19 Mont. 582 | Mont. | 1897
-The motion of the respondent to quash the writ, which was sustained by the court, and from which action this appeal is prosecuted, is in effect a demurrer to the application or petition of plaintiffs. The question, then, is this : Does the application or petition of the plaintiffs for the writ show in them any such right, or that they have sustained any such injury, as will entitle them to damages on account of the vacating of the road in controversy by order of the defendant board %
The law under which this case was instituted gave the board power to vacate public roads when proper proceedings had
“That a landowner may sustain ‘damages,’ according to the common acceptation of the word, on account of the vacation of a highway, as stated in the question, cannot be doubted. It is equally true that inconvenience and damage may result to him by closing a road which is miles away from his land. A farmer may suffer serious loss and inconvenience by the vacation of a highway over which he is accustomed to travel and haul the productions of his farm to market, though his land abuts upon no part of it. All who use the road suffer in the same manner. While one may be more largely injured than others, he yet sustains damages of the same character and nature which all who use the road — the public generally — suffer. While the road exists he has the right to the easement. But this right is not different from that enjoyed by the public generally. His right, then, is such as is enjoyed by the public. His damages are those shared by the public, and no other. It is well settled that in such a case recovery cannot be had by a citizen.
It cannot be claimed that plaintiff’s property, by the vacation of the road, is taken from him, either for public or private use. The right to the continuation of the highway, held in common with the public, if it exists, cannot be claimed to be property of the character which the citizen holds free of governmental interference, except upon receiving therefor due compensation. We hold many rights subject to the control of the state for the public good. The law places the control of highways, with the power to vacate them, out of the reach of the citizen. They are to be exercised for the public good. Inconvenience and damage resulting therefrom are not to be compensated. Each citizen must bear such burdens. They
It will be readily seen that different rights of the citizen are invaded when a road is established than when one is vacated. In the establishment of a highway real property must be taken for public use, and the law provides in such cases for compensation of the landowner. In the vacation of a road the land so taken is restored to the owner, and the right of the public to its use is cut off. The citizen has no right to the continuation of the road, except such as he holds in common with thé public. The distinctions between the right of a citizen to the use of an existing highway and his right to its continuation are also plainly discernible. While he may not be deprived of the first right, the second he holds subject to the exercise of lawful authority.” To the same effect, see Ellsworths. Chickasaw Co., 10 Iowa, 571.
There is nothing in the application or petition of the plaintiffs that shows that they have sustained any inconvenience ox-damage different from that which the public generally has suffered by the vacation of the road in question. If this suit can be maintained fór damages, why may not anybody and everybody who may be inconvenienced or damaged by the vacation of a public road by the proper authority have a cause of action against the county, or the person causing such road to be vacated, for damages ?
There is, in our opinion, no such-taking of private property for public use shown in this case as ' is contemplated and prohibited by section lé, article 3,- of our constitution. The Iowa decisions, quoted at length above, so forcibly and conclusively express the views we entertain of this question that we deem any further discussion of the matter unnecessary. See, also, Clarke v. City of Providence (R. I.) 15 Atl. 763; Kings County Insurance Co. v. Stevens, 101 N. Y. 411, 5 N. E. 353; City of Chicago v. Union Building Ass'n, 102 Ill. 379; City of East St. Louis v. O'Flynn, 119 Ill. 200, 10 N. E. 395.
The appellants contend that the defendant board exceeded its jurisdiction in its action relating to the vacation of the
Having disposed of the appeal on the ground that plaintiffs have no right of action for damages by reason of any fact stated in their application or petition, it is useless to discuss any minor question presented by the record. We may say, however, that the statutes in force when the order was made vacating the road in question did not require the board to appoint viewers to determine any question of propriety, necessity, or damage before making the vacating order, as in case of laying out new roads, nor has any necessity for such action by the board been shown in this case.
The order and j udgment appealed from are affirmed.