Williams v. Natural Bridge Plank Rd. Co.

• Decision Date: 31 October 1855
• Citation: 21 Mo. 580
• Parties: WILLIAMS et al., Plaintiffs in Error, v. NATURAL BRIDGE PLANK ROAD CO., Defendants in Error.
• Court: Missouri Supreme Court

21 Mo. 580

WILLIAMS et al., Plaintiffs in Error,

v.NATURAL BRIDGE PLANK ROAD CO., Defendants in Error.

Supreme Court of Missouri.

October Term, 1855.

1. The ownership of the soil under a public highway belongs to the adjoining proprietor, the public having a mere right of way, or easement, over the same.

2. Where a corporation formed under the act of the general assembly of February 27, 1851, (Sess. Acts, 1851, p. 260,) with the consent of a county court, located a plank road over and upon a county road: held, that the corporation was liable for damage caused by making said road; as by endangering, by excavations, the stability of houses along the line of said road. The grant by the legislature of the right of locating a plank road, with the consent of the county court, on a county road, does not exclude the idea that the owner of the soil over which the county road passes, should have compensation for any injury he may sustain by converting a county into a plank road.

Error to St. Louis Land Court.

This was an action by the plaintiffs, some of whom appeared by their mother, as their natural guardian, to recover damages caused by the construction by the defendant, (a company incorporated under the act of February 27, 1851,) of a plank road. The said plank road was located by the said company, with the consent of the county court of St. Louis county, over and upon a county road of said county which ran over the land of the plaintiffs, and had been used as a public highway for more than twenty years before the commencement of the said plank road. There was evidence showing that Mary B. Williams, who appeared as the guardian of the minor plaintiffs, was in possession, together with her children, of the premises to which the alleged injury was done, and gave her consent to the construction of the said plank road. It is unnecessary to set forth the nature of the damage done, as the plaintiffs were forced to take a nonsuit by the giving of the following instruction, asked for by the defendant:

“If the jury believe from the evidence, that the acts and injuries complained of in the plaintiffs' petition, were done in, and were consequent from the making of the Natural Bridge Plank Road, and that the making thereof was upon a state or county highway or road, with the consent of the county court of St. Louis county, and that said state or county highway or road had been used for twenty years or more immediately preceding the commencement of said plank road as a public road or highway, then the jury should find for the defendant.”

To the giving of this instruction plaintiffs excepted.

Hudson and Thomas, for plaintiff in error.

1. The question to be decided here is, whether a common county road or highway, established many years ago, before plank roads or railroads were thought of in this state, can be transferred to a private corporation by the legislature or the county court, for the purpose of being converted into a private road, without making just compensation for the injury done to the owner of the soil by the building of such road. When private property is taken for public uses, just compensation must be made. (1 Geo. R. 530-36; 2 Kent, 340.) The legislature had no right, even if they had intended to do so, to enter upon and appropriate land of private individuals for purposes other than those to which it had been originally dedicated in pursuance of the road law. (3 Hill, 567; 18 Wend. 9; 25 Wend. 462-4. See also, 2 Strange, 1004.) The intention of the legislature was to pass to private corporations whatever right the public had in a public highway, leaving the question of damages for appropriating the soil to be settled between the owner and the corporation. When the right of way was originally granted a common dirt road was all that parties contemplated.

Cline & Jamison, for defendant in error, cited 1 Pick. 417; 12 Mo. 414; 14 Mo. 20; 15 Mo. 651; 9 Conn. 436; 8 Cow. 146. This is an action for a tort, and the acts done and caused to be done were authorized by law. (1 Pick. 435; 12 Mass. 482.) The acts done and caused to be done, by defendant, which are complained of by plaintiffs, were done by the permission of Mary B. Williams, the person then in possession of the premises described in the petition.

SCOTT, Judge, delivered the opinion of the court.

It is an error to suppose that the land over which a public road passes belongs to the state or county. The law, for the convenience of the community, has appropriated portions of the lands of individuals to be used as public roads or highways. Subject to this use or easement of the public, the soil over which the road passes remains in the owner, in the same manner as though no appropriation of it had been made. When the land of an individual is taken for a...