Public cemeteries. Land can also be acquired under the power of eminent domain for use as a public cemetery; 331 it is only necessary that the right of burial is public and general. Although its cost may operate to the exclusion of a portion of the public, this is no objection.332 § 764. Definition of a taking. The word "taking" was the one originally and most commonly used in statutory or constitutional provisions relative to the exercise of the power of eminent domain. Its meaning has been the subject of a decisive conflict of authority and extended discussion. The extent of compensation to which one is entitled and the proper exercise of the power depend upon what is taken and whether there is a taking. The question of what is property has been considered in a previous section.333 The early meaning given to the word under discussion embodied the idea that before compensation could be recovered by the individual or in order to constitute a taking, there must be an actual physical dispossession of the thing taken from its original owner. This meaning was probably based upon a narrow construction of the word "prop town to another situated upon its borders. To remove these evils and to make this vast region fit for habitation and use seems to me plainly within the legitimate province of legislation; and, to effect such ends, I see no reason to doubt that both the prerogatives of taxation and eminent domain may be resorted to. From the earliest times, the history of the legislation of this state exhibits many examples of the exercise of both these powers for purposes not dissimilar, and by these means, without question, many improvements have been effected. The principle is similar to that which validates the transfer, by legislative authority, of private property to private corporations for the construction of railroads and canals, or the construction of scwers and streets, and the imposition of the expense upon the lands benefited." Norfleet V. Cromwell, 70 N. C. 634. 331 Evergreen Cemetery Ass'n v. Beecher, 53 Conn. 551, 5 Atl. 353; Application of St. Bernard & St. L. Cemetery Ass'n, 58 Conn. 91; Westfield Cemetery Ass'n v. Danielson, 62 Conn. 319; Farneman v. Mt. Pleasant Cemetery Ass'n, 135 Ind. 344; Barrett v. Kemp, 91 Iowa, 296; Balch v. Essex County Com'rs, 103 Mass. 106; Board of Health of Portage Tp. v. Van Hoesen, 87 Mich. 533, 14 L. R. A. 114; Fore v. Hoke, 49 Mo. App. 254; Crowell v. Londonderry, 63 N. H. 42; Henry v. Shelby County, 48 Ohio St. 671; Edgecumbe v. City of Burlington, 46 Vt. 218; Fork Ridge Baptist Cemetery Ass'n v. Redd, 33 W. Va. 262. 332 Evergreen Cemetery Ass'n v. Beecher, 53 Conn. 551. 333 See § 749, ante. erty" but with the adoption of a broader interpretation of that word, the meaning of the word "taken" has been correspondingly enlarged and the modern view is that to constitute a taking an actual physical divesting or dispossession of property is not necessary but a damage to or deprivation of any of the essential rights of property will be sufficient to constitute a taking and entitle the owner to compensation under the constitutional provision.334 These essential rights have already been stated as being those of occupation, exclusion, disposition and transmission.335 It is not necessary to here state more than general principles or doctrines but a reference to some of the leading cases and authorities will be found useful. One of the earliest cases adopting the modern and liberal theory in respect to the meaning of the word "taking" is from New Hampshire.330 The defendant in this 334 Lewis, Em. Dom. §§ 52-59. 835 See § 749, ante. 336 Eaton v. Boston, C. & M. R. Co., 51 N. H. 504. "To constitute 'a taking of property,' it seems to have sometimes been held necessary that there should be 'an exclusive appropriation,' 'a total assumption of possession,' 'a complete ouster,' an absolute or total conversion of the entire property, 'a taking of the property altogather.' These views seem to us to be founded on a misconception of the meaning of the word 'property,' as used in the various state constitutions. In a strict legal sense, land is not 'property,' but the subject of property. The term 'property,' although in common parlance frequently applied to a tract of land or a chattel, in its legal signification 'means only the rights of the owner in relation to it.' 'It denotes a right over a determinate thing.' 'Property is the right of any person to possess, use, enjoy, and dispose of a thing.' Selden, J., in Wynehamer v. The People, 13 N. Y. 378, 433; 1 Black stone, Com. 138; 2 Austin, Jurisprudence (3d Ed.) 817, 818. If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference 'takes,' pro tanto, the owner's 'property.' The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property, without which absolute property can have no legal existence. 'Use is the real side of property.' This right of user necessarily includes the right and power of excluding others from using the land. See 2 Austin, Jurisprudence (3d Ed.) 836; Wells, J., in Walker v. Old Colony & N. R. Co., 103 Mass. 10, 14. From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner's 'property.' If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interference annuls this right takes 'property,'— although the owner may still have case, a railroad company, in constructing its road through the plaintiff's farm made a cut, through which in times of freshet, water passed carrying quantities of debris upon the farm and rendering it unfit for cultivation. The question of whether this constituted a taking of any of the plaintiff's property so as to entitle him to compensation was at issue and the court held in the affirmative. The same court in a later case 337 approved and reviewed the Eaton case, and its principles have been substantially approved in all recent cases and reference to some of which is found in the notes.338 left to him valuable rights (in the article) of a more limited and circumscribed nature. He has not the same property that he formerly had. Then, he had an unlimited right; now, he has only a limited right. His absolute ownership has been reduced to a qualified ownership. Restricting A's unlimited right of using one hundred acres of land to a limited right of using the same land, may work a far greater injury to A than to take from him the title fee simple to one acre, leaving him the unrestricted right of using the remaining ninety-nine acres. Nobody doubts that the latter transaction would constitute a 'taking of property."" 337 Thompsen V. Androscoggin River Imp. Co., 54 N. H. 545. 338 Conniff v. City and County of San Francisco, 67 Cal. 45; Denver V. Bayer, 7 "Property in its broader appropriate sense, is the chattel or the City of Colo. 113. and more not alone land itself, but the right to freely possess, use and alienate the same, and many thing are considered property which have no tangible existence, but which are necessary to the satisfactory use and enjoyment of that which is tangible. The people and the courts of Colorado are constantly treating as property the right to a use of water acquired by priority of appropriation. The right of user would, of course, be of no value without the water; but it is this right that is mainly the subject of ownership, Incorporeal hereditaments, particularly those denominated easements, have always been considered property, both by the civil and the common law. They are generally attached to things corporeal, and are said to 'issue out of or concern' them; but any wrongful interference therewith has been promptly recognized and punished by the courts. No good reason is observed for discriminating against the easement in a street connected with the lot of an abutting owner. We are disposed to say that it is property within the meaning of our constitution, and any interference therewith, which results in injury to the realty, must, with the exceptions hereinafter stated, be justly compensated; if in such a case there be no technical ‘taking,' of private property, there is a damaging thereof within the constitutional inhibition. Whatever permanently prevents the adjacent owner's free use of the street for ingress or egress to or from his lot, and whatever interference with the § 765. Constitutional provisions. The uncertainty attached to both the meaning of the word "property" as well as "taking" led to the adoption in many states of constitutional amendments changing the original provision with reference to the taking of private property for a public use and adding to the word "taking" or "taken," as almost universally used, others such as "damages," "destroyed," "injured," or "injuriously affected." The effect of such constitutional changes, it has been held, is to increase and enlarge, in those states where the more liberal definitions of the word "property" and "taken" do not prevail, the owner's right to compensation. The modern theory in respect to what is a taking and the meaning of the word "property" proceed upon the condition that, as a fact, a person may be in some one of the essential rights of property seriously damaged without an actual physical taking of any part or portion of that property, a deprivation of or a damage to essential rights for which an individual is as clearly entitled to compensation as though his property was actually and physically taken.339 street permanently diminishes the value of his premises, is as much a damage to his private property as though some direct physical injury were inflicted thereon. But sometimes these interferences and resulting injury may properly, even in this state, be held to be damnum absque injuria; as where they are occasioned by the reasonable improvement of the street by the proper authority for the greater convenience of the public, or where a mere temporary inconvenience or injury results from a legitimate use thereof by the public." Town of Idaho Springs v. Woodward, 10 Colo. 104; Bradley v. New York & N. H. R. Co., 21 Conn. 294; Nevins v. City of Peoria, 41 Ill. 502; City of Elgin v. Eaton, 83 Ill. 535; Rigney v. City of Chicago, 102 Ill. 64; Grand Rapids Booming So. v. Jarvis, 30 Mich. 308; Vanderlip v. City of Grand Rapids, 73 Mich. 522; 41 N. In Maine the tendency seems to be toward the old and narrow rule. See Cushman v. Smith, 34 Me. 247, and Nichols v. Somerset & K. R. Co., 43 Me. 356. 339 Pumpelly v. Green Bay & Miss. Canal Co., 80 U. S. (13 Wall. 166. In the decision it is said: "It is not necessary that property should be § 766. Eminent domain proceedings. Through the exercise of the power of eminent domain by the state or any of its delegated agencies, the private property of an individual is arbitrarily and forcibly taken in order to supply the demands of some great and urgent public need. It is elementary to say that under such circumstances, the authority to exercise the power must be strictly followed. It must also be, as already stated,340 expressly given and is not usually included among the implied powers of public corporations although a few cases have held that in order to do some act expressly authorized or di absolutely taken, in the narrowest sense of the word, to bring the case within the protection of this constitutional provision. There may be such serious interruption to the common and necessary use of property as will be equivalent to a taking, within the meaning of the statute." And the court further say in its opinion: "The declaration states that, by reason of the dam, the water of the lake was so raised as to cause it to overflow all his land, and that the overflow remained continuously from the completion of the dam, in the year 1861, to the commencement of the suit in the year 1867, and the nature of the injuries set out in the declarations are such as show that it worked an almost complete destruction of the value of the land. The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation. It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and se curity to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and comentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private rights under the pretext of the public good, which had no warrant in the laws or practices of our ancestors." Crocker v. City of New York, 15 Fed. 405. But see Northern Transp. Co. v. City of Chicago, 99 U. S. 635. 340 See § 749, ante |