THE

SOUTHERN

LAW REVIEW.

PUBLISHED BI-MONTHLY.

NEW SERIES-VOLUME V.

ST. LOUIS:

G. I. JONES AND COMPANY.

1880.

Entered according to Act of Congress, in the year 1880, by

G. I. JONES AND COMPANY,

In the office of the Librarian of Congress, at Washington.

SOUTHERN LAW REVIEW

VOL. V., N. S.] ST. LOUIS, APRIL, 1879.

[NUMBER I.

I.-COMPENSATION AS AN INCIDENT OF THE RIGHT OF EMINENT DOMAIN.

I. Compensation not dependent upon Constitutional Provisions.

II. Mode of Ascertaining Compensation.

III. Time of Compensation.

IV. Amount of Compensation.

V. Who is entitled to Compensation.

VI. Compensation no Justification for a Taking for Private Use.

"Eminent domain is the public power of making a compulsory purchase of private property for public use; and payment (either made, or, by agreement of the parties, to be made) is an essential part of the legal idea of a purchase, voluntary or compulsory. Voluntary, and without payment, it is a donation; compulsory, and without payment, it is robbery."—Doe, J., 54 N. H. 590, 611.

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If 'Thou shalt not covet' and 'Thou shalt not steal' were not commandments of Heaven, they should be made inviolable precepts, in every society, before it can be civilized, or made free."6 Works of John Adams, 9.

The right of eminent domain, whereby the State is justified in taking private property for public use, against the owner's consent, has been recognized from early times as a necessary incident of sovereignty. It is an attribute inherent in all governments, one of the jura majestatis, sometimes said to be "the law of the existence of every sovereignty." At this late day, when this right has been so long acquiesced in,

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." I

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