
    Taylor vs. Porter & Ford.
    The statute (1 JR. S. 513, § 77 et seg.) authorizing a private road to be laid out over the lands of a person, without his consent, is unconstitutional and void. Nelson, Ch. J. dissented.
    The legislature can only exercise such powers as have been delegated to it, and when it transcends these limits, its acts are utterly void. Per Bronson, J.
    The effect to be given to a general grant of legislative power like that contained in Art. 1, § 1 of the constitution of this state, considered and discussed.
    The phrase law of the land, in Art. 7, § 1 of the constitution, imports a suit, trial and judgment according to the course of the common law, or in the established and usual mode of contesting individual rights. Per Bronson, J.
    So as to the phrase due process of law, in Art. 7, § 7 of the constitution. Per Bronson, J.
    Private property cannot he taken even for public use, without making just compensation to the owner.
    Trespass for breaking and entering the plaintiff’s close at Milton, in the county of Saratoga, on the 1st of May, 1841, and on divers other days and times &c., and digging up, subverting and carrying away the earth and soil, and breaking down, prostrating and destroying the plaintiff’s fence; and also for making and laying out a private road, through and over the plaintiff’s close, whereby he was prevented from having the use, benefit and enjoyment thereof, tb the damage &c. Plea in justification, that before the said time when &c., to wit, on the 18th of May, 1840, the defendants were and still are seised and possessed of a certain close contiguous and next adjoining to the plaintiff’s close, and on that day the defendants made application in writing to the commissioners of highways of the town of Milton, in which town the plaintiff’s close was situated, to lay out a private road from the highway adjoining the-plaintiff’s close, through that close to the close of the defendants. The defendants then alleged in detail the doing of the several things required by the statute for laying out private roads, and that the commissioners on the 24th of July, 1840, made an order in writing laying out a private road from the highway through the plaintiff’s close to the close of the defendants, a distance of 545 feet, and of the width of three rods, for the use of the said defendants, their and each of their heirs and assigns. The defendants then alleged that the commissioners caused a record to be made of the road, and averred in detail the proceedings required by the statute for assessing the plaintiff’s damages, and an assessment made on the 10th of March, 1841. The amount of the damages was not stated in the plea, nor was there any averment that the damages had been paid Or tendered to the plaintiff. By virtue of the several proceedings aforesaid, the defendants justified the entry &c. and the several acts complained of, doing no unnecessary damage to the plaintiff &c., and concluding with a verification Demurrer and joinder.
    
      G. H. Mumford, for the plaintiff,
    made two points, viz. : 1. That the statute authorizing the laying out of private roads was unconstitutional and void ; and 2. That the plea was bad for not averring a p?yment or tender of the damages. '
    
      Jf. Hill Jr. for the defendants.
   Bronson, J.

Every person liable to be assessed for highway labor, may apply to the commissioners of highways of the town in which he resides to lay out a road. Whenever application is made to the commissioners for a 'private road, they are to summon twelve freeholders of the town to meet on a day certain, of which, notice must be given to the owner or occupant of the land through which it is proposed to lae out the road. The freeholders, when met and sworn, ary - to view the lands through which the road is applied for, and if they determine that the road is necessary, they are to make and subscribe a certificate in writing to that effect, and the commissioners are required thereupon to lay out the road, and cause a record of it to be made in the town clerk’s" office. The damages of the owner of the land through which the road is laid, if not adjusted by agreement, are to be assessed by a jury of six freeholders of some other town, and are to be paid by the person applying for the road. u Every such private road, when so laid out, shall be for the use of such applicant, his heirs and assigns; but not to be converted to any other úse or purpose than that of a road. JVor shall the occupant or owner of the land through which such road shall be laid out, be permitted to use the same as a road, unless he shall have signified his intention of so making use of the same, to the jury or commissioners who ascertained the damages sustained by laying out such road, and before such damages were so ascertained.” (1 R. S. 513, § 54,77—79.) Th.e road is paid for and owned by the applicant. The public has no title to, nor interest in it. No citizen has a right to use the road as he does the public highway. He can only use it when he has business with the road owner, or some other lawful occasion for going to the land intended to be benefitted by the road. He can only justify an entry on the road, when he could justify an entry on the land on account of which the road was laid out. Even the owner of the land over which the road passes, unless he has given notice of such an intention before the damages are assessed, has no right to use the road for his own purposes; and if h.e does so, or if his fences encroach upon the road, the owner of the road may have an action against him. (Lambert v. Hoke, 14 John. 383 ; Herrick v. Stover, 5 Wend. 580.) In short, the road is the private property of the applicant. In the words of the statute, the road shall be for the use of such applicant, his heirs and assigns.”

This right of way is an incorporeal hereditament, in which the owner has an estate of inheritance. The owner of the land over which the road is laid has not lost the entire fee, but he has lost the beneficial use and enjoyment of his property forever. It is not, however, material to enquire what quantum of interest has passed from him. It is enough that some interest—some portion of his estate, no matter how small—has been taken from him without his consent. The property of A. is taken, without his permission, and transferred to B. Can such a thing be rightfully done 1 Has the legislature any power to say it may be done 1

I will not stop to enquire whether the damages must not be paid before the title will pass. The difficulty lies deeper than that. Whatever sum may be tendered, or however ample may be the provision for compensation, the question still remains, can the legislature compel any man to sell his land or his goods, or any interest in them, to his neighbor, -when the property is not to be applied to public use 'l Or, must it be left to the owner to say, when, to whom, and upon what terms he will part with his property, or whether he will part with it at all %

The right to take private property for public purposes is one of the inherent attributes of sovereignty, and exists in every independent government. Private interests must yield to public necessity. But even this right of eminent domain cannot be exercised without making just compensation to the owner of the property. (Const. Art. 7, § 6.) And thus, what would otherwise be a burden upon a single individual, has been made to fall equally upon every member of the state. But there is no provision in the constitution that just compensation shall be made to the owner when his property is taken for private pur - poses ; and if the power exists to take the property of one man without his consent and transfer it to another, it may be exercised without any reference to the question of compensation. The power of making bargains for individuals has not been delegated to any branch of the government, and if the title of A. can, without his fault, be transferred to B., it may as well be done without as with a consideration. This view of the question is sufficient to put us upon the enquiry, where can the power be found to pass such a law as that under which the defendants attempt to justify their entry upon the plaintiff’s land 1 It is not to be presumed that such a power exists, and those who set it up should tell where it may be found.

Under our form of government the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government, it can only exercise such powers as have been delegated to it ¡ and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, are utterly void; Where, then, shall we find a delegation of power to the legislature to take the property of A. and give it to B., either with or without compensation 1 Only one clause of the constitution can be cited in support of the power, and that is the first section of the first article, where the people have declared that “ the legislative power of this state shall be vested in a senate and assembly.” It is readily admitted that the two houses, subject only to the qualified negative of the governor, possess all “ the legislative power of this state;” but the question immediately presents itself, what is that “ legislative power,” and how far does it extend 1 Does it reach the life, liberty or property of a citizen who is not charged with a transgression of the laws, and when the sacrifice is not demanded by a just regard for the public • welfare 1 In Wilkinson v. Leland, (2 Peters, 657,) Mr. Justice Story says : “ The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least, no court of justice in this country would be warranted in assuming that the power to violate and disregard them—a power so repugnant to the common principles of justice and civil liberty—lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong and direct expressions of such an intention.” He added: “We know of no case in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.” (See also 2 Kent’s Com. 13, 340, and cases there cited.) The security of life, liberty and property, lies at the foundation of the social compact; and to say that this grant of “ legislative power” includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the govermment was established. If there was not one word of qualification in the whole instrument, I should feel great difficulty^ bringing myself to the conclusion that the clause under consideration had clothed the legislature with despotic power; and such is the extent of their authority if they can take the property of A,, either with or without compensation, and give it to B. “ The legislative power of this state” does not reach to such an unwarrantable extent. Neither life, liberty nor property, -except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power. Such, at least, are my present impressions.

But the question does not necessarily turn on the section granting legislative power. The people have added negative words, which should put the matter at rest. “ No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land; or the judgment of his peers.” (Const. Art. 7, § 1.) The words “by the law of the land,” as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the two houses, “You shall be vested with £ the legislative power of the state ;’ but no one 6 shall be disfranchised, or deprived of any of the rights or privileges’ of a citizen, unless you pass a stabiate for that purpose in other words, “ You shall not do the wrong, unless you choose to do it.” The section was taken with some modifications from a part of the 29th chapter of Magna Charta, which provided, that no freeman should be taken, or imprisoned, or be disseised of his freehold &c., but by lawful judgment of his peers, or by the law of the land. Lord Coke in his commentary upon this statute says, that these words, “by the law of the land,” mean “by the due course and process of law;” which he afterwards explains to be, “ by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.” (2 Inst. 45, 50.) In North Carolina and Tennessee, where they have copied almost literally this part of the 29th chapter of Magna Charta, the terms “ law of the land” have received the same construction. (Hoke v. Henderson, 4 Dev. 1; Jones v. Perry, 10 Yerger, 59; and see 3 Story on Const. 17. S. 661; 2 Kents Com. 13.) The meaning of the section then seems to be, that no member of the state shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation.

But if there can be a doubt upon the first section of the seventh article, there can, I think, be none that the seventh section of the same article covers the case. “ No person shall be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation.” In the Matter of Albany-Street, (11 Wend. 149,) where it was held that private property could not be taken for any other than public use, Chief Justice Savage went, mainly upon the implication contained in the last member of the clause just cited. He said : “ The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property shall not be taken from one and applied to the private use of another.” And in Bloodgood v. The Mohawk & Hudson Rail Road Co. (18 Wend. 59,) Mr. Senator Tracy said, the words should be construed “ as equivalent to a constitutional declara - tioh, that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation.” I feel no disposition to question the soundness of these views; but still it seems to me that the case stands stronger upon the first member of the clause : “ No person shall be deprived of life, liberty or property, without •due process of law.” The words <c due process of law,” in this place, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. It will be seen that the same measure of protection against legislative encroachment is extended to life, liberty and property ; and if the latter can be taken without a forensic trial and judgment, there is no security for the others. If the legislature can take the property of A. and transfer it to B., they can take A. himself, and either shut him up in prison, or put him to death. But none of these things can be done by mere legislation. There must be “ due process of law.” Perhaps the whole clause should be read together, (Matter of John and Cherry streets, 19 Wend. 659,) and then if it do not, as I have supposed, amount to a direct prohibition against taking the property of one and giving it to another, it con tains, at the least, an implication too strong to be resisted that such an act cannot be done.

Of course, I shall not be understood as saying that a trial and judgment are necessary in exercising the right of eminent domain. When private property is taken for public use, the only restriction is, that just compensation shall be made to the owner. But when one man wants the property of another, I mean to say that the legislature cannot aid him in making the acquisition.

This question is only new with us in its application to private roads. That a statute is unconstitutional and void which authorizes the transfer of one man’s property to another without the consent of the owner, and although compensation is made, was adjudged by this court in the Matter of Albany-street, (11 Wend. 149;) and again in the Matter of John and Cherry streets, (19 id. 659.) The same doctrine was held by the chancellor in Varick v. Smith, (5 Paige, 137 ;) and it was admitted by all the members of the court of errors who delivered opinions in Bloodgood v. The Mohawk and Hudson R. R. Co., (18 id. 9.) I might have contented myself with referring to these cases as settling the question; but in so grave a matter as that of declaring an act of the legislature unconstitutional and void, I wished very briefly to assign the reasons which had conducted me to that conclusion.

There cannot be a very great number of private roads in the state; arid as to most of those which exist, it is probable that the land owtiers have in one form or another consented to their use. And when we consider how liberally public roads have already been opened, and how easily they may be obtained when wanted, there cannot be many individuals who will be affected by our decision. But whatever consequences may follow, I am of opinion that a private road .cannot be laid out with-1 but the consent of the owner of the land over which it passes;

Cowen, J. concurred.

Nelson, Ch. J.

dissenting. I cannot concur in the opinion that the statute authorizing the laying out of private roads is unconstitutional and void. It was first enacted by the colonial legislature in 1772, and has been in force in the colony and state ever since—a period of about seventy years. (See 2 Laws of N. Y. 664, § 19, Van Sch. ed.; id. 723, (2; 1 Laws of N. Y. 139, 141, § 2, 13, Jones & Var. ed.; 2 R. L. of 1813; p. 276, § 20; 1 R. S. 517, § 77 to 79.) Its constitutionality has never before, so far as I know, been doubted.

Two points were taken in argument, either of which, it was supposed, would be sufficient to require us to adjudge the act in question invalid. They are based upon the provisions in our state constitution, which declare, 1. That private property shall not be taken for public use without just compensation ; and 2. That no person shall be deprived of life, liberty or property, without due process of law. (Const. of N. Y. 1821, Art. 7, § 7.) The old constitution of 1777 embraced neither of these provisions, though the latter formed a part of the bill of rights passed in January, 1787, (1 R. L. of 1813, p. 47, § 2,) and of course has stood fifty-six years co-temporary with the statute under consideration. Both clauses áre found in the amendments to the constitution of the United States, (Art. 5 ;) but this was designed as a limitation of the powers of the national government, and is inapplicable to the legislation of the states. (Barron v. The Mayor &c. of Baltimore, 7 Peters’ Rep. 243; Livingston v. The Mayor &c. of New-York, 8 Wend. 85 ; 2 Cowen’s Rep. 818, and note (b).)

1. It is said the laying out of a private road over the land of another is an appropriation of the property for private and not for public purposes, and therefore a violation of the spirit of that clause in the constitution which forbids the taking of it for public use without making just compensation. Whether the security of the citizen against such arbitrary legislation as the argument contemplates, depends upon this clause of the constitution, or rests upon the broader and more solid ground of natural right never delegated by the people to the law making power, it is unnecessary now to enquire. I am far from disputing the existence of the rule itself. Private property cannot be taken for strictly private purposes without the consent of the owner, whether compensation be provided or not. But I deny that the statute authorizing the laying out of private ways is at all in conflict with the general rule. The construction of roads and bridges is a power belonging to all governments, in the exercise of which every citizen or subject is deeply concerned. Works of this nature are indispensable to the prosperity of a country. They must begin with its earliest settlement and keep pace with its advancement in population, in commerce and social enjoyment. So intimately are they interwoven with individual enterprize and the public welfare, that their establishment and regulation have hitherto been regarded as an essential branch of internal police; the first to be attended to, and the last to be neglected. Private roads in the settlement of a country are often as necessary for the accommodation of the inhabitants, as those of a public nature. Thoroughfares and highways cannot, be made to traverse every part of the territory, so as to reach the dwellings of all who need their use. And what must be the unavoidable result, if the power to lay out private roads under public authority be denied 1 We have in this state about eight hundred towns, and I doubt not there may be an average of some two or three private roads in each, accommodating probably four thousand or more inhabitants. Is not the public interest concerned that they shall have access to our highways and thoroughfares I If it be refused them, how are they to discharge the various duties enjoined by law, or enjoy the privileges which the law was intended to secure to them 1 With what propriety can they be called on to work upon the high - ways, to serve in the militia, as jurors, or as public officers, when they cannot leave their possessions without committing a trespass 1 In what way are they to exercise the elective franchise, or avail themselves of the numerous rights, civil and political, designed by government as the common property of all I A denial of the power in question would operate like a sentence of disfranchisement and outlawry pronounced against them, though chargeable with nothing save misfortune.

The considerations thus briefly suggested, and others of a like nature which might be adverted to, are sufficient to show that the taking of private property, under legislative authority, for the purpose of being used as a road, whether to accommodate one man or more, falls strictly within the right of eminent domain j a right that no one disputes, and under which the government may always take the property of the citizen if the public interest or welfare demand it. All our grants to individuals and corporate bodies for the purpose of making turnpikes, bridges, rail-roads and canals, for establishing ferries, erecting wharves and basins, and draining swamps, marshes &c., stand upon this principle. (Commonwealth v. Breed, 4 Pick. 460, 463 ; Cotrill v. Myrick, 3 Fairf. 222, 233 ; Dyer v. Tuscaloosa Bridge Company, 2 Porter’s Rep. 296,303 ; Boston Water Power Co. v. Boston & Wor. Rail Road Co., 23 Pick. 394,5 ; 2 Kent’s Com. 340, 4th ed. and the notes.) And I assent to the proposition laid down by Chancellor Walworth in Beekman v. The Saratoga & Schenectady Rail Road Co., (3 Paige, 73,) viz. that “if the public interest can be in any way promoted by the taking of private property, it must rest with 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.” (See also Varíck v. Smith, 5 Paige, 137; Commonwealth v. Breed, 4 Pick. 463, per Morton, J.; Boston Water Power Co. v. Boston & Wor. Rail Road Co., 23 Pick. 394, 5, per Shaw, Ch. J.; 4 Kent’s Com. 340, 4th ed., note.) In Pennsylvania it has been expressly decided, notwithstanding a clause in their constitution similar to the one in ours, that the legislature may authorize the laying out of private ways for the purpose of enabling citizens to reach the public thoroughfares. (Harvey v. Thomas, 10 Watts’ Rep. 63.)

2. As to the clause in the constitution declaring that no person shall be deprived of his property without due process of law, (Art. 7, § 7,) it is sufficient to refer to the authorities establishing that this provision has no necessary application where the government, in the exercise of the right of eminent domain, authorizes the taking of private property for public purposes.' (Livingston v. The Mayor 7c. of New-York, 8 Wend. 85 ; Bloodgood v. The Mohawk & Hudson Rail Road Co., 18 id. 1; Beekman v. The Saratoga & Schenectady Rail Road Co., 3 Paige, 45 ; Varick v. Smith, 5 id. 137.)

3. There is another view of this question wdiich appears to me decisive. I have already stated that the statute for laying out private roads was passed in 1772, and has been in full and active operation ever since. The old constitution was adopted in April, 1777, and, among other things, ordained, “ that such parts of the common law of England &e,, and of the acts of the legislature of the colony of New-York, as together did form the law of. the said colony on the 19th of April, 1775, shall be. and continue the law of this state,” subject to modification by the legislature. An exception is then made in repect to all laws, repugnant to the Constitution. {Const, of 1777, ^ 35.) As there is nothing to be found, however, in any of its provisions at variance with, the right of authorizing the laying 'out of private roads, the section quoted amounts to a direct constitutional affirmance of the act of 1772. Our present constitution, which was adopted in 1821, ordained that “ such parts of the common law, &c. and such acts of the legislature as are now in force, shall be and continue the law o.f this state,” subject to alteration by the legislature; and then an exception is added similar to the one contained in the former constitution. {Const, of 1821, Art. 7, § 13.) Now I find no direct assertion of any principle in the new constitution to which the statute in question can be said to be repugnant. The clause forbidding pri-vate property to be taken for public use without just compem sation does not reach it; or if it does, the condition has been complied with, as the statute expressly provides for compensation. Even were it conceded that the statute is in violation of natural right, still the people might adopt it, if they thought proper, as a part of the fundamental law of the state; and I think they have done so. The only other clause of the constitution to which the statute can be said to be repugnant, is the one which forbids that any citizen shall be deprived of his property ' without due process of law. This, we have seen, was contained in the bill of rights passed in January, 1787, and of course stood upon the statute book along with the act in question for about thirty-five years preceding the adoption of the new constitution, and has since existed in the form of a constitutional provision for about twenty-two years ; and during all that time, neither lawyer nor layman, legislator nor judge, has ventured to suggest there was a discrepancy between the fundamental law and the statute. As the legislative, professional and judicial intelligence of the state for the last half century has failed to discover any such discrepancy, and the people have acted under the statute for so long a fio cl without a doubt of its validity being raised, this praci.cal approval of its provisions, as w.ell as of the constitution, should be regarded as decisive in favor of the interpretation which harmonizes both. There can be no doubt, the universal opinion heretofore has been, that the law authorizing the laying out of private roads stands upon the same principle with the law in respect to highways ; and that all these improvements, if' not equally necessary, are at least so much a matter of public concern as to justify the full exercise of the right of eminent domaip.

I will add, if the government of this state does not possess the power of authorizing the laying out of private roads, it is probably the only state government in the union to which the power has been denied; and I may probably say, the only government in the world.

Judgment for the plaintiff. 
      
      
         And see 3 Laws of N. Y. 258, § 17, Web. ed.; 1 Laws of N. Y. 595, § 16, Kent & Rad. ed.
      
     
      
       The provision in the constitution of Pennsylvania is thus: “ Nor shall any man’s property be taken or applied to public use, without the consent of his represen, tatives, and without just compensation being made.” (Art. 9, § 10.) It also pro. vides, that no person shall “ be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.” (Art. 9, § 9.)
     