The opinion of the Court was delivered by
Gibson, C. J.It is proper, in limine, to say, that as no part of the evidence has come up with the record except what is contained in the bills of exceptions, we know not whether tender was made before or after judgment, or whether the point propounded in the first prayer arose in the cause at all. If it did not result from the evidence, the judge might omit to charge on it; and as error is not to be intended, we would have been bound, had he not noticed it, to suppose that it had not a legitimate place in the cause. But he did notice it, and gave the direction prayed for, with a very proper qualification, that though the proceeding in the common pleas did not furnish a justification of the trespass, it at least took away all pretext for vindicatory damages. And the same may be said of the second prayer, which was answered affirmatively, by directing that if judgment had been entered on the verdict, if tender had *66been made in pursuance of it, and if the road had been constructed according to the requisitions of the act, there would have been a full and perfect defence; for from this, the jury must have inferred that there could be no defence without the concurrence of all of them. Besides, any omission on this head could do the plaintiff no harm, for the jury actually found for him; and every thing beyond that had relation to the quantum of the damages. On that ground alone, an error, if there were one, would be immaterial.
The third prayer was properly rejected. Nothing in the statute or in reason, requires a petitioner to be the owner of the land at the entrance of the route into the public thoroughfare. It was not contemplated that he should have a depot at the junction; and there is neither reason nor enactment for the plaintiff’s principle. The road might, therefore, be lawfully laid on the ground which it occupies; and as to intrusion, there is no evidence legitimately before us, nor' is there any thing even in that which has been put upon our paper books irregularly, to show that the defendant had occupied any part of the plaintiff’s ground on the pool, or prevented him from using it as he pleased. The railroad was carried into the stream on a platform; whence the coals were discharged by a shute into boats lying parallel with the shore. What the intervening space was, it is not material to inquire: the plaintiff’s right of exclusive possession extended not one inch beyond low water mark, and if there was a trespass at all, it was committed on the public. An unreasonable occupancy of the pool, might have subjected the defendant to a prosecution for a nuisance; but as to the plaintiff’s right in it, the case stands on the principle of Shrunk v. The Schuylkill Navigation Company, 14 Serg. & Rawle 71. The defendant might occupy any part of the stream without being answerable to the plaintiff or any one else, for preventing boats from coming to lie at the landing.
The most material point in the cause, is that which involves the constitutionality of the statute on which the defendant’s right is founded; but it is one about which little need be said. If there is an appearance of solidity in any part of the argument, it is that the legislature'have not power to authorize an application of another’s property to a private purpose even on compensation made, because there is no express constitutional affirmance of such a power. But who can point out an express constitutional disaffirmance of it? The clause by which it is declared that no man’s property shall be taken, or applied to public use, without the consent of his representatives, and without just compensation made, is a disabling, not an enabling one; and the right would have existed in full force without it. Whether the power was only partially restrained for a reason similar to that which induced an ancient lawgiver to annex no penalty to parricide, or whether it was thought there would be no temptation to the act of taking the property of an individual for another’s use, it seems clear that there is nothing in the constitution *67to prevent it; and the practice of the legislature has been in accordance with the principle, of which the application of another’s ground to the purpose of a private way, is a pregnant proof. It is true that the title of the owner is not divested by it; but in the language of the constitution, the ground is neverthless “applied” to private use. It is also true, that it has usually, perhaps always, been so applied on compensation made; but this has been done from a sense of-justice, and not of constitutional obligation. But as in the case of the statute for compromising the dispute with the Connecticut claimants, under which the property of one man was,/ taken from him and given to another, for the sake of peace, the l end to be attained by this lateral railroad law, is the public pros-| perity. Pennsylvania has an incalculable interest in her coal mines; nor will it be alleged that the incorporation of railroad com-i panies, for the development of her resources, in this or any other! particular, would not be a measure of public utility; and it surely! will not be imagined that a privilege constitutionally given to an| artificial person, would be less constitutionally given to a natural one.
*66
*67The competency of the docket entry, the other part of the record being lost, is incontestable. A part of a record may always be introduced on proof that nothing which can be had remains'behind; and the proof of contents, to supply the place of the part lost, was as clearly competent.
Judgment affirmed.