53 Barb. 70 | N.Y. Sup. Ct. | 1869
If the order made in this case can be legally reversed, a high sense of common justice demands its reversal. Legislative abuses, in disregard of private property, have become the standing reproach of
Let us look, for one moment, at the merits of this question; at the condition and circumstances of this public easement before and since the passage of this act. This is a public highway, much traveled; leading to Palatine bridge over the Mohawk river in one direction, and to Stone Arabia churches, and through the town of Ephratah in Fulton county, in the other; that such was the extent of travel on this road, that in the year 1848, it was widened to four rods by the public authorities of the town, and duly recorded in the town book; that at the time of such widening, there was paid to the said relator and the other proprietors, for such widening, the sum' of $340; that all of said sum, except $75, was for the land now owned by the relator; all of which land is within the distance now intended to be made narrower under the provisions of this act. The effect of which would be, if this act is carried
Under a government controlled by written constitutions, legislatures are not the supreme power. Whenever they
There is another ground upon which this act is void. In the case of Varick v. Smith, (5 Paige, 137,) Chancellor "Walworth said, “ that the right of eminent domain in the state, does not imply a right in the sovereign power of the state to take the property of one and transfer it to another, when the public interest could be in no way promoted by such a transfer, even if a full compensation was fully awarded to the owner thereof.” How much more forcibly is this doctrine true, when it is attempted to be taken from the public and donated to an individual. In the matter of Albany Street, (11 Wend. 151,) where commissioners had been appointed to take property for public use, had taken a whole lot, when only a part of it was required for the street, under an act which enacted, “ that when a part of a lot was taken for public use, the commissioners, if they deemed it expedient, might include the whole lot in the assessment.” Chief Justice Savage said; “ If this act is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, it was the assumption of a power the legislature did not possess.” And this was a case Where some compensation was to be paid for the property taken. But to take the property of one, though it be the public, and donate it to an individual, is not only a violation of natural right, but of the spirit of the constitution. The great mass of moral, sober, thinking people, are raising the voice of indignation against legislative corruption, and legislative interference with private and vested rights, and of the snares and devices by legislative attempts to overreach the quiet, industrious but less informed portion of community. Hnless this portion of the people can look to the courts for protection against these encroachments, there is nothing left to secure them the constitutional pro
I think that the order of the special term should be reversed with costs, and with costs to" the defendants on the motion at special term.
James, Rosekrans, Potter and Bockes, Justices.]