Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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EMINENT DOMAIN, an original ownership retained by the sovereign, or remaining in the state, whereby land or other private property can be taken for the public benefit. This is the most definite principle of fundamental power of the government with regard to property, and the most striking example of the sovereignty of the people as a corporate body to resume original possession of the soil, where its use is essential to their mutual advantage and the welfare of society.


—Whenever it becomes necessary for the public benefit to open a street, construct a canal, charter a railroad, lay out a park, or perform any other similar act in the interest of the public, and the owners of the property refuse to sell, or ask an exorbitant price for their lands, by the power of eminent domain the state has the right to condemn such property to that public use, and any court having due authority, by issuing its process, may compel the surrender of the property.


—In countries where by the theory of the law all property is held by tenure from the sovereign, the act is regarded merely as the resumption of an original grant, this inherent right of the sovereign having been embraced and carried with the grant as originally made. Under republican forms of government the right of eminent domain is founded on the welfare and prosperity of the people and the common benefit to be derived by the act. In our government this right is conferred by the constitution, and the security of the people confirmed by the fifth amendment to that instrument, to which further allusion will be made hereafter. The constitutions of many of the states likewise provide the right of exercise of this principle, and compensation in an adequate degree for all private property taken for the public benefit and use. This condition is also implied in law, and the custom is universal to pay for property taken from the individual, for the benefit of the public, although the constitution may not expressly provide for the same. The principle of a just compensation is recognized by all nations possessing a constitutional government and by many arbitrary governments in their acts of restitution, relief, etc. The civil code of France, as well as the constitution of the United States, and the constitutions of many, if not all, of the states of the federal Union, recognize the justice of this principle. In the absence of such constitutional provisions the courts have determined the principle to be so fundamental and imperative, that laws not recognizing, or those denying this right to the individual, are deemed void.


—There are, however, distinctions to be drawn between the principle of eminent domain and the exercise of other proscriptive powers by the government. The seizure by a sovereign of private property during a war on account of military necessity; damages to private property in time of war, either from occupation by the enemy or from wanton depredations by its own troops, (though in this last case compensation is sometimes made by special legislation); imposition upon the people of contributions for carrying on the war successfully, in the form of taxation, unless the quota of a single individual be greater than his share; taxation of private property for public use; sale of private property for taxes; destruction of crops or supplies in time of war, to prevent the enemy from obtaining such resources; destruction of property to build dams against great floods; destruction of houses to prevent the spreading of conflagrations; the condemnation of a cemetery or burial ground on the plea of an abatement of a nuisance; the demolishing of property to extirpate disease; the confiscation and consumption by fire of infected clothing or other personal property to aid in the extinction of infections disease; the taking of land for the purpose of straightening a river, and consequent injury to the owner by cutting the banks and removing the trees; the seizure and destruction of property forfeited by violation of law; the forfeiture to the state of the property of a corporation on account of the abuse of its charter powers; the destruction of tools and appliances for criminal purposes; and all such acts done and performed for the public good, safety of the government and security of the people as a community, do not partake of the principle of eminent domain, and do not carry with them the right of compensation.


—With regard to the question as to what constitutes a public use or the number of people that must be benefited to constitute a use as public, it may be stated that it is not necessary or essential that the whole community or any considerable portion of it should directly participate in the benefit to be derived from an improvement, to make the use public. The use to be public, however, must relate to the community, but not to every individual, or to each one equally. It has been laid down as a rule, that should the improvement enlarge the resources, extend the industrial energy or promote the productive power of a moderately large number of the community, the use is a public one. The legislature granting the franchise usually determines, by its act, the number of people to be benefited that constitutes the use public. Waterworks for a particular town, private ways essential to the public use, a public park established in a county where it could prove beneficial only to an adjacent city, are all public uses in strict accordance with the principle of eminent domain.


—It is not essential that the property thus taken should pass into the possession of the public. The government, in nearly all matters pertaining to the improvement of the country and the development of the nation's resources, must perform its administrative and executive work through its agents. Therefore, in strict accordance with this rule of law, the property thus taken may become the property of a private individual, but most generally falls into the possession of a corporation, such as railroad and canal companies. Under no circumstances can the private property of one individual be taken and granted to another; but it is sufficient for the purposes of eminent domain if the use is public, and the public have the privilege of using the same, whether the property taken be in the possession of one or many individuals.


—The most notable example of public use, and where the exercise of the power of eminent domain is most frequently displayed, is in the establishment of means of public conveyance and quick communication between remote points of the state and country. The rapid transportation of passengers and merchandise to different parts of the country forms one of the most essential public uses that could be devised. This is most effectually performed by the construction of railroads, which are compelled by law to transport as common carriers, at all reasonable times, passengers and freight upon all lines of road within the extent of their operation. This labor, therefore, forms a great public use, highly essential to the comfort, convenience and prosperity of each community within its reach; and while its corporation is of a private character, its work is as much for the public use and benefit as if it had been constructed by the authorities of a state, out of the funds of the public treasury. The courts have determined railroads to be public highways, and on this ground have bonds been issued and taxation imposed to aid in their construction, while the receipts collected are for their own use and are handled exclusively by themselves. In the same category are placed other means of transportation for men and goods, such as canals, turnpikes, highways, public roads, bridges and ferries, in aid of which the power of the state has been invoked through the right of eminent domain.


—Before the employment of steam, and when water power was exclusively used in operating mills, it was the practice to encourage the building of the same by delegating to individuals the power of eminent domain by condemning favorable sites for their construction, when the owners of such available locations refused obstinately to sell for that purpose. But this doctrine has undergone a great change, and many of the courts that formerly held the public character of mills and the justness of taking private property, through the exercise of eminent domain, for that purpose, now doubt the constitutionality of statutes providing for such action and with great reluctance enforce the provisions of statutes that appear to be the very extreme of legislative power. As a mill may now be run by steam instead of water, the question is no longer one of necessity but of the comparative cost between the two systems, and consequently is no longer one of necessity but of the comparative cost between the two systems, and consequently is not in the nature of a strict public use. The supreme court of the United States, in a case in error from the state of Massachusetts (Holyoke Co vs. Lyman, 15 Wall, 500), recognized to a limited extent the public use of mills, and the exercise of the right of eminent domain, where, by the nature of the country, mill sites sufficient in number for the public use could not otherwise be obtained.


—Among other uses considered public in connection with eminent domain is that of draining marshes and low lands, by means of which the public health is promoted, as well as valuable land reclaimed. Also the removal of a dam, which so obstructs a watercourse as to produce an overflow of adjacent valuable land, may be accomplished by the same process. Lands for public drains in aid of agricultural enterprises; lands for the construction of drainage sewers in towns, cities and villages; lands for the erection of school houses and for school yards, for necessary buildings, etc.; lands for the establishment of public parks for the promotion of the public health; lands for the building of public roads, for pleasure and recreation as well as for business purposes; lands for the conducting of pure water to the homes of people residing in towns and cities lands for widening and improving public streets; lands for the establishment of public burying grounds and for the suitable enlargement of the same, may all be condemned and taken for such purposes through the exercise of the powers of eminent domain.


—In thus condemning private property for public uses under the principle of eminent domain, the legislature can no so determine the question as to make it absolutely conclusive upon the courts Still the presumption is always in favor of the use declared by the legislature to be public, and if the use is surely a public one, the legislative authority can not be restrained by the courts. This can only be done when there is a well-defined attempt on the part of the legislature to evade the law and procure the condemnation of property to private uses. The rule stands that the legislature is the proper body to determine the necessity of the act, and likewise the extent to which the act can be carried; and the only restraint upon its power is that requiring compensation for the property taken by its mandatory.


—There are, however, restrictions in many of the states in granting special charters and privileges to corporations, and the condemnation of private property to public use is governed almost exclusively by generallaw. Under this system land having been granted to another public use can not be taken by general law, should the act tend to destroy a franchise. Abandoned property, though formerly owned and worked by a corporation, can be taken, but the taking of the portion of a horse railroad, constituting its most valuable possession, can not be taken under general law. A right of way taken and occupied by one road can not be taken by another, when essential to the vitality of a franchise used for the private individual for a public use by the exercise of the power of eminent domain, the assessment of a damages for all such property so taken must be made by a fair appraisement of its value by an impartial tribune. An arbitrary scale of prices can not be made the rule of appraisement. The corporation condemning, or for whom the property is condemned to be converted to a public use, amount of compensation can not be fixed by the sworn statement of the agent of the company and two disinterested freeholders, as provided in certain other property appraisements, because on of the parties is interested in the result, and it would be an evasion of the law. It must be done by a jury or commissioners, or a court without a jury, but the commissioners can not be directly appointed by the legislature without the consent of the owners, or due notice of their appointment having been sent to the owners and an opportunity given for the owners to be heard.


—A legislature can not declare a franchise forfeited and authorize a re-entry, because these interests are property, and can not be taken unless paid for by an amount of compensation established by judicial ascertainment.


—Under the rule prescribing the character of property to be taken, a dwelling house would not be exempt from condemnation more than any other property, but a statute may provide that improvements of a public character shall not take a dwelling house or other necessary buildings. The house, however, must be a bona fide dwelling house, and may include a court yard, office, outhouse and garden, whether attached or not to the main building. An unfinished house in course of erection would come under the rule of exemption. Some statutes exempt gardens, yards, orchards, warehouses and manufactories. A lumber yard would not be exempt, and a garden must be annually cultivated to be exempt. A field with a few fruit and could be condemned. Land used by an iron and tin plate manufactory for depositing rubbish would be exempt. Under the rule a workshop or manufactory would be exempt and a warehouse used in connection with manufactories would be included, though separated by a road.


—In determining the market value of all such property taken by right of eminent domain and for which compensation must be made, the value is not to be estimated at the sum the property might bring at a forced sale, but such a sum of money as the same character of property is worth in the market to parties desirous of purchasing for business purposes. The value must also be determined by the testimony and opinion of competent witnesses value of such property, to constitute them competent witnesses. Nor is the value of the property to be confined to its present use, but its value is to be estimated by the uses to which it may be put, and based on the uses to which men of ordinary business foresight, caution and prudence would usually assign it.


—In those states whose system of laws concedes the fee of public streets and roads to be vested in the adjoining owners and not in the public, or corporate towns and cities, the rule is, that the use of all such streets and highways by railroads is an additional burden and subject to compensation. If no remedy is provided by the act of a legislature authorizing the use of a street by a railroad, the remedy at common law still remains, and the payment of these damages may be enforced in advance. With regard to horse railroads it is held that the use of street by a horse railroad, when laid without disturbing the grade of a street by cutting or filling is a proper modification of an existing servitude as defined by common law, and that no new burden is enforced by reason of a change from a carriage of other vehicle to a car, especially as the horse railroad does not attempt to debar other vehicles from the use of its particular part of the road. However, should it impair access to buildings by changing the grades of streets, compensation under the rule must be made to adjoining owners.


—With regard to the power of the federal government to exercise the right of eminent domain, it is held that the federal government, being an independent sovereignty, possesses the power to condemn lands for public use, within the jurisdiction of states. This principle was clearly defined in the case of Kohel vs. the United States (91 U. S., 367) This decision declared the existence of "an independent power in the federal government to condemn lands of private persons in the several states, for its own public use. That the right is the offspring of public necessity and is inseparable from sovereignty, unless denied to it by its fundamental law."


—It is also held that the federal government and the state governments are each sovereign within their respective spheres, and neither compelled to obtain from the other permission to exercise its lawful powers; and that the right of eminent domain was one of the means employed to obtain lands for public use, and so recognised by the constitution. Judge Cooley, in the case of Trimbley vs. Humphrey (22 Mich., 471), held that the state could not condemn lands for the use of the United States so Hs to bind the United States in the payment of compensation. This of course implies the right of the United States to make its own condemnation in the states for public uses. In the Maryland case of Reddall vs. Bryan (14 Md., 444). the court held the uses of the general government to be co-ordinate with the public uses of the state wherein the land was condemned.


—The fifth amendment to the constitution of the United States provides for the exercise of the power of eminent domain, by providing for the compensation of private lands taken by the United States. This provision was also intended as a security to the states against the encroachments of federal power upon the rights of private citizens. Under the genius of our institutions the federal government can not interfere with the rights of the states in the exercise of their powers of eminent domain within their respective jurisdictions, as the states are separate communities. The constitution restricts this encroachment. The exercise of the right of eminent domain by the federal government to an unlimited degree was strongly objected to by the several states before the formation of the Union, and prevented, in part, some of the states from ratifying the great instrument for a considerable period of time, and a restraining safeguard was early adopted in the fifth constitutional amendment. With regard to the condemnation of lands within a state whose fee is vested in the United States, the rule is, that all such lands when held by the united States as a mere proprietor and not devoted to any special use, are liable to condemnation for public use, are liable to condemnation for public uses, such as streets, highways, railroads, etc. Should the lands the occupied as forts, arsenals, armories, navy yards or other public purposes, they can not be taken for any ordinary public use. This rule was established when the city of Chicago attempted to make streets through the grounds on which Fort Dearborn was located. The streets proposed by the Municipal authorities would cut through some of the public buildings and seriously impair the public use to which the land was devoted. The city was enjoined from opening the streets, and the supreme court of the United States sustained the injunction. (United States vs. Chicago. 7 How., 185.)


—The right of way granted by congress over public lands holds good as against pre-emptors who have failed to perfect their title by fully complying with the land laws of the United States, or against mere squatters. with regard to the right of eminent domain relating to lands owned by states or municipalities, the rule is, that states may be proprietors of lands, and when such lands are taken by the exercise of eminent domain, the state must be compensated like a private individual. When an authority is conferred by legislative act over lands belonging to the state, in the absence of a specific grant or the expression of a design to aid a corporation by the gift lf the land, the rule is generally maintained that such authority is merely a use of lands on payment of a compensation, and the state can recover compensation as an individual proprietor.


—There are however, exceptions to this rule in some of the states, and an authority by legislative enactment to enter upon state lands is presumed to be a devise by the state. In Indiana it has been held that the right granted to make a road between two fixed points, carried with it the right to take the intervening lands belonging to the state, without compensation. Such a privilege, however, could not be assumed over lands already devoted to another public use by the state, and the rule which might correctly apply to vacant lands owned by the states, could not apply to the taking of a franchise or a park, or a road owned by a city and which had been paid for.


—Foreign corporations may be authorized to condemn lands in the state while the improvements may be operated entirely out of the state, but the power must be conferred in express terms, as under a general act permitting condemnation for railroad purpose, a foreign corporation could not condemn land. Nor could the owner institute proceedings against such corporations to recover assessment of damages in accordance with state, but such a corporation occupying the right of way over home roads, could be enjoined from operating its road until the damages of original right of way should be paid. One state can not condemn property or franchises in another state, but a bridge across a river may be condemned by one state up to the line of another.


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