I concur in that portion of the opinion which holds that the restrictions in the deeds conveying lots in this addition gave to the parties an easement in all lots sold under similar restrictions. I further concur in the ruling that this property right is of some value, and that it cannot be taken for even a public purpose, without a compensation first being paid, as is required by our State Constitution.
II. I do not concur in that portion of the opinion which overrules the cases of Van De Vere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. l.c. 205; Funke v. Kansas City, 122 Mo. l.c. 138-140. These cases which have been specifically followed up to Gorman v. Railroad and St. Louis, 255 Mo. l.c. 495, announce proper principles of law, in the cases there determined, but they may have but limited application to the case at bar. They were not condemnations cases, but conceding, as I do, that they construe our Constitution as to matters where property is damaged, for public purposes, we shall consider them in that light. When we amended the Constitution, in 1875, so as to permit a recovery for property damaged in the taking of other property for public purposes, it became a serious question as to *Page 637 what meaning should be given to the amended constitutional provision. In Van De Vere's case, supra, this court threshed out the question, and the ruling in that case has never been departed from in any subsequent ruling, and its overruling means the overruling of at least a score of cases since, as will be seen by an examination of the citator.
In Van De Vere's case, 107 Mo. l.c. 91, we, in the discussion of the change made in the original law by the Constitution of 1875, said: "The amendment must be construed and applied in view of the evils which it was designed to remedy. We have seen that before this amendment there were many cases where the corpus of the property was not taken, yet rights directly annexed to the property were injured, and that for such consequential damages the property owner had no remedy, because the act was authorized by law. Whether the plaintiff must now, in all cases when claiming that his property has been `damaged' for public use, show that the injury is one for which he might have maintained an action if the act had not been done by authority of law, we need not say in this case. What we do say is this, that he must showthat the property itself, or some right or easement connectedtherewith, is directly affected, and that it is speciallyaffected." The italics are ours.
This opinion included an easement directly connected with the property as within the constitutional provision, and all the line of cases following it do the same thing. This is the doctrine that my brother overrules. It is a fair construction of the Constitution of 1875, and one that has been followed in more than a score of cases, and we do not feel that this line of cases (much longer than our brother cites) should be overruled. They have been consistent throughout, and announce (1) that under the Constitution an easement appurtenant to a property cannot be taken or damaged without compensation being paid, and (2) that if the damages claimed *Page 638 are the same as those suffered by all others, although different in degree, then such damages were not included in the term "damaged" as used in the Constitution. This has been the rule in the sundry cases from the Van De Vere case in 107 Mo. to the Gorman case in 255 Mo. supra. I do not feel that these cases are wrong, but they do not determine the instant case.
In the first place if, as the principal opinion well rules, the restriction in the deed created an easement, appurtenant to the lot owned by Peters, then the destruction of that easement would entitle Peters to damages even under the rule in Van De Vere's case, and those following it. If on the other hand it be said that the easement was in the other lots sold under similar restrictions, then there would be an easement, a valuable property right, owned by Peters in such lots, and the taking of such lots would amount to a destruction of this right, denominated by the courts an easement. So that it is immaterial in which light you view the matter. My serious trouble in the case has been the question of remedy, and upon this I shall express my views.
III. A discussion of the prohibition feature will suffice for both cases. It is urged that Judge Buckner has, at most, only erred, in instructing the commissioners appointed by him to assess damages, and that mere matters of error cannot be reached by prohibition or mandamus. This we think is true. ButRemedy. the instruction given to commissioners for the assessment of damages in condemnation proceedings are not on the plane of mere instructions in the trial of a law suit. They could not be, if we keep in mind the Constitution. This branch of the proceeding is not the trial of the case, but it only furnishes the basis for the ultimate trial, should the parties feel aggrieved at the action of the commissioners, which commission is the arm of the court. Suppose I owned forty acres of land which *Page 639 was wanted for public purposes. Suppose further the petition shows such ownership to be in me, and the circuit judge said to his commissioners (the arms of the court), You go out and see what you think Graves has been damaged by taking the east twenty acres, but you must not allow him anything for the taking of the west twenty acres, although it is just as valuable. Is such action mere error, or is it an excess of power under the Constitution, which says that Graves is entitled to have the cash for his land before it is taken? We think the latter. Such court would be going beyond the limits of his power in directing his commission to take half of the land without compensation. It is a new and intricate matter, and must be determined upon the common sense of the situation. Take the instant case. If the report of the commission is approved, and the money paid into court, then the schoolhouse can be built, the easement absolutely destroyed, and no payment into court for the damages done. In other words the petition in the case before Judge Buckner shows that Peters has a valuable easement, and the approval of a report made under this unconstitutional direction takes the property without the deposit of the damages, or the payment of damages. Judge Buckner is in fact, and in law, proceeding to take private property for public use, without even permitting a consideration of damages. This is in excess of the power of any Missouri court, under our Constitution. Whilst the question is a new one, I feel that there is more than mere error involved. I feel that the act of the court in directing (its arm) the commissioners to take private property for public use without first paying therefor, is an act in excess of jurisdiction rather than mere error.
I therefore concur in the result of my brother's opinion, and in those portions thereof first above mentioned. J.T. Blair,C.J., Walker and D.E. Blair, JJ., concur in these views. *Page 640