EMINENT DOMAIN. The power to take private property for public use. 6 How. 536.
The superior right of property subsisting in a sovereignty, by which private property may in certain cases be taken or its use con trolled for the public benefit, without regard to the wishes of the owner.
The highest and most exact idea of pro perty remaining in the government, or in the aggregate body of the people in their sove reign capacity, giving a right to resume the possession of the property in the manner directed by the constitution and the laws of the state whenever the public good requires it. 3 Paige, Ch. N. Y. 73.
2. There seems to be no objection to con sidering this right, theoretically at least, as so much of the original proprietorship re tained by the sovereign power in granting lands or franchises to individuals or corpora tions wherever the common-law theory of original proprietorship prevails. An analo gical arrangement at least in support of this view is derived from the able examina tion and explanation of the origin of the jus publicum given in 7 Cush. Mass. 90. See, also, the remarks of .Daniell, J., in 6 How. 533.
It is well settled that the power exists only in cases where the public exigency demands its exercise. See remarks of Woodbury, J., and cases cited by bim, 6 How. 545.
3. This right is distinguished from public domain, which is property owned absolutely by the state in the same manner as an in dividual holds his property. 37 Am. Jur. 121; 2 Kent, Comm. 339; 3 Yerg. Tenn. 389; 6 How. 540.
Whether the exercise of the right is justi fiable in cases where the statute does not provide compensation, is unsettled. That it may be exercised, 3 Hill, So. C. 100: contra, 2 Kent, Comm. 339, n.; and dicta in 4 Term, 794 ; 1 Rice, So. C. 383 ; 3 Leigh, Va. 337.
It makes no difference whether corporeal property, as land, or incorporeal, as a fran chise, is to be affected by the exercise of the right. 23 Pick. Mass. 360 ; 6 How. 529; 1 Rice, So. C. 383; 11 N. H. 19; 17 Conn. 454.
For a full discussion of this subject, see 6 How. 529 ; 11 Pet. 420 ; 23 Pick. Mass. 361; 8 N. II. 398 ; 10 id. 371; 11 id. 20; 17 Conn. 454; 3 Paige, Ch. N. Y. 73 ; 14 Wend. N. Y. 51; 18 id. 59 ; 3 Hill, So. C. 100 ; 8 Dan. Ky. 289 ; 5 Watts & S. Penn. 171 ' • 2 Miss. 21 ; 4 Term, 794; 11 Leigh, Va. 75 ; 2 Kent, Comm. 239, n. ; and a very full and exhaustive essay upon the subject, by J. B. Thayer, Esq., of Boston, in 19 Bost. Law Rep. 241, 301