extended to other matters involving injury to and appropriation of private property.1

It was about the time of the settlement of the colonies that eminent domain as a distinct branch of governmental power began to be discussed, although it had long existed as a necessary attribute of sovereignty. Grotius, in 1625, first used and apparently originated the phrase which, although open to criticism, in so far as it implies that the basis of the power is an ultimate ownership in the state of all property, has been universally adopted as defining the power inherent in a sovereign state to take or authorize the taking of private property for public use. But in the seventeenth and eighteenth centuries the practical application of the principle and its relation to the constitutional restraints on state action had not been worked out.3

The period of Dutch supremacy was not marked by any special activity in road improvements. The colonists on both the North and South Rivers were scattered in villages along the banks and transportation was usually by water. The laying out of such highways as were need、d came under the jurisdiction of the schout and schepens, while the streets of the capital were under the immediate supervision of the chief officials.* Thus an ordinance of the director and council of New Amsterdam of February 25, 1656, approves a survey of

1 Wroe v. Harris, 2 Washington's Reports (Va.), 126 (1795); Gay v. Caldwell, Hardin's Reports (Ky.), 63, (1806); Mairs v. Gallahue, 9 Grattan's Reports (Va.), 94 (1852); Tracy v. Elizabethtown, L. & B. S. Railroad Co., 78 Kentucky Reports, 309 (1880); Schuylkill & S. N. Co. v. Decker, 2 Watt's Reports, 343, (1834).

2 Grotius, De Jure Belli et Pacis, Lib. III, chapter 20, § 7.

3 Nicholls on Eminent Domain, 7.

4 II New York Colonial Documents, 621; O'Callaghan's Laws and Ordinances of New Netherlands, 478.

the streets of the city and refers the execution to the burgomasters, who are to give notice to all persons, who may be damaged by the survey, to furnish a statement of their damages, and if an agreement cannot be reached, the matter is to be referred to two or three disinterested persons who are to appraise the lots. Various regulations were adopted as to the use of the village streets, one of which may be quoted at length:

"Ordinance of the Vice Director and Commisaries of Fort Orange Passed 10 December 1659. The Worshipful Commissary and Commissionaries of Fort Orange and Village of Beverswyck, having heard divers complaints from the Burghers of this place, against playing at Golf along the streets, which causes great damage to the windows of the Houses, and exposes people to danger of being wounded, and is contrary to the freedom of the public streets; therefore their worships, wishing to prevent the same, forbid all persons playing Golf in the streets, on pain of forfeiting fl. 25 for each person who shall be found doing so.'

112

That some of the good people of Albany were devoting their time to golf at this period, is more surprising than that their fellow-townsmen objected to the use of the streets as links.

Upon the conquest of the New Netherlands by the English the matter of highway regulation seems to have been neglected. There is no mention of the subject in the Duke of York's Laws, and this is the more surprising in view of the fact that they were drawn largely from New England sources where the subject of highways had received early attention. By a law of the colony of Massachusetts passed in 1639 highways were to be laid out on complaint to the county court, which was directed to appoint "two or three men of each next town whose

1 O'Callaghan's Laws and Ordinances of New Netherlands, 219. 2 O'Callaghan's Laws and Ordinances of New Netherlands, 367.

inhabitants had most occasion thereof," and these, upon view, were to lay out such highway according to order and make return to the next court, compensation to be paid to any man damaged in his improved ground by estimation of those who laid out the same. If the viewers disagreed or the person was dissatisfied with the acts of the viewers, the matter was to be referred to the county court, a simple and effective proceeding, and hard to improve upon, as long as the laying out of roads was regarded as a matter of local government.

In the settlements on the Delaware the opening and repair of roads were matters within the jurisdiction of the court of sessions. Overseers of highways were appointed who were empowered to call upon the inhabitants for assistance in the construction and repair of highways and bridges, and persons refusing to work on the roads were fined by the courts.2 The following entry appears on the minutes of the court held at New Castle June 15, 1678:

"It being Represented to the court yt there is need of a highway to come from Jan Staalcops Round Christina to this Towne of New Castle, The court therefore ordered, that all the Inhabitants dwelling on the North syde of Christina, from brandewyn Creeke to the place or plantation of John Ogle, Doe with all Convenient speede make and Cleare a good and passable Highway from ye sd Staalcops house Round Christina Creeke to this Towne of New Castle, and doe appoint for overseer thereof Mr. Abraham Man who is desired to see the worke Effectually done."

At a court held December 3, 1679, the inhabitants were divided into companies under designated overseers

1 Laws of Massachusetts Colony (1672), 64; compare Laws of Colony of New Plymouth (Edition of 1836), 64.

2 Records of Court at Upland, 118, 192.

3 Records of the Court of New Castle, 288.

and charged with the care of the highways in their respective districts. It was also ordered that—

"Whereas for ye Common Good of the Country itt is found necessary that ye highwayes from place to place bee annually made good & cleared Itt is therefore resolved vizt That Every respective overseer take care that betweene Every decem & March his part of ye highway bee made good & cleared, upon ye penalty & forfeiture of 1000 lb. of tobb if proved to be ye fault of ye overzeer and if any Inhabitant resorting under the company of any overseer shall refuse upon due notice to worke att ye highway till it be finisht hee to forfeit for Each such neglect 400 lb. of tobacco. The highway to be Cleared as followeth vizt The way to bee made cleare of standing & Lying trees at Least 10 foot broad all stumpes & shrubs to bee close cutt by ye ground, the trees markt yearly on boath sydes, sufficient bridges to be made and kept over all marshy swampy & difficult dirty places & what ever else shall be tougt more necessary in and about ye highwayes aforesd."1

William Penn on receiving his grant of the province of Pennsylvania, provided in his frame of government that the governor and provincial council should “at all times settle and order the situation of all cities, ports. and market towns in every county, modeling therein all public buildings, streets and market places," and should "appoint all necessary roads and highways in the province."2

In the instrument executed by Penn July 11, 1681, known as "the conditions and concessions to the adventurers and purchasers," it was agreed that—

"Great roads from City to City not to contain less than forty feet in breadth shall be first laid out and declared to be for highways before the Dividend of acres be laid out for the purchaser and the like observation to be had for the streets in the towns and Cities that there may be convenient roads

1 Records of the Court of New Castle, 364, also pages 143, 169, 197.

2 Charter and Laws of Pennsylvania, 95.

and streets preserved not to be encroached upon by any planter or builder that none may build irregularly to the damage of another."

"On the arrival of the adventurers in this country," says Chief Justice Shippen, "it was found very practicable to lay out streets in one great city, which was accordingly done, but quite impracticable to lay out the great roads or highways from city to city, as only one city was then contemplated. But as such great roads were to be laid out over the land of the proprietor alone and the purchasers were not to contribute, it was at length agreed and sanctioned in lieu of the impracticable plan settled in England, there should be an additional quantity of land granted to each purchaser without price or rent, to enable him to contribute without loss to such public roads as should thereafter be found necessary for the use of the inhabitants."2 The quantity of six per cent was fixed as the permanent additional allowance for that purpose and provision was made therefor in the Acts of November 20, 1700,3 and of June 7, 1712. Both of these acts were repealed by the queen in council, for reasons having nothing to do with this provision, but the custom was established, and it is the law of this state that the owner of land taken for the purpose of a public road, has no right to compensation for the land itself, but only for the improvements, unless such a right is expressly conferred by statute. "The six per cent," in the words of Chief Justice Black, "belongs to the State and she may con

5

1 Charter and Laws of Pennsylvania, 467.

2 McClenachan v. Curwen, 6 Binney's Reports, 509; 3 Yeates's Reports, 362 (18C2).

5

3 II Statutes at Large, 118.

4 II Statutes at Large, 400.

Pepper and Lewis's Digest of Decisions, Vol. 18, col. 13567.