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clauses prohibiting the taking of property without due process of law, property interests cannot be taken under the exercise of the power without the payment of just compensation; thus holding, in effect, that the payment of compensation is an essential part of the taking of property by due process of law. Only a brief state

charge of sewage into a canal can amount to a taking for which compensation can be recovered.

Foster v. City of Boston, 39 Mass. (22 Pick.) 33; Attorney General v. Williams, 174 Mass. 476, 55 N. E. 77, 47 L. R. A. 314. A provision prohibiting the erection of buildings over ninety feet high may amount to a taking of property for which the owner is entitled to compensation. People v. La Grange Tp. Board, 2 Mich. 187. A township is not liable for interest on damages for the laying out of a highway. People v. Lowell Tp. Board, 9 Mich. 144; Turner v. Village of Stanton, 42 Mich. 506. One petitioning for the opening of a street is not estopped from claiming compensation for his land taken.

Phelps v. City of Detroit, 120 Mich. 447, 79 N. W. 640. The construction of an approach to an aqueduct constructed by the city may amount to a taking of property for which damages can be recovered. Teick V. Carver County Com'rs, 11 Minn. 292; State v. Rapp, 39 Minn. 65, 38 N. W. 926; Copiah County v. Lusk, 77 Miss. 136, 24 So. 972; Turlow v. Ross, 144 Mo. 234, 45 S. W. 1125. Construing Mo. Const. art. 2, § 21; Dooley v. Kansas City, 82 Mo. 444; State v. Kansas City, 89 Mo. 34, 14 S. W. 515; Hudson County L. Imp. Co. v. Seymour, 35 N. J. Law, 47; Simmons v. City of Passaic, 42 N. J. Law, 619; Cherry v. Town of Keyport Com'rs, 52 N. J. Law, 544, 20 Atl. 970; Gould v. Glass, 19 Barb.

(N. Y.) 179. A statute providing for the establishment of roads over wild or unimproved land is unconstitutional and void unless a mode is prescribed for compensating the

owner.

Crooke v. Flatbush Waterworks Co., 29 Hun (N. Y.) 245. A laying of water pipes in a public street involves no additional burden for which the abutting owner is entitled to receive compensation. Matter of Ninth Avenue, 45 N. Y. 729. Considering the compensation to which a public corporation is entitled for its property appropriated. In re One Hundred & Twenty-Seventh St., 56 How. Pr. (N. Y.) 60; In re Opening of Edgecomb Road, 72 N. Y. Supp. 1073. A municipality is entitled to compensation for land owned by it. Spears v. City of New York, 87 N. Y. 359; Benedict v. State, 120 N. Y. 228, 24 N. E. 314; Patrick v. Cross Roads Com'rs, 4 McCord (N. C.) 541; Johnston v. Rankin, 70 N. C. 550; Ferris v. Bramble, 5 Ohio St. 109; Hickox v. City of Cleveland, 8 Ohio, 543. Where a particular mode of ascertaining and making compensation for private property taken for a public use is provided, that remedy is exclusive.

City of Cincinnati v. Sherike, 47 Ohio St. 217, 25 N. E. 169. In order to create a forfeiture or bar of an owner's claim for damages, it must appear that the conditions upon which such forfeiture or bar depends have been strictly performed. City of Dayton v. Bauman, 66 Ohio

ment and discussion of the general principles will be given controlling the payment of compensation, both in respect to manner and time and what constitutes damages for which compensation can be recovered. In view of the constitutional protection afforded in every state in the Union, as well as by the Federal courts, the law can be considered as conclusively settled on the question of compensation and the possible questions involved in the subject are those which relate to the time and the manner of payment and the measure of damages. The authorities almost universally hold that legislative action providing the machinery for the exercise of the power must contain provisions for the payment of compensation, that otherwise they are void, as courts can

St. 379, 64 N. E. 433; Panning v. Gilliland, 37 Or. 369, 62 Pac. 209, denying rehearing, 61 Pac. 636; Borough of Strasburgh v. Bachman (Pa.) 14 Atl. 148. An ordinance which provides that a borough may maintain drains and ditches on private property is unconstitutional being in contravention of Pa. Const. art. 16, § 8, prohibiting the taking of private property without the payment of compensation. In re Widening of Burnish Street, 140 Pa. 531, 21 Atl. 500. An act relating to the laying out of highways which makes no provision for damages is unconstitutional.

In re New Washington Road, 23 Pa. 485. The neglect of viewers to assess damages is ground for quashing a confirmation of their report. Tutchers' Ice & Coal Co. v. City of Philadelphia, 156 Pa. 54. The owner of a wharf is entitled to compensation for the injury caused through the building of a sewer by the city whereby the sewage was deposited in the dock although the sewer is on land belonging to the city and there was no want of skill it its construction. Fuller v. Edings, 11 Rich. Law (S. C.) 239. Compensation for loss of income

from a private wharf in consequence of the establishment of a public wharf cannot be recovered by the property owner. Lawrence County v. Deadwood & G. T. R. Co., 11 S. D. 74, 75 N. W. 817; Wooldridge v. Eastland County, 70 Tex. 680, 8 S. W. 503; Watkins V. Walker County, 18 Tex. 585; City of Dallas v. Miller, 7 Tex. Civ. App. 503, 27 S. W. 498; Hamilton County v. Garrett, 62 Tex. 602; Com. v. Beeson, 3 Leigh (Va.) 821; Hutchinson v. City of Parkersburg, 25 W. Va. 226; Hood v. Finch, 8 Wis. 381; Squires v. Village of Neenah, 24 Wis. 588; Dolphin v. Pedley, 27 Wis. 469. But see Livermore v. Town of Jamaica, 23 Vt. 361. The taking of land for a public highway is not such an appropriation of the property to the public use within the meaning of Const. Part 1, art. 2, as necessarily required compensation in money to be made. To bring a case within this constitutional provision there should be such a taking of property as will divest the owner of all title to or control over a one which amounts to an unqualified appropriation of it to the public.

not supply the omission,401 but a mode providing for compensation is not necessarily invalid because it casts the initiative upon the property owner and requires him to act within a specified time or lose his rights.*

462

§ 788. Medium of payment.

The medium of payment, it is clear, must be that which affords the property owner the compensation to which he is entitled and this, from a strictly legal standpoint, excludes all forms of payment except that which is regarded as a legal tender by the laws of the country.463 In practice, however, this rule is modified to the extent that private property may be taken by the state and paid for by a pledge of its credit. Some cases also hold that this modification of the rule extends to municipal or public quasi corporations.465 It is doubtless true that if a tender of payment

461 In re Manderson (C. C. A.) 51 Fed. 501; Ex parte Martin, 13 Ark. 198; Curran v. Shattuck, 24 Cal. 427; Brunswick & W. R. Co. v. City of Waycross, 94 Ga. 102, 21 S. E. 145; Ash v. Cummings, 50 N. H. 591; People v. Nearing, 27 N. Y. 306; Sage v. City of Brooklyn, 89 N. Y. 189; Watson's Ex'r v. Pleasant Tp., 21 Ohio St. 667; In re Burnish St., 140 Pa. 531, 21 Atl. 500; Tuttle v. Knox County, 89 Tenn. 157, 14 S. W. 486; Snohomish County v. Hayward, 11 Wash. 429, 39 Pac. 652; Lewis, Em. Dom. (2d Ed.) § 452.

462 Sweet v. Rechel, 159 U. S. 380; Draper v. Mackey, 35 Ark. 497; Dunlap v. Pully, 28 Iowa, 469; Whitman v. Inhabitants of Nantucket, 169 Mass. 147; Banse v. Town of Clark, 69 Minn. 53. But see Yazoo-Miss. Delta Levee Com'rs v. Dancy, 65 Miss. 335, 3 So. 568, where it is said: "No act which devolves on the owner the duty of initiating proceedings for compensation for his property, as the condition of his obtaining it, is allowable. He cannot be required to be

come an actor under the penalty of losing his property and 'due compensation' for it, if he shall not. He may enjoy his own, secure under constitutional guaranty, until an inquest by public authority determines that it is required for public use, and fixes the price to be paid him for the sale of it, and this price must be paid or tendered before his right can be divested, and a right to ask for compensation in three months or three years is not a valid substitute for the constitutional right to 'due compensation first being made."

463 Sanborn v. Belden, 51 Cal. 266; Com. v. Peters, 2 Mass. 125; Carson v. Coleman, 11 N. J. Eq. (3 Stockt.) 106; Butler v. Ravine Road Sewer Com'rs, 39 N. J. Law, 665; In re Sedgeley Ave., 88 Pa. 509.

464 Great Falls Mfg. Co. v. Garland, 25 Fed. 521; Talbot v. Hudson, 82 Mass. (16 Gray) 417. But see State v. Beackmo, 8 Blackf. (Ind.) 246; Connecticut River. R. Co. v. Franklin County Com'rs, 127 Mass. 50, 34 Am. Rep. 338.

465 Lowndes County Com'rs Ct. v.

is made by these corporations in form different from that provided by the laws relating to legal tender and accepted by the private property owner, it will be regarded as a sufficient payment of compensation, but on principle, the payment of compensation through the issuance of municipal bonds or other evidence of indebtedness is not warranted or legal.467

§ 789. Time of payment.

The property owner is amply secure in the payment to him of compensation for property which may be legally appropriated for public use and, as already suggested, the questions at the present time considered are those which relate to the medium and time of payment. In respect to the time of payment of compensation, the subject naturally resolves itself into a discussion of the necessity for a payment before or after entry upon the property by the agent exercising the power of eminent domain.468

(a) Payment before entry. Constitutional or statutory provisions ordinarily prohibit the taking of private property without the payment of just compensation first paid or secured.469 The trans

Bowie, 34 Ala. 461; Loweree v.
City of Newark, 38 N. J. Law, 151;
In re Yost's Report, 17 Pa. 524.
But see Butler v. Ravine Road
Sewer Com'rs, 39 N. J. Law, 665.

466 Prescott v. Patterson, 49 Mich. 622; Cortlandville Highway Com'rs v. Peck, 5 Hill (N. Y.) 215.

467 City of Lafayette v. Shultz, 44 Ind. 97; Chapman v. Gates, 54 N. Y. 140; Sage v. City of Brooklyn, 89 N. Y. 189; In re Church, 92 N. Y. 1.

468 Bauman v. Ross, 167 U. S. 548. The mere recording of a map or plat for the extension of a permanent system of highways does not entitle the owner of lands proposed to be taken to any compensation of damages.

469 Grigsby v. Burtnett, 31 Cal. 406; German Sav. & Loan Soc. v. Ramish, 138 Cal. 120, 69 Pac. 89, 70 Pac. 1067; City of Delphi v. Evans,

36 Ind. 90; Helms v. Bell, 155 Ind. 502, 58 N. E. 707; Montgomery County Com'rs v. Miler, 82 Ind. 572; Shaw v. City of Charlestown, 85 Mass. (3 Allen) 538; Corey v. Inhabitants of Wrentham, 164 Mass. 18, 41 N. E. 101; Weber v. Stagray, 75 Mich. 32, 42 N. W. 665; Long v. Talley, 91 Mo. 305; Lewis v. City of Lincoln, 55 Neb. 1, 75 N. W. 154; Carpenter v. City of New York, 27 Misc. 272, 58 N. Y. Supp. 421; City of Dallas v. Miller, 7 Tex. Civ. App. 503, 27 S. W. 498. Where a city wrongfully appropriates land without first paying therefore, the damages for which it is liable are an obligation arising from the commission of a tort.

As will be seen from the authorities cited that while it is not uni

formly held that compensation should precede the appropriation, yet, it is universally held that com

471

action is regarded somewhat of the nature of a forced sale from the standpoint of the attitude of the parties to it and an application of strict legal principles requires, therefore, that the compensation should be paid or secured before entry upon the premises for the purpose of their appropriation.70 The compensation and the transfer of possession should be cotemporaneous acts.11 (b) Payment after entry. The discussion of questions involving the entry upon the premises exclude acts by the one exercising the power that have for their purpose a determination of the extent of property to be taken, for example, the running of preliminary surveys, and which are usually authorized by some statute." An entry upon the appropriation of property by private agencies before the payment of compensation is usually discountenanced, 473 the credit or promise of such an agency being regarded as insufficient and as not affording a perfect protection to the property owner for the compensation to which he is entitled. This rule does not, however, ordinarily obtain where the party exercising the power is a state or a public corporation. These are regarded agencies of such a stable and substantial character as to warrant the courts in permitting an entry upon or an appropriation of

pensation must be so certainly provided that the owner can secure it without unnecessary or unreasonable delay. Where the state permits the seizure of property without the concurrent payment of compensation, the security provided must be certain, adequate and safe. See the following cases: Taylor V. Marcy, 25 Ill. 518; Langford v. Ramsey County Com'rs, 16 Minn. 375 (Gil. 333); Gaines v. Hudson County Ave Com'rs, 37 N. J. Law, 12; Mulligan v. City of Perth Amboy, 52 N. J. Law, 132; Calking v. Baldwin, 4 Wend. (N. Y.) 667; Long v. Fuller, 68 Pa. 170.

470 Jones v. Carragan, 36 N. J. Law, 52.

471 Hawley v. Harrall, 19 Conn. 142; City of Chicago v. Shepard, 8 Ill. App. 602; County of Peoria v. Harvey, 18 Ill. 364; City of Lafay

472

ette v. Shultz, 44 Ind. 97; Grant County Com'rs v. Small, 61 Ind. 318; Blake v. City of Dubuque, 13 Iowa, 66; Abney v. Clark, 87 Iowa, 727; Comins v. Bradbury, 10 Me. 447. Compensation must be made under the constitution when property is taken. Wilkerson v. Buchanan County, 12 Mo. 328; Ackerman v. Thummel, 40 Neb. 95; Matter of Anthony Street, 20 Wend. (N. Y.) 618. No vested right is required in respect to damages assessed until the final confirmation of the report of commissioners laying out the streets. Lowmiller v. Fouser, 52 Ohio St. 123, 39 N. E. 419; Franklin County v. Brooks, 68 Tex. 679, 5 S. W. 819; Seibert v. Linton, 5 W. Va. 57.

472 State v. James, 4 Wis. 408. 473 See cases cited in Lewis, Eminent Domain (2d. Ed.) § 456.

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