Notice and procedure. It is a general rule that notice of proceedings must be given to the owner of property to be taken; Lewis, Em. Dom. § 363; Rand. Em. Dom. § 333 ; though a few cases hold contrary to the otherwise uniform course of decisions ; Wil son v. R. Co., 5 Del. Ch. 524 ; George's Creeli Coal & Iron Co. v. Coal Co., 40 Md. 925, 437 ; New Orleans, J. & G. N. R. Co. v. Hemphill, 35 Miss. 17; Johnson v. R. Co., 23 III. 202. In the Delaware case there was actual no tice, though it was held that the act need not require it; in the Mississippi case the proceeding is considered as in rem, which is treated as actual notice, and the Illinois case is in effect though not expressly overruled in Wilson v. R. Co., 59 III. 273, and Chicago & A. R. Co. v. Smith, 78 III. 96. These cases have been termed "sporadic decisions," by which the current of authority is not dis turbed; Rand. Em. Dom. § 333. See DUE PROCESS OF LAW. See also Lewis, Em. Dom. § 364; where the cases are cited, and, for other cases cited in support of the view that notice need not be required in the act ; Peo ple v. Smith, 21 N. Y. 595; Harper v. R. Co., 2 Dana (Ky.) 227; Kramer v. R. Co., 5 Ohio St. 140 ; Beekman v. R. Co., 3 Paige (N. Y.) 45, 22 Am. Dec. 679. The questions whether the property shall be taken and what com pensation shall be paid need not be tried by a jury ; Raleigh & G. R. Co. v. Davis, 19 N. C. 451; Whiteman's Ex'x v. R. Co., 2 Harr. (Del.) 514, 33 Am. Dec, 411; the constitution does not describe the mode or means by which compensation shall be ascertained; these therefore can only be prescribed by the legislature; Wilson v. R. Co., 5 Del. Ch. 524 ; under the constitution of the United States, a jury is not necessary ; U. S. v. Engerman, 46 Fed. 176 ; and it cannot be demanded as a matter of right ; State v. Lyle, 100 N. G. 497, 6 S. E. 379 ; Backus v. Lebanon, 11 N. H. 19, 35 Am. Dec. 466 ; Morris v. Heppenheimer, 54 N. J. L. 268, 23 Atl. 664.
It was recently held that due process of law is furnished and equal protection of the law given in such proceedings when the course pursued for the assessment and col lection of taxes is that customarily provid ed in the state, for then the party charged has an opportunity to be heard; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup.
Ct. 56, 41 L. Ed. 369; and where by state law a burden is imposed upon property for the public use, "whether it be for the whole state or some more limited portion of the com munity, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice with such notice to the person, or such pro ceeding in regard to the property as is ap propriate to the nature of the case, the judg ment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections; " As to procedure generally, see Rand. Em. Dom. ch. xi. ; Lewis, Em. Dom. chs, xvii.— xix. ; Mills, Em. Dom. ch. xi.; San Diego Land & Town Co. v. Neale, 3 L. R. A. 83; 14 A. & E. R. R. Cas. 378, 384, 392, note; and for some cases as to the necessity of notice and a hearing to constitute due pro cess of law, see 2 L. R. A. (Ind.) 655, note; 3 L. R. A. (Mont.) 194, note ; 11 L. R. A. 224, note.
The power need not be exhausted in the first instance; New York, H. & N. R. Co. v. R. Co., 36 Conn. 196; and a railroad may subsequently take land for laying additional tracks when necessary ; Railway Co. v. Pet ty, 57 Ark. 359, 21 S. W. 884, 20 L. R. A. 434; or a canal company for a new supply of water ; Proprietors of Sudbury Meadows v. Canal, 23 Pick. (Mass.) 36; or a company may take more than at present required, having view to future and other needs, and use of part is not an abandonment; Pitts burgh, Ft. W. & C. R. v. Peet, 152 Pa. 488, 25 Atl. 612, 19 L. R. A. 467.
See, generally, Mills, Lewis, Randolph, Nichols, Eminent Domain; Cooley, Const. Lim. ch. xv.; Gould, Waters, ch. viii.; Red field, Railways, Part 3; Wood, Railways, ch. xiv.; Harris, Damages ; Thompson, High ways ; POLICE POWER; TAXATION; RAILROAD; DUE PROCESS OF LAW ; DEDICATION.