§ 471.

CHAPTER XXX.

APPROPRIATION UNDER EMINENT DOMAIN.

The power to appropriate.

472. Rights subject to appropriation.

473. Mode of appropriation.

474. Time of passing of title.

Under its power of eminent domain the state may appropriate private property, including land, or particular interests therein, for public use, upon payment of just compensation. The power may be exercised by the state or any corporation or person to whom it delegates the power.

The title to the land appropriated does not usually pass till payment of the compensation therefor, but the statute may provide that it shall do so, in the absence of any explicit constitutional prohibition.

1.471. The power to appropriate.

The power of the state to appropriate property for public use, upon payment of just compensation, may be exercised directly by the state itself, or the state may, in the exercise of the power, select particular agencies, either natural persons or corporations, on whom it confers the right to take private property for public use. Thus, the legislature may, and ordinarily does, authorize municipal corporations to appropriate or "condemn" land for street and other municipal purposes, and so it may authorize a railroad or irrigation company, or other private corporation, to appropriate property for its use, upon payment of just compensation, provided only the use for which it is appropriated is of a public character. This grant by the legislature of the right to ex

ercise the power is frequently by means of a general statute operating in favor of the corporations of a particular class which may desire to exercise the right.1

The result of the exercise of the power in connection with land is to transfer to the state, or to the corporate body to which the power is delegated by the state, all or some of the rights in particular land previously vested in a particular individual, or in a number of individuals.

$ 472. Rights subject to appropriation.

There may be an appropriation of the rights of ownership in a particular piece of land, the entire interest of the former owner thus passing to the appropriator, or a right merely to use the land for the particular public purpose may be acquired. Whether there is an appropriation of the ownership of the land is usually a question of the construction of the statute under which the land is condemned, in connection with any constitutional restrictions upon the power. In the case of a taking by a private corporation there is usually a presumption that the ownership, or, as it is ordinarily expressed, the "fee," does not pass, and, unless the statute explicitly authorizes the taking of a fee, or this is necessary for the particular use, it is usually considered that a right of user only is taken by even a public corporation.2 Accordingly a railroad company ordinarily acquires by condemnation merely an easement in the land, and, in the case of land taken for highway purposes, the public frequently acquires merely the right to use the land for such purposes.

The rights of the owner of land may be infringed, not by the actual taking of the land for a particular public purpose, but by the fact that the utilization of neighboring land

1 Randolph, Eminent Domain, §§ 102-106; 1 Lewis, Eminent Domain, § 243.

2 Randolph, Eminent Domain, § 205; 1 Lewis, Eminent Domain, $278.

for such a purpose results in the forcing of water upon the former land, or the casting thereon of stone, earth, or sewerage, thus interfering with the owner's rights of user in the land, and to that extent appropriating his rights in the land. The taking for public use may also involve, not a physical invasion of the land itself, but merely the divesting of some of the natural rights incident to the ownership of land. So, one may be divested of rights as to the flow of a natural watercourse, of access to water, or of rights with respect to percolating and surface water. Likewise, one may be deprived of his natural right to freedom from dust, smoke, noise, and the like. The cases are in very considerable conflict as to the right to compensation for consequential injuries to land, arising from the invasion of the natural rights of freedom from dust, noise, or noxious odors.*

One may, moreover, be deprived, by the physical appropriation of another person's land, of an easement which he enjoys in such land."

The fact that one's land abuts on a highway or street is quite generally considered to give him certain rights of light, air, and access, interference with which entitles him to compensation as for the taking of property. Rights of this character, as the subject of compensation, have been before considered, as has the question of the extent to which the previous appropriation or dedication of land for a highway authorizes its use, without further compensation, for particular purposes, on the ground that such purposes are of a "highway" character.

Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. (U. S.) 166; Eaton v. Boston, C. & M. R. Co., 51 N. H. 504, Finch's Cas. 1. Randolph, Eminent Domain, § 152; 1 Lewis, Eminent Domain,

§ 151a.

5 Arnold v. Hudson River R. Co., 55 N. Y. 661; Ladd v. City of Boston, 151 Mass. 585; 1 Lewis, Eminent Domain, § 144.

Ante, 865.

473. Mode of appropriation.

The statutes usually contain explicit provisions as to the constitution of the tribunals which are to decide the amount of compensation to be paid for the property taken. Such a tribunal may, in the absence of any statutory requirement to the contrary, be composed of a jury of less than twelve men, or of a board of commissioners.

The petition for the condemnation should show the public character of the use, and the necessity of taking the particular land, and this latter must be accurately described. Notice to the owner is necessary before the compensation is assessed, but constructive notice by publication is usually regarded as sufficient. The action of the tribunal in fixing the amount of the compensation is frequently subject to review by appeal or certiorari, but is not so in the absence of a statutory provision. In the case of an attempted taking of private property under color of the right of eminent domain, which is, however, unauthorized, on account of the private nature of the use, the lack of necessity for the appropriation, or lack of legislative authority, the owner may usually obtain an injunction against the wrongful entry on the land, or may sue in ejectment or trespass, and sometimes other remedies are available.

The constitutions of some states provide that compensation shall be made before the land is taken, but in others, where there is no such provision, the legislature sometimes authorizes a taking of property, and leaves the onus upon the landowner of instituting proceedings to ascertain the compensation to be paid, and to enforce its payment. Such legislation has usually been supported in the case of a taking by the state or a municipal corporation, but in a number of states it has been held that, in the case of the actual occupation of land by a private corporation, the payment of the compensation must be in some way secured to the owner of

the land before he can thus be deprived of his property. When the taking of property does not involve the direct occupation of the land of the person claiming compensation, but merely consequential injuries thereto, the recovery of compensation is naturally subsequent to the acts which constitute the taking, since they were not previously ascertainable."

$474. Time of passing of title.

8

The statute is usually construed as divesting the title of the owner of the land only upon payment of the compensation awarded, and this is necessarily the case when the constitution provides that the compensation shall be paid previous to the taking. In the absence of such a constitutional provision, the statute may authorize the taking of the land before payment. Such a statutory provision is sometimes construed as not transferring the title before payment of the award, but as merely giving a right of entry and occupation of the land as a preliminary to acquiring title by condemnation. But, in the absence of such a constitutional provision as that referred to, the fact that the constitution requires a just or reasonable compensation to be paid does not prohibit a statute authorizing the passing of the title be fore payment of the compensation, provided there is adequate

Randolph, Eminent Domain, §§ 231, 291, 362; 1 Lewis, Eminent Domain, §§ 456-459, 607.

New Orleans & 8. R. Co. v. Jones, 68 Ala. 48; City of Chicago v. Barbian, 80 Ill. 482; Stacey v. Vermont Cent. R. Co., 27 Vt. 39; Manchester & K. R. Co. v. Keene, 62 N. H. 81; Fox v. Western Pac. R. Co., 31 Cal. 538; Perkins v. Maine Cent. R. Co., 72 Me. 95; Williams v. New Orleans, M. & T. R. Co., 60 Miss. 689; Provolt v. Chicago, R. I. & P. R. Co., 57 Mo. 256; Jones v. Miller (Va.) 23 S. E. 35; Levering v. Philadelphia, G. & N. R. Co., 8 Watts & S. (Pa.) 459.

Fox v. Western Pac. R. Co., 31 Cal. 538; Cushman v. Smith. 34 Me. 247; Kennedy v. Indianapolis, 103 U. 8. 599.