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& 1. Definitions and sources of power.

2. Distinction between the power of eminent domain and that of taxation. 3. Taking by virtue of the war-power. 4. Taking by virtue of overruling necessity. 5. Destruction of buildings to prevent the spread of conflagration. 6. Condemnation of property as a nuisance. 7. Interference with property by the police power. 8. Forfeiture for violation of law. 9. Regulation of the use of private property.

§ 1. Definitions and sources of power.- Eminent domain, or the power of the sovereign to condemn private property for public use, has been recognized and treated of by jurists for centuries. The commentators on the civil law treat it as an established power of long standing. Puffendorf calls it the “ exercise of transcendental propriety;" as if the sovereign thereby resumed possession of that which had been previously granted to the subject upon the condition that it might be again resumed to meet the necessities of the sovereign. The seizure of private property in time of war to answer the military necessities of the sovereign, and the imposition of uniform contributions from the subject, in the shape of taxation, are coördinate powers, and do not require a return or compensation to the subject. As a general rule, any contribution made by a subject to a sovereign, greater than his quota or pro

· Puffendorf, b. 8, c. 5, & 3; Fletcher v. Peck, 6 Cranch, 87.


portion, requires compensation to the subject.' The Civil Code of France recognizes the necessity of just compensation, and the annals of all nations enjoying a constitutional government, and of many despotic nations, show that the moral sense of mankind requires such compensation. In the United States this right of the subject is secured by the Federal Constitution, and by a separate clause in the bill of rights of almost every state in the Union. In the absence of provisions in the constitutions, the courts have considered that the principle was so universal and fundamental that laws not recognizing the right of the subject to compensation would be void. The constitutions of the states do not confer upon the legislatures the power of eminent domain, but they recognize its existence and attach conditions upon the exercise of the power. The right existed prior to the constitutions." 6


§ 2. Distinction between the power of eminent domain and that of taxation. - Taxation exacts property from indi

viduals as their respective shares of contribution to a public burden. Private property taken by the power of eminent domain is not taken as the owner's share of such a contribution, but as so much beyond it. Taxation operates upon a class of persons and things, and by some rule of appor

1 Puffendorf, b. 8, c. 3.

· Art. 515: “No one can be compelled to give up his property, except for the public use, and for a just and previous indemnity.”

8 Binney's Case, 2 Bland, 99.

+ Mount Washington Road, 35 N. H. 134; Bradshaw v. Rogers, 20 Johns. 103; Gardner v. Newburgh, 2 Johns. Ch. 162; Sinnickson v. Johnson, 17 N. J. L. 129; Harness v. Chesapeake Canal Co., 1 Md. Ch. 248; Hamilton v. Annapolis R. R., 1 Md. Ch. 107; Freedle v. North Carolina R. R., 4 Jones L. 89; Raleigh R. R. v. Davis, 2 Dev. & B. 451. The only cases doubting this proposition are in South Carolina. The State v. City Council, 12 Rich. L. 702; Patrick v. Commissioners, 4 McCord, 541; McLauchlin v. Charlotte R. R., 5 Rich. L. 583; The State v. Dawson, 3 Hill (S. C.), 100.

5 Todd v. Austin, 34 Conn. 78; Wallace v. Karlenowefski, 19 Barb. 118.

6 Heyward v. Mayor of New York, 7 N. Y. 314; Brown v. Beatty, 34 Miss. 227; Martin, ex parte, 13 Ark. 198.

tionment. The exercise of eminent domain operates on individual persons and things, and without any reference to what is exacted from others. Local assessments for waterrates or benefits, or to pay subscriptions to railroads, are not properly in the exercise of eminent domain, but of the power of taxation. Taxation to raise bounty for soldiers is not a taking of private property for public use, although levied on a party not subject to draft. The taking of money by a tax is not a taking of private property for public use, within the meaning of the constitutional provision concerning eminent domain, and the sale of property for taxes is not by virtue of that power."

§ 3. Taking by virtue of the war-power.8 — The State is not obliged to make compensation for damages done to its citizens by its own troops in time of war, although done wantonly and without authority, or for damages caused by the occupation of the enemy. The destruction of crops or supplies, to prevent their falling into the hands of the enemy, is supported on the grounds of the public safety.' By the strict rules of international law, the property of citizens, found in the enemy's lines, may be taken by the State without liability for compensation. This power will

1 The People v. Mayor of Brooklyn, 4 N. Y. 419; Newby v. Platte County, 25 Mo. 259; Gilman v. Sheboygın, 2 Black, 510; Booth v. Woodbury, 32 Conn. 118; Hammett v. Philadelphia, 65 Pa. 145; Moale v. Baltimore, 5 Md. 314; Aurora v. West, 9 Ind. 74; Emery v. San Francisco Gas Co., 28 Cal. 315.

2 Allen v. Drew, 44 Vt. 174; Lexington v. McQuillan's Heirs, 9 Dana, 513; Chambers o. Satterlee, 40 Cal. 497 ; Emery v. San Francisco Gas Co., 28 Cal. 345; Moran v. Troy, 16 N. Y. Sup. Ct. 540.

3 Grant v. Courter, 24 Barb. 232. • Booth v. Woodbury, 32 Conn. 118. 6 The State v. Demarest, 32 N. J. L. 528. • Emery v. San Francisco Gas Co., 28 Cal. 345; Martin v. Dix, 52 Miss. 53. ? Griffin v. Dogan, 48 Miss. 11.

8 For a valuable series of articles on the war power of the State, and the distinctions between the powers of eminent domain and the war-power for military purposes, see 13 Am. L. Reg. 2015, 337, 401. • Respublica v. Sparhawk, 1 Dall. 383.


not justify an officer of the volunteer militia in ordering an encampment of militia on a man's land without his consent, such act in time of peace being a trespass,' or of impressing provisions for the purpose of sending the same to the armies in the field, there being no immediate urgency.' Private property impressed by virtue of the war-power is not controlled by the constitutional provisions in relation to eminent domain, and does not revert to the owner, although existing in specie, after the war. The Supreme Court of Kentucky * has held, without good reason, that the emancipation of the slaves, during the civil war, was an exercise of the power of eminent domain, requiring compensation to the owners of the slaves.

The Federal government, in the late civil war, mitigated the harshness of the ancient rule by legislation. Compensation has been generally provided for property taken or occupied in the loyal states during the war. When land was entered upon and occupied, the occupation was considered to be under an implied lease, at a reasonable rental, which was determined by an appraisement."

§ 4. Taking by virtue of overruling necessity. - Another power of the State by which private property is taken or injured, where no compensation is provided to the owner, is that of a taking by virtue of overruling necessity. Exigencies arise which no law has anticipated, and which cannot await the action of the legislature. Property may be destroyed to make bulwarks against floods, and houses may be razed to prevent the spreading of fire, because for the

1 Brigham o. Edmands, 7 Gray, 359.

Cunningham v. Campbell, 33 Ga. 625; Cox v. Cummings, 33 Ga. 549. See also Mitchell v. Harmony, 13 How. 115.

• Taylor v. Nashville R. R., 6 Coldw. 646. · Corbin v. Marsh, 2 Duv. 193.

• Johnson v. United States, 4 Ct. of Cl. 248; Waters v. United States, 4 Ct. of Cl. 389. • Parham o. Justices, 9 Ga. 341; Hale v. Lawrence, 23 N. J. L. 605.

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public good. A destruction of a building not on fire, to prevent the spreading of fire is not a taking of the property for public use. The common law protected individuals, on the ground of overruling necessity, from acts which would otherwise have been trespass. If a road be founderous, a passenger may lawfully go through a private enclosure. So if a man is assaulted, he may fly through another's close.“


§ 5. Destruction of buildings to prevent the spread of a conflagration. — By the common law, the actors in destroying buildings were liable for an injudicious exercise of the right, and in order to prevent a failure to exercise promptness and vigor in time of such emergencies, on account of reluctance of individuals to assume the risk, statutes have been passed in several of the states giving authority to certain officials to exercise the right. Compensation has also been provided to owners for the destruction of their property. These statutes are considered as giving a right where otherwise there was none, and, being in derogation of the common law, have been strictly construed. So strict was the construction in New York that compensation was refused to the owner of merchandise within the buildings destroyed, because the statute only provided for compensation for buildings destroyed or injured. The Massachusetts statute required that the effort should be the means of stopping the fire, and that no compensation should be

1 Saltpeter Case, 12 Coke, 13; Mouse's Case, 12 Coke, 62; Taylor v. Plymouth, 8 Metc. 462; Mayor of New York v. Lord, 18 Wend. 126; 8. C., 17 Wend. 285; Field v. Des Moines, 39 Iowa, 575; Surocco v. Geary, 3 Cal. 69; McDonald v. Red Wing, 13 Minn. 38.

McDonald v. Red Wing, 13 Minn. 38. 8 2 Bla. Com. 36, note by Christian.

Bac. Abr. 173. 6 Taylor v. Plymouth, 8 Metc. 462; Mayor of New York o. Lord, 18 Wend. 126.

6 Russell v. Mayor of New York, 2 Denio, 461; Stone v. Mayor of New York, 25 Wend. 157, qualifying Mayor of New York v. Lord, 17 Wend. 285.

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