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plication for leave to be admitted as a par- | outlet or outlets for the sewerage system of ty, and for leave to file its answer to the the town. petition, that it might recover from the The court excluded all such evidence as United States fair damages for the taking irrelevant and incompetent, and ruled that of its property.

the town was not entitled to damages either In pursuance of its purpose to be heard on account of taxes, or because of the taking and recover fair damages, the town filed its of the land in which the water pipes and answer, in which it claimed interests in the sewers were laid; and the town excepted. condemned property, consisting of ea sements No questions were submitted to the jury as and rights of way over which it had built, to the interests of the town, and the jury at great expense, macadamized, crushed rendered verdicts condemning the land destone, and graveled streets, and under which, scribed in the petition, and awarded damand in lands not streets, it had built and ages to the owners of the fee, but none to laid sewers and sewer pipes. The answer the town; and a decree of condemnation was further sets forth that the town had built entered, covering the land described, toand laid water pipes, and that the taking gether with all roads, ways, and avenues inof the land and the streets by the petitioner, cluded in the description of the land, with and cutting off the sewers, stop the drainage all buildings and structures on the described of the land outside the land condemned, and premises; and the decree further recites would compel the town to build and main that the land taken is shown upon a plan tain a new and expensive system of drain annexed to the petition. age. The answer concludes with a prayer It results, therefore, that we are that the jury may appraise the damages by fronted with the question whether the claim reason of the taking of the land, its ease and offer of the town disclosed any interest ments and improvements, including streets, in the property taken and condemned, for sewers, and water pipes, for which compen- which it was entitled to compensation. sation was demanded from the petitioner. The petition in this case was filed April

After service, and before trial, an agree 29, 1902, and sets forth that the proceeding ment as to values and damages was duly was instituted by the Attorney General of entered into between the government and the United States, upon the application of certain of the parties of interest, and sub- the Secretary of War, in accordance with an sequently a jury was duly impaneled, to act of Congress approved August 1, 1888, which the cause was committed. At the chap. 728, g 1, 25 Stat. at L. 357, U. S. trial it was admitted that no plan had been Comp. Stat. 1901, p. 2516, entitled “An Act filed in the office of the secretary of state to Authorize Condemnation of Land for of Massachusetts, as required by the act of Sites of Public Buildings, and for Other May 6, 1902 (Laws 1902, chap. 373, p. 289), Purposes.” In the following May there was and that certain taxes were assessed upon passed in the state of Massachusetts an act the land in question on the 1st day of May, entitled “An Act to Approve the Acquisi.1902; and the town claimed as an element tion by the United States of a Tract of of damage, or as an interest to be appraised Land in the Town of Nahant.” Acts 1902, and valued, a lien for the amount of the chap. 373, p. 289. It is now contended by taxes assessed upon land condemned.

the United States that this proceeding for To state the substance of the town's claim condemnation is so far authorized by the for compensation, it offered to prove that Massachusetts statute as to entitle the within the territory condemned certain United States to stand upon the Massastreets had been located and constructed by chusetts law as to the rule of damages the town; that in such streets there were where property taken for a second and difwater pipes belonging to the town, connect- ferent public use is connected with a prior ing with and forming a part of its system, public use authorized by the state, and that and that the taking by the United States the rule of the loca. law is controlling. would compel the town to construct other We do not accept such view. The Massalines for the purpose of carrying water to chusetts act was merely a recognition of the its inhabitants, and for the purpose of com- inherent power of the central government pleting the town water system; and that in to exercise its own right of eminent domain, such streets there were certain sewers, the and a consent which amounts to a waiver property of the town, and part of its sewer of its jurisdiction under certain expressed system, discharging through an outlet into limitations, and of all objection, if any, the ocean, which were taken by the govern- which the commonwealth might assert as a ment, and that the sewers taken cared for state upon consideration of its prior grants the sewage of other portions of the town or delegations of quasi-public power to munot taken; and that the taking of the sew. nicipal or other corporate interests. By the ers condemned would make it necessary to terms of the Massachusetts statute, it was construct new sewers, and construct a new an act to approve of and consent to the ac

quirement by the United States, through | in its exercise of the right to condemn proppurchase or by condemnation, of land with erty used for a prior Federal public purpose, in its territory for purposes of national de under its prior grant or franchise, might fense, reserving concurrent jurisdiction with not be just compensation for property taken the United States in and over the area to with which it had theretofore had no conbe acquired, only so far that all civil and nection, and to which it therefore sustains criminal process issuing under authority of the relation of an entire stranger to the the commonwealth might be executed on the title and to the property condemned. land so acquired. The act does not employ Again, what would be just compensation any express words of grant; nor does it con- in a condemnation proceeding by a state, tain any expression indicating a purpose where property had been dedicated to a prito transfer property, municipal or other- or public use under the exercise of a franwise, to the United States, without compen chise granted by a stare, m.ight not be just sation. The manifest and only purpose of compensation where property and rights are the state was to acquiesce in the idea that taken by the general government, in an inthe general government might acquire by dependent proceeding, in the exercise of its purchase, or in its inherent right, through own original and inherent right of eminent condemnation, under its own constitutional domain, to take property and rights upon limitations,-its own safeguards and pro- just compensation. This would perhaps ceedings,-territory within the limits of depend upon whether the general govern. Massachusetts for purposes of national de ment, through the consent or grant of the fense.

state, and under the doctrine of subrogaIn the case of Kohl v. United States, 91 tion, has succeeded to all the rights which U. S. 367, 23 L. ed. 449, where it was con- would inure to tne state in case of its contended that the circuit court had no juris- demnation of property created in connection diction over a proceeding brought by the with an existing easement or franchise United States for condemnation of property which the state had previously granted. within a state; and that the condemnation We do not, however, deem it necessary provided for by act of Congress meant con- to inquire as to the status of the local law demnation by the state government in the in respect to the rule of compensation where exercise of its power of eminent domain; the state condemns property for a second and that, if the state grant of power was ac public use which was created and dedicated cepted by the United States, it must be to the prior public use in connection with a exercised in the mode and by the tribunal franchise previously granted by the state. the state had prescribed,—it was broadly. If the right rests with the state of Massadistinctly, and emphatically asserted that chusetts to condemn without compensation, the principle of the right of eminent domain for another and a different public use, propexists in the government of the United erty in the nature of structures created and States as an inherent, necessary, and inde- used by municipal corporations in the everpendent attribute of sovereignty; that the cise of a public easement or franchise like power of the United States in such respect that in question, granted through the gener. is complete, and without any limitation that al law of a state, there is nothing in the act it shall be exercised in the manner pre-warranting the conclusion that the state inscribed for condemnation by a state; and tended to transfer any such right to the that a proceeding in the United States court l'nited States. It results, therefore, as we for condemnation for necessary public and have said, that the general government is Federal uses is one by the United States proceeding in this case in its own right of government in its own right, and by virtue eminent domain, under the limitations of the of its own eminent domain. See also Constitution, to secure property for a public United States v. Gettysburg Electric R. Co. and paramount purpose upon just compen160 U. S. 668, 679, 40 L. ed. 576, 580, 16 sation; the state through its statute of apSup. Ct. Rep. 427.

proval and consent, having simply acquiesced The United States, in the exercise of such in the idea that it may so proceed. inherent and paramount right of eminent The situation, so far as the municipality domain, is under its own limitation and in is concerned, is this: The town of Nahant, junction in respect to questions relating to under the general laws of the state, exerjust compensation for property taken in its cised the municipal right to build streets for own right; and this results from the 5th the accommodation of public travel, and to Amendment to the Federal Constitution, construct water and sewer systems for the which declares that private property shall comfort and protection of the local public, not "be taken for public use without just So far as lands within ways dedicated to compensation."

public use and travel are concerned, it is not What would be just compensation for seriously contended in argument that the property taken by the general government | municipality had any title thereto which it

can set up for purposes of compensation. | ing all damages sustained by the owner or Therefore we need not deal with any possi- owners thereof." ble question in that respect. It is contend- It seems clear, therefore, that all struced, however, that property in structures, tures in and upon the territory described, such as pipes and other material connected and all interests therein, have been taken; with sewer and water systems, and in arti- and this results from the fact that the petificial structures in conneccion with streets, tion, in pursu.ince of the high exercise of may become the subject of municipal prop- the paramount Federal right of eminent doerty, and thus stands differently.

main, directs itself, without reservation or Even if it be true, which we doubt, that qualification, against the territory described a structure like the Brooklyn bridge (a pub. upon a plan, and all ways, avenues, buildlic way resting at each end upon land dedi. ings, and structures which the petition alcated by a municipality, under the laws of leges have been taken; and the decree, as a state, to a public purpose) can be taken well, directs itself against the territory, "toby the state, together with the land, for a gether with all roads, ways, and avenues second and different public use, without included in the foregoing description, with compensation; and, if it be true that the all buildings and structures upon the degeneral government (a different entity or scribed premises, all of which land is shown sovereign) may, under its own condemnatory upon a plan,” etc.; and the decree proceeds proceedings, take land dedicated to a pub- to condemn, without reservation, all such lic state use, for a second though a differ- interests, and with apt words to vest the ent and Federal public use, without com.

fee in the United States for its use forever, pensation, it would still be difficult to see The authorities, we think, sustain the text how the proposition of Federal constitution. of Lewis on Eminent Domain in respect to al just compensation can be sustained upon what constitutes a taking of property,—that, that ground, and to the extent that the gen- whenever lawful rights of an individual to eral government may, for its own use in the possession, use, or enjoyment of his land connection with fortifications, warships, or are in any degree abridged or destroyed by other Federal defensive purposes, take the reason of the exercise of the power of emibridge (the iron, the steel, the granite, and nent domain, his property is pro tanto taken. other material in the artificial structure), Beyond question, the authorities sustain the which belong to the municipality, and may proposition as well that, where the right to be worth millions of dollars, without any take property is exercised as a piramount compensation or indemnity to the municipal right, under the doctrine of eminent domain, entity which paid for it, and to which it and under apt proceedings, which at once belongs.

and without qualification or reservation take The act of Congress and the allegations hold of the body of the estate, and leave in the pleadings contemplate just compen open for adjustment and ascertainment the sation for buildings and other structures as question of just compensation only, such well as land.

taking constitutes a taking of the entire The act of Congress authorizes condem- property, within the meaning of the law. nation of real estate by the United States. We think the statute and the proceedings under judicial process, for public buildings reasonably and fairly contemplate constituor for other public uses. The petition di- tional just conipensation for all property inrects itself against certain lands located interests taken or destroyed. The right to Nahant, particularly described by metes and compensation is an incident of the power to bounds, and asks for condemnation thereof, I take, and, as said, in Monongahela Nav. Co. "together with all roads, ways, and avenues v. United States, 148 U. S. 312, 320, 37 L. included in the foregoing description, with ed. 463, 468, 13 Sup. Ct. Rep. 622, the just all buildings and structures upon the de compensation provided for by the Constiscribed premises, all of which land taken is tution means emphatically a full and pershown upon a plan annexed to this petition. fect equivalent for the property taken, and, entitled, “Plan of the United States Reser. in United States v. Gettysburg Electric R. vation, Nahant, Massachusetts,' and to Co. 160 U. S. 668, 680, 40 L. ed. 576, 581, which reference is to be had for a more par- 16 Sup. Ct. Rep. 427, the full value of the ticular description of lands taken hereby.” property taken is to be paid. The petition then proceeds to ask, upon due

We do not deem it necessary to engage in notice to all the parties interested in the an extended discussion of questions relating lands and parts thereof and rights therein, to municipal ownership in property or to and after each and all parties interested enter upon a discussion of the confused state have been heard, for "a faithful and impar of the authorities in respect to the question tial appraisement and valuation of said of compensation when property already used lands and ways, and interests therein, and for a public purpose is taken for a broader any buildings standing on said lands, includ- I or another distinct public use by the sover

eignty creating the franchise upon which the narily accepted legal fiction that structural first public use was predicated. It is quite property attaches to the legal title to the sufficient to say that the older authorities realty, and because the municipality holds as to the reserved right of the state to con. the legal right to use the land, rather than demn country roads for state use without the legal title to the land, the municipal compensation are at least obsolete so far as trustee of the body politic which paid for having application to municipal property the structural property should not have just rights under the recent extraordinary compensation from a distinct and independgrowth of municipal properties in modern ent entity which takes it, not as owner of times, and under modern legislative enact- the land, but under arbitrary right, and for ment. There is a broad distinction between a purpose entirely different than that for rural highways and urban streets. Lewis, which the property was originally designed Em. Dom. § 91c, and notes,

and paid for, and to which it was originally The question of the reserved right of the dedicated. As between parties like these, state to alter, amend, and withdraw its where the entity taking the property is in franchises or easements, and the effect of a legal sense a stranger to the municipal the exercise of such right upon property right, it is difficult to see any difference in based thereon, received discussion in § 68 of principle between municipal property conDillon's Municipal Corporations, 4th ed. and sisting of flagstones, granite curbings, and notes thereto; and in § 71, and elsewhere, lamp-posts, or other things which would be the subject of the legislative power over necessary and valuable for use in connecpublic and private property of municipali. tion with the street system of a municipalties.

ity, and municipal property consisting of Quite aside, however, from the extent of waterworks, elaborate sewer pipes, or electhe right, or the limitations upon the right, tric lighting systems, furnishing water or of a state, under its reserved power, to de- light upon money rates to individual users, vote private and public municipal property or free to the inhabitants of the municito a second public use, the weight of mod- pality, except the burden which results from ern authority is altogether in favor of taxation. the proposition that structural properties The situation in the case we are considercreated or acquired through the exercise of ing does not require an analysis of the many municipal functions in connection with a authorities in respect to municipal ownerfranchise or easement granted by the state ship and municipal right of compensation will not be taken, even by such sovereignty, where condemnation is made by a state for for a distinct and different public use, with a second public use; and our general obserout compensation.

vations in that respect only bear upon the Speaking generally, the authorities sus- question whether the state of Massachusetts taining the doctrine of a dedication to a undertook to transfer to the United States second public use without compensation have its right, if any, to take for a second use reference to the rights of the original land property of the character in question with. owner, who has once been paid full compen. out compensation. In determining the quessation for the land taken for public pur- tion whether the state of Massachusetts, poses. This distinction should always be through its legislative act of 1902, to which borne in mind, and it is difficult to see how, we have referred, undertook to transfer to in principle, such authorities apply to the the United States any supposed right to consituation of a municipality which has not demn, without compensation, property rest. once been paid for its property dedicated to ing upon its franchise, it must be borne in a public use, or to a situation where a mu mind that corporate, charter, and contract nicipality, through burdens of taxation rest- rights are protected by the Constitution of ing upon its units, has created or acquired, the United States as property (West River in its own distinct municipal right, tangible Bridge Co. v. Dix, 6 How. 507, 12 L. ed. property and structures which it holds as 535),-a doctrine fully recognized by the trustee for the beneficial use of its inhabit-courts of Massachusetts (Boston Water ants and the local public. There would Power Co. v. Boston & W. R. Corp. 23 Pick. seem to be no reason why such property 360; Central Bridge Corp. v. Lowell, 4 Gray, should not be treated, at least for purposes 474), as well as by the courts of the United of constitutional just compensation, as pri- States (Monongahela Nav. Co. v. United vate municipal property. The burden of its States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. property creations, through taxation, rests Ct. Rep. 622). It may be stated as an unupon the units of the local municipality. questioned rule that the right to take propProperty creations and existence are neces. erty already devoted to public use cannot sary incidents of municipal government. rest in doubtful construction. The right There is no just reason, under such circum: must be given in express terms or by necesstances, for saying that because of the ordi: sary implication. Boston Water Power Co.

v. Boston & W. R. Corp. 23 Pick. 360, 398; | in which the United States stands upon Springfield v. Connecticut River R. Co. 4 its inherent and independent right to take Cush. 63, 71, 72.

property for necessary public purposes unThere is nothing in the terms of the Mas- der the constitutional limitation of just sachusetts act which makes the United compensation. United States v. Gettysburg States its successor in respect to the control Electric R. Co. 160 U. S. 668, 675, 40 L. ed. of the state over its municipal or other fran- 576, 577, 16 Sup. Ct. Rep. 427; Monongahela chises, or in respect to its right to take Vav. Co. v. United States, 148 U. S. 312, 37 tangible property of municipal corporations; L. ed. 463, 13 Sup. Ct. Rep. 622; Barron v. and the whole situation is such as to make Baltimore, 7 Pet. 243, 8 L. ed. 672. it unreasonable that rights of successorship In his work on Municipal Corporations, in that respect should result by implication. 4th ed. $$ 66, 67, and notes, Judge Dillon In the case of Monongahela Nav. Co. v. observed that municipal corporations, as orUnited States, 148 U. S. 312, 344, 37 L. ed. dinarily constituted, possess a double char463, 474, 13 Sup. Ct. Rep. 622, 633, to which acter,—the one, governmental, legislative we have referred, Mr. Justice Brewer, after or public; the other, in a sense, proprietary referring to the Dartmouth College Case, 4 or private,-and over its civil, political, or Wheat. 518, 4 L. ed. 629, as establishing the governmental powers the authority of the doctrine that rights created by an act of in- legislature is, in the nature of things, sucorporation cannot be set aside by either nreme and without limitation, unless the party to it, says: “The state has never as- limitation is found in the Constitution of sumed to exercise any rights reserved in the the particular state. But, in its proprie. charter. ·· So far as the state is con- tary or private character, the theory is that cerned, all its grants and franchises remain the powers are supposed not to be conferred unchallenged and undisturbed in the posses- primarily or chiefly from considerations consion of the navigation company. The state nected with the government of the state at has never transferred, even if it were possi- large, but for the private advantage of the ble for it to do so, its reserved rights to the compact community which is incorporated as United States government; and the latter a distinct personality or corporate individis proceeding, not as the assignee, successor ual; and as to such powers, and to property in interest, or otherwise of the state, but acquired thereunder, the corporation is to by virtue of its own inherent supreme power. be regarded quoad hoc as a private corpo

Our conclusions are that the navi. ration. Again, at $ 68, that property acgation company rightfully placed this lock quired and owned by a municipal corporaand dam in the Monongahela river; that. tion by legislative consent is not subwith the ownership of the tangible property ject to an unlimited power of the legislalegally held in that place, it has a franchise ture over it, is consonant with natural justo receive tolls for its use; that such fran- tice. The need of having property and propchise was as much a vested right of propertyerty rights is one of the main reasons why as the ownership of the tangible property ; municipal corporations are created. Under that the right of the national government, the Roman law, as declared by Savigny under its grant of power to regulate con- (Jural Relations, $ 85), “property capacity merce, to condemn and appropriate this lock is the essential quality of a juristical perand dam belonging to the navigation com- son.” While under the state authorities pany, is subject to the limitations imposed there is some confusion as to the extent to by the 5th Amendment, that private proper which this doctrine is accepted, the great ty shall not be taken for public uses with weight of authority, as will be seen by refout just compensation."

erence to the authorities collected in the True, in that case the corporation was notes to which I have referred, sustains the not a municipal corporation; still, in a principle of the necessary municipal right municipal situation like the one before us, of holding property. where the town is not claiming right to com- Again, according to Judge Dillon's text pensation for the land or the easement ded- (8 68), “if a municipal corporation, as repicated to the public under state authority, resenting a distinct community, be regarded -a phase of the situation which we do not as a legal person, the legislature, in effect, consider,—we are unable to see why the rea- says to it, 'You may at your own expense soning of the Monongahela Case does not acquire property:'” and in Richland County apply with full force to the rights of a v. Laurence County, 12 Ill. 1, 8, Judge municipality in respect to tangible property Trumbull, in speaking of public municipal which it is entitled, under the state law. j corporations, says: "The corporation is to to acquire and hold, and to the natural be regarded as a private company. A grant and reasonable consequences which may re- may be made to a public corporation for sult from a taking by the United States.

purposes of private advantage, and, al. This proceeding is one, as already said, though the public may also derive a common

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