of Buffalo proposed to excavate a canal sixty feet in width across the tracks of several railroads, and entirely through the yard of one of them, at a place where there are numerous tracks, turn-outs, and switches. The present grade of these tracks was but a few feet above the natural level of the canal. The land, if taken by the city, would be taken in fee, and hence the railroad companies would have no right to bridge the canal, and the bridging, if done, would be at an immense expense. This interference, the court say, would not be a tolerable interference with an existing public use, which may be compensated for in damages, but an entire superseding of it by another public use. Both uses cannot stand together. It is not to be presumed that the legislature, by the general terms in which it gave power to the city to take lands, with no especial reference to this particular place or occasion, meant to produce such an effect.1 A general authority to lay out streets and alleys will not justify the laying-out of a street across depot grounds when the easement of the railroad company and of the city cannot reasonably coexist."

§ 47. Condemnation under general laws of property devoted to another public use Priority of location. In many states, the granting of special charters and special privileges to private corporations has ceased. The condemnation of private property for public use is governed by general laws. No restriction on routes is imposed by the acts, and conflicts have frequently arisen. Land already devoted to another public use cannot be taken, under general laws, where the effect would be to extinguish a franchise. If, however, the taking would not materially injure the prior holder, the condemnation may be sustained ;3 or if

1 Matter of City of Buffalo, 68 N. Y. 167. Milwaukee R. R. v. Faribault, 23 Minn. 167.

New York R. R. v. Metropolitan Gas-Light Co., 63 N. Y. 325; Morris R. R. v. Central R. R., 31 N. J. L. 205.

the property sought to be condemned was not in use, or absolutely necessary to the enjoyment of the franchise.1 Property abandoned by a former corporation may be taken. The taking is not a forfeiture of the franchise, for the state alone can declare such forfeiture; but the land may be taken because not necessary to the old corporation, and because one company cannot condemn and hold land not necessary or convenient for its business, merely to prevent a rival company from competing with it. A portion of a horse-railroad which constitutes the most valuable portion of the road cannot be condemned under a general law. A crossing may properly be made, but the condemnation should be of the whole road, and not of the most valuable portion of it. When different corporations desire the same location, the one that is prior in point of time is also prior in point of right, and the first location, if followed by construction, operates to secure the prior right. Unless an exclusive right is given to a particular route, the company which files the first survey is entitled to the route. It does not signify that the articles of incorporation of one are prior in date to those of the other, or that one has made preliminary surveys over a particular route, or has made purchases of individuals along that route. Until the survey is made and filed, the company would hold the land purchased as any other individual land-owner, and such land could be

1 Peoria R. R. v. Railroad, 66 Ill. 174; Oregon R. R. v. Bailey, 3 Oreg. 164. A corporation, either private or municipal, cannot, under a general power to take lands for a public use, take from another corporation, having the like power, lands or property held by it for a public purpose pursuant to its charter. But an easement may be acquired in invitum, by legislative authority, in lands held and occupied for a public use, when such easement may be enjoyed without detriment to the public or interfering with the use to which the lands are devoted. Lands held simply as a proprietor, but not used or necessary to the public purpose, may be taken as of a private person. Matter of Rochester Water Commissioners, 66 N. Y. 413.

2 Oregon R. R. v. Bailey, 3 Oreg. 164.

3 Central Horse R. R. v. Ft. Clark Horse R. R., 81 Ill. 523.

Waterbury v. Dry Dock R. R., 54 Barb. 388; The People v. New York R. R., 45 Barb. 73.

condemned by the rival company upon compensation.1 The priority of construction gives no rights where another company has perfected its location first. A right of way taken and occupied by one road cannot be taken by another, by a general proceeding, without stating in the petition that the land was occupied by another company, and without showing any necessity for taking that particular land. The commissioners who assess the damages cannot determine the priority of right, nor can the owner raise questions of priority between the two companies claiming the land, under separate proceedings, to defeat condemnation."

3 Cincinnati R. R. v. Danville R. R., 75 Ill. 113; San Francisco Water Co. v. Alameda Water Co., 36 Cal. 639.

San Francisco Water Co. v. Alameda Water Co., 36 Cal. 639.

Lake Merced Water Co. v. Cowles, 31 Cal. 215.

58

CHAPTER VI.

EXTENT OF AUTHORITY TO CONDEMN.

48. Authority to condemn not presumed.

49. Extent of interest condemned.

50. A fee may be condemned.

51. Fee in public roads and streets.

52. Minerals in land taken for street.

53. Timber and grass in highways.

54. Materials and buildings in highway.

55. Public use of a highway- Construction of sewers, drains, markets, etc. 56. Use of highway by adjoining owner.

57. Cessation of public use — Reversion to owner.

58. Power exhausted by one exercise-Limitations as to time and amount. 59. Necessary and convenient buildings. Maintenance Repairs - Side tracks, telegraph lines, etc.

The act

§ 48. Authority to condemn not presumed. authorizing condemnation must be express and clear. If there are doubts as to the extent of the power, after all reasonable intendments in its favor, the doubts should be resolved by a decision adverse to the claim of power.1 Although a corporation may be engaged on a great public work, in which the power of condemnation would be of great service, yet the authority must be clearly conferred. Otherwise the corporation must purchase from the owners as best they can. A city, by reason of its general control over streets, is not authorized to impose a new use on streets. An act authorizing a city to construct and regu

1 New York R. R. v. Kip, 46 N. Y. 546; Webb v. Manchester & Leeds Rail. Co., 4 Myl. & Cr. 116.

Thacher v. Dartmouth Bridge Co., 18 Pick. 501; President, etc., of Brooklyn v. Patchen, 8 Wend. 47; Grand Rapids Co. v. Jarvis, 30 Mich. 303; Stein v. Burden, 24 Ala. 130.

3 The State v. Trenton, 36 N. J. L. 79. streets does not include a right to make parks. 39 N. J. L. 509.

Authority to make and control
Rader v. Township of Union,

late sewers, drains, and cisterns does not confer power to condemn private property for sewers and drains. Authority to condemn lands for streets, alleys, highways, and squares does not confer power to condemn land for a city prison. A charter to construct a public improvement, such as a boom, confers no power to condemn or injure lands without the consent of the owner. Authority to condemn for the construction of railroads, canals, and bridges cannot be extended to owners of ferries. Such rights only exist by force of legislative enactment, and are limited to the persons and purposes named; and it does not change the principle that the benefits from bridges and ferries are similar.* If particular property is specified as subject to condemnation, all other property is excluded by implication. Authority to lay out a road through uncultivated lands, or through cultivated lands, when demanded by twelve freeholders, does not authorize the laying-out through mills, manufactories, or yards connected therewith."

§ 49. Extent of interest condemned. Although the propriety of the condemnation cannot be questioned by the courts, yet the extent is, in a degree, subject to their control. There is no sacredness in a building over land, so that the building may not be taken under the authority to take "land." The word "land" includes all improvements on the same, such as buildings, bridges, etc. Personal property, necessary materials, and supplies of water 10 may be condemned. An abuse of the power, whereby an amount

1 Allen v. Jones, 47 Ind. 438.

2 East St. Louis v. St. John, 47 Ill. 463.

3 Grand Rapids Co. v. Jarvis, 30 Mich. 308.

Sandford v. Martin, 31 Iowa, 67.

5 Clark v. Phelps, 4 Cow. 190.

Peirce v. Somersworth, 10 N. H. 369; Ferree v. School District, 76 Pa. 876; Brocket v. Ohio R. R., 14 Pa. 241.

7 Smith v. Conway, 17 N. H. 586.

8 Canal Co. v. Commissioners of Drainage, 26 La. An. 740.

Jerome v. Ross, 7 Johns. Ch. 315.

10 Strohecker v. Alabama R. R., 42 Ga. 509.