Williams v. Natural Bridge Plank Road Co.

Scott, Judge,

delivered the opinion of the court.

It is an error to suppose that the land over which a public road passes belongs to the state or county. The law, for the convenience of the community, has appropriated portions of the lands of individuals to be used as public roads or highways. Subject to this use or easement of the public, the soil over which the road passes remains in the owner, in the same manner as though no appropriation of it had been made. When the land of an individual is taken for a road, whether he gives it voluntarily or sells a right of way over it by claiming and receiving compensation, he must be understood as giving to the public power over it, to an extent that will enable it to construct such a road as the laws in force at the time require or permit to be made. The grant of a right of way for one purpose will not authorize the use of a road for another and a different purpose. One may be willing that there may be a right of way across his land for one purpose, and very unwilling that the same right should exist for another purpose. So, an authority to build one kind of road would not be a warrant for making another kind of road, which would increase the inconvenience and injury resulting to the owner.

At the time it is claimed this land was condemned for a high way, the law in force required that all roads should be laid out and cleared according to the utility of the same, with a proviso that no road should be laid out of a greater width than fifty nor of a less width than twenty feet, and directed that all roads should be cleared of trees one foot through, and of brush and limbs of trees which might incommode horsemen and carriages, and that no stump should exceed one foot in height, and that *583 all wet ground and small water courses should be causewayed or bridged in such manner as to enable horsemen and carriages to pass with facility. (R. C. 1825, p. 695.) Such was the kind of road for which a party yielded up his land. The act under which the defendant proceeded, created corporations for the purpose of making plank roads ; with the consent of the county court, it empowers the corporations to locate their roads on any portions of the county and state roads ; the corporations thereby authorized were allowed to exact tolls and could erect toll gates, and the manner of constructing their roads was to be determined by the boards of directors of the corporations, in such a mode, however, as to " secure and maintain a smooth and permanent road,” the track of which to be made of plank or timber, or partly of both, or macadamizing. (Sess. Acts, 1851, p. 260.) The defendant, a corporation deriving its existence from this act, located a plank road on a county road laid out on the plaintiff’s land, in front of their house, and cut the road so deep as to leave the house on a high elevation, impending the road, and so near as to endanger its stability and incommode the entrance into it. If the defendant has used the right of way taken from the plaintiff's, or those under whom they claim, for purposes injurious to them, and not contemplated at the time the right of way was taken, there is no reason why it should not compensate them for the injury resulting from the use of the right of way in a manner different from that intended when it was first taken. Justice requires that the defendant should pay the difference between the injury resulting from the use of the way for a plank road, and the use of it as a common state or county road. It is clear that plank roads require the removal of more soil, and are constructed in a manner different from that in which county roads were made when this right of way was first created, and that the work put upon plank roads greatly exceeds that which the law required to be put upon county roads. The grant by the legislature of the right of locating a plank road, with the consent of the county court, on a county road, does not exclude the idea that the owner of the *584 soil over which the county road passes, should have damages for any injury he may sustain by converting a county into a plank road. We should not so construe an act of the general assembly as to make it violate the constitution. The consent of the county can only operate to the extent of the power that court had over the road. If an increase of the right to the soil of the road is required for the plank way, why should not the owner, to the extent of the increase injurious to him, have a right to damages as well as any other owner ? It has been held that the legislature have no power to authorize the construction of a railroad across a highway, without providing for a compensation to the owner of the land over which it passes. (8 Hill, N. Y. 367.) So it has been held that an action lies by the owner of land against a railroad company, if, in the construction of their road upon or across a public highway, they raise an embankment by which the owner of the land is obstructed in passing to and from the road, and his property is otherwise rendered less valuable, notwithstanding the charter of the company authorizes the entry upon and use of such public highway ; the license relates only to the road, and leaves the company liable to consequential damages sustained by individuals. ( 25 Wend. 464 .)

The case of Callender v. Marsh, ( 1 Pick. 417 ,) is not applicable to that under consideration; it is like that of the City of St. Louis v. Taylor, (14 Mo. Rep.) which arose out of the opening of streets in a city, which stands upon different considerations.

There was no instruction asked or point raised as to the consent of Mrs. Williams to the construction of the road in front of her house ; besides, her consent, as given, if it availed any thing, could not prejudice the rights of others.

The other judges concurring, the judgment will be reversed, and the cause remanded.