Levi Woodbury

“ Finally, I do not agree that even this franchise, as property, can be taken from this corporation without violating the contract with it, unless the measure was honest, bon a fide, and really required for what it professed to be, beside being, as before remarked, proper, on account of the locality and nature of this property, to be condemned for this purpose.
And though I agree, that, for most cases and purposes, the public authorities in a State are the suitable judges as to this point, and that the judiciary only decide if their laws are constitutional (2 Kent, Comm. 340; 1 Rice, 383) ”

“ And it is manifest that unless such a course can be pursued, the means of social and commercial intercourse might be petrified, and remain for ages, like the fossil remains in sandstone, unaltered, and the government, the organ of a progressive community, be paralyzed in every important public improvement. ”

“ It is not enough that there is an act of incorporation for a bridge, or turnpike, or railroad, to make them public, so as to be able to take private property constitutionally, without the owner's consent ”

“ And thus, notwithstanding the theoretical omnipotence of Parliament, private rights and contracts have been in these particulars, about compensation and necessity for public use, as much respected in England as here.
So as to railroad companies, as well as turnpikes, under public trustees, and as to common highways; the former are often authorized there to erect bridges, and carry their roads over turnpikes and other highways; but it is on certain conditions, keeping them passable in that place or near, and on making compensation. ”

“ But where the corporation, as a franchise, or its powers as franchises, can still be exercised usefully or profitably, and the highway be laid out as authorized, I see no reasons why these franchises should then be condemned or taken. The property owned by a banking or manufacturing corporation may, for instance, be condemned for highways, necessarily, where situated on a great line of travel ”

“ On the contrary, the user must be for the people at large,-for travellers,-for all,-must also be compulsory by them, and not optional with the owners,-must be a right by the people, not a favor,-must be under public regulations as to tolls, or owned, or subject to be owned, by the State, in order to make the corporation and object public, for a purpose like this. ”

“ Again, many things belonging to bridges, turnpikes, and railroads, where public corporations for some purposes, are not, like the land on which they rest, local and peculiar and public, in the necessity to obtain them by the power of the eminent domain. ”

“ So as to a road, if really demanded in particular forms and places to accommodate a growing and changing community, and to keep up with the wants and improvements of the age,-such as its pressing demands for easier social intercourse, quicker political communication, or better internal trade,-and advancing with the public necessities from blazed trees to bridle-paths, and thence to wheel-roads, turnpikes, and railroads. ”

“ And also, for aught I now see, circumstances must, from its locality and the public wants, raise an urgent necessity for it. 'The public necessities' are spoken of usually as the fit occasion to exercise the power, if it be not derived from them in a great degree, and the reason of the case is confined to them. ”

“ And, in another sense, that it possesses franchises incident to its existence and objects, such as powers to erect the bridge and to take tolls. See same cases.
I concur in the views, also, that such a franchise as the incorporation is a species of property. 7 N. Hamp. 66; Tuckahoe Canal Co. v. Tuckahoe & Camb. Railroad Co., 11 Leigh, 76. It is a legal estate vested in the corporation. 4 Wheat. 700; 11 Peters, 560. But it is often property distinct and independent of the other property in land, timber, goods, or choses in action, which a corporation, like a body not artificial, may own. ”

“ Vattel says,-'The property of certain things is given up to the individuals only with this reserve.' B. 1, ch. 20, § 244.
In England anciently, when titles of land became granted with immunities from numerous ancient services, it was still considered that such lands were subject by implication, under a certain trinoda necessitas, to the expenses of repair of bridges as well as forts, and of repelling invasion. Tomlins, Dict., Trinoda Necess tas; 3 Bac. Abr., Highways, A.
Even the right to a private way is sometimes implied in a grant, from necessity. Cro. Jac. 189; 8 D. & E. 50 ”

“ Comm. 139, note; 4 D. & E. 794, 797) ; that road agents are their agents, under this limitation (1 Rice, 383) ; yet I am not prepared to agree, that if, on the face of the whole proceedings, the law, the report of commissioners, and the doings of the courts,-it is manifest that the object was not legitimate, or that illegal intentions were covered up in forms, or the whole proceedings a mere 'pretext,' our duty would require us to uphold them. Ibid.; Rice, 391. In England, though this power exists, yet if used maliciously or wantonly, it is held to be void. ”