delivered the following dissenting opinion:
I dissent from the foregoing opinion in almost every particular.
*72I think the circuit judge was strictly correct in his holdings upon the questions raised by demurrer to the pleas, and in his charge to the jury.
To my mind the doctrine that the Legislature has attempted to, or could, if it had so attempted, delegate the right of eminent domain to .a corporation, leaving that corporation to be its own judge, construe the law for itself and confiscate the property of a citizen to its own use without just compensation, is simply monstrous.
Even if section 1119 is a general amendment to railroad charters (and I do not think it is), still it is only an authority tó proceed in a proper way, according to the forms of law, in a mode prescribed, either to purchase by private contract, or if that shall fail, to have the land condemned upon a just and fair estimate of its value, which must be paid before the corporation has the right to use of a way over the land, as we have holden in two cases. . Otherwise we, in my opinion, violate — in fact, abrogate — a positive ordinance of the constitution. Under the opinion of the majority, as I understand it, the landowner need not be consulted at all. No prescriptive right has accrued to the corporation, and it is a trespasser.