[* 536]

*On the other hand, it is said that the legislature of New York has never exercised the right of eminent domain in favor of mills of any kind, and that "sites for steam engines, hotels, damages under the act, and not by action at common law as for a wrongful and unwarrantable encroachment upon his right of property. Shaw, Ch. J.: “It is contended that if this act was intended to authorize the defendant company to take the mill power and mill of the plaintiff, it was void because it was not taken for public use, and it was not within the power of the government in the exercise of the right of eminent domain. This is the main question. In determining it, we must look to the declared purposes of the act; and if a public use is declared, it will be so held, unless it manifestly appears by the provisions of the act that they can have no tendency to advance and promote such public use. The declared purposes are to improve the navigation of the Merrimac River, and to create a large mill power for mechanical and manufacturing purposes. In general, whether a particular structure, as a bridge, or a lock, or canal, or road, is for the public use, is a question for the legislature, and which may be presumed to have been correctly decided by them. Commonwealth v. Breed, 4 Pick. 463. That the improvement of the navigation of a river is done for the public use has been too frequently decided and acted upon to require authorities. And so to create a wholly artificial navigation by canals. The establishment of a great mill power for manufacturing purposes, as an object of great public interest, especially since manufacturing has come to be one of the great industrial pursuits of the Commonwealth, seems to have been regarded by the legislature, and sanctioned by the jurisprudence of the Commonwealth, and in our judgment rightly so, in determining what is a public use, justifying the exercise of right of eminent domain. See St. 1825, c. 148, incorporating the Salem Mill Dam Corporation; Boston and Roxbury Mill Dam Corporation v. Newman, 12 Pick. 467. The acts since passed, and the cases since decided on this ground, are very numerous. That the erection of this dam would have a strong and direct tendency to advance both these public objects, there is no doubt. We are therefore of opinion that the powers conferred on the corporation by this act were so done within the scope of the authority of the legislature, and were not a violation of the Constitution of the Commonwealth." Hazen v. Essex Company, 12 Cush. 477. See also Boston and Roxbury Mill Corporation v. Newman, 12 Pick. 467; Fiske v. Framingham Manufacturing Co. ib. 67; Harding v. Goodlett, 3 Yerg. 41. The courts of Wisconsin have sustained such laws. Newcomb v. Smith, 1 Chand. 71; Thien v. Voegtlander, 3 Wis. 465; Pratt v. Brown, ib. 603. And those of Connecticut. Olmstead v. Camp, 33 Conn. 532. And of Maine. Jordan v. Woodward, 40 Me. 317. And of Minnesota. Miller v. Troost, 14 Minn. 365. And they have been enforced elsewhere without question. Burgess v. Clark, 13 Ired. 109; McAfee's Heirs v. Kennedy, 1 Lit. 92; Smith v. Connelly, 1 T. B. Monr. 58; Shackleford v. Coffey, 4 J. J. Marsh. 40; Crenshaw v. Slate River Co. 6 Rand. 245. The whole subject was very fully considered and the validity of such legislation affirmed in Great Falls Manuf. Co. v. Fernald, 37 N. H. 444. In Newell v. Smith, 15 Wis. 101, it was held not constitutional to authorize the appropriation of the property, and leave the owner no remedy except to subsequently recover its value in an action of trespass.

churches, and other public conveniences, might as well be taken by the exercise of this extraordinary power." A somewhat similar view has been taken by the Supreme Court of Alabama.2 It is quite possible that, in any State in which this question would be entirely a new one, and where it would not be embarrassed by long acquiescence, or by either judicial or legislative precedents, it might be held that these laws are not sound in principle, and that there is no such necessity, and consequently no such imperative reasons of public policy, as would be essential to support an exercise of the right of eminent domain. But accepting as correct the decisions which have been made, it must be conceded that the term "public use," as employed in the law of eminent domain, has a meaning much controlled by the necessity, and somewhat different from that which it bears generally.*

2 Sadler v. Langham, 34 Ala. 311. In this case, however, it was assumed that lands for the purposes of grist-mills which grind for toll, and were required to serve the public impartially, might, under proper legislation, be taken under the right of eminent domain.

3

See this subject in general discussed in a review of Angell on Watercourses, 2 Am. Jurist, p. 25.

66

In People v. Township Board of Salem, 20 Mich., the court consider the question whether a use which is regarded as public for the purposes of an exercise of the right of eminent domain, is necessarily so for the purposes of taxation. They say: Reasoning by analogy from one of the sovereign powers of government to another is exceedingly liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general sense and for other purposes it would be idle or misleading to apply the same term. All governmental powers exist for public purposes, but they are not necessarily to be exercised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public welfare, but it reaches to every person, to every kind of business, to every species of property within the Commonwealth. The conduct of every individual, and the use of all property and of all rights is regulated by it, to any extent found necessary for the preservation of the public order, and also for the protection of the private rights of one individual against encroachment by others. The sovereign power of taxation is employed in a great many cases where the power of eminent domain might be made more immediately efficient and available, if constitutional principles could suffer it to be resorted to; but each of these has its own peculiar and appropriate sphere, and the object which is public for the demands of the one is not necessarily of a character to permit the exercise of the other.

"If we examine the subject critically, we shall find that the most important consideration in the case of eminent domain is the necessity of accomplishing

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

some public good which is otherwise impracticable; and we shall also find that the law does not so much regard the means as the need. The power is much nearer akin to that of the public police than to that of taxation; it goes but a step farther, and that step is in the same direction. 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 property, 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 estab

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 lishes 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 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.

could be justified in any such undertaking. And although the practice is not entirely uniform on the subject, the general 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 [*538] which is least consistent with the public interest. Accordingly, on the principle of public benefit, 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 exercise this power must rest with the State itself; and the ques

1 Beekman v. Saratoga and Schenectady R.R. Co. 3 Paige, 73; Wilson . 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. Wilmington, &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.