EMINENT 1) 0 M The superior right of prepertY subsisting in a sovereigntY, by which private property may in certain cases ibe'haken,or,its controlled for the public .benefit, without 'regard to the wishes of the Owne.e..1, ' • The 'Power to take private property foil public, use. West River Bridge Co. v. Dix, d Ilow. (U. S.) 536, 12 L. Ed. 535.
The right of every government to appro priate otherwise than by taxation and its ,police authority (which are distinct powers), private public use. Dill. Mun. Corp. § 584.
History and Nature of the Power. ,The phrase "eminent domain" appears to have originated with Grotins, who carefully de scribes its nature; Lewis, Dom. § 3, n.; Mills, Em. Dom. § 5; 1 Thayer, Cas. Const. L. 945. The power is a universal one and as old as political society, and the American constitutions do not change its scope or na ture but simply embody it, as described by Grotius, In positive, fundamental law.
The language of Grotius is:. "We have elsewhere said, that the property of subjects is under the eminent domain of the state ; so that the state, or he who ,acts for it, may use, and even alienate and destroy such property; not only in case of extreme necessity, in which even private persons have a right over the property of others; hut for ends of public. Utility, to which ends those who founded civil society must he supposed to have intended that .private ends should give way. But it is to be added, that when this is done, the state is hound to make good the loss tp those who lose their property ; and to this public purpose, among others, he who has suffered the loss must, if need he, contribute." Grotius, Bel. de Pac. iih. iii. c. 20. In the last clause quoted there seems to be an expression thus early of the doctrine which commonly forms a part of later legislation in the exercise of the right of emi nent domain of the assessment of benefits on the person whose property is taken.
The term used by Grotiva has been objected to by other writers, as, for example' Bynkershoek, Who prefers the terms imperium eminens rather than dominium eminens, considering the former as more accurately expressing the idea of supreme power. At the same time that he advocates the use of a terminology to give more emphatic expression to the sovereign nature and character of the power, this writer discusses the question whether it may be ex ercised only for necessity as he conceives Puffendort to urge, or also on the ground of convenience or, to use the exact phrase of Grotiva, utiiity. Bynker
shoek considers either ground sufficient, hut he also lays down the principle of requiring compensation not, merely for a taking, but for "every loss which private persona bear for the common necessity or utility," thus anticipating the doctrine not recog nized by writers of his time, but accepted by mod ern constitution makers, under the name of conse quential damages for injury to, as well the direct loss occasioned by, the taking private property. Quest. Jur. Pub. lib. II. c, 15. Puffendorf also criti cises the term employed by Grotius. He divides the term control (potestas) into dominium as used in respect to what is one's own, and imperium, with respect to what belongs to others. Accordingly he would consider that imperium eminens is more ac curate than dominium eminens; De Jure Naturce 'et Gentium, lib. I. c. L. s. 19. So Heinneccius says: "We confess that this use of the word is not quite apt, for the conception. of dominium and that of imperium are different things ; it la the latter and not the' former which belongs to rulers," but he adds, that as there is no doubt about the absolute right, it is useless to condemn -the word when once it has been accepted; Elem. Jur, Nat. et Gent. lib.
c. 8, a. 162. • All these writers agree that the power is exercised as an attribute of sovereignty, and in this conclu sion is a general concurrence. Vattei says: "In political society everything must give way to the common good; and if even the person of the citizens is subject to this rule, their property can not be excepted. The state cannot live, or continue to administer public affairs in the most advanta geous manner, if it have not the power, on occasion, to- dispose of every kind of property under its con trol. It ahould he presumed that when the nation takes possession of. a country, property in specific thinga is given up to individuals only upon this reservation." So it was said by the U. S. Supreme Court: "The power to take private property for public use, generaliy termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and as said in Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206, requires no constitutional recognition ;" Field, J., U. S. v. Jones, 109 .U. S. 513, 518, 3 Sup. Ct. 346, 27 L. Ed. 1015.