Brewer v. Bowman , 9 Ga. 37 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

In May, 1848, Bowman obtained an order from the Inferior Court of Bibb County, to establish a settlement or private way, from the Forsyth road to his plantation on the Ocmulgee river.

This road passed over the land of Thos. A. Brewer, who obstructed the use of it by the erection of a gate across it.

Bowman filed abill of injunction against Brewer, to restrain him from obstructing his road. Brewer answered the bill, and moved the Court to dissolve the injunction, which the Court refused to do; whereupon Brewer excepted, and now assigns the same for error here.

[1.] We distinctly recognize the Common Law principle, urged bj the defendant in error, that where A has a tract of land, surrounded by other lands of his own, and he grants the tract of land so surrounded to B, the grantee shall have a right of way to the land granted to him by A, over A’s land, as an incident to the grant; for otherwise, B could not derive any benefit from the grant. Upon such a statement of facts, B would be entitled to a right of way over the lands of A, from necessity. But the application for the injunction in this case, is not based upon this Common Law principle. The application for the injunction is founded exclusively upon the Act of 1834. Prince, 742. The question as to the constitutionality of that Act, is distinctly made by the record, and is, 'really, the only question in the case. We have endeavored to give it that consideration and reflection which its importance would stem to require, and the result of our deliberations is, that the Act of 1834, granting the right of private ways over the lands of other persons, without providing any just compensation, is in conflict with the fundamental law of the land, and therefore is unconstitutional. Young vs. McKenzie et al. 3 Kelly, 31. Doe ex dem. Carr vs. The Georgia Rail Road, I Kelly, 524. The Act in question makes no provision whatever for compensation to those whose property may be taken for the use of the road, and it has been insisted, that if it did make such provision, still, it would be unconstitutional, for the reason, that the private property of one citizen cannot be taken for the private benefit of another, even with compensation. According to our land laws, the territory of the State has been divided into small tracts, and granted to the citizens thereof. The land of the complainant is surrounded by the lands of other grantees, or those claiming under the original grantees, so that he cannot reach a public road, without becoming a trespasser. Hundreds of other citizens of the State are, probably, in the same condition. Now, upon what principle are public roads established? The answer is, for the benefit and convenience of the people who may-have occasion to travel over them, either to discharge their public duties, or to attend to their private interest.

But the complainant’s land is surrounded by the lands of other proprietors, so that he is excluded from any public road; he cannot get out to vote at elections, to perform jury or road duty, to perform either militia or patrol duty, to give evidence in the Courts of Justice, or to carry the productions of his farm to market. If his land contained a valuable coal mine, or other valuable mineral resources, the public would be deprived of the benefit of them, for the reason that such resources could not be developed by the owner, and carried to market, without becoming a trespasser. The public, too, have an interest that the lands of each citizen should be cultivated, and the produce thereof be distributed, according to the wants of the people. It would seem, therefore, that to have a private road, as contemplated by the Act of 1834, would not necessarily, in the view in which we have been considering the question, be exclusively for the benefit of the party applying for it, but that the public interest would also be promoted, by enabling every citizen to perform all the duties which are required of him by law, for the benefit of the whole community.

If it is competent for the Legislature to authorize rail road corporations, to take the property of the citizen lor the construction of their roads, on making just compensation therefor, upon the principle that \h.&public are benefited by the construction of such roads, it is difficult to understand why it is not also competent for-the Legislature to authorize the granting of private ways, in cases of necessity, upon just compensation being made to the owner of the land which shall be taken for that purpose.

In the former case, the corporation is benefited by the Legislative grant, and the interest of the public is supposed to result from the construction of the road. So, in the latter case, the individual is benefited by the Legislative grant of the private road, and the public interest must also be supposed to be advanced, for the reasons already stated, by enabling any citizen to perform all the duties required of him by law. In the case of the rail road corporation, the Legislature judges of the necessity of the public interest, to authorize the grant of power to take pivote property for the use of the road; why should not the Legislature also be permitted to judge of the necessity of the piblic interest, in granting. the power to take pivote property for private roads, upon just compensation being made therefor ?

In Taylor vs. Porter, (4 Hill’s N. Y. Rep. 140,) it was held by the majority of the Court, that private property could not be taken for a private road, even with compensation, and that an Act of the Legislature, granting the power to establish such road, was unconstitutional and void. In Pennsylvania, it has been held that the Legislature may authorize the laying out of private wrays, for the purpose of enabling citizens to reach the public roads. Harvey vs. Thomas, 10 Watt’s Rep. 63.

In Buckman. vs. The Saratoga Schenectady Rail Road Co. (3 Paige’s Rep. 73,) Chancellor Walworth states the doctrine upon this subject to be, that “ if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the Legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose.” See also Commonwealth vs. Breed, 4 Pickering’s Rep. 463.

. We have endeavored to show that the establishment of private roads, by the authority of the Legislature, is not exclusively for the benefit of the individuals upon whose application they may be so established, but that the public are also interested in every citizen having a right of way to and from his lands or residence. If we are right in this view of the question, then it would follow that if the Act of 1834 had made provision for compensation for the land taken for the right of way, the Act would have been constitutional.

This view of the question is strengthened by the consideration that the State of Georgia never could have intended to have granted any portion of her lands to her citizens, and that such grantees, or the assignees of such grantees, should be prevented from having the right of way over such granted lands, to perform all' the public duties which her laws require. But inasmuch as the Act of 1834 makes no provision, whatever, for any just compensation to the owner of the land over which the private road may be laid out, we feel constrained, in accordance with the principles settled by this Court, in Young vs. McKinzie et al. and in Doe, ex dem. Carr vs. The Georgia Rail Road Co. to adjudge that Act to be unconstitutional and void.

Let the judgment of the Court below be reversed.