ceeding, or by evidence, than the judgment of any other court of exclusive jurisdiction.23 And it was held, under the Pennsylvania statute,24 that after the award of land damages, and payment of the money, the company become the owners of the land, notwithstanding the pendency of a certiorari to remove the case into the Supreme Court.25 18. Where the Commonwealth of Pennsylvania, in the construction of her public works, acquired the fee-simple of land taken therefor, either by purchase or the right of eminent domain, and the land was devoted to the use of a highway, a cessation of that use does not revest the title in the former owner.26 SECTION VIII. Corporate Franchises condemned. 1. Road franchise may be taken. 2. Compensation must be made. 3. Railway franchise may be taken. 4. Rule defined. 5. Constitutional restrictions. 6. Not well defined. 7. Must be exclusive, in terms. 8. Legislative discretion. 9. Highways and railways compared. 10. Extent of eminent domain. 11. Exclusiveness of the grant, a subordinate 12. Legislature cannot create a franchise, § 70. 1. The franchise of a turnpike, or bridge, or other sim 23 Hamilton v. Annapolis & Elk Ridge Railw., 1 Md. Ch. 107. 24 Stat. of 1829, § 15. 25 Schuler v. Northern L. Railw., 3 Whar. 555; ante, § 65; post, § 73. 26 Haldeman v. Penn. R. Co., 50 Penn. St. 425. See also as to proceedings under Lateral Railroad Acts of Pennsylvania, Brown v. Peterson, 40 Penn. St. 373; Boyd v. Negley, Id. 377; Mayor, &c. of Pittsburgh v. Penn. R. Co., 48 Id. 355. It seems scarcely necessary to state that the final judgment of condemnation and the payment of the award vests in the company the absolute right to use the land embraced in the judgment for all their legitimate purposes. Dodge v. Burns, 6 Wisc. R. 514; Burns v. Milw. & Miss. Railw. Co., 9 Wisc. R. 450. And the acceptance of the value of the land by the land-owner, however the amount may have been ascertained, is an acquiescence in the taking, as much as if he had conveyed the land by deed. Ib. The party cannot accept the amount of an award of damages, and also appeal therefrom. Miss. & Mo. Railw. Co. v. Byington, 14 Iowa R. 572. ilar corporation may be taken for a free road, or for a railway, which, as we have said, is an improved highway.1 And it will make no difference that the franchise is situate partly within the limits of different states, as in the case of a bridge across a river which forms the divisional line between different states. But the proceedings in one state can only take what lies within its limits.2 3 2. But compensation, either for the entire franchise, which is the more common course, and ordinarily the only just mode of procedure, or for the special injury, must be made. But it is no objection to the validity of an act of the legislature, allowing a railway to carry its track across the land of a mill-dam company, incorporated by the legislature, that it contains no express provision for compensation to such mill-dam company. This is * implied, as in other cases, where land is taken. And the same implication has been held to extend to the case of a subsequent grant of a railway, which materially depreciated the use and value of a prior grant of a bridge. But it is the more commonly received opinion, that a subsequent grant, which only incidentally operates injuriously to an earlier one, does not require compensation to be made for such injury, unless expressly so provided.6 5 3. So also may the franchise of one railway be taken for the construction of another railway.7 4. In a late case the law upon this subject is thus stated, by Shaw, Ch. J.: "The court are of opinion, that it is competent 1 Armington v. Barnet, 15 Vt. R. 745; West River Bridge v. Dix, 6 How. S. C. 507; s. c. 16 Vt. R. 446; White River Turnpike Co. v. Vermont Central Railw., 21 Vt. R. 594; Boston Water Power Co. v. Boston & Worcester Railw., 23 Pick. 360; Central Bridge Corporation v. City of Lowell, 4 Gray, 474. 2 Crosby v. Hanover, 36 N. H. R. 404. 3 West River Bridge v. Dix, supra; Boston Water Power Co. v. Boston & Worcester Railw., supra. But see 11 Leigh, 42. 4 Boston Water Power Co. v. Boston & Worcester Railw., supra. Enfield Toll Bridge Co. v. The Hartford & New H. Railw., 17 Conn. R. 454; s. c. 17 Conn. R. 40. • White River Turnpike Co. v. Vermont Central Railw., 21 Vt. R. 594. Grier, J., in Richmond Railw. v. Louisa Railw., 13 How. 81, 82; Newcastle & R. Railw. v. P. & Ind. Railw., 3 Ind. 464. for the legislature, under the right of eminent domain, to grant authority to a railway corporation, to take a highway longitudinally in the construction of their road. The power of eminent domain is a high prerogative of sovereignty, founded upon public exigency, according to the maxim, Salus reipublicæ lex suprema est, to which all minor considerations must yield, and which can only be limited by such exigency. The grant of land for one public use must yield to that of another more urgent. 998 5. The great question of the inviolability of corporate franchises, which we shall have occason to discuss more at large hereafter,9 is, no doubt, to a certain extent, involved here. For, upon general principles of legislative authority, there could be no question that a corporation, which is the mere creature of the legislature, might be, at once and unconditionally, extinguished, by repeal of the charter. This is confessedly within the power of the legislative authority of the British parliament; and the legislative authority of the parliament of Great Britain is no more extensive than that of the legislatures of the American states, aside from restrictions contained in the constitutions of the United States, and of the several states.10 * 6. The only limitation upon this power over private coporations, in most of the states, perhaps in all, is found in that provision of the United States constitution which prohibits the legislatures of the several states from passing any law impairing the obligation of contracts. And the proper limits of this restriction, in regard to corporations, is not altogether well defined, in the different opinions of the several judges of the supreme national tribunal upon this subject; nor is there anything approaching unanimity among them. 7. But it may perhaps be regarded as settled, for the time at least, that where exclusive privileges are conferred upon private 8 • Springfield v. Conn. River Railw., 4 Cush. 63. See also upon the general subject, Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Railw., 4 Gill & Johns. 1; Forward v. Hampshire & Hampden Canal Co., 22 Pick. 462, where the prior company is held bound by acquiescence in the transfer of its franchises to another company. Irvin v. Turnpike Co., 2 Penn. R. 466; Rogers v. Bradshaw, 20 Johns. 735; Backus v. Lebanon, 11 N. H. R. 19. 9 Post, § 231. 10 Dartmouth College v. Woodward, 4 Wheat. 518. VOL. I. 17 * 131 corporations, by express words, or necessary implication, the grant is irrevocable and inviolable. But that the grant of any privilege or franchise carries no implied exclusion, of similar privileges and franchises being conferred upon other persons, natural or corporate.11 8. The legislature may in all instances determine, when and where the public necessities require additional facilities, of a similar or analogous character, where the former grant is not exclusive.11 9. And in some cases of exclusive and perpetual grants, for common highways or bridges, it has been held, that this did not preclude the legislature from granting railways and railway bridges within the limits of the former grant.12 In the last case referred to, the court held, that a perpetual grant of a tollbridge across the Cape Fear River, which in terms subjected all persons to a penalty for transporting persons or property across that river in any other manner, within six miles of the plaintiff's bridge, would not subject the defendants' company to the penalty for carrying persons and property across the river, upon their road, by means of a bridge erected within the six miles; that the grant was intended to be exclusive only, as to all modes of travel and transportation then known, but not to exclude all improvements thereon, in all future time.13 * 10. But the exclusive character of a corporate grant will not preclude the power to take the franchise, upon making compensation, under the right of eminent domain, the stipulation in the charter, that the grant shall be exclusive of all others, being subject to the same law of other property, whether in possession or action; all which is confessedly subject to the exercise of the right of eminent domain, by the sovereign.14 11 Charles River Bridge v. Warren Bridge, 11 Pet. 420; Thorpe v. Rut. & Bur. Railw., 27 Vt. R. 140; Boston & Lowell Railw. v. Salem & Lowell Railw., 2 Gray, 1; Mohawk Bridge Co. v. Utica & Sch. Railw., 6 Paige, 554; Hudson & Delaware Canal Co. v. New York & Erie Railw., 9 Paige, 323. 12 McRee v. Wilmington & Raleigh Railw., 2 Jones Law, 186. But see Enfield Bridge Co. v. Hartford & New H. Railw., 17 Conn. R. 40, 454. 13 But this distinction is certainly not attempted to be maintained, in the majority of the cases upon this subject, either in England or in this country. Post, § 231 et seq. 14 Enfield Toll Bridge Co. v. Hartford & New Haven Railw., 17 Conn. R. 11. It has sometimes been characterized, as a refinement or an invasion, to identify the covenant, in the charter of a private corporation, that the grant shall be exclusive of all others, with the charter itself, and thus subject it to the law of eminent domain. But it seems to us entirely a sound view, in all cases where the whole franchise of the corporation is proposed to be taken, and that the charge of refinement is rather to be laid at the door of such as attempt to raise a distinction between the exclusiveness of the grant and the grant itself, in order to preserve the inviolability of the former, which is the lesser and subordinate franchise, when the latter, and paramount, and vital franchise of a corporation is confessedly subject to the law of eminent domain.15 12. It is intimated in West River Bridge Company v. Dix, by Woodbury, J., that if the charter of the corporation contained an express stipulation against the exercise of the right of eminent domain upon the corporation, this might secure the franchise. But this is certainly not the prevailing opinion.16 40 and 454. This doctrine has been so repeatedly asserted in all the courts of the country, that it seems scarcely requisite to multiply references. And the right to take the franchise of another corporation, by parity of reason, carries the right to impair another franchise to any extent, upon making indemnity. Matter of Kerr. 42 Barb. 119. 15 West River Bridge Co. v. Dix, 16 Vt. R. 446; s. c. 6 Howard (U. S.), 507, 539, Opinion of Woodbury, J.: who argues that it is difficult to comprehend why the exclusiveness of the grant to a private corporation should, upon principle, be any more inviolable by legislative authority than any other part of the corporate franchise. It is only as property that it is valuable, or that it is protected at all. And all property is, in cases of proper necessity, subject to the law of eminent domain. It is very questionable whether this law should be held to extend to those portions of public works which may always be obtained in the market, and where, by consequence, there is no practical necessity. 16 In regard to the right of eminent domain, it seems now to be conceded, that no legislature, upon any consideration or pretence whatever, can deprive a future legislature of its exercise, in the absolute annihilation of corporate franchises, upon just and adequate compensation. In Backus v. Lebanon, 11 N. Hamp. R. 19, Parker, Ch. J., says: "Had the charter contained an express stipulation, that the property of the corporation should never be taken, in the exercise of the power of eminent domain, the question would at once have arisen, whether it was competent for any legislature to make a contract of that character; whether any legislature has authority, by contract, to lay restrictions upon this power." And reference is here made to Piscataqua Bridge v. New |