owners of land over which such a stream flows, although they do not own the flowing water itself, yet have a property in the use of that water as it flows past them, for the purpose of producing mechanical power, or for any of the other purposes for which they can make it available, without depriving those below them of the like use, or encroaching upon the rights of those above; and this property is equally protected with any of a more tangible character.1

What Interest in Land can be taken under the Right of Eminent Domain.

Where land is appropriated to the public use under the right of eminent domain, and against the will of the owner, we have seen how careful the law is to limit the public authorities to their precise needs, and not to allow the dispossession of the owner from any portion of his freehold which the public use does not require. This must be so on the general principle that the right being based on necessity cannot be any broader than the necessity which sup-' ports it. For the same reason, it would seem that, in respect to the land actually taken, if there can be any conjoint occupation of the owner and the public, the former should not be altogether excluded, but should be allowed to occupy for his private purposes to any extent not inconsistent with the public use. As a general rule, the laws for the exercise of the right of eminent domain do not assume to go further than to appropriate the use, and the title in fee still remains in 'the original owner. * In [*558] the common highways, the public have a perpetual easement, but the soil is the property of the adjacent owner, and he may make any use of it which does not interfere with the public right of passage, and the public can use it only for the purposes usual with such ways.2 And when the land ceases to be used by the public as a way, the owner will again become restored to his

Central R.R. Co. 25 Vt. 49; Bellinger v. New York Central R.R. Co. 23 N. Y. 42; Gardner v. Newburg, 2 Johns. Ch. 162.

1 Morgan v. King, 18 Barb. 284; Same Case, 35 N. Y. 454; Gardner v. Newburg, 2 Johns. Ch. 162.

2 In Adams v. Rivers, 11 Barb. 390, a person who stood in the public way and abused the occupant of an adjoining lot was held liable in trespass as being unlawfully there, because not using the highway for the purpose to which it was appropriated.

complete and exclusive possession, and the fee will cease to be encumbered with the easement.1

It seems, however, to be competent for the State to appropriate the title to the land in fee, and so to altogether exclude any use by the former owner, except that which every individual citizen is entitled to make, if in the opinion of the legislature it is needful that the fee be taken.2 The judicial decisions to this effect proceed upon the idea that, in some cases, the public purposes cannot be fully accomplished without appropriating the complete title; and where this is so in the opinion of the legislature, the same reasons which support the legislature in their right to decide absolutely and finally upon the necessity of the taking will also support their decision as to the estate to be taken. The power, it is said in one case, "must of necessity rest in the legislature, in order to secure the useful exercise and enjoyment of the right in question. A case might arise where a temporary use would be all that the public interest required. Another case might require the permanent and apparently the perpetual occupation and enjoyment of the property by the public; and the right to take it must be coextensive with the necessity of the case, and the measure of compensation should of course be graduated by the nature and the duration of the estate or interest of which the owner is deprived." And it was therefore held, where the statute provided that lands might be compulsorily taken in fee-simple for the purposes of an almshouse extension, and they were taken accordingly, that the title of the

original owner was thereby entirely devested, so that when [*559] the land ceased to *be used for the public purpose, the

title remained in the municipality which had appropriated it, and did not revert to the former owner or his heirs. And it

1 Dean v. Sullivan R.R. Co. 2 Fost. 321; Blake v. Rich, 34 N. H. 282; Henry v. Dubuque and Pacific R.R. Co. 2 Iowa, 288; Weston v. Foster, 7 Met. 299; Quimby v. Vermont Central R.R. Co. 23 Vt. 387; Giesy v. Cincinnati, &c., R.R. Co. 4 Ohio, N. s. 327.

2 This, however, is forbidden by the Constitution of Illinois of 1870, in the case of land taken for railroad tracks. Art. 2, § 13. And we think it would be difficult to demonstrate the necessity for appropriating the fee in case of any thoroughfare; and if never needful, it ought to be held incompetent.

3 Heyward v. Mayor, &c., of New York, 7 N. Y. 314. See also Dingley v. Boston, 100 Mass. 544.

4 Heyward v. Mayor, &c., of New York, 7 N. Y. 314. And see Baker v. Johnson, 2 Hill, 348; Wheeler v. Rochester, &c., R.R. Co. 12 Barb. 227;

does not seem to be uncommon to provide that, in the case of some classes of public ways, and especially of city and village streets, the dedication or appropriation to the public use shall vest the title to the land in the State, county, or city; the purposes for which the land may be required by the public being so numerous and varied, and so impossible of complete specification in advance, that nothing short of a complete ownership in the public is deemed sufficient to provide for them. In any case, however, an easement only would be taken, unless the statute plainly contemplated and provided for the appropriation of a larger interest.1

Compensation for Property taken.

It is a primary requisite, in the appropriation of lands for public purposes, that compensation shall be made therefor. Eminent domain differs from taxation in that, in the former case, the citizen is compelled to surrender to the public something beyond his due proportion for the public benefit. The public seize and appropriate his particular estate, because it has special need for it, and not because it is right, as between him and the government, that he should surrender it.2 To him, therefore, the benefit and protection he receives from the government are not sufficient compensation; for those benefits are the equivalent for the taxes he pays, and the other public burdens he assumes in common with the community at large. And this compensation must be pecuniary in its character, because it is in the nature of a payment for a compulsory purchase.3

Munger v. Tonawanda R.R. Co. 4 N. Y. 349; Rexford v. Knight, 11 N. Y. 308; Commonwealth v. Fisher, 1 Pen. & Watts, 462; De Varaigne v. Fox, 2 Blatch. 95; Coster v. N. J. R.R. Co. 3 Zab. 227; Plitt v. Cox, 43 Penn. St. 486. Barclay v. Howell's Lessee, 6 Pet. 498; Rust v. Lowe, 6 Mass. 90; Jackson v. Rutland and B. R.R. Co. 25 Vt. 151; Jackson v. Hathaway, 15 Johns. 447. People v. Mayor, &c., of Brooklyn, 4 N. Y. 419; Woodbridge v. Detroit,

1

8 Mich. 278; Booth v. Woodbury, 32 Conn. 130.

3

The effect of the right of eminent domain against the individual “amounts to nothing more than a power to oblige him to sell and convey when the public necessities require it." Johnson, J., in Fletcher v. Peck, 6 Cranch, 145. And see Bradshaw v. Rogers, 20 Johns. 103, per Spencer, Ch. J.; People v. Mayor, &c., of Brooklyn, 4 N. Y. 419; Carson v. Coleman, 3 Stockt. 106; United States v. Minnesota, &c., R.R. Co. 1 Minn. 127; Railroad Co. v. Ferris, 26 Texas, 603; Curran v. Shattuck, 24 Cal. 427; State v. Graves, 19 Md. 351.

[* 560]

*The time when the compensation must be made may depend upon the peculiar constitutional provisions of the State. In some of the States, by express constitutional direction, compensation must be made before the property is taken. No constitutional principle, however, is violated by a statute which allows private property to be entered upon and temporarily occupied for the purpose of a survey and other incipient proceedings, with a view to judging and determining whether the public needs require the appropriation or not, and, if so, what the proper location shall be; and the party acting under this statutory authority would neither be bound to make compensation for the temporary possession, nor be liable to action of trespass. When, however, the land has been viewed, and a determination arrived at to appropriate it, the question of compensation is to be considered; and in the absence of any express constitutional provision fixing the time and the manner of making it, the question who is to take the property whether the State, or one of its political divisions or municipalities, or, on the other hand, some private corporation may be an important consideration.

When the property is taken directly by the State, or by any municipal corporation by State authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right of eminent domain, that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by the law by which the party can obtain compensation, and that an impartial tribunal is provided for assessing

it.2 The decisions upon this point assume that, when the [*561] State * has provided a remedy by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction; since the property of the municipality, or of the State, is a fund to which he can resort without risk of

1 Bloodgood v. Mohawk and Hudson R.R. Co. 14 Wend. 51, and 18 Wend. 9; Cushman v. Smith, 34 Me. 247; Nichols v. Somerset, &c., R.R. Co. 43 Me. 356; Mercer v. McWilliams, Wright (Ohio), 132; Walther v. Warner, 25 Mo. 277; Fox v. W. P. R R. Co. 31 Cal. 538.

2 Bloodgood v. Mohawk and Hudson R.R. Co. 18 Wend. 9; Rogers v. Bradshaw, 20 Johns. 744; Calking v. Baldwin, 4 Wend. 667; Case v. Thompson, 6 Wend. 634; Fletcher v. Auburn and Syracuse R.R. Co. 25 Wend. 462; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 Ill. 518; Callison v. Hedrick, 15 Grat. 244; Jackson v. Winn's Heirs, 4 Lit. 323; People v. Green, 3 Mich. 496; Lyon v. Jerome, 26 Wend. 497, per Verplanck, Senator; Gardner v. Newburg,

loss.1 It is essential, however, that the remedy be one to which the party can resort on his own motion; if the provision be such that only the public authorities appropriating the land are authorized to take proceedings for the assessment, it must be held to be void. But if the remedy is adequate, and the party is allowed to pursue it, it is not unconstitutional to limit the period in which he shall resort to it, and to provide that, unless he shall take proceedings for the assessment of damages within a specified time, all right thereto shall be barred. The right to compensation, when property is appropriated by the public, may always be waived; and a failure to apply for and

66

have the com- [*562]

2 Johns. Ch. 162; Charlestown Branch R.R. Co. v. Middlesex, 7 Met. 78; Harper v. Richardson, 22 Cal. 251; Baker v. Johnson, 2 Hill, 342; People v. Hayden, 6 Hill, 359. Although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid before property is thus taken, it is, I apprehend, the settled doctrine, even as against the State itself, that at least certain and adequate provision must first be made by law (except in cases of public emergency), so that the owner can coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay; otherwise the law making the appropriation is no better than blank paper. Bloodgood v. Mohawk and Hudson R.R. Co. 18 Wend. 9. The provisions of the statute prescribing the mode of compensation in cases like the present, when properly understood and administered, come fully up to this great fundamental principle; and even if any doubt could be entertained about the true construction, it should be made to lean in favor of the one that is found to be most in conformity with the constitutional requisite." People v. Hayden, 6 Hill, 359. "A provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property." Gardner v. Newburg, 2 Johns. Ch. 168; Buffalo, &c., R.R. Co. v. Ferris, 26 Texas, 588.

In Commissioners, &c., v. Bowie, 34 Ala. 461, it was held that a provision by law that compensation when assessed should be paid to the owner by the county treasurer sufficiently secured its payment. And see Talbot v. Hudson, 16 Gray, 417.

2

Shepardson v. Milwaukee and Beloit R.R. Co. 6 Wis. 605; Powers v. Bears, 12 Wis. 220 See McCann v. Sierra Co. 7 Cal. 121; Colton v. Rossi, 9 Cal. 595 ; Ragatz v. Dubuque, 4 Iowa, 343. But in People v. Hayden, 6 Hill, 359, where the statute provided for appraisers who were to proceed to appraise the land as soon as it was appropriated, the proper remedy of the owner, if they failed to perform this duty, was held to be to apply for a mandamus.

3

People v. Green, 3 Mich. 496; Charlestown Branch R.R. Co. v. Middlesex, 7 Met. 78; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 Ill. 518; Callison v. Hedrick, 15 Grat. 244; Gilmer v. Lime Point, 18 Cal. 229; Harper v. Richardson, 22 Cal. 251.

Matter of Albany St. 11 Wend. 149; Brown v. Worcester, 13 Gray, 31.