The last class permits all benefits to be' set off against all damages of either kind, placing the rule on natural equity, and in a leading case (Young v. Harrison, 17 Ga. 30, afterwards apparently overruled as stated supra), it is, argued that the term compensa tion comes from the civil law which so con strues it. This rule is accepted by many courts which, among other reasons, hold that compensation does not mean money but includes any means of recompense : Califor nia Pac. R. Co. v. Armstrong, 46 Cal. 85 ; Whiteman's v. R. Co., 2 Harr. (Del.) 514, 33 Am. Dec. 411; Kramer v. Ry. Co., 5 Ohio St. 140 ; Platt v. Pennsylvania Co., 43 Ohio St. 228, 1 N. E. 420 (before the consti tution of 1851); Ross v. Davis,. 97 Ind. 79; Rassier v., Grimmer, 130 Incl. 219, 23 N. E. 866, 29 N. E. 918; Greenville & C. R. Co. v. Partlow, 5 Rich. C.) 428; White v. R. Co„ 6 Rieh. (S. C.) 47. See Bourgeois v. Mills, 60 Tex. 76. In New York this rule applies to cases where land is taken by the state and municipal corporations ; Genet v. City of Brooklyn, 99 N. Y. 296, 1 N. E. 777 ; Eldridge v. 'City of Binghampton, 120 N. Y. 309, 24 N. E. 462 ; but in the case of private corporations the third rule seems to apply ; Washington Cemetery v. R. Co., 68 N. Y. 591; Newman v. Ry. Co., 118 N. Y. 618, 23 N. E. 901, 7 L. R. A. 289 ; Bohm v. R. Co., 129 N. Y. 576, 29 N. E. 802, 14 L. R. A. 344. See Heath v. Barmore, 50 N. Y. 302. In Illi nois the cases prior to 1870 were under the fifth rule; Alton & S. R. Co. v. Carpenter, 14 Ill. 190; and since the constitution of that year and a subsequent statute it has been held that benefits were prohibited as against the value of land taken ; Carpenter v. ,Ten nings, 77 Ill. 250; that general benefits can not be set off against either value or dam age ; Keithsburg & E. R. Co. v. Henry, 79 Ill. 290; and that special damage may be charged against the damage to the residue; Lewis, Em. Dom. § 470, where the cases are collected and analyzed.
The last rule enumerated seems to be ap proved by the federal courts ; Chesapeake & 0. Canal Co. v. Key, 3 Cra. C. C. 599, Fed. Cas. No. 2,649; Kennedy v. Indianapolis, 103 U. S. 599, 26 L. Ed. 550; and upon candid consideration it must be admitted that if ben efits are to be allowed at all it is the only logical doctrine. This seems also to be the conclusion of the writer whose classification of the decisions is here given, and to whose discussion of the whole subject reference may profitably be made; Lewis, Em. Dom. § 471. The subject was considered in the United States Supreme Court at length by Gray, J., who held that in applying the law to the District of Columbia it was proper to "take into consideration, by way of lessening the whole or either part of the sum due him, any special and direct benefits, capable of present estimate and reasonable computa tion, caused by the establishment of the high way to the part not taken ;" Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270. This view also prevailed in In re City of New York, 190 N. Y. 350, 83 N. E. 299, 16 L.
R. A. (N. S.) 335 ; Taber v. R. Co., 28 It L 269, 67 Atl. 9.
Damage to property injured but not phys ically taken. A question of great impor tance arises either under the later constitu tional provisions for compensation for injury as well as actual taking, or under the exten sion of the meaning of the word taking to include consequential damages so called, when the injury to property is so great and permanent as practically to deprive the own er of all use _and enjoyment of it.
In such cases the only remedy of the prop erty owner, in the absence of legislation, is a common-law action, and for permanent or continuing injury trespass is totally inade quate, as is evidenced by the fact that to re strain it when continuous is a recognized ground of equitable interference. In many cases it is held that prospective damages cannot be recovered, and the property owner is thus put to the necessity of resorting to repeated actions, but when the trespass is the result of the exercise of a public use au thorized by statute this remedy is not only unsatisfactory but illogical. Accordingly it is held in many cases that such damage be ing of a permanent nature there should be but one recovery for all damages past, pres ent, and future; and it has been held that they may be allowed. An action on the case is the proper remedy in such cases, but the measure of damages applied is not uniform, though when the liberal rule referred to is adopted the payment vests in the defendant a right to maintain its works and operates as a bar to further suits. In some cases such an action has also been held to have the effect of statutory proceedings for the as sessment of compensation; Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, 8 N. E. 460, 59 Am. Rep. 341; Penn.. Mut. Life Ins. Co. v. Hess, 141 Ill. 35, 31 N. E. 138, 33 Am. St. Rep. 273. This subject is, however, involved in great confusion, which should undoubted ly be removed by legislative enactments pro viding for the acquisition of the right to cause, and the assessment of compensation for, permanent injury to property whenever consequential damages are provided for by constitution or statute, or recognized by the courts. As to this subject, see discussions with copious citations of cases in Lewis, Em. Dom. § 624 ; Rand. Em. Dom. § 308; 26 Am. L.- Reg. 281, 345.
Who are proper and necessary parties. The compensation must be paid to the true owner as on that the title depends ; Hatch v. Mayor, 82 N. Y. 436; South Park Cdm'rs v. Todd, 112 Ill. 379 ; Searl v. School Dist., 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 740; and if paid to the wrong person, it may be recovered from him by one having an inter est; De Peyster v. Mali, 92 N. Y. 262 ; Sher-1 wood v. City of Lafayette, 109 Ind. 411, 10 N. E. 89, 58 Am. Rep. 414; but if title is doubtful, it may be paid into court ; Jones v. R. Co., 41 Fed. 70; In re Department of Parks, 73 N. Y. 560; and if afterwards paid out wrongly the person who paid it in is not liable; U. S. v. Dunnington, 146 U. S. 338, 13 Sup. Ct. 79, 36 L. Ed. 996.