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or with places of necessary public resort, together with the implied right or license of the public to use them, at least in going to and from the premises of the person laying them out, quite as much as, if not more than, the consideration of purely individual rights, that have won for these privateroad acts judicial recognition of constitutionality. The roads laid out are quasi-public roads. If the public cannot use the roads, the constitutionality of the acts cannot be sustained.
§ 28. Lateral railroads. — In Pennsylvania ? and Maryland, railroads are authorized by statute to extend from public railroads, canals, and streams to mines belonging to individuals, but these acts cannot be abused for purposes purely private. The acts were passed for the purpose of developing mineral lands, by enabling the owner to obtain access to the transportation facilities of railroads, canals, and streams, when parties owning the adjoining lands refuse access through their lands. If the owner of the land desired to use his wharfage facilities, he would be entitled to the first right, but he must bona fide intend to make such improvements himself. These roads may be used by all who will pay proper toll. No lateral road can be established if the applicant has another right of way.? There is a statute authorizing such railroads in West Virginia, but the constitutionality of the act has never been distinctly affirmed. In the only case yet decided under the statute,s it appeared to the court that the public could not
1 Waddell's Appeal, 84 Pa. 90.
Shoenberger v. Mulhollan, 8 Pa. 134; Harvey v. Lloyd, 3 Pa. 331 ; Harvey v. Thomas, 10 Watts, 63.
3 Northern Central Coal Co. v. Coal and Iron Co., 37 Md. 537.
• West Pennsylvania Inst. v. Edgewood R. R., 79 Pa. 257; also cited Edgewood Co.'s Appeal, 79 Pa. 257.
5 Hays v. Briggs, 74 Pa. 373; Hays v. Risher, 32 Pa. 169.
6 Brown v. Corey, 43 Pa. 495; Boyd v. Negley, 40 Pa. 377: Hays v. Risher, 32 Pa. 169.
7 Boyd v. Negley, 40 Pa. 377.
in any way use the subterraneous way proposed, and that the use was for the applicant solely, and hence decided that public utility did not require the laying-out of the proposed road.
§ 29. Ways of necessity. — By the common law, if a person has a close bounded on every side by his own lands, and grants the close to another, the grantee shall have a way to the close over the grantor's land, as incident to the grant, or, as it is sometimes termed, a way of necessity; for otherwise he cannot derive any benefit from the grant. There can be no such way when there is a possible way over the owner's own land. Such a way only arises out of land granted or reserved by the grantor, and not out of the lands of a stranger. A legislative regulation of the manner in which this right shall be ascertained and determined is not an exercise of eminent domain, nor a taking of private property for private use. There is also a common law of necessity where the way is founderous. This is only a temporary right of way, and does not apply to a case where a highway laid along the bank of a river has been permanently destroyed by changes in the course of the stream. The adjoining land cannot be used after such permanent change, but there must be a new condemnation."
i Selw. N. P. 1011.
? Perry v. Webb, 21 La. An. 247. If the grantee has access to the highway, a right to a way of necessity does not exist, although lands of the grantor may lie between the land granted and the highway. Kuhlman v. Hecht, 77 I. 570.
3 Stewart v. Hartman, 46 Ind. 331.
OF WHAT CONSTITUTES À TAKING.
% 30. Injury or depreciation of property.
31. Taking an easement. 32. Additional burden of railroad upon highways, turnpikes, and canals. 33. Highway an additional burden on a railroad. 34. Turnpike not an additional burden on public road. 35. Ferry-landing additional burden on highway. 36. Preliminary survey not a taking.
§ 30. Injury or depreciation of property. — There should be a liberal construction of the word “ taking.'
The constitutional provision is adopted for the protection of and security to the rights of the individual as against the government, and the term “ taking” cannot be limited to the absolute conversion of real property to the uses of the public, and not include cases where the value is destroyed by irreparable and permanent injury inflicted on it. Any permanent change in title, or encumbrance on property, or exclusion of the owner from its enjoyment, or substantial injury to the land, - such as discharging water upon it, — is a taking within the meaning of the constitution. A partial destruction or diminution in value is a taking. A deposit of stone
1 Pumpelly v. Green Bay Co., 13 Wall. 166. 2 Cushman v. Smith, 34 Me. 247.
3 Pumpelly v. Green Bay Co., 13 Wall. 166; Lee v. Pembroke Iron Co., 57 Me. 481 ; Selden v. Delaware Co., 24 Barb. 362; Chase v. New York Central R. R., 24 Barb. 273; Morris Canal Co. v. Seward, 23 N. J. L. 219; Wabash Canal v. Spears, 16 Ind. 441; Grand Rapids Co. v. Jarvis, 30 Mich. 308; Arimond v. Green Bay Co., 31 Wis. 316; Hooker v. New Haven Co., 14 Conn. 146. Taking materials for repair of roads cannot be justified unless compensation is provided. Reynolds y. Speers, 1 Stew. 34. + Glover v. Powell, 10 N. J. Eq. 211.
and rubbish upon land is such a taking as to require compensation. It does not signify that the improvements are made with proper skill and care. The injury to the owner's enjoyment of his property is the basis of his claim. For damages resulting from unskilful and negligent construction, the owner has his remedy at common law. Throwing an arch over property, or tunnelling it, is such a permanent use of land as to constitute a taking::
Although the damage may be nominal, yet if the act violates the rights of any one, and the violation is of such a nature that, if it be continued for a sufficient period of time, the wrong-doer may acquire a title by adverse possession or presumption of a grant, the person whose rights are violated may maintain an action therefor without proof of any other actual damages.*
§ 31. Taking an easement. — The right to use property is the valuable feature of property. Property is the right to possess, use, enjoy, and dispose of a thing. The right of using necessarily includes the right and power of excluding others from using the same property. The constitution is intended to protect all the essential elements of ownership which make property valuable, and when an easement of any sort is taken in property, a certain portion of the property is taken, and that taking requires compensation. Easements which owners have over the lands of others are property, and a taking or interference with the same is a damage for which compensation should be paid.
1 East Pennsylvania R. R. o. Schollenberger, 54 Pa. 144. 2 Selden v. Delaware Co., 24 Barb. 362.
3 Pinchin v. London & Blackwall Rail. Co., 5 De G. M. & G. 851 ; Sparrow v. Oxford, Worcester & Wolverhampton Rail. Co., 2 De G. M. & G. 94: Ramsden v. Manchester Rail. Co., 12 Jur. 293.
* Lund v. New Bedford, 121 Mass. 286; New Orleans Telegraph Co. v. Southern Telegraph Co., 53 Ala. 211.
6 Eaton v. Boston & Maine R. R., 51 N. H. 504; Branson v. Philadelphia, 47 Pa. 329; McLauchlin v. Charlotte R. R., 5 Rich. L. 583. 6 Arnold v. Hudson R. R., 55 N. Y. 661.
The change from a private way of necessity, to a public highway, is an additional burden, and requires compensation. A public way is a new and larger use of the lands, and generally imposes new duties as to fences and repairs, for which the owner should have indemnity. A railroad is an additional burden upon a private right of way. A change from one public use to another, essentially the same, gives no claim for compensation. A right to shoot and fish over certain lands was not considered to be included in the subjects of compensation covered by the English Lands Clauses Consolidation Act.
§ 32. Additional burden of railroad upon highways, turnpikes, and canals.— The imposition of an additional burden upon property constitutes a taking. Damages are paid to owners for the burden upon their premises of a public highway or turnpike. These damages are accepted on the understanding that the easement taken shall be for the purpose of a turnpike or highway, and not for a use which will be more burdensome to the adjoining owner. For the additional burden additional compensation should be provided. The public may change the character of its highways, and pay no additional damages when the use is not essentially changed. The use of a highway by a railroad is not a mere modification of the public servitude, but an entirely new use. It is not like the change of a highway
1 Abbott v. Stewartstown, 47 N. H. 228.
» Greenwood v. Wilton R. R., 23 N. H. 261; Parker v. Boston R. R., 3 Cush. 107; Philadelphia R. R. v. Williams, 54 Pa. 103 ; Gear v. Railroad, 89 Iowa, 23; Glover v. North Staffordshire Rail. Co., 20 L. J. (Q. B.) 376; Watkins v. Great Northern Rail. Co., 20 L. J. (Q. B.) 391.
• Stetson v. Bangor, 60 Me. 313.
5 Hatch v. Cincinnati R. R., 19 Ohio St. 92; Chapman v. Oshkosh R. R., 83 Wis. 629; Kucheman v. C. C. & D. R. R., 46 Iowa, 366.
6 Whitman v. Boston R. R., 7 Allen, 318. The use of a plank-road by a railroad is not considered an additional burden as to the owner. Brainard o. Missisquoi R. R., 48 Vt. 107.