21 W. Va. 534 | W. Va. | 1883
announced the opinion of the Court:'
The question in this case is, whether on the facts appearing in the record the county court of Harrison rightfully condemned the land of the plaintiff in error, A. J. Varner, to establish the road through it which they did establish by
The determination of this question will depend upon the constitutionality of section 44 of chapter 194 of the Acts of 1872-73, pages 575 and 576 which is: “Upon hearing the parties interested in an application fora private road,the court shall grant such private road if it be made to appear, that the same is necessary to enable the applicant to reach and enjoy his own property, and that the granting thereof will not entail irreparable injury upon the party through whose lands the same will run. If the granting of such road shall render any additional fencing necessary, it shall only be granted upon condition, thattho applicant shall at his own expense build and keep in good repair all such fences for such length of time as he shall use such private road. And upon the payment of the damages assessed therefor, and the completion of the fences aforesaid, if any, the applicant, his heirs or assigns shall have the free use and enjoyment of the said private road to the same extent as if it were a public road, so long as he and they shall comply with the conditions, if any, upon which it was. granted.”
This section is a copy of the last half of section 38 of chapter 43 of Code of West Virginia page 275 excepting, that it confers the power of establishing such private road on the county court in lieu of the board of supervisors, which had been abolished. And this provision in our Code with refer
Is this section 44 of chapter 194 of Acts of 1872-73 p. 575, 576 in violation of our Constitution ? This private road was established by virtue of this section, and if it be unconstitutional and void the judgment of the county court of Harrison of August 14, 1880, should have been reversed and set aside by the circuit court. But that court having affirmed it, the judgment of the circuit court must be reversed by this Court, even had all the provisions of chapter 194 of Acts 1872-73 been fully complied with. And therefore, if this forty-fourth section of this act be unconstitutional, it is unnecessary to inquire into the regularity of the proceedings in this ease. Neither this nor any other legislative enactment should be declared unconstitutional and void unless-it be clear, that the legislature has transcended its authority.
The framers of our Constitution presumed, that the Legislature might err in transcending its constitutional powers, and hence they inserted in the Constitution limitations on their powers, which it is the duty of this Court' to see are observed. These provisions have been inserted in our Constitution for protection of the life, liberty and property of the citizens against encroachments, intentional or otherwise. We cannot believe that it is our duty to raise presumptions against the citizens and in favor of the Legislature to the extent, that a jury in trying one for murder raise presumptions
The main question in this ease brings up the interpretation to be given to the ninth section of article 3. of our Constitution, our bill of rights, which is: “Private property shall not be taken or damaged for public use without just compensation, nor shall the same be taken by any company incorporated for the purposes of internal improvement, until just compensation shall have been paid or secured to be paid to the owner; and when private property shall be taken or damaged for public use or for the use of such corporation, the compensation to the owner shall be ascertained in such mariner as shall be prescribed by general laws. Provided, that when required by either of the parties such compensa
This section tacitly recognizes the right of eminent domain. This right attaches as an incident to every sovereignty, and it constitutes a condition, upon which all private property is held. Whenever the public use of property requires it, the private rights to property must yield to this paramount right of sovereign power to take it for the public use. When so taken it is the character of the use, for which the property is taken and not the means or agencies by which it is taken, which determines the question whether it is legally taken under the legitimate exercise of this right of eminent domain. This right may be exercised directly by the statute or by agencies appointed by it, or as is the most common mode, by persons or corporations authorized by the Legislature to exercise it in modes prescribed by law. But its exercise can be and should be restrained whevever its legitimate limits have been exceeded, or when the Legislature has either abused or perverted the power. Of course this right to appropriate private property for public uses must lie dormant in the State, until the Legislature by law points out the modes, conditions and agencies whereby the appropriation can be made.
It is difficult to define all the cases, which the courts would hold to be “public uses” within the meaning of this section of our Constitution, but we may form a better idea of what is meant by the phrase, “ public uses,” by ascertaining what the courts and especially what the courts of Virginia prior to our separation, and the courts of this State have since had occasion to hold to be a 'public use of property.
Anciently the most usual occasion on which the State ex-
The court of appeals of Virginia, while acts of this character were enforced, constantly recognized the constitutionality of such acts, and often as a matter of course where the acts were complied with, recognized the right of the owners of such mill-sites to condemn lauds for the erection of such dams for such water grist-mills, and also to condemn lauds to be overflown by the erection of such mill-dams. The following are some of the many cases wherein there was this silent recognition of the right to condemn lands for such purposes : Bernard v. Brewer, 2 Wash. 77 (top page 94); Wroe v. Harris, 2 Wash. 126 (top page 162); Noel v. Sale, 1 Call 495 (top page 481); Wilkinson v. Mayo, 3 H. & Munf. 565; Coleman v. Moody, 4 H. & Munf. 1; Dawson v. Moons, 4 Munf. 535; Smith v. Waddill, 11 Leigh 532; Hunter v. Mathews, 1 Rob. 468; Mirs v. Gallahue, 9 Gratt. 94.
Originally the statute laws of Virginia authorized the condemnation of lands for water grist-mills alone, but it was afterwards extended so as to include not only water gristmills, but other machines or engines useful to the public. But the Virginia reports show, so far as I have found,no case where there has been an attempt to condemn lands for the erection of any such machine or engine, and after these statutes were extended so as to include them, the cases all show, that the condemnation of lands were made in mill cases, and with an exception of one or two cases they show, that the mills were water grist-mills, so that I think wo may assume that there were no condemnations in Virginia tor any sort of mills, machines or engines, other than for water grist-mills. Though no reasons are assigned in these Virginia cases, why the courts should allow lands to be condemned for making dams for water grist-mills and for lands overflowed by such dams, yet it seems to me, that the acts of the Assembly with reference to the owners of water
This was very much the same as if the general public owned the mill, and he only ground for them at a toll. Then too, if the mill was destroyed he had to build it again for the accommodation of the general public, and if he failed to do so lie lost all benefit resulting from the condemnation of the land, which had been made by him, or more properly speaking, which had been made by the general public or by the State in his name. Of course these reasons would have no application to any other species of mill owner other than the owner of a water grist-mill; such other mill owner is hr no sense a public servant, and the general public has no direct interest in his mill. If it be a saw-mill for example, the owner of it was riot hound to saw for any oue except those for whom he chose to saw, and he charges them any prices he chooses, and discontinued the use of his saw-mill whenever he pleased.
The general public had then no direct tangible interest in a saw-mill, and it would he an abuse of terms to say, that the condemnation of land for the clam of a saw-mill or for land overflown by it was a condemnation of land for a, public use. It would be just as much an abuse of language as to
Having pointed out what I conceive to be the ground, on which the courts of Virginia have acted from time immemorial in allowing lands to be condemned for the building oí dams for water grist-mills, and to condemn lands to be overflown by the erection of such dams, having shown why there does not appear in the Virginia reports any case of the condemnation of lands for the dams of saw-mills, or of any other sort of manufactory, or for lands overflowed by any other sort of dams, I propose now to examine more in detail the foundations, on which rests this right of eminent domain, this power on the part of the State to condemn private property for public use.
In the first place all the authorities concur in holding, that private property can never be taken without the consent of the owner for a private use only, either with or without compensation. It is true there is neither in our Constitution nor in the Constitution of the other States any express provision forbidding, that private property should bo taken for the private use of another, or any constitutional provision forbidding the Legislature to pass laws, whereby the private property of one citizen' may be taken and transferred to another for his private use, without the consent of the owner. It was doubtless regarded as unnecessary to insert such a provision in the Constitution or bill of rights, as the exercise of such an arbitrary power of transferring by legislation the property of one person to another, without his consent, was contrary to the fundamental principles of every republican government; and in a republican government neither the legislative, executive nor judicial department can possess unlimited power. Such a power as that of taking the private property of one and transferring to another for his own
Other reasons have been given why such a power could not be exercised by the Legislature. In fact this ninth section of our bill of rights while it does not expressly forbid it, strongly negatives the existence of such power by implication. It assumes the right of the Legislature to take private property for public use, and regulates and restrains this right of the State. Surely this implies, that the far greater power to take private property for private purposes was not contemplated by the framers of our Constitution to exist in the Legislature, for if this had been contemplated is it not obvious, that some restraints on its exercise would have been inserted in the bill of rights, which was so careful of the rights of citizens as to provide, that their private property should not be taken even for public use without just compensation? and when not taken directly by the public, though taken for a public use yet, it was to be taken and the compensation to be paid was to be estimated only in the manner prescribed in the Constitution.
There is an entire concurrence of all the authorities in the proposition, that private property cannot be taken for private use, either with or without compensation. A few of the many authorities, in which this proposition is laid down as unquestionable law are here cited. See: In the matter of Albany Street, 11 Wend. 151; Embury v. Conner, 5 Comst. 511; Taylor v. Porter, 4 Hill (N. Y.) 140; Beekman v. R. R. Co., 3 Paige 73; Concord R. R. Co. v. Greely, 17 N. H. 47; Bunn v. Charleston, Harper (S. C.) Law R. 189; Bankhead v. Brown, 25 Iowa 540; Wilkison v. Leland, 2 Pet. 627; Robinson v. Swope, &c., 12 Bush. 21; N. & L. R. Cor. v. S. L. R. Co., 2 Gray 137; Ten Eyck v. D. & R. C. Co., 3 Harr. 200; Varick v. Smith, 5 Paige 137; Parham v. Justices, &c., 9 Ga. 341; Hall v. Boyd, 14 Ga. 1; Clark v. White, 2 Swann 540; Bangor R. R. v. McComb, 60 Me. 290; Heburn’s Case, 3 Bland 95; West River Bridge v. Dix, 6 How. 507; Sadler v.
TJpon the question in what manner and by whom it is to be determined, whether the proposed use tor which the property is to be taken is “a public use” there has been apparently some diversity of views; but I think there is but little difficulty in determining the question; the difference of opinion, which seemingly exists being really more apparent than'real. This difference is really more the result of the different language used than a substantial difference of opinion. The decisions as well as reason lead to this conclusion. The Legislature by its general act declares in the first place what is a “public use,” for which private property may be condemned; but in the veiy nature of the case this determination of the Legislature in the first instance can not be conclusive on the courts. If it were, the provision of our bill of rights, that private property shall not be taken for public uses, except on the payment of just compensation, implying as it does, that private property shall not be taken except for public use, would be of little practical value. It was intended as a protection to the citizen against the abuse of power by the different departments of the government.
This constitutional provision was more expressly intended to control the legislative department of the government. How can this control be exerted or made available, if the Legislature is the sole judge of the extent of its power in authorizing this exercise of the right of eminent domain ? Would not the so holding render the Legislature omnipotent in this respect, when the Constitution shows it was deemed a dangerous power, which needed to be restrained to prevent injustice to the individual citizen? Both reason and authority leads us to the conclusion, that the existence or nonexistence of a public qse in any given class of cases, in which
But if in a particular class of cases’it be doubtful, whether the use, for which the Legislature has authorized land to be condemned, is a public use or is only private use, the leaning of the courts will be rather in favor of its being a public use, as otherwise they must hold such act unconstitutional and void, and this they will not do, as we have seen, unless the court is of opinion, that the act is clearly unconstitutional. But though where the Legislature in a particular class of cases has authorized lands to be condemned, the courts will incline to holding the use, for which such condemnation is to be had is a public use, yet, if it clearly, is not, the courts will determine and pronounce the act unconstitutional nor will the courts permit a formal act authorizing condemnations to be abused, by permitting its use in condemning lands for private and not for public use. See West Pennsylvania Inst. v. Edgwood R. R. 79 Pa. 257; Stockton R. R. Co. v. Stockton, 41 Cal. 147; Bankhead v. Brown, 25 Iowa 540; Pittsbugh v. Scott, 1 Pa. St. 309.
If the use is clearly a public use, then the courts can neither restrain nor supervise the legislative authority over the subject. If the use be public it is for the Legislature to determine, whether the necessity for the 'exercise of this right of eminent domain exists, and the extent to which its exercise shall be carried. See North Missouri R. R. Co. v. Gott, 25 Mo. 540; Concord R. R. v. Greeley, 17 N. H. 47; Hingham Bridge v. Norfolk, 6 Allen 353; Water Works Co. v. Burkhart, 41 Ind. 364; Challiss v. Atcheson R. R., 10 Kan. 117; County Court of St. Louis County v. Griswold, 58 Mo. 175; Brooklin Park v. Armstrong, 45 N. Y. 234; Secombe v. Minn. R. R., 23 Wal. 108; Weir v. St. Paul R. R., 18 Minn. 155; Dickey v. Tennison, 27 Mo. 378; Tyler v. Beacher, 44 Vt. 648; Haverhill Bridge v. County Commissioners, 103 Mass. 120; John and Cherry Street 19 Wend. 659; Bloodgood v. Mohawk R. R. 18 Wend. 9; Harris v. Thompson, 9 Barb,
When once the court has determined, that the use for which property is condemned is a public use, its judicial function is gone, and the legislative discretion is unrestrained. Whether the proposed plan will accomplish the end proposed, or to what extent it will be beneficial to the public, are not matters to be determined by the courts; these are matters belonging to the legislative discretion, and the courts are called upon to sustain and do sustain statutes, which may be palpably improvident and hasty. See Deitrich v. Murdock, 42 Mo. 279; West Pennsylvania Inst. v. Edgewood R. R., 79 Pa. 257; Smedley v. Erwin, 51 Pa. 445; Giesey v. Cincinnati R. R., 4 Ohio St. 308.
As then the only real enquiry in this or in any other case where the constitutionality of an act ot the Legislature, which authorizes the condemnation of land is simply, whether the use for which the private property is authorized to be condemned is a public use or only a private use, we will now enquire into the elements, which' the courts have held enter into and constitute a public use as distinguished from a private use of property. This it will be found depends largely upon whether the property condemned is under the direct control and use of the government or public officers of the government, or what is almost the same thing in the direct use and Occupation of the public at large, though under the control of private persons or of a corporation; these together constituting one class. Or whether it is in the direct use and occupation of private persons or of a corporation, and the general public has only an indirect and qualified use of the property condemned, or perhaps no use properly of any kind of the property condemned, but simply derives from its use by and for a private person or corporation some indirect advantage, as by the promotion of the general prosperity of the community; these together constituting a second class. To the first of these classes belong cases where the land is authorized to be condemned for public buildings or a public park, and where it is authorized to be condemned for a canal company or a turnpike company.
To the same general class belong cases where the general public have the immediate use of the property condemned without, chai’ge, as in cases of public highways where the property condemned is under the control of public officers, though the gratuitous use of the property is enjoyed by the public at large, or what differs from it iu some important respects, but still belongs to the same general class, where the property condemned is in the hands and direct control of individuals or of a corporation, who hold the title to the property and enjoy it to a large extent as their private property, but who hold it nevertheless in a species of trust for the use of the general public, who are entitled on terms fixed by the law, and not by such private person or corporation to the free use of the property so condemned. Of this character are canals, bridges and turnpikes. No one has ever questioned the right of the Legislature by law to authorize the condemnation of private property for such uses. The uses for which property is condemned when condemned for a canal, a bridge or a turnpike is as obviously a public use as if it were condemned for a court house or other public building, or for a public highway. The fact, that the title to the property condemned belongs to a corporation as private property, in no manner prevents the use of it being directly
That in all such cases the Legislature has a right to authorize the condemnation of land, none dispute. See Chesapeake Canal Co. v. Key, 3 Cranch C. Ct. N. 599; Mount Washington Road, 35 N. H. 134; Arnold v. Covington Bridge, 1 Duv. 372; Palmer v. The State, Wright (Ohio) 364. The only difficulty in such’cases is to determine, whether a road which has been established under a particular act of the Legislature is really a public highway or only a private road.
All agree, that if the road has been established by public authority, and the damages for the condemnation of the land has been paid by the general public, and the road is under the control and management of public officers, whoso duty it is to keep it in repair, then it is a public highway, and the Legislature may constitutionally authorize the condemnation of land for the route of such a road, though it may have been opened under such act by a county coui’t on the application of a single person to whose house the road led from some public road; and though it may not have been expected when the road was established, that it would be used to any considerable extent by any person, except the party for whose special accommodation it was opened. This was the character of the case of Lewis v. Washington, 5 Gratt. 265. The Gourt say: ‘-‘The authority of the county court to establish public roads, is a branch of their police jurisdiction, conferred for the benefit of all the citizens of the county, and to be exercised at the common expense out of the resources derived from the county levy.
“The use, convenience and advantage of the public, contemplated by the law, are benefits arising out of the aggregate of such improvements, to which the particular road so established contributes in a greater or less degree. But no limitation upon the power of the court, in regard t'o any proposed road, is to be found in the degree of accommodation, which it may extend to the public at large. That is a matter which addresses itself not co the authority, but the discretion of the court. It can not be predicated of anyparticu-
"With these views I entirely concur. The Legislature can authorize a county court to open a public highway at the expense of the county, and place it under the control of public officers whose duty it is to keep it in order, and the fact., that the Legislature authorized this to be done on the application of a single person and it was done for his special accommodation,, though it might he apparent, that such road would be used to but a very small extent by any. other person than such applicant, still such, act would be constitutional, and such an opening of a public road by the county court would be in the eyes of the law an opening of the road for public use, and a condemnation of land for such a road would bé a legitimate exerei.se of the power of eminent domain by the State. That which distinguishes such a road .from a private road or private way, we will consider more atlai’ge after we have gotten clearer ideas of what constitutes a public use..
The second class of cases to 'which I have alluded is where the property is in the direct use and -ocupation of a private person or of a private corporation, and the general public have only an indirect and qualified use of the property condemned, or perhaps no use probably of any kind of the property condemned, but simply derives from its use by the owner for his private purposes some indirect advantage, as by the promotion of the general prosperity of the community. To this class belongs railroads, ferries, and grist-mills, as well as some other species of property and employments, to .which we will presently refer. It is obvious, that this entire class differ greatly from the first class, of which we have spoken, and that unless carefully guarded there is great danger, that the Legislature ui’ged on by a popular sentiment or claim would authorize private persons or private corporations, claiming to come under this second class, to condemn lands nominally for the public use, but really for their own private
I think we can show from the decisions, that a person or corporation claiming to belong to this second class, and to have legislative authority to condemn lands, must first show, that he or they are possessed of each and all of these three qualifications. First, the general public must have a definite and fixed use of the property to be condemned, a use independent of the will of the private person or private corporation in whom the title of the property when condemned will be vested; a public use which cannot be defeated by such private owner, but which public use continues to be guarded and controled by the general public through laws passed by the Legislature; second, this public use must be clearly a needful one for the public, one which cannot be given up without obvious general loss and inconvenience; third, it must be impossible, or very difficult at least, to secure the same public uses and purposes in any other way than by authorizing the condemnation of private property.
If any one of these essentials arc wanting, the courts will declare the act of the Legislature authorizing such condemnation of private property to be unconstitutional, because it would amount to taking private property for private and not for public uses. It is obvious, that both railroad companies and owners of ferries have all these three qualifications; and accordingly no one disputes the right of the Legislature to authorize either railroad companies or owners of ferries to condemn lands for their appropriate uses.
First, the geueral public has a definite and fixed use of both a railroad and a ferry, a use entirely independent of the will of the railroad company or ferry owner; a public use, which cannot be defeated by the railroad company or by the owner of the ferry, but which continues always to be guarded and controlled by law. The general public have a right to use the railroad or ferry for the transportation of persons or property, at fixed rates prescribed by the law, and neither the railroad company nor the owner of the ferry has
One man by his obstinacy or excessive avarice might readily prevent the building of a railroad. For in many instances it would be physically impossible to run around or avoid passing through his farm, and but for the power of condemning his land he could prevent the public from having the use of a railroad, which might be almost indispensable to the progress and development of the country.
So too by refusing to permit a landing, one obstinate man could prevent the establishment of a ferry necessary for the public use, as the ferry could often be only established by there being a landing on his property. As these three requisites unite in the case of railroads and ferries, all agree, that lands may be condemned for their use. See Buffalo R. R. v. Brainard, 9 N. Y. 100; Beekman v. Saratoga R. R., 3 Paige 45; Raleigh R. R. v. Davis, 2 Dev. & B. 451; Swan v. Williams, 2 Mich. 427; Pine Grove v. Talcot, 19 Wal. 666; Secombe v. Milwaukee R. R., 23 Wal. 108; Weir v. St. Paul R. R. 18 Minn. 155; Concord R. R. v. Greedy, 17 N. H. 47; Brown v. Beaty, 34 Miss. 227; Swann v. Williams, 2 Mich. 427; Stewart v. Polk County, 30 Iowa 9; Day v. Stetson, 8 Me. 365. Upon the principles we have laid down it would follow, that the Legislature could not authorize lands to be condemned for the erection of dams, or for the overflowing of lands by dams erected lor saw-mills or manufactories generally, because they obviously want the first qualification we
It would seem therefore to follow, that the public had no such úse in such mills or factories as would justify the Legislature in authorizing them to condemn lands, and this has been the decisions of the courts in Maine, New York and Michigan. See Jordan v. Woodward, 40 Me. 317; Hay v. Cohees, 3 Barb. 42; Ryerson v. Brown, 35 Mich. 333. The same doctrines are held in "Vermont where they hold, that the Legislature can not even authorize the condemnation of lands for’a grist-mill. See Tyler v. Beacher, 44 Vt. 648. And that there could be no condemnation of lands for any sort of mill except for a water grist-mill is fairly inferable from Sadler v. Langham and Moore & Wright v. Rice, 34 Ala. 325. In Loughbridge v. Harris, 42 Ga. 505, the court holds, that there can be no condemnations of lands for any sort of factories or mills including water grist-mills.
But on the contrary statues have been, sustained as constitutional, .which authorized the condemnation of lands for water powers to establish, mills and factories in Massachusetts, New Jersey, Connecticut, Tennessee, Miuesota and Kansas. See Boston Mill Dam v. Newman, 12 Pick. 467; Scudder v. Trenton Falls Co., 1 N. J. Eq. 694; Olmstead v. Camp, 33 Conn. 532; Harding v. Goodlett, 3 Yerg. 41; Miller v. Troost, 14 Minn. 365; Harding v. Funk, 8 Kans. 315. And the. Supreme ’ Court of the United States in Holyoke Co. v. Lyman, 15 Wal. 500, recognize this doctrine to a certain extent.
These decisions are based on the idea, that public use does not mean, that the public should have either the immediate
The truth seems to be, that in the early history of this country when water power was the exclusive means whereby mills could be driven, the Legislature encouraged the development of this water power as a matter of great public utility, and from an urgent necessity then supposed to exist, delegated this.power of eminent domain to persons-desiring to erect mills, and in so doing frequently exceeded their constitutional powers. But these acts were sustained by the courts at first without much consideration of the subject, no contest over the matter having been raised for many years; and when the question was afterwards raised, the constitutionality of these mill acts was sustained partly because of long acquiescence, and partly because of a supposed-urgent public, convenience and necessity. But in modern times, when these questions have been considered under more favorable circumstances, the decisions have been generally against the constitutionality of these mill acts.
Perhaps on principle the water grist-mills of this State and of Virginia ought to be made exceptions, as we have seen that the owners of such mills by the laws are required to grind for all alike and at fixed tolls, which brings them clearly within the same category as railroads and ferries,
It would seem therefore from these principles to be clear, that the Legislature cannot authorize the condemnation of lands in any case, no matter how urgent, for the establishment of a private road. In Taylor v. Porter, 4 Hill 140; Rice v. Alley, 1 Snead 51; Clack v. White, 2 Swann 540 and Osborne v. Hart, 24 Wis. 90, it was decided that statutory laws very similar to those contained in chapter 194 of the Acts of 1872-73, so far as the provisions in said chapter relates to private roads, were unconstitutional, because they authorized lands to be taken and condemned for the purpose of making private roads for the use of an individual, and that too though he paid all the costs of opening the roads and maintaining the same. But it should be observed, that there were in the statute laws of New York, Tennessee and Wisconsin where these decisions were rendered a provision not to be found in said act of chapter 194 of Acts of 1872-73. This provision was: “Every such private road when so laid out shall be for the use of the applicant, his heirs and assigns, but not to be converted into any other use or purpose than that of a road. Nor shall the occupant or owner of the land be permitted to use the same, unless he shall have signified his intention of so making use of the same to the jury or commissioners, who ascertained
There were no provisions in the statute law of any of these States resembling that in the New York statute, but these laws were very similar to those provisions of our law contained in chapter 194 of the Acts of 1872-73 in reference to private roads. The ground of their decisions are .thus expressed by Chief Justice Dillon in Buckhard v. Brown, 25 Iowa 545. After quoting the constitutional provision, that “private property shall not be taken for public use without just compensation,” he proceeds then: “The following propositions applicable to this case may be regarded as plain in themselves, and as having the sanction of authority :
“1. The constitutional limitations above quoted prohibits by implication the taking of private property, for any private use whatever, without the consent of the owner. In the matter of Albany Street, 11 Wend. 151; Embury v. Conner, 3 Const. 511; Taylor v. Porter, 4 Hill (N. Y.) 140; Beekman v. R. R. Co., 3 Paige 73; Mr. Sedgwick’s opinion in Constitutional Law p. 514; Concord R. R. Co. v. Greely, 17 N. H. 47; Dunn v. Charleston, Harper (S. C.) Con. R. 189.
“2. It forbids private property from being compulsorily taken for any but 'public use, and then only upon just compensation being made, the amount of which is to be assessed by a jury. Bill of Rights § 18 and authorities just cited.
“3. 'When the public exigencies demand the exercise of the power of taking private property for the public use, is solely a question for the Legislature, upon whose determination the courts cannot sit in judgment. Spring v. Rupell, 7 Greenl. 292; Concord R. R. Co. v. Greely, 17 N. H. 47; Varick v.*562 Smith, 5 Paige 160 ; Hartwell v. Armstrong, 19 Barb. 166; Bloodgood v. Railroad Co., 18 Wend. 14; Beekman v. Railroad Co., 3 Paige 72; Sedgw. on Const. Law pp. 511-514.
“4. That what is such a public use as will justify the exercise of the power of eminent domain, is a question for the courts. 2 Kent Com. 340; Concord Railroad Co. v. Greely, 17 N. H. 47; Hausen v. Vernon, 26 Iowa. But if a public uses be declared by the Legislature the courts will hold the use public, unless it manifestly appears by the provisions of the" act, that they can have no tendency to advance and promote such public use. Per Shaw C. J. in Hazen v. Essex County, 12 Cush. 477. That private property may be constitutionally taken for public highways can not be doubted and is not denied. * * * The State may properly provide for the establishment of a public road or highway to enable every citizen to discharge his duties. The State is not bound to allow its citizens to be walled in, insulated, imprisoned; but may provide them a way of deliverance. The State may provide a public highway to a man’s house, or a public, highway to coal or other mines.
“If the road now in question had been established as a public road under the general road law, as we confess we do not sec why it might not have been, there would be in our minds no doubt of its validity, although it does not exceed a half a mile in length, and traverses the lauds of but a single owner. For the right to take laud for a public road, that is a road demanded by public convenience, as an outlet to a neighborhood, or it may be as I think for a single farmer, without other means of communication, cannot depend upon the length of the road, or the number of persons through whose property it may pass.
“With respect to the act of 1866, and we could say with respect to the provisions of our chapter 194 of Acts of 1872-73 in reference to private roads, which are essentially the same as this Iowa act of 1866, we arc of opinion, that the roads thereunder established are essentially private, that is on the private property of the applicant therefor because:
“First. The statute denominates them private roads. If.these roads are not private and different from ordinary and public roads, there was no necessity for these provisions.
*563 Second. Such road may be established upon the petition of the applicant alone; and ho must pay the costs and damages occasioned thereby, and perform such other conditions as to fences, &e., as the board may require.
“ Third. The public are not bound to work or keep such roads in repair, and this is a very satisfactory test as to whether a road is public or private.
“Fourth. We see no reason when such a road is established, 'why the person at whose instance it was done, might not lock the gates opening into it or'fence it up, or otherwise debar the public of any right thereto.
“Could not the plaintiffs in this case having procured the road in question abandon it at their pleasure? Could they not relinquish' it to the defendants without consulting the board of supervisors ? If this is so does it not incontestably establish the fact, that it is essentially 'private ? For it must be private if it is of such a nature, that the plaintiffs can at their pleasure use or forbid its use, abandon or refuse to abandon it, relinquish or refuse to relinquish it ? If the act of 1866 is valid might not the plaintiffs, having procured the road, use it for laying down a tram or horse railway, and forbid everybody from using the road, and even exclude all persons therefrom ? Who could prevent it ? These considerations make the great difference between such a road and a public- highway, and demonstrate the essentially private character of the road.”
The judge then proceeds to show, that these views are sustained by the weight of authority, and in reversing the cases well says that: “ Harvey v. Thomas, (10 Watts 63) followed in the case of the Pocopsen Road (16 Pa. St. 15), are of doubtful soundnesss outside of Pennsylvania.” He concludes, that “ wherever by any well considered decision private roads have been sustained, it was because they were regarded as public in their character; and if so properly regarded laws authorizing their establishment would doubtless be valid * * We have the less hesitation in declaring the act of 1861 unconstitutional, inasmuch as every useful purpose it was intended to accomplish may be attained under the general statutes of the State authorizing the establishment of public roads.”
The best considered cases in opposition to these views were decided in part on a diversity in the statute laws, but principally because of a fundamental difference in opinion as to what is properly meant by “public use,” lor which alone lauds can be condemned. In some of the States these words are considered simply as “public advantage or general welfare.” And in those States lands may be condemned to establish dams for the erection of mills of any character, though such mills when erected are purely private property, and are in no manner controlled by the public; and thus owners work for whom they please and at what prices they please, or if they choose decline to do any work of any sort. Such is the law in Massachusetts as interpreted by their courts, and with such views it is natural that they should hold that private roads may be established under a law authorizing private property to be condemned for their route. See Sherman v. County Commissioner, 112 Mass. 202. Like views are expressed in Proctor v. Andover, 42 N. H. 348; Coster v. Tidewater Co., 18 N. J. Eq. 54; Sherman v. Burch, 32 Cal. 241; and in some other cases. But we need not review them, they all proceed on the basis, that such private road are essentially for the public use, and their idea of what constitutes public use is essentially different from ours.
The views -which T have expressed are in accord with the views on this subject, which have been expressed by the Court of Appeals of both Virginia and "West Virginia. Thus in Lewis v. Washington, 5 Gratt. 265, it was decided, that under the statute law of Virginia, which is the same as ours, there was no limitation to the power of a county court
The road in that case was a public road to all intents and purposes, and was established under the same law and in the same manner with all other public roads. That it is proper to open such a road to the residence of a citizen seems to me clear, as the public have a direct interest in enabling all the members of the community to perform their public duties, which they might not be able to perform if they could not reach the court house without trespassing on their neighbor, or if the sheriff' or other officer could not go their houses without committing such trespass.
In the Salt Company v. Brown, 7 W. Va. 191 this. Court decided as stated in the syllabus, “that an incorporated company being the owner of coal lands desires to obtain a subterranean passage through or under the lands of another person for the purpose of mining and removing its own coal, and applies to the court for the benefit of sections 44 and 45 of chapter 43 of the Code. The report of the commissioners and the evidence in the case show, that the company is the owner of some thirty acres of coal land, from which coal could not be mined and transported without going through the land of the defendants; that the company use said coal for the purpose of manufacturing salt at their furnaces, and to sell to the public living in and about Hartford city; that
Judge Pauli says in this case p. 199 referring to the examples given by Judge Cooley in his work on Con. Limit. 532: “ In looking at the class of objects above enumerated we find, that they are all of an undoubted needful character; in other words there is connected with them all a clear public use; this element is indispensable; again we find in regard to them all, the government still maintains its power, and can so regulate and control the action of the agencies, by which they are managed as to secure the rights and interest of the public therein-, and if to these we add the impossibility or extreme difficulty at least of effectuating the same purpose in any other way, we may perhaps find in the combination of these three elements a safe rule for our guidance in any particular case, whether there has been a constitutional exercise of the right of eminent domain.” It will be observed, that these are just the views, which I have expressed and enlarged upon in this opinion.
It is obvious under this rule, that the acts of Massachusetts and other States known as mill-acts, whereby water-power is condemned for private mills, which are under no public control after they are built, would necessarily be declared unconstitutional. And it is principally due to what I conceive to be false views of what is meant by public use, that some of the States have held the condemnation of lands for private roads to be constitutional.
Chapter 194, section 44, of Acts 1872-73, which we are considering provides :' “The court shall grant such private road if it be made to appear, that the same is necessary to enable the applicant to roach and enjoy his own property, and that the granting thereof will not entail irreparable injury upon the party through whose lands the same will run.” Now on the principle which we have laid down it seems to
But this road under this act is not subject to this supervision and control and was opened to give access not to the residence of the applicant, but simply to his lands, not that he might have the means of performing liis public duties, but for the far different purpose of enabling him individually to enjoy his property; in other words to enhance the value of his private property. This is surely no public use.
Our conclusion therefore is, that the 44th section of chapter 194 of the Acts of 1872-73 is unconstitutional, null and void; and that therefore the judgment of the circuit court of Harrison county rendered on June 6, 1881, whereby the supersedeas granted to A. J. Varner from the order of the county court of Harrison, made August 19, 1880, was dismissed, and A. J. Varner ordered to pay to Lehi Martin his costs by him expended, must be reversed, set aside and
Judgment Reversed, Petition Dismissed.