§ 217. “On Just Terms.”

By the fifth amendment of the Constitution of the United States it was declared that private property should not be taken for public use without just compensation. This is regarded not as a grant but a restriction on the implied power. So the power of the Federal Parliament to take property, private or provincial, is limited by the condition that it must be exercised “on just terms.” This condition is consistent with the common law of England and the general law of European nations. It is intended to recognize the principle of the immunity of private and provincial property from interference by the Federal authority, except on fair and equitable terms, and this principle is thus constitutionally established and placed beyond legislative control. (Pumpelly v. Green Bay Co., 13 Wall. 166.)

Any law relating to this subject, passed by the Federal Parliament, would be examinable by the High Court, and if on its face it appeared to be unjust it would be liable to be declared unconstitutional and void. The Parliament would be able to pass a general law providing the machinery and procedure, according to which the right of eminent domain could in all cases be exercised. Until such a general law were passed, proceedings to acquire property and to ascertain compensation could be made to conform to the laws of the State in which such property is situated. In each State, at the present time, such machinery and procedure already exist for provincial purposes, in the shape of Acts known as Lands Clauses Compensation Acts, or Lands for Public Purposes Acquisition Acts. (United States v. Jones, 109 U.S. 513.)

In the United States it has been held that, under the provision for “just compensation,” a Federal law is valid which directs that where part of a property is taken for a highway, any direct benefits to the owner from the establishment of the highway shall be taken into consideration in assessing the compensation. (Bauman v. Ross, 167 U.S. 548.) Compensation must not only be just to the owner whose property is taken, but just to the public who have to pay. (Searl v. Lake County School District, 133 U.S. 553.)

Whenever any business, franchise, or privilege becomes obnoxious to the public health, manners or morals, it may be regulated by the police power of the State even to

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suppression; individual rights being compelled to give way for the benefit of the whole body politic. But when, in the exercise of this police power, private property or private vested rights must be taken for public use, in order to carry out improvements or regulations, or to carry on business or public works, looking to the benefit of the public health, manners or morals, compensation must be made for the property taken. (New Orleans Water-works Co. v. Tammany Water-works Co., 14 Fed. Rep. 194. Baker, Annot. Const. 183.)

When the Federal Government appropriates private property, it is under an implied obligation to make just compensation therefor; and, upon failure to do so, the owner may sue upon such obligation. although there may have been no formal act looking towards such compensation; (United States v. Great Falls Manufacturing Co., 112 U.S. 645. Id. 184.)

It is not necessary that the property should be absolutely taken to entitle the owner to compensation. If there is such serious interruption with the common and necessary use as to practically destroy its value, it would be a taking within the meaning of the fifth amendment. (Pumpelly v. Green Bay Co., 13 Wall. 166. Id.)

Where private property is taken by the government in time of war or public danger and converted to public used, the government is bound to pay for the same. (United States v. Russell, 13 Wall. 623. Id.)

Private property may be taken by a military commander to prevent its falling into the hands of the enemy; or, where necessary, it may be taken for the use of the public. In such case the government is bound to make full compensation; but the officer is not a trespasser, provided the danger is imminent or the necessity urgent, and such as will not admit of delay. (Mitchell v. Harmony, 13 How. 115. Id.)