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izens, in regard to those matters of public needs. Convenience or welfare, which, on account of their peculiar character, and the difficulty of making provision for them otherwise, it is both proper and usual for the government to provide. a1
This ground of public necessity rests upon the basis, that private property must yield and become subservient to the public welfare; and the power to take, may be exercised directly by the govern
a Cooley on Const. Lim. 533.
NOTE 1.-The propriety of taking private property for a public use, is not a judicial question, but one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in such form and manner as it may prescribe. People ex rel Herrick v. Smith, 21 N. Y. 595, 598.
It was held by Judge McLean, in the supreme court of the United States, at Chambers, the report of which is found in Vol. 3, Law Reg., No. 3, Old Series, page 603, in the case of the United States v. The Railroad Bridge Co., that the right of eminent domain was in the state, and that they can authorize a railroad through the public lands of the United States located in such state. He said, p. 617, &c.: "A state in the discharge of its ordinary functions of sovereignty, has a right to provide for an intercourse between its citizens, commercial and otherwise, in every part of the state, by the establishment of easements, whether they be common roads, turnpikes, plank, or railroads. The kind of easement must depend upon the discretion of the legislature. And this power extends as well over the lands of the United States, as to those owned by individuals." "It is a power which belongs to the state, and the exercise of which is essential to the prosperity and advancement of the country."
An act of the legislature which authorizes a railroad corporation to use the streets of a city for laying the track of its road, is not taking of public property for local or private use, and is therefore constitutional. People v. Law, 34 Barb. 494. But where the adjacent proprietors have title to the centre of the street, subject to the public easement and rights in the street, it cannot be so taken except upon full compensation, they still possess rights which courts are bound to protect. People v. Law, 34 Barb. 494. The use of the street by the railroad is a new burthen, beyond the public easement, which cannot be imposed by legislative authority without compensation to the owners in fee. Wager v. The Troy Union R. R. Co., 25 N. Y. 526; Williams v. N. Y. Cent, R. R. Co., 16 N. Y. 97. But the use of streets in the city of New York, taken under the right of eminent domain, for city railroad purposes, under the authority of the act of the legislature, is not a taking of private property for public use in such a sense as to require compensation to be made to the owner of the adjacent lots. The fee of the streets in that city was acquired under an act of the legislature, 2 R. S. 209, Act of 1813. The city hold the fee of the streets in trust for publio use, for all the people of the state, and not as corporate or municipal property. The trust being publici juris, it is under the unqualified control of the legislature. People v. Kerr, 27 N. Y. 188.
ment itself, or by the agents of government, individual or corporate whom the legislature may authorize for this purpose. a Among the purposes that have been declared public, is that of making public highways, turnpike and plankroads, railroads, and canals; of erecting and constructing wharves and basins; of establishing ferries; of draining swamps and marshes; of bringing water to cities, villages and towns; to raze houses to the ground; and to prevent the spreading of a conflagration.b This last case however is not by virtue of the right of eminent domain c but a regulation, or a right, growing out of the law of inevitable necessity, called the police power, belonging to every individual, not conferred by law, but tacitly excepted from all human codes. The right to appropriate private property to public uses, is to be regarded as lying dormant in the state, until legislative action is adopted, pointing out the occasions, the mode, conditions and agencies for its appropriation. It can then only be taken pursuant to law, but a legislative act declaring the necessity, is for this purpose, the law of the land, and no further adjudication or finding is essential. d The principle thus recognized, it has been held, is no violation of justice or sound policy, and in no degree tends to impair the obligation or infringe upon the sanctity of contracts. It rests upon the basis, that public convenience and necessity are of paramount importance and obligation, to which, when duly ascertained and declared by the sovereign authority, all minor considerations and private rights and interests must be held subordinate; otherwise great public improvements, rendered necessary by the increasing wants of society, in the development of civilization and the progress of the arts; might be prevented. 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 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. e a Beekman v. Saratoga and Schenectady RR. Co., 3 Paige, 72; Wilson v. The Black Bird Creek Marsh Co., 2 Pet. 251.
b 2 Kent's Com. 338.
d Cooley on Const. Limit, 528.
c Russell v. Mayor of New York, 2 Denio, 461.
• Central Bridge Corporation v. City of Lowell, 4 Gray, 481, 482
But the property of individuals, cannot even be appropriated by the state, under this power, for the mere purposes of adding to the revenues of the state. The exercise of such a power for such a purpose, 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. a
It is regarded as the duty of every government, as the wants of traffic and travel require facilities beyond those afforded by the common highways, or their own private ways, over which the public and individuals may pass with their own vehicles, or animals; to provide and establish a higher grade, and more improved character of thoroughfares for public use; and whether these are constructed and kept in repair by an assessment upon the citizen, by way of money or labor, by tolls on turnpikes and canals, or by fares on railroads, they are all equally projected for public use; the public at large are interested in their establishment, and the government have the right to appropriate private property to that end; and such right comes within this reserved power called the right of eminent domain.
The court of dernier resort in this state, seems to have settled the question of power under our constitution, as to the right of taking private property for public purposes, either directly by the state or otherwise; they have said, "that the regulation of all matters connected with the internal traffic and commerce of the state; the development of its wealth and resources; the advancement of its material interests; either by constructing of routes and means of communication and commerce between different parts of the state, by land or water, is clearly within the legislative power, which, by the constitution, is vested in the senate and assembly. A restriction upon the legislature in respect of a matter which is properly the subject of legislation, will not be implied, but must be clearly expressed. It will not be presumed in the absence of a clearly expressed intent, that it was designed to cripple the power of the legislature in so important a part of its duties, as to deprive it of the power to develope the resources of the state, and attract within its limits the commerce and trade of other states by making available private enterprise, or by creating
a Buckingham v. Smith, 10 Ohio R. 296.
other facilities for travel and transportation; or by any means which were accessible." a
This extraordinary power has been exercised to a much greater extent in some of the states than others, and this, creates such a diversity of views as to the extent of the power, that no line of demarkation can be laid down as a universal rule. By the law of the states of Massachusetts, Maine and Rhode Island, the establishment of mills is regarded, as beneficial to the public, and mill owners and occupants, are authorized to overflow the lands of other persons, and to take such proceedings therefor, as are provided in the statutes of those states; b and the law of North Carolina is not materially, though somewhat different. c
The law in this respect, in Virginia, Kentucky, Missouri, Mississippi, Alabama and Florida, are substantially alike. By these, a person owning the land on one side of a watercourse, who proposes to erect a water grist mill, or other machine or engine, useful to the public, may make application to the court, through which, by appraisement by a jury, he obtains the right to use the opposite bank—and the right to flow the lands of others, provided the flowing does not extend to a house, yard, &c., and not to create a public nuisance. The proceedings under the statutes being regular, immediately divests the title of the owner of the land and vests it in the commonwealth, in full and absolute dominion. d
The constitutional soundness of these statutes, has been greatly doubted in other states, but long acquiesence, and repeated judicial and legislative precedents, would seem now to put it out of the power of individuals, to test the soundness of the basis, upon which the governmental action has proceeded. e
An act of the legislature taking land in this state for public use, is not even unconstitutional, because the instrumentality employed
a The People v. N. Y. Cent. RR. Co, 24 N. Y. 497, 8; People v. Draper, 15 id. 545. b The Boston & Roxbury Milldam Corporation v. Newman, 12 Pick. 467; French v. Braintree Manufac. Co., 23 id. 219; Rev. Laws of Mass., Ch. 116; Rev. Laws of Maine in Append. p. 9; Laws of Rhode Island (Ed. 1844) and Append. p. 15.
c See Gillette v Jones, 1 Dev. & Bat. R. 339, and the N. C. Statute therein re ferred to.
d Statute of Virginia in Append. p. 22; Statute of Kentucky of 1797, 1 Stat Kentucky, 606; Laws of Indiana, 65, Rev. Code of 1831; Laws of Missouri, 587; Clay's Dig. of Laws of Alabama 376; Thompson's Dig. of Laws of Florida 401, &c. Matter of Townsend 39, N. Y. 171.
for that purpose is a corporation created by the laws of another state; nor because such corporation derives a pecuniary benefit from the use of the lands so appropriated; nor because the lands appropriated, are to be used for the maintenance of a navigable canal which runs along the border of the state, but without its limits. If the use be in its nature public, the legislature are the sole judges of the question, whether the benefit to our citizens, or to the state is such, as to warrant the taking of private property therefor; and are also the sole judges of the question, what supervision or control over the use should be retained, in order to secure the contemplated benefits.
But it should be kept in mind however, that whenever in pursuance of law, the property of an individual is to be divested by these proceedings against his will, there must be a strict compliance with all the provisions of the laws, which are made for his protection and benefit. Those provisions must be regarded as in the nature of conditions precedent, which must not only be complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding, must affirmatively show such compliance.
In the state of New York, the legislature have never, it is believed, attempted to exercise the right of eminent domain in favor of mills," sites for steam engines, hotels, churches, and other like public conveniences," a and we do not therefore, deem it necessary to hazard an opinion, whether such a right would be sustained if granted; though the legislature have granted to municipalities, and districts, to take and appropriate for such uses, as for district school houses; to counties for their court houses and jails; and to cities for town halls, reservoirs of water, sewers, gas works, and other public works of like importance. In such cases the taking is public, the use is public; the benefits to accrue therefrom is public, as it is shared in a greater or less degree by the whole public. b
There is no species of property except money, or rights in action, that seem to be exempt from the power of government, to seize and appropriate it to public use under the right of eminent domain.
a Hay v. Cohoes Co. 3. Barb, 47.
b Cooley on Const Lim. 537; Nichols v. Bridgeport. 23 Com, 189.