Shipley v. Baltimore & Potomac Rail Road

Miller, J., delivered the opinion of the Court. *Tliis appeal is from an order refusing an injunction to restrain the appellees from entering upon the land of the appellant under color of an alleged condemnation thereof for the use of their railroad. The bill admits the inquisition, its confirmation, and lender of the damages thereby awarded, and the sole ground of complaint is, that the provision in the amended charter of the company, under which the inquisition was taken, allowing benefits and advantages to be set-off against damages, is repugnant to that clause of the Constitution which forbids the Legislature to enact any “law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation.” The constitutionality of this provision of the charter is, therefore, the sole question presented by this appeal, and to determine it, wo must first ascertain the true construction and effect of the assailed provision, so far at least as the power of the Legislature to enact it may, by possibility, be thereby affected. The condemnation clause in the original charter of this company (Act of 1853, chapter 194, section 13,) authorizes the taking “of any land, earth or materials, or any improvements which may be wanted for the construction or repairs ” ³⁴² of the road or works, and requires the jury of inquest to justly and-impartially value the damages, which the owner or owners will sustain by the use or occupation of the same required by the company.” The amendment (Act of 1870, chapter 80, section 6,) authorizes the taking “ of any land, earth, gravel, stone, timber, streams or materials, or any improvements which may be wanted for the proper construction or repair of any of said roads, or any of their works,” and requires the jury to “justly and impartially value the damages which the owner or owners will sustain by the use and occupation of the property required by the said company, and also the benefits or advantages to accrue to the owner or owners by the construction of the said road as a set-off to the said damages, but only in extinguishment of the claim for damages, and not for the actual value of the land or other material taken, and after having made a fair and just set-off of the axlvantages and disadvantages arising from the construction of the said railroad, they shall estimate and determine what amount of damages has been or may be sustained by the said owner or owners respectively.” Though it might have been more explicitly stated, it is yet quite clear to our minds that, under this provision, the jury are required in all cases to estimate in the first instance, and as an essential and primary element of damages, the actual value of the land or property proposed to be taken, and then to consider what other and incidental damages will result to the owner, by reason of the use or occupation thereof for the purposes of the road, and against these latter only are any benefits