ON Petition foe Reheabing.
McBbide, J.The appellant has filed an exceedingly earnest petition and brief for a rehearing.
Counsel insist that the court has overlooked one fact which renders the order of the board of commissioners establishing the highway in question void, and hence open to collateral attack.
It is argued that the record affirmatively shows a taking of the appellant’s property without compensation. If the fact assumed does affirmatively appear from the record, appellant is right in his contention. Section 21, of article 1, of the Constitution of the State, declares that “ No man’s property shall be taken by law without just compensation.” If the record of the board of commissioners, relating to the highway in question, affirmatively shows that the appellant’s land has been taken for the making of such highway, without compensation to him, the order purporting to establish it is not merely voidable, but is void. But is such fact shown by the record ? Appellant claims that it rests upon the report made by the viewers, of 11 no damage” to him. The substance of his contention is that the record showing the actual taking of his land for the highway, the *223inference of damage necessarily and conclusively follows, and that in the face of this inference the statement that he sustains no damage is without force; that it is conclusively overthrown by the fact that his land is actually taken. Subjecting one’s land to the easement of a highway is a taking, within the meaning of the constitutional inhibition, and land can not be thus appropriated without compensation.
This, however, does not necessarily require that compensation be made in money. This court, in considering this question, in the case of McIntire v. State, 5 Blackf. 384, used the following language : “ From this review of the statutes bearing on the question before us, and embracing the very time of the adoption of. the Constitution, we can not doubt that its authors, in providing that ‘ just compensation’ should be made for private property taken for public use, designed to convey the meaning which had been attached to that phrase by the community for more than seventeen years, and which has since remained unquestioned for a longer period oí time. That meaning is, not that property thus taken shall be valued and its price paid in money, but that the individual who claims to be a sufferer, in consequence of the exercise of the right of eminent domain over his property, shall be recompensed for the actual injury which he may have sustained, all circumstances considered, by the measure of which he complains. In ascertaining the extent of the injury, undoubtedly, an estimation of the value of the properly taken, at the time of taking, is a necessary step ; but if the benefits really and substantially resulting to the claimant equal, in pecuniary value, the value of that of which the public has deprived him, we conceive they constitute a just and constitutional compensation for the deprivation to which he has been subjected.”
The foregoing language was quoted and approved in Hagaman v. Moore, 84 Ind. 496.
In the case at bar, as stated in the orignal opinion, it being shown in the averments of the complaint that the board of commissioners had jurisdiction, both of the subject-matter *224and the parties, the same presumptions of regularity attach to their proceedings as would attach to the proceedings of a court of general jurisdiction. Unless plainly shown by the record, it will not be presumed that they have taken the property of the appellant in violation of his constitutional right. Such fact will not be presumed, because the report of the reviewers declares that he sustains no damage. On the contrary, the court, being required to indulge every presumption in support of the action of the board, must presume that, having considered the fact of the taking of appellant’s land, in connection with all other facts relating thereto, the reviewers and the board reached the conclusion that benefits enuring to the land by reason of the location of the highway equalled the damage caused by the easement imposed, and hence there was “ no damage.” This being true, the record discloses no fact which would render the proceeding void; nor is any such fact averred in the complaint. The appellant had a full and adequate remedy by appeal, but can not successfully collaterally attack the order establishing the road.
Filed. Jan. 28, 1892.Petition for rehearing overruled.