eminent domain and where it has delegated its power to a municipal or public corporation, courts will not interfere with their exercise of it unless there has been an abuse of the power. Chicago & A. R. Co. v. City of Pontiac, 169 Ill. 155 (48 N. E. Rep. 485). The primary power to exercise the right of eminent domain rests with the legislature and when this power is exercised by a corporation upon which the legislature has conferred the right to use it, all the steps required by the legislature must be complied with. When this is done the decision of the corporation as to the extent, necessity and propriety of the taking, is as conclusive as when made by the legislature itself. New York N. H. & H. R. Co. v. Long, 69 Conn. 424 (37 Atl. Rep. 1070). Citing, Town of Harwinton v. Catlin, 19 Conn. 520; Cockcroft's Appeal, 60 Conn. 161 (22 Atl. Rep. 482); People v. Smith, 21 N. Y. 595; In re Fowler, 53 N. Y. 60; Ash v. Cummings, 50 N. H. 591; In re Mt. Washington Road Co., 35 N. H. 134; National Docks Ry. Co. v. Central R. Co. 32 N. J. Eq. 755; Cooley, Const. Lim. 660. Ala. Code, §§ 1391-1394; 1436, 1437; Const. art. 1, § 24; art. 14, § 7, construed and applied-condemnation of land for public road-constitutionality of statute. Commissioners' Court v. Street, 116 Ala. 28 (22 So. Rep. 629). A statute (Del. Act, April 29, 1891) which does not provide for a hearing by a property owner before an assessment for municipal improvements is levied, is not unconstitutional on the ground of a taking of property without due process of law. English v. City of Wilmington, 2 Marv. (Del.) 63 (37 Atl Rep. 158). Mass. Stat. 1895, ch. 442, §§ 1, 3, construed and applied-appropriation of the island of Muskeget by the town of Nantucket. Whitman v. Inhabitants of Nantucket, 169 Mass. 147 (47 N. E. Rep. 611). Mass. Stat. 1895, ch. 488, construed and applied-condemnation of land for water-works-constitutionality of statute and powers which may be exercised thereunder. Burnett v. Commonwealth, 169 Mass. 417 (48 N. E. Rep. 758).

Under Mont.

Sec. 251. As to what is a public use. Const., art. 3, § 15, the use of water to irrigate the land of a particular individual or to work a mine thereon, is a public use. Ellinghouse v. Taylor, 19 Mont. 462 (48 Pac. Rep.

Ariz.

(26 Pac. Rep.

757). Citing, Oury v. Goodwin, 376); Butte A. & P. Ry. Co. v. Montana U. Ry. Co., 16 Mont. 504 (41 Pac. Rep. 232; 50 Am. St. Rep. 508; 31 L. R. A. 298). Applying N. Dak. Rev. Codes, § 2947, subd. 3, which authorizes the appropriation of land when it is necessary for the maintenance and operation of a railroad, it is held that a legal necessity for the taking of private property for railroad purposes exists when it appears that such property is needed by the corporation to enable it to augment the safety of its road bed, at points where the road bed is unsafe at a particular time of year. Bigelow v. Draper, 6 N. Dak. 152 (69 N. W. Rep. 570). An order of the state board of transportation, under the provisions of the act of March 31, 1887, entitled "An act to regulate railroads and prevent unjust discrimination," etc., which requires a railroad company to surrender a portion of its right of way, for an elevator site, to a person or corporation engaged in the buying and shipping of grain, contemplates the taking of property for mere private use, within the prohibition of the United States constitution, and is accordingly, without authority and void. Chicago, B. & 2. R. Co. v. State, 50 Neb. 399 (69 N. W. Rep. 955). Following State v. Missouri Pac. Ry. Co., 164 U. S. 403 (17 Sup. Ct. Rep. 130), reversing same case, 29 Neb. 550 (45 N. W. Rep. 785). See Ballards' Law of Real Property, Vol. V S$ 221-226. Minn. Gen. Stat. 1894, § 2750, authorizing a, railroad corporation to alter its railway line, gives it power to condemn land for a new line. Fletcher v. Chicago, St. P. M. & O. Ry. Co., 67 Minn. 339 (69 N. W. Rep. 1085).

Sec. 252. What property may be taken-Property already devoted to a public use. The right of a riparian owner to have a natural stream flow over his land is such property as may be condemned for railroad purposes. Bigelow v. Draper, 6 N. Dak. 152 (69 N. W. Rep. 570). The real estate of a married woman may be taken for a public use under the right of eminent domain, the statutory condemnation proceedings being a substitute for a conveyance from her with the formalities required by statute. City of San Antonio v. Grandjean, 91 Tex. 430 (41 S. W. Rep. 477). A recent statute of Indiana prohibits the location or construction

of "

a railroad on any real estate held, used or occupied as a cemetery." Laws 1899, p. 15. Mass. Stat. 1889, ch. 144, construed and applied-appropriation by fire district—extent to which land may be taken for making repairs. Bishop v. North Adams Fire Dist., 167 Mass. 364 (45 N. E. Rep. 925). Property held for a public use cannot be appropriated for another public use without express legislative authority. Kansas City S. & G. Ry. Co. v. Vicksburg S. & P. R. Co., 49 La. 29 (21 So. Rep. 144).

Construing and applying Hill's Ann. Or. Laws, §§ 3255, 3256, 4061, it is held that a county cannot locate a road over land previously appropriated for a toll road without first paying the toll company the cost of constructing and repairing its road, after deducting the profits received by said company. Little Nestucca Toll-Road Co. v. Tillamook Co., 31 Or. 1 (48 Pac. Rep. 465; 65 Am. St. Rep. 802). The court say: "The appropriation of land to a public use is an exercise of the sovereign power, which the state may delegate to a municipal or private corporation; and land already appropriated and used by its trustee under the authority delegated may be taken by legislative enactment for other public uses, in which case it is always presumed that the new use is of more importance and greater value to the public than the original appropriation. Mills Em. Dom. § 45; Railroad Co. v. North, 103 Ind. 486 (3 N. E. Rep. 144). It is a rule, however, of universal application, that the subsequent delegation of power to appropriate land which once has been appropriated must be in express terms, or must arise from necessary implication. Boston Water Power Co. v. Boston & W. R. Corp., 23 Pick. 360; Proprietors of Locks & Canals on Merrimac River v. City of Lowell, 7 Gray 223; Boston & M. R. R. v. Lowell & L. R. Co., 124 Mass. 368; Providence & W. R. Co. v. Norwich & W. R. Co., 138 Mass. 277; Hickok v. Hine, 23 O. St. 523 (13 Am. Rep. 255); Mayor, etc., of Jersey City v. Montclair Ry. Co., 35 N. J. L. 328; New Jersey S. R. Co. v. Long Branch Com'rs, 39 N. J. L. 28; In re City of Buffalo, 68 N. Y., 167. The right of the state to appropriate to a new use property which has already been subjected by a municipal or private corporation to a public burden must rest upon the authority of the state to change at pleasure its trustees and the object of its

trust; but when the trustee has an interest by reason of money expended in the purchase of the right of way, or in improvements made upon the property, under the power delegated, the state must provide a method of compensation for such interest before the property affected thereby can be appropriated to a new use."

property-Statutes

Sec. 253. Taking of property already devoted to public use-Railroad construed. Where a railroad company has held property for many years without using it in connection with its business and it does. not appear that it will be needed for such use in the future, such property may be appropriated for the use of another railroad company. Kansas City & S. G. Ry. Co. v. Vicksburg S. & P. R. Co., 49 La. 29 (21 So. Rep. 144). In order to authorize a municipal corporation to take for the purpose of opening or extending streets, railroad property already devoted to a public use, the power must be conferred in express terms or by necessary implication. City Council v. Georgia R. & Bank Co., 98 Ga. 161 (26 S. E. Rep. 499). The court say: "It has accordingly been held that 'under a general authority to lay out highways, a part of the right of way of a railroad cannot be taken longitudinally' (see New Jersey Southern R. Co. v. Long Island Branch Com'rs, 39 N. J. L. 28; City of Bridgeport v. New York & N. H. R. Co., 36 Conn. 255; 4 Am. Rep. 63); 'nor can the way be laid through depot grounds' (see St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359 (15 N. W. Rep. 684); Milwaukee & St. P. R. Co. v. City of Faribault, 23 Minn. 167; Railroad Co. v. Williamson, 91 N. Y. 552); nor through lands occupied by a railroad company for shops' (Mayor, etc. of Atlanta v. Central Railroad & Banking Co., 53 Ga. 120)."

Under Ind. Rev. Stat. 1894, § 3623, a city council is. given express power to condemn the right of way or other lands of a railroad company for street or alley purposes whether such lands be occupied and used or not. City of Terre Haute v. Evansville & T. H. R. Co., 149 Ind. 174 (46 N. E. Rep. 77; 37 L. R. A. 189). Under Ia. Code, §§ 464–470, 1270, an incorporated town has authority to condemn a strip across a previously acquired railroad right of way for the purpose of

extending and connecting its streets. City of Albia v. Chicago, B. & 2. R. Co., 102 Ia. 624 (71 N. W. Rep. 541). Applying La. Laws 1880, Act No. 124, and acts of congress 1866 and 1872, it is held that the right to construct a telegraph line over a railroad's right of way may be acquired by condemnation. Postal Tel. C. Co. v. Morgan's Louisiana & T. R. R. & S. S. Co., 49 La. 58 (21 So. Rep. 183). For further construction of act of congress of July 24, 1866, and La. Laws 1880, Act No. 124, and discussion of the measure of damages, see Postal Tel. Cable Co. v. Louisiana Western R. Co., 49 La. 1270 (22 So. Rep. 219).

Sec. 254. As to what is a taking. The laying out of a highway across a railroad is a taking of the company's prop. erty for public use and entitles it to compensation therefor. Paterson, N. & N. Y. R. Co. v. City of Newark, 61 N. J. L. 80 (38 Atl. Rep. 689). Construing and applying Cal. Const. art. 1, § 14, providing that "private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner," it is held that the legislature cannot authorize the construction of drains, for the benefit of certain lands, to collect surface water and convey and discharge it where it will injure the land of another not compensated therefor. Cal. Stat. 1895, p. 248, applied. Rudel v. Los Angeles Co., 118 Cal. 281 (50 Pac Rep. 400). Assessments for the expense of a drain, is not taking private property under the power of eminent domain, and a statute (Mich. Pub. Acts 1895, No. 217), is not unconstitutional because it makes no provision for notice and hearing on the question as to the public necessity of a drain to persons liable to assessment for the benefits but whose lands are not traversed by the ditch. Roberts v. Smith, 115 Mich. 5 (72 N. W. Rep. 1091). Applying Ga. Laws 1874, p. 131, § 60; Laws 1890–91, p. 446, it is held that the impairment of an abutting owner's right of ingress to and egress from her property, by the construction of a bridge by the city of Atlanta in one of its streets is not a taking of property within the meaning of the constitution. Hurt v. City of Atlanta, 100 Ga. 274 (28 S. E. Rep, 65).