Hutton v. Board of Commissioners of Burke County

PETITION TO REHEAR. CLARK and MONTGOMERY, JJ., dissenting. This is a petition to rehear the case as reported in124 N.C. 749. The difficulties of the case apparently arise from the fact that the concurring opinion, which under the otherwise even division of opinion had the peculiar effect of controlling the judgment of the Court, did not fully concur in its opinion. The case as presented (898) to us, did not involve the abstract right of the State to improve its floatable and navigable streams, and to charge such tolls as would fairly represent their increased value as public highways to those who had received the benefit of such improvement, but simply the right of the State to deprive the plaintiff of the use of his natural easement without some corresponding benefit in the nature of compensation. The dominating principle apparently controlling the judgment of the Court is thus expressed in the concurring opinion on page 759: "The term `floatable stream' implies an easement in some one to use the stream for purposes of transportation. Whether this easement belongs to the general public or is appurtenant to the riparian lands, it is difficult to say. If it exists at all, it must belong to the riparian owner, as a natural easement. Whether it vests in him solely or in common with *Page 580 others, it is needless now to discuss. If it is worth anything to anybody, it is a valuable appurtenance to his land, of which he can not be deprived without adequate compensation. Whether this compensation must be in money, or may be in the increased conveniences afforded him by reasonable improvements upon the stream, need not now be considered, as no compensation whatever appears to have been given to him, and no substantial improvements have been made which would increase the facility of transportation. I speak of the riparian owners as a class, each of whom has the easement, where it exists, as far as the floatability extends. If he owns the easement, then the State can not charge him with the simple use of it. "I concede the right of the State to establish a highway on water or land. . . . I also admit that where the State has made or caused to be made valuable improvements of a local nature, it may charge a reasonable compensation for the use of the increased (899) facilities and benefits afforded by such improvement. But this is in the nature of a toll and not a tax, and presupposes some corresponding benefit to him who pays the toll. Where there is an utter failure of consideration, why should the toll be paid? But it is said to be in the nature of a special tax levied upon the property to be benefited. But on what property is it levied? Not on the logs, for they have not been benefited, nor even assisted in their journey. Moreover, a tax must possess some element of uniformity, and, if levied locally for a special purpose, its disbursement must be confined to its creative objects." This we understand to be the general tenor of the Court, which says, on page 751: "It is true that the Legislature may by proper enactment provide for the improvement of such waterway for the benefit of navigation. But the Legislature can not impose duties upon the commerce upon such waters for the purpose of `building public bridges and of cleaning out fords, public and private, across' such water-courses." The plain meaning of this is that such duties, whose imposition upon commerce can be justified only by their reciprocal benefits, can not lawfully be diverted to a purpose, public or private, utterly foreign to their original object; nor can we give our approval to any law which permits such unjust diversion. As the purpose of a special tax or toll is the only justification for its imposition, it can not lawfully be imposed where such diversion is permitted. We presume that a city can impose general taxes for the improvement of its streets, even if the bulk of it is spent in some one locality. It seems equally true that it can levy special assessments in different localities for the purpose of making special improvements within those localities. This is permitted upon the principle that where money is spent for the benefit of those who paid it, they are not injured, as the nature of the improvement is supposed to be *Page 581 worth its cost. But can a city levy special taxes in one particular (900) section to be spent in an entirely different section? Or can it impose a special assessment upon one piece of property for the exclusive benefit of another? Surely not. And yet this has been done in the case at bar. A heavy assessment has been levied on these logs without any corresponding benefit to them or their owner. No improvement has been made in the floatability of the stream of which they have had any advantage. At best, the money which they paid would be devoted to the future improvement of the stream, even if none were used in building bridges or cleaning out private fords. Their owner may not have any more logs to float down, and, if he did, he would probably be called on to pay toll for the floatage. This right of floatage he already possessed, as we have held this to be a floatable stream. It did not come to him by grant from the State, nor was it created by the decision of this Court. All that this Court did or could do, was to declare its existence as a natural easement, the right inherent in the general public to use a natural highway. It was said that this right belonged to the riparian owner, but it was not said that he was its exclusive owner. If it exists it certainly belongs to him in some capacity, and to some extent. If it is a local highway, he is entitled to its use by virtue of his riparian ownership, and if it is a public highway in its broadest sense, he is equally entitled thereto as one of the general public. This right can not be taken from him without just compensation in some form or other, and this is the essence of our decision. There seems to be an idea that an easement can exist in the general public without belonging to the individual. The general public in such a sense is a pure abstraction. As an artificial entity, it (901) can not use the highway, as it can neither ride nor walk, having neither feet nor hands. The easement is available only to the individual, and, if he has the right to use it, then he has the easement. Again, it is suggested that the State owns the highway separate and apart from the individual, to whom it may forbid its use without any form of compensation. This is probably a survival of the old idea that the highways belonged to the King, in whom in fact was vested the ultimate fee to all land. While, for purposes of government we must still regard the State as an artificial entity apart from the individual citizen, and while certain kinds of property must be reserved by the State to be used in a certain manner and for certain specific purposes free from all private interference, yet after all the State is but the trustee for its people, and, within the necessary limitations of the trust, the privileges of the citizen are inherent and of common right. Thus the right of the individual to use the highway does not come from the permission of the State, but rests upon the primary object for which the highway was *Page 582 established — the use of the public. The power of the State to regulate the highway is an entirely different matter, but rests upon the same general principle — the ultimate welfare of the people. Suitable highways are absolutely necessary to all people, and the more free, intelligent and progressive a people become, the greater will be their demand for highways suitable to their development, and commensurate with their advancement. Such highways it is the duty of the State to establish, and with this duty go the corresponding powers necessary to its performance. Such powers, however, although ample and largely within the discretion of the legislative body, can not ignore the vested right of the citizen. Such rights on the other hand are not permitted to lie "in cold obstruction across the pathway" of the State, but (902) are subordinate to the paramount right of eminent domain. By condemnation with compensation, any right of property can be taken for a public purpose. We do not deny the right of the State to improve floatable streams, including the one in question, and to regulate their use, even if it interferes with the natural easement hitherto enjoyed by the public. When, however, one is deprived of his vested easement, which is the result pro tanto if he is made to pay for its use, he must be given some compensation in money or in kind. This compensation must be actual and present, and not merely speculative and prospective. Where the easement is in the nature of a toll, the benefit must be contemporaneous and reasonably coextensive with the payment. When we say that the State can do this, we mean it can do so directly or by means of such agencies as it may deem best suited to accomplish its public purposes. We do not deny the power of the State to entrust such work to a private individual or corporation, nor the right of such private party to charge such reasonable tolls as would return a fair profit; but there may be some doubt whether public agencies would be entitled to any profit beyond the interest on the investment and the cost of maintenance, operation and repair. On this point we express no opinion, as it is not before us in our view of the case. All that is now before us is the judgment of the court below continuing until the trial of the action the injunction restraining the sheriff and tax collector "from proceeding in any way under the assessment against the plaintiffs mentioned in the pleadings, and also from interfering with the floatage of logs by the plaintiffs down said Catawba and Johns rivers by the assessment or imposition of toll, or the levying or collecting of any tax or toll on the property of the plaintiffs, or (903) by the sale of any property of the plaintiffs under any assessment or otherwise." The learned counsel for the defendant is mistaken in supposing that *Page 583 we overlooked the case of Commissioners v. Lumber Co., 116 N.C. 731, to which we presume he refers. That case was cited in the dissenting opinion, and referred to in the concurring opinion, but is not involved in the decision of this case. The act under consideration does not affect "the principle that the right of floatage in the public is superior to any right of riparian proprietors," but attempts to deprive both the public and the riparian owners of their free right of floatage without compensation to either. Nor do we deny "the power of the Legislature to provide for levying tolls or assessments for keeping in order public highways used for floatage." "Keeping in order" implies that the highway has previously been put in order; that is, that substantial improvements have already been made, from which the user has derived a substantial benefit. In such cases, the toll is regarded as the equivalent of the benefit already received. Our opinion not only recognizes the right of floatage as existing in the public, but protects that right against the encroachment of the State. At the same time, we admit the right of the State, directly or through proper agencies, to improve the stream whenever it sees fit to do so, and to charge a just equivalent for the benefit enjoyed as the result of such improvement. Upon the facts of the case as presented to us, and the legal principles above set forth, we think the judgment should be affirmed. The petition to rehear is therefore dismissed. Petition dismissed.