Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-03-14

within the same inhabited limits. The
defendant as city marshal, acting UNI
der the ordinance, entered upon the
plaintiffs land, took the building down.
The court held the ordinance valid and
the defendant protected, and declared
as follows: p. 405: police regulations
may forbid such a use and such modi-
fications of private property as would
prove injurious to the citizens general
ly. This is one of the benefits which
men derive from associating in COM
munitieS. 1t may sometimes Occa-
sion Inconvenience to an individual, but
he has compensation in participating
in the general advantage. Laws of
this character are unquestionably
within the scope of the legislative pow
err without impairing any constitution
al provision. 1t does not appropriate
private property to public uses, but
merely regulates its enjoyment"
In Cushman VS.. Smith, "a Me. PAT, de-
cided fifteen years later, in an elaborate
opinion by Chief Justice Shepley, the
court said of the constitutional provis-
ion in question: (p. 25S). THE design
that private property shall not be
changed to public property, nor trans
ferred from the owners to others for
public use without just compensation"
In Jordan VS.. Woodland, 40 Me. 81, it
was said by the court at p. 32f: Strict
ly speaking, private property can only
be said to have been taken for public
uses when it has been SO appropriated
that the public have certain and we'll
defined rights to that use secured. as
the right to use the public highway,
the turnpike, the ferry, the railroad and
tile like The same doctrine was
recognized in Preston VS.. Drew, SO Me.
500; State VS.. Quincy, 81 Me. 1876; Bos-
ton & Maine r. r. Co. vs. County Com
mssoners, 70 Me. 1856 and as late as 1905
in State VS.. Robb, 100 Ne. $50.
There are two reasons of great
weight for applying this strict con-
struction of the constitutional provi-
sion to property inf land: 1st, such
property is not the result of productive
labor, but it derived solely from the
State itself, the original owner; I'd, the
amount of land being incapable of in
crease, if the owners of large tracts
can waste them at will without State
restriction, the State and it's people
may be helplessly Impoverished and one
Regarding the question submitted, in
the light of the doctrine above stated
(bcing that of Maine and Massachu-
sets at leasD, We do not think the
proposed legislation would operate to
take" private property within the in
hihition of the Constitution. While it
might restrict the owner of wild and
uncultivated lands in his use of them,
might delay his taking some of the
product, might defer his anticipated
profits, and even thereby might cause
him some loss of profit. it would new
ertheless leave him his lands, their
product and increase. untouched and
&.tN"ut diminution of title, estate or
quantity. He would still have large
measure Of control and large oppor-
tunity to realize values 1t might suf-
fer delay but not deprivation. While
the use might be restricted, it would
not be appropriated or taken"
In the following cases, restrictive
statutes for the protection of property
and other material interests of the peo-
pie were held to be within the police
power, and not taking of private
property, viz: Limiting the height of
buildings though the owner owns
usque ad coelum. Welch VS.. Swazey,
1SS Mass. 364, Prohibiting the erection
Of wooden buildings within specified
limits. Wadleigh VS.. Gilman, II Me. 403
Even when the owner had begun to
erect the building before the statute
was enacted. Salem VS.. Maynes, 123
Mass. 372. Authorizing the destruction
of buildings without compensation to
prevent the speed Of a conhagration.
Am. Print Works VS.. Lawrence, 20 n.
j. l.. 3. Prohibiting the further use of
buildings and appliances for brewing
purposes although they had been erect
Ell and fitted for that purpose, when
brewing was n lawful business. Mug
Ter vs.. Kansas City, 123 U. S. 1913. Pro-
hlbitlng the erection of fences on ones
own land to crafty spite against 9TH
ers. karasek VS.. Peter, (Wash.l so L.
r. A. 315. Smith VS.. Morse, 14S Mass.
400. Prohibiting the Wasteful burning
of natural gas by the owner Townsend
vs.. State Und) 81 l.. r. A. 294. Prohib-
iting the use of artificial means by the
owners of gas wells to increase
the natural flow Of the gas from
them Manufacturers Gas CO.
vs.. Indiana Natural Gas Co.
lao Ind. 4t7, so L. r. A. 76S. Authorizing
dams for the purpose of retaining
swamp lands where the effect was to
ohligc land owners to construct and
maintain dikes to protect their lands
from the water raised. Marginault vs..
Springs, 1J9 u. S. 473 Prohibiting ono
from allowing weeds to grow on his land.
st. Louis VS.. Gault, IFS Mo. s, 60 L. r. A.
7iS. Limiting the quantity Of land any
person or family may cultivate within
city limits. Summerville VS.. Presley, SO
S c. Sc. Prohibiting the flow of water
from private artesian we'll except for
certain specified purposes as irrigation
or domestic use. Elk parte clam, Cal 81
rae. Rep. Sl1. In Windsor VS.. State md }
81 AT. Rep. 2SS statute restricted own
ers of private oyster beds in taking oys-
tiers from them. 1t was held constitu-
tlonal and not taking of private prop
erty. The court. quoting from Judge
Story, said: Property of every kind is
held subject to those regulations which
are necessary for the common good and
general welfare. And the Legislature has