Welton v. Dickson

• Decision Date: 04 January 1894
• Citation: 38 Neb. 767,57 N.W. 559
• Parties: WELTON v. DICKSON ET AL.
• Court: Nebraska Supreme Court

38 Neb. 767

57 N.W. 559

WELTON

v.DICKSON ET AL.

Supreme Court of Nebraska.

Jan. 4, 1894.

Syllabus by the Court.

1. The constitutional provision, “The property of no person shall be taken or damaged for public use without just compensation,” prohibits, by implication, the taking of private property for any private use whatever, without the consent of the owner.

2. Such constitutional provision forbids private property from being compulsorily taken or damaged for any but public use, and then only upon just compensation being made, the amount of which is to be assessed by a jury.

3. The want of power in a legislature to transfer to one man the property of another, without his consent, either with or without compensation, does not depend upon constitutional restriction, but upon the fact that it is not the exercise of the power of making laws or rules of civil conduct, which is the branch of the sovereign power committed to the legislature.

4. When the public exigencies demand the exercise of the power of taking private property for the public use is solely a question for the legislature, upon whose determination the courts cannot sit in judgment.

5. But what is such a public use as will justify the exercise of the power of eminent domain is a question for the courts to decide. But if the public use be declared by the legislature the courts will hold the use public, unless it manifestly appears from the provisions of the act that they can have no tendency to advance and promote such public use. Bankhead v. Brown, 25 Iowa, 540;Coster v. Water Co., 18 N. J. Eq. 54, followed.

6. Sections 47-52, c. 78, Comp. St. 1893, authorize the taking of private property for private use,--the roads therein mentioned being essentially private, and beyond the public control,--and said sections are therefore unconstitutional and void.

7. The absence of a plain and adequate remedy at law affords the only test of equity jurisdiction, and the application of this principle to a particular case must depend altogether upon the character of the case, as disclosed in the proceedings. It is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity. Watson v. Sutherland, 5 Wall. 74, followed.

Appeal from district court, Lancaster county; Hall, Judge.

Action by Albert Welton against Thomas J. Dickson and others, commissioners of Lancaster county, and others, to restrain the establishment of a private road over plaintiff's land. There was a decree for plaintiff, and defendants appeal. Affirmed.

Beeson & Root and N. Z. Snell, Co. Atty., for appellants.

Pound & Burr, for appellee.

RAGAN, C.

Chapter 78, Comp. St. 1893, provides: “Sec. 47. When the lands of any person shall be surrounded or enclosed, or be shut out and cut off from a public highway by the lands of another person or persons, who refuse to allow such person a private road to pass to or from his or her said land, it shall be the duty of the county board on petition of any person whose land is so surrounded or shut out, to appoint three disinterested freeholders of the precinct or township, in counties under township organization, in which the land lies, as commissioners to view and mark out a road from the land of the petitioner to the nearest public highway, and assess the damages the person will sustain through whose land the road will pass. Sec. 48. The person desiring to secure the right of way shall give the person or persons through whose lands the road will run, at least two days' notice of such intended application, by leaving or causing to be left a written notice at his usual place of abode; and satisfactory evidence that such notice has been given shall be presented to the board before commissioners shall be appointed. Sec. 49. The commissioners shall, before entering upon the discharge of their duties, take and subscribe an oath before some judge or justice of the peace, that they are not interested nor of kin to either of the parties interested in the proposed road, and that they will faithfully and impartially view and mark out said road to the greatest ease and convenience of the parties, and as little as may be to the injury of either, and assess the damages which will be sustained by the party through whose land it will run. Sec. 50. Said commissioners shall make out a report of their proceedings, stating particularly the course and distance of said road, and the amount of damages assessed, which report, together with a certificate of the oath, shall be returned to the county commissioners and filed by the county clerk. Sec. 51. If the report be approved by the county board, and the petitioner shall produce satisfactory evidence that he has paid the damages assessed (or tendered payment, if the party refuse to receive it,) and all costs attending the proceedings, the county board shall grant an order to said petitioner to open a road not exceeding fifteen feet in width; and if any person or persons obstruct said road, such person or persons shall be liable to all the penalties for obstructing a public road; provided, however, if such road shall pass through any inclosure, and it shall be required by the owner thereof, the person applying for such road shall put up and keep at each entrance into such inclosure a good and substantial swinging gate; provided further, that either party may appeal from the decision of the county board in like manner as prescribed in case of public roads. Sec. 52. Upon the establishment of the right of way, as in this chapter provided, the same shall vest and descend as an easement in the party and his or her heirs or assigns forever.” The board of county commissioners of Lancaster county, on the petition of Owen Marshall and Aaron C. Loder, appointed three commissioners, who viewed and marked out a private road through the land of one Albert Welton, and made report of their proceedings to said board of county commissioners. Thereupon, Welton brought this suit to the district court of Lancaster county to enjoin Marshall and Loder and the board of county commissioners from laying out and establishing on his land the private road petitioned for. The suit is based on the grounds that the statute quoted above is unconstitutional, and that the threatened action of the defendants, if permitted, will work an irreparable injury to Welton, for which he has no adequate remedy at law. The appellants demurred to the petition on the ground that it did not state a cause of action. The court overruled the demurrer, and entered a decree perpetually enjoining the board of county commissioners from establishing such private road on the lands of Welton. The case comes here on appeal. The principal question in the case is the constitutionality of the sections of the statute recited above.

If B.'s land shall be shut off from public highways by the land of A., and he shall refuse to allow B. a private road across his (A.'s) land, then this statute, against A.'s consent, takes a part of his land, and transfers it to B., to be used as a private road by him, his heirs and assigns, forever. Section 21, art. 1, of the constitution of the state, provides: “The property of no person shall be taken or damaged for public use without just compensation therefor.” The uniform holding of the courts is that such a constitutional provision as this is an implied prohibition on the power of the legislature to take the private property of A. without his consent, even when compensation is made, and transfer it to B., for his private use. The supreme court of the state of New Jersey, in Coster v. Water Co., 18 N. J. Eq. 54, declares: “This want of power in the legislature does not depend upon any constitutionalrestriction, but upon the fact that it is not the exercise of the power of making laws or rules of civil conduct, which is the branch of the sovereign power committed to the legislature. To justify the taking of the citizen's property by the legislature, the use for which it is appropriated must be a public use.” Speaking to this subject, the eminent jurist, Cooley, says: “The right of eminent domain implies that the purpose for which it may be exercised must not be a mere private purpose; and it is conceded on all hands that the legislature has no power, in any case, to take the property of one individual, and pass it over to another, without reference to some use to which it is to be applied for the public benefit. The right of eminent domain does not imply a right in the sovereign power to take the property of one citizen, and transfer it to another, even for a full compensation, when the public interest will be in no way promoted by the transfer.” Cooley, Const. Lim. (2d Ed.) 530. Now, is the use for which this statute authorizes the taking of appellee's land a public or private one? Is the purpose of this law to take A.'s property, and transfer it to B., for the use of the public, or for B.'s private use? If the private road contemplated by this law is for the use of the public, the law is good. If, on the other hand, the road authorized is for the private use and benefit of an individual, the law is void. And, whether one or the other, is a question of law. To make the use public, it need not be for the benefit of the whole public or state, or any large portion of it. It may be for the inhabitants of a small or restricted locality. But the use and benefit must be in common, not to a particular individual or estate. Coster v. Water Co., 18 N. J. Eq. 54. A statute of Ohio provided: “The trustees of any township, may, whenever in their opinion the same will be conducive to the public health, convenience or welfare, cause to be established, located and constructed as hereinafter provided, any ditch within such township.” Certain parties petitioned for the construction of a ditch across the lands of others, under...