EMINENT DOMAIN. In modern piddle law, the right of the sovereign to appropriate the property of the subject for public purposes. This is :in incident of sovereignly and not of the naramonnt title which, under the feudal system of land te111111' in England and elsewhere. the State enjoys. It has no affinity. therefore, with the tstate's right of esehent in failure of heirs, and of forfeiture for treason or felony, wbieh, whether tenure lbws or does not exist in a given tion, are survivals of the feudal relation of lord and tenant. Eminent donntin is more nearly allied to the State's right to take the property of its subjeets or (di izens taxation. and in the exercise of the wide range of public functions comprehended under the police power. It dif fers from the power of taxation in the fact that the bitter always involves the notion of the equal distribution of a piddle hurden among a num ber of persons, and from the yxyreisy of the police power in thmt etnirn 11t (Ionia in cont tan pl tog the M1,ing of property for use. and not it destrnet ion. in the piddle interest. Neither can the exercise of this power, however :Irbil rarily done, deseribed as confiscation, as it is ( ) always exercised under forms of law, (2) for I he public good, and (3) in practice, at least, by making compensation for the property taken. Though usually applied to real property, the right of eminent domain extends equally to per sonal property. Though the term is of foreign origin and found its way into our law through its employment by Grotius. Vattel, and certain English jurists, and though it is everywhere rec ognized as an attribute of sovereignty, it is no where else in such common use as in the United States. This is doubtless due to the restraints upon the exercise of the right provided by our constitutional system, which have resulted in an elaborate judicial commentary upon its nature and the methods and conditions on which it may be exercised. Relating, as it does, to the exercise of the sovereign power, it is in legal theory completely unfettered in those nations in which the sovereign power is wholly committed to the Government. In such States, if compensation be made for property taken under the exercise of this right, it is as an act of grace and not of legal obligation. Thus, while in fact the British
Parliament always provides for making due and reasonable compensation to the owner of prop erty so taken, it is not hound to do so, nor does the validity of the exercise of the power in a given case depend at all on such provision.
Blackstone, it is true, argues that the right of the subject to compensation is a common-law right. and that the legislature can do no more than compel the owner to alienate his land for a reasonable price; but Blackstone wrote without adequate knowledge of the powers of Parliament. The statement is strictly true of the exercise of the power of eminent domain in most of the United States; but this is due to the existence of constitutional provisions by which the power of Congress and of the State legislatures is re stricted, and not to any general rule of the com mon on w .
The right of eminent domain resides in the several States of the United States as an in eident of their sovereignty, and it is one of the implied powers vested in Congress by the Constitution. The restriction of the Fed eral Constitution upon its exercise (which binds only Congress, and not the State Legislatures) is in the clause which de elares that no person shall be "deprived of life, liberty, or property without due process of law"; and that private property shall not "lie taken for public use wit bout just compensation" (Amend ments. Art. V.). The people of the several States, with a few exceptions, have bound their Legis latures by similar constitutional provisions. and in at least one of the States in which these safe ;annals are not expressly set forth in the funda 111,ntal law, they have been held to be implied front "the spirit and tenor of the whole instru ment." It may, therefore, be regarded as a part of the constitutional law of the United States that no person can lose his property by eminent domain except it be taken for (1) publie use, (2) by dm process of law. and (3) for just emtmensat ion. The courts will &Via TO uncon stitutional and void any net of Congress or of a Stale Legislature which transcends these re strict ions.