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 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 gov- [* 525] ernment 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 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 66 1 Vattel, c. 20, § 34; Bynkershoek, lib. 2, c. 15; Ang. on Watercourses, § 457; 2 Kent, 338-40; Redf. on Railw. c. 11, § 1. "The right which belongs to the society or to the sovereign of disposing, in case of necessity, and for the public safety, of all the wealth contained in the State, is called the eminent domain." McKinley, J., in Pollard's Lessee v. Hogan, 3 How. 223. Notwithstanding the grant to individuals, the highest and most exact idea of property remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have a right to resume the possession of the property, in the manner directed by the constitution and laws of the State, whenever the public interest requires it. This right of resumption may be exercised, not only where the safety, but also where the interest or even the expediency of the State is concerned; as where the land of the individual is wanted for a road, canal, or other public improvement." Walworth, Chancellor, in Beekman v. Saratoga and Schenectady R.R. Co., 3 Paige, 73. The right is inherent in all governments, and requires no constitutional provision to give it force. Brown v. Beatty, 34 Miss. 227; Taylor v. Porter, 4 Hill, 143. Title to property is always held upon the implied condition that it must be surrendered to the government, either in whole or in part, when the public necessities, evidenced according to the established forms of law, demand." Hogeboom, J., in People v. Mayor, &c., of New York, 32 Barb. 112. And see Heyward v. Mayor, &c., of New York, 7 N. Y. 314. 66 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. 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 properly pertain to the State governments, and those governments are expected to make provision for those 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 gov ernment of the United States exercises sovereign author[526] ity, 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, as the general government may deem it 1 See ante, p. 281. * 2 Pollard's Lessee v. Hogan, 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; Gilmer v. Lime Point, 18 Cal. 229. The States have sometimes assumed authority, under the eminent domain, to appropriate the property of individuals in order to donate it to the general government for national purposes; but the right to do this would seem doubtful. The authority of the general government to appropriate private property for its needs is unquestionable; but every sovereignty must judge of its needs for itself, and the right to decide upon and supply them by dispossessing private rights cannot, as it seems to us, be assumed by any other authority without the incorporation of some new principle into the law of eminent domain. The following decisions have been made on this subject. In Reddall v. Bryan, 14 Md. 478, proceedings in Maryland, under its laws, to appropriate lands for the purpose of supplying the city of Washington with water, were sustained. The opinion affirms the right generally to employ the State eminent domain for the purposes of the general government; but the court 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 attach importance to the fact that in ceding its portion of the District of Columbia to the United States, "the State never intended to abandon all interest in the District. The relation, therefore, between the District of Columbia, composed of territory ceded by Maryland for certain purposes only, and the State of whose soil it forms a part, is more intimate and close than that which it bears to any other State." Gilmer v. Lime Point, 18 Cal. 229, was a proceeding in the State court, on the application of the United States by its agent, to condemn lands for the purposes of a light-house. The right to maintain it was contested, but sustained. A similar decision was made in Burt v. Merchants Ins. Co., 106 Mass. 356. Considerable reliance is placed in the opinion on the course of legislation in that State upon the subject, which it was said to be too late to question; and it is noticeable that the learned judge (Chapman, Ch. J.) who delivered the opinion makes no allusion to any necessity for State action in such a case; an omission that could hardly have occurred, had he been considering the case unembarrassed by legislative precedents. In Trombley v. Auditor-General, 23 Mich. 471, an act of the legislature authorizing the Governor to take proceedings to condemn lands for the use of the general government was held invalid, on the grounds that every sovereignty possesses inherent authority to appropriate the property of its citizens or subjects for public uses, and must be the judge of its own needs. The facts in that case would illustrate very forcibly some of the difficulties of any other view. Those were that after the Governor, at the request of an agent of the general government, had taken proceedings to condemn lands for a light-house, and had had the damages assessed, he was notified by the Federal authorities that they had decided not to take the land. . By the terms of the law, however, the damages, when assessed, were to be paid from the State treasury, and the owner now demanded payment; so that the aid of the court was invoked, not to enable the United States to obtain lands it wanted, but to compel the State to pay for lands for the United States which were not wanted. The case differs from the others in the important particular that in this the State authorities were the acting parties, while in the others the Federal authorities were the petitioners. In the one the State was seeking to condemn lands for the nation; in the others the nation was employing State laws and State courts to condemn lands for itself. Even if the latter may be done, some curious results might follow in some cases. Some of the State constitutions require the necessity for the taking of property to be affirmed by a jury; and it would be singular, to say the least, if the right of the United States to take lands for important national purposes, after the taking had been decided upon by the proper national authority, could be made to depend upon a finding of its necessity by twelve men selected by lot in one of the States. say, the reasons which support the right in any case; that is to 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. 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.1 Lands for the public ways; timber, stone, and gravel with which to make or improve the public ways; 2 buildings standing in the way of contemplated improvements, or which for any other reason it becomes necessary to take, remove, or destroy for the public good; streams of water; corporate fran 3 1 People v. Mayor, &c., of New York, 32 Barb. 102; Bailey v. Miltenberger, 31 Penn. St. 37. 2 Wheelock v. Young, 4 Wend. 647; Lyon v. Jerome, 15 Wend. 569; Jerome v. Ross, 7 Johns. Ch. 315; Bliss v. Hosmer, 15 Ohio, 44; Watkins v. Walker Co., 18 Texas, 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. 3 Wells v. Somerset, &c., R.R. Co., 47 Me. 345. 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. Sorocco v. Geary, 3 Cal. 69. "The destruction 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 excepted from all human codes." Per Sherman, Senator, in Russell v. Mayor, &c., of New York, 2 Denio, 473. See also Stone v. Mayor, &c., of New York, 25 Wend. 157; McDonald v. Redwing, 13 Minn. 38. But see Hale v. Lawrence, 1 Zab. 714; Same v. Same, 3 Zab. 590. In this case a stream was appro- Gardner v. Newburg, 2 Johns. Ch. 162. priated in order to supply a town with water. 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 improvement 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; s. c. 6 Am. Rep. 310. 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; Baughton v. Carter, 18 Johns. 405; Rowe v. Addison, 34 N. H. 306; Proprietors, &c. chises;1 and generally, it may be said, legal and equitable * rights of every description are liable to be thus appro- [* 527] priated. 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 v. Nashua & Lowell R.R. Co., 10 Cush. 388; Haynes v. Burlington, 38 Vt. 361. And see Pettigrew v. Janesville, 25 Wis. 23; Arimond v. Green Bay Co., 31 Wis. 316; Stein v. Burden, 24 Ala. 130. 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 their road was liable for the injury, even though their road was constructed with due care, with Bellinger v. N. Y. Central R.R. Co., 22 N. Y. 42, and other cases cited, post, pp. 570, 571. 1 Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Crosby v. Hanover, 36 N. H. 420; Boston Water Power Co. v. Boston, and 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. 81, per Grier, J.; Chesapeake and Ohio Canal Co. v. Baltimore and Ohio R.R. Co., 4 Gill & J. 1; State v. Noyes, 47 Me. 189; Red River Bridge Co. v. Clarksville, 1 Sneed, 176; Armington v. Barnet, 15 Vt. 745; White River Turnpike Co. v. Vermont Central R.R. Co., 21 Vt. 594; Newcastle, &c., R.R. Co. v. Peru and 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 Penn. St. 50. "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 legislature 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, 482. This subject receives a very full and satisfactory examination by Judges Pearson and Sharswood, in Commonwealth v. Pennsylvania Canal Co., 66 Penn. St. 41; s. c. 5 Am. Rep. 329. 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 leasing it. "The State, notwithstanding the sovereignty of her character, can take only sufficient water from private streams |