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 any thing 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 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."1 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 toll-bridge 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 defendant's 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 compen " Charles River Bridge v. Warren Bridge, 11 Pet. 420; Thorpe v. Rut. & Bur. Railw., 27 Vt. 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. Enfield Bridge Co. v. Hartford & New H. Railw., 17 Conn. 40, 454. But see 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. sation, 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 as 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. 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.1 16 14 Enfield Toll Bridge Co. v. Hartford & New Haven Railw., 17 Conn. 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. 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. 19, Parker, Ch. J., says: "Had the charter contained an express stipulation, 13. The fee of the streets of a city, where it has been acquired by the municipality under the right of eminent domain, * becomes 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 Hampshire Bridge, 7 N. Hamp. 35, 69, as containing the views of the court upon the subject. See also Brewster v. Hough, 10 N. Hamp. 138; Northern Railw. v. Concord & Claremont Railw., 7 Foster, 183, 195. The remarks of the late Professor Greenleaf, in his edition of Cruise, vol. 2, tit. 27, § 29, in note, p. 67, 68, upon this important subject, seem altogether worthy of commendation, and their insertion here will require no apology. "But in regard to the position, that the grant of the franchise of a ferry, bridge, turnpike, or railroad, is in its nature exclusive, so that the state cannot interfere with it by the creation of another similar franchise, tending materially to impair its value, it is with great deference submitted, that an important distinction should be observed between those powers of government which are essential attributes of sovereignty, indispensable to be always preserved in full vigor, such as the power to create revenues for public purposes, to provide for the common defence, to provide safe and convenient ways for the public necessity and convenience, and to take private property for public uses, and the like, and those powers which are not thus essential, such as the power to alienate the lands and other property of the state, and to make contracts of service, or of purchase and sale, or the like. Powers of the former class are essential to the constitution of society, as without them no political community can well exist; and necessity requires that they should continue unimpaired. They are intrusted to the legislature to be exercised, not to be bartered away; and it is indispensable that each legislature should assemble with the same measure of sovereign power which was held by its predecessors. Any act of the legislature, disabling itself from the future exercise of powers intrusted to it for the public good, must be void, being in effect a covenant to desert its paramount duty to the whole people. It is therefore deemed not competent for a legislature to covenant, that it will not under any circumstances open another avenue for the public travel within certain limits, or a certain term of time; such covenant being an alienation of sovereign powers and a violation of public duty. "But if, in order to provide suitable public ways, the state has availed itself of private capital, and secured its reimbursement by the grant of a charter of incorporation, with the right to take tolls for a limited period; and the public necessity should afterwards require the creation of another way, the opening of which would diminish the profits of the first, and so prevent the corporators from receiving the compensation intended to be secured to them; the state, thus sacrificing the private property of the corporation for public uses, would unquestionably be bound, as a sacred moral duty, to make full indemnity therefor in some other mode. "All those grants of franchises, therefore, which are in derogation of the essential attributes of sovereignty above mentioned, are to be construed strictly; . a public trust for general public purposes, and is under the unqualified control of the legislature, and any legislative appropriation of it to public use is not to be regarded as the appropriation of private property, so as to require compensation to the city or municipality to render it constitutional.17 The mere possibility and nothing is to be taken by implication. It was on this ground that the case of the Warren Bridge was decided. The legislature had granted a charter for the building of the Charles River Bridge, with the right of receiving tolls, and upwards of forty years afterwards, the public exigency requiring another and free avenue between the same places, an act was passed authorizing the erection of the Warren Bridge, a few rods from the former, the opening of which, as a natural consequence, reduced the tolls of the former to a very small amount. And this act was held to be not unconstitutional. Charles River Bridge v. Warren Bridge, 11 Peters, 420, cited, and its reasoning affirmed, in Butler v. Pennsylvania, 10 How. (U. S.) 402; Woodfolk v. Nashville, &c. Railw. Co., 1 Am. L. Reg. 520. [See also Matter of Hamilton Avenue, 14 Barb. Sup. Ct. 405; Illinois and Michigan Canal v. Chicago and R. I. Railw. Co., 14 Ill. 314; Rundle v. The Delaware and R. Canal Co., 14 How. (U. S.) 80; 13 ib. 71; 10 ib. 511, 541; Shorter v. Smith, 9 Ga. 517.] "The learned chancellor Kent, in a note appended to the case of 11 Pet. 420, deeply regrets that decision, concurring in the opinion of Mr. Justice Story, who dissented from it. But against the weight of the opinion of this great judge may be placed that of the late Chief Justice Marshall, the writer having been informed, as a fact within the personal knowledge of the informant, that the chief justice held the charter of Warren Bridge constitutional, upon the first argument of the cause; and that it was on account of this division of the bench that a second argument was ordered, which he did not live to hear. And it is worthy of notice, in this connection, that Mr. Justice Story, in delivering his dissenting opinion in the same term, in the case of Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Pet. 328, supports it by referring to a similar opinion held by the late chief justice, upon the former argument of that cause; while in the case of Warren Bridge no such support is invoked; doubtless for the reason that it could not be had. "The state being bound in good faith, as already stated, to make full and complete indemnity to individuals, whose private rights, in the exercise of its eminent domain, it has been obliged to sacrifice for the general good, the question is reduced to the mode of compensation; whether actual payment of the damages must precede or accompany the act of the state; or whether the individual ought to have at least a compulsory remedy at law; or whether the pledge of public faith is a sufficient security. On this subject various opinions are held. See 2 Kent, Comm. 338-440, and note (c) on p. 339, 5th ed.; 11 Pet. 471, 472, 642, 643; The People v. White, 4 Law Rep. (N. s.) 177." See also, to the same effect, the opinion of Mr. Justice Grier, of the United States Circuit Court, in Milnor v. The New J. Railw., 6 Law Reg. 6, 7; and Crosby v. Hanover, 20 Law Rep. 646; s. c. 36 N. H. 404. 17 People v. Kerr, 27 N. Y. 188. See also Philadelphia & Reading Railw. v. City of Philadelphia, 47 Penn. St. 325. of reverter to the original owner, or his heirs or grantees, is not regarded in such cases as any appreciable interest requiring to be compensated.17 § 71. 1. The inquiry in regard to what compensation shall be made, for land taken for public works, would, on the face of it, seem to be a very simple one. One would naturally suppose the value of the land taken or the damage sustained, to be the fair measure of compensation, and that there could be no serious difficulty in ascertaining the amount. 2. But in consequence of numerous ingenious speculations in regard to possible advantages and disadvantages arising from the public works, for which lands are taken, the whole subject has become, in this country especially, involved in more or less uncertainty. All the cases seem to concur in excluding mere general and public benefit, in which the owner of land shares in common with the rest of the inhabitants of the vicinity, from being taken into consideration in estimating compensation. 3. It has been said, the appraisers are not to go into conjectural and speculative estimations of consequential damages, but * con 1 Meacham v. Fitchburg Railw., 4 Cush. 291; Upton v. South Reading Branch Railw. Co., 8 Cush. 600; Albany N. Railw. Co. v. Lansing, 16 Barb. 68; Canandaigua & N. Railw. v. Payne, 16 Barb. 273; Greenville & C. Railw. Co. v. Partlow, 5 Rich. 428; White v. Charlotte & S. C. Railw. Co., 6 Rich. 47; A. & S. Railw. Co. v. Carpenter, 14 Illinois, 190; Symonds v. The City of Cincinnati, 14 Ohio, 147; Brown v. Cincinnati, id. 541; McIntire v. State, 5 |