
    E. N. Fuller, et al., vs. J. E. Edings, et al.
    
      Property taken for Public Use — Compensation — Damages.
    
    Where the Legislature directs land to he taken for a highway or other public use, and provides a mode by which the damages to the owner shall be estimated and compensation made, the party entering under the Act is not a wrong-doer, and the mode provided must be pursued.
    Where the owner of a plantation owned a private wharf which yielded him a considerable income, and the Legislature authorized a public wharf to be made near the private one, on the same plantation, and directed the appointment of commissioners to estimate the amount of compensation which should be made to the owner “ for the value of the premises taken for public use, as well as for the damages- generally to the same — Held, that the owner was not entitled to compensation for the damages he might sustain for the loss of income from his private wharf.
    BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1857.
    The report of bis Honor, tbe presiding Judge, is as follows:
    “The 12th section of ‘an Act to establish certain Roads, Bridges and Perries,’ passed Dec., 1856, (12 Stat. 506,) provides, ‘ that E. N. Puller, Edward W. Seabrook, Edward H. Baynard, Ephraim S. Mikell, Thomas A. Baynard, Ephraim C. Bailey, Joseph W. Seabrook, Oliver H. Middleton, James E. Whaley, and Ephraim M. Seabrook, or such of them as may act in this behalf, be authorized and empowered, at their own expense, to build and construct a road and wharf, from a point at or near the mouth of Cuthbert’s Creek, to the main public road on Edisto Island, and to appropriate for a landing place, connected with such wharf, such quantity of land, not exceeding one acre, as they may think fit; which road, wharf and landing, when completed in a good and substantial manner, to be approved by Commissioners of Eoads for St. John’s, Colleton, shall be for the public use for all the people of this State, and shall be kept in repair from time to time by the inhabitants of said Island', under the direction of the Commissioner of Eoads for St. John’s, Colleton. Provided, that before entering upon the land of Miss Mary Seabrook, or the estate of William Seabrook, or of John Hannahan, if .he be so minded, compensation be made for such road and landing, by the said E. N. Puller, and other petitioners, or a majority of them, to the owner, or to the purchasers, in case any of the land be sold in the meantime, for the value of the premises taken for public use, as well as for the damages generally to the same, to be estimated in the same manner, and subject to the same right of appeal, as is provided in case of lands taken for the construction of railroads authorized by law.’
    “ E. N. Puller, and others, named in the Act, petitioned for a Commission, setting forth, that since the passing of the Act, the land in question, belonging to the estate of William Sea-brook, had been purchased by Joseph E. Edings, and that they were ready to pay the price that might be awarded for compensation and damages, but could not agree with him or Miss Seabrook as to the amount.
    “ Whereupon the Court made the following order:
    “ ‘It is ordered that Commissioners be appointed to assess the compensation to be made to Miss Mary Seabrook and Mr. J. E. Edings, for the lands and privileges to be taken in pursuance of the Act of Assembly referred to in the petition in this case, and that George A. Trenholm, Charles M. Purman, Thomas P. Drayton, T. B. Lucas, and James W. Gray, be appointed the Commissioners. That the said Commissioners, before they act, take an oath, faithfully and impartially to execute the duty assigned them, and that they take into consideration the value of the premises to be taken for public ■use, as well as tbe damages generally, or tbe loss wbieb may occur to tbe owners in consequence of tbe land being taken, the proceedings of the said Commissioners to be certified to tbe Court, with a -fall description or plat of tbe land in question.’
    “ At October Term, 1857, tbe Commissioners made tbe following return:
    ‘“In obedience to tbe said order, we, tbe Commissioners therein appointed, certify to tbe Court, that we proceeded personally to tbe place and inspected tbe lands in question, and after taking tbe oath prescribed, and bearing Counsel and' tbe testimony on both sides, respectfully submit tbe following as tbe result of our deliberations.
    
      “ ‘ First. As to tbe land of Miss Mary Seabrook, through which tbe road passes, as well as that cut off from tbe body of tbe tract, we ascertain' tbe quantity from tbe plat, No. 1/ herewith certified to, to be 6 0354-10,000 acres, that tbe extent required to be fenced is 1100 yards, at a cost of $350 per mile, and we award to Miss Mary Seabrook as follows, viz.
    For 6 acres, at $70 per acre, - - $420 00
    For 1100 yards, at $350 per mile, 1760 yards, 218 75 And for keeping up Fences every ten years,
    at present allowance of 312 50
    Amounting to $951 25
    “ ‘ Second. As to the lands of Mr. J. E. Edings, through which tbe road passes, as well as that cut off from tbe body of tbe tract, we ascertain from tbe Plat, No. 2, tbe quantity to be 5 0532-10,000 acres, and that tbe extent required to be fenced is 1552 yards, at $350 per mile.
    “ ‘But the Commissioners, or a majority of them, cannot agree as to tbe general result of tbe compensation which ought to be awarded to Mr. J. E. Edings.
    We all agree that be is entitled as follows, viz.
    
      Eor 5 acres, at $70 per acre, - - $850 00
    Eor 1552 yards of fencing, at $350 per mile, 308 63 Eor a sum to keep up fencing every ten years, - - - - . - 440 90
    Amounting to $1099 53
    “ ‘But two of the Commissioners are of opinion that this ought to be the extent of the compensation awarded to him.
    
      “ 1 Two others of the Commissioners are of opinion, that in . addition to that sum Mr. Edings ought to be allowed for the loss of the income, at eight hundred and twenty dollars per^ annum, to his private wharf, in consequence of the establishment of a public wharf immediately contiguous and on Mr. Edings’ plantation, a present sum which at 7 per cent, would realize that rate of income annually. So their award would be, viz.
    Eor lands, as before, $ 1099 58
    Eor income lost, .... 11700 00
    
    Amounting to $12799 53
    
      “ ‘ And, lastly, only one of the Commissioners is of opinion that in addition to the allowance for the land, it would be more equitable to allow a sum which would realize that rate of income for' a definite period, as for seven years or a life, which would be thus, viz.
    Eor land, as before, - - - $1099 53
    Eor the income of $820 per year, for
    seven years, the present value, - 4661 34
    Amounting to $5760 87
    G-. A. TBENHOLM,
    C. M. EURMAN,
    THOS.. E. DRAYTON,
    T. B. LUCAS,
    J. W. GRAY,
    Commissioners.
    
      “ In bebalf of tbe demandants it was argued tbat tbe return of tbe Commissioners,- assessing tbe damages sustained by J. E. Edings, should be confirmed, so far as they bad agreed in tbeir estimate of tbe value of tbe land taken, and of tbe damages to tbe plantation; and tbat tbe land be dedicated to public use, on paying to tbe said J. E. Edings, tbe sum of one thousand and ninety-nine dollars and fifty-three cents.
    “It appeared to me tbat a majority of tbe Commissioners bad not agreed on any estimate of damages, unless tbe loss of income from bis private wbarf should not be an element in tbeir calculation of damages. I was of opinion that tbe loss of income from bis wbarf, might be assessed under tbe provision of tbe Act, and proposed tbe appointment of new Commissioners, which demandants have declined, unless with instructions.”
    Tbe demandants appealed, and now renewed in this Court tbeir motion for confirming so much of tbe return of tbe Commissioners as they all agreed in, — to wit, the value of tbat part of tbe land which is taken, and tbe damage done to tbe rest of the plantation by taking it, and for rejecting from tbe calculation of damages, tbe effect which a public landing may have on other interests of defendant.
    
      Petigru & King, for appellants.
    1. A public landing, like other rights of toll, is in tbe bands of government, a branch of prerogative; in tbe hands of an individual, a franchisewhich is not alienated by tbe grant of tbe soil; and which it is competent for tbe public to exercise though all tbe land on tbe coast or river be in private bands.
    2. Tbe duty of making compensation for private property taken for public uses, is tbe same in this as in other cases; and applies to tbe resumption by tbe State of wbat tbe State bas already granted; but here tbe State bas never granted any thing but tbe land. Eor resuming tbe right to that land compensation is due; but there is no room for compensation where tbe State takes nothing but its own; much less can an individual be beard to complain of injustice because be is not paid for tbe interest which be bas in preventing tbe govern-, ment from exercising its rightful prerogative for tbe common good.
    3. Tbe profit made in tbe way of toll for a landing, road, or bridge not chartered by tbe State, is a precarious right, depending entirely on tbe non-exercise by government of tbe rightful duty of tbe State, and is not such property as comes within tbe meaning of tbe rule, that private property shall not be taken for public, use without compensation.
    4. Tbe several Eailroad Acts for regulating tbe 'way in which compensation is to be made for private property taken for railroads, follow the same distinction; and make no allowance for any property, but land, or a right of way over land; or for any damages, but damage done to tbe freehold. And tbe Edisto Act proceeds, professedly and expressly on tbe same grounds.
    5. Tbe claim set up by J. E. Edings for compensation, on account of tbe effect which a public landing will have on bis opportunities of profiting by tbe absence of a public landing, has no support from tbe action of tbe legislature, in tbe matter; and is in itself unreasonable, unjust, and unprecedented.
    Campbell, contra.
   The opinion of tbe Court was delivered by

WhitNER, J.

Tbe report of tbe Circuit Judge very fully presents tbe facts upon wbicb tbe judgment of this Court is asked. We are not entirely without embarrassment as to some questions of a purely tecbnical character presented by tbe form of proceeding as well as tbe stage at wbicb tbe adjudication of this Court is demanded touching tbe real controversy in this case.

Tbe Commissioners have made a special return in virtue of tbe order of tbe Court at a preceding term, and our first inquiry is whether this is in fact such a report as will warrant any further step toward an adjustment of this contest or whether tbe commission is yet unexecuted.

By tbe terms of tbe Act of Assembly, 1856, (12 Stat. 506,) authorizing tbe construction of tbe road in question, an assessment is directed “ in tbe same manner and subject to tbe same right of appeal as is provided in case of lands taken for tbe construction of railroads authorized • by law.” The parties on either side, as we are informed, submit to be governed by tbe provisions of Act of Assembly, 1828, section 10 (8 Stat. 859), as to mode. This Act, No. 2448, comprises one of our earliest railroad charters, and satisfactorily defines tbe manner of proceeding in such cases, and to this Act, therefore, we refer. By its terms, amongst other things, tbe Commissioners are charged to “ state particularly tbe nature and amount of each” item assessed by them. Tbe minute detail thus required is essential in view of tbe interest to be effected, tbe right of tbe parties and an intelligible adjustment of tbe matters involved.

Tbe Commissioners “ could not agree as to tbe general result of tbe compensation wbicb ought to be awarded to tbe respondent, J. E. Edings.” To a certain extent, however, they “ all agreed,” and tbe nature and amount of each item they have particularly stated, amounting in tbe aggregate to one thousand and ninety-nine dollars and fifty-three cents. Two of tbe Commissioners were of opinion .this ought to be tbe extent of tbe compensation, whilst tbe remaining three Commissioners were of opinion a further allowance should be made for the loss of the income to his private wharf in consequence of the establishment of a public wharf immediately contiguous and on the same plantation, though as touching this interest, these three Commissioners could not agree amongst themselves as to amount. There is no dispute about the facts on which this question rests, and it becomes a question of law, therefore, whether this item should be excluded, and if excluded, whether this Court is furnished with a statement setting forth the entire compensation to which the respondent is entitled. If on the other hand the respondent is entitled by law to compensation for this alleged loss, the Court is not yet furnished with a report as to the proper valuation, and the matter must be recommitted to the same or other persons to obtain such valuation.

Before entering upon the consideration of this question, however, it is proper to say a word in reference to another point which arises — the right of appeal. The Act provides that in case either party to the proceeding shall appeal from the valuation to the next session of the Court granting the Commission, and give reasonable notice to the opposite party of such appeal, the Court, upon satisfactory proof that the appellant has been injured by the said valuation, shall order a new valuation to be made by a jury who shall be charged therewith in the same term, and their verdict shall be final and conclusive between the parties unless a new trial shall he granted.

We would in no way trench upon the province of the jury by a premature judgment; but it is manifest thatWe have here a proceeding very analogous to a special verdict, and the facts are conceded to be before us. There is no intimation of any dissatisfaction by either party as to the compensation allowed on the enumerated items which all the Commissioners agreed to estimate, neither is there any intimation of any matter omitted which according to- the Act should be em braced in the return. To this complexion, then, the case must come at last, and if the Court should decline an opinion under the circumstances, on the main and only remaining question in dispute, when thereby the whole case may be disposed of, it might be censurable as lending itself to a bootless litigation. To all, except those to whom litigation is a luxury, it would seem appropriate in just such a case to avoid unnecessary delay and consequent accumulation of expense, and put an end to this strife so far as may be by a calm and dispassionate consideration of the only question open to controversy.

When the legislature authorizes the laying out of a highway, or the establishment of other works deemed by them to be of public necessity and convenience, or when in their opinion it is for the public benefit, and in the construction thereof, damages are supposed to result to the property of others, and a mode is provided by statute for the assessment and payment of the same, the party so authorized is not a wrong doer, and the remedy for the person injured is confined-to the mode provided by the statute, and none exists at common law. 1 Am. Railway cases, 163; 11 Mass. 364; 12 Mass. 446; 4 Wend. 667.

Such is the case and such the relation in which the parties stand before us, and the Act of Assembly, 1856, already referred to, constitutes the law of the case.

We do not understand that any objection is raised as to the province of the legislature thus to provide for the public exigencies. The enterprises of the last half century have rendered the doctrine very familiar and no longer questionable, even in a class of cases widely different from that now under consideration.

The road and landing here authorized are for the free use of all the people of the State, and when constructed, though at the expense of the demandants, is to be kept in repair by the inhabitants of the island, and under the direction of the commissioners of the roads. It is not, therefore, to be a source of private emolument to be enjoyed by those who incur the charge of its, construction. It is open to all, though few may contribute. The Act contains the following proviso: “ Before entering upon certain lands” designated, “compensation is to be made for such road and landing” by the de-mandants “to the owner, or to the purchaser in case any of the land be sold in the mean time, for the value of the premises talcen for public use, as well as for the damages generally to the same, to be estimated in the same manner, and subject to the same right of appeal, as is provided in the case of lands taken for the construction of railroads authorized by law.” The value of the premises talcen has been satisfactorily estimated, and certain items have been also estimated in which the parties acquiesce, presumed to be included under the terms damages generally to the same.”

To render more intelligible the position of parties and the precise nature of the interest, it is proper to state that subsequent to the Act of Assembly, 1856, the respondent purchased the land in question, and shortly after his purchase entered into an agreement with the master of a steamboat trading'to Edisto Island, whereby for a term of years the respondent was to receive annually the sum of eight hundred and twenty dollars, with some service as a carrier, equal to an additional sum of one hundred dollars, for the use of this landing, with an understanding at the same time that the contract should be discharged on the completion of the road and wharf. It is proper to add to this statement the fact that the preceding proprietor had occasionally permitted a similar use of the landing, -for which a sum of money was paid. The site selected for the wharf is at least half a mile distant from the landing, so that there is not by actual contiguity any interference with the parcel of land or means of access. The effect of a wharf and road open for the public and without charge will be readily perceived, and it is the loss of income for the future for wbicb respondent claims compensation, and which three of the Commissioners sought to measure, varying in their estimates from four thousand six hundred and sixty-one dollars and thirty-four cents, to eleven thousand seven hundred dollars, making a difference of more than six thousand dollars.

Does such an interest or expectation fall within the purview of the Act ? Is it a thing to be compensated for by the public before the usual privilege of access to a common highway may be had ? - Is it a thing into which the elements of a fair and just contract so enter as that reasonable estimates may be made, and a fair and just price be demanded and paid ?

The question of franchise does not arise, no exclusive privilege has been conferred, and before that would have been done the Supreme authority would have exacted a corresponding obligation. The analogy, as far as it holds, is rather against, the claimant, as he insists on shutting out a common use, until he is compensated for the exclusive privilege he sets up, though with the next breath, if he pleases, he may deny all participation or enjoyment by others in his private wharf, and at any charge. The contract into which the respondent has entered since his purchase and since the Act of the Legislature, should not be permitted to introduce a new element. The principle involved in the demand, if well founded, should justify its maintenance, although no such contract existed. The interest then to be protected would almost vanish into thin air. It might, then, be a right to levy contributions, but no customers might present themselves to be taxed. Thus it is seen that the thing itself, as a source of profit, or subject of compensation, would be of doubtful character. An innkeeper or merchant through whose land a railroad may pass might sustain great loss of custom by the diversion of trade and travel, but in estimating the value of the lands taken for the track and the damages to tbe same, sucb a loss bas never yet been compensated, and the difficulties through which these roads have struggled into existence in certain quarters of the State without such amercements is a high evidence of the sense of the country on the subject. Scarcely a road has ever been established without such a consequence, and private interests suffer without any other indemnification than such as result in the general good.

If loss of custom is the proper subject of indemnity, so it. would be in every monopoly enjoyed by adventitious circumstances. Take the case that might arise, and has doubtless often. In the navigation of these highways by steamers the landed proprietors enjoy a great monopoly in the supply of fuel, but if a public road and landing should be established, competition would greatly curtail the profits, yet in a case of compensation for injury, such an item would not be tolerated. Competition is destructive of monopolies, and hence it should be encouraged, and although new facilities and improvements occasion great losses on old investments, the wants and necessities of the public should neither be fettered nor taxed to relieve such complaint. Such remedies to individuals would be utterly subversive of the public good, and, therefore, are unreasonable and unjust. The progress of society would be greatly retarded if not entirely restrained by such concessions.

Income from this landing would be as effectually cut off by the selection of a site upon the land of á neighbor as at the point designated, yet it is conceded in such case compensation could not be demanded with any hope of success. If loss of income constitutes a just subject of remuneration, the purpose of the legislature to protect the citizen would have been manifested by terms covering that case likewise.

But we are satisfied that the Act of the Legislature includes ño such interest, and compensation, for loss of income, from that source, cannot be legally demanded under its provisions. The value of the premises taken for public use, and the damages to tbe same, do not imply a remuneration for injuries so remote, vague, and uncertain, and in no way incident to tbe thing taken, or of damage to tbe same. “Speculative opinions of prospective injuries” furnish very unreliable evidence on which to base an estimate, and that must be a strong necessity which drives a Court to the adoption of such expedients.

We have already seen that these demandants are not to be regarded in the character of wrong-doers, and though damages are spoken of and compensation provided for, it is not in the light of a wrong done, for which a punishment is to be inflicted, but sjmply in the light of a fair and reasonable contract in which a fair price is to be paid for private property taken for public use and in promotion of a public good.

This Court is of opinion that the loss of income from, the private wharf of respondent, J. E. Edings, in consequence of the establishment of a public wharf immediately contiguous, and on respondent’s plantation, does not constitute an item for compensation to be paid by the demandants under the Act of the Legislature in virtue of which they are authorized and empowered to build and construct a public road and wharf, and referred to in these proceedings.

This Court is of opinion that the demandants are'entitled substantially to their motion submitted on Circuit, and now renewed in this Court, except so far as the same asks for a confirmation of the return, the order contemplated by .the Act being rather that the same be filed to remain of record.

It is, therefore, ordered that the proceedings of the Commissioners, C. A. Trenholm, C. M. Eurman, Thomas E. Dray-ton, T. B, Lucas, and J. W. Cray, and accompanying plat,, which have been returned by them to the Court granting the commission, be filed in the office of the clerk of the said Court, there to remain of record, and that the sum of one thousand and ninety-nine dollars and fifty-three cents, which they have all agreed to be a just compensation for tbe premises taken for public use and damages particularized in tbe items wbicb constitute that sum, be considered tbe valuation of tbe Commissioners under tbe order of tbe Court heretofore made, in exclusion of tbe other item on the subsequent part of tbe proceedings spoken of, and wbicb in tbe judgment of this Court is inadmissible in tbe estimate of damages contemplated by tbe Act of Assembly, 1856.

Tbe right of appeal from tbe valuation herein recognised is reserved according to tbe mode prescribed by tbe Act.

Wardlaw, Withers, Glover, and Muhro, JJ., concurred.

Motion granted.  