Comins v. Bradbury , 10 Me. 447 ( 1833 )

Weston J.

delivered the opinion of the Court.

The Legislature, in providing for the location and for the making of the road, of which the plaintiff complains, doubtless believed that they were conferring a favour upon all, through whose lands it might pass; and this is understood to be true, with the single exception of the plaintiff’s case. Had its effeet upon him been foreseen or contemplated, we may well presume that the object would not have been prosecuted, without making provision for his relief.

The right of acquiring, possessing and protecting property, is declared by the constitution of this State, art. 1, sec. 1, to be one of those, which are natural, inherent and unalienable. And the history and experience of mankind prove that it is essential to individual and to public prosperity, that every man should be secure in the enjoyment of the fruits of his own industry. The force of this principle cannot in any degree be impaired, without relaxing the springs of exertion and enterprize. When the right of property is assailed by private injustice, fraud or oppression, the laws of all civilized governments furnish adequate remedies. But there have been periods when, and there are now portions of the world where, the insecurity of property has been occasioned, and does arise, principally from the injustice of the government. In modern times, however, there has very generally prevailed a more enlightened and liberal policy, even in governments possessing absolute or uncontrolled power. And where private property is taken for public purposes, which is sometimes necessary, compensation is almost uniformly made. This is a duty, flowing from the right of ancient domain, which would rarely be controverted at the present day.

But the people of this State have secured to every citizen a suitable equivalent in such cases, by a direct constitutional provision. This is to be found in the twenty-first section of the first article of the constitution, which declares that private property shall not be taken for public uses, without just compensation ; nor unless the public exigencies require it. A scrupulous regard has always been paid to this provision, in granting turnpike, canal and other corporations, which might interfere with private rights.

It is insisted that the present action ought not to be sustained ; inasmuch as the plaintiff might have full justice done him upon petition to the Legislature. But this could not have been the mode, by which to obtain the indemnity, contemplated by the constitution. It is of too precarious and uncertain a character. Compensation must be made or provided for, when the property is taken. It is upon that condition alone, that such taking is authorized.

Upon the facts presented in this case, the justification relied upon has not been made out.

Judgment on the verdict.