Birmingham, S. & T. R. R. Co., 11 any bridge or bridges for the benefit of such South. 642, 643, 96 Ala. 571, 18 L R. A. 166. individuals and the public, indicates an ease

ment, and not a fee simple absolute, and A statute imposing a penalty on any therefore the board has power to contract person who shall take, carry away, or remove for an easement. Indianapolis Water Co. v. any stones, gravel, or sand from any of the Kingan & Co., 58 N. E. 715, 718, 155 Ind. beaches in a certain town, passed for the 476. purpose of protecting the harbor, and extending as well to the owners of the soil

The act Incorporating a canal company, as to strangers, is not a “taking” of private and providing that, whenever lands, waters, property and appropriating it to public use, and materials should not be attained by volwithin the meaning of Declaration of Rights, untary donation or fair purchase, it should art. 10, so as to render it unconstitutional be lawful for the corporation, by any of their and void, although no compensation is there officers, and each and every agent, superinin provided for the owners. Commonwealth tendent, or engineer by them employed, to 1. Tewksbury, 52 Mass. (11 Metc.) 55, 56.

"enter upon, take possession of, and use" all

such lands, real estate, and streams as might The destruction of the use of a private be necessary for the purpose of constructing right of way across land adjoining the high- and maintaining the canal and works conway, by the location of a culvert and guard nected therewith, does not confer a right to ralls on such public highway, is a "taking" take the fee in land thus occupied, but that of private property for public uses. De Lau- right is confined to use and occupation only, der V. Baltimore County Com’rs, 50 Atl. 427, unless it be enlarged by the deed or gift of 129, 94 MA 1

the owner. There was in the company but

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