of damages being the value of the property less its value as arable land. The eminent domain was also exercised in favor of canals and the reclamation of marshes. But while the theory of eminent domain had become fixed in ethical jurisprudence, and had obtained a certain recognition in legislation, it had hardly attained to the dignity of an accepted rule of action. The incorporation of the eminent domain in constitutions and codes marks its establishment as a definite power.

Comparative View of the Eminent Domain in Several Countries.

§ 6. The history of the eminent domain in France during the past century illustrates the doctrine under a system, constitutional it is true, yet differing from both American and English ideas of constitutional polity. Article Sixteen of the Declaration of Rights of 1789 reads, "Property being an inviolable and sacred right, no one can be deprived of it unless the public necessity plainly demands it, and upon condition of a just and previous indemnity." This article was incorporated in the Constitution of Sept. 14, 1791. The Code Napoleon declares, “No one is obliged to transfer his property unless it be for public utility, and in consideration of a just and previous indemnity." The Charters of 1814 and 1830 contain declarations resembling that in the Constitution of 1789, substituting "public interest' for "public necessity."

2

A comparison of legislation with constitutional declaration often shows the infirmity of mere constitutional commands not. enforceable by a judiciary vested with the power of authoritative interpretation. Thus, while the Act of Sept. 7, 1790, conformed to the spirit of the eminent domain by placing the assessment of compensation within the competency of the judiciary, the Assembly by a later law transferred the assessment to the administration, and in an act relating to the draining of marshes confirmed the jurisdiction of prefectual councils in the matter of compensation. Napoleon, impressed with the injustice of this practice, recommended the replacement of the assessment within

1 Dumay, Chemins Vicinaux ii. 748. 2 Art. 545. This Article appears in

form or substance in most of the European Codes.

the power of the judiciary.1 This recommendation was acted on in the law of March 8, 1810. The comprehensive statute or code of 1841, "Expropriation for the sake of public utility," modelled on the Act of 1833, is the basis of present practice.

§ 7. The plenary power of Parliament discourages the treatment of English constitutional questions in any but the most practical fashion. The only guide to what Parliament may do, is what Parliament has done. It might be fanciful to say that this very perfection of legal irresponsibility has proved a moral check on its abuse; but certain it is that the right of private property upheld by the common law has been hitherto no more qualified by legislation in England than here, if we except the Artisans' Dwellings Acts and a few others, which advance the list of public uses beyond the present American terminus. Blackstone does not follow the continental jurists in treating the eminent domain as a positive power, but, declaring the inviolability of private property, insists that if the state does take it compensation should be made.2 That there is no "eminent domain" in English jurisprudence is because the power is included, and the obligation to compensate lost, in the absolutism of Parliament. The only technical term approximating to "eminent domain" is compulsory powers," as used in acts enabling municipal and other corporations to take property for their use. The multiplication of such acts led to the enactment of several general laws, notably the Lands Clauses Consolidation Act of 1845, which is a complete code. This Act, or one of the others of a similar class, as the Railways Clauses Consolidation Act, is incorporated by reference in the various special acts.

The bulk of the English law is naturally of local interest only so far as the preparation of American cases is concerned, though our legislators might often mark with profit its comprehensiveness, its clearness, and the general equity of its provisions. Parts of this law, however, especially the "compensation clauses," are, together with the explanatory decisions, of practical interest

1 Notice de Schoenbrunn, Sept. 29, 1809. See Dalloz, Jurisprudence Générale, xxiii. 501 n.

2 Comm. i. 139.

to the American lawyer.1 But in consulting English authorities, regard must be paid to the radical difference between English and American statute law.2 The lawmaking power in this country is subjected to constitutional restrictions. Parliament is a law unto itself. Therefore the only question to be put in an English court is, — What does the act mean? In this country a further question may be put. Is the act constitutional? An English court will compel promoters to show that the statute confers compulsory powers.3 It will confine these powers within the straitest limits warranted by the act. It will define an obligation to compensate as broadly as the act will allow. But it will give effect to a grant of power which could not be sustained in this country. For example, compulsory powers were granted and commissioners appointed to assess compensation. The commissioners were to appoint successors, but died without having made the appointment. It was held that the right to compensation had failed, but that the powers could still be exercised."

The exercise of the eminent domain in the United States, England, and the countries wherein the civil law obtains, accord in this respect, that where a right to compensation exists, its due enforcement is secured. In the United States constitutional declarations expounded by an independent judiciary establish a more restricted field for state intervention than is possible under the conditions of constitutional government in other countries.

COMPARATIVE VIEW OF THE EMINENT DOMAIN AND
KINDRED POWERS.

§ 8. The eminent domain is but one of several manifestations of state power over private property. The powers of necessity, war, police, and taxation are commonly listed as the other arms

1 Delaplaine v. Chicago & N. R., 42 Wis. 214; Grand Rapids & I. R. v. Heisel, 47 Mich. 393. See Stanwood v. Malden, 157 Mass. 17.

2 See Crawford v. Delaware, 7 Ohio St. 459; Eaton v. Boston, C. & M. R., 51 N. H. 504.

4 Webb v. Manchester & L. R., 1 Ry. Cas. 576; Reg. v. Wycombe R., L. R. 2 Q. B. 310; Herron v. Rathmines, etc. Imp. Comm. (1892), A. C. 498. See Galloway v. London, L. R. 1 H. L. 34. 5 Hull & S. R., 5 Ry. Cas. 458.

6 Kennet & A. Nav. Co. v. Withering

8 Lamb v. North London R., L. R. 4 ton, 18 Ad. & El. N. s. 531. Ch. 522.

of sovereignty. It is important, therefore, to define these powers in order that the true field of the eminent domain may appear.

Necessity.

§ 9. To conform to a familiar classification of sovereign powers we have referred to the power of necessity. The most notable examples of this power are in cases where it is asserted in justification of the destruction of property to stay the spreading of fire. Such an act, whether committed by persons acting of their own motion or in obedience to official orders, is, if done in the exercise of a wise discretion, a justifiable trespass at common law. When the exercise of this primitive right is subjected to statutory regulation, the statute simply recognizes the right, and compensation if given at all can be claimed only for the property, and in the manner, specified. The destruction of a building so permeated by infection as to be a source of imminent danger, has been justified on the score of necessity. But the law of necessity has been vainly invoked to warrant the appropriation of a private house for a small-pox hospital, under a statute merely empowering the authorities to provide such an hospital, and the summary laying out of a road in place of one destroyed by flood. It appears, however, that where land is in imminent danger of being flooded, a levee may be built on private property without first instituting formal proceedings to condemn.

It seems to the writer that "necessity" as indicating a particular sovereign power should be discarded as indefinite. Necessity is the root of sovereignty, not a branch. Furthermore, it is as potent a plea on behalf of a man as of a state. Acts of state which rely on necessity for their justification may be always

1 Mouse's Case, 12 Coke, 63; American Print Works v. Lawrence, 21 N. J. L. 248; s. c. 23 N. J. L. 590; Russell v. New York, 2 Denio, 461; Bowditch v. Boston, 101 U. S. 16; Field v. Des Moines, 39 Ia. 575. See also McDonald v. Redwing, 13 Minn. 38.

2 American Print Works v. Lawrence, 21 N. J. L. 248; Stone v. New

York, 25 Wend. 156; Taylor v. Plymouth, 8 Met. 462.

8 Meeker v. Van Rensselaer, 15 Wend. 397.

4 Markham v. Brown, 37 Ga. 277. See also Mitchell v. Rockland, 45 Me. 496.

5 Holden v. Cole, 1 Pa. 303.

6 See Penrice v. Wallis, 37 Miss. 172.

referred to a more definite power, in the fire cases mentioned, to the power of police. It seems convenient then to let the maxim necessitas inducit privilegium stand chiefly for the justification of private trespasses, such as a circuit over private property in order to avoid an obstruction in a highway.

War Power.

§ 10. In time of war, the state may find it necessary to assume dominion over property without the consent of its owner. When the property of enemies is confiscated, there is of course no obligation to compensate. Further, if the war power be exerted to destroy property in danger of falling into and strengthening the enemy's hands, there is no liability to the owner.1 The act is justifiable on much the same grounds as warrant the destruction of property to stay a conflagration. But where the property of friends is taken in war, because of its utility to the government, there is a clear exercise of the eminent domain. Hence, where the United States assume control over private property for military purposes they are liable on an implied contract to pay its value.3

Police Power.

§ 11. The police power is insusceptible of strict definition. Its characterization by Chief Justice Taney in the License Cases, as the power of the sovereign of "governing men and things within its dominions," is intentionally vague, and Chief Justice Shaw said,5 "It is much easier to perceive and realize the existence and source of this power, than to mark its boundaries or prescribe limits to its exercise." Although attempts have been made to make definite that which these masters of the law shrank from defining, they have not been successful. The most that can be said is that if a sovereign interference 623; Mason v. United States, 14 Ct. Cl.

1 Mitchell v. Harmony, 13 How. 115; Ford v. Surget, 97 U. S. 605; United States v. Pacific R., 120 U. S. 227; Bronson v. Woolsey, 17 Johns 46.

625.

2 Cunningham v. Campbell, 33 Ga.

8 United States v. Russell, 13 Wall.

59.

4 5 How. 504.

5 Commonwealth v. Alger, 7 Cush. 53. See also Justice Miller in the Slaughter House Cases, 16 Wall. 36, 62.