60 Mass. 327 | Mass. | 1850
The entry of the defendants is justified under the authority alleged to have been conferred upon them by virtue of the statute of 1848, c. 171, entitled “ An act for the regulation of public and town landings in the town of West-port.”
If this act is constitutional, and if it confers the power to enter upon the land of individuals to make surveys and establish boundaries, then the defence is maintained; inasmuch as there was no unnecessary damage done in making such entry, and the jury have found that this was a suitable and appropriate mode of effecting the object authorized by the statute.
The real question here raised seems to be, whether this statute is not in violation of a fundamental principle of the constitution, inserted in the bill of rights, article 10th, that “ whenever the public exigencies require that the property of an individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.” The principle, thus declared, is to be scrupulously regarded, and whenever an appropriation of private property is made by the legislature, disregarding this great principle, the court may properly be called upon to declare such statute unconstitutional.
But the difficulty that meets the plaintiff at the threshold, in the present case, is, that here there is no appropriation of the property of an individual to public uses. The statute is not one in which the legislature are exercising their right of eminent domain, as in taking land of individuals for canals, turnpikes, or railroads. In such cases, the real estate of the party is permanently subjected to a servitude, and he is substantially deprived of the use and enjoyment of the same.
But the present case is only an exercise of the sovereign power of the state, in prescribing means adapted to secure the
This exercise of power, in its various forms, is one of every day’s occurrence; indeed, so common, as to be acquiesced in without remonstrance, or even a question as to the right so to do. Take the ordinary case of an officer required to arrest an individual on civil or criminal process, where the party to be arrested is found to be on the lands of his neighbor, and the officer enters upon such land to make the arrest. Is the sheriff guilty of trespass ? Why not ? The land of an individual has been entered upon without compensation. Take another class of cases, that of the selectmen of towns perambulating the lines of their towns and the adjacent towns, agreeably to the provisions of the statute, requiring the lines to be run and the marks to be renewed once in every five years. So, also, the case of legislative committees sent out to explore and report upon the expediency of a proposed railroad or canal; or of county commissioners called out to viéw and adjudicate upon a petition for a new highway, passing over land of individuals, not finally taken as a part of the highway; or, in a case, as it may be, in which, after minute examination and survey, the petition for a new highway is wholly rejected. In all these cases, the right to enter upon the lands of individuals, without making compensation therefor, has always been exercised, and no doubt has been entertained of their right as public servants, in the discharge of public duties, thus to pass over the lands of individuals, so far as may be necessary to discharge properly such duty as is required in the cases supposed. There must be, in all such cases, the limitation that the entry is reasonably necessary, and that it is but a temporary one, and accompanied with no unnecessary damage.
In the present case, the instructions to the jury were sufficiently guarded in this respect. Exceptions overruled.
