The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1892-11-10
and it must suffice to state our cou-
clusion on the point now involved.
the sixth section of the statute directs
the Commissioners


ITO make just and equitable estimate and
appraisement of the compensation and damages
each owner of the real estate and land to be
taken will sustain by reason of such taking,
considering in such appraisal the condition in
which each owners parcel will be left after
taking so much thereof as will be necessary for
said opening, and the benefits that will result
from such road to the owner or owners of such
land and real estate.
"The claim of the prosecutors is that
the Constitution does not permit and this
statute does not authorize the deduction
OF benefits.
PRoxIMATE AND REMOTE DAMAGE.
Just compensation for taking part OF
our entire tract of land for public use
cannot. we think, be .ascertained without
considering all the proximate effects Of
the taking. These are the Withdrawal
of the part taken from the dominion
OF the former owner, the damage done to
the residue by the separation, aud the
benefit Immediately accruing to the resi-
due from the devotion of the part taken
to certain public use. just compensa-
tion is ascertained by combining the
pecuniary value of all these facts; it any
be excluded, what is given more or less
than is just. The value of the land taken
is no more essential to just compensation
than is satisfaction for the damage done
TO the residue, nor is it more exempt from
dimfnution on account of benefits con-
ferred.
There is, however, possibility of
benefit to accrue from certain public
uses for which land Is taken. like the
opening of highways, which should not
be considered; for two reasons; fret, be-
cause this benefit is to arise II at all, in
indefinite future, while the compensation
must be such as is just. at the time of
the taking; second. because it is so uncer-
tain in character as to be incapable of
present estimation. Such benefit is
fhn
growth of population. If it
should be attracted by che public
improvement for which the land is taken.
and from similar sources. IL Is usually
styled general benefit, because it affects
the whole community or neighborhood.
But any benefit, which accompanies the
act of taking the land for the contem-
plated use, and which admits reasonable
computation may enter into the award.
1.-THE provisions of the statute above
quoted are all plainly consistent with this
view of the Constitution, unless the some
what indefinite expression, tine benefit
that will result from such road. should
receive contraction on which the coun-
sci for the Freeholders insist. They argue
that it means the benefits which will re-
suit from the road when improved rs the
statute directs. This construction seem
to be inadmissible. 1t would
violate the Constitutional impli-
with regard only to the proximate effects
of the taking, since this improved condi-
tion Is remote. Besides, II this improved
condition Of the road forms part of the
compensation, then. as soon as the land
is taken, the public comes under contract
with the former owners of the land to
com Dlete the promised improvement Qn
re Water Comrs. of Jersey City. 2Vroom
72) and thes provisions of the Act would
be placed beyond repeal. 1t is not to
be supposed that the Legislature intended
such result The meaning Of the clause
Is that the benefits accruing from the
road, regarded merely as public high
way always subject to legislative con-
troll. shall be considered. These benefits
are the same as are usually charged by
assessment against lands enhau ced in
value by municipal improvements.
THE TAKING POWER.
t.But, say the prosecutors, the right to
assess land for benefits arising out of
municipal Improvements is branch of
the taxing powers. which is not delegated
to the commissioners under this statute
since they are not authorized to levy such
an assessment, but are mere agents in the
exercise of the power of eminent domain;
and II all OF these benefits be charged
against the value of land taken and
damages, under the latter power, the
owner of such land will pay a greater
than would be exacted of him under the
taxing power. while upon the owners of
other lands. sharing equally in the adj
vantageS, no special burden will be I'M
posed. An award made under such con-
dttions, they urge, cannot be just.
"That right to charge landowners for
special benefits conferred by municipal
Improvement pertains TO the taxing
power does not prove that similar right
may not belong to the power of eminent
domain. Sometimes the same result
may be attained by force of different
branches of the sovereign pre-
rogative Thus private proper
use under the police power. or under the
war power. as well as under the power OF
eminent domain. And circumstances
may readily be supposed, in which the
legal claim of the owner for compensa-
tion will depend upon the election of the
Government. as to which power it will
exert for the accomplishment of its ends
Under the taxing power itself, burdens
of very different weight may be laid upon
different persons for similar benefits, at
the option of the Legislature. The ex-
pense OF opening one street may be met
by general tax; the expense
Of opening another, by spec
nothing abnormal In the fact that in
opening public road. a heavier burden
may be laid upon landowner who
comes Within the reach Of eminent do.
main. than may be upon one whom the
power of taxation only can effect. Nor
does this inequality of burden render the
award for property taken unjust. The
parties to this transaction are the public
and the landowner. Between them the
compensation allowed is just. The gen.
erosty Of the public toward other owners.
sharing in the benefit without the burden.
does not affect him whose land is taken
except as it effects all other members of
the community. No doubt, ii the law
had directed that the power of eminent
domain should be employed conditionally
on payment for the land taken and dam
ages, without deduction for benefits, and
that special benefits should be assessed
under the taxing power, more even hand
ed justice might have been none. but rs
1t directs that the eminent domain be
exerted in full constitutional force, on
making compensation deemed Just in
view of benefit as we'll as detriment, it is
for the courts merely to see that the
Legislative mandate is obeyed.
GENERAL OR IMMEDIATE?
"The foregoing discussion disposes of
all the objections presented by the prose-
cutors against the deduction of benefits.
save one. This is, that the Commission
ers have deducted general benefits. Such
does nod appear to be the fact. The ca Sc
states that the benefits deducted are such
as will arise from frontage on the new
road and the conseQuentincrease in value
of abutting property. This is not the
general benefit. Possibly it may cover