High court OKs personal property seizures

[Matthew J. Franck]

A good question.  But is the common-carrier duty a principle, or a fig 
leaf?  When nineteenth century legislatures authorized, and courts 
sanctioned, the seizure of private property for the laying of railroad 
tracks to be owned by private rail concerns, it is clear that the public 
benefited from the right to avail itself of the railroads' services.  But 
is it really the case that the railroads would have been utterly disabled 
from laying track from point A to point B--say from Lawrence to Topeka--if 
they had been required to buy land in wholly private transactions from 
wholly willing sellers?  The nation's pattern of rail tracks would look a 
lot different, I suppose.  But the rulings of a century and more ago were 
really all about providing railroads with the most convenient routes 
possible, given local topography.  My point is that as far as the 
common-carrier "principle" is concerned, it would have been just as easily 
satisfied by holdings that eminent domain was not to be used for the 
convenience of rail corporations as by holdings that it could be so 
used.  And this is not to mention that in many parts of the country, the 
ushering in of the railroads--while undeniably "progress" in terms of speed 
and volume--was to the detriment of other forms of common carriage in the 
private sector, such as barge concerns on canals.

The Fort Trumbull peninsula being redeveloped by New London is a complex 
project of mixed public and private character.  As described on page 3 of 
Stevens's opinion for the Court, it appears that there is a good deal of 
"public use" of the classic sort to be found in this plan, in addition to 
the private enterprises to be invited into the tract.  Riverwalks, parking 
lots, marinas, and a museum are all part of the redevelopment.  How 
different are these public benefits from that of a railroad?  And, 
crucially for this case, could you acquire these public benefits without 
the associated private enterprises that invited into the project both to 
help to finance the whole and to make the entire project attractive for 
multiple uses by the public?

Matt
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Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
www.radford.edu/~mfranck
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At 06:21 PM 6/23/2005, you wrote:
>Today's ruling seems to me indistinguishable in principle from venerable 
>precedents regarding condemnation for the benefit of railroads owned and 
>operated by private corporations.
>
>
>Common-carrier duty?
>
>-- David
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