Nesbitt v. Trumbo

• Decision Date: 31 January 1866
• Citation: 39 Ill. 110,1866 WL 4369,89 Am.Dec. 290
• Parties: WILLIAM NESBITTv.HARNESS TRUMBO et al.
• Court: Illinois Supreme Court

39 Ill. 110

1866 WL 4369 (Ill.)

89 Am.Dec. 290

WILLIAM NESBITT

v.HARNESS TRUMBO et al.

Supreme Court of Illinois.

January Term, 1866.

WRIT OF ERROR to the Circuit Court of Sangamon county; the Hon. EDWARD Y. RICE, Judge, presiding.

This was an application by John Smith to the commissioners of highways of the town of Woodside, in Sangamon county, for a private road, to be established from his farm over the land of William Nesbitt and others to a public road. The commissioners granted the application and laid out the road.

The matter came before the Circuit Court upon an agreed case, it being stipulated that the only question to be presented was, as to the constitutionality of the act authorizing the establishment of private ways over the land of others against their objections.

A motion to quash the proceedings of the commissioners was overruled, and thereupon Nesbitt sued out this writ of error.

Messrs. STUART, EDWARDS & BROWN, for the plaintiff in error.

I. There is nothing in the record to show that the private way sought to be established is one of necessity.

II. The doctrine of a “way of necessity” cannot apply to grants from the government under our peculiar land laws.

III. The statute is unconstitutional. Dickey v. Tennison, 27 Missouri, 373; Sadler v. Langham, 34 Ala. 311; State v. Glen, 7 Jones' Law (N. C.), 321; Clack v. White, 2 Swan (Tenn.), 540; Cornelius v. Glen, Id. 512; Hoye v. Swan, 5 Md. 237; The People v. White, 11 Barb. 30, and authorities there cited. In the matter of Albany street, 11 Wend. 150, and also a number of other cases directly to the point on this question cited in 11 Barb. 31 and 32. Taylor v. Porter, 4 Hill (N. Y.), 140; 2 Kent (9th ed.), 418; Embury v. Conner, 3 Comst. 511; 3 Parsons on Contracts (5th ed.), p. 542; West River Bridge Co. v. Dix, 6 How. 543, 544, 546, per WOODBURY, J.

Mr. N. M. BROADWELL, for the defendants in error.

I. The common law right to a way, from necessity, prevails in this country, and the legislative enactment is to provide a convenient mode of fixing the locality of a way, the right to which is already in existence. But if it is not a previously existing right, there is nothing to prevent the legislature from giving the right. Snyder v. Warford & Thompson, 11 Mo. 513. II. Right of way “of necessity,” applies to government grants. Id. But, as by the agreement in this case, nothing but the constitutional question is submitted to the court, the attention of the court is called to that question, without stopping to argue the preceding points at length.

III. It is insisted by plaintiff in error, that the Illinois statute authorizing the proceedings in this case (see Acts of 1861, pp. 263 and 264), is in conflict with this provision of the Constitution: “Nor shall any man's property be taken for, or applied to, public use, without the consent of his representative in the general assembly, nor without just compensation being made to him.” § 11, art. 13, Constitution. It will be seen from an examination of this constitutional provision, that it does not grant or deny a power. It is simply a recognition of the existence of a power antecedently enjoyed by the State; and the Constitution, without in any degree abridging this power, only prescribes that two conditions shall be observed before the exercise of the power in all its fullness, to-wit:

First, the consent of the owner of property, obtained through his representatives in the general assembly; and, second, making compensation to him.

What is the power obviously contemplated by this constitutional provision? Manifestly the right of eminent domain, “the highest and most exact idea of property remaining in the government, or in the aggregate body of the people in their sovereign capacity.” Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 63.

It rests in the wisdom of the legislature to determine whether the benefit of the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain; and when the legislature determines the question, the courts have no power to review the legislative action, unless it is clearly and manifestly violative of individual right. Id. Angel on Highways, p. 61; 1 Black's Com. 139; Boston Water Co. v. Boston & Worcester R. R. Co., 23 Pick. 360; Hazen v. Essex Co., 12 Cush. 475; Hickey v. Tennison, 27 Mo. 373. In this instance no such right is violated, for the reason that no property is taken, but simply an easement imposed upon it for public benefit. Snyder v. Warford & Thompson, 11 Mo. 513.

But even if the absolute ownership of the property were taken, the act would not be unconstitutional, because it is a taking for public use. Harvey v. Thomas, 10 Watts, 63; Ferris et al. v. Bramble et al., 5 Ohio, 109; Shaver v. Starrett, 4 Id. 494; Hickman's case, 4 Harrington (Del.) 580; Pocopson road, 4 Harris (Pa.) 15; Snyder v. Worford & Thompson, 11 Mo. 513.

Again, our statute (see Acts of '61, p. 264) provides that the private way opened under its provisions “shall not be converted to any other use or purpose than that of a road.” In thus dropping the adjective “private,” as a qualification of the word “road,” it is manifest that the legislature intended to declare such private way a road open to the public.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This record presents the question whether the act authorizing a private way, to be established over land of an owner against his objections, is constitutional. The provision is found in the ninety-third section of the act of 1861 (Sess. Laws, 263). The provision of our Constitution supposed to be violated by this enactment is the eighth section of article thirteen, and is this: “No person shall be imprisoned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” Does the establishment of such a way over a man's land disseize him of “his freehold,” or deprive him of “his property,” as provided in this enactment, without the judgment of his peers, or contrary to the law of the land?

This is not a question of first impression in the courts of this country, it having arisen and been judicially determined in several of our sister States. In the case of Hickey v. Tennison, 27 Mo. 373, it was held that private property cannot be constitutionally condemned and appropriated by the legislature to private uses. And it was likewise held that an act authorizing the location of a neighborhood road, which was, in fact, but a private way, was unconstitutional, and the acts performed under it were void. The court say: “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 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. * * * Hence, commentators on our form of government, whilst they acknowledge the right of eminent domain in the State for the public use in its broadest terms, are unanimous in the opinion that private property cannot be taken for private use.”

In the case of Clack v. White, 2 Swan's (Tenn.) 540, the court say: “Now, the statute confers power upon the County Court to grant a right of way against the will of the person who owns the land. It takes from him, in invitum, a part of his private estate, and gives it to another, as a private right, for such indemnity as a jury may assess. Now, we deny that any such power exists, under the Constitution of the State. The right to private property is under the protection of the Constitution, and is to be held as sacred and inviolable....