other's ers. Lindsay and power or eminent domain is to be for the public good, and it extends to all public places, as on rivers and on highways, Commission- &c. These are public property for the use and benefit of the community, and all the members of the community have an equal right to the use of this common property. But the body of the community only may make such regulations on the manner of enjoying it, or using it, as they may think proper; provided that these regulations are not inconsistent with that equality which ought ever to be preserved in a community of property. And as all the members of a community have an equal right to this common property, so all ought to contribute, either in money or labour, to keep them in order, and fit for use. Vattel, lib. 1. ch. 20. s. 249. 66 Bynkershoek, lib. 2. ch. 15. lays it down, that this eminent domain or transcendant power may be lawfully exercised in depriving individuals of their property, whenever the public necessity or public utility requires it. He classes "public "ways among the works of necessity, as they are indispensa"bly essential to intercourse and commerce.' "The eminent power of the state may also take from the proprietors, 66 against their will, those things without which high roads "cannot be made," &c. &c. He also asserts, (6 that this " right may be imparted to others occasionally, as to chief magistrates of towns, cities," &c. but accedes to the position, "that if houses and lands are taken from individuals, "then adequate compensation should be made," but that this is only to be done in cases where lands are improved and built upon. Rousseau, in his inquiry into the social compact, (ch. 9.) says, that in whatever manner the acquisition is made, the right which every individual has over his own property is always subordinate to the right which the community has over all, without which there would be no solidity in the social bond, or any real force in the sovereign power. From these eminent civilians, and able writers on the rights of nations, the Attorney-General said, we had the origin of this eminent domain, or right of sovereignty, con others V. ers. tended for; and which appears to have been coexistent Lindsay and with the formation of civil societies, and without which men from remote and distant parts of the country never could Commissionhave associated together. By common consent, all mankind who originally entered into and became members of society, seem to have consented to yield up to the sovereign power a portion of their landed property, for these great public conveniences, as a condition by which they were linked together, and connected with each other from remote and different portions of the same community. And from the same great jurists, we have the origin of the superintending care of the sovereign authority over these great high communications through the country, by compelling the inhabitants to keep them in repair and in good order, as often as necessity or occasions may require. Domat, another great civilian, in his treatise on public law, book 1. tit. 8. s. 1. or p. 381. fo. ed. says, there are two things destined for the common use of mankind; one by nature, such as seas, rivers, sea shores, and banks of rivers; the other by civil policy, (or the universal consent of all men,) such as streets in towns and cities, highways connecting them with each other, and market-places for the sale of the necessaries and commodities of the country. In vol. 2. p. 280. God has given us the use of the seas and rivers, which opens the communication with all the world to us, and makes us acquainted with our fellow men in distant countries. Civil policy has built towns and market-places, and by roads and highways they are connected together, and their mutual intercourse promoted and kept up with each other. Thus it is evident that seas and rivers are the great highways of nations, and public roads the great highways of in dividuals in every nation, in their mutual dealings and intercourse with towns and market-places, and with each other, in every part of its jurisdiction. Hence originated the power, which the legislature of South Carolina has claimed and exercised, since the days of others V. Lindsay and the lords proprietors to the present day. The first exercise of this legislative authority, for laying off and making roads Commission- and highways, we find as far back as the year 1686-7, considerably more than one century ago; and from that time, No. 31. p. 11. a continued series of road acts have been passed, session af er's. Trott's Laws, See Trott's Laws, No. 458. p. 375. ter session of the legislature, down to the passing of the act for laying off and making East Bay-street, in 1795, through and across every part of South Carolina, for the general convenience of the inhabitants of every district, county, town and parish in it, without respect to persons, or the freeholds or landed property of any of the individuals through whose grounds any of the said roads were to pass or be opened; and yet in no one act ever passed on the occasion, in the whole run of a century, has ever one syllable been inserted about compensation, or assessing by a jury a sum to indemnify the owners of the soil through which any of these roads were to pass. On the contrary, so early as the year 1721, a general road act was passed, which repealed all former acts on that head, and was intended to form one general high road system for South Carolina. In this act, after nominating and appointing commissioners in all the parishes and precincts in the then province, the 19th clause of the act authorizes and empowers the said commissioners, or the majority of them, within their several parishes or divisions, at the equal charge and labour of all the male inhabitants of the said districts, between 16 and 60 years of age, to make, mend, alter and keep in repair all such roads, bridges, causeys, creeks, passages and water-courses, laid out, and to be laid out, in the said several parishes and precincts, as they might think proper for public convenience, The act then goes on and authorizes them to appoint overseers, to call out ⚫all the male inhabitants between the ages above mentioned, and to contract for building of bridges, and to make assessments on the inhabitants, for defraying the expenses of them, and generally to do all other things necessary for making and keeping them in repair. So far the act proceeds in giving the commissioners general powers to make and Lindsay and keep the roads, causeys and bridges in order, &c. The 24th clause of the act authorizes the commissioners of the different precincts to give directions for leaving all such trees standing, on or near the lines of such roads, in every parish, as should be most convenient for shade to the said roads or paths, &c. and in case any person should, after such road or path was laid out, altered and cleared, cut down any such tree, within ten feet on each side of such road, every such person should forfeit for each tree so cut down, the sum of twenty shillings, to be levied and collected in the same manner as other fines were levied and collected for of fences committed on or near said roads. The 26th clause of said act goes on further, and declares, that if any person or persons whatever, by themselves, slaves or servants, should in any ways or means stop up or obstruct the passage on the roads aforesaid, or hinder, forbid or threaten the said commissioners, their servants or workmen, from cutting down, falling or making use of any timber, wood, earth or stones, in or near said roads, for making, mending or repairing the same, every such person so of fending should forfeit the sum of fifty pounds, to be recovered by the said commissioners in the district where the offence should be committed, to be applied towards the repairs of the said roads and bridges. This act, which was passed in the year 1721, with very little alterations or additions, seems to have formed the system by which the commissioners of the high roads in this state regulated their conduct, from the time of its passing until after the revolutionary war, a period of more than sixty years, during which time almost all the great leading roads from one end of the state to the other, in almost every direction, were laid off and established. And there is not one instance on record, and certainly none within the me mory of the oldest man now living, of any demand being made for compensation for the soil or freehold of the lands, others V. Commission ers. others V. Commission ers. Lindsay and through which any of these high roads were to pass, or any opposition made by any man, or set of men, through whose lands or plantations any of these roads were opened, to any of the road commissioners, or other persons acting under their authority. Every freeholder in Carolina submitted with cheerfulness and, respectful deference to the different road laws enacted by the supreme authority of the country. And why, it may be asked, was this exercise of authority so long and so peaceably submitted to ? Because our ancestors, who, it may fairly be presumed, were as wise, and as keen-sighted, and as attentive to their interests as we are, were well satisfied and convinced that this was one of the inherent prerogatives of the majesty of the people, and a power which the supreme authority of the state had a right to exercise, for the general good and convenience of the whole, and that it resulted from the very nature and ends of civil society, and that mutual intercourse which from necessity they were obliged to keep up with each other. From the foregoing principles of eminent civilians and writers upon public law and national rights, and the early, long and uninterrupted adoption and use of them by our legislatures, and men clothed with the supreme authority of the government, and the ready acquiescence in them by the citizens, this important right has become a part of the common law of South Carolina, and now forms as much a portion of it, as any other part of the common law system in use at this day. Use and prescription form the common law of every country on earth; for usages and customs are nothing more than natural truths, founded on the nature and reason of things, arising from their fitness to answer great and beneficial ends and purposes. And hence it follows, that what has been long in use, and what has been observed for a long time, is in itself useful and just, and becomes a law. or custom hath been long disused, it is a And if any law And if proof that it has been abolished. Domat's Treatise on Laws, ch. 12. s. 3, |