Green, C. J.
The caveator in this ease seeks to set aside the return of the surveyors — 1st, on the ground of numerous irregularities in the proceedings, and 2d, because the surveyors had no authority to lay out the road in question. The last objection, as it lays at the foundation of the entire controversy, I propose to consider first.
The facts of the case, so far as they are material to the present inquiry, are briefly these : The road, as laid out by the surveyors, commences on the east side of the Passaic river, opposite Acquackanonek. It extends a distance of more than five miles, crossing two navigable streams (Berry’s creek and the Hackensack river), and terminates on the island of Se-caucus. Its entire length, with the exception of an inconsiderable portion near the beginning point, is laid out over the turnpike road and bridges constructed by “ the New Barbadoes Toll Bridge Company.” That company was incorporated by an act of the legislature, passed on the 16th day of February, 1816. They were authorized by their charter to construct a road four rods wide from the east of the Acquackanonek bridge to the Hackensack and Hoboken turnpike road, and to build bridges across Berry’s creek and Hackensack river in the line of the road. As soon as the road and bridges should be [301] completed, the company were authorized, under a license for that purpose to be obtained from the governor of the state, to erect a turnpike gate across the bridge over the Hackensack river and to receive tolls. The charter contains further provision, that if the company should not within three years after the passing of the act commence making the road, and within ten years thereafter complete the road and bridge, the act should cease. By several supplements to the original act, the time for the completion of the work was extended from time to time until the 18th day of February, 1848. By a supplement, passed on the 18th of February, 1840, the company were authorized to receive tolls.
The company caused the bridges to be built over Berry’s creek and the Hackensack river, and the road to be laid out and partially constructed. The road, however, was not completed within the time limited by the original act, or by the supplements, and the act of incorporation ceased on the 18th of February, 1843. On the 15th of February, 1843, before the determination of the charter, the company conveyed their turnpike roads and bridges, and the land occupied thereby, to Abraham J. Berry, upon certain trusts in the deed of conveyance specified. On the 25th of April, 1844, the trustee, in pursuance of the power reposed in him, sold the road, real estate, and bridges, conveyed to him by the company, at public vendue, for nine hundred and ten dollars, to John A. Berry, and by deed of conveyance, bearing date on the 25th of May, 1844, conveyed the same to the said John A. Berry in fee simple. By several subsequent conveyances, the title of John A. Berry vested in Abraham J. Berry, the caveator. The title of the said Abraham J. Berry to the said real estate, road, and bridges has not been divested, but remained in him at the time of laying out the road.
From this statement of facts, it is apparent that the case does not involve any violation of corporate franchises or infringement of charter rights. The charter of the company was forfeited. Their very existence was determined. The property taken was exclusively individual private property. The power of the state therefore, by virtue of the eminent [302] domain, to take and appropriate to public use corporate franchises, is not brought in question. The case, it must be admitted, stands entirely clear of that difficulty. It does not fall, therefore, within the principle of the West, River Bridge Company v. Dix, 6 Howard 507. That case decides that a bridge owned by an incorporated company, having the franchise of taking tolls under a grant from the legislature, may be taken as a part of a public highway, and the franchise of the company destroyed by virtue of the eminent domain, without a violation of contract or an infringement of the constitution. Nor does the case come within the principle of The State v. Demoit (2 Green 254), which decides that, under the law of this state, surveyors of the highways have no power to vacate a highway granted and confirmed by charter from the legislature.
The question presented is, whether a turnpike road or a bridge owned by a private individual, acquired by purchase or constructed for his private benefit, can be taken and appropriated, under the law's of this state concerning highways, to public use without just compensation? Whether such structures or improvements are land, within the meaning of that clause of the constitution which declares that “Private property shall not be taken for public use without just compensation ; but land may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made?” Whether regard be had to the origin of the law, the practice under it, or to sound principle, I am elear that the question must be answered in the negative. The familiar principle, that private property shall not be taken for public use without just compensation, is a dictate of natural justice. It is founded in natural law. It has its origin back of political constitutions.
The apparent departure in the legislation of this state from so clear a principle, had its origin in the practice of the proprietors, early adopted and uniformly adhered to, of including in every grant of land an allowance for highways. The amount of the allowance varied in the two provinces, but in each it was amply sufficient to meet all the probable requirements for [303] roads through a long period of tin»*. In fact the allowance was such, that in ¡natty of the agricultural districts of the state, where lands are held under ancient grants, the surveys still contain more than the original grant, notwithstanding all the deductions that have been made for highways. The legislation had its origin at a period when the laying out of a highway over land was a benefit conferred, rather than a burthen imposed upon the proprietor. Under such circumstances, the taking of land for public roads was not a taking of private property for public use, within the appropriate sense of the term. The lands taken were in fact given to the grantee for public purposes; he paid nothing for them. The grantee was trustee; he stood seized in equity for the use of the public. When, therefore, a road was laid over the lands of a proprietor, nothing was in fact taken which was properly considered private properly. Early legislation upon this subject must therefore have had regard to the taking of land in its more strict and appropriate sense, and not to structures or improvements upon it. Nor are there wanting expressions in the act which favor such construction. Roads are required to be laid out in such manner as to do the least injury to private property; and, by the thirty-sixth section of the act, it is enacted, that nothing i,n the act contained shall be construed to extend to narrowing, widening, or altering any street in any of the cities, towns, or villages of the state, or to pulling down or removing any dwelling house, market house, or other public building heretofore erected, and which may encroach on any highway. Without insisting upon such construction of this section as would prohibit the laying out of a highway upon or over any dwelling, the provision itself sufficiently indicates the general policy and spirit of the act, and the intention of the legislature in its enactment, and the practice under it is believed to have been in conformity with such construction. If a public highway has in any instance, in this state, been laid through or over a dwelling, such instances are certainly rare. No instance has fallen under my observation, nor, upon inquiry, have I heard of one; on the contrary, the disposition to avoid interfering with structures or improvements of any kind, and so to [304] carry out'the act as to do the least injury to private property, has been such as to create, in many instances, serious public inconvenience in the laying out of roads. Bridges, turnpike roads, or other structures have not heretofore been taken for public highways, nor are they land within the meaning of the constitutional provision.
While there would be manifest impropriety in disturbing, without legislative authority, the practice of taking land for highways, “as heretofore,” sanctioned as it is by the constitution, there would be a still more obvious impropriety in giving greater latitude to the practice, and in taking not only land as heretofore, but bridges, turnpike roads, canal banks, or any other private property for public use without compensation. It is the duty of the court to maintain the law as it stood at the adoption of the constitution, but not to extend its operation. If the materials for the construction of a bridge or a turnpike road be brought upon the ground, it is very clear that they could not be taken for public use without compensation, and it is difficult to perceive what new right the public acquire to them, after the owner had bestowed his labor upon them in constructing a road or erecting a bridge.
If an extensive landed proprietor or manufacturer should construct upon his own premises, for the use of his land, or his forge or other works, a plank road and bridge, may it be taken and appropriated to public use or a highway ? May a highway be located upon the bank of a canal ? I think these questions must be answered in the negative, and if so, it must be on the ground that such structures or improvements are not land within the meaning of the constitution.
It would certainly be a straining of the principle to declare that in the laying out of a highway, no structure, bridge, or road might be incidentally crossed or interfered with. A fair application of the principle warrants no such conclusion. But-in the present ease, although the application is entirely silent as to the existence of a previous road or bridge, it is clearly established by the evidence, and is not questioned, that the road is laid out a distance over five miles directly upon the turnpike road and bridges of the caveator, and that it was so [305] done with the design of taking the improvements of the caveator, and appropriating them to the public use ; such au act is taking private property for public use without just compensation, and is alike unconstitutional and unjust.
It is no answer to the objection, that the road is in places impassable, and the bridge ruinous. The principle cannot depend upon the value of the property at stake. It is in evidence that these improvements cost many thousands of dollars; they were purchased’ by the caveator at a cost exceeding nine hundred dollars. They cannot, therefore, bo pronounced valueless, and the fact that they are taken for the use of the public, is a strong indication that the public expect to derive a benefit, not from the land merely, but from the improvements of the proprietor. Mr. Kingsland, one of the surveyors by whom the road was laid out, expressly testified that he would not have felt justified in laying the road, if the turnpike had not been there. In other words, the laying out of the road was warranted, if not induced, by the fact, that the public would enjoy the use, not of the land merely, but of the improvements which the proprietor had made upon the land. If so, it is a dictate of law and of justice that he should be compensated for the property so taken.
Nor can it excuse the act, that the improvements are of little value to the individual, but will be of great utility to the public. It is infinitely better that the public should suffer a temporary inconvenience, than that sound principle should be sacrificed, or the safeguards of private rights trampled under foot.
Nor is it perceived that there is either truth or weight in the objection, that the bridges, being erected over navigable streams, are nuisances, and that, therefore, the caveator cannot complain of a violation of his property by their removal or appropriation to public use. The bridges were erected by the New Barbadoes Toll Bridge Company, under express sanction of law. The mere determination of the charter cannot convert a lawful erection into a nuisance. If it be an obstruction of the navigation of the river, it may be complained of as such, and relieved against. But it was originally a lawful [306] erection. The Toll Bridge Company had lawful authority to construct it, and title to the structure when completed. Their title to the structure was conveyed to, and vested in the caveator.
This road being laid, throughout almost its entire extent, over the turnpike road and bridges of the caveator, the return is unlawful, and must be set aside.
The conclusion to which I have arrived upon this point, renders it unnecessary to give any opinion at length as to irregularities in the proceedings urged before us as grounds for setting them aside. I do not see in any of them sufficient reason to authorise us to set aside the proceedings.
Nevius, J. Several reasons have been assigned, and urged before us, in support of the motion to set aside the return of the surveyors in this case. I concur in the views expressed by the Chief Justice on all the points discussed by counsel, except that which relates to the location of the road, and here I feel constrained reluctantly to withhold my concurrence.
It is objected to the return, that the surveyors have laid the road on and over a strip of land heretofore purchased by a turnpike company for the construction of a turnpike road, and through and overa building formerly used or,designed for a toll house, and over a bridge erected many years since by the aforesaid company.
The facts, as they appear from ■ affidavits taken under a rule of this court, are these : In the year 1816, a company was incorporated with power to extend the Paterson and Hamburgh turnpike to the Hudson river; but if the said road should not be completed within a certain time, prescribed by the charter, it was provided that the same should be forfeited, and all the rights and franchises, as granted to the company, should-cease and become null and void. In pursuance of tjhis charter,-the company was organized, purchased the right of way from the landholders, on the whole or part of 'the route, erected the bridge and toll house in question, and made some progress in the construction of their road; but, failing to- complete it according to the provisions of their charter, the same became [307] forfeited, aud tlieir franchises as a corporation ceased. The property thus acquired, consisting of the land, bridge, and toll house, was afterwards sold, and purchased by the caveator in this case, who now claims to hold it free from liability to be taken and occupied by the public for a public highway, unless just compensation shall first be made to him. The bridge is now in a dilapidated condition, and the house not only uninhabited, but uninhabitable.
The practice of taking lands of private individuals for public roads without compensation to the owners, has prevailed in the state of New Jersey from time immemorial, and, in the language of this court in the case of The State v. Potts, 1 South. 349, cannot at this day bo questioned. It had its foundation, probably, in the grants of lands from the original proprietors, which uniformly contained an allowance of five per cent, for roads aud highways. This practice, too, is fully recognised and sanctioned by the present constitution of the state. The sixteenth section of the first article declares that “ lands may be taken for public highways, as heretofore, until the legislature shall direct compensation to be made.” This has not yet been done.
The land, then, of private individuals may be taken for roads without compensation, according to immemorial usage and constitutional sauction. And land comprehends, not barely the soil, but all improvements of a permanent and substantial nature made upon it; herbage, trees, fences, buildings, and the like, are all embraced in the term land. The power, therefore, to take private lands for public roads extends to all lands, however improved, unless it is limited by the practice prevailing before the adoption of the present constitution or by some legislative provision. Let us inquire, then, what was the limit to the exercise of this power before the constitution of 1844 ? By the act of the legislature relative to roads, surveyors are authorised to lay out a public highway over private lands, pursuant to an application for that purpose, if they should deem such highway necessary, and of this they are the judges. And in the exercise of that power, they are required so to locate it, as to them shall appear best calculated to pro[308] mote public and private convenience, having regard to the best ground, the shortest distance, and the least injury to private property. These are the only statutory limits to their discretion. And if that discretion should be ignorantly or corruptly exercised, the' act provides that chosen freeholders shall be appointed, at the instance of a party aggrieved, to review the proceedings of the surveyors, and affirm or set them aside, as they may' see proper. I know of no other restriction or limitation to this power. The act gives pbwer to lay roads over private lands without compensation, and it does not limit the power to unimproved lands, nor does it define what improvements on land may or may not be taken for public use, further than that the act shall not extend to pulling down or removing any dwelling house, market house, or other public building, heretofore erected. If improved lands are to be exempted from the operation of this act, and are not liable fo be taken for public roads, we may well inquire into the nature and extent of the improvement which will cause the exemption. Will the improvement of the soil, the erection of fences or an outbuilding, the planting of fruit or forest trees, the construction of walks and avenues, constitute such improvement as to exempt the land from necessary public use? I apprehend not. Such has never been the practice, nor do I understand it to be the law.
In the case of The State v. Stites and others, 1 Green 176, the court said, “ there was good reason for the protection of a .man’s castle (his dwelling house), but there was no statute, nor any solid argument, which would render more sacred, or less liable to intrusion, a bark house or tan yard, than a field, an orchard, or a garden.”
I know of no improvement upon land which, according to practice or according to law, will constitute a bar in New Jersey to its appropriation to a public highway, except a dwelling house, or market house, or other public building. I do not mean to say that this court would sanction the act of a board of surveyors, were they to lay out a public road over and upon the line of an established turnpike or railroad, belonging to an incorporated company, invested with the-right of taking [309] tolls and burthened with the duty of keeping it in repair. Nor would we sanction the laying out a road through a public cemetery ; yet I apprehend that before this court is called upon to interpose its authority in such cases, and set aside the proceedings of surveyors, on the ground of an abuse of legal discretion, tiie chosen freeholders ought first to be called on to review those proceedings.
What is there, then, in this case to warrant the interference of this court with the return ? The land taken is to all intents private property, as much and no more so, than the adjacent lands. It is not now a public road nor a turnpike road, nor has it any franchise annexed to it. And what are the improvement's that render it too sacred for public necessity ? A dilapidated bridge and a dilapidated building. These, in my opinion, are no legal impediments to laying out the road, nor any legal objection to the return. If the owner sees fit to remove the materials of which they are composed, and which now constitute their essential value, he has the legal right to do so.
But, it is said, he is entitled to compensation for this property before it can be devoted to a public highway. This is equivalent to saying, that whatever may be the public convenience or necessity for these lands, they cannot be taken at all for a public highway, for the law has made no provision for such compensation. What would be the extent of the compensation to be made? Would it be for the fee simple of the lands, or only for the use of the lands while occupied as a road ? If for the use only, is it to be an annual sum, or are the parties to guess at the probable period of such occupation ? Who is to make the assessment, and who are to pay it; and, when made, where is the law requiring the owner to accept the amount assessed in satisfaction of the compensation claimed? All these are serious questions, and must be answered before I can consent to set aside this return for this reason. I regret the necessity which constrains' me to differ with my brethren on this point, but thinking as I do, I would not fulfil my trust were I to yield my opinion before‘I was convinced»
[310] Cabpenteb and Ogden, Justices, concurred with the Chief Justice.
Return of surveyors set aside, (a)
Cited in Bell v. Gough, 3 Zab. 679; Mor. Can. and Bkg. Co. v. State, 4 Zab. 65-68; State v. Troth, 5 Vr. 382; State v. Seymour, 6 Vr. 59.