ment laws may be made, the improvements must be permanent annexations. Where the improvements consist of clearing or draining lands, the benefit has become absolutely inseparable from the land; but where the improvements consist of houses and other buildings, they could be removed in most cases, at least when they were frame buildings. Where the buildings are constructed upon firm and permanent foundation imbedded in the soil, particularly when the buildings are made of brick or stone, the cost of removal would in most cases almost amount to the value of the improvement, and to compel a removal would be almost as unjust as to give the improvements to the owner of the land. But when the buildings are frames, resting temporarily upon blocks, or upon the ground, by analogy, the distinction beeween permanent and temporary annexations, which obtain in the law of fixtures, may be recognized in this connection, and in the last case the occupying claimant may be permitted to remove his temporary structure, but cannot claim any compensation for it under the betterment laws.1

SECTION 121. Eminent domain.

121a. Exercise of power regulated by legislature.

1216. Public purpose, what is a.

121c. What property may be taken?

121d. What constitutes a taking?

121e. Compensation, how ascertained.

§ 121. Eminent domain. It has been already explained? that all lands were originally the common property of the human race; necessarily so, since land is the free gift of nature, and not the product of man's labor. It was also shown that, under the present law of real property, the private owner of lands acquires only a tenancy of more or less limited

1 For a discussion of the law of eminent domain, see next section, § 121; for the limitations upon the power of taxation, see post, § 129. 2 See § 115.

duration under the absolute and ultimate proprietorship of the State, as the representative of organized society, subject to certain conditions, one of which is that the State may at any time, on payment of its value, reclaim the tenancy so granted to private individuals, whenever the public exigencies require such confiscation. This right of confiscation of private lands for public purposes is called the right of eminent domain. Mr. Cooley speaks of eminent domain as referring, not only to those superior rights of the State in the private lands of the individual, but also to any lands which the State may own absolutely, such as public buildings, forts, navigable rivers, etc.1 It seems to me that this more comprehensive use of the term unnecessarily confounds it with "public domain," and deprives it of its technical and special signification. Mr. Cooley also defines the term to mean "that superior right of property pertaining to the sovereignty by which the private property acquired by its citizens under its protection may be taken or its use controlled for the public benefit without regard to the wishes of its owners," including personal, as well as real property, except money and rights of action. There is some foundation for this use of the term in the writings of political economists and publicists, and in the dicta of judges. It is also true that personal property may be for

2

1 Cooley on Const. Lim. 647, 648.

2 Cooley on Const. Lim. 649.

3

8 Cooley on Const. Lim. 652, 653. "Generally it may be said, legal and equitable rights of every description are liable to be thus appropri. ated. From this statement, however, must be excepted money, or that which in ordinary use passes as such, and which the government may reach by taxation, and also rights in action, which can only be available when made to produce money; neither of which can it be needful to take under this power."

"The right which belongs to the society or to the sovereign of dis‐ posing, in case of necessity, and for the public safety of all the wealth contained in the State, is called the eminent domain." McKinley, J., in Pollard's Lessee v. Hagan, 3 How. 212, 223. In this case, as in all other actual cases of the exercise of the right of eminent domain, the thing appropriated was land.

cibly taken from private owners for public uses, whenever extreme necessity requires it, as in the case of war or of a a general famine. But, inasmuch as the grounds for the justification of this involuntary appropriation of private property to public purposes are different, according as the property is real or personal, the former resting upon the claim of a superior property in lands, the other upon the illogical plea of urgent and overruling necessity, it is wise to confine the term "eminent domain" to the cases of land appropriation, and employ some other term to signify the official appropriation of personal property. Eminent domain, therefore, is the superior right of the State to appropriate for public purposes the private lands within its borders, upon payment of a proper compensation for the property so taken.

§ 121a. Exercise of power regulated by legislature. — The exercise of this right is in the first instance reposed in the legislature. Until the legislature by enactment determines the occasions when the conditions under which, and the agencies by which, the power of appropriation may be exercised, there can be no lawful appropriation of lands to public purposes. The exercise of the right is a legislative act, and requires no judicial confiscation of the land, in order to divest the private owner of his title.2 Except so far as the exercise of the power may be limited. and controlled by provisions of the constitution, the necessity for its exercise is left to the legislative discretion. The courts cannot question the necessity for the taking,

1 See post, § 137.

2 "It requires no judicial condemnation to subject private property to public uses. Like the power to tax, it resides with the legislative de. partment to whom the delegation is made. It may be exercised directly or indirectly by that body; and it can only be restrained by the judiciary when its limits have been exceeded or its authority has been abused or perverted." Kramer v. Cleveland & Pittsburg R. R. Co., 5 Ohio St. 140, 146.

provided the land is taken for a public purpose. The legislative determination of the necessity is final, and is not subject to review by the courts.

The following quotation, from an opinion of Judge Denio, of the New York Court of Appeals,' will be sufficient to explain the reasons by which the exclusion of this question from judicial investigation, and the consequent denial to the property owner of the right to be heard in his behalf, may be justified. The learned judge says: "The question then is, whether the State, in the exercise of the power to appropriate the property of individuals to a public use, where the duty of judging of the expediency of making the appropriation, in a class of cases, is committed to public officers, is obliged to afford to the owners of the property an opportu nity to be heard before those officers when they sit for the purpose of making the determination. I do not speak now of the process for arriving at the amount of compensation to be paid to the owners, but of the determination whether, under the circumstances of a particular case, the property required for the purpose shall be taken or not; and I am of the opinion that the State is not under any obligation to make provision for a judicial contest upon that question. The only part of the constitution which refers to the subject is that which forbids private property to be taken for public use without compensation, and that which prescribes the manner in which the compensation shall be ascertained.

"It is not pretended that the statute under consideration violates either of these provisions. There is, therefore, no constitutional injunction on the point under consideration. The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the

appropriation; or it may be delegated to public officers, or, as it has been repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint upon the power, except that requiring compensation to be made. And where the power is committed to public officers, it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. The constitutional provision securing a trial by jury in certain cases, and that which declares that no citizen shall be deprived of his property without due process of law, have no application to the case. The jury trial can only be claimed as a constitutional right where the subject is judicial in its character. The exercise of the right of eminent domain stands on the same ground with the power of taxation. Both are emanations of the lawmaking power. They are They are the attributes of political sovereignty, for the exercise of which the legislature is under no necessity to address itself to the courts. In imposing a tax, or in appropriating the property of a citizen, or a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law; though it would not be if it should undertake to appropriate the property of one citizen for the use of another, or to confiscate the property of one person or a class of persons, or a particular description of property upon some view of public policy, where it could not be said to be taken for a public use. It follows from these views that it is not necessary for the legislature, in the exercise of the right of eminent domain, either directly, or indirectly through public officers or agents, to invest the proceedings with the forms or substance of judicial process. It may allow the owner to intervene and participate in the discussion before the officer or board to whom the power is given of determining whether the appropriation shall be made in a particular case, or it may provide that the officers shall