PETERS, J.
This is a proceeding to assess the damages sustained by appellee, (said Burkett,) for land condemned for the use of the said Alabama and Florida Railroad Company, which was instituted under the provisions of the act incorporating said company. — Pamph. Acts, 1849-1850, p. 173-L76; Act No. 125, § 9; Pamp. Acts 1853-1854, p. 258-259; Act No. 401, § 5. There was a trial in the circuit court of Butler county at the fall term, 1869, when a verdict and judgment was rendered in favor of said Burkett for $630 and costs. From this judgment said railroad company appeals to this court. And the errors here assigned arise upon the charge of the court given and the charge refused, as shown in the record.
The evidence in the court below tends to show that said Burkett owned one hundred and twenty acres of land, through which the railway of said company diagonally passes. It was also shown that Burkett had entered and purchased said land from the United States at the land office in the town of Greenville, in this State, under the graduation laws of the United States, on the first day of April, 1856; and that the survey of said railroad fixing definitely its location by final survey through appellee’s land, had been made before the said first day of April, 1856, but the map showing said definite location of said railroad through said land had not been filed in the United [575]*575States land offiee at Washington until the first day of May, 1856, when it was so filed in strict conformity with all the requirements of an act of congress, approved Aug. 4, 1852, entitled “ An act to grant the right of way to all rail and plank roads and macadamized turnpikes passing through the public land belonging to the United States.” — (10 U. S. States at Large, pp. 28-29.) And that the said railroad company had strictly complied with all the requirements of said act of congress after said location thereof over said land, and that said railroad had been continuously in operation since the year 1860, when it was completed through said lands, and said lands were, when said railroad was first surveyed and located through them and continued to be until Burkett entered them, subject to sale at private entry under the law of the United States.
Upon this testimony, the court charged the jury, “ that if they should'find for the plaintiff, (Burkett,) under the preceding charge of the court, (this charge is not' set out in the transcript,) then they must assess to the plaintiff the actual damage done to his land by the grading and running of the railroad through his land, taking into consideration the inconveniences arising from the fact that it was more difficult to go from one portion of the land to another, ■ that more fencing was required, estimating the value of the land actually taken by the road, and also taking into consideration the fact that defendant’s (plaintiff’s ?) stock were liable to be killed by the cars on the railroad, and that in making this estimate of the damage done, they were not-at all to take into consideration for the purpose of reducing the amount of damages, the enhanced value of the land caused by building or prospect of building the said railroad, and that they must estimate the damages at the time when the grading was done, and give interest from that time.” To this charge and every part of it said railroad company excepted.
The defendant, (said railroad company,) also asked the court to charge the jury, “ that if the location of the road had been definitely made by survey along the line upon which it was finally constructed on plaintiff’s land, while it [576]*576was public land of the United States and subject to sale at private entry, and if plaintiff after this location was so made by a final survey, knowing that it had been so made, entered the land at the United States land office, then the plaintiff can not recover in this action, although at the time he so entered it, the defendants had not filed in the United States land office at Washington a map of the definite location of said railroad, provided said defendant subsequently filed said map as required by the act of congress entitled as above set forth, and approved August 2, (4,) 1852.” This charge the court refused, and defendant excepted.
These charges raise two questions, the latter of which will be first disposed of. The court properly refused the charge last above cited. This appears from the language of the fourth proviso to the act of congress above cited. It is in these words : “Provided further, That when a location ' for either of said railroads or plankroads, macadamized turnpikes, or sites for depots on the line of such road or roads, shall be selected, the proper officers of such road or roads shall transmit to the commissioner of the general land office a correct plat of the survey of said road or roads, together with the survey of sites for depots, before said such selection shall become operative.” — 10 U. S. Stat. at Large, p. 28, ch. lxxx, § 3. Here the entry was made on the first day of April, 1856, and the plat of the survey of the railroad was not transmitted to the commissioner of the general land office, as required by the act of congress, until the first day of May afterwards. This was too late to give the railroad company a preference over the purchaser from the United States to the land in controversy. The grant was not operative until the plat was transmitted to the commissioner at Washington. And if, in the mean time, the land was sold to the citizen before the railroad company had placed its affairs in a condition to be entitled to the right of way over it as public lands, then it became the private property of the citizen, and the national government lost its control over it, for the purposes of said act of congress. After this, congress had no power [577]*577to dispose of it. — Const. U. S. Art. V ; Pasch. Const. U. S. p. 258, and notes. This proviso is a limit on the law of congress. — 15 Pet. 445. The congressional grant of the right of way is in this language: “Be it enacted, &c\, That the right of way shall be, and is. hereby granted, to all rail, plankroad or macadamized turnpike companies that are now, or that may be chartered within ten years hereafter, over and through any of the public lands of the United States over which any rail or plankroad, or macadamized turnpike are, or may be, authorized by an act of the legislature of the respective States in which public lands may be situated; and the said company or companies are hereby authorized. to survey or mark through the public lands to be held by them for the track of said road, one hundred feet in width; Provided, That in cases where deep excavation or heavy embankment is required for the grade of such road, then at such places a greater width may be taken by said company, if necessary, not exceeding in the whole two hundred feet.” — 10 U, S. Stat. at Large, p. 28, Ch. lxxx, § 1. Although this law gives a present right to pass over the public lands with a railroad, plankroad, or macadamized turnpike, this right ceases by the terms of the act as soon as the lands become private property. And this happens if the lands are entered by the citizen before this right becomes operative. This is the case in this instance. Then the court did not err in refusing the charge to this effect, above quoted.
But this cannot be said of the charge which was given and excepted to, as above shown. That charge cannot be supported.
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PETERS, J.
This is a proceeding to assess the damages sustained by appellee, (said Burkett,) for land condemned for the use of the said Alabama and Florida Railroad Company, which was instituted under the provisions of the act incorporating said company. — Pamph. Acts, 1849-1850, p. 173-L76; Act No. 125, § 9; Pamp. Acts 1853-1854, p. 258-259; Act No. 401, § 5. There was a trial in the circuit court of Butler county at the fall term, 1869, when a verdict and judgment was rendered in favor of said Burkett for $630 and costs. From this judgment said railroad company appeals to this court. And the errors here assigned arise upon the charge of the court given and the charge refused, as shown in the record.
The evidence in the court below tends to show that said Burkett owned one hundred and twenty acres of land, through which the railway of said company diagonally passes. It was also shown that Burkett had entered and purchased said land from the United States at the land office in the town of Greenville, in this State, under the graduation laws of the United States, on the first day of April, 1856; and that the survey of said railroad fixing definitely its location by final survey through appellee’s land, had been made before the said first day of April, 1856, but the map showing said definite location of said railroad through said land had not been filed in the United [575]*575States land offiee at Washington until the first day of May, 1856, when it was so filed in strict conformity with all the requirements of an act of congress, approved Aug. 4, 1852, entitled “ An act to grant the right of way to all rail and plank roads and macadamized turnpikes passing through the public land belonging to the United States.” — (10 U. S. States at Large, pp. 28-29.) And that the said railroad company had strictly complied with all the requirements of said act of congress after said location thereof over said land, and that said railroad had been continuously in operation since the year 1860, when it was completed through said lands, and said lands were, when said railroad was first surveyed and located through them and continued to be until Burkett entered them, subject to sale at private entry under the law of the United States.
Upon this testimony, the court charged the jury, “ that if they should'find for the plaintiff, (Burkett,) under the preceding charge of the court, (this charge is not' set out in the transcript,) then they must assess to the plaintiff the actual damage done to his land by the grading and running of the railroad through his land, taking into consideration the inconveniences arising from the fact that it was more difficult to go from one portion of the land to another, ■ that more fencing was required, estimating the value of the land actually taken by the road, and also taking into consideration the fact that defendant’s (plaintiff’s ?) stock were liable to be killed by the cars on the railroad, and that in making this estimate of the damage done, they were not-at all to take into consideration for the purpose of reducing the amount of damages, the enhanced value of the land caused by building or prospect of building the said railroad, and that they must estimate the damages at the time when the grading was done, and give interest from that time.” To this charge and every part of it said railroad company excepted.
The defendant, (said railroad company,) also asked the court to charge the jury, “ that if the location of the road had been definitely made by survey along the line upon which it was finally constructed on plaintiff’s land, while it [576]*576was public land of the United States and subject to sale at private entry, and if plaintiff after this location was so made by a final survey, knowing that it had been so made, entered the land at the United States land office, then the plaintiff can not recover in this action, although at the time he so entered it, the defendants had not filed in the United States land office at Washington a map of the definite location of said railroad, provided said defendant subsequently filed said map as required by the act of congress entitled as above set forth, and approved August 2, (4,) 1852.” This charge the court refused, and defendant excepted.
These charges raise two questions, the latter of which will be first disposed of. The court properly refused the charge last above cited. This appears from the language of the fourth proviso to the act of congress above cited. It is in these words : “Provided further, That when a location ' for either of said railroads or plankroads, macadamized turnpikes, or sites for depots on the line of such road or roads, shall be selected, the proper officers of such road or roads shall transmit to the commissioner of the general land office a correct plat of the survey of said road or roads, together with the survey of sites for depots, before said such selection shall become operative.” — 10 U. S. Stat. at Large, p. 28, ch. lxxx, § 3. Here the entry was made on the first day of April, 1856, and the plat of the survey of the railroad was not transmitted to the commissioner of the general land office, as required by the act of congress, until the first day of May afterwards. This was too late to give the railroad company a preference over the purchaser from the United States to the land in controversy. The grant was not operative until the plat was transmitted to the commissioner at Washington. And if, in the mean time, the land was sold to the citizen before the railroad company had placed its affairs in a condition to be entitled to the right of way over it as public lands, then it became the private property of the citizen, and the national government lost its control over it, for the purposes of said act of congress. After this, congress had no power [577]*577to dispose of it. — Const. U. S. Art. V ; Pasch. Const. U. S. p. 258, and notes. This proviso is a limit on the law of congress. — 15 Pet. 445. The congressional grant of the right of way is in this language: “Be it enacted, &c\, That the right of way shall be, and is. hereby granted, to all rail, plankroad or macadamized turnpike companies that are now, or that may be chartered within ten years hereafter, over and through any of the public lands of the United States over which any rail or plankroad, or macadamized turnpike are, or may be, authorized by an act of the legislature of the respective States in which public lands may be situated; and the said company or companies are hereby authorized. to survey or mark through the public lands to be held by them for the track of said road, one hundred feet in width; Provided, That in cases where deep excavation or heavy embankment is required for the grade of such road, then at such places a greater width may be taken by said company, if necessary, not exceeding in the whole two hundred feet.” — 10 U, S. Stat. at Large, p. 28, Ch. lxxx, § 1. Although this law gives a present right to pass over the public lands with a railroad, plankroad, or macadamized turnpike, this right ceases by the terms of the act as soon as the lands become private property. And this happens if the lands are entered by the citizen before this right becomes operative. This is the case in this instance. Then the court did not err in refusing the charge to this effect, above quoted.
But this cannot be said of the charge which was given and excepted to, as above shown. That charge cannot be supported. The section of the present constitution of the State, by which the citizen is protected in the use and in the right to his private property, declares “that private property shall not be taken or applied for public use, unless just compensation be made therefor; nor shall private property be taken for private use or for the use of corporations, other than municipal, without the consent of the owner; Provided, however, that laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations and for works of [578]*578internal improvement, the right to establish depots, stations and turn-outs; but just compensation shall, in all cases, be first made to the owner.” — Const. Ala. 1867, Art. 1, § 25. But this section and section 5 of article 13 of the present constitution, which greatly modifies the future laws upon such subjects, (Const. Ala. 1867, Art. xiii. § 5,) were not parts of the constitution of this State at the time the Alabama & Florida Railroad Company was incorporated. This charter is a contract made by the State with the corporators, and as such it is protected in all the privileges granted by it, by the constitution of the United States. Dartmouth College v. Woodward, 4 Whea. 518, 629 ; Bridge Proprietors v. Hoboken Company, 1 Wall. 146,147 ; Micou v. Pres’t & Directors Tallassee Bridge Company, in Mss. June 2, 1871. The State cannot, therefore, impair the franchises secured by the charter, either by its constitution or by its laws. The prohibition is on “the State,” which includes a prohibition both upon the legislature and the convention. — Const. U. S. Art. 1, § 10; Pasch. Const. U. S. p. 153 and notes. One of the sections of the charter of this company is as follows: “Be it enacted, &c., That in all cases where land is condemned to the use of said company, the jury, in assessing the damages sustained by the owner, shall take into consideration the increased value which will result to such lands from the construction of the road, and shall, before making the assessment, be sworn truly to enquire and assess the damages such owner may sustain, taking into consideration the probable advantages he may derive from the construction of the road, in increasing the value of his lands.” — Pamph. Acts, 1853-4, pp. 258-59 ; Act No. 401, § 5 ; Pamph. Acts, 1849-50, p. 173; Act No. 125, § 9. It is now the better opinion, that the State legislature may permit such condemnation of lands belonging to the citizen, to the use of railroads, and may prescribe the mode of estimating the damage to the land thus subjected to the use of a railway company, if there is no prohibition in the State constitution which forbids it. — Blood-good v, Mohawk & Hudson Railroad Company, 14 Wend. 51; S. C. 18 Wend. 9 ; 2 Amer. Railw. Cas. 421; Rogers v. [579]*579Kennebec & Portland Railroad Company, 35 Maine, 319 ; Johnson v. Joilet, &c., Railroad Company, 23 Ill. 202; Bona-parte v. Camden & Amboy Railroad Company, 1 Bald. C. C. 205.
Under the law of the charter of this road, all the owner of the land should be entitled to receive is, “just compensation.” These terms imply something more liberal than the mere market price of the thing taken. They open the inquiry so as to include an estimate of the benefits as well t as the injuries, and the adjustment of the difference between them. Compensation is an equitable term, and literally means the balancing of one thing against another. Webster’s Diet. Unabr., word Compensation, p. 261. It imports something different from a mere payment of a sum of money for the injury done to the land. It looks to compensation on both sides. That is, a just balancing of the advantages against the disadvantages. The charge of the court, which was given and excepted to, was not in conformity with this construction of the statute law, which governs this case. It was therefore erroneous. But a different rule must govern in cases arising under charters granted since the adoption of the present constitution of the State. — Const. Ala. Art 1, § 25 ; Art. xiii., § 5.
The charge given was also vicious for another reason. By it the court directs the jury, in estimating the damages, they are to take into consideration that “more fencing was required” on the land, and the farther fact, that the “plaintiff’s stock were liable to be killed by the cars on the railroad.” Both these were injuries that might not occur. It has not been found necessary to fence railroads that pass through enclosures or farms. These additional fences are usually obviated by the simple contrivance of a pit, where the roadway crosses a fence or enclosure around a lot or farm. And it may also happen that no stock, the property of the plaintiff, may ever be killed by the cars on the railroad. And if it should be, there is another mode presented to recover damages for the injury thus occasioned. — Rev. Code, §§ 1399,1400, 1401, 1406 ; Nashville & Decatur Rail-road Company v. Comans, 45 Ala. 437. Besides, if dam[580]*580ages for such prospective killing and injury of stock should be allowed to be recovered in this way, and then again as the above cited statute prescribes, this would be a double satisfaction for the same injury, which would not be a just compensation for the property injured. A double satisfaction is not allowed. — McLane v. Miller, 10 Ala. 856. Moreover, such damages would be too remote. — Sedgw. on Dam. pp. 57, 58, 4th ed. It is by no means certain that they would ever be occasioned by the railroad.
The judgment of the court below is reversed and the cause is remanded for a new trial.