general rule is applicable here, that where property is taken under statutory authority in derogation of common right, every requisite of the statute having a semblance of benefit to the owner must be complied with, or the proceeding will be ineffectual.1

CHAPTER XV.

THE EMINENT DOMAIN.

EVERY Sovereignty possesses buildings, lands, and other property, which it holds for the use of its officers and agents, to enable them to perform their public functions. It may also have property from the rents, issues, and profits, or perhaps the sale, of which it is expected the State will derive a revenue. Such property constitutes the ordinary domain of the State. In respect to its use, enjoyment, and alienation, the same principles apply which govern the management and control of like property of individuals; and the State is in fact but an individual proprietor, whose title and rights are to be tested, regulated, and governed by the same rules that would have pertained to the ownership of the same property by any of its citizens. There are also cases in which property is peculiarly devoted to the general use and enjoyment of the individual citizens who compose the organized society, but the regulation and control of which are vested in the State by virtue of its sovereignty. The State may be the proprietor of this property, and retain it for the common use, as a means of contributing to the general health, comfort, or happiness of the people; but generally it is not strictly the owner, but rather the governing and supervisory trustee of the public rights in such property, vested with the power and charged with the duty of so regulating, protecting, and controlling them, as to secure to each citizen the privilege to make them available for his purposes, so far as may be consistent with an equal enjoyment by every other citizen of the same privilege.1 In some instances these rights are

1 In The Company of Free Fishers, &c. v. Gann, 20 C. B. N. s. 1, it was held that the ownership of the Crown in the bed of navigable waters is for the benefit of the subject, and cannot be used in any such manner as to derogate from or interfere with the right of navigation, which belongs by law to all the subjects of the realm. And that consequently the grantees of a particular portion, who occupied it for a fishery, could not be lawfully authorized to charge and collect anchorage dues from vessels anchoring therein. As regards public and exclusive

rights of fishery in this country, see Carson v. Blazer, 2 Binn. 475, 4 Am. Dec. 463; Commonwealth v. Chapin, 5 Pick. 199, 16 Am. Dec. 386; Parker v. Milldam Co., 20 Me. 353, 37 Am. Dec. 56; Parsons v. Clark, 76 Me. 476; Commonwealth v. Look, 108 Mass. 452; Cole v. Eastham, 183 Mass. 65; Packard v. Ryder, 144 Mass. 440, 11 N. E. 578; Sloan v. Biemiller, 34 Ohio St. 472; Lincoln v. Davis, 53 Mich. 875, 19 N. W. 103; Angell on Watercourses, § 55 a, and cases cited; Cooley on Torts, 388-390.

of such a nature, or the circumstances are such, that the most feasible mode of enabling every citizen to participate therein may seem to be for the State to transfer its control, wholly or partially, to individuals, either receiving by way of augmentation of the public revenues a compensation therefor, or securing in return a release to the citizens generally from some tax or charge which would have rested upon them in respect to such rights, had the State retained the usual control in its own hands, and borne the incidental burdens.

The rights of which we here speak are considered as pertaining to the State by virtue of an authority existing in every sovereignty, and which is called the eminent domain. Some of these are complete without any action on the part of the State; as is the case with the rights of navigation in its seas, lakes, and public rivers, the rights of fishery in public waters, and the right of the State to the precious metals which may be mined within its limits.1 Others only become complete and are rendered effectual through the State displacing, either partially or wholly, the rights of private ownership and control; and this it accomplishes either by contract with the owner, by accepting his gift, or by appropriating his property against his will through an exercise of its superior authority. Of these, the common highway furnishes an example; the public rights therein being acquired either by the grant or dedication of the owner of the land over which they run, or by a species of forcible dispossession when the public necessity demands the way, and the private owner will neither give nor sell it. All these rights rest upon a principle which in every sovereignty is essential to its existence and perpetuity, and which, so far as when called into action it excludes pre-existing individual rights, is sometimes spoken of as being based upon an implied reservation by the government when its citizens acquire property from it or under its protection. (a) And as there is not often occasion to speak of the eminent domain except in reference to those cases in which the government is called upon to appropriate property against the will of the owners, the right itself is generally defined as if it were restricted to such cases, and is said to be that superior right of property pertaining to the sovereignty by which the private property acquired by its citizens under its protection may be taken or its use controlled for

1 1 Bl. Com. 294; 3 Kent, 378, note. In California, it has been decided that a grant of public lands by the government

carries with it to the grantee the title to all mines. Boggs v. Merced, &c. Co., 14 Cal. 279; Moore v. Smaw, 17 Cal. 199.

(a) [The right of eminent domain does not depend upon the Constitution, but exists independent of it, it is inherent in sovereignty. Steames v. Barre, 73 Vt. 281, 50 Atl. 1086, 87 Am. St. 721.]

the public benefit without regard to the wishes of its owners. More accurately, it is the rightful authority, which exists in every sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand.1

When the existence of a particular power in the government is recognized on the ground of necessity, no delegation of the legislative power by the people can be held to vest authority in the department which holds it in trust, to bargain away such power, or

1 Vattel, c. 20, § 34; Bynkershoek, Heyward v. Mayor, &c. of New York, 7 lib. 2, c. 15; Ang. on Watercourses, N. Y. 314; Water Works Co. v. Burk§ 457; 2 Kent, 338-340; Redf. on Railw. hart, 41 Ind. 364; Weir v. St. Paul, &c. c. 11, § 1; Waples, Pro. in Rem, § 242. R. R. Co., 18 Minn. 155. That one exer"The right which belongs to the society cise of the power of appropriation will not or to the sovereign of disposing, in case preclude others for the same purpose, see of necessity, and for the public safety, of Central Branch U. P. R. R. Co. v. Atchiall the wealth contained in the State, is son, &c., R. R. Co., 26 Kan. 669, 5 A. & called the eminent domain." McKinley, E. R. R. Cas. 397, and cases in note; Peck J., in Pollard's Lessee v. Hagan, 3 How. v. Louisville, &c. Ry. Co., 101 Ind. 366; 212, 223. "Notwithstanding the grant Dietrichs v. Lincoln, &c. R. R. Co., 13 to individuals, the eminent domain, the Neb. 361, 13 N. W. 624. But when a highest and most exact idea of property, bridge company has once located its line remains in the government, or in the ag- of approach and begins work, it cannot gregate body of the people in their sov- change it without legislative authority. ereign capacity; and they have a right Matter of Poughkeepsie Bridge Co., 108 to resume the possession of the property, N. Y. 483, 15 N. E. 601. The constituin the manner directed by the constitu- tional prohibition against the taking of tion and laws of the State, whenever the private property for public use without public interest requires it. This right of compensation is self-enforcing, and equity resumption may be exercised, not only may enjoin the damaging of such propwhere the safety, but also where the in- erty though the legislature has provided terest, or even the expediency of the State no method of determining compensation. is concerned; as where the land of the Kansas City, St. J. & C. B. Ry. Co. v. individual is wanted for a road, canal, or Terminal Ry. Co., 97 Mo. 457, 10 S. W. other public improvement." Walworth, 826, 3 L. R. A. 240; Hickman v. Kansas Chancellor, in Beekman v. Saratoga & City, 120 Mo. 110, 25 S. W. 225, 22 Schenectady R. R. Co., 3 Paige, 45, 73, L. R. A. 658, 41 Am. St. 684; Searle v. 22 Am. Dec. 679. The right is inherent Lead, 10 S. D. 312, 73 N. W. 101, 39 in all governments, and requires no L. R. A. 345. A taking under the police constitutional provision to give it force. power is not in exercise of the power Brown v. Beatty, 34 Miss. 227; Taylor v. of eminent domain. State v. Schlemmer, Porter, 4 Hill, 140; Lake Shore, &c. R. R. 42 La. Ann. 1166, 8 So. 307, 10 L. R. A. Co. v. Chicago, &c., R. R. Co., 97 Ill. 135. See Ruch v. City of New Orleans, 506, 2 Am. & Eng. R. R. Cas. 440; 43 La. Ann. 275, 9 So 473; Peart v. United States v. Jones, 109 U. S. 513, 3 Meeker, 45 La. Ann. 421, 12 So. 490; Sup. Ct. Rep. 346. "Title to property is Sweet v. Rechel, 37 Fed. Rep. 323; Id. 159 always held upon the implied condition U. S. 380, 16 Sup. Ct. Rep. 43; State v. that it must be surrendered to the govern Griffin, 69 N. H. 1, 39 Atl. 260, 41 L. R. A. ment, either in whole or in part, when the 177. So in case of destruction of mill and public necessities, evidenced according to mill dam to avoid damage to highway the established forms of law, demand." and other property. Aitken v. Wells Hogeboom, J., in People v. Mayor, &c. of River, 70 Vt. 308, 40 Atl. 829, 67 Am. St. New York, 32 Barb. 102, 112. And see 672, 41 L. R. A. 566.]