rected, it is absolutely necessary to acquire property in this manner; the right to do so will be implied. Through the action of a legislative body the conditions precedent to a valid exercise of the power are prescribed and these consist of statutes directing the manner under which the power is to be exercised. It is needless to say that where property is taken against the consent or will of the owner, the authority for so doing must be strictly construed. The authority must be expressly given; 341 must be strictly construed,342 and the manner of its exercise as prescribed by law strictly followed.343 Essential provisions should be strictly followed and all statutory requirements are considered essential. The fact that they are prescribed by law in connection with the exercise of the power gives them this character and not their relative importance. It is not for the judiciary to say that because a

341 Common Council of Houghton v. Huron Copper Min. Co., 57 Mich. 547; Trowbridge v. City of Detroit, 99 Mich. 443, 58 N. W. 368; Freeman v. Price, 63 N. J. Law, 151, 43 Atl. 432; Russell v. Leatherwood, 114 N. C. 683.

342 Shields v. Ross, 158 Ill. 214, 41 N. E. 985; McKernan v. Indianapolis, 38 Ind. 223; Barnes v. City of Springfield, 86 Mass. (4 Allen) 488; Sperry v. Flygare, 80 Minn. 325, 83 N. W. 177, 49 L. R. A. 757; County of Cooper v. Geyer, 19 Mo. 257; City of Springfield v. Whitlock, 34 Mo. App. 642; Henry v. Ward, 49 Neb. 392, 68 N. W. 518; Kearney Tp. v. Ballantine, 54 N. J. Law, 194, 23 Atl. 821; Wharton v. Sorden, 59 N. J. Law, 356, 36 Atl. 672; Atlantic Coast Elec. R. Co. v. Griffin, 64 N. J. Law, 513, 46 Atl. 1062; Salsbury v. Gaskin, 66 N. J. Law, 111, 48 Atl. 531. The grant of the right to lay out and open streets, roads, alleys and highways is exclusive. Morse v. Williamson, 35 Barb. (N. Y.) 472; In re City of New York, 158 N. Y. 668, 52 N. E. 1125, affirming 33 App. Div. 365, 53 N. Y. Supp. 875.

343 City of Stockton v. Whitmore, 50 Cal. 554; Humbolt County v. Dinsmore, 75 Cal. 604; Frank v. City of Atlanta, 72 Ga. 428; Dempsey v. Donnelly, 58 Ill. 40; Hyslop v. Finch, 99 Ill. 171; Brown v. Robertson, 123 Ill. 631; Barnard V. Haworth, 9 Ind. 103; Hughes v. Milligan, 42 Kan. 396, 22 Pac. 313; City of New Orleans v. Sohr, 16 La. Ann. 393; Inhabitants of Cape Elizabeth V. Cumberland County Com'rs, 64 Me. 456; People v. Kimball, 4 Mich. 95; Specht v. City of Detroit, 20 Mich. 168; Matter of Powers, 29 Mich. 504; Soulard v. City of St. Louis, 36 Mo. 546; State v. Poland, 50 N. J. Law, 367; Clark v. City of Elizabeth, 61 N. J. Law, 565; Newall v. Wheeler, 48 N. Y. 486; Harbeck v. City of Toledo, 11 Ohio St. 219; York County v. Fewell, 21 S. C. 106; Paris Mountain Water Co. v. City Council of Greenville, 53 S. C. 82; Woodworth v. Spirit Mound Tp., 10 S. D. 504, 74 N. W. 443. Statutory provisions for the benefit of private individuals may be waived by the parties in interest. Adams v. Town of Clarksburg, 23 W. Va. 203.

statutory requirement is unimportant or relates to a matter of detail that it is not essential.344 This last principle, however, does not mean that the authority must be so literally followed or so strictly construed as to defeat the result sought to be obtained through its grant.345 A strict but substantial compliance with the statutes only is necessary.

§ 767. Attempt to agree.

346

Many local requirements considered as conditions precedent are found. One of the most common is that requiring an attempt on the part of the one exercising the power to agree with the property owner as to the value and transfer of his property. The law compels a bona fide attempt for the purchase of property before the right of eminent domain can be exercised.3 Where this condition exists, not only must it be complied with but the subsequent proceedings must show the attempt and its failure. It is a jurisdictional condition and this statement can be applied as a rule to all the statutory provisions relative to setting in motion the necessary legal machinery for the exercise of the power.347 Eminent domain is a sovereign right and whether exercised by the state or one of its delegated agencies, it is practically in the nature of an inquisition on the part of the state to ascertain the compensation to be paid the owner for property which he is obliged to surrender to the greater needs of the public. The

344 People v. Village of Whitney's Point, 32 Hun (N. Y.) 508.

345 Canyon County v. Toole, 8 Idaho, 501, 69 Pac. 320; Town v. Town of Blackberry, 29 Ill. 137; Allison v. Highway Com'rs, 54 Ill. 170; State v. Pitman, 38 Iowa, 252; State v. Kinney, 39 Iowa, 226; Inhabitants of Monticello v. Aroostook County, 59 Me. 391; Nickerson v. Lynch, 135 Mo. 471; Howard v. Dakota County Com'rs, 25 Neb. 229, 41 N. W. 185; State v. Richmond, 26 N. H. 232; People v. Dolge, 45 Hun (N. Y.) 310. An irregularity will not, however, effect the validity of the proceedings. Bewley v. Graves, 17 Or. 274, 20 Pac. 322; Allen v. Parker County,

23 Tex. Civ. App. 536, 57 S. W. 703; Race v. State, 43 Tex. Cr. R 438, 66 S. W. 560; Baier v. Hosmer, 107 Wis. 380, 83 N. W. 645; Ruhland v. Hazel Green Sup'er, 55 Wis. 664.

346 Town of Harwinton v. Catlin, 19 Conn. 520; Shelton v. Town of Derby, 27 Conn. 414; Village of Byron v. Blount, 97 Ill. 62; Laue v. City of Saginaw, 53 Mich. 442; Dyckman v. City of New York, 5 N. Y. 434.

347 Wabaunsee County Com'rs v. Muhlenbacker, 18 Kan. 129; Leslie v. City of St. Louis, 47 Mo. 474; Douglas County Road Co. v. Abraham, 5 Or. 318; Porter v. City of Abilene (Tex. App.) 16 S. W. 107.

power and the necessity for the taking being established, it should be the purpose of the state to gain through subsequent proceedings a fair value of the property for the owner and to prevent through prejudice or passion the securing of an extortionate amount.

§ 768. Parties to the proceedings.

The statutes may prescribe the necessary parties; then a compliance with the statute is sufficient. It has been stated that the modern tendency is to enlarge the right of compensation through a liberal construction of the words "property" and "taking." This leads directly to the proposition that an interest, however slight, if it is considered as property in a particular jurisdiction,. either by constitutional provision or court construction, cannot be taken from the owner without compensation and that this be secured, it is necessary that in some way he be made a party to the proceedings.348 This statement of the general principle is sufficient without referring in detail to the particular owners of various property interests or rights.349 Such rights may be tangible

348 Ryder v. Horsting, 130 Ind. 104, 29 N. E. 567, 16 L. R. A. 186; Gist v. Owings, 95 Md. 302, 52 Atl. 395. The mode of procedure as established by Code, Pub. Gen. Laws, art. 25, § 86, for the acquisition of land by condemnation proceedings for the establishment of a public highway does not apply to land already in possession of a county. Brush v. City of Detroit, 32 Mich. 43. Proceedings to condemn private land for a public highway are an entirety and the failure to give proper notice to any of the land owners will render the proceedings invalid. Clarke v. Town Council of South Kingstown, 18 R. I. 283, 27 Atl. 336. The consent of the state to the laying out of a highway over its land is not a condition precedent: it may be subsequently given.

349 Beck v. Biggers, 66 Ark. 292;

Damrell V. San Joaquin County Com'rs, 40 Cal. 154; Smith v. Hudson Highway Com'rs, 150 Ill. 385, 36 N. E. 967; Murphy v. Beard, 138. Ind. 560, 38 N. E. 33. A mortgagee not entitled to personal notice; that by publication is sufficient. Chicago, R. I. & P. R. Co. v. Ellithrope, 78 Iowa, 415, 43 N. W. 277; Alcott v. Acheson, 49 Iowa, 569; Goodrich v. Atchison County Com'rs, 47 Kan.. 355, 18 L. R. A. 113; State v. Bogardus, 63 Kan. 259, 65 Pac. 251. A railroad company is to be regarded as a resident of any county in which it operates the road or exercises its franchises.

Cool v. Crommet, 13 Me. 250; Inhabitants of Monson V. County Com'rs, 84 Me. 99, 24 Atl. 672. If during the pendency of proceedings land is sold, no notice need be given to the vendee if the vendor was properly served. Abbott v.

or inchoate, perpetual or temporary in duration, and unrestricted. or limited in their extent. Whatever their nature or character, the owner may be entitled to compensation though slight.350 On the contrary, one not a property owner or interested is not a proper party.351

A petition or application by the one having right to exercise the power is usually necessary,-addressed to the court or tribunal designated by law.852 It should set forth all jurisdictional facts including the authority 353 and necessity 354 for the exercise of the

power, an accurate description of the property 355 sought to be taken, with the names of the owners, 356 and such other statements as may be specifically required by law.357 If a particular form or phraseology is provided by statute, the petition should follow this form, and if other requirements are necessary, such as the filing of a bond or the giving of security to preserve to property owners the compensation which may be awarded them,358 these are essentials, as they are considered, and should not be omitted. The rule that the authority must be strictly followed cannot be ignored, especially in the preparation,359 filing 360 and presentation of the petition. Statutory provisions may also prescribe the me