Pettibone v. Purdy

The opinion of the court was delivered by Royce, J. In the argument of this case it lias not been directly contended, that by legislative enactment the estate of one citizen can be taken, without compensation, and bestowed upon another. It would be no less vain to attempt the support of such a principle, [520] than ¡t ¡s needless, at this day, to expose its repugnance to the genius of our constitution and government, and to all consistent ¡c¡eas 0f civil liberty or the law of property.- Neither can it be admitted- that property may be so taken for public use. It is only upon an equivalent, previously paid, or secured by pledge of the public faith express or implied, that private property can be made subservient even to the exigencies of government. The effect to be given to the statute under consideration must therefore depend on the extent of those rights which are left to the proprietor, when a highway is laid and established through bis land. And the rules of law on this subject, considered apart from the statute in question, are too firmly settled to admit of controversy. By the establishment of an ordinary highway, the public acquires but an easement in the land; the right of making, repairing, and using the highway, as an open passage or thoroughfare. Subject to this right the owner'of the'soil-retains, and may exercise all his lights of property therein. He may take from it stone, timber, and the like, which are not wanted for the support of the highway. And he may vindicate his qualified right of possession by action of trespass or ejectment, against those who attempt to appropriate the land to any other than this public purpose. From these principles it regularly follows, that when the highway is discontinued, the land becomes discharged of this servitude, and the owner is restored to his former and absolute right. We are not apprised of any statutary provisions,- previous to this act, by which these rules of general law are varied or controlled. No statute had directed payment to be made for the land itself, on which a highway was laid, but only for damages occasioned by the existence of the highway, while it should bo continued. And in many cases even damages were not assessed; and where it was considered by the proper board that none were actually sustained, and where the land was unimproved. The original title of the plaintiff covered the land in dispute, whilst the conveyances under which the defendant held included no part of it, being expressly limited to the east line of the highway. Consequently, the plaintiff showed a clear right to recover, unless his title was divested, and transferred to the defendant, by the doing of the road committee in June 1825. Those proceedings were had under the second section of the act of Nov. t‘, 1800. That section in terms extends to two cases ; one, where the old and new road run through the lands of the same person; the other, where the old road adjoins the person’s land, through which the new road is laid. In the first' case the [521] statute may be executed without objection ; as the select men or committee have only to estimate the comparative injury, of having a highway established in one portion of the party’s land, instead of another. The act of setting over the old road would be available, as evidence that such road was discontinued. The same may be said with reference to one half of the old road, where it is owned in moities by adjoining proprietors. But here the old highway adjoined the defendant’s lands, and no part of it was originally his. It now becomes material to notice the fact, that the highway in question was established before the passage of this statute. The case states it to have been surveyed and laid out in 1799, on the site of a previous highway, which existed when the plaintiff’s ancestor conveyed to Chipman in 1786. And it is also to be remarked, that the first provision for setting over old roads was contained in this act of 1800. These previous highways must therefore have been established without reference to any such provision. If damages were assessed, they could not have been regulated by the contingency, that the land itself, at some after period, might be conveyed in this manner to another person. According to the principles already advanced, the plaintiff had, therefore, a permanent title and beneficial interest in the land, when it was set over to the defendant. It is not pretended that the statute contemplates a compensation to be made in these cases, or that any was in fact made in this instance. Here, then, was an attempt to transfer this estate of the plaintiff, against his will and without an equivalent. And should this be sanctioned, the operation of the statute might be stated thus: — Had this highway been situated elsewhere on the plaintiff’s land, he would have had the incumbrance of the road removed for nothing; whereas he now loses the land which was covered by it. To obviate this conclusion, the statute has beet) represented, as having merely provided a mode of continuing the public right in the land. And this, it is insisted, may be done by transferring it to an individual. But the right of the public was. only a right of way or passage; and it is absurd that this should be the subject of transfer to the defendant, leaving a permanent right of property in the plaintiff. We are brought to the result, that in this case the attempted transfer by the committee was imperative. That to give it effect would be to disturb a fundamental principle of private right-, which is recognized and secured by the constitution. The operation of the statute, upon highways, created since its passage, is left to be settled, when a proper case shall require it.. Judgment of the county court affirmed.