in organizing. Thus it has been said that: "It is next insisted, that the road which the National Docks Railway Company intends to construct will be a private and not a public one, and to establish this the complainants adduce the purposes of the corporators. But I think these purposes are foreign to the inquiry. The character of the road, in this respect, is dependent, not on the designs of its projectors, but on the terms of the law which governs it. Said Judge Baldwin in Bonaparte v. C. & A. R. R. Co., Baldw. C. C. 205, a road or canal constructed by the public or a corporation is a public highway for the public benefit, if the public have a right of passage thereon by paying a reasonable, stipulated, uniform toll. Tested by this criterion, and it is the true one, there can be no doubt that every railroad built by a corporation organized under one general law, becomes, ipso facto, a public road. Whether the motive of the corporators is private convenience, and whether the actual use is likely to be general, are of no more importance than are the like considerations in the laying out of what are called private roads. It is the right which characterizes the enterprise and that is public." If one exercises a franchise to supply water at reasonable rates, he cannot refuse to continue to furnish it to a customer tendering the proper rate. to a water company it was said: "By accepting the act of incorporation, they undertake to do all the public duties required by it."" Therefore when it is said the purposes of corporators is not a test of a public

As

Nat'l Docks Ry. Co. v. Central R. Co., 32 N. J. Eq. (5 Stew.) 755, 765.

7 McCrary v. Beaudry, 67 Cal. 120.

8 Lombard v. Stearns, 4 Cush. (Mass.) 61.

purpose this is as limiting the effect of charter. It does, however, seem true, that, if the purpose declared is constitutional incorporation to effect it binds the corporators.

It is no inherent objection to the exercise of the right of eminent domain that the corporation chartered for a public purpose may be seeking to condemn what is used by another company also so chartered."

$77. Federal Power in Exercise of Right of Eminent Domain.-It has been said: "It has not been seriously contended during the argument that the United States Government is without power to appropriate lands or other property within the states for its own uses and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the constitution in the general government demand for their exercise the acquisition of lands in all the states. These are needed for forts, armories and arsenals, for navy yards and lighthouses, for custom houses, post offices and court houses and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property holders to sell, or by the action of a state prohibiting a sale to the Federal Government, the constitutional grants of power may be rendered nugatory and the government is dependent for its practical ex

9 Marion Water & P. Co. v. Railroad Commission Cal., 154 Pac. 864.

istence upon the will of a state, or even upon that of a private citizen. This cannot be. No one doubts the existence in the state governments of the right of eminent domain-a right distinct from and paramount to the right of ultimate ownership."" It is stated in this case that the Federal government has not "heretofore" exercised this power, but "in some instances the states by virtue of their own right of eminent domain have condemned lands for the use of the general government and such condemnations have been sustained by their courts."" But the right to this has been strenuously and, seemingly with better reason denied, and assertion made, that the right belongs to a state for its own public uses solely and not for the public uses of any other government.'"12 It possesses this power insofar as the District of Columbia is concerned,13 so far as an Indian reservation is concerned,14 and its will is so expressed in the legislation of one of its territories.15

78. Summary.-It appears that eminent domain being a dormant power in the state, legislation must authorize its exercise, but both as to states and the Federal government this legislation may, by the legislature, be directly or by one of its subordinate gov

10 Kohl v. U. S., 91 U. S. 367, 23 L. Ed. 449.

11 Gilman v. Loma Point, 18 Cal. 229; Burt v. Merchants Ins. Co., 106 Mass. 356.

12 Trombley v. Humphrey, 23 Mich. 471.

13 Schoemaker v. U. S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170.

14 Cherokee Nation v. So. Kansas R. Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295.

15 Gutierres v. Albuquerque Land & I. Co., 188 U. S. 545, 23 Sup. Ct. 338, 47 L. Ed. 588.

ernmental agencies. It also appears that, while the legislature may specify the purpose for which the right of eminent domain may be exercised, it is for the courts to say whether the designated purpose comes within constitutional uses, that is to say, public uses. In adition there may be conditions imposed, as that just compensation must be made to the owners of private property for its being taken for a public use,16 as constitutions generally provide. If the tak、 ing by authority of law is made, the private purpose of the taker does not control, as the authority to take impresses itself upon the taking itself.

16 Long Island Water Supply Co. v. Brooklyn, 166 U. S. 185, 17 Sup. Ct. 718, 41 L. Ed. 1165.

CHAPTER XV.

PROPERTY SUBJECT TO EMINENT DOMAIN.

§ 79. Property, tangible and intangible.

80. Property presently devoted to public uses.

81. Easements subject to eminent domain. 82. Franchise subject to eminent domain.

991

79. Property, Tangible and Intangible. - Speaking of the right of eminent domain it has been said: "We know of no principle which would limit this right to lands or other real estate. The right rests upon the principle, that individual interests must be subservient to that of the public, and that they must yield when public necessities require. This, however, in constitutional governments is not to be done, but upon compensation. This principle, then, is broad enough to include all kinds of property. It is no different whether the title to the property sought to be appropriated is held by an individual or a corporation, especially if it is purely a private corporation.3 Thus it was said as to a gas company owning a strip of land not in present use by the company for gasmaking purposes, but contemplated to become necessary to meet the requirements of its business, thereafter: "The land in question is not now and has not been, devoted to gas purposes by the company, and it is not clear that it is absolutely indispensable for their use at the present time. That it may become so hereafter does not necessarily deprive the petitioner of

1 Enfield Toll Bridge Co. v. Hartford, etc., R. Co., 17 Conn. 40, 42 Am. Dec. 716.

2 Re Bellona Co. Case, 3 Bland (Md.) 442, 450.

3 Matter N. Y. L. W. Ry. Co., 99 N. Y. 12, 24, 1 N. E. 27.