Sec. 255. As to what is a taking-Damage to leasehold estate. Construing and applying Ga. Const. art. 1, § 3, which prohibits the taking and damaging of private property for public purposes without just and adequate compensation being first made, it is held that where according to the plan of a proposed public improvement, its completion must inevitably result in the total exclusion of a leaseholder from his premises, or render the same so inconvenient as to render it valueless to him for the purposes for which it is leased, he may abandon his lease, and vacate the premises, whenever, in the execution of the projected plan of construction, the work has so far progressed as virtually to destroy his lease, and thus prevent the enjoyment by him of his estate, and thereupon may sue for and recover from the city the diminution, during the remainder of his unexpired term, in the market value of the premises for rent, caused by the construction of such improvement. Pause v. City of Atlanta, 98 Ga. 92 (26 S. E. Rep. 489; 58 Am.St. Rep. 290). The court Say: "The word damage' embraces more than the mere physical taking of property, and is not restricted to cases where the owner is entitled to recover as for a tort at common Reardon v. City and County of San Francisco, 66 Cal. 492 (6 Pac. Rep. 317; 56 Am. Rep. 109). It seems that this language is intended to cover all cases in which, even in the proper prosecution of a public work or purpose, the right of a person in property, or the property itself, is in a pecuniary way injuriously affected. Railway Co. v. Fuller, 63 Tex. 467; Gottschalk v. Railroad Co., 14 Neb. 550 (16 N. W. Rep. 475; 17 N. W. Rep. 120); Railroad Co. V. Williamson, 45 Ark. 429; City of Atlanta v. Green, 67 Ga. 386; City of Denver v. Bayer, 7 Colo. 113 (2 Pac. Rep. 6); Railroad Co. v. Nestor, 10 Colo. 403 (15 Pac. Rep. 714); Mason v. Bridge Co., 17 W. Va. 396. The damages, therefore, that an individual may recover for injuries to his property need not necessarily be caused by acts amounting to a trespass, or by an actual physical invasion of his real estate, but if his property be depreciated in value by his being deprived of some right of user or enjoyment growing out of and appurtenant to his estate as the direct consequence of the construction and use of

any public improvement, his right of action is complete, and he may recover to the extent of the injury sustained. Railroad Co. v. Ayres, 106 Ill. 511; City of East St. Louis v. O'Flynn, 19 Ill. App. 66."

Sec. 256. Additional servitude. Laying water pipes in a street does not constitute an additional servitude, Bishop v. North Adams Fire Dist., 167 Mass. 364 (45 N. E. Rep. 925); nor does the construction of an elevated railroad, Doane v. Lake St. El. R. Co., 165 Ill. 510 (46 N. E. Rep. 520; 56 Am. St. Rep. 235; 36 L. R. A. 97); or the conversion of a single track horse car street railway into a double track electric street railway, made under legislative and municipal authority. Reid v. Norfolk City R. Co., 94 Va. 117 (26 S. E. Rep. 428; 36 L. R. A. 274). An electric street railway laid at grade is not an additional servitude. Placke v. Union Depot R. Co., 140 Mo. 634 (41 S. W. Rep. 915). Citing Dean v. Railway Co., 93 Mich. 330 (53 N. W. Rep. 396); Koch v Railway Co., 75 Md. 222 (23 Atl. Rep. 463; 15 L. R. A. 377); Lockhart v. Railway Co., 139 Pa. St. 419 (21 Atl. Rep. 26); Chicago, B. & Q. R. Co. v. West Chicago St. Ry. Co., 156 Ill. 255 (40 N. E. Rep. 1008; 29 L. R. A. 485); Taggart v. Railway Co., 16 R. I. 668 (19 Atl. Rep. 326; 7 L. R. A. 205). Constructing an electric street railway in a highway does not subject it to a new servitude, Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146 (36 Atl. Rep. 1107); but an electric railway in a village street, which forms part of a connecting line between cities for transporting merchandise, personal baggage, mail and express matter, as well as passengers, constitutes an additional servitude. Chicago & N. W. Ry. Co. v. Milwaukee, R. & K. Elec. Ry. Co., 95 Wis. 561 (70 N. W. Rep. 678; 60 Am. St. Rep. 136; 37 L. R. A. 856). The use of a highway for the construction of a toll road thereon, does not constitute an additional burden. State v. Hannibal & R. C. Gravel-Road Co., 138 Mo. 332 (39 S. W. Rep. 910; 36 L. R. A. 457). Citing, Carter v. Clark, 89 Ind. 238; Road Co. v. Cane, 2 O. St. 419; Turnpike Co. v. Bishop, 11 Vt. 198; Callison v. Hedrick, 15 Grat. 244; Douglas v. Road Co., 22 Md. 219 (85 Am. Dec. 647); Wright v. Carter, 27 N. J. L. 76; Walker v. Caywood, 31 N. Y. 51.

In Kentucky it is held that the construction of a railroad in a city street does not constitute an additional burden. Dulaney v. Louisville & N. R. Co., 100 Ky. 628 (38 S. W. Rep. 1050). The erection of a telephone line upon a right of way condemned for a water pipe line is an additional servitude. City of Spokane v. Colby, 16 Wash. 610 (48 Pac. Rep. 248).

Sec. 257. Compensation for property taken-Bond for damages as a substitute. A county which takes the lands of a citizen for public purposes without proper condemnation proceedings, is liable for damages resulting on account thereof. County of Douglas v. Taylor, 50 Neb. 535 (70 N. W. Rep. 27). A statute (Tenn. Acts 1883, ch. 152), which authorizes the use of all streams by the public for floating logs on their giving security to protect the owners of mill dams from damage, is unconstitutional as to nonnavigable streams, as it authorizes the taking of private property without compensation. Allison v. Davidson, W. Rep. 905). The court say: "If a stream, however, is in fact nonnavigable, it is not a public way; and the writer is of the opinion that it is not competent for the legislature, by any enactment, to make it one, and thus to take private property for public use without compensation. The City of Grand Rapids v. Powers, 89 Mich. 94 (50 N. W. Rep. 661; 14 L. R. A. 498); People v. Elk River Mill & Lumber Co., 107 Cal. 221 (40 Pac. Rep. 531; 48 Am. St. Rep. 125); Morgan v. King, 35 N. Y. 453 (91 Am. Dec. 58); Irwin v. Brown,

Tenn. (39 S.

Tenn. (12 S. W. Rep. 340). And the requirement of a bond for any damages that may be done to mill owners rightfully having dams across streams by the floatage of logs is no compliance with the constitution, prohibiting the taking of private property for the use of the public except upon the payment of just compensation. The constitutional provision is too important, as well as too plain in its purpose, to be overturned and practically abolished by the giving of bond to be responsible at the end of a lawsuit for damages for wrongfully or negligently depriving the citizen of the full beneficial use of his property. The constitution forbids the taking of private property except for public use, and that upon the payment of a fair and just compensation for it. It does not

authorize the 'taking of the use' of property for occasional periods when any other citizen desires to use it, upon his obligating himself to pay such damages or injury as the courts may award or adjudge that his use has done to it. No one, we presume, would contend that it was competent for the legislature to enact a law authorizing anybody who wanted to ride and haul his products across the farm of the citizen by paying or obligating himself to pay the damage caused thereby. The right to the beds of nonnavigable streams, and, to the uninterrupted flow of their waters, are as much property rights of the riparian proprietors as is the ownership of a farm; and, if the latter is protected by the constitution, the former are, and to the same extent. To hold otherwise, it seems to us, would be to permit the erection of a legislative battering ram, to batter down and demolish utterly one of the most sacred bulwarks of the constitution, designed to protect rights of private property."

Sec. 258. Proceedings to condemn land-Complaint or petition. Under Conn. Gen. Stat. § 8464, in proceedings to condemn land by a railroad, the averment that "it cannot obtain it by agreement with the parties interested therein " is a necessary one, and must be proved before the appraisers can be appointed. New York, N. H. & H. R. Co. v. Long, 69 Conn. 424 (37 Atl. Rep. 1070). A petition which alleges inability to agree with the owners of the premises is sufficient without alleging a failure to agree with one holding a vendor's lien on the property. Thomas v. St. Louis, B. & S. Ry. Co., 164 Ill. 634 (46 N. E. Rep. 8). If a petition for condemnation misstates the facts, so that one statute would be applicable to the facts as stated and a different statute to the real facts, it is erroneous. Glazier v. New Jersey & N. Y. R. Co., 60 N. J. L. 353 (37 Atl. Rep. 614). It is not necessary, in a petition to condemn land for railway purposes to specify the particular public use to which each tract of land is to be put. A general allegation of the purposes for which it is sought to acquire the land described in the petition is sufficient, for the landowner's damages are to be assessed upon the hypothesis that the land to be acquired is liable to be appro. priated for any or all of the public uses stated in the petition

at any time when the railway company deems such use necessary or expedient. Fletcher v. Chicago, St. P. M. & O. Ry Co., 67 Minn. 339 (69 N. W. Rep. 1085). One whose land is sufficiently described by the petition, cannot object to its sufficiency on the ground that the lands of others are not separately described and that his interest in the land sought to be condemned, is not stated. City of Pontiac v. Lull, 111 Mich. 509 (69 N. W. Rep. 1110). Cal. Pol. Code, § 2090, applied -sufficiency of complaint in proceedings to condemn land for a private way. Sonoma Co. v. Crozier, 118 Cal. 680 (50 Pac. Rep. 845). Ill. Rev. Stat. ch. 24, art. 9, § 5, construed and applied-sufficiency of petition where the city seeks to condemn the land of a railroad for a street. Chicago & A. R. Co. v. City of Pontiac, 169 Ill. 155 (48 N. E. Rep. 485).

Sec.

ments.

259. Proceedings to condemn land-AmendThe petitioner may amend his petition with the leave of the court, so as to strike therefrom land, as to which he does not wish to continue the proceedings, the owner of such land not objecting. Fletcher v. Chicago, St. P. M. & O. Ry. Co., 67 Minn. 339 (69 N. W. Rep. 1085). Applying N. Dak. Rev. Codes, § 5962, which requires that the complaint must contain the name of the corporation, association, commission, or person in charge of the public use for which the property is sought, it is held that an action to condemn property for railroad purposes should be brought in the name of the company, despite the fact that its property is in the hands of receivers appointed in foreclosure proceedings, who are operating the road; that such action having been brought in the name of the receivers it was not error for the court, after the verdict fixing the compensation to be paid for the taking of the property condemned, to amend the pleadings and all proceedings by inserting the name of the corporation on its own motion; and that as the action was brought by and in the names of the receivers on behalf of the corporation it was not necessary to dismiss the action and institute a new suit as would be necessary where the sole plaintiff, who sues in his own behalf, has no interest in the cause of action, the right to sue being in another. Bigelow v. Draper, 6 N. Dak. 152 (69 N. W. Rep. 570). Citing, State v. Baker, 38 Wis. 71;