Suggestions in the line of the cases cited 'by Ran dolph and the views expressed, by Lewis, led to practical results in but few cases:-In South Caro lina land was taken for roads without compensa tion ; Lindsay v. Street Com'rs, 2 Bay (S. C.) 38 ; State v. Dawson, 3 Hill (S. C.) 100; but in New York,, taking wild land without compensation was held unconstitutional ; Wallace v. Karlenowefski, 19 Barb. (N. Y.) 118. In New Jersey and Pennsyl vania, the eubject rested on a statutory rather than a constitutional basis, because the grants by the proprietors an extra allowance for roads ; Simmons v, City of Passaic, 42 N. J. L. 619 ; ;Work man v. Mifflin, 30 Pa. 362; and this was held com pensation ; East Union Tp. v. Comrey, 100 Pa. 362. See Wagner v. Salzburg Tp., 132 Pa. 636, 19 Atl. 294. Under the New Jersey constitution, land might be taken for highways without compensation until oth erwise directed by the legislature. In Louisiana land on the Mississippi River can be taken without compensation for the construction of a public levee under the old French law, and this applies to the land of a citizen of another state, prqvided he re ceive the same measure of right as citizens of Lou isiana in regard to their property similarly situ ated ; Eldridge -v. Trezevant, 160 U. S. 452, 16 Sup. Ct. 345, 40 L. Ed. 490.
Mr. James B. Thayer (Cases, Const. L. 953) dis cusses this subject in a very interesting note and reaches the somewhat metaphysical conclusion that the right to compensation is not a component part of the right to take, though it arises at the same time' and the latter cannot exist without it, the two be ing compared to shadow and substance.
argues that the right of the state springs from the necessity of government, while the obliga tion to reimburse stands upon the natural rights of the individual. "These two, therefore, have not the same origin ; they do not come, for instance, from any Implied contract between the state and the in dividual, that the former shall have the property, if it will make compensation ; the right is no mere right of pre-emption, and it has no condition of compensation annexed to it, ,either precedent or subsequent. But there is a right to take, and at tached to it, as an incident, an obligation to make compensation ; this latter, morally speaking, fol lows the other, indeed, like a shadow, but it is yet distinct from it, and flows from another source." From this he argues that for the taking the citizen cannot complain ; if recompense is not made, the duty of the sovereign is violated and the individual "has an eternal claim against the state, which can never be blotted out except only by satisfaction ; but this claim is for compensation, and not for his former property," "in the abeence of constitu tional provisions," the loss "must be regarded as damnum absque injuria." The distinction Vetween this theory and the doc trine that the right to compensation is an inherent attribute rather than a subsequent limitation of the original right would seem to be rather ingenious than practical. The citations in the same note from the civilians show clearly that, in their view, com pensation was essential, and even in the states whose organio law was, at the time of the decision, either silent or contained merely a general declara tion as to private rights the necessity of compensa tion has been recognized ; Rand.. Em. Dom. § 227,
citing Bristol v. New Chester, 3 N. H. 524 ; In re Mt. Washington Road Co., 35 N. H. 134 ; Harness v. Canal Co., 1 Md. Ch. 248 ; Bonaparte v. R. Co.,. Baldw. C. C. 205, Fed. Cas. No. 1,617 ; Johnston v. Rankin, 70 N. C. 550 ; Staton v. A. Co., 111 N. C. 278, 16 S. E. 181, 17 L. R. A. 838 ; Ex parte Martin, 13 Ark. 198, 58 Am. Dec. 321; see also Monongahela Nay. Co. v. U. S., 148 U. S. 312, 13 Sup. Ct. F22, 37 L. Ed. 463; Hazen v. Essex Co., 12 Cush. (Mass.) 475. The mistaken idea that the fifth amendment of the constitution of the U. S., applied to the states, seems to have contributed to this opinion in some cases ; Gardner v. Village of Newburgh, 2 Johns. Ch. (N. Y.) 162, 7 Am. Dec. 526; Scudder v. Falls Co., 1 N. J. Eq. 694, 23 Am. Dec. 756. "The true doctrine is, ii the writer's opinion," says the author last cited, "that which requires the of compensation whether it be expressly enjoined or not. The modern concept of, a constitutional state as realized in the United States has no room for spoliation of the individual." The same view is supported in Mills, Em. Dam. § 1.
Whatever view may be taken of the gen eral doctrine of the law on this subject the necessity of compensation is firmly imbedded in American constitutional law.
It may be considered settled that the ex ercise of the right is not justifiable, where the statute fails to provide compensation; and the courts will, in general, substantially declare such an act unconstitutional;, Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. 43, 40 L. Ed. 188 ; Richmond v. Telegraph Co., 174 U. S. 761, 19 Sup. 'Ct. 778, 43 L. Ed. 1162; U. S. v. Lynah, 188 U. S. 445, 485, 23 Sup. Ct. 349, 47 L. Ed. 539 ; Barron v. City of Memphis,. 113 Tenn. 89, 80 S. W. 832, 106 Am. St. Rep. 810; Clifton v. Town of Weston, 54 W. Va. 250, 46 S. E. 360; Smith v. City of Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711; East Shore Land Co. v. Peckham, 33 R. I. 541, 82 Atl. 487; Higginson v. Com'rs, 212 Mass. 583, 99 N. E. 523, 42 L. R. A. (N, S.) 215; Sea Cliff Grove & Metropolitan Camp Ground Ass'n v. Steamboat Co., 70 Misc. 97, 127 N. Y. Supp. 1021;. Kent 339, n.; dicta in 4 Term 794; Louisville, C. & C. R. R. Co. v. Chappell, Rice (S. C.) 383; Stokes v. Upper Appomatox Co., 3 Leigh (Va.)• 337 ; Eastman v. Mfg. Co., 44 N. H. 143, 82 Am.. Dec. 201; Wells v. R. Co., 47 Me. 345; Watkins v. Walk er County,. 18 Tex. 585, 70 Am. Dec. 298; Watson's Ex'r v. Trustees of Pleasant Tp., 21 Ohio St. 667; Shute v. R. Co., 26 Ill. 436; Georgia M. & G. R. Co.. v. Ry. Co., 89 Ga. 205, 15 S. E. 305; Calder v. Police Jury, 44 La. Ann. 173, 10 South. 726; Webster v. Ry. Co., 116 Mo. 114, 22 S. W. 474 ; Monongahela Nay. Co. v. U. S., 148 U. S. 312, 13 Sup. Ct. 622, 37 L. Ed. 463; Searl v. School Dist. No.