See, generally, as to land injured; 2 Am. R. & C. Cas. 94; 5 id. 201 ; property damag ed; 25 Am. L. Rev. 924; taken or damaged; 27 Am. L. Reg. 391; Harman v. City of Oma ha, 21 Cent. L. J. 130.
What estate is acquired. Where the con stitution contains no restriction, a fee or any less estate may be taken, in the discretion of the legislature; Dingley v. City of Bos ton, 100 Mass. 544; Prather v. Telegraph Co., 89 Ind. 501; Malone v. City of Toledo, 34 Ohio St. 541; Patterson v. Boom Co., 3 Dill. 465, Fed. Cas. No. 10,829; Sweet v. Ry. Co.,- 79 N. Y. 293; Roanoke City v. Berko witz, 80 .Va. 616; Lewis, Em. Dom. § 277; Rand. Em. Dom. § 205 ; Cooley, Const. Lim. 688.
It is within the power of the legislature to determine the interest to be taken; Fair child v. City of St. Paul, 46 Minn. 540, 49 N. W. 325; and it may authorize the taking of a fee simple; Wood v. City of Mobile, 107 Fed. 846, 47 C. C. A. 9; In re City of New York, 190 N. Y. 350, 83 N. E. 299, 16 L. R. A. (N. S.) 335; contra, Kellogg v. Malin., 50 Mo. 496, 11 Am. Rep. 426 ; if a fee is taken under the statute, the land may afterwards be devoted to other uses; id.; Rand. Em. Dom. § 209. If the state condemn, a fee is presumed; Haldeman v. R. Co., 50 Pa. 425 ; Craig v. City of Allegheny, 53 Pa. 477; but not when a private corporation does so; Rand. Em. Dom. § 206 ; when the act author ized a railroad company to take the fee for a right of way, it was a qualified estate which would revert; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Kellogg v. Malin, 62 Mo. 429; but a railroad may be author ized to take a fee; Raleigh & G. R. Co. v. Davis, 19 N. C. 451. The purpose is some times said to indicate the estate taken; Holt v. City Council of Somerville, 127 Mass. 408; Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70 ; but this is an unsafe criterion of the interest, and the better opin ion is that it merely defines the use. See New Orleans Pac. Ry. Co. v. Gay, 31 La. Ann. 430; Commissioners of Parks and Bou levards of City of Detroit v. R. Co., 90 Mich. 385, 51 N. W. 447 ; New York S. & W. R. Co. v. Trimmer, 53 N. J. L. 1, 20 Atl. 761. Under a provision that the title should vest, a city took a fee for sewers ; Page v. O'Toole, 144 Mass. 303, 10 N. E. 851; but a turnpike com pany only an easement ; Dunham v. Wil liams, 36 Barb. (N. Y.) 136. Au absolute power of alienation, the ear-mark of untram melled and unconditional ownership has been supported in land held by a municipal corpo ration for a park ; In re City of Rochester, 137 N. Y. 243, 33 N. E. 320 ; or an alms house; Heyward v. City of New York, 7 N. Y. 314 ; De Varaigne v. Fox, 2 Blatchf. 95, Fed. Cas. No. 3,836 ; when a street which had been taken for a canal was abandoned, the right of the public and the abutters re vived in the street ; City of Logansport v. Shirk, 88 Ind. 563 ; and land taken for a ca nal was afterwards used for a street ; El dridge v. of Binghamton, 42 Hun (N. Y.) 202; Malone v. City of Toledo, 34 Ohio St. 541. It is said that a municipal corpo ration can condemn the Tee-simple title of land for streets, but only so as to acquire the absolute control for that purpose and not a proprietary right to sell or devote it to a private use ; Fairchild v. City of St. Paul, 46 Minn. 540, 49 N. W. 325. When the fee is taken and the use ceases, the state may au thorize a sale for other uses, but when only an easement, the land reverts ; Lewis, Em. Dom. 596, citing cases ; and so if there is an abandonment ; id. 597.
The time when payment must be made varies according to the exact terms of the constitutional provision under which pro ceedings are taken. In the majority of states where there is no express provision it is held that compensation need not be concurrent in time with the taking, it is sufficient if an adequate and certain remedy is provided by which the owner may compel payment of damages ; In re Appointment of U. S. Com'rs,
96 N. Y. 227 ; and this means reasonable le gal certainty ; Sage v. City of Brooklyn, 89 N. Y. 189 ; or if there is a definite provision or security for the payment of the compensa tion ; Commissioners' Court of Loundes County v. Boure, 34 Ala. 461; Cairo & F. R. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564 ; Moody v. R. Co., 20 Fla. 597; Briggs v. Ca nal Co., 137 Mass. 71; Orr v. Quimby, 54 N. H. 590 (but Ash v. Cummings, 50 N. H. 591, seems contra) ; Hawley v. Harrall, 19 Conn. 142 ; Ferris v. Bramble, 5 Ohio St. 109 ; In re Yost, 17 Pa. 524 (contra, as to private roads ; In re Clowes' Private Road, 31 Pa. 12) ; Tuckahoe Canal Co. v. R. Cp., 11 Leigh (Va.) 42, 36 Am. Dec. 374; Foster v. Bank, 57 Vt. 128 ; State v. McIver, 88 N. C. 686 ; Smeaton v. Martin, 57 Wis. 364, 15 N. W. 403 ; Great Falls Mfg. Co. v. Garland, 25 Fed. 521. The same rule was formerly followed, in some states in which later constitutions provided for prior payment, or required compensation where none was provided for before, as Maryland ; Compton v. Railroad, 3 Ch. (Md.) 386; Powers v. Armstrong, 19 Ga. 427 ; People v. R. Co., 3 Mich. 496 ; Prather v. R. Co., 52 Ind. 16 ; other states require that the owner shall receive compensation before entry ; Brady v. Bronson, 45 Cal. 640 (see Fox 'v. R. Co., 31 Cal. 538, which reviewed the cases, established a different rule, and was overruled); Vilhac v. R. Co., 53 Cal. 208 ; City of Paris v. Mason, 37 Tex. 447 ; Har ness v. Canal Co., 1 Md. Ch. 248 ; Hall v. Peo ple, 57 Ill. 307; Chicago, St. L. & W. R. Co. v. Gates, 120 Ill. 86, 11 N. E. 527 ; but in Maine, while title does not pass, possession may be taken before payment, and a reason able time—three years being so held—allow ed therefor ; Cushman v. Smith, 34 Me. 247 ; Riche v. Water Co., 75 Me. 91. It has been held that the state when acting directly may provide that title shall pass when the amount is ascertained, it being presumed that payment will be made by the state ; Ballou v. Ballou, 78 N. Y. 325; but any such declaration in a statute is controlled by the constitution, and it was held in a New York case that payment must be prior to or con current with the taking ; Garrison v. New York, 21 Wall. (U. S.) 196, 22 L. Ed. 612. In many state constitutions there is a dis tinction between the direct exercise of the power by the government and the delegated power conferred on private corporations. Under such a provision it was said that in both cases the sovereign power is coupled with the correlative duty ; State v. City of Perth Amboy, 52 N. J. L. 132, 18 Atl. 670 ; but municipal corporations must settle first when exercising delegated power ; id.; Low eree v. City of Newark, 38 N. J. L. 151. And it is said by a writer of authority, "the al most invariable, and certainly the just, course being to require payment to precede or accompany the act of appropriation ;" 2 Dill. Mun. Corp. 615. Generally, however, when the compensation is to be paid by the state or is a charge upon the funds of a mu nicipality that is held sufficient ; Haverhill Bridge Proprietors v. County Com'rs, 103 Mass. 120, 4 Am. Rep. 518; State v. McIver, 88 N. C. 686 ; Mayor, etc., of Pittsburgh v. Scott, 1 Pa. 309; In re Mayor, etc., of City of New York, 99 N. Y. 569, 2 N. E. 642 ; Jef fersonville, M. & I. R. Co. v. Daugherty, 40 Ind. 33 ; Brock v. Hishen, 40 Wis. 674 ; Long v. Fuller, 68 Pa. 170; but if the available resources are shown to be insufficient an en try may be enjoined ; Keene v. Borough of Bristol, 26 Pa. 46.