CHAPTER IV. EMINENT DOMAIN. § 168. Definition of the term. 169. Antiquity of the eminent domain doctrine. 170. The objects of the exercise of this right. 171. Indispensable to railroads. 172. Consequent liability. 173. The common law minute. 174. Early Illinois legislation on the subject. 175. Roads; bridges; the United States. 176. The statute of 1872. 177. The general principle stated. 178. The state may make compensation. 179. Rights of trial by jury. 180. Rights of the state and trial by jury. 181. Property controlled by guardians. 182. Petition to the court. 183. Rule in special cases. 188. Amendments and new parties. 190. The right of challenge. 191. Oath administered to the jury. 192. Examination and award. 193. No deduction for benefits. 194. Order of the court; payment record 195. Right of appeal. 196. Scope of this right in the case of railroad company 197. Constitutional limitation. 198. School lands; state lands. 199. Right to enter a city. 200. Syllabus; recent decisions by supreme court of Illinois. 201. The case stated. 202. Reasonable notice. 203. The act of 1845. 204. Later modifications of that statute. 206. Additional authorities cited. § 168. "Eminent domain is the power to take private property for public use." In this perfectly plain statement Chief Justice MARSHALL condensed one of the most intricate and important features of law. By whatever name called, the subject has challenged discussion by all the great legists, from Bracton down. Indeed, the subject was old when introduced into English law. The Roman jurisprudence had nearly mastered its every detail of principle. The term dominsium eminens, betrays its Latin origin. Blackstone's Commentaries, Napoleon's Code, Vattel, Kent, and all the great embodiments of law, are largely taken up with it, under various heads and designations. The judicial reports show that a vast amount of litigation grows out of some phase of this subject. § 169. It would be quite foreign to the object of this treatise to enter upon any extended discussion of this subject. It would be presumption, or a sheer waste of time, for any one to do so at this late day. Every point has been fully considered and clearly stated by jurists and authors of the highest eminence. Abstract philosophy may never determine precisely how this right of eminent domain was included in the original contract between the people and the government (a mystic if not a mythical contract); but no 1 6 Howard, 536. practical doubt of its existence and validity can be entertained. Without such an attribute of sovereignty no government could accomplish the object of its existence, or deserve the loyalty of its citizens. Civilization itself would be at an absolute stand-still. It would be impossible to overestimate the importance and necessity of this right to take private property for public. uses. $ 170. The uses and occasions for this law of eminent domain are almost infinite, and apply to personal property no less than to real estate, and may apply to a temporary use of the same.1 The term generally suggests to the mind the appropriation of land belonging to a private person for some public use. During the present generation it has come to mean, chiefly, the acquirement of the right of way to construct a railroad. It is to this phase of the subject that our attention will naturally be restricted. $171. It has been remarked that in the organization of a railway company there is no need, intrinsically, of a different method from that pursued in forming an ordinary corporation. As soon, however, as actual operations begin a fundamental difference is developed. A corporation created to carry on any private business may have a vast capital, and be in every way a most important concern, and still have no need of invoking the government to exercise its sovereignty over private property. The corporation can acquire by ordinary purchase the necessary ground and material. The state will not concern itself with the matter, any more than with the sale of a farm or building lot. The railway company, on the contrary, 1 See chapter on railway construction. can do nothing without the intervention of the state. However short its proposed line it is sure to need a little real estate belonging to a great many owners. It is certain that the necessary right of way could not all be secured except at a ruinous price. Practically, then, the right to take private property for public uses must be exercised, or the enterprise die before it be born. The government must in some way help the company to get the necessary right of way for a fair price. 1 $172. On some accounts the company would prefer to acquire the right by ordinary purchase, if it could. It would thus escape a degree of dependence upon the government which results from an appeal to the state for aid in securing its real estate. By every principle of justice the state is entitled to a consideration of one kind or another for the exercise of this right in behalf of the company, and clearly has certain claims upon the company which it would not have had otherwise. But necessity knows no option, and eminent domain is by an inevitable law the corner-stone of railway construction. § 173. In the absence of statutory provision it would be relatively easy to point out every step necessary to the acquisition of the right of way. 1 The only exception would be in the case of a road extending over the public domain. An act of congress passed in 1852 threw the government lands open to railway construction, under certain restrictions. That was not the exercise of the right of eminent domain, for a fee simple of the land vested in the government. That exception in no way impairs the force of the rule. The law itself has never been of any utility. All rail roads since built through the public domain have had special charters and special privileges. The provisions of the common law are copious and minute. But the written law, unless unconstitutional, is absolute in its authority, and the validity of the Illinois statute on eminent domain has never been called in question.1 § 174. Prior to the present constitution the term eminent domain was not in use, but elaborate details had been laid down by statute for its exercise in the case of railroads. All that was swept away by a law passed April, 1872. The latter was distinctly based on this constitutional provision: "The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of the said right."3" 4 § 175. This provision is recognized and acted upon in the bungling road and bridge statute passed at the second session of the twenty-seventh general assembly, which was repealed by an act approved April 11, 1873, containing an emergency clause.5 That application was only to ordinary roads. Several other laws are in part based on the provision, notably the act for the formation of bridge companies, and the statute allowing the United States to acquire real estate property by purchase or condemnation. The right of trial A statute expressly declares that the common law is in force in Illinois. See Gross' Statutes, vol. i, chap. 62, sec. 1. 2 Gross Statutes, vol. i, chap. 92. 3 Constitution of Illinois, art. xi, sec. 14, last clause. * Gross' Statutes, vol. ii, chap. 93. "Gross' Statutes, vol. ii, chap. 25, div. 19, sec. 5. • Gross' Statutes, vol. ii, chap. 105, div. ii, sec. 1. |