78 Neb. 271 | Neb. | 1907
Steps were being taken by the county authorities of Boone county to establish a public road angling through the interior of section 16, township 20, range 8, a portion of the school lands of the state. The state appeared by the attorney general, and objected to the proceedings on the ground that the board had no jurisdiction to enter a petition establishing a highway over lands belonging to the state. The board overruled the objection, to which the state excepted, and now prosecutes an appeal from
The sole question presented by the record is: Can a public road be established over the property of the state without express permission of the legislature extended for that purpose? It was a well-established principle of the common law that the crown was not bound by a statute unless named in it, for the reason that the la,w is presumed to be made for subjects only, and that the crown was not reached except by express words or by necessary implication in any case where it would be ousted of an existing prerogative or interest. Ex parte Russell, 19 Ves., Jr. (Eng.) *163; Ex parte Postmaster General, 10 L. R. Ch. Div. (Eng.) 595; In re Cuckfield Burial Board, 19 Beav. (Eng.) 153. In this country it is generally held (hat the sovereign power is not bound by general words in a statute, but only when included expressly or by necessary implication. United States v. Herron, 20 Wall. (U. S.) 251; Jones v. Tatham, 20 Pa. St. 398; Stoughton v. Baker, 4 Mass. *522; State v. Kinne, 41 N. H. 238; People v. Rossiter, 4 Cow. (N. Y.) 143; Seattle & M. R. Co. v. State, 22 L. R. A. 217, 7 Wash. 150. In the latter case it is expressly said: “The taking of private property only is authorized by statutes providing for the exercise of the power of eminent domain, unless ther'e is either express or clearly implied authority to extend them to public property.” We think the legislature of this state has clearly indicated its purpose not to allow any of the public property of the state to be interfered with or taken by the power of eminent domain, as it has been careful in all cases where such power is conferred to give its consent to taking the property of the state for such purposes only as it deemed expedient. In providing a system of irrigation it extends to all persons, companies, corporations or associations constructing any of the works provided for by our irrigation statutes, authority to occupy state lands and to obtain right of way over and through any highways in any county of this state. Comp. St. 1905, ch. 93a,
We recommend a reversal of the judgment, and that
By the Court: For the reasons stated in the foregoing-opinion, the judgment is reversed and the cause remanded to the district court for further proceedings not inconsistent with this opinion.
Reversed.