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private advantage. But their objections were always overruled, and it was holden that the railroads were public highways, constructed for the public advantage, and that the transfer of property to the corporations was made to the end of securing the public welfare. This position is now firmly established, and is beyond all question. The benefits produced by railways affect the whole community, and have proved of surpassing importance to all.

It is very true that these public advantages are not generally, if ever, the moving consideration with the corporations that construct and maintain the railroads ; they seek rather their own private gain. But what is that to the legislature or the State ? If thc public results are of so important a character as to call for the exercise of the sovereign power to secure them, must the State be forbidden to avail itself of private capital and enterprise in securing these ends, because private parties, in compassing the public purpose, are not directly seeking that end, but only their own emolument ? It is nothing to the sovereign what private ends they have in view; it is enough for him that they accomplish the public purposes satisfactorily; and if the taking is necessary for these purposes, the legislature may as well empower such private corporations to take as any other parties, provided they will accomplish what it desires.2

The true light in which to regard such corporations, in this connection, is that which exhibits them as the agents of the State, endowed with a right of taking and applying private property to public uses; 3 and sometimes with the additional right of holding it in their own possession, as their property, to the end that they may the better secure the public good; and with the right still further, of rewarding themselves, and duly distributing the burden of the public work by the taking of tolls.

Finally, under the present division of our subject, a question presents itself as to the rightfulness of taking private property for what are termed private roads.

By a private road we understand a road laid out expressly for the benefit of one or a few; and not for that of the public in general ; 5 so that although the public may have the right to use it, the road is nevertheless of such a nature that it would never have been made, if the public good had been the only thing consulted ; as would seem to be sufficiently indicated by the provision, always made in these cases, that the party or parties for whose benefit the road is made, shall pay all the expenses. It may be said, indeed, that it is of no consequence how payment is made ; that the question as to the manner of making compensation is a distinct one; and that the public convenience may absolutely require a road, and yet that road be laid out under a provision that it shall be paid for solely by certain individuals. To which it may be replied, that while we admit the two questions as to the manner of making compensation, and as to the existence of a public necessity, to be distinct, still that can hardly be said to be required by a public exigency which the public, though able, is unwilling to pay for, and which it had rather not take at all than be obliged to pay for.

· Varick v. Smith, 3 Paige, 45; R. R. Co. v. Davis, 2 D. & B. 451; Swan 7. Williams, 2 Gibbs, 427; 2 Kent's Com. 339, n.

2 R. R. Co. v. Davis, 2 D. & B. 45!; Varick v. Smith, 3 Paige, 45.

3 R. R. Co. v. Davis, 2 D. & B. 451; Sedgw. Meas. Dam. 110; Swan v. Williams, 2 Gibbs, 427; 2 W. & S. 79. 4 Vattel, b. 9, s. 103.

51 N. Ý. Rev. St., ch. xvi. art. 4, s. 98. By this statute the private road is expressly declared to be for the use of the applicant, his heirs and assigns; and the owner of the land is forbidden to use ii except on certain conditions.

And in the case of private roads, what public benefit can there be? It is said that the public has easier access to the individual, and has the benefit, in various ways, of his increased facilities for getting abroad.? But then we are not to suppose an individual to be shut in entirely from access; no man can be supposed in purchasing or hiring a house or lands, to locate himself in such manner, that he has absolutely no rightful means of egress and ingress; if he purchase of the owner of all the land surrounding, he has, at the common law, a right of way by implication. But if a man has so purchased that he has in reality no way of egress at all, why should the law step in to the aid of his folly, and put a premium on indiscretion? Why should the law assist a man to that which, if it could have been obtained by private negotiation, he ought to have so obtained ; and if it could not, he has no right to ?

If the party have some means of egress it would appear impossible to contend seriously that the mere difference in point of convenience between two roads of this character, could amount to a public benefit of such magnitude as to justify a resort to the Right of Eminent Domain.

It would seem, then, that the practice which prevails in some States, of taking private property under this right, for the purpose of private roads, must rest either upon long usage,3 in which the approbation of the sovereign is implied, or else (as it might, e. g., in New York since 1846), upon the express provision of the sovereign body in the constitution ; and neither of these can reconcile it with the duty of the State or the right of the individual.4

And this brings us to the next division under this general head of our subject, viz. :

2. What is meant, in defining the Right of Eminent Domain, by the term “private property ? "

(1.) Theoretically it is not possible in general to except any kind of property in the State from subjection to the Right of Eminent Domain ; that is, it cannot be said of any subject-matter of property, that if the public exigencies should require it, it is not to be subject to taking or appropriation by the State.

1 Copeland v. Packard, 16 Pick. 217.
* Taylor v. Carter, 4 Hill, 140, per Nelson, Ch. J., dissenting.
3 Jones v. Andover, 9 Pick. 146.

* Taylor v. Carter, 4 Hill, 140; 2 Kent, 339, D., calls this practice “an abuse of the Right of Eminent Domain.”

And yet there are articles of property which, in a practical sense, can never be taken under this right, since there can never be a public exigency in requring them; the paper evidences of debt are such, since the public never can be so much in want of paper as to need them, and never can be justified in seizing them merely for the sake of annulling the contract or impairing its obli. gation.'

It is not necessary, however, to specify property of this kind. It is to be said, in general, that all property is subject to the Right of Eminent Domain; “ it is one of the incidents of tenure of all lands in the State," 2 and, mutatis mutandis, the same may be said of all property in the State, at least of all property belonging to parties domiciled within it.

Accordingly the Right of Eminent Domain is held to apply to land owned by the Indians.

(2.) It has been made a question, however, in the United States, whether the franchise of a corporation can be taken consistently with that provision in the Federal Constitution which forbids any State to pass a “ law impairing the obligation of contracts," 5 and where a State, after granting the privilege of taking tolls on a turnpike, subsequently undertook, in the exercise of the Right of Eminent Domain, to make the turnpike a free road, it was argued that here was an attempt to revoke the grant and to impair the obligation of a contract.6

And yet it is certain that a franchise is property, an incorporeal heredita ment, and subject in general to the usual incidents of property. It is, indeed, held under grant from the government, but so is land; and no one has supposed that the Right of Eminent Domain did not extend to that. If this argiment is good for any. thing in the case of a franchise, why not in the case of land ? But it becomes clear that no contract has been violated, when it is considered more narrowly what the contract in such a case is, and by whom made. The State makes its grant precisely as any private party would, and conveys as completely and effectually ; it undertakes to vest the property with all the usual rights of property, but not necessarily with anyıhing more ; and so it passes subject to the rights of sovereignty, just as in any ordinary private conveyance. Why not? Can the sovereign rights be held of so small importance as to pass or be annulled by mere implication,an implication arising from the single fact that the State is the grantor? We shall have occasion to examine into that question by and bye, and to see that they cannot. The State, when it conveys, is acting as an ordinary grantor of property ; but when it resumes, under the Right of Eininent Domain, it no longer holds the same attitude ; it acts more as the sovereign, exerting his supreme power, which no contract has reached.2

· Charles Riv. Br. v. Warren Br., 11 Pet. 420, per McLean, J. ; West. Riv. Co. v. Dir, 6 How 504.

2 Ellis v. Welch, 6 Mass. 246, per Parsons, Ch. J. 3 Beekman v. R. R. Co., 3 Paige, 45; 2 Parsons on Cont. 519. * Wadsworth v. Buffalo Asso., 15 Barb. 83; Johnson v. McIntosh, 8 Wheat. 571. 5 Const. U. S. art. 1,

10, 1. & Backus v. Lebanon, 11 N. H. 19, arguendo. 7 Backus v. Lebanon, 11 N. H. 19. 8 3 Cranch, 70.

(3.) The case of foreigners presents an interesting question. Can a State rightfully subject the goods of foreigners to the Right of Eminent Domain ?

In answering this question, a distinction is to be noticed between those who reside permanently in a foreign State, and those who are there temporarily and only by way of visit or temporary commerce.3

The former may not enjoy the full privileges of citizenship; but they receive the continuous protection of the State, and derive from it the permanent advantages of civil society. Such foreigners, therefore, are bound, it should seem, to contribute to the maintenance of civil society, in the same manner as if they were citi. zens. It would follow that the property of such must be held subject to the Right of Emivent Domain.

But it is otherwise with those foreigners who are only temporary inhabitants of a country, and who do not make it a place of per ma. nent residence. These are citizens and residents of a foreign State, and subject elsewhere to the duties appertaining to citizenship. If they chance to find themselves temporarily under a foreign jurisdiction, and avail themselves of its protection for occa. sional purposes, yet they are not indebted to it for the general benefits of political society. They derive these from their own State, to which, and not to another, their allegiance is due, as well as all those duties which a citizen owes to the State, by way of contributing to the general support and maintenance of govern

1 Piscat. Br. v. N. H. Br., 7 N. H. 35 ; Puff. b.8, ch. 5, 8. VII.

2 2 Kent, 339, n; Piscat. Br. v. N. H. Br., 7 N. H. 35; Backus v. Lebanon, 11 N. H. 19; Tpk. Co. v. R. R. Co., 21 Verm. 590; Wat. Pow. Co. v. R R. Co., 23 Pick. 360 ; Prov. Bk. v. Billings, 4 Pet. 562 ; Grot. lib. 2, c. 14, s. 7 ; Ibid. lib. 3, c. 19, s. 7.

3 Vattel, b. 1, ch. 19, s 213; Ibid. b. 2, ch. 8, s 99.

4 Story, in his Confl. Laws, s. 541, cites Huberus, as laying down in his second axiom that, “all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof”; and in this connection Story remarks, that the extent to which the right of legislating over foreigners should be exercised, is matter purely of municipal arrangernent and policy. And so in s. 29 ; and again in 8. 31, when he says that the second axiom of Huberus will, in the present day, scarcely be disputed by any one. We humbly conceive, however, that there is room for the distinction above indicated.

6 Vattel, lib. 2, c. 8, ss. 106 & 109; Heinecc. Jus. Nat. lib. 2, c. 8, s. 173.

ment, — such as serving in the militia, paying taxes, and yielding up property to promote the general ends of government in response to the Right of Eminent Domain. The duty of preserving good order, and that of assisting the Government in case of imminent peril, may, nevertheless, be due to the State in which one is at any time a resident. For it must be admitted on all hands that every State should exact from foreigners an obedience to those laws that are essential to preserve order and harmony in the State. And also in cases of actual State necessity, no good reason appears why a foreigner should not be compelled to yield to the Right of Eminent Domain. Such cases furnish their own law, which justifies itself.

It may be said that foreigners temporarily inhabiting a country enjoy the protection of the State, and therefore should contribute to its support. But it is enough to say in reply, that such protection is accorded, or should be, in comity and by way of courtesy, and therefore it does not draw along with it the general duties of citizenship.

It is to be observed in addition that every State must have the right to say how long a temporary inhabitant may remain entitled to the exemptions indicated above, as belonging to such a person, and at what time the general obligations of citizenship shall devolve upon him.

(4.) In the American Union, the several States are not strictly independent, their sovereignty being limited by the powers conferred upon the General Government. That government, being supreme, within its limited range, has a Right of Eminent Domain, commensurate with all the exigencies that may arise in the due administration of its powers.3 It might, e. g., assume lands, if necessary for the establishment of post roads ; 4 and the discretion of Congress could not be brought in question by the several States; its power must run freely and unimpeded, through all parts of the country, while in the constitutional pursuit of national ends. Nor can it well be doubted as a dry question of legal power, that the Federal Government, in the exercise of its Right of Eminent Domain, might even take lands in any State, already and at the time appropriated to public use by that State. It would be another question how far an exercise of such power might in any case be expedient, or really promotive of the general welfare.

On the other hand, it would follow, from the supremacy of the Federal Government, that the Right of Eminent Domain belonging to the several States of the Union is abridged. This appears in part, from the express terms of the Federal Constitution, which provides that the National Government shall be vested with exclu

1 Vattel, b. 2, c. 8, s. 106.
2 Vattel, b. 2, c. 8, s. 101.
3 Vattel, lib. 1, c. 20, s. 244.
* Dickey v. Tpk. Co., 7 Dana, 113.
McCulloch v. Maryland, 4 Wheat. 429.

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