60 ANNUAL REPORT OF 



may be his title, holds it under the implied liability that his use of it shall be so 

 regulated that it shall not be injurious to the equal enjoyment of others having 

 an equal right to the enjoyment of their property, nor injurious to the rights of 

 the community. All property in this commonwealth, as well as that in the in- 

 terior as that bordering on tide waters, is derived directly or indirectly from the 

 government and held subject to those general regulations which are necessary 

 for the common good and general welfare. Rights of property, like all other 

 social and conventional rights, are subject to such reasonable limitations in their 

 enjoyment as shall prevent them from being injurious, and to such reasonable 

 restraints and regulations established by law as the legislature, under the govern- 

 ing and controlling power vested in them by the constitution, may think necessary 

 and expedient. This is very different from right of eminent domain," etc. 



In the case of Wadleigh versus Oilman, 12 Maine 403, decided in 1835, 

 only 15 years after the adoption of our constitution, there was upon the plaintiff's 

 land a wooden building. A city ordinance was passed by legislative authority 

 prohibiting the erection of wooden buildings within certain limits, which included 

 the plaintiff's building. After the passage of the ordinance the plaintiff moved 

 his building to another place within the same inhabited limits. The defendant, 

 as city marshal, acting under the ordinance, entered upon the plaintiff's 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 modifications of private property as would prove injurious 

 to the citizens generally. This is one of the benefits which men derive from 

 associating in communities. It may sometimes occasion 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 

 power without impairing any constitutional provision. It does not appropriate 

 private property to public uses, but merely regulates its enjoyment." 



In Cushman versus Smith, 34 Maine 247, decided 15 years later, in an 

 elaborate opinion by Chief Justice Shepley, the court said of the constitutional 

 provision in question (page 258): "The design appears to have been simply to 

 declare 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 versus Woodward, 40 Maine 317, it was said by the court at page 324: 

 "Strictly 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 well 

 defined rights to that use secured, as the right to use the public highway, the 

 turnpike, the ferry, the railroad and the like." The same doctrine was recog- 

 nized in Preston versus Drew, 33 Maine 558; State versus Gurney, 37 Maine 156; 

 Boston & Maine Railroad Company versus County Commissioners, 79 Maine 

 386; and as late as 1905 in State versus Robb, 100 Maine 180. 



There are two reasons of great weight for applying this strict construction 

 of the constitutional provision to property in land: First, such property is not 

 the result of productive labor, but is derived solely from the state itself, the original 

 owner; second, the amount of land being incapable of increase, if the owners of 

 large tracts can waste them at will without state restriction, the state and its 

 people may be helplessly impoverished and one great purpose of government 

 defeated. 



