states, and the unrestricted right to resort to it given by the Constitution was a leading objection to the adoption of that instrument; and so strongly was that objection grounded in the public mind, that a restraining safe-guard was deemed necessary as one of the first constitutional amendments.1

4

2

3

§ 349. Removal of condemnation proceedings to the United States courts. A suit involving the condemnation of lands, where the question to be tried is the value of the land, may be removed from the state to the Federal courts, although the proceeding in its inception was an appraisement by commissioners under a charter granted by the legislature of the state. The proceedings should conform to the practice of the state courts in like cases. The exercise of eminent domain is not, in fact, a suit in law or equity against the state, when the title is to be vested in a railroad, and not in a state. The state has no interest in that controversy, which relates only to the amount of compensation to be paid. The form of action by which proceedings are commenced does not signify. If there is a provision by which the proceedings may be brought into the State Circuit Court, it is an action when there; and if one of the parties is a non-resident of the state, the right of removal is plain. The state cannot limit the remedy to its own. courts.5

§ 350. Condemnation of land belonging to the Federal government. Land within a state, and held by the United States as a mere proprietor, and not reserved or appropriated to any special purpose, is liable to condemna

1 Bogert v. United States, 2 Ct. of Cl. 159.

2 Patterson v. Boom Co., 3 Dill. 465.

3 Kohl v. United States, 91 U. S. 367.

The Eleventh Amendment to the United States Constitution is as follows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." Warren v. Wisconsin Valley R. R., 6 Bi ss. 425.

3

4

tion for streets, highways, and as railroads,' like the lands of other persons. If, however, the land is occupied and used as a fort, light-house, armory, or for other public purposes, it cannot be taken for an ordinary local object, though public. Lands so occupied cannot be flowed under the flowage acts. This was the doctrine in United States v. Ames, where a mill-owner endeavored to flow back upon the premises occupied by the Springfield armory. The city of Chicago endeavored to cut streets through the ground on which Fort Dearborn was situated. The proposed streets would prostrate some of the public buildings, and materially impair the public uses to which the land was devoted. The Supreme Court of the United States sustained an injunction against the city, restraining the opening of the streets. The court seemed to recognize that there must be a public object so clearly superior and paramount that preference might be given to it; but we doubt whether the Supreme Court would, at this time, countenance an effort of one of the states to condemn land occupied and used by the Federal government for public purposes. The Federal government has a certain control over railroads as postroads, yet the railroads must be considered as the private property of the corporations building them, unless the right of way has been acquired by act of Congress, or over the public domain. Any interference with such roads, approaching a taking or occupation of their rights of way, would be unconstitutional, unless compensation was provided. The grant by Congress of a right of way over public land is good against preëmptors who have not perfected that right by proving up and paying for the land, or against mere squatters."

6

1 United States v. Railroad Bridge, 6 McLean, 517.

2 United States v. Chicago, 7 How. 185; United States v. Railroad Bridge,

6 McLean, 517; United States v. Ames, 1 Woodb. & M. 76.

3 1 Woodb. & M. 76.

• United States v. Chicago, 7 How. 185.

5 Atlantic Telegraph Co. v. Chicago R. R., 6 Biss. 158.

Western Pacific R. R. v. Tevis, 41 Cal. 489 (qualifying California R. R. v. Gould, 21 Cal. 254).

7 Rosa v. Missouri R. R., 18 Kan. 124; 4 Cent. L. J. 596.

§ 351. Condemnation of land owned by state or municipality. — The state may be a proprietor of lands, and when such land is taken it must be paid for. The authority to locate over lands belonging to the state, when there is no expression in the act of a design on the part of the legislature to aid the corporation by a gift of the land, is an authority to use the land on payment of compensation, and the state may institute proceedings for compensation as an individual proprietor.1 In some states the contrary doctrine prevails, and the authority to enter on the land presumes a gift by the state." In Indiana, it is considered that authority to make a road between two designated points includes the right to take, without compensation, lands belonging to the state intervening. The constitutional provision refers only to the taking of private, and not of public, property, and the company need not avoid a tract of land because it was owned by the state. Such a privilege could not be extended to the taking of land already devoted by the state to another public use, such as a blind-asylum.* When the state grants its own lands, or rights of way over the same, the law is not one taking private property for public uses." The rule which might, perhaps, apply to vacant lands owned by the state could not, in reason, apply to the taking of a ferry franchise owned by a city, or to a park which a city owned in fee, or to a road which had been condemned and paid for.8

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§ 352. Condemnation by corporation of another state. -A foreign corporation may be authorized to condemn land within the state, although the improvement may be

1 The Commonwealth v. Boston R. R., 3 Cush. 25.

2 Pennsylvania R. R. v. New York R. R., 23 N. J. Eq. 157; Davis v. East Tennessee R. R., 1 Sneed, 94.

Indiana R. R. v. The State, 3 Ind. 421.

4 St. Louis R. R. v. Blind Institution, 43 Ill. 303.

5 Hobart v. Ford, 6 Nev. 77.

Benson v. Mayor of New York, 10 Barb. 223.

Matter of Ninth Avenue, 45 N. Y. 729.

The People v. Commissioners of Palatine, 53 Barb. 70.

operated entirely outside of the state. A water supply in one state may be condemned for the use of a canal in another state. Such an improvement may be of great use to the citizens of the state where the land lies; and, besides, the discretion of the legislature in such matters is not to be interfered with by the courts. The power must be conferred in express terms. Under a general act authorizing condemnation for railroad purposes, a foreign corporation could not condemn land, nor could the owner institute proceedings against such corporation for the assessment of damages in the statutory mode. Such corporation, occupying the right of way of a home corporation, could be enjoined from operating its road until the damages due on the original taking of the right of way should be paid.2

§ 353. Bridge between states. One state cannot condemn property or franchises in another state. All may be taken that is within its own borders. The Connecticut River is the boundary between New Hampshire and Vermont, the state line of New Hampshire being the west line of the river. A bridge across the river may be condemned by the state of New Hampshire, although the corporation owning it might be a Vermont corporation. The condemnation could extend up to the Vermont line.3

1 Matter of Townsend, 39 N. Y. 171.

2 Holbert v. St. Louis R. R., 45 Iowa, 23.

3 Crosby v. Hanover, 36 N. H. 404.

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369

CHAPTER XXXI.

OF DRAINAGE AND SEWERAGE ACTS.

354. Improvement of swamps- Sewers.

355. Private drains.

356. Application.

357. Nature and extent of damages.

358. Pollution of stream.

359. Hearing before jury.

360. Act to be confined to drainage purposes.

Sewers. The im

§ 354. Improvement of swamps provement of waste land by drainage, and the consequent improvement of the general health of the public, are such manifest and general advantages as to justify the exercise of eminent domain.1 Statutes authorizing drainage do not authorize the withdrawal of water from the lands of one person and accumulating the water on the lands of another." The sewerage of a large city may properly require the condemnation of private property; and the use of the public streets for sewers is a proper use, and one contemplated in the original condemnation.*

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§ 355. Private drains. The use must be for the general public, and not for the sole benefit of private individuals, irrespective of the public welfare. The public character does not depend on the number of individuals using, but the use must be common to a considerable area of country; and the

1 See cases cited, ante, ? 16; In re Ryers,

in N. Y. Supreme Court, 10 Hun, 93).

2 French v. White, 24 Conn. 170.

3 Hildreth v. Lowell, 11 Gray, 345.

See ante, 2 55.

N. Y. Ct. App., 1878 (reported

5 Reeves v. Wood Co., 8 Ohio St. 333. The doctrine of the above case would make the Missouri statute of 1877 (Myer's Supp. 147) unconstitutional. See ante, ¿ 22.