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Subject Area: Law
Topic: The American Revolution and Constitution

§ 144.: Compensation, how ascertained.— - 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 [1900]

Edition used:

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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§ 144.

Compensation, how ascertained.—

It does not fall properly within the scientific scope of a work on Police Power to enter into a detailed account of the rule and proceedings for the ascertainment and measurement of the compensation, that is to be paid to one whose land is taken away from him in the exercise of eminent domain. That subject belongs more properly to a work on practice or on damages. But there are certain constitutional principles involved in the subject, which will require a cursory consideration.

While the condemnation of land for public purposes is in no sense a judicial act, the determination of the amount of compensation is a judicial act, which requires, for a final adjudication, a trial of the facts before a court, with a due observance of all those constitutional safeguards that are thrown around private rights, for their protection against arbitrary or tyrannical infringements. The legislature cannot fix the limits of compensation, nor can it be done in any ex parte proceeding. But a jury is not necessary, unless the constitution expressly provides for a jury trial.1

Another question relates to the time when the compensation should be made. According to the constitutions of many of the States, the payment of compensation must always precede or accompany the condemnation of the land. But where such constitutional provisions do prevail, it is held to be no violation of them for public officers, or the officers and agents of the corporation, in whose favor the right of eminent domain is to be exercised, to enter upon the land, before the payment of compensation, for the purpose of surveying and selecting the land for condemnation.1 In the absence, however, of such a constitutional requirement, at least in the case of the appropriation of land by the State or municipal authorities, it is not necessary to provide for the payment of compensation before the appropriation. It is sufficient, if an easy remedy is provided for the recovery of the compensation by the land owner at his own instance.2 It has been held that some provision for the recovery of compensation must be made in order that the constitutionality of the law condemning land may be sustained.1 But this can hardly be taken as an emphatic determination that such is a constitutional requirement in the absence of an express provision to that effect. It is rather a consideration of what provisions the legislature ought to make for the protection of the land owner, so that he should not be left to the mercy of a possibly dishonest or bankrupt corporation, and run the risk of losing both his land and his money.2 And most of the State statutes do make such provisions.

[1]Charles River Bridge v. Warren Bridge, 7 Pick. 344; s. c. 11 Pet. 420, 571; People v. Kniskern, 54 N. Y. 52; Petition of Mt. Washington Co., 35 N. H. 134; Ligat v. Commonwealth, 19 Pa. St. 456, 460; People v. Tallman, 36 Barb. 222; Clark v. Miller, 54 N. Y. 528; Baltimore, etc., R. R. Co. v. Pittsburg, etc., R. R. Co., 17 W. Va. 812; Power’s Appeal, 29 Mich. 504; Lamb v. Lane, 4 Ohio St. 167; Hood v. Finch, 8 Wis. 381; Boonville v. Ormrod, 26 Mo. 193; Dickey v. Tennison, 27 Mo. 373; Rich v. Chicago, 59 Ill. 286; Cook v. South Park Com., 61 Ill. 115; Ames v. Lake Superior, etc., R. R. Co., 21 Minn. 241. See Putnam v. Douglass Co., 6 Ore. 378 (25 Am. Rep. 527); Conn. River R. R. Co. v. County Commissioners, 127 Mass. 50 (34 Am. Rep. 338).

[1]Cushman v. Smith, 34 Me. 247; Nichols v. Somerset, etc., R. R. Co., 43 Me. 356; Bloodgood v. Mohawk, etc., R. R. Co., 14 Wend. 51; s. c. 18 Wend. 9; State v. Seymour, 35 N. J. 47; Walther v. Warner, 25 Mo. 277; Fox v. W. P. R. R. Co., 31 Cal. 538; Pa. R. R. Co. v. Angel (N. J.), 7 A. 432.

[2]Charlestown Branch R. R. Co. v. Middlesex, 7 Met. 78; Haverhill Bridge Proprietors v. County Commissioners, 103 Mass. 120 (4 Am. Rep. 518); Conn. River R. R. Co. v. Com., 127 Mass. 50. (34 Am. Rep. 338); Talbot v. Hudson, 16 Gray, 417; Ash v. Cummings, 50 N. H. 591; Orr v. Quinby, 54 N. H. 590; Calkin v. Baldwin, 4 Wend. 667 (21 Am. Dec. 168); Bloodgood v. Mohawk, etc., R. R. Co., 18 Wend. 9; Gardner v. Newburg, 2 Johns. Ch. 162 (7 Am. Dec. 526); Rexford v. Knight, 11 N. Y. 308; Chapman v. Gates, 54 N. Y. 132; Hamersly v. New York, 56 N. Y. 533; Loweree v. Newark, 38 N. J. 151; Long v. Fuller, 68 Pa. St. 170; Callison v. Hedrick, 15 Gratt. 244; Southwestern R. R. Co. v. Telegraph Co., 46 Ga. 43; Buffalo, etc., R. R. Co. v. Ferris, 26 Tex. 588; White v. Nashville, etc., R. R. Co., 7 Heisk. 518; Simms v. Railroad Co., 12 Heisk. 621; Taylor v. Marcy, 25 Ill. 518; People v. Green, 3 Mich. 496; Brock v. Hishen, 40 Wis. 674; State v. Messenger, 27 Minn. 119; Harper v. Richardson, 22 Cal. 251. But the land owner must be able to institute the suit for the recovery of the compensation of his own motion, and without the interposition of some State officer. Shepherdson v. Milwaukee, etc., R. R. Co., 6 Wis. 605; Powers v. Bears, 12 Wis. 213. In the absence of a statutory provision for compensation, the land owner may resort to his common-law remedy. Hooker v. Haven, etc., Co., 16 Conn. 146 (36 Am. Dec. 477). It is not unconstitutional, after providing a proper remedy for the recovery of the compensation, to limit the time in which the remedy may be pursued. Charleston Branch R. R. Co. v. Middlesex, 7 Met. 78; Rexford v. Knight, 11 N. Y. 308; Callison v. Hedrick, 15 Gratt. 244; Cupp v. Commissioners of Seneca, 19 Ohio St. 173; People v. Green, 3 Mich. 496; Taylor v. Marcy, 25 Ill. 518; Gilmer v. Lime Point, 18 Cal. 229. But where the property is taken by a private corporation, instead of by the State, an inclination is manifested by some of the authorities to hold it necessary on general principles that payment of compensation precede or accompany the condemnation. “The settled and fundamental doctrine is, that government has no right to take private property for public purposes, without giving just compensation; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain.” Kent, Chancellor, in 2 Kent, 329, note. See, also, to the same effect, Loweree v. Newark, 38 N. J. 151; State v. Graves, 19 Md. 351; Dronberger v. Reed, 11 Ind. 420; Shepherdson v. Milwaukee, etc., R. R. Co., 6 Wis. 605; Powers v. Bears, 12 Wis. 213.

[1]State v. Chicago, etc., R. R. Co. (Minn.), 31 N. W. 365.

[2]See Ash v. Cummings, 50 N. H. 591; Memphis & Charleston R. R. Co. v. Payne, 37 Miss. 700; Walther v. Warner, 25 Mo. 277; Carr v. Georgia R. R. Co., 1 Ga. 524; Southwestern R. R. Co. v. Telegraph Co., 46 Ga. 43; Henry v. Dubuque, etc., R. R. Co., 10 Iowa, 540; Curran v. Shattuck, 24 Cal. 427.