The Taking of Property.

Although property can only be taken for a public use, and the legislature must determine in what cases, it has been long settled

tion. Every man has an abstract right to the exclusive use of his own property for his own enjoyment in such manner as he shall choose; but if he should choose to create a nuisance upon it, or to do any thing which would preclude a reasonable enjoyment of adjacent property, the law would interfere to impose restraints. He is said to own his private lot to the centre of the earth, but he would not be allowed to excavate it indefinitely, lest his neighbor's lot should disappear in the excavation. The abstract right to make use of his own property in his own way is compelled to yield to the general comfort and protection of the community, and to a proper regard to relative rights in others. The situation of his property may even be such that he is compelled to dispose of it because the law will not suffer his regular business to be carried on upon it. A needful and lawful species of manufacture may so injuriously affect the health and comfort of the vicinity that it cannot be tolerated in a densely settled neighborhood, and therefore the owner of a lot in that neighborhood will not be allowed to engage in that manufacture upon it, even though it be his regular and legitimate business. The butcher in the vicinity of whose premises a village has grown up, finds himself compelled to remove his business elsewhere, because his right to make use of his lot as a place for the slaughter of cattle has become inconsistent with the superior right of community to the enjoyment of pure air and the accompanying blessings and comforts. The owner of a lot within the fire limits of a city may be compelled to part with the prop

erty, because he is unable to erect a brick or stone structure upon it, and the local regulations will not permit one of wood. Eminent domain only recognizes and enforces the superior right of the community against the selfishness of individuals in a similar way. Every branch of needful industry has a right to exist, and community has a right to demand that it be permitted to exist; and if for that purpose a peculiar locality already in possession of an individual is essential, the owner's right to undisturbed occupancy must yield to the superior interest of the public. A railroad cannot go around the farm of every unwilling person, and the business of transporting persons and property for long distances by rail, which has been found so essential to the general enjoyment and welfare, could never have existed if it were in the power of any unwilling person to stop the road at his boundary, or to demand unreasonable terms as a condition of passing him. The law interferes in these cases, and regulates the relative rights of the owner and of the community with as strict regard to justice and equity as the circumstances will permit. It does not deprive the owner of his property, but it compels him to dispose of so much of it as is essential on equitable terms. While, therefore, eminent domain establishes no industry, it so regulates the relative rights of all that no individual shall have it in his power to preclude its establishment." On this general subject see Olmstead v. Camp, 33 Conn. 532, in which it was very fully and carefully considered.

What is a public use is a question

that it is not essential the taking should be to or by the State itself, if by any other agency, in the opinion of the legislature, the use can be made equally effectual for the public benefit. There are many cases in which the appropriation consists simply in throwing the property open to use by such persons as may see fit to avail themselves of it; as in the case of common highways and public parks. In these cases the title of the owner is not disturbed, except as it is charged with this burden; and the State defends the easement, not by virtue of any title in the property, but by means of criminal proceedings when the general right is disturbed. *But in other cases it seems impor- [* 537] tant to take the title; and in many of these it is convenient, if not necessary, that the taking be, not by the State, but by the municipality for which the use is specially designed, and to whose care and government it will be confided. When property is needed for a district school-house, it is proper that the district appropriate it; and it is strictly in accordance with the general theory as well as with the practice of our government for the State to delegate to the district the exercise of the power of eminent domain for this special purpose. So a county may be authorized to take lands for its court-house or jail; a city, for its town hall, its reservoirs of water, its sewers, and other public works of like importance. In these cases no question of power arises; the taking is by the public; the use is by the public; and the benefit to accrue therefrom is shared in greater or less degree by the whole public.

If, however, it be constitutional to appropriate lands for mill dams or mill sites, it ought also to be constitutional that the taking be by individuals instead of by the State or any of its organized political divisions; since it is no part of the business of the government to engage in manufacturing operations which come in competition with private enterprise; and the cases must be very peculiar and very rare where a State or municipal corporation could be justified in any such undertaking. And although the practice is not entirely uniform on the subject, the general for the courts; though where a use has been declared public by the legislature, the courts will hold it to be such unless the contrary clearly appears. Bankhead v. Brown, 25 Ill. 540. See Olmstead v. Camp, 33

Conn. 551; Tyler v. Beacher, 44 Vt. 648; Loughbridge v. Harris, 42 Geo. 500; Chicago, &c. R. R. Co. v. Lake, 71 Ill. 333; Water Works Co. v. Burkhart, 41 Ind. 364.

sentiment is adverse to the construction of railways by the State, and the opinion is quite prevalent, if not general, that they can be better managed, controlled, and operated for the public benefit in the hands of individuals than by State or municipal officers or agencies.]

And while there are unquestionably some objections to compelling a citizen to surrender his property to a corporation, whose corporators, in receiving it, are influenced by motives of private gain and emolument, so that to them the purpose of the appropriation is altogether private, yet conceding it to be settled that these facilities for travel and commerce are a public necessity, if the legislature, reflecting the public sentiment, decide that the general benefit is better promoted by their construction through individuals or corporations than by the State itself, it would clearly be pressing a constitutional maxim to an absurd extreme if it were to be held that the public necessity should only be provided for

in the way which is least consistent with the public [*538] * interest. Accordingly, on the principle of public ben

efit, not only the State and its political divisions, but also individuals and corporate bodies, have been authorized to take private property for the construction of works of public utility, and when duly empowered by the legislature so to do, their private pecuniary interest does not preclude their being regarded as public agencies in respect to the public good which is sought to be accomplished.1

The Necessity for the Taking.

The authority to determine in any case whether it is needful to permit the exercise of this power must rest with the State

1 Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige, 73; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 251; Buonaparte v. Camden and Amboy R. R. Co., 1 Bald. 205; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 1; Lebanon v. Olcott, 1 N. H. 339; Petition of Mount Washington Road Co., 35 N. H. 141; Pratt v. Brown, 3 Wis. 603; Swan v. Williams, 2 Mich. 427; Stevens v. Middlesex Canal, 12 Mass. 466; Boston Mill Dam v. Newman,

12 Pick. 467; Gilmer v. Lime Point, 18 Cal. 229; Armington v. Barnet, 15 Vt. 750; White River Turnpike v. Central Railroad, 21 Vt. 590; Raleigh, &c. R. R. Co. v. Davis, 2 Dev. & Bat. 451; Whiteman's Ex'r v. Wilming ton, &c. R. R. Co., 2 Harr. 514; Bradley v. N. Y. and N. H. R. R. Co., 21 Conn. 294; Olmstead v. Camp, 33 Conn. 532; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504.

itself; and the question is always one of strictly political character, not requiring any hearing upon the facts or any judicial determination. Nevertheless, when a work or improvement of local importance only is contemplated, the need of which must be determined upon a view of the facts which the people of the vicinity may be supposed best to understand, the question of necessity is generally referred to some local tribunal, and it may even be submitted to a jury to decide upon evidence.1 But parties interested have no constitutional right to be heard upon the question, unless the State constitution clearly and expressly recognizes and provides for it. On general principles, the final decision rests with the legislative department of the State; and if the question is referred to any tribunal for trial, the reference and the opportunity for being heard are matters of favor and not of right. The State is not under any obligation to make provision for a judicial contest upon that question. And where the case is such that it is proper to delegate to individuals or to a corporation the power to appropriate property, it is also competent to delegate the authority to decide upon the necessity for the taking.3

1 Iron R. R. Co. v. Ironton, 19 Ohio, N. s. 299. The constitutions of some of the States require the question of the necessity of any specific appropriation to be submitted to a jury; and this requirement cannot be dispensed with. Mansfield, &c. R. R. Co. v. Clark, 23 Mich. 519; Arnold v. Decatur, 29 Mich. 77.

2 United States v. Harris, 1 Sum. 21, 42; Ford v. Chicago, &c. R. R. Co., 14 Wis. 609; People v. Smith, 21 N. Y. 595; Water Works Co. v. Burkhart, 41 Ind. 364.

8 People v. Smith, 21 N. Y. 597; Ford v. Chicago and N. W. R. R. Co., 14 Wis. 617; Matter of Albany St., 11 Wend. 152; Lyon v. Jerome, 26 Wend. 484; Hays v. Risher, 32 Penn. St. 169; North Missouri R. R. Co. v. Lackland, 25 Mo. 515; Same v. Gott, 25 Mo. 540; Bankhead v. Brown, 25 Iowa, 540; Contra Costa R. R. v. Moss, 23 Cal. 323; Matter of Fowler, 53 N. Y. 60; N. Y. Central, &c. R. R. Co. v. Met. Gas Co.,

63 N. Y. 326; Chicago, &c. R. R. Co. v. Lake, 71 Ill. 333; Warren v. St. Paul, &c. R. R. Co., 18 Minn. 384. In the case first cited, Denio, J., says: "The question is, whether the State, in the exercise of the power to appropriate the property of individuals to a public use, where the duty of judging of the expediency of making the appropriation, in a class of cases, is committed to public officers, is obliged to afford to the owners of the property an opportunity to be heard before those officers when they sit for the purpose of making the determination. I do not speak now of the process for arriving at the amount of compensation to be paid to the owners, but of the determination whether, under the circumstances of a particular case, the property required for the purpose shall be taken or not; and I am of opinion that the State is not under any obligation to make provision for a judicial contest upon that question.

The only part

[* 539] * How much Property may be taken.

The taking of property must always be limited to the necessity of the case, and consequently no more can be appropri[* 540] ated in any instance than the proper tribunal shall adjudge to be needed for the particular use for which the