26 Ind. 35 | Ind. | 1866
This is a suit brought by the appellants, who are lessees of the trustees of the Wabash and Erie Canal, against the appellee, claiming the right to control and use the ice formed in that part of said canal kuown as the “ Wide-water,” to the exclusion of the ownér of the lauds through which the canal passes. It was admitted that the taking of the ice by the owner of the fee did not in anywise interfere with the “navigation of the caual, or with the use of the water for hydraulic purposes, and that no injury resulted to the tow-path of the canal, or to the use of said tow-path, by reason of the acts of the defendant.”
The question presented is, Has the owner of the land through which the canal passes the right to use the surplus water in the canal, doing no injury to the canal, and not interfering with the use of the water for navigation or hydraulic purposes, or have the appellants the right to use such surplus water as an- article of merchandise?
The law is universally recognized, as stated by Bynkershoek, that this right of eminent domain ■ may be lawfully exercised whenever public necessity or public utility requires it,, and the sovereign power may take from proprietors those things without which highroads can not be made; and this right may be imparted to others, occasionally, as to the chief magistrates of towns, cities, &e.; but if houses and lands be taken from individuals, adequate compensation should be made.
It was held in the case of Varick v. Smith, 5 Paige Ch. R. 137, (and on appeal in 9 Paige 537,) “ that the government has the power, under the constitution, to appropriate the private property of its citizens just so far, and no further, than is necessary for the purpose and object of the appropriation; and that may be an absolute and exclusive right to land or water, or it may be a partial, or common, or usufructuary right, according to the nature of the property, or the circumstances of the case. But when such purpose is accomplished, the right of the state is exhausted, and the whole of the residue of the property, whatever it may be, belongs to the citizen.”
In Angelí on Highways, section 83, it is said: “It is very obvious, that in taking private property, under the express authority of government, for public use, no more should be taken than is demandable by the exigencies of the community, and the least possible private injury in so doing-should be committed.” Humerous authorities are cited in support of this position. It was stated by Lord Eldon that the true principle applicable to all such cases, is that the private interest of the individual is never to be sacrificed to
In the case of The Trustees, &c., v. The Auburn and Rochester Railroad Company, 3 Hill 567, it was held that “the laying out of a highway gives to the public a mere right of passage, with the powers and privileges incident to such right, and the owner of the soil over which the road passes is not thereby divested of his title to the land.”
Chief Justice Parsons, in delivering the opinion in Perley v. Chandler, states the rule thus: “By the location of a way over the lands of any person, the public have acquired an easement which the owner of the land cannot lawfully extinguish or unreasonably interrupt. But the soil and the freehold remain in the owner, although incumbered with a way. And every use to which the land may be applied, and all the profits which may be derived from it, consistently with the continuance of the easement, the owner can lawfully claim.” 6 Mass. 453. The author already cited declares that “turnpike roads, railroads and canals, like ordinary highways, are as a general rule simple easements, the fee remaining in the owner of the soil, and upon their abandonment reverting without further incumbrance. During the existence of such road or canal the rights of the owner of the fee are subject to the same rule as in the case of ordinary highways.”
The People v. White, 11 Barb., S. C. R. 26, construes an act of the legislature which authorizes the canal commissioners to take possession of any lands, waters and streams “ necessary for the prosecution of the improvement intended by” that act, and points out the mode in which the damage shall be ascertained and paid, and then declares “the fee simple of such premises so appropriated shall be vested in the people.” This language is used in the opinion: “ The. State has no right to take what is not necessary for the improvement. I see no reason why this restriction does not apply as well to the duration of the- estate as to the extent of the actual occupation.” In that case, so far as
By the “act to provide for a general system of internal improvements,” approved January 27, 1836, an extension was ordered of the Wabash and Erie Canal from the mouth of Tippecanoe river, down the valley of the Wabash, to Terre Haute, and thence to connect with the Central Canal. The board of internal improvements were, by the 16th section, empowered “to enter upon, and take possession of and use, all and singular, any lands, streams and materials of any and every description necessary for the prosecution and completion of the improvements contemplated by this act; and to make all such canals, feeders, dams, locks, railroads, turnpike roads and other works as they may think neces
The 17th section of the act provides that “in all cases where persons may feel aggrieved or injured by the construction of any of the works contemplated by this act, or by the use of materials for the same, the person or persons so feeling aggrieved or injured shall make out a written statement of the cause of such complaint, particularly describing the nature of the injury, and the interest or interests of the complainants therein.” This statement the act directs shall be delivered to the board of internal improvements, and three appraisers are to be appointed by them, “who shall take into consideration the benefits resulting to such complainant from the construction of the works which occasioned the supposed injury, and the damages so assessed by said appraisers, when no appeal is taken, or the amount settled by the judgment of a judicial tribunal, shall be paid to the party injured by the board of internal improvement. Provided, that no claim shall be recovered or paid by said board unless the application therefor be made as herein provided, within two years next after the property shall have been taken possession of as aforesaid.”
The 18th section provides that the board shall, by one or more of its members, proceed in due time along the line of the canal, and take from the persons through whose land the canal may pass, releases to the State of the necessary land, timber, stone and other materials required to construct said works, “ which releases shall operate so as to vest in
By the 19th section, “said hoard, or any member as aforesaid, in taking releases as aforesaid, is hereby authorized in consideration of any privilege granted by individuals to the State of the right of way, or other privilege, to contract with such individual, on behalf of the State, to erect across said canal any bridge or bridges for the benefit of such individual and the public.”
It is thus declared by the legislature that a release or grant “of the right of way” is all that is required by the State to carry forward these works of public improvement, and in the face of this legislative declaration of the easement required in the land for the benefit of the public, it would not, upon the refusal of an owner to grant this right of way, be in the power of the State, by virtue of her right of eminent domain, to condemn any greater estate in the land. The legislature has the power to declare what estate is required in the land, and whatever the extent of that may be, even to a fee simple absolute, may be condemned; but having declared a less estate sufficient, nothing more can be appropriated.
In our opinion, the legislature, having declared the interest which it was considered necessary to acquire in the land over which the canal passed to be a mere servitude, has not sought to appropriate any greater title. The use of the property for the purposes of the canal is all that this statute authorizes. The compensation is provided for persons who are “ injured by the construction of any of the works contemplated by this act, or by .the use of materials for the same,” and not for the injury caused by the taking of the absolute title to the property. Perhaps by placing some of the provisions of the act under consideration in contrast with those of the act of 1832, providing means for the construction of the Wabash and Erie Canal, the legislative intent will become more clearly apparent. The latter act authorized the canal commissioners “to receive, on behalf the State,
We cannot regard the 6th section of the act of February 19,1838, “For the protection of the canals belonging to the State, the collection of tolls thereon, and for other purposes,” as intended to be declaratory of the interest held by the State as against the owners of the soil. Nor can the act of January 19, 1846, directing the governor of the State to execute and deliver to the trustees of the Wabash and Frie Canal a deed or patent for the bed of the Wabash and Frie Canal and its extensions, and all the property, right, title and interest of the State in and to the same, subject, nevertheless, to all existing rights and equities against the State on account of the same or any part thereof, be regarded as expressive of a legislative opinion as to the title held by the State. Whatever interest the State had in the bed of the canal, &c., was intended to be and was conveyed. What that interest was, the legislative branch of the government was not called upon to decide.
By a subsequent clause the justices of the peace were made commissioners and were authorized to hear evidence, and where a new cut was to be made, “ the commissioners were to determine what satisfaction any person should have for or in respect of any prejudice, loss, or damage sustained for such proportion of his lands, &c., in or next adjoining to said navigation, river, &c., as should be made use of
expressed this opinion, “I am of opinion that the statute of the 16 and 17 Car. 2 gives no right to the undertakers of the canal to purchase the soil; it gives a mere easement, a right to make and cut the canal and towing paths, and such other things as are necessary for the purposes contemplated by the act.”
The rights of the proprietors of the soil have been already stated. In the language of the learned judge already cited, “ every use to which the land may be applied, and all the profits which may be derived from it, consistently with the continuance of the easement, the owner can lawfully claim.” The purposes of the canal were navigation and to furnish hydraulic power. In the case of Cooper v. Williams, 5 Ohio 392, it was ruled that water could not be taken in the canal for the purpose of furnishing hydraulic power. In Buckingham et al. v. Smith et al., 10 Ohio 288, it was held that the State could not take water over and above the supply required by navigation for the purpose of sale. But, without comment upon these decisions, it is sufficient that in this case the agreement states that the taking of the ice by the owner of the fee does not in anywise interfere with the “ navigation of said canal, or with the use of the water thereof for hydraulic purposes, and that there was no injury resulting to the tow-path of the canal, or to the use of said tow-path, by reason of the acts of the defendant.”
It is insisted, however, that the authorities holding that a railroad company is entitled to the exclusive use of the track are in conflict with the rule we have stated. The case of The Philadelphia and Reading Railroad Company v. Hummell, 44 Penn. St. R. 375, is cited as authority for this position. "Wo regard the case, however, as an apt illustration and a correct application of the principle we have stated. Mr. Justice Stuoh&, in delivering the opinion of the court, uses this language: “It is time it should be understood in this State that the use of a railroad track, cutting or embankment is exclusive of the public everywhere except where a way crosses it. This has more than once been said,
"We regard this as good law, and we approve not only of the result reached, but of the legal principle upon which the conclusion is based. It may be thus stated: The railroad company, for the benefit of the public, have the license to use the highest attainable rate of speed; any use of the track by the proprietors of the soil, or by others, except at public crossings, endangers not only the trespasser but all who are passing along the road; any such use of the track is therefore inconsistent with the easement granted to the company, and is unlawful. It is unlawful because inconsistent with the continuance of the easement; if it were not inconsistent it would not.be unlawful.
The case of Hazen v. The Boston, &c., R. R., 2 Gray 574, confirms this position. It is held in that case that “the right acquired by the corporation, though technically an easement, requires for its enjoyment a use of the land permanent in its nature and practically exclusive.”
The court in the case of the Chicago and Mississippi R. R. v. Patchin, 16 Ill. 198, to which we are also cited, place the decision upon the same ground. “ These roads, it is sal d, with the mode of operating them, would become dangerous to travel and almost useless to their owners, if the
The agreed statement of facts in this case precludes the idea that any such practically exclusive possession is requisite for the full enjoyment of the easement in question.'
The ruling of the Circuit Court being in full accord with the views herein-expressed, the judgment is affirmed, with costs.