¶1concurring.
¶2I concur in the result reached in the Court’s opinion but find it necessary to state my views separately.
¶3*1035I would hold that 23 M.R.S.A. § 3006 is unconstitutional because it purports to authorize the laying out of a private way without a finding of common convenience and necessity. I would not attempt to reconcile the past pronouncements of this Court or engage in any effort to further construe the statute. It should be recognized that we are dealing with a constitutional anacronism. The historical background and the evolutionary development of the law from colonial times to the present day has been cogently summarized as follows:
A study of the history of those uses which originated with the first settlement of the country brings us back to a period when the natural obstacles to the successful establishment of permanent colonies in America had proved in many cases too formidable to be overcome. At a time when the very life of the community depended upon the most advantageous use of every resource that could be availed of, it was not to be expected that overrefined scruples with respect to the rights of private property would be allowed to stand in the way or that an individual who held his own title from a colonial grant would be allowed to use that selfsame title to thwart the efforts of others to keep the colony alive. Furthermore, it is to be remembered that there were then no constitutional limitations upon the power of the legislature and that every colonial statute was necessarily valid unless it was repugnant to the charter of the colony or was forbidden by English law. It was under such conditions that private individuals were allowed in certain instances to encroach upon the property of others in order to develop the natural resources of the land for their own gain and for the incidental public advantage. Statutes which authorized such encroachment were looked upon as reasonable and wholesome laws, even after the conditions which made their enactment a public necessity had passed away. When the state constitutions were adopted, such laws were not in terms prohibited, and it was not at the time supposed that the general provision with regard to the taking of property for public use was intended to prohibit them. It was many years before any doubt was thrown upon the constitutionality of such legislation, and it was then too late to disregard entirely the long acquiescence of the public in its enforcement.
¶4Sackman, Public Use — Updated (City of Oakland v. Oakland Raiders), in Proceeding of the Institute on Planning, Zoning, and Eminent Domain 203, 208-9 (M. Landwehr ed. 1983).
¶5A review of the case law in Maine demonstrates an evolutionary response to an encroachment on the constitution. The historic justification is no longer valid and the constitution no longer permits private advantage to override property rights to the extent contemplated by the statute. Neither public acquiescence nor antiquity supports continued toleration of section 3006.
¶6I find the statute to be unconstitutional and therefore concur in reversing the judgment of the Oxford County Commissioners.