*339 is lawful to raze houses to the *ground to prevent the spreading of a conflagration.* These are cases of urgent necessity in which no action lay at common law by the individual, who sustained the injury; but private property must, in many other instances, yield to

inherent sovereign power, gives to the legislature the control of private property for public uses, and for public uses only.0 Roads may be cut through the cultivated

Choke, J., 6 Ed. 4. 7. Domat's Civil Lata, b. 2. tit. 9, sec. 2. art 3, 4. See Infra, p. 568.

« Dyer's Rep. 36. b. 2 Bttlst. 61, Arg., and several cases from the Year Books, there cited. Case of the King's Prerogative v. Saltpetre, 12 Co. 13. Mouse's case, 12 Coke, 63. 1 Dallas' Rep. 363, M'Kean, Ch. J. Buller, J., in Governor, etc., v. Meredith, 4 Term. Rep. 797.

b In the city of New-York by statute, (2 R. L. 368,) in case a building be destroyed by order of the city magistracy, to stop a conflagration, the city must indemnify the owner, unless it be a case in which the building would have been inevitably destroyed by the fire, if it had not been pulled down or blown up. Mayor of New-York v. Lord, 17 Wendell, 285. But the remedy of the owner is said to be limited to the amount of the assessment made according to the statute, and the corporation of New-York is not liable to an action at common law, for compensation for the loss of property so destroyed by order of the magistracy. Russell v. the Mayor of Now-York, 2 Denio, 461. The remedy under the act does not extend to allow a recovery in damages for merchandise in the building when destroyed, and being the property of a third person. Stone v. The Mayor, &.c., of New-York, 25 Wendell, 157.

Grotins, b- 1. ch. 1. sec. 6. Ibid. b. 2. ch. 14. sec. 7. Ibid. b. 3. ch. 19. sec. 7.—ch. 20. sec . 7. Puff. b. 8. ch. 5. sec. 7. Bynk. Qu<sst. Jur. Pub. b. 2. 15. Vattet, b. 1. ch. 20. sec. 244. Esprit des Loix, tom. iii. 203. Gardner v. Village of Newburgh, 2 Johns. Ch. Rep. 162. Louisville C. & C. Railroad v. Chappel, 1 Rice's S. C. Rep. 383. Ce Domain Eminent, n'a lien que dans une necessity d l'etat. Puff par Barbeyrae, ibid.—Biens publies que appartiennent a l'etat, qui doivent servir poor la conservation de' l'etat, s'appellent lo Domain de l'Etat. Puff- Md. sec. 8. Here the distinction is clearly marked between the eminent domain and the public domain, or domain of the state, and for the rights of the latter as vested in the United States, see vol. i. 257. But M. Proudhon, in his Traite du Domaine Publie, makes a material subdivision of this second branch of domain, and applies the public domain to that kind of property which the government holds as mere trustee for the use ot the publie, such


The right of eminent domain, or lands of individuals without their consent, but in NewYork, and generally in the other states, it must be done by town officers of their own appointment, upon the previous application of twelve freeholders; and the value of the lands, and amount of the damages, must be assessed by a jury, and paid to the owner.1 1 So lands adjoining the New-York canals were made liable to be assumed for the public use, so far as was necessary for the great object of the canals; and provision was made for compensation to the individuals injured, by the assessment and payment of the damages.1" In these and other instances which might be enumerated, the interest of the public is deemed paramount to that of any private individual; and yet, even here, the constitution of the United States, and of most of the states of the Union, have imposed a great and valuable check upon the exercise of legislative power, by declaring, that private property should not be taken for public use without just compensation. A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the law-giver to deprive an individual of his property without his consent; and this principle, in American constitutional jurisprudence, is founded in natural equity, and is laid down by jurists as an acknowledged principle of universal law.0

as public highways, navigable rivers, salt springs, Acc., and which are not as of course, alienable, and the domain of the state which applies only to things in which the state has the same absolute property as an individual would have in like cases. See the American Jurist, No. 37, p. 121. * N. Y. Revised Statutes, vol. i. p. 514, 515.

b The damages may be assessed in any equitable and fair mode, to be provided by law, without the intervention of a jury, inasmuch as trial by jury is only required on issues in fact, in civil and criminal cases, in courts of justice. Beekman v. Saratoga and Schenectady Rail Road Co., 3 Paige, 45. Bonaparte v. C. Sl A. Rail Road Co., 1 Baldwin's C. C. U. S. Rep. 205. Rail Road Company v. Davis, 2 Dev. $ Batt. N. C. Sup. C. Rep. 451. 464. Willyard v. Hamilton, 7 OAio Rep. 115. Louisville C. & C. Rail Road v. Chappel, 1 Rice's S. C. Rep. 383.

Grotins, De Jure B. $ P. b. 3. ch. 19. sec. 7.—ch. 20. sec. 7. Puff. De Jure Nat. et Oent. b. 8. ch. 5. sec. 3. 7. Bynk. Quast. Jur. Pub. h. 2.

Vol. II. 32

*It undoubtedly must rest, as a general rule, in the wisdom of the legislature, to determine when public uses

ch. 15. Vattel, b. 1. ch. 20. sec. 244. Heinec. Elem. Jar. et Nat. b. 2. ch. 8. sec. 170. The better opinion is, that the compensation, or offer of it, must precede or be concurrent with the seizure and entry upon private property under the authority of the state. The government is bound, in such cases, to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may and ought to be restrained by injunction. The process of injunction was granted by the court of chancery in Gardner v. Village of Newburgh, and it was also sustained by the supreme court of Louisiana in a like case. 2 Johns. Ch. Rep. 162. Henderson v. Mayor, dec., of New-Orleans, 5 Miller's Louis. Rep. 416. The Civil Code of Louisiana, art. 489, had declared that there must be the previous indemnity, and so did the Code Napoleon, art. 545, and the constitutional charter of Louis XVIII. The provision in our American constitutions is essentially the same, though not in the same words precisely, and it would seem to require the same construction. Several of them declare that private property shall not be taken for public uses without full compensation being made. The settled and fundamental doctrine is, that government has no right to take private property for public purposes without giving A just compensation; and it seems to be necessarily implied, that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception concurrently in point of time with the actual exercise of the right of eminent domain. This point was ably discussed in Thompson v. Grand Gulf R. R. and Banking Company, 3 Howard, 240, and the decision was that the compensation must precede the seizure of private property for public uses. This was also the opinion of Chancellor Walworth of New-York, in Lyon v. Jerome, 26 Wendell, 497. But it is not to be understood that a statute assuming private property for public purposes, without compensation, is absolutely void, so as to render all persons acting in execution of it trespassers. Some of the judicial dicta seem to go that length, but others do not. 12 Serg. <J- Rawle, 366. 372. 20 Johns. Rep. 745. In Core v. Thompson, 6 Wendell, 634, it was held, that neither the payment nor the assessment need precede the opening of a road over the land of an individual. The compensation may have been provided for without constituting part and parcel of the act itself, and I think the more reasonable and practicable construction to be, that the statute would be prima facie good and binding, and sufficient to justify acts done under it, until a party was restrained by judicial process, founded on the paramount authority of the constitution.

In Bonaparte v. C. & A. Rail Road Co., 1 Baldwin's C. C. U. S. Rsp. 205, it was held, that a law taking private property for public use, withrequire the assumption of private property; but if they should take it for a purpose not of a public nature, as if

oat providing for compensation, was not void, for it may be done by a subsequent law. But the execution of the law will be enjoined, until the provision be made, and the payment ought to be simultaneous with the aetual appropriation of the property. It is admitted that even a statute franchise, as a toll bridge or road, must yield to the sovereign right of eminent domain, and may be impaired or taken away, and appropriated to public uses whenever the public exigencies require it, for a franchise is fixed and determinate property; but it must be on the condition of making just compensation to the proprietors. Even if the damage be merely consequential or indirect, as by the creation of a new and rival franchise in a case required by public necessities, the same compensation is due, and the cases of Thurston v. Hancock, 12 Mass. Rep. 220, and Callender v. Marsh. 1 Pick. Rep. 418, are erroneous, so far as they contravene such a palpably clear and just doctrine. If A. be the owner of a mill, and the legislature authorize a diversion of the water course which supplies it, whereby the mill is injured or ruined, is not that a consequential damage to be paid for? The solid principle is too deeply rooted in law and justice to be shaken. Gardner v. Village of Newburgh, 2 Johnson's Ch. Rep. 139. Story, J., in Charles River Bridge v. Warren Bridge, 11 Peter's Rep. 638. 641. The just compensation to the owner for taking his property for public uses without his consent, means the actual value of the property in money, without any deduction for estimated profit or advantages accruing to the own er from the public nse of his property. Speculative advantages or disadvantages, independent of the intrinsic value of the property, from the improvement, are a matter of set-off against eachother, and do not affect the dry claim for the intrinsic value of the property taken. Jacob v. City of Louisville. 9 Dana's Rep. 114. In Symonds v. City of Cincinnati, 14 Ohio R. 147, it was adjudged that it was a competent matter of defence in a suit for compensation for the value of private property taken for public use, to show the increased benefit conferred on the owner by the appropriation, as a Bet-off against the value of the property taken. The case was ably discussed, and Mr. Justice Read who dissented from the decision, contended that the owner was entitled to the value of his property taken without the deduction of any reflecting advantage. In Rail Road Company v. Davis, 2 Der. 4> Batt. N. C. Rep. 451, it was held, that payment of the compensation and the assessment of the quantum might be made subse quently, and need not necessarily precede the entry and possession, under the statute anthority; and that the legislature was not restricted to a mere easement in the property, but might take the entire interest of the individual, if it deemed the public exigency to require it, and that though a railroad company be a private corporation, and its outlays and emoluments private property, yet the road is a public highway and for public uses, and the absolute property may be vested in tho company. Tho questions in

the legislature should take the property of A., and give it to B., or if they should vacate a grant of property, or

that case were ably discussed in the opinion delivered by Ch. J. Ruflin, and if the doctrine of the court should be doomed rather latitudinary in respect to the legislative right of eminent domain, it is to be observed that the constitution of North Carolina has no express provision, declaring that "private property shall not be taken for public uses without just compensation." But though it be not a constitutional principle yet the principle exists with stringent force independent of any positive provision.

There is no such provision in the constitution of South Carolina, and it was accordingly held, after an able discussion, that the legislature had a right to cause roads to be opened and materials taken for keeping them in repair, without the consent of the owner of the private property, and without making compensation. Several of the judges were not satisfied with the decision, as respected the absence of compensation and especially in the delegation of such power to the commissioners of roads. The opinion of Mr. Justice Richardson, in support of the duty of making compensation, was very elaborate and powerful. The State v. Dawson, 3 Hill's Rep. 100.

In ancient Rome such respect was paid to the rights of private property, that a scheme of the censors, B. C. 179, to supply the city with water by means of an aqueduct, was defeated by the refusal of a proprietor to let it be carried through his lands, and at a subsequent period the senate decreed that it should be lawful to take from the adjoining lands of individuals, the materials requisite for the repairs of aquoducts, upon an estimate of the value or damages to be made by good men, and doing at the same time the least possible injury to the owners. When a private house was injured by a public road or aqueduct, the Emperor Tiberins paid the damage on petition by the party to the senate. Tacit. Ann. b. 1. § 75. So, in London, by an act of Parliament as early as 1544, the corporation of the city was invested with the power to enter upon and appropriate private I property requisite for the purpose of supplying the city with water; but the ground needed was to be appraised by three or four indifferent persons appointed by the Lord Chancellor, and to be paid for within one month after possession taken. See King's Memoir on the Croton Aqueduct, with a learned and very interesting Preliminary Essay, p. 25. 27. 51.

The exercise of the legislative power of eminent domain was learnedly discussed in the case of Bloodgood v. M. & H. Rail Road Company, 14 Wendell, 51. S. C. 18 lb. 1. 59; and it was held by the court, in the last resort on error, that the legislature might authorize rail road companies to enter upon and appropriate private property in land for the use of the road, so far as it became indispensably necessary for the purpose of the road; provided, provision be made in the act for the assessment and payment to the owner of the damages incurred. If the provision was made, it was

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