Komposh v. Powers
| Decision Date | 27 February 1926 |
| Docket Number | 5854. |
| Parties | KOMPOSH v. POWERS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Carbon County; O. F. Goddard, Judge.
Proceeding by Joseph Komposh against Francis Powers as the administrator of the estate of Ann Powers, deceased, and another. Judgment for plaintiff, and defendants appeal. Affirmed.
C. C Rowan, of Red Lodge, for appellants.
John G Skinner, of Red Lodge, for respondent.
This is an appeal from a judgment in favor of plaintiff and against defendants establishing a road from the lands of plaintiff across the lands of defendants to a public highway, and awarding damages therefor to defendants, to be paid by plaintiff with all costs of the action.
The complaint alleges that the plaintiff is the owner of certain agricultural lands in Carbon county which he occupies as a home for himself, his family, and several children, and on which he raises crops of hay and grain; that he has no "practical outlet from his said land to the public highway, * * * and that it is necessary and plaintiff requires a right of way through the lands of defendants for a private road to connect his lands with the public highway; * * * that plaintiff has children at home who should be going to school, but said children * * * have no way or road to reach the schoolhouse," and plaintiff has approximately 1,000 bushels of grain and a large quantity of hay which he is unable to move to market. It describes the strip of land to be taken, and declares the proposed road to be a "public use," and its purpose to enable the plaintiff to haul the produce to market, send his children to school, to haul supplies and fuel to the home, and "for using the same for road purposes and traveling purposes generally."
Plaintiff alleges that he is willing to pay to defendants all damages suffered by reason of the taking of the land and for maintaining and using "said highway and road," and declares that he sought to acquire such right of way by purchase, but without success, and that it became necessary for him to seek condemnation thereof under the provisions of the Code referring to the right of eminent domain.
To this complaint the defendants interposed separate demurrers, which were overruled. Francis Powers, as administrator, by answer joined issue as to the allegations of the complaint, and, as a special defense, alleged that at the time of the commencement of the action plaintiff had a good and sufficient road practically paralleling the proposed road and within one-half mile of it, which road he admitted was impassable a portion of the year by reason of the depth of snow, but alleged that the same condition would prevail as to the proposed road, and further alleged that plaintiff had also a second road across the lands of other neighbors which he could use. He denied that plaintiff had attempted to purchase a right of way for the proposed road, and alleged that the proposed road would damage the property in his charge to the extent of the full value thereof, or $5,000. Maurice Powers, by separate answer, denied the necessity for the road, and alleged that the same would damage his property to the extent of $500.
By replication the plaintiff denied the new matter contained in the answers, and alleged affirmatively that he had but a way by sufferance across defendants' lands at any time, and that he had been frequently denied the right to travel that way; that gates thereon had been closed and wired; and that he had been warned not to use the said road; and, further, that such way was through boggy ground and impassable, not only when blockaded by snow, but during the irrigating season, and that, even if permitted to do so, he could use the road "only occasionally." He alleges that the damage to the lands held by Francis Powers would not exceed $200, and that to the Maurice Powers land would not exceed $25.
The cause was tried to the court, and a jury duly impaneled for that purpose. At the close of plaintiff's evidence defendants moved for judgment of nonsuit, which motion was overruled, and at the close of all the evidence defendants moved for a directed verdict, which motion was also overruled. The court instructed the jury as to the law and as to their duty in such a case, and sent them out to view the entire premises involved, including the proposed road as laid out on the ground and described in the pleadings, and any other practicable route. The jury returned their verdict in favor of plaintiff on all issues in the case, and specifically found that "the road described in the complaint and in the evidence is necessary to be taken by said plaintiff for highway purposes," and fixed the amount of damages to be awarded to each of the defendants. The court found that the use to which plaintiff sought to apply the land in question was "a public use authorized by law," and upon the findings and verdict made and caused to be entered the judgment appealed from. The defendants moved for a new trial and supported the motion by affidavits. The motion was denied.
The proceeding here reviewed was instituted under the provisions of sections 9933 to 9958, inclusive, comprising chapter 14, Revised Codes of 1921, entitled "Eminent Domain," which term is defined by section 9933 as "the right of the state to take private property for public use." Section 9934 then provides that-
Section 9955 reads:
"Private roads may be opened in the manner to be prescribed by the Political Code, but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited."
Turning to the Political Code for direction as to the manner of opening "private roads," we find but one section on the subject; i. e., section 1765, Revised Codes of 1921, which merely provides in this regard that "private roads may be established in the manner provided in sections 9933 to 9958 of these Codes."
Defendants predicate error upon the action of the court (1) in overruling defendants' demurrers to the complaint. They do not, however, attack the complaint as to its sufficiency in either form or substance, but challenge the constitutionality of the above statutory provisions on the grounds discussed in paragraphs 1, 2, and 3 of this opinion.
Further specifications are that the court erred in (2) the admission of evidence; (3) overruling defendants' motion for nonsuit; (4) overruling defendants' motion for a directed verdict; (5) the giving of instruction No. 2, and refusing to give certain offered instructions declaring the contrary rule of law; (6) in refusing to give certain offered instructions based on defendants' theory of the case; (7) refusing to submit a certain special interrogatory to the jury; (8) entering judgment for plaintiff and against defendants; and (9) overruling defendants' motion for a new trial.
2. Counsel next asserts that the Legislature cannot, by its mere fiat, transform that which is in truth a private use into a public use, but must leave to the courts the determination as to whether a particular use is public or private. Again counsel submits numerous authorities in support of his position. Without cumbering this opinion with the citation of these authorities, we again agree with counsel. Section 9943 provides that the court must, among other things, determine in such a proceeding as this "whether or not the use for which the property is sought to be appropriated is a public use, within the meaning of the laws of this state," and the highest court in the land has recently declared that the question is one for the courts. Rindge Co. v. Los Angeles, 43 S.Ct. 689, 262 U.S. 700, 67 L.Ed. 1186.
3. In construing statutes providing for the establishment of "private roads," there is considerable apparent conflict in the authorities as to the character of the use. Mr. Lewis, in his work on Eminent Domain, vol. 1, p. 519, says:
"However, * * * the key to their reconciliation is to be found in the fact that the phrase 'private roads' * * * is used in different states and different statutes to designate roads of entirely different character,"
-and again on page 232 the author lays down the following test:
"If, by a fair construction and operation of the statute, the road when laid out, is in fact a public road for the use of all who may desire to use it, the law is not liable to the charge of unconstitutionality, and is valid though the road may be laid out on the application of, paid for and kept in repair by the petitioner, and primarily designed for his benefit; but if such road is to become a mere private way and not open to the public, the law sanctioning it is void."
On examination, the authorities do not so readily fall into the two classes stated in the text above. For example, the Supreme Court of Kansas,...
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