in my opinion, that the Legislature intended to compensate the riparian proprietor for the land taken for public uses, by the value of the real or supposed advantages derived from the improved navigation, when those same advantages were conferred freely on all others, without being looked upon as a compensation. But even if there were no tolls, or if the tolls were surrendered, and the navigation thrown open to the public, still I should think, that the riparian proprietor could not be required to pay for the general advantages resulting from the improvement. His land is taken from him without his consent, and for that he is entitled to just compensation. The advantage which he obtains from the improved navigation is not of his own seeking; he obtains it from the public legislation, pursuing the public policy of the country. Obtaining it fairly in that way, why should he be deprived of it? Why should he pay for an advantage which is in some sort forced upon him by the public, and which it confers on him not with the particular view of benefiting him, but for its own wise purpose.”

Presiding Judge Tucker, after stating the question at issue as being whether general advantages can be deducted or charged as part of the just compensation required by the Constitution, says:

"It is obvious as has been observed by my Brother Parker, in the able opinion just delivered, that in a vast majority of cases, the value of the land condemned for a public improvement will bear a very small proportion to the enhancement in value of the remainder of the tract; I mean an enhancement not arising from advantages peculiar to that tract, but extending to the whole community upon its line, and arising out of the salutary influence of improved facilities of transportation, upon the value of all the real estate within the circle of that influence. If, therefore, in a vast major

ity of the cases, the value of the condemned land will be exceeded by the enhancement of the residue, and if that enhancement is to constitute the compensation, then it is obvious, that in a vast majority of cases the Constitution will have nothing to operate upon; and this great and important principle will be confined to the few solitary cases (if indeed any case shall ever occur) in which the proprietor of the condemned property does not derive from the public work advantages of a general character, equivalent to the value of what is taken from him.

"Moreover, it is obvious under this construction of the instrument, that its principle may be extended to a variety of other cases, so as to render this boasted. provision of little or no value. Thus, it may be provided, that if an acre of one man's land is essential to the abutment of his neighbor's milldam, it shall be condemned without compensation for its value, provided a jury shall believe the conveniences of the mill to the owner will more than equal the value of the portion of the land taken from him. And so with respect to public roads and landings. So, too, if a courthouse is to be erected upon one's land, two acres may be condemned without the allowance of a cent, because the adjoining property is rendered more valuable for the establishment of inns, storehouses, and other like advantages. If such be the meaning of this clause of the Constitution, 'it keeps the word of promise to the ear, but breaks it to the hope.' It is a mockery, instead of a wise, just and salutary safeguard of the rights of the people. The jus publicum, though an absolutely essential attribute. of sovereignty, should be exercised by every wise and paternal government, with just respect to the rights of individuals. It is enough that it deprives the citizen of his property without his consent; it is enough that it deprives him of that monopoly, which might enable him

to exact exorbitant terms for his property; it is enough that it takes from him the privilege of bargaining for himself, and appoints others to bargain for him. It therefore makes compensation for what it takes; it does not put a charge upon him which others do not bear; it aims to place the public burdens equally upon all, by paying the proprietor for that which is taken from him. This is the very object of the Constitution. But this object is utterly frustrated if private property is sunk, and its value extinguished, by setting off a part of those incidental advantages to which the owner is entitled in common with all others within the sphere of the improvement. He is not only deprived of the right of making the most of his monopoly, but his possession of property essential to the canal, which, according to the ordinary view of things, would give him great advantages, is actually converted to his loss. He is in a far worse condition than his neighbor who has not his advantages; for the neighbor enjoys all the benefits of the canal, and loses none of his land, while the owner pays, in the price of his land, for those advantages which others get for nothing. What benefit does the Constitution, in this view, confer on the owner of land condemned? What protection does it afford for his rights? His situation is just the same as if the provision of the Constitution had never been made.

Without it, he would have enjoyed all the advantages of the canal, and have lost none of his land; and under its protection, what more does he get? Absolutely nothing. For while he enjoys the benefit of the public improvement, in common with his fellow citizens, he receives not a cent for the property taken from him.

"The whole argument, in truth, appears to me to be founded in a want of due attention to the true meaning of the terms of the Constitution. 'Compensation' means 'A recompense given for a thing received.' But

the general advantages received by the public from a public improvement, cannot properly be said to be a 'Recompense given' for the land, for they are equally conferred on those who lose no land. Neither, indeed, are they gifts to anybody. They are a mere incident, or accident, arising out of the existence of the improvement. They are like the benefit conferred on me by my neighbor, when he builds a merchant mill convenient to my barn. I am benefited, indeed, but that benefit, though conferred by him, gives him no claim against

In the adventure he has proceeded with a view to his own profit, not with a view to mine. The benefit I enjoy I do not owe to his liberality. It is neither a gift ex mero motu, nor can it be tortured into a price given for what he has taken from me. It can create no debt; it can pay no debt. It can neither give a right of action for benefits conferred nor can it give a right of set-off for damages done or property condemned. If it could give such right of set-off it is not perceived why it should not give a right of action for the excess of the benefit over and above the value of the property taken. Nor can I imagine how the company is to compensate the defendant for her $350 worth of land by setting off a claim for benefits conferred, which they never could enforce by suit, and for which they can have no pretense of claim legal or equitable."

I have thus quoted freely and fully from these cases on the ground that the legal and practical reasons advanced appear to be sound and well founded and in the opinion of the writer commend themselves to the sense of justice, honor and fair-dealing of every one.

A. and B. each owns twenty acres of land. Ten acres of A.'s land is taken for railroad tracks, depot and switches. The land of each is worth $20 per acre before the advent of the railroad. By the advent of the railroad all lands are doubled in value. A.'s twenty

acres was worth $400. His remaining ten acres is worth $400. He had $400 worth of land before the advent of the railroad. He has $400 worth of land after it was built. On the contrary, B. had $400 worth of land before the advent of the road and $800 worth of land after the road was built. A. contributed ten acres of his land to double the price of B.'s land. The depot doubled the price of B.'s land but B. did not pay anything for it. The ten acres might have been devoted to the construction of elegant residences and thereby B.'s land might have been doubled in value but no law can be enacted under our present state constitutions that will compel B. to pay any portion of the value added to his land by his residences constructed, however elegant they may be. The intrinsic value of the land is not changed; the fertility of the soil is not increased. The atmosphere (physical and moral) is not changed for the better. We are drifting in modern commercialism. Everything and everybody is for sale. The dollar-mark is put on everything, fewer on the souls of men than on other articles of commerce on the well-known principle of American constitutional law, "De minimis non curat lex."

The Supreme Court of Missouri, in Newby v. Platte County, follow Meacham v. Fitzhugh Ry. Co., and in Garrett v. St. Louis refer to James River and Kanawha Co. v. Turner, and approve the opinions of Judges Tucker and Brockenbrough, quoted supra.

A fuller statement is demanded of the case of Garrett v. St. Louis, 25 Mo. 505 (A. D. 1857). Say the court at page 512:

"But the Constitution intends to place the public burdens upon all and to do this pays the proprietor of land for what is taken by the public. If he is paid in advantages which the community at large whose land is not taken enjoy equally with himself, the spirit of the provision might be said to be violated. His loss is cer