#### *The James River and Kanawha Company v. Turner.

April 1838,

Richmond.

(Absent Brooke and Cabell, J.)

Condemnation Proceedings — Assessment of Damages — What Benefits to Be Considered.* — The charter of the J. R. & K. Company provides, that the assessors for ascertaining damages to proprietors of lands required for the company’s canal and improvement, shall take into consideration the quantity and quality of the land to he condemned, the additional fencing that will he required thereby, and all other inconveniences that will result to the proprietor from the condemnation thereof, “and shall combine therewith a just regard to the advantages which the owner of the land will derive from the improvement for the nse of which his land is condemned:’’ Held, that the advantages to be derived to the owner of the land condemned for the company's nse, from the improvement, to which the charter requires the assessors to have regard, are such advantages as particularly aud exclusively aftect the particular tract or parcel of land whereof a portion is condemned — not advantages of a general character, which may be derived to the owner in common with the country at large from the improvement.

Same — Same—Consideration of General Benefits — Unconstitutional. — And it seems, that if the charter had provided, that advantages of a general character, which the owner of the land condemned may derive from the improvement in common with the country at large, should be set off against the actual value of the land condemned and the actual damages sustained by the owner, such a provision would have been unconstitutional.

The act of incorporation of The James River and Kanawha Company (Acts of 1831-2, ch. 82, Supp. to Rev. Code, ch. 377, § 29, 30, 31, 32, p. 481-3,) provides, that the company may enter on any lauds of individuals, through which it may desire to conduct its road or canal, or any feeders of the canal, or against which it may desire to abut any dam, and may lay out its road, canal, feeders and abutments, and sites of other works, according to its pleasure, under certain restrictions: that the company shall . lay out and describe the lands it shall *desire to occupy for the purposes of its works, by certain limits, and may purchase and hold the lands so laid out: that, in case it cannot agree with the proprietors on the terms of purchase, five freeholders shall be appointed by the county court of the county in which such lands may lie, to ascertain the damages, which will be sustained by the proprietors, from the condemnation of the lands wanted for the use of the company: and that the five freeholders so appointed, or any three or more of them, after being duly sworn to perform the duty impartially, justly, and to the best of their ability, shall proceed to assess the damages. And the 30th section of the charter specially directs, that the freeholders,’“in performing this duty, shall consider the proprietor of the land as being the owner *118of the whole fee simple interest therein and that “they shall take into consideration, the quantity and quality of the land to be condemned, the additional fencing which will be required thereby, and all other inconveniences which will result to the proprietor from the condemnation thereof, and shall combine therewith a just regard to the advantages, which the owner of the land will derive from the construction of the road or canal, for the use of which his land is condemned.” The charter then prescribed the form of the report to be made by the freeholders ; directed, that the report should be returned to the county court; and prescribed the manner and course of proceeding there, for confirming the report, or disaffirming it and correcting the assessment of the damages.

But by an act for amending the charter of the company (Sess. acts of 1835-6, ch. 110, *l*3, 4, 5, 6, 7, p. 85-6-7,) it is provided, that for the purpose of assessing damages to the proprietors from the condemnation of lands for the use of the company, there shall be appointed by The Board of Public Works, five assessors, discreet, intelligent and impartial men, neither stockholders of the company, nor owners of any-land through *which the improvement of the company shall pass, who, or any three or more of them, shall constitute a board for the assessment of such damages, throughout the whole line of the improvement: that the assessors shall take the following oath of office — “I, A. B. do solemnly swear (or affirm) that I will impartially and justly, to the best of my ability, perform the duties of my office of assessor to The James River and Kanawha Company ; that I will well and truly, according to the best of my judgment, ascertain the damages which will be sustained by the proprietor from the condemnation of his land for the use of the company ; that in performing this duty, I will take into fair consideration the quantity and quality of the land to be condemned, the additional fencing that will be required thereby, and all other inconveniences which in my judgment will result to the proprietor from the condemnation thereof; that'Twill combine therewith a just regard to the advantages which the owner of the land will derive from the improvement for the use of which his land is condemned ;* and that I will unite with the other assessors in truly certifying our proceedings to the proper tribunal.” The act then provides, that the assessors shall make their assessments of damages in the true spirit of their oath of office : prescribes the form of the report to be made by them ; and directs that their reports shall be returned to the circuit superiour court of the county in which the land, or the greater part thereof, may lie ; to which the jurisdiction is given to confirm the reports, or for good cause shewn *to disaffirm the same : and it is provided that, in case any such report of assessment of damages shall be disaffirmed, “the court may, in its discretion, remand the case to the assessors for a new report, or may pro hac vice supersede them, or any of them, and appoint others in their stead, and in so remanding it, may give such instructions on the law as maybe proper.”

In November 1836, the board of assessors made and returned to the circuit superiour court of Campbell, a report of assessment of damages for land of A. D. Turner condemned for the use of the company, in the following words :

“We the undersigned assessors to The James River and Kanawha Company, do hereby certify, that after due notice of the day and place appointed for our meeting, we, on the 4th October 1836. that being ihe day so appointed by notice to the proprietor herewith filed, met together upon the lands of mrs. A. " D. Turner, below the town of Bynchburg in the county of Campbell, which the company aforesaid propose to condemn for their use; and after having viewed the premises, and heard such proper evidence as either party offered to us, we proceeded to estimate the quantity and value of the land aforesaid, the quantity of additional fencing which would probably be occasioned by its condemnation, and the following which seemed to us to be all the other inconveniences which were likely to result therefrom to the proprietor of the said land, that is to say, for the condemnation of one rood fifteen and a half perches, for the use of The James River and Kanawha Company for the construction of a canal (the plat and description of which is herewith filed) ; it being understood and agreed by the company, that the two houses on the lower side of the old turnpike road are to be removed by the company by private agreement with the proprietor, and that a sufficient space between the ho'uses on the south side of the canal bank is to be left for a cart way, we have *not estimated the inconveniences which may accrue to the proprietor from the want of the conveniences which the company have agreed to. supply her as aforesaid ; that we have not foreseen or estimated any other inconveniences than those above enumerated ; and that we combined with those considerations, as far as we could, a just regard to the advantages which would be derived by the proprietor of the land, from the construction of the improvement, for the use of which the said land is to be condemned : that under the influence of these considerations, we are of opinion, that the proprietor of the said lands will sustain no damage from the condemnation thereof for the use of the company, and therefore we assess her none.”

The circuit superiour court, at its April term 1837, upon a hearing of the parties, dis-*119affirmed the report; and considering it proper to supersede the assessors pro hac vice, and to appoint others in their stead, pursuant to the provisions of the amendatory act of 183S-6, appointed five freeholders of Campbell assessors to do and perform what the board of assessors so superseded should do and perform, according to law, if the case had been remanded to them for a new report. And with a view to prevent continued litigation, the court deemed it proper to instruct the assessors, so by it appointed, as to the construction of the law applicable to the case ; and gave ¡.hem the following instructions :

“ That although a just regard should be had to the advantages, which will be derived by the proprietor of the land from the construction of the improvement, for the use of which his land is condemned; yet such advantages, if any to be regarded, are to be of a character particularly and exclusively affecting the particular lot, parcel or tract of land, whereof a portion is condemned, and not advantages of a general character, which may be derived to the country at large, by the improvement and canal in question; because, for the latter advantages, the company is already paid in the grant of its'^charter; and these advantages (if they exist, or ever shall exist) of increasing the value of land on James River, and on the whole line of contemplated improvement, by means of a safer and cheaper carriage of produce and other subjects to market, form the principal consideration for which the charter and monopoly of tolls were granted; so that, by estimating the actual value of the land condemned to the use of the company, thereby ascertaining the damages which the proprietor will sustain by having so much taken from his lot or tract, according as it may be affected by the position and form in which the condemned portion may be located, the assessors will arrive at the amount of damages which ought to be allowed on account of the quantity of land condemned; and such amount is not to be diminished by any deduction for speculative advantages on account of the general improvement of the navigation, which advantages, uncertain in their nature, may never be realized.”

That “if, besides the damages aforesaid, which may be denominated the certain and real damages, there be speculative damages, arising from inconveniences to which the proprietor of the lot or parcel of land must be subjected, by having' a portion taken for the use of the company, such speculative damages must be estimated ; but the amount thereof may be diminished by any special and exclusive advantages, which the proprietor of the lot or parcel of land will derive from having a portion condemned for the use of the company; and these special advantages may be set off against the inconveniences above mentioned; and both being of the same character, having no certain standard by which their amount can be ascertained, they may balance each other, if supposed to be equal ; but if the inconveniences aforesaid are greater than the special advantages, the excess in value must be added to what is above denominated the certain and real damages; and thus will be combined the '^consideration of inconveniences and advantages contemplated by the law.”

That “ a contrary construction of the laws creating and regulating the charter of this company, would make the same null and void, for it would make them unconstitutional ; because it would be taking away private properly, and appropriating it to the use of others, without any consideration. Ror if the proprietors of lands along the whole line of the canal, through which the same is to be conducted, are to have deducted from the actual or real value of that portion which may be condemned for the use of the company, an amount equal to the whole speculative value of the advantages, which such proprietors may derive from the constructing of the canal, and the improving thereby of the navigation of James River, they will pay a very great portion of the cost of making a general improvement, against their consent and without any consideration. If the improvement shall be, as it is supposed it will be, of great general advantage to the community at large, it will be so on account of an increased safety and expedition in the navigation of James River, and the diminution of cost in the transportation of articles of commerce to and from market, and thus increasing the value of lands along the canal, and contiguous thereto, to the full extent of the whole country that may use the canal for the transportation of produce and other articles ; and the increased value of the lands will be in proportion to the diminution of cost of such transportation. Suppose such diminution shall be fifty per cent., more or less; this advantage is not exclusively an advantage to the proprietors Of lands on the margin of the canal, or to those a portion of whose land is taken for the use of the same, but is equally an advantage to the whole valley of James River, and to all the country which may use the navigation. If the produce of the farms on the margin of the canal, portions whereof have been taken *from the proprietors, shall be carried to market more safely and at fifty per cent, less cost, so likewise the produce of the farm near by, and at a distance, and indeed thoughout the whole valley of the river, will be carried at the same reduced cost; and the proprietor of lands at a distance, contributing nothing, will be benefited at the same rate with the proprietors whose lands are taken from them.”

That “ thus it is clear, that to the extent of any deduction made from the real value of the land condemned as aforesaid, on account of any supposed advantages of improved navigation, so much would be taken from the proprietor unjustly and without consideration, and against all constitutional principles.”

And the court “ordered that these instructions should accompany the order appointing the assessors.”

The special assessors appointed by the court returned a report; wherein, after stat*120ing the inconveniences which would result to the proprietor from condemning the land (one rood and fifteen and a half perches) for the use of the company, in the form required by the charter, they added — “ We combined with these considerations, as far as we could, a just regard to the advantages which will be derived by the proprietor of the land, from the construction of the improvement for the use of which the said land is to be comdemned: and under the influence of these considerations, and of the construction of the law contained in the instructions of the judge in the order aforesaid, we have estimated and do hereby assess the damages which will be sustained by the proprietor of the said land, from the condemnation thereof for the use of the company, at the sum of 350 dollars.”

The. case coming on to be heard on this report of the special assessors, at September term 1837, the company objected to the confirmation thereof, but only on the ground that it was made in conformity with the instructions *which had been given by the court, and to which they then and now objected as erroneous. The proprietor of the land made no objection. And the cou t adjudged and ordered, that the report shorld be confirmed and recorded ; and that theucompany should pay the defendant the damages in and by the report assessed, and that upon payment of the same, the title of the one rood and fifteen and a half perches of land described in the report and condemned, should be vested in the company in fee simple; and that the company should pay the defendant her costs.

The, James River and Kanawha Company applied by petition to this court for a supersedeas to the judgment; which was allowed.

The cause was argued here, by Johnson for the company, plaintiff in error, and by Stanard for the defendant.

*

Condemnation Proceedings — Assessment of Damages —What Benefits to Be Considered, — As to what benefits are to be deducted in assessing damages in condemnation proceedings, see *foot-note*to Muire v. Falconer, 10 Gratt. 13, where all the cases citing the principal case — save Watts v. N. & W. R. Co., 39 W. Va. 200, 19 S. E. Rep. 522 — are collected.

See further, monographic *note*on “Eminent Domain” appended to James River & Kanawha Co. v. Thompson, 3 Gratt. 270.

Same — Same—Elements of Damages. — It is well settled, that in cases where state constitutions provide that private property shall not he taken for public use without just compensation, the damages to the residue of the tract, a part of which was taken, is an element of damages to be considered by the commissioners or jury, as the case may be. B. & O. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 859, citing the principal case.

*

This provision, for having- regard, in the assessment of damages, to the advantages which the owner of the land will derive from the improvement for the use of which his land is condemned,— was adopted into the charter of The James River and Kanawha Company, from the general law concerning turnpike companies, 2 Rev. Code, ch. 284, § 8, p. 214. And a similar principle in regard to the assessment of damages to proprietors of lands, has been introduced into most, if not all, the late charters of railroad companies, and the like.

PARKER, J.

It is to be regretted, that in the determination of the very important principles involved in this case, we could not have had the advantage of a full court. Any decision we may now come to, short of unanimity, will settle, indeed, the rights of these parties, but not the law of the land; and will leave the subject in some of the uncertainty which has heretofore attended it. Yet this circumstance diminishes the weight of responsibility attaching to each member of the court now sitting ; for whilst he gives his present opinions, and affirms or reverses this judgment, of little consequence in amount, he. feels that the precedent is not binding upon him as authority, and may, upon fuller consideration, be disregarded.

This controversy has arisen out of certain proceedings had under the charter of The James River and Kanawha Company, for the purpose of condemning a part *of the lands of the defendant, for the use of that company. The board of assessors, after considering, the quantity and quality of the land to be condemned, and all other inconveniences resulting to the proprietor, and “combining therewith a just regard to the advantages, which she would derive from the construction of the canal,- for the use of which the land was condemned,” came to the conclusion that she would sustain no damages, and therefore they assessed none. This report being returned to the circuit superiour court was disaffirmed, on the ground, that in every case arising under this charter, the proprietor is entitled to at least the full value of his land, whatever may be the advantages of the improvement; and that the advantages spoken of in the 30th section of the act of 1831-2, ch. 82, for incorporating The James River and Kanawha Company, are not to be applied to the diminution of that value, but are only to be set off against the speculative damages arising from inconveniences, to which the proprietor might be subjected, other than the loss of the land; that the advantages to the owner of the land, to be considered by the assessors, are to be special and exclusive advantages to the lot, parcel or tract of land, whereof a portion is condemned, and not advantages of a general character, shared by the owner in common with others using or having it in their power to use the canal, for the transportation of their produce; and that if these exclusive and special advantages were equal to the speculative inconveniences, they should be made to balance each other; if the inconveniences were greater, the excess should be added to the value of the land ; but if the advantages were greater than the inconveniences, no deduction should on that account be made. This I take to be the meaning of the instructions given by the court to the second set of assessors appointed by its authority, under which they gave damages to the proprietor to the amount of 350 dollars.

*The instructions of the court, then, affirm these propositions: 1. That, in every case of land condemned for the use of the company, the proprietor is to be compensated for the full value of the land, without regard to advantages of any character or description. 2. That the appreciation of the value or price of the land by the greater facility of navigation, is only an ideal or speculative advantage. 3. That the inconveniences arising to the proprietor, from the additional fencing that may be required, from the overflow of his other land, from one portion of it being cut off from the other, or from any other cause, independent of the value of the land taken, as affected by the position and form in which the condemned portion may be located, — are also speculative inconveniences, and being of the same character as the advantages, namely, both speculative, and having no certain standard by which either can be measured, they may balance each other, if supposed to be equ al; but if unequal, the excess of speculative inconvenience may be added to what is termed the certain and real damage, but not e converso (for so I clearly understand the instructions). And lastly, that the use of the canal, and the additional value given to the remaining part of the tract or parcel of land of which a portion is condemned, is not an advantage contemplated by the legislature to be taken into computation ; or if contemplated, it would *121be a violation of that provision of the constitution of Virginia, which declares, that the legislature “shall not pass any law, whereby private property shall be taken for public uses without just compensation.”

Much of this appears to me to be inconclusive, and unwarranted by the terms or spirit of the law in question. I do not, for example, perceive, why the additional fencing which a proprietor may find it necessary to make, or the overflow of his land by leaks or drains, or its separation into distinct parcels connected by bridges at a distance from each other, or the annoyance *to his property by boatmen and others,— should be called speculative inconveniences, and not real ones. Nor can I comprehend, why the use of the canal, and the additional value given to a lot or parcel of land, should be termed speculative advantages only : nor why, if speculative inconveniences exceeding advantages said to be of the same character, are allowed under this law to be added to the value of the land condemned, the excess of advantages ejusdem generis shall not be taken from that value. These advantages and inconveniences, though not certain, are appreciable, and admit of as much accuracy of valuation as annuities, or many other subjects which the law notices ; and if we exclude them because the assessors cannot precisely estimate their amount, we shall go near to annul the law. The advantages derived from the structure of the canal, from the embankment of stone or earth, or the probable conversion of marsh into arable land, which the able counsel for the defendant admitted might be taken into the estimate, and set off against the value of the land (but which the instructions of the court exclude), are, it seems to me, as speculative as that which he attempts to get rid of. If, by the use of a road or canal, produce can be sent to market, after paying the tolls exacted, for a less sum than it could otherwise be carried, the difference will, in general, enhance the value of the land, in a ratio which can be easily estimated, and is a positive advantage, as little speculative, ideal, or contingent, as any other which the assessors could be called upon to value. In human affairs, approximation to justice is all we can in general hope to attain.

After mature consideration, it occurs to me, that the only difficulty in this case is in ascertaining the true meaning of the several acts of assembly respecting The James River and Kanawha Company. If, in doing so, we come to the conclusion that the legislature meant to authorize the assessors, in estimating the damages to the *owner of the land, to combine therewith the advantages derived from the use of the improvement in the enhancement of its value, such a provision cannot, in my judgment, be objected to on the ground of unconstitutionality. It is conceded, on all hands, that the legislature may take private property for public uses ; and it is equally clear, both on principles of natural law and constitutional inhibition, that it cannot be taken without making just compensation to the owner. “ This compensation” (says judge Carr, in Crenshaw v. Slate River Co. 6 Rand. 264) “ must always be made under some equitable assessment established by law. ” But it need not be m ade in money, nor in any thing admitting of certain, precise and invariable value. It consists, as Blackstone expresses it (1 Comm. 139), in giving to the individual “a full indemnification or equivalent for the injury sustained.” The very word compensation means amends, recompense, or counterbalancing advantage ; and for such equivalents, private property is every day, in the form of taxes or otherwise, taken for public uses. Now, to carry a road or a canal from one’s usual market to his door, and thereby to double the value of his remaining land, is as much an equivalent, recompense or indemnification, as if the value of his land were paid for in money. Should the value exceed this recompense, it is paid for. Should it fall short of it, he gets all the additional benefits, without the loss of a cent’s worth : and herein consists the preeminent advantage to the riparian proprietors ; for in ninety-nine cases out of a hundred, they receive more than a compensation for the strip of land condemned even should they not be paid a dollar in damages.

But, it is said, “ this is an advantage not exclusive to the proprietor of the land a portion of which is taken, but shared equally by the owners of farms near by and at a distance, and throughout the valley of the James River, who have contributed little or nothing to -the improvement; and, therefore, to the extent that any deduction is made from the real value of the land condemned, on account of any supposed advantages of improved navigation, so much is taken from the proprietor unjustly, and appropriated to the use of others, without consideration and against all constitutional principles.” I do not perceive how this conclusion is fairly drawn from the premises. It is true, the law may operate unequally, as most human laws do. One class of persons may receive equal benefits with another, and may contribute less, or lose nothing. But so long as the other class receives a fair equivalent for losses, how can it be said, that the property of those who belong to this class is taken without consideration, and in violation of the constitution ? The simple fact is, that they get the worth of their property, whilst others, who lose no land, share the benefit : This is inequality, but not injustice. It is the case of the labourers in the vineyard, who bore the burden and heat of the day, but received only the penny which was given to the eleventh hour man. No wrong is done if the riparian proprietors are justly compensated, although all the inhabitants of the James River valley partake of the bounty of the state. And, as I have already hinted, this inequality is, in a gréat majority of the cases, more imaginary than real, since the benefits so far exceed the losses, and are so much more certainly experienced by those through whose lands the canal is carried, as to make the exceptions a matter of little consequence in the estimation of a wise legislature establishing a general system of internal *122improvement. Inequality, and even injustice, is incident to every imposition of burdens, for the use of the public ; but these are considerations more properly addressed to the legislator than to the judge, except as they may aid in the true interpretation of the statute.

I repeat it, then, that the true inquiry here is, to ascertain the meaning of the legislature, when it directed *that lands should be condemnedfor-the use of The James River and Kanawha Company, and how the damages should be assessed. To enable us todo this, we must recollect a few general rules of construction not inapplicable to the present case. One is, that we must construe statutes according to the plain and popular meaning of the words,dt being safer to adopt what the legislature has actually said, than to suppose what it meant to say. Another is, that we should take all laws which relate to the same subject, whether expired or superseded, as one system, to be construed consistently. And a third is, to construe a statute made pro bono publico, in such a manner that it may, as far as possible, attain the end proposed, without inconvenience, or danger of thwarting the policy which gave it birth. Pierce v. Hooper, Stra. 253 ; New River Co. v. Graves, 2 Vern. 431.

The 30th section of the act of incorporation of the company, directs, that in assessing damages to the proprietors of the land condemned, the assessors shall “ take into consideration the quantity and quality of the land tobe condemned, the additional fencing which will be required thereby, and all other inconveniences which will result to the proprietor from the condemnation thereof ; and shall combine therewith a just regard to the advantages which the owner of the land will derive from the construction of the road or canal, for the use of which the land is condemned.” This law must be considered in connexion with others on the same subject. The state, in establishing a general system of internal improvement, meant, undoubtedly, to adopt a uniform rule in the assessment of damages to individuals. By a former law in relation to this same company (Acts of 1819-20, ch. 56, § 3, 4,) lands were to lie condemned, in the manner prescribed by the act entitled “an act prescribing certain general regulations for incorporating turnpike companies,” for the condemning land for the use of any turnpike road, varying the forms of the proceedings *as the nature of the case might require. And by the general law concerning turnpike companies, 2 Rev. Code, ch. 234, § 8, the valuers were directed to combine with their assessments of the value of the land, and of the inconveniences resulting thereto from the opening of the road, “ a just regard to the advantages which the owner of the land will derive from the opening of the road through the same.” The same policy was afterwards extended to rail roads by several acts, and to all the roads of the country, by the statute of the 20th January 1834, which enacts, that whenever a jury shall be impanelled, according to the direction of the second section of the road law, the sheriff shall, in addition to the charge prescribed by that section, “charge the said jury to combine with the estimate of the damage to be occasioned by opening the road, a just regard to the advantages which the proprietor and tenants will derive from the passing of the same through their lands.” These are all acts in pari materia, and to be construed as one law. Whatever rule the legislature intended to adopt in the one case, it meant to prescribe in the other. And, therefore, I do not think the criticism of the counsel on the words “ construction of the road or canal” (fo'und in the original act of incorporation of 1831-2, ch. 82, § 30,) by which he would confine the advantages to be set off, to those arising from the structure of the improvement, a sound one. That change of phraseology was manifestly used as synonymous with opening or passing through ; the terms employed in the other acts.

What was then the obvious meaning of the legislature, collecting it from the language it has employed, without indulging in refinements, or resorting to presumptions, or being guided “by the crooked cord of discretion,” which has so often induced a departure from the plain and literal construction of statutes ? The advantages derived to the owner of the land condemned, are to be estimated, considering him as owner of *that land, and no other. These advantages must accrue to him, in the character of proprietor of the land through which the road or canal passes, and in no different character. All advantages are to be considered, which are in their nature appreciable ; for the law makes no reservation, restriction or exception. How can we say, that the legislature meant only a certain kind of advantages, when their language has excluded none ? Is the use of the canal, and the additional value given to land along its immediate line, no advantage ? Then the assessors will allow nothing for it. Is it a great, obvious and appreciable advantage ? Then, by what rule of construction shall we exclude it from their estimate ? It appears to me, that this was the chief advantage within the legislative contemplation ; for, in the greater number of cases, it is the only one. In the case of common roads, or of railroads, what possible advantage does the owner of the land through which they pass derive from them, except from their use ? And so of turnpike roads and canals, if you exclude this element of benefit, the law, framed with so much care, and applied to every case of internal improvement by roads and canals, might as well be repealed; for little is left on which it is to act.

Plausible objections to this construction may be made, and have been made, by stating hypothetical cases of hardship and inequality. I have already said, that no general system of legislation is exempt from such imputations ; but I cannot admit that this is a reason for rejecting the plain words of a statute. This law seems to me to be as little obnoxious to the objection, as most others of' a similar character. When it is said, that the riparian possessors will thus *123“ be made to pay a very great portion of the cost of making a general improvement, against their consent and without any consideration ;” or that, upon the same principle, a charge might be levied in favour of the company for *the excess of value, and thus all the advantages held out to the proprietors be extinguished, and they alone be excluded from the benefit of the improvement; I cannot perceive the force of the objections, applied to the actual facts, and to the known condition of the country. The slips of land condemned would not pay a hundred thousandth part of the cost of the improvement; in a vast majority of cases they bear a very inconsiderable proportion to the enhanced value of the remaining laud ; and if the improvement was taking another direction, the proprietors would, with a few exceptions, gladly give them to the company to obtain the location. The legislature adapts its laws to the state of things as known “commonly to exist, and not to imaginary or rare cases of hardship. The system deliberately adopted has hitherto worked well; and if we change it now, and give to the owner of the land, in every instance, the full value of his land, enhanced in value by the actual location of the road or canal through it, without abatement, I very much fear a serious blow will be given to the cherished policy of the state.

There is only one consideration more, to which I shall advert. The 9th section of the act of 1819-20, ch. 56, for clearing and improving the navigation of the James River, and for uniting the eastern and western waters by the James and Kanawha, has been relied on to prove, that in no case can the whole saving of the cost of transportation be taken into consideration, as an advantage to the riparian owner. That section contains a pledge, on the part of the legislature to the company, that it will authorize tolls to the amount necessary, with other resources, for the payment of the interest on the money expended on the work; provided that such additional tolls should not exceed one third of the saving of transportation, taking an advantage of three years. I construe this proviso as limiting the pledge of the state to the company, but in no wise affecting the present ^question. If it could be taken as a limitation of the power of the legislature over the amount of tolls, still it would not prove that the excess of benefit derived to the proprietor of lands through which the improvement passes, may not be constitutionally set off against the value of the part condemned. If the legislature, for the general benefit, had given a pledge to abolish all tolls, the proprietor of the land condemned might complain of the inequality, but of nothing more.

Upon the whole, I am of opinion, the judgment should be reversed, and the first assessment confirmed.*

BROCKENBROUGH, J.

The question before us is, what is the proper construction of the act of assembly which directs the assessors “ to ascertain according to the best of their judgment the damages which the proprietor of the land will sustain by the condemnation thereof for the use of the company.” The constitution declares, that “the legislature shall not pass any law whereby private property shall be taken for public uses without just compensation.” The legislature must have had this excellent provision in their view, when they granted the new charter in 1832. I consider it to be the duty of the court to look on that provision as their best guide in the construction of the charter. Endeavouring to keep it in view, I am happy to say, that, *according to my strongest conviction, the legislature have not deviated from it. I proceed to state the construction which in my opinion must be given to the charter.

The 30th section of the act of 1831-2, ch. 82, declares, that the valuers of the land, in the performance of their duty, “ shall take into consideration the quantity and quality of the land to be condemned, the additional fencing which will be required thereby, and all other inconveniences which will result to the proprietor from the condemnation thereof.” Not only the land itself to be condemned shall be valued, but the inconveniences which seem clearly to result from the seizure of the property are also to be valued. The additional fencing is the only one specified, but there are others. One palpable inconvenience is the leakage of the canal, which renders it necessary for the proprietor to cut ditches and drains to carry off that water from his arable land : another is, the being compelled to pass the canal from one part of the farm to another, at one or two points only, whereby his servants and teams will be subjected to greater labour and loss of time, than they would be subject to, if they could go as they were accustomed, by the ways which convenience had previously laid out for them. There are many other such inconveniences, the value of which may be ascertained by those who have a view of the ground on which the canal runs. These inconveniences, incident to the condemnation of the land, are all local in their character. The damages to be given for them attach to the owner, as owner of that particular tract, parcel or piece of land, which is taken from him without his consent.

The law proceeds to say, that the valuers “ shall combine therewith a just regard to the advantages which the owner of the land *124will derive from the construction of the road or canal, for the use of which his land is condemned.” What is the character of the advantages . to * which a just regard is to be had ? It is, the advantages to the owner of the land. What land? That on which the canal is to be constructed. If the same proprietor owns another tract or parcel of land at the distance only of half a mile, but separated from the canal tract by the land of another owner, the advantages which he will derive from the navigation, as to that land, are not'to be taken into consideration, because it is not the land on which the canal is constructed. The advantages derived to the owner from the improvement are as great, or almost as great, on account of that tract, as of the canal tract, if the two tracts are of equal size and fertility; but those advantages are not to be valued, by the very words of the act. Yet it is an advantage to him, and if all advantages conferred on him are to be valued and charged to him, this advantage should be so valued and charged. There are some advantages, then, which are to be excluded from the view of the valuers. What, then, are the advantages to be valued ?

- As the land which is condemned is itself to be valued- according to quantity and quality, and the inconveniences to be valued are incidental to the condemnation, and local in their character, so it would,seem, that the advantages to be valued are such as are incidental to the condemnation, and local in their character. The advantages are placed in contrast with the inconveniences ; they are both of like character. There may be many such : take, for example, the cases put by the counsel. The digging of the canal may drain a marsh for the proprietor-; the walls of the canal may give to the proprietor a line of permanent fencing which will save to him a great deal of the expense of inclosing. There may be many others apparent to those who go upon the land. Whatever advantages the construction of the canal gives to him as owner of the particular tract, piece or parcel of land, on which it is constructed, shall be justly regarded, and shall be combined with the inconveniences *for which the damages are to be assessed ; and the value of these advantages, when ascertained, may be deducted from the value of the land condemned, and of the incident inconveniences.

Does the charter contemplate that the assessors shall charge to the riparian proprietor the value of the advantages derived to him from the improvement of the navigation ? I think not. I admit that these advantages may be very great, and that their value is ascertainable. But they are not advantages peculiar to him. On the contrary, they are common to him with all the rest of the inhabitants along the whole line of the improvement, who are within its influence. From Richmond to the Ohio, every man (whether his lands touch the canal or road, or not) who will be enabled to increase his products by. turning more land into cultivation, or by importing with greater ease and cheapness fertilizing minerals and other manures, who will be induced to open new mines or quarries, who will be enabled to carry his increased productions to market, and to bring from market his supplies, with greater ease and less expense,— will be benefited, if the canal and road should get into successful operation. Indeed, these advantages are the very objects which the legislature had in view in granting the charter. They are general advantages. To the great mass of that community, to ninety-nine out of a hundred, they operate, and are intended by the legislature to operate, as:a benefit, without requiring them to pay the price of the construction. Shall this benefit- be withheld from the hundredth ? Shall it be withheld from him, unless he will make compensation for it different from all the rest ? This could not, I think, have been the intention of the legislature. It could not have intended to authorize the company to seize on and sequester the property of an individual, and under the pretext of making him a compensation for that property,- to claim a set-off for a general ■ ■ advantage, which, will deprive him *of the just compensation intended by the constitution. It is not credible, 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.

For these general advantages conferred on the community, the company has a separate and sufficient consideration. That consideration is the receipt of the tolls from all those who navigate the river. In proportion to the extent of these general advantages, is the compensation increased. If the individuals on the line of the improvement increase their products and their trade, all this increase produces new advantages to the company, by increasing its tolls. This is its compensation for all its outlay. That outlay consists not only of money paid for labour, materials and services, but of money paid for land on which to- construct its improvements. If, then, it obtains a consideration or compensation for the general advantages which it confers on the country, why should it expect another consideration from the landholders, whose land it takes ?

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 oh him, *not with the particu- ' lar view of benefiting him, but for its own wise purposes ?

*125With respect to the particular case under consideration : By the report of the board of assessors, which was set aside by the court, the proprietor of the land condemned was adjudged to receive no damages. It seems from the report, that the land was valued by them : but the special inconveniences to the proprietor seem not to have been valued ; or rather, the agreement of the company to supply the proprietor with convenience equivalent to her inconveniences, was taken as a sufficient compensation for those inconveniences, and then the advantages, not specified, were held sufficient to counterbalance the value of the land. These advantages, I presume, are the general advantages resulting from the improved navigation. The report was rightly disaffirmed.

The judge then proceeded to supersede the board pro hac vice, and appointed other assessors in their stead, and gave them instructions.

The first part of these instructions is, I think, entirely correct. That part declares, that the advantages to be valued are to be of a character particularly and exclusively affecting the particular lot, parcel or tract of land whereof a portion is condemned, and not advantages of a general character, derived from the improvement in question, and which the proprietors share in common with all of the community affected by them.

The last part declares, that after the damages are assessed for the value of the land condemned, the special inconveniences to which the proprietor of the parcel of land is subjected, shall be estimated, and damages assessed for them; that the special advantages derived to the proprietor from the condemnation of his land shall be valued, and that that value may be set off against the damage assessed for the special inconvenience: if the special advantages are equal to the special inconveniences, *then they may balance each other; but if the special inconveniences are greater than the special advantages, then the excess in the value of the inconveniences must be added to the damage assessed for the land.

There is one case which seems not to have been provided for by the instructions. Suppose the special advantages more than counterbalance the special inconveniences, can the excess of those advantages be set off against the damages assessed for the land? It may perhaps be inferred, that the judge was of opinion, that such excess of advantage could not be set off against the damage for the land. If such was his opinion, I should probably differ from him in this particular ; being of opinion, that the value of special advantages may be set off against the damages assessed for the land condemned, as well as for the incident inconveniences, and that the result, after that set-off, furnishes to the proprietor a just compensation for his land condemned. But although such inference may perhaps be drawn, yet the instructions do not in terms extend so far. The latter part of the instructions, as far as they go, is, I think, correct. I see no error in them, nor in the report of the substituted assessors, founded on them.

I am of opinion, that the judgment should be affirmed.

TUCKER, P.

This case has been very justly said to be one of very great importance; and fully impressed with its magnitude, I have given to it my most earnest consideration. The result of my reflection is, that there is no error in the instructions of the circuit superiour court of which the plaintiffs in error can complain.

The constitution of Virginia, art. 3, § 11, has provided, that the legislature shall pass no law, “whereby private property shall be taken for public uses, without just compensation and the naked question is, whether ' the general advantages of a public improvement, enjoyed *by an individual in common with the rest of the community, are to be regarded as constituting that just compensation which the constitution enjoins ? I am of opinion, that they are not.

It is obvious, as has been justly 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 the 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 majority 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 exist) 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 for the abutment of his neighbour’s milldam, it shall be condemned without compensation for its value, provided a jury shall believe the conveniences of the mill to the owner and his posterity, will more than equal the value of the portion of 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. *126of 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 assent: it is enough, that it deprives him of that monopoly, which might enable him to exact exorbita nt 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 neighbour who has not his advantages ; for the neighbour enjoys all the benefits of the canal, and loses none of his laud, 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 the 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 common advantages of the canal, and have lost his land : and under its protection, what more does he get ? Absolutely nothing. Tor 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 athing 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 any body. 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 neighbour, 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 me. 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 dollars 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 pretence of claim, legal or equitable.

Tor these reasons, I am of opinion, that the instructions of the circuit superiour court did not trench ' upon the company’s rights, and were not too liberal to the proprietor. Whether the court has gone too far in allowing what are called “the peculiar and exclusive advantages of the proprietor” to be set off, I do not think it necessary ‘to decide. My impression, indeed, is, that although the value of the land condemned must be compensated, and cannot be extinguished by setting off any speculative advantages, because it is herein under the protection of the constitution, yet if incidental damage is done to the residue of a tract (such as the necessity of additional fencing, leakage of the canal, and the like), such incidental damage may be set off by the incidental benefits which the residue of the tract may derive from the canal, other than those general benefits which are equally enjoyed by the whole community. Tor the right to compensation for those incidental damages, resting upon legislative grant, not upon constitutional provision, it was competent to the legislature to limit and qualify it, and to setoff against'them any incidental benefits, peculiar to himself, which the riparian proprietor derives from the improvement. I am of opinion that the judgment should be affirmed.

Judgment affirmed.

*

Note by the judge. Since this opinion, was delivered, I have seen the act of the 11th March 1837, prescribing general regulations for the incorporation of railroad companies. The clause respecting the assessment is in the same words with those used In former laws; but a proviso is added, “that not less than the actual value of the land, without reference to the location and construction of the road, shall be given by the commissioners.” This shews, that without such a proviso, the actual value need not have been given, and that in the case of railroads the legislature in March 1837 changed its policy. Under this law the enchanced value is not to be given, but only the actual value without reference to the improvement. The office of a proviso is to limit and restrain general words used before.