Legislative Authority requisite.

The right to appropriate private property to public uses [* 528] lies * dormant in the State, until legislative action is had, pointing out the occasions, the modes, conditions, and agencies for its appropriation. Private property can only be taken pursuant to law; but a legislative act declaring the necessity, being the customary mode in which that fact is determined, must be held to be for this purpose "the law of the land," and no further finding or adjudication can be essential, unless the constitution of the State has expressly required it.2 When, however,

for the purposes of the canal. So far the law authorizes the commissioners to invade 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 for ever at the pleasure of the State." Wood, J., in Buckingham v. Smith, 10 Ohio, 296. To the same effect is Cooper v. Williams, 5 Ohio, 392.

Taking money under the right of eminent domain, when it must be compensated in money afterwards, could be nothing more nor 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. See post, p. 530, note.

1 Barrow v. Page, 5 Hayw. 97.

2 66

Whatever may be the theoretical foundation for the right of eminent domain, it is certain that it attaches as an incident to every sovereignty, and constitutes a condition upon which all property is holden. When the public necessity requires it, private rights to property must yield to the paramount right of the sovereign power. We have repeatedly held that the character of the work for which the property is taken, and not the means or agencies employed for its construction, determines the question of power in the exercise of this right. It requires no judicial condemnation to subject private property to public uses. Like the power to tax, it resides in the legislative department to whom the delegation is made. It may be exercised directly or indirectly by that body; and it can only be restrained by the judiciary when its limits have been exceeded, or its authority has been abused or perverted." Kramer v. Cleveland and Pittsburg R.R. Co., 5 Ohio, N. s. 146.

action is had for this purpose, there must be kept in view that general as well as reasonable and just rule, that, whenever in pursuance of law the property of an individual is to be devested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the proceeding will be ineffectual.1 Those provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must show affirmatively such compliance. For example, if by a statute prescribing the mode of exercising the right of eminent domain, the damages to be assessed in favor of the property owner for the taking of his land are to be so assessed by disinterested freeholders of the municipality, the proceedings will be ineffectual unless they show on their face that the appraisers were such freeholders and inhabitants. So if a statute only authorizes proceedings in invitum after an effort shall have been made to agree with the owner on the compensation to be paid, the fact of such effort and its failure. must appear. So if the statute vests the title to lands. appropriated in the State or in * a corporation on payment [* 529] therefor being made, it is evident that, under the rule stated, the payment is a condition precedent to the passing of the title. And where a general railroad law authorized routes to be

1 Gillinwater v. Mississippi, &c., R.R. Co., 13 Ill. 1; Stanford v. Worn, 27 Cal. 171.

Nichols v. Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Conn. 428; People v. Brighton, 20 Mich. 57.

3

Reitenbaugh v. Chester Valley R.R. Co., 21 Penn. St. 100; West Va. Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382. But it was held in this case that if the owner appears in proceedings taken for the assessment of damages, and contests the amount without objecting the want of any such attempt, the court must presume it to have been made.

• Stacy v. Vermont Central R.R. Co., 27 Vt. 44. By the section of the statute under which the land was appropriated, it was provided that when land or other real estate was taken by the corporation, for the use of their road, and the parties were unable to agree upon the price of the land, the same should be ascertained and determined by the commissioners, together with the costs and charges accruing thereon, and upon the payment of the same, or by depositing the amount in a bank, as should be ordered by the commissioners, the corporation should be deemed to be seised and possessed of the lands. Held, that, until the payment was made, the company had no right to enter upon the land to construct the

surveyed by associated persons desirous of constructing roads, and provided that if the legislature, on being petitioned for the purpose, should decide by law that a proposed road would be of sufficient utility to justify its construction, then the company, when organized, might proceed to take land for the way, it was held that, until the route was approved by the legislature, no authority could be claimed under the law to appropriate land for the purpose.1 These cases must suffice as illustrations of a general rule, which indeed would seem to be too plain and obvious to require either illustration or discussion.2

[* 530] *So the powers granted by such statutes are not to be enlarged by intendment, especially where they are being exercised by a corporation by way of appropriation of land for its corporate purposes. "There is no rule more familiar or better settled than this that grants of corporate power, being in derogation of common right, are to be strictly construed; and this is especially the case where the power claimed is a delegation of the right of eminent domain, one of the highest powers of sovereignty per

road, or to exercise any act of ownership over it; and that a court of equity would enjoin them from exercising any such right, or they might be prosecuted in trespass at law. This case follows Baltimore and Susquehanna R.R. Co. v. Nesbit, 10 How. 395, and Bloodgood v. Mohawk and Hudson R.R. Co., 18 Wend. 10, where the statutory provisions were similar. In the case in Howard it is said: "It can hardly be questioned that without acceptance in the mode prescribed [i. e., by payment of the damages assessed], the company were not bound; that if they had been dissatisfied with the estimate placed on the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption." Daniel, J., 10 How. 399.

Gillinwater v. Mississippi, &c., R.R. Co., 13 Ill. 1. "The statute says that, after a certain other act shall have been passed, the company may then proceed to take private property for the use of their road; that is equivalent to saying that that right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its intention to reserve that power until it could judge for itself whether the proposed road would be of sufficient public utility to justify the use of this high prerogative. It did not intend to cast this power away, to be gath ered up and used by any who might choose to exercise it." Ibid, p. 4.

2 See further the cases of Atlantic and Ohio R.R. Co. v. Sullivant, 5 Ohio, N. S. 277; Parsons v. Howe, 41 Me. 218; Atkinson v. Marietta and Cincinnati R.R. Co., 15 Ohio, N. s. 21.

taining to the State itself, and interfering most seriously and often vexatiously with the ordinary rights of property." It has accordingly been held that where a railroad company was authorized by law to "enter upon any land to survey, lay down, and construct its road," "to locate and construct branch roads," &c., to appropriate land "for necessary side tracks," and "a right of way over adjacent lands sufficient to enable such company to construct and repair its road," and the company had located, and was engaged in the construction of its main road along the north side of a town, it was not authorized under this grant of power to appropriate a temporary right of way for a term of years along the south side of the town, to be used as a substitute for the main track whilst the latter was in process of construction.2 And substantially the same strict rule is applied when the State itself seeks to appropriate private property; for it is not unreasonable that the property owner should have the right to insist that the State, which selects the occasion and prescribes the conditions for the appropriation of his property, should confine its action strictly within the limits which it has marked out as sufficient. So high a prerogative as that of devesting one's estate against his will should only be exercised where the plain letter of the law permits it, and under a careful observance of the formalities prescribed for the owner's protection.

The Purpose.

The definition given of the right of eminent domain implies that the purpose for which it may be exercised must not be a mere private purpose; and it is conceded on all hands that the legislature has no power, in any case, to take the property of one individual and pass it over to another without reference to some use to which it is to be applied for the public benefit. "The right of

3

1 Currier v. Marietta and Cincinnati R.R. Co., 11 Ohio, N. s. 231; Miami Coal Co. v. Wigton, 19 Ohio, N. s. 560. See ante, pp. 394-396.

2 Currier v. Marietta and Cincinnati R.R. Co., 11 Ohio, N. s. 228. And see Gilmer v. Lime Point, 19 Cal. 47; Bensley v. Mountain Lake, &c., Co., 13 Cal. 306; Brunnig v. N. O. Canal and Banking Co., 12 La. An. 541; West Virginia Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382.

In a work of this character, we have no occasion to consider the right of the government to seize and appropriate to its own use the property of individuals in time of war, through its military authorities. That is a right which depends on the existence of hostilities, and the suspension, partially or wholly, of the

eminent domain," it has been said, "does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer.1 It seems [*531] not to be allowable, therefore, to authorize * private roads to be laid out across the lands of unwilling parties by an exercise of this right. The easement in such a case would be the property of him for whom it was established; and although the owner would not be deprived of the fee in the land, the beneficial use and exclusive enjoyment of his property would in greater or less degree be interfered with. Nor would it be material to inquire what quantum of interest would pass from him: it would be suffi cient that some interest, the appropriation of which detracted from his right and authority, and interfered with his exclusive possession as owner, had been taken against his will; and if taken for a purely private purpose, it would be unlawful.2 Nor could it be of civil laws. For recent cases in which it has been considered, see Mitchell v. Harmony, 13 How. 128; Wilson v. Crockett, 43 Mo. 216; Williams v, Wickerman, 44 Mo. 484; Yost v. Stout, 4 Cold. 205; Sutton v. Tiller, 6 Cold. 593; Taylor v. Nashville, &c., R.R. Co., ib. 646; Coolidge v. Guthrie, 8 Am. Law Reg. (N. s.) 22; Echols v. Staunton, 3 W. Va. 574; Wilson v. Franklin, 63 N. C. 259; Ferguson v. Loar, 5 Bush, 689.

1 Beekman v. Saratoga and Schenectady R.R. Co., 3 Paige, 73; Hepburn's Case, 3 Bland, 95; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 139; Matter of Albany Street, 11 Wend. 149; Matter of John and Cherry Streets, 19 Wend. 659; Cooper v. Williams, 5 Ohio, 393; Buckingham v. Smith, 10 Ohio, 296; Reeves v. Treasurer of Wood Co., 8 Ohio, N. s. 333. See this subject considered on principle and authority by Senator Tracy in Bloodgood t. Mohawk and Hudson R.R. Co., 18 Wend. 55 et seq. See also Embury v. Conner, 3 N. Y. 511; Kramer v. Cleveland and Pittsburgh R.R. Co., 5 Ohio, N. s. 146; Pratt v. Brown, 3 Wis. 603; Concord R.R. v. Greeley, 17 N. H. 47; N. Y. and Harlaem R.R. Co. v. Kip, 46 N. Y. 546; s. c. 7 Am. Rep. 385.

2 Taylor v. Porter, 4 Hill, 142, per Bronson, J.; Clack v. White, 2 Swan, 540; White v. White, 5 Barb. 474; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 139; Nesbitt v. Trumbo, 39 Ill. 110; Osborn v. Hart, 24 Wis. 90; s. c. 1 Am. Rep. 161; Tyler v. Beacher, 44 Vt. 648; Bankhead v. Brown, 25 Iowa, 540. A neighborhood road is only a private road, and taking land for it would not be for a public use. Dickey v. Tennison, 27 Mo. 373. To avoid this difficulty, it is provided by the constitutions of some of the States that private roads may be laid out under proceedings corresponding to those for the establishment of highways. There are provisions to that effect in the Constitutions of New York, Georgia, and Michigan. But in Harvey v. Thomas, 10 Watts, 65, it was held that the right might be exercised in order to the establishment of private ways from coal fields to connect them with the public improvements,