Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1884-04-24

attorney for the plaintiff served written notice
on the attorneys for the defendant, consenting to
reformation of the judgment, so that the width
of the road should be fixed at twenty instead of
thirty feet, as provided by Section 1854 of Cen
eral Statutes Of 1882, which seems to have been
overlooked on the Circuit. This, it seems to us,
disposes of the appeal on the part of the defend
ant, as it comedies to him all that he could obtain
by the judgment Of this Court sustaining his ap-
peal.
1t only remains, therefore, to consider The ap-
peal on behalf of the plaintiff. But under the
view which we take Of the case it will not be
necessary to consider the grounds in detail. 1t
seems to us that the parties have entirely mis-
taken the mode of proceeding provided by law
for ascertaining the amount Of compensation to
which land-holder, whose lands may be ap-
propriated for public highway, should be en-
titled The Constitution, Article I, Section %,
provides that "Private property shall not be
taken or applied for public use, or for the use of
corporations, or for private use, without the con-
sent of the owner or a Just compensation being
made therefore, but it does not provide any
mode by which the amount of such compensa-
ton shall be ascertained. That was left for the
Legislature to do. Accordingly, in Section 1850
of the General Statutes, and those Immediately
succeeding, provision is made for that purpose /:
"Whenever any person or corporation shall be
authorized by charter to construct a railway,
canal, turnpike, or othe, public highaDay" &c.
(The italics being ours.
Subdivision s Of Section Gil of the General
Statutes, under which the parties seem to have
proceeded in this case, makes no provision for
the assessment of the amount of compensation to
which land-holde may be entitled, whose land
is appropriated for the use of the public as a
highway by the special commissioners therein
authorized to be appointed. 1t simply author
ICES the board Of county commissioners to ap-
point special commissioners to lay ont public
highways, and after they are 80 laid out, then,
for the purpose of acquiring the right Of way the
mode prescribed by Section 1850 and those i'm
mediately succeeding must be pursued. 1t is
true that some of the language employed in these
Sections would seem to indicate that they were
intended to apply TO railway and other like COM
panies but as the Constitution expressly de-
clares that private property shall not be taken or
applied even to public uses without the consent
of the owner, or without just compensation be-
ing made therefor and as there does not seem to
be any other law providing mode by which the
amount of such compensation shall be ascertain
ed, we think the fair and necessary construction
is that the mode prescribed by these Sections
must be pursued when private property is to be
taken or applied to the use of the public, by the
establishment of public highway.
We think, therefore, that it was error to refer
the question of the amount Of compensation to
which the defendant was entitled to jury, to be
determined by them upon the evidence prevl-
ously taken but that on the contrary; the amount
| of such compensation should be ascertained in
the mode herein above indicated.
The judgment of this Court is that the judg-
| ment Of the Circuit Court be reversed.
Opinion by McIver, A. j. Simpson, G. j., and
MCGOWAN, a. j., concur. Filed, April 18th, 1884.
G. E. Spencer for plaintiff; Hart q Hart and
GAGE for defendant.