The authority of a legislature to enact provisions for taking
private property for public use rests upon its right of eminent
domain, and it is a condition precedent to its exercise that the
statute conferring the power make reasonable provision for
compensation to the owner of the land. Unless the constitution of
the state in which the lands are situated requires payment or
tender of payment for land so taken for public use before the
rights of the public therein can become complete, a statute which
authorizes the taking of the property for public use and directs
the ascertainment of the damages without improper delay and in a
legal mode, and which gives the owner a right to judgment therefor,
to be enforced by judicial process, is sufficient to transfer the
title.
The Act of the Legislature of Massachusetts of June 1, 1867, c.
308, to enable the City of Boston to abate a nuisance, and for the
preservation of the public health in said city, and which provided
for the taking of certain private lands therein, and for their
improvement, filling up, and complete draining, so as to abate an
existing nuisance and preserve the health of the city, and which
further provided for the payment of the cost of the lots so taken
through judicial proceedings, was within the
Page 159 U. S. 381
constitutional power of the legislature of that state, and the
fee in said lands, when acquired by the city, passed to it under
the act, and the previous owners ceased to have any interest in
them, but were only entitled to reasonable compensation, to be
ascertained in the manner provided by the act.
The real estate the title to which is involved in the present
writ of entry formerly belonged to Peleg Tallman, Sr., of Maine,
who died on the 12th day of March 1840, having made a will which
was duly admitted to record in that state, and a copy whereof was
admitted to probate May 10, 1841, in Suffolk County, Mass. where
the premises in controversy are situated.
The parcel of land in dispute, with other real estate, was
devised to Henry Tallman, to hold for life, and at his decease to
descend to his son Peleg Tallman, Jr. The devisee in remainder was
born April 18, 1836, and died April 15, 1863, leaving two children,
Frank G. Tallman and Peleg H. Tallman, also a widow, who
subsequently intermarried with William A. Sweet, one of the
plaintiffs in error.
The plaintiffs in error, who were the plaintiffs below and are
citizens of New York, claim title under the will of Peleg Tallman,
Sr.
The defendant, a citizen of Mass. claims title under proceedings
instituted by the guardian of the devisee in remainder in the
Probate Court of Suffolk County, Mass. by the order of which court,
and in full compliance therewith, as is contended, the interest of
Peleg Tallman, Jr., in certain real estate, including the lot in
dispute, was sold in 1884, Henry Tallman, the owner of the life
estate, becoming the purchaser. In the same year, the latter
conveyed, with warranty, to Robert Knott, who purchased in good
faith at the price of $2,900. In 1869, Knott conveyed by warranty
deed to the defendant, Rechel, for the sum of $4,800 in cash or its
equivalent. Rechel bought in good faith, for full value, without
actual notice of any alleged defect in the title, and erected
buildings and made improvements on the premises in dispute at a
cost of $8,575.
The defendant also claims that the title to the lot in
controversy
Page 159 U. S. 382
was taken by the City of Boston in 1867, the title being at that
time apparently in Knott under a statute of Mass. approved June 1,
1867, entitled "An act to enable the City of Boston to abate a
nuisance existing therein, and for the preservation of the public
health in said city." Laws of Mass., 1867, c. 308.
By reason of its grade's being lower, and because it was
incapable of being properly drained, the condition of the territory
of which the lot in controversy was a part was such, during the
period between the years 1860 and 1870, as to endanger the public
health. Various plans having been suggested for the raising of the
grade and for the proper drainage of the territory, the legislature
passed the Act of June 1, 1867.
By that act, it was provided that the City of Boston "may
purchase or otherwise take the lands or any of them in said city,
with the buildings and other fixtures thereon," situated within a
certain defined district, which included the lands here in dispute;
that the
"city shall within sixty days from the time they shall take any
of said lands, file in the office of the Registry of Deeds for the
County of Suffolk a description of the lands so taken as certain as
is required in a common conveyance of lands,"
with
"a statement that the same are taken pursuant to the provisions
of this act, which said description and statement shall be signed
by the mayor of said city;"
that
"
the title to all land so taken
shall vest in the
City of Boston, and if any party whose land is taken shall
agree with the said city upon the damage done to him by the said
taking,
the same shall be paid to him by the said city
forthwith."
It was made
"the duty of the City of Boston forthwith to raise the grade of
said territory so taken or purchased, laying out and filling up the
same with good materials, with reference to a complete drainage
thereof, so as to abate the present nuisance and to preserve the
health of the city."
§ 1.
Any person having an interest in the land taken was at liberty,
within one year after the same was taken, as well in his own behalf
as in behalf of all other persons having estates therein, to file a
bill in equity in the Supreme Judicial Court, in the County of
Suffolk, setting forth the taking of
Page 159 U. S. 383
the complainant's land, the condition of the same in respect to
its capacity for drainage, and whether the complainant claimed any,
and what, damages against the city or the Boston Water Power
Company, or other corporation or person,
"by reason of any and what wrongful act or omission by their
causing a diminution in the value of his land at the time of said
taking, and praying an assessment of damages against such
parties,"
notice of such bill being given to the parties named therein as
defendants, according to the course of courts of equity, and also
public notice thereof to all persons in whose behalf such bill was
filed to appear and become come parties thereto, if they thought
fit to do so. It was made the duty of the court to prescribe how
such public notice should be given, and what length of time should
be allowed for appearing and becoming a party to the suit. Anyone
interested who failed to appear and become a party within the time
prescribed by the court was forever barred from recovering any
damages on account of such taking. Each person appearing and
becoming a party, having filed a written description of the land in
which he claimed an estate, together with a plan thereof so as
clearly to distinguish the same from all other lands, was required
to declare what estate he claimed therein. If he claimed that the
value of said lands at the time of the taking was lessened by any
unlawful act or omission of the City of Boston, or of the Boston
Water Power Company, or of any other corporation or person,
"so that the value of the land in its condition when taken would
not be a just compensation for all the estate and rights of the
party in and in reference to the same,"
he was also to state
"what such injury is, and how and by whom the same had been, or
is, caused, and what right or title of the party is violated, and
what amount of damages in gross is claimed by him, as compensation
therefor, from each of the parties defendant."
§ 2.
Other sections of the act provided for the appointment of
commissioners to hear the parties, after due notice, to assess the
value of the land taken, and to make report to the court of their
doings. Any party aggrieved by the report might except thereto, and
have his exception heard as in a suit in
Page 159 U. S. 384
equity, or might apply for the framing of proper issues to be
tried by a jury.
The seventh section provides:
"When it shall be finally determined what amount of damages any
party is entitled to recover against the City of Boston, or the
Boston Water Power Company, or any other party defendant, a
separate decree shall be entered accordingly and execution therefor
shall be issued, without regard to the pendency of the claims of
any other party or parties, or of other claims of such
complainant."
The city council approved and spread upon its records an
instrument reciting the act of 1867, and, stating that, pursuant to
its provisions, the city "has taken, and by these presents does
take," a certain parcel of land "belonging to Robert Knott" -- in
whose name, as we have seen, that title then stood of record --
"to have and to hold the same to the said City of Boston, its
successors and assigns, to its and their sole use and behoof,
forever, agreeably to the provisions of the said act."
This instrument was approved by the mayor, who certified that
"the lands described in said instrument were and are taken pursuant
to the provisions of the said act." Within sixty days of the taking
of the land, to-wit, on May 22, 1868, that instrument was filed in
the Suffolk registry of deeds, and was fully recorded.
It was admitted at the trial that the city followed the
provisions of the statute, and that the premises were held by the
defendant under Knott and the city; also that the city forthwith
performed the duty imposed on it by the statute at an immense
outlay; that
"the grade of the land was raised, and the buildings thereon,
the territory was laid out and filled, a complete and effective
system of drainage was provided, the nuisance abated, and the value
of the land was greatly enhanced. The lot in suit was filled in to
a depth of several feet, the buildings were raised and underpinned,
and the value increased."
Subsequently a settlement was had with the assignee of Knott in
relation to the taking of the land, and, Knott having executed a
release, the city conveyed, by deed of
Page 159 U. S. 385
March 14, 1870, to the defendant, Rechel, the deed reciting that
the property had been previously taken by the city under the above
act of 1867.
It was also admitted that no compensation was ever paid to the
plaintiffs by reason or on account of any proceedings by the city
under the Act of June, 1867. And it was agreed that
"in 1869, a bill in equity was brought under the statute,
reported in 109 Mass. 438, the case being
Cobb v. Boston,
on behalf of Cobb and all others entitled to have damages assessed
for this taking; that this case was pending in the supreme court
until the April term, 1882; that it was ordered by the court in
this case that the time from December 23, 1869, to first Tuesday of
April, 1870, be allowed to parties to bill; that notice was
published in papers on said order, and that such persons as came in
had their damages assessed under said bill. "
Page 159 U. S. 391
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The grounds upon which the plaintiffs impeach the validity of
the sale of 1844 are that the notice required to be given of the
proceedings in the Suffolk Probate Court was not shown to have been
published as often as required, and therefore such jurisdiction of
the ward was not acquired as authorized an order for the sale of
his property; that the notice of the sale did not specify both the
time and place of sale; that the guardian could only sell for money
in hand, and was without authority to sell and convey, and
immediately take, as was done, a mortgage back for the purchase
money; that no return of the proceeds of sale was ever made by the
guardian, and that an affidavit setting forth the time and place of
the sale was not filed by the guardian within the time prescribed
by the statute.
But obviously the question to be first considered is whether an
absolute title passed to the City of Boston. If the title passed in
virtue of what was done under the act of 1867, it will become
unnecessary to determine whether the sale made by the guardian of
Peleg Tallman, Jr., in 1844, was invalid upon any of the grounds
assigned by the plaintiffs. For if that sale was, in itself,
ineffectual to divest the title of the devisee in remainder, and if
at the time the city proceeded under the statute of 1867, the title
was not, in law, in Knott or in the defendant, Rechel, but in the
children and widow of the devisee in remainder upon his death in
1863, the title nevertheless passed to the city, if the provisions
of that statute
Page 159 U. S. 392
were followed, and unless, as plaintiffs contend, the statute
was unconstitutional and void.
The Constitution of Massachusetts recognizes the right of each
individual to be protected in his life, liberty, and property,
according to standing laws, declares his obligation to contribute
his share to the expense of such protection, and provides that
"no part of the property of any individual can, with justice, be
taken from him or applied to public uses without his own consent or
that of the representative body of the people,"
and
"whenever the public exigencies require, that the property of
any individual should be appropriated to public uses, he shall
receive a reasonable compensation therefor."
Mass.Const. Part 1, art. 10. The legislative department of the
commonwealth has, however, full power
"from time to time to make, ordain, and establish all manner of
wholesome and reasonable orders, laws, statutes and ordinances,
directions and instructions, either with penalties or without, so
as the same be not repugnant or contrary to this constitution, as
they shall judge to be for the good and welfare of this
commonwealth and for the government and ordering thereof."
Part 2, c. 1, art. 4.
The authority for the enactment of the statute of 1867 is found
in these constitutional provisions. The Territory of which the lot
in controversy formed a part was in such condition, for many years,
as to require, or at least to justify, legislative interference
under the power to ordain and establish wholesome and reasonable
regulations conducive to the good and welfare of the people and not
inconsistent with the fundamental law of the commonwealth. And no
restrictions are imposed by the Massachusetts Constitution upon the
mode in which this power may be exerted, except that it is
expressly required that the orders, regulations, and statutes
prescribed by the legislature must not be repugnant to the
constitution, and it was necessarily implied that the exercise of
the power must have some real, substantial relation to the general
good and welfare. But in determining whether the legislature, in a
particular enactment, has passed the limits of its constitutional
authority, every reasonable presumption must be indulged in
Page 159 U. S. 393
favor of the validity of such enactment. It must be regarded as
valid unless it can be clearly shown to be in conflict with the
constitution. It is a well settled rule of constitutional
exposition that if a statute may or may not be, according to
circumstances, within the limits of legislative authority, the
existence of the circumstances necessary to support it must be
presumed.
Talbot v. Hudson, 16 Gray 417, 422;
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 128;
Sinking Fund Cases, 99 U. S. 700,
99 U. S.
718.
We must therefore assume that the act of 1867 had for its real
object the protection of the public health, and not the mere
acquisition of the property in question for purposes of sale and
profit after it had increased in value by reason of the grade being
raised. It is not alleged in the pleadings, nor was there any
evidence tending to show, that the cost of raising the grade would
have been so slight, compared with the real value of the property,
that a due regard to the Constitution demanded that the owner
should have been given opportunity to raise the grade at his own
expense, and retain the property in its improved condition. On the
contrary, it appears that the public health justified prompt
action, and the use of such means as could be effectively supplied
only by municipal authority acting under legislative sanction.
In
Dingley v. Boston, 100 Mass., 544, 554-560, this act
of 1867 was assailed upon various grounds. It was there adjudged
that the statute authorized the property described in it to be
taken by the city for public purposes -- that its language imported
a title in fee simple. The point was pressed that the legislature
had assumed the power to declare the existence of a public nuisance
on the land of the plaintiff, and that this was an exercise of
judicial power because it charged him with an offense, and decided
the question without giving him an opportunity to be heard, and
then proceeded to deprive him of his land. But this point was
overruled, the court holding that the statute did not regard him as
an offender in any sense, because it gave him a right to
compensation not only for all damage occasioned by the taking of
his land, but for its deterioration in value before the taking;
that it regarded
Page 159 U. S. 394
him as an innocent person, whose land was taken on the ground of
public necessity in order to protect the health of the city, and
that, upon the facts stated, it was apparent that no indictment
would lie against him, notwithstanding the nuisance, for it had
been created by the acts of others which were beyond his control,
and it was not in his power to remove it.
After observing that the work specified in the act was regarded
by the legislature as a great public enterprise, to accomplish a
highly important object, one that needed to be prosecuted by
legislative authority, and which could not have been dealt with by
a judicial tribunal under any known forms of proceeding, the court
proceeded:
"Where the sanitary condition of a large city requires an
interference with the real estate of a great number of persons,
making expensive and essential changes in the condition and
character of the land, a case is presented within that clause of
the Constitution which confers authority upon the legislature to
make 'all manner of wholesome and reasonable laws, so as the same
be not repugnant or contrary to this Constitution.' Part 2, c. 1,
art. 4, § 1. In
Hingham & Quincy Bridge & Turnpike Co.
v. County of Norfolk, 6 Allen 353, Bigelow, C.J., says one of
the main purposes of this clause was to vest in the legislature a
superintending and controlling authority, under and by virtue of
which it might enact all laws not repugnant to the Constitution of
a police and municipal nature, and necessary to the due regulation
of the internal affairs of the commonwealth."
In the same case, it was objected that as the act authorized the
city to first take the land, and thereby transfer to itself the
fee, without the consent of the owners, and as the only object of
the legislature was to abate a nuisance, the act should only have
granted power to occupy the land until its object was effected by
raising the grade, which being done, the land should have been
restored to the owners, applying the benefit received therefrom in
offset to the damages. That objection was fully met. Conceding it
to be true that the raising of the grade did not require an
occupation of the
Page 159 U. S. 395
land for a great length of time, and that when the work was
completed, the nuisance was abated, and the land in a condition to
be occupied by private persons, the court said:
"But its condition will be greatly changed, almost as much as
raising flats into upland. The former surface will be deeply buried
under the earth that will have been brought upon it, and the
changed condition is to be perpetual. If the old property is
restored, the new property which has been annexed to it must go
with it. This would be very unjust to the city, which has been
compelled to incur the great expense of destroying the nuisance,
unless the owner were required to make a reasonable compensation,
which might be far beyond the amount of the damages to which he
would be entitled. It would be difficult to adjust the matter, and
in many cases it might operate harshly upon the owner to compel him
to take and pay for the improvements. On the whole, therefore, the
plan of compelling the city to take the land in fee simple, and the
owner to part with his whole title for a just compensation, would
seem to be the most simple and equitable that could be adopted,
unless there is some objection on the ground that a fee simple is
more sacred than an estate for life or years or than an easement of
greater or less duration. We can see no ground for regarding one of
these titles as more sacred than another or for regarding land as
more sacred than personal property."
Again:
"Whether land be taken under the clause authorizing the making
of wholesome and reasonable laws, or by virtue of the clause
authorizing the appropriation on private property to public uses,
it must in either case be left to the legislature to decide what
quantity of estate ought to be taken in order to accomplish its
purpose, and do the most complete justice to all parties. . . . The
Constitution provides for the protection of all private property,
and it provides that when the public exigencies require that the
property of any individual shall be appropriated to public uses, he
shall receive a reasonable compensation therefor. But it leaves the
legislature, without any restriction, express or implied, to
decide, in each case as it arises, what constitutes such exigency,
and, if land is to be taken, what estate in it shall pass. "
Page 159 U. S. 396
But the validity of the act of 1867 is questioned on the ground,
not suggested in
Dingley v. Boston, that it did not
provide fro compensation to be made to the owners of the property
in advance of its actual appropriation by the commonwealth.
Upon this point, the defendant insists that the statute was
enacted under the authority to ordain and establish laws and
regulations reasonably adapted to secure the good and welfare of
the people, and that statutes, having such objects in view which
deprive individuals of the control and use of their property, need
not make provision at all for compensation to such individuals.
In support of this position, reference is made to
Bancroft
v. Cambridge, 126 Mass. 438, 441. That case arose under a
statute empowering the City of Cambridge to require the owners of
certain lands to fill them to a prescribed grade in order to abate
a nuisance. If the owners failed to do so, then the city was
authorized to raise the grade, the expense thereby incurred to
become a lien on the land filled. If anyone gave due notice of his
dissatisfaction with the assessment of the expense of raising the
grade, the city was thereupon required to "take" the land, and,
within a named time, file in the registry of deeds a description of
it, together with a statement that it was taken under the statute.
If the parties did not agree as to the amount of damage done by the
taking, then the question of damage was to be determined by a jury,
proper allowance being made for the improvement by reason of the
grade of the land being raised.
The court said that the compensation to which the owner was
entitled was the value of the land at the time of the taking,
making due allowance for the improvement; that this excluded loss
or inconvenience caused to the owner by proceedings prior to the
taking; that the purpose of the statute was to give to each owner
the right to elect whether he would pay the expenses of filling his
land and retain his estate or surrender his estate to the city for
a fair compensation, and that the act gave no right, either to the
owner who surrendered or to the owner who did not surrender, to
recover for previous
Page 159 U. S. 397
loss or inconvenience. "Nor," the court said,
"is the statute made unconstitutional by this construction. It
is entitled 'An act to provide for the prevention and abatement of
nuisances and the preservation of the public health.' It was not
passed to delegate the right of eminent domain, but under the
police power of the commonwealth. Laws passed in the legitimate
exercise of this power are not obnoxious to constitutional
provisions merely because they do not provide compensation to the
individual who is inconvenienced by them. He is presumed to be
rewarded by the common benefits secured. Instances of its exercise
are found in all quarantine and health regulations, and in all laws
for the abatement of existing and the prevention of threatened
nuisances. . . . The legislature is ordinarily the proper judge of
the necessity for the exercise of the power, and there is nothing
in this case which shows that this act was not required for the
preservation of health and protection against a nuisance."
That case does not sustain the view advanced in behalf of the
present defendant. The statement in the opinion of the court that
laws passed in the legitimate exercise of the police power are not
to be held objectionable on constitutional grounds
merely
because they do not provide for compensation to the individual
inconvenienced by them had reference only to so much of the statute
then under examination as directed, in the interest of the public
health, the abatement of the nuisance created by the condition of
the property in question. The abatement of a nuisance, nothing more
being required or done, is not of itself, and within the meaning of
the Constitution, an appropriation of property to public uses. The
court did not say that private property the condition of which was
such as to endanger the public health could be legally taken by the
commonwealth
and appropriated to public use without
reasonable compensation to the owner. On the contrary, the statute
there under examination contemplated that if the owner did not
himself abate the nuisance in the mode prescribed, then the
property the condition of which was the cause of the
nuisance was to be
taken by the city, the owner to receive
such damages as a jury awarded, allowance
Page 159 U. S. 398
being made for the improvement that resulted from the raising of
the grade at the expense of the city. That case, it is manifest,
proceeded upon the ground that the provisions of the Constitution
above quoted are to be construed together, so that if private
property be actually taken and appropriated for public uses,
although taken or appropriated in virtue of a statute having as its
main or primary object the conservation of the public health,
reasonable compensation must be made to the owner. This necessarily
follows from the restriction imposed by the Constitution to the
effect that statutes passed in the exercise of the police power of
the commonwealth must not be repugnant or contrary to the
Constitution, one of the provisions of which is that the owner of
private property
appropriated to public uses shall receive
a reasonable compensation therefor. And it was so appropriated when
the city took the fee, and thereby acquired a right to sell the
property after it was improved, and put the proceeds into its
treasury.
Brooklyn Park Commissioners v. Armstrong, 45
N.Y. 234, 244.
Undoubtedly the state, without taking the title to itself, may
in some appropriate mode, and without compensation to the owner,
forbid the use of specified private property where such use would
be injurious to the public health. For, as said by Chief Justice
Shaw in
Commonwealth v. Alger, 7 Cush. 53, 84,
"It is a settled principle growing out of the nature of well
ordered society that every holder of property, however absolute and
unqualified may be his title, holds it under the implied liability
that his use of it shall not be injurious to the equal enjoyment of
others having an equal right to the enjoyment of their property,
nor injurious to the rights of the community. . . . Rights of
property, like all other social and conventional rights, are
subject to such reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable
restraints and regulations, established by law, as the legislature,
under the governing and controlling power vested in them by the
Constitution, may think necessary and expedient."
This, the court said, was not the power of eminent domain, but
rather
Page 159 U. S. 399
the police power --
"the power vested in the legislature by the Constitution to
make, ordain, and establish all manner of wholesome and reasonable
laws, statutes, and ordinances, either with penalties or without,
not repugnant to the Constitution, as they shall judge to be for
the good and welfare of the commonwealth and of the subjects of the
same."
When, however, the legislature provides for the actual taking
and appropriation of private property for public uses, authority to
enact such a regulation rests upon its right of eminent domain -- a
right vital to the existence and safety of government. But it is a
condition precedent to the exercise of such power that the statute
make provision for reasonable compensation to the owner.
The difference between an act passed with exclusive reference to
the police power of the state, without any purpose to take and
apply property to public uses, and a statute like the one here
involved, which, for the general good, ordains and establishes
regulations declaring the existence of a nuisance created by the
condition of particular property, and,
in addition, and as
the best mode of accomplishing the end in view, authorizes the same
property to be appropriated by the public, is illustrated by
Commonwealth v. Tewksbury, 11 Met. 55, 59. That case
related to a statute of Massachusetts which, for the protection of
the harbor of Boston, forbade, under penalties, the removal of any
stones, gravel, or mud from any of the beaches in the Town of
Chelsea. The court, observing that all property was acquired and
held under the tacit condition that it should not be so used as to
injure the equal rights of others or to destroy or greatly impair
the public rights and interests of the community, said that
"a law prohibiting an owner from removing the soil composing a
natural embankment to a valuable, navigable stream, port, or
harbor, is not such a taking, such an interference with the right
and title of the owner, as to give him a constitutional right to
compensation, and to render an act unconstitutional which makes no
such provision, but is a just restraint of an injurious use of the
property, which the legislature have authority to make. "
Page 159 U. S. 400
The principle is also illustrated by the case of
Turner v.
Nye, 154 Mass. 579, 581. That case involved the validity of a
statute authorizing the flowage of certain lands or flats, upon
prescribed terms and conditions, for the purpose of creating and
raising a pond for the cultivation of useful fishes. Referring to
the constitutional provision giving power to enact all manner of
wholesome and reasonable laws for the general good (Const. Mass.
Part 2, c. 1, art. 4), the court in that case said:
"The provision above quoted does not authorize the legislature
to take property from one person and give it to another, not to
take property for public uses without compensation nor wantonly to
interfere with private rights. These are always to be carefully
guarded and protected. But, of necessity, cases will arise where
there will or may be a conflict of interests in the use and
disposition of property, and questions may and will come up
affecting the public welfare in regard to the use which shall or
shall not be permitted of certain property."
Salem v. Eastern Railroad Co., 98 Mass. 431, 437.
But must compensation be actually made or tendered in advance of
such taking or appropriation? Is it not sufficient, in order to
meet the requirements of the Constitution, if adequate provision be
made for compensation?
The constitutions of some of the states expressly require that
compensation be first made to the owner before the rights of the
public can attach. But neither the Constitution of Massachusetts
not the Constitution of the United States contains any such
provision. The former only requires that the owner "shall receive a
reasonable compensation," the latter that private property shall
not be taken for public use "without just compensation." Reasonable
compensation and just compensation mean the same thing.
In
Haverhill Bridge Proprietors v. County
Commissioners, 103 Mass. 120, 124, the court said:
"The duty of paying an adequate compensation for private
property taken is inseparable from the exercise of the right of
eminent domain. The act granting the power must provide for
compensation, and a ready means of ascertaining the amount.
Page 159 U. S. 401
Payment need not precede the seizure, but the means for securing
indemnity must be such that the owner will be put to no risk or
unreasonable delay."
A leading case upon this point is
Connecticut River Railroad
v. Franklin County Commissioners, 127 Mass. 50, 52, 56. That
case arose under a statute of Massachusetts authorizing the manager
of a railroad owned by the commonwealth to take land for a
passenger station to be used by that and other railroads, and
providing no other mode of compensation to the owner than that the
land should be paid for out of the earnings of the railroad. The
statute was held to be void.
The court said:
"It has long been settled by the decisions of this Court that a
statute which undertakes to appropriate private property for a
public highway of any kind without adequate provision for the
payment of compensation is unconstitutional and void, and does not
justify an entry on the land of the owner without his consent,"
citing, among other cases,
Boston & Lowell Railroad v.
Salem & Lowell Railroad, 2 Gray 1, 37. Again:
"Statutes taking private property for a public highway and
providing for the ascertaining of the damages and for payment
thereof out of the treasury of the county, town, or city, have
often been held to be constitutional. But, in the cases in which it
has been so held, the liability to pay the damages rested upon the
whole property of the inhabitants of the municipality, and might be
enforced by writ of execution or warrant of distress, or by
mandamus to compel the levy of a general tax. The rule has not been
extended to cases in which only a special fund was charged with the
payment of the damages, and the municipality had no power to levy a
general tax to pay them. . . . When,"
the court said,
"private property is taken directly by the commonwealth for the
public use, it is not necessary or usual that the commonwealth
should be made subject to compulsory process for the collection of
the money to be paid by way of compensation. It is sufficient if
the statute which authorizes the taking of the property should
provide for the assessment of the damages in the ordinary manner,
and direct that the damages so assessed be paid out of the treasury
of the commonwealth,
Page 159 U. S. 402
and authorize the governor to draw his warrant therefor."
Much stress was placed by counsel in that case upon the admitted
fact that the earnings of the railroad owned by the commonwealth
would probably be sufficient to meet and extinguish all claims for
damages for lands taken. But that, the court well said, fell short
of the constitutional requirement that the owner of property shall
have prompt and certain compensation, without being subjected to
undue risk or unreasonable delay.
In the later case of
Brickett v. Haverhill Aqueduct
Co., 142 Mass. 394, 396, the language of the court was
that
"a statute which attempts to authorize the appropriation of
private property for public uses without making adequate provision
for compensation is unconstitutional and void."
In view of these authorities, it is clear that, as the
Constitution of Massachusetts does not require compensation to be
first actually made or tendered before the rights of the public in
the property taken or applied become complete, the requirements of
that instrument are fully met where the statute makes such
provision for reasonable compensation as will be adequate and
certain in its results. It is equally clear that an adequate
provision is made when the statute authorizing a public municipal
corporation to take private property for public uses directs the
regular ascertainment, without improper delay and in some legal
mode, of the damages sustained by the owner and gives him an
unqualified right to a judgment for the amount of such damages,
which can be enforced -- that is, collected -- by judicial
process.
Substantially the same principles have been announced by this
Court when interpreting the clause of the Constitution of the
United States that forbids the taking of private property for
public use without just compensation. In
Cherokee Nation v.
Southern Kansas Railway, 135 U. S. 641,
135 U. S. 658,
it was suggested that the act of Congress there involved violated
the Constitution of the United States in that it did not provide
for compensation to be made to the plaintiff before the defendant
entered upon lands taken for the purpose of constructing
Page 159 U. S. 403
its road over them. This objection was not sustained. The Court
said:
"The Constitution declares that private property shall not be
taken for public use without just compensation. It does not provide
or require that compensation shall be actually paid in advance of
the occupancy of the land to be taken. But the owner is entitled to
reasonable, certain, and adequate provision before his occupancy is
disturbed. Whether a particular provision be sufficient to secure
the compensation to which, under the Constitution, he is entitled
is sometimes a question of difficulty. In the present case, the
requirements of the Constitution have, in our judgment, been fully
met. The third section provides that before the railway shall be
constructed through any lands proposed to be taken, full
compensation shall be made to the owner for all property to be
taken or damage done by reason of the construction of the road. In
the event of an appeal from the finding of the referees, the
company is required to pay into court double the amount of the
award, to abide its judgment, and that being done, the company may
enter upon the property sought to be condemned and proceed with the
construction of its road. We are of the opinion that this provision
is sufficiently reasonable, certain, and adequate to secure the
just compensation to which the owner is entitled. . . . The
plaintiff asks what will be its condition as to compensation if,
upon the trial
de novo of the question of damages, the
amount assessed in its favor should exceed the sum which may be
paid into court by the defendant? This question would be more
embarrassing than it is if, by the terms of the act of Congress,
the title to the property appropriated passed from the owner to the
defendant when the latter, having made the required deposit in
court, is authorized to enter upon the land pending the appeal and
to proceed in the construction of its road. But clearly [under the
act of Congress] the title does not pass until compensation is
actually made to the owner. Within the meaning of the Constitution
[and under that act], the property, although entered upon, pending
the appeal, is not taken until the compensation is ascertained in
some legal mode, and, being paid, the title passes from the owner.
"
Page 159 U. S. 404
In
Kennedy v. Indianapolis, 103 U.
S. 599,
103 U. S. 603,
cited by the plaintiffs, the controlling question was whether the
owner of certain lands taken under an Indiana statute for a public
object had been divested of his
title. And that question
depended upon the construction of the clause of the state
constitution, providing
"that no man's particular services shall be demanded or property
taken or applied to public use without the consent of his
representatives or without just compensation being made
therefor."
Const.Indiana 1816, art. 1, § 7. It should be here stated that
the Indiana statute, Rev.Stat.Indiana, 1838, p. 337, c. 55,
contained no clause expressly declaring at what stage of the
proceedings the owner's title should be divested. Necessarily,
therefore, it was held that under the Indiana Constitution, the
owner was not divested of title until he was compensated. After
referring to adjudged cases in that and other states, this Court,
speaking by Chief Justice Waite, said:
"Not to multiply cases further, it seems to us that, both on
principle and authority, the rule is, under such a Constitution as
that of Indiana, that the right to enter and use the property is
complete as soon as the property is actually appropriated under the
authority of law for a public use, but the title does not pass from
the owner without his consent until just compensation has been made
to him."
But that case by no means controverts the doctrine that the
legislature may authorize a municipal corporation to take, for
public use at the outset, the absolute title to specific private
property if either the statute under which that is done or a
general statute recognizes the absolute right of the owner, upon
his property being taken, to just or reasonable compensation
therefor, and makes provision, in the event of the disagreement of
the parties, for the ascertainment, by suit, without unreasonable
delay of risk to the owner, of the compensation to which under the
Constitution he is entitled, and to a judgment in his favor,
enforceable against such corporation in some effective mode, so
that the owner can certainly obtain the amount of such
compensation. The Massachusetts statute of 1867, unlike the Indiana
statute,
Page 159 U. S. 405
expressly declares that, from the moment the property was taken,
in accordance with its provisions, the title should be vested in
the City of Boston, that the city should thereupon proceed
forthwith with the work of raising the grade, and that the owner
should have the right, for the prompt enforcement of which adequate
provision was made, to obtain reasonable compensation for his
property.
Numerous authorities have been cited which, it is supposed, are
in conflict with the views we have expressed. But a careful
examination will show that the cases cited are distinguishable from
those to which we have referred.
In
Baltimore & Susquehanna
Railroad v. Nesbit, 10 How. 395,
51 U. S.
398-399, it was said that it was the payment or tender
of the value assessed by the inquisition that gave title to a
railroad company that had taken private property for its road, and
consequently, without such payment or tender, no title could pass.
But it was so declared because, by the very terms of the statute,
the company was entitled to the estate and interest of the owner in
the land condemned when it paid or tendered the value so
ascertained.
In
Bloodgood v. Railroad Mohawk & Hudson Railroad,
18 Wend. 9, 17-18, which was a case of private property taken for a
railroad company, Chancellor Walworth said that the payment of the
damages a warded, or the deposit of the amount as prescribed, was
in the nature of a condition precedent not only to the acquisition
of the legal title to the land, but also to the right to enter and
take permanent possession of the land for the use of the
corporation. But that was said with reference to a statute
providing that, upon the payment of the damages awarded, with the
costs of the appraisement, or upon the deposit of the amount in a
bank in a named city to the credit of the owner, of which notice
should be given, the railroad company should "be deemed to be
seized and possessed of the fee simple of all such land or real
estate as shall have been appraised." That the chancellor did not
hold to the doctrine that payment or tender of payment must in
every case precede the divestiture of the owner's title is clear
from the preceding parts of his opinion. He said:
"It certainly was
Page 159 U. S. 406
not the intention of the framers of the Constitution to
authorize the property of a citizen to be taken and actually
appropriated to the use of the public, and thus to compel him to
trust to the future justice of the legislature to provide him a
compensation therefor. The compensation must be either ascertained
and paid to him before his property is thus appropriated or an
appropriate remedy must be provided, and upon an adequate fund,
whereby he may obtain such compensation through the medium of the
courts of justice if those whose duty it is to make such
compensation refuse to do so. . . . The public purse, or the
property of the town or county upon which the assessment is to be
made, may justly be considered an adequate fund. He had no such
remedy, however, against the legislature to compel the passage of
the necessary laws to ascertain the amount of compensation he is to
receive or the fund out of which he is to be paid."
So, in
People v. Hayden, 6 Hill, 359, 361, Chief
Justice Nelson said:
"Although it may not be necessary within the constitutional
provision that the amount of compensation should be actually
ascertained and paid before property is thus taken, it is, I
apprehend, the settled doctrine, even as it respects the state
itself, that at least certain and ample provision must be first
made by law, except in cases of public emergency, so that the owner
can coerce payment through the judicial tribunals or otherwise
without any unreasonable or unnecessary delay."
See also Brinckerhoff v. Wemple, 1 Wend. 470, 472;
Rogers v. Bradshaw, 20 Johns. 735, 741;
Baker v.
Johnson, 2 Hill 342, 347.
In
Stacy v. Vermont Cent. Railroad, 27 Vt. 39, 44, the
court said that the railroad company derived no title to the
condemned land, nor any easement growing out of it, and acquired no
right to enter upon it or exercise ownership over the same until it
paid the damages awarded to the owner, or deposited the money as
prescribed by the statute. The reason given for this was that the
statute expressly provided that that should be done before any
right in the land accrued to the company.
The case now before us differs from all, or nearly all, of
Page 159 U. S. 407
those cited by the plaintiffs in this: that in the latter the
statute under which the property was taken, either expressly or by
necessary implication, made the payment or tender of the
compensation awarded to the owner of the property appropriated to
public use a condition precedent to the acquisition of title by the
party at whose instance the property was taken, whereas in the
present case the statute vests the title in the City of Boston from
at least the time it filed in the office of the registry of deeds a
description of the lands taken by it, describing them with as much
certainty as is required in a common conveyance of lands and
stating that the same were taken pursuant to the provisions of the
statute. As soon as they were so taken, the city, invested from
that time with the title, had the right forthwith to raise the
grade, and could not throw the property back upon the former owner
or compel him to pay the cost of raising the grade, and the owner
became, from the moment the property was taken, absolutely entitled
to reasonable compensation, the amount to be ascertained without
undue delay, in the mode prescribed, and its payment to be assured,
if necessary, by decree against the city, which could be
effectively enforced.
We are of opinion that, upon both principle and authority, it
was competent for the legislature, in the exercise of the police
powers of the commonwealth and of its power to appropriate private
property for public uses, to authorize the city to take the fee in
the lands described in the statute prior to making compensation,
and that the provision made for compensating the owner was certain
and adequate.
It results that, as the title to the lands here in question
passed to the City of Boston when such lands were actually taken in
the mode prescribed in the statute of 1867, the persons who were
then the owners, whoever they were, had thereafter no interest in
them, but were only entitled to reasonable compensation.
If the proceedings in the Probate Court of Suffolk County were
so defective that the title of the ward was not legally divested by
the sale in 1844, upon which question it has become unnecessary in
the present case to express any opinion,
Page 159 U. S. 408
nevertheless the title passed under the act of 1867 to the City
of Boston when, following the provisions of that statute, it took
these lands. In this view, no action can be maintained by the
plaintiffs to recover the land under the title of the owner as that
title existed prior to the acquisition of the property by the
city.
The judgment is affirmed.