*It must be remembered that the right of eminent domain authorizes the taking of private property by the sovereign, first, for public purposes; and, second, on making or providing for compensation. But one of these conditions is as essential as the other; and it is only when both are regarded, that private property can lawfully be taken. It follows, therefore, that if there be no public necessity, there is no public right; and that land taken by the sovereign, without such necessity, although for compensation, is unlawfully taken, (u)

It would seem, however, that this right to compensation is confined to him whose property is taken, and does not extend to him who is indirectly damaged by the taking or the use of another's property; as for example, by the loss of a mill-stream diverted from its former course by a railroad company in the construction of its road, (uu) So it is held that private property, if destroyed to arrest a fire, is not "taken for public use" within the meaning of the Constitution, (uv)

Let us now recur to the question we first asked, whether a grant with a covenant that the property or franchise granted * should be forever free from taxation, can be supported.1 Again, we admit, that no certain answer can now be given to this question. But, as before, we say that if this covenant prevents all future taxation, in fact it must be void; because every legislature has the right to determine what property shall be taxed, without regard to what may have been done by a preceding legislature, and without the power of bindsubstantial use might be made of all these railroads without interfering with the plaintiff's; and no use of them, in terms, infringed upon the charter of the plaintiffs. But the court held, that the charter of the Lowell Railroad was, in all its provisions, constitutional and legal, and that the three defendant railroads, by their conjunction, interfered with the rights secured by the charter of the Lowell Rail-road, and on that ground granted the injunction prayed for.

(u) That if the public interest does not require it, private property cannot be taken for public uses, although compensation be provided. See Beekman v. The Saratoga & Schenectady R. R. Co.

3 Paige, 45; West River Bridge Co v. Dix, 6 How. 543, 544, 546. Per Wood-bury, J.: "The franchise of an existing highway cannot be taken for a new highway of the same character, laid out upon the old one; for that would be essentially transferring A's property to B." Boston Water Power Co. r. Boston & Worcester Railroad Corporation, 23 Pick. 393. And that the compensation must be as absolutely certain as that the land is taken, see Warren v. Lyons City, 22 la. 351.

(uu) Arnold v. Hudson River R. R. Co. 49 Barb. 108.

(uv) McDonald v. Red Wing, 13 Minn. 38. '

1 It now seems to be settled that a State may for valuable consideration make a binding contract exempting property from future taxation. University v. Illinois, 99 U. S. 309; New Orleans v. Houston,l19 U. S. 265; Cooley, Const. Lim. (6th ed) 338. An exclusive and irrevocable right may be given to lay gas pipes or water pipes in the streets of a city. New Orleans Gas Co. v. Louisiana Light Co. 115 U.S. 650; St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64.

ing a subsequent legislature. But this covenant or promise may be supported, and no such consequence follow; for the property thus exempted may be taxed, and compensation made. It might be said that it involves an absurdity to suppose a legislature, laying a tax of an hundred dollars, and voting the same sum to be paid to the taxed party; and it must be precisely that sum, or it would not be compensation. And the effect would be only to put the State to the trouble and expense, first, of collecting the tax, and then of paying the money. But while it may be true, that if money be paid in compensation, it must be the same sum that is taken, it is not true that the compensation must necessarily be made in money. It is at least supposable, that there may be other modes of compensation equally just, satisfactory, and expedient. And then the whole case might be brought, by construction, within the principle of something given, which may be resumed upon compensation. The argument, that if the legislature are permitted to have this power, they might carry it to an excess which would seriously impair the resources of the public, applies as well to many of their important and unquestionable powers, of which the abuse is easy and might be very injurious. Moreover, if the exercise of this power, and in this way, was carried to an extreme, the grant or contract might, perhaps, be annulled, as a constructive fraud, (v) For, in such a case, it might be inferred, not only that the agent of the public is opposed to the will and injures the interests of his principal, but that this misconduct must have been obvious to the party benefited by it; and the general principles of agency and of contracts would avoid such a transaction, (w)

(v) Piscataqua Bridge v. N. EL Bridge, 7 N. H. 63, 64.

(w) In the State of New Jersey v. Wilson, 7 Cranch, 164, it was held that an act of the legislature of New Jersey, giving effect to an agreement between the tribe of the Delaware Indians and the commissioners of New Jersey, for an exchange of lands, and declaring that the lands to be purchased for the Indians "shall not hereafter be subject to any tax," by virtue of which the proposed exchange" was subsequently effected, constituted a contract; and a law repealing the section exempting the lands purchased from taxation, was held unconstitutional, although the Indians had, after the exchange, obtained a legislative act authorizing a sale of the lands, and when taxed they were owned by their vendees. Mar-shallt C. J.: "Every requisite to the formation of a contract is found in the proceedings between the colony of New Jersey and the Indians. The subject was a purchase, on the part of the government, of extensive claims of the Indians, the extinguishment of which would quiet the title to a large portion of the province. A proposition to this effect is made, the terms stipulated, the consideration agreed upon; which is a tract of land with the privilege of exemption from taxation; and, then, in consideration of the arrangement previously made, one of which this act of Assembly is stated to be, the Indians execute their deed of cession. This is certainly a contract, clothed in forms of unusual solemnity. The privilege, though for the benefit of the Indians, is annexed, by the terms which created it, to the land itself, not to their persons. It is for their advantage that it should be