of eminent domain, but the power so granted is subject to this important limitation that it shall not enter upon any land, for the purposes of building its road thereon, without the consent of the owner or owners, until it has first made compensation for the same. This limitation is found in the ninety-ninth section of the general railroad law, and the words in which it is expressed are: "Provided, always, that the payment or tender of the payment of all damages for the occupancy of all lands through, under, or upon which the said railroad and its conveniences, appurtenances, and appendages may be laid out or located, be made before the said company, or any person under their direction or employ, shall enter upon or break ground in the premises, except for the purpose of surveying and laying out said railroad and its conveniences, appurtenances, and appendages, and of locating the same, unless the consent of the owner or owners of such lands be first had and obtained." Revision, 927, 928. The meaning of this provision, when considered, as it must be, in connection with that limitation which the constitution puts upon the power of the legislature, when it declares that individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners," is made, as I think, perfectly plain, and it is this: That no railroad corporation, organized under the general railroad law, shall have a right to enter upon any land in which there are successive estates, for the purpose of constructing its road thereon, without the consent of its owners, until it has first made just compensation to the owners of both the present estate and the estate in reversion or remainder. The sixth section of the charter of the Elizabethtown & Somerville Railroad Company contains a proviso identical in substance with that just quoted from the general railroad law, and Chancellor PENNINGTON, in Ross v. Elizabethtown & S. R. Co., 2 N. J. Eq. 422, held, in construing this proviso, that a condemnation against the owner of the present estate in the land—and in that case the owner of the present estate was a tenant in dowergave the corporation no right whatever against the remainder-men, and that until compensation was made to them the land could not lawfully be appropriated by the corporation; and he therefore refused to dissolve an injunction which had been granted on the application of the remainder-men, restraining the corporation from constructing its road on the land until compensation was made to the remainder-men. He said (page 433) that the design of the proviso was "nothing more nor less than that the land to be occupied by the line of the road shall be first paid for, and to those who have rights in the same.

* * *

Those in remainder have therefore as strong, and in many cases a much stronger, claim for damages than the present Occupant. The claims of all persons Rights of rehaving rights in the land are clearly to be satisfied mainder. as well those who have reversionary interests man. as those having the present estate." Adopting this as a correct exposition of the law, as I think we must, it is made manifest that the defendant's appropriation of the land in question to the purposes of its railroad is not only without authority of law, as against the complainant, but in direct violation of a right guaranteed to him by the constitution.

The case presents another question: Does such a wrong entitle the complainant to an injunction? It is certain that the defendant's occupation of the land does not at present do the complainant any irreparable damage, in the sense in which that phrase is ordinarily understood. He has no right to the present enjoyment of the land. The outstanding term which has been granted against him will not expire for more than 20 years to come, so that the defendant's occupation of the land cannot, during that period, take anything from him to which he will have the least right. When the outstanding term shall have expired, he will have a right to have the land surrendered to him in as good state and condition as it was in when the purchaser under the tax sale took possession of it, damage resulting from the ordinary use and the elements excepted. Supp. Revision, p. 992, 58. But this is the whole extent of his right. So that I think it is obvious that if this were a suit between private persons, involving nothing but strictly private rights, no injunction could be granted, for the reason that no irreparable present damage is shown, nor is it at all certain that any will ever be done. But a widely different rule prevails in cases where a corporation, having authority to take land on condition that it shall pay for the land before appropriating it, attempts to appropriate the land to its own use against the will of its owner, and without paying for it. In that class of cases, no irreparable damage need be shown,but the court will exercise its prohibitory power as soon as it is made to appear that the corporation is attempting to appropriate the land against the will of its owner, and contrary to the terms of its charter. Mr. Kerr, in his treatise on the Law of Injunctions, states the rule on this subject in this wise: "A private person who applies for an injunction to restrain a public incorporated company entering illegally on his land is not required to make out a case of destructive trespass or irreparable damage. The inability of private persons to contend with these powerful

When injune

tion granted.

* * *

from

bodies, which have often large sums of money at their disposal, and are often too prone to act in an arbitrary and oppressive manner, raises an equity for the prompt interference of the court, to keep them within the strict limits of their statutory powers, and prevent them from deviating in the smallest degree from the terms prescribed by the statute which gives them authority." Kerr. Inj. 295. Other authors state the rule in substantially the same way. 1 High, Inj. § 622; Lewis, Em. Dom. § 632. This rule has been repeatedly recognized in this state; notably so by Chancellor PENNINGTON in Ross v. Elizabeth Town & S. R. Co., supra, and by Chancellor ZABRISKIE in Stevens v. Paterson & N. R. Co., 20 N. J. Eq. 126, 129, and by Chancellor RUNYON in Morris & E. R Co. v. Hudson Tunnel R. Co., 25 N. J. Eq. 384, 387. I think I am bound to regard it as the established law of this

court.

An injunction must issue, restraining the corporate defendant from further constructing its railroad on the land in question until it shall have made just compensation to the complainant for his estate in the same.

Eminent Domain-Railroad Enjoined Upon Failure to make Compensation -Notwithstanding the provision in Code Virginia 1887, § 1072, that a railroad company shall not invade any" dwelling house, or space within 60 feet of one, belonging to any person *** without his consent" is repealed of implication, by acts 1874-75, pp. 35-36 providing that in case any lot or lots along the line of such streets or alleys, shall, by such occupation or crossings, be impaired in value, such company shall, before crossing or Occupying such streets or alleys, make compensation therefor to the owner of the same," the occupation of a street by a railroad within 60 feet of a dwelling house, will be enjoined where compensation has not first been made to the owner. Hodges v. Seaboard & R. R. Co. (Va. Feby. 11, 1892) 14 S. E. Rep. 380. The court said: "There has been on the statute books of this commonwealth for more than 40 years the following provision, now made a part of section 1072 of our Code, the history of which provision it is of importance in this connection for us to trace. This provision first made its appearance in the Second Revised Code, (1819) p. 213, § 7, by which turnpike companies were authorized to enter upon all lands and tenements through which they might judge necessary to make their roads, to lay out the same according to their pleasure, so that neither the dwelling house, yard, garden, nor curtilage of any person be invaded without his consent. A like provision was made in the Act of March 16, 1832, incorporating the stockholders of the James River & Kanawha Company. Acts 1831-32, p. 79, § 29. In the first general railroad act of the state, March 11, 1887, (Acts 1836-37, p. 104, § 9), it was provided: 'Previously to this institution, and during the pendency of the proceeding for ascertaining the damages to the proprietor for the condemnation of his land for the use of the company, the president and directors, their officers, agents, and servants, shall have full power and authority to enter upon all lands and tenements through which they may desire to conduct their railroad, and to lay out the same according to their pleasure, so that no dwelling house, or space within sixty feet of one, belonging to any person, be invaded with.

out his consent, and if they think the interest of the company requires it, to take possession thereof for the purposes of the company.' In 1841 this provision came under review in James River & Kanawha Co. v. Anderson, 12 Leigh, (Va.) 278, where the court held that, upon the construction of its aforesaid charter, the company had the right to enter upon and occupy the public streets of a town, as well and in like manner as the lands of individuals, when it shall deem the same necessary for its canal or other works liable to make compensation in damages to any party injured; Judge TUCKER, on page 314, saying: For the purposes of its work, it is authorized to enter upon any lands and tenements through which it desires to conduct its canal, without any limitation or exemption except the dwelling house, yard, garden, or curtilage of any proprietor. The streets and highways, which must obviously be encroached on, are not excepted. The streets of Richmond, therefore, are as much subject to be entered upon for the use of the company as any other property.' In this case the court held that under the language of the doctrine of the James River & Kanawha Company, authorizing it to enter upon all lands and tenements,' etc., it could enter upon the streets of a city as upon any other land. To obviate this objection, which equally applied to the general railroad law, the legislature enacted the following provision, to be found in section 23 of chapter 56 of the Code of 1849: No company shall occupy with its works the streets of any town until the corporate authority of the town shall have assented to such occupation, unless such assent be dispensed with by the special provision of law. See Report of Revisors, pp. 328, 329. As the law then stood, the railroad company could only enter the streets of a city or town upon the consent of the corporate authority, but could not' invade the dwelling house of any person, or any space within sixty feet thereof' that is, while such companies might, under certain circumstances, enter cities, they were prohibited from invading the dwelling house of the citizen, or any space within 60 feet thereof belonging to the citizen, without his consent. See Railroad Co. v. Wicker, 13 Grat. (Va.) 375, where the court uses the following language: In my opinion, the terms of the statute, standing alone, import that a dwelling house, and a space of sixty feet about it, are exempt from invasion by internal improvement companies, as being reserved to the owner thereof. Without such invasion, the owner enjoys his dwelling house and circumjacent land to the extent of his boundary, however large. If, however, public necessity requires that a portion of his property be taken from him, it may be done, but not so as to invade his dwelling house, or a space of sixty feet about it. The law merely reserves to the owner a limited extent of his own property, but does not confer on him any control whatever over the land of the coterminous owner.' "In this state of the law the legislature enacted the following provision: 'Be it enacted by the general assembly of Virginia that section 24 of chapter 56 of the Code of 1873 be amended and re-enacted so as to read as follows: "Sec. 24. No company shall cross or occupy with its works the streets or alleys, public or private, of any city or town without the assent of the corporate authorities thereof, unless such assent be dispensed with by special provision of law; and, in case any lot or lots along the line of such streets or alleys shall, by such occupation or crossing, be impaired in value, such company shall, before crossing or occupying such streets or alleys, make compensation therefor to the owner of the same, said compensation to be ascertained in the manner provided by law for the assessment of land damages. This act shall be in force from its passage." Act approved January 15, 1875, (Acts 1874-75, pp. 35, 36.) And it is claimed that this provision, by implication, repeals so much of the act as prohibits these companies from constructing their works, etc., within 60 feet of the land of the citizen as may lie circumjacent to his dwelling house. And,

while the law does not favor repeals by implication, this seems to be so, else there could not have been any use for so much of the act as provides that, in case any lot or lots along the line of such streets or alleys shall, by such occupation or crossing, be impaired in value, such company shall, before crossing or occupying such streets or alleys, make compensation therefor to the owner of the same." This, however, cannot advantage the defendant company in this case; for, as it has not chosen to pursue the only way pointed out by the statute for invading the street, the fee in which, as we have seen, was in the appellant, and is within 60 feet of his dwelling house, it has not acquired the right to use this street.'"

STREYER

V.

GEORGIA S. & F. R. Co.

(Georgia Supreme Court, Aug. 1, 1892.)

Eminent Domain-Burden of Proof to Show Damages-Right to Open and Close. Under a statute which authorizes a railroad company to construct its road in a public street, but not until the payment by it of all damages which will be occasioned thereby to the property of any person, and which allows either the company or the property owner to commence proceedings to have the damages assessed, the company, on a trial of an appen! entered by it from the assessment made in a proceeding commenced by it, is entitled to open and conclude, the burden of proof being upon it to show either that the property in question was not damaged, or, if it was, the amount which would compensate the owner, and which must be paid or tendered by the company before constructing its road in the street on the terms prescribed by the statute.

Damage to Contiguous Property Market Value.-The damage to contiguous property resulting from the construction of the railroad in a public street, which the Act of December 17, 1888, (Acts 1888, p. 139.) contemplates, is such damage as must be compensated for by reason of that provision of the constitution which declares that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." The ultimate and only measure of such damage is the diminished market value of the property. Market value for this or that particular use, and change in the same by reason of locating the railroad in the street, are irrelevant, save as evidence tending to show general market value; that is, value in the open market without respect to any particular use. Diminished rental value for any purpose is no basis for compensation except as to its result, if any, on the general value.

Physical Property and Easement Considered Together. In determining the question of damages and assessing the amount, the physical property (land and buildings) and the easement of access thereto from the street are not to be considered as having separate values, as if they were two different parcels of property, but are to be treated as parts of one and the same estate. Whether damage has been or will be done by the construction and use of the railroad depends upon whether the market value of the whole estate as one object of ownership has been or will be diminished by reason of devoting the street to this new use.