Crear v. Crossly

Mr. Chief Justice Walker delivered the opinion of the Court: This record involves ■ the same question which was presented and considered in the case of Nesbitt v. Trumbo, decided at January Term, 1866 (39 Ill. 110). In that case, after a careful consideration of all of the authorities referred to and to which we had access, it was held, that the ninety-third section of the act of 1861 (Sess. Laws, 263), authorizing the establishment of a private way over the land of another person, and against his will, is repugnant to the eight section of article thirteen, of our Constitution. Having then, fully considered the question, we deem it unnecessary to again discuss it. A distinction is, however, endeavored to be drawn, between the appropriation of a man’s land, by this proceeding, and a mere right of way over the land. The same distinction was presented but not discussed in the former case. The distinction, although ingeniously urged, we think cannot be maintained. It is true, that a right of way is but an easement, or servitude as it was called in the civil law. But when it shall' be acquired and held in the mode prescribed in this enactment, it, in effect, transfers the fee to the way. The act declares, that, when it shall have been located and the damages paid, the person for whose use it was established, his heirs and assigns, shall have the right to open the same, and have the right of way upon the same forever. For all practical purposes, this amounts to a transfer of the land. The owner is deprived of its use and the other acquires its use perpetually. The transfer of the fee could do no more. The mere change of names does not alter the essential qualities of things. The condemnation of property for public use, and appropriation under the right of eminent domain, for highways, railways and canals, do not deprive the owner of his property to the same extent as would this enactment if enforced; as in those cases the property thus taken reverts to the former owner when it ceases to be used for the purpose for which it was condemned, while this section gives it to the person having it condemned and to his heirs and assigns perpetually. The question of a way of necessity does not arise upon this record, and its discussion is therefore declined. What the rights of the parties may be under such a claim will be determined when the question shall be presented for determination. The judgment of the court below in holding that a valid right of way was not acquired under this provision of the statute, is affirmed. Judgment affirmed,.