The defence in this case is based on the following provisions of chapter 132 of our General Statutes:
“ Section 1. Any person employed under an act of the congress of the United States, passed the tenth day of February, one thousand eight hundred and seven, and the supplements thereto, may enter upon lands within this state for the purpose of exploring, surveying, triangulating, levelling, or doing any other act which may be necessary to effect the objects of said acts, and may erect any works, buildings, stations, or appendages requisite for that purpose, doing no unnecessary damage thereby.
“ Sec. 2. If the parties interested cannot agree upon the amount to be paid for the damages caused by doing any of the acts aforesaid, either of them may petition the supreme court for the county in which the *592land entered upon is situate, for an assessment of said damages, who shall refer the same to the county commissioners for such comity, who shall hear the parties and make report, as in the case of assessing damages for land taken for highways; and other like proceedings shall be had thereon, as in such cases.
“ Sec. 3. The person so entering upon land as aforesaid may tender to the party injured sufficient amends therefor; and if the damages finally assessed do not exceed the amount so tendered, the person so entering shall recover his costs.”
I. The position was taken by the plaintiff’s counsel that this statute by its terms requires the assessment of damages for which it provides, and payment or tender of the sum assessed, to precede the taking of property under it, and that the defendant’s plea is defective, because it does not allege a compliance with this requirement of the statute. It is clear that this position cannot be sustained. The second section provides that “ if the parties interested cannot agree upon the amount to be paid for the damages caused ” — not the damages to be caused— “ by doing any of the acts aforesaid, either of them may petition the supreme court.” The third section provides that “ the person so entering upon lands as aforesaid may tender to the party injured ”— not to the party to be injured — “ sufficient amends therefor.” This plainly indicates that the intention of the legislature was that the taking should precede both the assessment and the tender. Nothing less than the most unequivocal language could justify us in holding that it ever could have been intended to provide that an assessment of damages to be caused by “ exploring, surveying, triangulating, levelling, or doing any other act which may be necessary ” should be made, — or that a party whose land was about to be entered upon for such purposes should be compelled to decide, at the risk of subjecting himself to costs, whether to accept the damages tendered to him, — at a time when it might and probably must be beyond the reach of any human power to ascertain what damages were to be done.
II. In the argument of this case, the power of a state to condemn property within its limits for the use of the United States was not disputed. Only four reported cases in which that question has ever arisen have fallen under our observation. In Reddall v. Bryan, 14 Md. 444, Gilmer v. Lime Point, 18 Cal. 229, and Burt v. Merchants’ Insurance Company, 106 Mass. 356, acts of the legislatures of Maryland, California, and Massachusetts, providing for the appropriation of lands for necessary uses of the general government, were severally sustained. In Trombley v. Humphrey, 23 Mich. 471, a similar act of the legislature of Michigan was held invalid. The weight of authority, therefore, is greatly in favor of the existence of such a power in the states, and, without having given to the subject so full a consideration as we might have done had the eminent counsel for the plaintiff not tacitly conceded it, we are of the opinion that the power does exist in the states. Perhaps it also exists in the United States — we are not prepared to say that it does not — but so far as we can discover it has never been *593exercised in a single instance; and we think it would be an unfortunate circumstance, if, for the want of friendly legislation in the states, or by reason of judicial decisions against the validity of such legislation, the United States should be compelled to exercise (or attempt to exercise), for national purposes, the right of eminent domain in the states, without the intervention of state authority.
III. But it was contended, on the part of the plaintiff, that the statute is unconstitutional, because the purpose for which it provides — that the property may be taken — is not a public use. That the reverse of this is true is very plain. A safe highway upon the ocean is as much a public necessity as a safe highway upon the land; and it is a matter of universal knowledge, that while the mariner traverses the high seas in comparative safety, he encounters perils on every hand as he approaches the shore. It is impossible to hold, that “to cause a survey to be taken of the coasts of the United States,” as is authorized by the acts of congress hereinafter cited, “ in which shall be designated the islands and shoals, with the roads or places of anchorage, within twenty leagues of any part of the shores of the United States, and also the respective courses and distances between the principal capes or headlands,” and “ an accurate chart of every part of the coasts within the extent aforesaid,” is not in every sense a public enterprise. It is not merely those whose lives and property are at the mercy of the winds and the waves, but the people of the whole country that have an interest in whatever diminishes the hazards of navigation, and renders commerce, the prolific source of national wealth and prosperity, more secure. All the great maritime nations of the world have made liberal expenditures for the promotion of their coast surveys: the government of the United States has expended from half to three fourths of a million dollars per annum to this object during many years past. The expediency of expending these large sums, or, in fact, any sums, in this way, is, however, a question not for us but for congress to decide, but that whatever sums ought to be devoted to this purpose may properly be appropriated by the general government admits of no doubt.
IY. It was also contended, on behalf of the plaintiff, that the statute, if held not to require the assessment and payment or tender to precede the taking, is unconstitutional, because it does not so require nor provide for a fixed and definite fund to secure the payment of the sum which may be assessed. No other ground of objection to the provision respecting compensation having been suggested, we may assume that the remedy provided for is an appropriate one in other respects. It may be remarked that the tender referred to in the third section of the statute relates only to the question of costs, and can have no effect on the right of a land-owner to maintain trespass, or of either party to petition for an assessment of damages. That section, therefore, has no bearing on the constitutional question just stated.
In Ash v. Cummings, 50 N. H. 591, this subject was carefully considered, and the decision was, that when an individual or a private cor*594poration is authorized by law to take private property for public uses, it is indispensable that the law should not only provide for an assessment of the damages, but should secure the appropriation of a definite and certain fund out of which such damages shall be paid ; but, in the opinion of the court (p. 621), Judge Sargent states, that “in cases where the state or a county or a town is to be made liable for the damages which an individual may suffer by having his property taken for the public use, it is not so important that the compensation should be paid or secured in advance, provided the law provides a certain and expeditious way of ascertaining and recovering it, bepause there the presumption and the fact are that these municipalities are always responsible.” “The decisions upon this point assume that when the state has provided a remedy, by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction, since the property of the municipality or of the state is a fund to which he can resort without risk of loss.” Cool. Const. Lim., 3d ed., 561. “A distinction is found in the books, which seems to have been recognized as settled, between property taken directly by the state; or a municipal corporation by state authority, and cases where it is taken by a private corporation * *. If taken directly by the state, it is not essential to the validity of the law that it should provide for making compensation before the actual appropriation: it is sufficient if provision is made in the law by which the party can obtain compensation, and a proper tribunal is provided for determining it.” Potter’s Dwarr. on Stats. 391.
In some authorities it has been laid down, that, even in the case of a state or municipality, where the compensation does not precede the taking, an adequate fund must be set apart as security for its payment; but if we adopt this view, we at once ignore the existence of any such distinction as has been generally recognized between an individual or private corporation, and a state or municipality. But this distinction seems to present more a question of fact than of law. Experience has shown that states, counties, and towns have sometimes repudiated their most sacred obligations ; but we have no knowledge that New Hampshire, or any county or town within its limits, has ever done so. In a state in which it cannot with truth be said that “ these municipalities are always responsible,” there might be as much necessity that they should provide a certain and adequate fund for security, as that individuals and private corporations should do so here.
By the original act of congress relating to the coast survey, approved February 10, 1807, 2 Stats, at Large 413, which is referred to in our General Statutes, ch. 132, sec. 1, the president of the United States is “ authorized and requested to cause a survey to be taken of the coasts of the United States, in which shall be designated the islands and shoals, with the roads or places of anchorage, within twenty leagues of any part of the shores of the United States, and also the respective courses and distances between the principal capes or headlands, together with such other matters as he may deem proper for completing *595an accurate chart of every part of the coasts within the state aforesaid.” By a supplementary act, approved July 10,1832, 4 Stats, at Large 571, being one of the “ supplements” referred to in the General Stats., ch. 132, sec. 1, the president is “ authorized, in and about the execution of the said act, to * * employ all persons in the land or naval service of the United States, and such astronomers and other persons as he shall deem proper.” By other “ supplements ” contained in annual appropriation bills, the act of February 10,1807, was continued in force a considerable portion of the time previous to 1832, and has been continued in force from year to year ever since.
To suppoi’t the defendant’s plea, it must therefore be shown, that in committing the supposed trespass of which the plaintiff complains, he was engaged in the execution of the act of February 10,1807, and the acts supplementary thereto, under the authority of the president of the United States. Liberal appropriations, covering the entire period embraced in the plaintiff’s writ, were made for the uses of that department of the coast survey with which the defendant was connected, by the following acts of congress “ making appropriations for sundry civil expenses of the government,” viz., — act of July 20,1868,15 Stats, at Large 112, §275,000 for the year ending June 30,1869 ; act of March 3, 1869, 15 Stats, at Large 302, §275,000 for the year ending June 30,1870 ; act of July 15,1870,16 Stats, at Large 303, §391,000 for the year ending June 30, 1871; act of March 3, 1871, 16 Stats, at Large 507, §391,000 for the year ending June 30,1872 ; act of June 10, 1872,17 Stats, at Large 362, §391,000 for the year ending June 30,1873; act of March 3,1873,17 Stats, at Large 519, §410,000 for the year ending June 30,1874. Various additional appropriations for the same object were made in deficiency bills during the same period.
That here was not a definite and certain fund, set apart for the payment of such sum as might be awarded to this plaintiff, may be conceded, but these large appropriations cannot be overlooked in determining the question before us, and we are unable to entertain a doubt that whenever the plaintiff’s damages, or those of any other land-owner, shall have been duly assessed by virtue of the statute under consideration, the sum assessed will be paid without unreasonable delay. That a judgment against an agent of the government, for damages caused by him in executing the requirements of an act of congress, under the direction of the president of the United States, will be promply satisfied, we hold to be reasonably certain. Whether a reasonable certainty in the opinion of the court that such damages will be promptly adjusted, although there may be no property, nor any definite and certain fund provided, to which an injured party can resort if the government should repudiate his claim, is sufficient to relieve the question from constitutional objections, will be considered in another part of this opinion.
But we are not called upon to decide whether a state law providing for the condemnation of land for the permanent occupation of the United States, as for a post-office or custom house, without compensation previously paid or secured, would or would not be unconstitutional. *596The question which we have occasion now to determine is, whether the defendant had authority to do the acts justified in his plea. It is not alleged that he has erected, as the statute authorized him to do, any “ works, buildings, stations, or appendages ” upon the plaintiff’s land. If the defendant should petition under the statute, it would not be for a transfer to him nor to the United States of any title to the land, nor of any right'to occupy it either permanently or temporarily hereafter ; it would only be for an assessment of the damages already caused. Whether a right might be obtained under a state law to enter on behalf of the United States for the purpose of occupying land permanently, without a previous assessment and payment of damages, is a question which does not arise in this case.
“ No constitutional principle, however, is violated by a statute which allows private property to be entered upon and temporarily occupied for the purpose of a survey and other incipient proceedings, with a view to judging and determining whether the public needs require the appropriation or not, and, if so, what the proper location shall be; and the party acting under this statutory authority would neither be bound to make compensation for the temporary possession, nor be liable to an action of trespass.” Cool. Const. Lim., 3d ed., 560. “In the construction of works of public improvement, as railroads or canals, for instance, before it is known what lands will be wanted, preliminary steps, such, for instance, as surveys, are indispensably necessary. These preliminary steps are in themselves a trespass, and may sometimes, as by the felling of trees, work actual injury to the proprietor. On the other hand, if payment be not made before the work is actually begun, then, if it be discontinued or left in an imperfect state, the owner might be entirely remediless. In such a conflict of interests the current of decisions seems to tend to establish the rule that the preliminary steps in regard to public works may be taken without making-compensation, but that before any definitive act be done toward the construction of the improvement which is in the nature of the assertion ol ownership, payment must be made or tendered, or a certain and adequate remedy be provided.” Sedg. Stat. & Const. Law, 2d ed., 467. “ It is settled that the legislature may authorize railway companies to enter upon lands for the purpose of preliminary surveys, without making any compensation therefor, doing as little damage as possible, and selecting such season of the year as will do least damage to the growing crops.” 1 Redf. on Railw., 5th ed., 258. It cannot be overlooked, that the trespasses referred to by Cooley, Sedgwick, and Red-field, although not ordinarily so extensive as those alleged to have been committed by this defendant, are quite similar in their character.
We are not aware that the power of the legislature to authorize an entry upon land for the purpose of making such surveys, being similar to those provided for in our Gen. Stats., ch. 146, sec. 6, has ever been questioned in this state. In Cushman v. Smith, 34 Me. 256, which was trespass against the defendant, who was in possession of a railroad as mortgagee, for running engines and cars over the plaintiff’s land, *597this question is elaborately discussed by Shepley, J., and it is held that “ to take the real estate of an individual for the public use is to deprive him of his title to it, or of some part of his title, so that the entire dominion over it no longer remains with him,” and that “ the exclusive occupation of that estate temporarily, as an initiatory proceeding to an acquisition of a title to it, cannot amount to a taking of it in that sense.” We are not prepared to hold that a substantial injury to real estate, as by the destruction of trees growing upon it, does not constitute a taking of it, within the meaning of the constitution— see Eaton v. B. C. & M. Railroad, 51 N. H. 504, 511; but the application of the doctrine of Cushman v. Smith, to preliminary surveys, seems to be settled by the authorities.
If trespasses of a temporary character may be lawfully committed by a private corporation, in a work preliminary to the construction of a railroad, without compensation at any time, may they not be lawfully committed under the direction of the president of the United States, in executing the provisions of an act of congress with ample provision for the assessment of damages, without requiring payment or security in advance ? May trees be constitutionally cut, without any compensation, by a private corporation preparatory to constructing a railroad, which cannot be constitutionally cut by the president for an important public use, without payment or security in advance ? Perhaps the injury done by the latter would ordinarily be greater than that done by the former, but can the constitutionality of their acts depend upon the extent of the injury done ?
Whatever reasons may have induced courts to decide that the temporary injuries to which we have referred may be allowed without violating any constitutional rights, a satisfactory ground upon which such decisions may be sustained is the doctrine of necessity. Those decisions were simply unavoidable. It is necessity, in a great degree, which justifies the right of eminent domain in all cases. In Bloodgood v. Mohawk & Hudson Railroad Co., 18 Wend. 9, 17, a leading case on this subject, which has been cited as decisive in his favor by the plaintiff’s counsel, the Chancellor, in holding that “before the legislature can authorize the agents of the state, and others, to enter upon, and occupy, or destroy, or materially injure, the private property of an individual, except in cases of actual necessity which will not admit of any delay, an adequate and certain remedy must be provided whereby the owner of such property may compel the payment of his damages,” recognizes that there may be cases of necessity in which the rule he lays down will not apply. A similar exception is recognized in other authorities, which sustain the doctrine of Bloodgood’s case. “ The settled and fundamental doctrine is, that government has no right to take private property for public purposes without giving a just compensation ; and it seems to be necessarily implied that the indemnity should, in oases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain.” 2 Kent Com., 12th ed., *598389, note/. “ The maxim of law is, that a private mischief is to be endured rather than a public inconvenience. On this ground rest the rights of public necessity. If a common highway be out of repair, a passenger may lawfully go through an adjoining private enclosure.” 2 Kent Com., 12th eel., 338; Broom’s Maxims 2. The inconvenience of procuring an assessment of damages, or of giving security for their payment in advance of an actual appropriation of land as a site for permanent buildings, or as a reservoir for purposes of flowage, cannot be serious, but in the case of temporary surveys this would be either impossible, or so far impracticable, as to render a right to enter, subject to such conditions, of little or no value, and would greatly obstruct, if not altogether defeat, important public improvements. Does not this case' present another instance in which the doctrine of necessity may be properly invoked ?
The practical effect of holding that the defendant could not enter upon the plaintiff’s land for the necessary purposes of the coast survey, or that he could not do any substantial injury there after he had entered, without previously paying or securing him for the damage to be caused, would be to deny the right altogether. An assessment of the damages previous to the entry, or even previous to the injury, would be absolutely impossible. The damage which might be done to a land-owner by an entry upon his land “ for the purpose of exploring, surveying, and triangulating the said coast, and for the purpose of levelling the same and doing any and all other acts necessary to effect the objects of the said several acts of congress,” could rarely if ever be ascertained in advance. At what points the agents of the government might need to erect temporary works, or over what lands they might have occasion to construct temporary roads, no human power could tell before entry. What trees or tree-tops or branches it might become necessary for them to remove from the line of sight could not possibly be ascertained, except by an actual experiment upon the ground. Obviously there could be no hearing before the commissioners for the assessment of the damages until after the mischief was all or nearly all done.
The views of Richardson, C. J., in Lebanon v. Olcott, 1 N. H. 345, in overruling an objection to the constitutionality of a statute similar to that taken in the present case, upon the ground that “ until it was ascertained by experiment to what extent it would be necessary to erect dams to accomplish the object, and to what extent such dams would cause the water to overflow roads and lands, there could have been no certain data by which such damages could have been ascertained,” and that “ any opinion of the selectmen on the subject must have been at best only vague and uncertain conjecture equally unsafe to all the parties as a ground of decision,” though perhaps not applicable to the case then before the court, might be appropriately expressed upon the case now before us.
But it is said that it would not be impossible to provide for security previous to the entry. Probably it would not; but we think it would *599be entirely impracticable. If security were required, there must be a tribunal to decide upon its sufficiency ; and it would seem that to make it a security in fact as well as in name, there must be notice to the parties interested, and a hearing upon the question how much injury was likely or liable to be done, and what degree of security was needed. Until these proceedings had been had, the party entering, though committing only a technical injury, would be a wrong-doer, and liable to be forcibly resisted, and his operations must be stopped from step to step while petitions were being prepared, notices given, hearings had, reports made, and security furnished.
The provision in the constitution of the United States, cited by the plaintiff’s counsel, which prohibits the taking of private property for public use without just compensation, was not intended to restrain the authority of the states. Withers v. Buckley, 20 How. 84. The framers of our own constitution appear to have reposed so much confidence in future legislatures and courts, that, although they provided that “ no part of a man’s property shall be taken from him or applied to the public uses without his own consent or that of the representative body of the people,” they were not sufficiently solicitous on the subject of compensation to insert any provision respecting it. While it has been considered that “ natural justice speaks on this point where our constitution is silent,” — Richardson, O. J., in Bristol v. New Chester, 3 N. H. 524, 585, — and that a condition requiring compensation is to be implied, it is not reasonable to suppose it ever could have been intended that the appropriation of property necessary to the public use, in a case in which it should be utterly impossible to ascertain the damages in advance, and utterly impracticable to give security in advance for their payment, should be frustrated, notwithstanding the highest tribunal of the state was satisfied that a suitable provision for the assessment of the damages had been made, and that prompt payment of such damages when assessed was reasonably certain. A. theory of constitutional rights, which requires so much for the purpose of securing so little, seems quite too fanciful to be sustained. Still, it is insisted that, however inconvenient or embarrassing it may be to give security in cases like the present, it is unconstitutional to permit an entry or injury without it. We may ask the advocates of that doctrine what prevents its being unconstitutional after the security has been given. The answer must be, because by means of the security the ultimate payment of the damages becomes reasonably certain. But we are of the opinion that, in the case of an entry or injury, under the statute in controversy, by an authorized agent of the United States, the payment is reasonably certain without security.
If there must be security in such a case, we have not been informed by the plaintiff’s counsel how it shall be given. It might be by a satisfactory bond. Then, suppose it should be held that it would not be unconstitutional to authorize this defendant to enter upon land for the necessary purposes of the coast survey, provided that he should first give a bond, with three sufficient sureties, as security for the payment *600of damages. But the same defendant and the same sureties might be selected to act jointly as the agents of the government in entering upon the same land in the same way for the same purposes. Must they also give a bond with three additional sureties in order to meet a constitutional objection ? It is difficult to see how, if one were liable as principal and three as sureties, the security could be considered greater than if the whole four were liable as principals in the first instance. On the contrary, it is easy to see that a land-owner might be quite as certain to receive his compensation promptly in some cases without security as in others with it. Perhaps it may be suggested that it would be preferable to require that the security should be given, not by a bond, but by a deposit of a sufficient sum in a reliable bank, or by a large appropriation set apart exclusively for the payment of such judgments as should from time to time be recovered against it. But the most solvent bank might become insolvent, and the appropriation, though not diverted from its purpose, might be exhausted without discharging all of the judgments recovered; and it is plain that there might be cases in which, without any security, the certainty of payment would be as great as in other cases after the deposit or appropriation had been made.
How a statute authorizing an entry upon land, provided that the party entering should first give security to the satisfaction of the court for the payment of damages when assessed, would be any less constitutional if it also empowered the court to dispense with security upon satisfactory evidence that there was a reasonable certainty of payment without it, we are unable to see. If it contained no provision for ascertaining in advance whether any or what security was needed, the case would be different, because the legality of the entry, and the right of the land-owner to resist it with force, could not be made to depend on the result of a subsequent investigation as to the necessity for security. But if the legislature, for reasons deemed by the court satisfactory, as in the case of an entry by an authorized agent of the government, dispenses with security upon the ground that none is needed, we are at a loss to peceive how the statute can be considered any less constitutional than if it authorized the court to dispense with security upon satisfactory proof that it was unnecessary.
For aught that we can see, the question, whether there is a sufficient certainty that the damages when assessed will be promptly paid, must rest in the discretion of the court, or it must be held that payment must in all cases precede the taking or injury, and that whenever that shall be impossible there can be no lawful taking or injury. We see no middle course. Compensation can be made reasonably but not absolutely certain. It is not absolutely certain in the case either of an individual or pi'ivate corporation, or of a state or municipality, even where a fixed and definite fund is provided as security for payment. It is not impossible that the individual, private corporation, state, or municipality may become bankrupt, and the fund which may be deposited as security may be lost by a burglary or defalcation. It seems to be *601conceded that, where a definite and certain “ fund ” is provided which is deemed by the court to be adequate security, the appropriation of land becomes complete, and the owner’s dominion over it ceases. Though the payment of compensation is reasonably certain, it may even in that case never come ; yet his property is gone. What more than that can be said against a taking of property by virtue of the statute in controversy ?
It is clear that, in cases in which it is impossible to ascertain the amount of damages in advance, a reasonable certainty of payment is all that should be required. Perhaps this position may not be controverted. Perhaps the question to be determined really is, whether the prompt payment of compensation under this statute is reasonably certain. As we have already intimated, this seems to call for a conclusion upon a question of fact rather than upon a question of constitutional law. Upon that question we cannot doubt. We do not consider the credit of the government, or the good faith of its agents employed, or likely to be employed in the service of the coast survey, sufficiently open to suspicion to justify us in holding that prompt payment of damages assessed under this statute is not reasonably certain. It is as certain, for aught we know, as prompt payment of fees to jurors or witnesses on behalf of the government, who are required, without payment in advance, to attend court at the pleasure of the government, sometimes travelling long distances for the purpose.
“ Courts will not declare a statute void, as being contrary to the provisions of the constitution, unless the nullity and invalidity of the act are placed, in their judgment, beyond all reasonable doubt.” Rich v. Flanders, 39 N. H. 305.
“ But it is to be borne in mind, that in determining the question whether a statute is within the legitimate sphere of legislative action, it is the duty of courts to make all reasonable presumptions in favor of its validity. It is not to be supposed that the law-making power has transcended its authority, or committed under the form of law a violation of individual rights. When an act has been passed with all the requisites necessary to give it the force of a binding statute, it must be regarded as valid, unless it can be clearly shown to be in conflict with the constitution. It is therefore incumbent on those who deny the validity of a statute to show that it is a plain and palpable violation of constitutional right. If they fail to do so, or leave room for a reasonable doubt upon the question whether it is an infringement of any of the guaranties secured by the constitution, the presumption in favor of the validity of the act must stand.” “ Unless we can say that such a provision [as was made in the case then under consideration] affords no reasonable guaranty that the persons injured will receive compensation, we cannot adjudge the statute to be unconstitutional.” Bigelow, C. J., in Talbot v. Hudson, 16 Gray 422, 431.
We are of the opinion that the statute in controversy lias not been “ clearly shown to be in conflict with the constitution; ” that it has not been shown to be “ a plain and palpable violation of constitutional *602right; ” thafftliere is “ room for a reasonable doubt upon the question whether it is an infringement of any of the guaranties secured by the constitution ; ” that it cannot be truly said that the provision relating to damages “ affords no reasonable guaranty that the persons injured will receive compensation ; ” and that, tried by these tests, the statute cannot be held to be unconstitutional.
V. The further point was made, in the argument for the plaintiff, that he must at least be entitled to maintain his action until an assessment and payment or tender have been made. Upon this point the plaintiff’s counsel have relied on Ash v. Cummings, 50 N. H. 591, in which it was held that the flowage act of 1868, although it provides for an assessment of the land-owner’s damages, does not take away his right to maintain an action of tort at common law to recover damages for such flowage, until there has been an assessment of damages under the act, and a judgment rendered for the damages so assessed, and the amount of such judgment has been paid or tendered to the person aggrieved or damaged. But that act, after pointing out the proceedings to be had for obtaining an assessment of damages and judgment thereon, expressly provides that “ no person or corporation shall derive any title from said proceedings, or be discharged from any liability in relation to said premises, until he or it has paid or tendered to the person aggrieved or damaged the amount of such adverse judgment; ” and the decision in that case upon this point was founded on this provision. “ That an action of tort cannot be maintained for the doing of an act duly authorized by law” is laid down by Judge Sargbnt in the opinion of the court (p. 616) as “ well settled and it is held by the court in the present case that the acts stated in the defendant’s plea were “ duly authorized by law.” “A recovery cannot be had upon a declaration at common law when the evidence shows the grievances to consist of acts authorized by statute, and a specific remedy is given fol' the same by the statute.” Henniker v. Contoocook Valley Railroad, 29 N. H. 146, 152. “ It is not to be forgotten, however, that the proceedings for the assessment and collection of damages are statutory, and displace the usual remedies; that the public agents who keep within the statute are not liable to common-law actions.” Cool. Const. Lim., 3d ed., 564. “It seems to be well settled, notwithstanding some exceptional cases, that the remedy given by statute to land-owners for injuries sustained by taking laud for railways is exclusive of all other remedies, and not merely cumulative.” 1 Redf. on Railw., 5th ed., 334. It cannot be held that the party injured in a case like the present may maintain his action at common law so long as the party entering has not procured — or has not attempted to procure — an assessment under the statute. “Where either party has power to carry into effect the statute remedy, one cannot be in fault more than the other for not beginning first.” Marcy, J., in Calking v. Baldwin, 4 Wend. 672. Either party might have put the special remedy in operation in the present case as soon as the alleged trespasses were committed, and we are of the opinion that no other remedy was open to the plaintiff.
*603VI. The only remaining ground relied on by the plaintiff’s counsel is, that the property taken by the defendant was not necessary for the purposes of the coast survey. This is a question not of law, but of fact. That triangulations, taken at points remote from the ocean, may be necessary to a correct survey of the coast, is well understood; but whether it was reasonably necessary for the defendant to go upon the plaintiff’s land for such a purpose, is a question for the jury to determine. The plea states that the defendant was employed bv the United States, under the several acts of congress relating to the coast survey, for the purpose of making a survey of the coast of the United States, and that he “ entered the plaintiff’s close for the purpose of exploring, surveying, and triangulating the said coast, and for the purpose of levelling the same, and doing any and all other acts necessary to effect the objects of the said several acts of congress, and then and there cut down said trees and wood, and committed the said supposed trespasses in the plaintiff’s said writ mentioned, to effect the objects of the said several acts of congress, then and there doing no unnecessary damages thereby.” To support this plea, the defendant must show that he entered upon the plaintiff’s land for the purposes stated, and that the supposed trespasses were reasonably necessary to effect the objects of said acts of congress, otherwise his defence will fail, and he will be liable in this action.
Demurrer overruled. *
The foregoing opinion was necessarily furnished to the reporter before the following dissenting opinion was prepar^ Every position is considered in this opinion which it was known or anticipateipould be taken in the dissenting opinion.