Front Page Titles (by Subject) § 142.: What property may be taken.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2
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§ 142.: What property may be taken.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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What property may be taken.—
Every species of real property may be taken in the exercise of the right of eminent domain. Not only the land itself may be taken, but also anything which may actually, or in legal contemplation, be considered a part of the land: All buildings and other structures that may be in the way of the public use of the condemned lands;1 the streams of water,2 the stone, gravel and wood that may be needed for the promotion of the public improvement,3 apart from the land itself. An easement may be acquired over the land, while the land remained private property, and so also may franchises be condemned.4 But in all of these cases no more of the property can be taken than what is necessary to serve the public purpose for which it is condemned. No other considerations will justify the taking of the whole of a man’s property, when only a part is needed; and the excessive appropriation must under all circumstances be held to be unconstitutional. This limitation is best explained by a reference to the facts of a case, which arose in the State of New York.5 By a statute, municipal corporations were authorized, in condemning a part of a city lot for the purpose of extending, or widening the streets, to appropriate the whole, if it was deemed advisable, and to sell or otherwise dispose of the part not needed for the improvement of the street. The statute was pronounced unconstitutional. In delivering the opinion of the court, the Chief Justice, Savage, said: “If this provision was intended merely to give to the corporation capacity to take property under such circumstances with consent of the owner, and then to dispose of the same, there can be no objection to it; but if it is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to private use, it assumes a power which, with all respect, the legislature did not possess. The constitution, by authorizing the appropriation of private property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the private use of another. It is in violation of natural right; and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported. This power has been supposed to be convenient when the greater part of a lot is taken, and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. In such case the corporation has been supposed best qualified to take and dispose of such parcels, or gores, as they have sometimes been called; and probably this assumption of power has been acquiesced in by the proprietors. I know of no case where the power has been questioned, and where it has received the deliberate sanction of this court. Suppose a case where only a few feet, or even inches, are wanted, from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot; would the power be conceded to exist to take the whole lot, whether the owner consented or not? The quantity of the residue of any lot cannot vary the principle. The owner may be very unwilling to part with only a few feet; and I hold it equally incompetent for the legislature thus to dispose of private property, whether feet or acres are the subject of this assumed power.”1 It has also been held, that in establishing a public improvement, it is the duty of those who are exercising the right of eminent domain to avoid as much as possible the diversion of streams, and to construct whatever culverts and bridges may be necessary to keep the streams in their regular channels.2
Another application of the same principle would lead to the conclusion, that where the fee simple estate in the land was not needed, only a less estate or an easement should be taken; and that the taking of the fee under such circumstances would be an unlawful appropriation. In the absence of statutory regulations to the contrary, it is certainly a conclusive presumption, that where less than a fee is needed for the public use, and a joint occupation of the land by the public and by the private individual was possible as in the case of a highway, the fee is not taken for the public use; and if there should at any time be a discontinuance of the public use, the land would be relieved of the public easement, and become again the absolute property of the original owner.3 But in some of the States, it is now provided by the statute that in appropriation of lands for highways, the fee shall be held to be condemned, and not simply a public easement acquired.1 And it would seem plausible that in the case of an ordinary highway the fee might be needed for use as a highway, since the demands of modern civilization require the soil of the streets of a city to contain embedded in it the gas, water and sewer pipes, the telephone, telegraph, and electric light wires, etc., as well as to be used as a highway,—thus rendering a joint occupation of the land by the public and the private owner impossible. It is by no means unreasonable, therefore, to provide for the condemnation of the fee in the beginning, instead of allowing successive condemnations of the soil, as the public demands each particular use to which it can be put. But it is hard to see the reason why in the condemnations of land, for other purposes, for railroad purposes, for example, the fee should be taken; and unless the necessity of taking the fee is proven, the taking would be an unlawful condemnation of private property.2 But if the fee is necessary, the taking of the fee for any purpose is lawful; and it seems to be the prevailing opinion that the question, whether it is necessary is a legislative, and not a judicial one. The declaration of the legislature, that the fee is necessary, is, therefore, final and conclusive.3
But while the appropriation of land, in the exercise of the right of eminent domain, must be confined to the necessity; on the other hand, that amount may be appropriated, not only what is directly necessary for public use, but also whatever is incidentally needed, such as the workshops and depots of railroads.1 But the appropriation of lands for such incidental purposes must fall within a fair construction of the grant of power by the legislature, in order to be allowable; for the power to make such an appropriation cannot be justified by a consideration of its convenience or appropriateness, if it is not expressly conferred. Thus it was held that where a railroad company was granted the power “to enter upon any land to survey, lay down and construct its road,” “to locate and construct branch roads,” etc., to take land “for necessary side tracks,” and “a right of way over adjacent lands sufficient to enable such company to construct and repair the road,” it was not authorized, after it had located the road, and was constructing its main road along the north side of a town, to appropriate a temporary right of way for a term of years, along the south side, which was to be used while the main road was being built.1
Wells v. Somerset, etc., R. R. Co., 47 Me. 345.
Gardner v. Newburg, 2 Johns. Ch. 162 (7 Am. Dec. 526); Johnson v. Atlantic, etc., R. R. Co., 35 N. H. 569; Baltimore, etc., R. R. Co. v. Magruder, 35 Md. 79 (6 Am. Rep. 310).
Jerome v. Ross, 7 Johns. Ch. 315 (11 Am. Dec. 484); Wheelock v. Young, 4 Wend. 647; Lyon v. Jerome, 15 Wend. 569; Bliss v. Hosmer, 15 Ohio, 44; Watkins v. Walker Co., 18 Texas, 585.
West River Bridge v. Dix, 6 How. 507; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 71; State v. Noyes, 47 Me. 189; Armington v. Barnet, 15 Vt. 745; White River Turnpike Co. v. Vt. Cent. R. R. Co., 21 Vt. 590; Pistaque Bridge Co. v. New Hampshire Bridge, 7 N. H. 35; Boston Water Power Co. v. Boston, etc., R. R. Co., 23 Pick. 360; Central Bridge Co. v. Lowell, 4 Gray, 474; In re Rochester Water Commissioners, 66 N. Y. 413; Commonwealth v. Pa. Canal Co., 66 Pa. St. 41 (5 Am. Rep. 329); In re Towanda Bridge, 91 Pa. St. 216; Tuckahoe Canal Co. v. R. R. Co., 11 Leigh, 42 (36 Am. Dec. 374); Chesapeake, etc., Canal Co. v. Baltimore, etc., R. R. Co., 4 Gill & J. 5; No. Ca., etc., R. R. Co. v. Carolina Cent., etc., R. R. Co., 83 N. C. 489; New Orleans, etc., R. R. Co. v. Southern, etc., Tel. Co., 53 Ala. 211; Little Miamia, etc., R. R. Co. v. Darton, 23 Ohio St. 510; New Castle, etc., R. R. Co. v. Peru, etc., R. R. Co., 3 Ind. 464; Lake Shore, etc., R. R. Co. v. Chicago, etc., R. R. Co., 97 Ill. 506; Central City Horse Railway Co. v. Fort Clark, etc., Ry. Co., 87 Ill. 523.
Matter of Albany St., 11 Wend. 151 (25 Am. Dec. 618).
See, to the same effect, Dunn v. City Council, Harp. 129; Baltimore, etc., R. R. Co. v. Pittsburg, etc., R. R. Co., 17 W. Va. 812; Paul v. Detroit, 32 Mich. 108. In Embury v. Conner, 3 N. Y. 511, it was held that this excessive appropriation of land beyond what is needed for the public use was permissible, provided it was not done against the consent of the owner.
See Proprietors, etc., v. Nashua R. R. Co., 10 Cush. 388; March v. Portsmouth, etc., R. R. Co., 19 N. H. 372; Rowe v. Addison, 34 N. H. 306; Haynes v. Burlington, 38 Vt. 350; Boughton v. Carter, 18 Johns. 405; Stein v. Burden, 24 Ala. 130; Pettigrew v. Evansville 25 Wis. 223; Arimond v. Green Bay Co., 31 Wis. 316.
Rust v. Lowe, 6 Mass. 90; Barclay v. Howell’s Lessee, 6 Pet. 498; Weston v. Foster, 7 Met. 297; Dean v. Sullivan R. R. Co., 22 N. H. 316; Blake v. Rich, 34 N. H. 282; Jackson v. Rutland, etc., R. R. Co., 25 Vt. 150; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St. 308; Jackson v. Hathaway, 15 Johns. 447; Henry v. Dubuque & Pacific R. R. Co., 2 Iowa, 288; Eiliott v. Fair Haven, etc., R. R. Co., 32 Conn. 579, 586; Imlay v. Union Branch R. R. Co., 26 Conn. 249; State v. Laverack, 34 N. J. 201; Railroad Co. v. Shurmeir, 7 Wall. 272.
People v. Kerr, 37 Barb. 357; s. c. 27 N. Y. 188; Brooklyn Central, etc., R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 420; Brooklyn & Newton R. R. Co. v. Coney Island R. R. Co., 35 Barb. 364; Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany & Salem R. R. Co. v. O’Dailey, 13 Ind. 353; Street Railway v. Cummingsville, 14 Ohio St. 523; State v. Cincinnati Gas Co., 18 Ohio St. 262; Millburn v. Cedar Rapids, etc., R. R. Co., 12 Iowa, 246; Franz v. Railroad Co., 55 Iowa, 107; Moses v. Pittsburg, etc., R. R., 21 Ill. 516.
New Orleans, etc., R. R. Co. v. Gay, 32 La. Ann. 471. In Illinois the condemnation of the fee for railroad purposes is expressly forbidden. Const. Ill. 1870, art. 2, § 13.
In Hayward v. Mayor, etc., of New York, 7 N. Y. 314, 325, it is said that the power of deciding upon the need of the fee, “must of necessity rest in the legislature, in order to secure the useful exercise and enjoyment of the right in question. A case might arise where a temporary use would be all that the public interest required. Another case might require the permanent, and apparently the perpetual, occupation and enjoyment of the property by the public, and the right to take it must be co-extensive with the necessity of the case, and the measure of compensation should, of course, be graduated by the nature and the duration of the estate or interest of which the owner is deprived.” In this case the land was appropriated for the purpose of extending the almshouse. See, also, Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (6 Am. Rep. 70); Dingley v. Boston, 100 Mass. 544; Baker v. Johnson, 2 Hill, 343; Munger v. Tonawanda R. R. Co., 4 N. Y. 349; Rexford v. Knight, 11 N. Y. 308; Coster v. N. J. R. R. Co., 22 N. J. 227; Plitt v. Cox, 43 Pa. St. 486; Water Works Co. v. Burkhart, 41 Ind. 364.
N. Y. & Harlem R. R. Co. v. Kip, 46 N. Y. 546 (7 Am. Rep. 385); Chicago, etc., R. R. Co. v. Wilson, 17 Ill. 123; Low v. Galena, etc., R. R. Co., 18 Ill. 324; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St. 308. In Eldridge v. Smith, 34 Vt. 484, it was held that the erection of buildings for the manufacture of cars, or for leasing to the employees of the road, was not so necessary to the conduct and management of a railroad, as to justify the condemnation of lands for such purposes. But it was held competent for the railroad company to appropriate lands for piling wood and lumber used in the construction and conduct of the road.
Currier v. Marietta, etc., R. R. Co., 10 Ohio St. 121.