This right is distinguished from public do main, which is property owned absolutely by the state lit the same manner as an in dividual holds his property ; 19 (No. 37) Am. Jur. 121; 2 Kent 339 ; Corporation of Mem phis v. Overton, 3 Yerg. (Tenn.) 389 ; West River Bridge Co. v. Dix, 6 How. (U. S.) 540, 12 L. Ed. 535 ; termed by Cooley "the ordi nary domain of the state" ; Const. Lim. 642.
The right of eminent domain is not to be confounded with cases in which there ex ists a sovereign right to take or destroy private property without making compensa tion. The familiar case of taxation is read ily distinguished. An owner is not entitled • to compensation for damage or loss to prop erty taken or destroyed during war. As to the distinction between the war power and eminent domain see 13 Am. L. Reg. 265, 337, 401; Mills, Em. Dom. § 3. So property may be taken under a controlling necessity, or to prevent the spread of a fire ; 12 Co. 63 ; Kel ler v. City of Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613; McDonald v. City of Red Wing, .13 Minn. 38 (Gil. 25); Mayor, etc., of New York v. Lord, 18 Wend. (N. Y.) 126; Amer. Print Works v. Lawrence, 21 N. J. L. 248.
In trespass for destruction of goods, ,de stroyed by the blowing up a building to pre vent the spread of fire in a city, ordered by defendant as Mayor of New York, the com mon-law plea of necessity is good in justifica tion and it need not be averred that fendant was a resident of or owner of prop erty, in the city, or that his own property was in danger ; American Print Works v. Lawrence, 23 N. J. L. 590, 57 Am. Dec. 420. And similarly are treated proceedings under the police power, to abate a nuisance (q. v.); Com. v. Alger, 7 Cush. (Mass.) 53 (in. which Shaw, C. J., draws the distinction between the police power and eminent domain); Ban croft v. Cambridge, 126 Mass. 438 ; or by restraining the owner of land from making a noxious use of it ; Chicago & A. R. Co. v. R. Co., 105 Ill. 388, 44 Am. Rep. 799 ; or by removing sand, etc., from beaches ; Corn. v. Tewksbury, 11 Mete. (Mass.) 55 ; compelling railroads to erect cattle guards ; Thorpe v. R. Co., 27 Vt. 140, 62 Am. Dec. 625; or hold ing them responsible for damages by fire (q. v.) from locomotives ; Rodemacher v. R. Co., 41. Ia. 297, 20 Am. Rep. 592 ; compelling riparian owners to keep up a levee; Boulig ny v. Dormenon, 2 Mart. N. S. (La.) 455 ; or
changing the course of a river ; Green v. Swift, 47 Cal. 536 ; or as a forfeiture for violation of law ; State v. Snow, 3 R. I. 64 ; People v. Hawley, 3 Mich. 330 ; Erie & N. E. R. Co. v. Casey, 26 Pa. 287 ; Guillotte v. New Orleans, 12.La. Ann. 432.
The Right of Compensation. Though not included in the definitions of the power as usually given, the necessity for compensa tion is recognized by the most authoritative writers as an incident to the right, an orig inal element of its existence, and not a super imposed limitation.
Accordingly eminent domain is said with more precision to be the right of the nation or the state, or of those to whom the power has been lawfully delegated, to condemn pri vate property to public use, and to appro priate the ownership and possession of such property for such use, upon paying to the owner a due compensation, to be ascertained according to law ; Black, Const. L. 350.
So far as the federal constitution is con cerned, a state may authorize the taking pos session of property for a public use, prior to any payment therefor, or even the deter mination of the amount of compensation, provided adequate provision is made for such compensation ; Williams v., Parker, 188 U. S. 491, 23 Sup. Ct. 440, 47 L. Ed. 559.
Nearly if not all of the American consti tutions provide for compensation. Professor Thayer states that "now (1895) only three constitutions, New Hampshire, North Caro lina, and Virginia are without a clause ex pressly requiring compensation." The provi sions of the several then constitutions are given in Randolph, Em. Dom. 401 to 416, and Lewis, Ern. Dom. §§ 14 to 52 (the latter in cluding the prior as well as•the last state constitutions). ' Nichols, Em. Dom. (1909) gives the provisions of twenty-seven state constitutions requiring prepayment; § 267. In one. of these states a statute providing that possession might be taken after the money was paid into court and before the amount of the compensation was ascertained was held unconstitutional on the ground that the owner was entitled to hold the land until he received the money ; Steinhart v. Superior Court, 137 Cal. 575, 70 Pac. 629, 59 L. R. A. 404, 92 Am. St. Rep. 183.