
    Commonwealth versus Andrew Peters, Esq.
    The Court of Sessions have no power to award to the owner any thing but money in compensation for his damages in laying out a highway over his land.
    This was a certiorari brought to quash certain proceedings of the Court of Sessions for altering a highway in the town of Worcester.
    
    A number of errors were assigned, but the Court gave no opinion upon any except the following: —
    “ 6th. Because the said Court of Sessions, by said record and process, have allowed to the said Lincoln, his heirs and assigns, a right to build a dam on the land of said Anna, 
       which they had no authority to do.”
    *11 7th. Because the said Court of Sessions, by the [ * 126 J record and process aforesaid, have taken the real property of said Anna and given (it) to said Abraham, in part compensation for his property which they took from him, for said additional highway, which said court had no authority to do.”
    In the return of the committee of Sessions appointed to make the alteration, is contained.the following clause : “ And whereas there is now erected, on the stream of water which crosses the highway laid out as aforesaid, a dam-, now in the occupation of Abraham Lincoln, Esq., and used by him for the purpose of raising a pond for his mill, and other water-works situate south of said highway ; and whereas, by occupying the highway laid out as aforesaid, the said Lincoln will be necessarily deprived of the benefit of said dam, — the said committee do therefore further report that there shall be given, granted, and secured, to the said A. L., Esq., his heirs and assigns, the right and privilege of building, erecting, and continuing in repair, a dam on the south line of the highway laid out as afore said, to extend so far to the east of said stream, on land now belonging to the county, as shall make a water-level with the highest part of the west side of the canal, where the said south line of the said highway passes the same, and the said dam to be built of a sufficient width to render the same strong and secure ; and the said right and privilege to be held and enjoyed by the said A. L., his heirs and assigns, so long as the said highway shall be used and continued.” And the committee also reported a sum to be paid in money to the said Lincoln. This report was accepted and "confirmed by the Court of Sessions.
    
      Bigelow, for the commonwealth,
    was stopped by the Court, who desired F. Blake, of counsel for the defendant, to confine himself to the question whether the Court of Sessions is authorized by law to award any thing other than money, as compensation for damages in laying out a highway.
    
      Blake
    
    agreed that they have no such authority, but contended that this record does not show that the Sessions in this case assumed such an authority. It does not appear that this privi[*127 ] lege *is granted to Mr. Lincoln in compensation for damages sustained by him in laying out the highway. If it did so appear, it would be mere surplusage, and void. It can pass nothing. Here is a sum of money awarded him in full compensation.
    
      
      
        Anna Bigelow, in whom the fee of the former road was.
    
   Parker, J.

The committee appear to me to have travelled out of their commission so far as to vitiate their whole proceedings. This grant to Mr. Lincoln was evidently considered, both by the committee and the court, as a compensation to him for the loss of his dam, which was part of the damage sustained by him from this alteration in the way. By law they had no authority to give any thing but money as compensation. For this error, I think the pro ceedings must be quashed.

Sedgwick, J.

I am of the same opinion. The constitution declares, according to the dictates of justice, that private property shall not be taken, for the use of the public, without satisfaction. To carry into effect this principle, so far as respects the appropriation of private property for the use of highways, the law provides that the damages of the party injured shall be estimated under oath. And by the fifth section of the act, it appears explicitly that the damages are to be estimated and paid in money. Instead of which, in this case, the satisfaction to be given to Mr. Lincoln, for his property, is in the land over which the old road, which is intended to be discontinued, passed. How, if the Sessions were empowered to give him a title to this, it would not be the satisfaction which the law has determined should be given, which, as has been said, is only money.

But the Sessions could not convey a title to the land which they have contemplated as Mr. Lincoln's recompense. When land is appropriated to the use of a highway, the use only is taken, and, except so far as that goes, the right of soil remains precisely as it was before — so much so, that the owner of the soil may recover it in ejectment, subject, however, to the easement; and he has a right to the freehold and all profits, above and under ground, except only the right of passage. So that the only effect of the discontinuance of the road is, that the * land is dis- [ * 128 ] charged of the previously existing encumbrance. The attempt, therefore, whatever might be intended, is to take the prop-arty of Mr. Lincoln, for the use of the public, without any consideration— an attempt which neither the constitution nor law will authorize.

Parsons, C. J.

The only question for the consideration of the Court is, whether the committee of the Court of Sessions have awarded any thing to Mr. Lincoln, by way of compensating his damages, other than money; for it is very properly admitted that, if they have done this, they have exceeded their authority. This is then merely a question of construction of the report of the committee; and it would, in my opinion, be doing violence to the words of it, to construe them in any other way than as expressing an intention of the committee to make to Mr. Lincoln a compensation in part, out of Mrs. Bigelow’s land, for the damage he was to sustain by laying out the road over his own land. Upon any other construction, we must presume that the committee intended to confer a bounty on him beyond the damages he should sustain, which, if done, would be clearly an act of the committee against law.

Proceedings quashed. 
      
       Perley vs. Chandler, 6 Mass Rep. 454.— Fairfield vs. Williams & Al. 4 Mass. Rep. 427. — Tippets vs. Walker & Al. 4 Mass. Rep. 595. —Alden vs. Murdock, 13 Mass Rep. 259. — Stackpole vs. Healy, 16 Mass. Rep. 33. — Robbins vs Borman & Al. 1 Pick. 122. — Adams vs. Emerson, 6 Pick. 57.
     
      
      
         1 Burr. 133. — Goodtitle, ex dem. Chester, vs. Alker & Elmes.
      
     