CHAPTER XVI. THE RIGHT OF EMINENT DOMAIN. 168. Definition and Nature of the Power. 170. By Whom the Power is Exercised. 176. What Property may be Taken. 179. Consequential Injuries. 180. Compensation. DEFINITION AND NATURE OF THE POWER. 168. The right of eminent domain is the right of the nation or the state, or of those to whom the power has been lawfully delegated, to_condemn private property to public use, and to appropriate the ownership and possession of such property for such use, upon paying to the owner a due compensation, to be ascertained according to law. For exam There has been a certain ambiguity in the use of the term “eminent domain" in consequence of a confusion between the power and jurisdiction which the state exercises over the public property, and the right and power of the state to assume the ownership of that which before was private property. There is a lawful authority in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common. ple, in regard to the public waters of the state, it is the prerogative of the state to define and regulate the right of fishing in such waters. So also, unless grants to private persons interfere, the state is the owner of the tide-lands, or sea-shore, along its water front, and it may regulate the use of such lands, to the limits of its territorial jurisdiction, by prescribing the terms and conditions on which wharves, piers, and other structures may be maintained.1 So again, the state is the paramount owner of the public parks, reservations, the state buildings, and other such public property. But it is not an accurate use of language to apply the term "eminent domain" to such property as is owned directly by the government and which has not yet passed into any private ownership. Such property is more correctly described as the "national domain" or the "public domain," as the case may be, and the power of the nation or of the state over it is best designated as "territorial sovereignty." The word "eminent," in this connection, implies a power or title which is paramount to some other power or title. It implies that the land is held in private ownership, but that there exists in the state a higher claim, namely, the right to divest that ownership and vest the title in the state, when the public exigencies demand it, and upon making just compensation. The right of eminent domain is therefore a survival of the common-law notion that the ultimate title to all lands was vested in the sovereign. It is true that in this country all tenures are now allodial. And the eminent domain does not give to the state a title to private land in any sense which would interfere with the free disposition of it at the owner's pleas ure. But as all lands are supposed to be held, mediately or immediately, from the state, this power implies the right of the state, on given conditions, to resume the title supposed to have been granted by it. These conditions are, first, that it shall be for a public purpose, and, second, that just compensation shall be made. It will thus be perceived that the true idea of the power of eminent domain is that it is a right in the government, acting in the inter est of the whole public, to force the owner of property to sell the same to the public, from whom his title originally came, and sub ject to whose needs it is always held. (It also follows that this power is an inherent and necessary power of sovereignty, and is not created by the constitutions.) In fact, the constitutions merely recognize its existence and then proceed to guard the citizen against its arbitrary or unjust exercise, by providing that it may not be wielded except for the benefit of the public and that compensation shall not be withheld. 1 Webber v. Harbor Commissioners, 18 Wall. 57; Pollard v. Hagan, 3 How. The power of eminent domain, being an inherent attribute of sovereignty and a necessary power of the state, the preservation of which, unimpaired and unfettered, is essential to the growth and welfare of the community, is inalienable. That is to say, no legislature can have power, by any grant or contract, to surrender or bargain away the power of eminent domain so as to bind the state, in the future, to refrain from its exercise when a proper and necessary occasion shall arise.2 That this power is to be distinguished from the power of taxation has been explained in the chapter dealing with the latter power. In paying taxes, the citizen contributes his just and ascertained share to the expenses of the government under which he lives. But when his property is taken under the power of eminent domain, he is compelled to surrender to the public something over and above his due proportion, for the public benefit, and for which he receives a direct pecuniary compensation. This power is also to be distinguished from the power to regulate the use of private property, to the end that such use shall not be detrimental to the public safety, health, or morals. Regulation of this kind and for this purpose is justified as an exercise of the police power, but it does not amount to an expropriation of the property or a divesting of the title. The constitutional prohibition against depriving any person of his property "without due process of law" may also have some relation to the exercise of the power of eminent domain, at least so far as to require legal and orderly proceedings for its exercise, and perhaps to render necessary a judicial hearing on the question of damages. But in general, these matters are adequately provided for by the guaranties of just compensation and jury trial which accompany the constitutional recognition of the power. CONSTITUTIONAL PROVISIONS. 169. In the fifth amendment to the federal constitution it is declared that private property shall not be taken for public use without just compensation. And the constitutions of all the states contain similar guaranties against 2 Hyde Park v. Oakwoods Cemetery Ass'n, 119 Ill. 141, 7 N. E. 627. the arbitrary or unrecompensed expropriation of private property. The provisions of the fifth amendment were intended only as a limitation upon the powers of the general government, and do not affect the several states. But all the states have been careful to incorporate in their constitutions such provisions as would suffice to extend a similar protection to private property against the exertion of their own sovereign powers. In some of the states, the guaranty is in the same words as are employed in the federal consti In others, it is somewhat more comprehensive, declaring that no man's property shall be taken, damaged, or destroyed for public use without just compensation being made. In many of the states, the compensation for property so taken must be determined by a jury, and in the same and some other states, the compensation must be paid to the private owner before the taking. BY WHOM THE POWER IS EXERCISED. 170. The power of eminent domain, being an attribute of sovereignty, belongs primarily to every government as such. It is vested in (a) The government of the United States, so far as may be necessary for the proper performance of its duties and functions. (b) The government of each of the states. (c) Municipal corporations, when delegated to them by The United States. Within its own sphere, and with reference to its own constitu tional duties and functions, the government of the United States is sovereign, and therefore must possess the power of eminent domain, as well as all other sovereign powers. Whenever it may be necessary to appropriate private property for the carrying on of any of the proper undertakings or offices of the general govern ment, that government may exercise its power of eminent domain, as well within the limits of a state as in the districts subject to its exclusive jurisdiction, and the consent or co-operation of the state is not required. For instance, the federal authorities may proceed directly, by their own officers and courts, and without the intervention of the state, to condemn and appropriate private prop erty, anywhere situated, for post-offices, court-houses, forts, arsenals, light-houses, or military roads. Municipal Corporations. It is entirely proper, and in accordance with the principles of the constitution, that municipal corporations should be authorized to exercise the power of eminent domain for the benefit of their own restricted "public," and in furtherance of the objects for which a share of government is committed to them. In the exercise of this power, just as in the case of taxation, a use may be local and yet public. That is, it may be public, in a proper sense, although it does not directly concern the entire population of the state, if it does concern the entire population of a district or division of the state. Hence cities, towns, counties, school districts, and other municipal corporations may be authorized to appropriate private property for such uses as streets, parks, public buildings, school houses, water works, and the like. Private Corporations. Moreover, the right to exercise this power may be delegated by the legislature to private corporations which, although their business is pursued for purposes of gain, yet stand in such a relation to the public that they may be considered as promoting the public convenience, or discharging a public office or duty, or carrying on works which are of general public utility. Such are railroad companies, bridge and turnpike corporations, and irrigation companies. LEGISLATIVE AUTHORITY NECESSARY. 171. The power of eminent domain can be exercised only in pursuance of legislative authority, and on the occasions and in the modes designated by the legislature. Kohl v. U. S., 91 U. S. 367; Darlington v. U. S., 82 Pa. St. 382; Trombley v. Humphrey, 23 Mich. 471. BL.CONST.L.-26 |