No doubt it is in accordance with ordinary conceptions of right and justice that if the property of an individual be appropriated by the state for the benefit of the general public, compensation should be made to the one whose property is appropriated. Thus while the burden of providing for the public welfare would be thrown on a particular person, yet as the money to be paid is raised by taxation, bearing alike on all taxpayers, the burden is equalized. It is doubtful, however, whether in the absence of express constitutional provision, any legislature would be bound, in making provision for the exercise of the power of eminent domain, to provide that compensation must be paid. Such provision would be likely to be made as in accordance with public policy and expediency, but it does not necessarily follow that the exercise of the power of eminent domain, as one of the powers incident to government, would be a violation of the protection of property involved in the constitutional requirement of "due process of law," even though no compensation was provided for. This, however, is a matter of purely speculative interest, for the state constitutions practically without exception contain the requirement that just compensation shall be made as a condition of the exercise of the power of eminent domain, and the federal constitution (Amend. V) contains the same provision, which as already stated applies only to the federal government. It might, perhaps, be open to argument, whether the attempt on the part of a state to take private property for public use without just compensation would be a violation of the guaranty found in Amendment XIV to the constitution, which is expressly applicable to the states, but no such question is likely to arise. The cases decided by the federal Supreme Court with reference to the power of the state legislatures in the exercise of the right of eminent domain, have almost uniformly been determined under provisions of state constitutions, except where the question has been as to the exercise of such power by the federal government.

The requirement that just compensation be made is easily applied where the entire right and title to a distinct parcel of property, such as a certain tract of land owned and used independently of and without relation to other property of the same owner, is taken under the power of eminent domain. In such case, the compensation is the value of the property taken, estimated on the same basis as if disposed of for any other purpose, and in estimating such value it would be immaterial to consider whether some incidental benefit accrued to the owner from the public use to which the land taken was appropriated. If it is beneficial to the people of a community to have a public building erected in their midst, or a park established, or a railway constructed and operated, such benefit is common to many persons, and the fact that the owner of the land taken for such use is benefited thereby cannot well be considered for the purpose of decreasing the amount of compensation which he should receive for his land. Nor on the other hand, should the compensation be affected by an increase in the value of the land which would have resulted in benefit to the owner had the public improvement been made without the appropriation of his land. Just compensation will be the value of his land as it was before and without regard to the proposed public improvement. In some states there is an express provision that in estimating the compensation, presumptive benefits to the owner of the land shall not be considered. Thus by way of illustration, if the same individual owned two tracts of land possessed and used by him independently of each other, and if one tract should be taken for a public use, the fact that the other tract was thereby increased in value should not be taken into account as an offset to the compensation which he ought to receive for the tract taken, nor would it be competent to fix the value of the tract taken with reference to any advantage which would have beneficially affected its price had the public improvement been made without such tract being taken.

The measure of compensation becomes more difficult of determination where the thing taken is only an easement, that is, a right to a limited use of the land, as a right of way for a public highway or railroad; or where only a portion of a tract or one of several tracts used together for one purpose is taken. With reference to public highways and railroad rights of way, it is usually provided that the public or the railroad company, as the case may be, shall acquire only an easement, that is, a right to such use of the land taken as may be necessary for the purpose, leaving the owner still vested with the title, subject to the public use, and authorized to enjoy the land in any way consistent with the public use. Thus the owner of a strip of land taken for a public highway might, no doubt, take out coal or mineral from under such strip, provided that in doing so he did not interfere with the necessary support of the surface, and compensation should be made to him, not for the value of the strip, but the detriment he would suffer by its use for the designated purpose. When only an easement is being taken for a public use, it has been argued that possibly the benefit resulting to the owner with reference to his residuary right in the land thus subjected to an easement might be considered as lessening the damage to which he is entitled. But such a question could scarcely arise, for the residuary right would seldom be of such nature as to be susceptible of any benefit by reason of the establishment of an easement in it.

More serious difficulty is encountered when the right taken for a public use is only that of an easement in a portion of a tract of land, or a portion of one of several tracts, owned and used for a single purpose. Thus if a highway or railway is located through a tract of land used as a farm, is the owner of the farm entitled, by way of compensation, to damages sustained as to the entire farm, or only to the damage which he suffers as to the particular strip of land which is thus appropriated? And on the other hand, if his damages are to be computed with reference to the injury to his entire farm, may the benefits accruing to his farm, by reason of the location of the highway or railway, be taken into account? In attempting to answer the first of these questions, it must be borne in mind that the ordinary constitutional provision, requiring just compensation to be made, applies only to the person whose land is taken. The location or operation of a railway in close proximity to a man's land, occupied by him for a farm or residence or a like purpose, may be seriously detrimental, but it does not follow that under any constitutional provision he is entitled to compensation for such injury. The owner of land owns it subject to the contingency that he may be injuriously as well as beneficially affected by the lawful use of neighboring property. He may justly complain of a nuisance, that is, an unlawful use of other property which is peculiarly injurious to him; but a highway or railway or schoolhouse is not a nuisance in itself, and he must endure any discomfort or inconvenience which results. Thus one who has a dwelling upon a public street may be inconvenienced in the use of his premises or injured by depreciation thereof by reason of the location of a street railway along such street, but if the use of the street is lawful, he cannot say that he is entitled to damages. Much less can he contend that any property of his has been taken for public use without just compensation.

It could, therefore, be reasonably argued, that where a strip of land is taken for a railroad right of way through a man's farm, he is entitled only to the depreciation in value of such strip due to its being appropriated for a right of way, and not to any compensation for depreciation in value of the remainder of his land. But it is usual to provide, at least with reference to the taking of a right of way for a railway, that all the damages suffered by the land owner, a portion of whose land is thus taken, shall be allowed to him; and as a railroad company can exercise the power of eminent domain only under such conditions as may be imposed by the legislature, such provision, even if it allows to the land owner greater damages than he is entitled to under the letter of the constitution, will be entirely valid. Statutory provisions as to the compensation to be paid are usually given a somewhat liberal construction, and the land owner can generally get a compensation based upon an estimation of the injury to his entire premises, resulting from the taking of a portion thereof for a public purpose. As the injury to the portion of the premises not taken does not fall within the constitutional requirement of just compensation, it may be that as against such injury the benefit to the remainder of the premises resulting from the public improvement can be taken into account by way of offset; but this must depend rather on the construction of the statute than on any constitutional provision (Bauinan v. Ross).

Some state constitutions contain broader provisions than those above referred to, and require that just compensation be made, not only to those whose property is taken, but also to those whose property is damaged by reason of the appropriation of private property to public use. Especially interesting questions have arisen out of the construction of elevated railways in city streets, as to the right of the owners of property abutting upon the streets to have compensation for damages to their property, resulting from such construction; but the questions which have arisen in such cases depend for solution to so great an extent upon statutory provisions that no general rule can safely be announced. (See Story v. New York Elevated R. Co.) It must be constantly borne in mind that private property owners will frequently suffer injuries from the exercise of proper public authority for which they cannot, under any constitutional provision, secure redress.