a possession and use, in other words, a right | R. A. 782. See, also, In re Opinion of Jusof way, and that for a single purpose, the tices, 13 Fla. 699, 701. construction and maintenance of a canal; and, when the canal was abandoned, the use and occupation of the land reverted to the owner of the land. Pittsburgh & L. E. R. Co. v. Bruce, 102 Pa. 23, 33. Exclusive appropriation. "Taken," as used in Const. Bill of Rights, art. 12, providing that no man's property shall be taken without compensation, does not necessarily mean an exclusive appropriation, a total assumption of possession, a complete ouster, or an absolute or total conversion of the entire property; but a physical interference with the land, which substantially abridges the right of the user, including the corresponding right of excluding others from the use, takes the owner's property to so great an extent as he is deprived of this right. Eaton v. Boston, C. & M. R. R., 51 N. H. 504, 512, 12 Am. Rep. 147. The word "taken," in Const. art. 1, § 11, providing that the property of no person shall be taken for public use without just compensation therefor, in its application to the condemnation of land for railway use, means the exclusion of the owner from the use and possession, and the actual assumption of exclusive possession by the railroad corporation, at the termination and as the result of judicial proceeding. New York, N. H. & H. R. Co. v. Long, 37 Atl. 1070, 1072, 69 Conn. 424 (citing Woodruff v. Catlin, 54 Conn. 277, 279, 6 Atl. 849, 854). In relation to the right of eminent domain, it has been held necessary to the idea of a "taking" that there must be an exclusive appropriation; a physical, tangible appropriation of the property of another; a taking the property altogether. This is the doctrine announced in Hurt v. City of Atlanta, 100 Ga. 274, 28 S. E. 65, and some other cases. But the rule more frequently held, and we think the more enlightened rule, is that this limitation of the term "taking" to the actual physical appropriation of the corpus is too narrow a construction to meet the demands of justice, and that, from the very nature of the right of user and exclusion, it is evident that they cannot be materially abridged without necessarily taking the owner's property. So that an attempt by a private corporation to invade the right of an abutting owner in the street, by placing in the street in front of the lot permanent erections which will in any appreciable degree impair the owner's access to the lot, or otherwise interfere with the full enjoyment of the lot for all purposes to which it is adapted, or of the street itself, such an invasion is an attempted taking. Callen v. Columbus Edison Electric Light Co., 64 N. E. 141, 144, 66 Ohio St. 166, 58 L. Where the construction of a railroad is authorized by competent authority, and there is no invasion of or physical interference with the property of an abutting owner, there is no "taking," within the meaning of the Constitution, forbidding the taking of property for public use without just comCo., 41 Atl. 1069, 1071, 88 Md. 533. pensation. Poole v. Falls Road Electric Ry. Filing of award in condemnation. For the purpose of fixing the value of the property, land is to be deemed "taken” for a public use as of the date of the filing of the award by the commissioners in condemnation proceedings. City of Minneapolis V. Wilkin, 15 N. W. 668, 669, 30 Minn. 145. Injury distinguished. See "Injury to Property." Occupation preliminary to condemnation, The word "taking," within the meaning of Const. art. 1, § 21, declaring that private property shall not be taken for public use without just compensation, does not include of an individual as an incipient proceeding a temporary exclusive occupation of the land to the acquisition of a title to it, or an easement in or for a public use, although such occupation may be more or less injurious to the owner. Such temporary occupation, however, will become unlawful, unless the parties authorized to make it acquire within a reasonable time from its commencement a title to the land, or at least an easement in it. Nichols v. Somerset & K. R. Co., 43 Me. 356, 361; Cushman v. Smith, 34 Me. 247, 265. The occupation of land by a corporation for its own purpose, pending proceedings for condemnation, is a "taking" of the property, within the meaning of the Constitution, prohibiting the taking of private property for public use without compensation. Callahan v. Dunn, 20 Pac. 737, 739, 78 Cal. 366 (citing Davis v. San Lorenzo R. Co., 47 Cal. 517, 523; San Mateo Waterworks v. Sharpstein, 50 Cal. 284; Sanborn v. Belden, 51 Cal. 266; Vilhac v. Stockton & I. R. Co., 53 Cal. 208). The entering on land, and making the necessary surveys and examinations thereof, for the purpose of determining the most advantageous route, place, or places for a proper line, course, road, and way whereon to construct a single or double railroad or way is not in ordinary acceptation or legal contemplation the "taking of land," within the Constitution, requiring compensation to be made for the taking of land for public use; for there is no exercise of exclusive control or authority over the soil. A mere The grant to a telephone company to place its poles in the highway does not constitute the taking of land within the statute. Nicoll v. New York & N. J. Tel. Co., 40 Atl. 627, 628, 62 N. J. Law, 156. passing over for the purpose of examining Sudbury river, for the purpose of and surveying the most feasible route for furnishing a supply of pure water for the the road, and for the lands necessary to be city," above a dam erected by it or in process taken on which to construct a road, cannot of erection, and the filing in the registry of be said to be taking the land thus examined, deeds of a description of the stream taken, and surveyed; but when the examinations within 60 days from the time of such taking, and surveys are completed, and the defend- as provided by St. 1846, c. 167, § 1, is not ants in pursuance thereof have selected the such a taking as will enable a riparian ownlands intended for the objects of the incor- er above the dam to claim damages against poration, or when they enter into the pos- the city, in the absence of any actual injury session of and use the lands thus selected to his water rights. Dwight Printing Co. v. in the construction of their road, regardless City of Boston, 122 Mass. 583, 585. of and in defiance of the rights and possession of the owner in fee, then it may be said in common parlance and in legal sense that the defendants have taken the plaintiff's land. They are using it as their own, in exclusion of the plaintiff's right to use it. Although the legal fee may not be in them, yet they are exercising all the attributes of absolute ownership. They tear down houses and outhouses, they cut up gardens, meadows, fields, and farms, they reduce hills and fill up valleys, they tear down fences, cut up and use the soil, as best answers their purposes, and do every act in relation thereto which the absolute owner of the fee could do. The taking of land does not mean the taking of the fee of the land. Bloodgood v. Mohawk & H. R. R. Co. (N. Y.) 18 Wend. 9, 34, 31 Am. Dec. 313. Police regulations. A regulation adopted for public safety under the police power of the state is not a "taking" of private property without just compensation, although conformity to such regulations involves expense. Morris & E. R. Co. v. City of Orange, 43 Atl. 730, 732, 63 N. J. Law, 252 (citing Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109). The term "taking," within the meaning of the federal Constitution, does not apply to an appropriate regulation of the use of property. Thus, in the absence of any contract rights, before municipal ordinances, prohibiting a railroad from using steam on a portion of the railroad track on a certain street is not a taking within the prohibition of the Constitution. Richmond, F. & P. R. Co. v. Richmond, 96 U. S. 521, 528, 24 L. Ed. 734. Tiedeman's Limitation of Police Power, 122, says: "Arbitrary interference, by government or by its authority, with the reasonable enjoyment of private lands, is a taking of private property without due process of law, which is inhibited by the Constitution." First Nat. Bank v. Sarlls, 28 N. E. 434, 437, 129 Ind. 201, 13 L. R. A. 481, 28 Am. St. Rep. 185. An order of a city council laying out a section of a stream as a sewer, followed by the construction of sewers, through which the water is afterwards discharged, is a "taking" of the waters of the stream, within St. 1867, c. 106, and St. 1871, c. 304, requiring that actions for damages shall be commenced within two years from the time of the taking of the water. Worcester Gaslight Co. v. County Com'rs, 138 Mass. 289, 291. Same-Location of road. "The taking and appropriation of land by a railway company means the location of a railway by survey. Though actual construction has not commenced for a long period of time thereafter, there is a 'taking and appropriation' at the time of the location by survey." Pittsburgh, V. & C. Ry. Co. v. Commonwealth, 101 Pa. 192, 196. When a road is located, the land is not "taken," in the technical sense of that term. No authority is given any person or corporation to take land for a highway. The high way is located or laid out over the land directly by public authority. Wright v. Woodcock, 29 Atl. 953, 954, 86 Me. 113, 25 L. R. A. 499. Land is not "taken," within the meaning of Pennsylvania Constitution, requiring that compensation shall be made for land taken for public use, by the mere location of a street on the plans of a city. Bush v. City of McKeesport, 30 Atl. 1023, 1024, 166 Pa. 57. "Taking," as used in Rev. St. c. 39, § 60, providing that, if any railroad corporation shall by virtue of its charter have taken any lands or other property for the purpose of their railroad, the owner of any such land or other property may, at any time within three years from the time of taking the same, demand in writing of the treasurer or principal agent of the corporation a plan or description in writing of the land or oth Proceedings preliminary to appropria- er property so taken, means the filing of the tion. The taking by the city of Boston, under St. 1872, c. 177, § 1, of "all the water of 8 WDS.& P.-5 location of the road as required by the statute, and not the making of the road; for, if the latter had been intended, no plan or de scription of the road would be necessary or usual. The commencement of making the road would be a sufficient notice of its location. Charlestown Branch R. Co. v. Middlesex County Com'rs, 48 Mass. (7 Metc.) 78, 83. Seizure under attachment. A seizure of property under attachment is not a "taking of property," in the sense of the rule of justice which forbids the taking of property, except according to the law of the land; but it is a divestiture of possession, one of the elements of a complete title. First Nat. Bank v. Swan, 23 Pac. 743, 745, 3 Wyo. 356. Taking for fence. There is a "taking" of private property, within the meaning of the Constitution, prohibiting the taking of private property for public purposes without compensation, where the Legislature proposes to exercise the right of eminent domain by making a public pasture on the lands of freeholders living within a proposed inclosure, and in order to accomplish that purpose authorizes the occupation of so much land as might be necessary to the building of the inclosure fence. Fort v. Goodwin, 15 S. E. 723, 726, 36 S. C. 445. The phrase "taking for public use," in the constitutional provision prohibiting a taking of property for public use without just compensation, "is defined to be the actual seizing or direct taking of specific property for public use, as distinguished from incidental injury to it when not taken on the one hand, or the levying of taxes in the form of money or labor, or even of specific goods, on the other, for the public service. It is not the thing required, whether money or service, or a specific article of land or personalty, which constitutes the difference; but the manner of taking it." An assessment of benefits against property for public improvements is not a "taking," within the meaning of such provision. In re Dorrance St., 4 R. I. 230, 245. The levying and collection of taxes is not the "taking" of private property for pub lic use, within the meaning of Const. art. 1, § 6, providing that no private property shall be taken for public use without just compensation; but that provision applies to the taking of property under the exercise of the right of eminent domain. Howell v. City of Buffalo, 37 N. Y. 267, 270; In re Opinion of Justices, 13 Fla. 699, 701. Using or enlarging irrigation ditch. The using or enlarging of an irrigating ditch without the owner's consent is as much a "taking or damaging" of private property within the meaning of the Constitution, prohibiting the taking or damaging of private property for public use without compensation, as would be the appropriating the right of way therefor in the first instance. Tripp v. Overocker, 1 Pac. 695, 697, 7 Colo. 72. Construction of wharf. The building by the state, or its grantees, of wharves upon shores of navigable waters, does not constitute either a "taking or damaging of private property for public use," within the Constitution. Eisenbach v. Hatfield, 26 Pac. 539, 544, 2 Wash. St. 236, 12 L. R. A. 632. TAKING (In Larceny). See "Fraudulent Taking." Asportation. To take an article signifies merely to lay hold of, grab, or seize it, with the hands or otherwise. Thus, where the defendants laid hold of and with a sledge broke in pieces a cast iron balance wheel, animo furandi, there was a taking of it within the contemplation of the criminal law. Gettinger v. State, 14 N. W. 403, 404, 13 Neb. 308. То The term "taking." as used in the ruie that in every larceny there must be an actual taking, means a felonious severance of the goods from the possession of the owner. take an article signifies to lay hold of, or to grasp it, either with the hands or otherwise. The man who laid his hand upon the horse in the close, or grasped a package in the bed of a wagon, or seized the sack in the boot of the coach, or laid hold of the article fastened to the counter by the string, with intent to steal these several articles, was guilty of a felonious taking thereof, although neither of them were wholly removed from the places where they were respectively laid hold of, grasped, or seized. But this felonious taking does not constitute the offense of larceny, but the property so taken must also be carried away. State v. Chambers, 22 W. Va. 779, 790, 46 Am. Rep. 550. "Taking," as the term is used in the law of larceny, under Pen. Code, art. 726, providing that, to constitute a taking, it is not necessary that the property be removed any distance from the place of taking, nor | State v. Chambers, 22 W. Va. 779, 197, 46 is it necessary that any time shall elapse Am. Rep. 550. between the taking and the discovery thereof, applies to the act of accused in unlocking a bureau drawer and taking only $6 of $51 contained therein, and renders him guilty of taking the entire amount, if he is caught with his hand in the drawer. Harris v. State, 14 S. W. 390, 391, 29 Tex. App. 101, 25 Am. St. Rep. 717. See, also, Hardman V. State, 12 Tex. App. 207. At common law a carrying away, or asportation, was necessary, in connection with the fraudulent taking; but under the Code it is not necessary that the property be removed any distance from the place of taking, but it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it. Nor is it necessary that any definite length of time should elapse between the taking and the discovery thereof; but, if a moment elapses, the offense is complete. Madison v. State, 16 Tex. App. 435, 440. A "taking," within the meaning of the rule that there must be a taking of property to constitute larceny, is shown by the fact of shooting a cow in the woods, and in taking possession and handling the carcass, so as to progress half way in skinning it, and leaving the carcass only when frightened by the bark of a dog and the approach of men. Lundy v. State, 60 Ga. 143. Felonious taking. "Taking," as the term is understood in the law of larceny, means a felonious taking; and thus the taking up of an animal as an estray, without an intention to steal it, is not such a taking, though the finder afterwards wrongfully appropriates the animal to his own use. Beatty v. State, 61 Miss. 18, 21. "Taking," within the meaning of the term as used in the law of larceny, means wrongful taking. If the property comes into the possession of the person accused of theft by lawful means, his subsequent appropriation of it is not theft, as there is no felonious taking. Pitts v. State, 3 Tex. App. 210, 211. making it criminal for any person to steal "Taking," as used in 4 Stat. 107, § 22, letter, etc., means "a clandestine taking, not or take away from any mail or post office a a taking through mistake or with an innocent intent. It must be a taking with a criminal intent." United States v. Pearce (U. S.) 27 Fed. Cas. 480, 481 (citing United States v. Marselis [U. S.] 26 Fed. Cas. 1168; In re Burkhardt [U. S.] 33 Fed. 27). "Taking," as used in defining larceny, means "a taking without a consent of the owner and with the intention to deprive him of his property. Such taking need not necessarily be by force, or without the knowledge of the owner; but where the owner's consent is obtained to a surrender of possession for some temporary and legiti manently deprive the owner of his property and convert the same to his own use, the consent is a nullity, out of which no legal possession nor right of possession against the owner can arise, and is a taking and carrying away within the meaning of the defi nition." State v. Woodruff, 27 Pac. 842, 47 Kan. 151, 27 Am. St. Rep. 285. "Taking and carrying away," as used in reference to a charge of larceny, does not mean that the property must be taken and carried away, in order to constitute larceny; but any removal, however slight, of an arti-mate purpose, and the taker intends to percle which is not attached either to the soil, or any other thing not removed, is sufficient. Therefore, if a thief has the absolute control of the thing but for an instant, and he removes it ever so little space, the larceny is complete; and hence, if a person thrust his hand into the pocket of another with intent to steal his pocketbook, and seizes such pocketbook and lifts it to the top of the pocket, and, on being detected, releases his grasp thereon and leaves the pocketbook hanging partly out of the pocket, such tak ing and removal was sufficient to constitute larceny. The guilt of the party does not de pend on the length of the time he held absolute possession and control of the property, nor on the distance to which he may have removed the same, nor whether he released his grasp because he repented of his act, or was interrupted or prevented by any cause whatever from carrying the property away; for the crime was completed by the very first act of felonious removal of the pocketbook, and the severance of the property from the possession of the owner and the thief's control of it for an instant of time was sufficient. "Taking," as the term is used in the law of larceny, means a taking without right and with an intention of converting the property to a use other than that of the owner and without his consent. State v. Campbell, 18 S. W. 1109, 108 Mo. 611. The taking necessary to constitute larceny means a fraudulent and secret taking, so as not only to deprive the owner of his property, but also to leave him without knowledge of the taker. State v. Ledford, 67 N. C. 60, 62. "Taking," within the meaning of the term as used in the law of larceny, means a taking against the will of the owner. Dodge v. Brittain, 19 Tenn. (Meigs) 84, 86; Hite v. State, 17 Tenn. (9 Yerg.) 198, 205. There fore there is no larceny if the thing alleged to have been stolen be sent by the owner for the purpose of entrapping the taker. Dodd v. Hamilton, 4 N. C. 471, 473. "Taking," within the meaning of the term as used in the law of larceny, is a taking in such a manner as to constitute a trespass, and therefore, to constitute the larceny of a slave, it must appear that the accused obtained possession of the slave without the consent of the owner. Kemp v. State, 30 Tenn. (11 Humph.) 320, 321. "Taking," within the rule that there must be a taking of property to constitute a theft, even though it is provided by statute that asportation of the property is not essential to complete the crime, means a fraudulent taking. Lott v. State, 20 Tex. App. 230, 231; Madison v. State, 16 Tex. App. 435, 440. See, also, Tanner v. Commonwealth (Va.) 14 Grat. 635, 640. "Taking," within the meaning of the term as used in the law of larceny, is shown by the act of a passenger on a railway train in throwing from a car a bale of cotton belonging to another with intent to convert the same. Price v. State, 41 Tex. 215, 216. Possession by accused. To constitute a taking, the property must in some manner come into the possession of the party accused of the theft, either actually or constructively. Minter v. State, 9 S. W. 561, 26 Tex. App. 217. Possession by owner. A taking of property, such as to constitute larceny, must be from the actual or constructive possession of the owner. Hite v. State, 17 Tenn. (9 Yerg.) 198, 205; People v. McDonald, 43 N. Y. 61, 63. The term "taking," within the meaning of the rule that there must be a taking to constitute the crime of larceny, means a taking involving a trespass; and to constitute such a trespass the subject-matter must at the time of the taking be in the possession of the persons rightfully entitled thereto. Morehead v. State, 28 Tenn. (9 Humph.) 635, 636. The term "taking," in the law of larceny, necessarily imports that the property taken is in the possession of another; but in this connection it is necessary to discriminate between what constitutes in law a possession of property and what amounts only to its care and charge. Thus a servant has charge of the property of his master, but not the possession thereof, and if he appropriates the property it is a taking from the possession of the master and larceny. People v. Call (N. Y.) 1 Denio, 120, 123, 43 Am. Dec. 655. Sale under claim of ownership. The term "taking," within the meaning of the rule that there must be a taking to constitute larceny, includes the act of a person claiming ownership and possession of an animal owned by another and selling it to a third person. State v. Hunt, 45 Iowa, 673, 675. "Taking," within the meaning of the rule that there must be a taking of property in order to constitute larceny, is not shown by the fact that defendant falsely claimed an animal which was running on the range Hardeman v. State, 12 Tex. App. 207; Madias his property, and sold it to a third person. son v. State, 16 Tex. App. 435, 440. The term "taking," as used in the law of larceny in Texas, which by statute has provided that asportation of the stolen goods is not a necessary element of the crime of theft, includes the act of defendant in point ing out certain animals on the range and falsely claiming that he owns them, and selling them to the witness. Doss v. State, 2 S. W. 814, 21 Tex. App. 505, 57 Am. Rep. 618. "Taking," within the meaning of the term as used in the law of larceny, imports a trespass in connection therewith. One who states to a pound keeper that a certain animal in the pound is his, and sells it to the pound keeper, is not guilty of such a taking, though the pound keeper removes the animal from the pound in reliance on such a purchase, and therefore the seller cannot be convicted of larceny. People v. Gillis, 21 Pac. 404, 405, 6 Utah, 84. Taking by third person. law of larceny, is not necessarily a taking "Taking," within the meaning of the by the hands of the thief himself; but it is sufficient if the thief procured an innocent person to take the property for him. Cummins v. Commonwealth, 5 Ky. Law Rep. 176. the meaning of the law of larceny, when the There is a taking of property, within property is taken by a third person upon defendant's advice and procurement, and delivered it to the defendant. Sanderson v. Commonwealth (Ky.) 12 S. W. 136. Trespass imported. "Taking," within the meaning of the term as used in the law of larceny, imports a taking in the nature of a trespass. State v. Braden, 2 Tenn. (2 Overt.) 68; Lawrence v. State, 20 Tenn. (1 Humph.) 228, 234, 34 Am. Dec. 644; Hite v. State, 17 Tenn. (9 Yerg.) 198, 205; Robinson v. State, 41 Tenn. (1 Cold.) 120, 121, 78 Am. Dec. 487; Morehead v. State, 28 Tenn. (9 Humph.) 635, 636; Porter v. State (Tenn.) Mart. & Y. 226; Kemp v. State, 30 Tenn. (11 Humph.) 320, |