The Chancellor.
There can be no doubt in this case of the right of the company to lay out "the road in the manner they have done, and to take the property of the complainant [72]*72for that purpose, provided the authority given by the act and the mode of compensating the owners of lands through which the road is to run are not in violation of the constitution of this state. Even if the validity of this act were doubtful, I am not prepared to say the verbal consent proved by two or three wit- ■ nesses, and acted on by the agents of the company, would not be sufficient to preclude the complainant in a court of equity from raising that question. There is no doubt that it was competent for the legislature to authorize the company to agree with the owners of lands through which the road was to run for a conveyance or donation of the lands necessary for that purpose ; and it would be both inequitable and unjust for an individual who had consented to give the site of the road provided it should run through his land, to retract that consent after the company had, in reference to such agreement, contracted with the owners of other lands on that particular route. And if such consent was not in fact retracted before the directors of the company had made their certificate of location, so as to preclude themselves from laying out the road elsewhere, it would be the duty of this court to compel a specific performance of the verbal agreement made with them before that time. I infer, however, from the affidavits in this case, that the complainant altered his mind, and retracted his consent to the location of the road on his premises at any place west of the barn, before the second of September, when the certificate of.location was signed by the directors.
The constitution of the United States does not come in question in this cause. It is admitted that the complainant held the land in fee ; and probably under a title derived from the crown, to the rights of which the people have now succeeded. A law declaring the grant from the crown void, and divesting his title on that ground, would impair the obligation of the contract. But it was no part of the contract between the crown and its grantees or their assigns, that the property should not be taken for public use, upon paying a fair compensation therefor, whenever the public interest or necessities required that it should be so taken. All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant [73]*73to individuals, the' eminent domain, the highest and most exact idea of property, remains in the government, or in the aggrewhenever the public interest requires it. This right of resumption may be exercised not only where the safety, but also where the interest or even the expediency of the state is concerned ; as where the land of the individual is wanted for a road, canal or other public improvement. The only restriction upon this power, in cases where the public or the inhabitants of any particular section of the state have an interest in the contemplated improvement as citizens merely, is that the property shall not be taken for the public use without just compensation to the owner, and in the mode prescribed by law. Tire right of eminent domain does not however imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where flic public interest will be in no way promoted by such transfer. And if the legislature should attempt thus to transfer the property of one individual to another, where there could be no pretence of benefit to the public by such exchange, it would probably be a violation of the contract by which the land was granted by the government to the individual, or to those under whom he claimed title, and repugnant to the constitution of the United States. But if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose. (3 Kent’s Com. 340.) It is upon this principle that the legislatures of several of the viduals for mill sites, where from the nature of the country such mill sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned. Upon the same principle of public benefit, not only the agents gate body of the people in their sovereign capacity; and they t . . - . , have a right to resume the possession of the property, m the manner directed by the constitution and laws of the state, states have authorized the condemnation of the lands of indiof the government, but also individuals and [74]*74have been authorized to take private property for the purpose °f making public highways, turnpike roads, and canals ; of erecting and constructing whores and basins ; of establishing femes; of draining swamps and marshes; and of bringing water to cities and villages. In all such cases the object of the legislative grant of power, is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government., or through the medium of corporate bodies, or of individual enterprize. And according to the opinion of Chief Justice Marshall, in the case of Wilson v. The Black Bird Creek Marsh Company, (2 Peters’ Rep. 251,) measures calculated to produce such benefits to the public, though effected through the medium of a private incorporation, are undoubtedly within the powers reserved to- the states, provided they do not come in collision with those of the general government. It is objected, however, that a rail road differs from other public improvements, and particularly from turnpikes and canals, because travellers cannot use it with their own carriages, and farmers cannot transport their produce in their own vehicles;' that the company in this case are under no obligation to accommodate the public with transportation; and that they are unlimited in the amount of tolls' which they are authorized to take. If the making of a rail road will enable the traveller to go from one place to another without the expense of a carriage and horses, he derives a greater benefit from the improvement than if he was compelled to travel with his own conveyance over a turnpike road at the same expense. And if a mode of conveyance has been discovered by which the fanner can procure his produce to be transported to market at half the expense which "it would cost him to cony it there with his own waggon and horses, there is no reason why the public should not enjoy the benefit of the discovery. And if any individual is so unreasonable as to refuse to have the rail road made through his lands, for a fair compensation, the legislaturemaylawfullyappropriate a portion of his property for this public benefit, or may authorize an individual or a corporation thus to appropriate it, upon paying a just compensation to the owner of the land for the damage sustained. The objection that the cor[75]*75porat,ion is under no legal obligation to transport produce or passengers upon this road, and at a reasonable expense, is unfounded in fact. The privilege of making a road and taking tolls thereon is a franchise, as much as the establishment of a ferry or a public wharf and taking tolls for the use of the same.
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The Chancellor.
There can be no doubt in this case of the right of the company to lay out "the road in the manner they have done, and to take the property of the complainant [72]*72for that purpose, provided the authority given by the act and the mode of compensating the owners of lands through which the road is to run are not in violation of the constitution of this state. Even if the validity of this act were doubtful, I am not prepared to say the verbal consent proved by two or three wit- ■ nesses, and acted on by the agents of the company, would not be sufficient to preclude the complainant in a court of equity from raising that question. There is no doubt that it was competent for the legislature to authorize the company to agree with the owners of lands through which the road was to run for a conveyance or donation of the lands necessary for that purpose ; and it would be both inequitable and unjust for an individual who had consented to give the site of the road provided it should run through his land, to retract that consent after the company had, in reference to such agreement, contracted with the owners of other lands on that particular route. And if such consent was not in fact retracted before the directors of the company had made their certificate of location, so as to preclude themselves from laying out the road elsewhere, it would be the duty of this court to compel a specific performance of the verbal agreement made with them before that time. I infer, however, from the affidavits in this case, that the complainant altered his mind, and retracted his consent to the location of the road on his premises at any place west of the barn, before the second of September, when the certificate of.location was signed by the directors.
The constitution of the United States does not come in question in this cause. It is admitted that the complainant held the land in fee ; and probably under a title derived from the crown, to the rights of which the people have now succeeded. A law declaring the grant from the crown void, and divesting his title on that ground, would impair the obligation of the contract. But it was no part of the contract between the crown and its grantees or their assigns, that the property should not be taken for public use, upon paying a fair compensation therefor, whenever the public interest or necessities required that it should be so taken. All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant [73]*73to individuals, the' eminent domain, the highest and most exact idea of property, remains in the government, or in the aggrewhenever the public interest requires it. This right of resumption may be exercised not only where the safety, but also where the interest or even the expediency of the state is concerned ; as where the land of the individual is wanted for a road, canal or other public improvement. The only restriction upon this power, in cases where the public or the inhabitants of any particular section of the state have an interest in the contemplated improvement as citizens merely, is that the property shall not be taken for the public use without just compensation to the owner, and in the mode prescribed by law. Tire right of eminent domain does not however imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where flic public interest will be in no way promoted by such transfer. And if the legislature should attempt thus to transfer the property of one individual to another, where there could be no pretence of benefit to the public by such exchange, it would probably be a violation of the contract by which the land was granted by the government to the individual, or to those under whom he claimed title, and repugnant to the constitution of the United States. But if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose. (3 Kent’s Com. 340.) It is upon this principle that the legislatures of several of the viduals for mill sites, where from the nature of the country such mill sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned. Upon the same principle of public benefit, not only the agents gate body of the people in their sovereign capacity; and they t . . - . , have a right to resume the possession of the property, m the manner directed by the constitution and laws of the state, states have authorized the condemnation of the lands of indiof the government, but also individuals and [74]*74have been authorized to take private property for the purpose °f making public highways, turnpike roads, and canals ; of erecting and constructing whores and basins ; of establishing femes; of draining swamps and marshes; and of bringing water to cities and villages. In all such cases the object of the legislative grant of power, is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government., or through the medium of corporate bodies, or of individual enterprize. And according to the opinion of Chief Justice Marshall, in the case of Wilson v. The Black Bird Creek Marsh Company, (2 Peters’ Rep. 251,) measures calculated to produce such benefits to the public, though effected through the medium of a private incorporation, are undoubtedly within the powers reserved to- the states, provided they do not come in collision with those of the general government. It is objected, however, that a rail road differs from other public improvements, and particularly from turnpikes and canals, because travellers cannot use it with their own carriages, and farmers cannot transport their produce in their own vehicles;' that the company in this case are under no obligation to accommodate the public with transportation; and that they are unlimited in the amount of tolls' which they are authorized to take. If the making of a rail road will enable the traveller to go from one place to another without the expense of a carriage and horses, he derives a greater benefit from the improvement than if he was compelled to travel with his own conveyance over a turnpike road at the same expense. And if a mode of conveyance has been discovered by which the fanner can procure his produce to be transported to market at half the expense which "it would cost him to cony it there with his own waggon and horses, there is no reason why the public should not enjoy the benefit of the discovery. And if any individual is so unreasonable as to refuse to have the rail road made through his lands, for a fair compensation, the legislaturemaylawfullyappropriate a portion of his property for this public benefit, or may authorize an individual or a corporation thus to appropriate it, upon paying a just compensation to the owner of the land for the damage sustained. The objection that the cor[75]*75porat,ion is under no legal obligation to transport produce or passengers upon this road, and at a reasonable expense, is unfounded in fact. The privilege of making a road and taking tolls thereon is a franchise, as much as the establishment of a ferry or a public wharf and taking tolls for the use of the same. The public have an interest in the use of the rail road, and the owners may be prosecuted for the damage sustained, if they should refuse to transport an individual, or his property, without any reasonable excuse, upon being paid the usual rate of fare. The legislature may also from time to time regulate the use of the franchise and limit the amount of toll which it shall be lawful to take, in the same manner as they may regulate the amount of tolls to be taken at a ferry, or for grinding at a mill, unless they have deprived themselves of that power by a legislative contract with the owners of the road.
The mode, of ascertaining damages by commission has been adopted by the legislature in a great variety of cases; and I can see nothing in the provisions of the constitution which render such a course exceptionable. It was well known to the framers of the new constitution that such had been the practice in relation to the assessment of damages for private property taken for the Erie and Champlain canal, and for a great number of turnpike roads, as well as for other public uses. When, therefore, the constitution provided that private property should not be taken for public uses without just compensation, and without prescribing any mode in which the amount of compensation should be ascertained, it is fairly to be presumed the framers of that instrument intended to leave that subject to be regulated by law, as it had been before that time ; or in such other manner as the legislature in their discretion might deem best calculated to carry into effect the constitutional provision, according to its spirit and intent.
Tlxe provision of the constitution which declares that the right of trial by jury in all cases in which it has heretofore been used shall remain inviolate forever, relates to the trial of issues of fact in civil and criminal causes in courts of justice, as is evident from what follows this provision in the same section ; and it has no relation to cases of the kind now under consideration. Although the writ ad quad damnum had [76]*76sometimes been used for the purpose of assessing damages where individual property was taken for public use, yet that was never considered a jury trial within the meaning of the constitution. There is no doubt that it is a very proper mode of estimating damages in such cases ; and probably where a single assessment was to be provided for, it would be much the most judicious and'satisfactory mode of fixing the amount.
I have no doubt of the constitutionality of the statute under which the property of the complainant has been taken; and as all the requisites of the statute have been complied with, this property has been taken by due course of law, and after making just compensation therefor. " From the moment that compensation was paid or deposited as the law had directed, the right to this property was absolutely vested in the defendants for the use of the rail road, and they have a perfect right to enter upon it and appropriate it to that use.
The order to show cause why an injunction should not be issued must be discharged with costs, and the temporary injunction heretofore granted in this case must be dissolved.