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important to appropriate lands or other property for its own purposes, and to enable it to perform its functions, -as must sometimes be necessary in the case of forts, light-houses, military posts or roads, and other conveniences and necessities of government, the general government may still exercise the authority, as well within the States as within the territory under its exclusive jurisdiction, and its right to do so may be supported by the same attach importance to the fact that in ceding its portion of the District of Columbia to the United States, “ the State never intended to abandon all interest in the District. The relation, therefore, between the District of Columbia, composed of territory ceded by Maryland for certain purposes only, and the State of whose soil it forms a part, is more intimate and close than that which it bears to any other State.” Gilmer v. Lime Point, 18 Cal. 229, was a proceeding in the State court, on the application of the United States by its agent, to condemn lands for the

purposes of a light-house. The right to maintain it was contested, but sustained. A similar decision was made in Burt v. Merchants Ins. Co., 106 Mass. 356. Considerable reliance is placed in the opinion on the course of legislation in that State upon the subject, which it was said to be too late to question; and it is noticeable that the learned judge (Chapman, Ch. J.) who delivered the opinion makes no allusion to any necessity for State action in such a case; an omission that could hardly have occurred, had he been considering the case unembarrassed by legislative precedents. In Trombley v. Auditor-General, 23 Mich. 471, an act of the legislature authorizing the Governor to take proceedings to condemn lands for the use of the general government was held invalid, on the grounds that every sovereignty possesses inherent authority to appropriate the property of its citizens or subjects for public uses, and must be the judge of its own needs. The facts in that case would illustrate very forcibly some of the difficulties of any other view. Those were that after the Governor, at the request of an agent of the general government, had taken proceedings to condemn lands for a light-house, and bad had the damages assessed, he was notified by the Federal authorities that they had decided not to take the land. By the terms of the law, however, the damages, when assessed, were to be paid from the State treasury, and the owner now demanded payment; so that the aid of the court was invoked, not to enable the United States to obtain lands it wanted, but to compel the State to pay for lands for the United States which were not wanted. The case differs from the others in the important particular that in this the State authorities were the acting parties, while in the others the Federal authorities were the petitioners. In the one the State was seeking to condemn lands for the nation; in the others the nation was employing State laws and State courts to condemn lands for itself. · Even if the latter may be done, some curious results might follow in some cases. Some of the State constitutions require the necessity for the taking of property to be affirmed by a jury; and it would be singular, to say the least, if the right of the United States to take lands for important national purposes, after the taking had been decided upon by the proper national authority, could be made to depend upon a finding of its necessity by twelve men selected by lot in one of the States.

reasons which support the right in any case ; that is to say, the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other authority.

What Property is subject to the Right. Every species of property which the public needs may require, and which government cannot lawfully appropriate under any other right, is subject to be seized and appropriated under the right of eminent domain. Lands for the public ways; timber, stone, and gravel with which to make or improve the public ways ;? buildings standing in the way of contemplated improvements, or which for any other reason it becomes necessary to take, remove, or destroy for the public good ; 3 streams of water; 4 corporate fran


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

2 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.

3 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 has been held not to be 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. See also Stone v. Mayor, &c., of New York, 25 Wend. 157 ; McDonald v. Redwing, 13 Minn. 38. But see Hale v. Lawrence, 1 Zab. 714; Same v. Same, 3 Zab. 590.

* Gardner v. Newburg, 2 Johns. Ch. 162. In this case a stream was appropriated in order to supply a town with water. The appropriation might, of course, be made for any other object of public utility; and a stream may even be diverted from its course to remove it out of the way of a public improvement when not appropriated. See Johnson v. Atlantic, &c., R.R. Co., 35 N. H. 569; Baltimore, &c., R.R. Co. v. Magruder, 34 Md. 79; s. c. 6 Am. Rep. 310. But in general, in constructing a public work, it is the duty of those concerned to avoid diverting streams, and to construct the necessary culverts, bridges, &c., for that purpose. March v. Portsmouth, &c., R.R. Co., 19 N. H. 372; Baughton v. Carter, 18 Johns. 405; Rowe v. Addison, 34 N. H. 306; Proprietors, &c.


chises ; 1 and generally, it may be said, legal and equitable rights of * every description are liable to be thus appro- [* 527] priated. From this statement, however, must be excepted money, or that which in ordinary use passes as such, and which

· the government may reach by taxation, and also rights in action, which can only be available when made to produce money; neither of which can it be needful to take under this power.2


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v. Nashua & Lowell R.R. Co., 10 Cush. 388; Haynes v. Burlington, 38 Yt. 361. And see Pettigrew v. Janesville, 25 Wis. 23; Arimond v. Green Bay Co., 31 Wis. 316; Stein v. Burden, 24 Ala. 130. As to the obligation of a railroad company to compensate parties whose lands are flooded by excavations or embankments of the company, see Brown v. Cayuga, &c., R.R. Co., 12 N. Y. 486; Norris v. Vt. Cent. R.R. Co., 28 Vt. 99. Compare Eaton v. Boston, C. & M. R.R. Co., 51 N. H. 504, where it was decided that a corporation which flooded a man's land by removing a natural protection in the construction of their road was liable for the injury, even though their road was constructed with due care, with Bellinger v. N. Y. Central R.R. Co., 22 N. Y. 42, and other cases cited, post, pp. 570, 571.

· Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Crosby v. Hanover, 36 N. H. 420; Boston Water Power Co, v. Boston, and Worcester R R. Co., 23 Pick. 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 Grier, J.; Chesapeake and Ohio Canal Co. v. Baltimore and 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 and 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; Commonwealth v. Pittsburg, &c., R.R.Co., 58 Penn. St. 50. • 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. This subject receives a very full and satisfactory examination by Judges Pearson and Sharswood, in Commonwealth v. Pennsylvania Canal Co., 66 Penn. St. 41; 8. c. 5 Am. Rep. 329.

? 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 Legislative Authority requisite.

The right to appropriate private property to public uses [* 528) lies * dormant in the State, until legislative action is had,

pointing out the occasions, the modes, conditions, and agencies for its appropriation. Private property can only be taken pursuant to law; but a legislative act declaring the necessity, being the customary mode in which that fact is determined, must be held to be for this purpose “ the law of the land," and no further finding or adjudication can be essential, unless the constitution of the State has expressly required it. When, however,

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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 for ever 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, only to 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, which for the time being sets aside all the rules and protections of private right, shall then prescribe. See post, p. 530, note.

? Barrow v. Page, 5 Hayw. 97.

? “Whatever may be the theoretical foundation for the right of eminent domain, it is certain that it attaches as an incident to every sovereignty, and constitutes a condition upon which all property is holden. When the public necessity requires it, private rights to property must yield to the paramount right of the sovereign power. We have repeatedly held that the character of the work for which the property is taken, and not the means or agencies employed for its construction, determines the question of power in the exercise of this right. It requires no judicial condemnation to subject private property to public uses. Like the power to tax, it resides in the legislative department to whom the delegation is made. It may be exercised directly or indirectly by that body; and it can only be restrained by the judiciary when its limits have been exceeded, or its authority has been abused or perverted.” Kramer v. Cleveland and Pittsburg R.R. Co., 5 Ohio, n. s. 146.

Those pro

action is had for this purpose, there must be kept in view that general as well as reasonable and just rule, that, whenever in pursuance of law the property of an individual is to be devested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the proceeding will be ineffectual.1 visions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must show affirmatively such compliance. For example, if by a statute prescribing the mode of exercising the right of eminent domain, the damages to be assessed in favor of the property owner for the taking of his land are to be so assessed by disinterested freeholders of the municipality, the proceedings will be ineffectual unless they show on their face that the appraisers were such freeholders and inhabitants. So if a statute only authorizes proceedings in invitum after an effort shall have been made to agree with the owner on the compensation to be paid, the fact of such effort and its failure must appear. So if the statute vests the title to lands appropriated in the State or in * a corporation on payment (* 529] therefor being made, it is evident that, under the rule stated, the payment is a condition precedent to the passing of the title. And where a general railroad law authorized routes to be

1 Gillinwater v. Mississippi, &c., R.R. Co., 13 Ill. 1; Stanford v. Worn, 27 Cal. 171. 2 Nichols v.

Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Conn. 428; People v. Brighton, 20 Mich. 57.

3 Reitenbaugh v. Chester Valley R.R. Co., 21 Penn. St. 100; West Va. Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382. But it was held in this case that if the owner appears in proceedings taken for the assessment of damages, and contests the amount without objecting the want of any such attempt, the court must presume it to have been made.

* Stacy v. Vermont Central R.R. Co., 27 Vt. 44. By the section of the statute under which the land was appropriated, it was provided that when land or other real estate was taken by the corporation, for the use of their road, and the parties were unable to agree upon the price of the land, the same should be ascertained and determined by the commissioners, together with the costs and charges accruing thereon, and upon the payment of the same, or by depositing the amount in a bank, as should be ordered by the commissioners, the corporation should be deemed to be seised and possessed of the lands. Held, that, until the payment was made, the company had no right to enter upon the land to construct the


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