Dickey v. Tennison

• Decision Date: 31 October 1858
• Citation: 27 Mo. 373
• Parties: DICKEY, Appellant, v. TENNISON, Respondent.
• Court: Missouri Supreme Court

27 Mo. 373

DICKEY, Appellant,

v.TENNISON, Respondent.

Supreme Court of Missouri.

October Term, 1858.

1. Private property cannot constitutionally be condemned and appropriated by the legislature to private use.

2. The “act to establish a neighborhood road in Washington county, approved December 8, 1855 (Sess. Acts, 1855, p. 466), is unconstitutional.

3. Proceedings, instituted under an act of the legislature for the condemnation and appropriation of private property, commenced without notice to the owner thereof, are void.

Appeal from Washington Circuit Court.

This was an action in the nature of an action of trespass quare clausum fregit. The defendant justified under an act of the legislature, approved December 8, 1855 (see Sess. Acts, 1855, Adj. Sess. p. 456), authorizing him to open and keep open a neighborhood road in Washington county. The proceedings under said act were adduced in evidence by the defendant. The court instructed the jury that said special act was constitutional, and if complied with it was a justification of the alleged trespass.

Noell, for appellant.

I. The road which was authorized by the act was not a public road. (See 25 Mo. 258, 277.) It was not a road of necessity. (11 Mo. 513.) No notice was given to plaintiff of the proceedings to condemn. (26 Mo. 193.)

Frissell, for respondent.

SCOTT, Judge, delivered the opinion of the court.

Our constitution provides that no private property ought to be taken or applied to public use without just compensation. Whilst this provision recognized the right of eminent domain in the state for the public use, there is nothing which sanctions the doctrine that the property of individuals may be taken for private use with or without compensation. Such a right would be hostile to the existence of private property. If one individual could by law be compelled to transfer his property to another against his will, a great stimulant to the acquisition of wealth, which contributes so much to the prosperity of the state, would be taken away. Hence commentators on our form of government, whilst they acknowledge the right of eminent domain in the state for public use in its broadest terms, are unanimous in the opinion that private property cannot be taken for private use. Some difference of sentiment may arise as to the application of this principle, but none deny or doubt its existence.

In order to determine this controversy, then, it will be necessary to consider the act under which the road was opened, the opening of which gave rise to the controversy, and to determine from its provisions whether the property therein authorized to be taken was for the public use. The act is found in the private and local acts of the adjourned session of 1855, p. 467, and is entitled: “An act to establish a neighborhood road in Washington county,” approved December 8th, 1855. Names do not alter things, and when an act is unconstitutional in its essence, it cannot be made valid by specious names or titles. But for the word “neighborhood” in the act it would never occur to any one but that the road was for the private use of the defendant alone. By it he is authorized and permitted to open and keep open a neighborhood road. The defendant himself is to mark out and report the road to the County Court, who are then to appoint commissioners to assess the damages. The commissioners are to be paid for their services. The defendant is required to pay all damages assessed and all costs attending the matter, and the establishment of the road is made to depend on the performance of these conditions. It is obvious from these details that the existence of the road depends upon the will of the defendant. He is permitted to open it. This is unusual language to be employed in authorizing a road required for the public use. He is to pay all damages assessed and the costs of the proceeding. This is a wide departure from the usual mode of paying the damages for the opening of the ordinary public highways of the...