The defendant justifies.under the provisions of the 8th section of the act of February 16, 1849, to authorize the city of Cleveland to subscribe to the capital .stock of the Cleveland and Pittsburgh Railroad Company, and for other purposes. 47 O. L. 149. That section empowered the company to agree with the owners of land, etc., needed for the construction or repair of their road, for the purchase, or use, or occupation of the same; or, if they could not agree, or if any of the owners were married women, infants, or insane persons, or out of the county in which' the land, etc., was situated, either party might apply to any court of record of the county in which the land lay, or to any judge thereof in vacation, whose duty it was to appoint by warrant three disinterested freeholders of the county, to appraise the damages which the owner of the land might sustain by the appropriation ; who, upon oath, were required to consider the benefit as well as the injury which such owner would sustain by reason of said railroad, and forthwith return their assessment of damages to the clerk of the court, setting forth the value of the property taken, or damage done to the property, the amount of benefit conferred, and the difference assessed to the owner. This award the clerk was required to file and record ; and the company, on paying or tendering the amount, or securing the payment to the satisfaction of the court or judge issuing the warrant, was authorized to hold the property for the uses and purposes for which the same was appropriated.
The special plea of the defendant sets up regular proceedings instituted by the company under this section, alleging notice to the plaintiff of the appointment of appraisers, and his appearance before them, and full payment of the damages awarded.
The demurrer to this plea draws in question the constitutionality of the section referred to ; and, in the argument, it is claimed to *145be repugnant to the constitution of 1802, under which it was enacted, and under which these proceedings were had, because, 1st, It allows benefits conferred to be set off against the value of the land appropriated, in making compensation to the owner; and because, 2d, It fails to afford just compensation to the owner of land appropriated, in not providing a proper tribunal to assess the damages sustained.
In both these particulars, which are pressed upon our attention with earnestness and ability, it is said to violate the 4th section of the 8th article of that instrument, which provided that “ Private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation be made in money to the owner.”
So far as this argument proceeds upon general principles, it is impossible not to see, that it involves a repudiation of repeated decisions made by the court of last resort, sitting under that constitution, and treats as open, questions which those decisions were intended to settle and close. In the case of Symonds v. The City of Cincinnati, 14 O. R. 147, which was very fully argued and maturely considered, the direct question was presented, “ whether the defendants could set off against the value of the plaintiff’s property, appropriated for public uses, any increased benefit, arising from the improvements made by the city to the balance of the lot ?” And it was held, that such deduction could properly be allowed. The opinion proceeds upon the ground, that the constitution only requires compensation to be made, and that it is made when the party receives in money the difference between the value of his property before, and what remains after, the work is constructed.
In Willyard v. Hamilton, 7 O. R. 111, pt. 2d, the position was taken, that the owner was entitled to have the value of his property fixed by a jury, and that the. legislature could not compel its assessment by commissioners. But the court were of a different opinion, and very conclusively show that the proceeding neither belonged to a court of justice, nor was it one of the cases in which a jury trial was guaranteed by the constitution. Whatever of doubt there might have been about these questions orig*146inally, we are not disposed, at this late day, and after that constitution has ceased to exist, to depart from a construction which was universally acted upon by the legislative and judicial departments of the government, while it was in force. For myself, I am free to acknowledge, that I should have adopted a different rule of compensation, and should have held the owner entitled to the fair cash value of the property taken, without any regard to the effect of the improvement upon his other property. But I am bound to admit, that some strong reasons may be given for the rule adopted, and it certainly has much of judicial support in other States; while I do not consider it my duty to interpose my individual opinion against ¡such a weight of authority, when it is certain to open up a multitude of controversies, not only where lands have been appropriated by corporations for turnpikes, railroads, etc., but in respect to all the public roads and canals of the State. It seems much more in accordance with a sound public policy, to adopt the construction uniformly acted upon by those who lived under and administered that instrument; especially in view of the fact, that all cause of complaint has been removed by the present constitution.
Upon the questions presented in the other case, I do not see much room for doubt. Whatever may be the theoretical foundation of the right of eminent domain, it is certain that it attaches as an incident to every sovereignty, and constitutes a condition upon which all property is holden. When the public necessity requires it, private rights to property must yield to this paramount right of the sovereign power. We have repeatedly held that the character of the work for which the property is taken, and not the means or agencies employed for its construction, determines the question of power in the exercise of this right. It requires no judicial condemnation to subject private property to public uses. Like the power to tax, it resides with the legislative department, to whom the delegation is made. It may be exercised directly or indirectly by that body; and it can only be restrained by the judiciary when its limits have been exceeded, or its authority has been abused or perverted. But the constitution has fixed an indispensable condition to its exercise. Full *147compensation must be made to tbe owner, before the property-can be taken. A fair and equitable mode for ascertaining the amount of this compensation, and an undoubted fund from which to pay it, must in all cases be, provided, as a necessary part of the proceeding to appropriate. Foote v. City of Cincinnati, 11 O. R. 408.
We see nothing in the law notv drawn in question to distinguish it from those already sustained, so far as the rule of compensation is concerned. An impartial tribunal is certainly provided for ascertaining it. It must consist of three disinterested freeholders of the county, selected by an impartial judicial tribunal, at the instance of either of the parties. They must act under oath, and upon actual view of the property appropriated. If any of these are wanting, their action is unavailing. It might have been more judicious to have provided for reviewing their determination. But this was a matter of legislative discretion, not to be revised by the judiciary.
It was certainly important that the adverse party should have notice of the action of the appraisers, in order that he might point out to them such circumstances as were calculated to enhance the value of the property, or the damages sustained. But, allowing this to have been indispensable, it is averred that he had such notice, and did actually appear before the appraisers. Where this is done, we do not think the omission in the act to require it, can be made use of ,to invalidate the proceeding. It is no part of the duty of the appraisers to hear evidence or arguments. This has never been required in any of our laws, prior to the adoption of the present constitution. They'proceed upon actual view of the property taken or injured, and from the information thus derived, make the appraisal or assessment. We think the plea sufficient; and the demurrer must therefore be overruled, and the cause remanded for further proceedings.