under these laws, if ever so small a piece of one's ("A") land were taken, he not only recovered compensation for this, but also damages to his remaining land, but his less fortunate neighbor ("B")-less fortunate because the company had not taken a little piece of his land-had no redress; as to him the injury was damnum absque injuria, his land may have been equally near the railroad, his measure of damages would have been computed as was "A's," had only a little piece of his land been taken. Yet "A" recovered for this injury to his land not taken, because some of it, perhaps a small corner of it, had been taken, whilst as to "B," who experienced the same depreciation in value from the same causes, the injury was damnum absque injuria, because a little piece of his land, no matter how small, had not been taken. This was one of the faults of these General Railroad Laws, which the provision of the new Constitution was intended to remedy.

Let us compare this new Constitution with the amended Constitution of 1838. The phraseology of the two is so very different it is apparent that the former instrument contemplated a very much wider extension of the right of recovery. In the Constitution of 1838 it was an inhibition upon the legislative power to grant eminent domain, i. e., "the legislature shall not invest, etc., etc." In the Constitution of 1874 a very different object was in view; it was not, primarily, an inhibition upon the legislative power to grant eminent domain, this the people did not intend to interfere with, but it was :—

Municipal and other corporations and individuals invested with the privilege of taking private property for public use, etc., etc.," that is, this clause is used to designate a certain class of corporations invested with eminent domain. Who are invested with eminent domain? Why, railroads, canals, etc., etc.; these are liable to produce a distinct and particular injury peculiar to themselves, and it was against these distinct and peculiar injuries that the Constitution was intended to provide a remedy. Then follows the remedial clause, "shall make just compensation for property taken, injured, or destroyed, etc., etc." This is very different from authorizing the exercise of eminent domain, under certain qualifications; on the contrary it only indicates a certain class as being subject to a certain law; it is not, corpora

tion shall not be invested with the privilege, etc., etc., as in the Constitution of 1838, but it is, corporations invested—note the past tense with the privilege, etc., etc., shall be subjected to certain obligations, whether the injury they cause is the direct result of their acquisition under eminent domain or not. In other words, corporations possessing the right of eminent domain can enforce it; it is, therefore, really immaterial whether they acquire the property under the exercise of this right or purchase it outright at private sale,' for in any such sale the controlling factor must be their right under eminent domain. Thus I think it is clear that the expression, "invested with the right,” etc., etc., is intended as designating a class subject to the remaining terms of the clause, that is, these corporations shall make compensation for property taken, property injured, or property destroyed.

We have tried in the previous pages to present the growth of what may be called the public highway laws. Hitherto I have referred, in a general way only, however, to the various decisions under these laws, but I now propose to consider them in detail, to show what has been held an injury of that character for which compensation should be granted, and to compare these decisions with that in Pennsylvania Railroad Company v. Lippincott, 19 W. N. C. 513, wherein damages were not allowed, to see if these decisions are logical and consistent. Before doing so, however, it would be well to state that the words "direct," "immediate," "consequential," and "remote" are used in connection with this subject of damages under the new Constitution in a loose way, which robs them of their true meaning. It seems to me that the injury is direct, immediate, and consequential, without regard to property being taken or not-whether a legal injury will depend upon the common law or the statutes, or the Constitution; an injury is speculative, where it has no practical existence, but arises from a mere possibility—an imaginative fear and an injury is too remote, where it results from the company simply carrying on its business, as

1 Of course, one who has sold his property to a railroad has no further claim for damages to that property; but what I mean i3, no matter how they acquire their property, either under eminent domain or at private sale, they are liable for legal injury to other property.

loss of trade to stage-coach companies, or of custom to inns, by reason of the introduction of a railway. The true point in any given case is, the plaintiff must have suffered a special legal damage, and it is immaterial whether it is immediate or consequential.1 The injury may be said to be consequential in the sense that it is the result of the corporate action, but if it is one for which a legal remedy is provided, then it is a direct, immediate legal wrong; but if the injury is a mere speculative, possible one, if it does not exist, but is a mere phantom of the mind, or if too remote, it cannot be considered.

Again, the legal maxim, "damnum absque injuria,” is often misunderstood. Upon this point, Mr. Justice STEPHENS said:2 "The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal, and made without consideration, etc., etc. The maxim means only that legal wrong and legal remedy are correlative terms, and it would be more intelligibly and correctly stated, if it were reversed so as to stand, where there is no legal remedy, there is no legal wrong." This is the true meaning; damnum absque injuria has nothing to do with whether the injury is under the common law, a statute, or a constitutional provision, the injury may be saved from being damnum absque injuria as well by a statute or a constitutional provision as by the common law; legal wrong and legal remedy are correlative terms; thus the common law has provided no legal remedy for the breach of a promise not under seal and without consideration, hence there is no legal wrong; but if a statute or constitutional provision were passed establishing a legal remedy, then the breach of such a promise would be a legal wrong, that is, a damage where there is no legal remedy is "damnum absque injuria," but the moment a legal remedy is provided, it ceases to be damnum absque injuria and becomes a legal wrong for those within the legal remedy.

tion shall not be invested with the privilege, etc., etc., as in the Constitution of 1838, but it is, corporations invested-note the past tense with the privilege, etc., etc., shall be subjected to certain obligations, whether the injury they cause is the direct result of their acquisition under eminent domain or not. In other words, corporations possessing the right of eminent domain can enforce it; it is, therefore, really immaterial whether they acquire the property under the exercise of this right or purchase it outright at private sale,' for in any such sale the controlling factor must be their right under eminent domain. Thus I think it is clear that the expression, "invested with the right,” etc., etc., is intended as designating a class subject to the remaining terms of the clause, that is, these corporations shall make compensation for property taken, property injured, or property destroyed.

We have tried in the previous pages to present the growth of what may be called the public highway laws. Hitherto I have referred, in a general way only, however, to the various decisions under these laws, but I now propose to consider them in detail, to show what has been held an injury of that character for which compensation should be granted, and to compare these decisions with that in Pennsylvania Railroad Company v. Lippincott, 19 W. N. C. 513, wherein damages were not allowed, to see if these decisions are logical and consistent. Before doing so, however, it would be well to state that the words "direct," "immediate," "consequential," and "remote" are used in connection with this subject of damages under the new Constitution in a loose way, which robs them of their true meaning. It seems to me that the injury is direct, immediate, and consequential, without regard to property being taken or not—whether a legal injury will depend upon the common law or the statutes, or the Constitution; an injury is speculative, where it has no practical existence, but arises from a mere possibility-an imaginative fear and an injury is too remote, where it results from the company simply carrying on its business, as

1 Of course, one who has sold his property to a railroad has no further claim for damages to that property; but what I mean i3, no matter how they acquire their property, either under eminent domain or at private sale, they are liable for legal injury to other property.

loss of trade to stage-coach companies, or of custom to inns, by reason of the introduction of a railway. The true point in any given case is, the plaintiff must have suffered a special legal damage, and it is immaterial whether it is immediate or consequential.1 The injury may be said to be consequential in the sense that it is the result of the corporate action, but if it is one for which a legal remedy is provided, then it is a direct, immediate legal wrong; but if the injury is a mere speculative, possible one, if it does not exist, but is a mere phantom of the mind, or if too remote, it cannot be considered.

Again, the legal maxim, “damnum absque injuria,” is often misunderstood. Upon this point, Mr. Justice STEPHENS said:2 "The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal, and made without consideration, etc., etc. The maxim means only that legal wrong and legal remedy are correlative terms, and it would be more intelligibly and correctly stated, if it were reversed so as to stand, where there is no legal remedy, there is no legal wrong." This is the true meaning; damnum absque injuria has nothing to do with whether the injury is under the common law, a statute, or a constitutional provision, the injury may be saved from being damnum absque injuria as well by a statute or a constitutional provision as by the common law; legal wrong and legal remedy are correlative terms; thus the common law has provided no legal remedy for the breach of a promise not under seal and without consideration, hence there is no legal wrong; but if a statute or constitutional provision were passed establishing a legal remedy, then the breach of such a promise would be a legal wrong, that is, a damage where there is no legal remedy is "damnum absque injuria," but the moment a legal remedy is provided, it ceases to be damnum absque injuria and becomes a legal wrong for those within the legal remedy.