10. The Master of the Rolls, Lord Romilly, in Raphael v. The Thames Valley Railway,13 held, that in deciding whether specific performance should be enforced against a railway company, the court must have regard to the interests of the public, and therefore, where a bridge had not been constructed in conformity with an agreement with a land-owner, but the injury to the land-owner was small, and the railway had since been opened for traffic, and the relief, if granted, would have necessitated an interference with the traffic, the court refused to compel specific performance.

11. And it has been very recently declared by the English courts of equity, that where a contract is vague and so uncertain that no compensation could be awarded, a decree for specific performance could not be made.14 So also the court will not interfere after considerable lapse of time and when the company are not possessed of funds for completing the purchase.15 So refusal to decree specific performance may be based upon the public safety and convenience.16

12. And a Court of Equity will not make the amount to be paid for land a charge upon the land, under leave to apply for further directions, where it was not made so by the original decree.17

13 Law Rep. 2 Eq. 37; s. c. 12 Jur. N. S. 656.

14 Tillett v. Charing Cross Co., 26 Beav. 419; s. c. 5 Jur. N. S. 994.

15 Pryse v. Combrian Railw., Law Rep. 2 Eq. 444.

16 Raphael v. Thames Valley Railw., id. 37.

17 Attorney-General v. S. & S. Railw., Law Rep. 1 Eq. 636.

§ 63. 1. THIS title is very little found in the English books, and scarcely in the English dictionaries. But with us, it has been adopted from the writers on national and civil law, upon the continent of Europe, and is perhaps better understood than almost any other form of expression, for the same idea. It is defined to be that dominium eminens, or superior right, which of necessity resides in the sovereign power, in all governments, to apply private property to public use, in those great public emergencies which can reasonably be met in no other way.

2. It is a distinct right from that of public domain, which is the1 land belonging to the sovereign. This is a superior right which the sovereign possesses in all property of the citizen or subject, whether real or personal, and whether the title were originally derived from the sovereign or not. One of the chief occasions for the exercise of this right is, in creating the necessary facilities for intercommunication, which in this country is now very generally known by the name of Internal Improvement. This extends to the construction of highways (of which turnpikes and railways are, in some respects, but different modes of construction and maintenance), canals, ferries, wharves, basins, and some others.2

1 Vattel, B. 1, ch. 20, § 244; Code Napoleon, B. 2, tit. 2, 545; 1 Black. Comm. 139; Gardner v. Newburgh, 2 Johns. Ch. 162; 2 Dallas, 310.

23 Kent, Comm. 339 et seq. and notes; Beekman v. Saratoga & Sch. Railw., 3 Paige, 45, 73; 12 Pick. 467; 23 id. 327; 3 Selden, 314. This right, as some

3. This is a right in the sovereignty, which seems indispensable to the maintenance of civil government, and which seems to

of the above cases show, extends to numerous matters not named in the text. It would be out of place here to enter into the discussion of the general subject. The indispensable prerequisites to the exercise of the right will appear, as far as they apply to the subject of this work, in the following sections.

That railways are but improved highways, and are of such public use as to justify the exercise of the right of eminent domain, by the sovereign, in their construction, is now almost universally conceded. Williams v. N. Y. Central Railw., 18 Barb. 222, 246; State v. Rives, 5 Ired. 297; Northern Railw. v. Concord & Claremont Railw., 7 Foster, 183; Bloodgood v. M. & H. Railw., 18 Wend. 9; s. c. 14 Wendell, 51; 1 Bald. C. C. Reports, 205. See also 3 Paige, 73; 3 Seld. 314. A freight company has been regarded as not of such public interest as to justify taking land by the right of eminent domain. This was for loading and unloading freight. Memphis Freight Co. v. Memphis, 4 Cold. 419. But this case is perhaps questionable. A railway for the purpose of transporting freight is as much a public use as if it embraced passenger transportation. And a freight company of more limited extent might be said to be in aid of the company carrying greater distances. The marginal railways in cities for the purpose of connecting the different lines of traffic, are as much public companies and entit led to exercise the sovereign right of eminent domain, as any other railway. But no railway company can take land for other than public uses, as for the deposit of dirt, &c., not connected with the efficient use of their right of way. Lance's Appeal, 55 Penn. St. 16.

It seems to be well settled, that the legislature have no power to take the property of the citizens for any but a public use; but that a railway is such use. Bradley v. N. Y. & N. H. Railw., 21 Conn. 294; Symonds v. The City of Cincinnati, 14 Ohio, 147; Embury v. Conner, 3 Comst. 511.

But this is a power essentially different from that of taxation, in regard to which there is no constitutional restriction, and no guaranty for its just exercise, except in the discretion of the legislature. The People v. Mayor of Brooklyn, 4 Comst. 419; Cincinnati, W. & Z. Railw. v. Clinton Co. Comm. 1 Ohio, N. S. 77.

The legislature must decide, in the first instance, when the right of eminent domain may be exercised, but this is subject to the revision of the courts, so far as the uses to which the property is applied, are concerned. 2 Kent, Comm. 340. But as to the particular instance, the decision of the legislature, and of the commissioners appointed to exercise the power, is ordinarily final and not revisable in the courts of law. Varrick v. Smith, 5 Paige, 137; Armington v. Barnet, 15 Vt. 745.

when in

And the legislature may restrain the owners of property, in its use, their opinion the public good requires it, without compensation, as this is not the exercise of the right of eminent domain. Commonwealth v. Tewksbury, 11 Met. 55; Coates v. Mayor of New York, 7 Cowen, 585. But see Clark v. Mayor of Syracuse, 13 Barb. 32.

The following case recognizes the general right stated in the text. Donnaher v. The State, 8 Sm. & M. 649.

be rather a necessary attribute of the sovereign power in a state, than any reserved right in the grant of property to the subject or citizen.

4. It seems to have been accurately defined, and distinctly recognized, in the Roman empire, in the days of Augustus, and his immediate successors, although from considerations of policy and personal influence and esteem, they did not always choose to exercise the right, to demolish the dwellings of the inhabitants, either in the construction of public roads or aqueducts, or ornamental columns, but to purchase the right of way.

5. But in the states of Europe and in the written constitution of the United States, and in those of most of the American states, an express limitation of the exercise of the right makes it dependent upon compensation to the owner. But this provision in the United States constitution is intended only as a limitation upon the exercise of that power, by the government of the United States.3

6. And it would seem, that notwithstanding this right of sovereignty may reside in the United States, as the paramount sovereign, so far as the territories are concerned, in reference to internal communication, by highways and railways, and notwithstanding the ownership of the soil of a portion of the lands, by the United States, in many of the states, as well as territories, still, when any of the territories are admitted into the Union, as independent states, the general rights of eminent domain are vested exclusively in the state sovereignty.4

7. The duty to make compensation for property, taken for public use, is regarded, by the most enlightened jurists, as founded in the fundamental principles of natural right and justice, and as

3 Barron v. Baltimore, 7 Peters, 243; Fox v. The State of Ohio, 5 How. 410, 434, 435.

4 Pollard v. Hagan, 3 How. (U. S.) 212; Goodtitle v. Kibbe, 9 How. 471; Doe v. Beebe, 13 How. 25; United States v. Railw. Bridge Co., 6 McLean, 517. In the Court of Claims recently, in the case of The Illinois Central Railw. v. United States, 20 Law Rep. 630, it was held, that the abandonment of a military reserve, which had become useless for military purposes, causes it to fall back into the general mass of public lands, and that a state, by virtue of its right of eminent domain, may authorize the construction of railways through land owned but not occupied by the United States. And the United States being in possession of land owned by the plaintiffs, and which was necessary to carry out the objects of their charter, it was held, that a payment made by the plaintiffs, to obtain possession thereof, was made under duress, and might be recovered back.

lying at the basis of all wise and just government, independent of all written constitutions or positive law.5

*8. But the public have a right, by the legislature, through the proper functionaries, to regulate the use of navigable waters, and the erection of a bridge, with or without a draw, by the authority of the legislature, is the regulation of a public right, and not the deprivation of a private right, which can be made the ground of an action, even where private loss is thereby produced, nor is it the taking of private property for public use which will entitle the owner to compensation."

9. And where a ford-way was destroyed, by the erection of a dam across a river, in the construction of a canal, or other public work, under legislative grant, the river being a public highway, although not strictly navigable, in the common-law sense, (which only included such rivers, as were affected by tide-water,) it was held the owner of the ford-way could recover no compensation from the state, or their grantees, the act being but a reasonable exercise of the right to improve the navigation of the stream, as a public highway.7

10. Neither can the owner of a fishery, which sustains damage or destruction by the building of a dam to improve the navigation of a river above tide-water, under grant from the state, sustain an action against the grantees. So also in regard to the loss of the use of a spring, by deepening the channel of such a stream, by legislative grant.9

11. Nor is the owner of a dam, erected by legislative grant upon a navigable river, and which was afterwards cut off by a canal, granted by the same authority, entitled to recover damages. 10

5

Spencer, Ch. J., in Bradshaw v. Rogers, 20 Johns. 103; 2 Kent, Comm. 339, and note and cases cited, from the leading continental jurists.

Davidson v. Boston & Maine Railw., 3 Cush. 91; Gould v. Hudson River Railw., 12 Barb. 616; s. c. 2 Selden, 522. Nor have the state any such right in flats, where the tide ebbs and flows, as to require a railway company to pay them damages for the right of passage. Walker v. Boston & Maine Railw. 3

Cush. 1; s. c. 1 Am. Railw. C. 462.

7 Zimmerman v. Union Canal Co., 1 Watts & S. 346.

Shrunk v. Schuylkill Navigation Co., 14 Serg. & Rawle, 71.

9 Commonwealth v. Ritcher, 1 Penn. 467.

10 Susquehannah Canal Co. v. Wright, 9 Watts & Serg. 9; Monongahela Navigation Co. v. Coons, 6 id. 101.