Snyder v. Warford

• Decision Date: 31 July 1848
• Citation: 11 Mo. 513
• Parties: SNYDER v. WARFORD & THOMAS.
• Court: Missouri Supreme Court

11 Mo. 513

SNYDER

v.WARFORD & THOMAS.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO HOWARD CIRCUIT COURT.

DAVIS, for Plaintiff. The plaintiff insists, that except the limitation which the Constitution imposes upon a man's real estate--that of being taken for public use--that he owns its subject to his own will and pleasure, as to sale or disposition, while not in debt. In the 4th volume of Kent's Commentaries, page 5, it is declared, that “every restraint upon alienation is inconsistent with the nature of a fee simple,” and that “no person is capable of having a greater estate or interest in land.” The quantity of land taken is not the criterion by which the right is to be judged. If one square foot of a man's farm may be taken, when occasion may require, all or so much may be taken as to render his land wholly useless to him. The 7th section of the act provides that the owner of the land or any other person shall be subject to the like fines for obstructing this right of way, that he would be if he obstructed a public highway. The 8th section provides, that upon the establishment of the right of way as provided, the same shall vest in the party, his heirs or assigns, forever. Rev. Code, p. 1075. The plaintiff insists, that the provisions of this act are at war with his fee simple estate in the land; that if his private property is to be taken and given over to the defendants for their private use, that the State Constitution had better be first slightly amended. § 7, art. 13 of the Constitution of Mo.; 5 Dana, 32; 7 Dana, 87; 9 Dana, 114.

CLARK, for Defendants. The defendants in error, rely upon article 13, § 7, of our Constitution, and the act of the Legislature, entitled “An act to enable persons to secure the right of way in certain cases,” approved March, 24, 1845, to sustain the judgment of the Circuit Court.

NAPTON, J.

The only object of the pleadings in this case was to bring up the question of the constitutionality of an act of the Legislature, passed March 24, 1845, entitled “An act to enable persons to secure the right of way in certain cases.” It is unnecessary to state the pleadings in detail. The action was trespass, and a special plea was put in by the defendants, justifying the trespass under a right of way, established according to the provisions of the above mentioned act. A demurrer was filed and overruled and judgment for the defendants.

The statute in question is thought to be unconstitutional, as an encroachment upon that absolute property in land which a title in fee simple implies--an encroachment, it is supposed, not called for by the public interest, but designed for the benefit of private individuals. The principle asserted by the appellant is, that a man cannot be compelled to part with any portion of his land to another, and this principle is supposed to condemn the statute, which is under consideration.

This argument is based upon an erroneous idea of the nature of a right of way. It is not any interest in land, but merely an easement, which conflicts not in the slightest degree with the absolute proprietorship of the owner. It is a right recognized by the common law, and originates in grant, or in England by prescription and custom, and both here and in England by necessity. Some writers have thought that what is termed a right of way by necessity, has its origin in the same manner in which a right of way by grant arises. It is an implication from the grant. It is not, however, inaterial whether this right be traced to the grant or to necessity; its existence and recognition by the common law, from time immemorial, is beyond doubt. The right of way from necessity is thus stated by an elementary writer: “If a person having a close, bounded on every side by his own lands, grants the close to another, the grantee shall have a way to the close, 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.” 2 Sel. N. P., 1041. So if the middle close be reserved, and the surrounding land sold, a way is reserved to the grantor. The United States being the proprietor of a section of land, entirely surrounded by eight other sections, sells the section so surrounded; the purchaser acquires, by the common law, a right of way to the land he has bought, as a necessary incident of the grant. The case is not altered by the United States selling the surrounding land to different individuals. The purchasers take it subject to the burden imposed on it whilst it belonged to the government, the original proprietor. A way of necessity exists after unity of possession of the close, to which and the close over which the way exists, and after a subsequent severance. 2 Sel. N. P., 1042.^(a)

The statute merely provides a mode of establishing and opening a way under circumstances in which a right of way previously existed. The first section specifies the cases in which the proceedings subsequently authorized are applicable. It is only where a man's land is “surrounded or inclosed, or shut out and cut off from a public highway,” that proceedings are allowed to have a road designated and opened. The eighth section provides that the right of way, when established in the mode pointed out by the act, shall vest in the party and his heirs and assigns forever. Can anything be more consonant to the principles of natural equity, if the law were silent on the subject?

It is a mistake, we apprehend, to suppose that a man has that absolute and unlimited dominion over his real or personal property which enables him to control it at his mere will and pleasure....