Jackson County v. Waldo, 85 Mo. 637

Jackson County v. Waldo

85 Mo. 637 | Mo. | 1885

Dissenting Opinion

Henry, C. J.,

Dissenting-.—I do not concur in the opinion of the majority of the court, for the following reasons: The commissioners appointed to assess damages to the owners of land through which it was proposed to open a county road, determined that Waldo’s heirs would derive benefits equal to the value of their land to be taken for the road, and, therefore, refused to allow them any pecuniary compensation. If statutes permitting such a confiscation of private property for public use are in harmony with section twenty-one of ■ our bill of rights, it is difficult to conceive why section sixteen, of the bill of rights of the constitution of 1865, was not retained in the constitution of 1875. Section sixteen, of the constitution of 1865, is as follows: “That no private property ought to be taken or applied to public use without just compensation.” Section twenty-one, of the present constititution, reads as follows : “That private property shall not be taken or damaged for public use, without just compensation.”

Such compensation shall be ascertained by a jury, or board of commissioners, of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner therein divested. The fee of the land taken for railroad tracks, without the *641consent of the owner, shall remain in snch owner, subject to the use for which it was taken. The decision in Newby v. Platte County, 25 Mo. 258, under the constitution of 1865, was followed in subsequent cases arising under that constitution, and if the framers of the constitution of 1875 intended, by section twenty-one of the bill of rights, neither more nor less than was contained in section sixteen, of the bill of rights, of the constitution of 1865, why did they not adopt that section, to which a fixed judicial meaning has been given by repeated decisions of this court, authorizing the taking of private property for public use, by compensating the owner, not in money, but in such benefits as a jury might determine would result to his other property by the appropriation of a part of it for public use ?

Such, it is contended, is just what is meant by section twenty-one of our present bill of rights. By that section the compensation is not to be ascertained, but paid “before the property can be disturbed, or the proprietary rights of the owner therein divested.” How the benefits, which a jury or commission may ascertain, will result to the owner from the appropriation of his property to public use, “can be paid to the owner, or into court for the owner,” before the road is completed for which it is taken, is beyond my comprehension, if such conjectural benefits are the compensation, or any part of the compensation, which the constitution imperatively requires shall be paid to the owner before his property is disturbed. That benefits to other land of the owner may be set off against disadvantages to such other land, I can understand, and that this is allowable may be conceded, but as to the actual value of the land taken, the owner cannot be deprived of it until paid its cash value, not in conjectural benefits, but in money.

In this opinion Judge Sherwood concurs.

Lead Opinion

Pee Curiam.

The judgment of the circuit court is affirmed.