apprehend, they were equally in an error when they held, that under the subsequent Act of 1820, the proceedings were indefensible.

...

It appears to me to be a sufficient answer to this objection, that the Act of 1817 had provided the remedy for compensation for every injury committed by the commissioners in the execution of their powers; and when new powers are added (though, I apprehend, the Act of 1820 did not, on this point, confer any power not before existing), the same remedy would apply. . .

If the remedy given in 1817 did not extend to lands appropriated under the powers mentioned in the latter Act, yet I should doubt exceedingly, whether the general principle, that private property is not to be taken for public uses without just compensation, is to be carried so far as to make a public officer who enters upon private property by virtue of legislative authority, specially given for a public purpose, a trespasser, if he enters before the property has been paid for. I do not know, nor do I find, that the precedents will justify any court of justice in carrying the general principle to such an extent. The Supreme Court, in one part of their opinion, admit, that the canal commissioners have a right to enter upon, and occupy lands, necessary to effectuate the objects of their appointment, without having first paid the loss and damage the proprietor of lands may sustain. This equitable and constitutional title to compensation, undoubtedly, imposes it as an absolute duty upon the legislature to make provision for compensation, whenever they authorize an interference with private right. Perhaps, in certain cases, the exercise of the power might be judicially restrained, until an opportunity was given to the party injured to seek and obtain the compensation. But it would deserve a very grave consideration before we undertook to lay down the broad proposition, that notwithstanding a statute clearly and expressly directed the assumption of private property for a necessary public object, it would still be a nullity, and the officer who undertook to execute it a trespasser, if a provision for compensation did not constitute part and parcel of the Act itself. However, it is not necessary to give any opinion on this point, for, as I have already observed, the provision for compensation, in the Act of 1817, extended to cases arising under the Act of 1820.

I am, accordingly, of opinion, that whether the justification of the commissioners be referred to the Act of 1817, or of 1820, it is equally valid and effectual, and that the judgment of the Supreme Court is, consequently, erroneous, and ought to be reversed.

This being the unanimous opinion of the court, it was, thereupon, ordered, adjudged, and decreed, that the judgment of the Supreme Court be reversed, &c., and that the record be remitted, &c.

Judgment of reversal.1

1 And so Jerome v. Ross, 7 Johns. Ch. 315, 344. But see Randolph, Eminent Domain, s. 229.

In a case relating to taxation it was said by BREWER, J., for the court, in Paulsen v. Portland, 149 U. S. 30, 38 (1892), that, “While not questioning that notice to the

SINNICKSON v. JOHNSON ET AL.

NEW JERSEY SUPREME COURT OF JUDICATURE. 1839.

[2 Harrison, 129.]

R. P. Thompson, for plaintiff, W. N. Jeffers, for defendants. DAYTON, J. The declaration complains of the defendants for an injury done to their meadows by reason of the erection and continuance of a dam over Salem Creek. The defendants plead as a justification, that said dam was erected and continued by virtue of an Act of the Legislature of the State, entitled, "An Act to authorize John Denn, of the county of Salem, to shorten the Navigation of Salem Creek, by cutting a Canal," passed November 6, 1818. All which is set out with proper averments. To this plea, the plaintiff has demurred, and the defendants have filed a joinder. [The statement of the contents of the Act is placed in a note.']

tax-payer in some form must be given before an assessment for the construction of a sewer can be sustained, as in any other demand upon the individual for a portion of his property, we do not think it essential to the validity of a section in the charter of a city granting power to construct sewers that there should in terms be expressed either the necessity for or the time or manner of notice. The city is a miniature State, the council is its legislature, the charter is its Constitution; and it is enough if, in that, the power is granted in general terms, for when granted, it must necessarily be exercised subject to all limitations imposed by constitutional provisions, and the power to prescribe the mode of its exercise is, except as restricted, subject to the legislative discretion of the council."

Compare Davidson v. N. O., 96 U. S. 97, 105; s. c. supra, pp 610, 614 — ED. 1 The Act in question (Pamph. L. of 1818, p. 5) enacts substantially as follows:— Sec. 1. That John Denn be authorized to cut the canal as therein prescribed.

Sec. 2. That the canal shall be cut wholly on the land of said Denn, at least twentytwo feet broad at the top and of sufficient width at the bottom, and depth of water for all vessels navigating said creek; and shall, when cut and opened, be at all times afterward a public highway, and be kept open at least of the depth and width aforesaid, at the sole expense of said Denn, his heirs and assigns.

Sec. 3. That when said Denn shall have completed the canal, as is directed, and obtained a certificate thereof from the Chosen Freeholders of the townships of Mannington and Lower Penns Neck, or a majority of them, and filed the same in the Clerk's Office of the county of Salem, "it shall and may be lawful for the said John Denn, his heirs and assigns, to build a bridge over the said Salem Creek, for the accom modation of himself, his heirs and assigns, opposite the mansion house of the said John Denn," provided that the land to be occupied in its construction be his own, and that he do not by its abutments contract the creek so as to injure the navigation; and do put a draw in the same, at least twenty-two feet wide, and that he, his heirs and assigns, maintain said bridge and draw, at their own cost and charges.

Sec. 4. That any person who shall obstruct the digging of the canal, &c., or injure the bridge, &c., shall forfeit one hundred dollars, to said Denn, his heirs and assigns Sec. 5. That when the canal shall have been completely finished, and made navigable for vessels as aforesaid, and shall be used and found sufficient for the space of three years after being first used, "it shall and may be lawful for the said Denn, his heirs or assigns, to stop the creek at the place where the said bridge may have been erected;" from which time his liability to maintain the bridge and draw shall cease.

The point presented by the demurrer, is this: Does the above Act exonerate John Denn, his heirs and assigns, from the payment of damages done to individuals, by stoppage of the creek? Great care has been used by the legislature, in providing another navigable highway for the public, in lieu of that which was authorized to be stopped up. So, too, the legislature have provided against all damages (which could be anticipated) to private rights. John Denn was to use no one's land but his own, and everything was to be done at his individual expense. But although I think it plain that the legislature never intended to injure private rights, yet the unforeseen result is otherwise. The meadows in question are admitted, by the state of the pleadings, to have been damnified by the stoppage of this creek; and yet the statute which authorizes the Act has not provided compensation for the injury. The constitutionality of the law is not now questioned; but it is insisted that the common law right of the plaintiff to recover damages is in full force. And in this position, I think, the plaintiff is right.

It is a well settled rule, that statutes in derogation of common law rights are to be strictly construed; and we are not to infer that the legislature intended to alter the common law principles, otherwise than is clearly expressed. 11 Mod. 149.

Chancellor Vroom in an opinion delivered in the term of August, 1835, in reference to another branch of the same subject matter, which is now before us, laid down the position distinctly, that the Act in question does not exempt him who does an injury from damages; which opinion, thus far, the counsel contend, is not law.

But the question whether a party who has acted in pursuance of a statute, is protected from damages, where the statute itself is silent, has been before some, at least, of our most respectable State courts. In the case of Gardner v. The Trustees of Newburgh et al., 2 J. C. C. 162, a company had been chartered to supply the town of Newburgh with pure water, but were restrained by injunction from diverting a water-course, as authorized by the statute, until compensation was made to the owners of the land through which it ran, although the Act made no provision for such compensation to them; and Kent, Ch., observed, that the owner of the lands "would be entitled to his action at law, for the interruption of his right, and all his remedies at law, and in that court, remained equally in force."

The case of Crittenden v. Wilson, 5 Cowen, 166, is in point. In this case, the court held that the right of the legislature to grant the privilege of making a dam over the Otselic River, which was a public highway, was too clear to be disputed, but the grantee took it subject to the restriction, sic utere tuo, ut alienum non lædas. That if no provision for the payment of damages done to individuals, by reason of the dam, had been made by statute, the defendant would still be liable to pay them.

It is true that in Rogers v. Bradshaw, 20 J. R. 735, it is intimated that an exception to this rule may exist in the case of public commis

sioners acting under direction of the statute, as the direct agents of the State in the execution of a great public improvement, and not as volunteers for their own benefit.

In the case of Stephens v. Proprietors of the Middlesex Canal, 12 Mass. R. 466, it is said that should the legislature authorize an improvement (as cutting a canal) the execution of which would require or produce the destruction, or diminution of private property, without at the same time giving relief, the owner would undoubtedly have his action at common law for damages.

These authorities would appear to cover and rule the present case. But it was contended by counsel, that they were decided upon their respective States' bills of rights, which declare that private property shall not be taken for public use, without just compensation, and that as our Constitution contains no such limit or restriction, the cases have no application, or in other words that the Legislature of New Jersey being unrestricted by constitutional provisions, is omnipotent, and may take private property for public use, without compensation, whenever it shall will to do so.

The right to take private property for public use does not depend on constitutional provisions, but is one of the attributes of sovereign power; and the Constitution of the United States recognizes it as such, when it says, the right shall not be exercised without just compensation. This power to take private property reaches back of all constituted provisions; and it seems to have been considered a settled principle of universal law, that the right to compensation is an incident to the exercise of that power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle. Puffendorf, b. 8, ch. 5, p. 222; 2 Montesquieu, ch. 15, p. 200; Vattel, 112, 113; 1 Black. C. 139; 2 Kent, C. 339, 340; 2 J. C. C. 168; 1 Peter's Com. R. 99, 111; 3 Story's Com. on Constitution, 661; Bonaparte v. Camden and Amboy Railroad Company, Bald. R. 220. The language of Judge Baldwin, in the case last cited, is "the obligation" to (make compensation), "attaches to the exercise of the power" (to take the property)," though it is not provided for by the State Constitution, or that of the United States had not enjoined it."

And Story calls the provision on this subject, in the Constitution of the United States, merely "an affirmance of a great doctrine established by the common law." This principle of public law has been made, by express enactment, a part of the Constitution of the United States (vide 5th Amendment), but it has been decided that as a constitutional provision, it does not apply to the several States. Barron v. Mayor of Baltimore, 7 Peters, 247; Livingston's Lessee v. Moore, 7 Peters, 551, 552. Still if the opinions of the above distinguished jurists be correct, it is operative as a principle of universal law; and the legislature of this State can no more take private property for public use, without just compensation, than if this restraining principle were incor

porated into, and made part of its State Constitution. I have felt it a duty to notice this point, thus far, because of its interest and importance in the abstract, and of the great reliance placed upon it in the argument of the counsel, though I scarcely considered it necessary for the settlement of this case, to pronounce upon it a different opinion.

According to my understanding of the Act in question, the legislature neither intended to take, nor has it taken, private property for public use, in the sense in which these terms are properly to be understood. For the accommodation of John Denn, they authorized him (if he thought proper so to do) to stop up a navigable creek upon condition that he cut a canal at his own expense and upon his own property, as a highway for the public, in lieu of the creek. By the terms of the Act, therefore, I think, the legislature has manifested a clear intent to provide against any interference with private property. It merely agreed to give up its right of passage upon the creek (or in other words, its public property there) for another right of passage equally or more valuable, to be provided by John Denn. The damages which have accrued to the meadow owners have not arisen from cutting the canal, which, in one sense, was for the benefit of the public, but by the stoppage of the creek, which was for the individual benefit, or private emolument of John Denn.

The case therefore is not within the principle laid down in 4 Durn. & E. 796, and Sutton v. Clark, 6 Taunt. 29, 41, where it was held that public officers acting under the authority of an Act of Parliament, in repairing public streets, were not answerable for damages, unless they were guilty of an excess of jurisdiction; that the maxim applied, salus populi, suprema est lex, and that if no satisfaction were given by the Act of Parliament, the party was without remedy. It is not therefore necessary to inquire whether or not these cases conflict in principle with those already cited. Gibbs, C. J., in Sutton v. Clark, carefully distinguishes the case of a public officer who is bound to execute a duty imposed on him by statute, from that of a mere volunteer, who acts not for public purposes, but private emolument. I think it can hardly be pretended, that John Denn stopped Salem Creek for public purposes under any obligatory directions of the statute. So far from this, it is evident on the face of the act, that it was done voluntarily and for his own accommodation. The most that can be said for him is, that by cutting the canal, he paid a consideration to the public, for the privilege of doing so.

The powers given by the Act to John Denn are such only as he would have had, if the creek in question had been his own. He can build his bridge over it, or dam it up, at his pleasure, and his bridge or dam cannot be complained of by the public, as a nuisance; but if in exercising his rights, he damnifies the property of his neighbors, he is liable, like every other citizen, to respond in damages to the amount of the injury.

Judgment must be entered for the plaintiff on demurrer, with costs.