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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. Ruffin, and if the doctrine of the court should be deemed 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 aqueducts, 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 Tiberius 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 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 Ib. 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

of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their dis

held to be sufficient, and that the damages need not be actually ascertained and paid previous to the entry and appropriation of the property. See also Fletcher v. The Auburn & Sy. R. Road, 25 Wendell, 462. 464. This is the construction given to English statutes in like cases, and frequently, as Lord Denman observed, the amount of compensation cannot be ascertained until the work is done. Lister v. Lobley, 7 Adol. & Ellis, 124. But in Doe v. Georgia R. R. & B. Com., 1 Kelly, 524, it was held that the title to the property assumed for the road did not pass from the original owner, until the prescribed compensation was actually made And in some of the railway acts in England, the company is prohibited from entering on the land without consent until the ascertained compensation is paid or tendered. So in Mississippi, the damages for land taken for a railroad must first be paid before the right to the use of it becomes vested, Stewart v. R. R. Company, 7 Smedes & M. 568. It rests with the legis lature to judge of the cases which require the operation of the right of eminent domain, and it may be applied to the case of roads, turnpikes, railways, canals, ferries, bridges, &c., provided there be, in the assumption of the property, evident utility and reasonable accommodation, as respects the public. Cotrill v. Myrick, 3 Fairfield, 222. Dyer v. The Tuscaloosa Bridge Company, 2 Porter's Rep. 296. Harding v. Goodlett, 3 Yerger, 41. Chancellor Walworth, in 18 Wendell, 14, 15. The supreme court of Massachusetts in Boston Water Power Co. v. Boston and Worcester RailRoad Co., January, 1840, 23 Pick. Pep. 360, held that the right of eminent domain might be exercised in the cases of franchises as well as of personal property, in proper cases, and on making due compensation. There is no doubt of it. Property in a franchise is not more sacred than private property in land under a patent, and the principle was declared in the case of Bonaparte above mentioned. The doctrine of the cases in 14 and 18 Wendell, appears to settle the principle of constitutional law upon a reasonable and practicable foundation. See also the strong and clear case of the Louisville C. & C. Rail Road Co. v. Chappel, 1 Rice's S. C. Rep. 383, and of Backus v. Lebanon, 11 N. H. Rep. 19, to the same point. But a statute incorporating a company to take private property without consent of the owner, for the construction of a bridge, and making no provision for his indemnity, is unconstitutional and void. Thacher v. Dartmouth Bridge Co., 18 Pickering, 501, and in the case of Sinnickson v. Jackson, 4 Harrison's N. J. Rep. 129, the creation of a dam across a navigable water by an individual, under the authority of a statute providing no remedy to the owner of a meadow overflowed by means of the dam, was held to be an injury for which the owner had his remedy by action for damages. And in Taylor v. Porter, 4 Hill's N. Y. Rep. 140, it was held, that private property could not be taken, nor a private road established for

cretion, and fraudulent attacks on private right, and the law would clearly be unconstitutional and voida Real

private use, not even by a legislative act, without the consent of the owner, and that any statute doing it was unconstitutional. It can only be taken by statute for public uses, and not even then without just compensation to the owner. Ch. J. Nelson dissented on the ground that the laying out private roads over the lands of others, to accommodate one or more individuals and without the consent of the owner, was within the right of eminent domain, and justified by that principle and by immemorial usage. I apprehend that the decision of the court was founded on just principles, and that taking private property for private uses without the consent of the owner, is an abuse of the right of eminent domain, and contrary to fundamental and constitutional doctrine in the English and American law. See ante, p. 13, and note b. ibid, and the cases supra in this note, and see the subsequent note a. The revised constitution of New-York of 1846, has settled this question differently, for it declares that private roads may be opened in the manner to be prescribed by law, but the person to be benefitted must first pay the damages to be assessed. Art. 1. § 7.

The principle of not taking private property for public uses, without due compensation to the owner, has become an acknowledged one in the Scotch law, and is to be found in the British statute of 1 & 2 William IV. c. 43, relative to roads and highways. Bell's Principles of the Law of Scotland, p. 173, 174.

a Wilkinson v. Leland, 2 Peters' U. S. Rep. 653. Hardin v. Goodlett, 3 Yerger's Rep. 41. Case of Albany Street, 11 Wendell, 149. In the matter of John and Cherry Street in New-York, 19 Ibid. 659. Ch. J. Parker, in Rice v. Partman, 16 Mass. Rep. 330. Norman v. Heist, 5 Watts & Serg. 171. Varick v. Smith, 5 Paige, 146, 147. 159, 160. S. P. The opinion of the vice-chancellor in the last case, contained a spirited vindication of the constitutional sanctity of private property, against the abuses of the right of eminent domain. See also the able and elaborate opinion of Chancellor Bibb, of the Louisville chancery court in Kentucky, in the case of Applegate and others v. Lexington and Ohio Rail-Road Company, decided in November, 1838, in which case an injunction was granted after argument, enjoining the defendants from running cars and carriages, by steam or otherwise, upon their rail-road along the main street in the city of Louisville. It was adjudged to be a common nuisance with special damage, a purpresture amounting to a nuisance, and a disturbance of easements annexed by grant to private estates, and of privileges secured by statute; and that the right of eminent domain, did not authorize the legislature to delegate to any private person or company, the lawful power of disturbing private right and property for their own use and emolument. But this decree was afterward reviewed in the Ken

property, and the rights and privileges of private corpo. rate bodies, are all held by grant or charter from government, and it would be a violation of contract, and repugnant to the constitution of the United States, to interfere with private property, except under the limitations which have been mentioned.

But though property be thus protected, it is still to be understood, that the law-giver has a right to prescribe the mode and manner of using it, so far as may be necessary to prevent the abuse of the right, to the injury or annoyance of others, or of the public. The government may, by general regulations, interdict such uses of pro

tucky court of appeals and modified, and the injunction against the running of cars on the railway on Main street, in the city of Louisville, by the Lexington and Ohio Rail-Road company, dissolved. The court of appeals, in the strong opinion delivered by chief justice Robertson, declared, that upon the facts in the case, the running of rail-road cars by horses or steam through the street was not a nuisance, but conducive to the public interest and prosperity of Louisville-that the legislature could constitutionally exert her eminent domain, in taking private property for public use, through the instrumentality of a rail-road company-that private corporations, establishing turnpikes and rail-roads, may, in this respect, be deemed public agents, and may take private property for public uses on making just compensation-that no compensation was requisite in' this case, as the street was dedicated to public uses, and the railroad, with locomotive steam cars, was no nuisance or purpresture, not inconsistent with the object of the street, which was otherwise in full use as a public highway—that though the grant from the corporation, of the privilege of making a railway through the street, might be productive of some inconvenience, it was greatly overbalanced by the public benefit, resulting from the use of the rail-cars. Lexington and Ohio Rail-Road v. Applegate, 8 Dana's Rep. 289. Case of Philadelphia and Trenton Rail-Road Company, 6 Wharton's Rep. 25. S. P. But in Cooper v. Alden, Harrington's Mich. Ch. Rep. 72, an injunction to stop a rail-road through a street in the city of Detroit was granted. The rule for or against such a right, may be governed by the circumstances and sound discretion of the case. In the case of the Hudson and Delaware Canal Co. v. N. Y. and Erie R. R. Co., 9 Paige's Rep. 323, the remedy in chancery by injunction was admitted, if the construction of a rail-road would work imminent danger to the works of a canal company previously and lawfully constructed, and to the use of them.

perty as would create nuisances, and become dangerous to the lives, or health, or peace, or comfort of the citizens. Unwholesome trades, slaughter houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community.a

a Puff. b. 8. ch. 5. sec. 3. Vattel, b. 1. ch. 20. sec. 246. 255. Cowp. Rep. 269. Com. Dig. tit. By-Law, C. Willes' Rep. 388. The corporation of New-York v. Coates, 7 Cowen's Rep. 585. The State v. Tupper, Dudley's S. C. Law and Eq. Rep. 135. In the case of Tanner v. The Trustees of the Village of Albion, 5 Hill's N. Y. R. 121, it was held that a bowling alley kept for gain or hire in the village was a nuisance at common law, and that erections of every kind adapted to sports or amusements, having no useful end, and notoriously fitted up and continued in order to make a profit for the owner, were nuisances. They were temptations to idleness and dissipation, and apt to draw together great numbers of disorderly persons. The observations of the court were exceedingly stringent, but wholesome, and the doctrine and cases of 1 Hawk. P. C. Ch. 32. H. 6. Hall's case, Mod. 76. 2 Keb. 546. Rex v. Dixon, 10 Mod. 335. Rex v. Higginson, 2 Burr. 1232. Rex v. Moore, 3 B. & Adol. 184. Nolin v. Mayor and Ald. of Franklin, 4 Yerger, 163, were referred to with approbation. So if a mill-dam be a nuisance it may be restrained by injunction. 3 Iredell's N. C. Rep. in Eq. 301. But a person may not enter upon another's land to abate a nuisance, without a previous notice or request to the owner of the land, except under special circumstances. Jones v. Williams, 11 Meeson & Welsby, 176. As the constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question. In Kentucky, Tennessee, and Mississippi, the decisions are understood to be against the validity of the prohibition, whereas in Indiana, Alabama and Arkansas, they are in favor of it. (Bliss v. The Commonwealth, 2 Littall's Rep. 90. The State v. Reid, 1 Alabama Rep. N. S. 612. The State v. Mitchell, 3 Blackf. Rep. 229. The State v. Buzzard, 4 Arkansas Rep.

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