CHAPTER VIII. EMINENT DOMAIN. § 91. Definition and nature of. § 92. Delegation of the power to corporations. § 97. What acts, etc., constitute a “taking." § 91. Definition and nature of.-The right of eminent domain is the right possessed by the state, as a necessary attribute of its sovereignty, to resume the possession of private property for public use. The right is founded upon the principle, that individual interests must be subservient to those of the public, and must yield when the public exigency requires; 2 and all grants of land whether made by a state or by an individual, are subject to the right of eminent domain, unless it is expressly. relinquished. It is no objection to the exercise of the right, that lands, equally feasible, could be obtained by purchase; and neither the fact that the property is held under a mortgage, nor that it belongs to a corporation chartered by a state law, exempts it from the operation of the principle of eminent domain; 5 so that the propriety of exercising the power of eminent domain is not a judicial question, but one of political sovereignty, to be determined by the legislature; and the legislature are the exclusive judges of the degree and quality of interest proper to be taken and dedicated to the public use, as well as the necessity of taking it. But the power is to be exercised only when the public exigencies require it, and if the legislature attempts to take property confessedly not for public use, the courts may interfere and prevent it. The power of eminent domain belongs to the United States government as well as to a state government; and the only restraints upon the exercise of the power are, the necessity arising in order to promote the public interest,10 and that private property shall not be taken without just compensation.11 1 Weir v. St. Paul etc. R. R. Co. 18 Minn. 155; Pennsylvania v. Wheeling Bridge Co. 13 How. 518; Richardson v. Vt. Cent. R. R. Co. 25 Vt 465; American Print Works v. Lawrence, 3 Zab. 9; People v. Mayor etc. 32 Barb. 102; Brown v. Beatty, 34 Miss. 227. 2 Beekman v. Saratoga etc. R. R. Co. 3 Paige. 45; Ash v. Cummings, 50 N. H. 591; Enfield Toll Bridge Co. v. Hartford etc. R. R. Co. I7 Conn. 40. and see 3 Пlinois etc. Canal v. Chicago etc. R. R. Co. 14 I. 314. Cent. California Tel. Co. v. Alta Tel. Co. 22 Cal. 398; Matter of etc. R. R. Co. 77 N. Y. 248. 4 Giesy v. Cincinnati etc. R. R. Co. 4 Ohio St. 308; and see Lamb v. North London Railw. Co. Law R. 4 Ch. App. 522. 5 Alabama etc. R. R. Co. v. Kenny, 39 Ala. 397; Peoria etc. R. R. Co. . Peoria and Springfield R. R. Co. 66 Ill. 174; Matter of Buffalo, 68 N. Y. 167; N. Y. etc. R. R. Co. v. Boston etc. R. R. Co. 36 Conn. 196; Crosby v. Hanover, 36 N. H. 404. 6 People v. Smith, 21 N. Y. 595; Beekman v. Saratoga etc. R. R. Co. 3 Paige, 45. 7 De Varaigne v. Fox, 2 Blatchf. 95; Tide-Water Co. v. Coster, 18 N. J. Eq. 518. But the courts are also to judge of the necessity under the general railroad act in New York: Matter of N. Y. Cent. R. R. Co. 66 N. Y. 407. 8 Water Works Co. v. Burkhart, 41 Ind. 364; Glesy v. Cincinnati etc. R. R. Co. 4 Ohio St. 308: Talbot v. Hudson, 16 Gray, 417; and see Matter of Deansville Cemetery Assoc. 66 N. Y. 569; Speer v. Blairsville, 50 Pa. St. 150; People v. Salem, 20 Mich. 452. 9 Kohl v. United States, 91 U. S. 367; see Warren v. First Division etc. 18 Minn. 384. 10 East Tenn. etc. R. R. Co. v. Love, 3 Head, 63; Giesy v. Cin. etc. R. R. Co. 4 Ohio St. 308; San Francisco etc. R. R. Co. v. Caldwell, 31 Cal. 367; Olcott v. Supervisors, 16 Wall. 678; Bloomfield Gas Co. v. Richardson, 63 Barb. 437; Gray v. Liverpool etc. Railw. Co. 9 Beav. 391. 11 Withers v. Buckley, 20 How. 84; Bohlman v. Green Bay etc. R. R. Co. 30 Wis. 105; Colton v. Rossi, 9 Cal. 595; Avery v. Fox, 1 Abb. U. S. 246; Cameron v. Supervisors, 47 Miss. 264. § 92. Delegation of the power to corporations.The power of eminent domain may be exercised by the state itself, or the state may, in its discretion, exercise the power through its public officers, or agents, or through public or private corporations, or private individuals.1 Thus, corporate bodies have been authorized to take pri vate property for the purpose of making public highways, turnpike roads and canals, of erecting wharves and basins, of establishing ferries, of draining swamps and marshes, and of bringing water to cities and villages.2 So, it is well established, that the legislature may authorize railroad companies to take the necessary private property to the use of their roads in invitum. And the delegation of the power may be made by a general act providing for the creation of an indefinite number of corporations; and the agency employed may even be a corporation created under the laws of another state. But statutes delegating the right of eminent domain to corporations are not to be extended by implication, and must be strictly complied with; and the power granted must be strictly pursued. If a doubt remains as to the extent of the power after all reasonable intendments in its favor, it will be solved adversely to the claim of power. Authority in a city charter to "take private property for opening, altering and laying out any street, lane, avenue, alley, public square, or other public grounds," confers no power to condemu property on which to erect a city prison.9 1 West River Bridge Co. v. Dix, 6 How. 507; Harbeck v. Toledo, 11 Ohio St. 219; Mercer v. Pittsburg etc. R. R. Co. 36 Pa. St. 99: Ash v. Cummings, 50 N. H. 591; Weir v. St. Paul etc. R. R. Co. 18 Minn. 155; In re Fowler, 53 N. Y. 60; Eastern R. R. Co. v. Boston etc. R. R. 111 Mass. 125; 15 Am. R. 13. 2 Beekman v. Saratoga etc. R. R. Co. 3 Paige, 44, 73; Johnson v. Utica Water Works Co. 67 Barb. 415; Inhabitants of Wayland v. County Commissioners, 4 Gray, 500; Reddall r. Bryan, 14 Md. 444; Petition of Mt. Washington Road Co. 35 N. H. 134; Hildreth v. City of Lowell, 11 Gray, 345; Reeves v. Wood County, 8 Ouio St. 333; Barrington v. Neuse River etc. Co. 69 No. Car. 165; Curry v. Mt. Sterling, 15 111. 320; East St. Louis r. St. John, 47 Il. 463; Patterson v. Miss. etc. Boom Co. 3 Dill. 465; Re Corp. of Huddersfield etc. Law R. 10 Ch. App. 92. 3 Brown v. Beatty, 34 Miss. 227; Secombe v. Railroad Co. 23 Wall. 108; Bradley v. New York etc. R. R. Co. 21 Conn. 294; Scudder v. Trenton Falls Co. Saxt. Ch. 694; Swan v. Williams, 2 Mich. 427: Gray v. Liverpool etc. Railw. Co. 9 Beav. 391. 4 Bufalo etc. R. R. Co. v. Brainard, 9 N. Y. 100. 5 Matter of Townsend, 39 N. Y. 171. 6 Trumpler v. Bernerly, 39 Cal. 490; New York etc. R. R. Co. v. Kip. 46 N. Y. 546; Iron R. R. Co. v. Ironton, Ohio St. 299; People v. Brighton, 10 Mich. 57; Leslie v. St. Louis, 47 Mo. 474; Dennis v. Hughes, 8 Up. Can. Q. B. 444. 7 State r. Jersey City, 1 Dutch. 309; Proprietors v. Nashna etc. R. R. Co. 104 Mass. 1; Webb v. Manchester etc. Railw. Co. 4 Mylne & C. 116; Lee v. Milner, 2 Mees. & W. 824. 8 New York etc. R. R. Co. v. Kip. 46 N. Y. 546. 9 East St. Louis v. St. John, 47 Ill. 463; and see West River Bridge Co. v. Dix, 6 How. 507, 515. § 93. Property must be taken for a public use. -The basis of the enforcement of the right of eminent domain is the necessity for the public use of the property, the taking of which is sought;1 and the legislature cannot provide for the appropriation of private property to a mere private enterprise, in which the public clearly have no interest.2 But in order to constitute a public use, it is not necessary that the proposed improvement should directly benefit the people of the whole state; it is sufficient, although the direct public benefit contemplated be confined to a particular community.4 The objects and purposes of railroads, though operated by private companies, are of a public character and in furtherance of public interests; 5 and, as fostering the public use, aid may be extended to the construction of such roads by means of the power of eminent domain, under legisla tive permission.6 Draining for sanitary purposes is a public use; so, land taken, in a city, for public parks and squares, by authority of law, whether advantageous to the public for recreation, health, or business, is taken for a public use; and, in some of the states, statutes authorizing manufacturing corporations to flow back water on land, have been sustained on the ground that the means of promoting manufactures was a public use." Taking private property for the purpose of supplying towns and cities with pure water, is clearly a public use.10 But the use of lands for the purposes of rural cemetery associations is private, not public, and a statute authorizing the taking of lands for the purposes of such an association, by proceeding in invitum, is unconstitutional and void. " 1 Richardson v. Vt. Cent. R. R. Co. 25 Vt. 465; Bankhead v. Brown, 25 Iowa, 540; Young. Harrisou, 6 Ga. 130; Leisse v. St. Louis etc. R. R. Co. 2 Mo. App. 105. BOONE CORP.-11. 2 Brown v. Beatty, 34 Miss. 227; Memphis Freight Co. v. Memphis, 4 Cold. 419. 3 See United States v. Bridge Co. 6 McLean, 517; Copeland v. Packard, 16 Pick. 217; Mayor etc. v. Bailey, 2 Denio, 433. 4 Matter of Bloomfield Gas Light Co. v. Richardson, 63 Barb. 437. 5 Bradley v. N. Y. etc. R. R. Co. 21 Conn. 294; Bloodgood v. Mohawk etc. R. R. Co. 18 Wend. 9; Gibson v. Alason, 5 Nev. 283; San Francisco etc. R. R. Co. v. Caldwell, 31 Cal. 367. 6 Rensselaer etc. R. R. Co. v. Davis, 43 N. Y. 137; Shipley v. Balt. etc. R. R. Co. 34 Md. 336; Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Reed v. Louisville Bridge Co. 8 Bush. 69; Lodge v. Phila. etc. R. R. Co. 8 Phila. 345. 7 Dingley v. Boston, 100 Mass. 544; Paterson v. Baumer, 43 Iowa, 477; Draming Co. Case, il La. An. 338; Sessions v. Cruukilton, 20 Ohio St. 349; Anderson v. Kearns Draining Co. 14 Ind. 199. 8 Park Comm'rs v. Williams, 51 Ill. 57; Matter of Comm'rs etc. 63 Barb. 282; Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234; see State v. Leffingwell, 54 Mo. 458; Higginson v. Inhabitants of Nahant, 11 Allen, 530. 9 See Todd v. Austin, 34 Conn. 78; Great Falls Manuf. Co. v. Fernald, 47 N. II. 444; Arimond v. Green Bay etc. Canal Co. 31 Wis. 316; Boston Mill Dam Co. v. Newman, 12 Pick. 467; Sadler v. Langham, 34 Ala. 311; Att.-Gen. v. Evart Booming Co. 34 Mich. 462; West Va. Transp. Co. v. Oil Co. 5 Va. 382; but see Hay v. Cohoes Co. 3 Barb. 42, 47; Tyler v. Beecher, 44 Vt. 648; Loughbridge v. Harris, 42 Ga. 500. 10 Burden v. Stein, 27 Ala. 104; Kane v. City of Baltimore, 15 Md. 240; Inhabitants of Wayland v. County Comm'rs, 4 Gray, 500; Gardner v. Trustees of Newburg, 2 Johns. Ch. 162. 11 Matter of Deansville Cemetery Assoc. 66 N. Y. 569; but compare Balch v. County Comm'rs, 103 Mass. 106. § 94. What property liable to eminent domain. If the public good requires, all kinds of property are alike subject to the right of eminent domain;1 even contracts and legislative grants, which are beyond the reach of ordinary legislation, are not exempt.2 Thus, the powers and privileges of a corporation, including everything which constitutes its franchise, are subject to the same sovereign right of eminent domain, by which the property and rights of individuals are liable to be taken and appropriated to a public use. The exclusive right to maintain a toll-bridge within certain limits is a franchise which may be appropriated for the public good, upon just compensation being made therefor.4 So, the lands of a railway company, not actually in use, or not absolutely necessary for the enjoyment of its franchises, are subject to be taken under the exercise of the right of eminent |