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 construction, 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.1 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.2

[* 530] *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 purposes. "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

road, or to exercise any act of ownership over it; and that a court of equity would enjoin them from exercising any such right, or they might be prosecuted in trespass at law. This case follows Baltimore and Susquehanna R.R. Co. v. Nesbit, 10 How. 395, and Bloodgood v. Mohawk and Hudson R.R. Co., 18 Wend. 10, where the statutory provisions were similar. In the case in Howard it is said: "It can hardly be questioned that without acceptance in the mode prescribed [i. e., by payment of the damages assessed], the company were not bound; that if they had been dissatisfied with the estimate placed on the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption." Daniel, J., 10 How. 399.

Gillinwater v. Mississippi, &c., R.R. Co., 13 Ill. 1. "The statute says that, after a certain other act shall have been passed, the company may then proceed to take private property for the use of their road; that is equivalent to saying that that right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its intention to reserve that power until it could judge for itself whether the proposed road would be of sufficient public utility to justify the use of this high prerogative. It did not intend to cast this power away, to be gathered up and used by any who might choose to exercise it." Ibid, P. 4.

2 See further the cases of Atlantic and Ohio R.R. Co. v. Sullivant, 5 Ohio, N. S. 277; Parsons v. Howe, 41 Me. 218; Atkinson v. Marietta and Cincinnati R.R. Co., 15 Ohio, N. s. 21.

taining to the State itself, and interfering most seriously and often vexatiously with the ordinary rights of property." It has accordingly 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 appropriate 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 appropriate 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. 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 high a prerogative as that of devesting 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 individual and pass it over to another without reference to some use to which it is to be applied for the public benefit.3 "The right of

1 Currier v. Marietta and Cincinnati R.R. Co., 11 Ohio, N. s. 231; Miami Coal Co. v. Wigton, 19 Ohio, N. s. 560. See ante, pp. 394–396.

Currier v. Marietta and Cincinnati R.R. Co., 11 Ohio, N. s. 228. And see Gilmer v. Lime Point, 19 Cal. 47; Bensley v. Mountain Lake, &c., Co., 13 Cal. 306; Brunnig v. N. O. Canal and Banking Co., 12 La. An. 541; West Virginia Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382.

* In a work of this character, we have no occasion to consider the right of the government to seize and appropriate to its own use the property of individuals in time of war, through its military authorities. That is a right which depends on the existence of hostilities, and the suspension, partially or wholly, of the

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.1 It seems [*531] 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, the 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.2 Nor could it be of civil laws. For recent cases in which it has been considered, see Mitchell v. Harmony, 13 How. 128; Wilson v. Crockett, 43 Mo. 216; Williams v, Wickerman, 44 Mo. 484; Yost v. Stout, 4 Cold. 205; Sutton v. Tiller, 6 Cold. 593; Taylor v. Nashville, &c., R.R. Co., ib. 646; Coolidge v. Guthrie, 8 Am. Law Reg. (N. s.) 22; Echols v. Staunton, 3 W. Va. 574; Wilson v. Franklin, 63 N. C. 259; Ferguson v. Loar, 5 Bush, 689.

1 Beekman v. Saratoga and Schenectady R.R. Co., 3 Paige, 73; Hepburn's Case, 3 Bland, 95; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 139; Matter of Albany Street, 11 Wend. 149; Matter of John and Cherry Streets, 19 Wend. 659; Cooper v. Williams, 5 Ohio, 393; Buckingham v. Smith, 10 Ohio, 296; Reeves v. Treasurer of Wood Co., 8 Ohio, N. s. 333. See this subject considered on principle and authority by Senator Tracy in Bloodgood v. Mohawk and Hudson R.R. Co., 18 Wend. 55 et seq. See also Embury v. Conner, 3 N. Y. 511; Kramer v. Cleveland and Pittsburgh R.R. Co., 5 Ohio, N. s. 146; Pratt v. Brown, 3 Wis. 603; Concord R.R. v. Greeley, 17 N. H. 47; N. Y. and Harlaem R.R. Co. v. Kip, 46 N. Y. 546; s. c. 7 Am. Rep. 385.

2 Taylor v. Porter, 4 Hill, 142, per Bronson, J.; Clack v. White, 2 Swan, 540; White v. White, 5 Barb. 474; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 139; Nesbitt v. Trumbo, 39 Ill. 110; Osborn v. Hart, 24 Wis. 90; s. c. 1 Am. Rep. 161; Tyler v. Beacher, 44 Vt. 648; Bankhead v. Brown, 25 Iowa, 540. A neighborhood road is only a private road, and taking land for it would not be for a public use. Dickey v. Tennison, 27 Mo. 373. To avoid this difficulty, it is provided by the constitutions of some of the States that private roads may be laid out under proceedings corresponding to those for the establishment of highways. There are provisions to that effect in the Constitutions of New York, Georgia, and Michigan. But in Harvey v. Thomas, 10 Watts, 65, it was held that the right might be exercised in order to the establishment of private ways from coal fields to connect them with the public improvements,

importance that the public would receive incidental benefits, such as usually spring from the improvement of lands or 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 protection to the rights of private property will preclude the government from seizing 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 undertake to define,* in the light of the judicial decisions, [* 532] what constitutes a public use. It has been said by a learned jurist that, "if the public interest can be in any way pro

there being nothing in the constitution forbidding it. See also the Pocopson Road, 16 Penn. St. 15. But this doctrine is directly opposed to Young v. McKenzie, 3 Georgia, 44; Taylor v. Porter, 4 Hill, 146; Buffalo and N. Y. R.R. Co. v. Brainerd, 9 N. Y. 108; Bradley v. N. Y. and N. H. R.R. Co., 21 Conn. 305; Reeves v. Treasurer of Wood Co., 8 Ohio, N. s. 344, and many other cases: though possibly convenient access to the great coal fields of the State might be held to be so far a matter of general concern as to support an exercise of the power on the ground of the public benefit. In Eldridge v. Smith, 34 Vt. 484, it was held that the manufacture of railroad cars was not so legitimately and necessarily connected with the management of a railroad that the company would be authorized to appropriate lands therefor. So, also, of land for the erection of dwelling-houses to rent by railroad companies to their employés. But under authority to a railroad company to take land for constructing and operating its road, it may take what is needful for depot grounds. N. Y. and Harlaem R.R. Co. v. Kip, 46 N. Y. 546; s. c. 7 Am. Rep. 385.

In the text we have stated what is unquestionably the result of the authorities; though if the question were an open one, it might well be debated whether the right to authorize the appropriation of the property of individuals did not rest rather upon grounds of general public policy than upon the public purpose to which it was proposed to devote it. There are many cases in which individuals or private corporations have been empowered to appropriate the property of others when the general good demanded it, though the purpose was no more public than it is in any case where benefits are to flow to the community generally from a private enterprise. The case of appropriations for mill-dams, railroads, and drains to improve lands are familiar examples. These appropriations have been sanctioned under an application of the term "public purpose," which might also justify the laying out of private roads, when private property could not otherwise be made available. Upon this general subject, the reader is referred to an article by Hon. J. V. Campbell in the "Bench and Bar," for July, 1871. Per Tracy, Senator, in Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 60.

moted 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. It is upon this principle that the legislatures of several of the States have authorized the condemnation of the lands of individuals for mill sites, when 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, turnpike 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 advantage expected from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through the medium of corporate bodies, or of individual enterprise." 2

It would not be entirely safe, however, to apply with much liberality the language above quoted, that, "where the public interest can be in any way promoted by the taking of private 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

1 2 Kent Com. 340.

2 Walworth, Chancellor, in Beekman v. Saratoga and Schenectady R.R. Co., 3 Paige, 73. And see Wilson v. Blackbird Creek Marsh Co., 2 Pet. 251.