Bankhead v. Brown

Dillon, Ch. J.

1. roads: ap- or<íér establishmg. The record presents an interesting question of constitutional law. The appellees make the point that the question cannot be heard or decided by the District Court, on appeal from the action of the board of supervisors. Our opinion is otherwise. "We have held that the' statute allows an appeal from the action of the board of supervisors in establishing roads. And the statute (K,ev. § 267) is broad enough to give to the party taking such an appeal, and whose land is taken for the road, the right to present to the District Court the question whether the apt under which the road was laid out, was constitutional. For if the law is unconstitutional, the whole proceeding is coram nonjudice and void.

2. constitv«Kent1**5 domam. The constitutional provisions invoked by the defendants are found in the bill of rights. “ Private property shall not be taken for publie use, without just compensation.” § 18. “ No person shall be deprived of life, liberty or property, without due process of law;.” § 9. The. limitation in section 18 of the bill of rights, upon the right of eminent domain, or the power of the legislature to take private property for public use, is found in all, or nearly all, of the State Constitutions.

Many of the questions growing out of this limitation *545 upon the otherwise practically if not theoretically absolute power of the legislature to take the property of one for the benefit of the many, have been settled by adjudication. The following propositions, applicable to the case in hand, may be regarded as plain in themselves, and as having the sanction of authority.

1. The constitutional limitation above quoted, prohibits, by implication, the taking of private property for any private use whatever, without the consent of the owner. In Matter of Albany street, 11 Wend. 151 ; Embury v. Conner, 3 Comst. 511; Taylor v. Porter, 4 Hill (N. Y.) 140; Beekman v. R. R. Co., 3 Paige, 73 ; Mr. Sedgwick’s opinion in Const. Law, p. 514; Concord R. R. Co. v. Greely, 17 N. H. 47; Dunn v. Charleston, Harper (S. C.) Law R. 189.

2. It forbids private property from being compulsorily taken for any but public use, and then only upon just compensation being made, the amount of which is to be assessed by a jui’y. Bill of Bights, § 18, and see also authorities just cited.

3. When the public exigencies demand the exercise of the power of taking private property for the public use, is solely a question for the legislature, upon whose determination the courts cannot sit in judgment. Spring v. Russell, 7 Greenl. 292; Concord Railroad Co. v. Greely, 17 N. H. 47; Varick v. Smith, 5 Paige, 160 ; Hartwell v. Armstrong, 19 Barb. 166 ; Bloodgood v. Railroad Co., 18 Wend. 14 ; Beekman v. Railroad Co., 3 Paige, 72 ; Sedgw. on Const. Law, pp. 511-514.

4. That what is such a public use as will justify the exercise of the power of eminent domain, is a question for the courts. 2 Kent Com. 340; Concord Railroad Co. v. Greely, 17 N. H. 47; Hansen v. Vernon, 26 Iowa,

But “ if a public use be declared by the legislature the courts will hold the use public, unless it manifestly ap *546 pears by the provisions of the act,, that they can have no tendency to advance and promote such public use.” Per Shaw, Ch. J., in Hazen v. Essex County, 12 Cush. 477 .

3. roads: pr¡vate ways: act of 1866. Having thus stated the general principles of law applicable to the question of the constitutionality of the act of 1866, we proceed to state briefly the reasons „ . , ' ,. . .. , " . , tor holding the same invalid. The material inquiry is, whether land compulsorily taken, under the act of 1866, is taken for public, as distinguished from private, use, within the meaning of the bill of rights ? If taken for public use the act is constitutional — otherwise, if taken for private use. That private property may be constitutionally taken for public highways cannot be doubted and is not denied. That it is the duty of the legislature to provide public highways for the passage and intercourse of the people of the State is clear. It would be strange indeed if it had not the power to discharge this duty. It has this power, and the only restriction upon it is, that the owner of land taken for this public use must receive a just compensation therefor. Without a road, or the means of getting a road, to the farm of the citizen, he could not well obey the venire that commands him to attend at the court as a juror — could not well pay his taxes, vote, reach the church or send his children to school. Hence, the State may properly provide for the establishment of a public road or highway to enable every citizen to discharge his duties. The State is not bound to allow its citizens to be walled in, insulated, imprisoned; but may provide them a way of deliverance.

And taking so much of A’s land as may be necessary to establish a public highway, to enable B to have an outlet to the market, and to put him in communication with his neighbors, with the town, with the church, with the school, etc., is not in a just sense, although B be the person primarily and even principally benefited, the tak *547 ing of A’s property, for the private use of B, but for the general good.

_road to coal me. So, the State may provide that a public way may be established to coal or other mines. Mineral wealth is not to be locked up forever, beyond the power of legislature to force a public passage to the mines, to enable the owner to get it to market," and others to reach the mines in order to buy it there.

If the road now in question had been established as a public road under the general road law (as we confess we do not see why it might not have been), there would, in our minds, be no doubt as to its validity, although it does not exceed a half mile in length, and traverses the lands of but a single owner. For the right to take land for a public road, that is a road demanded by the public convenience, as an outlet to a neighborhood, or, it may be, as I think, for a- single farmer without other means of communication, cannot depend upon the length of the road, or the number of persons through whose property it may pass.

With respect to the act of 1866, we are of opinion that roads thereunder established are essentially primate, that is, are the private property of the applicant therefor, because, Fi/rst. The statute denominates them “primate roads” and is entitled “ an act to provide for establishing private roads.”

If the roads established thereunder were not intended to be primate, and different from ordinary and public roads, there was no necessity for the act.

Second. Such road may be established upon the petition of the applicant alone; and he must pay the costs and damages occasioned thereby, and perform such other conditions as to fences, etc., as the board may prescribe.

*548 Third. The public are not bound to work or keep such roads in repair, and this is a very satisfactory test as to whether a road is public or private.

Fourth. We see no reason when such a road is established, why the person at whose instance this was done, might not lock the gates opening into it, or fence it up, or otherwise debar the public of any right thereto.

Could not the plaintiffs in this case, after having procured the road in question, abandon it at their pleasure ? Could they not relinquish it to the defendants without consulting the board of supervisors ? If this is so, does it not incontestibly establish that it is essentially private ? For it must be private if it is of such a nature that the plaintiffs can, at their pleasure, use or forbid its use, abandon or refuse to abandon it, relinquish or refuse to relinquish it.

If the act of 1866 is valid, might not the plaintiffs, having procured the road, use it for laying down a tram or .horse railway, and forbid' every body from using the road, and even exclude all persons therefrom? Who could prevent it ?

These considerations mark the great difference between such a road and a public highway, and demonstrate the essentially private character of the road.

In the following cases, acts substantially like the Iowa act of 1866, providing for the establishment of private roads, have been declared unconstitutional: Nesbit v. Trumbo, 39 Ill. 110, 1866 , decided under a statute similar to the Iowa act (Laws of Illinois, A. D. 1861, p. 263); Dickey v. Tennison, 27 Mo. 373 ; Clack v. White, 2 Swan (Tenn.) 540; Taylor v. Porter, 4 Hill (N. Y.) 140, approved, 2 Kent Com. 339; Sadler v. Langham, 34 Ala. 311 ; see also Newell v. Smith, 15 Wis. 101 .

Ferris v. Bramble ( 5 Ohio St. 109 ) is consistent with the above, sustaining the validity of a township road under *549 the Ohio statute, on the ground that all persons have the right to use it as. a public road.

The New Hampshire cases cited by the plaintiff’s counsel do not decide the constitutional question here involved. Snyder v. Warford ( 11 Mo. 513 ), inconsistent with the case cited from 27 Mo. 373 (supra) and Harvey v. Thomas ( 10 Watts, 63 ), followed in the case of the Pocopsen Road (16 Pa. St. 15), are of doubtful soundness elsewhere. See 31 Ala. 311 .

The constitutionality of “ private passways,” was not decided in McCauley v. Dunlap ( 4 B. Mon. 57 ), nor in Reynolds v. Reynolds ( 15 Conn. 83 ).

Brewer v. Bowman (9 Geo. 37) decided the act of 1831, authorizing the establishment of “ private ways,” unconstitutional because no provision was made for compensating the owners of the land taken. Whether such an act would have been constitutional if provision for compensation had been made, the court had no occasion judicially to determine.

In Hickman's case (1 Harr. [Del.] 580) the court held, that the act authorizing the laying out of private roads was constitutional, regarding these roads as branches of the public roads and open to public use. The case of Perrine v. Farr (2 Zab. 362) is of the same character.

Wherever, by any well-considered decision, private roads have been sustained, it was because they were regarded as public in their character; and if properly so regarded, laws authorizing their establishment would doubtless be valid. But, as we have seen, roads established under the Iowa act of 1866 are private in their character and not public, and are, as to amendment and repairs, within the jurisdiction of the road or township officers.

' The act of 1866 does not contemplate that the board of supervisors shall order them to be opened as public *550 highways, nor can road supervisors require pérsons to labor on any but “ public highways.” Rev. §§ 885-887.

We have the less hesitation in declaring the act of 1866 unconstitutional, inasmuch as every riseful purpose it was intended to accomplish may be attained under the general statutes of the State authorizing the establishment of public roads.

Reversed.