quire an easement in invitum in such property, when this can be done without doing injury to the public, or essentially interfering with the uses for which it was acquired and is held by the corporation which owns it.1

§ 589 (456). What may be taken or condemned. As the legis lature is the sole judge of the public necessity which requires or renders expedient the exercise of the power of eminent domain without the owner's consent, so it is the exclusive judge of the amount of land and of the estate in land which the public end to be subserved requires shall be taken. But as the right originates in necessity, so it is limited by it. The principle and its limitations have found interesting illustrations in cases which we shall notice, arising under powers conferred upon municipalities to enable them to execute certain public purposes. The legislature has the constitutional power expressly to authorize a municipal corporation compulsorily to acquire the absolute fee simple to lands of private persons, required for public use, upon the payment of a just compensation.2 Accordingly a statute "to enable" a city "to abate a nuisance and

1 Rochester Water Comm'rs, In re, 66 N. Y. 413, 418 (1876). The right of a street railroad company to the use of a street for the purposes of its business is a property right, subject to condemnation for public use; and the legislature may authorize other persons, either natural or artificial, to do a similar business in the same street, or to use the tracks of the company, by making compensation to it whenever, in their judgment, the public good requires. The State, in the exercise of the right of eminent domain, or a corporation to which it has delegated the right, is not bound to take the entire estate, and strictly should take only such an interest as is necessary to be acquired to accomplish the public purpose in view. Sixth Av. R. Co. v. Kerr, 72 N. Y. 330; Lewis Em. Dom. sec. 267 et seq., and cases.

2 Heyward v. New York, 7 N. Y. 314 (1852), affirming s. c. 8 Barb. 486; distinguished from Embury v. Conner, 3 N. Y. 511, where an unnecessary amount was sought to be taken; s. P. Dingley v. Boston, 100 Mass. 544 (1868); Tyler v. Hudson, 147 Mass. 609 (1888); Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234 (1871). So in North Carolina it is held that the legislature may authorize

not simply the use, but the entire interest of the owner to be taken for public use, if it deems the public exigency to require it. Raleigh & G. R. Co. v. Davis, 2 Dev. & B. (N. C.) Law, 451 (1837); De Varaigne v. Fox, 2 Blatchf. C. C. 95; Kane v. Baltimore, 15 Md. 240, arguendo; Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234 (1871); Washington Cemetery v. Prospect Park & C. I. R., 68 N. Y. 591; Cooley Const. Lim. 558; Patterson v. Miss. & R. R. Boom Co., 3 Dillon, 465 (1875); City of Buffalo, In re, 64 N. Y. 547 (1876); Bachler's Appeal, 90 Pa. St. 207; Challiss v. Atchison, T. & S. F. R. Co., 16 Kan. 117 (1876); see also Moore v. New York, 4 Sandf. 456 (power over dower interest); John and Cherry Streets, In re, 19 Wend. 659 (as to reverter of discontinued streets to adjacent owners); Kimball v. Kenosha, 4 Wis. 321. An enactment that on payment for land for a public park it shall

vest forever in the city," gives to the city a fee simple title to land thus acquired. Brooklyn Park Comm'rs v. Armstrong, 3 Lans. (N.Y.) 429 (1871); see s. c. 45 N. Y. 234 (1871); Mills Em. Dom. secs. 49, 50, and cases; Lewis Em. Dom. sec. 277 et seq. Infra, sec. 603.

for the preservation of the public health," which authorized the city to "purchase or otherwise take lands" within a large district, on payment of damages to the owners, and which directed the city to raise and drain the same, so as "to abate the present nuisance thereon," and declaring, further, that the "title to all land so taken shall vest in the city," was held to vest the fee of such lands in the city, and was not unconstitutional because it authorized the taking of a greater interest in the land than was necessary, nor as an attempt to exercise judicial power.1 To land, the fee simple of which is thus acquired by a municipal corporation, the title is perfect, and it does not revert when sold by the corporation, or when the public good, in the opinion of the corporate authorities, requires the land to be used for other purposes than those for which it was originally obtained. Thus property was appropriated in fee by the State, through its canal commissioners, for the purposes of a canal. Subsequent statutes gave to a city corporation power to enter upon a portion of the appropriated premises, and occupy the same "as a public highway, and for the use of water-pipes and for sewerage purposes," and also released to the city all of the right of the State in the premises in question. Under such legislation, one who claims to own a portion of the canal bed cannot contest the right of the city, on the ground that the change of use authorized by the legislature has terminated the public interest in the property. But where the fee is not expressly authorized to be taken and an easement will fully satisfy the language and the object of the statute, the authority will be construed and limited accordingly.*

§ 590. Same subject. — The right of eminent domain is inherent in the government; it is not conferred, but limited by the Constitution. No property can be taken without legislative authority, and it must be taken in the manner, and for the purposes authorized. Courts

1 Dingley v. Boston, 100 Mass. 544 (1868); Page v. O'Toole, 144 Mass. 303; St. Louis County Court v. Griswold, 58 Mo. 175 (1874), establishing Forest Park in St. Louis County.

2 Heyward v. New York, 7 N. Y. 314 (1852); Heard v. Brooklyn, 60 N. Y. 242 (1875); Heath v. Barmore, 50 N. Y. 302; De Varaigne v. Fox, 2 Blatchf. C. C. 95 (1848); Reynolds Heirs v. Stark County Comm'rs, 5 Ohio, 204 (1831); Le Clercq . Gallipolis Trs., 7 Ohio, Part I. 218 (1835). See also chapter on Corporate Property, ante, and on Dedication, post.

City corporation, owning land in fee, held entitled to compensation when taken for public use. Ninth Avenue, &c., In re, 45 N. Y. 729; ante, chap. iv.; post, sec. 701 et seq.

3 Malone v. Toledo, 28 Ohio St. 643 (1876).

4 See cases in last note but one. Infra, sec. 603; Washington Cemetery v. Prospect Park & C. I. R. Co., 68 N. Y. 591; Holt v. Somerville, 127 Mass. 408.

426.

5 See Cavanagh v. Boston, 139 Mass.

cannot extend or limit these: the necessity for such condemnation must be determined by the legislature, and cannot be questioned by the judicial tribunals.1 If the legislature attempts under this power to take property plainly not for public use, the courts may prevent it. Where the State has taken a fee simple, or authorized the taking thereof, and compensated the owner therefor, the subsequent abandonment of the use will not reinvest the owner with the title; if simply an easement is taken, the rule is otherwise. The right of determining the necessity of the work may be delegated, and the judicial tribunals may then be called upon to determine as to its necessity.2

§ 591 (457). Same subject. Quantity; Estate. The cases which have established that the legislature may, if it sees proper authorize the compulsory appropriation of the fee, are to be distinguished from those in which it has been held that no more in amount of private property can be taken than the legislature has declared to be necessary to the accomplishment of the public purpose in view, even although compensation be made. It was accordingly decided in South Carolina, on sound principles, that the State cannot authorize part of a lot to be taken for a street, and in addition compel the owner, against his will, to part with the balance for the benefit, emolument, or private purposes of the corporation, since, in the opinion of the court, such an act "disseizes or deprives" the owner of his property" without the judgment of his peers" and contrary" to the law of the land." 3

592 (458). Same subject. -The same principle, limiting the amount of land that may be condemned, was subsequently declared by the Supreme Court and by the Court of Appeals of the State of

1 Mills Em. Dom. sec. 11.

2 Indianapolis Water Works Co. v. Burkhart, 41 Ind. 364 (1872). The legislature authorized its public agents to appropriate a fee simple in the lands taken for the constructions of its canals. The former owner had no right afterwards to take ice from the canal. Ib. Overruling Edgerton v. Huff, 26 Ind. 35.

3 Dunn v. Charleston, Harper L. (S. C.) 189 (1825). This decision is right. Other cases in South Carolina holding that private property may be taken for streets, roads, &c., against the owner's consent and without compensation (State v. Dawson, 3 Hill (S. C.) 100, and cases cited),

are not elsewhere regarded as law. Sedgwick on Stat. and Const. Law, 494. In Patrick v. Cross Roads Comm'rs, 4 McCord (S. C.), 540 (1828), it was held that the legislature might authorize a street to be laid out on private property without mak⚫ ing compensation. And in Massachusetts, where a city appropriated land for a street forty-one feet wide, to be built at a grade above the adjoining land, it was held that an owner could maintain an action for damages caused by the placing of part of the embankment necessary to support the street upon his land. Mayo v. Springfield, 136 Mass. 10.

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 pri vate property be taken for public use without just compensation.' Chief Justice Savage said: 'The Constitution, by authorizing 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.1 So the actual receipt of damages by the party entitled thereto is a waiver of