#### The L. C. & C. R. R. Company *v.*J. J. Chappell. The same *v.*Dr. Reese and Mrs. Reese.

The 35 ^ of the act of 1835, (acts of 1835, p. 54,) incorporating the Louisville, Cincinnati and Charleston Rail Road Company, provides, “ that where any lands or right of way may he required by the said company, for the purpose of constructing their road, and for want of *agreement*as to the value thereof, or from any other cause, the same cannot be purchased from the owner or owners, *the same may he taken*at a valuation to be made by commissioners, &c. Held, to be constitutional.

All the writers upon the fundamental principles of national societies agree, and it has now become a principle of universal law, that *private property,*whether real or personal, may be taken for *public use,*upon just compensation to the owner. This doctrine has been uniformly recognised in this State. See the cases of Lindsay v. Comm’rs, 2 Bay, 38 ; Ford v. Whitaker, IN. & M’Cord, 5; M’Gowen v. Starke, 1 N. & M’Cord, 387; Comm’rs v. Singleton, 2 N. & M’Cord, 528; Eaves v. Terry, 4 M’Cord, 125 ; and State v. Dawson, Riley’s Coll., 103.

The exercise of such a power belongs to the *eminent domain*of the State, and it devolves upon the legislature to decide in regard to great works of improvement, whether the public benefit is of sufficient importance to justify the exercise of the *eminent domain*in *such cases.*

And the only restriction is, that private property cannot be *taken,*without just compensation to the owner.

*The exercise of this power*in relation to the Louisville, Cincinnati and Charleston Rail Road, is to be found in the authority conferred *in the**384*charter*upon the company to lay out and construct a road between the given *termini:*and in the actual construction of the road the company are to be considered *so far*the mere authorised agents of the State, to execute the power conferred.

The Louisville, Cincinnati and Charleston Rail Road is to be considered as a *great public improvement,*and when made, a *public highway,*and the legislature may appropriate *private property*for such improvement, or authorise a corporation *thus*to appropriate it, upon full compensation to the owner.

The 37th clause of the act of incorporation, provides a full and ample mode of compensation to the land owner, for any loss or damage he may sustain by the company, in taking his property, in which the trial by jury is preserved, and which constitutes the proper tribunal for the decision of such questions.

These cases came up on an appeal from the decision of his honor, Judge Richardson, made at Fall Term, 1838, in the Court of Common Pleas, for Richland District. As the questions arising in the cases involved the constitutionality of an act of the legislature, the appeal lay directly to the Court of “ Errors,” organized under the act of 1836. In order to the better understanding of the cases, the report of his honor, Judge Richardson, is given at length, and is as follows :

In these cases, the Rail Road Company claimed the right to take the defendant’s land, for constructing the road. The use of the land was not objected to, provided the route should be so located as to do the defendants the least possible injury; but the company refused to take a relinquishment on these terms, and insisting to locate the route as they pleased, filed a petition to the court, praying the appointment of commissioners, to assess the damages to be sustained by the defendants ; ánd served notices to show cause why the same should not be done. The following cause was shown:

That in the case of the first named defendant, he had offered in writing, to the President of the Board of Directors of the Company, to cede the right of way gratuitously, if the company would locate the road on his land, on the south side of the track; but if they would not do this, and insisted on occupying the location de*385signaled by the engineers, which so intersects it as to cut it into three fractions, then the company must pay a specified sum, and if both these should be declined, then the work must cease, as regarded his land. The president afterwards informed this defendant in writing, that the directors had *decided*that the location designated by the engineers, was *necessary*for the road, and that that location was *established.*■ The work has, however, progressed on this defendant’s land, contrary to his wishes, and against his positive orders.

In the case of the other defendants, they were willing to cede the land necessary for the road, and even to pay a sum of money to the company, if the route should be so located as not to destroy the dwelling and settlement. But the company determined to take the route designated by the engineers. In this state of things, the petitions are presented.

The defendants object to the authority of this court, to appoint commissioners to value their land, because that section of the act of incorporation, which gives the right to take such lands, or right of way, as the company may require, is contrary to the constitution of the United States. It proposes to vest in the company, the right to take any man’s property for private use; to interfere with, and destroy vested rights ; to confer a despotic power on a corporation, which is alike inimical to civil liberty and equal rights, and which neither the legislature can authorize, nor this court rightfully enforce.

If, however, it shall be determined that the law is constitutional, yet this court will interfere, and require the company to exercise the authority, with a due regard to the rights of those whose land may be required.

In these cases, the route proposed to be ceded by the defendants, would not lengthen the road more than one hundred yards at each place, and in a part of the way, would be on ground requiring less embankment, and is altogether practicable. But it is said it would impose additional cost on the company, and would require curves in the road. In the first stated case, there is already a curve, and it would require it only to be a little extended.

*386After' argument, the presiding judge delivered the following opinion:

The charter of the Cincinnati, Louisville & Charleston Rail Road Company authorizes the company to lay out a rail road from Charleston, to Lexington, in Kentucky ; and to purchase the land required for the track of the road. The State of South-Carolina has granted the charter, .jointly and severally, with the States of North Carolina, Tennessee and Kentucky. Where the company cannot agree, in the value of the land, with the freeholder, they are authorized still, to construct the road; and to have the value assessed, by five commissioners, 1o be appointed *by*this court. And, if either party should be dissatisfied with the assessment, he may appeal to the court and a jury, for the final assessment; which is made conclusive and binding; and the land vested in the company, upon payment of the money. The company have marked out the road from Branchville to Columbia, in South-Carolina. But in the instances before the court, the parties could not agree upon the value of the land. Whereupon a rule was served upon the defendants, to show cause, if any they could, why five commissioners should not be appointed, according to the terms of the charter, &c.

The defendants showed cause in writing, which will be exhibited to the court.

The objections to the appointment of commissioners consist in the following allegation: That the power given to the company, to construct the rail road over the land of individual freeholders, is contrary to the constitution of the State of South-Carolina, and that of the United States. Because — ■

1. The charter endows a mere private, and not a public corporation ; and private property cannot be taken for the use of such corporation; even upon full compensation.

2. That, even if the land be considered as taken for public purposes, the legislature cannot transfer to such a company, its constitutional power, or eminent domain, to take private property for public purposes, against the consent of the owner, with, or without compensation.

*3873. That, in any event, the company ought to be constrained to lay out the road, so as to put the freeholder to the least inconvenience and loss; notwithstanding it might cause greater expense to the company, in the construction of the road. And

4. That the compensation to the freeholder ought to be made before the land can be taken, and the road constructed.

The primary question of the case is readily disposed of. All the writers upon the fundamental principles of national societies agree in this position: that private property, real or personal, may be taken for the public use, upon full compensation made to the owner. 1 Black., 139 ; 2 Kent, 270 ; 3 Story Const., 661 ; Tucker’s Appendix, 304; 3 Wilson, 303 ; Yattel b., 1 ch. 20, p. 244; Puff. b. 8, ch. 5, 13, 7; Bynk., c. 15; 3 Dallas, 195, 2 D. 34; Peters, 99, 111, &c.; Rawl. 128, &c. In our adjudications, the position has been uniformly allowed, as undeniable. Lindsey v. Com’rs, 2 Bay, 38 ; M’Gowen v. Starke, 1 Nott & M’C., 387 ; Eaves v. Terry, 4 M’Cord, 125; Ford v. Whitaker, 1 N. & M’C., 5 p’Com’rs v. Singleton, 2 N. & M’C. 528; State v. Dawson, Riley’s Collection, 103.

Some of those cases, in fact, go farther, and do not require compensation, as a strict right of the freeholder. The 7th article of the Amendments to the Constitution of the United States, &c., “ nor shall private property be taken for public use, without just compensation,” is a plain recognition of the same principle. And it may be now taken, as a principle expressed, or implied, in every one of our State Constitutions. “ It is a principle (says Judge Story, 3 vol., 161)'of universal law.”

But, I had occasion so lately, in the case of the State v. Dawson, (Riley’s Col. 103,) to discuss and present the authorities, that I will now content myself with referring to that argument, and noting the authorities.

First, then, can private property be so taken by public authority, for the use or emolument of a mere private corporation ?

I am not aware that such a point has been specifically adjudged in South-Carolina. But, if the question mean, can the property of one individual citizen be so taken, against his consent, for the *388exclusive use of another, or of a private corporation, I would readily answer it in the negative; even when sanctioned by an act of the legislature.

But, as this is the point upon which several defendants, in similar cases, have exhibited strong feelings, I will attempt to disabuse their understandings of such a misconception of the charter to the rail road company, by a brief analysis of what practical government consists.

Man and his powers, moral, intellectual and physical, constitute the elements of all governments — man and such of his powers as are organized and digested in a national constitution, make the particular State government, and indicate its character and authority. And beyond the authority so given, the government cannot go. The government is itself controlled by the constitution. But the practical use of all such authority, through the means of human agents, constitutes the indispensable administration of the government.

No one will deny, at least the last proposition. Governmental power must be administered, and practically used.

Now, by virtue of the *charter of the rail road*company, land is taken for the purposes of a public way: not for the use of a corporation; but, for the convenience of travellers, and for the transportation of goods and merchandize.

The fact that the toll, freight and emoluments are to go to a private corporation of individual stockholders, instead of the public coffers, does not alter the character of the road. It is not less a highway.

The land is taken for a public road of a peculiar character, requiring great art, skill and labor for its construction ; and the company, who construct the road, and keep it in repair, at their own expense, receive their compensation, by an assignment of the public right to receive the same, of individual travellers, and freighters.

The company are mere agents, to do the work. Such is the case with every keeper, or lessee of a toll-gate, or a turnpike road, for keeping a part of the road in repair, — with every owner of a *389ferry, or public bridge! for his services, in keeping it in good order. All these are public roads, or parts of roads. But the legislature can, as well, construct, farm out, or lease a rail road, as any other road. And they have the same right, as individuals, to assign, lease, or vend public property — be it a road, or other subject of property. Every office of the State is of the public property; and consists in a privilege, or public franchise. Yet, the emoluments go to individual officers. To deny to the legislature such a right of assignment, because the emoluments are obtained through public property or an office, would be to deprive the State of the use of its individual citizens, in the one case, and to estop the administration of government in the other.

Every step of national government, and every practical use of public property, requires a salary, or wages to him that administers the authority of office, or guards the property.

To compensate for real services, is, indeed,-a primary principle of the American constitutions, as well as to repudiate sinecures. Full compensation for personal services, or property, belongs to governmental protection, and distinguishes free governments.

To say, therefore, that because the company are no more than a private corporation' of individuals, they cannot be employed, by the proper authority, to construct a rail road, and to take the emoluments of such way, as a compensation, would be a proposition leading to the absurd consequence of disfranchising the State of rights essential to its practical existence. Upon this head, I would especially refer those, who may still doubt, to the North-Carolina case, of Gaston and Raleigh Rail Road Company v. Davis, in which it is unanimously decided, that the rail road was a highway.

2. But, secondly, can the legislature assign to any corporation, .the eminent domain inherent in national societies, to take private property for great public purposes ?

This original right belongs exclusively to the association of men, forming national society, but is, from necessity transferred, for the purpose of practical use, to the government of all popui lous countries, and is limited, or unrestricted and plenary, according to the fundamental rules, by which the people have chosen to bind themselves in a State constitution.

*390By the constitution of South-Carolina, this high privilege has been transferred to the legislature of the State, evidently, under the restriction that full compensation shall be made to the owner of the property taken for public use. And, from inherent reason, the transfer is coupled with the high trust, that it shall not be infracted in the conditions of the constitution; nor perverted nor abused in any way.

Such high power and special trust plainly imply that the eminent domain cannot be transferred from the primary and specific agent, to whom it has been confided by the constitution, to any secondary hand whatever. Such a transmission would be utterly inconsistent with the letter, the objects, or the ends of the constition: and at war with well established rules for the construction of trusts and agencies, as well as the practices of governments.

I cannot conceive of a higher judicial power; although placed at the discretion of the legislative department of the government. And a proper sense and conception of the eminent domain, restricted by the condition of full compensation, will be found to be very important, when we come to consider the fourth ground taken, and the application of the trial by jury to the case before us.

But the proper question, for. the present, is — has the legislature, in fact, transferred to the rail road company, the privilege of taking private property ?

On the contrary, the whole argument arises from a confusion of subjects; which, although associated, are not identical; or, from an indistinctness of thought upon matters, as one; but which are plainly distinguishable.

The whole use of the eminent domain, in the instance before us, is to be found in the enactment, that a. rail road shall be constructed between specific termini: and *the*land essential for its track and construction, shall be released, for the purpose of the road, upon full compensation, be such land whose it may. Surely this is an intelligible and plain exercise of their high privilege by the legislature itself, and not by the company. The provisions, that the precise track of the road, preserving the termini, shall be marked out, and the road constructed by the company, are mere *391executive or mechanical processes; like the ordinary administrative offices of overseers, surveyors, and operatives, to lay out and open a public road, or erect a public building, upon land before designated, and appropriated to such public use.

In all such cases, the use of the eminent domain is to devote and appropriate the land by the legislature itself. The surveyor then locates the precise spot, from the statutory grant; and an architect and operatives construct, or build upon the land thus granted, and made public property. But the original statutory grant is alone referable to the’eminent privilege of taking the land. This second objection to the rail road charter is, therefore, merely specious, and must yield to the truth.

3. The third objection is, that the company should be restrained to such a track for the road, as to do the least injury to the freeholder. But, assuredly if there be any wanton abuse of power in designating the precise route of the road, the freeholder would have his remedy in increased compensation, or in an action for malicious damages; and in an extreme case, the remedy by injunction to restrain the company, would be available. But no such inquiry is now before the court. It may come hereafter before the commissioners, or the court and jury, in case of appeal; or be brought before the Court of Equity. In any such event, the remedies are ample. But this court will not pre-suppose an abuse of the practical power of the company ; when the supposed abuse and consequent injury to the freeholder, will be the main consideration for the commissioners or jury, in assessing the necessary compensation, if such abuse really exist.

This objection is therefore out of time and place; and must be referred, if any, without prejudice, *ad aliud examen*— to the commissioners appointed, or the jury, if there should be an appeal to that tribunal, who will do the office assigned to them by the charter, and doubtless make the company pay the proper equivalent for the land taken from the defendants; upon a just balancing between the immediate advantages and disadvantages attending each case. The aim and object will be just and full compensation for the true loss to the freeholder.

*3924. The fourth objection is, that the compensation must be made to the owner, before he can be disseized of his freehold for the use of the road, or the land appropriated.

This objection arises from a mistaken and indefinite apprehension of the object, purpose and character of the eminent domain of government.

If that principle pre-supposed any agreement or assent of the individual owner, as necessary, before the appropriation of the land, then, an assessment and actual compensation would be required before the divestiture of the citizen.

But the eminent domain pre-supposes a public right to use private property, for public purposes, with or without consent. Such liability inheres in all property, as a moral element of society, in return for the general security and protection of individual rights: for his inviolable civil liberty — the sanctity of his castle — for the guard over his property, in all other respects — for his security in person and character at home — for the guaranty of his enterprises and respectability abroad. It is for such practical equivalents: not through veneration of power, that the sovereignty of government may assess and tax our property; and may assign any property for public purposes, upon a fair compensation upon the same principle that permits taxation. In this way, the appropriation made for all, is paid for by all. And we see one of those glorious checks upon power, which keeps it right in practice, and beneficial. The general principle is, that private property may be taken. The peculiar condition of democratic *governments*is, *that*adequate compensation must be made : not that the force of the public privilege is less in free, than in despotic governments: where the property may be taken *without*compensation.

From this simple exposition, it is readily seen, that the property may be converted to the public use, *instantly,*if so ordered by the government; notwithstanding *the*individual right to compensation.

Were it otherwise, a highway could not be constructed, but after such delay as would be a source of anarchy.

And a private house or enclosure could not be used for a forti*393fication, upon the most urgent emergency and the common safety. It is upon the same principles that property is not only taxed annually at the discretion of government; but that the private domicile and castle which are so cautiously protected, may yet be forced open, in the pursuit of criminals. For crimes, and to the public exigencies, all individual rights yield and give place; and even life may be taken. The state of war illustrates admirably the efficiency of the eminent domain. Not only past contracts with the enemy are cancelled, or at least suspended; but all trade estopped as if prohibited by the original society and social state of man, and we thus readily perceive how various are the applications of this governmental power.

Reverting back for a moment to the 1st, 2d and 3d grounds taken, it may be seen why the privilege of the eminent domain can be used only by the legislature itself; but must, of necessity, be at its sound discretion. Its use depends upon the progress, position or exigency of the State. And our own domestic history illustrates how various must be the applications of this high privilege.

When Charleston was first settled, it required much fortification, and many exterior forts. These were erected at discretion, and the whole eminent domain confined to forts and city lanes. The people wanted no highways; and, accordingly, a ride “ up the path,” to use the early phrase of our mother city, presented the whole road statistics of the Lords Proprietors of Carolina. For a series of years after, Indian paths occasionally opened by the axe, served our frontier herdsmen, and rvere enough for the province.

But, as soon as commerce penetrated into the country, the king’s highways were opened along the great rivers. And, with this change of time's, roads, bridges and ferries were called for, in rapid succession, while, at every new application, the land holder stood upon his *magna charta*rights. But Lindsey and A. B. Starke, Withers, Eaves, Dawson, and all were taught, successively, how strong and various were the powers of the people’s government to devote private property to public uses, even without compensation in some cases. The first road act to open highways, without paying an equivalent to the landholder, is of modern date, (1788,) and *394probably gave rise to many of the adjudications I have noticed, but in which my own judgment never can concur. These decisions go with some exception, upon the principle that the eminent domain is paramount: requires no compensation; and it would seem, may be even delegated by the legislature, as in the road act of 1788, now repealed. If our rail road system stood upon such footing, I should be for much reconsideration of the entire subject. The third direction that has taken place in the use of the eminent domain, was in its applications to canals, and the widening of old, and the opening of new streets in Charleston, in which private property has been properly respected. The legislature, themselves, corrected the former abuse of their great constitutional prerogative ; and ordered compensation in all these latter instances, and they clearly deserve our thanks for such respect for the constitutional law, and vested rights. It is a fine instance of the advancement of moral influences. But even this last great improvement in legislation was unsatisfactory, if not deficient, in the omission to refer the question of valuing the lands taken to the proper tribunal of a jury.

But in the law now before us, which lays the foundation of a great and growing system of rail roads, pervading the whole State, the omission has been supplied; and the question of compensation is required to be finally decided by the fixed constitutional tribunal of a jury, instructed by the constitutional judges and subjected to their supervision. Such a system, fairly used, must and will conciliate the whole country. The rail road act comes, therefore, up to the Constitution of South-Carolina, and admirably illustrates the justice and wisdom of Judge Waties’ opinion, given very soon after its adoption, in Lindsay’s case, (2 Bay. P. 38,) that our constitutions enact compensation, *as a right*of the citizen.

But the principle which requires compensation for private property, taken for public purposes, would have been very incomplete and uncertain without some tribunal beyond the selection or control of the legislature itself; or any dominant majority whatever, in evil times.

The moment compensation is required as a constitutional condi*395tion, although the property may be instantly taken, the principle unavoidably means a positive right to adequate compensation.— And such right presupposes an independent tribunal to decide upon the amount in money.

Now, then, the 9th article, 6th section of the constitution, declares, *“*The trial by jury, as heretofore used in this State, and the liberty of the press, shall be *forever*inviolably preserved.” “ For ever.” Such terms would seem to indicate, that no power less than a primary convention of the State, can change these particular provisions. But, at least, our rights of property and reputation, are brought within it and. inviolably subjected to it, by universal acknowledgment, except in a few particular cases,.in which trial by jury would be incompatible with the question made. Why then, I ask, should the absolute right to compensation for property wrested, at discretion, from the owner, be adjudged by any tribunal nominated at the discretion of one party to the controversy only I

The very character of such a case raises a question for severe contestation, before the most inflexible and incorruptible tribunal of justice and the constitution. For illustration, do but call to mind the possible case of another Hamden, or Jinks, before any unconfirmed judicature.

For such reasons, while I rejoice at this new provision and reference in the rail road charter, to a jury to decide, wherever required, upon the extent of compensation; and while I will not say that in the state of our own past adjudications, I would feel myself justified in holding the charter unconstitutional without such a provision, yet, for the same reasons, I cannot concur in that one point with the decision lately made by the Supreme-Appellate Court of North-Carolina, in the case of the Raleigh and Gaston Rail Road Company v. Davis, while I do fully concur in every other respect, in that very enlightened and able adjudication, which involves and decides the main points now before this court; and would, I cannot doubt, give great satisfaction, if not entire conviction, to all the freeholders whose cases have been before me, and whom I have failed to convince, that their property has been taken *396for great State purposes, and not assigned over to a mere private corporation. And I must be allowed the foregoing brief reasoning, why I cannot altogether concur in the entire conclusions of that very clear, and in all other respects, convincing judicial argument.

The five commissioners are therefore appointed, according to the rail road charter, and consist of-”

From which order the defendants appealed, on the following ground:

Because that part of the act incorporating said company, which authorizes it to take such land and right of way as it may require, and which vests said land in said company, is unconstitutional, in the following particulars, viz:

1. In vesting said land, which was private property, in the company, and does not vest it in the public.

2. In vesting the road in the company *exclusively,*and not in the public, and is therefore not *for the public use,*but for a private one.

3. In disseizing the citizen of his freehold contrary to the law of the land.

4. In interfering with and destroying the vested rights of the citizen.

5. In giving to the company such privileges and authority as to destroy that equality of rights and laws which is guaranteed to all.

6. And in conferring a power on the company which is oppressive and tyrannical, and .which is uncontrollable, unless the court will restrain its exercise, and which is contrary to the spirit of ours and of all free governments. And because, if it be constitutional and right that such a power should exist, the court should so order its execution as to protect the citizen, from great sacrifice of property or feeling, unless it be impossible to avoid it. And the mere inconvenience of the company, or additional cost in constructing the road on a different route from that proposed, is not sufficient to protect the company in the exercise of an arbitrary power, or to prevent the court from restraining that power in favor of the citizen, and of ordering the road to be so located as to do the least possible injury to private rights.

*397RichaRdson, J.

This court has weighed the argument so well presented on the part of the appellants, and appreciate its force.

The practical power confided to the rail road company by their charter, is great; and, from its very nature, such power might be abused or perverted, and landholders annoyed. Because the route of this great commercial way is, from necessity, left to the understanding, skill and discretion of the company; and their authority might be practically enforced, with too little consideration for individual justice, or human feelings. But, for any such abuse of power, the laws supply ample remedy. An independent jury is a refreshing sight and sure refuge in every instance, and is secured by the charter; and for continued abuse, or misuse, any charter may be repealed. But when the legislature have confided express power, it is not for this court to anticipate abuses and offer to restrain them, when our judicial province might be hereafter required in their supervision and correction. All powers, great and small, may be made oppressive. Yet, still, our necessities require them to exist in some tribunal.

If the rail road route had been given for a common highway, and surveyors named to locate its track through the entire State, and contractors hired to construct such road, with the emolument of toll gates, provided for compensation, the objections offered would be of similar character to those offered in the argument for the present defendants. There would be no difference in principle or degree.

The true substantial difficulty felt by the court, is in coming to the conclusion that the rail road is to be put on the footing and character of a highway, and is erected, not for private, but for such general purposes, as to render it an institution for such public purposes. But, according to the view taken in the circuit decision, that the application of the eminent domain of government is, from its essential nature, very various ; and to be made according to the successive exigencies, of the State, it may be rationally assumed, that rail roads, although of recent origin, have already become of incalculable public importance: That the enlarged ends and off *398jects of this great rail road especially, is, for the transportation and intercourse, commercial and social, of several different States, whose interests are to be ever regarded, and the mutual confidence that belongs to such a work sacredly fulfilled. This characteristic is irreconcileable with the proper conception of a mere private way.

Again: Rail roads have been recognized as highways in other States, with whose adjudications upon great subjects of commerce and reciprocal advantage, a liberal comity ought to be observed throughout the States: and the same great objects steadily kept in view by all who value rail roads, a new moral cement of the American Union, as well as the useful vehicles of our vast and increasing internal commerce: and thus uniting in their natural operation pecuniary profit with moral fitness, and the 'politic establishment of so many independent States.

May not rail roads, then, be fairly considered, in character and objects, (and ours more especially,) as international, and therefore public highways.

With such sentiments, and for such purposes, we are bound to consider the great ends of our own rail road system, and to inquire, under *their*guidance, whether the eminent domain of government may not be fairly and rationally applied for its advancement, in the very way-pointed out by the present charter of the Louisville, Cincinnati and Charleston Rail Road Company. In such an instance, we should especially require, that the charter shall be clearly unconstitutional, before we put it in the power of any one freeholder to arrest the progress of so great a work of usefulness and high considerations. It is not enough that the human mind may balance on the subject.

But take another point of view, which I cannot help thinking of lasting importance. Such a rail road as ours, should be held as a highway on account of its great objects: anehfer the same reasons, to be kept under public control. Is it not wise to hold such a company, as the guardians, or lessees, of a great highway, endowed with a public franchise : yet subject to the control which their purposes indicate as necessary and proper for such an establish*399ment, and which the general right to use the road absolutely requires *1*

Such a road must be held as a part of the public domain, farmed out to individual men, for its practical administration and order alone — and if placed aloof from such control, it would inevitably become suspected of partiality, and odious to the people.

Since the argument before this court, our attention has been turned to the case of Beekman v. The Saratoga and Schenectady Rail Road Company. It is found in Paige’s Ch. Rep., 3 vol., 45, and is a learned decision of Chancellor Walworth, of New York. It will be satisfactory to the parties concerned in interest, to know, that the following points were ably discussed and decided in that case : 1. “Acts authorizing rail road companies to taire private property, for the purposes of the road, upon paying full compensation, are constitutional.” 2. “ Rail roads are public improvements ; and the legislature can appropriate private property for such improvements, or authorize a corporation thus to appropriate it, upon full compensation to the owner.” 3. “ The public have an interest in the use of the rail road — and the company are liable to respond in damages if they refuse to transportan individual, or his property, without reasonable excuse, upon being paid the proper rate of transportation.” 4. “ The legislature may regulate the use of the franchise, and limit the amount of tolls, unless they have deprived themselves of that power by the contract.” 5. “It belongs to the legislature to decide, whether the public benefit is of sufficient importance to justify the exercise of the eminent domain in such cases.” 6. “And the only restriction is, that private property cannot be taken without full compensation and in the mode prescribed.”

Thus, then, the decision of this court concurs in every material respect, with those of other American judicatures, who have considered the great modern establishments of rail roads. — And, it may be seen, that the manner of reasoning in each court has been drawn from the same great principles inherent in, and consecrated by the American constitutions. And thus, too, we have increasing evidence of our homogeneous principles — of their moral influence *400and sure fruits, in the harmony, of opinions — and the consequent union in action, which engender-reciprocal regard and tend so much to confirm the success of sQ$.iany independent States, united together by such principles. *ÍM'*

*Chappell,*for the motion.

*Blanding,*contra.

The appeal is dismissed on all the grounds taken.

Dunkin, Johnson, Harper, Chancellors; O’Neall, Butler, Gantt, Evans, Earle, Justices, concurred. Johnston, Chancellor, gave no opinion. .