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allowed when the house was partly burnt, and would have been destroyed in any event.' Independently of the above statutes, an officer directing the destruction of buildings under such circumstances would be justified if the exercise was necessary and judicious.'
§ 6. Condemnation of property as a nuisance. — A nuisance, whether public or private, may be abated without compensation to the owner of the property interfered with. Whether or not certain property, or the use of it, constitutes a nuisance, cannot arbitrarily be determined by the legislative branch of the government, unless the property in fact has that character. To allow that question to be determined by the legislature would place every house, business, and all property at the uncontrolled will of legislative bodies. The public cannot make changes which will cause private property to become a nuisance, -as, by obstructing a stream, and then declare the property a nuisance, so as to require its removal without compensation. The object of the interference must be the preservation of the public health, or the interference will not be supported. A burying-ground may be condemned as a nuisance, but a law cannot be passed forbidding the burial of a certain class of people in the burying-ground, while another class is still allowed to be buried there. Such a law plainly indicates that the burying-ground is not such a nuisance as requires abating. The fact that the lots belong to individuals, and have been used for burial purposes for over a hundred years,
1 Taylor v. Plymouth, 8 Metc. 462; Parsons v. Pettingell, 11 Allen, 507.
? American Print Works v. Lawrence, 23 N. J. L. 590; where a citizen of New Jersey endeavored to hold the mayor of New York personally liable for destruction of his property in New York, which had been destroyed under the direction of the mayor.
3 Yates v. Milwaukee, 10 Wall. 497.
does not create any additional right in the owner, or make the condemnation as a nuisance à taking by eminent domain.
§ 7. Interference with property by the police power. Property may be taken or its use interfered with by the state, without compensation, by exercise of the police power of the state. Regulations which tend to benefit the public health, to remove causes of disease or public discomfort, are legitimate exercises of this power. The owner of property may be restrained from a noxious use of his property, and such a restraint is not a taking of the property. The owner is restrained, not because the public have occasion to make the like use or any use of the property, or to take any benefit or profit from it, but because the use is noxious to the public. It is not an appropriation to the public use, but the restraining of an injurious private use by the owner.” No compensation is provided, as the owner is presumed to be compensated by his share in the advantages arising from such beneficial regulations. While it is proper to control property so as to secure the public health, it is not proper to impress property for use as hospitals, without compensation. The police power may be exercised to prevent the spread of disease by disinfecting property and destroying infected clothing, but cannot justify the occupation of a house as a hospital without paying for it.* To compel railroads to erect cattle-guards is an exercise of police power, and not of eminent domain, as it tends to protect the lives of the travelling public as well as the lives of animals. Railroads may be made responsible for damages from fire communicated by engines, without impairing the privileges of their charters or taking their property. The legislature may, by general laws, make railroad companies responsible for the torts and negligence of companies leasing their roads. Owners may be restrained from taking sand and gravel from beaches on their own land because it would endanger the safety of a harbor, from cutting through the embankment of a river, or from removing trees which protect the banks of a river.: A riparian owner may be compelled to keep up a levee to protect the surrounding country from inundation; and if he refuses, it may be kept up at his expense. The course of a river may be straightened for the protection of a populous district, although injurious consequences may accrue to individuals, and such proceeding is a proper exercise of police power.
i Coates v. Mayor of New York, 7 Cow. 585.
2 The Commonwealth v. Alger, 7 Cush. 53; Baker v. Boston, 12 Pick. 184; St. Louis v. Stern, 3 Mo. App. 48.
3 Baker v. Boston, 12 Pick. 184.
§ 8. Forfeiture for violation of law. - Property taken and destroyed as forfeited for violation of law is not taken for public use, but under a penalty, and hence requires no compensation. The forfeiture to the state of the property of a corporation, on account of abuse of charter powers, gives to the corporation no claim for compensation. Tools and appliances for immoral or criminal purposes are properly forfeited and destroyed. The manufacture and sale of intoxicating liquor may be declared unlawful and the liquor forfeited. The fact that buildings and machinery devoted to the manufacture of liquor thereby become greatly reduced in value does not call for compensation to the owner.8 Regulations are made whereby the weight of a loaf of bread sold by vendors is controlled, and bread short in weight for
1 Rodemacher v. Milwaukee R. R., 41 Iowa, 297.
Erie R. R. v. Casey, 26 Pa. 287.
feited. For the forfeiture of such bread the owner has no remedy.
$ 9. Regulation of the use of private property. - There seems to be a power in the legislature, other than that of eminent domain, by which the enjoyment of private property is controlled without the consent of the owner, and without compensation to him. There are regulations for the better and more economical management of the property of adjoining owners, which, for various reasons, may be better managed by joint operation. The legislature may prescribe regulations as to the building of party-walls, division fences and ditches, and may provide for the payment to occupying claimants for the improvements which they may have erected believing that they possessed a good title. The laws protecting the equities of occupying claimants have been extended so as to give occupying claimants the option of taking the land without the consent of the owner. Such an extension of the law seems to present a case where private property is taken from one individual and given to another without the owner's consent." The power of the legislature to enact such laws can hardly be considered as a part of the power of eminent domain, or of the police power, for the reason that it is exercised, in fact, for the benefit of individuals, and as a convenient method of settling private disputes.
The Illinois Legislature has made provisions regulating the charges of public elevators, and the Supreme Court of that state has sustained the regulation, arguing that such regulations do not change the title, possession, or use of the
1 Guillotte v. New Orleans, 12 La. An. 432.
? Hunt v. Armbruster, 17 N. J. Eq. 208; 3 Kent's Com. 438; Hart v. Kucher, 5 Serg. & R. 1.
3 Coster v. Tide-Water Co., 18 N. J. Eg. 54.
warehouse; that such occupation is a public one, and may be regulated in the same manner as that of hackmen, of draymen, and on the same grounds of policy which have sustained laws fixing the price and weight of bread, the rate of interest on money, etc.; and that such regulations.do not amount to a taking of private property for public use. On appeal, the Supreme Court of the United States ? affirmed the decision of the court below, Waite, C. J., delivering the opinion; Field and Strong, JJ., dissenting. In the course of the opinion, Waite, C. J., says:
“ Statutes regulating the use, or even the price of the use, of private property do not necessarily deprive the owner of his property without due process of law.” “ Property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good. He may withdraw his grant by discontinuing the use, but so long as he maintains the use he must submit to the control."
The states may regulate the tenure of real property within their limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, and hence may prohibit the devise of real property to corporations.8
• Statutes which authorize the sale of lands held in joint tenancy, tenancy in common, or coparcenary, whenever partition cannot be conveniently made, are constitutional." The legislature may authorize the sale of property in which
I Munn v. The People, 69 Ill. 80. Statutes regulating the weight and price of bread are sustained in Alabama. Mobile v. Yuille, 3 Ala. (N. s.) 140.
2 Munn v. Illinois, 94 U. S. 113.