| Mo. | Jun 13, 1893

Shekwood, J.

As already disclosed by the record, the constitutionality of what is commonly known as the “Boulevard Law,” is called in question by this appeal.

The provisions of the organic law cited by defendant as pertinent to this controversy are these:

“Sec. 21. That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained *533by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.”

“Sec. 30. That no person shall be deprived of life, liberty or property without due process of law.” Art. 2, Constitution, 1875.

It is urged on behalf of plaintiff that there has been no “taking” of private property under this law and ordinance because the “title” to the property and the right to use the same are still in the defendant. This contention brings into prominence the true import of the word “property.”

The general result of various definitions' of the term is that it is the exclusive right of any person to freely use, enjoy and dispose of any determinate object whether real or personal. 1 Blackstone’s Commentaries, 138; 2 Austin’s Jurisprudence, 817, 818; 19 American and English Encyclopedia of Law, 284, and cases cited; Lewis on Eminent Domain, secs. 57, 58, 59; Eaton v. Railroad, 51 N. H. 504; Thompson v. Improvement Co., 54 N. H. 545; Wynehamer v. Poeple, 13 N.Y. 378" court="NY" date_filed="1856-03-05" href="https://app.midpage.ai/document/wynehamer-v--the-people-3593221?utm_source=webapp" opinion_id="3593221">13 N. Y. 378. Sometimes the term is applied to the tiding itself, as to a horse or a tract of land; these things, however, though the subjects of property are, when coupled with possession, but the indicia, the visible manifestations of invisible rights, “the evidence of things not seen.”

Property, then, in a determinate object, is composed of certain constituent elements, to-wit: The unrestricted right of use, enjoyment and disposal, of that object. It follows from this premise that anything which destroys or subverts any of the essential elements aforesaid is a taking or destruction pro tanto of property, *534though the possession and power of disposal of the land remain undisturbed, and though there be no actual or physical invasion of the locus in quo. Cooley’s Constitutional Limitations [6 Ed.], 670; Wynehamer v. People, 13 N. Y. loc. cit. 433, per Selden, J.; People v. Otis, 90 N. Y. loc. cit. 52, per Andrews, C. J.

The use of a given object is the most essential and beneficial quality' or attribute of property; without it all other elements which go to make up property, would be of no effect. If the city were allowed to deprive the defendant of the use of his entire lot, it would leave in his hands but a barren and barmecidal title; and what is true of property rights as an integer is true of each fractional portion.

If plaintiff’s theory be correct, then the city could pass and enforce an ordinance, which would deprive defendant of the use of his entire lot, and still there would be no “taking” within the terms of section 21, article 2, of the constitution, and consequently, no right to compensation. The statement of such a position is sufficient to accomplish its utter repudiation.

The day before the ordinance went into operation, defendant had the unquestionable right to build at will on his lot; the day afterwards, he was as effectually prevented from building on the forty-feet strip, exempt under peril of punishment, as if the city had built a wall around it, and this too without any form of notice, any species of judicial inquiry, or any tender of compensation. If this is not a “taking’7 by mere arbitrary edict, it is difficult to express in words the meaning which should characterize the act of the city.

A case has .arisen in Pennsylvania strongly resemblant in some of its facts to the case at bar. There an act of assembly provided that whenever an owner of property on Chestnut street should rebuild, *535that the building then to be erected, should be set back five feet in the rear of the old line, thus widening the sidewalk five feet. The owner in that case contracted with a builder to tear down the old building and rebuild a new one on her lot. On application for a permit to rebuild, the building inspectors and surveyors gave the new line as established by the law, and the city solicitor notified the owner that the front wall of the new building must be set back to the new line. The owner conformed to the law and built her building accordingly. She then claimed compensation for the strip of ground, when she was met with the assertion that having voluntarily torn down her old front wall and rebuilt according to the new line, that the in jury of which she complained was due to her own action, and therefore she could not recover; but the court answered; “By force 'of law, the instant the old building was torn down the city took part of the land for public tese, and is liable to make compensation to the owner, the same as if it had been taken in any other mode.” City v. Linnard, 97 Pa. St. 242.

This case was subsequently followed in In re Chestnut St. 118 Pa. St. 593, where it was again held that in such circumstances as aforesaid, there was an appropriation by the city of the strip of ground to public use. In those cases it will be noted that there was a provision for compensation; here there is none. Other adjudicated cases and authorities have been cited on behalf of defendant, tending to the conclusion heretofore stated.

The premises considered, we hold that the 1 ‘Boulevard Law” is unconstitutional because it violates section 30 of article 2, of the constitution in that it makes no provision for any proceeding in a court of law for condemning property, nor for notice to the owner, and therefore deprives any citizen interested along the given route, of his property without due *536process of law. Nor does the ordinance in question make any such provision. Lowry v. Rainwater, 70 Mo. 152" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/lowry-v-rainwater-8006280?utm_source=webapp" opinion_id="8006280">70 Mo. 152; Rendering Co. v. Behr, 77 Mo. 91" court="Mo." date_filed="1882-10-15" href="https://app.midpage.ai/document/river-rendering-co-v-behr-8007265?utm_source=webapp" opinion_id="8007265">77 Mo. 91, and cases cited; Elliott on Roads and Streets, 150; Grand Rapids v. Powers, 89 Mich. loc. cit. 103, 104; Janesville v. Carpenter, 77 Wis. 288" court="Wis." date_filed="1890-06-21" href="https://app.midpage.ai/document/city-of-janesville-v-carpenter-8183435?utm_source=webapp" opinion_id="8183435">77 Wis. 288.

The “Boulevard Law” is also unconstitutional in that it makes no provision for compensation of those whose property is taken; nor is any such provision made in the ordinance by virtue of which defendant was arrested.

Section 21, Article 2, of our constitution declares that private property shall not be taken or damaged for use without just compensation. Walther v. Warner, 25 Mo. 277" court="Mo." date_filed="1857-07-15" href="https://app.midpage.ai/document/walther-v-warner-8000101?utm_source=webapp" opinion_id="8000101">25 Mo. 277; Provolt v. Railroad, 57 Mo. 261; Evans v. Railroad, 64 Mo. 453" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/evans-v-missouri-iowa--nebraska-railway-co-8005570?utm_source=webapp" opinion_id="8005570">64 Mo. 453.

It has been urged by counsel for the plaintiff city, that in any event an owner of property along the boulevard has his remedy by action against the city by virtue of section 1821, Revised Statutes 1889; which section is as follows

“In all cases where the city authorities have graded or re-graded or changed the grades or lines of any street or alley, or may hereafter grade or change the grade or line of any street or alley, without the consent of the owner, or where the compensation cannot be agreed upon, and do not, before the commencement of the work, institute proceedings, or have not instituted proceedings, to have the damages ascertained and assessed, as provided in the six preceding sections, the owner shall be entitled to an action at law against the city, town or village to ascertain and recover the amount of damages caused by such improvement.”

It will be observed that this section is not in conformity with section 21, of article 2, of the constitution, in that it allows property qf the citizen to betaken *537before the compensation is “paid to the owner, or into court for the owner.”

Besides, the statutory section seems to be intended to apply only to eases where some actual improvement has been or shall be made, prior to action brought by the owner.

Eor reasons aforesaid, we reverse the judgment, and as it is apparent that the city has no standing in ■ court, we will not remand the cause.

All concur.'