An appeal in cases of this sort is allowed by law, not by reason, however, of section 50, page 1227, 2 Wagner’s Statutes, because the act of which that section forms part, relates to public roads; and because further, that act was repealed by section 43 of the act of 1877, (Sess. Acts of that year, p. 403,) which also relates only to public roads. But an appeal lies in this class of cases because the circuit court has “ appellate jurisdiction from the judgments and orders of county courts * * in all cases not expressly prohibited by law.” lWag. Stat., 430, § 2; and appeals are now allowed from the final determination of cases in a county court, which appeal “ shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to circuit courts.” And when any cause is thus removed by appeal, the circuit court is to “proceed to hear and determine the same anew.” 1 Wag. Stat., 442, § 22. This last section was enacted January 24th, 1870, at the same term of this court that the case of Snoddy v. County of Pettis,
II.
The merits of the cause will now be considered and determined. The petition filed in the county court for the opening of the private road is bottomed on the act approved January 14th, 1868, (2 Wag. Stat., 1231,) and probably complies with the law under which it is framed ; but there is another matter to be looked to in addition to the statute just cited. Section 20 of article 2 of our present constitution, declares: “ That no private property can be taken for private use with or without compensation, unless by the consent of the owner, except for private ways of necessity * * in such manner as may be prescribed by law.” This proceeding was not begun until 1877. Consequently this constitutional provision must control. This being the case, the petition must be held fatally defective, in that it does not set forth that the road sought to be opened over Judy’s land, was a “ way of necessity.” This is not shown, either directly or by necessary implication. But under the constitution, the wisdom of whose framers is nowhere so conspicuously displayed as in the careful manner in which they have sedulously guarded private property and the rights incident thereto against ruthless invasion, and virtual confiscation under the thin disguise of legal process, it is a sine qua non to opening a private road over the land of another; it is a jurisdictional fact which must affirmatively appear — that such road is a “ way of necessity.” These proceedings, in invitum, against common law and common right, have always been strictly