Venard v. Cross

8 Kan. 248

• Court: Supreme Court of Kansas
• Decided: July 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

This was an action brought by the plaintiff in the district court to abate a mill dam, and perpetually enjoin defendant from maintaining it. Upon the final hearing judgment was rendered for defendant, and the plaintiff brings the case here on error.

l. public nuiinjury; pui»vate actFons. Two grounds for relief are alleged in the petition; first, the flowing by the erection of the dam of land owned by plaintiff; and second, the flowing of a ford, across the Neosho River, so as to make it impassable, upon which ford and across which river was a public highway duly and legally established, and plaintiff’s only means of ingress and egress to his lands. To the second of these grounds only, the first being unquestionably good, need our attention be directed; and on its sufficiency hinges the materiality of the testimony rejected. It is claimed “ that the injimes and inconveniences complained 01 by plamtiii are such only as are suffered by him in common with every citizen in the community through which the road inns,” and that therefore, the injuries being to the public, the public only can maintain an action to restrain them. That the injury complained of is a public nuisance, an obstruction of the public highway, is obvious. That where only that fact appears, no private person can maintain an action to abate the nuisance, is -equally clear. Where a nuisance or a wrong is public, the public must move to abate, prevent, or punish. When private, the person injured may proceed. Often, however, an injury is both public and private. Then relief may be afforded at the instance of either the injured public, or the injured individual. A larceny is committed. The public is wronged by the infraction of its laws, and the disturbance of its security, and it may prosecute for the crime. The individual is injured by tbe loss of bis goods, and be may .sue to recover tliem or tlieir value. Both actions may proceed at the same time. So is it with a nuisance. It may be a wrong to the community in general, and a particular injury to an individual. This particular injury to an individual enables him to maintain an action. Thus in Hughes v. Heiser, 1 Binney, 463, it was decided that where one dams a river that is a public highway, and the plaintiff coming down with rafts is prevented by the dam from descending the river, the interruption is actionable, for it is a consequential injury to his interest and rights of property. In the note to Ashby v. White, 1 Smith’s Leading Cases, 364, it is said, “ There are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another in the Imicl of injury, though one may be much more injured than another in degree. In such a case the mode of punishing the wrong-doer is by indictment and by indictment only. Still, if any person have sustained a particular injury therefrom, beyond that of his fellow citizens (and differing in kind,) he may maintain an action in respect of that particular damnification. Thus, to use the familiar instance put by the text-writers, if A dig a trench across the highway, this is the subject of an indictment; but if B fall into it, then the. particular damage sustained by him will support an action.” Apply these principles to the allegations in the petition. It is alleged that the erection of the dam' making the ford impassable obstructs the highway. So far. it shows simply a wrong to the. public, for which it alone can maintain an action. But the 'petition goes further and alleges that this highway is plaintiff’s “only means of ingress and egress ” to his land. Obstructing such highway, therefore, prevents his access to his lands. Here is disclosed a particular injury to plaintiff, one differing not merely in degree, but also in kind, from that suffered by community in general. It is not that he rises this highway more than others, but that the use is of a particular necessity to him, affording him an outlet to his farm. It is to him a use and a benefit differing from those enjoyed bvthe public at large. Obstructing the highway destroys that particular use and benefit. lie therefore may maintain his individual action.

a. Highway; retory ’ require! menta. 3 Notice to i°and?ls ° In support of his allegation of the existence of a highway duly and legally established across said ford, plaintiff offered the record of the proceedings of the board of county commissioners, which was rejected; and this brings us to a consideration of the second question presented, that is, the rejection of testimony. The record presented showed that in 1867 proceedings were had before the board of county commissioners of Coffey county which resulted in an order locating and opening for travel a j>ublic highway across said ford. To the validity of these proceedings several objections are made. The law in force at the time was Ch. 112 of the laws of 1864, entitled “An act in relation to Roads.” The objections urged by counsel for defendant in error are, that the record fails to show, first, the giving of the notice required by § 4; second, the view and swrvey required by § 5, and third, the report, plat and swrvey required by § 6 of the statute just named. Other supposed objections to this record are discussed by counsel for plaintiff ■ in error in their brief, but as they are not noticed by counsel for defendant in error we shall consider them as abandoned, and not stop to examine them. Let us look at the objections in the order they are made. And first, the record is silent as to the notice required by section four. It must be remembered that this is not a controversy between the public and an individual, the former seeking to take from the latter a portion of his land for public use as a new highway. In such case the individual may well insist that every step be shown to have been taken before he is compelled to surrender his property. Especially may he insist upon the proof of those requirements of the statute which are designed mainly for his protection. But in this case the controversy assumes a different phase. The highway is opened. The public are using it. The owners of the land appropriated, have consented to such use. And now an individual obstructs such .highway and prevents its use. True,- he does not attempt to appropriate tlie whole length of the highway. But a highway is very like a chain; one link gone, the rest is comparatively worthless. It is not the case of the public seeking to take private property for public use, but that of an individual seeking to take public property for private use. Eor although the mill-dam act can be sustained only on the ground that a public benefit is sought, yet a highway is public per se, and a mill public only by construction of law. Now if the owners of the land have consented to the appropriation of their land for purposes of a highway, and the public have used such land thus appropriated as a highway, it is with ill grace that a stranger comes in and claims that this, as it were, a quasi contract between the public and the owners of the land, is good in favor of neither. The fact of the existence of a highway may be proved without any record by evidence of acts of the owner equivalent to a dedication of his land to such use, and an acceptance thereof by the public. True, this action is between individuals; but it arises out of an obstruction by the defendant of that which the plaintiff in common with other citizens was using as a highway. And if the public and the owners of the land are satisfied to consider it one, a stranger has little standing in court when he says it is not. Here the public acting through the proper authorities located this highway and ordered it open for public travel. It was opened. The public were using it for travel. The owners of the land were not contesting*, and by their claiming no damages were consenting to such location and use.

Preserving ana filing notice. Said §4 (ch. 112, laws of 1864; ch. 89, Gen. Stat., 1868,) requires two notices, one to the land-owners, and one to the viewers and surveyor of the time and place fixed by the county board for the survey. The object of the first is to give the land-owner an opportunity to make his claim for damages; and the other, to secure the meeting of the officers appointed. ^ is ma(ie the duty of the principal petitioner to gj[ye this notice. It is nowhere made his duty to preserve such notice, or file proof of service anywhere. These notices are to be given after the county board has made its order directing the survey. Prior to making this order the statute, in previous sections, provides for filing a petition, advertising notice thereof, and giving of bond. After the talcing of these steps the county board acquire jurisdiction of the matter, and the right to proceed. How far a failure to comply with every subsequent requirement of the statute would affect the right of the board to compel the opening of the road it is immaterial to this case to determine, and we express no opinion thereon. If the land-owners have received no notice as required by section four, unquestionably they have a good claim against the county for damages. Perhaps also they might under some circumstances contest the location and opening of the road. But if they are satisfied, no one is authorized to claim or contest for them. More than that, it will be seen that the notice is only to be given to the landowners, or their guardians, Tesidwicj m the cov/nty. For aught that appears in the case, all the land-owners were non-residents of the county, unless it be Job Throckmorton, and he was principal petitioner and the one to give notice. The order of the county board fixed the time for the meeting of the viewers and surveyor. Notice to them of such time would be to secure there attendance. But if they attended without such notice, a failure to give it would hardly vitiate the proceedings. The report shows that two of the viewers and the surveyor attended. It nowhere appears that the third was ever notified or attended. If as a matter* of fact he actually had no notice it would in many cases become a serious if not a fatal defect; but as we before remarked the law nowhere requires proof of service of notice to be filed, recorded or preserved; and we cannot insist that more be done than the law requires. The jurisdiction of the county board to proceed having once been shown, we must presume in favor of the regularity of the subsequent proceedings in matters where no record is required. The second objection we think not well taken. The report says that the viewers with the county surveyor did “ proceed to view the route named in said petition, and have caused the route located by us to be noted by suitable marks.” This shows sufficiently the making of the view and survey required by section five.

3 Report— ty two81^ ers sufficient. The third and last objection is also not well taken. The fact of the survey is shown by the report. The plat of the road and the field notes of the survey signed by the county surveyor are attached to the report. But it is claimed the report is void upon three grounds: “lst.-That it is signed by only two of the viewers. 2d.-That no notice, as required by section four of the road act, was ever given, gq -That no reasons are given by the viewers in their report why such road should be established.” The second of these grounds we have already considered. The first is settled by the statute: “ words giving a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.” Comp. Laws, ch. 188, § 1, 4th clause; (Jen. Stat., ch. 104, § 1; Norton v. Graham, 7 Kas., 166. In regard to the third, the viewers in their report say the route is practicable, and recommend its adoption. This is a sufficient statement. No elaborate presentation of reasons pro and oon is required.

4. Right to flow teStp Mgií’ way. We think the learned judge erred in rejecting the record. This would compel a reversal of the case, for even if the mill-dam act be constitutional, and the proceedings under it regular, the right thus acquired of flowing certain lands would hot can7 w^b it the right to obstruct a highway. The party obtaining the right of flowage takes nothing by implication. He is held to the letter of the bond. Nor is there any provision in the mill-dam act-by which he can acquire the right to obstruct a highway. The purely public use of a highway is paramount to the quasi public purpose of a mill. Where the building of a dam overflows and obstructs a highway, the right to proceed with the dam can only be secured by proceedings vacating the highway, or by taking such steps, either raising the roadway or building a bridge, as may be necessary to secure the free and unobstructed use of the highway.

15. MSllDam Act tioimfana" vaM.j The remaining question is as to the constitutionality of the mill-dam act, and. the regularity of the proceedings had by defendant in error under it. This act may be found The first sec-M the General Statutes, page 576. tion, which contains the substance of the act reads as follows:

“ Sect. 1. "When any person may be desirous of erecting and maintaining a mill dam upon Ms own land, across any water course, and shall deem it necessary to raise the water by means of such dam, or occupy grounds for mill-yard, so as to damage, by overflowing or otherwise, real estate not owned by him, nor damaged by consent, he may obtain the right to erect and maintain said dam by proceeding as in this act provided.”

*

The remaining sections prescribe the steps to be taken. They provide for the appointment of commissioners, the assessment and payment of damages, and for appeals from the award of the commissioners. This act practically takes from one individual the use of his property and gives it to another. It is defended on the ground that thereby a power of great value is utilized, which otherwise would be wholly lost, and because the use by the latter is of far greater public benefit than that of the former. The flowing of water furnishes one of the strongest, most manageable, and most serviceable of natural forces, and has been resorted to in all ages of the world as one of the greatest helps to human industry. But flowing through the ordinary channel of a stream, it is comparatively an idle, valueless, wasted power. OMy when its flow is checked, regulated, controlled, does this power become a helpful servant of man. This is accomplished ordinarily by the erection of a dam. But the building cf the dam frequently results in the (overflowing of land situated above the dam. The use of the land thus overflowed is sacrificed to the acquisition of the iwater-power. And when the land overflowed belongs to a party other than the builder of the dam, the former loses the use of his land that the latter may obtain the use of the waterpower. Of the benefits resulting from thus utilizing this power it is needless to speak. In some communities it has been and still is an incalculable blessing. Judge McCurdy, in Olmstead v. Camp, 33 Conn., 551, says: “It would be difficult to conceive a greater public benefit than garnering up the waste waters of innumerable streams and rivers and ponds and lakes, and compelling them with a gigantic energy to turn machinery, and drive mills, and thereby build up cities and villages, and extend the business, the wealth, the population, and the prosperity of the State.” Here with us in Kansas, owing to the physical conformation of the State and the general use of steam as a motive power the comparative value of water power, secured by mill-dams, will probably always be slight. Yet in each particular instance the same reasoning which sustains the Mill-Dam Acts of Massachusetts and Connecticut will sustain that of Kansas. The benefits resulting to the community at large from thus utilizing an otherwise wasted power are so great that it is deemed fair to consider the securing of it a public purpose. Angelí in his Treatise on Watercourses, § 487 says: “ It seems however to be abundantly well settled that it is sufficiently for the public good; for the statutory law, of which we have given an account, has been too long engrafted in the jurisprudence of the states in which it has been enacted, revised and amended through a long course of legislation, and too steadily sustained by judicial sanction, to be now declared not to be within the eminent domain of the government. More especially should this long and uninterrupted public acquiescence be deemed conclusive, when it is considered that the line of demarcation between a use that is public and one that is strictly and entirely private, is a line not easy to be drawn.” Pursuing the line of argument adopted by this court in the case of the Board of County Com'rs of Leavenworth Co. v. Miller, (the railway bond case, 7 Kas., 479,) we arrive at the same result. Eor at the time of the adoption of the constitution acts similar to this had been sanctioned by the legislatures, executives, and courts of many of the states, and almost universally upheld. And if the people had not intended that the legislature of this State should exercise a like power they would have imposed a clear limitation. Without pursuing the discussion any further, we hold the Mill-Dam Act one within the scope of the legislative power granted by the constitution to the legislature, and not in conflict with the terms of that instrument. It is perhaps no more than right to say that, regarding this question simply in the light of principle, one member of the court at least, dissents entirely from the reasoning which would uphold the validity of this act.

In regard to the regularity of the last proceedings had by defendant under said act, it is sufficient to say that we consider them regular and conforming to the statute.

For the reasons heretofore given, the judgment of the court below will be reversed, and the case remanded for further proceedings.

All the Justices concurring.

[* This section was amended by ch. 47, Laws of 1869, p.132; hut the amendment does not affect the question here decided. — Reporter.]