Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/164

 § 173.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. Meanings of the term " prop- erty. " control. citizen. 1 If, however, private rights exist in property held by the public, compensation for them must be provided on a change of its use. * Thus, when land is conveyed to a city in trust for a public park, the legislature cannot authorize a railroad com- pany to build its road across it without providing compensation for the right of the original proprietors that the land should continue to be used according to the trust on which they con- veyed it. 2 § 172. But what is property ? and what constitutes a taking of it? "Property " means a thing owned, and, also, something entirely different, i. e., the rights of the owner respecting the thing owned, or the rights of a person respecting a thing in any way subject to his In this latter sense the term embraces rights in action as well as rights in possession. 3 § 173. To constitute a taking of property, it is not necessary that anv material thing be actually taken ; it is What con- J, ., ?,, * ,. ,, stitutesa enough if any right or the owner respecting the thing owned be impaired, so that he cannot apply the thing to all the uses of which it was formerly capable. 4 The legislature cannot authorize either a direct or a conse- quential taking or injury to property without compensation ; and if a corporation voluntarily, for its own benefit, so con- structs a work as necessarily to injure the property (i. e., the thing owned) of an individual, or deprive him of any right he may possess regarding a thing which he owns or has rights in, it will be bound to compensate him for his damages, even though the work be properly and lawfully constructed. 5 1 Pennsylvania R. R. Co. v. New York & L. B. R. R. Co., 23 N. J. Eq. 157. But see County of Blue Earth v. St. Paul, etc., R. R. Co., 28 Minn. 503. 2 City of Jacksonville v. Jackson- ville Ry. Co., 67 111. 540. 8 United States v. Reynes, 9 How. 127, 151. A common law right of action (not based on a penalty) is property. Dunlap v. Toledo, A. A., etc., R'y Co., 50 Mich. 470. See also Garvey v. Long Island Railroad, 159 N. Y. 323 ; Long Island Railroad Company v. Garvey, 159 N. Y. 334, 144 4 Pumpelly v. Green Bay Co., 13 Wall. 166; which held the backing of water so as to overflow the lands of individuals to be such a taking. Ace. Alton Horse R'y Co. v. Deitz, 50 111. 210; Little Rock, etc., R'y Co. v. Chapman, 39 Ark. 463; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. Compare O'Connor v. Fon du Lac, etc., R'y Co., 52 Wis. 526. 5 Evansville, etc., R. R. Co. v. Dick, 9 Ind. 433; Terre Haute Gas Co. v. Teel, 20 Ind. 131; Baltimore & Poto-