349; Roosevelt v. Godard (1868) 52 Barb. 533; Re Union Ferry Co. (1885) 98 N. Y. 139.

The construction of the Albany basin in the Hudson river rendered private docks less accessible, in consequence of which they were much depreciated in value, and no compensation was provided therefor. The dock owner's right of access thereto was held to be subject to legislative control, according to public convenience. Every great public improvement usually affects individual convenience and property, but remote consequences must be borne "as a part of the price to be paid for the advantages of the social condition." Lansing v. Smith (1826) 8 Cow. 146, affirmed in (1829) 4 Wend. 9, 21 Am. Dec. 89.

EMINENT DOMAIN.

It is now well settled that the right of eminent domain remains in the government, or in the aggregate body of the people, in their sovereign capacity, and they have the right to resume the possession in the manner directed by the organic and the statute laws of the state, whenever the public interest requires it. "If the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose." Beekman v. Saratoga & S. R. Co. (1831) 3 Paige, 73, 22 Am. Dec. 679; Hartwell v. Armstrong (1854) 19 Barb. 166.

"The power of eminent domain is the right of the state, as sovereign, to take private property for public use upon making just compensation. All private property, both tangible and intangible, is subject to the right, including that already devoted to a public use, although the latter, as matter of policy rather than of right, is protected and favored by the state to some extent. . . . While the state may delegate the power to a subject for a public use, it cannot permanently part with it as to any property under its jurisdiction, but may resume it at will, subject to property rights and the duty of paying therefor." People v. Adirondack R. Co. (1899) 160 N. Y. 225, 54 N. E. 689, affirmed in (1899) 176 U. S. 335, 44 L. ed. 492, 20 Sup. Ct. Rep. 460.

"The right of the state to take the property. . . is an absolute and inherent one. It is an attribute of political sovereignty, and the

constitutional provision only operates upon the mode of exercise of the right." It seems self-evident “that the sovereign power, subject to the restrictions interposed by the fundamental law, may be exercised with respect to the public as well as the private rights of citizens." People v. Baltimore & O. R. Co. (1889) 117 N. Y. 150, 22 N. E. 1026.

"The common law right of eminent domain has ever been regarded as a high prerogative of sovereignty, to be exercised whenever the public necessity required; and this right is impliedly admitted, both in the Constitution of the state and of the United States. . . . It belongs to the legislative power of the government to determine for what public purposes private property shall be taken, and the necessity or expediency of such appropriation." Buffalo & N. Y. C. R. Co. v. Brainard (1853) 9 N. Y. 100; People ex rel. Herrick v. Smith (1860) 21 N. Y. 595.

"Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people, in their sovereign capacity; and they have a right to resume the possession of the property in the manner directed by the Constitution and laws of the state, whenever the public interest requires it. This right of resumption may be exercised not only where the safety, but also where the interest or even the expediency, of the state is concerned; as where the land of the individual is wanted for a road, canal, or other public improvement." A railroad is a public benefit, and a railroad corporation may be authorized to take land under the right of eminent domain. Beekman v. Saratoga & S. R. Co. (1831) 3 Paige, 45, 22 Am. Dec. 679; Buffalo & N. Y. C. R. Co. v. Brainard (1853) 9 N. Y. 100; New York & H. R. Co. v. Kip (1871) 46 N. Y. 546, 7 Am. Rep. 385; New York C. & H. R. R. Co. v. Metropolitan Gaslight Co. (1875) 63 N. Y. 326.

The right of eminent domain implies the right in the sovereign power to determine the time and occasion, and as to what particular property it may be exercised. It also includes the right to determine the estate or quantity of interest in the lands which shall be taken,— whether an estate for years, for life, or in fee; whether a right of reversion in any event shall be left in the owner, or whether a mere easement shall be taken without devesting the fee and general ownership of the land. Heyward v. New York (1852) 7 N. Y. 314.

No greater interest in property will be taken than is necessary to satisfy the requirements of the statute. The fee will not be taken

if an easement only will be sufficient. Washington Cemetery v. Prospect Park & C. I. R. Co. (1877) 68 N. Y. 591.

The legislature has power to authorize a foreign corporation to exercise the right of eminent domain in this state by taking private property for corporate purposes. Morris Canal & Bkg. Co. v. Townsend (1857) 24 Barb. 658; Re Townsend (1868) 39 N. Y. 171. If only the use of property is obtained by eminent domain, the reversion remains in the owner, and, on the termination of the use, the title reverts to him. Heard v. Brooklyn (1875) 60 N. Y. 242.

Authority conferred on a city to destroy buildings to prevent the spread of fire is not a grant of the right of eminent domain, and the destruction of a building under such authority is not a taking of property within the meaning of the Constitution. No statute was necessary to authorize the destruction of the property; its destruction was authorized "by the law of overruling necessity; it was the exercise of a natural right belonging to every individual, not conferred by law, but tacitly excepted from all human codes." A long line of authorities sustains the rule that "in a case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, or any other great public calamity, the private property of any individual may be lawfully destroyed for the relief, protection, or safety of the many, without subjecting the actors to personal responsibility for the damages which the owner has sustained." In this case the act (2 R. L. 368, the New York Charter of 1813) directed the city authorities to procure an assessment by a jury of the damages sustained by the owner of property in consequence of its destruction, and the amount was made a charge against the city, and an action could not be maintained to recover the damages. Russell v. New York (1845) 2 Denio, 461.

Second taking.-Property taken by a railroad corporation under the right of eminent domain becomes its private property, and cannot be taken from it without compensation. The corporation cannot afterwards be compelled by statute to take a new highway across its road at its own expense. Miller v. New York & E. R. Co. (1856) 21 Barb. 513.

This decision was overruled in the Albany Northern R. Co. v. Brownell (1862) 24 N. Y. 345, where it was held that the act of 1853, chap. 62, requiring a railroad company to take a highway across its tracks at its own expense and without compensation, was constitutional; that the railroad corporation does not acquire the same unqualified title and right of disposition which individuals

have in their land; that such land is acquired for a public use, and it therefore continues subject to the control of the legislature, which may subject the corporation to new restrictions or increased burdens; but the statute does not permit such second taking of land appropriated by the railroad corporation for engine houses or other structures, without compensation.

The same rule was applied in Boston & A. R. Co. v. Greenbush (1873) 52 N. Y. 510.

The legislature "may change one kind of public use into another, so long as the property continues to be devoted to public use. What belongs to the public may be controlled and disposed of in any way which the public agents see fit." If the city owns the fee in the street the legislature may authorize the use of such street by a railroad company, and the city cannot demand compensation therefor. People v. Kerr (1863) 27 N. Y. 188.

The act of 1853, chap. 62, requiring a railroad company to take a highway across its tracks at its own expense and without compensation, is an instance of a second taking of property already devoted to a public use. In Albany Northern R. Co. v. Brownell (1862) 24 N. Y. 345, the railroad company objected to the validity of the statute on the ground that it was "repugnant to the Constitution, as the taking of private property for the use of the public without recompensing the owner." The court said a corporation organized under the general railroad law had the right to take and use land for the purposes of its incorporation during its corporate existence; that the land so taken was deemed appropriated to a public use, and was subject to the exercise of the reserved power of the legislature concerning corporate franchises. By the operation of the highway law the property of the company is not taken from it nor is its practical use interfered with.

The same rule was applied as to streets laid out under the general village law of 1870, chap. 281. Re Folts Street (1897) 18 App. Div. 568, 46 N. Y. Supp. 43.

General power to take land for a public use does not, prima facie or presumptively, include property already in public use under the sanction of the law. Re Boston & A. R. Co. (1873) 53 N. Y. 574

The legislature has power "to deprive corporations of their franchises and take from them the property necessary to their enjoyment in the exercise of the sovereign right of eminent domain, upon making compensation. . . . But this must be done by special act of the legislature and under a power granted in express terms. A corporation, either private or municipal, cannot, under a general

power to take lands for a public use, take from another corporation having the like power lands or property held by it for a public purpose pursuant to its charter. But an easement may be acquired in invitum, by legislative authority, in lands held and occupied for a public use, when such easement may be enjoyed without detriment to the public or interfering with the use to which the lands are devoted." Re Rochester Water Comrs. (1876) 66 N. Y. 413.

The principle is well established that "land once taken and appropriated to a public use, pursuant to law, under the right of eminent domain, cannot, under general laws and without special authority from the legislature, be appropriated to a different public use." In this case it was held that the general highway laws did not confer sufficient authority to take the land of a railroad company which was needed for depot purposes; but that express and direct legislative authority was required to authorize the taking of such railroad lands for highway purposes. The highway act of 1853, chap. 62, requiring a railroad company to take a highway across its tracks without compensation, was held not to authorize the taking of railroad lands appropriated for general purposes. Prospect Park & C. I. R. Co. v. Williamson (1883) 91 N. Y. 552. "The general authority conferred upon railroad corporations to acquire lands against the will of the owner is broad and comprehensive. In terms it covers all and excepts none. But because it could not be intended that the state, having authorized one taking whereby the lands became impressed under authority of the sovereign with a public use, meant to nullify its own grant by authority to another corporation to take them again for another public use, unless it is so specifically decreed, it has been ruled that lands so held and impressed with a public trust were not embraced in words of general authority." In this case a wharf or dock used by a steamboat company for the landing of freight, which had been acquired by purchase, was held not exempt under the rule against a second taking of property devoted to a public use. Re New York, L. & W. R. Co. (1885) 99 N. Y. 12, 1 N. E. 27.

In New York C. & H. R. R. Co. v. Metropolitan Gaslight Co. (1875) 63 N. Y. 326, the same rule is applied in a proceeding to take the property of a gaslight company which was held not exempt under the power of eminent domain, and the court said its land was not held under the right of eminent domain, and that there was nothing in its charter which conferred upon it any special privileges in this respect.

VOL. IV. CONST. HIST.-9.