dissenting.
I think there was error in 'sustaining the demurrer as to the second cause of action. ' The sacred regard which the law has for the rights of private property is such that it will not permit it to be taken for public use-without just compensation and an adequate remedy for that purpose must be provided. The remedy provided in this act *456(Chapter 581, Laws 1899) is to be found in Sections 11 and 13: “If the owner of any land * * * from, wbicb timber, stone, gravel, sand or clay were taken * * * shall present an account of the same through the County Road Superintendent at any regular meeting of the County Commissioners, within thirty days after the taking and carrying away of such, * * * it shall be the duty of the said Commissioners to pay for the same a fair price; and before deciding upon this, they may cause h> be appointed an impartial jury, * * * which jury shall report in writing to the Board of Commissioners their decision for revision or confirmation: Provided, said landowner * * * shall have the right of appeal,” * * * (Section 13) to the Superior Court if the landowner shall be dissatisfied with the finding of the jury and decision of the County Commissioners, which shall be governed “by the law regulating appeals from the Courts of Justices of the Peace, and the same shall be heard de novo.” The landowner is not only entitled to just compensation for the property taken from him, but he -is also entitled to an adequate remedy by which he can establish and recover the value of his property. By this act he is only allowed thirty days after the “taking and carrying away” to present his account, which must be done “at a regular meeting of the County Commissioners,” and “through the County Road Superintendent.” So his opportunities for asserting his rights may be dependent upon the caprice or favoritism of the Superintendent to perform the act within the time limited, or his good fortune to learn of the completion of the taking and carrying away in time to make and present his account, or upon both. Should he be so situated that he could not find the Superintendent, or should the Superintendent refuse to present the account, or should the time be so short that he could not prepare and present it, or should he be prevented from doing so by sickness or other unavoidable cause, *457then his property would become confiscated — if this be the only remedy. The “taking” by the Superintendent raises an adverse relationship between the landowner and the Superintendent, and the landowner might object to acting through an agent not appointed or selected by him, and whose interest in the subject-matter might be hostile. I think the remedy is inadequate for general practice, and that the Superior Court had jurisdiction to administer the rights of the parties, and that the demurrer should have been overruled. I do not think that this act was intended expressly, or by necessary implication, to repeal the common law remedy. And while it does not require this remedy to be pursued, yet should the convenience of the claimant justify him in resorting to it, he is at liberty to do so. Its machinery is ample, and a determination can be speedily obtained. The act gives the landowner the right to' have his claim adjusted under its remedy, if he should desire to select that method. I can not believe that the Legislature intended by this act to repeal the remedy already in force, and subject a private right to the hazard of uncontrollable circumstances. Compensation is not required to be paid in advance, nor is there any great haste required in making the appropriation by the county officer. Then why should the unoffending, law-abiding citizen be required to “run the chances” of getting his own, when no harm could happen to either party by resorting to the usual remedy. I therefore think that the remedy provided in the act is only 'an additional and not the sole one intended by the Legislature.