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or appropriation of private property is no technical term; and consequently, if the State, with forethought and intention, deprive a man of the whole value of his property or of any estate or interest in it, with a view to secure the public good, there arises a right to compensation. The man is in the same case as if the State had formally taken his property ; it is a matter of indifference how the State deprives him of it, whether directly or indi. rectly; the point is, that the State, in the exercise of its Right of Eminent Domain has, in effect and intentionally, devested him of his property,1 This would happen, e.g., (in the case already once referred to,) where a State, after granting the right to build and maintain a toll bridge, should, afterwards, while this charter was still good, set up a free bridge so near as to draw substantially all the custom away from the first one, and to render that franchise worthless ; in such a case, the right to take tolls, which is a franchise, and so property, would be substantially and intentionally taken for public purposes.

Nor is such a view at variance with the celebrated and well-supported case of The Charles River Bridge v. The Warren Bridge.? The main question in that case arose upon a legislative grant to the defendants, in 1828, of the privilege of building and maintaining a toll bridge, within a few rods of the plaintiffs' toll bridge, with a provision that, in six years, it was to become free. The plaintiff's held their franchise under a prior charter granted in 1785, to continue forty years, and this period had subsequently been extended to seventy years; this charter had not been forfeited, and was good, therefore, at the time of incorporating the second company, for nearly thirty years. The whole main question before the court arose under the Federal Constitution, and was simply this : viz. whether this second charter impaired the obligation of any contract in the first. And it was held that it did not, since the State of Massachusetts had not entered into any contract, that it would not exercise its sovereign power of providing convenient ways for its citizens ; and since the franchise of the plaintiffs had been destroyed, if at all, in the due and natural exercise of this soyereign power.

But here is no decision that such a destruction of a franchise, as we have referred to, would not constitute a taking, and would not, as such, entitle to compensation ; nor yet that the actual result of the charter granted to the Warren Bridge was not such a destruction of the franchise. On the contrary, the argument of the defendants who gained the case, put it expressly upon the ground, that there had been a taking under the Right of Eminent Domain ; 3 one of the judges who went with the majority expressly admitted it ;4 and the opinion of the court is put upon grounds independent of this question. | 12 Kent, 339, n.

3. Greenleaf arg., in 11 Pet. 420. 2 11 Pet. 420.

* McLean, J., in 11 Pet. 420.

It seems to be the true doctrine, in reference to such cases, that when property is taken by a State without compensation, in the exercise of the Right of Eminent Domain, although this may be a violation of the State Constitution, it is not of the Federal Constitution ;l and therefore it is a matter for the consideration of the State court, and not for the tribunals of the Union.2

(2.) Supposing the State were to take land for the purpose of a turnpike road, and to pay the owner of it the value of a perpetual easement, and subsequently were to appropriate the same land to the purposes of a free highway, taking the franchise of the turnpike corporation by the Right of Eminent Domain, - would there be, therefore, a fresh taking from the owners of the fee in the land ? It is true that the land might some time have been dis. charged from the easement, if it had not been appropriated to the highway, in case the corporation had failed in performing the conditions of its charter. But yet the land owner cannot complain or demand new compensation, since the State, in such a case, only continues the appropriation of his land to the same public purpose, (to wit, that of a public highway,) to which it was originally devoted, and he has been paid for a perpetual easement. So long as the State continues its appropriation to the purpose of a public highway, there is no new taking; and therefore it might not only make the turnpike a free road, but it might authorize its use for a railroad, and yet the owner not be entitled to compensation, as for a fresh taking of his property.4 The change might be exceedingly inconvenient, and might justly entitle the owner to compensation, but the claim would not arise under the Right of Eminent Domain.

But it is to be observed in all such cases, that if the easement be once abandoned, and the property in it revert to the owner of the fee, then it is sacred, and the public cannot touch it, except on a new and formal appropriation.

So also, on the same principles, the State can apply property already devoted to public uses, to any use of a similar character to that originally contemplated, while the original use still remains, and there will be no taking of a new estate in it; e. g., it may authorize the construction and running of a railroad through the street of a city, and there will be no new taking from the original owners,5 on the grounds given above. Nor, supposing the city corporation to hold the fee, is there any taking of property from

1 Ch. R. Br. v. Warren Br., 11 Pet. 420; Can. Co. v. R. R. Co., 11 Leigh, 42; 2 Greenl. Cr. Tit. 275, s. 29, n.; Tpk. Co. v. Lyme, 18 Conn. 451. 22 Greenl. Cr. Tit. 27, s. 29, n.; McLean, J., in 11 Pet. 420. 3 Pierce v. Somersworth, 10 N. H. 369.

4 Chase v. Manuf. Co., 4 Cush. 152; Williams v. R. R. Co., 18 Barb. 222; Case of Ph. & Tr. R. R. Co., 6 Whart. 25; Pierce y. Somersworth, 10 N. H.

5 Donnahoe v. Slate, 8 Sm. & M. 649; Lex. of Oh. R. R. Co. v. Applegate, 8 Dana, 289.

369.

it ; 1 since, whatever interest it may hold besides, and in whatever character, it always holds an easement for the purpose of a public highway, in the capacity of trustee for the State ; and its power over that is limited to the making of police regulations.2

(3.) An interesting question involving this part of our subject, arose in the courts of New York and New Jersey, after the great fire in New York city, of 1835.3 In order to arrest the conflagration, the city authorities had destroyed certain buildings which contained large amounts of property at the time, partly belonging to the owners of the building and partly to other persons. This had been done by virtue of an act of the legislature, empowering the mayor and any two aldermen, or any three aldermen, without the mayor, in case of fire, to destroy such buildings as they judged necessary to the end of checking the progress of the fire. Compensation was directed to be made to the owners of the buildings; and this provision was extended by judicial construction to cover the loss of what was destroyed in the buildings, as well as that of the buildings themselves.4

But the owners of property destroyed in certain buildings, who were not owners of the edifices themselves, advanced a claim 5 in the courts of New York, in an action of assumpsit, on the ground that their property had been taken by the Right of Eminent Domain, and that the constitution of that State entitled them to compensation. It was holden, (to say nothing of other points in the decision,) that this was not a case of taking under the Right of Eminent Domain, and that the statute was only a regulation of that right of necessity which belongs to every individual in such emergencies, by the common law; that it contemplated a state of things in which any person might have destroyed the property and been justified ; but, instead of leaving the necessity of such a course to be established by subsequent proof, it put the decision of that question into the breasts of certain officers, judging and determining on the spot. The compensation provided for the owners of the buildings, was regarded by the court as just and proper, but still as something which could not have been enforced by the judiciary, if the legislature had made no provision.

A similar opinion was given, on an action of trespass against the mayor and aldermen of New York, in the Supreme Court of New Jersey; but it was subsequently overruled 6 by a higher court, where it was holden, that the statute of New York was passed in the exercise of the Right of Eminent Domain ; that it was not

i Case of Phil. f. Tr. R. R. Co., 6 Whart. 25; 8 Sm. & M. 649, Thatcher, J.; R. R. Co. v. Applegate, 8 Dana, 289.

2 Case of Phil. & Tr. R. R. Co., 6 Whart. 25.

3 Russell v. Mayor of N. York, 2 Denio, 461; Hale v. Lawrence, 1 N.J. 714; Print Works v. Lawrence, Hale v. Lawrence, 3 ib. 590.

4 Stat. N. Y. cited in 2 Denio, 461.
5 Russell v. Mayor of N. York, 2 Denio, 461.
6 Hale v. Lawrence, 1 N. J. 714.

a regulation of the common law right of necessity, and that where the right of necessity could be held to exist and to justify, the necessity must be expressly proved. Although the same case came up again! before the same court, and on a new state of the pleadings was differently decided, yet the court seems to have remained of the same opinion on the principle, as above stated.

Of these two opinions, it would seem that the one delivered in New York must be regarded as the more sound. It is difficult and a straining of language, to call such a destruction of property, an appropriation of it, under the Right of Eminent Domain. The statute in question regards the property, for whose destruction it provides, as already doomed ; and, in order to save other property, which otherwise must also be consumed, it directs certain officers to anticipate the action of the flames by destroying the first. Here is precisely a case of necessity. The public is benefitted by the destruction of a private person's property; and so, in some sense, the property is destroyed to produce a public benefit; but yet this occasions no loss to the owner which he would not have suffered otherwise. His property has been destroyed, indeed, by the order of the State, but if it had not been so destroyed, it would have been consumed by the fire ; and the State has ordered its destruction only for a reason involving this fact. The private party stands just where he would have stood if the public officer had not lifted a finger, unaffected by their action, no better off, no worse. If this be an appropriation of property to public purposes, it is one that might be made by any private party, on the common law right of necessity.3 But an appropriation under the Right of Eminent Domain can only be had by the order and authority of the State.4

At the common law, it is true, the necessity under which it is attempted to justify must be proved; this is necessary in order to guard against improvidence, recklessness, or cvil design on the part of those setting up this plea — and it can have no other object. The manner of proving it can only be by the testimony of a proper number of discreet persons, with sufficient knowledge of the state of things at the time of the destruction of the property.

What hinders, then, to appoint a body of just and discreet men, such as " the mayor and two aldermen, or any three aldermen” of the city of New York must be supposed, as matter of law, to be, with the power of deciding conclusively upon the existence of such a necessity as to justify the destruction of property? Does not such a provision answer the ends of the proofs ordinarily required to establish a necessity ?

1 Hale v. Lawrence, 3 N. J. 590. 2 13 Barb. 32.

3 12 Co. 13 ; 4 T. R. 797 ; Taylor v. Plymouth, 8 Meto. 462; Surocco v. Geary, 3 Cal. 69.

* Grot. lib. 3, c. 20, s. 7, n.

It is true that the statute of New York did not, in terms, require the officers named in it to decide the destruction absolutely neces. sary; but that is unimportant. The state of things contemplated, was the existence of a fire, and the necessity of destroying property in order to check it. The decision, as to the existence of that necessity, was lodged with a board of responsible officers; and in order to prevent any unadvised action on their part, it was wisely provided that the owners of buildings destroyed, should be reimbursed by the city. But those owners would have had no claim to compensation as a matter of strict justice. Such a claim against the parties whose property had been saved or who had been benefitted, might appeal with much cogency to their gratitude, but could have little force as directed to their sense of justice, — whether those parties were to be regarded as being either the more immediate neighbors of those whose property was destroyed, or the whole city?

(4.) The violation of what is called “a contract of restraint” is not a taking of property.3 By a contract of restraint, we mean an agreement that the legislature or the State shall forbear to do a certain thing. There may be a contract apparently partaking of this character, but so worded that it can be construed as a grant of exclusive privileges, 4 and in such a case it may be impossible to violate the contract without taking property. But a mere agreement of restraint, cannot, as we conceive, be so construed. It does not confer, or profess to confer, any property. Such an agreement only undertakes to bind the action of the legislature or of the State ; and, although it may increase the value of property, it is in this respect on a par with much ordinary legislation. To violate such an agreement may or may not be open to objection on other scores, but it cannot, in any just sense, be regarded as a taking of property under the Right of Eminent Domain.

We come now to the subject,

4. Of Compensation. And under this head four principal questions present themselves, viz.: (1.) When should compensation be made? (2.) In what form should it be made ? (3.) What should be the measure of it ? (4.) How should it be ascertained ?

(1.) As to the time when compensation should be made. If the individual whose property is taken, is entitled to compen. sation for any part, he is, by the same reason, entitled to compensation for the whole; and in estimating it, the time when the

| 13 Barb. 32.

2 In this connection we may refer to that principle of the law of shipping, by which “if a vessel be run ashore, voluntarily to save life, and is lost, and would unavoidably have been lost without the act, it is not a case for contribution or general average, for nothing was saved and no property sacrificed to save property." 3 Kent, 239, (n.) c.

3 Ř. Ř. Co. v. R. R. Co., 2 Gray, 25, Parker, arguendo. 4 See infra, iv. 4.

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