And herein such a case would differ from one where the legislature should seek to transfer property from one individual to another, with no pretence of public necessity; such an act would not be the exercise of due legislative power, but would involve an arbitrary assumption of power, and might be reached, as such, by the courts.1

There are many dicta in the American reports that conflict, or seem to conflict, with the view here presented of the obligation to make compensation, and which seem to say that in no case is it competent for a legislature to take private property without providing for compensation at the time, or at some reasonable period thereafter. But it is manifest that many of them may be explained and justified, as having tacit reference to certain constitutional provisions, upon which we shall dwell hereafter; and others, as meaning to indicate the particulars of legislative duty in a political sense, and so as amounting only to this, that a legislature ought to provide compensation when property is taken, which cannot be denied. But, unless these dicta may be thus explained, it would appear that they are not sustained either upon principle or authority, but are abundantly refuted by both.3

Aside, however, from any consideration of the power of the judiciary over legislative action, the obligation resting upon the State, and so upon the legislature, to make compensation, stands, as we have sufficiently shown, upon a basis that cannot be shaken. Does the same obligation extend to cases of consequential damage arising from the exercise of the Right of Eminent Domain ?

In general it would seem not, since consequential damage arising from the exercise of this right, for the most part affects only the use and enjoyment of property, and does not destroy it; and accordingly such damage ought to be classed with the same kind of loss as resulting from the exertion of sovereign power in other ways, as e. g. in that of regulating and restricting the use of property, or in maintaining the highways, and lowering, elevating, or amending them, according to their need.4 Such losses are not generally very unequal nor very burdensome, and although they may be so in some cases, and in such may justify a claim for compensation directed to the legislative sense of justice, yet these exceptional cases cannot profitably be considered in this essay, even if they might come properly within the range of our subject, as it is manifest they cannot, since we are dealing with cases where private property is taken, and not with those where it is only consequentially damaged.

In accordance with this view, in the construction of those clauses

1 2 Kent's Com. 340; Varick v. Smith, 5 Paige, 137.

2 Bradshaw v. Rogers, 20 Johns. 103; Charles R. Br. v. Warren Br., 7 Pick. 507; Hatch v. R. R. Co., 25 Vt. 49.

3 Grot. De Jure, B .& P. lib. 3, c. 20, s. 7. 2; Puff. lib. 8, c. 5, s. 7; Lindsay v. Com'rs, 2 Bay, 38; Rexford v Knight, 1 Kernan, 308.

* Rands v. Mumford, 2 R. I. 154; 6 Wheat. 596.

in the several constitutions of the United States, that provide for compensation when private property is taken, it is well holden that they do not entitle property-holders to recompense for consequential damage; a construction which is required not only by the reason of the thing, but by manifold practical difficulties that would attend any other course.'

What has been said in the foregoing pages will serve to indicate in a general way, the origin, nature, and import of the Right of Eminent Domain. Let us now enter upon another head of our subject, as previously laid down, viz. :

III. A more particular analysis of this right, and a consideration of what is implied in the terms made use of in our previous examination.

And under this head it is proposed to inquire what is the full meaning, in connection with our subject,

1. Of a public exigency;

2. Of private property;

3. Of a taking or appropriating of private property; and 4. Of compensation.

And now, 1, what is that public exigency, and what are those public purposes, which authorize the State to take private property?

This is a question, as we have already seen, which does not fall within the range of judicial cognizance in the United States; and if not in this country, probably nowhere else. Accordingly we are not to expect much light upon this part of our subject from judicial decisions.

In order to constitute a public exigency in our present sense, it would seem that the exigency should be, (1), one affecting some considerable portion of the community; and (2), one that could not be reasonably satisfied except by a resort to the Right of Eminent Domain.

(1.) It should be one affecting some considerable part of the community.

If we contemplate that whole political body which composes what is called a State, as remaining single and undivided, then the most obvious idea of a public exigency is of one which affects the whole or a greater part of the people. But if the idea of a public exigency were to be practically confined to this, it is certain that the welfare of the people would be very inadequately cared for, since the interests of all parts of an extended community are not by any means identical in all important particulars.

And therefore the necessities of good government are found to require a division of the State into parts, as, e. g., counties, towns, villages and districts; and for many local purposes, the rights and

1 Richards v. R. R. Co., 25 Vt. 465; Patterson v. Boston, 20 Pick. 165; Lansing v. Smith, 8 Cow. 146; Case of Phil. & W. R. R. Co., 6 Whart. 25; Rittenburg v. R. R. Co., 21 Pa. 100; 35 Me. 323.

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22

powers of government must be holden and exercised by local officers or corporations, as the trustees of the government; the sovereign rights of taxation and eminent domain are among these delegated rights. And now it becomes manifest that a public exigency need not be one affecting the whole body of the State; for a local officer is justified in resorting to the Right of Eminent Domain, if it affect the local community under his jurisdiction. And yet when one of these local officers takes private property for public purposes, he does it in virtue of a right that resides not properly in him, nor even in the local community which he represents, but rather in the highest officers of the State, to wit, the legislature, in whom the people lodged it, and for whom he acts in some sense as agent. And thus we see that the necessities of a small portion of the State are held sufficient to set in motion that ultimate sovereign power, the end of whose action is the good not of any small portion merely, but of the whole.

The good of the State then stands in the good of its parts. A public exigency need not be one which affects all equally; it can never do that; nor one which affects all directly; nor one which in point of fact affects all to any extent. It is enough for many purposes, that there be a merely local exigency. The Right of Eminent Domain may be exercised in many cases where the exigency exists in and affects only one of those political parts into which the State is divided.3

But it would seem that we could not go lower than these political bodies, and say that the benefit of a small portion only of a town or village or the like, would justify an exercise of the Right of Eminent Domain; if it be admitted, as it must be, that the town (or the ultimate political division, whatever it be) may be authorized to exercise this right for certain local purposes, it would appear that the local exigency ought to affect the whole local community; in such a sense, at least, and to such a degree, that all its members might justly be required to contribute towards the compensation.

And here it may be proper to add that if property be taken for public purposes, it ought to be thrown open to public use as effectually as the nature of the property and the purposes for which it is required will permit. If land, for instance, be taken for a railroad or a mill, and the property in it be vested in a private corporation, it would seem that a legal right should be reserved and secured for all to use such road or mill, on certain terms. Otherwise the public may be denied, in a considerable degree, the beneficial use of the property taken in its name. And so where land is taken for town ways and the like, since such property is taken

1 2 Kent, 305; 10 How. 511.

2 10 N. H. 138; 22 Conn. 189; 1 Rice (So. Ca.) 383.

Hartwell v. Armstrong, 19 Barb. 166.

West. Riv. Co. v. Dix, 6 How. 504, per Woodbury, J.

in the name of the State, and by virtue of the theory that the good of the whole State demands it, the use of it should in fact be secured, so far as may be, to all the State.

(2.) But it is not all public wants that will justify a resort to the Right of Eminent Domain; many of them, although affecting large portions of the community, or even the whole of it, may be satis. fied as well, or at least sufficiently well, by a purchase of property. To authorize the exercise of this high right, there must be some public purpose, urgent, and of such magnitude, as cannot well be compassed in any other way than by a resort to the ultimate and supreme powers of sovereignty.

And so the State, if it desire, e. g., a peculiar kind of marble for a state-house, ought not to exercise this sovereign right to obtain it. It can obtain marble enough for its purpose in the ordinary way of purchase, and cannot justly manufacture a public exigency out of a mere difference in quality between two kinds of stone. The same reasoning would hold good in many other cases, as, e. g., if the question were on assuming private property to obtain a loca. tion for a public statue, or for any other purpose of a merely ornamental character; there is no public necessity in such a case requiring a particular location; and the end to be secured is not one of sufficient importance to justify depriving a citizen of his property against his will, even if that were true, which cannot be supposed, that no other site at all could be found than the one in question.

But how would it be if the question were on the location of an important public building, such as a state-house, court-house, markethouse, or almshouse? It has been urged that the precise location of such a building could not be of sufficient importance to justify the exercise of the Right of Eminent Domain; and that there must always be land to be obtained in other ways which will answer every purpose of public necessity.2 This may be so in most cases; and yet it is not difficult to conceive of cases in which private property might justly be assumed for such an object.3 Perhaps no general rule of the kind proposed should be laid down, and each case should be left to be decided on its particular facts.

The health and comfort of a great city would undoubtedly justify the purchase of lands for a public park, and might authorize the taking of them, it should seem, under the Right of Eminent Domain; for here the object is important, and the necessity for specific property to accomplish it is apparent.

A public necessity would be a public exigency of the most ob vious kind; and under this head private property might be seized, in time of war, for fortifications, for the carriage of provisions, mu

1 Bynk. Quæst. Jur. Pub. lib. 2, c. 15; Puff. lib. 8, c. 5, s. 7; Heinecc. lib. 2, c. 8, s. 171; Grot. lib. 2, c. 14, s. 7; Grot. lib. 3, c. 19, s. 7.

2 West. Rio. Co v. Dix, 6 How. 504, per Woodbury, J.

• Heyward v. Mayor of New York, 3 Seld. 314.

nitions of war, and the like; and in order to prevent its falling into the hands of the enemy; and so, too, it might be taken at any time for the construction of ways, bridges, and other necessary means of communication. It would be equally plain that property might be taken to satisfy any great public want, though not amounting to an absolute necessity: such as the want of new and improved means of communication, e. g., turnpikes, railroads or canals; it therefore might be taken for the purpose of widening streets in a crowded city, of supplying a city with water, of draining and filling a pestilential swamp, of protecting an important harbor, and the like.2

The right of the State to take must be limited by the public exigencies, and as it can take no specific piece of property that such exigencies do not require, so it ought to take no further estate or interest than they require for beyond this, the only justifi cation for interfering with the private property at all, fails. If therefore, the public purposes may be fully answered by taking an easement in land, as ordinarily they may when land is taken for railroads, the owner is entitled to retain every interest not inconsistent with the easement. And so if land be needed for a public use which is to continue only for a certain definite number of years, the State ought, primâ facie, and in strictness, to take only an estate for that number of years.3

And yet this doctrine must not be pushed too far; a liberal power of defining the public exigencies ought rightfully to be awarded to the legislative body; and whenever the due accomplishment of great public purposes seems to that body, in cases such as those last mentioned, to require the taking of the fee, it may undoubtedly be taken; and when the fee is taken, and its owner receives full compensation, he cannot justly expect that the property should be returned to him, even though the public use to which it was appropriated no longer require it.5

It is obvious that the transfer of property from one individual to another, merely for the benefit of him on whom it is conferred, has no justification under the Right of Eminent Domain. Accordingly, when railroads were first introduced into this country, and the various States sought to secure to their citizens the benefits of that invention through the instrumentality of private corporations, by conferring upon them the right of taking and holding private property for the purposes of such roads, much complaint was made by the owners of property so taken, who argued and seemed to believe that it had been transferred to private corporations for their

' Vattel, b. 1, ch. 9.

22 Kent, 339, n.; Hartwell v. Armstrong, 19 Barb. 166; Ellis v. Welch, 6 Mass. 246. See note (1) on p. 255.

West Riv. Co. v. Dix, 6 How. 504, per Woodbury, J.

4 R. R. Co. v. Davis, 2 D. & B. 45; Heyward v. Mayor of New York, 3 Seld. 314; 4 Sandford, 456.

Heyward v. Mayor of New York, 3 Seld. 344.