health, or to promote agricultural interests; the laying of common drains and sewers; 3 or the improvement of the navigation of a river. An act has been held constitutional which authorized the construction and maintenance of a line or lines of tubing for the transportation of petroleum and ' other oils through pipes to any railroad, navigable stream, etc.; and the condemnation of land for public roads leading to mines, for the erection of mining machinery and shafts, or for a right of way for a water ditch used for mining," is held to be a proper exercise of the right of eminent domain in the far West. So, a railroad company may be authorized to condemn land for the purpose of changing the channel of

a stream where the safety of the travelling public will be promoted thereby.1 But land cannot be taken for a purely private purpose, without regard to the public good, as for a private drain or road, although compensation is made or tendered. The legislature cannot authorize miners to build a flume on others' lands for the purpose of carrying off their tailings, or of enabling them to deposit them on such lands3 or to obtain a right of way for the more convenient mining of coal. It cannot empower voluntary associations to assume, without any necessity arising from an interruption of their own business, the control and management of others' logs floating in public navigable waters, and to enforce a lien against the logs for such control and management. So, canal commissioners, as public agents, cannot appropriate the lands of others for the purpose of compensating those who are injured by the construction of the canal; nor can they be authorized by the legislature to take from private streams more water than is necessary for canal navigation and raise a revenue by resale or other disposition of the surplus water. A statute which provides for the taking, for a private purpose, of private property with the owner's consent is constitutional, and such consent may be proved by parol acts and declarations, notwithstanding the statute of frauds, if the act does not require the consent to be in writing.8

1 Reusch v. C. B. & Q. R. Co., 57 547. Surplus water is necessary to Iowa, 687.

2 Embury v. Conner, 3 N. Y. 511.

3 Consolidated Channel Co. υ. Central Pacific Railroad Co., 51 Cal. 269.

90.

canal navigation, and may be sold or leased. But the primary object is not to create a water power, but a navigable highway. Ibid. And it is not ultra vires for a canal company which

4 Waddell's Appeal, 84 Penn. St. is authorized to draw water from a

public river for its chartered purpose to agree to discharge its waste water a certain point. Armstrong v Pennsylvania Railroad Co., 38 N. J. L. 1; Hoppock v. United Railroad Co., 27 N. J. Eq. 286; 28 Id. 261. There is no dower in the privilege of using the surplus water of a canal. Kingman. Sparrow, 12 Barb. 201.

8 Embury r. Conner, 3 N. Y. 511.

§ 242. Within reasonable and just limits the legislature has the power to determine whether a particular use is public or private, and the statutes which it enacts are presumed to be valid. But in order to give effect to the constitutional limitations by which its acts are restrained, the final decision must rest with the courts in determining whether the appropriation has any element of public utility.2 A constitutional provision authorizing the taking of private property for public use amounts to a declaration that for any other use such property shall not be taken from the owner without his consent and transferred to another.3 The use is none the less public because a corporation created by the laws of another State is empowered to condemn land for the purpose, or because such corporation derives pecuniary benefit from the use of the land appropriated. A State cannot condemn beyond its own limits; but it may condemn up to the State line when such line is the thread of a boundary river between States, and may thus control the use of the property of a bridge corporation organized under the laws of the State on the other side of the river.5 The government of the United States may, upon providing just compensation, take the property of a riparian proprietor for the purpose of affording increased facilities for navigation and commerce between the States.6

1 Secombe v. Railroad Co., 23 Wall. 108; Talbot v. Hudson, 16 Gray, 417; Opinion of Justices, 8 Gray, 21; Lowell v. Boston, 111 Mass. 454; Booth v. Woodbury, 32 Conn. 118; Allen v. Jay, 60 Maine, 124; Amoskeag Manuf. Co. v. Head, 56 N. H. 386; Twitchell v. Blodgett, 13 Mich. 127; Broadhead v. Milwaukee, 19 Wis. 624; Varick v. Smith, 5 Paige, 137; 9 Paige, 547; Harris v. Thompson, 9 Barb. 350; Bloodgood v. Mohawk Railroad Co., 18 Wend. 56; Stockton Railroad Co. v. Stockton, 41 Cal. 147.

2 Ibid.; Coster v. Tide Water Co., 18 N. J. Eq. 54, 518; Dayton Mining Co. v. Seawell, 11 Nev. 394; Chicago Railroad Co. v. Lake, 71 Ill. 333;

Matter of Deansville Cemetery Association, 66 N. Y. 569; Waterworks Co. v. Burkhart, 41 Ind. 364.

8 Ibid. In re Albany Street, 11 Wend. 149; Embury v. Conner, 3 N. Y. 511; Concord Railroad v. Greely, 17 N. H. 47.

4 Matter of Townsend, 39 N. Y. 171. The legislature, in the exercise of the police power, may prescribe regulations for vessels navigating a canal owned by a corporation in behalf of which the right of eminent domain has been exercised. Commissioners v. Willamette Transportation Co., 6 Oregon, 219.

5 Crosby v. Hanover, 36 N. H. 404. 6 Avery v. Fox, 1 Abb. U. S. 246.

§ 243. In order to constitute a taking for public use, it is not necessary that the property should be absolutely converted to public purposes, but it is sufficient if its value is destroyed or permanently and seriously impaired. When real estate is actually invaded by backing water upon it by means of a dam or by any superinduced additions of water, earth, sand or other material, or by having any artificial structure placed upon it, it is a taking for which the landowner is entitled to damages,1 even in the absence of a constitutional provision that private property shall not be taken for public use without compensation.2 So the diversion, pollution, or other use of a private stream by public authorities, impairing or destroying the rights of riparian proprietors to the water, is a taking for which compensation must be provided.3 A statute which authorizes a corporation to erect, on its own land, a dam in a river which is a public highway only affords protection against an indictment for obstructing the navigation, and does not protect from liability to an action for flowing others' lands. So, authority to maintain side booms in convenient places in a river does not warrant an entry upon the close of another.5 The land

1 Pumpelly v. Green Bay Co., 13 Wall. 166; Eaton e. Boston Railroad Co., 51 N. H. 504; Thompson v. Androscoggin Co., 54 N. H. 545; Inman v. Tripp, 11 R. I. 520, 525; Arimond v. Green Bay Canal Co., 31 Wis. 316; Pettigrew v. Evansville, 25 Wis. 223; Winn v. Rutland, 52 Vt. 481; Jones v. United States, 48 Wis. 404; Cumberland v. Willison, 50 Md. 138; Glover v. Powell, 10 N. J. Eq. 211; Ten Eyck v. Delaware Canal Co., 18 N. J. 200; Morris Canal Co. r. Seward, 23 N. J. L. 219; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321; Lee v. Pembroke Iron Co., 57 Maine, 481; Wabash Canal v. Spears, 16 Ind. 441; Mabire v. Canal Bank, 11 La. Ann. 83; Weaver v. Mississippi Boom Co., 28 Minn. 534.

2 Gardner v. Newburgh, 2 Johns. Ch. 162; Sinnickson v. Johnson, 2 Harr. (N. J.) 129; Pumpelly v. Green Bay

Co., 13 Wall. 178. Ex parte Martin, 13 Ark. 199; Cairo Railroad Co. v. Turner, 31 Ark. 494.

3 Union Canal Co. v. Stump, 81 Penn. St. (Pt. 2) 355. Ex parte Jennings, 6 Cowen, 518; Canal Commissioners v. People, 5 Wend. 423; Commissioners v. Kempshall, 26 Wend. 404; Harding v. Stamford Water Co., 41 Conn. 87; Walker v. Board of Public Works, 16 Ohio, 540; Avery v. Fox, 1 Abb. U. S. 246; Ferrand v. Bradford, 21 Beav. 412; Adams v. Slater, 8 Brad. (Ill.) 72.

4 Crittenden v. Wilson, 5 Cowen, 165; Eastman v. Amoskeag Manuf. Co., 44 N. H. 143; Amoskeag Manuf. Co. v. Goodale, 46 N. H. 53; Lee v. Pembroke Iron Co., 57 Maine, 481; Trenton Water Power Co. v. Raff, 33 N. J. L. 335.

5 Perry v. Wilson, 7 Mass. 393.

of a riparian proprietor which is covered by water can no more be appropriated to public use, without just compensation, than any other property, and if the legislature authorizes a dock line to be established which prevents a riparian owner from constructing a dock beyond such line, which would not interfere with the public right of navigation, he is entitled to be compensated for the right of which he is thus deprived. The fact that land covered by water is held subject to the public right of navigation does not justify a condemnation without compensation, or deprive the owner of the protection of the courts, if compensation is not made.2 In those States in which the mortgagor of an estate is held at law to be the owner thereof as to all the world, except the mortgagee, the mortgagor is the person entitled to compensation when land previously mortgaged is taken for a public use.

§ 244. In exercising the right of eminent domain the government does not enter into a contract, and is not, therefore, bound to complete a contemplated appropriation. But private property cannot be taken for public use without just compensation, and this must be made in money. It is competent for the legislature to impose the expense of a public improvement, such as the widening or deepening of a navigable channel, or the construction of a canal, upon property peculiarly benefitted thereby, by way of taxation, and the excess of such expense over the measure of particular

1 Walker v. Shepardson, 4 Wis. 486; Yates v. Milwaukee, 10 Wall. 497.

Leisse v. St. Louis Railroad Co., 72
Mo. 561.

Van Horne v. Dorrance, 2 Dallas,

2 Morris Canal Co. v. Jersey City, 313; Carson v. Coleman, 11 N. J. Eq. 26 N. J. Eq. 294.

3 Iscle v. Schwamb, 131 Mass. 337. 4 Lamb v. Schottler, 54 Cal. 319. If the compensation is payable by monthly damages, there is no obligation to continue the payments after the public use has ceased. State v. Administrator of Public Accounts, 26 La. Ann. 336. But damages caused before the abandonment must be paid.

106; Commonwealth v. Peters, 2 Mass. 125; Cobb v. Smith, 16 Wis. 661; Livermore v. Jamaica, 23 Vt. 361; Butler v. Sewer Commissioners, 39 N. J. 665; Hyslop v. Finch (99 Ill.) 24 Alb. L. J. 156; Jacob v. Louisville, 9 Dana, 114. See McMaster v. Commonwealth, 3 Watts, 296; Satterlee v. Mathewson, 16 S. & R. 179; ante, § 210.