Page images

State. This can only be true in the sense that all property is held under the laws of the State ; and accordingly, that all conditions and limitations or restraints annexed to property by the law, or necessarily implied in the existence and acknowledgment of the law, must stand as indicating the rights appertaining to property. But beyond this, everything is determined by the law of nature. Where then shall we find room for such a condition as this to be affixed to property, viz. that on the occurrence of a public exigency demanding it, it shall, ipso facto, leave the citizen and vest in the State ? Such a condition is neither necessary, nor natural, nor in harmony with the received ideas of property.

(2.) And again, the necessity of making compensation when pri. vate property is taken, seems to be at war with this idea. For if the property, on the happening of a public exigency, is, ipso facto, the government's, why make any compensation ?

(3.) But if it be said that the right of property is a contingent one in the intervals of the public exigencies, and become absolute when those exigencies occur, then we reply, that the idea is too artificial; it is complicated, difficult, fruitless, and unnecessary.

2. Having seen what the Right of Eminent Domain is not, we come now to consider what it is.

The Right of Eminent Domain is that attribute of sovereignty by which the State may take, appropriate, or devest private property whenever the public exigences demand it; or, according to the usual definition, it is the right of taking private property for public purposes. And to this right the obligation always attaches, of making just compensation for the property taken.2

The peculiar features of this right are :

(1.) That it authorizes the taking of some specific article of property for which there can be no composition or sufficient substitute ; and

(2.) That it has annexed to it, as an inseparable incident, the obligation of making just compensation.3

By our definition, it is the right of taking, appropriating, or devesting property ; 4 and so is distinguished, on the one hand, from a right of property, and on the other, from mere right of regulating the use of property:

It can only be exercised where some specific subject matter of property is required, for which there can be no sufficient substitute ; and herein it is distinguished from the right of taxation. Thus, if the State takes a piece of land for a public building, in virtue of the Right of Eminent Domain, it is for a building which must stand

1 West. Riv. Br. Co. v. Dix, 6 How. 532; 2 Pars. Cont. 519.

2 Grot. De Jure B et P. lib. 1,6.1, s. 6; Ibid. lib. 3, c. 19, s. 7; Puff. lib. 8, c. 5, s. 7; Heinecc. lib. 2, c. 8, s. 168; Seneca de Benef. VII. 4 (cited in Heinecc.); Bloodgrod v. R. R. Co., 18 Wend. 9.

3 Grut. de Jure B. et P. lib. 3, c. 19, s. 7 ; Ibid. lib. 3, c. 20, s. 7; Vattel, b. 1, ch. 20), s. 245 ; 2 Kent, 339, and n.; i Blackst. 139.

4 Grot. lib. 3, c. 20, s. 7. 1.

on that particular spot; or if for a highway, it is for one which must run over that particular land; or for an aqueduct, it is for one which can take no other course than over the land in question. In all these cases money will not serve as a substitute ; the public necessities call for specific pieces of property. Again, the right is distinguished from that of taxation, in that the property taken under it is taken without any reference to collecting the owner's share of the common public expenses ; and also in this, that it operates upon individual parties, while the right of taxation deals with the whole community, or with a special class of persons in the community, on some rule of apportioriment;' and finally, when the Right of Eminent Domain is exercised, compensation must be made to the private party with whom the State is dealing, wherein this right is distinguished from the right of taxation, and from all other rights of sovereignty. Here the sovereign touches the limit of his power, and confesses a higher authority in owning a natural right of property and its supreme obligations. What is taken under this right, is regarded as so much above or aside from the owner's share of the common expenses ;3 and since it is mani. festly unjust that he should be compelled to contribute more than the other members of the community, he must be reimbursed from that common fund to which all contribute, himself as well as the rest.4

3. From what has now been said, it is apparent that private property cannot be taken at all times, nor at any and every time when the sovereign may choose. The question comes, therefore, when can it be taken ?

And we reply, private property may be taken by the State whenever a public exigency requires it..

But what is to be deemed a public exigency? We shall take up the discussion of this question under another head of our subject; it will be enough for the present purpose to indicate by whom this question is to be decided, without entering upon the principles which should govern the decision.

With whom, then, does the decision of this question lie?

If we suppose the Right of Eminent Domain to remain with the State, it is impossible to place it elsewhere than in the discretion of that body ; the State itself must decide, as the final and only judge.

And when the rights of the State are awarded to the representatives and agents of this sovereign body, it may put such limitations upon the exercise of them as may seem good. In the par

1 People v. Mayor of Brooklyn, 4 Comst. 423 ; R. R. Co. v. Com’rs, 1 Oh. St 77.

2 See Note (?) on p. 247. 3 Grot. lib. 3, c. 20, s. 7, n.; Puff. lib. 8, c. 4, s. 7. 4 Grot. lib. 3, c. 20, s. 7, n. 5 Grot. lib. 3, c. 19, s. 7. 6 Grot. lib. 3, c. 19, s. 7; Puff. lib. 8, c. 5, s. 7.

ticular under consideration, it may specify what shall or shall not be deemed a public exigency; or it may give to one body of officers the exercise of the Right of Eminent Domain, and to another the decision of the question in hand ; but if no such limitation or division of powers be indicated, and this right be delegated to a certain body of officers, that body must be holden to be the full representatives of the sovereign on this head, and to have the same power of deciding when the right may justly be exercised.

In strictly constitutional governments, however, inasmuch as the legislature, being the body which holds the Right of Eminent Domain, is not at the same time entrusted with the full powers of sovereignty, it must limit all its action by the boundaries set up in the constitution ; and it falls to the judiciary to declare all legislative acts void that come in conflict with that instrument, or overstep the limits which it assigns to the legislative branch. Therefore, just as the judiciary in such governments may declare a legislative act void as being of a judicial character, on the same principles (it would seem) it may declare such an act void, as attempting to appropriate private property, or to transfer it from one private party to another, under cover of a public exigency, which clearly has no existence.?

If, however, there be a public exigency, or if there be room to say that any public advantage is to be gained by the appropriation of private property, or its transfer from one individual to another, then it would seem that the discretion of the legislature could not be controlled (in the absence of constitutional provision) by any power short of the supreme power of the sovereign. For the judiciary may not substitute their discretion for that of the legislature, nor exercise it at all in a matter entrusted to the sole discretion of another department.3

With these explanations, then, it must be concluded that in the United States it is the exclusive province of the legislature to say when a public exigency has arisen ;4 and so to summon the imperial Right of Eminent Domain out from that body of sovereign power, where at other times it exists, indeed, but slumbers, into light and life.

4. It remains under the present general head of our subject, to take some particular notice of that remarkable feature of it by which the State is obliged to make compensation for the property taken.

! Lindsay v. Com’rs, 2 Bay, 38 ; R. R. Co. v. Davis, 2 D. & B. 451.

? 2 Kent's Com. 340 ; Varick v. Smith, 5 Paige, 137 ; Beekman v. R. R. Co., 3 Paige, 45; Hoke v Henderson, 4 Dev. 1 ; Bennett v. Boggs, 1 Baldw. C. C. 60; Wilkinson v. Leland, 2 Pel 627.

3 Armington v. Burnet, 15 Verm. 745 ; Cochran v. Van Gorlay, 20 Wend. 365 ; Can. Co. v. R. R Co., 4 Gill & J. I; Hoke v. Henderson, 4 Dev. l; R. R. Co v. Davis, 2 D. & B. 451.

4 2 Kent's Com. 310; Beekman v. R R. Co., 3 Paige. 45; Hartwell v. Armstrong, 19 Barb. 166 ; Mill Dam Co. v. Codman, 12 Pick. 467 ; 7 Greenl. 273; Rawle on Const. 133.


The property which is taken in virtue of this right, is something, as has been said before, above or aside from the owner's regular share in the common expenses ; that owner, like all others in the State, must be supposed to have consented to the legitimate exercise of that right which takes his property to satisfy a public exigency;' for this is rightful and necessary: but no man can be supposed to have agreed to bear more than his share of the common burdens; 2 there is no principle upon which such an unequal distribution could be based ; and therefore, if a man's property be taken by the State, he is entitled to have this, his excessive contribution, made up to him by compensation.

So far, however, as the property taken away may have a special value to the owner, a value which it could have to no other person, one resting in sentiment and idea peculiar to him, a value inestimable in the market, and incapable of measurement by pecuniary compensation, to this extent, and in this sense, an individual may fairly be obliged to contribute more to the public advantages than his fellow-citizens. But this inequality comes from the necessity of the case ; the excess in the contribution in such a case cannot, by the very statement of the matter, be made up to the owner. 4

It may be said, and it is true, that the mere fact of inequality or excess in one's proportion of the public burdens, may not of itself give a good claim for compensation ; for the inequality may correct itself, or it may be trifling, or, as we have just seen, it may be necessary.

(1.) But if compensation be omitted when the Right of Eminent Domain is exercised, it involves an inequality which will not cure itself. For this right is not one which visits itself sooner or later upon every member of the community ; it is exercised rarely, and operates capriciously, and that must be a very large cycle of years indeed that would equalize the burdens it would impose, if compensation were to be withheld.

(2.) And again, such burdens would not be of a trifling character, but would fall with disastrous weight upon their victims. Such an exercise of this right would take away property which constituted an essential portion of an individual's support, and leave nothing in its place; and not infrequently it might strip him of the main part of his property, and leave him on a sudden destitute. Thus the reasonable expectations of property-holders would be disappointed ; and the State would be doing itself the worst service in the world by impoverishing its own citizens.

(3.) And finally, and above all, while such results would flow from a denial of compensation, there is no necessity for it. There is a necessity for the taking, but none for taking without compen

1 Grot. lib 3, c. 20, s. 8.
2 Heinecc. El Jur. et Nat. lib. 2, s. 25 ; Puff. lib. 8, c. 5, s. 7.
3 la matter of Furman St., 17 Wend. 669.
4 Bonuparte v. C. f. A. R. R. Co., 1 Baldw. 231.

sation, or without a just compensation, and such as shall put the party affected, so far as may be, on a level with the rest of the community.

Here, then, are the reasons of the obligation that rests upon the State to make compensation : it is not necessary to take without compensation ; it would be unequal; and it would work disaster to the citizen, and a violation of the rights of property.

But while this obligation is thus well-established and clear, let it be particularly noticed upon what ground it stands, viz. upon the natural rights of the individual.1

On the other hand, the right of the State to take springs from a different source, viz. a necessity of government.2

These two, therefore, have not the same origin ; they do not come, for instance, from any implied contract between the State and the individual, that the former shall have the property, if it will make compensation : 3 our right is no mere right of preëmption, and it has no condition of compensation annexed to it, either precedent or subsequent. But there is a right to take, and, attached to it as an incident, an obligation to make compensation ; this latter follows the other, indeed, like a shadow, but it is yet distinct from it, and flows from another source.4

See, then, the consequences. If the State appropriate private property to satisfy a public exigency, and fail to make or provide for compensation, has it therefore exercised its power wrongfully? It would seem not: for if a public exigency exist, requiring the property, and it be appropriated accordingly, that, as we have seen, is legitimate; so far all is right, and the citizen cannot complain; and if the sovereign do not make recompense, then he sails indeed in his duty to the individual ; but for all that, he does no more than his duty to the community in taking the property. And therefore the individual cannot demand his property back, although the State should never pay him. He has an eternal claim indeed against the State, which can never be blotted out except only by satisfaction ; but this claim is for compensation, and not for his former property.5

Therefore, in the absence of constitutional provisions affecting the question, it would follow that a loss of property from an exercise of the Right of Eminent Domain, which is fair in all respects other than in making or providing for compensation, must be regarded by the courts as damnum absque injuria. Every court must hold the assumption of private property to satisfy a public exigency to be just and proper, and an exercise of clear legislative power..

· Grot. lib. 3, c. 20, s. 8; Ibid. lib. 3, c. 19, s. 7; Vattel, lib. 1, c. 20, s. 245. 2 Heinecc. lib. 2, c. 8, s. 168 ; Puff. lib. 8. 3 Hampton v. Com’rs, 19 Pa. 329.

Bonaparte v. C. f A. R. R. Co., 1 Baldw. C. C. 205 ; Symonds v. Cincinnati, 14 Oh. 147.

Grot. lib. 3, c. 20, s. 7. 2. 6 Bonaparte v. C. & A. R. R. Co., 1 Baldw. C. C. 205 ; Symonds v. Cincinnati, 14 Oh. 147.

« PreviousContinue »