such purposes, it could not, with any proper use of the term, be called a taking for a public use; but there is nothing in our constitutions which require a taking for a public use. We have, as the sole authority for the requirement, the judicial opinion that it is unrepublican to take private property for any but a public use; but we claim that the courts, at least in later years, meant that private property cannot be taken, except to promote some public good, when they required it to be a taking for a public use. There is, therefore, no constitutional limitation upon the power of the government, to declare an appropriation of lands in the possession of private persons for the construction of mills, the improvement of wild lands, the drainage of low lands, and for the promotion of any public benefit, where the avarice or selfishness of the private owner necessitates a condemnation of such lands. It is unquestionably unconstitutional and inconsistent with republican principles, for a government arbitrarily to take the property of one man and give it to another, or to do so in any case where the public interest will not thereby be promoted. There is certainly some danger of an arbitrary or unreasonable exercise of the power, since the legislature is the supreme judge of the necessity of the condemnation; and it may be wise to impose such limitations upon the power of the legislature as will serve as safeguards against arbitrary interferences with private property: but it cannot be said to be unrepublican to require the owners of lands to so use them as will best promote the public welfare. It is highly republican in principle to place the public good (res publica) above the selfish interest of the individual; and inasmuch as the ultimate property in lands is vested in the State for the common benefit, it is not unreasonable to claim that all private property in lands is acquired and held, subject to the condition, among others, that it may be reclaimed by the State whenever the public interests demand it. There is nothing fundamentally

unjust in such a principle, although it may easily be made the cover for some arbitrary and iniquitous transactions. During the present year, (1886) a bill was proposed by the English cabinet to make a forced purchase of the lands of Irish landlords, and to divide up the land into small holdings, and sell the same to the Irish tenantry on easy terms. The object of the bill was to remedy the agrarian evil, which at some time in its history troubles every thickly settled community; and while it was vigorously and successfully opposed, the objections to its passage were economical and not constitutional. In a less justifiable case, the Prussian landtag, at the instance of Prince Bismarck, has expropriated the lands of the hostile Polish population of Posen, in order to provide for a German settlement. Any taking of land from one man and giving it to another in this country, would at the present day be unjustifiable, because land is not yet scarce enough; or, more correctly stated, the population is not yet large enough to make expropriation of lands a public necessity. But if a similar state of affairs were to arise in one of the American States as exists in Ireland to-day, and the public order and peace was daily and hourly threatened by the lack of small land holdings, and the exactions of absentee landlords; if the quiet and order of prosperous times could be restored by an expropriation of the land of large land owners, it would be eminently republican for the State to do so, taking care that the expropriation does not extend beyond the public necessity. If the land owner is rendering his equivalent to society for his ownership of the lands, there will be no agrarian evil; and he is not entitled, as against the superior demands of society, to the unearned increment, where he does not add to it by the expenditure of capital or labor.

§ 121c. 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; the streams of water," the stone, gravel and wood that may be needed for the promotion of the public improvement, 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. But in all cases no more of the property can be taken than 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

1 Wells v. Somerset, etc., R. R. Co., 47 Me. 345.

2 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).

3 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.

4 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, ect., 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, ect., R'y Co., 87 Ill. 523.

York. 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

1 Matter of Albany St., 11 Wend. 151 (25 Am. Dec. 618).

The

of such lot; would the power be conceded to exist to take the whole lot, whether the owner consented or not? 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." 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 be at any time 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. But in some of the States, it is

1 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.

2 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.

3 Rust v. Lowe, 6 Mass. 90; Barclay v. Howell's Lessee, 6 Pet. 498;