Page images

canal, by having his water-supply taken away. The canal company endeavored to supply his loss, and thereby lessen the damages to be paid by it, by condemning a portion of the land of an adjoining owner for the purpose of constructing a feeder to the mill. The adjoining owner objected that his land was taken for the private use of the owner of the mill, and his objection was sustained. The mill-owner could be compensated in money, and not in privileges. The condemnation was plainly not for the use of the canal."


§ 24. Inducements to declare use public Donations of land Payment of damages by individuals. The question of determining the necessity of a public improvement is frequently delegated to the commissioners or to the courts. The laying-out of highways is a matter of public concern. They are laid out because the public need them, and the judgment of the court or of the commissioners should not be determined by proposed donations of land, or releases from damages, or on the fact that the damages were to be paid by individuals. If the agreement is not the basis of the adjudication, it would be proper that the public should be relieved of a portion or all of the damages by individuals. The public have a right to consider the expense, and that the public will not need an expensive road, but would be greatly benefited by one of moderate expense to the public. Donations of money or land? may



1 McArthur v. Kelly, 5 Ohio, 139.

2 Dudley v. Cilley, 5 N. H. 558; Dudley v. Butler, 10 N. H. 281; The State v. Stites, 13 N. J. L. 172.

8 Smith v. Conway, 17 N. H. 586.
Gurnsey v. Edwards, 26 N. 11. 224; Knowles's Petition, 22 N. H. 361.

6 Denham v. Bristol, 108 Mass. 202; Harrington v. Harrington, 1 Metc. 404; Parks v. Boston, 8 Pick. 218; Hays r. Risher, 32 Pa. 169; Hoadley v. Waterbury, 34 Conn. 38; Townsend v. Hoyle, 20 Conn. 1.

& Hunter v. Newport, 5 R. I. 325; Townsend v. Hoyle, 20 Conn. 1; Hoadley v. Waterbury, 34 Conn. 38. • Hoadley v. Waterbury, 34 Conn. 38; Cummins v. Shields, 34 Ind. 154

be made, bonds of indemnity given, and releases of damages made? without interfering with the discretion to be exercised by public authorities in deciding upon the public necessity or convenience of a proposed improvement, and such bonds and releases are valid and may be enforced. The damages due a particular remonstrant may be paid into the treasury for his use by individuals, without invalidating the adjudication ;' but it would be against public policy to permit interested individuals to induce, by payment of money, the withdrawal of opposition to the layingout of a road, when such remonstrance is made because there was no necessity for the road. The entire damages of a way for the peculiar benefit of the applicant may be assessed against such applicant.

§ 25. Settlement of private disputes Sales of land of minors. — It cannot be claimed that the taking of property from one and giving it to another, to bring to an end an extensive litigation of disputed titles, can be a taking for public use, although such settlement would tend to prodụce public harmony and a more extended improvement of the property in question. This question received an able discussion in the case of Van Horne's Lessee v. Dorrance.? The Pennsylvania Legislature passed an act confirming the title of claimants under Connecticut grants, to certain lands in Luzerne County, and providing compensation for those under the Pennsylvania title by arranging to give them vacant or unoccupied land of equal value. This act was

1 Watson v. South Kingstown, 5 R. I. 562; Hunter v. Newport, 5 R. I. 325; Townsend v. Hoyle, 20 Conn. 1.

2 Crockett v. Boston, 5 Cush. 182; White v. Norfolk, 2 Cush. 361, overruling The Commonwealth v. Sawin, 2 Pick. 547.

* Hoadley v. Waterbury, 34 Conn. 38; Townsend v. Hoyle, 20 Conn. 1.
4 Cummins v. Shields, 34 Ind. 154.
6 Smith v. Applegate, 23 N. J. L. 352.

6 Denham v. Bristol, 108 Mass. 202; Harrington v. Harrington, 1 Metc. 404; Parks v. Boston, 8 Pick. 218; Hays v. Risher, 32 Pa. 169. 7 2 Dall. 304.

invalid as being a condemnation for private use. In Philadelphia there exist a number of irredeemable ground-rents, and the Legislature, in order to relieve owners of lands out of which issued such ground-rents, passed an act to cause the rent to be valued, and to be extinguished by the payment of a capital sum. This act was declared to be unconstitutional, as being a taking for private use. The policy of the law against tying up property perpetually could not affect the private contract already existing. The legislature may authorize the sale of the lands of those who are incompetent to convey, but otherwise cannot compel the sale of private property for other than public uses without the consent of the owner.?

§ 26. Private or neighborhood roads. Land cannot be condemned for the purpose of making a private road for the particular use of an individual, although he may pay the entire cost of opening and maintaining it. The use is not public. It does not signify that compensation is provided. Private property cannot be taken for private use even on compensation.* Owners may consent, and if they sue in assumpsit for the damages they waive their constitutional rights, although their consent is not to be presumed or extended. The rights of owners cannot be evaded by calling the road a “neighborhood road” or a “ right of way,” if the road could be lawfully used by none other except the

1 Palairet's Appeal, 67 Pa. 479 (Agnew, J., dissenting), overruling Norris v. Clymer, 2 Pa. 277.

? Powers v. Bergen, 6 N. Y. 358. See also ante, & 9, for sales of lands held in joint tenancy, life-estates, remainders, etc.

3 Taylor v. Porter, 4 Hill, 140 (overruling Lambert v. Hoke, 14 Johns. 383); Rice v. Alley, 1 Sneed, 51; Clack v. White, 2 Swan, 540; Stewart v. Hartman, 46 Ind. 331; Wild v. Deig, 43 Ind. 455 (overruling Barnard v. Haworth, 9 Ind. 103); Osborn v. Hart, 24 Wis. 89; Bankhead v. Brown, 25 Iown, 510; Sadler v. Langham, 34 Ala. 311; Nesbitt v. Trumbo, 39 Ill. 110; Crear v. Crossley, 40 . 175; Dickey v. Tennison, 27 Mo. 373. 4 Clack v. White, 2 Swan, 510. 8 Baker v. Braman, 6 Hill, 47. 6 Dempsey v. Kipp, 62 Barb. 311; Nesbitt v. Trumbo, 89 III. 110.



applicant. It has sometimes been considered that the public have an interest in securing private ways to individuals, so that they may reach public roads on duties which may

be public, such as voting, paying taxes, testifying, etc., but this may more properly be accomplished by making a highway which the public may use. The public use does not depend on the number of people who may use the road. In Reynolds v. Reynolds," the Supreme Court of Connecticut recognize that a private way for the sole use of the applicant may be lawfully laid over the lands of others, although such road only connects two tracts of the applicant. In this case the question of constitutionality of the statute was not insisted on, but the practice was approved. The Constitution of the state of Michigan provides for private ways, and for the determination of the necessity of such roads by a jury.


§ 27. Roads denominated private which the public may use. The fact that few persons will use the road is 1 Dickey v. Tennison, 27 Mo. 373; Crear v. Crossley, 40 Ill. 175.

Brewer v. Bowman, 9 Ga. 37; McCauley v. Dunlap, 4 B. Mon. 57. In the recent case of Robinson v. Swope, 12 Ky. 21, it is held that whenever a private pass-way is necessary to enable a citizen to discharge those duties which he owes the public, and to enjoy the benefits of the government under which he lives, the private property of another citizen may be taken for the establishment of such pass-way upon compensation being made, and such use will be regarded as public within the meaning of that term as used with reference to the right of eminent domain. The public have a right to compel the attendance of any citizen upon the tribunals of justice, either as a witness, juror, or party, and have an interest in his attendance upon elections and the public worship of Almighty God; and, because of these rights and interests, the public also have a further interest that the citizen shall be provided with a practicable way to a market at which he can buy and sell, and thus provide himself with those things without which he could not discharge his civil and social duties. But the legislature cannot authorize the condemnation of a private pass-way simply for the purpose of connecting two tracts belonging to the same party. It might provide that communication from each of said tracts to the outside world, to enable the owner or his tenants or employees to attend courts, clections, a church, or a mill, but not for a pass-way simply to enable him to pass from one tract of land to another.

3 Bankhead v. Brown, 25 Iowa, 540.
4 15 Conn. 83.
5 Art. 18, & 4; Paul v. Detroit, 32 Mich. 108.

not essential in considering the public character of the road. If the public may use the way, the way is public although it may be termed a private road. It is not considered unreasonable that common convenience and necessity might require that access to the dwelling of a single inhabitant should be afforded to persons visiting op business or friendship, without commission of trespass. Over such roads the

2 ? applicant has no particular control. The public may discontinue against the will of the applicant, and they are only private in respect to certain matters of practice in opening and maintenance. It does not signify that such road is laid out at the expense of the applicant,4 and is to be kept in repair by him. A road may be wholly on the land of an individual, and may enter from the highway and return to the highway at about the same place; and it is not necessary that the road should be in the line of business travel, if the public may use it for the purposes of pleasure-driving. In Pennsylvania, one terminus of roads denominated private must be at the plantation or dwelling of the petitioner.? In Pennsylvania, legislation on the subject of private roads has been extensive. Roads are permitted under as well as above ground. Private roads are sustained which lead over the land of one man for the benefit of another, for the purpose of access to highways or places of necessary public resort, or even to private ways leading to highways. It is the connection of these private ways with public highways,


1 Warren v. Bunnell, 11 Vt. 600; Killbuck Private Road, 77 Pa. 39; Singleton v. Commissioners, 2 Nott & M. 526; Sadler v. Langham, 34 Ala. 311; Kissinger v. Hanselman, 33 Ind. 80; Sherman v. Buick, 32 Cal. 241; Shaver v. Starrett, 4 Ohio St. 494.

2 Denham v. Bristol, 108 Mass. 202; Roberts v. Williams, 15 Ark. 43; Sherman v. Buick, 32 Cal. 241. 8 Allen v. Stevens, 29 N. J. L. 509; Perrine v. Farr, 22 N. J. L. 356.

Sherman v. Buick, 32 Cal. 241. 6 Shaver v. Starrett, 4 Ohio St. 494; Allen v. Stevens, 29 N. J. L. 509; Perrine v. Farr, 22 N. J. L. 356.

6 Higginson v. Nahant, 11 Allen, 530.
7 Killbuck Private Road, 77 Pa. 39; Sandy Lick Road, 51 Pa. 94.


« PreviousContinue »