Miller, J.,
delivered the opinion of the Court.
*Tliis appeal is from an order refusing an injunction to restrain the appellees from entering upon the land of the appellant under color of an alleged condemnation thereof for the use of their railroad. The bill admits the inquisition, its confirmation, and lender of the damages thereby awarded, and the sole ground of complaint is, that the provision in the amended charter of the company, under which the inquisition was taken, allowing benefits and advantages to be set-off against damages, is repugnant to that clause of the Constitution which forbids the Legislature to enact any “law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation.” The constitutionality of this provision of the charter is, therefore, the sole question presented by this appeal, and to determine it, wo must first ascertain the true construction and effect of the assailed provision, so far at least as the power of the Legislature to enact it may, by possibility, be thereby affected.
The condemnation clause in the original charter of this company (Act of 1853, chapter 194, section 13,) authorizes the taking “of any land, earth or materials, or any improvements which may be wanted for the construction or repairs ” *342of the road or works, and requires the jury of inquest to justly and-impartially value the damages, which the owner or owners will sustain by the use or occupation of the same required by the company.” The amendment (Act of 1870, chapter 80, section 6,) authorizes the taking “ of any land, earth, gravel, stone, timber, streams or materials, or any improvements which may be wanted for the proper construction or repair of any of said roads, or any of their works,” and requires the jury to “justly and impartially value the damages which the owner or owners will sustain by the use and occupation of the property required by the said company, and also the benefits or advantages to accrue to the owner or owners by the construction of the said road as a set-off to the said damages, but only in extinguishment of the claim for damages, and not for the actual value of the land or other material taken, and after having made a fair and just set-off of the axlvantages and disadvantages arising from the construction of the said railroad, they shall estimate and determine what amount of damages has been or may be sustained by the said owner or owners respectively.”
Though it might have been more explicitly stated, it is yet quite clear to our minds that, under this provision, the jury are required in all cases to estimate in the first instance, and as an essential and primary element of damages, the actual value of the land or property proposed to be taken, and then to consider what other and incidental damages will result to the owner, by reason of the use or occupation thereof for the purposes of the road, and against these latter only are any benefits or advantages to be set-off, so that in no case does the law permit t-lieir final estimate to fall below the real fair market value of the land or other property actually taken and used.
The case before us presents only the question of constitutional power, and we are not, therefore, called upon to define what constitute these other and incidental damages, or what are the benefits and advantages that may be set-off against *343them. These must depend upon the circumstances of each case, and both parties have their remedy for any misconduct or error of the jury in this respect, by exceptions to the confirmation of the inquisition before the proper tribunal. It may be remarked, however, that the counsel for the company has very properly conceded that, under the head of benefits, the land-owner is not to be charged with those general benefits which he aliares in common with the community at large, but only with those special benefits which accrue to him by reason of the construction of the road through his land. Thus construed, (and that such is its true construction, we have no doubt,) the provision is free from most of the objections to its constitutionality so forcibly presented in the very able argument of the appellant’s counsel. It seems to have been framed for the express purpose of avoiding any conflict with the doctrine announced by the Court of Appeals of Kentucky in Jacob vs. City of Louisville, 9 Dana, 114, and more recently by the Supreme Court of Tennessee in Woodfolk vs. Nashville and Chattanooga R. R. Co., 2 Swan, 422, viz: that the just compensation to the owner for taking his property for public use without his consent, means the actual value of the property in money, without any deductions for benefits and advantages, and that the Legislature can lawfully authorize these latter to be off-set only against such incidental damages or injuries, in addition to the intrinsic value of the property taken, as may result to him from the taking thereof. In most of the other States where the question has arisen, a different doctrine has prevailed, and their Courts have held that it is competent for the Legislature to provide that benefits and advantages accruing to the proprietor, shall constitute just compensation, even to the extent of extinguishing the value of the land or other property taken. In this State, no adjudication directly and decisively affecting the power of the Legislature to make a provision going to this extent, in the charter of a private corporation, has yet been made, and it will be time enough to decicte that question when it is distinctly pre*344sented. It does not arise in this case, for, as we have seen, the charter of this company contains no such provision, but carefully avoids the objection by providing that benefits and advantages shall not be set-off as against “ the actual value of the land or other material taken.” We entertain no doubt of the constitutionality of the provision, and the order refusing the injunction must therefore be affirmed.
(Decided 25th May, 1871.)
Order affirmed.