The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-12-20
THE STATE BAR ASSOCIATION.
CnI. Peeler on Fence Cntting.

| Col A. ]. Peeler of this city, selected the I'M
portant question OF fence cutting as the snDlect
| Houston We give some of the points OF bis
| able and interesting discussion Of the subject,
leaving af js PRACTICAL solution TO the legislature
The right of exclusive enjoyment by some
| one individual of portions OF what might at
| first seem a common heritage, the earth and
| its products was too well settled, he said. as
an elementary principle in the organization OF
society TO render il necessary to go behind the
simple fact itself in discussing its laws
The speaker quoted Judge Cooley IN hi his
work on "Torts," as saying every man CON
trolls his own property as he pleasesi puts u 10
such use as he pleases, improves ii or not as
he may choose, subject only TO the oDllgatlon
to perform in respect to it, the duties he owes
to the state and to his fellows. The state can
not substitute its judgment for this as 10 the
use he should make OF II for his own adVan-
tage.
Quoting the constitution, Col. Peeler con-
tended that stronger guarantees OF the right OF
private property could hardly be framed 30
the state cannot, through its legislature, take
the property of its citizens without consldera-
ton.
The owner of 100, 900 acres of land, enclosed
with lawful fence, as a stock ranch, mas the
same right to such use of it as the farmer mas
TO till the sell. And the fact that he has 100 coo
acres instead OF single acre, makes no diner
ence, for the law protects the poor man with
his little patch as well as the rich man who can
count his acres by the thousands.
The right to the legitimate use and enjoy
ment OF our possessions at pleasure, so lar as
individual ownership and dominion are con-
cerned is precisely the same. What destroys
or weakens this right in the one case tends In
evitably to do so in the other. Where agrees
sion prevails the powerful more easily absorb
the weak, and hence the Importance Of stead
tasty maintaining constitutional and legal
barriers for the protection OF all alike. Inc
federal or state government, to control or in
terfere with this right, must be argued on con-
stitutional authority, provide compensation
to owners fortproperty taken for public use.
And even then it must be by due process Nav;
If the state desired to checker board the land
with public roads and highways, an examina-
ton of its constitutional powers in this respect
would become important. Quoting provisions
of the state constitution of 1876 ON this point.
ii was obvious from these promises he said
that the lands in question could not be cut up
into roads, except in pursuance OF general
law, one which affects no particular owners or
tracts, but all classes of owners sections and
tracts alike. Not only must the law be general
satioa it should be held Unconstitutional Nor
would the legislature be justified in directing
the appropriation of the land. Even timber
compensation to the owner. Although the leg.
islature of a state by virtue Of the right OF
eminent domain may take private property for
public use as for highway, yet it must provide
taken. Justice Moore, of this state, in the
Buffalo Bayou care, and authorities OF differ
ent states are cited on the point. Nothing but
money can be forced on the owner and Cooley
and other authors are quoted as to the ques-
ton to the measure of damages. The citizen
must be treated with fairness IN all cases.
The question of what, within the intendment
of the constitution, is public use, was newt
discussed by Col. Peeler, and a number of au-
thOrites were cited as to the mode Of compen-
satiOn. 1t is hardly necessary, he stated, to
say that up to this point have had in view
the limitations upon government In the exer-
else of the power of eminent domain in taking
or interfering with the property of the land
owner. There is another power: the police
power of the state, under which property may
be taken, damaged or destroyed, and the
cMnp iGf M or damages ~ fhe destrncton
of property by a hook and ladder company,
part of the fire department OF city, for the
purpose of preventing the spread OF a nre, Is
case in point.
"1ne owner OF property says MIR. Mills in
his work on Eminent Domain, may be re-
strained from noXi0uS use of his property,
and such restraint Is not taking of the
property. The owner is restrained not because
the public have occasion to make the like use
or any nse of the property, or to take any ben
eft or profit from it, but because the use Is
noxiOus to the public. 1t is not an appropria-
ton to the public use but the restraining OF an
injurious private use by the owner"
ton, Col, Peeler re arked that it had been
held that the state cannot prosecute as a nuis-
ance that which itself has authorized.
If the landowners premises can be invaded,
his houses, CT ops, fences, or other gains of his
industry" destroyed with impunity, by lawless
men, and the law affords no adequate remedy,
failed of its "chief design" and the eXactiOn Of
taxes from him for the support of such a gov
eminent is the imposition OF a burden without
any return Every entry upon the land OF an
other without lawful authority, is trespass.
And where the entry is malicious and wanton
exemplary damages may be recovered. The
law SuppOses every treSpaSs upon the land of
another TO be attended with damage, however
incOnsiderable the injury, and nominal
damages, if no more, may be recovered in
every case.
He continued that the state, for the purpose
of preserving the good order of society. may
make trespass crime, and in its own name
by criminal prosecution punish the wrong dOer
This he termed public remedy" in contra
distinction to the 'private remedy" which the
Individual may pursue on his own motion by
ordinary civil action.
1t seems not allowable, says Judge Cooley
to authorize private roads to be laid out across
the lands of unwilling parties by an exercise of
in his work on Easements and Servitudes says,
when granter conveys land surrounding
parcel retained by him, he has way of neceS-
sity over the granted land to the parcel re-
tanned.
As to the wanton destruction of
private property, because in the opinion Of
some men it ought not to exist, it was the
duty of all good citizens, the speaker contend
ed, to obey the law and seek redress for griev-
ances in peaceful forms. Those who take the
sword shall perish by the sword The exam
pie OF General Jackson in submitting to the
fiat of arrest of Judge Hall, as given in Mar
tins history of Louisiana, was one of the no
blest tributes that uld be paid to the majesty
citizen, that great man, high as he was in au-
thority, dld not hesitate to yield to the man.
dates of the court.
The address closed with an eloquent allu-
sion to the majesty and provinces OF law and
government.