Livermore v. Town of Jamaica

Certiorari. Right to equivalent in money for land taken for highway. Validity of statute in respect to such damages. The taking of land for a public highway is not such an appropriation of the property to the public use, within the meaning of the constitution of this stale, Part I. art. 2, as necessarily requires compensation in money to be made therefor. To bring a case within that provision of the constitution, there should be such a taking of the property, as divests the owner of all title to or control over the property taken and amounts to an unqualified appropriation of it to the public. The statute, — [Rev. St. c. 20. § 58; Comp. St. c. 22, § 67,] which provides, that, in estimating the damages, which may be sustained by any person, owning or interested in lands, by reason of laying out or altering any highway, the benefit which such person may receive thereby shall be taken into consideration, is not repugnant to that article of the constitution of this state, [Const., Part I. art. 2,] which provides, that, whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.

Petition for a writ of certiorari to the county court, to bring up' the record of their proceedings upon a petition for the appointment of commissioners to assess damages occasioned to the petitioners by reason of the laying of a highway. It appeared, that commissioners were appointed by the county court, in pursuance of the prayer of the original petition, and the commissioners reported, that they disallowed the claim of the petitioners for damages,, for the reason, that the benefits, resulting to the petitioners respectively by reason of the laying of the highway, would be of a value equivalent to any damages occasioned thereby to their respective lands and the expense of fencing the same. But the commissioners ascertained and reported the value of the land of the petitioners, respectively, taken for the highway, and the expense of fencing occasioned by the highway, and referred to the court the question of law arising upon their report. The county court, September Term, 1850, — Kellogg, J., presiding, — accepted the report, and rendered judgment thereon',, that the defendants recover their costs. Upon the report of the commissioners the petitioners were entitled to judgment for the value of their lands respectively. The constitution, Part I. art. 2, requires, that “ whenever private property is taken for public use, the owner ought to receive an equivalent in money.”' The intent of this provision is not, that the' proprietor shall have a cash equivalent for the damage, which he, on the whole, may have sustained by reason of the taking, but an equivalent in money for the property, eo nomine. Sec. 53 of chap. 20 of the Revised Statutes* may be construed, so as to harmonize with the constitution; for “ damages ” in that section may mean consequential injuries merely. The true rendering of the last clause of that section is, that the benefits received by the land owner should be considered, so far only as they may be, consistently with the rules of law. Fox v. Hatch, 14 Vt. 340. Hunt v. Lee et ah, 10 Vt. 297. Henry v. Tilson, 17 Vt. 479. But if the statute sustains the judgment, then the statute is unconstitutional and void. 1. The motion for a writ of certiorari is addressed to the discretion of the court, and is not matter of right; Royalton v. Fox, 5 Vt. 458; 17 Mass. 352; 8 Greenl. 293; West River Bridge Co. v. Dix, 16 Vt. 446; and if the duty to be performed have been substantially done, the court will never grant the writ, for the purpose of driving to a more formal or literal performance. Ex parte Weston, 11 Mass. 417. 4 Pick. 25. 9 lb. 46. 11 lb. 322. 5 Vt. 458. 2. The second section in the declaration of rights, in the constitution, which is relied upon, is explained by the ninth section; and both together read, — “ Whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money,” * * * “but no person’s property can be justly taken from him and applied to public uses, without his own consent, or that of the representative body of the freemen.” The inference follows, that if the representative body of the freemen consent, the property may be taken. That body haye consented by the statute in question. 3. If, however, we are confined to the letter of the constitution, the statute is constitutional. The clause in the constitution, relied upon, has no relation to highways, and is intented to embrace that kind of taking, where the property is absolutely divested from the owner and vested in the public. For in the case of highways the public do not take the property from the owners ; they only effect an easement through it, to be used in common with the owners; for all other purposes the owner still holds the fee, possession and control, as before. The easement may be a damage to him; and if so, he is entitled to such pay, as the statute has provided, but can make no claim under the constitution.