there can be no reason for questioning its justice or for extolling its efficacy. The right exists, and the necessity is conceded. Half a century ago, it was said to be too late to set up any barrier to the power. "It has been," says the court, "in constant exercise since the existence of society, and must continue unrestricted so long as society shall last."

The statements occasionally met with, to the effect that the right of eminent domain is absolute over the property of the citizen, and that it has no limit but the necessities of the State, must be understood as true only in a limited sense. Were such expressions literally true, we should be to-day living under an absolute despotism, and never be called upon to witness the controversies so frequently occurring in the courts, wherein the learning of the profession is challenged by disputes growing out of the exercise of this conceded right.

There being, then, certain limitations which condition the lawful exercise of the right, and beyond which legislative power cannot go, we shall consider the subject of compensation as a check upon the right of eminent domain.

I. Compensation a Right not dependent upon Constitutional Provisions. Political philosophers long amused themselves in striving to invent plausible theories which should account for the organization of society and the creation of States, seeking to deduce therefrom the respective rights and duties of the governing and the governed. However interesting to speculative minds may be the results they reached, they are of little practical importance, as intelligent thought is agreed that the ultimate end and object of government is to protect those rights which, as Blackstone denominates them, are "the absolute rights of all mankind," - the right to personal security, to liberty, and to property. An absolute power over any one of these rights would be a power to destroy that which the State is primarily bound to protect. It follows that the power of the State, as conditioned by the law of

Tuckahoe Canal Co. v. Tuckahoe R. Co., 11 Leigh, 75.

its own existence, must be a power with limitations. And, in its application to the property of the citizen, it is a power of interference confined to three classes of cases.

1. It may regulate the use and possession of property, so far as may be necessary to guard against abuse, and protect the rights of all. And this is generally called the police power of the state.

2. It may take a portion of the property of the citizen by way of taxation, which goes to support the government, and is the price which the remainder of his property must pay for protection.

3. It may take private property for public use, under the right of eminent domain.

And to these three classes is it agreed that the authority of the State over the property of the citizen is confined.1

In the first of these cases, the property of the individual is ordinarily not taken from his possession, but is only subjected to those regulations as to use which are deemed necessary for the good of all, it being an old maxim of the law, Sic utere tuo ut alienum non lædas.

In the last two cases private property is taken, and for public use, but with a distinction characterizing the respective powers which is fundamental, and of great importance. Under the power of taxation, government takes the property of the individual as his share of a justly imposed and apportioned public burden, an equivalent being received in the protection which government is thereby enabled to furnish him. On the other hand, under the power of eminent domain his property is taken as something distinct from, and more than his share of, a justly apportioned public burden.2 And it is because more than his apportioned share is taken from him that it always has been regarded that the rendering the owner a just compensation in return was an obligation

145.

Burlamaqui's Politic Law, pt. iii., ch. 5, sec. 6; Munn v. Illinois, 94 U. S.

2 The People v. The Mayor, etc., of Brooklyn, 4 N. Y. 19; Matter of Dorrance Street, 4 R. I. 230; McComb v. Bell, 2 Minn. 295; McBean v. Chandler, 9 Heisk. 349, 360; Cash v. Whitworth, 13 La. An. 403; Newby v. Platte County. 25 Mo. 258, 269; Washington Avenue, 69 Pa. St. 355, 361, per Agnew, J.

which justice imposed upon the State, a limitation conditioning any lawful exercise of the right of eminent domain. So that the right of eminent domain, sometimes said to "override every other right," rides by no means "roughshod," but is restrained by the necessity of making the owner a compensation which shall be an equivalent for the injury done his private rights.

The necessity of compensation as a conditioning principle of the right of eminent domain has not been confined to those States alone that are the most justly celebrated for the reverence they pay to the sanctity of private rights; but it has been a recognized principle even in governments that are the most odious by reason of the absolute power exercised over life and property. A remarkable instance of this, mentioned by De Tott in his "Memoirs of the Turkish Government," and quoted by Mr. Justice Waties in the Supreme Court of South Carolina, in 1796, may not be uninteresting in this connection. "The Sultan Mustapha," says De Tott, "being desirous of building and endowing a new mosque, fixed upon a spot, in the city of Constantinople, which belonged to a number of individuals. He treated with all of them for the purchase of their parts, and they all willingly complied with his wishes except a Jew, who owned a small house on the place, and who refused to give it up. A considerable price was offered him, but he resisted the most tempting offers. His partiality for the spot, or his obstinacy, was stronger than his avarice. All the city was astonished at his rashness, and expected every hour to see his house demolished and his head upon a pole. But what was the conduct of the sultan, — of one who was the absolute master of the lives of millions? He consulted his mufti, who answered that private property was sacred, that the laws of the Prophet forbade his taking it absolutely, but he might compel the Jew to lease it to him as long as he pleased, at a full rent. The sultan submitted to the law."

I

In ancient Rome, at a time when it seemed a little uncertain whether the State existed for the individual or the indi

Lindsay v. The Commissioners, 2 Bay, 60.

vidual for the State, a scheme of the censors to supply the city with water by means of an aqueduct was defeated, B. C. 179, as Tacitus tells us in his Annals, by the refusal of a proprietor to permit it to be carried through his lands. So, when a private house was damaged by the laying-out of a public highway, the same writer tells us that the damages were paid by the Emperor Tiberius, upon the petition of the party to the Senate.

And in early English history it is recorded that in 1544, when the English Parliament empowered the city of London to appropriate private property for a public use, it attached to the grant the condition that the property taken should be paid for, upon the assessment of its value by commissioners to be appointed by the lord chancellor.'

"No principle in English jurisprudence," it has been said, "is better settled than that an individual cannot be deprived of his property except for the public use, and for a just compensation; and the British Parliament accordingly never authorized one individual's property to be taken for the private benefit of another, nor for public use, without first providing a just equivalent for the owner." In yet another case, it has been said that "English history does not furnish an instance of the kind; the Parliament, with all their boasted omnipotence, never committed such an outrage on private property. Such an act would be a monster in legislation, and shock all mankind." 3

* * *

This principle, that compensation is a necessary incident to the exercise of the right of eminent domain, has been regarded by all writers upon natural jurisprudence as an acknowledged principle of universal law, and one founded in natural equity.*

1 I Kent's Com. 340.

2 Newby v. Platte County, 25 Mo. 258, 261.

3 Van Horne's Lessee v. Dorrance, 2 Dall. 304, 310. And see I Bla. Com. 139.

4 Gro. de J. B., b. viii., ch. 14, sec. 7; Puffendorf De Jur. Nat. et Gen., b. viii. ch. 5, sec. 7; Bynkershoeck Quæst. Jur. Pub., b. ii., ch. 15; Burlamaqui's Politic Law, pt. iii., ch. 5, sec. 29.

In our own country, it has been generally admitted that, independent of all constitutional and statutory enactments, the right to compensation is an inseparable incident to the exercise of this power of eminent domain, and that, where the law fails to provide compensation, an attempt to take private property for public use is illegal and void. This point passed under the attention of Chancellor Kent in 1816, the Constitution of New York at that time containing no provision on the subject. The chancellor, however, held that provision for compensation was "an indispensable attendant" on the exercise of the power, and that, until such a provision was made, "it would be unjust, and contrary to the first principles of government," to allow the individual to be deprived of his property. In New Jersey the same conclusion was reached, and the court declared it to be "a settled principle of universal law that the right to compensation is an incident to the exercise of the power; that the one is inseparably connected with the other;" and they are said to exist "not as separate and distinct principles, but as parts of one and the same principle." While it has been elsewhere said that "the obligation to make just compensation is concomitant with the right," 3 and the same conclusion has been reached by other courts.4

2

It should not pass without mention that in South Carolina and Virginia a different view has been taken of this subject. In the former State, the question seems to have arisen for the first time in 1796, the Legislature having empowered the city

106.

Gardner v. Newburgh, 2 Johns. Ch. 162; Bradshaw v. Rogers, 20 Johns.

2 Sinnickson 7. Johnson, 2 Harr. 145.

3 Bonaparte v. Camden, etc., R. Co., 1 Baldw. 220.

4 Young v. McKenzie, 3 Kelly (Ga.), 31; Parham . The Justices, 9 Ga. 341; Woodfolk v. Nashville, etc., R. Co., 2 Swan, 422, 432; The State v. Glen, 7 Jones L. 321; Johnston v. Rankin, 70 N. C. 550; Piscataqua Bridge Co. v. New Hampshire Bridge Co., 7 N. H. 66; Petition of Mount Washington R. Co., 35 N. H. 134, 141, 142; East Kingston v. Towle, 48 N. H. 57, 59, 60; Eaton v. B. C. & M. R. Co., 51 N. H. 504, 510; Orr v. Quimby, 54 N. H. 590, 599, 603, per Doe, J.; Hooker v. The New Haven R. Co., 14 Conn. 146, 151; The San Francisco R. Co. v. Caldwell, 31 Cal. 372.