27 Mo. 373 | Mo. | 1858
delivered the opinion of the court.
Our constitution provides that no private property ought to be taken or applied to public use without just compensation. Whilst this provision recognized the right of eminent domain in the state for the public use, there is nothing which sanctions the doctrine that the property of individuals may be taken for private use with or without compensation. Such a right would be hostile to the existence of private property. If one individual could by law be compelled to transfer his property to another against his will, a great stimulant to the acquisition of wealth, which contributes so much to the prosperity of the state, would be taken away. Hence commentators on our form of government, whilst they acknowledge the right of eminent domain in the state for public use in its broadest terms, are unanimous in the opinion that private property can not be taken for private use. Some difference of sentiment may arise as to the application of this principle, but none deny or doubt its existence.
In order to determine this controversy, then, it will be necessary to consider the act under which the road was opened, the opening of which gave rise to the controversy, and to determine from its provisions whether the property therein authorized to be taken was for the public use. The act is found in the private and local acts of the adjourned session of 1855, p. 467, and is entitled “ An act to establish
In my opinion, the proceedings are void for the want of notice to the plaintiff. Unless he was notified it was impossible, from the terms of the act, that he could have notice. The term of the county court at which the defendant was to apply for the appointment of commissioners is not designated in the act. It could be made when the defendant saw fit to have it done; so the plaintiff, without notice, could not be in court, as he would not know when the application would be made. It does not appear from the report of the commissioners that he was notified; it does not even appear that his consent was solicited; but, from the report, it may be inferred that the commissioners acted behind his back, without giving him any notice. While the proceedings were thus as it were studiously concealed from the defendant, of what avail to him was the right of appeal secured by the act. How could it be exercised unless he was notified of the steps taken by the defendant ? In giving a right to an appeal the statute must have contemplated that there should be notice to the party against whom the pleadings were had, otherwise he could not be benefitted by the right.
Nothing herein contained must be taken as expressing an
The judgment will be reversed and the cause remanded ;