Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 154.: Improvement of property at the expense and against the will of the owner.— - 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

Return to Title Page for 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

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 154.: Improvement of property at the expense and against the will of the owner.— - 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.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 154.

Improvement of property at the expense and against the will of the owner.—

It has long been an established rule of law, and it is still so in the absence of a modifying statute, that the owner of lands is not responsible for any annoyance or discomfort, proceeding from some natural cause, and not from the act of some individual; and he cannot be made to respond in damages for his failure to remove the cause of annoyance, even though the public health of the neighborhood is seriously affected. Thus the owner of swamp lands cannot be held responsible for the injury to the health of the neighbors, caused by the deadly exhalations of his swamp. The owner of land is responsible for the injury or annoyance flowing from the construction of artificial swamps, and the keeping of stagnant water; but he is, independently of statute, under no obligation to drain a natural swamp, in order to improve the public health of the community.1 It cannot be questioned that the owner of swamps or other unhealthy lands may be compelled to allow them to be drained, and to be otherwise cleared of things which affect the public. For while the owner of lands is not responsible for the continuance of a natural nuisance, he has no indefeasible right to its continuance; and the State may remove such a nuisance, with or without the owner’s consent, provided the expense of removing it is borne by the State and not imposed upon the owner. In many of the States, statutory provisions have been made for the compulsory drainage of swamp lands, and the only cause for disputing the constitutionality of such legislation is the provision that the entire cost of drainage shall be imposed upon the owner. The constitutionality of such legislation has, as a reasonable exercise of the police power of the State, been generally sustained,1 on the general ground that the State may impose upon the owner the duty of draining his low lands, in consideration of the consequent increase in the value of his lands. The Supreme Court of Wisconsin justifies such legislation in the following language: “It would seem to be most reasonable that the owners of the lands drained and reclaimed should be assessed to the full extent, at least of his special benefits, for he has received an exact equivalent and a full pecuniary consideration therefore, and that which is in excess of such benefits should be paid on the ground that it was his duty to remove such an obvious cause of malarial disease and prevent a public nuisance. The duty of one owner of such lands is the duty of all, and in order to effectually enter upon and carry out any feasible system of drainage through the infected district, all such owners may be properly grouped together to bear the general assessment for the entire cost proportionably. Assessment in this and similar cases is not taxation.”2 The cases generally sustain the position of the Wisconsin court, and justify the imposition upon the owner of the entire cost of drainage, whether it exceeds or falls within the special benefits he receives from the drainage; but in New Jersey it has been definitely settled that the assessment upon land owners for the drainage of the low lands must be limited to the amount of special benefits so imparted to them, and any additional assessment is unconstitutional.1 All the cases agree that the compulsory drainage is never justifiable except when the public health requires it. It can never be ordered purely for private gain.”2

If it be conceded that the owners of low lands are under a legal obligation to remove from their lands all natural as well as artificial causes of injury to the public health, it cannot be denied that the State may, by appropriate legislation, compel the performance of this duty; and if the land owner refuses to drain his land, to drain it for him and compel him to reimburse the State for the entire cost of drainage, whatever relation it bears to the increase in the value of the land. The burdensome character of the duty does not affect the obligation to perform it, and it would not be unconstitutional to impose upon the land owner the payment of the costs of drainage, in excess of the special benefits he has received from the improvement. On the other hand, if it be true that there is no natural obligation upon the land owner to remove from his land all nuisances produced by natural causes, the entire cost of compulsory drainage cannot be imposed by statute upon those who own such lands at the time when the statute was enacted. The State may in the grant of its public lands impose upon the purchaser whatever conditions and duties the public welfare may seem to demand; and so, likewise, may the State provide that all future purchasers of swamps and other low lands shall drain them of the stagnant water, for in both cases there is no interference with vested rights, which our constitutions prohibit. But it is an unconstitutional interference with vested rights, to impose this statutory obligation upon those who possess such lands when the statute was adopted. Providing for the limitation of the assessment on the land owner to the amount of special benefit received by him from the drainage, is an attempt to make an equitable adjustment of what would otherwise be a clear violation of the rights of property; but it is altogether illogical and untenable. It is as much a violation of the rights of property to compel the owner to pay for improvements to his lands, which he did not order and does not want, as to impose on him the entire cost of removing a natural nuisance, which it was not his duty to abate. The State has the right, either to impose on the land owner the payment of the entire cost of drainage, or to exact nothing. As taxation, this special assessment would seem to offend the constitutional provisions, which require that all taxation shall be equally distributed.1

It is, however, a different question, whether in draining swamp and lowlands, adjoining lands can be subjected to the burden of the necessary drains, without the payment of compensation to the owners of such lands. That the lands may for that purpose be so condemned, seems to be undisputed.2 But compensation must be paid to the owners, as in any other taking of property for a public use.3

Ordinarily, the power to establish and regulate the system of drainage and sewerage, is granted to the government of a city, town or county. But this is not necessary; and the legislature has the power in its discretion to establish sanitary and sewerage districts, without any regard to the boundaries of cities and counties, and to invest the power of control in a specially created body.4 Nor is it necessary, in the formation of drainage districts, that the drainage laws should be made uniform throughout the State.5

In the arid portions of the Far West, notably in California, vast deserts of valueless lands have been reclaimed and made as fertile and valuable as other lands by the establishment of systems of artificial irrigation. Inasmuch as the water for purposes of irrigation has in many cases to be brought from a distance, and the distribution of the water requires governmental supervision, the legislature of California has established irrigation districts, and vested the control of the system of irrigation in a local board of commissioners, giving them the power to issue bonds in the name of the irrigation district, subject to the approval of the inhabitants of the district. This legislation has been contested; but it has been sustained in a number of cases as a constitutional exercise of the police power.1 Similar legislation has been sustained in Nebraska and Colorado.2

Another case, in which the government is held to be empowered by the constitution to compel land owners to improve their property at their own expense, is where the land is naturally low, or the owner has made excavations, as in the case of stone quarries. Wherever the condition of the land from either of these causes is a public nuisance, the State, or the city by delegation of power, may require the owner to fill it up at his own expense.3

It is not an unfrequent thing for the owners of property in cities and towns to be required by ordinance to keep the adjoining sidewalk free from snow, ice and other obstructions. In New York the ordinance was resisted as an unconstitutional exercise of police power, but it was sustained.4

A peculiar case of taking of lands of private owners for the benefit of a community arose in Louisiana. The river had washed away a portion of a roadway which extended along the banks. The city of New Orleans required the riparian proprietors, to set his boundaries back sufficient to restore the road to its original width without providing for any compensation for the lauds so taken. This was held to be a constitutional exercise of the police power.1

[1]Reeves v. Treasurer, 8 Ohio St. 333.

[1]Donnelly v. Decker, 58 Wis. 461 (46 Am. Rep. 637); Norfleet v. Cromwell, 70 N. C. 634 (16 Am. Rep. 787); Anderson v. Kerns, 14 Ind. 199; O’Reilly v. Kankakee Val. Draining Co., 32 Ind. 169; Draining Co. Case, 11 La. Ann. 338; Woodruff v. Fisher, 17 Barb. 224; French v. Kirkland, 1 Paige, 111; Williams v. Mayor of Detroit, 2 Mich. 560; Phillips v. Wickham, 1 Paige, 590; Sessions v. Crunkleton, 20 Ohio St. 349; Bancroft v. Cambridge, 126 Mass. 438; Dingley v. Boston, 100 Mass. 544; Davidson v. New Orleans, 96 U. S. 97; Wurts v. Hoagland, 114 U. S. 606; Horbach v. City of Omaha, 54 Neb. 83; Hadgar v. Supervisors, 47 Cal. 222; Yeomans v. Riddle, 84 Iowa, 147; Fries v. Brier, 111 Ind. 65; Laverty v. State, 109 Ind. 217; Petition of Cheesebrough, 78 N. Y. 235; Smith v. Carlow, 114 Mich. 67.

[2]Donnelly v. Decker, 58 Wis. 461 (46 Am. Rep. 637).

[1]Pequest Case, 41 N. J. L. 175; Tidewater Co. v. Coster, 8 C. E. Green, 518; State v. Driggs Drainage Co., 45 N. J. L. 91. “The owners of these lands could not be convicted of maintaining a public nuisance because they did not drain them; even though they were not the owners of the lands upon which the obstructions are situated. It does not appear by the act or the complaint that the sickness to be prevented prevails among inhabitants of the wet lands, nor whether these lands will be benefited or injured by draining; and certainly, unless they will be benefited, it would seem to be partial legislation to tax a certain tract of land, for the expense of doing to it what did not improve it, merely because, in a state of nature, it may be productive of sickness.” Woodruff v. Fisher, 17 Barb. 224.

[2]State v. Driggs Drainage Co., 45 N. J. L. 91. In Woodruff v. Fisher, 17 Barb. 224, the court say: “If the object to be accomplished by this statute may be considered a public improvement, the power of taxation seems to have been sustained upon analogous principles. Citing People v. Mayor, etc., of New York, 4 N. Y. 419; Thomas v. Leland, 24 Wend. 65; Livingston v. Mayor, etc., of New York, 8 Wend. 85 (22 Am. Dec. 622). But if the object was merely to improve the property of individuals, I think the statute would be void, although it provided for compensation. The water privileges on Indian River cannot be taken or affected in any way solely for the private advantage of others, however numerous the beneficiaries. Several statutes have been passed for draining swamps, but it seems to me that the principle above advanced rests upon natural and constitutional law. The professed object of this statute is to promote public health. And one question that arises is, whether the owners of large tracts of land in a state of nature can be taxed to pay the expense of draining them, by destroying the dams, etc., of other persons away from the drowned lands, and for the purposes of public health. This law proposes to destroy the water power of certain persons against their will, to drain the land of others, also, for all that appears against their will; and all at the expense of the latter, for this public good. If this taxation is illegal, no mode of compensation is provided, and all is illegal.” See Priewe v. Wisconsin State Land and Improvement Co., 93 Wis. 534.

[1]See post, § 160.

[2]State v. Sparrow, 89 Mich. 263.

[3]People v. Henion, 64 Hun, 471; Matter of Ryers, 72 N. Y. 8; Matter of Cheesebrough, 78 N. Y. 235; Fleming v. Hull, 73 Iowa, 598; Askam v. King County, 9 Wash. 1.

[4]Kingman v. Metropolitan Sewerage Com’rs, 153 Mass. 566; State v. Flower, 49 La. Ann. 1199; Woodward v. Fruitvale Sanitary Dist., 99 Cal. 554.

[5]Bryant v. Robbins, 70 Wis. 258.

[1]Irrigation Dist. v. Williams, 76 Cal. 360; Irrigation District v. De Lappe, 79 Cal. 351; In re Bonds of Madera Irrigation Dist., 92 Cal. 296; In re Central Irrig. Dist., 117 Cal. 382; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112.

[2]See Board of Directors of Alfalfa Irrigation Dist., 46 Neb. 411; Farmers’ Independent Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513.

[3]Nickerson v. Boston, 131 Mass. 306; City of Rochester v. Simpson, 134 N. Y. 414; Board of Health v. Copcutt, 140 N. Y. 12; City Council of Charleston v. Werner, 38 S. C. 488; s. c. 46 S. C. 323. In the last case, he expense to the owner of the land was limited to one-half of the value of the land.

[4]Village of Carthage v. Frederick, 122 N. Y. 268. But see Gridley v. City of Bloomington, 88 Ill. 554.

[1]Ruch v. City of New Orleans, 43 La Ann. 275.