But this theory of resumption of original pro prietorship is disapproved by the most authorita tive writers, and with reason; the weight of au thority and of argument are both against it. In this country the right is exercised by two govern ments, each sovereign, operating on the same prop erty ; the federal power can, upon no hypothesis, be based upon original grant in the older states, nor perhaps the state power, in the new states ; a new sovereignty by acquiring territorial rights suc ceeds to this right over property, of which the original grant was from the prior one; property may be appropriated a second time after the power has been already exercised and, upon the theory under consideration, necessarily exhausted ; person al property is subject to the right, although the doctrine of reaerved right cannot apply to it, while the reversion of the state will aupply no argument, as it applies equally to personal property in which the state never had any title; and any paramount or reserved right could be granted, but this right never can ; Sholl v. Coal Co., 118 111. 427, 10 N. E. 199, 59 Am. Rep. 379 ; New York, H. & N. R. Co. v. R. Co., 36 Conn. 196. All these considerations are inconsistent with the theory suggested and seem to leave no alternative but to recognize the right as an attribute of sovereignty and in no sense an in terest or estate. See Lewia, Em. Dom. § 3; Rand. Em. Dom. § 3 ; Noll v. R. Co., 32 Ia. 66 ; Raleigh & G. R. Co. v. Davie, 19 N. C. 451 ; Bloodgood v. R. Co., 18 Wend. (N. Y.) 9, 67, 31 Am. Dec. 313; ,2 Redf. Railw. 229.
It is an inherent power which belongs to the states and was not surrendered to the United States, and it is untouched by any provision of the federal constitution. It ex tends to tangible and intangible property, to a chose in action, a charter or any kind of contract, as well as to land and movables. It- is not limited by the inhibition against impairing the obligation of contracts. The obligation of a contract is not impaired by being, taken under eminent domain if com pensation be made. Every contract between the state and the individual or between in dividuals is subject to this law ;, City of Cin cinnati v. R. Co., 223 U. S. 390, 32 Sup. Ot. 267, 56 L. Ed. 481.
One of the inalienable rights of sovereign ty ; Hollister v. State, 9 Ida.. 8, 71 Pac. 541; Central Branch U. P, R. Co. v. R. Co., 28 Kan. 453 ; Woodmere Cemetery v. Roulo, 104 Mich. 595, 62 N. W. 1010 ; Painter v. St. Clair, 98 Va. 85, 34 S. E. 989 ; and may be exercised for public purposes in the absence of any constitutional restriction ; Anderson v. Draining Co., 14 Ind. 199, 77 Am. Dec. 63. It lies dormant in the state until legislative action determines the occasion, mode, condi tions, and agencies for its exercise ; Allen v. Jones, 47 Ind. 438 ; St. Louis, H. & K. C. R. Co. v., Union Depot Co., 125 Mo. 82, 28 S. W. 483 ; the legislature may determine the estate or quantity of interest in lands which ,may be taken ; Cleveland, C., C. & I. R. Co. v. R. Co., 91 Ind. 557 ; the power is recognized but not granted by the constitution ; Samish River Boom Co. v. Union Boom Co., 32 Wash.
586, 73 Pac. 670 ; by which it is limited ; Con sumers' Gas Trust Co. v. Harless, 131 Ind. 446, 29 N. E. 1062, 15 L. R. A. 505 ; it is the "offspring of political necessity, and is in separable from sovereignty unless denied to it by its fundamental law" ; Searl v. School Dist. No. 2, 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 740, cited in Adams v. Henderson, 168 U. S. 574, 18 Sup. Ct. 179, 42 L. Ed. 584.
Distinction between Eminent Domain and Oth&r Powers. The constitutional require ment that compensation be made for proper ty taken for public use does not restrict the inherent power of the state under reasonable regulation to protect the lives and secure the safety of the people ; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979 ; instances of taking or de struction of property which have been sus tained are : the change of boundaries of mu nicipal corporations ; Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785 ; re-, striction on a mill site which another one had previously appropriated ; Otis Comp. v. Mfg. Co., 201 U. S. 140, 26 Sup. Ct. 353, 50 L. Ed. 696, affirming Otis Co. v. Ludlow Mfg. Co., 186 Mass. 89, 70 N. E. 1009, 104 Am. St. Rep. 563; the construction and operation of a water works plant by a city in competition with a company which had constructed works under a franchise from the city ; City of Meridian v. Loan & Trust Co., 143 Fed. 67, 74 C. C. A. 221, 6 Ann. Cas. 599; the de struCtion of a fruit tree affected with the ; State v. Main, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30 ; abatement of a public nuisance and the as sessment of the benefits of such abatement to the owner ; Rude v. St. Marie, 121 Wis. 634, 99 N. W. 460 ; the restrictions imposed by game laws ; Ex parte Fritz, 86 Miss. 210, 38 South. 722, 109 Am. St. Rep. 700; State v. lieger, 194 Mo. 707, 93 S. W. 252 ; State v. Theriault, 70 "Vt. 617, 41 Atl. 1030, 43 L. R. A. 290, 67 Am. St. Rep. 695 ; reasonable health regulations ; State v. Robb, 100 Me. 180, 60 Atl. 874, 4 Ann. Cas. 275.
"Acts done in the exercise of governmental powers and not directly encroaching upon private property, though their consequences may be to impair its use, are universally held not to be a taking" within the fifth amendment ; Northern Transp- Co. v. Chi cago, 99 U. S. 635, 25 L. Ed. 336; Union Bridge Co. v. U. S., 204 U. S. 390, 27 Sup. Ct. 367, 51 L. Ed. 523. So of the change of lo cation of gas pipes under a municipal • reg ulation enacted for the public safety under the police power ; Union Bridge Co. v. U. S., 204 U. S. 395, 27 Sup. Ct. 367, 51 L. Ed. 523 ; and an ordinance requiring a railroad com pany to lower its tunnel under the Chicago river to afford increased depth of water for navigation ; West Chicago Street Ry. Co. v. Illinois, 201 U. S. 506, 26 Sup. Ct. 518, 50 L. Ed. 845;' so of an order of the secretary of war requiring a bridge over a navigable riv er to be raised in aid of navigation ; Union Bridge Co. v. U. S., 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523.