possibility that the Supreme Court may construe the eminent domain clause in the constitution as preventing the taking of a fee unless the court finds, in the particular case, that a fee is necessary. (5) A separate section was inserted in the constitution of 1870 which authorizes the condemnation of the property and franchises of corporations and which guarantees a jury trial on the issue of compensation in proceedings by and against corporations. This provision is found in several states but the Supreme Court of Illinois has said that this provision adds nothing to the general eminent domain clause. The elimination of this clause, however, might be construed as affecting the law in some way. (6) The taking and damaging of lands for drainage purposes was authorized by a separate provision in the constitution of 1870. The clause was later amended so as to authorize th organization of drainage districts, and the levying of special assessments to pay the cost of such improvements. Similar provisions are found in the constitutions of about one-third of the states; in many others the same result is attainable under the general eminent domain clause. (7) A special provision was inserted in the constitution of 1870 which authorized the taking of land for roads for public and for private use. It had been held, under the constitution of 1848, that the taking of land for a private road was not a public use and that a statute which authorized such a taking was unconstitutional. Similar provisions are found in several states.

Construction placed upon other features of the eminent domain clause. (1) Property is taken for public use when it is taken by an agency of the state and actually employed by it in the discharge of governmental functions. It is also taken for public use when the property so acquired is made available for actual use, by the public or by a relatively large group of persons, under governmental supervision, in a manner which is in furtherance of an otherwise legitimate governmental function exercised in the interests of the general welfare. Public parks furnish an illustration. Property is also taken for public use when it is actually employed by private persons in connection with enterprises in which the public possesses such an interest that the law is justified in imposing upon them the duty to serve all upon conditions prescribed by law. The taking of property by public service companies is justified on this ground. Property is also taken for public use when it is actually employed by private persons in some private enterprise, not a public utility, but which is of a nature that the interests of the public are thereby promoted. The taking of land which is both for private and public use as a road and the taking of land for drainage purposes fall within this group, although the power to take in these cases is based on express provisions of the constitution of Illinois. Generally speaking, the term "public use" as used in the general eminent domain clause does not include such purposes.

(2) Property already devoted to public use may be taken for other public uses. It is for the law-making body to declare under what circumstances such property may be taken for other uses. Under a general grant of the power of eminent domain the courts hold that property already devoted to public use may be taken only when the new use will be a different use. Except in the typical cases of the projection of railways across streets and other railways and of streets across railways, the courts are strongly inclined to hold that a general grant of power to condemn does not authorize a taking of property already devoted to public use.

One situation in this state calls for special mention. In the case of South Park Commissioners v. Ward, the court held that an act of the General Assembly was unconstitutional which expressly authorized the South Park Commissioners to condemn the rights of property owners along Michigan Avenue, to have Grant Park kept free from buildings, which rights were acquired under a dedication to public use of the land comprising Grant Park under restrictions imposed by the dedicators-the Canal Commissioners and the United States-and accepted by the City of Chicago; the statute also authorized the South. Park Commissioners to permit the construction, in the park, of any museum then located in a public park. The decision was strongly dissented from by three members of the court. Some commentators upon the case justify the decision upon the ground, (a) that the state had no power to rid itself of these restrictions because they were imposed by the United States; and (b) it is possible that the decision means that a governmental agency cannot be authorized to condemn land for the purpose of aiding a private corporation, the Field Museum, which did not itself possess the power of eminent domain. The decision was not based upon either of these grounds. Other comments upon the case are to the effect that it is without precedent in the law of eminent domain. The importance of the case lies in the fact that the decision may be interpreted as meaning that in all cases where property is dedicated to public use under restrictions and accepted by the state or by any of its agencies, the state is powerless to remove the restrictions, even though the necessity therefor may have ceased because of changed conditions. Such a result as this might often prove to be an obstacle of a serious nature.

(3) A taking of property includes the taking of the fee and of easements in land; the imposition of additional servitudes upon land; easements in which, for specified purposes, have been previously acquired; the taking of riparian rights; the removal of support of land, and all direct physical injuries to the property, such as the overflowing of lands. When part of a tract is taken and the remaining part is injuriously affected, the consequential injury constitutes a taking. These rules have remained substantially unchanged under all three constitutions and are practically the same as in other states.

(4) The damaging of property consists in the infliction of special injury to rights, usually of a non-physical character, the effect, in

1248 Ill. 299: (1911).

general, being to impose liability for the damaging of property for public use to the same extent as is imposed upon private persons at common law for causing similar injuries. There is no right to compensation for speculative damage or for general damage, such as is sustained by the community in common, or for the destruction or damaging of property under the police power. Damage inflicted under the police power is usually of a general character and therefore no right to compensation exists, or where special, as in the case of the killing of diseased animals, there is no constitutional right to compensation on the theory that no right, which is superior to the public needs, has been infringed. These rules are practically the same in other states where the damage clause is found in the eminent domain provision.

(5) The measure of compensation in case of a taking is the fair cash market value of the property taken.

(6) The measure of compensation where part of a tract is taken and the part not taken is damaged, is the fair cash market value of the part taken, plus the difference between the fair cash market value of the part not taken before and after the taking.

(7) The measure of compensation when part of a tract is taken, and the part not taken is specially benefited, is the fair cash market value of the part actually taken. The special benefit cannot be set off against the value of the part taken. Under the constitutions of 1818 and 1848 such special benefit could be set off. The rule in most states, either as a matter of construction or of special constitutional provision, is that, in takings by governmental agencies, special benefit may be set off against the value of the part taken. It has been argued in this state, that, in as much as all governmental agencies do not pos sess the power of levying special assessments, the rule in Illinois should be changed so as to allow the set-off of benefits by governmental agencies.

(8) Where part of a tract is taken, the elements of special benefit to the part not taken may be considered as against special damage to such part in order to determine whether the parcel not taken has been specially damaged or specially benefited.

(9) Where no property has been taken and where the right to compensation is based on the ground that the property has been "damaged", elements of special benefit may also be taken in consideration, i.e. set-off against special damage, in determining whether the tract has been damaged.

(10) A taking of property will be enjoined until compensation is paid, although after compensation has been ascertained in the condemnation proceeding, the condemning authority may enter into the temporary possession of the premises upon giving the required appeal bond. This rule has always been in force in Illinois, although none of the constitutions have expressly required prepayment. The Attorney General has ruled that this requirement does not apply to takings by the state in its corporate capacity. The rule in most states where there exists no express provision on the subject is that the giving of security is alone sufficient to justify a taking. A right to

sue the state or other governmental agency is usually deemed an adequate security in other states, but in takings by private corporations a deposit of money in court or the giving of a bond approved by the court is required. In many states there are special constitutional provisions relating to the time of payment. A few states require prepayment in all cases. A greater number require prepayment only in takings by private corporations. Several states require either prepayment or deposit, or prepayment or security.

(11) The damaging of property will not be enjoined. There is no constitutional right to prepayment. The owner is remitted to his action at law to recover compensation after the damage has been inflicted. In New York and a few other states it is held that the construction of an elevated railroad upon a public street, the fee of which is in the public, amounts to a taking of the abutters' easements of light and air in the street and that therefore the construction of the road will be enjoined until compensation is made. In Illinois and most states the construction of a road under these circumstances does not amount to a taking, but constitutes damage merely. The abutting owners' remedy is in these states an action for damages after the injury has been sustained.

(12) Except in so far as special benefits may be set off against special damage to parcels of land not taken, compensation must be in money.

(13) The determination of what constitutes a public use is for the courts. The question of the propriety of delegating the power of eminent domain is for the legislative branch. The question of the necessity for and of the amount of a particular taking is, in the first instance, for the condemning authority in which is vested a wide range of discretion, but this discretion is subject to review by the courts. In a few states there exist constitutional provisions which make the question of the necessity for a taking one for the jury.

Extension of the power of eminent domain. In recent years a number of constitutional provisions have been adopted which extend state functions. In many instances the power of eminent domain is not expressly conferred, in others this power is designated as a means of accomplishing the new objects. These provisions, in general, relate to the conservation of natural resources, to the conduct of certain types of business enterprises, and to the accomplishment of objects which are generally the subject of police regulations only. Constitutional provisions which expressly authorize the use of the power of eminent domain relate to the conservation of natural resources, the acquisition of public utilities by cities and to housing projects.

Excess condemnation. The proposal has been made to confer upon agencies of the state, chiefly municipalities, the power to

condemn land in excess of that actually needed for the purpose of a particular improvement. The power of excess condemnation, as thus defined, in general, may be employed with three distinct objects in view.

(1) The power may be exercised in connection with the opening or widening of streets to condemn an amount of land lying outside the new street sufficient to make suitable building sites which may front on the new thoroughfare. Lot remnants, which are invariably left in such cases, are thus united with the property in the rear. The history of the lot remnant problem shows that in the majority of instances the lot remnant when left in private. ownership will not be promptly attached to the rear property. The result is that the usefulness of the street is greatly impaired. The practice of condemning such areas is common in Europe. The power to condemn land in excess, in this country, cannot be granted by statute. Constitutional amendments conferring the power have been adopted in Massachusetts, Ohio, Wisconsin, New York and Rhode Island. A proposed amendment of this character failed of adoption in New Jersey. The city of Chicago is chiefly interested in this proposal. Civic bodies in Chicago strongly urge its adoption. Where this question has been investigated by legislative committees or by individuals the conclusions reached have been favorable.

(2) It is also proposed to employ the power of excess condemnation for the purpose of controlling the character of neighborhoods surrounding a newly constructed improvement. In connection with the opening or widening of streets, the construction of public buildings and the laying out of parks, the proposal is to allow the city to condemn areas of land abutting on such improvements, and after taking the land in fee the property is to be sold to private persons under restrictions in the deeds. The size, type, location, and use of buildings in the area taken over are thus to be made subject to the control of the condemning authority. stitutional amendments which authorize this use of the power of eminent domain have been adopted in Ohio and Wisconsin, but such proposals have failed of adoption in California and New York. In all of these cases the amendments were so drafted as to authorize a taking beyond that which was actually necessary for the accomplishment of the objects sought. The use of eminent domain. for this purpose is common in Europe. Commissions in this country which have investigated this aspect of excess condemnation generally favor it. Individual writers usually take the same position, though it is thought by some that the power would not be properly exercised, that it would be too uncertain a financial venture for the city, and that the police power is adequate.

(3) The proposal has also been made to employ excess condemnation for the purpose of recouping the cost of improvements. Land which had been or would be enhanced in value by reason of the improvement would be taken over by the city and later sold for the purpose of meeting the cost of an improvement or for the