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to promote the public health, or to provide public parks1 for the use of the public at large, and drives for pleasure or recreation. In laying out a road, it need not be considered with what purpose people will travel the proposed road. Roads are not made solely for the travel of those engaged on business or duty, but may be made for healthy recreation, or to visit points esteemed as pleasing natural scenery, or to supply a drive-way, or avenue to a buryingground. The public health of cities requires an abundant supply of pure water, and for this purpose land may be condemned for reservoirs and other facilities for supplying cities with water," although the act contains no provision in express terms requiring the corporation to supply, on reasonable terms, all persons applying for water. In like manner, supplics of water may be condemned.' The early doctrine was that property could not be taken for ornamental purposes only, and it has been doubted whether land could be condemned to ornament and beautify courthouse grounds. Streets may be widened, and court-yards left which are for ornament and not open to public travel.1o

§ 19. Burying-grounds. —Public burying-grounds may be established and enlarged, and for such purposes land may be condemned." An old burying-ground or a private burying-ground may be condemned for the use of the pub

1 County Court of St. Louis v. Griswold, 58 Mo. 175; Higginson v. Nahant, 11 Allen, 530; Brooklyn Park v. Armstrong, 45 N. Y. 234.

2 Mount Washington Road, 35 N. H. 134.

Higginson v. Nahant, 11 Allen, 530.

Balch v. Commissioners of Essex, 103 Mass. 106.

5 Inhabitants of Wayland v. Middlesex, 4 Gray, 500; Kane v. Baltimore, 15 Md. 240; Thorn v. Sweeney, 12 Nev. 251.

6 Lumbard v. Stearns, 4 Cush. 60.

Burden v. Stein, 27 Ala. 101.

8 Bynkershoek, as cited in Gardner v. Newburgh, 2 Johns. Ch. 162.

• Woodstock v. Gallup, 28 Vt. 587.

10 Bushwick Ave., 48 Barb. 9.

Edgecumbe v. Burlington, 46 Vt. 218; Edwards v. Stonington Cemetery

Assn., 20 Conn. 466.

lic.1 If the association is a private one, and the right of burial is not vested in the public, or in the public authorities, or subject to their control, but only in the individual lot-owners, and the land so taken is only to be divided out among individual owners, the use cannot be considered public.2

§ 20. Encouragement of mines. - Akin to the acts which allow condemnation for mill-sites are those acts for the encouragement of mines. In mining districts valuable interests may remain undeveloped on account of the obstinacy of owners who refuse to allow their lands to be used for the necessary tunnels, ditches, flumes, pipes, and dumping-places. Roads may be necessary to reach the mines and to transport the wood, lumber, and materials necessary for carrying on the business of mining. Such statutes have been passed in California and Nevada. In the former state they are held not to justify the condemnation of land for the use of an individual or single corporation, while in the latter the act does not seem to confine the exercise to cases where the roads or appliances would or could be used by more than one individual. There is no doubt that the public may establish a public road to mines, as it is important to the public that mineral wealth should be developed. Pennsylvania and Maryland similar statutes are passed for the development of mines, which will be considered hereafter under the head of Private Roads. Iron-works have been suggested as a proper public use. In Georgia the

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In

condemnation of right of way over unoccupied lands, for the carriage of water necessarily used in gold mining, is recognized as legitimate."

1 Balch v. Commissioners of Essex, 103 Mass. 106.

2 Matter of Deansville Cemetery Assn. 66 N. Y. 569.

Channel Co. v. Railroad, 51 Cal. 269.

Dayton Mining Co. v. Seawell, 11 Nev. 394.

5 Bankhead v. Brown, 25 Iowa, 540.

Tipton v. Miller, 3 Yerg. 423.

Hand Gold Mining Co. v. Parker (Sup. Ct. Ga. 1877), 6 Rep. 105.

§ 21. Improvements unknown to the framers of the constitution Miscellaneous public uses. The term "public use" is flexible, and cannot be confined to the public use known at the time of the framing of the constitution. All improvements that may be made, if useful to the public, may be encouraged by the exercise of eminent domain. Any use of any thing which will satisfy a reasonable public demand for facilities for travel, for transmission of intelligence or of commodities, would be a public use.1 In view of the large logging and lumber interests of some of the states, it has been held that land might be condemned for the erection of booms.2 The coast survey carried on under the auspices of the United States government is a public use, and justifies the taking of private property for its accomplishment. Trees may be felled and land occupied for that purpose. It has been doubted whether the power could be exercised to encourage the erection of warehouses for the convenience of the public alone, and where the legislature fixed no rates of toll or storage, and assumed no regulation of charges. A railroad may be authorized to run a track to an elevator for the general convenience of the public using the elevator."

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1 Concord R. R. v. Greely, 17 N. H. 47. The power of eminent domain may be exercised in favor of a corporation erecting a telegraph line for general transmission of intelligence. New Orleans Telegraph Co. v. Southern Telegraph Co., 53 Ala. 211.

2 Patterson v. Boom Co., 3 Dill. 465; Lancaster v. Kennebeck Co., 62 Me. 272; Lawler v. Baring Boom Co., 56 Me. 443; Cotton v. Boom Co., 22 Minn. 372. Dams known as "splash-dams," for the purpose of floating lumber, are recognized in Pennsylvania. Finney v. Somerville, 80 Pa. 59.

3 Orr v. Quimby, 54 N. H. 590.

Memphis Freight Co. v. Memphis, 4 Coldw. 419.

5 Clarke v. Blackmar, 44 N. Y. 150.

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CHAPTER III.

OF USES CONSIDERED PRIVATE.

22. Condemnation for private use.

23. Condemnation of property for sale or for use by others.

24. Inducements to declare use public-Donations of land - Payment of

damages by individuals.

25. Settlement of private disputes - Sales of land of minors.

26. Private or neighborhood roads.

27. Roads denominated private which the public may use.

28. Lateral railroads.

29. Ways of necessity.

§ 22. Condemnation for private use. — The use to which property is condemned must be public. As between individuals, no necessity however great, no exigency however imminent, no improvement however valuable, no refusal however unneighborly, no obstinacy however unreasonable, no offers of compensation however extravagant, can compel or require a man to part with one inch of his estate. Neither has the legislature the right to take the property of one individual or corporation and give it to another, even if compensation is provided. If consent be

given, the question does not in fact arise. It is immaterial to the state in which one of its citizens land may be vested, but it is of primary importance that when once vested it shall be secured. The fact that individuals may be greatly benefited by a public improvement cannot operate to pre

1 Bangor R. R. v. McComb, 60 Me. 290.

2 Hepburn's Case, 3 Bland, 95; West River Bridge v. Dix, 10 How. 507; Bangor R. R. v. McComb, 60 Me. 290. For an exception to this general statement, see ante,

9.

3 Embury v. Connor, 3 N. Y. 511.

Van Horne's Lessee v. Dorrance, 2 Dall. 310.

vent the exercise of legislative power, if the use is in fact public. It is proper to consider whether or not a large number of individuals may not be benefited by the proposed improvement.2

§ 23. Condemnation of property for sale or for use by others. Property cannot be taken for the purpose of being leased out or sold to private parties. The surplus beyond the amount required by the public is not properly taken, not being needed for the public use, and the owners are entitled to such surplus. An entire lot cannot be taken in widening a street, when the entire lot is not needed, and with the intention of afterwards selling the remainder. Such portions of lots not needed for public use cannot be taken under such condemnation, without the owner's con

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sent, although compensation is made. Such statute may be construed so as to stand, by holding that the owner's consent must be given. In Connecticut it has been considered that there may be a grant for the erection of a structure the result of which will be the production of an article or thing intended to be furnished or sold to the public to supply their reasonable wants; and that for this purpose an extensive water-power may be created, portions of which are to be offered for sale to the public. The land of one person cannot be taken to be used by another, and thereby lessen his damages, although such condemnation is proposed by a corporation authorized to condemn. The owner of a mill-privilege was damaged in the construction of a

1 Cottrill v. Myrick, 12 Me. 222.

2 Hopkinton v. Winship, 35 N. H. 209; Talbot v. Hudson, 16 Gray, 417. 3 Varick v. Smith, 5 Paige, 137; Buckingham v. Smith, 10 Ohio, 288; Cooper v. Williams, 5 Ohio, 391.

Embury v. Connor, 3 N. Y. 511; Matter of Albany St., 11 Wend. 149. The English act, 8 & 9 Vict., c. 18, 92, provides "that no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house, or other building, or manufactory, if such party be willing and able to sell and convey the whole thereof."

Todd v. Austin, 34 Conn. 78; Occum Co. v. Sprague Co., 35 Conn. 496.