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CHAPTER XV.

THE EMINENT DOMAIN.

EVERY Sovereignty has or may have buildings, lands, and other property which it holds for the use of its officers and agents in the performance of public functions, or perhaps to increase the State revenues through its improvement, its rents, issues and profits, or its sale. Such property constitutes the ordinary domain of the State. In respect to it the same rules of use, enjoyment, and alienation apply which pertain to the ownership of like property by individuals, and the State is in fact but an individual proprietor, and possesses no greater or other rights than would have pertained to the ownership of the same property by any citizen.

There are also certain rights which are of a nature to exclude altogether the idea of private ownership, and which are peculiarly devoted to the use and enjoyment of the individual citizens who compose the organized society, but the regulation and control of which are vested in the State by virtue of its sovereignty. The State, however, is not so much the owner as the governing and supervisory trustee of such rights, vested with the power and charged with the duty of so regulating, protecting, and controlling them as to secure to each citizen the privilege to make them available for his purposes, so far as may be consistent with an equal enjoyment by every other citizen of the same privileges.1 Nevertheless, some of these rights are of such a nature that sometimes the most feasible mode of enabling every citizen to participate therein will be for the State to transfer its control, wholly or partially, to individuals, either receiving on behalf of its citizens a compensation therefor, or securing for the citizens generally a release from some burden which would have rested upon them in 1 In The Company of Free Fishers, &c. v. Gann, 20 C. B., N. S. 1, it was held that the ownership of the crown in the bed of navigable waters is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to all the subjects of the realm. And that consequently the grantees of a particular portion who occupied it for a fishery could not be lawfully authorized to charge and collect anchorage dues from vessels anchoring therein.

respect to such right had the State retained the usual control in its own hands.

The rights of which we speak are considered as pertaining to the State by virtue of an authority existing in every sovereignty, and which is called the right of eminent domain. Some of these are complete without any action on the part of the State; like the rights of navigation in its lakes and other navigable waters, the rights of fishery in public waters, and the right of the State to the precious metals which may be mined within its limits. Other rights only become complete and are rendered effectual through the State displacing, to a greater or less degree, the rights of private ownership and control; either by contract with the owner, by accepting his gift, or by appropriating his property against his will by means of its superior power. Of these the common highway furnishes the most frequent example; the public rights being acquired therein either by the grant or dedication of the owner of the land over which they run, or by a species of forcible dispossession where the public necessity demands the way, and the private owner will neither give nor sell it. All these rights rest upon a principle which in every sovereignty is essential to its existence and perpetuity, and which, so far as when called into action it excludes pre-existing private rights, is sometimes spoken of as based upon an implied reservation by the government when its citizens acquire property from it or under its protection. And as there is not often occasion to speak of the eminent domain except in connection with those cases in which the government is necessitated to appropriate property against the will of the owners, the right itself is generally defined as if it were restricted to such cases, and is said to be that superior right of property pertaining to the sovereignty by which the private property acquired by its citizens under its protection may be taken or its use controlled for the public benefit, without regard to the wishes of the owners. More accurately, it is the rightful authority which must rest in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, convenience, or necessity may demand.1

1 "The right which belongs to the society or to the sovereign of disposing, in case of necessity, and for the public safety, of all the wealth contained in the State, is called the eminent domain.' McKinley, J., in Pollard's Lessee v.

When the existence of a particular power in the government is recognized upon the ground of necessity, no delegation of the legislative power by the people can be held to include authority in the legislative department to bargain away such power, or to so tie up the hands of the government as to preclude its repeated exercise, as often and under such circumstances as the needs of the government may require. To hold that it could' would be to hold that the authority to make laws for the government of the State might legitimately be so exercised as to prevent the State from performing its ordinary and essential functions. A legislative undertaking to this effect would therefore be unwarranted; and that provision of the Constitution of the United States which forbids the States violating the obligation of contracts could not render that valid and effectual which was originally in excess of proper authority. Upon this subject we shall only refer in this place to what we have already said elsewhere.1

As under the peculiar American system the protection and regulation of private rights, privileges, and immunities in general properly pertain to the State governments, and those governments are expected to make provision for those conveniences and necessities which are usually provided for their citizens through exercise of the right of eminent domain, the right itself, it would seem, must pertain to those governments also, rather than to the government of the nation; and such has been the decision of the courts. In the new Territories, however, where the government of the United States possesses the complete sovereignty, it possesses also, Hogan, 3 How. 223. "Notwithstanding the grant to individuals, the highest and most exact idea of property remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have a right to resume the possession of the property, in the manner directed by the constitution and laws of the State, whenever the public interest requires it. This right of resumption may be exercised, not only where the safety, but also where the interest or even the expediency of the State is concerned; as where the land of the individual is wanted for a road, canal, or other public improvement." Walworth, Chancellor, in Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 73. The right is inherent in all governments, and requires no constitutional provision to give it force. Brown v. Beatty, 34 Miss. 227; Taylor v. Porter, 4 Hill, 143. "Title to property is always held upon the implied condition that it must be surrendered to the government, either in whole or in part, when the public necessities, evidenced according to the established forms of law, demand." Hogeboom, J. in People v. Mayor, &c. of New York, 32 Barb. 112.

1 See ante, p. 281.

as incident thereto, the right of eminent domain; but this right passes thence to the newly formed State whenever it is admitted into the Union. So far, however, as it may be necessary to appropriate lands or other property for its own purposes, as for forts, light-houses, military posts or roads, and the like, the general government may still exercise the right within the States, and for the same reasons on which the right rests in any case, namely, the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be subject to be controlled or defeated by the want of consent of private parties, or of any other authority.

What Property subject to the Right.

Every species of property which may become necessary for the public use, and which the government cannot appropriate under any other recognized right, is subject to be seized and appropriated under the right of eminent domain.2 Lands for the public ways; timber, stone, and gravel to make and improve the public ways; a building that stands in the way of a contemplated improvement, or which for any other reason it is necessary to take, remove, or destroy for the public good; streams of water,5 corporate franchises, and generally, it may be said, legal and equitable rights of

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1 Pollard's Lessee v. Hogan, 3 How. 212; Goodtitle v. Kibbee, 9 How. 471; Doe v. Beebe, 13 How. 25; United States v. The Railroad Bridge Co., 6 McLean, 517; Gilmer v. Lime Point, 18 Cal. 229.

2 People v. Mayor, &c. of New York, 32 Barb. 102; Bailey v. Miltenberger, 31 Penn. St. 37.

Wheelock v. Young, 4 Wend. 647; Lyon v. Jerome, 15 Wend. 569; Jerome v. Ross, 7 Johns. Ch. 315; Bliss v. Hosmer, 15 Ohio, 44; Watkins v. Walker Co., 18 Texas, 585. In Eldridge v. Smith, 34 Vt. 484, it was held competent for a railroad company to appropriate lands for piling the wood and lumber used on the road, and brought to it to be transported thereon.

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* Wells v. Somerset, &c. R. R. Co., 47 Me. 345. But the destruction of a private house during a fire to prevent the spreading of a conflagration is not an appropriation under the right of eminent domain, but an exercise of the police power. Sorocco v. Geary, 3 Cal. 69. The destruction was authorized by the law of overruling necessity; it was the exercise of a natural right belonging to every individual, not conferred by law, but tacitly excepted from all human codes." Per Sherman, Senator, in Russell v. Mayor, &c. of New York, 2 Denio, 473. But see Hale v. Lawrence, 1 Zab. 714; Same v. Same, 3 Zab. 590. Gardner v. Newburg, 2 Johns. Ch. 162.

Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Crosby v. Hanover, 36 N. H. 420; Boston Water Power Co. v. Boston & Worcester R. R. Co., 23 Pick.

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save money, which it cannot be needful to take under this power, and rights of action, which can only be available when made to produce money,- are liable to be appropriated.1

Legislative Authority requisite.

The right to appropriate private property to public uses lies 360; Central Bridge Corporation v. Lowell, 4 Gray, 474; West River Bridge v. Dix, 6 How. 507; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 81, per Girer, J.; Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R. R. Co., 4 Gill. & J. 1; State v. Noyes, 47 Me. 189; Red River Bridge Co. v. Clarksville, 1 Sneed, 176; Armington v. Barnet, 15 Vt. 745; White River Turnpike Co. v. Vermont Central R. R. Co., 21 Vt. 594; Newcastle, &c. R. R. Co. v. Peru & Indiana R. R. Co., 3 Ind. 464; Springfield v. Connecticut River R. R. Co., 4 Cush. 63; Forward v. Hampshire, &c. Canal Co., 22 Pick. 462. "The only true rule of policy as well as of law is, that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional rights of the subject. If in such cases suitable and adequate provision is made by the legislature for the compensation of those whose property or franchise is injured or taken away, there is no violation of public faith or private right. The obligation of the contract created by the original charter is thereby recognized." Per Bigelow, J. in Central Bridge Corporation v. Lowell, 4 Gray, 482.

1 Property of individuals cannot be appropriated by the State under this power for the mere purpose of adding to the revenues of the State. Thus it has been held in Ohio, that in appropriating the water of streams for the purposes of a canal, more could not be taken than was needed for that object, with a view to raising a revenue by selling or leasing it. "The State, notwithstanding the sovereignty of her character, can take only sufficient water from private streams for the purposes of the canal. So far the law authorizes the commissioners to invade private right as to take what may be necessary for canal navigation, and to this extent authority is conferred by the constitution, provided a compensation be paid to the owner. The principle is founded on the superior claims of a whole community over an individual citizen; but then in those cases only where private property is wanted for public use, or demanded by the public welfare. We know of no instances in which it has or can be taken, even by State authority, for the mere purpose of raising a revenue by sale or otherwise; and the exercise of such a power would be utterly destructive of individual right, and break down all the distinctions between meum and tuum, and annihilate them forever at the pleasure of the State." Wood, J. in Buckingham v. Smith, 10 Ohio, 296. To the same effect is Cooper v. Williams, 5 Ohio, 392.

Taking money under the right of eminent domain, when it must be compensated in money afterwards, could be nothing more nor less than a forced loan, which could only be justified as a last resort in a time of extreme peril, where neither the credit of the government nor the power of taxation could be made *available. It is impossible to lay down rules for such a case, except such as the law of overruling necessity shall prescribe at the time.

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