to so tie up the hands of the government as to preclude its repeated exercise, as often and under such circumstances as the needs of the government may require. For if this were otherwise, the authority to make laws for the government and welfare of the State might be so exercised, in strict conformity with its constitution, as at length to preclude the State performing its ordinary and essential functions, and the agent chosen to govern the State might put an end to the State itself. It must follow that any legislative bargain in restraint of the complete, continuous, and repeated exercise of the right of eminent domain is unwarranted and void; and that provision of the Constitution of the United States which forbids the States violating the obligation of contracts could not be so construed as to render valid and effectual such a bargain, which originally was in excess of proper authority. (a) Upon this subject we shall content ourselves with referring in this place to what has been said in another connection.1 As under the peculiar American system the protection and regulation of private rights, privileges, and immunities in general belong to the State governments, and those governments are expected to make provision for the conveniences and necessities which are usually provided for their citizens through the exercise of the right of eminent domain, the right itself, it would seem, must pertain to those governments also, rather than to the government of the nation; and such has been the conclusion of the authorities. In the new Territories, however, where the government of the United States exercises sovereign authority, it possesses, as incident thereto, the right of eminent domain, which it may exercise directly or through the territorial governments; but this right passes from the nation to the newly formed State whenever the latter is admitted into the Union. So far, however, 1 See ante, p. 396. 2 Pollard's Lessee v. Hagan, 3 How. 212; Goodtitle v. Kibbee, 9 How. 471; Doe v. Beebe, 13 How. 25; United States v. The Railroad Bridge Co., 6 McLean, 517; Weber v. Harbor Commissioners, 18 Wall. 57; Swan v. Williams, 2 Mich. 427; Warren v. St. Paul, &c. R. R. Co., 18 Minn. 384. [Article V. of the amendments to the Federal constitution providing among other things that private property shall not be taken for public use without just compensation is not applicable to a taking by a State or its authority, but is a limitation on the Federal Government only. Withers v. Buckley, 20 How. 84.] Although it has been held in some cases that the States have authority, under the eminent domain, to appropriate the property of individuals in order to donate it to the general government for national purposes: Reddall v. Bryan, 14 Md. 444; Gilmer v. Lime Point, 18 Cal. 229; Burt v. Merchants' Ins. Co., 106 Mass. 356, and Cummings v. Ash, 50 N. H. 591; [Lancey v. King County, 15 Wash. 9, 45 Pac. 645, 34 L R. A. 817,] the contrary is now determined. See Trombley v. AuditorGeneral, 23 Mich. 471; Kohl v. United (a) [Woodmere Cemetery v. Roulo, 104 Mich. 595 [599], 62 N. W. 1010; Lock Haven Bridge Co. v. Clinton County, 157 Pa. St. 379, 27 Atl. 726.] as the general government may deem it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions, as must sometimes be necessary in the case of forts, light-houses, military posts or roads, and other conveniences and necessities of government, -the general government may still exercise the authority, as well within the States as within the territory under its exclusive jurisdiction, and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other authority.1 What Property is subject to the Right. Every species of property which the public needs may require and which government cannot lawfully appropriate under any other right, is subject to be seized and appropriated under the right of eminent domain. Lands for the public ways; timber, stone, and gravel with which to make or improve the public ways; buildings standing in the way of contemplated improve States, 91 U. S. 367. Such an authority in the States is needless, for the power of the general government is ample for all needs. But a statute is valid which grants to the United States the right to institute condemnation proceedings. Matter of Petition of United States, 96 N. Y. 227. [General government may exercise the eminent domain either in the territories or in the States for the execution of powers granted to it. Cherokee Nation v. South Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct. Rep. 965, 33 Fed. Rep. 900. The United States may exercise the right of eminent domain in the interest of inter-state commerce. Monongahela Navigation Co. v. United States, 148 U. S. 312, 13 Sup. Ct. Rep. 622; in the District of Columbia, Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. Rep. 361; for the preservation of the battlefield of Gettysburg, U. S. v. Gettysburg Elec. Ry. Co., 160 U. S. 668, 16 Sup. Ct. Rep. 427; see also Luxton v. North River Bridge Co, 153 U. S. 525, 14 Sup. Ct. Rep. 891.] 1 Kohl v. United States, 91 U. S. 367; Trombley v. Auditor-General, 23 Mich. 471; Darlington v. United States, 82 Pa. St. 382. The United States may delegate to a State tribunal the power to ascertain the compensation to be paid. United States v. Jones, 109 U. S. 513, 3 Sup. Ct. Rep. 346. 2 People v. Mayor, &c. of New York, 32 Barb. 102; Bailey v. Miltenberger, 31 Pa. St. 37. [Authority to condemn does not authorize condemnation of lands of State unless so expressed. Seattle & M. Ry. Co. v. State, 7 Wash. 150, 34 Pac. 551, 38 Am. St. 866, 22 L. R. A. 217.] Land belonging to, but not in actual use by a State university, may be condemned. In re St. Paul & N. P. Ry. Co., 34 Minn. 227, 25 N. W. 345. [Water from natural watercourse for irrigation: McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587, 22 S. W. 398, 967; property of church: Macon and A. Ry. Co. v. Riggs, 87 Ga. 158, 13 S. E. 312; homestead: Jockheck v. Shawnee Co. Com'rs, 53 Kan. 780, 37 Pac. 621; works and franchise of a water company: Brooklyn v. Long Island Water Supply Co., 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270; aff. 166 U. S. 685, 17 Sup. Ct. Rep. 718.] 8 Wheelock v. Young, 4 Wend. 647; Lyon v. Jerome, 15 Wend. 569; Jerome v. Ross, 7 Johns. Ch. 315, 11 Am. Dec. ments, or which for any other reason it becomes necessary to take, remove, or destroy for the public good; streams of water; 2 corporate franchises; 3 and generally, it may be said, legal and equi 484; Bliss v. Hosmer, 15 Ohio, 44; Watkins v. Walker Co., 18 Tex. 585. In Eldridge v. Smith, 34 Vt. 484, it was held competent for a railroad company to appropriate lands for piling the wood and lumber used on the road, and brought to it to be transported thereon. 1 Wells v. Somerset, &c. R. R. Co., 47 Me. 345. So of a pier. Matter of Union Ferry Co., 98 N. Y. 139. But the destruction of a private house during a fire to prevent the spreading of a conflagration has been held not to be an appropriation under the right of eminent domain, but an exercise of the police power. "The destruction of this property was authorized by the law of overruling necessity; it was the exercise of a natural right belonging to every individual, not conferred by law, but tacitly accepted from all human codes." Per Sherman, Senator, in Russell v. Mayor, &c. of New York, 2 Denio, 461, 473. See also Sorocco v. Geary, 3 Cal. 69; Conwell v. Emrie, 2 Ind. 35; American Print Works v. Lawrence, 21 N. J. 248; Same v. Same, 23 N. J. 9, 590; McDonald v. Redwing, 13 Minn. 38; Field v. Des Moines, 39 Iowa, 575. The municipal corporation whose officers order the destruction is not liable for the damages unless expressly made so by statute. White v. Charleston, 2 Hill (S. C.), 571; Dunbar v. San Francisco, 1 Cal. 355; Stone v. Mayor, &c., of New York, 25 Wend. 157; Taylor v. Plymouth, 8 Met. 462; Ruggles v. Nantucket, 11 Cush. 433; Keller v. Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613. [In the exercise of police power the State cannot authorize the taking of private property without compensation, when it can be condemned and paid for under the power of eminent domain. People v. Elk River, &c. Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. 121.] 2 Gardner v. Mewburg, 2 Johns. Ch. 162, 7 Am. Dec. 526. In this case a stream was appropriated in order to supply a town with water. The appropriation might, of course, be made for any other object of public utility; and a stream may even be diverted from its course to remove it out of the way of a public im provement when not appropriated. See Johnson v. Atlantic, &c. R. R. Co., 35 N. H. 569; Baltimore, &c. R. R. Co. v. Magruder, 34 Md. 79, 6 Am. Rep. 310; Reusch v. Chicago, &c. R. R. Co., 57 Iowa, 687, 11 N. W. 617. But in general, in constructing a public work, it is the duty of those concerned to avoid diverting streams, and to construct the necessary culverts, bridges, &c., for that purpose. March v. Portsmouth &c., R. R. Co., 19 N. H. 372; Boughton v. Carter, 18 Johns. 405; Rowe v. Addison, 34 N. H. 306; Proprietors, &c. v. Nashua & Lowell R. R. Co., 10 Cush. 388; Haynes v. Burlington, 38 Vt. 350. And see Pettigrew v. Evansville, 25 Wis. 223; Arimond v. Green Bay Co., 31 Wis. 316; Stein v. Burden, 24 Ala. 130; Diamond Match Co. v. New Haven, 55 Conn. 510, 13 Atl. 409. As to the obligation of a railroad company to compensate parties whose lands are flooded by excavations or embankments of the company, see Brown v. Cayuga, &c. R. R. Co., 12 N. Y. 486; Norris v. Vt. Cent. R. R. Co., 28 Vt. 99. Compare Eaton v. Boston C. & M. R. R. Co., 51 N. H. 504, where it was decided that a corporation which flooded a man's land by removing a natural protection in the construction of its road was liable for the injury, even though its road was constructed with due care, with Bellenger ". N. Y. Central R. R. Co., 23 N. Y. 42; Abbott v. Kansas City, &c. Co., 83 Mo. 271; Moss v. St. Louis, &c. Ry. Co, 85 Mo. 86; Bell v. Norfolk, &c. R. R. Co., 101 N. C. 21, 7 S. E. 467; and other cases cited, post, pp. 782, 826. 8 Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Crosby v. Hanover, 36 N. H. 404; Tuckahoe Canal Co. v. Railroad Co., 11 Leigh, 42, 36 Am. Dec. 374; Boston Water Power Co. v. Boston & Worcester R. R. Co., 23 Pick. 360; Central Bridge Corporation v. Lowell, 4 Gray, 474; West River Bridge v. Dix, 6 How. 507; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 71, per Grier, J.; Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R. R. Co., 4 Gill & J. 5; State v. Noyes, 47 Me. 189; Red River Bridge Co. v. Clarksville, 1 Sneed, 176; Armington v. Barnet, 15 Vt. 745; White table rights of every description are liable to be thus appropri River Turnpike Co. v. Vermont Central R. R. Co., 21 Vt. 590; Newcastle, &c. R. R. Co. v. Peru & Indiana R. R. Co., 3 Ind. 464; Springfield v. Connecticut River R. R. Co., 4 Cush. 63; Forward v. Hampshire, &c. Canal Co., 22 Pick. 462; Commonwealth v. Pittsburg, &c. R. R. Co., 58 Pa. St. 26; Re Towanda Bridge Co., 91 Pa. St. 216; In re Twenty-Second St., 102 Pa. St. 108. The only true rule of policy as well as of law is, that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional rights of the subject. If in such cases suitable and adequate provision is made by the legis lature for the compensation of those whose property or franchise is injured or taken away, there is no violation of public faith or private right. The obligation of the contract created by the original charter is thereby recognized." Per Bigelow, J., in Central Bridge Corporation v. Lowell, 4 Gray, 474, 482. This subject receives a very full and satisfactory examination by Judges Pearson and Sharswood, in Commonwealth v. Pennsylvania Canal Co., 66 Pa. St. 41, 5 Am. Rep. 329. In Central City Horse Railway Co. v. Fort Clark Horse Railway Co., 87 Ill. 523, this subject is somewhat considered. The question involved is thus stated by the court: "Can a competing horse railway company in an incorporated city acquire by compulsion a title to or the joint use of [a part of] the track and superstructure of another like corporation, and for the express purpose of making the tracks so compulsorily taken a portion of its own line?" This question is answered in the negative, though at the same time it is intimated that "proceedings might be instituted, perhaps, to condemn the entire road and franchise, and thus pass it over as an entirety to the competing road." But as to this, see Lake Shore, &c. R. R. Co. v. Chicago, &c. R. R. Co., 97 Ill. 506; Re Rochester Water Commissioners, 66 N. Y. 413; Little Miami, &c. R. R. Co. v. Dayton, 23 Ohio St. 510. [A turnpike way may be condemned for an electric street railway. The legislature may determine when one grant must yield to another. Baltimore & F. T. R. v. Baltimore C. &c. R. Co., 81 Md. 247, 31 Atl. 854. If the second use will better serve the public, the first franchise may be condemned. Re City of Brooklyn, 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270; aff. 166 U. S. 685, 17 Sup. Ct. Rep. 718; Trustees of Atlanta University v. City of Atlanta, 93 Ga. 468, 21 S E. 74; United States v Gettysburg E. R. Co., 160 U. S. 668, 16 Sup. Ct. Rep. 427. Land condemned for one use cannot be taken for a similar use without specific authority where the second use is inconsistent, or materially interferes with the first: Lake Erie & W. R. Co. v. Com'rs of Seneca Co., 57 Fed. Rep. 945; St. Louis, H. & K. C. R. Co. v. Hannibal, U. D. Co., 125 Mo. 82, 28 S. W. 483; Suburban R. T. Co. v. City of New York, 128 N. Y. 510, 28 N. E. 525, rev. 60 Hun, 577; Re City of New York, 135 N. Y. 253, 31 N. E. 1043. Land of one railway company for another line of railway: Butte, A. & P. R. Co. v. Montana U. R. Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298, 50 Am. St. 508. So, though the second use is not a similar use, if it is inconsistent with the first use. Boston & A. R. Co. v. Cambridge, 166 Mass. 224, 44 N. E. 140; Cincinnati, W. & M. R. Co. v. Anderson, 139 Ind. 490, 38 N. E. 167, 47 Am. St. 285; Louisville & N. R. Co. v. Whitely, 95 Ky. 215, 24 S. W. 604, 44 Am. St. 220, and note; Minn. & St. L. R. Co. v. Minn. W. R. Co., 61 Minn. 502, 63 N. W. 1035; Seattle & M. R. Co. v. State, 7 Wash. 150, 34 Pac. 551, 38 Am. St. 866, 22 L. R. A. 217. Land of a railway company for a grain elevator: Re Stewart's Application, 65 Minn. 515, 68 N. W. 208, 33 L. R. A. 427; a toll bridge for an electric street railway: Pittsburg & W. E. P. R. Co. v. Point Bridge Co., 165 Pa. St. 35, 30 Atl. 511, 26 L. R. A. 323. The yards and tracks of a railway company may be condemned for a public street if properly authorized, Terra Haute v. Evansville & T. H. R. Co., 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189; Chicago, &c. R. Co. r. Starkweather, 97 Iowa, 159, 66 N. W. 87, 59 Am. St. 404.] Land appropriated by one railroad company under the eminent domain, but not required for the exercise of its franchises or the discharge of its duties, is liable to be taken for the corporate use of another railroad company. North Carolina, &c. R. R. Co. v. Carolina Central, &c. R. R. ated. From this statement, however, must be excepted money, or that which in ordinary use passes as such, and which the government may reach by taxation, and also rights in action, which can only be available when made to produce money; neither of which can it be needful to take under this power.2 Legislative Authority Requisite. The right to appropriate private property to public uses lies dormant in the State, until legislative action is had, pointing out Co., 83 N. C. 489. See Chicago, &c. R. R. Co. v. Lake, 71 Ill. 333. A contract ceding to a telegraph company the exclusive right of operating and maintaining its lines over the right of way of a railroad company cannot preclude the State from authorizing the establishment of another telegraph line over the same right of way. New Orleans, &c. R. R Co. v. Southern, &c. Telegraph Co., 53 Ala. 211. The bridge of a corporation may be taken under this power and made a free bridge. Re Towanda Bridge Co., 91 Pa. St. 216. So of the right of a railroad company given under peculiar circumstances to take toll on a highway. Phila. &c. Ry. Co.'s Appeal, 120 Pa. St. 90, 13 Atl. 708. 1 The appurtenant right of an abutter to have a street open may be taken: Rennselaer v. Leopold, 106 Ind. 29, 5 N. E. 761; the right to pass over a private way: Buffalo, N. Y. & P. R. R. Co. v Overton, 35 Hun, 157; the right to have a farmcrossing at a particular place. Matter of N. Y. L. &c. R. R. Co., 44 Hun, 194. [Private cemetery for public park, In re Board of Street Openings, &c., 133 N. Y. 329, 31 N. E. 102, 28 Am. St. 640; homestead for court house: Jockheck v. Shawnee Co. Com'rs, 53 Kan. 780, 37 Pac. 621; leasehold interest in lands: Corrigan et al. v. City of Chicago, 144 Ill, 587, 33 N. E. 746, 21 L. R. A. 212. In such case the exercise of the right terminates the obligation to pay rent. Id.] 2 Property of individuals cannot be appropriated by the State under this power for the mere purpose of adding to the revenues of the State. Thus it has been held in Ohio, that in appropriating the water of streams for the purposes of a canal, more could not be taken than was needed for that object, with a view to raising a revenue by selling or leas in ing it. "The State, notwithstanding the sovereignty of her character, can take only sufficient water from private streams for the purposes of the canal. So far the law authorizes the commissioners vade private right as to take what may be necessary for canal navigation, and to this extent authority is conferred by the constitution, provided a compensation be paid to the owner. The principle is founded on the superior claims of a whole community over an individual citizen; but then in those cases only where private property is wanted for public use, or demanded by the public welfare. We know of no instances in which it has or can be taken, even by State authority, for the mere purpose of raising a revenue by sale or otherwise; and the exercise of such a power would be utterly destructive of individual right, and break down all the distinctions between meum and tuum, and annihilate them forever at the pleasure of the State." Wood, J., in Buckingham v. Smith, 10 Ohio, 288, 297. To the same effect is Cooper v. Williams, 5 Ohio, 392, 22 Am. Dec. 745. Taking money under the right of eminent domain, when it must be compensated in money afterwards, could be nothing more or less than a forced loan, only to be justified as a last resort in a time of extreme peril, where neither the credit of the government nor the power of taxation could be made available. It is impossible to lay down rules for such a case, except such as the law of overruling necessity, which for the time being sets aside all the rules and protections of private right, shall then prescribe. [Kaysville v. Ellison, 18 Utah, 163, 55 Pac. 386, 72 Am. St. 772, 43 L. R. A. 81.] See post, p. 764, note. |