108 Mass. 202 | Mass. | 1871
The petitioners contend that the way in this case is
proposed to be laid out expressly for the use of a single individual, and not for any public use; that the effect and purpose of the entire proceedings must be to compel them to sell an easement in their land to that individual for his private use; and that such a proceeding is in conflict with the tenth article of the Declaration of Rights, according to which private property can only be taken by public authority for public use.
It is true that ways of this description are denominated “ private ways,” and that the Gen. Sts. c. 43, § 59, allow them to be laid out for the use of one person, who may be, and in this case is, ordered to pay the whole amount of the land damages thereby incurred. It appears to us however that such a way is not distinguishable in any other respect from a town way, properly so called. The easement or right of passage, created by laying it out, is not the private right of the individual for whose special accommodation it may have been laid out, nor is it meant exclusively for his individual travel. It is laid out on his petition; but it is not his way, in the sense of belonging to him personally, or as one of the appurtenances or easements of the farm or estate with which it communicates. He has no power to close, alter, widen or control it; and he has no right in it, except in common with all others who have occasion to pass over it. The public easement is exactly the same as it is in all other ways laid out by public authority.
Ail the different ways, which towns are authorized by law to lay out, are in truth public highways, for the public without discrimination has the right to use them. It is wholly immaterial by what name they are called. Jones v. Andover, 6 Pick. 59
The case of Taylor v. Porter, 4 Hill, 140, upon which the petitioners rely, is founded upon the peculiar language of a statute of the state of New York, which is widely different from our own. That statute provides that, upon application to the commissioners of highways of any town for a private road, a jury shall be summoned, who shall decide whether “ such road is necessary,” and if they so decide and certify, the commissioners shall proceed to lay it out; that the land damages shall be ascertained or assessed as if the same were a public highway; and that they shall be paid by the person applying for the road. The next section is in these words: “ Every such private road, when so laid out, shall be for the use of such applicant, his heirs and assigns, but not to be converted to any other use or purpose than that of a road; nor shall the occupant or owner of the land be permitted to use the same as a road, unless he shall have signified his intention of so making use of the same, to the jury or commissioners who ascertained the damages sustained by laying out such road, and before such damages were so ascertained.” See Rev. Sts. of N. Y. (5th ed.) part 1, c. 16, §§ 77-79. It is manifest that the terms of that section purport to give to the “ applicant, his heirs and assigns,” a perpetual easement, or right of way, in which the public have no share. So far from creating a public easement, it prevents even the owner of the soil, over which the way is laid, from having any right to pass or repass over it, or to make use of the way, without giving notice, before the damages are ascertained, of his intention to do so. In other words, he must pa) for the right to use the way, by giving up a portion of the dam ages which the other party could be required to pay. The con*
The cases cited from the reports of Tennessee and of Wisconsin depend upon statutes similar in every respect to the New York statute above quoted, and for that reason are inapplicable in our judgment to the present case.
The Illinois cases cited arose under a statute providing that private roads may be laid out, upon application of any individual, from the dwelling or plantation of any individuals to any public road, or from one public road to another, or from one lot of land to another, or from a lot of land to a highway, the damages to be paid by the applicant; and, when paid, the applicant, his heirs and assigns, “ shall have the right to open said private road, and shall have the right of way upon the same forever thereafter, but not to be converted to any other use or purpose than that of a road.” 3 Sts. of 111. (ed. 1866) 257. This statute was held to provide for a mere private easement, and not for a public right; and for that reason was held to be unconstitutional.
Without following any further the examination of decisions by the courts of other states, which must of course depend upon local statutes, it is sufficient to say that our own statute, upon a fair construction, is not designed for the establishment of a mere private way, but for a road, which, though specially beneficial tc a single individual, so as to render it just and reasonable that he should pay the whole or part of the land damages caused thereby „ is nevertheless open to the public and subject to public control. Such a law it is within the power of the legislature to
It only remains to be said that the terms of the statute, and the uniform course of our decisions on the subject, plainly import that these “ private ways ” are private only in name, but are in all other respects public; and that for that reason the objections which have been urged by the petitioners upon the ground of a supposed violation of constitutional rights cannot be maintained.
Petition dismissed.