123 Ind. 372 | Ind. | 1890
The appellant in her complaint describes a tract of land of which she is the owner, and alleges that the appellee is also the owner of a parcel of land which she particularly describes. In addition to the allegations referred to the complaint contains the following: That in the year 1878 Enos Key was the owner of both parcels of land; that in January of that year he sold to the plaintiff the land she owns; that he subsequently sold and conveyed to the appellee’s grantor the land now owned by the appellee; that both of the parties to this action hold under Enos Key; that the land of the plaintiff is surrounded on all sides by the lands of divers persons, including the land of the appellee; that the plaintiff’s land is completely shut off from any highway ; that it is impossible to go to the plaintiff’s laud or to go from it without passing over adjoining lands; that the appellee refuses to permit the plaintiff to pass over his land to a highway, and for the purpose of preventing her from passing over his land has erected high and strong fences; that he threatens to sue her if she enters upon his land ; that there are improvements on her land, and her own home is there; that the best and shortest way to a highway is over the appellee’s land, and that the distance is sixty rods. The prayer is that the court shall establish for the plaintiff, as a way of necessity, a way to the highway across the land of the appellee. To this complaint a demurrer was sustained.
All that is presented in argument in defence of the ruling of the trial court by the appellee’s counsel is, that, under the act of March 9th, 1889, the action ought to have been brought in the court of the county commissioners, and that the circuit court has no jurisdiction of the subject. The appellant’s counsel contend that the act of March 9th, 1889, is in violation of the Constitution, and is therefore void.
The act in question assumes to provide for the establish
It is true that in the preamble, and in some of the provisions in the body of the act, there is an indirect assertion that the use for which authority is conferred to seize private property is a public one, but such an assertion, even if made in the clearest terms, can not rescue the act from condemnation, for it is not within the power of the Legislature to determine what is a public use within the meaning of the Constitution. Whether the use is a public one is a judicial question, and not a legislative one. Sadler v. Langham, 34 Ala. 311; In re Deansville Cemetery Ass’n, 66 N. Y. 569; Bankhead v. Brown, 25 Iowa, 540; Tyler v. Beacher, 44 Vt. 648; In re St. Paul, etc., R. W. Co., 34 Minn. 227; City of Savannah v. Hancock, 91 Mo. 54; Concord Railroad v. Greely, 17 N. H. 47; Town of Rensselaer v. Leopold, 106 Ind. 29. A private use can not be transformed into a public one by a mere legislative declaration.
As the act assumes to authorize the seizure of the property of one citizen for the benefit of another, it can not be upheld. Our own decisions declare that land can not be seized
We are compelled to sustain the contention of the appellant, and adjudge the act of March 9th, 1889, to be void, because it violates the provisions of the Constitution. As that act is without force, the circuit court had jurisdiction of the subject, and the only question is, whether the complaint states facts sufficient to constitute a cause of action.
In the case of Anderson v. Buchanan, 8 Ind. 132, the court quoted with approval from Chancellor Kent the following statement: “ Thus, if a man sells land to another which is wholly surrounded by his own land, in this case the purchaser is entitled to a right of way over the other’s ground to arrive at his own land.” 3 Kent Com. 420. This is an apt illustration of the old and familiar doctrine of ways by necessity, and the doctrine has often been given effect by our decisions. Steel v. Grigsby, 79 Ind. 184; Sanxay v. Hunger, supra; Stewart v. Hartman, supra. If the appellant’s grantor had remained the owner of the land now owned by the appellee, it is clear that she would be entitled to a way, as of necessity, to the public road. Kimball v. Cochecho Railroad, 27 N. H. 448 (59 Am. Dec. 387).
A way by necessity exists by grant, and the grant is an implied one. Nichols v. Luce, 24 Pick. 102 (35 Am. Dec. 302). The theory is that where land is sold that has no outlet the vendor grants one over the parcel of which he retains the ownership. It results from this that a way by necessity can not be successfully claimed over the land of a stranger, and if the appellant were asserting a right of way over a stranger’s land she could not succeed. If the appellee oc
Our ultimate conclusion is that the action was properly brought in the circuit court, and that such facts are stated in the complaint as require an answer.
Judgment reversed.