*364The opinion of the court was delivered by
Kellogg, J.This was an application for a writ of certiorari, to bring before this court the record of certain proceedings of the county court, alleging error therein and praying for relief. The alleged error consists in the acceptance of the report of commissioners appointed to re-appraise damages sustained by the petitioners upon the laying of a highway through their respective lands, the commissioners having disallowed their claim for damages upon the ground that the benefits the petitioners would receive from the road, would be quite equal to any damage they would sustain by reason of their lands being taken for the road.
It is urged, that the commissioners erred in taking into consideration the benefits, that would result to the petitioners from the establishment of the highway, in estimating their damages. In other words, it is insisted, that, upon the laying of the highway, the petitioners are entitled to the value of the land covered by the survey, independent of any advantages they may receive from the road.
That the statute authorizes the commissioners to consider the benefits resulting to the land owners from the establishment of the road, in making their estimate of the damages, is very clear. It so provides in terms. But it is said, that the damages referred to in the statute are those consequential damages, which follow the establishment of the road, such as fencing against the highway, and that they cannot be extended to the land taken for the road, without violating that clause of the constitution, which provides, that, when private property is taken for public use, the owner shall receive an equivalent in money.
The constitution is the paramount law of the had; and every statute, which is in contravention of the constitution, must be held inoperative and void. Whether the statute, or that section of it by which the commissioners were governed in making their appraisal, is repugnant to the constitution must, we think, depend upon whether the taking of land for a highway is such an appropriation of the property to public use, as is contemplated by the constitution. The taking of land for a highway does not divest the owner of his title in fee. The public only acquire an easement; and the right of the. owner to use, occupy and control the land in any manner, which is *365not inconsistent with the public enjoyment of the easement, still remains. Upon a discontinuance of the highway the possession of the land reverts to the owner in as full and ample manner as he originally held it. In the opinion of the court, this is not such a taking of property for public use, in the sense of the constitution, as necessarily requires compensation for the same to be made in money. But to bring a case within this provision of the constitution, it should be such a taking, as divests the owner of all title to or control over the property taken, and is an unqualified appropriation of it to the public. If we are right in our construction of this provision of the constitution, it follows, that the section of the statute in question is not repugnant to it. Statutes containing similar provisions are believed to have been in force in this state ever since the adoption of the constitution, and we are not aware that their validity has ever been questioned.
Nor does this provision of the statute work any injustice to the owner, whose land is taken for highways, inasmuch as it provides a compensation commensurate with the injufyjfe sustains. If the use of the land by the public as a highway be'beneficial to tbe owner, it would seem but reasonable, that such benefit .should be taken into consideration in estimating his damages.
We discover no error in the proceedings' of the court below, and consequently the writ of certiorari is denied..