Newby v. Platte Cnty.

• Decision Date: 31 July 1857
• Court: Missouri Supreme Court
• Parties: NEWBY, Appellant, v. PLATTE COUNTY, Respondent.^a1

25 Mo. 258

NEWBY, Appellant,

v.PLATTE COUNTY, Respondent.^a1

Supreme Court of Missouri.

July Term, 1857.

1. The state, by virtue of its eminent domain, has the right to take private property for public use.

2. The state can rightfully exercise this right only in cases of public necessity, and then only upon paying the owner a just compensation.

3. It is competent for the Legislature to provide that, in determining the just compensation to which the owner of property appropriated to public use is entitled under the constitution, the benefits and advantages accruing to such owner in respect of the residue of his property unappropriated, in consequence of the use to which the part taken is applied, shall be taken into consideration. (SCOTT, J., dissenting.)

4. This right of providing that benefits and advantages shall be taken into consideration in determining the just compensation required by the constitution is based upon the general taxing power.

5. Such a provision is in effect an assessment or tax on benefits; being such, and not a tax on property, properly speaking, it is not in conflict with the provision of the constitution requiring that all property subject to taxation shall be taxed in proportion to its value.

6. The seventeenth section, of article 2, of the general act of 1845, “for opening and repairing public roads and highways” (R. C. 1845, p. 974), providing that in assessing the damages sustained by a person by reason of a road's passing over his land “the commissioners shall take into consideration the advantages as well as the disadvantages of the road to such person,” is in harmony with the constitution.

7. The benefits to be charged against the adjacent land owners are, it seems, the direct and peculiar benefits resulting to them in particular, and not the general benefit accruing to them in common with other land owners from the building of the road.

Appeal from Platte Circuit Court.

P. R. Hayden, for appellant.

I. Newby was entitled in damages to the full value of his land appropriated and taken for the road, and the court, in the assessment thereof, had no right to take into consideration the probable or incidental advantages which might or should accrue to Newby from the road in its enhancement of the value of his adjacent lands. (See Constitution of Missouri, article 13, section 7; 5 Dana, 32; 7 Dana, 87; 9 Dana, 114.)

LEONARD, Judge, delivered the opinion of the court.

A great diversity of opinion has prevailed among speculative writers as to the origin of private property. The ancients, it is said, generally held property to be the gift of the Deity, but the nations of modern Europe have regarded it as an institution of the positive law. It would seem, indeed, to be a necessity of our nature, and precedes the establishment of civil government. Man cannot live without it, and accordingly rights of property have always existed in every country. In every form of society there are circumstances under which things constituting the necessaries and comforts of life are held to belong to a man so as to be his property. Indeed, one of the main purposes o which civil government exists among men, is the protection of private property; and in providing this protection the civil law must necessarily ascertain and define the things that may be the objects of ownership, and prescribe and limit the powers of the owner over them.

In this manner and to this extent property may justly enough be considered an institution of the civil law; but when it is thus established by the municipal law, the legitimate authority of the civil government over it would seem to be confined to a just control over the owner in respect to the use he may make of it--to the requiring of contributions from it to meet the public burdens, and to the taking of it for the public use when required for that purpose; and such seems to be the opinion of the writers on public law. Puffendorf, treating of the power of the state over private property, says: “It may, I think, be properly enough reduced to three general heads: first, the right of making laws to direct the proportion in the use and consumption of certain goods (sumptuary laws--laws against prodigality, etc.); secondly, the right of levying taxes; and, thirdly, to the exercise of the transcendental propriety” (book 8, chap. 5, § 3); and the practice of all civilized nations has, in good times, always conformed to this.

As to the eminent domain, the “transcendental propriety,” as it is here called, all writers on public law agree that the state cannot rightfully exercise it except in cases of public necessity, and then only upon yielding the owner a just compensation. Grotius tells us that “the property of subjects is under the eminent domain of the state, so that the state, or he who acts for it, may use and even alienate and destroy such property, not only in cases of extreme necessity--in which even private persons have a right over the property of others--but for the ends of public utility; to which ends those that found civil society must be supposed to have intended that private ends should give away; but it is to be added that when this is done, the state is bound to make good the loss to those who lose their property.” (De jure Belli et Pacis, Lib. 3, chap. 20, Whewell's ed.) Puffendorf, too, speaking of the extent of the right of eminent domain, observes: “It is agreeable to natural equity that when contributions are to be made for the preservation of a particular thing by such as enjoy it in common, that every man should only pay his quota, and that one should not be forced to bear more of the burden than another, and the same holds in commonwealths; but because the state of the commonwealth may often be such that either some pressing necessity will not give leave that every particular subject's share should be collected, or else that the public may have necessary occasion to make use of something in the possession of one or more of the private subjects, the sovereign power may seize upon it for the necessities of the commonwealth; but, then, all that was above the proportion that was due from the proprietors must be refunded to them by the rest of the subjects” (book 8, chap. 3); and the doctrine and practice of all civilized nations correspond with what is thus laid down by these writers.

No principle in English jurisprudence is better settled than that an individual cannot be deprived of his property except for the public use and for a just compensation, and the British parliament accordingly never authorized one individual's property to be taken for the private benefit of another upon any terms, nor for the public use, without first providing a just equivalent for the owner. (1 Black Com. 139.) The emphatic declaration of the French law (Civil Code, art. 545) is that “no one can be compelled to give up his property except for the public use and for a just and previous indemnity.” And an anecdote related by De Tott, in his Memoirs of the Turkish Government, shows that the same principle is equally respected in that despotic government. The Sultan Mustapha, being desirous of building and endowing a new mosque, fixed upon a spot in the city of Constantinople which belonged to a number of individuals, and treated with them for the purchase of their parts. They all complied with his wishes except a Jew, who owned a small house on the place, and refused to part with it for any price. The Sultan consulted his Mufti, and they answered that private property was sacred, and that the laws of the Prophet forbade his taking it absolutely, but that he might compel the Jew to lease it to him as long as he pleased at a full rent. The Sultan submitted to the law.

But in Europe this principle is, in reference to the action of the government, a mere moral rule, imposing no legal restrictions upon the legislative authority; while the American people, by incorporating it into their constitution, and making it a rule of constitutional law, of superior obligations to the enactments of the legislative department, have placed private property under judicial protection, against all efforts on the part of the government to take it from the owner, except under the circumstances and upon the terms recognized as just and proper by the general sense of mankind and the uniform practice of civilized nations; and they have thus given to private property a security altogether unknown to the legal systems of Europe. Our constitutional provision, it is true, does not, like the declaration of the French law, prohibit in express terms the taking of private property in any case except for the use of the public, so as directly to deny to the Legislature the power of transferring property from one person to another for any mere private purpose; yet all this is sufficiently implied; and accordingly, in the construction of the provision, it is always assumed that there must be not merely a just compensation, but that the use to which the property taken is to be applied must be a public use in order to authorize the exercise of the power. The questions, therefore, that have been discussed in the courts in the construction of this clause--which is to be found in almost every American constitution--are, what is a public use within the meaning of this provision? and, what is the just compensation required by the constitution? Must it be the whole money value of the property without any deduction? or, is it competent for the Legislature to provide that the increased value imparted to the residue of the party's land by the use to which the part taken is applied, shall be deducted from the compensation to be paid? And the last is the question involved in the present case.

The 17th section, of the 2d article, of the general road law of 1845 (R. C. 1846, p. 974), provides that, in assessing the land owner's damages, the commissioners “shall take into consideration the advantages as well as the disadvantages of...