72 Pa. 82 | Pa. | 1872
The opinion of the court was delivered, by
— The Act of 9th May 1871, P. L. 263, cannot be supported as a proper exercise of legislative power. It infringes the right of private property contrary to the true intent and meaning of the 9th article of the Constitution. We have had occasion lately, to discuss the inviolable character of this right, in the case of Washington Avenue, 19 P. F. Smith 352, and will not repeat what wa? then said. It is not competent for the legislature to impose unjust, arbitrary and grossly unequal burthens upon individuals even for a public purpose; and it is less so, when the purpose is private and the proceeding not in due course of law, and highly penal; as in the present case. Before discussing the objectionable features of the act, it is proper to distinguish it in some respects, that we may not seem to decide more than the case before us. This act applies to contiguous swampy lands belonging to several owners disjointly, and that have been once drained. There is nothing in the law, or in this proceeding, to indicate that the owners of such adjoining lands are under a common duty to drain their lands, either by contract with each other, or by reason of a burthen imposed, by a common predecessor in an entire title, under which all claim their several parts. We intend to express no opinion upon such a case, or to say that a remedy may not be provided for a specific performance of such a duty. In the opinion of the judge, it is said that the deeds, under which Mr., Henderson the defendant claims, require the drainage to be done.
On the report of the commissioners, the court, shall immediately order a written notice to be served requiring the party to open the drain or drains through his lands as required by the commissioners, at his own expense and within a given time, not to exceed sixty days; and on failure to comply, then to pay a penalty of ten dollars a day, to be recovered in the name of the Common
The judgment and order of the Court of Quarter Sessions are reversed and set aside, and the proceedings are quashed at the costs of defendant in error.