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*CHAPTER XV.

THE EMINENT DOMAIN.

EVERY Sovereignty possesses buildings, lands, and other property, which it holds for the use of its officers and agents, to enable them to perform their public functions. It may also have property from the rents, issues, and profits, or perhaps the sale, of which it is expected the State will derive a revenue. Such property 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 enjoyment of the individual citizens who compose the organized society, but the regulation and control of 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

1 In The Company of Free Fishers, &c. v. Gann, 20 C. B. N. s. 1, it was held that the ownership of the Crown in the bed of navigable waters is for the benefit of the subject, and cannot be used in any such manner as to derogate from or interfere with the

right of navigation, which belongs by law to all the subjects of the realm. And that consequently the grantees of a particular portion, who occupied it for a fishery, could not be lawfully authorized to charge and collect anchorage dues from vessels anchoring

these rights are 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 [* 524] 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 complete 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 ownership and control; and this it accomplishes either by contract with the owner, by accepting his gift, 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 existence and perpetuity, and which, so far as when called into action 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

therein. As regards public and exclusive rights of fishery in this country, see Commonwealth v. Alger, 7 Cush. 63; Lakeman v. Burnham, 7 Gray, 440; Commonwealth v. Look, 108 Mass. 452; Angell on Watercourses, § 65 a, and cases cited.

1 1 Bl. Com. 294; 3 Kent, 378, note. In California it has been decided that a grant of public lands by the government carries with it to the grantee the title to all mines. Boggs v. Merced, &c. Co., 14 Cal. 279; Moore v. Smaw, 17 Cal. 199.

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 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.1

[* 525] * When the existence of a particular power in the government is recognized on the ground of necessity, no delegation of the legislative power by the people can be held to vest authority in the department which holds it in trust, to bargain away such power, or to so tie up the hands of the government as to preclude its repeated 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, in strict con

1 Vattel, c. 20, § 34; Bynkershoek, lib. 2, c. 15; Ang. on Watercourses, § 457; 2 Kent, 338-340; Redf. on Railw. c. 11, § 1. "The right which belongs to the society or to the sovereign of disposing, in case of necessity, and for the public safety, of all the wealth contained in the State, is called the eminent domain." McKinley, J., in Pollard's Lessee v. Hagan, 3 How. 223. "Notwithstanding the grant to individuals, the highest and most exact idea of property remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have a right to resume the possession of the property, in the manner directed by the constitution and laws of the State, whenever the public interest requires it. This right of resumption may be exercised, not only where the safety, but also where the interest or even the expediency, of the

State is concerned; as where the land of the individual is wanted for a road, canal, or other public improvement." Walworth, Chancellor, in Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige, 73. The right is inherent in all governments, and requires no constitutional provision to give it force. Brown v. Beatty, 34 Miss. 227; Taylor v. Porter, 4 Hill, 143. "Title to property is always held upon the implied condition that it must be surrendered to the government, either in whole or in part, when the public necessities, evidenced according to the established forms of law, demand."

Hogeboom, J., in People v. Mayor, &c. of New York, 32 Barb. 112. And see Heyward v. Mayor, &c. of New York, 7 N. Y. 314; Water Works Co. v. Burkhart, 41 Ind. 364; Wier v. St. Paul, &c. R. R. Co., 18 Minn. 155.

formity with its constitution, 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 exercise 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, which originally was in excess of proper authority. Upon this subject we shall content ourselves with referring in this place to what has been said in another connection.1

As under the peculiar American system the protection and regulation of private rights, privileges, and immunities in general properly pertain to the State governments, and those governments are expected to make provision for those conveniences and necessities which are usually provided for their citizens through the exercise 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 government of the United States exercises sovereign authority, it possesses,* as incident thereto, the right of eminent [* 526] 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. So far, however, as the general government may deem

1 See ante, p. *281.

2 Pollard's Lessee v. Hagan, 3 How. 212; Goodtitle v. Kibbee, 9 How. 471; Doe v. Beebe, 13 How. 25; United States v. The Railroad Bridge Co., 6 McLean, 517; Weber v. Harbor Commissioners, 18 Wall. 57; Swan v. Williams, 2 Mich. 427; Warren v. St. Paul, &c. R. R. Co., 18 Minn. 384. The States have sometimes assumed authority, under the eminent domain, to appropriate the property of individuals in order to donate it to the general government for national purposes; but the

right to do this would seem doubtful. The authority of the general government to appropriate private property for its needs is unquestionable; but every sovereignty must judge of its needs for itself, and the right to decide upon and supply them by dispossessing private rights cannot, as it seems to us, be assumed by any other authority without the incorporation of some new principle into the law of eminent domain. The following decisions have been made on this subject. In Reddall v. Bryan, 14 Md. 478, proceedings in Maryland,

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it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions, as must sometimes be necessary in the case of forts, light-houses, military posts or roads, and other conveniences and necessities of government, the general government may still exercise the authority, as well within the States as within the territory under its exclusive jurisdiction, and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other authority.1

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.2 Lands for the public ways; timber, stone, and gravel with which to make or improve the public

under its laws, to appropriate lands
for the purpose of supplying the city
of Washington with water, were sus-
tained. The opinion affirms the right
generally to employ the State eminent
domain for the purposes of the general
government; but the court attach im-
portance to the fact that in ceding its
portion of the District of Columbia
to the United States, "the State
never intended to abandon all interest
in the District. The relation, there
fore, between the District of Colum-
bia, composed of territory ceded by
Maryland for certain purposes only,
and the State of whose soil it forms a
part, is more intimate and close than
that which it bears to any other
State."
Gilmer v. Lime Point, 18
Cal. 229, was a proceeding in the
State court, on the application of the
United States by its agent, to con-
demn lands for the purposes of a light-
house. The right to maintain it was

23

contested, but sustained. Similar decisions were made in Burt v. Merchants' Ins. Co., 106 Mass. 356, and Cummings v. Ash, 50 N. H. 590. In Trombley v. Auditor-General, Mich. 471, an act of the legislature authorizing the Governor to take proceedings to condemn lands for the use of the general government was held invalid, on the ground that every sovereignty possesses inherent authority to appropriate the property of its citizens or subjects for public uses, and must be the judge of its own needs. This view has since been approved by the United States Supreme Court. Kohl v. United States, 91 U. S. 367.

1 Kohl v. United States, 91 U. S. Rep. 367; Trombley v. Auditor-General, 23 Mich. 471; Darlington v. United States, 82 Penn. St. 382.

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

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