JUDGE ROBERTSON
delivered the opinion of the court —
JUDGE WILLIAMS dissenting:
The charter of the Covington and Cincinnati Bridge Company provides that it “ shall have power and authority to [373] proceed and condemn any and all real property that may be necessary for the location and erection or convenience of its bridge, toll-house, abutments, piers, anchor pits, or approaches to said bridge, or to be in any way for the convenience of the same,” by a prescribed proceeding under a writ of ad quod damnum, wherein a jury, on its own view and on extraneous testimony, “if necessary,” shall assess “the cash value in damages which the proprietor or proprietors will sustain by an appropriation of the same in the manner proposed.” It also provides, that “ should the bridge company, or any proprietor of such property, be dissatisfied with the finding of the jury, an appeal may be taken to the circuit court of Kenton county, where the trial shall be had as in other ordinary cases. Should the bridge company wish to use the property during the pend-ency of an appeal, it may do so on depositing the amount of the finding in any specie-paying bank in Covington to the credit of the proprietor or proprietors of the property.”
On the 25th of April, 1863, the company proceeded, in the mode prescribed, to condemn to its use and assess the value of three lots of ground in Covington near the bridge — one as the property of Mrs. Willis, and the other two as the property of Thomas N. Arnold, children of James G. Arnold, who, as admitted owner of all these lots, had conveyed one to his said daughter’s separate use, free from the control of her husband, retaining a lien for an unpaid balance of the price, and had signed a conveyance of the other two to his said son, and deposited it with a stranger, as an escrow, to be delivered on prescribed conditions which do not appear to have been fulfilled, and, consequently, there is neither evidence nor presumption of a delivery of the deed.
The jury on the ground having assessed the value of one lot as the property of Mrs. Willis, and of the other two as the property of Thomas N. Arnold, they, and their father,,James G. Arnold, appealed to the circuit court of Kenton. And, thei’eupon, the bridge company deposited in a non-specie-paying bank, in paper currency, the aggregate amount of the assessment, which the appellants refused to accept.
On the trial in the circuit court, nearly a year after the ap[374] peal, the appellants offered to prove the value of the lots at that time of the trial; but the court restricted the assessment of value to the time of the first inquisition, and instructed the jury, at the instance of the appellee, that, if they should find that the lots are “ necessary for the purposes of the bridge, they must assess the value thereof in cash as of the 25th of April, 1863.” On that instruction, and without viewing the ground, the jury reduced the aggregate of the first assessments $ 1,200, and the company having tendered the amount in court in U. S. Treasury notes, the court confirmed the verdict, and ordered the payment of the paper as tendered to Mrs. Willis and to Thomas N. Arnold, in their respective portions, as assessed. This appeal by James G. Arnold, Thomas N. Arnold, and Mrs. Willis, seeks the reversal of that judgment.
In limine the counsel for the appellants insists that, as the company is a private corporation, the Legislature had no constitutional power to authorize it to take and apply to its own use private property, even on payment of its value, without the owner’s consent. In this conclusion we cannot concur. Admitting the premise, the conclusion is neither legal nor logical; for although the company may use the bridge for its own profit, yet it must permit its use by the people for the public convenience as a common highway. As a viaduct it is an integral and useful part of a continuous line of national travel, and, for that purpose, is as much dedicated to public use as it could have been had it been, in all respects, public property and erected at public expense.
It is this object of public use and right to enjoy it that makes it a public highway, and legalizes the contested authority conferred by the charter. In the same way, railroads and turnpikes are made by private capital, directly for the profit of the contributing stockholders, but incidentally for public use and benefit. And because such highways, thus owned and constructed by private persons, are dedicated to public use and subserve the purposes of social and commercial intercourse, and thus promote the public welfare, the judiciary has uniformly maintained the constitutionality of legislative authority to all such corporations to take private property, as far as [375] may be essentially useful, by paying the owner the assessed value of it. But the constitution constructively requires an impartial assessment, by a judicial process, of the actual value in money, and full payment, before private property shall be appropriated to public use. Any other interpretation might frustrate the conservative aim of the great guaranty of private property against a capricious and unjust assertion of the inherent right of eminent domain. And, for affectuating this chartered security, the Legislature, knowing that any other than the metallic currency is frequently and extremely fluctuating, and that the latter is the only safe and stable representative of value, wisely required, in this company’s charter, a judicial assessment of the value “in cash” and either a payment in cash or a deposit of the money in a “ specie-paying bank.” For these stringent requisitions we can see no other object than to secure to the owner the cash or specie value. It seems to us that, had not this been the provident purpose, the unusual requisition, peculiar to this charter, to assess in cash, and deposit the amount so fixed in a “ specie-paying bank,” from which it could be drawn either in specie or its equivalent in paper, would never have been prescribed.
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JUDGE ROBERTSON
delivered the opinion of the court —
JUDGE WILLIAMS dissenting:
The charter of the Covington and Cincinnati Bridge Company provides that it “ shall have power and authority to [373] proceed and condemn any and all real property that may be necessary for the location and erection or convenience of its bridge, toll-house, abutments, piers, anchor pits, or approaches to said bridge, or to be in any way for the convenience of the same,” by a prescribed proceeding under a writ of ad quod damnum, wherein a jury, on its own view and on extraneous testimony, “if necessary,” shall assess “the cash value in damages which the proprietor or proprietors will sustain by an appropriation of the same in the manner proposed.” It also provides, that “ should the bridge company, or any proprietor of such property, be dissatisfied with the finding of the jury, an appeal may be taken to the circuit court of Kenton county, where the trial shall be had as in other ordinary cases. Should the bridge company wish to use the property during the pend-ency of an appeal, it may do so on depositing the amount of the finding in any specie-paying bank in Covington to the credit of the proprietor or proprietors of the property.”
On the 25th of April, 1863, the company proceeded, in the mode prescribed, to condemn to its use and assess the value of three lots of ground in Covington near the bridge — one as the property of Mrs. Willis, and the other two as the property of Thomas N. Arnold, children of James G. Arnold, who, as admitted owner of all these lots, had conveyed one to his said daughter’s separate use, free from the control of her husband, retaining a lien for an unpaid balance of the price, and had signed a conveyance of the other two to his said son, and deposited it with a stranger, as an escrow, to be delivered on prescribed conditions which do not appear to have been fulfilled, and, consequently, there is neither evidence nor presumption of a delivery of the deed.
The jury on the ground having assessed the value of one lot as the property of Mrs. Willis, and of the other two as the property of Thomas N. Arnold, they, and their father,,James G. Arnold, appealed to the circuit court of Kenton. And, thei’eupon, the bridge company deposited in a non-specie-paying bank, in paper currency, the aggregate amount of the assessment, which the appellants refused to accept.
On the trial in the circuit court, nearly a year after the ap[374] peal, the appellants offered to prove the value of the lots at that time of the trial; but the court restricted the assessment of value to the time of the first inquisition, and instructed the jury, at the instance of the appellee, that, if they should find that the lots are “ necessary for the purposes of the bridge, they must assess the value thereof in cash as of the 25th of April, 1863.” On that instruction, and without viewing the ground, the jury reduced the aggregate of the first assessments $ 1,200, and the company having tendered the amount in court in U. S. Treasury notes, the court confirmed the verdict, and ordered the payment of the paper as tendered to Mrs. Willis and to Thomas N. Arnold, in their respective portions, as assessed. This appeal by James G. Arnold, Thomas N. Arnold, and Mrs. Willis, seeks the reversal of that judgment.
In limine the counsel for the appellants insists that, as the company is a private corporation, the Legislature had no constitutional power to authorize it to take and apply to its own use private property, even on payment of its value, without the owner’s consent. In this conclusion we cannot concur. Admitting the premise, the conclusion is neither legal nor logical; for although the company may use the bridge for its own profit, yet it must permit its use by the people for the public convenience as a common highway. As a viaduct it is an integral and useful part of a continuous line of national travel, and, for that purpose, is as much dedicated to public use as it could have been had it been, in all respects, public property and erected at public expense.
It is this object of public use and right to enjoy it that makes it a public highway, and legalizes the contested authority conferred by the charter. In the same way, railroads and turnpikes are made by private capital, directly for the profit of the contributing stockholders, but incidentally for public use and benefit. And because such highways, thus owned and constructed by private persons, are dedicated to public use and subserve the purposes of social and commercial intercourse, and thus promote the public welfare, the judiciary has uniformly maintained the constitutionality of legislative authority to all such corporations to take private property, as far as [375] may be essentially useful, by paying the owner the assessed value of it. But the constitution constructively requires an impartial assessment, by a judicial process, of the actual value in money, and full payment, before private property shall be appropriated to public use. Any other interpretation might frustrate the conservative aim of the great guaranty of private property against a capricious and unjust assertion of the inherent right of eminent domain. And, for affectuating this chartered security, the Legislature, knowing that any other than the metallic currency is frequently and extremely fluctuating, and that the latter is the only safe and stable representative of value, wisely required, in this company’s charter, a judicial assessment of the value “in cash” and either a payment in cash or a deposit of the money in a “ specie-paying bank.” For these stringent requisitions we can see no other object than to secure to the owner the cash or specie value. It seems to us that, had not this been the provident purpose, the unusual requisition, peculiar to this charter, to assess in cash, and deposit the amount so fixed in a “ specie-paying bank,” from which it could be drawn either in specie or its equivalent in paper, would never have been prescribed.
This literal, and, as we think, obvious interpretation, does not involve the constitutionality of the tender act passed by Congress in February, 1862. As between citizens, that enactment applies to judgments for debts or for damages on liabilities pre-existing the date of the judgment. It does not mould or affect the contract or judgment itself. And it does not, therefore, apply to the construction or the obligation of a contract, or to the interpretation or effect of a statute. And, consequently, it could, in no way, apply to an agreement by an owner of land to let this bridge company or a turnpike company have it on the precedent condition of first paying a stipulated sum in specie. Surely, in such a case, no jurist will say that the company can lawfully take the land, against the owner’s will, on tendering the conventional amount in anything else than specie or of less value. Nor does that tender act apply to this charter, or to any assessment made under it. The Legislature had the undeniable power to require, if it [376] chose, an assessment in gold and a payment in gold as indispensable to any right in the company to nse or take land without the owner’s consent. Until full performance of that precedent condition, there could be no contract nor any transition of title; and certainly an offer of the amount in depreciated paper, even if it be a legal tender for an antecedent debt, could not be considered performance, and could not therefore give the company any plausible pretence of right to take the land, A claim dependent on a precedent condition can never be available without performance, even if the condition be impossible.
The sole question then is, what did the Legislature mean in requiring, as a sine qua non, an assessment of the value in cash, and a deposit of the assessed amount in a specie-paying bank? Having already answered that question, we will only-repeat that the answer is fortified by the fact that “cash” and “specie-paying bank” seem to be peculiar to this charter, thereby indicating a peculiar purpose. The deposit, as made, was therefore not a performance of the precedent condition as indispensably prescribed; and, on such a sham tender, the company had no right to take possession of any portion of the .assessed ground.
For the same reason the judgment requiring the acceptance of such paper, at its nominal value, as full payment, was erroneous, and the more especially as the court instructed the jury to assess the damages in cash; and we must presume, therefore, that they did so in obedience to the instruction and conformably with the requisition of the charter.
And, as the company could have no right to use or take the ground until assessment and payment according to the constitution and the charter — the owners, being entitled to the ground until then, are, of course, clearly entitled to its equivalent at the time of transition; and, consequently, its value at that time should be the measure of assessment. The circuit court, therefore, erred also in refusing to permit the appellants to prove the value at the time of the last trial.
In adjudging payment to Mrs. Willis and T. N. Arnold, the circuit court also erred. Such a transmutation of her separate [377] estate into a vested right in her husband, would be unjust and unauthorized, and, moreover, her father’s lien would be thereby wrongfully divested. The proper judgment would be for payment to her separate use whenever her father should .waive his lien. And, as there is no proof that any title to the lots embraced in the escrow has ever passed from James G. Arnold to his son Thomas, the judgment for the assessed value of those two lots ought to have been for payment of it to James G. Arnold.
We perceive no error in not requiring the jury to view the lots. The charter does not seem to require such evidence on a trial in the circuit court, where, in many cases, it would be very inconvenient.
For the errors suggested the judgment is reversed, and the cause-remanded for another trial according to the principles of this opinion.