dissenting :
I do not concur either in the argument or conclusions of this opinion. It seems to me the act of 1852, in its most important features, is repugnant to the constitution of 1870. Section 18 of Article II, declares, in language the most emphatic, “that private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, or shall be prescribed by law. The fee of the land taken for railroad tracks, without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken.”
The act in question authorizes the commissioners to enter upon the land of the owner without his consent, and in defiance of him, and tread down and destroy the grass, herbage, and crops that may be growing upon the line they may be examining which the road shall occupy. This entry is a trespass, and is attended with damages, small, it may be, but, nevertheless, the property is “ damaged,” and in a mode not permitted by the constitution. The amount of the damage is not the point. It is sufficient to show that the act is, in this particular, repugnant to the constitution. The inviolability of a man’s possession, which this clause in the Bill of Eights was intended to preserve, is disregarded. This can not be permitted without the sanction of a jury, and this, the only safeguard the people have, is taken from them by this decision of the Court.
It was the evident intention of the framers of this article, and of the people in ratifying it, that a land owner should not be disturbed in the enjoyment of his property, or damage done to it, by which the public was to be benefited, save by the verdict of a jury giving him just compensation.
But it is said a trial by jury is provided by the act. The land owner can appeal to the circuit court. I can not believe it was the intention of this article, that the owner of land, whose property is sought to be taken from him against his will, should, in order to a trial by jury, be put to the trouble and expense of an appeal. But while the appeal is pending, the company are in possession, doing damage more or less.
In another respect the act of 1852 is inconsistent with this article. By the act the fee in the land is in the company effecting its condemnation. The article vests the use only.
In my judgment, it was the intention of the convention to overthrow all previous systems in force for the condemnation of land for public use, and they supposed they had done so by the article in question.
It was their intention also that it should go into effect immediately and not await the action of the legislature, who might never act, and thus, by non-action, render this most valuable provision a dead letter.
I have not time to enter extensively into the argument. I give my conclusions after great deliberation, and am not convinced of my error by the opinion filed. If, as is therein stated, the report of the commissioners amounts to nothing, why, it may be asked, should the circuit judge of Will County be compelled, by mandamus, to appoint them ? I am of opinion the mandamus was properly refused.