| Miss. | Oct 15, 1859
delivered the opinion of the court.
. The simple question upon which this case depends is, whether the railroad company, by mere force of its charter, and without any steps having been taken, either by the company or by the proprietor of the-lahd over which the railroad passed, to assess its value, or to entitle the company to appropriate it to their use, was authorized to enter upon the land and to treat it as their property, for the purposes, and with the power over it, contemplated by the charter? For, though by the second count in the amended declaration, it appears that an assessment of the value of the land had been made by commissioners appointed in accordance with the charter, yet in the progress of the cause in the court below, that count, and the pleas having reference to it, were withdrawn; so that the case stands and is here presented simply, upon a declaration for trespass in entering upon, and committing damage to, the land; which is attempted to be justified by the general license to do so contained in the charter, granting the right of way to the company over the lands over which the road should run.
It is clear that this ground of justification, as it is broadly claimed, is not tenable. The charter confers upon the company the right to enter upSn, and appropriate to its use, the lands of individuals along the line of the road, not absolutely, but upon terms. This privilege is granted, to be enjoyed consistently with the right guaranteed by the Constitution to the proprietors of the lands, to have just compensation for their lands before the same were taken and appropriated to the public use. To what precise extent this right of the proprietors is to be observed, and what will be a sufficient compliance with the right, before the corporation is entitled to enter upon and appropriate lands to its use, it is not necessary to consider, as this case is here presented. It is sufficient to say, that it is at least necessary that there shall be an assessment
Judgment affirmed.