CHAPTER II.

FOR PUBLIC PURPOSES.

DIGBY, HIST. REAL PROP., Ch. X., § 3 (3). There are certain modes of acquiring land by what may be called a process of involuntary alienation, where the law provides means for depriving a person of his property upon proper compensation being made to him, and vesting it in other persons, or in a corporation, notwithstanding any opposition by the owner. Thus the legislature provides machinery for compelling persons to divest themselves of lands which may be required for certain purposes of public utility; for instance, a railway, public elementary schools, or certain public works. This is principally effected by the machinery provided by the Lands Clauses Consolidation Act.1 This act contains a set of general provisions, which are usually incorporated in the special acts authorizing and regulating individual undertakings, providing for a mode of compulsorily vesting the property required in the company or other body undertaking the public works by the giving certain notices, and taking the requisite steps to assess and pay the proper compensation for the lands taken.

LEWIS, EM. Doм., § 1. Eminent domain is the right or power of a sovereign State to appropriate private property to particular uses, for the purpose of promoting the general welfare. It embraces all cases where, by authority of the State and for the public good, the property of the individual is taken, without his consent, for the purpose of being de18 Vict., c. 18.

voted to some particular use, either by the State itself or by a corporation, public or private, or by a private citi

zen.

§ 2.

Sixth. The State may deprive a person of his property, or of some right or interest therein, for the purpose of appropriating the same, or making it subservient, to particular uses. Thus private property is taken and held by the State, or vested in public corporations, for the public use, as in the case of highways, canals, parks, public buildings and the like; or private corporations, or individuals, are authorized to institute proceedings for the purpose of compelling a transfer of property to themselves, to be devoted to some particular use, either of a public nature, such as railroads, turnpikes, etc., or of a private nature, such as private ways, mills and the like.

The acts which are described and included under this last division are universally spoken of as pertaining to the eminent domain. All other exercises of power over private property, and every species of right in, and control and regulation over, property of a public nature, may properly be referred to some other of the sovereign powers of the State. Therefore, eminent domain is properly limited in its application to the appropriation by a sovereign State of private property to particular uses, as the public welfare demands.

§ 3. There has existed and still exists among jurists a difference of opinion as to the nature of the power of eminent domain. Some maintain that it is a kind of reserved right, or supereminent estate or interest in all property vested in the sovereign power.

We conclude . . . that eminent domain is not of the nature of any estate or interest in property, reserved or otherwise acquired, but simply a power to appropriate individual property as the public necessities require, and which pertains to sovereignty as a necessary, constant and inextinguishable attribute.

18 WEND. (N. Y.), 57. Whether this principle be denominated the right of transcendental propriety, or of eminent domain, or, as is more properly by Grotius, the force of supereminent dominion, it means nothing more or less than an inherent political right, founded on a common necessity and interest, of appropriating the property of individual members of the community to the great necessities of the whole community. This principle or right does not rest, as supposed by some, upon the notion that the state had an original and absolute ownership of the whole property possessed by the individual members of it, antecedent to their possession of it, and that their possession and enjoyment of it being subsequently derived from a grant by the sovereign, it is held subject to a tacit agreement or implied reservation that it may be resumed, and all individual rights to it extinguished by a rightful exertion of sovereign power. Such a doctrine is bringing the principles of the social system back to the slavish theory of Hobbes, which, however plausible it may be in regard to lands once held in absolute ownership by the sovereignty, and directly granted by it to individuals, is inconsistent with the fact that the security of pre-existing rights to their own property is the great motive and object of individuals for associating into governments. Besides, it will not apply at all to personal property, which in many cases is entirely the creation of its individual owners; and yet the principle of appropriating private property to public use is full as extensive in regard to personal as to real property.-Per Tracy, Sen., in Bloodgood v. M. & H. R. R. Co. (1837).

[No person

U. S. CONST. AMDTS., ART. 5. shall] be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.1

The provision of the New York Constitution (Art. I. § 6) is in the same terms.-ED.

C. ESTOPPEL.

LIT., § 599. But by the feoffment of tenant in taile, fee simple passeth by the same feoffment by force of the liverie of seisin, &c.

§ 600. But by force of a release nothing shall passe but the right which he may lawfully and rightfully release, without hurt or dammage to other persons who shall have right therein after his decease, &c. So there is great diversitie betweene a feoffment of tenant in taile and a release made by tenant in taile.

§ 609. For if I lett land to a man for terme of his life, &c., and the tenant for life letteth the same land to another for terme of years, &c., and after my tenant for life grant the reversion to another in fee, and the tenant for yeares attorne, in this case the grantee hath in the freehold but an estate for terme of the life of his grantor, &c., and I which am in the reversion of the fee simple may not enter by force of this grant of the reversion made by my tenant for life, for that by such grant my reversion is not discontinued, but alwayes remaines unto me, as it was before, notwithstanding such grant of the reversion made to the grantee, to him and to his heires, &c., because nothing passed by force of such grant, but the estate which the grantor hath, &c.

610. In the same manner is it, if tenant for terme of life by his deed confirme the estate of his lessee for yeares, to have and to hold to him and his heires, or release to his lessee and his heires, yet the lessee for yeares hath an estate but for terme of the life of the tenant for life, &c.

Co. LIT., 330, b. Here is rehearsed another ancient maxime of the common law touching grants; and hereby it ap

peareth that a feoffment in fee (albeit it be by parol) is of a greater operation and estimation in law, than a grant of a reversion by deed, though it be inrolled, and attornement of the lessee for yeares of a release or a confirmation by deed, for the reasons aforesaid.

LIT., § 611. But otherwise it is when tenant for life maketh a feoffment in fee, for by such a feoffment the fee simple passeth. For tenant for yeares may make a feoffment in fee, and by his feoffment the fee simple shall passe, and yet he had at the time of the feoffment made but an estate for terme of yeares, &c.

§ 618. And note, that of such things as passe by way of grant, by deed made in the countrie, and without livery, there such grant maketh no discontinuance, as in the cases aforesayd, and in other like cases, &c. And albeit such things bee graunted in fee, by fine levied in the king's court, &c., yet this maketh not a discontinuance, &c.

Co. LIT., 332, a. Here is the generall reason yeelded of the precedent cases and the like; for that it is a maxime in law, that a grant by deed of such things as doe lie in grant, and not in liverie of seisin, doe worke no discontinuance. But the particular reason is, for that of such things the grant of tenant in taile worketh no wrong, either to the issue in taile, or to him in reversion or remainder; for nothing doth passe but onely during the life of tenant in taile, which is lawful, and every discontinuance worketh a wrong as hath beene said.

WILLIAMS, REAL PROP., 178. The delivery of possession which always took place in a feoffment, rendered it an assurance of great power; for the law permits one who has obtained actual possession of land to maintain it against all others, except those who may lawfully claim the land under a prior title. If, therefore, a person shall have made a feoffment to another of an estate in fee simple, or of any other