Opinion of the Court.

ply by reasonable labor and expense, she was bound to supply, or do without.

The position is supported neither by principle nor authority. These arrangements for ease and convenience, such as ways, light, and support, were provided and used by the owner in fee during unity of seizin. They were apparent and continuous. No person of ordinary faculties, dealing with the premises, could fail to observe them. They were necessary to the reasonable enjoyment of the premises, comprising the three stores, in question. It is true, as claimed by counsel, that, while the whole premises remained in the testator, these arrangements for ways, light, support, etc., did not, in any technical sense, amount to easements. Until a severance and the premises were held by separate owners no question of that character need arise. The foundation of the doctrine of easement in this and similar classes of cases is a disposition and arrangement of the premises as to the uses of the different parts, by him having the unity of seizin, and then a severance. It being a general principle in relation to grants that every grant of a thing naturally and necessarily imports a grant of it as it actually exists, unless the contrary is provided for, it would seem to follow, that each portion of the severed premises should pass subject to all the burdens and advantages imposed or conferred by the proper owner. Such, certainly, is the tendency of the cases cited by appellees' counsel. Coppy's Case, 11 Hen., 7, 25, p. 1,6; Nicholas v. Chamberlain, Cro. Jac. 121; Surry v. Pigott, Poph. 166; Robins v. Barnes, Hob. 131; Richards v. Rose, 9 Exeq. 218; Humphries v. Brogden, 64 E. C. L. 744; Pyer v. Carter, 1 Hurl. & N. 916; Eward v. Cockrane, 4 McQueen, 117; Glave v. Harding, 3 Hurl. & N. 944; Suffield v. Brown, 33 L. J. Ch. 249.

Some of the American cases cited are: New Ipswich Factory v. Bachelder, 3 New Hamp. 190; United States v. Appleton, 1 Sumner, 492; Eno v. Del. Veccheo, 4 Duer, 53; S. C. 6 Duer, 17; Webster v. Stevens, 5 Duer, 553; Hutemeier v. Albro, 18 New York, 48; Lampman v. Milks, 21 N. Y. 505; Seibert v. Levan, 8 Penn. Stat. R. 383; Kieffer v. Imhoff, 26

Opinion of the Court.

Ib. 438; McCarty v. Kitchenman, 47 Ib. 239; Phillips v. Phillips, 48 Ib. 178; Hadden v. Shoutz, 15 Ills. 581.

It has been deemed a needless task to present an analysis of these cases. These cases, and others, embody a current of authority, holding that an easement may be created by the disposition made of premises by the owner of the estate, and that, upon a severance of the title, the owners will take their respective shares as they existed in the hands of the former owner. Seymour v. Lewis, 2 Beaseley, 439. And we are of the opinion that it is not pushing the doctrine too far to apply it to a severance by judicial proceedings for assignment of dower. Kelgour v. Ascham, 5 Harris and J. 82, and Burwell v. Hobson, 12 Grat. 322, were cases where partition was made by commissioners, and the doctrine applied. There can exist no valid reason why easements should not pass as incident to an estate vested by legal proceedings, as in the cases of assignment of dower, and partition among heirs, as by a conveyance which makes no reference to appurtenan

ces.

"In corporeal hereditaments appendant or appurtenant to land as common of piscary and of pasture and right of way, pass by a conveyance of the land to which they are annexed, without even mention of the appurtenances." Litt. 121, b.

* *

Co.

"Some things," says Kent, "will pass by the conveyance of land as incidents, appendant or appurtenant thereto. This is the case with the right of way or other easement appurtenant to land and if a house or store be conveyed every thing passes which belongs to, and is in use for it, as an incident or appurtenance." 4 Kent's Com. 467. So in United States v. Appleton, supra, Story J., said: "It is observable that in this case reliance is placed on the language with all the ways,' etc. But this is wholly unnecessary; for whatever are properly incidents and appurtenances of the grant, will pass without the word 'appurtenances,' by mere operation of law." The 25th section of the statute concerning dower, (R. S. 1845, p. 202,) provides that the commissioners shall

Opinion of the Court.

make return, in writing, under their hands and seals to the court; "which, if approved by the said court, shall vest in her an estate in the lands and tenements so set off and allotted to her, for, and during her natural life; or if such estate shall have been set off and allotted to said widow by virtue of section 15, of this chapter, such estate shall be vested in her absolutely in fee simple, and of inheritance forever, subject to her absolute use, control, and disposition, as though her interest therein had been acquired by her when sole."

In this case the allotment was not made under the 15th section. But the return of the commissioners, in writing, under their hands and seals, with the approval of the court, vested in Mary A. King an estate in the lands and tenements so set off and allotted to her, for and during her natural life. Now, can it be successfully maintained, that in such a case, or one under the 15th section, the proceeding under the authority of the law, which has the effect in one case to vest the widow with a life estate, and in the other, with an absolute estate in fee simple, shall not have the effect to pass any of those things as incidents appendant and appurtenant to such lands and tenements, as would pass by a conveyance without mention of appurtenances? We think not. It seems to us to be a reasonable rule, consistent alike with justice and the analogies of the law, that where the severance of an estate consisting of two or more heritages occurs by reason of the death of the common owner, and the laws of descent and of dower, and an allotment of the latter is made under the statute, the dowress, in the absence of any restrictions in the proceedings, should be entitled to take the portion allotted to her as it existed at the time. If conveniences provided for such portion by the common owner were continuous and apparent, and necessary to the reasonable enjoyment of it, they will be presumed to have been taken into consideration by the commissioners, and regarded as a charge upon the other portion, in favor of that allotted, and as passing with the estate by operation of law.

We are of opinion that equity had jurisdiction, and that the

Syllabus.

case was properly disposed of by the court below, and its decree should be affirmed.

Decree affirmed.

THE PEOPLE ex rel. THE DECATUR AND STATE LINE RAIL

WAY COMPANY

V.

JOSIAH MCROBERTS, Judge, etc.

1. EMINENT DOMAIN. The 13th section of the Bill of Rights of the constitution of 1870, placing restrictions upon the exercise of the right of eminent domain, is not merely prospective in its effect, but operated in presenti, without legislative action.

2. SAME mode of fixing compensation. It provides that private property shall not be taken or damaged for public use without just compensation ; and that such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The requirement that the compensation shall be ascertained by a jury is affirmative in its character, and must imply an exclusion of any other mode of fixing the compensation. If there was no law under which a jury could be impaneled for the ascertainment of such compensation, and the legislature neglected to provide one, the constitution would not, for that reason, be in abeyance; but until such law was provided, the right of eminent domain could not be exercised.

3. The compensation for property damaged, as well as taken, must be ascertained by a jury. It can be neither damaged nor taken without compensation; and there can be no entrance upon or possession of land for public use until the compensation for the land damaged, as well as taken, has been paid.

4. SAME act of June 22, 1852. The first six sections of the Act of June 22, 1852, which provides for the filing of a petition, due notice to the persons interested, the appointment of commissioners, their inspection of the premises, and a report of the compensation assessed by them to be filed with the clerk of the Circuit Court, are in no sense in conflict with the constitution of 1870.

5. But the 7th section, which makes the decision of the commissioners conclusive upon the parties before they can have the benefit of a trial by jury, is inconsistent with the letter of the constitution. The assessment and report of the commissioners should conclude no owner of the land, and confer no right upon the corporation, unless the land owner assents, by an acceptance of the compensation, or in some other manner.

Syllabus. Statement of the case.

6. So section 9, which requires the execution of a bond upon taking an appeal from the decision of the commissioners to the Circuit Court, is clearly annulled by the new constitution.

7. And section 12, which permits the land to be entered upon during the pendency of the appeal, is manifestly inconsistent with the Bill of Rights.

8. But there is enough of the act which is not inconsistent with the constitution to enable private property to be taken for public use. The commissioners may act, and, after notice of the filing of their report, parties may bring the proceedings before the Circuit Court, as provided in sections 10 and 11 of the act. If satisfied with the report, and the compensation fixed, the latter may be accepted, and then an adjustment can be made by those who are competent to act. If the report is not satisfactory, then notice should be given to the opposite party, as provided in the sections referred to, so that a trial can be had in the Circuit Court.

9. But the party whose land is sought to be taken ought not to be compelled to pay costs if the assessment of the commissioners should be affirmed or not increased.

10. In this case a peremptory mandamus was awarded, requiring the Circuit Court to appoint the commissioners, as provided by the Act of 1852.

11. Mr. JUSTICE BREESE, dissenting, holds that the Act of 1852 is so far inconsistent with the constitution that private property can not be taken for public use under it, and that the peremptory writ should have been denied.

The Decatur and State Line Railway Company was incorporated under a special charter granted by the Legislature of the State of Illinois on the 24th day of March, A. D. 1869. By the terms of this charter the company was authorized to condemn lands for right of way "in the manner provided by the general laws of this State."

On the 30th day of September, A. D. 1871, the relator applied to the Hon. Josiah McRoberts, presiding judge of the Circuit Court of Will County, for the appointment of commissioners, under the Act of 1852, to appraise certain lands in said county required by relator for right of way.

The regularity of the petition and notices was admitted, but the judge refused to appoint the commissioners.

An alternative writ of mandamus was sued out of this court, to which return has been made by the judge, admitting the facts alleged in the writ, and assigning as a reason for refusing to appoint the commissioners, that the constitution of 1870 had,