Sherman v. Buick

32 Cal. 241

Opinion

By the Court, Sanderson, J.:

The plaintiff sues to recover damages for an alleged trespass upon his land. The defendants justify the supposed trespass by virtue of certain proceedings had by the Board of Supervisors of Santa Clara County, in which the land is situated, under the provisions of certain Acts of the Legislature in relation to public and private roads. (Stats. 1861, p. 389; 1863-64, p. 248.) The proceedings in question were had under the provisions of the statute which relate to the laying out and establishing of what are there called private roads. (Stats. 1861, p. 392, Sec. 7.) The plaintiff demurs to the answer of the defendants, so far as it relates to the action of the Supervisors, and makes the points: First—That the statute in question, so far as it relates to what are there called “ private roads,” is unconstitutional and void ; and Second— That the answer fails to show a compliance with the provisions of the statute in laying out and establishing the road in question. These points were held to be good in the Court below and the defendants have brought them here.

Section seven of the Act of 1861, which is made applicable to Santa Clara County by the Act of 1863-64, above cited, (Sec. 2,) provides that “ any person or persons desiring to establish a road for private convenience, and which is not intended for the travelling public generally, may do so by consent of the parties owning the land affected thereby,/but such consent, together with a specific description of the proposed private road, and the conditions in reference to gates, inclosures or other matters agreed upon, shall be filed with the Board of Supervisors or their Clerk; and upon the filing of such consent and specific description, such road shall be recorded in the road record of the county, and shall become to all intents and purposes a private road, for the use of the parties interested; provided, that the parties for whose benefit such roads are established shall keep them in repair at their own expense, except that they may, by special consent of the Roadmaster of the district, spend the amount of their poll tax upon such private roads, and for such services they shall receive a certificate from the Roadmaster, on the same conditions and for the same purposes as provided for labor on public roads.”/Thereafter the statute proceeds to provide how such roads may be established when the owner or owners of the land will not consent. The proceedings are the same as in the case of public roads, except that only one petitioner is required. With the mode and manner, however, we are not called upon to deal, at this stage of the discussion, and sufficient has been already stated to show the character and intent of the statute—the first ground upon which it is claimed to be unconstitutional being not that it does not provide compensation for the land taken for the purposes of the road, but that it proposes to take private property for private use, which cannot be done, as claimed by counsel for respondent, even though compensation be made.

If, as claimed by counsel for the respondent, this statute was designed, or has the effect when enforced, to take the private property of A., without his consent, and apply it to the private use of B., though upon just compensation being made, we should not hesitate to declare it unconstitutional, as being" an attempted exercise of power which thé Legislature does not possess. In that view it would amount to a legislative sale and conveyance of A.’s property to B., or an easement in it, which amounts to the same thing, without the consent of the former. If such power is not denied to the Legislature in express terms, in the Constitution, it is by implication as satisfactory and direct as any express prohibition could have been. The acquisition, possession and protection of property are classed among the inalienable rights of all men. (Art. 1, Sec. 1.) To acquire and hold property is a natural right, with which the Legislature cannot interfere, except by virtue of some express provision of the Constitution, which is framed for the protection and not the destruction of the natural right of every one to life, liberty, property and the pursuit of safety and happiness. (Art. 1, Sec. 21.) No man can be deprived of life, liberty or property without due process of law (Art. 1, Sec. 8); and due process of law means something more than mere legislation. In this respect property is put upon the same level with life and liberty, and the Legislature has no more power over the former than either of the latter, except as expressly provided in the Constitution, when it is taken for jmblic use or in the exercise of the power of eminent domain. Hence, if the legislation of this State in reference to private roads is constitutional, it is because it is an exercise of the power of eminent domain or the right which the Government has to take private property for public use upon making just compensation therefor.

Legislatures sometimes seem to mistake the powers with which they are vested, especially their nature and method of working, and hence not unfrequently, in the exercise of them they depart so widely from apt and proper modes as to cast a doubt upon their existence. ■' Sometimes they seem to assume or declare results which do not necessarily follow. Sometimes they assume erroneous conditions as the foundation of a power which they are about to exercise. Sometimes they mistake, or, at least, give a wrong or inapt designation to the objects which they seek to attain. Hence they sometimes appear, upon first impression, to be dealing with an unknown, when, in fact, they are dealing with a familiar and universally acknowledged power. They handle it, however, with so much awkwardness, or with such apparently imperfect knowledge of the true ends and purposes which it was designed to accomplish, and its modes of working, as to create in the mind of the casual looker-on the idea that they are working a power which is denied to them by the Constitution instead of the reverse.

With no power, of which they are possessed, do they seem to be less familiar, or to handle less awkwardly, than that of eminent domain. At times they wield it in such a manner as to seem to apply it to objects not within its reach. At times they fail, or seem to fail, to distinguish accurately between public and private ends, and if their terms and language be alone consulted, to pervert the power to uses to which it cannot lawfully be applied. Thus, by distinguishing or classifying roads or highways by the words “ public ” and “ private,” and providing different modes for their establishment and support, and declaring that the latter class shall be, to all intents and purposes, private roads for the use of parties interested,” they give color to the idea, that in their judgment, they have the power to create and are creating a road for private use, and to make and are making it the private property of certain persons to the exclusion of all others. If we look solely at their language without regard to the true nature of the only power which they possessed in the premises, an impression that the property of the owner of the land is taken for private use is created, for there is an apparent if not an express appropriation of it to the use of certain parties to the exclusion of all others. But it is well understood that the language of the Legislature is to be read in all cases by the light of the Constitution, with the spirit of which it is always presumed to be consistent. In construing it, it is the duty of the Courts to look to the true object and to trace out the true result, and not to be guided by those which the Legislature has mistakenly assumed or declared; and if they be found to be consistent with the Constitution, or within the acknowledged power of the Legislature, to uphold the Act as to its legitimate results and to discard all else. Thus : If the Legislature provides for the laying out and establishing of a certain class of roads or highways which from any cause, whether for the purposes of classification or otherwise, is denominated “ private,” or as being for the especial benefit of certain individuals upon whom the burden of cost and repair is cast, instead of the public at large, it by no means follows that such roads become the private property or estate of the individuals designated, 'even if the Legislature has so provided in express terms; for where roads are laid out, whether mainly for the accommodation of particular neighborhoods or individuals or not, it must be understood as having been provided for the use of every one who may have occasion to travel it, and hence as being public. In other words, the Legislature has no power to lay out and establish “ private roads,” in the sense that they are to be the private property of particular individuals or that they are what are denominated “ private ways ” at common law; and hence, so far as they undertake to do so their action is simply null and void ; but the road so laid out and established becomes a way over which all may lawfully pass who have occasion, and therefore public; and the language employed by the Legislature, so far as it relates to the legal character of the road—as public or private—must be understood as being used for the purpose of distinguishing it from all other roads, or in general terms, for the purposes of classification.

In accurate legal contemplation the term “ private road ” involves a contradiction. The term is unknown to the common law. It has its origin in American legislation. It cannot be regarded as having been employed as a substitute for the word “ way,” as used at common law. There was no reason or excuse for such a change in legal terminology. It must be taken, therefore, as an invention, and as having been put to use originally merely for the purposes of demonstration—as giving a name to a certain class of roads differing from another and larger class in respect to the steps to be taken in establishing them in the first instance and of keeping them in repair afterward—differences founded upon the just idea that roads, though public, which mainly subserve the convenience of particular individuals should be made a charge upon them instead of the public at large. For the purpose of distinguishing between such roads and those which subserve equally the interests of all, a name for the former was needed, for the legal term “ highway ” was alike applicable to both; hence the terms “ public ” and “ private ” roads. The latter is not to be understood as being synonymous with “ ways ” at common law, but as indicating a particular class of highways or public ways over which any one may pass without committing trespass.

To lay out and establish roads or highways is exclusively within the power and control of the Government. To do so is one of its most important and onerous duties. Roads or highways, over which the Government has supervision and which it is bound to provide, include not only the chief and principal thoroughfares which traverse the country, but also those of less general use which are lateral and serve to connect neighborhoods and individuals with the main arteries of trade and travel. Whenever the necessities or the convenience of the public, which includes everybody, requires a" road, for the purposes of trade or travel, it is the duty of the Government to provide one, and, if necessary, to take private property for that purpose, upon making just compensation. Whether a given road will subserve the public need or convenience is a question for the Government alone to determine. The Courts have nothing to do with it. Should the Legislature be of the opinion that the general welfare and prosperity of the people would be promoted by the construction of a system of roads which would open a pathway from every man’s house or farm to the main arteries of travel and the marts of trade and commerce, there is nothing to prevent them from providing that such roads may be opened. The ultimate decision of the question, whether a given road will subserve the public need or convenience, must rest somewhere, and it is wisely left for the Legislature to determine in such manner as they may provide. That the Legislature of this State is of that opinion, and have so provided, is apparent from the legislation under review. In the plan devised by them they have for the purposes of classification divided roads into “ public and private,” and provided how they may be laid out and established and how maintained. The former are to be laid out and maintained at the expense of the county or road district at large, and are therefore called “ public.” The latter at the expense of such persons as are more especially and directly interested in them, and therefore called “ private.” But the latter are as much public as the former, for any one can travel them who has occasion—and no more can be said of the former. Whether a way be public or private does not depend upon the number of people who use it, but upon the fact that every one may lawfully use it who has occasion.

Had the word “private" and other words of like import been omitted from the statute, and instead thereof it had been provided “ that any person or persons who desire a road to be laid out and established leading from their residences or farms to the main roads leading through their section of the country, and it shall appear that such road will be more to his or their benefit and convenience than the public at large, the Board of Supervisors shall have power to lay out and establish the same, provided," etc., there could be no doubt as to the validity of the Act. In legal effect there is no difference between such language and that which has been in fact employed.

The case of Taylor v. Porter, 4 Hill, 140, which declares a contrary doctrine, stands comparatively alone, so far as we have been able to discover, and does not command our assent. Mr. Justice Bronson, by whom the majority opinion was delivered, construed the Hew York statute as creating “ a right of way,” in the common law sense of that term, in favor of one man over another man’s land, and not as authorizing the laying out and establishing a species of highway, and as a matter of course, in view of that reading, held the Act to be unconstitutional. The language of the Hew York statute on the question of “ private or public ” was much stronger in favor of the former than ours. It provided that the road, when laid out, should be for the use of the applicant, his heirs and assigns, and that the owner of the land through which it passed should not be allowed to use it unless he had signified his intention to do so before the damages were assessed. The Court was certainly correct in holding in effect that the Legislature did not possess the power to impress those conditions upon the road. To do so was to convert, or to attempt to convert the road into a mere common law right of .way. But, in our judgment, the Court ought not to have held the entire Act void on account of those conditions, but void as to the conditions only. As to the question which was in fact discussed in that case and decided, there cannot be two opinions. If we assume that the New York statute, or our own, has the effect to create a common law right of way merely in favor of A. over B.’s land without B.’s consent, the argument' ends where it commenced, for it is too plain for argument that the power does not exist. But if we read the statute in the mode already suggested, it is equally plain that the Legislature has not usurped a power which it does not possess, but has merely departed from what is the more general and usual mode of laying out and establishing roads, and, in language which may be calculated to mislead, has adopted another which finds its warrant in the peculiar circumstances of a particular class, and for the purpose of distinguishing between the two classes has called one public and the other private.

Our conclusion is that the Act in question is not unconstitutional. (Metcalf v. Bingham, 3 N. H. 459; Allen v. Stevens, 29 New Jersey L. R. 509; Brewer v. Bowman, 9 Geo. 37; Harvey v. Thomas, 10 Watts, 63; Pocopson Road, 16 Penn. State R. 15 ; Hays v. Risher, 32 Penn. State. R. 169.)

Roads, leading from the main road which runs through the country to the residences or farms of individuals, are of public concern and under the control of the Government. Taking private property for the purposes of such roads is not a taking for private use. They are open to every one, who may have occasion to use them, and are therefore public. Their character as public roads is unaffected by the circumstance, that in view of their situation, they are but little used and are mainly convenient for the use of a few individuals, and such as may have occasion to visit them socially or on matters of business, nor by the circumstance that in view of such conditions the Legislature may deem it just to open and maintain -them at the cost of those most immediately concerned instead of the public at large. The object for which they are established is none the less of a public character, and therefore within the supervision of the Government. To call them “ private roads ” is simply a legislative misnomer, which does not affect or change their real character. By-roads is a better name for them and one which is less calculated to mislead the uninitiated.

The point made by the respondent, to the effect that the statute is unconstitutional, because it does not provide compensation for the land taken for the purposes of the road, is not tenable. The law applicable to roads in Santa Clara County is found in the Act of the 28th of March, 1864, (Statutes, p. 248,) and sections one, two, three, seven, eight, nine, eleven, twelve, fourteen, seventeen, eighteen, nineteen and twenty of the general Act of the 16th of May, 1861. (Statutes, p. 389.) The defect in the Act of 1861, noticed by us in Curran v. Shattuck, 24 Cal. 430, is obviated in the Act of the 28th of March, 1864, (Secs. 3, 4, 5, 6,) where provision is made for the assessment and payment of damages.

The demurrer, however, was properly sustained upon the ground that the matter of the plea or defense of justification is insufficient. It is not necessary to notice all the points made by the respondent under this head. It is well settled that a party who claims a title or right, of the character set up by the appellants, must show a strict compliance with all the provisions of the statute. This the appellants have failed to do. The statute, among other things, requires that the chainman and marker employed in the survey by the Viewers shall be sworn before proceeding with the survey. It does not appear from the answer that this was done, nor does it appear that the appellant complied with the order of the Board of Supervisors in respect to gates. The Legislature has provided what shall be done in those respects, and the Courts cannot excuse a non-compliance therewith upon the ground of immateriality.

Judgment affirmed.

Mr. Justice Rhodes did not express any opinion.