Lead Opinion
Many of the questions growing out of this limitation
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
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
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.
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
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
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.
Dissenting Opinion
(dissenting). — I am constrained to dissent from the reasoning and conclusions of the foregoing opinion. I will content myself with stating briefly my own conclusions, without attempting to state at length the reasons upon which I base them.
A road established in pursuance of chapter 127 of the Laws of 1866, in my opinion, is a public road, and differs, in its use and the right of the public thereto, in no respect from highways recognized by law and denominated, in the opinion of the chief justice, public roads. The public possess the same right to use it as a road established in any other manner authorized by law. The party upon whose petition it is established has no exclusive right thereto. It differs from other roads only in the manner which the law directs shall be pursued to establish it.
This difference in no way indicates, that it is not, in fact, a public way. There is not one word in the act under which it is established which prohibits the public from using it, or gives the petitioner exclusive control over it. The reasons for holding it to be a private road, drawn from the body of the act, if they sustain such a conclusion, will, it seems to me, warrant a like conclusion in regard to roads, established under other enactments, that are confessedly public. It is established upon the petition of one citizen; so may public roads be established under
The fact, that, in the title of the act, the word “ private ” is used, to my mind gives no strength to the argument in support of the conclusion that the road is private, or for the benefit of the petitioner, and subject to his control. This word is used simply to indicate the manner of its establishment. It by no means indicates, that it is owned or controlled by a private citizen. Our statutes denominate certain highways “ State roads ” and “ county roads,” and, at one time, roads were established by the township trustees which were termed “ township roads.” These names simply indicate that the different roads were established in different ways, and not that they are under the control of the State, county or township.
It is certainly in no manner incomprehensible that a private citizen should procure the establishment of a road, and that it should be termed a private road, yet be used by the public generally. It cannot be argued, that the mere use of the term “ private,” in the title of the act, without one word of limitation in the body thereof, or any provision that the road established thereunder is a private way, will, of itself, determine that the road is under the control of, owned by, and established for the sole use of, the party who petitions for its establishment. Whether these views be conclusive or not, it must be admitted, that, at least, they throw great doubt on the
Courts will annul statutes, by declaring them in conflict with the Constitution, only in cases where there is absence of all well founded doubts. The conflict must be clear, and. the judicial mind must be free from all uncertainty and hesitation upon the question. Neither will courts put such a construction upon a statute, that will bring it in conflict with the Constitution, but will, if it be capable of two constructions, one in conflict, the other in harmony, with that instrument, adopt that one which will support the statute, presuming that the legislature intended the enactment to be in harmony with the fundamental and paramount law. The statute in question, I am fully convinced, authorizes the establishment of public roads. But, if such a construction be even doubtful, it should be adopted in order to uphold the law. The contrary construction should be discarded,.for it is, to say the least, doubtful both upon precedent and reason. I am therefore not prepared in this case to assent to the exercise by this court of its highest power, the annuling of an act of the supreme legislative power of the State.
It is contended, that, under the statutes existing at the time of the enactment of the law in question, the road could have been established, if it be a public road, and that this fact is an argument to sustain the proposition that the legislature intended the act to provide for the establishment of private ways. I am unable to perceive the foi’ce of this argument. Certainly, it is perfectly
The road in question being, in my opinion, a public road, no appeal from the order of the supervisors establishing it can be taken to the District Court; that court, therefore, acquired no jurisdiction of this cause. McCune v. Swofford, 5 Iowa, 552; Myers v. Simms, 4 id. 500; Ball v. Humphrey, 4 G. Greene, 204; Lippencott v. Allander, 23 Iowa, 536.
I am therefore of the opinion, that the judgment of the District Court should be affirmed.