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hended and confounded in the phrase of "taking or destroying private property for the public benefit." One of these principles is applied, when the property of an individual is taken by the authority of the state for the common use or benefit of the public; that is to say, either for the general use and benefit of the people of the state in its aggregate character, or else, of all such citizens, without distinction, as may happen to have occasion for the use of such property. Such as lands taken for a canal, or a road, are instances of such application.

Such, too in another and secondary form, is the taking of lands by a corporate company for a railroad, or turnpike, under state authority, where the company enjoying a public franchise, so far represents, and is a trustee for the public. And this is done solely by virtue of that right of eminent domain, whereby the whole property of individuals who compose the state, is held subject to the sovereign authority, to be used for the common advantage. It rests substantially upon the same foundation with the right of taxation.

Notwithstanding these safeguards in the constitution, it is and ever has been universally conceded, and at this day, cannot be justly disputed, that in our own government, (as really in every other civilized political government,) there inheres, necessarily, the right, and the duty, of guarding, securing, and continuing its own existence; and of protecting and promoting the interests and welfare of the whole community at large. This power, and this duty, are to be exerted not only in the highest acts of sovereignty, and in the external relations of governments, but they reach and comprehend also, the interior polity and relations of social life, which should be regulated with reference to the advantage of the whole society. Among these powers of government, is that which is denominated the eminent domain of the state. This, as its name imports, is paramount to all private rights vested under the government, which last rights, are, by necessary implication, held in subordination to the power of eminent domain, and must yield in every instance to its proper exercise. a

It is a question not now controverted, that under every established form of government, the tenure of property is derived me

a West River Bridge Co. v. Dix, 6 How. U. S. R. 531.

diately, or immediately from the sovereign power of the state, as a political body, organized in such mode, or exerted in such a way as the people have thought proper to ordain. It can rest on no other foundation; it can have no other guarantee. It is owing to this theory, only, that appeals can be made to the laws, either for the protection, or assertion of the rights of property. Upon any other hypothesis, the law of property would be simply the law of force. The instances of the exertion of this power, in some mode or other, from the very foundation of civil government, have been so numerous and familiar, that at this day, little doubt or question is seriously or intelligently made against it, and it seems to be as well conceded, that the power to exercise it remains with the state government, except when its exercise is demanded for national purposes; and, as is conceded, this power is not brought within the purview of the constitutional restriction. At all events, the power of appropriation of property to public uses, has never been held by any judicial tribunal as impairing the obligation of contracts between the state and its citizens in the sense of the constitution, nor, that this was a power granted to the general government.

The exercise of the right of eminent domain, by which individual property is taken for public use, is an inherent power of sovereignty, and is a necessity of government; were it not so, the will or caprice of an individual, might obstruct and defeat the most important enterprises for public or governmental improvements.

The constitution of neither the federal government, nor of the states, have altered this rule of the common law. The legislature of the state of New York have declared, that "the people of this state in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state." a The right to take property for public use, therefore, is but the exercise of the power which was originally vested in the people in their collective capacity;-which they have retained over the property of individuals; and which they can resume at any time when necessary for public use.

This right is complete without any action on the part of the state, in certain property in which it is supposed no interest had ever

a 1 Rev. Stat. 718, § 1, 4 Kent's Com. 3; Taylor v. Porter, 4 Hill. 145.

been acquired by individuals; such as the rights of navigation, in its lakes and other navigable waters; the rights of fishery in certain public waters; and the right of the state to precious metals which may be mined within its limits. It is seldom however, that it becomes necessary to speak of eminent domain, except in connection with those cases in which the government is necessitated to appropriate property against the will of the owners. The right itself is generally defined, as if it were restricted to such cases. It 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 the owners. a

This right is supposed to have existed anterior to the constitution or statute; it is an acknowledged principle of the social compact, which is understood to have been assented to by the original members of it, that in public emergencies, the right of individuals over their property, must yield to the superior necessities of the state. The framers of our national and state constitutions, it is supposed, framed this protective clause from the principles laid down by the ancient writers of public law applicable to this subject. But except for the extreme right to resort to this power, the security of life, liberty and property, lies at the foundation of the social compact; and to say, that the grant of legislative power, includes in it the right to attack private property; is equivalent to saying, that the people have delegated to their servants the power of defeating one of the great ends for which the government was established.

This right, in a general sense, pertains to the state, rather than to the national government; though whenever the same reasons exist, on which the right rests, viz., the necessities of government, for the purpose of performing its ordinary and essential functions; perpetuating its existence; and controlling and regulating matters of a public nature for the benefit of its citizens in common; the national government possess the same inherent power to exercise the right of eminent domain, as an incident of government.

Private property taken for public use by right of eminent do

a Cooley on Const. Lim. 524; Pollard's Lessees v. Hagan, 3 How. U. S. R. 223; People v. Mayor, &c., N. Y. 32, Barb. 112, 119.

main, (unlike taking it by taxation,) is taken, not as the owners share of contribution to a public burthen, but as so much beyond his share;a and it operates upon the individual, without reference to the amount or value exacted from any other individual, or class of individuals.

"This right of resumption of property for public use, may be exercised not only where the safety, but also where the interest, or even the expedience of the state is concerned, as where land is wanted for a road, canal, or other public improvement." b "It belongs to the legislature to determine, whether the benefit to the public from an improvement, is of sufficient importance to justify the exercise of the right of eminent domain, in thus interfering with the private rights of individuals." In cases of public improvements, from which a benefit would result to the public, this right of eminent domain may be exercised, either directly by the agents of the government, or through the medium of corporate bodies, or by means of individual enterprise." c

But the sovereign power, has no right to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will not be promoted thereby; and an act of the legislature making such a transfer, would be a violation of the contract by which the land was granted by the government; and repugnant to the constitution. d

"It cannot be a rightful attribute of sovereignty in any government professing to be founded upon fixed laws, however despotic the form of the government might be, to take the property of one individual, and bestow it upon another. The possession and exercise of such a power, would be incompatible with the nature and object of all government; for it being admitted that a chief end for which government is instituted, is, that every man may enjoy his own; it follows necessarily, that the rightful exertion of a power by the government, of taking arbitrarily from any man a People v. Mayor of Brooklyn, 4 N. Y. 424.

b Beekman v. Saratoga & Schenectady R. R. Co., 3. Paige 73; Wager v. Troy Union R. R. Co., 25 N. Y. 530.

cId; Williams v. N. Y. Cent. R. R. Co., 16 N. Y. R. 97; DeVarraigne v. Fox, 2 Blatch. 95.

d Varick v. Smith, 5 Paige, 137; Beekman v. Sar. & Schenectady R. R. Co., 3 Paige, 73.

what is his own, for the purpose of giving it to another, would subvert the foundation principle upon which the government was organized, and resolve the political community into its original chaotic elements," a even though compensation be made.

But it is no objection to the power conferred by the legislature upon a corporation to take such property,-that it contributes also to the emolument or advantage of such corporation, or to that of individuals. b But such a power should not be attempted by the legislature, unless the benefit which is to result to the public is of paramount importance, in comparison with the individual loss or inconvenience. c

There has been much controversy in the courts, imposing great embarrassment on them, in settling the line of demarkation between a use that is public, and one that is strictly private; no rule can be laid down that will apply to all cases.

The great difficulty that attends the exercise of this right, is, in determining the limits that rightfully bound it; for while all admit the right, no one succeeds in defining clearly the degree of necessity that justifies the exertion of it; in fact, the attempt to establish a rule, would show that it was impracticable. "It takes place (say the writers upon natural law,) only in case of state necessity, which ought not to have too great an extent, but should be tempered as much as possible with the rules of equity.d

This right of eminent domain, is not of itself a power granted by statute. The scope of discussion proposed in this work, therefore, is, what limitations the constitution has imposed upon its exercise.

Whether or not the purpose for which private property is taken, is a public use, must as a general rule, be left to the wisdom of the legislature to determine. e Some of the state governments by their legislation, have gone much farther than others in the exercise of this power. Its appropriate exercise by government, should be confined to its own necessities, in furnishing facilities to its cit

a Bloodgood v. M. & H. R. R. Co., 18 Wend. 56; Embury v. Connor, 3 N. Y. 511, 517; Taylor v. Porter, 4 Hill, 140.

b Heyward v. Mayor of New York, 7 N. Y. 314; Buffalo & N. Y. R. B. Co. v. Brainard, 9 N. Y. 100; People v. Smith, 21 N. Y. 598.

c Id. 16.

d Burlimaque Prin. Law, 145.

e 2 Kent's Com. 340.

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