11 Mo. 513 | Mo. | 1848
delivered the opinion of the Court.
The only object of the pleadings in this case was to bring up the question of the constitutionality of an act of the Legislature, passed March
The statute in question is thought to be unconstitutional, as an encroachment upon that absolute property inland which a title in fee simple implies — an encroachment, it is supposed, not called for by the public interest, but designed for the benefit of private individuals. The principle asserted by the appellant is, that a man cannot be compelled to part with any portion of his land to another, and this principiéis supposed to condemn the statute, which is under consideration.
This argument is based upon an erroneous idea of the nature of a right of way. It is not any interest in land, but merely an easement, which conflicts not in the slightest degree with the absolute proprietorship of the owner. It is a right recognized by the common law, and originates in grant, or in England by prescription and custom, and both here and in England, by necessity. Some writers have thought that what is termed a right of way by necessity, has its origin in the same manner in which a right of way by grant arises. It is an implication from the grant. It is not, hov/ever, material whether this right be traced to the grant or to necessity; its existence and recognition by the common law, from time immemorial, is beyond doubt. The right of way from necessity is thus stated by an elementary writer: “If a person having a close, bounded on every side by his own lands, grants the close to another, the grantee shall have a way to the close, as incident to the grant, or as it is sometimes termed, a way' of necessity; for otherwise he cannot derive any benefit from the grant.” 2 Sel. N. P., 1041. So if the middle close be reserved, and the surrounding land sold, a way is reserved to the grant- or. The United States being the proprietor of a section of land, entirely surrounded by eight other sections, sells the section so surrounded; the purchaser acquires, by the common law, a right of way to the^land he has bought, as a necessary incident of the grant. The case is not altered by the United States selling the surrounding land to diiferent individuals. The purchasers take it subject to the burden imposed -on it whilst it belonged to the government, the original proprietor. A way of necessity exists after unity of possession of the close, to which and the close over which the way exists, and after a subsequent severance. 2 Sel. N. P., 1042;
It is a mistake, we apprehend, to suppose that a man has that absolute and unlimited dominion over his real or personal property which enables him to control it at his mere will and pleasure. The proposition must be qualified. His power and authority are restricted, but only so far as that its exercise shall not impair the rights of others. An absolute and unrestricted use of property is not compatible with the condition of a civilized society, however it might be tolerated by men in a state of nature. Sir W. Blackstone says, that every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase as the acquisition of social and municipal relations. Mr. Jefferson denied this doctrine, because he was of opinion that no man had a natural right to commit aggression on the equal rights of another, and that every man was under the natural duty of contributing to the necessities of society, and that no man had the natural right to be the judge between himself and another, but was bound to submit to the umpirage of an impartial third. This contrariety of opinion between Judge Blackstone and the American statesman is rather apparent than real, for Blackstone’s definition of natural rights'is far more comprehensive than Mr. Jefferson’s. The former supposes “natural liberty to consist properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature.” If this law of nature, as Mr. Jefferson thinks, comprehends those restrictions which “the equal rights of others” — the duty of contributing to the necessities of society — and submitting to the decision of impartial judges, in disputes between individuals — would imply, there is no essential difference between the opinions alluded to; and this definition of Mr. Jefferson seems to be confirmed by Burlamaqui. “ Moral or natural liberty,” says the writer, “ is the right which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that
But if this right of way of necessity finds no support in the law of nature, and if it were a stranger to the common law, which our ancestors brought with them from England, what is there to prevent the legislature from making it the law ? The provision in our State constitution that private property shall not be taken for public uses, except a suitable compensation be made, has no application to this subject. The statute under consideration does not authorize the taking of private property, either for public or private uses. The right of way, as we have before observed, is no estate or interest in land, but an easement. It is like the right of common — one species of which is, the right of one man to pasture his cattle upon another man’s land. Can it be doubted that the legislature have the power of introducing the right of common, as it existed in England or under the Spanish law, without infringing upon any constitutional restriction ? We will not be understood as expressing any opinion upon the right of the legislature to take private property for private or individual uses, whether with or without compensation. If a street or a road were laid off on land belonging to a citizen, in a case where the right of way was created by the act, this question would arise. The act in question has no other purpose, as we understand it, than to pro
It is to be noted that this act of the legislature providing a convenient mode of establishing a right of way from necessity, is not subject to the objection of being special or local legislation. The right of way is in the act called a private right of way, and is confined to the person and his heirs and assigns, at whose instance the proceedings are had, but the provisions of the act are available to all who are in the situation described therein. It is not a law declaring that A shall have a right of way over B’s land, under specified circumstances, but that every other citizen of thé State who is similarly situated shall have the same right or privilege.
We have been referred to some decisions made by the Court of Appeals in Kentucky, and reported in Dana, as calculated to elucidate the subject under consideration, but the reports are not accessible. We regret to be under the necessity of determining the case without the aid of such authorities; but if the cases referred to, as it has been stated, discuss the power of the legislature to take private property for private uses, we confess our inability to see any applicability which a view of that question would hare to the present.
the judgment of the Circuit Court is affirmed.