Andrews, C. J.
Section 3464 of the General Statutes prescribes that “ when any railroad company shall have the right to take real estate for railroad purposes, and cannot obtain it by agreement with the parties interested therein, it may apply to any judge of the Superior Court for the appointment of appraisers to estimate all damages,” etc. The application in this case is brought under that section. It purports to set forth facts from which it will appear that the applicant, a railroad company, has the right to take for railroad purposes the real estate described in the first paragraph, and that it cannot obtain the same by agreement with the parties interested therein. The judge held that both these propositions were properly averred and had been proved, and thereupon appointed the appraisers.
The defendants’ appeal contains a long list of assignments of error. They can, however, all be considered under the two propositions above indicated : Did the facts show that the applicant, being a railroad company, had the right to take the real estate described, for railroad purposes; and was it unable to obtain the same by agreement with the parties interested therein? And, perhaps, the third question : were any errors committed in the course of the hearing?
It was necessary for the judge to answer the first two questions in the affirmative, before he had jurisdiction to appoint the appraisers. And it is necessary now, in order that the appointment be a valid one, that the third question be answered in the negative. To answer these questions with clearness it will be useful to recur briefly to fundamental principles.
[435]*435The Constitution provides that “ the property of no person shall be taken for public use, without just compensation therefor.” Art. I, § 11. “In its application to the condemnation of land for railway use, the word ‘ taken ’ in the Constitution means the exclusion of the owner from use and possession and the actual assumption of exclusive possession by the railroad corporation at the termination and as the result of judicial proceedings.” Woodruff v. Catlin, 54 Conn. 277, 297. See also Shannahan v. Waterbury, 63 Conn. 420, 424; Stevens v. Battell, 49 id. 156, 163. Title to all property is held on the implied condition that it must be surrendered to the government, either in whole or in part, when the public necessities evidenced according to the established forms of law, demand. Todd v. Austin, 34 Conn. 78, 88; The People v. The Mayor, 32 Barb. 102, 112. This power to appropriate private property is the eminent domain. And every species of property which the government may require may be seized and appropriated under this right. Cooley, Const. Lim. (6th ed.) 646. Primarily the power to exercise this right re-, sides with the legislature. It is a right which appertains to \ sovereignty. Clark v. Saybrook, 21 Conn. 313, 324; N. Y., H. & N. R. R. v. Boston, H. & E. R. R., 36 id. 196; Goodwin v. Wethersfield, 43 id. 437, 438; 2 Hilliard on Real Property, 585; Randolph on Eminent Domain, § 99. But power to Í exercise this right may hejconferred bv the legislature on an i individual, a board, or a corporation. Olmstead v. Camp, 33 Conn. 532; Bradley v. N. Y. & N. H. R. R., 21 id. 294; Eaton v. Boston, etc., R. R., 51 N. H. 504. What the legislature really does in such cases, is to declare the public use and the existence of a public necessity for the condemnation of land to such use, and then to confer on the individual, the board, or the corporation, the right to select the property which is to be appropriated to that use. Thus, in the flowage laws, the legislature confers the right to take land, on the individual who desires to erect a dam. In the highway laws the right to take land for highways is conferred on the selectmen of the towns, or committees of the Superior Court; and in cases of railroads the right is conferred on the corporation [436]*436owning the railroad. Cemetery associations, water companies, street railways, and other like companies, are other instances of the same kind. In each case the legislature declares the use to be a public use. The power is a political one, or, as sometimes called, a legislative or administrative one. When exercised by the legislature, its decision of the question of public use and as to the extent, necessity and propriety of the taking, is ordinarily conclusive. With its decision the courts cannot ordinarily interfere. Todd v. Austin, Woodruff v. Catlin, supra; Woodruff v. N. Y. & N. E. R. R. Co., 59 Conn. 63; Varick v. Smith, 5 Paige, 137; Kramer v. Cleveland & P. R. R., 5 Ohio St. 140, 146; The Matter of Union Ferry, 98 N. Y. 139; Cooley, Const. Lim. 648. The act of the legislature is the only adjudication necessary on this question, unless the Constitution has required something further. When this power is exercised by a corporation upon which the legislature has conferred the right to use it, all the steps required by the legislature must be complied with. And when these required, steps have been complied with, then the decision of the corporation as to the extent, necessity and propriety of the taking, is as conclusive as when made by the legislature itself. Harwinton v. Catlin, 19 Conn. 520; Cockcroft's Appeal, 60 id. 161; The People v. Smith, 21 N. Y. 595; Matter of Fowler, 53 id. 60; Ash v. Cummings, 50 N. H. 591; Petition of Mt. Washington Road Co., 35 id. 134; National Docks R. R. v. Central R. R., 32 N. J. Eq. 755; Cooley, Const. Lim. 660. The exercise of the power >by the legislative appointee is still the exercise of a political power, which the courts may not control. United States v. Jones, 109 U. S. 513, 519. Doubtless the courts may in any case inquire whether or not the steps prescribed by the legislature have been taken; and whether the use for which sequestration is authorized is in its nature a public and not merely a private use. If any legislative appointee should in fact use the property taken for any other use than the one which the legislature had declared to be a public use, it could be restrained by an injunction or other suitable remedy.
The legislature of this State has provided that railroads [437]*437may take any such land as they deem necessary for their purposes, upon the approval of the railroad commissioners, in the manner pointed out in the statute; and so has, in effect, declared that land taken by a railroad company for railroad purposes, is taken for a public use. General Statutes, §§ 3460-3462; Bradley v. N. Y. & N. H. R. R., 21 Conn. 294. Whenever, then, any railroad company has expressed its desire and intention to take land for its purposes as a railroad, and has obtained the approval of the railroad commissioners thereto in the manner set forth in the statutes, it would seem, under the authorities, that the question of the necessity and the extent of the taking was settled beyond dispute. But the taking is not complete till the compensation to be paid to the landowner is ascertained and either paid or secured. Unlike the adjudication of the necessity and extent of the taking, thewhole process by which the compensation is ascertained is judicial. Cooley, Const. Lim. 695; Ames v. Lake Superior, etc., R. R., 21 Minn. 241.
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Andrews, C. J.
Section 3464 of the General Statutes prescribes that “ when any railroad company shall have the right to take real estate for railroad purposes, and cannot obtain it by agreement with the parties interested therein, it may apply to any judge of the Superior Court for the appointment of appraisers to estimate all damages,” etc. The application in this case is brought under that section. It purports to set forth facts from which it will appear that the applicant, a railroad company, has the right to take for railroad purposes the real estate described in the first paragraph, and that it cannot obtain the same by agreement with the parties interested therein. The judge held that both these propositions were properly averred and had been proved, and thereupon appointed the appraisers.
The defendants’ appeal contains a long list of assignments of error. They can, however, all be considered under the two propositions above indicated : Did the facts show that the applicant, being a railroad company, had the right to take the real estate described, for railroad purposes; and was it unable to obtain the same by agreement with the parties interested therein? And, perhaps, the third question : were any errors committed in the course of the hearing?
It was necessary for the judge to answer the first two questions in the affirmative, before he had jurisdiction to appoint the appraisers. And it is necessary now, in order that the appointment be a valid one, that the third question be answered in the negative. To answer these questions with clearness it will be useful to recur briefly to fundamental principles.
[435]*435The Constitution provides that “ the property of no person shall be taken for public use, without just compensation therefor.” Art. I, § 11. “In its application to the condemnation of land for railway use, the word ‘ taken ’ in the Constitution means the exclusion of the owner from use and possession and the actual assumption of exclusive possession by the railroad corporation at the termination and as the result of judicial proceedings.” Woodruff v. Catlin, 54 Conn. 277, 297. See also Shannahan v. Waterbury, 63 Conn. 420, 424; Stevens v. Battell, 49 id. 156, 163. Title to all property is held on the implied condition that it must be surrendered to the government, either in whole or in part, when the public necessities evidenced according to the established forms of law, demand. Todd v. Austin, 34 Conn. 78, 88; The People v. The Mayor, 32 Barb. 102, 112. This power to appropriate private property is the eminent domain. And every species of property which the government may require may be seized and appropriated under this right. Cooley, Const. Lim. (6th ed.) 646. Primarily the power to exercise this right re-, sides with the legislature. It is a right which appertains to \ sovereignty. Clark v. Saybrook, 21 Conn. 313, 324; N. Y., H. & N. R. R. v. Boston, H. & E. R. R., 36 id. 196; Goodwin v. Wethersfield, 43 id. 437, 438; 2 Hilliard on Real Property, 585; Randolph on Eminent Domain, § 99. But power to Í exercise this right may hejconferred bv the legislature on an i individual, a board, or a corporation. Olmstead v. Camp, 33 Conn. 532; Bradley v. N. Y. & N. H. R. R., 21 id. 294; Eaton v. Boston, etc., R. R., 51 N. H. 504. What the legislature really does in such cases, is to declare the public use and the existence of a public necessity for the condemnation of land to such use, and then to confer on the individual, the board, or the corporation, the right to select the property which is to be appropriated to that use. Thus, in the flowage laws, the legislature confers the right to take land, on the individual who desires to erect a dam. In the highway laws the right to take land for highways is conferred on the selectmen of the towns, or committees of the Superior Court; and in cases of railroads the right is conferred on the corporation [436]*436owning the railroad. Cemetery associations, water companies, street railways, and other like companies, are other instances of the same kind. In each case the legislature declares the use to be a public use. The power is a political one, or, as sometimes called, a legislative or administrative one. When exercised by the legislature, its decision of the question of public use and as to the extent, necessity and propriety of the taking, is ordinarily conclusive. With its decision the courts cannot ordinarily interfere. Todd v. Austin, Woodruff v. Catlin, supra; Woodruff v. N. Y. & N. E. R. R. Co., 59 Conn. 63; Varick v. Smith, 5 Paige, 137; Kramer v. Cleveland & P. R. R., 5 Ohio St. 140, 146; The Matter of Union Ferry, 98 N. Y. 139; Cooley, Const. Lim. 648. The act of the legislature is the only adjudication necessary on this question, unless the Constitution has required something further. When this power is exercised by a corporation upon which the legislature has conferred the right to use it, all the steps required by the legislature must be complied with. And when these required, steps have been complied with, then the decision of the corporation as to the extent, necessity and propriety of the taking, is as conclusive as when made by the legislature itself. Harwinton v. Catlin, 19 Conn. 520; Cockcroft's Appeal, 60 id. 161; The People v. Smith, 21 N. Y. 595; Matter of Fowler, 53 id. 60; Ash v. Cummings, 50 N. H. 591; Petition of Mt. Washington Road Co., 35 id. 134; National Docks R. R. v. Central R. R., 32 N. J. Eq. 755; Cooley, Const. Lim. 660. The exercise of the power >by the legislative appointee is still the exercise of a political power, which the courts may not control. United States v. Jones, 109 U. S. 513, 519. Doubtless the courts may in any case inquire whether or not the steps prescribed by the legislature have been taken; and whether the use for which sequestration is authorized is in its nature a public and not merely a private use. If any legislative appointee should in fact use the property taken for any other use than the one which the legislature had declared to be a public use, it could be restrained by an injunction or other suitable remedy.
The legislature of this State has provided that railroads [437]*437may take any such land as they deem necessary for their purposes, upon the approval of the railroad commissioners, in the manner pointed out in the statute; and so has, in effect, declared that land taken by a railroad company for railroad purposes, is taken for a public use. General Statutes, §§ 3460-3462; Bradley v. N. Y. & N. H. R. R., 21 Conn. 294. Whenever, then, any railroad company has expressed its desire and intention to take land for its purposes as a railroad, and has obtained the approval of the railroad commissioners thereto in the manner set forth in the statutes, it would seem, under the authorities, that the question of the necessity and the extent of the taking was settled beyond dispute. But the taking is not complete till the compensation to be paid to the landowner is ascertained and either paid or secured. Unlike the adjudication of the necessity and extent of the taking, thewhole process by which the compensation is ascertained is judicial. Cooley, Const. Lim. 695; Ames v. Lake Superior, etc., R. R., 21 Minn. 241. The¡ legislature may determine what private property is needed fori public purposes—that is a question of a political and legisla-j tive character—, but when the taking has been ordered then! the question of compensation is judicial. “It does not rest! with the public, taking the property, through . . . the legisla-j ture, its representative, to say what compensation shall be| paid, or even what shall be the rule of compensation. The ; Constitution has declared that just compensation shall be paid, | and the ascertainment of that is a judicial inquiry.” Monongahela Navigation Co. v. United States, 148 U. S. 312, 327. The landowner is not entitled as a matter of right to a jury, trial, because the Constitution has not so required; but he is! entitled to have an impartial tribunal, with the usual rights} and privileges which attend judicial investigations. It is a| suit at law. Searl v. School District No. 2, 124 U. S. 197. Under our practice the application to the judge to appoint the1; appraisers is the first step in the judicial process. And, as we have indicated, it was necessary for the judge to pass upon the questions presented in the statute and alleged in the application, before he had jurisdiction to appoint the apprais-" [438]*438ers. The power to appoint implies the power to pass upon and decide the jurisdictional facts.
The authenticated copy of the vote of the applicant to take, and the ordering of the taking of the land described, with the like copy of the doings of the railroad commissioners, answer the first question in the affirmative. These records were in the nature of a judgment.
The defendants urge two points which may not be included in the supposed judgment: that the vote was not passed in this State, but in the State of New York ; and that the applicant company is not authorized to take land in New London.
In the taking of land for railroad purposes in this State, the approval of the railroad commissioners is the essential fact; and when that approval is duly given, it is not very material that the expression of the corporate will which receives that approval was formulated outside the territorial limits of the State. Of course it must be an expression of the corporate will which binds the corporation. In the year 1889 the legislature authorized the applicant to increase its capital stock, and to exchange its own stock for the stock of its leased lines, of which the Shore Line railroad was one; and provided that when such exchange was completed, all the franchises of the leased road should be merged in and belong to the applicant. After this lapse of time, and there being no averment to the contrary, we are not prepared to say that this applicant is not empowered to take the land described. We think the first general question was correctly answered by the judge of the court, as it must be now, in the affirmative.
The second general question was decided as one of fact, and that decision is binding on this court unless there is some error. We pass then to the third question.
The legislature does not intend that any railroad company shall have the right to take land for its purposes by the power of eminent domain, unless it has exhausted all reasonable efforts to obtain the land it desires, by agreement. The averment that “ it cannot obtain it (the land) by agreement with [439]*439the parties interested therein,” is a necessary one, and must be proved before the appraisers can be appointed. Williams v. H. & N. H. R. R., 13 Conn. 397. It was a condition precedent to the right to take the land. Torrington v. Nash, 17 Conn. 197. This averment in the present application was denied. The first defense was a direct denial of this averment. The fourth paragraph-of the fourth defense was in effect an averment that the lands, easements, etc., were sought to be taken not for railroad purposes but for steamboat purposes—an indirect denial. This defense was traversed by the applicant. Upon the issues of fact so joined, the burden of proof was on the applicant to prove its averment that it was unable to obtain the land by agreement; and the burden was on the defendants to prove the fourth paragraph of their fourth defense. For these purposes it would seem that both parties depended upon the testimony of Capt. S. A. Gardner. The defendants asked Capt. Gardner this question: “ At the time you were trying to agree with G. M. Long and others for the purchase of this property, did you not say to them that it was wanted for steamboat purposes ? ” This question was objected to by the applicant and was excluded. We think this was error, and, as it seems to us, a material error. It does not appear whether this question was asked on cross-examination of Capt. Gardner as a witness for the applicant, or was asked of him as a witness of their own. Nor does it make any difference. The question was admissible in either event, and the answer should have been received. The objection to this question and the ruling upon it, missed the point to which the question was directed. It was not asked for the purpose of contradicting the vote of the applicant, or in any way to affect that intent. It was asked for the purpose of showing precisely what took place between Capt. Gardner and the defendants at the time he attempted to negotiate with them in respect to the land. The applicant averred that it needed the land for railroad purposes, and that it could not obtain it by agreement. The averment means, if it has any meaning in the application, that it could not ob[440]*440tain it for railroad purposes, by agreement. If it had sought to obtain it by agreement only for steamboat purposes, then the averment of the application was not proved, and the fourth paragraph of the fourth defense was proved.
There is error, and the ease is remanded for further proceedings according to law.
In this opinion the other judges concurred.