Rutherford's Case

The opinion of the court was delivered, by Agnew, J. — The Act of 9th May 1871, P. L. 263, cannot be supported as a proper exercise of legislative power. It infringes the right of private property contrary to the true intent and meaning of the 9th article of the Constitution. We have had occasion lately, to discuss the inviolable character of this right, in the case of Washington Avenue, 19 P. F. Smith 352, and will not repeat what wa? then said. It is not competent for the legislature to impose unjust, arbitrary and grossly unequal burthens upon individuals even for a public purpose; and it is less so, when the purpose is private and the proceeding not in due course of law, and highly penal; as in the present case. Before discussing the objectionable features of the act, it is proper to distinguish it in some respects, that we may not seem to decide more than the case before us. This act applies to contiguous swampy lands belonging to several owners disjointly, and that have been once drained. There is nothing in the law, or in this proceeding, to indicate that the owners of such adjoining lands are under a common duty to drain their lands, either by contract with each other, or by reason of a burthen imposed, by a common predecessor in an entire title, under which all claim their several parts. We intend to express no opinion upon such a case, or to say that a remedy may not be provided for a specific performance of such a duty. In the opinion of the judge, it is said that the deeds, under which Mr., Henderson the defendant claims, require the drainage to be done. [86] This, however, is not set forth in the petition or other part of the record, and if it had been, it does not appear that there is any privity in title or covenant, between William Rutherford and the defendant, which would entitle the former to enforce the duty against the latter by action or otherwise. The presumption would be different, arising from the recital that he is the owner of the adjoining tract, disjoinily from the defendant. There is, therefore, nothing in the act or the case itself, except that these lands have been once drained; but upon what terms or whether a continuing duty exists, it does not appear. The case therefore stands simply in the attitude that a law commands an owner of land, by a several and unconnected title, at his own expense, to drain his land, for the private and individual benefit of his neighbor, in the manner and to the extent that commissioners shall direct, in a proceeding ex parte, and without notice to him, under a penalty of ten dollars a day, for his omission to drain it, after notice of the ex parte determination of the viewers, and a certain time elapsed. Without a duty to redrain set forth and proved, clearly no law can compel a several owner of land disjointly from others, to reopen drains at his own expense for the benefit of others. This is an interference with private right not within the grant of legislative power. True, it may be greatly to his neighbor’s advantage he should do this; and so it would be to keep an open way in good repair over his land, for his neighbor’s benefit, and which his neighbor had been using, but without title. But men purchase land with their eyes open, and if it be swampy or hilly, or stony, or otherwise less valuable than their neighbors’, they take it as it is, and cannot call upon their neighbors to help them to level it, or drain it, or pick the stones from it. Of course we do not refer to that police power of the state, which for the purpose of preserving the public health, or any other legitimate public necessity, enables the legislature to drain unhealthy swamps, or do other acts essential to the public welfare. The whole proceeding under this act is not only out of the course of the common law, but is out of the due course of law. It imposes a burthen without a duty, and without notice of the proceeding which imposes it; and for a refusal to bear it, it exacts a severe penalty without a previous trial. The law provides for the ex parte appointment of commissioners to view the land, determine whether it can be redrained, and report what drains shall be reopened with their dimensions, and a draft of the same. Of this no notice is required to be given. On the report of the commissioners, the court, shall immediately order a written notice to be served requiring the party to open the drain or drains through his lands as required by the commissioners, at his own expense and within a given time, not to exceed sixty days; and on failure to comply, then to pay a penalty of ten dollars a day, to be recovered in the name of the Common [87] ■wealth, before a justice of the peace, in sums of fifty dollars, one-half for the use of the petitioner, and the other half to he paid into the county treasury for the use of the poor. Thus the first thing the landowner may know, he finds himself made liable to an imposition without trial or hearing, and subjected to a heavy penalty for not submitting to it. This is not due process of law. It is contrary to the Bill of Rights, and he is deprived of his money or its worth, without the judgment of his peers, and not according to the law of the land. It is true, the judge says in his opinion, that Mr. Henderson had actual notice of the proceeding. But no notice appears in the record, and such notice referred to is merely accidental. It is not judicial notice, or notice by virtue of any legal order. There may be cases where the omission of a law to provide for notice might be supplied by judicial action under the general powers of the court. But then the notice should be the act of the court, and should judicially appear in the record. But such was not this case. No authorities need to be cited for the general principles thus stated, and if any be sought for, the ample brief of the learned counsel of the plaintiff in error will supply all that may be required. The judgment and order of the Court of Quarter Sessions are reversed and set aside, and the proceedings are quashed at the costs of defendant in error.