Norton v. Peck

By the Court, Wiiiton C. J. We shall confine ourselves in the disposition of this case, to the matters presented by the first and third causes of demurrer, set out in the demurrer of the plaintiff below to the special plea of justification pleaded by the defendant. The first cause of demurrer is, that there is no allegation in the plea, that the necessity of the road was first established by the verdict of a jury. This objection to the plea is founded upon section two of article eleven of the Constitution of this State, which is in these words: “ No municipal corporation shall take private property for public use against the consent of the owner, without the necessity thereof being first established by the verdict of a jury.” It is contended by the counsel for the defendant in error, that the plea of justification, pleaded by the plaintiff in error, in the court below, admits that the locus in quo was the property of the plaintiff, and that it was taken by the town of Burlington for the use of a highway; he contends that that use is a public use, and that the town of Burlington is a municipal corporation, within the meaning of the clause of the Constitution above recited. Since he concludes, that [721] as the plea does not allege the fact, that the necessity' of the highway had been determined in manner pointed out in the Constitution, before the property was taken, it fails to show a justification of the tree-pass. The question presented does not admit of an easy solution. That land which is taken and used for a common highway, is devoted to a public use, does not admit of a doubt, but it is not clear that the towns organized throughout the State for the ordinary purposes of township government, are municipal corporations in the sense in which those terms are used in the clause of the Constitution above quoted. The legislature has provided (Rev. Statutes, chapter 12, sec. 1) that each organized town shall be a body corporate, and shall have power to purchase and hold real estate, and convey and dispose of the same; to appoint agents and attorneys ; to sue and be sued; to make contracts and to do many other things which natural persons can do. These are powers which properly belong to corporations. On the other hand, some of the usual powers of corporations are wanting ; they have no common seal with which to authenticate their acts; the mode in which they convey land is not that practiced by corporations usually. Rumford vs. Wood, 13 Mass. R. 193. They are called quasi corporations, '.or corporations mb modo only. Angell and Ames on Corporations, 19. We do not think that the legislature, by providing that they shall be bodies corporate, have very much assisted us in determining the question before us ; that question is whether the terms “ municipal corporations,” as used in this clause of the Constitution, were intended to embrace the towns which, at the time when that in [722] strument was adopted, were m existence in many parts of the State, with the same powers substantially ^hat towns now possess. Some light is reflected upon this question, by section two, of article seven of the Constitution, which gives the legislature power to establish municipal courts, and provides that the jurisdiction of each court in their respective municipalities shall not exceed that of the Circuit Courts in their respective circuits, <fcc. It will not be claimed by any one, we presume, that this clause of the Constitution' gives the legislature power to establish municipal courts in the several towns in the State, which are organized for the ordinary purposes of township government. The power of the legislature to establish these courts, is, as we suppose, confined to cities, and perhaps to incorporated villages. These, as they exist in this State, correspond much nearer to the idea expressed by the term “municipal,” than the ordinary towns organized in this country. For these reasons we are of opinion, that our towns organized for the purpose of township government, are not municipal corporations in the sense in which those terms are used in the clause of the Constitution in question, and that consequently the first cause of demurrer is not sustained. The third cause of demurrer is as follows : “ It does not appear from the record set forth, that any damages were awarded by the supervisors of the town of Burlington, sustained by the laying out of said highway.” This cause of demurrer to the plea is founded upon section thirteen, of the first article of our Constitution, which is as follows : “The property [723] of no person shall be taken for public use without just compensation therefor-” "We think it insurmountable. We have intimated above, that there can be no doubt, that land taken and used for a common highway, is taken for a public use. This proposition we deem so clear that no argument is required to prove it. As the plea of justification does not set out any appraisal of damages, caused by taking the plaintiff's land for the use of the highway, nor any payment or compensation made or assessed for it. in any way; the only remaining question to be considered, is, whether open, uncultivated and unenclosed land, like that described m the plea, when owned by individuals, is private property, within the meaning of the constitutional prohibition in question. Upon this question we have no doubt. If land thus situated is not so to be deemed, it would be di'f-ficult to prove that any property not in actual use by its owner, could be so deemed and taken. Wild, uncultivated land is taxed like other property ; it can be sold, and is conveyed by deed; it is frequently the subject of litigation in our courts, and trespasses upon it are punished by means of criminal prosecutions, and are the foundation of civil suits. All these proceedings are entirely inconsistent with the idea that such land is not property in the fullest sense of the term. If our statutes make no provision for ascertaining and paying the damages which the owners of such property sustain by the taking of it for public uses, it rests with the legislature to supply the defect. Unless some mode exists, we do not see how the property can lawfully be taken. [724] 7n disposing of this case, we do not decide that where a highway is laid out and opened by the authorities of a town, actual payment in money of the damages sustained by those whose land is taken for the highway is necessary before the property is taken. The fact that all the taxable property of a town is liable for the damage sustained, and constitutes a fund to which the owners of the land may resort for compensation as soon as the amount of their damage is ascertained, may supercede the necessity of actual payment. But upon this subject no opinion is given. We are compelled to hold the plea of justification bad, because it contained no averment that compensation was made to the plaintiff below, for his land taken for the highway, and no averment that any proceedings were taken by the authorities of the town to ascertain the value oí the land, so that he could receive it. The judgment of the court below must therefore, be affirmed.