Smith, 0. J.,
delivered the opinion of the court.
This suit was brought in the Circuit Court of Yallabusha, to recover damages for injuries done to the lands of the plaintiff. The acts of trespass complained of were alleged to have been committed by the defendant, pretending to act as the agent and contractor of the Mississippi Central Railroad Company. A verdict and judgment were rendered for tile plaintiff. A motion was made for a new trial, which was overruled; whereupon the defendant excepted, and sued out this writ of error.
Several points are made upon the pleadings. But, as the defence relied on was available under the answer, denying, generally, the allegations of the complaint, and as all of the evidence is contained in the bill of exceptions, we will consider the questions arising upon the merits ' of the controversy, in connection with the judgment upon the motion for a new trial.
It is conceded that, if the defence set up was invalid, the verdict was warranted by the evidence. It is, therefore, unnecessary, [239]*239at least for tbe present, to notice more particularly the testimony adduced by the plaintiff.
The defence rests, first, upon the validity of certain provisions in the charter of the Mississippi Central Railroad Company, and generally upon the question, whether the remedy therein provided, for a party aggrieved by the assessment of damages by the jury of inquest, is not exclusive of the remedy existing at common law for injuries done to property condemned fpr the uses of the company.
Without specially examining the evidence offered in behalf of the defendant, it is sufficient to -state, generally, that if the provisions of the charter, above adverted to, should be upheld, and the remedy provided in the act of incorporation is the only one to which the plaintiff was entitled to resort, the verdict ought to be set aside, and a new trial granted.
The cause appears to have been submitted to the jury without instructions. We are, hence, at a loss to understand the precise grounds upon which the court proceeded in overruling the motion for a new trial. We may suppose that the court acted upon the reasons assigned by counsel, in this court, in defence of the judgment ; or that the more comprehensive ground was assumed, that it is incompetent for the legislature, by law, to provide for the appropriation of the private property of the citizen to incorporated companies, created for the purpose of constructing railroads or other works of internal improvement.
In reference to this latter ground, very little, at this day, is required to be said.
The right of eminent domain is an inherent and essential element of sovereignty. It results from the social compact; and hence, would exist without any. express provision of the organic law upon the subject. In this commonwealth, its existence is recognized in the Bill of Rights. And the only restrictions placed upon its exercise, are that private property shall not be taken or applied to public use without the consent of the legislature, nor without just compensation being first made therefor. Bill of Rights, sect. 13.
No question can be made in regard to the existence of the right. In the case before us, and all similar cases, the sole in[240]*240quiry is, whether the condemnation and appropriation of the land for the purposes and in the mode prescribed in the charter is the ■taking and application of private property to public use, according to the true construction of the Bill of Rights ?
If the construction of the Mississippi Central Railroad were a mere private enterprise, in which the people of the State have, manifestly, no interest, the provisions of the charter under which the plaintiff's lands -were taken are clearly unconstitutional. It would not, in that view, be an act of legislation done in the exercise of the right of eminent domain. It would, in effect, be a judicial sentence, by which the property of one citizen would be taken from him and vested in others, and therefore void.
It is the object and primary duty of every commonwealth to promote the welfare and to secure the happiness of its members. And it is undoubtedly the right, as well as the duty, of the legislature to advance these objects by a wise and judicious exercise of its delegated authority. To facilitate and cheapen the transportation of the products of labor, and to increase the intercourse amongst the citizens, are amongst the means, obviously, best calculated to promote these objects. Railroads, and similar works of internal improvement, are the appliances best adapted to these purposes. Consequently, when the legislature deems such works expedient, the duty and right devolves upon it to make them, or to cause them to be made at the public expense. But even where such enterprises are engaged in by individuals under charters of incorporation, they are not the less undertakings in which the public have an interest. They are public works, intended to promote the interests of the community. The individual corporators, in the anticipated pecuniary benefit which may result to them, have an object and an interest distinct from that of the public. In that respect the enterprise is individual, and the corporation private. But the object and purpose of the incorporation are the public advantage. This gives to the work its public character. A corporation created by the legislature with a view to the construction of a work of public utilily, is the agency or means by which its intentions are designed to be carried into effect. When, therefore, the object justifies it, that is when, by means of an incorporated company, it is proposed to construct any work of internal improvement, [241]*241useful and beneficial to tbe public; and it is necessary to the completion of the work, all the authorities hold (and there seems upon principle no reason to doubt) that, in the exercise of the right of eminent domain, the legislature may, by law, provide for taking and applying private property to that purpose, a just and full compensation being first made to the owner therefor. Indeed, this precise question, although never before directly and expressly decided in this court, was scarcely to be considered an open one.
The eighth section of the charter of the Mississippi Central Railroad Company, upon which the plaintiff in error based his de-fence, provides that when said company cannot agree upon the price with the owner of land over which said road shall pass, that either party may apply to a magistrate, for a warrant directed to and requiring the sheriff to summon twelve disinterested freeholders of his county, “who shall act as a jury of inquest of damages, having an oath or affirmation administered first to each, by said sheriff or justice of the peace, justly and impartially to value the damage which the owner or owners will sustain by the use and occupation of the land, &c., required by said company; and the jury, in estimating the damages, if for the ground occupied by said road, shall take into the estimate the benefit resulting to such owner or owners, by reason of said road passing through or upon said land, towards the extinguishment of such claim for damages,” &c.
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Smith, 0. J.,
delivered the opinion of the court.
This suit was brought in the Circuit Court of Yallabusha, to recover damages for injuries done to the lands of the plaintiff. The acts of trespass complained of were alleged to have been committed by the defendant, pretending to act as the agent and contractor of the Mississippi Central Railroad Company. A verdict and judgment were rendered for tile plaintiff. A motion was made for a new trial, which was overruled; whereupon the defendant excepted, and sued out this writ of error.
Several points are made upon the pleadings. But, as the defence relied on was available under the answer, denying, generally, the allegations of the complaint, and as all of the evidence is contained in the bill of exceptions, we will consider the questions arising upon the merits ' of the controversy, in connection with the judgment upon the motion for a new trial.
It is conceded that, if the defence set up was invalid, the verdict was warranted by the evidence. It is, therefore, unnecessary, [239]*239at least for tbe present, to notice more particularly the testimony adduced by the plaintiff.
The defence rests, first, upon the validity of certain provisions in the charter of the Mississippi Central Railroad Company, and generally upon the question, whether the remedy therein provided, for a party aggrieved by the assessment of damages by the jury of inquest, is not exclusive of the remedy existing at common law for injuries done to property condemned fpr the uses of the company.
Without specially examining the evidence offered in behalf of the defendant, it is sufficient to -state, generally, that if the provisions of the charter, above adverted to, should be upheld, and the remedy provided in the act of incorporation is the only one to which the plaintiff was entitled to resort, the verdict ought to be set aside, and a new trial granted.
The cause appears to have been submitted to the jury without instructions. We are, hence, at a loss to understand the precise grounds upon which the court proceeded in overruling the motion for a new trial. We may suppose that the court acted upon the reasons assigned by counsel, in this court, in defence of the judgment ; or that the more comprehensive ground was assumed, that it is incompetent for the legislature, by law, to provide for the appropriation of the private property of the citizen to incorporated companies, created for the purpose of constructing railroads or other works of internal improvement.
In reference to this latter ground, very little, at this day, is required to be said.
The right of eminent domain is an inherent and essential element of sovereignty. It results from the social compact; and hence, would exist without any. express provision of the organic law upon the subject. In this commonwealth, its existence is recognized in the Bill of Rights. And the only restrictions placed upon its exercise, are that private property shall not be taken or applied to public use without the consent of the legislature, nor without just compensation being first made therefor. Bill of Rights, sect. 13.
No question can be made in regard to the existence of the right. In the case before us, and all similar cases, the sole in[240]*240quiry is, whether the condemnation and appropriation of the land for the purposes and in the mode prescribed in the charter is the ■taking and application of private property to public use, according to the true construction of the Bill of Rights ?
If the construction of the Mississippi Central Railroad were a mere private enterprise, in which the people of the State have, manifestly, no interest, the provisions of the charter under which the plaintiff's lands -were taken are clearly unconstitutional. It would not, in that view, be an act of legislation done in the exercise of the right of eminent domain. It would, in effect, be a judicial sentence, by which the property of one citizen would be taken from him and vested in others, and therefore void.
It is the object and primary duty of every commonwealth to promote the welfare and to secure the happiness of its members. And it is undoubtedly the right, as well as the duty, of the legislature to advance these objects by a wise and judicious exercise of its delegated authority. To facilitate and cheapen the transportation of the products of labor, and to increase the intercourse amongst the citizens, are amongst the means, obviously, best calculated to promote these objects. Railroads, and similar works of internal improvement, are the appliances best adapted to these purposes. Consequently, when the legislature deems such works expedient, the duty and right devolves upon it to make them, or to cause them to be made at the public expense. But even where such enterprises are engaged in by individuals under charters of incorporation, they are not the less undertakings in which the public have an interest. They are public works, intended to promote the interests of the community. The individual corporators, in the anticipated pecuniary benefit which may result to them, have an object and an interest distinct from that of the public. In that respect the enterprise is individual, and the corporation private. But the object and purpose of the incorporation are the public advantage. This gives to the work its public character. A corporation created by the legislature with a view to the construction of a work of public utilily, is the agency or means by which its intentions are designed to be carried into effect. When, therefore, the object justifies it, that is when, by means of an incorporated company, it is proposed to construct any work of internal improvement, [241]*241useful and beneficial to tbe public; and it is necessary to the completion of the work, all the authorities hold (and there seems upon principle no reason to doubt) that, in the exercise of the right of eminent domain, the legislature may, by law, provide for taking and applying private property to that purpose, a just and full compensation being first made to the owner therefor. Indeed, this precise question, although never before directly and expressly decided in this court, was scarcely to be considered an open one.
The eighth section of the charter of the Mississippi Central Railroad Company, upon which the plaintiff in error based his de-fence, provides that when said company cannot agree upon the price with the owner of land over which said road shall pass, that either party may apply to a magistrate, for a warrant directed to and requiring the sheriff to summon twelve disinterested freeholders of his county, “who shall act as a jury of inquest of damages, having an oath or affirmation administered first to each, by said sheriff or justice of the peace, justly and impartially to value the damage which the owner or owners will sustain by the use and occupation of the land, &c., required by said company; and the jury, in estimating the damages, if for the ground occupied by said road, shall take into the estimate the benefit resulting to such owner or owners, by reason of said road passing through or upon said land, towards the extinguishment of such claim for damages,” &c.
It is said, by counsel for the defendant in error, that the whole proceeding in regard to the assessment of the damages was illegal and void: 1, because the authority conferred upon the magistrate to summon the jury was void, being repugnant to the constitution ; 2, because full and exclusive jurisdiction over the subject of roads is vested, by the constitution, in the Board of County Police; and 3, because the mode prescribed for making the assessment of the damage to the land violates the constitution of this State.
The first and second objections do not appear to be pressed with confidence by counsel; and as, in our opinion, they are clearly untenable, we will pass to the consideration of the third.
The party, at the time the assessment was made, was entitled to “just compensation” for the injury sustained in consequence of the appropriation of his property to the uses of the road. No diversity can exist as to the true construction of the language of the Bill of [242]*242Rights. He was entitled to the cash value of the land when the assessment was made, and also to be indemnified for the damage to his adjacent land, consequent upon the location of the road. He was entitled to be paid in money. It was as clearly incompetent for the legislature to prescribe in what he should be paid, as to prescribe how much or how little he should receive. Manifestly, a party whose property has been taken and appropriated to public use in the construction of a railroad, cannot be compelled to receive as compensation the estimated enhancement in the value of his remaining property. The cash value and the actual damage are the true standard by which to determine the compensation, to which in such cases, the party is entitled. We think, therefore, that the provision in the eighth section, by which the jury are directed, in assessing the damages, when land is the. subject, to take into the estimate as an offset to the claim of compensation, “thebenefit” to the owner, resulting from the location of the road upon his land, is invalid.
But because this provision is repugnant to the Bill of Rights, and therefore void, it does not follow that the other provisions, which are distinct and independent of this, are also invalid. The reverse, according to the settled rule of construction, is the case. The authority given, and the duty imposed upon the jury, “justly and impartially to value the damages,” is in nowise dependent upon the provision, by which the jury are directed to take into the estimate of the damages, the consequential benefit to the owner of the land. It was, hence, a valid legislative enactment. And as the jury proceeded under legal authority, their verdict, whether erroneous or not, was clearly not void. It was sufficient under the provisions of the charter, upon tender of the damages by the company, to vest the title to the land in them, unless set aside in the mode prescribed in the act of incorporation.
The jury were not bound to observe the unconstitutional provision. But if, in point of fact, they did take into the estimate the consequential benefit to the owner of the land, the verdict was erroneous and unjust. And a remedy, if the party felt himself aggrieved, was provided in the act of incorporation. This brings up the question, whether the remedy therein prescribed is a bar to the present action.
[243]*243The eighth section of the charter provides that either party, the company, or the person whose lands have been condemned, may, within ten days, appeal from the decision of the jury to the Circuit Court of the county in which the land is situated; and that said court shall proceed in such cases as in cases of appeal from the boards of police, in relation to public roads.
In some of the adjudged cases it has been held that the remedy provided by statute for the assessment of damages is merely cumulative, and not exclusive. And hence, that the owner may maintain an action at common law, for the injury sustained. Wilson v. Crittenden, 5 Cow. Rep. 165; Carr v. The Ceorgia Railroad Company, 1 Kelley, 524.
These decisions seem to be based upon the principle that, if a statute gives a remedy in the affirmative for a matter which was actionable at the common law, the injured party may sue at common law as well as upon the statute.
But in the class of cases analogous to the one before us, the question is not whether an action might, at common law, be maintained against a party for unlawful acts, done to the injury of others, but whether an action is maintainable, for acts committed under the authority and sanction of the law, but which have proved injurious to others.
The acts complained of in this case, if done without authority of law, would be wholly unjustifiable. But having been performed in the execution of a power conferred by the legislature, and of consequence under the sanction of the law, their legal character was changed. It would be absurd to say that they were tortious and illegal. If the defendant had a right to construct the road-bed upon the land of the plaintiff, what wrong was committed ? The very nature of the action of trespass presupposes the unlawful character of the acts complained of. Upon principle, therefore, it is clear that this action was not maintainable. The case comes .completely within the rule that, “if an affirmative statute which is introductory of a new law, direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner.” Dwarr. on St. 641. According to which it is held, in the great majority of cases, that when the legislature has authorized the erection of works of in[244]*244ternal improvement, deemed convenient and useful to tbe public, and a mode is provided, by statute, for tbe assessment and payment of damages resulting to individuals from tbe construction of sucb works, that parties injured are confined to the remedy prescribed, which is substituted for tbe remedy which would otherwise exist at common law. 5 Eng. L. & E. Rep. 104; 5 Whart. 256; 1 Am. Railway Cases, 206; 15 Mass. R. 364; 16 Ib. 466; 31 Maine R. 215; 4 Wend. 667.
In this case the legislature has gone farther. It has prescribed the mode of assessment and payment, given to the aggrieved party the right of appeal, and declared that the “ inquest of the jury, after payment or tender of the valuation, shall be admitted to record in the office of the clerk of probates of the proper county, and be a bar to all actions for taking and using such property.” Charter, 8th sec. We are, therefore, after a careful examination of the whole subject, clearly of opinion that this action was not maintainable for any injury alleged to be done to the land within the limits of the road-way.
There was, however, evidence before the jury that acts of trespass were committed upon the land of the plaintiff, adjoining the road-way. And of consequence this action was maintainable to recover damages for the injuries thereby occasioned. But as it is evident from the record, that the jury estimated the damages, , mainly, with reference to the injury occasioned by the location of the road upon the plaintiff’s lands, and the work done upon the road-way, such as making excavations, embankments, &c., necessary in the construction of the bed of the road; and that the injuries done to the adjoining land formed a very inconsiderable item in their estimate of the whole injury sustained, it would be extremely unjust and improper to allow the verdict to stand.
Judgment reversed, and cause remanded for a new trial.