EMINENT DOMAIN, the power of the State to appropriate private property for pub lic use on payment of just compensation to the owner. A superior right of property subsists in a sovereignty, by which private property may, in certain cases, be taken, or its use controlled for the public benefit, without regard to the wishes of the owner. The highest and most exact right of property is immanent in the government, or in the aggregate body of the people in their sovereign capacity, giving the power to resume the possession of the property, in the manner pointed out by the constitution and the laws of the various States, when the public good requires it. There seems to be no objection to considering this right, theoretically at least, as so much of the original proprietor ship retained by the sovereign power in grant ing lands or franchises to individuals or corpora tions, wherever the common-law theory of original proprietorship prevails. Extraordinary and unforeseen occasions arise in cases of ex treme necessity in time of war, or of immediate and impending danger, in which private prop erty may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed, without the consent of the owner. The power exists only in cases where public exigency demands its exercise. It makes no difference whether cor poreal property, as land, or incorporeal, as a franchise, is to be affected by the exercise of the right. It is part of the constitutional law of the United States that no person can be de prived of his property by eminent domain ex cept it be taken for public use, by due process of law, and for just compensation. The first
condition has been held by the courts to in clude not only public improvements carried on directly by the State, as the construction of docks, fortifications, etc., but also private or semi-public undertakings, as railroad bridges, etc. There exists sonic difference of opinion as to what constitutes adue process of The usual method is by condemnation proceed ings, determined by general law. These are instituted before a court of competent jurisdic tion, or a referee appointed for the purpose, just as any equity The final step is an or der of condemnation and award. The legisla ture may, however, substitute any other process, provided the owner is given notice of the pro ceedings contemplated. Just compensation means payment of the full value of the property taken or of any interest therein, whether vested or contin_gent, present or future. (See Swett EIGNTY ; TAXATION). Consult Cooley, 'Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the State' (7th ed., Boston 1903) ; Kent, 'Commentaries on American Law' • Lewis, 'Eminent Domain' (2d ed., Chicago 1960) ; Mills, 'Eminent Domain' (2d ed., Saint Louis 1888); Randolph, 'Eminent Domain' (Boston 1894).