The principal question, in the case before us, has its origin in the second and third reasons assigned in the motion for a new trial: Whether the defendants can set off against the value of the plaintiff's property, appropriated for public %ises, any increased benefit, arising from the improvements, made by the city, to the balance of the lot?

It is insisted by the defense, that the court erred in rejecting the evidence offered on the trial, of the difference in value of the plaintiffs’ premises, before and after the improvement made, by widening the street; and that the court should have instructed the jury to consider the benefits resulting from the improvement, to the residue of the lot, in estimating the damages.

It is not denied by the plaintiffs but what their property is subject to the public use, when the necessity of the community de-mands its surrender. The right of eminent domain is an incident to sovereignty, and exists in every government. Private mischief, rather than public, of necessity must be endured. The obligation to make compensation, however, follows thjs right, as the shadow does the substance, and is concomitant with it. It is not in all countries a legal obligation; but it is an obligation of natural equity and justice everywhere. That this right of eminent domain may be conferred, not only on municipal ^corporations, but private, can not at this day be questioned, without upsetting the legislation of Ohio for half a century, and the repeated adjudications of our own courts and those of our sister states. 1 Kin. Com. 218.

It is, however, incorporated into our organic law, that compensation in money shall be made to the owner, whenever his property is appropriated for the public welfare. Not as a condition precedent to the appropriation; but provision must be made by law for the assessment of the damages the owner of the property will sustain, in some fair and equitable manner, and before some corn-*175potent tribunal, where the parties can bo heard; and payment must be provided for, from an unquestionable fund, by law, before permanent possession of property can be taken, or its appropriation made, in the exercise of this incident to sovereign power.

It is contended by the plaintiff’s counsel, that, by compensation to the owner in money, as the words are employed in the constitution, is signified the actual value of the property appropriated, in money, subject to no deduction whatever! Wo can not adopt this opinion. If such were the intention of its authors, they probably would have used language like this: Provided the value of the property be paid, in money, to the owner.

That just, full, -and adequate compensation must be made, and in money, is certain ; more can not bo required; but if, in appropriating property of the value of $4,000, when, by the same appropriation, the value of what remains is increased $2,000 and the value of the property taken is the rule of damages, the owner actually takes $2,000 without the least consideration, and receives more than the constitution enjoins to be paid, because it is more than a compensation.

Other cases may occur where the full value of the property will not be a just compensation. His house may be taken down, and he and his family thrown out of employment, and, in addition to the value of his house, he would clearly be entitled *to consequential damages, or he would not receive full compensation.

The word compensation imports, that a wrong or injury has been inflicted, which must be redressed in money. Money must be paid to the extent of the injury, whether more or less than the value of the property; and then, in our view, is the language of the constitution satisfied.

We are confirmed in our opinion of the correctness of the construction we place on the word compensation, as employed in the constitution, from the fact that such construction has obtained and been acquiesced in, from a period not far short of the organization of the state government. In the opening of roads, constructing turnpikes, and appropriating lands for canals, benefits conferred have been constantly and unceasingly deducted from the value of the property, or damages otherwise sustained. Long contemporaneous construction of an instrument is seldom erroneous, and is always deserving of great consideration, when the meaning of the instrument is obscure.

*176Under a similar provision, tho Supreme Court of Kentucky is the only tribunal of which we are aware, that has come to a different conclusion. 1 Dana; 9 Dana.

We think the court erred in rejecting the testimony offered, and in the instruction it gave tbe jury; and that a new trial should be granted.

It is, therefore, unnecessary to consider the other points made.

dissenting. I can not concur in the opinion of a majority of the court, that resulting benefit may be offset against the value of property taken for public use.

,The constitution declares:

“ Private property ought and shall for ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.”

This is the supreme organic law of the land, limiting state ^sovereignty. Its binding force is admitted. The question is, as to the meaning of this clause of the constitution. A resort to any known rule of construction would not seem to leave it in doubt. The words of the constitution are certain and explicit. It asserts:

1. The inviolability of private property.

2. Its subserviency to the public welfare; and,

3. The condition upon which it may be subjected to public use.

The condition of subjecting private property to public use, is defined with equal precision by the following exact phraseology : “Provided a compensation in money be made to the owner. The - condition is compensation — the compensation, money. Such is the constitutional limitation of the right of eminent domain.

The only points, then, upon which the mind can cavil for an instant, is, as to the time when, and the amount to which, compensation shall be made.

As to the time when compensation shall be made.

Compensation must be made before or at the moment the public dispossesses the private owner and subjects his property to public use. The state can not seize private property prior to compensation. The words of the constitution are, private property is “always subservient to tho public welfare, provided a compensation in money be made to the owner.” To render it moro clear, read the constitution, thus: “ Provided a compensation in *177money be made to the owner,” private property “is always subservient to the public welfare.” This language implies condition, power, possibility, arising upon the happening or existence of a particular event or thing.- If a particular event or thing happen or transpire, such a result follows — or, tho condition happening, the power result^. If compensation be made, private property is subservient' to the public welfare. The power to subject property, results from compensation being made. Hence compensation is a condition precedent to the seizure of private property to public uso. The reason for *this construction is even more strong. If the public may take private property for public use, without compensation being first made, the owner may be de prived of tho means of support. The owner may be an infant sick or disabled, and unable to procure a subsistence. If payment could be postponed for a week or a day, it might be for a year or an indefinite length of time. It has been repeatedly decided that a law subjecting private property to public use, without providing a clear and specific mode of compensation, is invalid. Extreme cases may be put, such as the seizure or destruction of private property in time of war, or the destruction of property tc prevent the spread of fire in a city. These are cases of necessity, and rest upon the principle of self-preservation, and in no respect invalidate the general law. In these cases, the necessity may require the immediate seizure or destruction of property before it is possible to make compensation; but they are like the ease of a man being compelled to kill his adversary to save his own life. The law recognizing the right of self-defence, excuses the homicide. Tho extreme necessity becomes a law of itself.

As to the amount of compensation.

This depends upon the manner in which the state has subjected private property to public use. If a mere injury be done, without disturbing the possession or ownership, the amount pf damage should be to the extent of the injury. If the property has been subjected to a mere temporary use, to the value of the use. If the entire property has been converted to the public use, the compensation should be the full and fair value of the property so taken.

This compensation must be made in money. But a majority of the court held that, where private property has been seized to a public use, that, if any benefit result to the owner, that may be *178, 179deducted from the value of the property so takou, and payment of the balance, so ascertained, in money, to the owner, is the compensation intended and meant by the constitution. This construction is manifestly opposed to the object, ^spirit, and letter of the constitution. The constitution declares that, if private property be taken for public use, compensation shall bo made the owner in money. But a majority of the court say, if a portion of a man’s private property be taken for public use, and the remainder be benefited to the extent of the value of the property so taken for a public use, no further or additional compensation need be made. That is, the state may take a part of a man’s private property, and make him no direct compensation in money whatever, provided there be a reflected benefit over upon the remaining property of the owner, in the opinion of a jury, equal in value to -the property seized to the public use. The state addresses the owner in this wise: “The public welfare requires that the state should take from you a part of your property for the purpose of public improvements; if the public improvement will not render the remainder of your property mor’e valuable or of equal value to the whole before such part taken, you are entitled to no compensation. ” Is this compensation in money? At most it is but compensation in reflected benefit. It is not compensation in money. To say that it is, strikes mo as a mere mockery of words,

Put the proposition in this form: The state takes for public use a part of a man’s land worth $500 — the whole tract of land, a part of which has been taken, was worth $1,000 — -the remaining part to the owner, after the improvement, is worth $1,000. Upon the construction given by the majority of the court, the account between the state and the private owner would stand thus:

The state debtor to the owner for the land taken............... $500

The constitution requires compensation in money.

Credit to the state for an improvement, estimated to

benefit the remaining land of the owner..................... 500

Balance due the owner.................................................. $500

The argument to sustain this construction runs thus: The constitution requires compensation to be made in money; benefit *to the remaining property of the owner has resulted from the public improvement equal to the value of the property taken; *180therefore compensation has been made to the owner in money. This argument rests upon tho assumption that a benefit resulting to the owner of land, by the construction of a public work, is a payment of money to such owner, in amount equal in value to such benefit. That is, enhanced value and money are the same thing.

To escape the irresistible force of this conclusion, it is contended that the constitution does not require compensation to be made to the amount of the. value of tho land or property taken ; but to the extent of the injury sustained in consequence of taking such land or property. That to ascertain the amount of injury it is proper to take into consideration the advantages and disadvantages which result to the owner; and that, if the advantage is equal to the value of the property taken, the owner has sustained no injury, and hence is entitled to no compensation. This is arriving at the same result, only in a different mode. It is simply varying the statement of the proposition, without altering its nature or the result. What difference does it make whether you offset the benefit directly against the property taken, and hence hold that no further compensation need be made, or offset the benefit against the value of the property taken, to show that no injury had been sustained, and therefore that the constitution required no compensation to be made? In either view, no compensation is made to the owner in money, for the property taken. It merely results in this, that in one case resulting benefit is regarded as compensation in money ; and in the other, that taking a man’s property without doing him an injury, in consequence of a reflected advantage, is compensation in money to tho owner, to the extent of the value of the property taken. By either mode it comes to this, and no ingenuity can avoid it, that the state may take private property for public use, and make no compensation to the owner in money. The constitution says compensation shall be made to the owner in money.

^Compelled by the pressure of the argument, it is admitted that, if this were a now question, a proper construction of the constitution would require compensation to be made to the owner in money, to the extent of the value of the property taken to the public use. But it is contended that the authorities of the state have uniformly acted upon tho principle of compensating the owner of private property to such amount as he may be deemed entitled, after deducting benefits and advantages from the value *181of the property taken, and not to the full value of the property. That the courts have also been in the habit of recognizing this as the true constitutional compensation, and that it is now too late to depart from it. Usage and practice can not alter the constitution. It suffers no rust, and is as bright now as upon the morning it came into existence. Sovereignty must reside somewhere. Our theory of government'recognizes it in the people, to whom it belongs, and from whom it must emanate. Government originates with them, and they alone have the right to prescribe the kind, to alter or modify, and to confer and limit the powers of government. This, by them, has been dono by a written constitution, creating the’state government, and assigning and limiting its powers. Now, if the practice of the state authorities, in any or all of the departments, can prevail against the constitution, and acquire to the state powers not delegated by that instrument, or take away rights secured by it to the people, it is an assumption that the powers of the states and the rights of persons depend not upon the constitution, but upon the practice of the state authorities; and that the constitution may be altered and nullified, not by the people only, who made it, but by the action of the state authorities, in disregarding its requisitions. I am certain the most confident advocates of this notion of construing the constitution, from practice violating its provisions, will shrink from this conclusion. True, contemporaneous construction, evidenced by uniform practico, may be resorted to in construing doubtful written laws and constitutions. But where there is no ambiguity, there is no room for construction; and the laws, as written, must prevail. In this instance there is neither doubt nor ambiguity in the wording of the constitution.

It was contended, in the case of Dixon vf. City of Cincinnati, before the court at this term (although, in the opinion of a majority of the court, it was not necessary to decide the point in that case), and has been repeatedly asserted by the legislature, in the grant of municipal charters, that reflected benefit may not only be offset against the value of property taken, but that the owners of adjacent lands may be charged with the cost of constructing the public improvement in proportion to the amount of benefit resulting to each. If the owner of property be charged with the payment of money to the extent of a benefit resulting to his property, by the construction of a public improvement, upon what *182principle is it to be done? It will not be contended, in this instance, that the money subjected to public use is compensation in money. This would be absurd.

To adopt such a construction of the constitution, the state could subject private property to public use, and construct public improvements to any extent, without any charge whatever upon tho public treasury. Resulting benefit to the owner of property subjected to public use, and those whose property was near to tho public improvement would be charged with the whole expense. This overturns the whole doctrine of representation and taxation. It would authorize the people of a particular section of the state to be charged with the whole cost of a public improvement projected by the state, by the vote of members of the legislature, neither whom nor whose constituents are charged with the pay ment of money imposed by their vote. The legislature represents the entire state, and a vote of theirs creating an obligation to pay money, falls upon the whole people of tho state, and can not be limited to a part. So of a city council, their vote represents the whole city, and binds all the inhabitants of the city. No man can vote, through his representative, to charge his neighbor with the payment of *money for which ho does not, by such vote, become so liable himself- These are truths too obvious to require illustration. But to say that tho legislature could pass a law, imposing the entire burden of constructing a public improvement upon the people of a part of the state, shocks tho-notions of every man, and is denied by all. If the state could do no such thing, much less could the legislature confer power upon a city council, by vote, to charge the cost of a public improvement, constructed for the benefit of the whole city, upon a part only of the inhabitants. The security of the owner of property, that he shall not be plundered under the plea of taxation, is, that taxes must be imposed equally upon the whole community. If the power of special taxation can be supported upon the pretense of benefit resulting from improvements made by the public, the owners of property hold it at the mere hazard of improvident legislation.

It is claimed that, permitting resulting benefit to be set off against the value of property taken for public use, is only construing the constitution in conformity with a principle of natural justice. That it is nothing but right, in compensating the owner, *183to take into consideration such advantages as result to him from the public improvement. There is nothing in this argument. Natural justice would require that the state should be charged with the enhanced value resulting to the public property from private improvements, or that private property should bo charged with enhanced value resulting from public improvements. To carry out the principle — if the improvement of a man’s private property should increase the value of his neighbor’s property, it should authorize a charge to the extent of the reflected benefit. It is well known that improvements, both public and private, give increased value to. the whole property of the community. It is just as consistent with the principles of natural justice that individuals should obtain pay for benefits resulting to property from their private improvements, as that the public should receive compensation for benefits to private property arising from public improvements. *The idea of permitting private individuals to charge each other with such benefit as may result to each other’s property, from improvements which each may make, strikes every one as perfectly absurd. Why is it not just as absurd to permit the state to charge private persons with the reflected benefit resulting from public improvements, either in the way of compensation for property taken, or directly by way of special tax?

The constitutional requisition of “compensation in money,” excludes every other interpretation except payment in money to the value of the property taken. The word “ money ” refers to the amount to be paid, as well as to the kind of payment. Money is the measure of value, as well as the medium of payment. No other construction will give the word its full meaning. But it is urged that it is not a rule of value to fix the amount to be paid, but only the specified kind of payment, after the amount to be paid is ascertained in some other mode. That it merely forbids the state to compensate the private owner in property. Now, payment to private owners for property taken for public use, in other property, was not the evil which the constitution intendod to guard against; but the evil which the history of governments disclosed was, that governments often seized private property without making any compensation at all, or at least not adequate compensation. The history of governments did not show any great grievance or tyranny on the part of governments, in compelling an exchange of property, of equal value, belonging to the *184government, for that of private persons. Such a notion, however gravely urged, is idle. What danger is there that the state will compel individuals to barter their property for property of the state of equal value. The state has no such power conferred upon it by the constitution, and not by implication, as all powers not granted by that instrument are reserved to the people. Hence, the word “ money” was not introduced to guard against any such evil, and could only refer to (he value to be paid for property taken for public use, as compensation to the owner.

*The truth is, the constitution will bear but one construction. It requires that compensation shall be.made in money to the full'value of tho property taken to public use. Tho private owner may bo entitled to additional compensation for an injury resulting to the remainder of his property from a seizure of part. If such claim bo made, resulting benefit may be offset against resulting damages. But, at all events, the owner is entitled to the value of the property taken for public use, from which any reflecting advantage can not be deducted.

Any other construction would never have been for a moment entertained, except from the fact that public improvements were deemed of the utmost importance to the growth and welfare of the state. An anxioty to carry out a scheme of internal improvement at the least possible expense, has induced the legislature and the courts to forget the provisions of the constitution. But, however great the public benefit derived from public improvements, it should be remembered that the highest possible public good is to secure every person in the full and complete enjoyment of his property. This clause of the constitution was designed to check the license of power, and secure to every person the full enjoyment of the natural and constitutional right. The right to acquire, possess, and enjoy property of eminent domain is limited, and the state can not seize upon private property, without making full compensation in money. It is urged that the public good may require the sacrifice of tho property of the individual. To guard against this very thing was the design of the constitution. In time of war, and great and imminent public pressure, the sacrifice of person and property is both the dictate of duty and glory. But when tho proper question is, whether tho public shall pay for property taken for public use, or tho private owner shall lose it, no such duty exists. The right to hold and enjoy property, is *185coupled with the right of life. The maxim of sacrificing the individual to the public, is one of despotism. The public is not consulted when a man is born, nor does a man live by public permission ; he holds life by the right of God; ^and the design of our government is to protect him in these rights. We should be peculiarly careful to preserve the constitutional inviolability of private property, since the legislature has been so free in conferring the right of eminent domain upon municipal and private chartered corporations. Private companies are formed for their own benefit, and seek from the state the right to subject to their use private property, upon the ground that the public will be benefited by their operations. It is well known that the contemplated advantage oftentimes outruns all reason and experience. Let this notion be the measure of benefit to the owners of private property, to the offset against the value of the property taken, materials, etc., for the construction of these works, and you give free license to chartered companies to run riot over the rights of private property. If this may be done without compensation before seizure, private property is exposed to the hazard of every wild scheme which may obtain. How often is it that companies commence and fail? It occurs so frequently that it is well that they are without bodies as well as souls-; otherwise, the numerous dead would be an offense to the nostrils of the land.

We should remember that the highest possible good is to be ' derived from a strict adherence to the constitution, and by securing to every person the full enjoyment of every constitution»1 right.