Case of the Plan of the Third Division , 2 Rawle 445 ( 1830 )

The opinion of the court was delivered by

Rogers, J.

— In the eighteenth section of the act to incorporate the Kensington District of the Northern Liberties, the commissioners are authorised to appoint one or more surveyers, who are required not only to survey and mark thé lines of all streets, &c. then open, but also to survey and lay out such other new streets, lanes, and alleys, &e. as they might deem necessary for-a regular and convenient town plan; and for these and other purposes, they were vested, with full power and authority to enter upon the lands of any person within the district. The intention of the legislature was, to give all the authority necessary to the commissioners, to lay out the town in the manner most convenient and useful to the inhabitants of the district; and in furtherance of this object, so highly beneficial to the citizens, they have vested in the surveyors full and plenary authority, liable to be reviewed and corrected in the manner therein prescribed. The vvords of the act are sufficiently comprehensive to embrace all property within the incorporated limits, held either by individuals or corporations; and it would, I conceive, be against the spirit of the section, to exempt any property, whether real, or partaking of that character, within the district, from the.ir control, as this would materially interfere with the intention of having their town regulated oil a uniform, convenient, and regular plan. As, then, the property of the company would seem to be embraced by the words, and spirit of the act, it is incumbent on them to show something peculiar in their case, from which to claim the benefit of an exemption from the general scope of the authority vested in the commissioners.

The President, Managers, and Company of the Germantown and Perkiomen Turnpike Road say, that they are not intended to be affected: because, it would interfere with a vested right, (which is not to be supposed without express words,) and they hinted, although the point Was not much pressed, that it would impair the obligation of a contract, to take their property for public use! To this, it may be answered, the right of individual property is a vested right, as much so in the case of an individual, as a corporation, and that the appropriation of it to public use would be as much a violation of a contract in the one case as the other. Although the company is bound, ás has been stated, under severe penalties, to keep the road in repair, yet if, as has been contended, this will be rendered impossible by the confirmation of the plan reported by the surveyors, that fact would, of itself, furnish a valid defence to a suit for the penalty. A non-compliance with the provisions of the act would be excused, by showing a subsequent appropriation of the property to public use. It is a fundamental principle of all government, that the rights of individuals must yield to the general welfare, and the only security of the citizen, (and in most cases it is an ample one,) consists in the constitutional provision: “ That no man’s property snail be taken or applied to public use, without the consent of his representatives, and without a just compensation being made.” And in conformity to this article of the constitution, the legislature have guarded the interests of all concerned, by declaring, “ -That no street, road, lane, -court, or alley, shall be opened and appropriated to public use, until the owner of the ground shall be compensated for the damages he may have sustained.” They have also directed the manner in which the compensation shall be ascertained and paid, by a proceeding under the act of the third of April, 1804. Herb there is a legislative remedy provided; for although the term owner or owners of the land, be used, and the company are not strictly the owners of the soil, but an easement merely; yet, we consider these words sufficiently broad to cover the case. For the purpose of affording an adequate remedy, to the party aggrieved, we are inclined to give this part of the section a liberal construction, as has been done in Reese v. Addams, 16 Serg. & Rawle, 40, which, although not precisely this ease, resembles it in some of its features. The only difficulty which can arise is in respect to the form of proceeding, while even that, may be instituted in the corporate name, and we the more readily come to this conclusion, to avoid the multiplicity-of suits which would be the consequence of suing in the name of the owners of the land, for the use of (he company. We think it right to give the act such a construction as to secure to the inhabitants of the district the object they had in-view, and at the same time, to guard the rights of the company from violation, and secure to them such compensation as they may be justly entitled to under all the circumstances. If, as has been suggested, the property of the company has been taken in contradiction to the directions of the act, it is such an injury as may be compensated in damages in the usual manner.

Proceedings affirmed;