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642 CONSTITUTIONAL LIMITATIONS. [CH. XV.

CHAPTER XV.
THE EMINENT DOMAIN.

EVERY sovereignty possesses buildings, lands, and other prop-

erty, which it holds for the use of its officers and agents, to enable
them to perform their public functions. It may also have prop-
erty from the rents, issues, and profits, or perhaps the sale, of
which it is expected the State will derive a revenue. Such prop-
erty constitutes the ordinary domain of the State. In respect to
its use, enjoyment, and alienation, the same principles apply
which govern the management and control of like property of
individuals; and the State is in fact but an individual proprietor,
whose title and rights are to be tested, regulated, and governed by
the same rules that would have pertained to the ownership of the
same property by any of its citizens. There are also cases in
which property is peculiarly devoted to the general use and enjoy-
ment of the individual citizens who compose the organized society,
but the regulation and control oi which are vested in the State by
virtue of its sovereignty. The State may be the proprietor of
this property, and retain it for the common use, as a means of
contributing to the general health, comfort, or happiness of the
people; but generally it is not strictly the owner, but rather the
governing and supervisory trustee of the public rights in such
property, 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 privilege.' In some instances these rights are
1 In The Company of Free Fishers, therein. As regards public and exclusive
&c. t. Gann, 20 C. B. N. s. 1. it was held rights of fishery in this country, see Car-
that the ownership of the Crown in the son v. Blazer, 2 Binn. 475; s. c 4 Am.
bed of navigable waters is for the bene- Dec. 463; Commonwealth v. Chapin, 5
fit of the subject, and cannot be used in Pick. 190; s. c 16 Am. Dec. 386; Parker
any such manner as to derogate from or v. Milldam Co., 20 Me. 353; s c 37 Am.
interfere with the right of navigation, Dec. 56 Parsons r. Clark, 76 Me 476;
which belongs by law to all the subjects Commonwealth v. Look, 108 Mass. 452;
of the realm. And that consequently the Cole c. Eastham, 133 'Mass. 65; Packard
grantees of a particilar portion, who oc- in. Ryder, 144 Mass. 440; Sloan c. Biemil-
eupied it for a fishery, could not be law- ler, 34 Ohio St. 472; Lincoln v. Davis, 5.3
fully authorized to charge and collect Mich. 375; Anzell on Watercourses. §55 ,,
anchorage dues from vessels anchoring and cases cited; Cooley on Torts, 388-390.
CH1. XV.] THE EMINENT DOMAIN. 643

of such a nature, or the circumstances are such, that the most

feasible mode of enabling every citizen to participate therein may
seem to be for the State to transfer its control, wholly or partially,
to individuals, either receiving by way of augmentation of the
public revenues a compensation therefor, or securing in return a
release to the citizens generally from some tax or charge which
would have rested upon them in respect to such rights, had the
State retained the usual control in its own hands, and borne the
incidental burdens.
The rights of which we here speak are considered as pertaining
to the State by virtue of an authority existing in every sovereignty,
and which is called the eminent domain. Some of these are com-
plete without any action on the part of the State; as is the case
with the rights of navigation in its seas, lakes, and public rivers,
the rights of fishery in public waters, and the right of the State to
the precious metals which may be mined within its limits.' Others
only become complete and are rendered effectual through the State
displacing, either partially or wholly, the rights of private owner-
ship and control ; and this it accomplishes either by contract with
the owner, by accepting his gilt, or by appropriating his property
against his will through an exercise of its superior authority. Of
these, the common highway furnishes an example; the public rights
therein being acquired either by the grant or dedication of the
owner of the land over which they run, or by a species of forcible
dispossession when 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 ex-
istence and perpetuity, and which, so far as when called into ac-
tion it excludes pre-existing individual rights, is sometimes spoken
of as being 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 reference to those cases in which the government is
called upon 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 its owners.
More accurately, it is the rightful authority, which exists in every
sovereignty, to control and regulate those rights of a public nature
1 BL. Com. 294 3 Kent, 378, note. carries with it to the grantee the title to
In California, it has been decided that a all mines Boggs v. Merced, &c. Co., 14
grant of public lands by the government Cal. 279, Moore v. Smaw, 17 Cal. 199.
 644 CONSTITUTIONAL LIMITATIONS. [CH. XV.

which pertain to its citizens in common, and to appropriate and

control individual property for the public benefit, as the public
safety, necessity, convenience, or welfare may demand.'
When the existence of a particular power in the government is
recognized on the ground of necessity, no delegation of the legisla-
tive power by the people can be held to vest authority in the de-
partment which holds it in trust, to bargain away such power, or
to so tie up the hands of the government as to preclude its re-
peated exercise, as often and under such circumstances as the
needs of the government may require. For if this were otherwise,
the authority to make laws for the government and welfare of the
State might be so exercised, n strict conformity with its constitu-
tion, as at length to preclude the State performing its ordinary and
essential functions, and the agent chosen to govern the State might
put an end to the State itself. It must follow that any legislative
bargain in restraint of the complete, continuous, and repeated ex-
ercise of the right of eminent domain is unwarranted and void;
and that provision of the Constitution of the United States which
forbids the States violating the obligation of contracts could not
be so construed as to render valid and effectual such a bargain,

1 Vattel, c. 20, § 34; Bynkershoek, no constitutional provision to give it force.

lib. 2, c. 15; Ang. on Watercourses, Brown v. Beatty, 34 Nli-s. 227; Taylor v.
§ 457; 2 Kent, 338-340; Redf. on Railw. Porter, 4 Hill, 140; Lake Shore, &c. R. R.
c. 11, § 1; Waples, Pro. in Rem, § 242. Co. v. Chicago, &c., 1. R. Co., 97 Ill.
The right which belongs to the society 506; s. c. 2 Am. & Eng. R. R. Cas., 440;
or to the soverejgn of disposing, in case United States v. Jones, 109 U. S. 513.
of riecessity, and for the public safety, of " Title to property is always held upon
all the wealth contained in the State, is the implied condition that it must be
called the eminent domain." lcKinley, surrendered to the government, either
J., in Pollard's Lessee v. Hagan, 3 How. in whole or in part, when the public
212, 223. " Notwithstanding the grant necessities, evidenced according to the
to individuals, the eminent domain, the established forms of law, demand." Ho-
highest and most exact idea of property, geboorn, J., in People v. Mayor, &c. of
remains in the government, or in the ag- New York, 32 Barb. 102, 112. And see
gregate body of the people in their sov- Heyward v. Mayor, &c. of New York, 7
ereign capacity; and they have a right N. Y. 314; Water Works Co. v. Burk-
to resume the possession of the property, hart, 41 Ind. 364; Weir v. St. Paul, &c.
in the manner directed by the constitu- R. R. Co., 18 Minn. 155. That one exer-
tion and laws of the State, whenever the cise of the power of appropriation will not
public interest requires it. This right of preclude others for the same purpose, see
resumption may be exercised, not only Central Branch U. P. R. R. Co. v. Atchi-
where the safety, but also where the in- son, &c. R. R. Co., 26 Kan. 669; 5 A. &
terest, or even the expediency of the State E. R. R. Cas. 397, and cases in note; Peck
is concerned ; as where the land of the v. Louisville, &c. Ry. Co. 101 Ind. 366;
individual is wanted for a road, canial, or Dietrichs v. Lincoln &c. R. R. Co., 13
other public improvement." WValorth, Neb. 361. But when a bridge company
Chancellor, in Beekman v. Saratoga & has once located its line of approach and
Schenectady R. R. Co., 3 Paige, 45, 73; begins work, it cannot change it without
s. c 22 Am. Dec. 679. The right is in- legislative authority. Matter of Pough-
herent in all governments, and requires keepsie Bridge Co., 108 N. Y. 483.
CH. XV.] THE EMINENT DOMAIN. 645

which originally was in excess of proper authority. Upon this

subject we shalt content ourselves with referring in this place to
what has been said in another connection.'
As under the peculiar American system the protection and
regulation of private rights, privileges, and immunities in general
belong to the State governments, and those governments are ex-
pected to make provision for the conveniences and necessities
which are usually provided for their citizens through the exer-
cise 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 conclusion of
the authorities. In the new Territories, however, where the govern-
ment of the United States exercises sovereign authority, it pos-
sesses, as incident thereto, the right of eminent domain, which it
may exercise directly or through the territorial governments;
but this right passes from the nation to the newly formed State
whenever the latter is admitted into the Union. 2 So far, however,
as the general government may deem it important to appropriate
lands or other property for its own purposes, and to enable it to
perfori its functions, - as must sometimes be necessary in the
case of forts, light-houses, military posts or roads, and other con-
veniences and necessities of government, - the general govern-
inent 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 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 perpetu-
ating its existence should not be liable to be controlled or defeated
by the want of consent of private parties, or of any other au-
thority.3

I See ante, p. 338. N. H. 591, the contrary is now deter-

2 Pollard's Lessee v. Haaan, 3 How. mined. See Trombley v. Auditor-General,
212; Goorltitle r. Kibbee, 9 I-low. 471; 23 Mich. 471; Kohl c. United States, 91
Doe r. Beebe, 13 How. 25; United States U. S. 807. Such an authority in the
r. The Pailroad Bridge Co., 6 McLean, States is needless, for the power of the
517; Weber v. Harbor Commissioners, general government is ample for all
IS Wall 57; Swan v. Williams, 2 Mich. needs. But a statute is valid which
427; Warren v. St. Paul, &c. R. R. Co., grants to the United States the right to in-
18 Minn. 384. Although it has been held stitute condemnation proceedings. Matter
in some cases that the States have au- of Petition of United States, 96 N. Y. 227.
thority, under the eminent donain, to 3 Kohl v. United States, 91 U. S. 367;
appropriate the property of individuals in Trombley v. Auditor-General, 23 Mich.
order to donate it to the general govern- 471; Darlington r. United States, 82 Pa.
ment for national purposes: Heddall v. St. 382. The United States may delegate
Bryan, 14 Md. 444; Gilmer v. Lime Point, to a State tribunal the power to ascertain
18 Cal. 229 ; Burt v. Merchants' Ins. Co., the compensation to be paid. United
106 Mass. 356, and Cummings v. Ash, 50 States v. Jones, 109 U. S. 513.
 646 CONSTITUTIONAL LIMITATIONS. [CH. Xv.

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. 1 Lands for the public ways ; timber,
stone, and. gravel with which to make or improve the public
ways; 2 buildings standing in the way of contemplated improve-
ments, or which for any other reason it becomes necessary to take,
remove, or destroy for the public good ; 3 streams of water; 4 cor-

1 People v. Mayor, &c. of New York, cisco, 1 Cal. 355; Stone v. Mayor, &c., of
32 Barb. 102; Bailey r Miltenberger, 31 New York, 25 Wend. 137; Taylor c. Ply
Pa. St. 37. Land belonging to, but not mouth, 8 Met.462 ; Ruggles c. -Nantucket,
in actual use by a State university, may 11 Cush. 433; Keller v. Corpus Christi, 50
be condemned. In re St. Paul & N. P. Tex. 614; s. c. 32 Am. Rep. 613.
Ry. Co., 34 Minn. 227. 4 Gardner v. Newburg, 2 Johns. Ch.
2 Wheelock v. Young, 4 Wend. 647; 162; s. c. 7 Am. Dec. 526. In this case
Lyon c. Jerome, 15 Wend. 569 ; Jerome a stream wNas appropriated in order to
v. Ross, 7 Johns. Ch. 315 ; s. c. 11 Am. supply a town with water. The appropri-
Dec. 484 ; Bliss v. Hosmer, 15 Ohio, 44; ation might, of course, be made for any
Watkins v. Walker Co., 18 Tex. 585. In other object of public utility; and a stream
Eldridge v. Smith, 34 Vt. 484, it was held may even be diverted from its course to
competent for a railroad company to ap- remove it out of the way of a public mim-
propriate lands for piling the wood and provement when not appropriated. See
lumber used on the road, and brought o Johnson v Atlantic, &c. R. R. Co., 35 N. H1.
it to be transported thereon. 569; Baltimore, &c. R. R. Co. r. Magru-
3 Wells v. Somerset, &c. R. R. Co., 47 der, 34 'ld. 79; s. c. 6 Am. Rep. 310,
Me. 345. So of a pier. Matter of Union Reusch i. Chicago, &c. R. R. Co., 57 Iowa,
Ferry Co., 98 N. Y. 139. But the de- (87. But in general, in constructing a pub-
struction of a private house during a fire lic wjrk, it is the duty of those concerned
to prevent the spreading of a conflagra- to avoid diverting streams, and to con-
tion has been held not to be an appropri- struct the necessary culverts, bridges,
ation under the right of eminent domain, &c., for that purpose. March v. Ports-
but an exercise of the police power. mouth, &c. R R. Co., 19 N H. 372;
" The destruction of this property was Boughton c. Carter, 18 Johns 403: Rowe
authorized by the law of overruling v. Addison, 34 N. H. 306; Proprietors.
necessity ; it was the exercise of a natural &c. v. Nashua & Lowell R. R. Co., 10
right belonging to every individual, not Cush. 388; Haynes v. Burlington, 38 Vt.
conferred by law, but tacitly accepted 330. And see Pettigrew v, Evansville, 25
from all human codes." Per Shermnan, Wis, 223; Arimond i. Green Bay Co., 31
Senator, in Russell v. Mayor, &c. of New Wis. 316; Stein i. Burden, 24 Ala. 130;
York, 2 Denio, 461, 473. See also So- Diamond Match Co. r. New Haven,
rocco v. Geary, 3 Cal. 69; Conwell r. 35 Conn. 510. As to the obligation
Emrie, 2 Ind. 33; American Print Works of a railroad company to compensate
r. Lawrence, 21 N. J. 248; Same r. Same, parties whose lands are flooded by exca-
23 N. J. 9, 590; McDonald r. Redwing, 13 vations or embankments of the company,
Minn. 38: Field v. Des Moines, 39 Iowa, see Brown r. Cayuga, &c. R. R. Co., 12
575. The municipal corporation whose N. Y. 486; Norris r. Vt. Cent, R. R. Co,
officers order the destruction is not liable 28 Vt. 99. Compare Eaton r. Boston, C.
for the damages unless expressly made & 11.R. R. Co., 51 N. H. 504, where it was
so by statute. White i. Charleston, 2 decided that a corporation which flooded
Hill (S. C.), 571; Dunbar v. San Fran- a man's land by removing a natural pro,
C:1. XV.] THE EMINENT DOMAIN. 647

porate franchises 1 and generally, it may be said, legal and equi-

table rights of every description are liable to be thus appropri-
ated.2 From this statemnent, however, must be excepted money,

tection in the construction of its road was 5 Am. Rep 829. In Central City Horse
liable for the injury, even though its road Railway Co. v. Fort Clark Horse Railway
was constructed with due care, with Bel- Co., B7 Ill. 523, this subject is somewhat
lenger v. N. Y. Central R. I. Co., 28 N. considered. The question involved is
Y. 42; Abbott v. Kansas City, &c. Co., thus stated by the court : "Can a com-
83 Mo. 271; Moss v. St. Louis, &c. Ry. peting horse railway company in an in-
Co., 85 Mo. 86 ; Bell v. Norfolk, &c. R. corporated city acquire by compulsion a
R. Co., 101 N. C. 21; and other cases title to or the joint use of [a part of] the
cited, post, pp. 667, 703. track and superstructure of another like
1 Piscataqua Bridge c. New Hampshire corporation, arid for the express purpose
Bridge, 7 N H. 35; Crosby v. Hanover, of making the tracks so compulsorily
36 N. H. 404; Tuckahoe Canal Co v. taken a portion of its own line 7 " This
Railroad Co., 11 Leigh, 42; s. c. 36 Am. question is answered in the negative,
Dec. 374; Boston Water Power Co. v. though at the same time it is intimated
Boston & Worcester R. R. Co., 23 Pick. that "proceedings might be instituted,
360; Central Bridge Corporation r. Low- perhaps, to condemn the entire road and
ell, 4 Gray, 474; West River Bridge v. franchise, aid thus pass it over as an en-
Dix, 6 How. 507; Richmond R. It. Co v. tirety to the competing road." But as
Louisa It. I. Co. 13 Ho1w. 71, per Grier, to this, see Lake Shore, &c. R. R. Co i.
J. ; Chesapeake & Ohio Canal Co r. Chicago, &c. R. R. Co., 97 Ill. 506 ; Re
Baltimore & Ohio R. 11. Co., 4 Gill & J. Rochester Water Commissioners, 66 N Y.
5; State v. Noyes, 47 Me. 189; Red River 413; Little Miami, &c. R. R. Co. r. Day-
Bridge Co. -. Clarksville, 1 Sneed, 176, ton, 23 Ohio St. 510. Land appropriated
Arnington c. Barnet, 15 Vt. 745; White by one railroad company under the emi-
River Turnpike Co. v. Vermont Central nent domain, but not required for the
R. R. Co., 21 Vt. 530; Newcastle, &c. exercise of its franchises or the discharge
R. R. Co. v. Peru & Indiana R R. Co., of its duties, is liable to be taken for the
3 Ind. 464; Springfield v. Connecticut corporate use of another railroad com-
River R. R. Co., 4 Cush. 63: Forward v. pany. North Carolina, &c. R. R. Co. v.
Hampshire. &c. Canal Co., 22 Pick. 462; Carolina Central, &c. I. R. Co , 83 N. C.
Commonwealth v. Pittsburg, &c. R. R. 489. See Chicago, &c. R. R. Co. t. Lake,
Co., 58 Pa. St. 26; Re Towanda Bridge 71 I. 333. A contract ceding to a tele-
Co., 91 Pa. St. 216; In re Twenty-Second graph company the exclusive right of
St., 102 Pa. St. 108. " The only true operating and maintaining its lines over
rule of policy as well as of law is, that a the right of way of a railroad company
grant for one public purpose must yield cannot preclude the State from auithoriz-
to another more urgent and important, ing the establishment of another telegraph
and this can be effected without any in- line over the same right of way. New
fringement on the constitutional rights Orleans, &c. R R_ Co. t. Southern, &c.
of the subject. If in such cases suitable Telegraph Co , 53 Ala. 211. The bridge
and adequate provision is made by the of a corporation may be taken under this
legislature for the compensation of those power and made a free bridge. Re To-
whose property or franchise is injured or warnda Bridge Co., 91 Pa. St. 216. So
taken away, there is no violation of pub- of the right of a railroad company given
lic faith or private right. The obligation under peculiar circumstances to take toll
of the contract created by the original on a hiahway. Phila. &c. Ry. Co.'s Ap-
charter is thereby recognized." Per peal, 120 Pa St. 90.
Bigelow, J., in Central Bridge Corpora- 2 The appurtenant right of an abutter
tion v. Lowell, 4 Gray, 474, 482. This to have a street open may be taken :
subject receives a very full and satisfac- Rennselaer i. Leopold, 106 Ind. 29, the
tory examination by Judges Pearson and right to pass over a private way : Buffalo,
Sharswood, in Commonwealth v. Pennsyl- N. Y. & P. R. R, Co. r. Overton, 35 Hun,
vania Canal Co., 66 Pa. St. 41; s. c. 157 the right to have a farm-crossing at
648 CONSTITUTIONAL LIMITATIONS. [CH. XV.

or that which in ordinary use passes as such, and which the govern.
ment 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.'

Legislative Authority Requisite.

The right to appropriate private property to public uses lies
dormant in the State, until legislative action is had, pointing out
the occasions, the modes, conditions, and agencies for its appro-
priation. 2 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 adjudi-
cation can be essential, unless the constitution of the State has
expressly required it.3 When, however, action is had for this

a particular place. Matter of N. Y. L &c. To the same effect is Cooper v. Williams,

R. R. Co, 44 Hun, 194. 5 Ohio, '92; s. c. 22 Am. Dec. 745.
1 Property of individuals cannot be Taking money under the right of emi-
appropriated by the State under this nent domain, when it must be compen-
power for the mere purpose of adding to sated in money afterwards, could be noth-
the revenues of the State. Thus it has ing more or less than a forced loan, only
been held in Ohio, that in appropriating to be justified as a last resort in a time of
the water of streams for the purposes of extreme peril, where neither the credit of
a canal, more could not be taken than the government nor the powerof taxation
was needed for that object, with a view could be made available. It is impossi-
to raising a revenue by selling or leas- ble to lay down rules for such a case, ex-
ing it. " The State, notwithstanding the cept such as the law of overruling reces-
sovereignty of her character, can take only sity, which for the time being sets aside
sufficient water from private streams for all the rules and protections of private
the purposes of the canal So far the right, shall then prescribe. See post,
law authorizes the commissioners to in- p 652, note.
vade private right as to take what may 2 Barrow v. Page, 5 Hayw. 97; Rail-
be necessary for canal navigation, and road Co. v. Lake, 71 Ill. 333; Allen r.
to this extent authority is conferred by Jones, 47 Ind. 438. It cannot be pre-
the constitution, provided a compensation sumed that any corporation has authority
be paid to the owner. The principle is to exercise the right of eminent domain
founded on the superior claims of a whole until the grant be shown. Phillips v.
community over an individual citizen; Dunkirk, &c. R. R. Co., 78 Pa. St. 177;
but then in those cases only where pri- Allen v. Jones, 47 Ind. 438. A foreign
vate property is wanted for public use, or corporation, it is held in Nebraska, which
demanded by the public we/fare. We may not acquire real estate, cannot con-
know of no instances in which it has or demn land indirectly through a domestic
can be taken, even by State authority, corporation. State v. Scott, 22 Neb. 628;
for the mere purpose of raising a revenue Koenig v. Chicago, &c. R. R. Co., 43 N.
by sale or otherwise ; and the exercise of W. Rep. 423.
such a power would be utterly destruc- a " Whatever may b the theoretical
tive of individual right, and break down foundation for the right of eminent do-
all the distinctions between meum and main, it is certain that it attaches as an
tuun, and annihilate them forever at the incident to every sovereignty, and consti-
pleasure of the State." WJood, J., in tutes a condition upon which all property
Buckingham v. Smith, 10 Ohio, 288, 297. is holden. When the public necessity
CH. XV.] THE EMINENT DOMAIN. 649

purpose, there must be kept in view that general as well as reason-

able and just rule, that, whenever in pursuance of law the prop-
erty of an individual is to be divested 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 pro-
ceeding will be ineffectual.' Those provisions 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.2 So if a
statute only authorizes proceedings in invitun after an effort
shall have been made to agree with the owner on the compensa-
tion to be paid, the fact of such effort and its failure must appear.8
requires it, private rights to property Coal Co., 68 Ill. 286; Chicago, &c. R. R.
must yield to this paramount right of the Co. c. Smith, 78 Ill. 96 ; Springfield, &c.
sovereign power. We have repeatedly R. R. Co. c. Hall, 67 Ill. 99; Powers's
held that the character of the work for Appeal, 29 Mich. 504; Kroop c. Forman,
which the property is taken, and not the 31 Mich. 144; Arnold r. Decatur, 29 Mich.
means or agencies employed for its con- 77; Lund v. New Bedford, 121 Mass 286;
struction, determines the question of Wamesit Power Co. v. Allen, 120 Mass.
power in the exercise of this right. It 352; Bolilman c. Green Bay, &c. R. R.
requires no judicial condemnation to sub- Co., 40 Wis. 157; Moore v. Railway Co.,
ject private property to public uses.. Like 34 Wis. 173; United States v. Reed, 56
the power to tax, it resides with the legis- Mo. 565; Decatur County v. Humphreys,
lative department to whom the delegation 47 Ga. 565; Commissioners v. Beckwith,
is made. It may be exercised directly or 10 Kan. 603.
indirectly by that body ; and it can only 2 Nichols v. Bridgeport, 23 Conn. 189;
be restrained by the judiciary when its Judson v. Bridgeport, 25 Conn. 426; Peo-
limits have been exceeded or its authority ple v. Brighton, 20 Mich. 57; Moore v.
has been abused or perverted." Kramer Railway Co., 34 Wis. 173.
v. Cleveland & Pittsburg R. R. Co., 5 3 Reitenbaugh v. Chester Valley R. R.
Ohio St. 140, 146. The mode of exercise Co., 21 Pa. St. 100; Ellis v. Pacific R. R.
is left to the legislative discretion, when Co., 51 Mo. 200; United States v. Reed,
not restrained by the constitution. Se- 56 Mo. 565: Burt v. Brigham, 117 Mass.
combe v. Railroad Co., 23 Wall. 108. An 307; Oregon Ry. & Nay. Co. v. Oregon
owner is not entitled to notice of meeting &c. Co., 10 Oreg. 444; Howland v. School
of commissioners to determine the neces- Dist., 15 Ati. Rep. 74 (R1 I.); Reed
sity of an improvement. Zimmerman v. v. Ohio &c. Ry. Co., 126 Ill. 48;
Canfield, 42 Ohio St. 463. Grand Rapids & I. R. R. Co. v. Wei-
1 Gillinwater v. Mississippi, &c. R. R. den, 70 Mich. 390 ; West Va. Trans-
Co., 13 ll. 1; Stanford v. Worn, 27 Cal. portation Co. v. Volcanic Oil & Coal
171; Dalton r. Water Commissioners, 49 Co., 5 W. Va. 382, it was held that if
Cal. 223; Stockton v. Whitmore, 50 Cal. the owner appears in proceedings taken
554; Supervisors of Doddridge v. Stout, for the assessment of damages, and
9 W. Va. 703; Mitchell v. Illinois, &c. contests the amount without objecting
 650 CONSTITUTIONAL LIMITATIONS. [CH. Xv.
So if the statute vests the title to lands appropriated in the State
or in a corporation on payment therefor being made, it is evident
that, under the rule stated, the payment is a condition precedent
to the passing of the title.1 And where a general railroad law
authorized routes to be surveyed by associated persons desirous
of constructing roads, and provided that if the legislature, on
being petitioned for the purpose, should decide by law that a
proposed road would be of sufficient utility to justify its construc-
tion, then the company, when organized, might proceed to take
land for the way, it was held that, until the route was approved
by the legislature, no authority could be claimed under the law
to appropriate land for the purpose.2 These cases must suffice as
illustrations of a general rule, which indeed would seem to be too
plain and obvious to require either illustration or discussion. 3
the want of any such attempt, the court Green Bay, &c. R. R. Co., 40 Wis. 137,
must presume it to have been made. Brady v. Bronson, 4.5 Cal. 640; Delphi v
I Stacy v. Vermont Central R. R. Co., Evans, 36 Ind. 90; Eidemiller v. Wyan-
27 Vt. 39. By the section of the statute dotte, 2 Dill. .36. In the case in Howard
under which the land was appropriated, it is said . " It can hardly be questioned
it was provided that when land or other that without acceptance by the acts and
real estate was taken by the corporation, in the mode prescribed [i. e., by payment
for the use of their road, and the parties of the damages assessed], the company
were unable to agree upon the price of were not bound; that if they had been
the land, the same should be ascertained dissatisfied with the estimate placed on
and determined by the commissioners, the land, or could have procured a more
together with the costs and charges ac- eligible site for the location of their road,
cruingthereon, and 1pon the payment of the they would have been at liberty, before
same, or by depositing the amount i a bank, such acceptance, wholly to renounce the
as should be ordered by the conunssioners, the inquisition. The proprietors of the land
corporationshould be deemed to be seized and could have no authority to coerce the
possessed of the lands. Held, that, until company into its adoption." Daniel, J.,
the payment was made, the company had 10 How. 395, 399.
no right to enter upon the land to con- 2 Gillinwater v. Mississippi, &c. R. R.
struct the raid, or to exercise any act of Co., 13 Ill. 1. " The statute says that,
ownership over it; and that a court of after a certain other act shall have been
equity would enjoin them from exercising passed, the company may then proceed to
any such right, or they might be prose- take private property for the use of its
cuted in trespass at law. This case fol- road ; that is equivalent to saying that
lows Baltimore & Susquehanna R. R. that right ,hall not he exercised without
Co. v. Nesbit, 10 How. 3).5, and Blood- such subsequent act. The right to take
good v. Mohawk & Hudson R. R. Co., private property for public use is one of
18 Wend. 9, where the statutory provi- the highest prerogatives of the sovereign
sions were similar. In Kentucky pay- power; and here the legislature has, in
ment in money must be made before language not to be mistaken, expressed
entry. Covington Ry. Co. v. Piel, 87 its intention to reserve that power until
Ky. 267. See further State r. Seymour, it could judge for itself whether the pro-
35 N. J. 47; Cameron v. Supervisors. 47 poed( road would be of sufficient public
Miss. 264; St. Joseph, &c. R. R. Co. r. utility to justify the use of this high pre-
Callender, 13 Kan. 406; Paris r Mason, rogative. It did not intend to cast this
37 Tex. 447 ; People v. lcRoherts, 62 power awaY, to be gathered up and used
Ill. 38; St. Louis, &c. R. R Co. t. Teterq, by any who might choose to exercise it."
6S Ill. 144; Sherman v. 'Milwankee, &c. Thid. p. 4.
R R. Co, 40 Wis. 645; Bohlman v. 3 See further the cases of Atlantic &
CH. XV.] THE EMINENT DOMAIN. 651

So the powers granted by such statutes are not to be enlarged

by intendment, especially where they are being exercised by a
corporation by way of appropriation of land for its corporate
pur)oses. " There is no rule more familiar or better settled than
this : that grants of corporate power, being in derogation of
common right, are to be strictly construed; and this is especially
the case where the power claimed is a delegation of the right of
eminent domain, one of the highest powers of sovereignty per-
taining to the State itself, and interfering most seriously and often
vexatiously with the ordinary rights of property." 1 It has ac-
cordingly been held that where a railroad company was authorized
by law to " enter upon any land to survey, lay down, and construct
its road," "to locate and construct branch roads," &c., to appro-
priate land " for necessary side tracks," and " a right of way over
adjacent lands sufficient to enable such company to construct and
repair its road," and the company had located, and was engaged
in the construction of its main road along the north side of a
town, it was not authorized under this grant of power to appro-
priate a temporary right of way for a term of years along the
south side of the town, to be used as a substitute for the main
track whilst the latter was in process of construction. 2 And
substantially the same strict rule is applied when the State itself
seeks to appropriate private property ; for it is not unreasonable
that the property owner should have the right to insist that the
State, which selects the occasion, and prescribes the conditions
for the appropriation of his property, should confine its action
strictly within the limits which it has marked out as sufficient.
So higrh a prerogative as that of divesting one's estate against his
will should only be exercised where the plain letter of the law
permits it, and under a careful observance of the formalities
prescribed for the owner's protection.

The Purpose.
The definition given of the right of eminent domain implies
that the purpose for which it may be exercised must not be a
mere private purpose; and it is conceded on all hands that the
legislature has no power, in any case, to take the property of one

Ohio R. R. Co. v. Sullivant, 5 Ohio St. 2 Currier v. Marietta & Cincinnati

270; Parsons v. Howe, 41 Me. 218; At- R. R. Co, 11 Ohio St. 228. And see Gil-
kinson v. Marietta & Cincinnati R. R. mer v. Lime Point, 19 Cal. 47 ; Bensley v.
Co. 15 Ohio St. 21. Mountain Lake, &c. Co. 13 Cal. 306;
1 Currier v. Marietta & Cincinnati Bruning v. N. 0. Canal & Banking Co.,
R. R. Co., 11 Ohio St. 228, 231; Miami 12 La. Ann 541; West Virginia Trans-
Coal Co. v. Wigton, 19 Ohio St. 560. See portation Co r. Volcanic Oil & Coal
ante, pp. 486, 487. Co., 5 W. Va. 382.
652 CONSTITUTIONAL LIMITATIONS. [CH. XV.

individual and pass it over to another without reference to some

use to which it is to be applied for the public benefit.1 " The
right of eminent domain," it has been said, "does not imply a
right in the sovereign power to take the property of one citizen
and transfer it to another, even for a full compensation, where
the public interest will be in no way promoted by such transfer." 2
It seems not to be allowable, therefore, to authorize private roads
to be laid out across the lands of unwilling parties by an exercise
of this right. The easement in such a case would be the property
of him for whom it was established; and although the owner
would not be deprived of the fee in the land, thq beneficial use
and exclusive enjoyment of his property would in greater or less
degree be interfered with. Nor would it be material to inquire
what quantum of interest would pass from him : it would be
sufficient that some interest, the appropriation of which detracted
from his right and authority, and interfered with his exclusive
possession as owner, had been taken against his will; and if
taken for a purely private purpose, it would be unlawful.3 Nor

1 In a work of this character, we have & Hudson R. R. Co., 18 Wend. 055 et

no occasion to consider the right of the seq. See also Embury v. Conner, 3 N. Y.
government to seize and appropriate to 511 ; Kramer v. Cleveland & Pittsburgh
its own use the property of individuals in R. R. Co., 5 Ohio St. 140; Pratt v. Brown,
time of war, through its military author- 3 Wis. 603; Concord R. R. v. Greeley,
ities. That is a right which depends on 17 N. 11. 47; N. Y. & Harlaem R. R.
the existence of hostilities, and the sus- Co. v. Kip, 46 N. Y. 541; s. c. 7 Am.
pension, partially or wholly, of the civil Rep. 385. The power can only be ex-
laws. For recent cases in which it has ercised to supply some existinig public
been considered, see Mitchell v. Har- need or to gain some present public ad-
mony, 13 How. 115; Wilson v. Crockett, vantage ; not with a viev to contingent
43 Mo. 216 ; Wellman v. Wickerman, 44 results dependent on a projected specula-
Mo. 484; Yost v. Stout, 4 Cold. 205; Sut- tion. Edgewood R. R. Co's Appeal, 79
ton v. Tiller, 6 Cold. 593, Taylor v. Nash- Pa. St. 257. Nor for a mere public con-
ville, &c. R. R. Co , 6 Cold. 646; Coolidge venience ; such as a company for loading
v. Guthrie, 8 Am. Law Reg. N. s. 22; and unloading freight on and from steam-
Echols v. Staunton, 3 W. Va. 574; Wilson boats and other craft touching at a river
v. Franklin, 63 N. C 259. port. Memphis Freight Co. v. Memphis,
2 Beekman v. Saratoga & Schenecta- 4 Cold. 419. But land not needed at once
dy R. R. Co., 3 Paige, 73; s. c. 22 Am. may be condemned for extra tracks of a
Dec. 679; Teneyck v. Canal Co., 18 N. J. railroad. Matter of Staten Island Tran-
200; s. c. 37 Am. Dec. 233; Hepburn's sit Co., 103 N. Y. 251.
Case, 3 Bland, 95; Sadler v. Langham, 34 8 Taylor r. Porter. 4 Hill, 140, per Bron-
Ala. 311.; Pittsburg v. Scott, I Pa. St. son, J. ; Clark r. White, 2 Swan, 540;
309 ; Matter of Albany Street, 11 Wend. White v. White, 5 Barb. 474; Sadler v.
149; s. c. 25 Am. Dec. 618; Matter of Langham, 24 Ala. 311; Pittsburg v. Scott,
John & Cherry Streets, 19 Wend. 659; I Pa. St. 309; Neshitt v. Trumbo, 39
Cooper v. Williams, 5 Ohio, 391 ; s. c. 24 Ill. 110; Osborn v. Hart, 24 Wis. 89; s. c.
Am. Dec. 299; Buckingtham r. Smith, 10 1 Am. Rep. 161 Tyler v. Beacher, 44 Vt.
Ohio, 288; Reeves v. Treasurer of Wood 648; s. c. 8 Am. Rep. 398; Bankhead v.
Co., 8 Ohio St. 333. See this subject Brown, 25 Iowa, 540; Witham v. Osburn,
considered on principle and authority by 4 Oreg. 318; s. c. 18 Am. Rep. 287; Stew-
Senator Tracy, in Bloodgood v. Mohawk art v. Hartman, 46 Ind. 331; Wild v. Deig,
[Link].] THE EMINENT DOMAIN. 653

could it be of importance that the public would receive incidental

benefits, such as usually spring from the improvement of lands or

43 Ind. 455; s. c. 13 Am. Rep. 399; Smith, 34 Vt. 484, it was held that the
Blackman v. Halves, 72 Ind. 515; White manufacture of railroad cars was not so
c. Clark, 2 Swan, 230; Hickman's Case, legitimately and necessarily connected
4 Ilarr. 580; Robinson v. Swope, 12 Bush, with the management of a railroad that
21; Varner v. Martin, 21 W. Va. 534. the company would be authorized to appro-
A neighborhood road is only a private priate lands therefor. So, also, of land
road, and taking land for it would riot for the erection of dwelling-houses to rent
he for a public use. Dickey v. Tennison, by railroad companies to their employds.
27 MIo. 373. But see, as to this, Ferris v. But under authority to a railroad com-
Bramble, 5 Ohio St. 109; Brock v. Barnet, pany to take land for constructing and
57 Vt. 172; Bell v. Prouty, 43 Vt. 279; operating its road, it may take what is
Whittingham c. Bowen, 22 Vt. 317; Proc- needful for depot grounds. N. Y. &
tor r. Andover, 42 N. 11. 348. To avoid Harlaem R. R. Co- v. Kip, 46 N. Y. 546; s.
this difficulty, it is provided by the con- c. 7 Am. Rep. 385. Spur tracks in a city
stitutions of some of the States that pri- to reach mills and warehouses may be
vate roads may be laid out under proceed- condemned : Toledo S & M. R. R. Co. v.
ings corresponding to those for the es- East Saginaw, &c. Co., 40 N. W. Rep.
tablisliment of highways. There are pro- 436 (Mich.); if necessary to the opera-
visions to that effect in the Constitutions tion of the road. South Chicago R. R.
of New York, Georgia, and Michigan. It Co. v. Dix, 109 Ill. 237. Not if merely to
is allowable under the Alabama Consti- increase its business. Then the use is
tution also. Steele v. County Com'rs, not public. Chicago & E. I. R. 1. Co. v.
83 Ala. 804. But in Harvey v. Thomas, Wiltse, 116 Ill. 449; Pittsburg, W. & K.
10 Watts, 63, it was held that the right Co. c. Benwood Iron Works, 8 S. E. Rep.
might be exercised in order to the estab- 453 (W. Va.).
lishment of private ways from coal fields In the text we have stated what is un-
to connect them with the public improve- questionably the result of the authorities;
ments, there being nothing in the consti- though if the question were an open one,
tution forbidding it. See also The Pocop- it might well be debated whether the right
son Road, 16 Pa. St. 15; Sherman r. Bu- to authorize the appropriation of the prop-
ick, 32 Cal. 241 ; Brewer v. Bowman, 9 erty of individuals did not rest rather
Ga. 37; Robinson v. Swope, 12 Bush, 21. upon grounds of general public policy than
But in Illinois it is held expressly that upon the public purpose to which it was
such a road cannotbe condemned : Sholl proposed to devote it. There are many
v. German Coal Co., 118 Ill. 427, and the cases in which individuals or private
doctrine of the cases just cited is directly corporations have been empowered to
opposed to Young r. McKenzie, 3 Ga. 31; appropriate the property of others when
Taylor v. Porter, 4 Hill, 140; Buffalo & the general good demanded it, though
N. Y. R. R. Co. v. Brainard, 9 N. Y. 100; the purpose was no more public than it
Bradley v. N. Y. & N. H. R. R. Co., 21 is in any case where benefits are to flow
Conn. 294; Reeves v. Treasurer of Wood to the community generally from a pri-
Co., 8 Ohio St. 333, and many other cases; vate enterprise. The case of appropria-
though possibly convenient access to the tions for mill-dams, railroads, and drains
great coal fields of the State might be to improve lands are familiar examples.
held to be so far a matter of general con- These appropriations have been sanc-
cern as to support an exercise of the power tioned under an application of the term
on the ground of the public benefit. So " public purpose," which might also jus-
held as to a subterranean mining railway. tify the laying out of private roads, when
De Camp v. Hibernia R. R. Co., 47 N. J. private property could not otherwise be
L. 43. In Iowa a statute authorizing con- made available. Upon this general sub-
demnation of public ways in such cases ject the reader is referred to an article by
was upheld though only the mine-owners Hon. J. V. Campbell, in the " Bench and
may have occasion to use them. Phillips Bar," for July, 1871.
v. Watson, 63 Iowa, 28. In Eldridge v.
654 CONSTITUTIONAL LIMITATIONS. [CH. XV.

the establishment of prosperous private enterprises : the public

use implies a possession, occupation, and enjoyment of the land
by the public at large, or by public agencies; ' and a due protec-
tion to the rights of private property will preclude the govern-
ment from soizing it in the hands of the owner, and turning it
over to another on vague grounds of public benefit to spring from
the more profitable use to which the latter may devote it.
We find ourselves somewhat at sea, however, when we under-
take to define, in the light of the judicial decisions, what consti-
tutes a public use. It has been said by a learned jurist that, " if
the public interest can be in any way promoted by the taking of
private property, it must rest in the wisdom of the legislature to
determine whether the benefit to the public will be of sufficient
importance to render it expedient for them to exercise the right
of eminent domain, and to authorize an interference with the
private rights of individuals for that purpose.2 It is upon this
principle that the legislatures of several of the States have au-
thorized the condemnation of the lands of individuals for mill
sites, where from the nature of the country such mill sites could
not be obtained for the accommodation of the inhabitants without
overflowing the lands thus condemned. Upon the same principle
of public benefit, not only the agents of the government, but also
individuals and corporate bodies, have been authorized to take
private property for the purpose of making public highways, turn-
pike roads, and canals ; of erecting and constructing wharves and
basins ; of establishing ferries ; of draining swamps and marshes;
and of bringing water to cities and villages. In all such cases
the object of the legislative grant of power is the public benefit
derived from the contemplated improvement, whetier such im-
provement is to be effected directly by the agents of the govern-
ment, or through the medium of corporate bodies or of individual
enterprise." 3
It would not be entirely safe, however, to appl' with much
liberality the language above quoted, that " where the public
interest can be in any way promoted by the taking of private

I Per Tracy, Senator, in Bloodgood v. The use must be by the general public of
Mohawk & Hudson R. R. Co., 18 Wend. a locality, and rot by particular individ-
9, 60. A use is private so long as struc- ual or estates. MeQuillen v. Hatton, 42
tures to be put on the land " are to remain Ohio St. 202; Ross ?'. Davis, 97 Id. 79.
under private ownership and control, and 2 2 Kent, Corn. 840.
no right to their use or to direct their 3 lVolwortl, Chancellor, in Beehman
management is conferred upon the pub- v. Saratoga & Schenectady R. R. Co., 3
lic." Matter of Eureka Basin, &c. Co , Paige, 45, 78 s. c. 22 Am. Dee. 679. Aod
96 N. Y. 42. See Belcher Sugar Refining see Wilson v. Blackbird Creek Marsh Cu.
Co. St. Louis Elev. Co., 82 121. u.
2 [Link].
245.
CH. XV.] THE EMINENT DOMAIN. 655

property," the taking can be considered for a public use. It is

certain that there are very many cases in which the property of
some individual owners would be likely to be better employed or
occupied to the advancement of the public interest in other hands
than in their own; but it does not follow from this circumstance
alone that they may rightfully be dispossessed. It may be for
the public benefit that all the wild lands of the State be improved
and cultivated, all the low lands drained, all the unsightly places
beautified, all dilapidated buildings replaced by new; because all
these things tend to give an aspect of beauty, thrift, and comfort
to the country, and thereby to invite settlement, increase the
value of lands, and gratify the public taste; but the common law
has never sanctioned an appropriation of property based upon
these considerations alone; and some further element must
therefore be involved before the appropriation can be regarded as
sanctioned by our constitutions. The reason of the case and the
settled practice of free governments must be our guides in deter-
mining what is or is not to be regarded a public use; and that
only can be considered such where the government is supplying
its own needs, or is furnishing facilities for its citizens in regard
to those matters of public necessity, convenience, or welfare,
which, on account of their peculiar character, and the difficulty -
perhaps impossibility - of making provision for them otherwise,
it is alike proper, useful, and needful for the government to
provide.
Every government is expected to make provision for the public
ways, and for this purpose it may seize and appropriate lands.
And as the wants of traffic and travel require facilities beyond
those afforded by the common highway, over which any one may
pass with his own vehicles, the government may establish the
higher grade of highways, upon some of which only its own
vehicles can be allowed to run, while others, differently con-
structed, shall be open to use by all on payment of toll. The
common highway is kept in repair by assessments of labor and
money; the tolls paid upon turnpikes, or the fares on railways,
are the equivalents to these assessments ; and when these im-
proved ways are required by law to be kept open for use by the
public impartially, they also may properly be called highways,
and the use to which land for their construction is put be denomi-
nated a public use. The government also provides court-houses
for the administration of justice; buildings for its seminaries of
instruction ;I aqueducts to convey pure and wholesome water
1 Williams v. School DIstrict, 33 Vt. Mass. 512; Long v. Fuller, 68 Pa.
271. See Hooper v. Bridgewater, 102 170.
656 CONSTITUTIONAL LIMITATIONS. [CH. XV.

into large towns;1 it builds levees to prevent the country being

overflowed by the rising streams; 2 it may cause drains to be
constructed to relieve swamps and marshes of their stagnant
water ; 3 and other measures of general utility, in which the public
at large are interested, and which require the appropriation of
private property, are also within the power, where they fall within
the reasons underlying the cases mentioned.4
I Reddall v. Bryan, 14 Md. 444; Kane body of lands flowed by means of it,
v. Baltimore, 15 Md. 240 ; Gardner v. paying the owner of the dam its value.
Newburg, 2 Johns. Ch. 162; s. c. 7 Am. Talbot v. Hudson, 16 Gray, 417. See the
Dec. 526; Ham e. Salem, 100 Mass. 330; valuable note to Beekinan v. Railroad
Burden v. Stein, 27 Ala. 104; Riche v. Co., 22 Am. Dec. 686, where the authori-
Bar Harbor Water Co., 75 Me. 91; Olm- ties as to what is a public use are
sted v. Proprs. Morris Aqueduct, 46 N. J. collated.
L. 495; Lake Pleasanton W. Co. v. Contra Such, for instance, as the construc-
Costa W. Co., 67 Cal. 659. Where land tion of a public park, which in large
was to be taken for a canal, and it was set cities is as much a matter of public util-
forth that " the uses for which said water ity as a railway, or a supply of pure
is intended and designed are mining, irri- water. See Matter of Central Park Ex-
gation, manufacturing, and household and tension, 16 Abb. Pr. Rep. 56; Owners of
domestic purposes," it was held a suffi- Ground r. Mayor, &c. of Albany, 15
cient statement of public uses. Cum- Wend. 374; Brooklyn Park Com'rs v.
mings v. Peters, 56 Cal. 593. A canal to Armstrong, 4.5 N. Y. 234; s. c. 6 Am.
bring logs and water to a city is for a Rep. 70; County Court v. Griswold, 58
public purpose. Dalles Lumbering Co. v. Mo. 175. The legislature may authorize
Urquhart, 16 Oreg. 57. land to be taken by an exposition com-
2 Mithoff v. Carrollton, 12 La. Ann. pany. Rees' App 12 Atl. Rep. 427 (Pa ).
185; Cash v. Whitworth, 13 La. Ann. Or by a boom company for the purposes
401; Inge v. Police Jury, 14 La. Ann. of a boom. Patterson v. Mississippi, &c.,
117. Boom Co., 3 Dill. 465. Or for the pur-
3 Anderson v. Kerns Draining Co., 14 poses of a telegraph line. Turnpike Co.
Ind. 199,; Reeves v. Treasurer of Wood v. News Co., 43 N. J. 381; New Orleans
County, 8 Ohio St. 333. See a clear R. R. Co. v. Southern Tel. Co., 53 Ala.
statement of the general principle and its 211 ; Pierce v. Drew, 186 Mass. 75. Or
necessity in the last mentioned case. The sewers in cities. Hildreth v. Lowell, 11
drains, however, which can be authorized Gray, 345. Or for a market, Re Cooper,
to be cut across the land. of unwilling 28 Hun, 515. A city may be authorized
parties, or for which individuals can be to appropriate lands in order to fill them
taked, must not be mere private drains, up, and thereby abate a nuisance upon
but must have reference to the public them. Dingley v. Boston, 100 Mass. 544.
health, convenience, or welfare. Reeves v. But it may not appropriate a wharf to
Treasurer, &c., supra. And see People v. lease it to a private corporation. Beicher
Nearing, 27 N.Y. 306. It is said in a New Sugar Refining Co. v. St. Louis Elev.
Jersey case that an act for the drainage Co., 82 Mo. 121. A private corporation
of a large quantity of land, which in its may be empowered to exercise the right
present condition is not only worthless of eminent domain to obtain a way along
for cultivation but unfit for residence, which to lay pipe for the transportation
and for an assessment of the cost by of oil to a railroad or navigable water.
benefits, is for a purpose sufficiently pub- West Va. Transportation Co. '. Volcanic
lic to justify an exercise of the right of Oil & Coal Co., 5 W. Va. 382. It is
eminent domain. Matter of Drainage of held in Evergreen Cemetery v. New
Lands, 35 N. J. 497. It is competent Haven, 43 Conn. 234; Edgeeomobe r. Bur-
under the eminent domain to appropriate lington, 46 Vt. 218, and Balch v. Com-
and remove a dam owned by private par- missioners, 103 MiTass 106, that lands may
ties, in order to reclaim a considerable be appropriated under this power for a
CH. XV.] THE EMINENT DOMAIN. 657

Whether the power of eminent domain can rightfully be exer-

cised in the condemnation of lands for manufacturing purposes
where the manufactories are to be owned, and occupied by indi-
viduals is a question upon which the authorities are at variance.
Saw-mills, grist-mills, and various other manufactories are cer-
tainly a public necessity ; and while the country is new, and capi-
tal not easily attainable for their erection, it sometimes seems to be
essential that government should offer large inducements to par-
ties who will supply this necessity. Before steam came into use,
water was almost the sole reliance for motive power; and as reser-
voirs were generally necessary for this purpose, it would some-
times happen that the owner of a valuable mill site was unable to
render it available, because the owners of lands which must be
flowed to obtain a reservoir would neither consent to the construc-
tion of a dam, nor sell their lands except at extravagant and in-
admissible prices. The legislatures in some of the States have
taken the matter in hand, and have surmounted the difficulty,
sometimes by authorizing the land to be appropriated, and at other
times by permitting the erection of the dam, but requiring the mill-
owner to pay annually to the proprietor of the land the damages
caused by the flowing, to be assessed in some impartial mode.1
The reasons for such statutes have been growing weaker with the
introduction of steam power and the progress of improvement, but
their validity has repeatedly been recognized in some of the States,
and probably the same courts would continue still to recognize it,
notwithstanding the public necessity may no longer appear to de-
mand such laws. 2 The rights granted by these laws to mill-owners
are said by Chief Justice Shaw, of Massachusetts, to be " granted
for the better use of the water power, upon considerations of public
policy and the general good; "3 and in this view, and in order to

cemetery; but in Matter of Deansville dated Channel Co. v. Railroad Co., 51

Cemetery Association, 66 N. Y. 569, it is Cal. 261; Edgewood R. Rt. Co.'s Appeal,
decided that this cannot be done for the 79 Pa. St. 257.
exclusive use of a private corporation. 1 See Angell on Watercourses, c. 12,
Land may not be taken for a private for references to the statutes on this
warehouse and dock company : Matter subject.
of Eureka Basin, &c. Co., 96 N. Y. 42; 2 ' The encouragement of mills has
nor for a railroad along the bottom of the always been a favorite object with the
Niagara Cliffs. Matter of Niagara Falls legislature ; and though the reasons for
& W. Ry. Co., 108 N. Y. 375. it may have ceased, the favor of the
The development of mines has been legislature continues." Woleott Woollen
held such a matter of public interest as Manufacturing Co. c. Upham, 5 Pick. 292,
would justify an exercise of the eminent 294. The practice in Michigan has been
domain. Hand Gold Mining Co. r. Packer, different. See Ryerson v. Brown, 35
59 Ga. 419: Davton Mining Co. v. Sea- Mich. 2233; s. c. 24 Am. Rep. 564.
well, 11 Nov. 394. But see Salt Com- 3 French v. Braintree Manufacturing
pany v. Brown, 7 W. Va. 191; Consoli- Co., 23 Pick. 216, 220.
42
658 CONSTITUTIONAL LIMITATIONS. [Ci. xv.

render available a valuable property which might otherwise be

made of little use by narrow, selfish, and unfriendly conduct on
the part of individuals, such laws may perhaps be sustained on the
same grounds which support an exercise of the right of eminent
domain to protect, drain, and render valuable the lands which, by
the overflow of a river, might otherwise be an extensive and
worthless swamp.'
1 Action on the case for raising a dam question for the legislature, and which
across the Merrimac River, by which a may be presumed to have been correctly
mill stream emptying into that river, decided by them. Commonwealth I.
above the site of said dam, was set back Breed, 4 Pick. 460. That the improve-
and overflowed, and a mill of the plaintiff ment of the navigation of a river is done
situated thereon, and the mill privilege, for the public use has been too frequently
were damaged and destroyed. Demurrer decided and acted upon to require ai-
to the declaration. The defendant coin- thorities. And so to create a wholly arti-
pany were chartered for the purpose of ficial navigation by canals. The estab-
constructing a dam across the Merrimac lishment of a great mill power for mann-
River, and constructing one or more locks facturing purposes, as an object of great
and canals, in connection with said dam, public interest, especially since muanu-
to remove obstructions in said river by facturing has come to be one of the great
falls and rapids, and to create a water public industrial pursuits of the Coin-
power to be used for mechanical and nmonwealth, seems to have been regarded
manu facturing purposes. The defend- by the legislature, and sanctioned by the
ants claimed that they were justified in jurisprudence of the Commonwealth, and
what they had done, by an act of the le- in our judgment rightly so, in deterinin-
gislature exercising the sovereign power ing what is a public use, justifying the
of the State, in the right of eminent do- exercise of right of eminent domain. See
main; that the plaintiff's property in the St. 1825, c. 148, incorporating the Salem
mill and mill privilege was taken and ap- Mill Dam Corporation ; Boston & Rox-
propriated under this right; and that his bury Mill Dam Corporation v. Newman,
remedy was by a claim of damages under 12 Pick. 467. The acts since passed, and
the act, and not by action at commor the cases since decided on this ground,
law as for a wrongful and unwarrantable are very numerous. That the erection
encroa'ciment upon his right of property. of this dam would have a strong and di-
Shaw, Ch. J.: " It is then contended that rect tendency to advance both these
if this act was intended to authorize the public objects, there is no doubt. We
defendant company to take the mill power are therefore of opinion that the powers
and mill of the plaintiff, it was void be- conferred on the corporation by this act
cause it was not taken for public use, and were so done within the scope of the an-
it was not within the power of the gov- thority of the legislature, and were not
ernment in the exercise of tihe right of in violation of the Constitution of the
eminent domain. This is the main ques- Commonwealth." Hazen t. Essex Con-
tion. In determining it we must look to pany, 12 Cush. 475, 477. See also Bos-
the declared purposes of the act; and if ton & Roxhury Mill Corporation v. New-
a public use is declared, it will be so held, man, 12 Pick. 467 ; Fiske v. Framingham
unless it manifestly appears by the pro- Manufacturing Co., 12 Pick. 67; Harding
visions of the act that they can have no v. Goodlett, 3 Yerg. 41; s. c. 24 Am. Dec.
tendency to advance and promote such 546. The courts of Wisconsin have sus-
public use. The declared purposes are tained such laws. Newcome v. Smith, I
to improve the navigation of the M1erri- Clhand. 71; Thien v. Voegtlander, 3 Wis.
mac River, and to create a large mill 461; Pratt r. Brown, 3 Wis. 603. But with
power for mechanical and manufacturing some hesitation in later cases. See Fisher
purposes. In general, whether a particu- r. Horricon Co., 10 Wis. 2851 ; Curtis v.
lar structure, as a bridge, or a lock, or Whipple, 24 Wis. 350. And see the note
canal, or road, is for the public use, is a of Judge IRdfield to Allen v. Inhabitants
('11. Xv.] THE EMINENT DOMAIN. 659

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 atN- kind, and that " sites for steam-engines, hotels, churches,
and other public conveniences might ais well be talkeii )y the exer-
cise of this extraordinary power." 1 Similar views have been taken
by the Supreme Courts of Alabama and Micigan. 2 It is quite
possible that, in any Stte in which this question would be entirely
a new one, and where it would not be embarrassed by long acqui-
tscence, 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.3 But accepting as correct the de-
cisions 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.4
of Jay, Law Reg., Aug. 1873, p. 493. 2 Ryerson v. Brown, 35 Mich. 333; s.

And those of Connecticut. Olmstead v. c. 24 Am. Rep. 564; Saddler v. Langlham,

Camp, 33 Conn. 532. And of Maine. 34 Ala. 311. In this last case, however,
Jorlan r. Woodward, 40 Me. 317. And it was assumed that lands for the purposes
of Minnesota. -Millerv. Troost, 14 Minn. of grist-mills which grind for toll, and were
:'305. And of Kansas. Venard v. Cross, required] to serve the public impartially,
8 Kan. 248; larding v Funk, 8 Kan. might, under proper legislation, be taken
315. And of Indiana. Hankins v. Law- under the right of eminent domain. The
rence, 8 Blackf. 266. And they have case of Loughbridge c. Harris, 42 Ga.
been enforced elsewhere without question. 500, is contra. In Tyler v. Beacher, 44
Burgess v. Clark. I) Ired. 100, McAfee's Vt. 648, s. c. 8 Am. Rep. 398 it was held
Heirs r. Kennedy, 1 Lit 92; Smith v. not competent, where the mills were sub-
Connelly, 1 T. B. Monr. 58; Shackleford ject to no such requirement. See the
v. Ciffey, 4 J. J. Marsh. 40; Crenshaw v. case, 8 Am. Rep. 398. And see note by
Slate River Co., 6 Rand. 245; Gammely. Rpdfield, Am. Law Reg., Aug. 1873, p.
Potter, 6 Iowa, 548. The whole subject 498.
was very fully considered, and the valid- 3 See this subject in general discussed
ity of such legislation affirmed, in Great in a review of Angell on Watercourses, 2
Falls Manuf. Co. v. Fernald, 47 N. HI. Am. Jurist, p. 25.
444. And see Ash r. Cummings, 50 N. IH. 4 In People r. Township Board of
591. In Head v. Amoskeag Co., 113 U. Salem, 20 Mich. 452, the court consider
S. 9, such an act was upheld as a regula- the question whether a use which is r.-
tion of the manner in which the rights of garded as public for the purposes of an
proprietors adjacent to a stream may be exercise of the right of eminent domai-.
enjoyed. In Loughbridge v. Harris, 42 is necessarily so for the purposes of taxa-
Ga. 500, an act for the condemnation of tion. They say : " Reasoning by analogy
land for a grist-mill was held unconstitu- from one of the sovereign powers of gov-
tional, thouli the tolls were regulated, ernment to another is exceedingly liable
and discrimination forbidden. In Newell to deceive and mislead. An object may
v. Smith, 15 Wis. 101, it was held not be yiublic in one sense and for one pur-
constitutional to authorize the appropria- pose, when in a general sense and for
tion of the property, and leave the owner other purposes it would be idle or mis-
no remedy except to subsequently recover leading to apply the same term. All
its value in an action of trespass. governmental powers exist for public
I Hay v. Cohoes Company, 3 Barb. 47. purposes, but they are not necessarily to
 660 CONSTITUTIONAL LIMITATIONS. [c:i. Xv.

The question what is a public use is always one of law. Defer-

ence will be paid to the legislative judgment, as expressed in

be exercised under the same conditions such that he is compelled to dispose of it

of public interest. The sovereign police because the law will not suffer his regu-
power which the State possesses is to be lar business to be carried on upon it. A
exercised only for the general public wel- needful and lawful species of manufacture
fare, but it reaches to every person, to may so injuriously affect the health and
every kind of business, to every species comfort of the vicinity that it cannot be
of property within the Commonwealth. tolerated in a densely settled neighbor-
The conduct of every individual, and the hood, and therefore the owner of a lot in
use of all property and of all rights is that neighborhood will not be allowed to
regulated by it, to any extent found neces- engage in that manufacture upon it, even
sary for the preservation of the public though it be his regular and legitimate
order, and also for the protection of the business. The butcher in the vicinity of
private rights of one individual against whose premises a village has grown up
encroachments by others. The sover- finds himself compelled to remove his
eign power of taxation is employed in a business elsewhere, because his right to
great many cases where the power of make use of his lot as a place for the
eminent domain might be made more im- slaughter of cattle has become inconsistent
mediately efficient and available, if con- with the superior right of the community
stitutional principles could suffer it to be to the enjoyment of pure air and the ac-
resorted to; but each of these has its own companying blessings and comforts. The
peculiar and appropriate sphere, and the owner of a lot within the fire limits of a
object which is public for the demands of city may be compelled to part with the
the one is not necessarily of a character property, because lie is unable to erect a
to permit the exercise of the other." brick or stone structure upon it, and the
" If we examine the subject critically, local regulations will not permit one of
we shall find that the most important wood. Eminent domain only recognizes
consideration in the case of eminent do- and enforces the superior right of the
main is the necessity of accomplishing communit3 against the selfishness of in-
some public good which is otherwise im- dividuals in asimilar way. Every branch
practicable ; and we shall also find that of needful industry has a right to exist,
the law does not so much regard the and the community has a right to demand
means as the need. The power is much that it be permitted to exist; and if for
nearer akin to that of the public police that purpose a peculiar locality already
than to that of taxation; it goes but a in possession of an individual is essential,
step farther, and that step is in the same the owner's right to undisturbed occo
direction. Every man has an abstract pancy must yield to the superior interest
right to the exclusive use of his own of the public. A railroad cannot go
property for his own enjoyment in such around the farm of every unwilling per-
manner as he shall choose; but if lie son, and the business of transporting
should choose to create a nuisance upon persons and property for long distances
it, or to do anything which would pre- by tail, which has been found so essential
clude a reasonable enjoyment of adja- to the general enjoyment and welfare,
cent property, the law would interfere could never have existed if it were in the
to impose restraints. le is said to own power of any unwilling person to stop
his private lot to the centre of the earth, the road at his boundary, or to denand
but lie would not be allowed to exca- unreasonable terms as a condition of pass-
vate it indefinitely, lest his neighbor's ing him. The law interferes in these
lot shouid disappear in the excavation. cases, and regulates the relative rights of
The abstract right to make use of his the owner an] of the community with as
own property in his own way is compelled strict regard to justice and equity as the
to yield to the general comfort and pro- circumstances will permit. It does not
tection of the community, and to a proper deprive the owner of his property, but it
reg-ard to relative rights in others. The compels him to dispose of so much of it
situation of his property may even be as is essential on equitable terms. While,
CH. XV.] THE EMINENT DOMAIN. 661

enactments providing for an appropriation of property, but it will

not be conclusive. 1

The Takiny 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
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 wh'en the general right is
disturbed. But in other cases it seems important to take the
title; 2 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 gov-
ernment it will be confided. When property is needed for a dis-
trict 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 goverrnment 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 im-
portance. In these cases no question of power arises; the taking

therefore, eminent domain establishes no Burkhart, 41 Ind. 364; Scudder v. Tren-

industry, it so regulates the relative rights ton, &c. Co., 1 N. J. Eq. 694; s. c. 23 Am.
of all that no individual shall have it in Dec. 756; Ryerson v. Brown, 35 Mich.
his power to preclude its establishment." 333; s. c. 24 Am. Rep. 564; Beekman v.
On this general subject see Olmstead v. Railroad Co., 3 Paige, 45; s. c. 22 Am.
Camp, 33 Conn. 532, in which it was very Dec. 679, and note; McQuillen v. Hatton,
fully and carefully considered. 42 Ohio St. 202; Savannah v. Hancock,
1 Harding v. Goodlett, 3 Yerg. 40; 91 Mo. 54; In re St. Paul & N. P. Ry. Co.,
s. c. 24 Am. Dec. 546; Bankhead v. 34 Minn. 227.
Brown, 25 Iowa, 540; Chicago, &c. R. R. 2 The fee is not to be taken unless the
Co. v. Lake, 71 Ill. 333; Olmstead v. Camp, purpose requires it. New Orleans, &c.
33 Conn. 651; Tyler v. Beacher, 44 Vt. R. R. Co. v. Gay, 32 La. Ann. 471; New
648; Matter of Deansville Cemetery Asso- Jersey Zinc Co. v. Morris Canal, &c. Co.,
ciation, 66 N. Y. 569; s. c. 23 Am. Rep. 44 N. J. Eq. 398. See Iibernia R1.R. Co.
86; Matter of Union Ferry Co., 08 N. Y. v. Camp, 47 N. J. L. 518. There are con-
130; Matter of Niagara Falls & W. Ry. stitutional provisicns in some States which
Co., 108 N. Y. 375; Loughbridge v. Har- limit the taking for railroads to a mere
ris, 42 Ga. 500; Water Works Co. v. easement.
 662 CONSTITUTIONAL LIMITATIONS. [CH. XV.

is by the public; the use is by the public; and the benefit to ac-
crue 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 tak-
ing be by individuals instead of by the State or any of its organ-
ized 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 corpora-
tion 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 com-
pelling 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 appropri-
ation 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 const tutional maxim to an absurd extreme
if it were to be held that the public necessity should only be pro-
vided for in the way 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 cor-
porate bodies, have been authorized to take private property for
the construction of works of public utility, and when duly em-
powered by the legislature so to do, their private pecuniary inter-
est does not preclude their being regarded as public agencies in
respect to the public good which is sought to be accomplished.'

1 Beekman v. Saratoga & Schenec- Pratt r. Brown, 3 Wis. 602; Swan r.

tady R. R. Co., 3 Paige, 73; s c. 22 Am. Williams, 2 Mich. 427; Steven: r. Mid
Dec. 679; Wilson v. Blackbird Creek dlesex Canal, 12 Mn-s 416 Boston Mill
Marsh Co., 2 Pet. 245; Bunnaparte ?. Dain r. Newman, 12 Pick. 467 Gilmer v.
Caruden & Amboy R. R. Co., 1 Bald. Lime Point, I8 Cal 229; Arminaton v.
205; Bloodgood r. Mohawk & Hudson Barnet, 15 Vt. 145: White River Torn-
R. R. Co., 18 Wend. 9; Lebanon r. 01- pike .. Central Railroad, 21 Vt '50;
Cott, I N. H. 239; Petition of Mount Raleigh. &c R R Co r Davi. 2 Dev
Washington Road Co., 35 N. H. 134; & Bat, 451 ; Whiteman's
Ex'r v. Wilming-
CH. XV.] THE EMINENT DOMAIN. 663

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
itself ; and the question is always one of strictly political charac-
ter, not requiring any hearing upon the facts or any judicial deter-
mination.1 Nevertheless, when a work or improvement of local
importance only is contemplated, the need of which must be do-
termnined 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 sub-
mitted to a jury to decide upon evidence.2 But parties interested
have no constitutional right to be heard upon the question, unless
the State constitution clearly and expressly recognizes and pro-
vides for it. On general principles, the final decision rests with
the legislative department of the State; 3 and if the question is
referred to any tribunal for trial, the reference and the opportu-
nity 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.4

ton, &c. R. R. Co., 2 Harr. 514; Bradley German Coal Co., 118 Ill. 427; Matter of
v. N. Y. & N. H. R. R. Co., 21 Conn. Union Ferry Co, 98 N. Y. 139.
294; Olmstead v. Camp, 38 Conn. 582; 4 People v. Smith, 21 N. Y. 595; Ford
Eaton v. Boston, C. & M. R. 1R. Co., v. Chicago & N. W. R. R. Co, 14 Wis.
51 N. H. 504; Moran v. Ross, 79 Cal. 617; Matter of Albany St , 11 Wend. 152;
159. s. c. 25 Am. Dec. 619; Lyon v Jerome,
1 Varick v. Smith, 5 Paige Ch. 137; 26 Wend. 481 ; Hays r. Risher, 32 Pa.
s. c. 28 Am. Dec. 417; Aldridge v. Rail- St. 169; North Missouri R. R. Co. v. Lack-
road Co., 2 Stew. & Port. 190; s. c. 23 land, 25 Mo. 515: Same v. Gott, 25 Mo.
Am. Dec. 307. 540; Bankhead v. Brown, 25 Iowa, 540,
2 Iron R. R. Co. v. Ironton, 19 Ohio Contra Costa R. R. v. Moss, 23 Cal 323,
St. 299. The constitutions of some of Matter of Fowler, 53 N. Y. 60; N. Y.
the States require the question of the ne- Central, &c. R. R. Co. v. Met. Gas Co., 63
cessity of any specific appropriation to N. Y. 326; Chicago, &c. R. R. Co. c.
be submitted to a jury ; and this require- Lake, 71 Ill. 333; Warren v. St. Paul,
ment cannot be dispensed with. Mans- &c. R. R. Co., 18 Minn. 384; Smea-
field. &c. R. R. Co. v. Clark, 23 Mich. ton c. Martin, 57 Wis. 361 ; State v.
519; Arnold v. Decatur, 29 Mich. 77. Stewart, 74 Wis. 620. But where a
3 United States v. Harris, 1 Sum. 21, general power to condemn is given, for
42; Ford v. Chicago, &c. R. 1. Co., 14 example, to a railroad company, the ne-
Wis. 609: People v. Smith, 21 N. Y. 595; cessity for its exercise in the taking of
Water Works Co. v. Burkhart, 41 Ind. particular property is a judicial question.
364; Tait's Exec. v. Centr, Lunatic Matter of New York Central R. R. Co.,
Asylum, 4 S. E. Rep. 697 (Va.). If the 66 N. Y. 407, In re St. Paul & N. P. Ry.
use is public, the legislative determina- Co , 34 Minn. 227; Olmsted v. Prop'rs
tion of necessity is conclusive. Sholl v. Morris Aqueduct, 46 N. J. L. 495; Tracy
664- CONSTITUTIONAL LIMITATIONS. [CH. XV.

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 appropriated in any
v. Elizabethtown, &c. I. R. Co., 80 Ky. a discreet and judicious exercise of the
259; Spring Valley Water Works v. San authority. The constitutional provision
Mateo Water Works, 61 Cal. 12-3. In the securing a trial by jury in certain cases,
case first above cited, Deono, J., says: and that which declares that no citizen
" The question then is, whether the State, shall be deprived of his property without
in the exercise of the power to appro- due process of law, have no application
priate the property of individuals to a to the case. The jury trial can only be
public use, where the duty of judging of claimed as a constitutional right where
the expediency of making the appropria- the subject is judicial in its character.
tion, in a class of cases, is committed to The exercise of the right of eminent do-
p ,blic officers, is obliged to afford to the main stands on the same ground with the
owners of the property an opportunity to power of taxation. Both are emanations
be heard before those officers when they of the law-making power. They are the
sit for the purpose of ma king the de- attributes of political sovereignty, for the
termination. I do not speak now of the exercise of which the legislature is under
process for arriving at the amount of no necessity to address itself to the courts.
compensation o be paid to the owners, In imposing a tax, or in appropriating
but of the determination whether, under the property of a citizen, or a class of
the circumstances of' a particular case, citizens, for a public purpose, with a
the property required for the purpose proper provision for compensation, the
shall be taken or not; and I am of opinion legislative act is itself dueprocess of law;
that the State is not under any obligation though it would not be if it should under-
to make provision for a judicial contest take to appropriate the property of one
upon that question. The only part of tie citizen for the use of another, or to con-
consitution which refers to the subject fiscate the property of one person or a
is that which forbids private property to class of persons, or a particular descrip-
be taken for public use without compen- tion of property, upon some view of pub-
sation, and that which prescribes the lic policy, where it could not be said to be
manner in which the compensation shall taken for a public use. It follows from
be ascertained. It is not pretended that these views that it is not necessary for
the statute under consideration violates the legislature, in the exercise of the
either of these provisions. There is right of eminent domain, either directly,
therefore no constitutional injunction on or indirectly through public officers or
the point under consideration. The ne- agents, to invest the proceedings with the
cessity for appropriating private property forms or substance of judicial process.
for the use of the public or of the gov- It may allow the owner to intervene and
ernment is not a jiudicial question. The participate in the discussion before the
power residus in the legislature. It may officer or board to whom the power is
be exercised by means of a statute which given of determining whether the appro-
shall at once designate the property to priation shall be made in a particular
be appropriated and the purpose of the case, or it may provide that the officers
appropriation ; or it may be delegated to shall act upon their own views of propri-
public officers, or, as it has been repeat- ety and duty, without the aid of a foren-
edly held, to private corporations estab- sic contest. The appropriation of the
lished to carry on enterprises in which property is an act of public administra-
the nublic are interested. There is no tion, ntid the form and manner of its per-
restraint upon the power, except that re- formance is such as the legislature in its
quiring compensation to be made. And discretion prescribe."
where the power is committed to public The fact that a road company has pur-
officers, it is a subject of legislative dis- chased a right of way a -ross a man's land
cretion to determine what prudential and bargained with him to build it, will
regulations shall be established to secure not preclude its appropriating a right of
CH. XV.] THE EMINENT DOMAIN. 665

instance than the proper tribunal shall adjudge to be needed for

the particular use for which the appropriation is made. When a
part only of a man's promises is needed by the public, the neces-
sity for the appropriation of that part vill not justify the taking
of the whole, even though compensation be made therefor. The
moment the appropriation goes beyond the necessity of the case,
it ceases to be justified on the principles which underlie the right
of eminent domain.' If, however, the statute providing for such
appropriation is acted upon, and the property owner accepts the
compensation awarded to him under it, he will be precluded by
this implied assent from afterwvards objecting to the excessive
appropriation.2 And where land is taken for a public work, there

way over the same land on another line. a small part left, not required for public
Cape Girardeau, &c. Road v. Dennis, 67 use, and that small part of but little value
.10. 4:8, in the hands of the owner. In such case
1 By a statute of New York it was the corporation has been supposed best
enacted that whenever a part only of a qualified to take and dispose of such par-
lot or parcel of land should be required cels, or gores, as they have sometimes
for the purposes of a city street, if the been called; and probably this assump-
commissioners for assessing compensa- tion of power has been acquiesced in by
tion should deem it expedient to include the proprietors. I know of no case where
the whole lot in the assessment, they the power has been questioned, and where
should have power so to do; and the part it has received the deliberate sanction of
not wanted for the particular street or this court. Suppose a case where only a
improvement should, upon the confirma- few feet, or even inches, are wanted, from
tion of the report, become vested in the one end of a lot to widen a street, and a
corporation, and might be appropriated valuable building stands upon the other
to public uses, or sold in case of no such end of such lot, would the power be con-
appropriation. Of this statute it was said ceded to exist to take the whole lot,
by the Supreme Court of New York " If whether the owner consented or not?
this provision was intended merely to The quantity of the residue of any lot can-
give to the corporation capacity to take not vary the principle. The owner may
property under such circumstances with be very unwilling to part with only a few
the consent of the owner, and then to dis- feet; and I hold it equally incompetent
pose of the same, there can be no objec- for the legislature thus to dispose of pri-
thon to it; but if it is to be taken literally, vale property, whether feet or acres are
that the commissioners may, against the the subject of this assumed power." Alat-
consent of the owner, take the whole lot, ter of Albany St., 11 Wend. 151; s. c. 25
when only a part is required for public Am. Dec. 618, per Savaqe, Ch. J. To the
use, an(d the residue to be applied to pri- same effect is Dunn v. City Council, Ilar-
vate use, it assumes a power which, with per, 129. And see Paul v. Detroit, 32
all respect, the legislature did not possess. Mich. 108; Baltimore, &c. R. Rt. Co. v.
The constitution, by authorizing the ap- Pittsburgh, &c. R. R. Co., 17 W. Va. 812.
propriation of private property to public 2 Enibury v. Conner, 3 N. Y. 511.
use. impliedly declares that for any other There is clearly nothing in constitutional
use private property shall not be taken principles which would preclude the legis-
fron one and applied to the private use lature from providing that a man's prop-
of another. It is in violation of natural erty might be taken with his assent,
right; and if it is not in violation of the whether the assent was evidenced by
letter of the constitution, it is of its spirit, deed or not; and if he accepts payment,
and cannot be supported. This power ie must be deemed to assent. See Has.
has been supposed to be convenient when kell v. New Bedford, 108 Mass. 208.
the greater part of a lot is taken, and only
666 CONSTITUTIONAL LIMITATIONS. [CH. XV.

is nothing in the principle we have stated which will preclude the

appropriation of whatever might be necessary for incidental con-
veniences: such as the workshops or depot buildings of a railway
company ,' or materials to be used in the construction of their
road, and so on. Express legislative power, however, is needed
for these purposes ; it will not follow that, because such things
are convenient to the accomplishment of the general object, the
public may appropriate them without express authority of law;
but the power to appropriate must be expressly conferred, and
the public agencies seeking to exercise this high prerogative
must be careful to keep within the authority delegated, since the
public necessity cannot be held to extend beyond what has been
plainly declared on the face of the legislative enactment.

What constitutes a Taking of Property.

Anv proper exercise of the powers of government, which does
not directly encroach upon the property of an individual, or dis-
turb him in its possession or enjoymont, will not entitle him to
compensation, or give him a right of action.2 If, for instance,
the State, under its power to provide and regulate the public
highwvs, should authorize the construction of a bridge across a
navigable river, it is quite possible that all proprietary interests
in land upon the river might be injuriously affected ; but such
injury could no more give a valid claim against the State for dam-
ages, than could any change in the general laws of the State,
which, while keeping in view the general good, might injuriously

I Chicago, B. & Q. R. R. Co. v. Wil- waukee, 16 Wis. 247; Richmond, &c. Co.
son, 17 Ill. 123; Low r. Galena & C. U. c. Rogers, 1 Duvall, 135; Harvey r. Lack-
It. I. Co., 18 Ill. 824 ; Giesy v. Cincin- awanna, &c. R. R. Co., 47 Pa. St. 428;
nati, W. & Z. R. R. Co., 4 Ohio St. 308. Tinicum Fishing Co. v. Carter, 61 Pa.
Or extra track room. Matter of Staten St. 21; Railroad Co. r. Richmond. 96
Island Transit Co., 103 N. Y. 251. U S. 521. The discontinuance of a high-
2 Zimmerman v. Union Canal Co., 1 way does not entitle parties incommoded
W. & S. 846 Shrunk c. Schuvlkill Navi- thereby to compensation Fearing c. Ir-
gation Co., 14 S. & R. 71; \Monongahela wvin, 55 N. Y. 486. Incidental intjiry to
Na viation Co. v. Coons, 6 W. & S. 101 adjoining lot-owners from constructing a
Davidson c. Boston & Maine R. R. Co., 3 tunnel in a street to pass under a river
Cush. t)1 ; Gould v. Hudson River R. It. will give no right of action. Transporta-
Co., 12 Btarb. 616, and 6 N. Y. 522; Rad- tion Co. v. Chicago, 99 U. S 635. See
cliff v. Mayor, &c. of Brooklyn, 4 N. Y. the case in the Circuit Court, 7 Biss. 45.
195; Murray v. Menefee, 20 Ark. 561; But a railroad company cannot he re-
Hooker v. New Haven & Northampton quired at its own expense to construct and
Co., 14 Conn. 146; People v. Kerr, 27 maintain across its right of way every
N. Y. 188; Fuller r. Edings, 11 Rich. new highway which mav be laid out over
Law, 230 : Elhlings v. Seabrook, 12 Rich. it. That would he a taking without just
Law, 501; Richardson r. Vermont Cen- compensation. People v. Lake Shore, &c.
tral 1. R. Co., 25 Vt. 465; Kennett's Ry. Co., 52 Mich 277: Chicago & G. T
Petition, 24 N. H. 139; Alexander v. Mil- Ry. Co. v. Hough, 61 Mich. 507.
CH. XV.] THE EMNIINENT DOMAIN. 667

affect particular interests.' So if by the erection of a dam in

order to improve navigation the owner of a fishery finds it dimii-
ished in value, 2 or if by deepening the channel of a river to im-
prove the navigation a spring is destroyed,3 or by a chainge in the
grade of a city street the value of adjacent lots is diminished,4-

1 Davidson r. Boston & Maine R1.R. for his conclusions. Compare Aldrich v.
Co., 3 Cush. 91; Transportation Co. v. Cheshire 1t. R. Co., 21 N. H. 359; West
Chicago, WJU. S. 635. Branch, &c. Canal Co. c. Mulliner, 68
2 Shrunk v. Schuylkill Navigation Co., Pa. St. 357 ; Bellinger v. N. Y. Central
14 S. & Ii. 71. In Green v. Swift, 47 Cal. R. R. Co., 23 N. Y. 42; Hatch v. Vt. Cen-
336, and Green v. State, 73 Cal. 29, it is tral H. l. Co., 25 Vt. 49; and cases,
held that where one finds hisland injured ante, p 646.
in consequence of a change in the current British Plate Manufacturing Co. v.
of a river, caused by straightening it, he Meredith, 4 T. R. 794; Matter of Furman
cannot claim compensation as of right. Street, 17 Wend. 649; Radcliffs EIx'rs r.
3 Conmonwealth v. Richter, 1 Pa. St. Mayor, &c. of Brooklyn, 4 N. Y. 195;
467. But in Winklenans v. Des Moines, Graves v. Otis, 2 Hill, 466; Wilson v.
&c. Ry. Co., 62 Iowa, 11, the value of a Mayor, &c. of New York, 1 Denio, 595;
spring destroyed in railroad construction Murphy v. Chicago, 29 Ill. 279 ; Roberts
is held recoverable. It is justly said by v. Chicago, 26 Ill. 249; Charlton r. Alle-
Mr. Justice Miller, in Fumpelly c. The ghany City, I Grant, 208; La Fayette v.
Green Bay, &c. Co., 13 Wall. 166, 180, that Bush, 19 Ind. 326; Macy c. Indianapolis,
the decisions " that for the consequential 17 Ind. 267 ; Vincennes v. IRichards, 23
injury to the property of an individual Ind. 381 ; Green v. Reading, 9 Watts,
from the prosecution of improvement of 382; O'Conner v. Pittsburg, 18 Pa. St.
roads, streets, rivers, and other highways 187; In re Ridge Street, 29 Pa. St.
for the public good, there is no redress," 301; Callendar v. Marsh, I Piclk. 418
" have gone to the extreme and limit of Creal v. Keokuk, 4 Greene (Iown), 47
sound judicial construction in favor of Smith v. Washington, 20 How. 15 ; Skin-
this principle, and in some cases beyond tier v. Hartford Bridge Co., 20Conn 523;
it and it remains true that where real Benden r. Nashua, 17 N. H. 477; Pontiac
estate is actually invaded by superin- ,. Carter, 32 Mich. 164; Goszler v.
duced additions of water, earth, sand, or Georgetown, 6 Wheat. 593, Stewart v.
other material, or by having any artifi- Clinton, 70 Mo. 603; Kebrer c. Richniond,
cial structure placed on it, so as effectu- 81 Va. 745; Meth. Epis. Church c. Wy-
ally to destroy or impair its usefulness, it andotte, 31 Kan. 721. See cases, ante,
is a taking within the menning of the p. 251, and Conklin r. New York, &c. Ry.
Constitution." See also Arimond v. Green Co., 102 N. Y. 107; Uline r. New York,
Ba y, &c. Co., 31 Wis. 316; Aurora r. &c. R. R. Co , 101 N. Y. 98; Henderson
Reed, 57 Ill. 29; s. c. 11 Am. Rep. 1. v. Minneapolis, 32 Minn. 319. Compare
This whole subject is most elaborately cases, post, p. 69D, note. The cases of
considered by Smith, J., in Eaton v. Bos- McComb v. Akron, 15 Ohio, 474; s. c. 18
ton, C. & M. R. R. Co., 51 N. H. 501. It Ohio, 229, and Crawford v. Delaware, 7
was decided in that case that, notwith- Ohio St. 450, are contra. Those cases,
standing a party had received compensa- however, admit that a party whose inter-
tion for the takin of his land for a rail- ests are injured by the original establish-
road, lie was entitled to a further remedy ment of a street grade can have no claim
at the common law for the flooding of his to compensation ; but they hold that
land in consequence of the road being cut when the grade is once established, and
throuh a ridge on the land of another; lots are improved in reference to it, the
and that this flooding was a taking of his corporation has no right to change the
property within the meaning of the con- grade afterwards, except on payment of
stitution. The cases to the contrary are the damages. And see Johnson r. Par-
all considered by the learned judge, who kersburg, 16 W. Va. 402; s. c. 37 Am.
is able to adduce very forcible reasons Rep. 779. That if the lateral support to
668 CONSTITUTIONAL LIMITATIONS. [CH. XV.

in these and similar cases the law affords no redress for the
injury. So if in consequence of the construction of a public
work an injury occurs, but the work was constructed on proper
plan and without negligence, and the injury is caused by acci-
dental and extraordinary circumstances, the injured party cannot
demand compensation.'
This principle is peculiarly applicable to those cases where
property is appropriated under the right of eminent domain. It
must frequently occur that a party will find his rights seriously
affected, though no property to which he has lawful claim is
actually appropriated. As where a road is laid out along the line
of a man's land without taking any portion of it, in consequence
of which he is compelled to keep up the whole of what before was
a partition fence, one half of which his neighbor was required to
support.2 No property being taken in this case, the party has no
relief unless the statute shall give it. The loss is danumm
[Link] injuria. So a turnpike company, whose profits will be
diminished by the construction of a railroad along the same gen-
eral line of travel, is not entitled to compensation. 3 So where a
his land is removed by grading a street Eddings v. Seabrook, 12 Rich. Law, 504;
the owner is entitled to compensation, Slatten c. Des Moines Valley R. R. Co.,
see O'Brien v. St. Paul, 25 Minn. 331; 29 Iowa, 148; Hoag v. Switzer, 61 Ill. 294.
Buskirk r. Strickland, 47 Mich. 389. Merely crossing a railroad by another
1 As in Sprague v. Worcester, 13 Gray, track is not a taking of property. Le-
193, where, in consequence of the erec- high V. R. R. Co. v. Dover, &c. R. R.
tion of a bridge over a stream on which Co., 43 N. J. 328. But this cannot be
a mill was situated, the mill was injured universally true. See Lake Shore, &c R.
by an extraordinary rise in the stream; R. Co. v. Chicago, &c. R. R. Co., 100 Ill.
the bridge, however, being in all respects 21. Damage for the resulting inconv en-
properly constructed. In Hamilton v. ience may be allowed as well as for main-
Vicksburg, &c. R. R. Co., 119 U. S. 280, taining the crossing. Chicago & W. I.
the obstruction of a navigable stream by R. R. Co. v. Englewood, &c. Ry. Co., 115
unavoidable delay in rebuilding a lawful Ill. 37.5.
bridge was held not actionable. And see Troy & Boston R. R. Co. v. North-
Brown r. Cayuga, &c. R. R. Co., 12 N. Y. ern Turnpike Co., 16 Barb. 100. See La
486, where bridge proprietors were held Fayette Plank Road Co. r. New Albany
liable for similar injuries on the ground of & Salem R. R. Co., 13 Ind. 90; Rich-
negligence. And compare Norris v. Vt. mond, &c. Co. v. Rogers, 1 Duvall, 135.
Central R. R. Co., 28 Vt. 90, with Mellen So an increased competition with a party's
v. Western R. R. Corp., 4 Gray. 301. And business caused by the construction or
see note on preceding page. The incon- extension of a road is not a ground of
venience from smoke and jar caused by the claim. Harvey v. Lackawanna, &c. H.
careful construction and operation of a R. Co., 47 Pa. St. 428. " Every great
railroad near property is not action- public improvement must, almost of ne-
able. Carroll v. Wis. Cent. R. R. Co., cessity, more or less affect individual con-
40 Minn. 168 ; Beseman v. Pa. R. R. venience and property ; and where the
Co., 50 N. J. L. 235. Compare Baltimore injury sustained is remote and consequen-
& 0. 1t R. Co. v. Fifth Bapt. Ch., 108 tial, it is damtnunt absque inj ur, and is to
U. S. 317; Cogswell v. New York, &c. be borne as a part of the price to be paid
1. R. Co,, 103 N. Y. 10. for the advantages of the social condition.
2 Kennett's Petition, 4 Fost. 139. See This is founded upon the principle that
CH. XV.] THE EMINENT DOMAIN. 669

railroad company, in constructing their road in a proper maimer

on their own land, raised a high embankment near to and in
front of the plaintiff's house, so as to prevent his passing to and
from the same with the same convenience as before, this conse-
quential injury was held to give no claim to compensation.' So
the owner of dams crected by legislative authority is without
remedy, if they are afterwards rendered valueless by the construc-
tion of a canal.2 And in New York it has been held that, as the
the general good is to prevail over par- 2 Susquehanna Canal Co. v. Wright, 9
tial individual convenience." Lansing r. W. & S. 9; Monongahela Navigation Co.
Smith, 8 Cow. 146, 149. v. Coons, 6 W. & S. 101. In any case. if
1 Richardson v. Vermont Central R. R. parties exercising the riglit of eminent
Co., 23 Vt. 465. But qiure if this could domain shall cause injury to others by
be so, if the effect were to prevent access a negligent or improper construction of
from the lot to the highway. In certain their work, they may be liable in da tam-
Indiana cases it is said that the right of ages. Rowe v. Granite Bridge Corpora-
the owner of adjoining land to the use of tion, 21 Pick. 348 ; Sprague r. Worcester,
the highway is as much property as the 13 Gray, 193. And if a public work is of
land itself; that it is appurtenant to the a character to necessamrily disturb the oc-
lanid, and is protected by the constitution. cupation and enjoyment of his estate by
HaN es v. J homas, 7 Ind. 38; Protzmuan one whose land is not taken, lie may
V. Indianapolis, &c. R. R. Co., 9 lud. 467; have an action on the case for the injury,
New Albany & Salem It. R. Co. r. notwithstanding the statute makes ito
O'Daily, 13 Ind. 453. The same doc- provision for compensation. As where
trine is recognized in Crawford v. Dela- the necessary, and riot simply the acci-
ware, 7 Ohio St. 459; Street Railway v. dental, consequence was to flood a man's
Cumminsville, 14 Ohio St. 52.3; Schneider premises with water, thereby greatly di-
v. Detroit, 40 N. W. Rep. 329 (Mich.); minishing their value. I-looker m. New
Columbus & W. Ry. Co. v. Witherow, Haven & Northampton Co., 14 Conn
82 Ala. 10 ; Shealy v. Chicago, &c. 146; s. c. 15 Conn. 812 ; Evansville, &c.
Ry. Co, 72 Wis. 471. See also In- R. R. Co. v. Dick, 9 Ind. 413; Robinson
dianapolis R. R. Co. v. Smith, 52 Ind. v. N. Y. & Erie R. R. Co., 27 Barh.
428; Terre Haute & L. R. R. Co. v. Bis- 512; Trustees of Wabash & Erie Canal
sell, 108 Ind. 113; Indiana, B. & W. Ry. v. Spears, 16 Ind. 441 ; Eaton v. Boston,
Co. r. Eberle, 110 Ind. 542; Pekin v. C. & 11. R. R. Co., 51 N. H. 504; Ashley
Brereton, 67 Ill. 477 ; Pekin v. Winkel, 77 v. Port Huron, 35 Mich. 206. So, where,
IU 56; Grand Rapids, &c. H. R. Co. v. by blasting rock in making anr exca-
Heisel, 38 Mich. 62; s. c. 31 Am. Rep. vation, the fragments are thrown upon
306, In the Vermont case above cited adjacent buildings so as to render their
it was held that an excavation by the occupation unsafe. Hay v. Cohoes Co.,
company on their own land, so near the 2 N. Y. 159; Tremain v. Same, 2 N. Y.
line of the plaintiff's that his land, with- 163; Carman v. Steubenville & Indiana
out any artificial weight thereon, slid into R. R. Co., 4 Ohio St. 399; Sunbury &
the excavation, would render the com- Erie R. 1. Co. v. Hummel, 27 Pa. St. 99;
pany liable for the injury ; the plaintiff Georgetown, &c. R. R. Co. v. Eagles,
beinz entitled to the lateral support for 9 Col. 544. See Mairs v. Maniattan,
his land. But if to bridge a cut made &c. Ass., 89 N. Y. 498. There has been
by a railroad in crossing a street the some disposition to hold private cor-
grade in front of a lot is raised, it is held porations liable for all incidental damages
not a taking for a new use, though access caused by their exercise of the right of
to the lot is cut off. Henderson v. 'Min- 'eminent domain. See Tinsman v. Belvi-
neapolis, 32 Minn. 319; Conklin v. New dere & Delaware R. R. Co., 26 N. J.
York, &c. Ry. Co , 102 N. Y. 107. The 148; Alexander v. Milwaukee, 16 Wis
same principle is followed in Uline v. 247.
New York, &c. R. R. Co., 101 N. Y. 98.
670 CONSTITUTIONAL LIMITATIONS. [CH. XV.

land where the tide ebbs and flows, between high and low water
mark, belongs to the public, the State may lawfclly authorize a
railroad company to construct their road along the water front
below high-water mark, and the owner of the adjacent bank call
claim no compensation for the consequential injury to his inter-
ests.1 So the granting of a ferry right with a landing on private
property within a highway terminating on a private stream is not
an appropriation of property, 2 the ferry being a mere continuation
of the highway, and the landing place upon the private property
having previously been appropriated to public uses.
These cases must suffice as illustrations of the principle stated,
though many others might be referred to. On the other hand,
any injury to the property of an individual which deprives the
owner of the ordinary use of it, is equivalent to a taking, and
entitles him to compensation. 3 Water front on a stream where

I Gould v. Hudson River R. R. Co., 6 flowing of private lands by the operations

N. Y. 522. And see Stevens v. Paterson, of a booming company is a taking of
&c. R. R. Co., 4 N. J. 532; Tomlin v. property. Grand Rapids Booming Co. v.
Dubuque, &c. R. R. Co., 32 Iowa, 106; Jarvis, 30 Mich. 308 ; Weaver v. Aiisis-
s. c. 7 Am. Rep. 176. So far as these sippi, &c. Co., 28 Minn. 534. And see
cases hold it competent to cut off a ripa- cases, p. 669, note 2. The legislature can-
rian proprietor from access to the navi- not authorize a telegraph company to erect
gable water, they seem to us to justify its poles on the lands of a railroad com-
an appropriation of his property without pany without compensation. Atlantic,
compensation; for even those courts &c. Telegraph Co. r. Chicago, &c. R. R.
which hold the fee in the soil under navi- Co., 6 Biss. 158. The erection of tele-
gable waters to be in th State admit phone, telegraph, and electric wire poles
valuable riparian rights in the adjacent on a highway is a new use of it. Board
proprietor. See Yates v. Milwaukee, 10 of Trade Tel. Co. v. Barnett, 107 Ill. 507;
Wall. 497; Chicago, &c. R. R. Co. c. Stein, Metr. Tel., &c. Co. v Colwell Lead Co.,
75 Ill. 41. Compare Pennsylvania R. R. 67 How. Pr. 805; Tiffany c. U. S. Illum.
Co. v. New York, &c. R. R. Co., 23 Co., Id. 73. Contra, Pierce v. Drcw, 16
N. J. Eq. 157. In the case of Railway Mass. 75 ; Julia B'ld'g Ass. v. Bell Tel.
Co. v. Renwick, 102 U. S. 180, it is de- Co., 88 Mo. 23S. A statute cannot com-
cided expressly that the land under the pel a railroad company to allow any one
water in front of a riparian proprietor and upon payment of one dollar to erect a
beyond the line of private ownership, grain elevator upon its station grounds.
cannot be taken and appropriated to a State v. Chicago, &c. Ry. Co., 36 Minn.
public purpose without making compen- 402. If under an ordinance an abutter
sation to the riparian proprietor. This is on rebuilding is required to put his house
a very sensible and just decision. See in back five feet from the street line, prop-
the same line, Langdon v. -Mayor, 93 erty is taken. In re Chestnut St., 118
N. Y. 129; Kingsland v. Mayor, 110 N. Y. Pa. St. 593. So, if under a statute a
569. road officer cuts a drain on property to
2 Murray v. Menefee, 20 Ark. 561. draw surface water from a highway.
Compare Prosser v. Wapello County, Ward r. Peck, 49 N. J. L. 42. So, if in
18 Iowa, 327. grading a street an embankment is placed
3 Hooker r. New Haven & North- so as to take up part of an abuttina lot,
ampton Co., 14 Conn. 146; Pumpelly v. and injure a house on it. Vanderlip
Green Bay, &c. Co., 13 Wall. 166; Ari- v. Grand Rapids, 41 N. W. Rep. 677
mond v. Green Bay, &c. Co., 31 Wis. 316; (Mich.); Broadwell v. Kansas City, 75
Ashley v. Port Huron, 35 Mich. 296. The Mo. 213.
CHi. XV.] THE EMINENT DOMAIN. 671

the tide does not obb and flow is property, a], if taken, must be
paid for as such.' So with an exelisive right of wharfage upon
tide water. 2 So with the right of the owner of land to use an
adjoining street, whether he is owner of the land over which the
street is laid out or not.3 So with the right of pasturage in
streets, which belongs to the owners of the soil.' So a partial
destruction or diminution of value of property by an act of the
~oernmnent which directly and not merely incidentally affects it,
is to that extent an appropriation. 5
It sometimes becomes important, where a highway has been
laid out and opened, to establish a different and higher grade of
way upon the same line, with a view to accommodate an increased
public demand. The State may be willing to surrender the con-
trol of the streets in these cases, and authorize turnpike, plank-
road, or railroad corporations to occupy them for their purposes;
and if it shall give such consent, the control, so far as is neces-
sarV to the purposes of the turnpike, plank-road, or railway, is
thereby passed over to the corporation, and their structure in
what was before a common highway cannot be regarded as a pub-
lie nuisance.6 But the municipal organizations in the State have
no power to give such consent without express legislative per-
mission; the goneral control of their streets which is commonly
given by municipal charters not being sufcient authority for this
I Varick v. Smith, 9 Paige, 547. See the land for other purposes, at the time
Yates r. Milwaukee, 10 Wall. 407. the highway was laid out. Griffin v.
2 Murray v. Sharp, 1 Bosw. 539. Martin, 7 Barb. 297; Hardenburgh v.
3 Lackland v. North Missouri R. R. Co., Lockwood, 25 Barb. 9. See also Ker-
31 MJo. 180. See supra, p. 669, note 1. whacker v. Cleveland, C. & C. R. R. Co.,
Abutters, as members of the public who 3 Ohio St. 172, where it was held that by
have not bought by a plat, have no right ancient custom in that State there was a
of action for the obstruction of a, street right of pasturage by the public in the
under State authority. Gerhard v. See- highways.
konk, &c. Com., 15 R. I. 334. 6 See Glover r. Powell, 10 N. J. Eq.
4 Tonawanda R. R. Co. v. Munger, 5 211 ; Eaton r. Boston, C. & M. R. [Link].,
Denio, 2.55; Woodruff v. Neal, 28 Conn. 51 N. H1.504. Even a temporary right to
165. In the first case it was held that a the possession of lands cannot be given
by-law of a town giving liberty to the by the legislature without provision for
inhabitants to depasture their cows in compensation. San Mateo Water Works
the public highways under certain regula- v. Sharpstein, 50 Cal. 284. A provision
tions, passed under the authority of a in the charter of a corporation that it shall
general statute empowering towns to not be liable for diverting water is void.
pass such by-laws, was of no validity, Harding v. Stamford Water Co., 41 Conn.
because it appropriated the pasturage, 87.
which was private property, to the pub- 6 See Commonwealth v. Erie & N. E.
lic use, without making compensation. R. R. Co., 27 Pa. St. 339; Tennessee, &c.
The contrary has been held in New R. R. Co. v. Adams, 3 Head, 596; New
York as to all highways laid out while Orleans, &c. R. R. Co. v. New Orleans, 26
such a statute was in existence; the La. Ann. 517; Chicago, &c. R. R. Co. r.
owner being held to be compensated for Joliet, 79 Ill. 25; Donnaher's Case, 16
the pasturage, as well as for the use of Miss. 649.
 672 CONSTITUTIONAL LIMITATIONS. [CH. XV.

purpose.' When, however, the public authorities have thus as-

sented, it may be found that the owners of the adjacent lots3, who
are also owners of the fee in the highway subject to the public
easement, may be unwilling to assent to the change, and may
believe their interests to be seriously and injuriously affected
thereby. The question may then arise, Is the owner of the land,
who has been once compensated for the injury he has sustained
in the appropriation of his land as a highway, entitled to a new
assessment for any further injury he may sustain in consequence
of the street being subjected to a change in the use not contem-
plated at the time of the original taking, but nevertheless in
furtherance of the same general purpose ?
When a common hi!ghmway is made a turnpike or a plank-road,
upon which tolls are collected, there is much reason for holding
that the owner of the soil is not entitled to any further compensa-
tion. The turnpike or the plank-road is still an avenue for public
travel, subject to be used in the same manner as the ordinary
highway was before, and, if properly constructed, is generally
expected to increase rather than diminish the value of property
along its line ; and though the adjoining proprietors are required
to pay toll, they are supposed to be, and generally are, fully com-
pensated for this burden by the increased excellence of the road.
and by their exemption from highway labor upon it.2 But it is
1 Lackland v. North Missouri R. R. Co. level, what gates, fences, and barriers
31 Mo. 180; New York & Harlem R1. Rt. shall be made, and what guards shall be
Co. v. Mayor, &c. of New York, 1 Hilt. kept to insure safety. Had it been in-
562; Milhau v. Sharp, 27 N. Y 611; State tended that railroad companies, under a
v. Cincinnati, &c. Gas Co., 18 Ohio St. general grant, should have power to lay
262; State v. Trenton, 36 N. J 79; Cham- a railroad over a highway longitudi-
berlain v. Elizabethport, &c. Co., 41 nally, which ordinarily is not necessary,
N. J. Eq. 43; Garnett v. Jacksonville, we think that would have been done in
&c Co , 2) Fla. 881. In Inhabitants of express terms, accompanied with full le-
Springfield v. Connecticut River R. R. gislative provisions for maintaining such
Co., 4 Cush. 63, it was held that legis- barriers and modes of separation as would
lative authority to construct a railroad tend to make the use of the same road,
between certain termini, without pre- for both modes of travel, consistent with
scribing its precise course and direc- the safety of travellers on both. The
tion, would not prima facie confer power absence of an such provision affords
to lay out the road on and along an exist- a strong inference that, under general
ing public highway. Per Shaw, Ch. J.: terms, it was not intended thit such a
"The whole course of legislation on the power should be given." See also Coin-
subject of railroads is opposed to such a monwealth v. Erie & N. E. R. R. Co.,
construction. The crossing of public high- 17 Pa. St. 339; Attorney-General v. Mor-
ways by railroads is obviously necessary, ris & Essex R. R. Co., 19 N. J. Eq. 386.
and of course warranted; and numerous 2 See Commonwealth r. Wilkinson, 16
provisions are industriously made to Pick. 175; s. c. 24 Am. Dec. 624; Bene-
regulate such crossings, by determining dict v. Goit, 3 Barb. 459; Wright r. Car-
wher they shall be on the same and ter, 27 N. J. 76; State v. Laverack, 34
when on different levels, in order to N. J. 201 ; Chagrin Falls & Clevelnd
avoid collision ; and, when on the sam Plank Road Co. v. Cane, 2 Ohio St. 419;
CH. XV.] THE EMINENT DOMAIN. 673

different when a highway is appropriated for the purposes of a

railroad. " It is quite apparent that the use by the public of a
highway, and the use thereof by a railroad company, is essentially
different. In the one case every person is at liberty to travel
over the highway in any place or part thereof, but he has no
exclusive right of occupation of any part thereof except while he
is temporarily passing over it. It would *be trespass for him to
occupy any part of the highway exclusively for any longer period
of time than was necessary for that purpose, and the stoppages
incident thereto. But a railroad company takes exclusive and
permanent possession of a portion of the street or highway. It
lays down its rails upon, or imbeds them in, the soil, and thus
appropriates a portion of the street to its exclusive use, and for
its own particular mode of conveyance. In the one case, all
persons may travel on the street or highway in their own common
modes of conveyance. In the other no one can travel on or over
the rails laid down, except the railroad company and with their
cars specially adapted to the tracks. In one case the use is
general and open alike to all. In the other it is peculiar and
exclusive.
" It is true that the actual use of the street by the railroad may
not be so absolute and constant as to exclude the public also from
its use. With a single track, and particularly if the cars used
upon it were propelled by horse-power, the interruption of the
public easement in the street might be very trifling and of no
practical consequence to the public at large. But this considera-
tion cannot affect the question of right of property, or of the
increase of the burden upon the soil. It would present simply a
question of degree in respect to the enlargement of the easement,
and would not affect the principle, that the use of a street for the
purposes of a railroad imposed upon it a new burden." 1
Douglass v. Turnpike Co., 22 Md. 219. R. R. Co., 24 N. Y. 655; Mahon v. New
But see Williams v. Natural Bridge York Central R. R. Co., 24 N. Y. 658;
Plank Road Co., 21 Mo. 580. A third- Starr v. Camden & Atlantic R. R. Co.,
class road cannot be changed to one of 24 N. J. 592; Donnaher's Case, 16
the second class without compensation, Miss. 649; Theobold r. Louisville, &c.
as the burden on the owner is increased. Ry. Co., 66 Miss. 279; Adams v.
Bounds v. Kirven, 63 Tex. 159. In Murray Chicago, &c. R. R. Co., 39 Minn.
v. County Commissioners of Berkshire, 286; Phipps v. West. Md. I. R. Co,
12 Met. 455, it was held that owners of 66 Md. 319; Cox v. Louisville, &c. R.
lands adjoining a turnpike were not en- R. Co., 48 Ind. 178. In Inhabitants of
titled to compensation when a turnpike Springfield v. Connecticut River R. R. Co.,
was changed to a common highway. 4 Cush. 71, where, however, the precise
1 Wager . Troy Union R. R. Co., 25 question here discussed was not involved,
N. Y. 526, 532, approving Williams v. Chief Justice Show, in comparing railroads
New York Central R. R. Co., 16 N. Y. with common highways, says: "The two
97; Carpenter v. Oswego & Syracuse uses are almost, if not wholly, inconsistent
43
674 CONSTITUTIONAL LIMITATIONS. [CH. XV.

The case from which we here quote is approved in cases in

Wisconsin, where importance is attached to the different effect
the common highway and the railroad will have upon the value
of adjacent property. " The dedication to the public as a high-
way," it is said, " enhances the value of the lot, and renders it
more convenient and useful to the owner. The use by the rail-
road company diminishes its value, and renders it inconvenient
and comparatively useless. It would be a most unjust and op-
pressive rule which would deny the owner compensation under
such circumstances." 1
It is not always the case, however, that the value of a lot of
land will be enhanced by the laying out of a common highway
across it, or diminished by the construction of a railway over the
same line afterwards. The constitutional question cannot depend
upon the accidental circumstance that the new road will or will
not have an injurious effect ; though that circumstance is prop-
erly referred to, since it is difficult to perceive how a change of
use which may possibly have an injurious effect not contemplated

with each other, so that taking the high- N. J Eq. 164; Terre Haute & L. R. R.
way for a railroad will nearly supersede Co. 7. Bissell, 108 Ind. 113; Indianapolis,
the former use to which it had been legal- B. & W. Ry. Co. v. Eberle, 110 Ind.
ly appropriated." See a!so Presbyterian 542. A gas-light company cannot be au-
Society of Waterloo v. Auburn & Roch- thorized to lay its pipes in a country
ester R. R. Co., 3 Hill, 567 ; Craig v. highway without consent of or compen-
Hochester, &c. R. R. Co., 39 Barb. 494; sation to the owners of the fee. Bloom-
Schirmeier v. St. Paul, &c. R. R. Co., 10 field, &c. Co. v. Calkins, 62 N. Y. 386.
Minn. 82; Gray r. First Division, &c., 13 Nor may a pipe line for natural gas be
Minn. 315; Central R. R. Co. r. Hetfield, laid. Sterling's Appeal, 111 Pa. St 35.
29 N. J. 206; South Carolina R. R. Co. v. 1 Ford v. Chicago & Northwestern
Steiner, 44 Ga. 546. Under the California R. R. Co., 14 Wis. 609, 616; followed in
Constitution the owner of the fee must be Pomeroy v. Chicago & M. Rt. 1. Co., 16
compensated. Weyl ?.. Sonoma R. R. Wis. 640. The later cases allow compen-
Co., 69 Cal. 202. Compare cases, p. 689, sation only when the fee of the street is
note, post. The cases of Philadelphia & in the owner and there is an actual phy-
Trenton R. H. Co., 6 Whart. 25; s. c. 36 sical interference with the property in the
Am. Dec. 202; Struthers v. Railroad Co., strict sense - Heiss v. Milwaukee, &c. R.
87 Pa. St. 262; Lexington, &c. R. R. Co. IR. Co., 69 Wis. 555; Hanlin c. Chicago,
v. Applegate, 8 Dana, 2-9; s. c. 33 Am. &c. Ry. Co., 61 Wis. 515; where there
Dec. 497 ; Elizabethtown & P. R. R. was no such interference, distinguishing
Co. v. Thompson, 79 Ky. 52; and Morris Buchner v. Chicago, &c. R. R. Co., 56
& Essex R. R. Co. v. Newark, 10 N. J. Wis. 403; 60 Wis. 264, where part of the
Eq. 352, are opposed to the New York property was actually taken. In many
cases. And see Wolfe v. Covington, &c. of the cases noted in the preceding note
R. I. Co., 15 B. Monr. 404; Com. ?[Link] the right to compensation is based upon
& N. E. R. R. Co., 27 Pa. St. 839; the ownership of the fee. In Pennsyl-
Snyder v. Pennsylvania R. R. Co., 55 vania it is held competent for the legisla-
Pa. St. 340; Peddicord v'. Baltimore, ture, though not necessary, to provide
&c. R. R. Co., 34 Md. 463; Houston, &c. compensation to land-owners when a
R. R. Co. v. Odum, 53 Tex. 348; s. c. 2 highway is taken for a railroad. Mifflin
Am. & Eng. R. R. Cas. 503; West Jer- v. Railroad Co., 16 Pa. St. 182.
sey R. [Link]. v. Cape May, &c. Co., 34
CHI. XV.] THE EMINENT DOMAIN. 675

in the original appropriation can be considered anything else than

the imposition of a now burden upon the owner's estate. In
('onecticut, where the authority of the legislature to authorize
a railroad to be constructed in a common highway without corn-
pensation to land-owners is also denied, importance is attached to
the terms of the statute under which the original appropriation
was made, and which are regarded as permitting the taking for
the purposes of a common highway, and for no other. The
reasoning of the court appears to us sound ; and it is applicable
to the statutes of the States generally.'
I Imlay v. Union Branch R. R. Co., 26 "The term 'public highway,' as em-
Conn. 249, 255. " When land is con- ployed in such of our statutes as convey
demned for a special purpose," say the the right of eminent domain, has cer-
court, " on the score of public utility, the tainly a limited import. Although, as
sequestration is limited to that particular suggested at the bar, a navigable river or
use. Land taken for a highway is not a canal is, in some sense, a public high-
thereby convertible into a common. As way, yet an easement assumed under the
the property is not taken, but the use name of a highway would not enable the
only. the right of the public is limited to public to convert a street into a canal.
the use, the specific use, for which the The highway, in the true meaning of the
proprietor has been devested of a com- word, wou]ld be destroyed. But as no
plete dominion over his own estate. These such destruction of the highway is ne-
are propositions which are no longer open cessarily involved] in the location of a
to discussion. But it is contended that railway track upon it, we are pressed to
land once taken and still held for high- establish the legal proposition that a high-
way purposes may be used for a railway way, such as is referred to in these stat-
without exceeding the limits of the ease- utes, means or at least comprehends a
mnent already acquired by the public. If railroad. Such a construction is possible
this is true, if the new use of the land is only when it is made to appear that there
within the scope of the original seques- is a substantial practical or technical iden-
tration or dedication, it would follow that tity between the uses of land for highway
the railwaY privileges are not an encroach- and for railway purposes.
ment on the estate remaining in the owner " No one can fail to see that the terms
of the soil, and that the new mode of en- railway ' and ' highway ' are not conver-
joying the public easement will not ena- tible, or that the two uses, practically con-
ble him rightfully to assert a claim to sidered, although analogous, are not iden-
damages therefor. On the contrary, if tical. Land as ordinarily appropriated
the true intent and efficacy of the original by a railroad company is inconvenient,
condemnation was not to subject the land and even impassable, to those who would
to such a burden as will be imposed upon use it as a common hi2hway. Such a
it when it is confiscated to the uses and corporation does not hold itself bound to
control of a railroad corporation, it can- make or to keep its embankments and
not be denied that in the latter case the bridges in a condition which will facili-
estate of the owner of the soil is injuri- tate the transitus of such vehicles as ply
ously affected by the supervening servi- over an ordinary road. A practical dis-
tude; that his rights are abridged, and similarity obviously exists between a rail-
that in a legal sense his land is again way and a common highway, and is
taken for public uses. Thus it appears recognized as the basis of a legal distinc-
that the court have simply to decide tion between them. It is so recognized
whether there is such an identity between on a large scale when railway privileges
a highway and a railway, that statutes are sought from legislative bodies, and
conferring a right to establish the former granted by them. If the terms 'high-
include an authority to construct the way ' and ' railway ' are synonymous, or
latter. if one of them includes the other by legal
676 CONSTITUTIONAL LIMITATIONS. [CH. XV.

It would appear from the cases cited that the weight of judicial
authority is against the power of the legislature to appropriate
implication, no act could be more super- quire the destruction of the ordinary
fluous than to require or to grant author- modes of travel thereon. He is not au-
ity to construct railways over localities thorized to lay down a railway track, and
already occupied as highways. run his own locomotive and car upon it.
"If a legal identity does not subsist No one ever thought of regarding high-
between a highway and a railway, it is way acts as conferring railway privileges,
illogical to argue that, because a railway involving a right in every individual, not
may be so constructed as not to interfere only to break up ordinary travel, but also
with the ordinary uses of a highway, and to exact tolls from the public for the priv-
so as to be consistent with the highway ilege of using the peculiar conveyances
right already existing, therefore such a adapted to a railroad. If a right of this
new use is included within the old use. description is not conferred when a high-
It might as well be urged, that if a com- way is authorized by law, it is idle to pre-
mon, or a canal, laid out over the route tend that any proprietor is divested of
of a public road, could be so arranged as such a right. It would seem that, under
to leave an ample roadway for vehicles such circumstances, the true construction
and passengers on foot, the land should of highway laws could hardly be debata-
be held to be originally condemned for ble, and that the absence of legal identity
a canal or a common, as properly incident between the two uses of which we speak
to the highway use, was patent and entire.
" There is an important practical rea- " Again, no argument or illustration
son why courts should be slow to recog- can strengthen the self-evident proposi-
nize a legal identity between the two uses tion that, when a railway is authorized
referred to. They are by no means the over a public highway, a right is created
same thing to the proprietor whose land against the proprietor of the fee, in favor
is taken; on the contrary, they suggest of a person, an artificial person, to whom
widely different standards of compensa- he before bore no legal relation whatever.
tion. One can readily conceive of cases It is understood that when such an ease-
where the value of real estate would be ment is sought or bestowed, a new and
directly enhanced by the opening of a independent right will accrue to the rail-
highway through it; while its confisca- road corporation as against the owner of
tion for a railway at the same or a subse- the soil, and that, without any reference
quent time would be a gross injury to the to the existence of the highway, his land
estate, and a total subversion of the mode will forever stand charged with the ac-
of enjoyment expected by the owner cruing servitude. Accordingly, if such a
when lie yielded his private rights to the highway were to be discontinued accord-
public exigency. ing to the legal forms prescribed for that
" But essential distinctions also exist purpose, the railroad corporation would
between highway and railway powers, as still insist upon the express and indepen-
conferred by statute, - distinctions which dent grant of an easement to itself, ena-
are founded in the very nature of the bling it to maintain its own road on the
powers themselves. In the case of the site of the abandoned highway. We are
highway, the statute provides that, after of opinion, therefore, as was distinctly
the observance of certain legal forms, the intimated by this court in a former Case
locality in question shall be forever sub- (see opinion of I/nmran, J., in Nicholson
servient to the right of every individual v. N. Y. & N. H. R. R. Co., 22 Conn. 74,
in the community to pass over the thor- 85), that to subject the owner of the soil
oughfare so created at all times. This ofa highiway to a further appropriation
right involves the important implication of his land to railway uses is the imposi-
that he shall so use the privilege as to tion of a new servitude upon his estate,
leave the privilege of all others as unob- and is an act demanding the compensa-
structed as his own ; and that he is there- tion which the law awards when land is
fore to use the road in the manner in taken for public purposes." And see
which such roads are ordinarily used, with South Carolina R. R. Co. v. Steiner, 44
such vehicles as will not obstruct, or re- Ga. 546.
CH. xv.] THE EMINENT DOMAIN. 6)77

a common highway to the purposes of a railroad, unless at the

saie time provision is made for compensation to the owners of
the fee. These cases, however,have had reference to the common
railroad operated by steam. In one of the New York cases I it is
intimated, and in another case in the same State it was directly
decided, that the ruling should be the same in the case of the
street railway operated by horse power.2 There is generally,
however, a very great difference in the two cases, and some of the
considerations to which the courts have attached importance
could have no application in many cases of common horse rail-
ways. A horse railway, as a general thing, will interfere very
little with the ordinary use of the way by the public, even upon
the very line of the road ; and in many cases it would be a relief
to an overburdened way, rather than an impediment to the pre-
vious use. In Connecticut, after it had been decided, as above
shown, that the owner of the fee subject to a perpetual highway
was entitled to compensation when the highway was appropriated
for an ordinary railroad, it was also held that the authority to
lay and use a horse-railway track in a public street was not a
new servitude imposed upon the land, for which the owner of the
fee would be entitled to damages, but that it was a part of the
public use to which the land was originally subjected when taken
for a street.3 The same distinction between horse railways and
those operated by steam is also taken in recent New York cases.'
But whether the mere difference in the motive power will make
different principles applicable is a question which the courts will
probably have occasion to consider further. Conceding that the
interests of individual owners will not generally suffer, or their
use of the highway be incommoded by the laying down and use
of the track of a horse railway upon it, there are nevertheless
cases where it might seriously impede, if not altogether exclude,
the general travel and use by the ordinary modes, and very greatly
reduce the value of all the property along the line. Suppose, for
instance, a narrow street in a city, occupied altogether by whole-
sale houses, which require constantly the use of the whole street
1 Wager v. Troy Union R. R. Co., 25 is not an additional servitude. Hodges
N. Y. 526. v. Bait. Pass. Ry. Co., 58 Md. 603; Texas
2 Craig r. Rochester City & Brighton & P. By. Co. v. Rosedale St. Ry. Co., 64
R. R. Co., 39 Barb. 449. Tex. 80; Randall v. Jacksonville, &c. Co,
8 Elliott v. Fair Haven & Westville 19 Fla. 409; Eichels v. Evansville St. Ry.
R. R. Co., 32 Conn. 579, 586. Co., 78 Id. 261; and this though the
4 Brooklyn Central, &c., R. R. Co. v. company is authorized to use steam as a
Brooklyn City R. R. Co., 33 Barb. 420; motor Briggs v. Lewiston, &c. Co., 79
People v. Kerr, 37 Barb. 357; s. c. 27 Me.363. [Link]. By
N. Y. 188. See Kellinger v. Railroad Co, Co., 9 S. E. Rep. 1078 (Ga.).
50 N. Y. 206. A horse railroad in a street
 678 CONSTITUTIONAL LIMITATIONS. rCH. XV.

in connection with their business, and suppose this to be turned

over to a street-railway company, whose line is such as to make
the road a principal avenue of travel, and to require such constant
passage of cars as to drive all drayage from the street. The
corporation, under these circumstances, will substantially have a
monopoly in the use of the street ; their vehicles will drive the
business from it, and the business property will become compara.
tively worthless. And if property owners are without remedy in
such case, it is certainly a very great hardship upon them, and a
very striking and forcible instance and illustration of damage
without legal injury.
When property is appropriated for a public way, and the pro
prietor is paid for the public easement, the compensation is gen
erally estimated, in practice, at the value of the land itself.1 If,
therefore, no other circumstances were to be taken into the
account in these cases, the owner, who has been paid the value of
his land, could not reasonably complain of any use to which it
might afterwards be put by the public. But, as was pointed out
in the Connecticut case,2 the compensation is always liable either
to exceed or to fall below the value of the land taken, in conse-
quence of incidental injuries or benefits to the owner as proprietor
of the land which remains. These injuries or benefits will be
estimated with reference to the identical use to which the prop-
erty is appropriated; and if it is afterwards put to another use,
which causes greater incidental injury, and the owner is not
allowed further compensation, it is very evident that he has
suffered by the change a wrong which could not have been fore-
seen and provided against. And if, on the other hand, he is
entitled in any case to an assessment of damages, in consequence
of such an appropriation of the street affecting his rigahts in-
juriously, then lie must be entitled to such an assessment in every
case, and the question involved will be, not as to the right, but
only of the quantum of damages. The horse railway either is or
is not the imposition of a new burden upon the estate. If it is
not, the owner of the fee is entitled to compensation in no case;
if it is, he is entitled to have an assessment of damages in every
case.
In New York, where, by law, when a public street is laid out or
dedicated, the fee in the soil becomes vested in the city, it has
been held that the legislature night authorize the construction of
a horse railway in a street, and that neither the city nor the
owners of lots were entitled to compensation, notwithstanding it
1 Murray v. County Commissioners, 12 2 Imlay v. Union Branch R. R. Co . 2
Met. 453, per Shaw, Ch. J. Conn. 249.
CH. XV.] THE EMINENT DOMAIN. 679
was found as a fact that the lot-owners would suffer injury from
the construction of the road. The city was not entitled, because,
though it held the fee, it held it in trust for the use of all the
people of the State, and not as corporate or municipal property;
and the land having been originally acquired under the right of
eminent domain, and the trust being publici juris, it was under
the unqualified control of the legislature, and any appropriation
of it to public use by legislative authority could not be regarded
as an appropriation of the private property of the city. And so
far as the adjacent lot-owners were concerned, their interest in
the streets, distinct from that of other citizens, was only as hav-
ing a possibility of reverter after the public use of the land should
cease; and the value of this, if anything, was inappreciable, and
could not entitle them to compensation.'
So in Indiana, in cases where the title in fee to streets in cities
and villages is vested in the public, it is held that the adjacent
land-owners are not entitled to the statutory remedy for an
assessment of damages in consequence of the street being appro-
priated to the use of a railroad; and this without regard to the
muotive power by which the road is operated. At the same time
it is also held that the lot-owners may maintain an action at law
if, in consequence of the railroad, they are cut off from the
ordinary use of the street. In Iowa it is held that where the
I People v. Kerr, 37 Barb. 357; s. c. icated it must be compensated for the in-
27 N. Y. 188. The same ruling as to the jury to his ultimate fee. Portland & W.
right of the city to compensation was had V. R. R. Co. v. Portland, 14 Oreg. 188.
in Savannah, &c. R. I. Co. v. Mayor, &c. 2 Protzman v. Indianapolis & Cincin-
of Savannah, 45 Ga. 602. And see Brook- nati R. R. Co., 9 Ind. 467; New Al-
lyn Central, &c. R. R. Co. v. Brooklyn bany & Salem R. R. Co. v. O'Daily, 13
City R. R. Co., 33 Barb. 420; Brooklyn Ind. 353; Same c. Same, 12 Ind. 551.
& Newtown R. R. Co. v. Coney Island Unless the railroad causes a physical dis-
R. R. Co., 35 Barb. 364; People v. Kerr, turbance of a right, as where the abutter
37 Barb. 3.57; Chapman v. Albany & owns the fee of the street or where his
Schenectady R. R. Co., 10 Barb. 360. access is cut off, lie is not entitled to coi-
And as to the title reverting to the ori- pensation. Dwenger v. Chicago, &c. Ey.
ginal owner, compare Water Works Co. Co., 98 Ind. 153; Terre Haute & L.
v. Burkhart, 41 Ind. 364; Gebhardt v. R. R. Co. v. Bissell, 108 Ind. 113; In-
Reeves, 75 Ill. 301; Heard v. Brooklyn, dianapolis, B. & W. Ry. Co. v. Eberle, 110
60 N. Y. 242. Although, in the case of Ind. 542. See also Street Railway v.
People r. Kerr, the several judges seem Cumminsville, 14 Ohio St. 523; State v.
generally to have agreed on the principle Cincinnati Gas, &c. Co., 18 Ohio St. 262.
as stated in the text, it is not very clear In Nebraska although the fee is in the
how much importance was attached to the city, the right of access, which is proper-
fact that the fee to the street was in the ty, may not be cut off without compensa-
city, nor that the decision would have been tion. Burlington & M. R. R. R. Co. v.
different if that had not been the case. Reinhackle, 15 Neb. 279; Omaha V. R.
Where land has been dedicated to a city R. Co. v. Rogers, 16 Neb. 117. If egress
as a levee, the legislature may authorize and ingress are not disturbed, no action
its u'e hY a railroad without compensa- lies in such case in Tennessee. Iron Mt. R.
tion to the city, but the one who has ded- R. Co. v. Bingham, 11 S. W. Rep. 706
680 CONSTITUTIONAL LIMITATIONS. [CH. XV.

title to city streets is in the corporation in trust for the public,

the legislature may authorize the construction of an ordinary
railroad through the same, with the consent of the city, and with-
out awarding compensation to lot-owners I or even without the
consent of the municipal authorities, and without entitling the city
to compensation. 2 But the city, without legislative permission, has
no power to grant such a privilege, and it will be responsible for
all damages to individuals using the street if it shall assume to
do so.3 In Illinois, in a case where a lot-owner had filed a bill in
equity to restrain the laying down of the track of a railroad, by con-
sent of the common council, to be operated by steam in one of the
streets of Chicago, it was held that the bill could not be main-
tained ; the title to the street being in the city, which might
appropriate it to any proper city purpose., In Michigan it has
The rule in Kansas is similar. Ottawa, that any use of the street, even under
&c. R. R. Co. v. Larson, 40 Kan. 301; the authority of the legislature and the
Kansas, N. & I). Ry. C6. v. Cuy kendall, common council, which tends to deterio-
21 Pac. Rep. 1051 ; Central B. U. P. RI. rate the value of his property on the
R. Co. v. Andrews, 30 Kan. 590. street, is a violation of that funidamental
1 Millburn c. Cedar Rapids, &c. R. R. law which forbids private property to be
Co., 12 Iowa, 246; Franz v. Railroad Co., taken for public use without just com-
55 Iowa, 107. See Rinard v. Burlington, pensation. This is manifestly an erro-
&c. Hly. Co., 66 Iowa, 440. Under a stat- neous view of the constitutional guaranty
ute providing for compensation for laying thus invoked. It must necessarily hap-
a track in the street a mere right-angle pen that streets will be used for various
crossing is not included: Morgan v. Des legitimate purposes, which will, to a great-
Moines, &c. Ry. Co., 64 Iowa, 589; a er or less extent, discommode persons re-
diagonal crossing is. Enos v. Chicago, &c. siding or doing business upon them, and
Ry. Co., 42 N. W. Rep. 573. just to that extent damage their prop-
2 Clinton r. Cedar Rapids, &c. R. R. erty; and yet such damage is incident to
Co., 24 Iowa, 4535. all city property, and for it a party can
a Stanley v. Davenport, 54 Iowa, 463 claim no remedy. The common council
s. c. 37 Am. Rep. 216. may appoint certain localities where
4 Moses v. Pittsburgh, Fort Wayne, hacks and drays shall stand waiting for
& Chicago R. R. Co , 21 Ill. 516, 522. employment, or where wagons loaded
We quote from the opinion of Caton, Ch. with hay or wood, or other commodities,
J.. " By the city charter, the common shall stand waiting for purchasers. This
council is vested with the exclusive con- may drive customers away from shops or
trol and regulation of the streets of the stores in the vicinity, and yet there is no
city, the fee-simple title to which we have remedy for the damage. A street is
already decided is vested in the municipal mide for the passage of persons and prop-
corporation. The city charter also em- erty; and the law cannot define what
powers the common council to direct and exclusive means of transportation and
control the location of railroad tracks passage shall be used. Universal expe-
within the city. In granting this permis- rience shows that this can best he left to
sion to locate the track in Beach Street, the determination of the municipal au-
the common council acted under an ex- thorities, who are supposed to be best
press power granted by the legislature. acquainted with the wants and necessities
So that the defendant has all the right of the citizens generally. To say that a
which both the legislature and the com- new mode of passage shall be hanished
mon council could give it, to occupy the from the streets, no matter how much
street with its track. But the complain- the general good may require it, simply
ant assumes higher ground, and claims because streets were not so used in the
CH. XV.] THE EMINENT DOMAIN. 681

been decided that an abutting lot-owner who does not own the
soil of a city street cannot recover for any injury to his freehold
resulting from the construction of a steam railway in the street
under legislative authority, but that he may have an action for
any injury consequent on mismanagement amounting to a private
nuisance ; such as leaving cars standing in the street an unreason-
able time, making unnecessary noises, &c.1 In New York it is
held not competent for a city to authorize the construction of an
elevated railroad in its streets without making compensation to
abutting owners who had bought their lots of the city with a
covenant that the streets should be kept open forever. 2 This
days of Blackstone, would hardly com- so that consistency would require that
port with the advancement and enlight- we should stop all. Nor would the evil
enment of the present age. Steam has which would result from the rule we must
but lately taken the place, to any extent, lay down stop here. We must prohibit
of animal power for land transportation, every use of a street which discommodes
and for that reason alone shall it be ex- those who reside or do business upon it,
pelled the streets ? For the same reason because their property will else be dam-
camels must be kept out, although they aged. This question has been presented
might be profitably employed. Some in other States, and in some in'tances,
fancy horse or timid lady might be fright- where the public have only an easement
ened by such uncouth objects. Or is the of the street, and the owner of the ad-
objection not in the motive power used, joining property still holds the fee in the
but because the carriages are larger than street, it has been sustained; but the
were formerly used, and run upon iron, and weight of authorily, and certainly, in our
are confined to a given track in the street. apprehension, all sound reasoning, is the
Then street railroads must not be admit- other way." See also Chicago, &c. R. R.
ted; they have large carriages which run Co. v. Joliet, 79 Ill. 2.5; and Harrison v.
on iron rails, and are confined to a given New Orleans, &c. Ry. Co., 34 La. Ann.
track. Their momentum is great, and may 462, where a like rulmng is made.
do damage to ordinary vehicles or foot All the cases from which we have
passengers. Indeed we may suppose or as- quoted assume that the use of the street
sume that streets occupied by them are not by the railroad company is still a public
so pleasant for other carriages, or so desir- use ; and an appropriation of a street, or
able for residences or business stands, as if of any part of it, by an individual or com-
not thus occupied. But for this reason the pany, for his or their owin private use,
property owners along the street cannot unconnected with any accommodation of
expect to stop such improvements. The the public, would not be consistent with
convenience of those who live at a greater the purpose for which it was originally
distance from the centre of a city requires acquired. likesell v. Durkee, 34 Kan.
the use of such improvements, and for 509. See Brown v. Duplessis, 14 La.
their benefit the owners of property upon Ann. 842; Green v. Portland, 32 Me. 431.
the street must submit to the burden, 1 Grand Rapids, &c. It. R. Co. v. Hei-
when the common council determine that sel, 38 Mich. 62; s. c. 31 Am. Rep. 306;
the public good requires it. Cars upon Same v. Same, 47 Mich. 393.
street railroads are now generally, if not 2 Story v. New York Elevated Rail-
universally, propelled by horses, but who way Co., 90 N. Y. 122. In Lahr v. Metr.
can say how long it will be before it will Elev. R. R. Co., 104 N. Y. 268, the doc-
be found safe and profitable to propel trine was extended to a case where there
them with steam or some other power was no such covenant and the plaintiff
besides horses ? Should we say that this whose lot only went to the street line
road should be enjoined, we could ad- held under mesne conveyances, from one
vance no reason for it which would not whose land had been condemned for use
apply with equal force to street railroads, as a public street forever.
682 CONSTITUTIONAL LIMITATIONS. [CH. XV,

last decision settles a long-pending controversy, and is in harmony

with the cases in Indiana and Michigan above referred to.
It is not easy, as is very evident, to trace a clear line of au-
thority running through the various decisions bearing upon the
appropriation of the ordinary highways and streets to the use of
railroads of any grade or species; but a strong inclination is ap-
parent to hold that, when the fee in the public way is taken from
the former owner, it is taken for any public use whatever to which
the public authorities, with the legislative assent, may see fit
afterwards to devote it, in furtherance of the general purpose of
the original appropriation; 1 and if this is so, the owner must be
held to be compensated at the time of the original taking for any
such possible use ; and lie takes his chances of that use, or any
change in it, proving beneficial or deleterious to any remaining
property lie may own, or business lie may be engaged in; and it
must also be held that the possibility that the land may, at some
future time, revert to hini, by the public use ceasing, is too remote
and contingent to be considered as property at all.2 At the same
time it must be confessed that it is difficult to determine precisely
how far some of the decisions made have been governed by the
circumstance that the fee was, or was not in the public, or, on the
other hand, have proceeded on the theory that a railway was only
in furtherance of the original purpose of the appropriation, and
not to be regarded as the imposition of any new burden, even
where an easement only was originally taken.8
1 On this subject see, in addition to a mere easement. If the fee is appropri-
the other cases cited, West v. Bancroft, ated or dedicated, it is for a particular
32 Vt. 367; Kelsey v. King, 32 Barb. 410; use only ; and it is a conditional fee, -a
Ohio & Lexington R. R. Co. v. Apple- fee on condition that the land continue
gate, 8 Dana, 289; Hinchman v. Paterson to be occupied for that use. The prac-
Horse R. Co., 17 N. J. Eq. 75; Covington tical difference in the cases is, that when
St. R. Co, . Covington, &c. H. Co. (Ky.), the fee is taken, the possession of the
19 Am. Law Reg. N. s. 765. When, how- original owner is excluded; and in the
evpr, land is taken or dedicated specifi- case of city streets where there is occa-
cally for a street, it would seem, although sion to devote them to many other pur-
the fee is taken, it is taken for the re- poses beside those of passage, but never-
stricted use only ; that is to say, for such theless not inconsistent, such as for the
uses as streets in cities are comnionly put laying of water and gas pipes, and the
to. See State v. Laverack, 31 N. J. 201; construction of sewers, this exclusion of
Railroad Co v. Shurmeir, 7 Wall. 272. any private right of occupation is impor-
? As to whether there is such possi- tant, and will sometimes save contro-
bility of reverter, see Hey ward v. Mayor, versies and litigation. But to say that
&c. of New York, 7 N. Y. 314; People v. when a man has declared a dedication for
Kerr, 27 N. Y. 188, 211, per Wrigit, J.; a particular use, under a statute which
Plitt r. Cox, 43 Pa St. 486. makes a dedication the gift of a fee, he
8 There is great difficulty, as it seems thereby makes it liable to be appropri-
to us, in supporting important distinctions ated to other purposes, when the same
upon the fact that the fee was originally could not be done if a perpetual easement
taken for the use of the public instead of had been dedicated, seems to be basing
CH.- XV.] THE EMINENT DOMAIN. 683

Perhaps the true distinction in these cases is not to be found

in the motive power of the railway, or in the question whether the
fee-simple or a mere easement was taken in the original appro-
priation, but depends upon the question whether the railway con-
stitutes a thoroughfare, or, on the other hand, is a more local
convenience. When land is taken or dedicated for a town strcct,
it is unquestionably appropriated for all the ordinary purposes of
a town street ; not merely the purposes to which such streets
were formerly applied, but those demanded by new improvements
and new wants. Among these purposes is the use for carriages
which run upon a grooved track; and the preparation of impor-
tant streets in large cities for their use is not only a frequent
necessiti, which must be supposed to have been contemplated, but
it is almost as much a matter of course as the grading and pav-
ing.1 The appropriation of a country highway for the purposes

important distinctions upon a difference itself." Crawford v. Delaware, 7 Ohio

which after all is more technical than St. 459, 46). See some very pertinent
real, and which in any view does not af- and sensible remarks on the same subject
fect the distinction nade. The same rea- by Ranney, J., in Street Railway c. Cum-
soning which has sustained the legisla- minsville, 14 Ohio St. 541. See also
ture in authorizing a railroad track to be Railroad Co. v. Hanbleton, 40 Ohio St.
laid down in a city street would support 496. It makes no difference that the fee
its action in authoriztng it to be made is not in tite abutter. Railway Co. r.
into a canal; and the purpose of the ori- Lawrence, 38 Ohio St. 41. He has, inde-
ginal dedication or appropriation would pendent of tle ownership of the soil, an
thereby be entirely defeated. Is it not interest in the street appurtenant to his
more consistent withi estItblished rules to lot, for the admission of light and air.
hold that a dedication or appropriation to Adams v. Chicago, &c. It. R. Co., 39
one purpose confines the use to that pur- Minn. 286. Whether the fee is in him
pose ; an( when it is taken for any other, or the public, ie is to be paid if a steam
the original owner has not been compen- railroad is laid in the street, as tite use
saeed for the injury he may sustain in is not for an ordinary street purpose.
consequence, and is therefore entitled to Theobold v. Louisville, &c. Hy. Co., 66
it now a Notwithstanding a dedication Miss. 279. See Columbus & W. Ry. Co.
which vests the title in the public, it r. Witherow, 82 Ala. 190, and cases p.
must be conceded that the interest of 679, note 2, supra.
the adjacent lot-owners is still property. 1 Attorney-General y. Railway Co., 125
" They have a peculiar interest in the Mass. 515; s. c. 28 Am. Rep. 264; Hiss
street, which neither tle local nor the v. Railway Co., 52 Mld. 242 ; s. c. 36 Am.
general public can pretend to clatm; a Rep. 371; Covington St R. Co. v. Cov-
private rilit of the nature of an incor- ington, &c. R. Co. (Ky ) 19 Am. Law Reg.
poreal hereditament, legally attached to N. s. 765. See cases 6177, note 4, supra.
their c mtiguous grounds and the erec- If a street railroad is used for passing
tions thereon ; an incidental title to cer- from place to place on the street, a
tain facilities and franchises assured to change in the motive power from horses
them by contracts and by law, and with- to steam is not a change in the use. Not
out which their property would be com- the motor but the use of the street is the
paratively of little value. This ease- criterion. Briggs v. Lewiston &c. R. R.
ment, appendant to tle lots, unlike any Co., 79 Me. 363. So where cars were run
right of one lot-owner in the lot of in trains lv steam motors, but the use
another, is as much property as the lot was no substantial infringement upon
684 CONSTITUTIONAL LIMITATIONS. [CH. XV.

of a railway, on the other hand, is neither usual nor often impor-

tant; and it cannot with any justice be regarded as within the
contemplation of the parties when the highway is first established.'
And if this is so, it is clear that the owner cannot be considered
as compensated for the new use at the time of the original
appropriation.
The cases thus far considered are those in which the original
use is not entirely foreign to the purpose of the new appropriation;
and it is the similarity that admits of the question which has been
discussed. Were the uses totally different, there could be no
question whatever that a new assessment of compensation must
be made before the appropriation could be lawful. 2 And in any

the common public right of passage. ered merely as a highway. . . . When

Newell v. Minneapolis &c. Ry. Co., 35 therefore, the legislature declared that
Minn. 112. these streets in the city of Paterson might
1 A steam railroad in such road is a be used for market purposes, the power
new servitude. Hastings & G. I. R. I. Co. which was conferred in substance was an
c. Ingalls, 15 Neb. 123. authority to place obstructions in these
2 Where lands were appropriated by a public highways. The consequence is
railroad company for its purposes, and that there is no force in the argument,
afterwards leased out for private occupa- which was the principal one pressed upon
tion, it was held that the owner of the our attention, that the use of these streets
fee was entitled to maintain a writ of for the purpose now claimed is as legiti-
entry to establish his title and recover mate as the use of a public highway by a
damages for the wrongful use. Proprie- horse railroad, which latter use has been
tors of Locks &c. v. Nashua & Lowell repeatedly sanctioned by the courts of the
R. R. Co. 104 Mass. 1; s. c. 6 Am. Rep. State. The two cases, so far as relates
181. So a city may not condemn a pier to principle, stand precisely opposite. I
to let it to a private corporation. Belcher have said that a market is an obstruction
Sugar Refining Co. v. St. Louis Elev. Co., to a street, that it is not a use of it as a
82 Mo. 121. As to what use may be street, but, if unauthorized, is a nuisance.
made of land in which an easement has To the contrary of this, a horse railroad
been condemned for a railroad station, see is a new mode of using a street as such,
Pierce v. Boston, &c. R. R. Corp., 141 and it is precisely upon this ground that
Mass. 481; Hoggatt v. Vicksburg, &c. it has been held to be legal. The cases
R. R. Co., 34 La. Ann. 624. Where land rest upon this foundation. That a horse
hai been taken for a street, it cannot be railway was a legitimate use of a high-
appropriated as a house to confine tramps: way was decide(] in Hinchman v. Pater-
Winchester v. Capron, 63 N. H. 605; nor son Horse Railroad Co., 17 N. J. Eq. 76;
for the erection of a market building and, in his opinion, Chancellor Greene as-
without making compensation. State v. signs the following as the reasons of his
Mayor, &c. of Mobile, 5 Porter, 279; s. c. judgment: ' The use of the road is nearly
30 Am. Dec. 564; State v. Laverack, 34 identical with that of the ordinary high-
N. J. 201. The opinion of Beasley, Ch. J., way. The motive power is the same.
in the New Jersey case, will justify liberal The noise and jarring of the street by
quotations. He says (p. 204): " I think the cars is not greater, and ordinarily less,
it undeniable that the appropriation of than that produced by omnibuses and
this land to the purposes of a market was other vehicles in ordinary use. Admit
an additional burthen upon it. Clearly it that the nature of the use, as respects the
was not using it as a street. So far from travelling public, is somewhat variant,
that, what the act authorized to be done how does it prejudice the land-owner 1
was incongruous with such use; for the Is his property taken ? Are his rights as
market was an obstruction to it, consid- a land-owner affected ? Does it interfere
CH. XV.] THE EMINENT DOMAIN. 685

case, to authorize lands already taken for one public use to be

appropriated to another, there must be distinct and express
legislative authority.'
with the use of his property any more water pipes. These subordinate privi-
than the ordinary highway ? ' It is clear leges are entirely consistent with the pri-
that this reasoning can have no appropri- mary use of the highway, and are no
ate application to a case in which it ap- detriment to the land-owner. But I am
pears that the use of the street is so far not aware of any case in which it has
from being nearly identical with that of been held that the public has any right in
the ordinary highway that in law it has a highway which is incongruous with the
always been regarded as an injury to purpose for which it was originally cre-
such public easement, and on that account ated, and which at the same time is inju-
an indictable offence. rious to the proprietor of the soil. Such
" I regard, then, a right to hold a mar- certainly has not been the course of judi-
ket in a street as an easement additional cial decision in our own courts. Indeed
to, and in a measure inconsistent with, the cases appear to be all ranged on the
its ordinary use as a highway. The ques- opposite side. I have shown that the
tion therefore is presented, Can such ease- legalization of the use of a street by a
ment be conferred by the legislature on horse railroad has been carefully placed
the public without compensation to the on the ground that such an appropriation
land-owner? I have already said that of the street was merely a new mode of
from the first it has appeared to me this its legitimate and ordinary use. The
question must be answered in the nega- rationale adopted excludes by necessary
tive. I think the true rule is, that land implication the hypothesis that the dedi-
taken by the public for a particular use cation of a street to a new purpose, incon-
cannot be applied under such a seques- sistent with its original nature, would be
tration to any other use to the detriment legal with respect to the uncompensated
of the land-owner. This is the only rule land-owner. But beyond this it has been
which will adequately protect the consti- expressly declared that such superadded
tutional right of the citizen. To permit use would be illegal. In the opinion of
land taken for one purpose, and for which Mr. Justice Haines, in Starr v. Camden
the land-owner has been compensated, to & Atlantic R. R. Co., 24 N. J. 592, it is
be applied to another and additional pur- very explicitly held that the constitution
pose, for which ie has received no com- of this State would prevent the legislature
pensation, would be a mere evasion of the from granting to a railroad company a
spirit of the fundamental law of the State. right to use a public highway as a bed
Land taken and applied for the ordinary for their road without first making com-
purpose of a street would often be an im- pensation to the owner of the soil. And
provement of the adjacent property ; an in the case of linchman v. The Paterson
approprintion of it to the uses of a mar- Horse Railroad Co., already cited, Chan-
ket would, perhaps, as often be destruc- cellor Greene quotes these views, and gives
tive ofone-half the value of such property. the doctrine the high sanction of his own
Compensation for land, therefore, to be approval. See also the Central R. R. Co.
used as a highway, might, and many v. Hetfield, 29 N. J. 206."
times would be, totally inadequate com- The learned judge then distinguishes
pensation if such land is to be used as a Wright v. Carter, 27 N. J. 76, and quotes,
public market place. Few things would as sustaining his own views, State v.
be more unjust than, when compensation Mayor, &c. of Mobile, 5 Porter, 279; s. c.
has been made for land in view of one of 30 Am. Dec. 564; Trustees of Presby-
these purposes, to allow it to be used terian Society v. Auburn & Rochester
without compensation for the other. The R. R. Co., 3 Hill, 567; Williams v. N. Y.
right of the public in a highway consists C. R. R. Co., 16 N. Y. 97; Angell on
in the privilege of passage, and such priv- Highways, § 243 et seq., and cases cited.
ileges as are annexed as incidents by I In re Boston, &c. R. R. Co., 53 N. Y.
usage or custom, as thq rightt to make 574; State v. Montclair R. Co., 35 N. J.
sewers and drains, and to lay gas and 328; Railroad Co. v. Dayton, 23 Ohio St.
686 CONSTITUTIONAL LIMITATIONS. [CH. XV.

Although the regulation of a navigable stream will give to the

oersons incidentally affected no right to compensation, yet if the
'stream is diverted from its natural course, so that those entitled
to its benefits are prevented from making use of it as before, the
deprivation of this right is a taking which entitles them to com-
pensation, notwithstanding the taking may be for the purpose of
creating another and more valuable channel of navigation.' The
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
510; Stanley v. Davenport, 54 Iowa, 463; Paul, M. & Mt. Ry. Co. v. Minneapolis, 35
s. c. 37 Am. Rep. 216. In a case where Minn. 141 ; Pres't, &c. D. & H. C. Co. v.
a steamboat company's dock was suf- Whitehall, 90 N. Y. 21; but not, without
fered to be taken by a railroad, it was express authority, across necessary depot
said that the test of whether land is thus grounds acquired by condemnation. Pros-
held for public use "appears to be not pect Park, &c. H. R. Co. v. Williamson,
what the owner does or may choose to 91 N. Y. 552; or by purchase. St. Paul
do, but what under the law it must do, Union Depot Co. v. St. Paul, 30 Minn. 850.
and whether a public trust is impressed Compare New York & L. B. R. R. Co.
upon it." Matter of New York, L. & V. v. Drummond, 46 N. J. L. 644. Nor may
R. R. Co., 99 N. Y. 12. One railroad may a ditch be located lengthwise of a railroad
condemn an easement to cross another right of way. Baltimore & 0. &c. R. R.
East St. Louis Conn. Ry. Co. v. East St. Co. v. North, 103 Ind. 486. Without such
Louis, &c. Co., 108 111. 265; Toledo A. A. authority a railroad may not condemn
&c. Ry. Co. r. Detroit, &c. R. R. Co., 62 land dedicated as a levee: Oregon Ry, Co.
MNlich.564. When by agreeient it already v. Portland, 9 Or. 2:1 ; nor a school dis-
has a crossing, a further one may be con- trict, a poor farm for school site. Appeal
demned. Chicago & W. I. R R. Co. v. of Tyrone School Dist., 15 AtI. Rep. 667
Ill. Centr. R. R. Co., 118 Ill. 156. One (Pa.). The existing use must be act-
railroad may not condemn a strip length- ual and in good faith. Rochester, H. &
wise of another without express legisla- L. H. R. Co. v. New York, &c. Co., 110
tive authority : Alexandria & F. Ry. Co. N. Y. 128; Matter of Rochester, H. & L.
v. Alexandria, &c. R. 1. Co., 75 Va. 780; R. R. Co., Id., 119; New York & A. R.
Barre R. R. Co. v. Montpelier, &c. R. R. R. Co. c. New York, &c. R. R. Co , 11
Co., 17 AtI. Rep. 923 (Vt.) ; nor may it Abb. N. C. 386. See also cases, 647,
take a considerable portion of another's note 1, ante. When for a way land already
yard unless absolutely necessary. Appeal used for that purpose is taken, every-
of Sharon Ry. 17 Atl. Rep. 234 (Pa.). thing upon it is also taken; such as flag-
But see Chicago & N. W. Ry. Co. v. Chi- stones, bridges, culverts, &c.; and the
cago, &c. R. R. Co., 112 Ill. 589. As to assessment of damages should cover the
the right of condemnation where a track whole : Ford v. County Commissioners,
is already laid in a narrow pass, see Annis- 64 Me. 408; also any buildings which it
ton, &c. R. R. Co. v. Jacksonville, &c. R. may be necessary to destroy. Lafayette,
I. Co., 82 Ala. 207; Montana Centr. Ry. &c. R. R. Co. v. Winslow, 66 111.211.
Co. v. Helena, &c. Co., 6 Mont. 416; 1 People r. Canal Appraisers, 13 Wend.
Denver & R. G. Ry. Co. v. Denver, &c. 355. And see Hatch v. Vermont Central
Co., 17 Fed. Rep. 867; Ill. Centr. R. R. R. R. Co., 25 Vt. 49; Bellinger v. New
Co. v. Chicago, &c. R. R. Co., 122 Ill. York Central R. R. Co., 23 N. Y. 42;
478. If by necessary implication under Gardner v. Newburg, 2 Johns. Ch. 162;
the circumstances such power is intended s. c. 7 Am. Dec. 526; Thunder Bay, &c.
to be granted, a lengthwise condemnation Co. v. Speechly, 31 'Mich. 820; Emporia
is valid. Providence, &c. R. R. Co. v. v. Soden, 25 Kan. 588; s. c. 37 Am. Rep.
Norwich, &c. R. R. Co., 138 Mass. 277. 265.
Streets may be opened across tracks: St.
CH1. XV.] THE EMINENT DOMAIN. 687

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.'

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 ow ner
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 neces-
sity which supports 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 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
complete and exclusive possession, and the fee will cease to be
encumbered with the easement.3

1 Morgan v. King, 18 Barb. 284; s. c. standing on land which has been con-
35 N. Y. 454; Gardner v. Newburg, 2 demned for right of way belongs to the
Johns. Ch. 162; s. c. 7 Am. Dec. 526; Em- land-owner. Bailey v. Sweeney, 64 N.
poria v. Soden, 25 Kan. 588; s. c. 37 Am. II. 290. So of ice. Julien v. Woodsmall,
Rep. 205. 82 Ind. 568. Where in the course of a
' In Adams v. Rivers, 11 Barb, 300, a sewer improvement the fee of an island
person who stood in the public way and is not taken, the gravel taken from it
abused the occupant of an adjoining lot may be used elsewhere in the sewer
was held liable in trespass as being un- work. Titus v. Boston, 140 Mass. 104.
lawfully there, because not using the 3 Dean v. Sullivan R. R. Co., 22 N. II.
highway for the purpose to which it was 316; Blake v. Rich, 34 N. H. 282; Henry
appropriated. See, as to what is a proper v. Dubuque & Pacific R. R. Co., 2 Iowa,
use of highway by land, Bliss v. South 288; Weston v. Foster, 7 Mot. 297;
Hadley, 145 Mass. 91; Gulline r. Lowell, Quimby v. Vermont Central R. R. Co., 23
144 Mass. 491; by water, Sterling v. Jack- Vt. 887; Giesy r. Cincinnati, &c. R. R.
son, 37 N. W. Rep. 845 (Mich.). Hay Co., 4 Ohio St. 308. See Skillman v.
688 CONSTITUTIONAL LIMITATIONS. [CH. XV.

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 need-
ful that the fee be taken.' 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 de-
cide 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 legis-
lature, 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 occu-
pation and enjoyment of the property by the public, and the right
to take it must he 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." 2 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 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.3 And it 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

Chicago, &c. Ry. Co. 43 N. W. Rep. 275 Com'rs v. Armstrong, 2 Lans. 429; s. c.
(Iowa); ante, p. 679, note 1. on appeal, 45 N. Y. 234; and 6 Am.
I Roanoke City c. Berkowitz, 80 Va. Rep. 70.
616. See Matter of Amsterdam Water Heyward v. Mayor, &c. of New
Commissioners, 96 N. Y. 851. This, how- York, 7 N. Y. 314. And see Baker v.
ever, is forbidden by the Constitution of Johnson, 2 Hill, 342; Wheeler ?. Roches-
Illinois of 1870, in the case of land taken ter, &c. R. R. Co., 12 Barb. 227; Monger
for railroad tracks. Art. 2. § 13. And v. Tonawanda R. R. Co., 4 N. Y. 349;
we think it would be difficult to demon- Rexford v. Knight, 11 N. Y. 308; Com-
strate the necessity for appropriating the monwealth v. Fisher, 1 Pen. & Watts, 462;
fee in case of any thoroughfare : and if De Varaigne v. Fox, 2 Blatch. 95; Coster
never needful, it ought to be held incom- v. N. J. R. R. Co., 23 N. J. 227; Plitt v.
petent. See New Orleans, &c. R. R. Co. Cox, 43 Pa. St. 486; Brooklyn Park
v. Gay, 32 La. Ann. 471. Com'rs v. Armstrong, 45 N. Y. 234; s. c.
2 Heyward v. Mayor, &c. of New 6 Am. Rep. 70; Water Works Co. v.
York,
7 N. Y. 314, 325. See also Dingley v. Burkhart, 41 Ind. 364. Compare Geb-
Boston, 100 Mass. 644; Brooklyn Park hardt v. Reeves, 75 Ill. 301.
CH. Xv.] THE EMINENT DOMAIN. 689

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 owner-
ship 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 !or the appropriation
of a larger interest.'

The Damaging of Property.

In addition to providing for compensation for the taking of
property for public use, several States since 1869 have embodied
in their constitutions provisions that property shall not be
" damaged " or " injured " in the course of public improvements
without compensation.2 The construction of these provisions
has not been uniform. In some cases they are held to require
compensation only where like acts done by an individual would
warrant the recovery of damages at common law.3 In others a
broader scope has been given to them.4 Compensation has been
I Barclay v. Howell's Lessee, 6 Pet. of such disturbance he has sustained a
498; Rust v. Lowe, 6 Mass. 90; Jackson c. special damage with respect to his prop-
Rutland & B. R. R. Co., 25 Vt. 160; erty in excess of that sustained by the
Jackson v. Hathaway, 15 Johns. 447. public generally. In the absence of any
2 Constitution of Alabama, Art. XIII., statutory or constitutional provisions on
§ 7 ; Arkansas, Art. II. § 22 ; California, the subject, the common law afforded re-
Art. I. § 14 ; Colorado, Art. II. § 14; dress in all such cases, and we have no
Georgia, Bill of Rights, I. § 3; Illinois, doubt it was the intention of the framers
Art. 11. § 13; Louisiana, Art. 150; Mis- of the present constitution to require com-
souri, Art. I. § 20; Nebraska, Art. I. pensation to be made in all cases where
§ 21; Pennsylvania, Art. I. § 8; Texas, but for some legislative enactment an ac-
Art. I. § 17; West Virginia, Art. III. tion would lie at the common law."
§ 9. Mulkey, J., in Rigney v. Chicago, 102 Ill.
8 The purpose was to impose on cor- 64; followed in Chicago v. Taylor, 125
porations " having the right of eminent U. S. 161; Rude v. St. Louis, 93 Mo.
domain a liability for consequential dam- 408. To the same effect is Trinity & S.
ages from which they had been previously Ry. Co. v. Meadows, 11 S. W. Rep. 145
exempt," when for doing the same act (Tex.). In Alabama the provision in
an individual would have been liable. case of a change of grade is held to cover
Edmundson v. Pittsburgh, &c. R. R. Co., only such alterations as could not have
111 Pa. St. 316. "Injured " means such been anticipated at the time of the first
legal wrong as would have been the sub- taking. City Council of Montgomery v.
ject of an action for damages at common Townsend, 80 Ala. 489. The English
law. Pennsylvania R. R. Co. v. Marchant, statute covering the same ground as these
119 Pa. St. 511; Pa. S. V. R. R. Co. v. provisions receives substantially the same
Walsh, 124 Pa. St. 544. " In all cases, to construction as that put upon them in
warrant a recovery it must appear that the Pennsylvania cases noted above. Cal-
there has been some direct physical dis- edonian Ry. Co. v. Walker's Trustees, L.
turbance of a right, either public or pri- R. 7 App. Cas. 259.
vate, which the plaintiff enjoys in connec- 4 The word "damaged" embraces
tion with his property and which gives to more than physical invasions of prop-
it an additional value, and that by reason erty. It is not restricted to cases where
44
090 CONSTITUTIONAL LIMITATIONS. [CH. XV.
awarded under them for the laying of a railroad track in the
street, the fee of which the abutter does not own 1 for a change
in the grade of the street; 2 for cutting off egress by it ; 3 and for
other damage from the construction of public works. 4 It has
been denied, however, where a railway viaduct has been built
on the other side of a narrow street from the plaintiff's lot,5 and
where the street has been rendered impassable at some distance
from the property of the complaining party,6 and where the
damage results from the operation and not the construction of
the work.7
the owner is entitled to recover as for a Parkersburg, 25 W. Va. 226. So as to the
tort at common law. Reardon v. San establishment of the grade. Harmon v.
Francisco, 66 Cal. 492. The language is Omaha, 17 Neb. 548. But if after a grade
intended to cover " all cases in which is established one buys and the walk is
even in the proper prosecution of a pub- then cut down to grade, there is no dam-
lic work or purpose the right or property age. Denver v. Vernia, 8 Col. 399. In
of any person in a pecuniary way may be Alabama there is none, if the change might
injuriously affected." Gulf C. & S. F. have been anticipated. City Council of
Ry. Co. v. Fuller, 63 Tex. 467. See Gotts- Montgomery v. Townsend, 80 Ala. 489.
chalk v. Chicago, &c. 1. R. Co., 14 Neb. 3 Rigney v. Chicago, 102 Ill. 64 ; Chi-
550; Hot Springs R. R. Co. v. William- cago v. Taylor, 125 U. S. 161; Chicago,
son, 45 Ark. 429; Atlanta v. Green, 67 K. & N. Hy. Co. v. Hazels, 42 N. W. Rep.
Ga 386; Denver v, Bayer, 7 Col. 113; 93 (Neb.). So if access is rendered dan-
Denver Circle R. R. Co. v. Nestor, 10 Col. gerous where not cut off. Pa. S. V. R.
403. The d .mages are not restricted to R. Co. v. Walsh, 124 Pa. St. 544. See
such as could reasonably have been an- also Quigley v. Pa. S. V. R. R. Co., 121
ticipated when the structure was built. Pa. St. 35.
Omaha & R. V. R. R. Co. v. Standen, 4 In Omaha Horse Ry. Co. v. Cable
22 Neb. 343 Tramway Co., 32 Fed. Rep. 727, the
1 Hot Springs R. R. Co. v. Williamson, laying of a cable road by the side of a
45 Ark. 429; Columbus & W. Ry. Co. v. horse railroad was held a damaging.
Witherow, 82 Ala. 190 ; Denver v. Bayer, So of the erection of a bridge near a
7 Col. 113; Denver & R. G. Ry. Co. v. ferry. Mason v. Harper's Ferry B. Co.,
Bourne, 11 Col. 59; McMahon v. St. 17 W. Va. 396. But the clogging of a
Louis, &c. Ry. Co., 6 Sou. Rep. 640 stream caused by the removal of timber
(La.) ; Gulf C. & S. F. Ry Co. v. Fuller, incidental to proper railroad construction
63 Tex. 467; Gottschalk v. Chicago, &c. is not a ground for damages. Trinity &
R. R. Co., 14 Neb. 550. So of a street S. R. Ry. Co. v. Meadows, 11 S. W. Rep.
railroad. Campbell v. Metrop. St. Ry. 145 (Tex.).
Co., 9 S. E. Rep. 1078 (Ga.). In Illinois 5 Pennsylvania R. R. Co. v. Lippin-
it is so held as to a track in a road . Chi- cott, 116 Pa. St. 472; Pennsylvania R. R.
cago & W. I. R. R. Co. v. Ayres, 106 Ill. Co. v. Marchant, 119 Pa. St. 541.
511; but not as to one laid in the street 6 Rude v. St. Louis, 93 Mo. 408; Fair-
of a city by its permission under legisla- child v. St. Louis, 11 S. W. Rep. 60 (Mo.);
tive authority. Olney v. Wharf, 115 Ill. East St. Louis r. O'Flynn, 119 Ill. 200.
519 Nor can a railroad which crosses a 7 Pennsylvania R. R. Co. r.
larchant,
street complain that another crosses it in 119 Pa. St. 541. See Caledonian Ry. Co.
the street. Kansas City, St. J., &c. R. R. v. Walker's Trustees, L. R. 7 App. Cas.
Co. v. St. Joseph, &c. Co., 07 Mo. 457. 259. Nor may damages be given for neg-
2 Reardon v San Francisco, 66 Cal. ligence in the construction. Edmundson
492; Atlanta v. Green, 67 Ga 386 ; Moon v Pittsburgh, &c. R R. Co., 111 Pa. St.
v. Atlanta, 70 Ga. 611 ; Sheehy v. Kansas 816; Atlanta v. Word, 78 Ga. 276. Contra,
City, &c. Co., 94 Mo. 574; New Brighton Omaha & R. V. R. R. Co. v. Standen, 22
v. Peirsol, 107 Pa. St. 280; Hutchinson v. Neb. 343.
C:I. XV.] THE EMINENT DOMAIN. 691

Compensationfor Property Talken.

It is a primary requisite, in the appropriation of lands for pub-
lic purposes, that compensation shall be made therefor. Eminent
domain differs from taxation in that, in the former case, the citi-
zen is compelled to surrender to the public something beyond his
due proportion for the public benefit. The public seize and ap-
propriate his particular estate, because of a special need for it,
and not because it is right, as between him and the government,
that he should surrender it.' To him, therefore, the benefit and
protection he receives from the government are not sufficient
compensation; for those advantages 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. 2
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 or not the public needs re-
quire the appropriation, and, if they do, 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. 3 When, however,
the laud has been viewed, and a determination arrived at to ap-
propriate 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
1 People v. Mayor, &c. of Brooklyn, 4 &c. R. R. Co., 1 Minn. 127; Railroad Co.
N. Y. 419; Woodbridge i. Detroit, 8 v. Ferris, 26 Tex. 588; Curran v. Shattuck,
Mich. 274; Booth v. Woodbury, 32 Conn. 24 Cal. 427; State r. Graves, 19 Md. 351;
118. Weckler v. Chicago, 61 Ill. 142, 147. The
2 The effect of the right of eminent power of a treaty is such that it may take
domain against the individual " amounts private property without compensation.
to nothing more than a power to oblige Cornet r. Winton, 2 Yerg. 143.
him to sell and convey when the public 3 Bloodgood v. Mohawk & Hudson R.
necessities require it." Johrnson, J., in R. Co., 14 Wend. 51, and 18 Wend. 9;
Fletcher v'.Peck, 6 Cranch, 87, 145. And Cushman v. Smith, 34 Me. 247; Nichols
see Bradshaw v. Rogers, 20 Johns. 103, v. Somerset, &c. R. R. Co. 43 Me. 356;
per Spencer, Ch. J ; People v. Mayor, &c. Mercer ?. McWilliams, Wright (Ohio),
of Brooklyn, 4 N. Y. 419; Carson v. Cole- 132; Walther v. Warner, 25 Mo. 277;
man, 11 N. J. Eq. 106; Young v. Harrison, Fox v. W. P. R. R. Co., .31 Cal. 538; State
6 Ga. 130; United States v. Minnesota, v. Seymour, 35 N. J. 47, 53.
 692 CONSTITUTIONAL LIMITATIONS. [CH. XV.

property - whether the State, or one of its political divisions or

municipalities, or, on the other hand, some private corporation -
inay 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 com-
pensation, and that an impartial tribunal is provided for assess-
ing it.' The decisions upon this point assume that, when the
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 loss.2 It
1 Bloodgood v. Mohawk & Hudson I apprehend, the settled doctrine, even
Rt R. Co., 18 Wend. 9; Rogers v. Brad- as respects the State itself, that at least
shaw, 20 Johns. 744, Calking v. Baldwin, certain and ample provision must first be
4 Wend. 667; s. c. 21 Am. Dec. 168; made by law (except in cases of public
Case c. Thompson, 6 Wend. (34, Fletcher emergency), so that the owner can coerce
v. Auburn & Syracuse R R. Co., 25 payment through the judicial tribunals
Wend. 462; Rexford v Knight, 11 N. Y. or otherwise, without any unreasonable
308; Taylor v. Marcy, 25 Ill. 518; Calli- or unnecessary delay; otherwise the law
son v. Hedrick, 15 Gratt. 244; Jackson v. making the appropriation is no better
Winn's Heirs, 4 Lit 323; People r Green, than blank paper. Bloodgood z. Mohawk
3 Mich. 496; Lyon v. Jerome, 26 Wend. & Hudson R. R. Co., 18 Wend. 9 The
485, 497, per Verplanck, Senator; Gard- provisions of the statute prescribing the
ner v. Newburg, 2 Johns. Ch. 162; s. c. mode of compensation in cases like the
7 Am. Dec. 526, Charlestown Branch present, when properly understool and
I. R. Co. v. Middlesex, 7 Met. 78; Har- administered, come fully up to this great
per v. Richardson, 22 Cal. 2.51 ; Baker v. fundamental principle; and even if any
Johnson. 2 Hill, 342, People v. Hayden, doubt could be entertained about their
6 Hill, 359; Orr v. Quimby, 54 N. H. 590; true construction, it should be made to
Ash v. Cummings, 50 N. H. 591; White lean in favor of the one that is found to
v. Nashville, &c. R. R. Co., 7 Heisk 518; be most in conformity with the constitu-
Simms v. Railroad Co.. 12 Heisk. 621, tional requisite." People v. Hayden, 6
State c. Messenger, 27 Minn. 119; Chap- Hill, 359, 361. "A provision for con-
man v. Gates, 54 N Y. 132; Hamersley pensation is an indispensable attendant
[Link] York, 56 N. Y 533; Loweree v. upon the due and constitutional exercise
Newark, 38 N. J. 151; Brock v. Hishen, of the power of depriving an individual
40 Wis. 674; Long v. Fuller, 68 Pa. St. of his property" Gardner v. Newburg,
170 (case of a school district) ; Smeaton 2 Johns. Ch. 162, 168; s c. 7 Am, Dec.
v. Martin, 57 Wis. 361 ; Com'rs of State 526; Buffalo, &c. R. R. Co. v. Ferris, 26
Park v. Henry, 38 Minn 266; State v. Tex. 588, Ash r. Cummings, 50 N H.
District Court, 44 N. W. Rep. 59 (Minn.), 591, 613; Haverhill Bridge Proprietors v.
The same rule applies to the United County Com'rs, 103 Mass. 120; s. c. 4
States. Great Falls M'f'g Co. v. Garland, Am Rep. 518; Langford v. Com'rs of
25 Fed. Rep. 521. " Although it may not Ramsay Co., 16 Minn. 375; Southwestern
he necessary, within the constitutional R. R. Co. v. Telegraph Co., 46 Ga. 43.
provision, that the amount of compensa- 2 In Commissioners, &c. v Bowie, 34
tion should be actually ascertained and Ala 461, it was held that a provision by
paid before property is thus taken, it is, law that compensation, when assessed,
CH. XV.] THE EMINENT DOMAIN. 693

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 be shall
resort to it, and to provide that, unless he shall take proceediiigs
for the assessment of damages within a specified time, all right
thereto shall be barred. 2 The right to compensation, when prop-
erty is appropriated by the public, may always be waived; 3 and
a failure to apply for and have the compensation assessed, when
reasonable time and opportunity and a proper tribunal are afforded
for the purpose, may well be considered a waiver.
Where, however, the property is not taken by the State, or by
a municipality, but by a private corporation which, though for this
purpose to be regarded as a public agent, appropriates it for the
benefit and profit of its members, and which may or may not be
sufficiently responsible to make secure and certain the payment,
in all cases, of the compensation which shall be assessed, it is cer-
tainly proper, and it has sometimes been questioned whether it
was not absolutely essential, that payment be actually made before
the owner could be devested of his freehold.4 Chancellor Kent
should be paid to the owner by the coun- Haven, &c., Co. 16 Conn 146; s. c. 36
ty treasurer, sufficiently secured its pay- Am Dec 477. The party making an ap-
ment, And see Zimmerman v. Canfield, propriation may abandon it if the terms,
42 Ohio St. 463; Talbot v. Hudson, 16 when ascertained, are not satisfactory.
Gray, 417; Chapman v. Gates, 54 N. Y. Lamb v. Schotter, 54 Cal. 319. But not
132. But it is not competent to leave after judgment: Drath v. Burlington,
compensation to be made from the earn- &c. R. R. Co., 15 Neb. 367; nor after ver-
ings of a railroad company. Conn. Riv. dict when an appeal has been taken and
R. R. Co. v. Commissioners, 127 Mass. entry made. Witt v. St. Paul, &c. R. R.
50; s. c 34 Am. Dec. 338. Co., 35 Minn. 404. But see Denver &
1 Shepardson v. Milwaukee & Be- N. 0. R. R. Co v. Lamborn, 8 Col. 380,
lait R. R. Co. 6 Wis. 605; Powers v. contra.
Bears, 12 Wis. 213. See McCann v. 2 People v. Green, 3 Mich. 496; Char-
Sierra Co., 7 Cal. 121 ; Colton v. Rossi, lestown Branch R. R. Co. v. Middlesex, 7
9 Cal. 595; Ragatz v. Dubuque, 4 Iowa, Met. 78; Rexford v. Knight, 11 N. Y.
343. An impartial tribunal for the ascer- 308; Taylor .. Marcy, 25 Ill. 518; Calli-
tainment of the damage must exist when son v. Hedrick, 15 Grat. 244; Gilmer v.
the land is taken. State v. Perth Am- Lime Point, 18 Cal. 229; Harper v. Rich-
boy, 18 Atl. Rep. 670 (N. J.). But in ardson, 22 Cal 251; Cupp v. Commis-
People v. Hayden, 6 Hill, 359, where the sioners of Seneca, 19 Ohio St. 173; Cage
statute provided for appraisers who were v. Trager, 60 Miss. 563.
to proceed to appraise the land as soon 3 Matter of Albany St., 11 Wend. 149;
as it was appropriated, the proper remedy s. c. 25 Am. Dec. 618; Brown v. Worces-
of the owner, if they failed to perform ter, 13 Gray, 31; ante, p. 214.
this duty, was held to be to apply for a 4 This is the intimation in Shepard-
mandamus. If land is taken without pro- son v. Milwaukee & Beloit R. R. Co., 6
vision for compensation, the owner has a Wis. 605, Powers v. Bears, 12 Wis. 213,
common-law remedy. Hooker v. New State v. Graves, 19 Md. 351 , Dronberger
694 CONSTITUTIONAL LIMITATIONS. [CH. XV.

has expressed the opinion that compensation and appropriation

should be concurrent. "The settled and fundamental doctrine
is, that government has no right to take private property for pub-
lic purposes without giving just compensation; and it seems to
be necessarily implied that the indemnity should, in cases which
will admit of it, be previously and equitably ascertained, and be
ready for reception, concurrently in point of time with the actual
exercise of the right of eminent domain." 1 And while this is not
an inflexible rule unless in terms established by the constitution,
it is so just and reasonable that statutory provisions for taking
private property very generally make payment precede or accom-
pany the appropriation, and by several of the State constitutions
this is expressly required.2 And on general principles it is essen-
tial that an adequate fund be provided from which the owner of
the property can certainly obtain compensation; it is not compe-
tent to deprive him of his property, and turn him over to an ac-
tion at law against a corporation which may or may not prove
responsible, and to a judgment of uncertain efficacy.3 For the
consequence would be, in some cases, that the party might lose
his estate without redress, in violation of the inflexible maxim
upon which the right is based.
What the tribunal shall be which is to assess the compensation
v. Reed, 11 Ind. 420; Loweree v. Newark, requiring payment before appropriation
38 N. J. 151. But see Calking v. Bald- is given to the Constitution of Illinois.
win, 4 Wend. 667; s. c. 21 Am. Dec. 168. Cook v. South Park Com'rs, 61 Ill. 115,
1 2 Kent, 339, note. and cases cited; Phillips v. South Park
2 The Constitution of Florida provides Com'rs, 119 Ill 626.
"that private property shall not be taken 3 Shepardson -. Milwaukee & Beloit
or applied to public use, unless just com- R. R. Co., 6 Wis. 60.5; Walther v. War-
pensation be first made therefor." Art. 1, ner, 25 Mo 277; Gilmer v. Lime Point,
§ 14. See also, to the same effect, Con- 18 Cal. 229; Curran v. Shattuck, 24 Cal.
stitution of Colorado, art. 1, § 15, Consti- 427 ; Memphis & Charleston R. R. Co. v.
tution of Georgia, art. 1, § 17 , Constitu- Payne, 37 Miss. 700; Henry v. Dubuque
tion of Iowa, art. 1, § 18 ; Constitution of & Pacific R. R. Co., 10 Iowa, 540; Ash
Kansas, art. 12, § 4; Constitution of Ken- v. Cummings, 50 N. H. 591; Carr v.
tucky, art. 13, § 14; Constitution of Georgia R. R. Co., 1 Ga. 524; Southwest-
Maryland, art. 1, § 40; Constitution of ern R. R. Co. v. Telegraph Co., 46 Ga. 43;
Minnesota, art. 1, § 13; Constitution of Yazoo Delta Levee Board v. Daney, 65
Mississippi, art. 1, § 13; Constitution Miss. 325; State v. Melver, 88 N. C. 686.
of Missouri, art. 2, § 21; Constitution of Statutory provisions for a deposit under
Nevada, art. 1, § 8 , Constitution of Ohio, an order of court pending a contest about
art. 1, § 19; Constitution of Pennsyl- compensation, in order that the work may
vania, art. 1, § 10. rhe Constitution of not be delayed, are valid. Er parte Rey-
Indiana, art. 1, § 21, and that of Ore- nolds, 12 S. W. Rep. 570 (Ark.); citing
gon, art. 1, § 19, require compensation St. Louis & S. F. R. R. Co. v. Evans. &c.
to be first made, except when the prop- Brick Co., 85 Mo. 307; Centr. B. U. P.
erty is appropriated by the State. The R. R. Co. r. Atchison, &c. Co., 28 Kan.
Constitution of Alabama, art. 1, §24, and 453; Wagner v. Railway Co., 38 Ohio St.
of South Carolina, art. 1, § 23, are in legal 32. See also .11cClain v. People, 9 Co.
effect not very different. A construction 190.
CH. XV.] THE EMINENT DOMAIN. 695

must be determined either by the constitution or by the statute

which provides for the appropriation. The case is not one where,
as a matter of right, the party is entitled to a trial by jury, un-
less the constitution has provided that tribunal for the purpose.'
Nevertheless, the proceeding is judicial in its character, and the
party in interest is entitled to have an impartial tribunal, and
the usual rights and privileges which attend judicial investiga-
tions.2 It is not competent for the State itself to fix the compen-
sation through the legislature, for this would make it the judge in
its own cause.3 And, if a jury is provided, the party must have
the ordinary opportunity to appear when it is to be impanelled,
that he may make any legal objections.4 And he has the same
right to notice of the time and place of assessment that he would
have in any other case of judicial proceedings, and the assessment
will be invalid if no such notice is given.5 These are just as well
as familiar rules, and they are perhaps invariably recognized in
legislation.
It is not our purpose to follow these proceedings, and to at-
tempt to point out the course of practice to be observed, and
which is so different under the statutes of different States. An
1 Petition of Mount Washington Co., 17 W. Va. 812. A jury, without further
35 N. H. 134; Ligat v. Commonwealth, 19 explanation in the law, must be under-
Pa. St. 456, 460; Rich v. Chicago, 59 Ill. stood as one of twelve persons. Lamb c.
286; Ames r. Lake Superior, &c. R. R. Lane, 4 Ohio St. 167. See ante, p. 390
Co., 21 Minn 241; United States [Link], Where a jury is the constitutional tribu-
109 U. S. 513; Oliver v. Union, &c. R. R. nal, it is not waived by failure to demand
Co., 9 S. E. Rep. 1086 (Ga.). it. Port Huron, &c. Ry. Co v. Callanan,
2 Rich v. Chicago, 59 Ill. 286, Cook v. 61 Mich. 12. Nor can a court of chancery
South Park Com'rs, 61 Ill. 115; Ames v. usurp its functions. Clark v. Drain Com'r,
Lake Superior, &c. R. R. Co., 21 Minn. 50 Mich. 618. It must act even where an
241. Whatever notices, &c., the law re- officer only takes material from an indi-
quires, must be given. People v. Knis- vidual's land to repair roads. Hendershot
kern, 54 N. Y. 52; P Jwers's Appeal, 29 v. State, 44 Ohio St. 208. It need not,
Mich. 504. A judgment for damages where the amount of a deposit is to be
where a railroad has entered without fixed pending a final determination of
paying is enforceable against a purchaser compensation. Ex parte Reynolds, 12 S.
of the road upon foreclosure Buffalo, N W. Rep. 570 (Ark.). But see Wagner v.
Y. & P. R. R. Co. v. Harvey, 107 Pa. Railway Co., 38 Ohio St. 32. The jury
St. 319. may not disregard testimony and deter-
3 Charles River Bridge v. Warren mine compensation solely upon its view
Bridge, 7 Pick. 344; s. c. 11 Pet. 420, of the land. Grand Rapids c. Perkins, 43
571, per Mc~ean, J. And see Rhine v. N. W. Rep. 1037 (Mich.)
McKinney, 53 Tex. 354; Tripp v. Over- 5 Hood v. Finch, 8 Wis. 381 ; Dickey
ocker, 7 Col. 72. v. Tennison, 27 Mo. 373; Powers's Ap-
4 People v. Tallman, 36 Barb. 222; peal, 29 Mich. 504. Notice by publica-
Booneville v Ormrod, 26 Mo. 193. That tion may be sufficient. Huling v. Kaw
it is essential to any valid proceedings Valley Ry. Co , 130 U. S. 559. Missouri
for the appropriation of land to public Pac Ry. Co. r. Houseman, 21 Pac. Rep.
uses that the owner have notice and an 284 (Kan ). As to the right to order re-
opportunity to be heard, see Baltimore, asses-ments, see Clark v. Miller, 54 N.
&c. R. R. Co. v. Pittsburg, &c. R. [Link]., Y. 528.
696 CONSTITUTIONAL LIMITATIONS. [CH. XV.

inflexible rule should govern them all, that the interest and ex-
clusive right of the owner is to be regarded and protected so far
as may be consistent with a recognition of the public necessity.
While the owner is not to be disseised until compensation is pro-
vided, neither, on the other hand, when the public authorities have
taken such steps as finally to settle upon the appropriation, ought
he to be left in a state of uncertainty, and compelled to wait for
compensation until some future time, when they may see fit to
use his land. The land should either be his or he should be paid
for it. Whenever, therefore, the necessary steps have been taken
on the part of the public to select the property to be taken, locate
the public work, and declare the appropriation, the owner becomes
absolutely entitled to the compensation, whether the public proceed
at once to occupy the property or not. If a street is legally es-
tablished over the land of an individual, he is entitled to demand
payment of his damages, without waiting for the street to be
opened.' And if a railway line is located across his land, and the
damages are appraised, his right to payment is complete, and he
cannot be required to wait until the railway company shall actually
occupy his premises, or enter upon the construction of the road at
that point. It is not to be forgotten, however, that the proceed-
ings for the assessment and collection of damages are statutory,
and displace the usual remedies ; that the public agents who keep
within the statute are not liable to common-law action; 2 that it
is only where they fail to follow the statute that they render
themselves liable as trespassers;3 though if they construct their
work in a careless, negligent, and improper manner, by means of
which carelessness, negligence, or improper construction a party
is injured in his rights, he may have an action at the common law
as in other cases of injurious negligence. 4
The principle upon which the damages are to be assessed is al-
1 Philidelphia v. Dickson, 38 Pa. St. ' East & West India Deck, &e. Co.
247; Philadelphia r. Dycr, 41 Pa. St. v. Gattke, 15 Jur. 61; Kimble v. White
463; Hallock v. Franklin County, 2 Met. Water Valley Canal, 1 Ind. 2S5; Mason
558 ; Harrington v. County Commission- v. Kennebec, &c. R. R_ Co., 31 Me. 215;
ers, 22 Pick. 263; Blake v. Dubuque, 13 Aldrich u. Cheshire 1. 13. Co., 21 N. 11
Iowa, 66; Higgins v. Chicago, 18 Ill. 276; 859; Brown v. Beatty, 34 Miss. 227; Pet-
County of Peoria v. Harvey, 18 Ill. 364; tibone r. La Crosse & Milwaukee 1. R.
Shaw v. Charlestown, 3 Allen, 538; Co , 14 Wis. 443; Vilas r Milwaukee &
Hampton v. Coffin, 4 N. 1-1.517; Clough v. Mississippi R. R. Co., 15 Wis. 233.
Unity, 18 N. H. 75. And where a city Dean v. ;ullivan R. R. Co., 22 N. H.
thus appropriates land for a street, it 316; Furniss v. Hudson River R. R. Co..
would not be allowed to set up, in defence 5 Sandf. 551.
to a demand for compensation, its own ir- 4 Lawrence v. Great Northern R Co.,
regularities in the proceedings taken to 20 L. J. Q B. 293; Bagnall r. London &
condemn the land. Higgins v. Chicago, 18 N. V. 1., 711. & N. 428 ; Brown, vCan ga
Ill. 276; Chicago v. Wheeler, 25 Ill. 478. & Susquehanna R. R. Co., 12 N. Y. 486.
CH. XV.] THE EMINENT DOMAIN. 697

ways an important consideration in these cases; and the circum-

stances of different appropriations are sometimes so peculiar that
it has been found somewhat difficult to establish a rule that shall
always be just and equitable. If the whole of a man's estate is
taken, there can generally be little difficulty in fixing upon the
measure of compensation; for it is apparent that, in such a case,
he ought to have the whole market value of his premises, and he
cannot reasonably demand more. The question is reduced to one
of market value, to be determined upon the testimony of those
who have knowledge upon that subject, or whose business or ex-
perience entitles their opinions to weight. It may be that, in such
a case, the market value may not seem to the owner an adequate
compensation; for he may have reasons peculiar to himself, spring-
ing from association, or other cause, which make him unwilling to
part with the property on the estimate of his neighbors; but such
reasons are incapable of being taken into account in legal proceed-
ings, where the question is one of compensation in money, inas-
much as it is manifestly impossible to measure them by any standard
of pecuniary value. Concede to the government a right to appro-
priate the property on paying for it, and we are at once remitted
to the same standards for estimating values which are applied in
other cases, and which necessarily measure the woith of property
by its value as an article of sale, or as a means of producing pecu-
niarY returns.
When, however, only a portion of a parcel of land is appro-
priated, just compensation may perhaps depend upon the effect
which the appropriation may have on the owner's interest in the
remainder, to increase or diminish its value, in consequence of
the use to which that taken is to be devoted, or in consequence
of the condition in which it may leave the remainder in respect
to convenience of use. If, for instance, a public way is laid out
through a tract of land which before was not accessible, and if in
consequence it is given a front, or two fronts, upon the street,
which furnish valuable and marketable sites for building lots, it
may be that the value of that which remains is made, in conse-
quence of taking a part, vastly greater than the whole was before,
and that the owner is benefited instead of damnified by the appro-
priation. Indeed, the great majority of streets in cities and vil-
lages are dedicated to the public use by the owners of lands, with-
out any other compensation or expectation of compensation than
the increase in market value which is expected to be given to such
lands thereby; and this is very often the case with land for other
public improvements, which are supposed to be of peculiar value
to the locality in which they are made. But where, on the other
698 CONSTITUTIONAL LIMITATIONS. [CH. XV.

hand, a railroad is laid out across a man's premises, running be-

tween his house and his out-buildings, necessitating, peihaps, the
removal of some of them, or upon such a grade as to render deep
cuttings or high embankments necessary, and thereby greatly in-
creasing the inconveniences attending the management and use of
the land, as well as the risks of accidental injuries, it will often
happen that the pecuniary loss which he would suffer by the ap-
propriation of the right of way would greatly exceed the value of
the land taken, and to pay him that value only would be to make
very inadequate compensation.
It seems clear that, in these cases, it is proper and just that the
injuries suffered and the benefits received by the proprietor, as
owner of the remaining portion of the land, should be taken into
account in measuring the conpensation. This, indeed, is gener-
ally conceded; but what injuries shall be allowed for, or what
benefits estimated, is not always so apparent. The question, as
we find it considered by the authorities, seems to be, not so much
what the value is of that which is taken, but whether what re-
mains is reduced in value by the appropriation, and if so, to what
extent; in other words, what pecuniary injury the owner sus-
tains by a part of his land being appropriated. But, in estimating
either the injuries or the benefits, those which the owner sustains
or receives in common with the community generally, and which
are not peculiar to him and connected with his ownership, use,
and enjoyment of the particular parcel of land, should be alto-
gether excluded, as it would be unjust to compensate him for the
one, or to charge him with the other, when no account is taken
of such incidental benefits and injuries with other citizens who
receive or feel them equally with himself, but whose lands do not
chance to be taken.'
1 In Somerville & Easton R. R. Co. ments or excavations, and, in general,
ads. Doughty, 22 N J. 495, a motion was the effect of the railroad upon his adjacent
made for a new trial on an assessment of lands, in deteriorating their value in
compensation for land taken by a railroad the condition they were found, whether
company, on the ground that the judge adapted for agricultural purposes only,
in his charge to the jury informed them or for dwellings, stores, shops, or other
" that they were authorized by law to like purposes."
ascertain and assess the damages sus- " On a careful review of this charge,"
tainel by the plaintiff to his other lands says the judge, delivering the opinion of
not taken and occupied by the defendants; the court, " I cannot see that any legal
to his dwelling-house, and other buildings principle was violated, or any unsound
and improvements, by reducing their doctrine advanced. The charter provides
value, changing their character, obstruct- that the jury shall assess the value of the
ing their free use ; by subjecting his land and materials taken by the company,
buildings to the hazards of fire, his fam- and the damages. The damages here
ily and stock to injury and obstruction contemplated are not damages to the land
in their necessary passage across the road; actually occupied or covered by the road,
the inconvenience caused by embank- but such damages as the owner may sus-
CH. XV.] THE EMINENT DOMAIN. 699

The question, then, in these cases, relates first to the value of

the land appropriated; which is to be assessed with reference to
what it is worth for sale, in view of the uses to which it may be
applied, and not simply in reference to its productiveness to the
owner in the condition in which he has seen fit to leave it.1 See-

tain in his other and adjacent lands not oc- consideration, we see no more practical
copied by the company's road. His build- rule than to first ascertain the fair mar-
ings may be reduced in value by the con- ketable value of the premises over which
tiguity of the road and the use of engines the proposed improvement is to pass, ir-
upon it. His lands and buildings, before respective of such improvement, and also
adapted and used for particular purposes, a like value of the same, in the condition
may, from the same cause, become utterly in which they will be immediately after
unfitted for such purposes. The owner the land for the improvement has been
may be incommoded by high embank- taken, irrespective of the benefit which
ments or deep excavations on the line will result from the improvement, and
of the road, his buildings subjected to the difference in value to constitute the
greater hazard from fire, his household measure of compensation. But in ascer-
and stock to injury and destruction, unless taining the depreciated value of the prem-
guarded with more than ordinary care. ises after that part which has been taken
It requires no special experience or saga- for public use has been appropriated, re-
city to perceive that such are the usual gard must be had only to the immediate,
and natural effects of railroads upon the and not remote, consequence of the ap-
adjoining lands, and which necessarily de- propriation; that is to say, the value of
teriorate not only their marketable but the remaining premises is not to be de-
their intrinsic value. The judge, there- preciated by heaping consequence on con-
fore, did not exceed his duty in instruct- sequence. While we see no more practical
inq the jury that these were proper sub- mode of ascertainment than this, yet it
jects for their consideration in estimating must still be borne in mind that this is
the damages which the plaintiff might but a mode of ascertainment ; that, after
sustain by reason of the location of this all, the true criterion is the one provided
road upon and across his lands." And in by the constitution, namely, just compen-
the same case it was held that the jury, sation for the property taken." See this
in assessing compensation, were to adopt rule illustrated and applied in Henry v.
as the standard of value for the lands Dubuque & Pacific R. R. Co., 2 Iowa,
taken, not such a price as they would 800, where it is said " That the language
bring at a forced sale in the market for of the constitution means that the person
money, but such a price as they could be whose property is taken for public use
purchased at, provided they were for sale, shall have a fair equivalent in money for
and the owner asked such prices as, in the the injury ulone him by such taking; in
opinion of the community, they were rea- other words, that lie shall be made whole
sonably worth ; that it was matter of uni- so far as money is a measure of compen-
versal experience that land would not sation, we are equally clear. This just
always bring at a forced sale what it was compensation should be precisely com-
reasonably worth, and the owner, not de- mensurate with the injury sustained by
siring to sell, could not reasonably be re- having the property taken ; neither more
quired to take less. In Sater r. Burlington nor less." And see Richmond, &c. Co. v.
& Mount Pleasant Plank Road Co., 1 Rogers, 1 Duvall, 135; Robinson v. Rob-
Iowa, 386, 393, Isbell, J., says: " 'he inson, 1 Duvall, 162 ; Holton v. Milwau-
terms used in the constitution, 'just com- kee, 31 Wis. 27 ; Root's Case, 77 Pa. St.
pensation,' are not ambiguous. They un- 276; East Brandywine, &c. R. R. Co. v.
doubtedly mean a fair equivalent; that Ranck, 78 Pa. St 454.
the person whose property is taken shall 1 Matter of Furman Street, 17 Wend.
be made whole. But while the end to be 649 ; Tidewater Canal Co. c. Archer, 9
attained is plain, the mode of arriving at Gill & J. 479; Sater v. Burlington, &c.
it is not without its difficulty. On due R. R. Co., 1 Iowa, 386; Parks v. Boston,
 "100 CONSTITUTIONAL LIMITATIONS. [CI. XV.

ond, if less than the whole estate is taken, then there is further
to be considered how much the portion not taken is increased or
diminished in value in consequence of the appropriation.'
15 Pick. 206; First Parish, &c. v. Middle- 595; Balfour v. Louisville, &c. R. R. Co.,
sex, 7 Gray, 106; Dickenson v. Inhabitants 62 Miss. 508; Aslier v. Louisville, &c.
of Fitcliburg, 13 Gray, 546; Lexington v. R. R. Co., 87 Ky. 891. As to how far
Long, 31 Mo. 369; Moulton v. Newbury- different lots or sub-divisions used as
port Water Co., 137 Mass 163. The com- one tract are to be held one parcel
pensation should be the fair cash market within this rule, see Port Huron, &c.
value of the land taken Brown v. Calu- Ry. Co. v. Voorheis, 50 Michm. 506; Wil-
met R. Ry. Co., 125 111. 600, including that cox v. St. Paul, &c. Ry. Co., 35 Minn.
of appurtenances used in connection with 439; Cox v. Mason City, &c. R. Co.,
it: Chicago, S. F. & C. Ry. Co. v. Ward, 77 Iowa, 20; Ham v. Wisconsin, &c.
128 Ill. 349; but not the value of an Ry. Co., 61 Iowa, 716; Northeastern
illegal use. Kingsland v. Mayor, 110 Neb. Ry. Co. v. Frazier, 40 N. W. Rep.
N. Y. 569. While its value as mineral 604; Cameron v. Chicago, &c. Ry. Co.,
land may be considered : Doud v. Mason 43 N. W. Rep. 7853 (Minn.); Potts v.
City, &c. Ry. Co., 76 Iowa, 438, the esti- Penn. S. V. R. R. Co., 119 Pa. St. 278.
mated specific value of minerals in it " Compensation is an equivalent for prop-
may not. Reading & P R. R Co. v. erty taken, or for an injury. It must
Balthaser, 119 Pa. St 472. Where rail- be ascertained by estimating the actual
road land is taken, the reasonable expec- damage the party has sustained. That
tation of future use is to be considered. damage is the sum of the actual value of
Portland & R. R. R. Co. v. Deering, 78 the property taken, and of the injury
Me. 61. The availability of land for a done to the residue of the property by
bridge site or ferry landing may be con- the use of that part which is taken. The
sidered : Little Rock June. Ry. Co. v. benefit is, in part, an equivalent to the
Woodruff, 49 Ark. 381 ; Little Rock & F. loss and damage. The loss and damage
S. Ry. Co. v. McGelbee, 41 Ark 202; but of the defendant is the value of the land
not the enhanced value due to the pro- the company has taken, and the injury
posed improvement. Shenandoah V R R. which the location and use of the road
Co. v. Shepherd, 26 W. Va. 672. Nor can through his tract may cause to the re-
the damage to the ferry privilege by build- mainder. The amount which may be
ing a bridge be compensated for. Moses assessed for these particulars the com-
v. Sanford, 11 Lea, 7;31. Compare Mason pany admits that it is bound to pay.
v. Harper's Ferry B. Co., 17 W. Va. 396. But, as a set-off, it claims credit for the
1 Deaton v. Polk, 9 Iowa, 594; Parks benefit the defendant has received from
v Boston, 15 Pick. 198; Dickenson v. the construction of the road. That bene-
Fitchburg, 13 Gray, 546 ; Harvey v. fit may consist in the enhanced value of
Lackawanna, &c. R. R. Co., 47 Pa. St. the residue of his tract. When the com-
428; Newby v. Platte County, 25 Mo. pany has paid the defendant the excess
2-58; Pacific R. R. Co. ?.. Chrystal, 25 Mo. of his loss or damage over and above the
544; Somerville & Easton R. R. Co. benefit and advantage he has derived
ads. Doughty, 22 N. J. 495; Carpenter v. from the road, lie will have received a
Landaff, 42 N. H. 218; Troy & Boston just compensation. It is objected that the
R. R. Co. v. Lee, 13 Barh. 109; Tide- enhanced salable value of the land should
water Canal Co. v. Archer, 9 Gill and J. not be assessed as a benefit to the defend-
479; Winona & St. Paul R. R. Co. v. ant, because it is precarious and uncertain.
Waldron, 11 Minn. 515; Nicholson -. N. The argument admits that the enhanced
Y. & N. 11. R. R. Co., 22 Conn. 74; Nichols value, if permanent, should be assessel.
v. Bridgeport, 23 Conn 189 ; Harding v. But whether the appreciation is perma-
Funk, 8 Kan. 315; Holton v. Milwaukee, nent and substantial, or transient and
31 Wis. 27. If the whole tract is not illusory, is a sublect about which the
taken, the value of the part taken as part court is not competent to determine. It
of tie whole should be allowed. Chiengo, must be submitted to a jury, who will
B. & N. R. R. Co. v. Bowman, 122 Ill. give credit to the company according to
CH. XV.] THE EMINENT DOMAIN. 701

But, in making this estimate, there must be excluded from con-

sideration those benefits which the owner receives only in common
with the community at large in consequence of his ownership of
other property," and also those incidental injuries to other property,
the circumstances. The argument is not or advantage to the lands of the peti-
tenable, that an increased salable value is tioner through which the road passed, or
no benefit to the owner of land unless he lands immediately adjoining or connected
sells it. This is true if it be assumed that therewith, rendering the part not taken
the price will decline. The chance of this for the railroad more convenient or use-
is estimated by the jury, in the amount ful to the petitioner, or giving it some
which they may assess for that benefit. peculiar increase in value compared with
The sum assessed is therefore (so far as other lands generally in the vicinit y, it
human foresight can anticipate the future) would be the duty of the jury to allow
the exponert of the substantial increase for such benefit, or increase of value, by
of the value of the land. This is a bene- way of set-off, in favor of the railroad
fit to the owner, by enlarging his credit company ; but, on the other hand, if the
and his ability to pay his debts or pro- construction of the railroad, by increasing
vide for his family, in the same manner the convenience of the people of the town
and to the same extent as if his fortune generally as a place for residence, and by
was increased by an acquisition of prop- its anticipated and probable effect in in-
erty." Greenville & Columbia R. R. creasing the population, business, and
Co. v. Partlow, 5 Rich. 428. And see general prosperity of the place, had been
Pennsylvania R. R. Co. v. Heister, 8 Pa. the occasion of an increase in the salable
St. 445; Matter of Albany Street, 11 value of real estate generally near tire
Wend. 140; s. c. 25 Am. Dec. 618; Upton station, including the petitioner's l;indr,
v. South Reading Branch R. R., 8 Cush. and thereby occasioning a benefit or ad-
600; Proprietors, &c. v. Nashua & vantage to him, in common with other
Lowell R. R. Co., 10 Cush. 385; Mayor, owners of real estate in the vicinity, this
&c of Lexington v. Long, 81 Mo. 369; benefit was too contingent, indirect, and
St. Louis, &c. R. R. Co. c. Richardson, 45 remote to be brought into consideration
Mo. 466; Little Miami R. R. Co. c. Col- in settling the question of damages to the
lett, 6 Ohio St. 182; Bigelow v. West petitioner for taking his particular parcel
Wisconsin R. R. Co., 27 Wis. 478. In of land. Upton v. South Reading Branch
Newby v. Platte County, 25 Mo. 258, the R. R. Co., 8 Cush. 600. See Pittsburgh,
right to assess benefits was referred to &c. R. R. Co. v. Reich, 101 I. 1.57 ; Chi-
the taxing power; but this seems not cago, B. & N. R. R. Co. v. Bowman, 122
necessary, and indeed somewhat difficult Ill. 505. Remote and speculative bene-
on principle. See Sutton's Heirs v. Louis- fits are not allowed. Whitely v. Miss.,
ville, 5 Dana, 28. &c. Co., 38 Minn. 5M3. Locating a depot
1 Dickenson v. Inhabitants of Fitch- near a lot is not a special benefit. Wash-
burg, 13 Gray, 546 ; Childs v. New Haven burn v. 1lilwaukee,&c. R. R. Co., 59 Wis.
&c. R. R. Co., 122 Mass. 23.3; Newby v. 364. It has sometimes been objected,
Platte County, 23 Mo. 238; Pacific R. R. with great force, that it was unjust and
Co. v. Chrystal, 25 Mo. 544; Carpenter v. oppressive to set off benefits against the
Landaff, 42 N. H. 218: Mount Washing- loss and damage which the owner of the
ton Co.'s Petition, 35 N. H 1:4; Penrice property sustains, because thereby ie is
v. Wallis, 37 Miss. 172; Ilnislip r. W il- taxed for such benefits, while his neigh-
mington, &c R. R. Co, 102 N. C. 376; bors, no part of whose land is taken, enjoy
Omah-a v. Schaller, 42 N. W. Rep. 721 the same benefits without the loss ; and
(Neb.); Railroad Co. v. Foreman, 24 the courts of Kentucky have held it to be
W. Va. 662; Palmer Co. v. Ferrill, 17 unconstitutional, and that full compensa-
Pick. 58; Meacham v. Fitchburg R. R. tion for the land taken must be made in
Co., 4 Cush. 291, where the jury were money. Sutton v'. Louisville, 5 Dana, 28;
instructed that, if they were satisfied Rice v. Turnpike Co., 7 Dana, 81; Jacob
that the laying out and constructing of v. Louisville, 9 Dana, 114. So in Missis-
the railroad had occasioned any benefit sippi. Natchez, J. & C. R. R. Co. v. Cur-
 CONSTITUTIONAL LIITATIONS. [CH. Xv.

such as would not give to other persons a right to compensation ; 1

while allowing those which directly affect the value of the remain-
der of the land not taken, such as the necessity for increased
fencing, and the like. 2 if an assessment on these principles
ind
makes the benefits equal the damagcs, and awards the owner noth-
ing, he is nevertheless to be consilered as having received full
compensation, and consequently as not being in position to coim-
plain.3 But in some States, by constitutional provision or b:
statute, the party whose property is taken is entitled to have the
value assessed to him without any deduction for benefits.4
rie, 62 Miss. 506. And some other States Washington Co.'s Petition, 35 N. H. 134.
have established, by their constitutions, Where a part of a meeting-house lot was
the rule that benefits shall not be de- taken for a highway, it was held that the
ducted. See cases note 4, below. That anticipated annoyance to worshippers
the damage and benefits must be separ- by the use of the way by noisy and disso-
ately assessed and returned by the jury lute persons on the Sabbath, could form
where part only of the land is taken, no basis for any assessment of damages.
see Detroit v. Daly, 68 Mich. 503. But First Parish in Woburn v. Middlesex
the c:ies generally adopt the doctrine County, 7 Gray, 106.
stated in the text ; and if the owner is paid 3 White v. County Commissioners of
his actual damages, he has no occasion to Norfolk, 2 Cush. 361; Whitman v. Bos-
complain because his neighbors are fortu- ton & Maine R. R. Co., 3 Allen, 13:3;
nate enough to receive a benefit. Green- Nichols v. Bridgeport, 23 Conn. 189;
ville & Columbia R. R. Co. c. Partlow, State v. Kansas City, 89 Mo. .34; Ross v.
6 Rich. 423; Mayor, &c. of Lexington v. Davis, 97 Ind. 79. The benefits upon the
Long, 31 Mo. 369. Benefits to the adja- owner's property not taken, but in the
cent property owned in severalty may assessment district, may exceed the dam-
be deducted from damage to property ages. Genet c. Brooklyn, 99 N. Y. 2"6.
owned jointly. Wilcox v. Meriden, 57 But it is not competent for the commis-
Conn. 120. sioners who assess the compensation to
1 Somerville, &c. R. R. Co. ads. require that which is to be male to be
Doughty, 22 N. J. 493; Dorlan v. East wholly or in part in anything else than
Brandywine, &c. R. R. Co., 46 Pa. St. money. An award of " one hundred and
520; Proprietors, &c. v. Nashua & fifty dollars, with a wagon-way and stop
Lowell R. R. Co., 10 Cush. 385; Louis- for cattle," is void, as undertaking to pay
ville & Nashville R. R. Co. v. Thomp- the owner in part in conveniences to be
son, 18 B. Monr. 7-3.5; Winona & St. furnished him, and which he may not
Peter's R. R. Co. v. Denman, 10 Minn. want, and certainly cannot be compelled
237; Shenandoah V. R. R. Co. v. Shep- to take instead of money. Central Ohio
herd, 20 W. Va. 672; Stone c. Inh. of R. R. Co. v. Holler, 7 Ohio St. 220. See
Heath, 135 Mass. 561; Com'rs Dickinson Rockford, &c. R. R. Co. c. Coppinger, 66
Co. v. Hogan, 39 Kan. 606. So of in- Ill. 510; Toledo, A. A. & N. Ry. Co. c.
creased danger from fire in case a rail- Munson, 37 Mich. 42.
road is laid out. Texas & St. L. Ry. Wilson c. Rockford, &c. R. R. Co.,
Co. v. Cella, 42 Ark. 328; Setzler v. Pa. 59 Ill. 273; Carpenter v. Jennings, 77 Ill.
&c. R. R. Co., 112 Pa. St. 56. 250; Todd z. Kankakee, &c. R. R. Co.,
2 Pennsylvania R R. Co. v. Heister, 8 7S 111. 5330; Atlanta v. Central R. R. Co,
Pa. St. 445; Greenville & Columbia 53 Ga. 120; Koestenbader v Peirce, 41
R. R. Co. v. Partlow, 5 Rich. 428; Dear- Iowa, 204; Britton r. Des Moines, &c. R.
born v. Railroad Co., 24 N. H. 179; Car- R. Co., 59 Iowa, 540; Pacific Coast R*y.
penter v. Landaff, 42 N_ H. 218; Dorlan Co. v. Porter, 74 Cal. 261 ; Leroy & W.
v. East Brandywine, &c. R. R. Co., 46 R. R. Co. v. Ross, 40 Kan. 598; Gesv v.
Pa. St. 520; Winona & St Peter's R. Cincinnati, &c. R. R. Co., 4 Ohio St 30S:
R. Co. v,. Denman, 10 Minn 267; Mount Woodfolk c. Nashville R. R. Co., 2 Swan,
CHl. XV.] THE EMINENF DOMAIN. 703

The statutory assessment of compensation will cover all con-

sequential damages which the owner of the land sustains by means
of the construction of the work, except such as may result from
negligence or improper construction,' and for which an action at
the common law will lie, as already stated.
422; Memphis v. Bolton, 9 Heisk. 508. Irrig. Co. v. Middaugh, 21 Pac. Rep. 565
In Illinois benefits may not be set off (Col.). But see Roushlange c. Chicago,
against the value of the land taken, but &c, Ry. Co., 115 Ind. 106. The rule ap-
iay be against damage to land not taken. plies to cases of purchase instead of con-
1larwood v. Bloomington, 124 Ill. 48. demnation. North & W. B. Hy. Co. r.
i Philadelphia & Reading R. R. Co. Swank, 105 Pa St 555 , Cassidy v. Old
v. Yeiser, 8 Pa. St. 366; O'Connor v. Colony It. It. Co., 141 Mass. 174; Houston
Pittsburgh, 18 Pa. St. 187; Aldrich c. & E. T. Ry. Co. v. Adams, 58 Tex 476.
Cheshire R. R. Co., 21 N. H. 359; Dear- The rule covers a case where a right of ac-
born v. Boston, Concord, & Montreal tion existed for a former invalid condem-
R. R. Co., 24 N. H. 179; Eaton v. Boston nation. Dunlap v. Toledo, &c. 1Y. Co.,
C. & M. R. R. Co., 51 N. H. 504; Dodge 50 Mich. 470. A corporation appropriat-
v. County Commissioners, 3 Met. 380; ing property under the right of eminent
Brown v. Providence, W. & B. 1. R domain is always liable for any abuse of
Co., 5 Gray, 33, Mason v. Kennebec & the privilege or neglect of duty under the
Portland R. R. Co., 31 Me 21.5; Bellinger law under which they proceed. Febr i.
v N. Y. Central R. [Link]., 23 N. Y. 42; Schuylkill Nay. Co., 69 Pa St. 161; Ea-
Hatch v. Vt. Central R. R. Co., 25 Vt. 49; ton v. Boston, C. & M. R. R. Co., 51 N.
Slatten v. Des Moines Valley R. R. Co., H. 504; Terre Haute, &c. R. R. Co. v.
29 Iowa, 148; Whitehouse v. Androscog- McKinley, 33 Ind. 274; Neilson v. Chi-
gin R. R. Co., 52 Me. 208; Denver City cago, &c. Ry. Co., 58 Wis. 616.