
    Patrick Donnaher vs. The State of Mississippi.
    There is a necessary exception in the title to all property, that if it be wanted for public use, it may be taken for such purpose, provided that in all cases just compensation be made to the owner.
    The statute incorporating the Jackson and Brandon Railroad and Bridge Company, passed the 5th day of February, 1836, gives power to the company to extend their railroad, so as to intersect or unite with any other railroad, terminating in, or passing through the city of Jackson, provided the road be so constructed as not to interfere with the passage of any public street of said city ; the statute of 1823, H. & H. 60, reserves to the l egislature the right to dispose of the entire two sections of land, designated by the commissioners to locate the seat of government, (the city of Jackson,) except the streets and the lots which may be sold from time to time : Held, that the statute of 1823, vests the title to the streets in the-corporation of the city, and deprives the legislature of the power to dispose of them, except so far as the jus publicum, or the rights of eminent domain may authorize it; the right to the streets, therefore, being in the corporation of Jackson, they cannot be subjected to use of the railroad, without the consent and contract of the city, or without the assessment and payment of damages according to law.
    Whether the owners of lots adjacent to the track of the railroad, would have any right to compensation for damages; — Quare?
    The corporation of the city no doubt has the power, for the protection of its citizens and their property, to regulate the mode of propelling the cars within its limits, to say whether steam or horse-power shall he employed, and to prescribe the rate at which they may move. .
    D. was indicted in the circuit court of Hinds county for a nuisance in obstructing the streets of the city of Jackson. It was admitted that he had been grading and hauling dirt in the streets of Jackson, under the direction and authority of the Jackson and Brandon Railroad and Bridge Company, in preparing to lay the rails of the road ; the defence set up, was that the act of 1836, incorporating the company, gave them the right to run their railroad through the streets of Jackson, and the defendant being in their employ, and doing only such grading and hauling as were necessary to make the road, was not guilty as charged in the indictment: Held, that the act of 1823, H. & H. 60, vested in the city of Jackson the title to the streets within its limits, and deprived the legislature of the power to dispose of them, except for public use, and then only upon just compensation; that the company had no right to run their road through the streets of the city, without the consent and contract of the corporation, or without the assessment and payment of damages according to law, and that the defence set up, cannot therefore be sustained.
    ERROR from the circuit court of Hinds county ; Hon. George Coalter, judge.
    This was an indictment preferred by the grand jury of Hinds county, against Patrick Donnaher, for a nuisance, in digging and subverting large quantities of dirt in the streets of Jackson, and thereby obstructing the same. The defendant pleaded not guilty. The case was submitted to the court on the following agreed state of facts, to wit: —
    “ In 1836, the legislature of the state of Mississippi, passed an act incorporating the president and directors of the Jackson and Brandon Railroad and Bridge Company, which is herewith referred to, and made part of this agreed case.” Then follows the act of incorporation; and also the acts incorporating the “Mississippi and Alabama Railroad Company,” the “Southern Railroad Company,” and the act to revive the “ Jackson and Brandon Railroad and Bridge Company.” The eleventh section of the first recited act is in these words, viz. “ Be it further enacted, That the said company shall have the privilege of extending said road, and of constructing branches in any direction whatsoever, that they may intersect or unite with any other railroad terminating in, or passing through the town of Jackson; provided the said railroad be so constructed as not to interfere with the passage of any public street of said town. And so much of the land donated to the state by the act of congress, passed the 20th of February, 1819, for the seat of government, as may be necessary for the passage of said railroad, and as may be selected by the commissioners, with the consent of the governor of the state, and which yet remains unsold, is hereby donated to said company, during the continuance of this charter; provided, that not more than one acre shall be so donated for the erection of warehouses, or a place of depot, and that said acre of said land, shall be located only within two hundred yards of the place where said road shall pass the Pearl river.” The agreement then proceeds thus : “ It is further agreed that all the foregoing acts, or any parts thereof, or any other act in relation to said railroad, whether mentioned in this agreed case or not, may be read as a part of this agreed case from the pamphlet acts as printed by the state printers. By virtue of these various acts the said railroad company claim the right to extend the railroad from the termination of the Yicksburg and Jackson railroad, through the city of Jackson to Brandon, and through the eastern part of the state, to connect with the Charleston railroad. It is further agreed, that the land on which the city of Jackson now stands, at and before the laying off of said city of Jackson, belonged to the state of Mississippi. By the act of , the city of Jackson was laid off by commissioners, appointed by the state, into lots, with public streets, lanes, alleys, squares, &c. A plan of said city is herewith referred to, and made part of this agreed case. It is also agreed, that all the acts laying off the said city of Jackson, or amending the same, shall be considered as part of this agreed case, and may be read from the statute book. It is also agreed, that the various acts of the legislature passed incorporating the city of Jackson, and amending and modifying its charter, &e., all of which acts are herewith referred to, and made part of this agreed case, and may be read from the statute book. It is further agreed, that the lots in the said city of Jackson, were sold by authority of the state, according to said plan, and are held by individuals. It is further agreed, that the president and directors of the Jackson and Brandon Railroad and Bridge Company, laid out the railroad to pass through Jackson to Brandon, from the west side of State street, commencing at the point where the railroad from Vicksburg to- Jackson has been completed, to the piers on Pearl river, where the bridge is to be built, which route, as laid off, passes across State street in the city of Jackson, to and across South street, thence through part of an acre lot, No. 1, South, into and down Commerce street, to the lot on which the saw-mill is situated, whence said route passes through individual property. The right of way has been secured by the company. It is further agreed, that Commerce and State streets, are each one hundred feet wide, and South street eighty feet wide, through which streets alone the track will run. The track of the road will be twelve feet wide on the surface, and the rails will be five feet apart. The track when completed, may be used by either horse or steam cars. The line of road on Commerce street will be about a quarter of a mile in length, and about one hundred and twenty to one hundred and twenty-five feet on State street, and about one hundred feet on South street. It is further agreed, that the defendant was, and is employed by said railroad company to grade the line of road through the city of Jackson, in pursuance of which contract he is digging and grading on said streets, in said cify of Jackson, over which said line of road, as laid off by said company, is to run. It is agreed, that the acts of the said defendant in digging and grading said streets, constitute a nuisance in law, if said company has no power to run their railroad through and over the said streets in said city; but, if said company has such power, then it is agreed that said acts are necessary to make said road through said streets, and do not constitute a nuisance. It is further agreed, that the lots in said city of Jackson situated on said streets, were sold by the state to individuals, some of which have been built on and improved; the said individual purchasers, purchased with reference to the plan of the said city, and with a reference to the use of the streets, &c., in accordance with said plan. In running said road through the streets the value of private and public property will be lessened to some extent, and the use and enjoyment of said streets will be impaired to some extent, that is to such extent as railroad cars, propelled either by steam or horse-power, passing through a street, necessarily impair its use. It is further agreed, that said streets have not been condemned, or damages assessed against said company for the right of way through them. It is also agreed, that the corporate authorities of the city of Jackson never agreed to, but resisted the right and power of the railroad company to use the streets of the city for the railroad. It is further agreed, that if upon the foregoing facts, the court shall be of the opinion that the said company had the power and right to run said railroad, though said streets of Jackson, then and in that case, judgment shall be entered up for the defendant. But if the court is of opinion that said company had no such right, then judgment is to be rendered for the state.” The court was of the opinion that the railroad company had no right to use the streets of the city of Jackson in the manner claimed by them, and therefore rendered judgment against the defendant. To reverse which, he has brought the case to this court by writ of error.
    
      George S. Yerger, for plaintiff in error.
    The points presented will be,
    1. Has the company authority from the state to extend the road, or rather the power to run their road through Jackson, so as to join the railroad from Yicksburg.
    2. If such authority is conferred by any statute, had the legislature such power, without compensation or damages to be paid either to the owners of lots upon the streets over which the road runs, or to the city of Jackson.
    1st. Has such power or authority been granted by the legislature 1 See Acts of 1836, pages 163 & 196; Acts of 1838, page 82 ; Acts of 1840, page 198; Acts of 1841, page 138 ; Acts of 1842, 'page 123 ; and Acts of 1846, page 126. The Act of 1846 incorporating the Southern Railroad Company, gives the Jackson and Brandon Railroad and Bridge Company the power of completing or building the road from where it unites with the Southern Railroad at Brandon to a.point “at or near the city of Jackson, at which the said Jackson and B. R. & B. Co. shall unite the Vicksburg and Jackson Railroad,” &c. (See 7th section of the act, page 142.)
    So far then as the state is concerned, so far as the state has any interest, the power to unite the two roads at or near Jackson is unequivocally given. In pursuance of the power, the commissioners were proceeding to build the road by preparing the'way through a part of Jackson. In running through Jackson the line of road passes over several private lots, but the right of way through these-lots has been procured by the company. And for preparing the road through Commerce street, their agent has been indicted.
    It is insisted the company has the power to run its road through a public street or highway (whether the fee simple in the soil over which the street or highway passes is still being in the state or not, and the right of way dedicated to the public at large,) without an assessment of damages.
    The first branch of this question is, Have the owners of lots on the street, and who, it is alleged purchased property on the faith of the public dedication of their streets for the use of the city, any right to damages ?
    So far as their rights are concerned, it is clear that they are not entitled to damages. The question as to their rights has been most ably investigated in the Lexington and Ohio Railroad Company v. Applegate and others, 8 Dana’s Rep. 289.
    2d. If the lot-holders have no right to damages, has the city? What property or right in the soil of the streets has the city, more than any other portion of the public ? The fee in the soil was in the state. The state laid off the city of Jackson, directed the lots to be sold, laid off the streets, &c.
    I assume, as an undoubted principle, that not merely the local public, but the community at large, have a right to use the streets. I assume further, that the public have a perfect right to use the streets of Jackson, which were dedicated, as public streets and highways, in any manner not inconsistent with the public use or contrary to the original purposes for which they were given to the public.
    The use of the streets for running railroad cars, is precisely in accordance with the uses of a public street or highway. The public, by means of cars instead of stages and wagons, claim the right to travel over the streets. If the streets are not for the sole use of the town, but for the public, ,what right have the local authorities of Jackson to prevent the public from trav-elling over them, in an improved or different mode of travelling, than that which was known at the time of the dedication.
    I say the public have the right to use the streets in any manner not inconsistent with the purpose for which they were dedicated.
    The case in 8 Dana, is a direct authority on this point. The consent of the corporation, it is true, was had in that case. But their consent to use and appropriate the streets in a way inconsistent with their original use, would not give validity to such use.
    Neither the original proprietor, nor the city, can appropriate or use property dedicated for public use, to a different purpose.
    The use must be consistent with the dedication, and if the streets are permitted to be used in a way inconsistent with the use originally intended, it is clear that any citizen or citizens of the town, or any member of the community can in equity enjoin such use.. This the supreme court of the United States in 10 Peters, 662, (City of New Orleans v. U. S.) decide. They decide in that case that the United States had no interest, and therefore that they could not enjoin the city, but said those interested could; and see 6 Peters, 507.
    Now the running of cars over a street, is either consistent with the public use of the streets, or it is not. If it is, and the state authorizes a company to do so, the public consents to such use, and no one can object. If it is inconsistent with the public use, then any citizen, whether the corporate authorities consent or not, may enjoin such use. In this view the case in 8 Dana is a direct authority, for the citizens who filed the bill in that case, have a right and would have succeeded, notwithstanding the consent of the corporation, if running the cars was a public nuisance, or was inconsistent with the original use of the streets.
    That the city cannot use the streets or appropriate their use inconsistently with use for which they were originally dedicated, see 1 Wharton’s Rep. 469 ; 3 Vermont Rep. 279, 519, 378; 2 Greenleaf’s Evidence, § 662; 6 Peters, 507. It is settled that property may be dedicated to public use without grant. See cases in 6 and 10 Peters’s Rep.
    If the owners of private property have no right to an injunction or damages; if the city of Jackson has no right to an injunction or damages, it follows, then, that the defendant cannot be guilty of a nuisance, in preparing the streets for the cars, as the state has agreed and authorized it to be done. The grading the street for such purpose is consistent with the public use of the streets, and if a temporary stoppage is created, this is the necessary consequence of repairing the streets in all cases.
    It is clear that the owners of lots have no right to damages, for they do not own the soil. Neither has the corporation, for the city only holds the streets as a right of way; and if the streets were condemned, the damages would have to be for the use of the original proprietor, the state. 1L Leigh’s Rep. 42. And the state consents to it.
    The case in 6 Peters, 507, illustrates the foregoing argument, and shows that the use of the street for public purposes must be inconsistent with the terms of the original dedication. That case proves that the consent of the city of Louisville, to use the streets in a manner inconsistent with their dedication, could be enjoined by a court of chancery. And if the use of the streets by running of cars was inconsistent with their original dedication, it follows, that the court, in 8 Dana, notwithstanding the consent of the corporation, ought to have enjoined such inconsistent use. The cars would not obstruct its use as a public street, any more than a train of wagons. And the above case proves that the streets may be used for any public purpose, not inconsistent with their use as streets. See pages 507, 508.
    It may be admitted that the state dedicated and parted with its right to the soil over which the street runs; but it dedicated it upon a trust for the public, — for the use of the public. The public are entitled to its use as a street. Running a wagon or a car by steam over the street was a means of transportation not known at the time of the dedication. But it is simply a means of transporting the public, or goods and merchandise.-
    If the company could run their wagons, or cars, without laying the track or grading the streets, could the city authorities prevent them! Surely not. Why then has it power to do so, because they run by means of a track laid with rails?
    Can any corporation prevent great public improvements in travelling by refusing the use of the streets of the town ? The street is only to be used for public transportation — the very use amongst others intended by its dedication. To say that a city or town can prevent great public works — improved modes of travelling, from being used, because its citizens may suppose such improvements will produce injury to the local public or citizens, will be to sacrifice the public interest to the whims and caprice of a few individuals.
    The facts of this case show the width of the streets, the length of the road on each, and they show clearly that the use of such streets would not be materially affected by the laying of the rails.
    To constitute a nuisance, there must not only be an obstruction of the street, but it must be an unlawful obstruction. It cannot be an unlawful obstruction to grade the street for the purpose of carrying into effect the right of way given to the public, by the original dedication of the streets, and by the act of 1846.
    
      William Yerger, for the state.
    I insist, for the corporation,
    1st. By the charter the company cannot make this road “ so as to interfere with the passage of any of the public streets of the town,” and by the agreed case it is admitted that such will be the effect of constructing the road in the manner contemplated by the company.
    2d. The legislature never authorized the company to appropriate the streets of the town for the railroad, without paying for them; and if it had done so, the act of the legislature would have been unconstitutional.
    The constitution of this state declares that, “No person’s property shall be taken or applied to public use without the consent of the legislature, and without compensation being first made therefor.”
    
      This court has decided, that a charter to a railroad authorizing them to pass over lands without the consent of the owner, upon an assessment of damages being made, and a judgment and execution therefor, was unconstitutional. The land must not only be condemned to public uses, it must be first paid for before it can be used. Thompson v. Grand Gulf Railroad, &c. 3 How. 240.
    The ground on which the city of Jackson stands, was given to the state of Mississippi by the general government for a seat of government. In the year 1821 the legislature appointed commissioners to fix upon a site for the seat of government, and to lay out and fix upon a plan of said town. These commissioners proceeded to act, and laid off the city of Jackson as it'at present stands, with its various streets, alleys, squares, &c., and which plan was adopted by the legislature. Subsequently the lots of said city were sold in reference to said plan, and were bought by various persons. See H. & H. Dig. 58, et seq.
    Among the streets so laid out were the streets along which it is proposed to run this railroad, and lots fronting on said streets and sold with reference to them, were bought by various property holders in said city.
    Wherever the owner of land lays it out in lots with streets, avenues and squares, for the purpose of being used as a town, and sells lots in it with reference to such plan, he cannot after-wards deprive the grantees of the benefits of the streets, &c. so laid out. 4 Paige’s R. 510.
    All public dedications are to be considered with reference to ■the use for which they are made. 6 Peters, 438.
    • The purchasers of lots in the city of Jackson bought them in reference to the plan of the city then laid out, and have a right to the use of the streets as easements, to the full extent of the dimensions of the streets so laid out. 2 Wend. 472.
    The right to enjoy and use the streets of the city free and un-incumbered, as they were laid out on the original plan of the city, belongs to every citizen. “Underthegrantof a thing,'whatever is parcel of it or necessary to its beneficial enjoyment, or in common intendment is included in it, passes to the grantee.” .3 Mason, 280.
    
      Wherever the owner of lands in a city sells building lots, bounding them by streets of a. specified width as laid down on a map, but not actually opened, the purchasers acquire a legal right against the grantor to have the streets kept open to the width delineated on the map. 8 Wend. 85.
    ■I refer the court to the following cases, in which the doctrine contended for by the state is clearly and plainly laid down, and they establish beyond a doubt, that the state having laid out the city of Jackson with various streets, squares, &c., and sold lots therein with reference to such plan, cannot, by any subsequent legislation, appropriate the streets or squares of said city for any other purpose than such as was originally intended, or do anything which will impair the use and enjoyment of the same by the owners of lots in said city. 6 Peters R. 431, 498, 738 ; 10 Ibid. 662, et seq. ; 1 Wend. 268 ; 2 Ibid. 475 ; 8 Ibid. 95; 11 Ibid. 493; 17 Mass. 415 ; 4 Paige, 510; 3 Mason, 280.
    The counsel for the railroad rely upon the case of The Lexington and Ohio Railroad Company v. Applegate et al. 8 Dana’s Rep. 289.
    In relation to that case it is only necessary to remark, that the corporation of Louisville, in whom the title to the streets of that city was vested, gave its assent to the road passing through the streets, which clearly distinguishes it from the present. Where that case conflicts with the positions taken by me, I respectfully suggest, that it conflicts with fixed and well-established rules of law, and cannot be regarded as authority by this court.
   Mr. Justice Clayton

delivered the opinion of the court.

The agreed state of facts contained in this record, presents this as the prominent question for investigation; whether the Jackson and Brandon Railroad and Bridge Company have a right to construct a railroad through the streets of the city of Jackson, without an assessment and payment of damages for such use of the streets.

The statute incorporating this company passed February 5th, 1836, gives power to it to extend its railroad, so as to intersect or unite with any other railroad, terminating in or passing through the city of Jackson, provided the road be so constructed as not to interfere with the passage of any public street of said city. There has been various legislation on the subject of this railroad since, but the above provision has been retained.

The statute of 1823 reserves to the legislature the right to dispose of the entire two sections of land, designated by the commissioners to locate the seat of government, except the streets and the lots which may be sold from time to time. How. & Hutch. 60, sec. 11; Poin. Rev. 486. This vests the title to the streets in the corporation of the city, and deprives the legislature of the power to dispose of them, except so far as thejns publicum, or the right of eminent domain may authorize it. This right of eminent domain always exists, unless the state has absolutely parted with it by grant. There is a necessary exception in the title to all property, that if it be wanted for public use, it may be taken for such purpose. But this is always upon the condition, that just compensation shall be made to the owner. The principle has its origin in the common law. The King v. Ward, 31 Com. Law R. 96, and is enforced by our constitutional provision, “ that private property shall not be taken for public use without just compensation.” This principle applies as forcibly to the streets in this instance, as to private property in other cases. In the case of The Tuckahoe Canal Company v. The Tuckahoe Railroad Company, 11 Leigh, 76, the court says: — “ It is not perceived that the property of a corporation is less liable to the exercise of the jus publicum, than the property of a private individual. In both cases, the private right must yield to the necessities of the public, and in both the public must make compensation for the loss. This was a case of opposite franchises or easements. ■

In a case in 3 Hill’s N. Y. Rep. 570, the court says : — “ The claim set up is an easement, not a right of passage to the public, but to the company, who have the exclusive privilege of using the track of the road in their own peculiar manner. The public may travel with them over the track, if they choose to ride in their cars; but nevertheless the company are not the public, nor can they be regarded as standing in the place of the public. They are a private company, an ideal individual, and to be treated as an individual.” Presbyterian Society in Waterloo v. Auburn and Rochester Railroad Company. That case arose in an effort to subject a public highway to the use of a railroad.

The progress of public improvement, and the increase of trade and commerce may render changes in roads, streets and canals necessary. An easement of one kind may be made to give place to one of a different character, of more enlarged utility. Great and acknowledged public improvements lead to corresponding changes in the rights to be affected by them, accompanied however with the just condition of making compensation.

This case differs from that of The Lexington and Ohio Railroad Company v. Applegate et al. 8 Dana, 289, in two essential particulars. 1st. The corporation there gave its assent to the use of the streets of Louisville by the railroad. 2d. The owners of the lots there claimed compensation. In this case the corporation has not given its assent; and the owners of the lots are not before us. The right to the streets in this case being in the corporation of Jackson, they cannot be subjected to the use of the railroad, without the consent and contract of the corporation, or without the assessment and payment of damages according to law.

Atpresent'we are strongly inclined to the belief, that the owners of lots adjacent to the track of the railroad, will have no claim to compensation. They have no right of soil in the streets; and the charter of the railroad company restricts the use to such bounds, as will not interfere with the passage of, the streets. Moreover the salutary maxim will apply to the company, that “ they must so use their own rights, as not to injure another.” 31 Eng. Com. Law Rep. 97; Dudley’s S. Car. R. 138. This point, however, need not be decided. See Barclay v. Howell, 6 Peters, 514.

We have no doubt that the corporation has the power to regulate the mode of propelling the cars within its limits, to say whether steam or horse power shall be employed, and to prescribe the rate at which they may move. This results from the same principle, which authorizes it to control the speed of carriages and of horsemen —■ the principle of necessary protection to the safety of its citizens and their property.

The defendant having failed in his attempted justification, the judgment is affirmed.

Mr. Justice ThacheR dissented ; because he believes the company possess the right of way through the streets without any compensation, and because he considers the company has a right to use any species of locomotive power, subject to police regulations to be established by the corporation of Jackson.  