U.S. Supreme Court Chicago, B. & Q. R. Co. v.
Chicago, 166
U.S. 226 (1897) Chicago, Burlington & Quincy
Railroad Co. v. Chicago No. 129 Argued November 6, 9,
1896 Decided March 1, 1897 166
U.S. 226 ERROR TO THE SUPREME COURT OF THE
STATE OF ILLINOIS This court has authority to reexamine
the final judgment of the highest court of a State, rendered in a
proceeding to condemn private property for public use, in which,
after verdict, a defendant assigned as a ground for new trial that
the statute under which the case was instituted and the proceedings
under it were in violation of the clause of the Fourteenth
Amendment forbidding a State to deprive any person of property
without due process of law, and which ground of objection was
repeated in the highest court of the State, provided the judgment
of the court, by its necessary operation, was adverse to the claim
of Federal right and could not rest upon any independent ground of
local law. The prohibitions of the Fourteenth
Amendment refer to all the instrumentalities of the State, to its
legislative, executive aud judicial authorities, and, therefore,
whoever, by virtue of public position under a state government
deprives another of any right protected by that amendment against
deprivation by the State violates the constitutional inhibition;
and, as he acts in the name and for the State, and is clothed with
the State's power, his act is that of the State. The contention that the defendant has
been deprived of property without due process of law is not
entirely met by the suggestion that he had due notice of the
proceedings for condemnation, appeared, and was admitted to make
defence. The judicial authorities of a State may keep within the
letter of the statute prescribing forms of procedure in the courts
and give the parties interested the fullest opportunity to be
heard, and yet it might be that its action would be inconsistent
with that amendment. A judgment of a state court, even if
authorized by statute, whereby private property is taken for public
use, without compensation made or secured to the owner, is, upon
principle and authority, wanting in the due process of law required
by the Fourteenth Amendment of the Constitution of the United
States. The clause of the Seventh Amendment of
the Constitution of the United States declaring that "no fact tried
by a jury shall be otherwise reexamined in any court of the United
States than according to the rules of the common law" applies to
cases coming to this Court from the highest courts of the States in
which facts have been found by a jury. In a proceeding in a state court for
the condemnation of private property for public use, the court
having jurisdiction of the subject matter and of the parties, the
judgment ought not to be held in violation of the due Page
166 U. S. 227 process of law enjoined by the
Fourteenth Amendment unless some rule of law was prescribed for the
jury that was in absolute disregard of the right to just
compensation. In a proceeding in a state court in
Illinois to ascertain the compensation due to a railroad company
arising from the opening of a street across its tracks -- the land
as such not being taken, and the railroad not being prevented from
using it for its ordinary railroad purposes, and being interfered
with only so far as the right to its exclusive enjoyment for
purposes of railroad tracks was diminished in value by subjecting
the land within the crossing to public use as a street -- the
measure of compensation is the amount of decrease in the value of
its use for railroad purposes caused by its use for purposes of a
street, the use for the purposes of a street being exercised
jointly with the company for railroad purposes. While the general rule is that
compensation is to be estimated by reference to the uses for which
the property is suitable, having regard to the existing business
and wants of the community, or such as may be reasonably expected
in the immediate future, mere possible or imaginary uses, or the
speculative schemes of its proprietor, are to be
excluded. The railroad, having laid its tracks
within the limits of the city, must be deemed to have done so
subject to the condition -- not, it is true, expressed, but
necessarily implied -- that new streets of the city might be opened
and extended from time to time across its tracks as the public
convenience required, and under such restrictions as might be
prescribed by statute. When a city seeks by condemnation
proceedings to open a street across the tracks of a railroad within
its corporate limits, it is not bound to obtain and pay for the fee
in the land over which the street is opened, leaving untouched the
right of the company to cross the street with its tracks, nor is it
bound to pay the expenses that will be incurred by the railroad
company in the way of constructing gates, placing flagmen, etc.,
caused by the opening of the street across its tracks. All property, whether owned by private
persons or by corporations, is held subject to the power of the
State to regulate its use in such manner as not to unnecessarily
endanger the lives and the personal safety of the people. The
requirement that compensation be made for private property taken
for public use imposes no restriction upon the inherent power of
the State by reasonable regulations to protect the lives and secure
the safety of the people. The expenses that will be incurred by
the railroad company in erecting gates, planking the crossing, and
maintaining flagmen, in order that its road may be safely operated
-- if all that should be required -- necessarily result from the
maintenance of a public highway, under legislative sanction, and
must be deemed to have been taken by the company into account when
it accepted the privileges and franchises granted by the State.
Such expenses must be regarded as incidental to the exercise of the
police powers of the State, and must be borne by the
company. Page
166 U. S. 228 The case is stated in the
opinion. MR. JUSTICE HARLAN delivered the
opinion of the court. The questions presented on this writ of
error relate to the jurisdiction of this court to reexamine the
final judgment of the Supreme Court of Illinois, and to certain
rulings of the state court, which, it is alleged, were in disregard
of that part of the Fourteenth Amendment declaring that no State
shall deprive any person of his property without due process of
law, or deny the equal protection of the laws to any person within
its jurisdiction. The Constitution of Illinois provides
that "no person shall be deprived of life, liberty or property,
without due process of law." Article 2, § 2. It also
provides: "Private property shall not be taken or
damaged for public use without just compensation. Such
compensation, when not made by the State, shall be ascertained by a
jury, as shall be prescribed by law. The fee of land taken for
railroad tracks, without consent of the owners thereof, shall
remain in such owners, subject to the use for which it is
taken." Article 2, § 13. By the fifth article of the general
statute of Illinois, approved April 10, 1872, and relating to the
incorporation of cities and villages, it was provided
that "[t]he city council shall have power,
by condemnation or otherwise, to extend any street, alley or
highway over or across, or to construct any sewer under or through
any railroad track, right of way or land of any railroad company
(within the corporate limits); but where no compensation is made to
such railroad company, the city shall restore such railroad track,
right of way or land Page
166 U. S. 229 to its former state, or in a sufficient
manner not to have impaired its usefulness." 1 Starr & Curtis' Anno. Stat. pp.
452, 472, art. V, § 89. The ninth article of the same statute
declared that, when the corporate authorities of a city or village
provided by ordinance for the making of any local improvement
authorized to be made, the making of which would require that
private property be taken or damaged for public use, the city or
village should file in its name a petition in some court of record
of the county praying "that the just compensation to be made for
private property to be taken or damaged" for the improvement or
purpose specified in the ordinance be ascertained by a
jury. That statute further
provided: "§ 14. Any final judgment or judgments,
rendered by said court, upon any finding or findings of any jury or
juries, shall be a lawful and sufficient condemnation of the land
or property to be taken upon the payment of the amount of such
finding as hereinafter provided. It shall be final and conclusive
as to the damages caused by such improvement, unless such judgment
or judgments shall be appealed from; but no appeal or writ of error
upon the same shall delay proceedings under said ordinance, if such
city or village shall deposit, as directed by the court, the amount
of the judgment and costs, and shall file a bond in the court in
which such judgment was rendered, in a sum to be fixed, and with
security to be approved by the judge of said court, which shall
secure the payment of any future compensation which may at any time
be finally awarded to such party so appealing or suing out such
writ of error, and his or her costs." "§ 15. The court, upon proof that said
just compensation so found by the jury has been paid to the person
entitled thereto, or has been deposited as directed by the court
(and bond given, in case of any appeal or writ of error), shall
enter an order that the city or village shall have the right, at
any time thereafter, to take possession of or damage the property,
in respect to which such compensation shall have been so paid or
deposited, as aforesaid." 1 Starr & Curtis' Anno.Stat. p. 487 et seq. Page
166 U. S. 230 All of these provisions became a part
of the charter of the City of Chicago in 1875. By an ordinance of the City Council of
Chicago approved October 9, 1880, it was ordained that Rockwell
street, in that city, be opened and widened from West Eighteenth
street to West Nineteenth street by condemning therefor, in
accordance with the above act of April 10, 1872, certain parcels of
land owned by individuals, and also certain parts of the right of
way in that city of the Chicago, Burlington & Quincy Railroad
Company, a corporation of Illinois. In execution of that ordinance, a
petition was filed by the city, November 12, 1890, in the Circuit
Court of Cook County, Illinois, for the condemnation of the lots,
pieces, or parcels of land and property proposed to be taken or
damaged for the proposed improvement, and praying that the just
compensation required for private property taken or damaged be
ascertained by a jury. The parties interested in the property
described in the petition, including the Chicago, Burlington &
Quincy Railroad Company, were admitted as defendants in the
proceeding. In their verdict, the jury fixed the
just compensation to be paid to the respective individual owners of
the lots, pieces, and parcels of land and property sought to be
taken or damaged by the proposed improvements, and fixed one dollar
as just compensation to the railroad company in respect of those
parts of its right of way described in the city's petition as
necessary to be used for the purposes of the proposed
street. Thereupon, the railroad company moved
for a new trial. T he motion was overruled, and a final judgment
was rendered in execution of the award by the jury. That judgment
was affirmed by the Supreme Court of the State. The motion by the city to dismiss the
writ of error for want of jurisdiction will be first considered. It
the right now asserted under the Constitution of the United States
was specifically set up or claimed by the defendant in the state
court, the motion to dismiss must be overruled. Rev.State. §
709. Page
166 U. S. 231 An examination of the statues under
which this proceeding was instituted will show that no provision is
made for an answer by the defendants. In Smith v. Chicago &
Western Indiana Railroad, 105 Illinois 511, 516, the Supreme
Court of Illinois said that there was no rule of law or of practice
authorizing the filing of an answer to a petition for the
condemnation of land under the eminent domain act of that State;
that the proceeding was purely statutory; and that, although the
statute was very minute in all its details, specifically setting
forth every step to be taken in the progress of a cause from its
inception to its final determination, it did not contain any
allusion to an answer by the defendants. It is not, therefore, important that
the defendant neither filed nor offered to file an answer specially
setting up or claiming a right under the Constitution of the United
States. It is sufficient if it appears from the record that such
right was specially set up or claimed in the state court in such
manner as to being it to the attention of that court. Now, the right in question was
distinctly asserted by the defendant in its written motion to set
aside the verdict and grant a new trial. Among the grounds for a
new trial were the following: that the several rulings of the court
in excluding proper evidence for the defendant, the statute under
which the proceedings for condemnation were instituted, and the
verdict of the jury and the judgment based upon it, were all
contrary to the Fourteenth Amendment, declaring that no State shall
deprive any person of life, liberty, or property without due
process of law, nor deny to any person within its limits the equal
protection of the laws. When the trial court overruled the
motion for a new trial, and entered judgment, it necessarily held
adversely to these claims of federal right. But this is not all. In the assignment
of errors filed by the defendant in the Supreme Court of Illinois,
these claims of rights under the Constitution of the United States
were distinctly reasserted. It is true that the Supreme Court of
Illinois did not, in its opinion, expressly refer to the
Constitution of the United Page
166 U. S. 232 States. But that circumstance is not
conclusive against the jurisdiction of this court to reexamine the
final judgment of the state court. The judgment of affirmance
necessarily denied the federal rights thus specially set up be the
defendant, for that judgment could not have been rendered without
deciding adversely to such claims of right. Those claims went to
the very foundation of the whole proceeding so far as it related to
the railroad company, and the legal effect of the judgment of the
Supreme Court of the State was to deny them. "The true and rational
rule," this court said in Bridge Proprietors v. Hoboken
Co. , 1 Wall. 116, 68 U. S.
143 , "is that the court must be able to see clearly, from the whole
record, that a certain provision of the Constitution or act of
Congress was relied on by the party who brings the writ of error,
and that the right thus claimed by him was denied."

															In Roby v. Colehour, 146 U. S. 153 , 146 U. S. 159 ,
it was said that:

															"Our jurisdiction being invoked upon the ground that a right or
immunity, specially set up and claimed under the Constitution or
authority of the United States, has been denied by the judgment
sought to be reviewed, it must appear from the record of the case
either that the right so set up and claimed was expressly denied,
or that such was the necessary effect in law of the judgment." De Saussure v. Gaillard, 127 U.
S. 216 , 127 U. S. 234 ; Brown v. Atwell, 92 U. S. 327 ; Chicago Life Ins. Co. v. Needles, 113 U.
S. 574 , 113 U. S. 577 ; Sayward v. Denny, 158 U. S. 180 , 158 U. S. 183 .
There is, we conceive, no room to doubt that the legal effect of
the judgment below was to declare that the rights asserted by the
defendant under the national Constitution were not infringed by the
proceedings in the case. Consequently, the motion to dismiss for
want of jurisdiction must be overruled, and we proceed to examine
the case upon its merits.

															The general contentions of the railroad company are:

															That the judgment of the state court whereby a public street is
opened across its land used for railroad purposes, and whereby
compensation to the extent of one dollar only is awarded, deprives
it of its property without due process of law, contrary to the
prohibitions of the Fourteenth Amendment; and Page 166 U. S. 233 That the railroad company was entitled, by reason of the opening
of the street, to recover as compensation a sum equal to the
difference between the value of the fee of the land sought to be
crossed, without any restrictions on its right to use the land for
any lawful purpose, and the value of the land burdened with a
perpetual right in the public to use it for the purpose of a street
subject to the right of the company or those acquiring title under
it to use it only for railroad tracks, or any purpose for which the
same could be used without interfering with its use by the
public.

															The city contends that the question as to the amount of
compensation to be awarded to the railroad company was one of local
law merely, and, as that question was determined in the mode
prescribed by the Constitution and laws of Illinois, the company
appearing and having full opportunity to be heard, the requirement
of due process of law was observed. If this position be sound, it
is an end of the case, and we need not determine whether the state
court erred in not recognizing the principles of law embodied in
the instructions asked by the railroad company.

															It is therefore necessary to inquire at the outset whether "due
process of law" requires compensation to be made or secured to the
owner of private property taken for public use, and also as to the
circumstances under which the final judgment of the highest court
of a State in a proceeding instituted to condemn such property for
public use may be reviewed by this court.

															It is not contended -- as it could not be -- that the
Constitution of Illinois deprives the railroad company of any right
secured by the Fourteenth Amendment. For the state constitution not
only declares that no person shall be deprived of his property
without due process of law, but that private property shall not be
taken or damaged for public use without just compensation. But it
must be observed that the prohibitions of the amendment refer to
all the instrumentalities of the State -- to its legislative,
executive, and judicial authorities -- and therefore whoever, by
virtue of public position under a state government, deprives
another of any right protected by that Page 166 U. S. 234 amendment against deprivation by the State, "violates the
constitutional inhibition, and, as he acts in the name and for the
State, and is clothed with the State's power, his act is that of
the State." This must be so, or, as we have often said, the
constitutional prohibition has no meaning, and "the State has
clothed one of its agents with power to annul or evade it." Ex
parte Virginia, 100 U. S. 339 , 100 U. S.
346 -347; Neal v. Delaware, 103 U.
S. 370 ; Yick Wo v. Hopkins, 118 U.
S. 356 ; Gibson v. Mississippi, 162
U. S. 579 . These principles were enforced in the recent
case of Scott v. McNeal, 154 U. S. 34 , in
which it was held that the prohibitions of the Fourteenth Amendment
extended to "all acts of the State, whether through its
legislative, its executive, or its judicial authorities"; and
consequently it was held that a judgment of the highest court of a
State, by which a purchaser at an administration sale, under an
order of a probate court, of land belonging to a living person who
had not been notified of the proceedings, deprived him of his
property without due process of law, contrary to the Fourteenth
Amendment.

															Nor is the contention that the railroad company has been
deprived of its property without due process of law entirely met by
the suggestion that it had due notice of the proceedings for
condemnation, appeared in court, and was permitted to make defense.
It is true that this court has said that a trial in a court of
justice according to the modes of proceeding applicable to such a
case, secured by laws operating on all alike, and not subjecting
the individual to the arbitrary exercise of the powers of
government unrestrained by the established principles of private
right and distributive justice -- the court having jurisdiction of
the subject matter and of the parties, and the defendant having
full opportunity to be heard -- met the requirement of due process
of law. United States v. Cruikshank, 92 U. S.
542 , 92 U. S. 554 ; Leeper v. Texas, 139 U. S. 462 , 139 U. S. 468 .
But a State may not, by any of its agencies, disregard the
prohibitions of the Fourteenth Amendment. Its judicial authorities
may keep within the letter of the statute prescribing forms of
procedure in the courts, and give the parties interested the
fullest opportunity to be heard, and yet Page 166 U. S. 235 it might be that its final action would be inconsistent with
that amendment. In determining what is due process of law, regard
must be had to substance, not to form. This Court, referring to the
Fourteenth Amendment, has said:

															"Can a State make anything due process of law which, by its own
legislation, it chooses to declare such? To affirm this is to hold
that the prohibition to the States is of no avail, or has no
application, where the invasion of private rights is effected under
the forms of state legislation." Davidson v. New Orleans, 96 U. S.
97 , 96 U. S. 102 .
The same question could be propounded, and the same answer should
be made, in reference to judicial proceedings inconsistent with the
requirement of due process of law. If compensation for private
property taken for public use is an essential element of due
process of law as ordained by the Fourteenth Amendment, then the
final judgment of a state court, under the authority of which the
property is in fact taken, is to be deemed the act of the State
within the meaning of that amendment.

															It is proper now to inquire whether the due process of law
enjoined by the Fourteenth Amendment requires compensation to be
made or adequately secured to the owner of private property taken
for public use under the authority of a State.

															In Davidson v. New Orleans, above cited, it was said
that a statute declaring in terms, without more, that the full and
exclusive title to a described piece of land belonging to one
person should be and is hereby vested in another person, would, if
effectual, deprive the former of his property without due process
of law within the meaning of the Fourteenth Amendment. See also
Missouri Pacific Railway v. Nebraska, 164 U.
S. 403 , 164 U. S. 417 .
Such an enactment would not receive judicial sanction in any
country having a written Constitution distributing the powers of
government among three coordinate departments, and committing to
the judiciary, expressly or by implication, authority to enforce
the provisions of such Constitution. It would be treated not as an
exertion of legislative power, but as a sentence -- an act of
spoliation. Due protection of the rights of property has been
regarded as a vital principle of Page 166 U. S. 236 republican institutions. "Next in degree to the right of
personal liberty," Mr. Broom, in his work on constitutional Law,
says, "is that of enjoying private property without undue
interference or molestation." (P. 228.) The requirement that the
property shall not be taken for public use without just
compensation is but

															"an affirmance of a great doctrine established by the common law
for the protection of private property. It is founded in natural
equity, and is laid down as a principle of universal law. Indeed,
in a free government, almost all other rights would become
worthless if the government possessed an uncontrollable power over
the private fortune of every citizen."

															2 Story Const. § 1790; 1 Bl.Comm. 138, 139; Cooley, Const.Lim.
*559; People v. Platt, 17 Johns. 195, 215; Bradshaw v.
Rogers, 20 Johns. 103, 106; Petition of Mt. Washington
Road Co., 4 N.H. 134, 142; Parham v. The Justices
&c., 9 Georgia 341, 348; Martin, et al., ex
parte, 13 Arkansas 198, 206 et seq.; Johnston v.
Rankin, 70 N.C. 550, 555.

															But if, as this court has adjudged, a legislative enactment,
assuming arbitrarily to take the property of one individual and
give it to another individual, would not be due process of law, as
enjoined by the Fourteenth Amendment, it must be that the
requirement of due process of law in that amendment is applicable
to the direct appropriation by the State to public use, and without
compensation, of the private property of the citizen. The
legislature may prescribe a form of procedure to be observed in the
taking of private property for public use, but it is not due
process of law if provision be not made for compensation. Notice to
the owner to appear in some judicial tribunal and show cause why
his property shall not be taken for public use without compensation
would be a mockery of justice. Due process of law, as applied to
judicial proceedings instituted for the taking of private property
for public use means, therefore, such process as recognizes the
right of the owner to be compensated if his property be wrested
from him and transferred to the public. The mere form of the
proceeding instituted against the owner, even if he be admitted to
defend, cannot convert the process used Page 166 U. S. 237 into due process of law, if the necessary result be to deprive
him of his property without compensation.

															In Fletcher v.
Peck , 6 Cranch, 87, 10 U. S.
135 -136, this Court, speaking by Chief Justice Marshall,
said:

															"It may well be doubted whether the nature of society and of
government does not prescribe some limits to the legislative power,
and, if any be prescribed, where are they to be found, if the
property of an individual, fairly and honestly acquired, may be
seized without compensation? To the legislature all legislative
power is granted, but the question whether the act of transferring
the property of an individual to the public be in the nature of
legislative power is well worthy of serious reflection."

															In Loan Ass'n v.
Topeka , 20 Wall. 655, 87 U. S. 663 ,
Mr. Justice Miller, delivering the judgment of this Court, after
observing that there were private rights in every free government
beyond the control of the State, and that a government, by whatever
name it was called, under which the property of citizens was at the
absolute disposition and unlimited control of any depository of
power, was, after all, but a despotism, said:

															"The theory of our governments, state and national, is opposed
to the deposit of unlimited power anywhere. The executive, the
legislative, and the judicial branches of these governments are all
of limited and defined powers. There are limitations on such power,
which grow out of the essential nature of all free governments,
implied reservations of individual rights, without which the social
compact could not exist, and which are respected by all governments
entitled to the name."

															No court, he said, would hesitate to adjudge void any statute
declaring that "the homestead now owned by A. should no longer be
his, but should henceforth be the property of B." In accordance
with these principles, it was held in that case that the property
of the citizen could not be taken under the power of taxation to
promote private objects, and, therefore, that a statute authorizing
a town to issue its bonds in aid of a manufacturing enterprise of
individuals was void because the object was a private, not a
public, one. See also Cole v. La Grange, 113 U. S.
1 .

															In the early case of Gardner v. Newburgh, 2
Johns.Ch. Page 166 U. S. 238 162, there being no provision in the Constitution of the State
of New York on the subject, Chancellor Kent said that it was a
principle of natural equity, recognized by all temperate and
civilized governments, from a deep and universal sense of its
justice, that fair compensation be made to the owner of private
property taken for public use. In Sinnickson v. Johnson, 17 N.J.Law, 129, 145, it was held to be a settled principle of
universal law, reaching back of all constitutional provisions, that
the right to compensation was an incident to the exercise of the
power of eminent domain; that the one was so inseparably connected
with the other that they may be said to exist not as separate and
distinct principles, but as parts of one and the same principle;
and that the legislature

															"can no more take private property for public use without just
compensation than if this restraining principle were incorporated
into, and made part of, its state constitution."

															These cases are referred to with approval in Pumpelly
v. Green Bay Co. , 13 Wall. 166, 80 U. S. 178 ,
and in Monongahela Nav. Co. v. United States, 148 U.
S. 312 , 148 U. S. 325 ,
this Court saying in the latter case:

															"And in this there is a natural equity which commends it to
everyone. It in no wise detracts from the power of the public to
take whatever may be necessary for it uses; while, on the other
hand, it prevents the public from loading upon one individual more
than his just share of the burdens of government, and says that,
when he surrenders to the public something more and different from
that which is exacted from other members of the public, a full and
just equivalent shall be returned to him."

															In Searl v. School District, 133 U.
S. 553 , 133 U. S. 562 ,
and in Sweet v. Rechel, 159 U. S. 380 , 159 U. S. 398 ,
the court said that it was a condition precedent to the exercise of
the power of eminent domain that the statute make provision for
reasonable compensation to the owner.

															In Scott v. Toledo, 36 Fed.Rep. 385, 395-396, the late
Mr. Justice Jackson, while Circuit Judge, had occasion to consider
this question. After full consideration, that able judge said:

															"Whatever may have been the power of the States on this subject
prior to the adoption of the Fourteenth Amendment Page 166 U. S. 239 to the Constitution, it seems clear that, since that amendment
went into effect, such limitations and restraints have been placed
upon their power in dealing with individual rights that the States
cannot now lawfully appropriate private property for the public
benefit or to public uses without compensation to the owner, and
that any attempt so to do, whether done in pursuance of a
constitutional provision or legislative enactment, whether done by
the legislature itself or under delegated authority by one of the
subordinate agencies of the State, and whether done directly, by
taking the property of one person and vesting it in another or the
public, or indirectly, through the forms of law, by appropriating
the property and requiring the owner thereof to compensate himself,
or to refund to another the compensation to which he is entitled,
would be wanting in that 'due process of law' required by said
amendment. The conclusion of the court on this question is that,
since the adoption of the Fourteenth Amendment, compensation for
private property taken for public uses constitutes an essential
element in 'due process of law,' and that, without such
compensation, the appropriation of private property to public uses,
no matter under what form of procedure it is taken, would violate
the provisions of the federal Constitution."

															To the same effect are Henderson v. Central Passenger
Railway, 21 Fed.Rep. 359, and Baker v. Village of
Norwood, 74 Fed.Rep. 997.

															In Mt. Hope Cemetery v. Boston, 158 Mass. 509, 519, in
which the Fourteenth Amendment was invoked against a statute
requiring the City of Boston to transfer certain cemetery property
owned by it to a particular company, the court said:

															"The conclusion to which we have come is that the cemetery falls
within the class of property which the city owns in its private or
proprietary character, as a private corporation might own it, and
that its ownership is protected under the Constitutions of
Massachusetts and of the United States, so that the legislature has
no power to require its transfer without compensation,"

															citing the Constitution of Massachusetts, Declaration of Rights,
Article X, and the Fourteenth Amendment of the Constitution of the
United States. Page 166 U. S. 240 In his work on Constitutional Limitations, Mr. Cooley says:

															"The principles, then upon which the process is based, are to
determine whether it is 'due process' or not, and not any
considerations of mere form. . . . When the government, through its
established agencies, interferes with the title to one's property,
or with his independent enjoyment of it, and its action is called
in question as not in accordance with the law of the land, we are
to test its validity by those principles of civil liberty and
constitutional protection which have become established in our
system of laws, and not generally by the rules that pertain to
forms of procedure merely. In judicial proceedings, the law of the
land requires a hearing before condemnation, and judgment before
dispossession; but when property is appropriated by the government
to public uses, or the legislature interferes to give direction to
its title through remedial statutes, different considerations from
those which regard the controversies between man and man must
prevail, different proceedings are required, and we have only to
see whether the interference can be justified by the established
rules applicable to the special case. Due process of law in each
particular case means such an exertion of the powers of government
as the settled maxims of law permit and sanction and under such
safeguards for the protection of individual rights as those maxims
prescribe for the class of cases to which the one in question
belongs. . . . In every government, there is inherent authority to
appropriate the property of the citizen for the necessities of the
State, and constitutional provisions do not confer the power,
though they generally surround it with safeguards to prevent abuse.
The restraints are that, when specific property is taken, a
pecuniary compensation, agreed upon or determined by judicial
inquiry, must be paid."

															Pp. *356, *357. In his discussion as to the meaning and scope of
the Fourteenth Amendment, the same writer, in his edition of Story
on the Constitution, after observing that every species of
individual property was subject to be appropriated for the special
needs of either the State or national government, but that the
power to appropriate was subject to the restriction, among others,
that it must Page 166 U. S. 241 not be exercised without making due compensation for whatever is
taken, says:

															"Due process of law requires, first, the legislative act
authorizing the appropriation, pointing out how it may be made and
how the compensation shall be assessed, and, second, that the
parties or officers proceeding to make the appropriation shall keep
within the authority conferred, and observe every regulation which
the act makes for the protection or in the interest of the property
owner, except as he may see fit voluntarily to waive them."

															2 Story, Const. § 1956.

															In our opinion, a judgment of a state court, even if it be
authorized by statute, whereby private property is taken for the
State or under its direction for public use, without compensation
made or secured to the owner, is, upon principle and authority,
wanting in the due process of law required by the Fourteenth
Amendment of the Constitution of the United States, and the
affirmance of such judgment by the highest court of the State is a
denial by that State of a right secured to the owner by that
instrument.

															It remains to inquire whether the necessary effect of the
proceedings in the court below was to appropriate to the public use
any property right of the railroad company without compensation
being made or secured to the owner.

															The contention of the railroad company is that the verdict and
judgment for one dollar as the amount to be paid to it was, in
effect, an appropriation of its property rights without any
compensation whatever; that the judgment should be read as if, in
form as well as in fact, it made no provision whatever for
compensation for the property so appropriated.

															Undoubtedly the verdict may not unreasonably be taken as meaning
that in the judgment of the jury the company's property, proposed
to be taken, was not materially damaged; that is, looking at the
nature of the property, and the purposes for which it was obtained
and was being used, that which was taken from the company was not,
in the judgment of the jury, of any substantial value in money. The
owner of private property taken under the right of eminent domain
obtains just compensation if he is awarded such sum as, under all
the Page 166 U. S. 242 circumstances, is a fair and full equivalent for the thing taken
from him by the public.

															If the opening of the street across the railroad tracks did not
unduly interfere with the company's use of the right of way for
legitimate railroad purposes, then its compensation would be
nominal. But whether there was such an interference, what was its
extent, and what was the value of that lost by the company as the
direct result of such interference, were questions of fact, which
the State committed to the jury under such instructions touching
the law as were proper and necessary. It was for the jury to
determine the facts, but it belonged to the court to determine the
legal principles by which they were to be governed in fixing the
amount of compensation to the owner.

															Whatever may have been the power of the trial court to set aside
the verdict as not awarding just compensation, or the authority of
the Supreme Court of Illinois, under the Constitution and laws of
the State, to review the facts, can this Court go behind the final
judgment of the State court for the purpose of reexamining and
weighing the evidence, and of determining whether, upon the facts,
the jury erred in not returning a verdict in favor of the railroad
company for a larger sum than one dollar? This question may be
considered in two aspects: first, with reference to the Seventh
Amendment of the Constitution, providing that,

															"[i]n suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States, than according to the
rules of the common law;"

															second, with reference to the statute, Rev.Stat. § 709, which
provides that the final judgment of the highest court of a State in
certain named cases may be reexamined in this Court upon writ of
error.

															It is clear that the last clause of the Seventh Amendment is not
restricted in its application to suits at common law tried before
juries in the courts of the United States. It applies equally to a
case tried before a jury in a state court, and brought here by writ
of error from the highest court of the Page 166 U. S. 243 State. One of the objections made to the acceptance of the
Constitution as it came from the hands of the Convention of 1787
was that it did not, in express words, preserve the right of trial
by jury, and that, under it, facts tried by a jury could be
reexamined by the courts of the United States otherwise than
according to the rules of the common law. The Seventh Amendment was
intended to meet these objections, and to deprive the courts of the
United States of any such authority. It could not have been
intended thus to restrict the power of the courts of the United
States to reexamine facts tried by juries in the courts of the
Union, and leave it open for those courts to reexamine, in
disregard of the rules of the common law, facts tried by juries
impaneled in the state courts in cases which, by reason of the
questions involved in them, could be brought under the cognizance
of the courts of the United States.

															In The Justices v.
Murray , 9 Wall. 274, 76 U. S. 278 , a
case removed from a state court to a Circuit Court of the United
States after verdict in the state court, and brought from the
latter court to this Court by writ of error, the question was
presented as to the constitutionality of so much of the fifth
section of the Act of March 3, 1863, c. 81, 12 Stat. 755, as
authorized the removal of a judgment in a state court, in which the
case was tried by a jury, to the Circuit Court of the United States
for a retrial on the facts and the law. The argument was made that,
as by the construction uniformly given to the first clause of the
Amendment, the suits there mentioned were only those in the federal
courts, the words "and no fact tried by a jury," mentioned in the
second clause, relate to trial by jury only in such courts. But
this Court said:

															"It is admitted that the clause applies to the appellate powers
of the Supreme Court of the United States in all common law cases
coming up from an inferior federal court, and also to the Circuit
Court in like cases, in the exercise of its appellate powers. And
why not as it respects the exercise of these powers in cases of
federal cognizance coming up from a state court? The terms of the
Amendment are general, and contain no qualification in respect of
the restriction Page 166 U. S. 244 upon the appellate jurisdiction of the courts, except as to the
class of cases (namely, suits at common law) where the trial had
been by jury. The natural inference is that no other was intended.
Its language, upon any reasonable, if not necessary,
interpretation, we think, applies to this entire class, no matter
from what court the case comes, of which cognizance can be taken by
the appellate court. It seems to us also that cases of federal
cognizance, coming up from state courts are not only within the
words, but are also within the reason and policy, of the amendment.
They are cases involving questions arising under the Constitution,
the laws of the United States, and treaties, or under some other
federal authority, and therefore are as completely within the
exercise of the judicial power the United States -- as much so --
as if the cases had been originally brought in some inferior
federal court. No other cases tried in the state courts can be
brought under the appellate jurisdiction of this Court, or any
inferior federal court on which appellate jurisdiction may have
been conferred. The case must be one involving some federal
question, and it is difficult to perceive any sensible reason for
the distinction that is attempted to be made between the
reexamination by the appellate court of a cause coming from an
inferior federal court and one of the class above mentioned coming
up form a state court. In both instances, the cases are to be
disposed of by the same system of laws, and by the same judicial
tribunal."

															It was therefore held that Congress could not authorize a
Circuit Court of the United States, upon the removal of a case
tried by a jury in a state court, to retry "the facts and law."

															Upon the reasoning in the case just referred to, it would seem
to be clear that the last clause of the Seventh Amendment forbids
the retrial by this Court of the facts tried by the jury in the
present case. This conclusion is not affected by the circumstance
that this proceeding is to be referred to the State's power of
eminent domain, in which class of cases it had been held that, in
the absence of express constitutional provisions on the subject,
the owner of private property taken for public use cannot claim, as
of right, that his compensation Page 166 U. S. 245 shall be ascertained by a common law jury. The reason for this
rule is that, before the establishment of the government of the
United States, it had been the practice in this country and in
England to ascertain by commissioners, special tribunals, and other
like agencies the compensation to be made to owners of private
property taken for public use, and it was not to be supposed that
the general provisions in American constitutions, national and
state, preserving the right of trial by jury, superseded that
practice. Lewis on Eminent Domain 311, 312, and authorities cited.
But, in Illinois, such practice is not permitted in cases of the
condemnation of private property for public use. The state
Constitution of 1848 provided that "the right of trial by jury
shall remain inviolate and shall extend to all cases at law without
regard to the amount in controversy." Article 13, § 6. The
Constitution of 1870 provides that

															"[t]he right of trial by jury, as heretofore enjoyed, shall
remain inviolate, but the trial of civil cases before the justices
of the peace by a jury of less than twelve men may be authorized by
law."

															Article 2, § 5. And by the latter instrument, as we have sen, it
is expressly provided that the just compensation required to be
made to the owner of private property taken or damaged for public
use "shall be ascertained by a jury as shall be prescribed by law."
Art. 2, § 13. That the last-named provision prohibited the
ascertainment of such compensation in any other mode than by a jury
is made clear by the decision of the Supreme Court of Illinois in Kine v. Defenbaugh, 64 Illinois 291, in which it was
adjudged that a provision in a statute of Illinois authorizing
commissioners of highways, or three supervisors of the county on
appeal from the commissioners, to ascertain the damages sustained
by reason of the construction of a highway across the owner's
premises, was superseded by the thirteenth section of article 2 of
the state constitution; the court observing that a trial by jury
was "a constitutional right of which the party may not be debarred
either by the action or nonaction of the legislature. People v.
McRoberts, 62 Illinois 38." The persons impaneled in this case
to ascertain the just compensation due to the railroad Page 166 U. S. 246 company constituted a jury as ordained by the Constitution of
Illinois in cases of the condemnation of private property for
public use, and, being a jury within the meaning of the Seventh
Amendment of the Constitution of the United States, the facts tried
by it cannot be retried "in any court of the United States
otherwise than according to the rules of the common law." The only
modes known to the common law

															"to reexamine such facts are the granting of a new trial by the
court where the issue was tried, or to which the record was
properly returnable, or the award of a venire facias de
novo by an appellate court, for some error of law which
intervened in the proceedings." Parsons v.
Bedford , 3 Pet. 433, 28 U. S.
447 -448; Railroad Co. v. Fraloff, 100 U. S.
24 , 100 U. S.
31 .

															To this it may be added that Congress has provided that the
final judgment of the highest court of a State in cases of which
this Court may take cognizance shall be reexamined upon writ of
error, a process of common law origin, which removes nothing for
reexamination but questions of law arising upon the record. Egan v. Hart, 165 U. S. 188 .
Even if we were of opinion, in view of the evidence, that the jury
erred in finding that no property right, of substantial value in
money, had been taken from the railroad company by reason of the
opening of a street across its right of way, we cannot, on that
ground, reexamine the final judgment of the state court. We are
permitted only to inquire whether the trial court prescribed any
rule of law for the guidance of the jury that was in absolute
disregard of the company's right to just compensation.

															We say "in absolute disregard of the company's right to just
compensation" because we do not wish to be understood as holding
that every order or ruling of the state court in a case like this
may be reviewed here, notwithstanding our jurisdiction, for some
purposes, is beyond question. Many matters may occur in the
progress of such cases that do not necessarily involve, in any
substantial sense, the federal right alleged to have been denied;
and, in respect of such matters, that which is done or omitted to
be done by the state court may constitute only error in the
administration of the law under which the proceedings were
instituted. Page 166 U. S. 247 In Lent v. Tillson, 140 U. S. 316 , 140 U. S. 331 ,
which was a case of the widening of a public street, for the cost
of which bonds were issued, to be paid by taxation on the lands
benefited, in proportion to the benefits, and in which it was
alleged by a property owner that the local statute had been so
administered as to deprive him of his property without due process
of law, this Court said:

															"Errors in the mere administration of the statute, not involving
jurisdiction of the subject matter and of the parties, could not
justify this Court, in its reexamination of the judgment of the
state court, upon writ of error, to hold that the State had
deprived, or was about to deprive, the plaintiffs of their property
without due process of law. Whether it was expedient to widen
Dupont street, or whether the board of supervisors should have so
declared, or whether the board of commissioners properly
apportioned the cost of the work, or correctly estimated the
benefits accruing to the different owners of property affected by
the widening of the street, or whether the board's incidental
expenses in executing the statute were too great, or whether a
larger amount of bonds were issued than should have been, the
excess, if any, not being so great as to indicate upon the face of
the transaction a palpable and gross departure from the
requirements of the statute, or whether upon the facts disclosed
the report of the commissioners should have been confirmed, are
none of them issues presenting federal questions, and the judgment
of the state court upon them cannot be reviewed here."

															In harmony with those views, we may say in the present case that
the state court having jurisdiction of the subject matter and of
the parties, and being under a duty to guard and protect the
constitutional right here asserted, the final judgment ought not to
be held to be in violation of the due process of law enjoined by
the Fourteenth Amendment unless, by its rulings upon questions of
law, the company was prevented from obtaining substantially any
compensation. See also Marchant v. Pennsylvania Railroad, 153 U. S. 380 .

															The principal point of dispute between the parties was whether
the railroad company, by reason of the opening of the street, was
entitled to recover a sum equal to the difference Page 166 U. S. 248 between the value of the land in question, as land, without any
restriction on its right to use it for any lawful purpose, and the
value of the land when burdened with the right of the public to use
it for the purposes of a street crossing.

															In its opinion in this case, the Supreme Court of Illinois says
that, when a city council, under the authority of the act of April
10, 1872, extends a street across railroad tracks or right of way,
"it does not condemn the land of the railroad company, nor prevent
the use of the tracks and right of way." 149 Illinois 457. We take
this to be a correct interpretation of the local statute, and as
indicating, not only the interest acquired by the public through
proceedings instituted for the extension of a street across the
tracks and right of way of the railroad company, but also the
extent to which the company was deprived, by the proceedings for
condemnation, of any right in respect of the land. Such being the
law of the State, it would necessarily follow that the jury, in
ascertaining the amount of compensation, could not properly take as
a basis of calculation the market value of the land as land. The
land, as such, was not taken, the railroad company was not
prevented from using it, and its use for all the purposes for which
it was held by the railroad company was interfered with only so far
as its exclusive enjoyment for purposes of railroad tracks was
diminished in value by subjecting the land within the crossing to
public use as a street. The Supreme Court of Illinois well said
that

															"[t]he measure of compensation is the amount of decrease in the
value of the use for railroad purposes caused by the use for
purposes of a street, such use for the purposes of a street being
exercised jointly with the use of the company for railroad
purposes. In other words, the company is to be compensated for the
diminution in its right to use its tracks caused by the existence
and use of the street."

															149 Illinois 457.

															But it was contended in the court below, and is here contended,
that the land was subject to sale by the company for any lawful
use; that, after being condemned for purposes of a public street,
it could not be sold as land held for private use could be sold in
the market; consequently its salable value, Page 166 U. S. 249 treating it as land simply, was practically destroyed by the
opening of a public street across it. Touching this point, the
state court, observing that a railroad company can only acquire
land, whether by voluntary purchase or otherwise, for railroad
purposes as defined in its charter, and that, in this case, the
descriptions of the strips of land conveyed to the appellant, as
set forth in the conveyances introduced in evidence, show that the
strips were purchased for railroad right of way, and they have been
ever since so used, said:

															"It is manifest that the appellant is restricted in its use of
the right of way over which this street is to be extended to those
purposes for which such right of way is now used. The future use
must be the same as the present use, so long as the appellant
continues to operate its railroad, unless the legislature shall
permit it to change its route."

															149 Illinois 457. The Supreme Court of Illinois, therefore, held
that the trial court did not err in excluding evidence to show the
general salable value of the right of way included in the crossing,
or its general value for other uses than that to which it was
applied. According to this view of the powers of the railroad
company, it is clear that the jury could not properly have taken
into consideration the possibility of such legislative permission
being granted. That is, the power of the legislature to permit a
change of route, and the possibility of the exercise of that power,
could not be elements in the inquiry as to the compensation to be
now awarded to the railroad company.

															But even if it were true that the company, so long as it
operated its railroad, could without legislative permission take up
its tracks placed across the land in question, and use the land for
purposes other than for a right of way, the jury could not properly
have taken into consideration the possibility that, at some future
time, the company would adopt that course, and thereby put itself
in condition, if no street were opened across it, to sell its land
for what it was worth as land, freed from any public easement. Such
a possibility was too remote and contingent to have been taken into
account. There was nothing in the evidence, introduced or Page 166 U. S. 250 offered and excluded, suggesting any probability that the
company intended to use, or would in the near future use, the land
within the crossing for any other purpose than as a right of way.
While, as held in Boom Co. v. Patterson, 98 U. S.
403 , 98 U. S. 408 ,
the general rule is that compensation

															"is to be estimated by reference to the uses for which the
property is suitable, having regard to the existing business and
wants of the community, or such as may be reasonably expected in
the immediate future,"

															it is well settled that "mere possible or imaginary uses, or the
speculative schemes of its proprietor, are to be excluded." Pierce
on Railroads 217, and authorities cited; Worcester v. Great
Falls Manufacturing Co., 41 Maine 159, 164; Dorlan v. East
Brandywine & Waynesburg Railroad, 46 Penn.St. 520,
525.

															The company must be deemed to have laid its tracks within the
corporate limits of the city subject to the condition -- not, it is
true, expressed, but necessarily implied -- that new streets of the
city might be opened and extended from time to time across its
tracks, as the public convenience required, and under such
restrictions as might be prescribed by statute. Suppose the city
had many years ago acquired the land in question by purchase or
condemnation for the purpose of extending, and had extended, a
street over it, and that the railroad company had thereafter
acquired by condemnation the right to lay its tracks across the
street upon making just compensation to the city. In ascertaining,
in such a case, the compensation due the city, would it not be
assumed, the street having once been opened, that the convenience
of the public would always require it to be kept open, and that,
therefore, compensation was to be ascertained not upon the basis of
the value of the city's land, as land, when crossed by the railroad
tracks, but upon the basis that the land would always be a part of
a public street? Both branches of this question must be answered in
the affirmative. But they should not be so answered if the position
of the railroad company be sound; for, according to its contention,
the jury, in the case supposed, must have taken into account the
possibility that the city might at some future Page 166 U. S. 251 time discontinue the street, and sell the land, or devote it to
other purposes. There was and is no more probability that the city,
in the case supposed, would close the street, than, in this case,
that the railroad company will take up its tracks from the land in
question. Such a probability was too remote to be regarded as an
element in the inquiry as to compensation. When these proceedings
were instituted the railroad company had an exclusive right to use
the land in question for tracks upon which to move its cars, and
the city did not propose to interfere in any degree with the
enjoyment of that right otherwise than by the opening of a street
across the tracks for public use. To what extent was the value of
the company's right to use the land for railroad tracks unduly
diminished by opening across it a public street? Under all the
circumstances, in view of the purpose for which the railroad
company obtained the land, for which the land was in fact used, and
for which it was likely to be always used -- which purpose is the
most valuable one for the railroad company -- that was the only
question to be determined by the jury. As the right to open a
street across the railroad tracks was all that the city sought to
obtain by the proceeding for condemnation, it was not bound to
obtain and pay for the fee in the land over which the street was
opened. If, prior to the institution of these proceedings, the
railroad company had constructed upon the land embraced within the
crossing buildings to be used in its business, it would have been
necessary for the jury, in ascertaining the just compensation to be
awarded, to take into consideration the value of such buildings.
But no such case is before us. The case is simply one of the
opening of a street across land with no buildings upon it, and used
only for railroad tracks.

															It is next contended that error of law was committed by the
refusal of the court to allow the company to prove that, in the
event of the opening of the street, it would be necessary, in order
that the railroad be properly and safely operated, to construct
gates and a tower for operating them, plank the crossing, fill
between the rails, put in an extra rail, and to incur an annual
expense of depreciations, maintenance, Page 166 U. S. 252 employment of gatemen, etc. It was not claimed that the railroad
company could recover specifically on account of such expenditures,
but that the proof of their being made necessary by the opening of
the street was admissible for the purpose of showing the
compensation due to the company. There are some authorities that
seem to support the view taken by the railroad company, but we are
of opinion that no error was committed in excluding the evidence
offered.

															The plaintiff in error took its charter subject to the power of
the State to provide for the safety of the public, in so far as the
safety of the lives and persons of the people were involved in the
operation of the railroad. The company laid its tracks subject to
the condition, necessarily implied, that their use could be so
regulated by competent authority as to insure the public safety.
And as all property, whether owned by private persons or by
corporations, is held subject to the authority of the State to
regulate its use in such manner as not to unnecessarily endanger
the lives and the personal safety of the people, it is not a
condition of the exercise of that authority that the State shall
indemnify the owners of property for the damage or injury resulting
from its exercise. Property thus damaged or injured is not, within
the meaning of the Constitution, taken for public use, nor is the
owner deprived of it without due process of law. The requirement
that compensation be made for private property taken for public use
imposes no restriction upon the inherent power of the State by
reasonable regulations to protect the lives and secure the safety
of the people. In the recent case of New York & N. E.
Railroad v. Bristol, 151 U. S. 556 , 151 U. S. 567 ,
this Court declared it to be thoroughly established that the
inhibitions of the Constitution of the United States upon the
impairment of the obligation of contracts, or the deprivation of
property without due process or of the equal protection of the
laws, by the States, are not violated by the legitimate exercise of
legislative power in securing the public safety, health, and
morals. "The governmental power of self-protection," the court
said,

															"cannot be contracted away, nor can the exercise of rights
granted, nor the use of property, be withdrawn from the implied Page 166 U. S. 253 liability to governmental regulation in particulars essential to
the preservation of the community from injury." See New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 , 115 U. S.
671 .

															In Toledo, Peoria & Warsaw Railway v. Deacon, 63
Illinois 91, the Supreme Court of Illinois said:

															"The State has reserved to itself the power to enact all police
laws necessary and proper to secure and protect the life and
property of the citizen. Prominent among the rights reserved, and
which must inhere in the State, is the power to regulate the
approaches to and the crossing of public highways, and the passage
through cities and villages, where life and property are constantly
in imminent danger by the rapid and fearful speed of railway
trains. The exercise of their franchises by corporations must yield
to the public exigencies and the safety of the community."

															And in Illinois Central Railroad v. Willenborg, 117
Illinois 203, where the question was whether a railroad company
could be required to construct a farm crossing over its road years
after the road had been built, the court said:

															"The point is made, however, that these provisions are not
obligatory on this corporation because they were enacted many years
since it received its charter from the State. This is a
misapprehension of the law. The regulations in regard to fencing
railroad tracks, and the construction of farm crossings for the use
of adjoining landowners, are 'police regulations,' in the strict
sense of those terms, and apply with equal force to corporations
whose tracks are already built, as well as to those to be
thereafter constructed. They have reference to the public security
both as to persons and to property. . . . No reason is perceived
why, upon the same principle on which a railroad corporation may be
required to fence its track and construct cattle guards, it may not
be required also to construct farm crossings."

															In Chicago & Northwestern Railway Co. v. Chicago, 140 Illinois 309, 317-319, the question was whether, in a case
where a city institutes a condemnation proceeding to open or extend
a street across a railroad already constructed, the company owning
such railroad was entitled to be allowed, as a Page 166 U. S. 254 part of its just compensation, the amount of its expenses in
constructing and maintaining the street crossing. In that case, it
appeared that the railroad was constructed prior to the above act
of 1872 for the incorporation of cities and villages, and before
the passage of the act of 1874, which required that, thereafter, at
all railroad crossings of highways "and streets" the railroad
companies should construct and maintain such crossings, and the
approaches thereto, within their respective rights of way, so that
at all times they should be safe as to person and property. 2 Starr
& Curtis' Anno.Stat. p. 1927. The court said:

															"Government owes to its citizens the duty of providing and
preserving safe and convenient highways. From this duty results the
right of public control over public highways. Railroads are public
highways, and, in their relations as such to the public, are
subject to legislative supervision, though the interests of their
shareholders are private property. Every railroad company takes its
right of way subject to the right of the public to extend the
public highways and streets across such right of way. . . . If
railroads, so far as they are public highways, are, like other
highways, subject to legislative supervision, then railroad
companies, in their relations to highways and streets which
intersect their rights of way, are subject to the control of the
police power of the State; that power of which this Court has said
that"

															"it may be assumed that it is a power coextensive with
self-protection, and is not inaptly termed 'the law of overruling
necessity.' Lake View v. Rose Hill Cemetery Co., 70
Illinois 191. The requirement embodied in section 8, that railroad
companies shall construct and maintain the highway and street
crossings and the approaches thereto within their respective rights
of way, is nothing more than a police regulation. It is proper that
the portion of the street or highway which is within the limits of
the railroad should be constructed by the railroad company and
maintained by it because of the dangers attending the operation of
its road. It should control the making and repairing of the
crossing for the protection of those passing along the street and
of those riding on the cars. . . . The items of expense for Page 166 U. S. 255 which appellant claims compensation are such only as are
involved in its compliance with a police regulation of the statute.
It is well settled that"

															"neither a natural person nor a corporation can claim damages on
account of being compelled to render obedience to a police
regulation designed to secure the common welfare. Chicago &
Alton Railroad v. Joliet, Lockport &c. Railroad, 105
Illinois 388. It has been held by this Court in a number of cases
that railroad corporations may be required to fence their tracks,
to put in cattle guards, to place upon their engines a bell, and to
do other things for the protection of life and property, although
their charters contained no such requirements. Galena &
Chicago Union Railroad v. Loomis, 13 Illinois 548; Galena
& Chicago Union Railroad v. Dill, 22 Illinois 264; Ohio & Mississippi Railroad v. McClelland, 25 Illinois
140; Peoria & Pekin Union Railway v. Peoria &
Farmington Railroad, 105 Illinois 110. . . . Uncompensated
obedience to a regulation enacted for the public safety under the
police power of the State is not a taking or damaging without just
compensation of private property, or of private property affected
with a public interest." See also Mugler v. Kansas, 123 U.
S. 623 , 123 U. S. 668 ; Boston & Maine Railroad v. County Comm'rs, 79 Maine
386; Thorpe v. Railroad, 27 Vermont 150; Lake Shore
Railway v. Cincinnati & Sandusky Railway, 30 Ohio St. 604; Portland & Rochester Railroad v. Deering, 78 Maine 61,
70; State v. Chicago &c. Railway, (Neb.), 45 N.W.Rep.
469; New York & N.E. Railway v. Waterbury, 60
Connecticut 1; Charlotte, Columbia &c. Railroad v.
Gibbes, 142 U. S. 386 , 142 U. S.
393 .

															We concur in these views. The expenses that will be incurred by
the railroad company in erecting gates, planking the crossing, and
maintaining flagmen, in order that its road may be safely operated
-- if all that should be required -- necessarily result from the
maintenance of a public highway under legislative sanction, and
must be deemed to have been taken by the company into account when
it accepted the privileges and franchises granted by the State.
Such expenses must be regarded as incidental to the exercise of the
police powers of the State. What was obtained, and all that Page 166 U. S. 256 was obtained, by the condemnation proceedings for the public was
the right to open a street across land within the crossing that was
used, and was always likely to be used, for railroad tracks. While
the city was bound to make compensation for that which was actually
taken, it cannot be required to compensate the defendant for
obeying lawful regulations enacted for the safety of the lives and
property of the people. And the value to the railroad company of
that which was taken from it is, as we have said, the difference
between the value of the right to the exclusive use of the land in
question for the purposes for which it was being used, and for
which it was always likely to be used, and that value after the
city acquired the privilege of participating in such use by the
opening of a street across it, leaving the railroad tracks
untouched. Upon that theory the case was considered by the jury,
and the court did not err in placing it before them upon that basis
as to compensation.

															One of the instructions asked by the company, and refused by the
court, was to the effect that, if the land to be crossed by the
proposed street was of such width and dimensions that it would be
practicable for the company, or those acquiring title under it, to
lay and operate other railroad tracks in addition to those already
placed thereon, the company was entitled to recover, as part of the
compensation to be awarded, the difference, if any, between the
value of the strip for railroad purposes with the right to lay and
operate thereon such additional tracks and the value of the same
for railroad purposes with the right to use and operate only the
railroad tracks now on the same. This instruction was properly
refused, because it assumed, as matter of law, that the opening of
the street across the existing railroad tracks prevented the
company from laying additional tracks across the land within the
crossing, if there was room for such tracks. The right of the
company to use the land or its right of way for as many tracks as
it reasonably required for its business -- if such right it had
when the present proceedings were instituted -- is not affected by
the opening of the street in question. The opening of the street
across the company's land -- the city not acquiring the Page 166 U. S. 257 fee-simple title -- was necessarily subject to the right, if
any, of the company to lay down additional tracks, if necessary in
the proper conduct of its business.

															Another instruction asked by the company, and to the refusal of
which it excepted, was to the effect that, if the land of the
railroad company to be crossed by the proposed street was used by
it for railroad purposes as part of "its railroad and terminal
facilities," and the value of such railroad and terminal facilities
would be depreciated and lessened by the use of the land by the
public for the purposes of a street (such use for the purposes of a
street being subject, however, to the use of the land by the
company for railroad purposes), then the railroad company was
entitled to recover from the city a sum equal to such depreciation
in value as damages to part of its land not taken or crossed by the
proposed street. This instruction was properly refused. It was
objectionable, for the reason, if there were no other, that it was
too general. The words "its railroad and terminal facilities"
included the company's entire line of road and terminal facilities
within, at least, the corporate limits of the city. The land within
the crossing is three miles inside the city limits, about four
miles from the passenger depot of the company, and a thousand feet
from its nearest freight depot. If the instruction last referred to
had been given, the range of inquiry as to the sum due the company
for what was taken from it would have been extended far beyond what
was required or permissible in order to ascertain the amount of
compensation.

															It is further contended that the railroad company was denied the
equal protection of the laws in that, by the final judgment,
individual property owners were awarded, as compensation for
contiguous property appropriated to the public use by the same
proceeding, the value of their land taken, while only nominal
compensation was given to the company; the value of its land,
simply as land, across which the street was opened, not being taken
into account. This contention is without merit. Compensation was
awarded to individual owners upon the basis of the value of the
property actually taken, having regard to the uses for which it was
best adapted, Page 166 U. S. 258 and the purposes for which it was held and used and was likely
always to be used. Compensation was awarded to the railroad company
upon the basis of the value of the thing actually appropriated by
the public -- the use of the company's right of way for a street
crossing -- having regard to the purposes for which the land in
question was acquired and held and was always likely to be held. In
the case of individual owners, they were deprived of the entire use
and enjoyment of their property, while the railroad company was
left in the possession and use of its property for the purposes for
which it was being used, and for which it was best adapted, subject
only to the right of the public to have a street across it. In
this, there was no denial of the equal protection of the laws,
unless it be that the public cannot have a street across the tracks
of a railroad company, except upon the condition precedent that it
shall condemn and acquire the absolute ownership of the land,
leaving untouched the right of the company to cross it with its
tracks. We do not think the equal protection of the laws imposes
such a burden upon the people of a city within the limits of which
a railroad company has been permitted to lay its tracks.

															We have examined all the questions of law arising on the record
of which this Court may take cognizance, and which, in our opinion,
are of sufficient importance to require notice at our hands; and,
finding no error, the judgment is Affirmed. MR. JUSTICE BREWER, dissenting. Page 166 U. S. 259 I dissent from the judgment in this case. I approve that which
is said in the first part of the opinion as to the potency of the
Fourteenth Amendment to restrain action by a State through either
its legislative, executive, or judicial department, which deprives
a party of his property without due compensation, also the ruling
that "due process" is not always satisfied by the mere form of the
proceeding, the fact of notice, and a right to be heard. I agree to
the proposition that

															"a judgment of a state court, even if it be authorized by
statute, whereby private property is taken for the State, or under
its direction, for public use, without compensation made or secured
to the owner, is, upon principle and authority, wanting in the due
process of law required by the Fourteenth Amendment to the
Constitution of the United States, and the affirmance of such
judgment by the highest court of the State is a denial by that
state of a right secured to the owner by that instrument."

															It is disappointing, after reading so strong a declaration of
the protecting reach of the Fourteenth Amendment, and the power and
duty of this Court in enforcing it as against action by a State by
any of its officers and agencies, to find sustained a judgment,
depriving a party -- even though a railroad corporation -- of
valuable property without any, or at least only nominal,
compensation. It seems as though the denial which is so strenuously
made as to the power of the State through either its legislative,
executive, or judicial department is subject to one limitation;
that is, the verdict of a jury. The abundant promises of the
forepart of the opinion vanish into nothing when the conclusion is
reached. They amount to a mere brutum fulmen. It is a case
frequent in all our experiences in life, where the promise and the
performance are sadly at variance, and suggest those many sayings,
some serious and some jocular, which are used to picture the
grotesque incongruity so often manifested between the beginning and
the end, the proclamation and the act.

															For what is the result which is sustained and adjudged rightful
by this decision? The railroad company, which owns a tract of land
within the limits of the City of Chicago, holds Page 166 U. S. 260 it by deed from the original proprietors, having, therefore, the
highest and best of all titles, a fee simple, and by virtue thereof
a right to its exclusive use, with all the benefits and profits
which attend thereon, is deprived of such exclusive use, forced to
admit everybody to an equal use and occupation, to give to the
public, indeed, all the use and occupation it has of any road or
highway, including therein its power to require all owners of steam
cars crossing such highways to plank at their own expense
crossings, construct gates, employ gatemen, and take all other
necessary means to prevent accidents at such crossings, and
receives for this only one dollar -- merely nominal compensation.
The property thus condemned is the private property of the company. Missouri Pacific Railway v. Nebraska, 164 U.
S. 403 , 164 U. S. 417 .
The individual owners of tracts alongside and similarly situated
are, for being deprived the exclusive use (for in neither case is
the fee taken) of their property, awarded damages at the rate of
about $5,000 for an equal area of ground, and this without being
exposed to any further burden than the loss of the use of the
property condemned.

															It is no answer to say that the company only uses this piece of
ground for its tracks and the passage of its trains, and may still
use it in the same way. It is not the present use, but the
possibilities of use, which determine the value of property. Can
the owner of vacant land have it taken from him without
compensation simply because, at the moment, he does not use it? As
said by this Court in Boom Co. v. Patterson, 98 U. S.
403 , 98 U. S.
408 :

															"The inquiry in such cases must be, what is the property worth
in the market, viewed not merely with reference to the uses to
which it is at the time applied, but with reference to the uses to
which it is plainly adapted; that is to say, what is it worth from
its availability for valuable uses?"

															The value of this property to the railroad company, its owner,
does not depend alone on the uses to which it is now put, but also
on the uses to which the company may rightfully put it; and, as
shown by the testimony in this case, that portion of the ground on
either side of the tracks is available and valuable for station
houses, offices, coal chutes, Page 166 U. S. 261 elevator offices, signal towers, switch stands, etc., the
possibility of use for which purposes is taken away when the land
is appropriated for a highway. The claim that the leaving of the
present use of his property to the owner destroys the right of
compensation is a proposition which, to my mind, is simply
monstrous. Could another railroad company or an individual condemn
and take from this company any use of its tracks, with only nominal
compensation, simply because its own use was left to the company?
And yet, if the taking of a crossing without compensation can be
defended on this ground, why may not the taking of the use of the
tracks without compensation also be defended?

															Neither, as I submit, can the large matter of damages by
liability to the expense of planking between the tracks,
establishing gates, hiring gatemen, and resorting to all other
necessary means of guarding against accidents at the crossing, be
ignored in any just estimate of compensation. It is no sufficient
answer to say that wherever a crossing has been rightfully
established the public may legally compel the company at its own
expense to provide these means of protection. The company is liable
to no such burden until the highway is opened. As long as the
public had no right of crossing, the company was under no burden.
The establishment of the crossing, the taking of the property for a
highway, creates the right on the part of the public to cast the
burden upon the company, and it seems to me monstrous to say that
the public can create the right to cast a large burden of expense
upon the company, and yet be under no obligations to compensate
therefor. It amounts simply to this: that the city says to the
railroad company,

															"I will take your property, and use it for a highway, and pay
you nothing for it, or for your liability to bear such a burden of
expense as I may see fit to cast upon you hereafter in order to
protect that crossing against accident; and I can do all this
without compensation, because, if I had owned the property in the
first place, and simply given you permission to cross my highway, I
could compel you to bear such burden."

															The right to impose a burden after a public ownership is created
is used as a justification Page 166 U. S. 262 for creating the public ownership without compensation. I cannot
agree to any such proposition.

															This question was presented to the Supreme Court of Kansas in Kansas Central Railroad Co. v. Commissioners, 45 Kansas
716, 724, where a highway was sought to be established across a
railroad track without any compensation, and the court denied the
claim, saying:

															"Whether the duty imposed upon the railroad company of
constructing cattle guards, fences, signs, etc., can be or is
imposed upon it under the police power of the State, makes no
difference in this case. If the highway should not be established
across the railroad company's right of way, then it would not be
necessary for any of these things to exist; but, if a highway is so
established, then the duty under the statutes immediately springs
into existence, requiring the railroad to so construct these
things. The establishment of the highway is, therefore, the cause
of all these additional burdens' being imposed upon the railroad
company. And must the railroad company bear these burdens and
suffer these losses without compensation? Why should it be treated
differently from others who have interests in real estate? All
others having interests in real estate are entitled to compensation
for losses resulting from the location of a public highway
interfering with their free and rightful use of such interests. Smith County Commissioners v. Labore, 37 Kansas 480, 484 et seq. " See also the many cases cited in the opinion. Among
them is Grand Rapids v. Grand Rapids &c. Railroad, 58
Michigan 641, 648, in which it was said by Campbell, C.J.:

															"The damage done to a railroad by having a highway run across it
must necessarily include all the additional expense entailed by
such a crossing, which in a city may involve a considerable outlay
in making the crossing safe, and providing guards against
accidents."

															Again, in Chicago & Grand Trunk Railway v. Hough, 61 Mich. 507, 508, the court observed, speaking by the same chief
justice:

															"If a railroad interferes with an existing highway, it must bear
all the expense of crossing and restoring the highway, as far as
practicable, to safe condition; and the fencing and cattle guards
are necessary for that purpose. Page 166 U. S. 263 But, as pointed out in 52 Mich. 277, when a new highway is
created, then it belongs to those who create it to bear the expense
of making the crossing in the condition necessary to meet all the
expense and danger which it occasions."

															Indeed, in Illinois, as between two railroads, one seeking to
obtain the right of crossing over the tracks of the other, the
court, in Chicago & Alton Railroad v. Springfield &
N.W. Railroad, 67 Illinois 142, well said:

															"Appellants are entitled to such a sum for damages, to be paid
by appellee in money, as well enable appellants to construct and
keep in repair all such works as may be necessary to keep their
track in a safe and secure condition. Nothing short of this can
amount to the 'just compensation' provided by law."

															I do not care to enlarge upon this matter. These propositions
seem to me so absolutely clear that the mere statement of them
ought to carry conviction. And after a declaration by this Court
that a State may not, through any of its departments, take private
property for public use without just compensation, I cannot assent
to a judgment which, in effect, permits that to be done.

															THE CHIEF JUSTICE took no part in the consideration or decision
of these cases.