New York and of the State of Maryland.1 The Constitution of the State of New York contained the provision that" no person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." The legislature enacted, with reference to the city of New York, that whenever part only of a lot should be required for a street, the commissioners for assessing compensation might, if they deemed it expedient, include the whole lot, and that the part not required for the street should, upon confirmation of their report, be vested in fee in the city, with authority to appropriate it to public uses, or, if not thus appropriated, to sell it. The court inclined to the opinion that the legislature did not intend by this provision to authorize the compulsory taking of more land than the public needed, and that the statute should be construed so as to require the owner's consent to the appropriation of the part not required for the public use. But the court expressly decided that if the statute did intend to authorize the compulsory taking of the whole, when part only was required for the use of a street, it would be in conflict with the above provision of the Constitution of the State, guaranteeing protection to private property. It was, however, further adjudged that the owner's consent to the appropriation would remove all objections on the ground of the unconstitutionality of the statute; that such consent need not be in writing; and that the receipt by the owner of damages allowed by the commissioners is evidence of his consent.2 1 Albany Street, In re, 11 Wend. 148 (1834); Embury v. Conner, 3 N. Y. (3 Comst.) 511 (1850), reversing s. c. 2 Sandf. 98; Baltimore v. Clunet, 23 Md. 449 (1865); Mills Em. Dom. sec. 23; Lewis Em. Dom. sec. 269. 2 Referring to this statute, in Embury v. Conner, supra, Jewett, J., delivering the opinion of the Court of Appeals, says, "It needs no argument to show that the end and design of this section was not to take private property for the use of the public. It manifestly goes upon the ground that the property so authorized to be taken is not wanted for the purpose of forming or improving a street, the object in view for which the proceedings are instituted. In the matter of Albany Street, 11 Wend. 148, the constitutionality of this enactment came directly under the consideration of the Supreme Court, on application to confirm the report of the commissioners in that matter. The court then held that if that provision was intended merely to give to the corporation capacity to take property under such circumstances, with the consent of the owner, and then to dispose of it, there could be no objection to it. But if it was to be taken literally, that the commissioners might, against the consent of the owner, take the whole lot, when only a part was required for public use, and the residue to be applied to private use, it assumed a power which the legislature did not possess. This decision went mainly upon the application contained in the last member of the clause of sec. 7 of art. 7 of the Constitution of 1821, - that 'no person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.' Chief Justice Savage said: "The Constitution, by author. izing the appropriation of private property § 593. Effect of accepting Damages. - The voluntary acceptance of damages by the owner in the absence of fraud or mistake in fact operates as a waiver of whatever errors may have existed in the proceeding, and estops the party from disputing their legality. So the actual receipt of damages by the party entitled thereto is a waiver of to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the pri vate use of another.' In Bloodgood v. Mohawk & H. R. R. R. Co., 18 Wend. (N. Y.) 59, Mr. Senator Tracy said the words should be construed as equivalent to a constitutional declaration that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation.' Bronson, J., in Taylor v. Porter, 4 Hill (N. Y.), 147, in reference to this question, said that although he felt no disposition to question the soundness of these views, yet it seemed to him that the case stood stronger upon the first member of the clause, 'No person shall be deprived of life, liberty, or property, without due process of law;' that the words, due process of law,' in that place, could not mean less than a prosecution or suit, instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title to property. The same doctrine was held in John and Cherry Streets, In re, 19 Wend. (N. Y.) 659, and by the chancellor in Varick v. Smith, 5 Paige (N. Y.), 137, and was admitted by all the members of the Court for the Correction of Errors, whose opinions have been reported in the case referred to, of Bloodgood v. Mohawk & H. R. R. R. Co., 18 Wend. 1. I think these decisions should be regarded as having settled the point, that a statute is unconstitutional and void which authorizes the transfer of one man's property to another without the consent of the own. er, although compensation is made. The late Chancellor Kent, in reference to the decision in Taylor v. Porter, says: 'I apprehend that the decision of the court was founded on just principles, and that taking private property for private uses without the consent of the owner is an abuse of the right of eminent domain, and contrary to fundamental and constitutional doctrine in the English and American law.' (2 Kent Com. (5th ed.) note c, 340.) But it is insisted that as the enactment is only held to be void on the ground that it takes private property for private uses against the owner's consent, if the consent be given, all objection on the ground of unconstitutionality is removed. The decisions to which I have referred proceed upon that principle, and Mr. Justice Bronson, in Taylor v. Porter, in terms concedes that the objection has no application when the owner consents. If we read the statute in question with the proviso that the owner consent, and I think we should, that consent removes all obstacles, and lets the statute in to operate the same as if it had in terms contained the condition." That such is the effect of consent. Sedgw on Stat. and Const. Law, 111, and Mr. Justice Cooley's opinion, Const. Lim. 541, note; Baltimore v. Clunet, 23 Md. 449 (1865). 1 Hartshorn v. Potroff, 89 III. 509; Rees v. Chicago, 38 Ill. 322; Town v. Blackberry, 29 Ill. 137; Pursley v. Hays, 17 Iowa, 310; Deford v. Mercer, 24 Iowa, 118; 2 Smith Lead. Cas. (5 Am. ed.) 662; Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234 (1871); Commonwealth v. Shuman's Adm., 18 Pa. St. 343; Burns v. Milw. & Miss. R. R. Co., 9 Wis. 450; Smith v. Warden, 19 Pa. St. 426; State v. Stanley, 14 Ind. 409; Magrath v. Brock Tp., 13 Up. Can. Q. B. 629; Kile v. Yellowhead, 80 Ill. 208; Mills Em. Dom. sec. 329, and cases. Where a turnpike company accepted compensation for a portion of its road, taken by a city under its right of eminent domain, it was held that it was estopped from objecting to the exercise by the city of control over the road. Albany v. Watervliet T. & R. R. Co., 108 N. Y. 14. delay in depositing and paying the money, and is a ratification of the proceedings.1 § 594 (459). Dower Right. As dower is not the result of contract, but is a positive legislative institution, it is constitutionally competent for the legislature to authorize lands to be taken by a municipal corporation for a market, street, or other public use, upon an appraisement and payment of their value to the husband, the holder of the fee; and such taking and payment will confer an absolute title, divested of any inchoate right of dower.2 Nor is a. widow dowable in lands dedicated by her husband in his lifetime to the public, where the dedication is complete, or has been accepted and acted upon by the municipal authorities. Therefore, where the husband agreed to open a street through his property, upon which a market-house was to be erected, and which was accordingly erected under an ordinance of the city, his widow was decided not to be entitled to dower in the ground covered by the market-house. The court was of opinion that the case was not to be distinguished from the ordinary one of a condemnation of land to public uses, and that such uses are inconsistent with the existence of private rights which could be enjoyed only by interfering with the rights of the public.3 § 595 (460). Public Use; what constitutes such a Use. It is agreed that individual property can be compulsorily appropriated by the public only for public use. What is a public use has, in some 1 Hawley v. Harrall, 19 Conn. 142, 151. Confirmation of defective proceedings by legislative authority. Yost's Report, 17 Pa. St. 524; Bennett v. Fisher, 26 Iowa, 497 (1868). Compare Baltimore v. Horn, 26 Md. 194 (1866); Lennon v. New York, 55 N. Y. 361, 365 (1874); Indianapolis v. Kingsbury, 101 Ind. 200; ante, secs. 77, 79, 419, 544. ? Moore v. New York, 8 N. Y. 110 (1853). This case is commented on and limited in Simar v. Canaday, 53 N. Y. 298 (1873). Post, sec. 635; Lewis Em. Dom. sec. 323, and cases; Wheeler v. Kirtland, 27 N. J. Eq. 534. 3 Gwynne v. Cincinnati, 3 Ohio, 25 (1827); Duncan v. Terre Haute, 85 Ind. 104. But where land, charged with a dower interest by decree of an Orphans' Court, was taken for a street without no tice to the widow, it was held that the municipal corporation was liable for the income therefrom, to be recovered in an action of debt. York Borough v. Welsh, 117 Pa. St. 174. Post, sec. 635. Dower and homestead rights. Mills Em. Dom. sec. 71. 4 Cole v. La Grange, 113 U. S. 1. One of the most acute and able American jurists maintains, in an interesting article, that the right to take private property for purposes of utility rests not in public uses but on public policy, or the law of neces sity. Mr. Justice Campbell, Vol. I. No. 2, p. 97, Bench and Bar. See, in same publication, Vol. I. No. 1, p. 1, Prof. Washburn's article on "Taxation to Build Railroads," and an able article in Am. Law Rev. Oct. 1870. What are "public uses," discussed by Judge Redfield in Allen v. Jay, 60 Me. 124 (1871); s. c. 12 Am. Law Reg. (N. s.) 481, 493. Post aspects of the subject, given rise to much controversy, particularly in reference to the delegated exercise of the power by, or for the benefit of private corporations, companies, and individuals. Since municipal corporations are instituted for public purposes, authority to take property in order to carry out their chartered powers is not often open to the objection that the use is private and not public. Municipal uses proper are public uses. Highways are conceded to be, and manifestly are, matters of public concern; and hence the condemnation of property for streets, alleys, and public ways is, undeniably, for a public use.1 § 596 (461). Same subject. The mere fact that individuals have subscribed money, or given a bond to a city or town, to contribute towards the expense of laying out or altering a street, will not vitiate the proceedings, nor will it prove that the land was taken for the accommodation of private individuals, and not for public uses.2 But if such a bond was made the basis of the proceedings, or if the street was laid out or widened, " colorably," to use the expression of Parsons, C. J. " for the use of the city, but really for the benefit of the individual" giving or procuring the bond, the proceedings would be set aside.* § 597 (462). Same subject. Water Supply, &c. We have seen above that lands can be condemned only for public uses. Let us consider what are public uses so far as respects municipalities. It is a competent and frequently a wise and just exercise of the right of eminent domain, to empower towns and cities, upon compensation being made, to appropriate private property for the purpose of sec. 736. Power to condemn land for cem- 1 Per Woodbury, J., in West River Br. Co. v. Dix, 6 How. (U. S.) 545; Angell on Highways, sec. 86; Arnold v. Cov. & Cin. Br. Co., 1 Duvall (Ky.), 372; United States v. Railroad Bridge Co., 6 McLean, 517; Redfield on Railways, sec. 63. The private property of a citizen cannot, by the exercise of legislative power in any form, be taken from him and given to another, or to a corporation. Such act would deprive the citizen of his property without due process of law. Turner v. Althaus, 6 Neb. 54 (1877). So a city, having condemned land for a public wharf, has no power to lease it to a grain elevator company for a term of years. Belcher Sugar Refining Co. v. St. Louis Grain Ele vator Co., 82 Mo. 121; Mills Em. Dom. sec. 23. 2 Parks v. Boston, 8 Pick. (Mass.) 218 (1829); Copeland v. Packard, 16 Pick. (Mass.) 217; ante, sec. 458. 8 Ib.; Commonwealth v. Sawin, 2 Pick. (Mass.), 547 (1824); Freeport v. Bristol, 9 Pick. (Mass.) 46 (1829). 4 Commonwealth v. Cambridge, 7 Mass. 166, 167 (1810); Parks v. Boston, supra ; Crockett v. Boston, 5 Cush. (Mass.) 182, 190 (1849), where the above cases are com mented on; ante, sec. 458. supplying the inhabitants with pure water. This is clearly a public use.1 Other illustrations of what is a public use are given in the note.2 1 Wayland v. Middlesex Co. Comm'rs, 4 Gray (Mass.), 500, per Thomas, J. (1855); Burden v. Stein, 27 Ala. 104 (1855). See Same v. Same, 25 Ala. 455; Reddall v. Bryan, 14 Md. 444 (1859); Gardner v. Newburgh Trs., 2 Johns. (N. Y.) Ch. 162 (1816); Ham v. Salem, 10 Mass. 350; Bailey v. Woburn, 126 Mass. 416; Martin v. Gleason, 139 Mass. 183; Tyler v. Hndson, 147 Mass. 609 (1888); Mills Em. Dom. sec. 18, and cases; Lewis Em. Dom. sec. 173; Rochester Water Comm'rs, In re, 66 N. Y. 413 (1876); Middletown Village, In re, 82 N. Y. 196; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123; Lake, &c. Water Co. v. Con 2 It is not within the corporate powers of a city to open streets on lands within the corporate limits, belonging to the United States, and which have never been sold to private persons. United States v. Chicago, 7 How. (U. S.) 185. But the United States may lay out and dedicate lands for streets and public places the same as any other proprietor. State of Illinois v. Ill. Cent. R. R. (Chicago Lake Front Case) 33 Fed. Rep. 730, before Harlan and Blodgett, JJ. (1888). Private property, it was admitted by the Maryland Court of Appeals, can only be taken for "public use;" but the words " public use were considered to mean not merely a use by the State or the inhabitants thereof, but also a use for the government of the United States; and, therefore, a statute of the State of Maryland, authorizing the expropriation of land in that State, for the purpose of supplying the city of Washington with water, was held constitutional. Reddall v. Bryan, 14 Md. 444 (1859). See, as to power of a State to condemn or to authorize the condemnation of lands owned by the United States, Mills Em. Dom. sec. 350, and cases; Lewis Em. Dom. sec. 203; Cooley Const. Lim. 525, 526, and note; Gilmer v. Lime Point, 18 Cal. 229; 19 Cal. 47. In Massachusetts it has been determined that a State may consent that the United States may compulsorily take and hold land for the site of a postoffice and public treasury. Burt v. Merchants' Insurance Co., 106 Mass. 356 (1871); s. c. 8 Am. Rep. 339. The Supreme Court of Michigan, however, has decided that a State cannot condemn private property with a view to turn the same over to the United States for lighthouse purposes. People v. Humphrey, 23 Mich. 471 (1871); s. c. 9 Am, Rep. 94. It is now settled by the Supreme Court of the United States that the general government may exercise the right of eminent domain in the States so far as is necessary to the enjoyment of the powers conferred upon it by the Federal Constitution. Koll v. United States, 91 U. S. 367 (1875). Where the State of Georgia purchased a tract of land for the purpose of the erection of car-shops, and other build. ings necessary to the successful operation of the Western and Atlantic Railroad, the mayor and council of the city of Atlanta, under the general authority of their charter to lay out streets, &c., and sec. 965 of the Code, sought to appropriate a portion of said land for a street. Held, that such contemplated action was properly enjoined. Atlanta v. Central Railroad & B. Co., 53 Ga. 120 (1874). In Indiana where, by statute, munici pal corporations have express power to make streets narrower, it is held that the easement of owners of abutting property in the street, being a valuable property right recognized by law, cannot be appropriated against the consent of the owner without due compensation, and that when the legislature has authorized, by necessary implication, the abandoning of a part of a street to the adjoining owners, the improvement is thus declared to be for a public use by it, and the courts cannot interfere with such declaration, "unless it is apparent at first blush that the proposed use is not public." Rensselaer v. Leopold, 106 Ind. 29; see post, chap. xviii. |