Carson v. Moore

Decided September 15, 1877

Tennessee Supreme Court · decided 1877-09-15

CONSTITUTIONAL LAW. Private way. Statute providing for, is unconstitutional and void. The statute (act of 1868-69, ch. 14, embraced in Shannon’s Code, sec. 1634) making it the duty of the county court to open a private way for the owner of lands over the lands of others surrounding or inclosing his lands, and though providing for compensation, is repugnant to the constitution, and void. [See Con., art. 1, secs. 8, 81, and notes, and note under sec. 1634 of the Code; notes 2-4, 6 under sec. 1844; note under sec. 3435.] Cited with approval: Clack v. White, 2 Swan, 540, 547-550; Eice v. Alley, 1 Sneed, 51,' 57, 58; Memphis Freight Co-, v. Mayor and Aldermen of Memphis, 4 Cold., 419, 425. [See also Harding v. Goodlett, 3 Yer., 40, 51-54; Anderson v. Tur-beville, 6 Cold., 150, 157; Eeynolds v. Baker, 6 Cold., 221, 228, 229; Brown v. Berry, 6 Cold., 98; Wally v. Kennedy, 2-Yer., 554; Stratton v. Morris, 5 Pickle, 535.]

Decided 1877-09-15

MoFablaND, J.,

¶1delivered tbe opinion of tbe court;

¶2Tbis proceeding began by a petition to tbe county court of Washington [county] to lay off for tbe petitioner a private way over the lands of the defendant, under the provisions of tbe act of 1868-9, ch. 14, sec. 1; T. & S. Statutes, sec. 1193a [Shannon’s Code, sec. 1634]. Tbis act is identical with tbe act of 1811, ch. 60, sec. 1, which latter act was declared unconstitutional by tbis court in Clack v. White, 2 Swan, 540 [547-550].

¶3Tbis case was followed in Rice v. Alley, 1 Sneed, 51 [57, 58], and fully recognized and enforced in Memphis Freight Co. v. Mayor and Aldermen of Memphis, 4 Cold., 419 [425].

¶4We do not see that tbe provisions of tbe constitution of 1834, in this regard, have been changed by tbe constitution of 1870, if they could even affect' the act of 1868, passed previously.

¶5The judgment of tbe circuit court will be reversed, and petition dismissed.