35 N.H. 134 | N.H. | 1857
This corporation was created for the purpose of opening, constructing and maintaining a road for public travel, subject to a toll, granted and limited by the act of incorporation. As it respects the general objects and use of the proposed road, it is in no respect different from the numerous turnpike roads which have been made in this State under legislative grants to corporations erected for that purpose. In most of the early turnpike charters there is a provision that the State might take the road after forty years, by paying to the corporation the cost and making up the income to twelve per cent., and in some of them there is an express provision, making the roads liable to indictment for neglect to perform their public duty; but neither of these provisions added anything to the public character of the corporation. The first was prospective, and has been in fact wholly inoperative; and the roads were liable to indictment at common law for any neglect of their duty to the public. Such roads, being open to all travellers, are public highways; and the circumstance that a toll is paid for the use of them does not deprive them of their public character. It is said in Bachus v. Lebanon, 11 N. H. 24, that a turnpike road is a public highway, differing from free roads only in the manner of use. All citizens may use a turnpike on condition of paying the established toll.
The interest in land necessary for such a road, if authorized to be taken by the legislature, is taken for public use within the meaning of the constitution. The particular objects of travellers who might have occasion to use the road, whether business or health, or amusement and recreation, could not affect the question whether it was for the use of the public. If the enterprise was of a public character and the road open to public use, the legislature would have the power to authorize the taking of private property to accomplish the public object. Whether the public good required the legislature to exercise that power in this
The power to take private property for public use may be exercised by the government through the means of a private corporation. The fact that the members have a pecuniary interest, such as will give it in law the character of a private corporation, will not prevent the State from using it to accomplish a public object. In this State the legislature have exercised that light for sixty years in the case of turnpike roads, and of corporations created for the construction of locks and canals, and aqueducts, and the right can not now be drawn in question. So far as we are informed a different doctrine has not been held in any other jurisdiction. Lebanon v. Olcott, 1 N. H. 339; Stevens v. Middlesex Canal, 12 Mass. 466; Boston Mill Dam v. Newman, 12 Pick. 467; Bloodgood v. Railroad Co., 18 Wend. 9; White River Turnpike v. Central Railroad, 21 Vt. 590; Bradley v. Railroad, 21 Conn. 294; Whiteman v. Railroad Co., 2 Harrington 514.
The legislature, then, had authority to take land in behalf of the public, without consent of the owners, for the construction of this road, and might authorize it to be taken by this corporation. But it is objected that in this case the act does not make legal provision for compensation to the land-owner.
We find no express provision in the constitution of this State requiring compensation to be made for private property taken to the use of the public; and it has been held in some cases that the provision on this subject in the constitution of the United States was intended to limit the action of the federal government, and did not apply to the legislation of the States. We are not quite prepared to acquiesce in this narrowed construction of a general and unqualified proposition in the constitution. It is not necessary, however, to embarrass this case with the consideration
It is contended that in this case no such method is provided, because there is no provision in the act for ascertaining the amount of compensation by the inquisition of a jury. The twentieth article of our Bill of Rights has the following provision: “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heen heretofore otherwise used and practiced, the parties have a right to trial by jury.” Provisions in the constitutions of some other States, intended to secure the right of trial by jury, have been held to apply only to trials between party and party, where some issue of fact is to he found, and not to inquisitions of this sort. Callender v. Marsh, 1 Pick. 430, 431; Livingston v. Mayor of N. Y., 8 Wend. 102; Hunt v. McMahon, 5 Ohio 79; Boss v. Irving, 14 Illinois 171; 2 Kent’s Com. 339, note 6.
But the language employed in our Bill of Rights is perhaps more comprehensive than the terms used in those constitutions
It has been held that the assessment of damages to land-owners on laying out a public highway need not be by a jury, because it was otherwise used and practiced before the constitution was adopted. Backus v. Lebanon, 11 N. H. 19; Baker v. Holderness, 6 Foster 110.
I do not find that any acts incorporating turnpike roads were passed before the present constitution was adopted. But turnpikes are public highways; land is taken for them without consent of the owner, on the same ground of necessity for public use which warrants the taking of it for other highways; the same sort of inquiry is necessary to ascertain the amount of damages, and we see no reason why the same rule of damages ought not to be applied to both cases; and a practical construction for sixty years has included turnpikes in the same class with free public highways, in reference to this point.
The act incorporating the New-Hampshire Turnpike was passed in 1796, and between that time and 1815 about sixty turnpike roads were incorporated by the legislature in this State. I have not examined all these acts, but have looked into a large part of them; and in all that I have seen there are provisions for taking
It would thus appear that the legislature, commencing almost immediately upon the adoption of the constitution, have in practice gone on the ground that they had power to authorize the taking of land for public use generally, in cases where the public might need it, without providing for an assessment of damages by a jury. The question of their constitutional power depended, in this instance, on the fact whether the use and practice had been such before the constitution was adopted. It would be safe to presume that the public men who assisted to frame the constitution, and those who followed so soon after, would be well informed on this point, and better than we can be at this distance of time. It would be justly regarded as a bold, not to say rash exercise of judicial authority, to declare all these early acts of legislation to have been passed in violation of the constitution, which had then been so recently adopted; especially as in this case the question is to be determined, not so much by a construction of the language used in the constitution, as by reference to the state of facts which previously existed.
We are not called on, however, at this time to decide whether all cases in which private property is taken for public use would fall under this exception in the constitution, as we are satisfied that a turnpike road, like that which is authorized to be made by this act, under the decisions and practice in this State must be held, in reference to that exception, to stand on the same footing with free public highways, and that the objection to this act, because it does not give the right to try the questions of damages to land-owners by a jury, cannot prevail.
The question remains as to the rule which should be applied in assessing the damages to land-owners under this act.
The actual damage caused to land by laying out a highway
It is intimated in Com. v. Norfolk, 5 Mass. 437, that any benefit which the land-owner may derive from the road should be deducted from the amount of damage done to the land. But in this State we do not understand that any general advantage which the land-owner may derive from the road is to be considered to reduce his land damages. He has a right to share with others in the benefits of the public improvement, and no deduction is to be made from his damages on that account. If in this case it had been made to appear before the commissioners that the new road would be likely to cause a great increase in the amount of travelling, and in the business and profits of Mr. Thompson’s hotel, such evidence could not be considered to reduce his claim for damage done to his land. On the other hand, if it should turn out that the public improvement, by causing a change in the course of business, or by introducing new methods of doing business, should occasion a loss to that in which a land-holder may have been engaged, he must bear that loss in common with others who are in a like situation. The circumstance that the public may require some interest in his private property to accomplish the public object, gives him no claim to indemnification for a loss not in any way caused by the taking of his property, but by the operation of the public improvement.
In this case the commissioners awarded damages to Mr. Thompson for the probable injury that his business of letting horses to carry travellers up the mountain, by his bridle path, would sustain from the competition occasioned by the building of a carriage way to the summit of the mountain; and in this we think they erred. The contemplated injury to his business was not a damage done to his land, nor caused by the laying out of the road through his land, but by the operation of the public improvement;
There may have been circumstances of peculiar hardship in Mr. Thompson’s case, but we are unable to discover anything that can relieve it from the operation of the general rule.
The report must he recommitted.