vidual or set of individuals an opportunity to take their coal to market. Private and small rail roads have been built; bridges have been constructed, and no compensation has been granted, except that amount of compensation which the individual might be disposed to allow before a jury appointed for the purpose of examining the subject.

use.

I hope, therefore, that a constitutional provision will be made by which private property shall not be taken in such cases as these, where private property can not be said to be taken for public use, but merely for private These cases are numerous, and they have been oppressive from the time since the incorporation of companies of this kind first commenced; and the moment that you strike out the word "its" and insert the word public" in lieu, I shall feel it to be my duty to vote against the whole section.

66

A motion was made by Mr. SHEllito,
That the convention do now adjourn,

Which was agreed to.

And the convention adjourned until half-past nine o'clock on Monday morning.

MONDAY, February 12, 1838.

Mr. HAYHURST, of Columbia, submitted the following resolution, viz: Resolved, That the committee on the schedule be instructed to inquire into the expediency of reporting a clause, declaring that all sections in the constitution to which no amendment shall have been made, shall be construed and continue to have effect as heretofore, and as if the constitution of 1790 had never been altered or amended.

Mr. HAYHURST moved that the convention do now proceed to the sec ond reading and consideration of the above resolution, which was agreed

to.

Mr. HAYHURST said, if the convention would listen for a moment, he would explain why he had offered this resolution. He pledged himself not to consume three minutes. He had offered it for the purpose of removing any ambiguity or double meaning which may attach to any part of the constitution. It was of so much importance how eminent jurists would construe its clauses, but they must have a construction which would be plain to the people at large. He had consulted with five persons as to the construction of parts, and had found three deciding one way and two another way. Since then he had been in consultation with others, and had found differences of opinion. He wished the subject to be referred to the committee on the schedule. This was the course he preferred, as an amendment would be drawn up more methodically, if it were done by a committee. If he was compelled to introduce an amendment, it might be inserted in an improper place, or drawn up in an exci

ted state of feeling, and thus might fail of the object. If it go to a committee it will have calm consideration, and be introduced with a proper regard to accuracy of language, as it will be under the cognizance of men better skilled in legal phraseology. He hoped the resolution would be agreed to, in order that a meaning would be given to the constitution, which would set at rest every doubt on the subject. After the convention had decided not to permit the small counties to have a separate representation, construction may give it to them. He was not prepared to say they should not have a separate representation, but if so, let the convention declare it. He wished the matter to remain as it was provided for in the old constitution.

Mr. READ, of Susquehanna, expressed a hope, that the resolution would not pass. He was of the opinion that it would lead to doubt and uncertainty.

Mr. STERIGERE, of Montgomery, thought it a novel course, after having adopted several clauses, to declare that they do not mean what the words import that they do. He did not think that the convention was disposed. this morning to go into this matter, and that the better course would be to postpone the whole subject. He concluded with moving to postpone, for the present, the further consideration of the resolution.

Mr. M'SHERRY hoped the resolution would not be postponed, but that we should act on it.

Mr. HAYHURST reminded the convention, that it was within a few days of the time of adjournment, and expressed a hope that the resolution would not be postponed.

Mr. STERIGERE then withdrew his motion to postpone.

Mr. HAYHURST explained, that he had been foiled in every attempt to get at his object, when the article was under consideration. He fell in with every plan, but the rules had defeated him. The course he now had taken was not a favorite with him, but it was such as was only left for him to take.

Mr. FLEMING, of Lycoming, said he knew no reason why the convention should pass this resolution at this time. He did not think the convention was prepared to give such instruction to any committee.

Mr. STERIGERE moved to commit the resolution to the committee appointed to prepare and report a schedule to the amended constitution. The question being taken, this motion was agreed to.

Mr. WOODWARD, of Luzerne, said he was instructed by the committee on the schedule to move, that when the committee adjourn this morning, it adjourn to meet to-morrow at the usual hour.

The question being taken, this motion was agreed to.

Mr. HIESTER, of Lancaster, submitted the following resolution: Which was ordered to lie on the table for future consideration, viz : Resolved, That five thousand copies in the English language, and two thousand five hundred copies in the German, of the constitution as amended, be printed in ‹ pamphlet form, for the use of the members of this convention.

LATERAL RAIL ROADS.

Mr. PORTER, of Northampton, from the committee on the ninth article, to whom was referred the petition of sundry citizens of Luzerne county, on the sixth of November, on the subject of the act of the fifth of May, 1832, entitled "an act regulating lateral rail roads," made the following report:

Which was laid on the table, and ordered to be printed, viz :

The committee on the ninth article of the constitution, to whom, on the 6th of November last, was referred the petition of sundry citizens of Luzerne county, on the subject of the act of the 5th of May, 1832, entitled "An act regulating lateral rail roads," REPORT:

In the concessions of William Penn to the purchasers, executed in England on the 11th July, 1681, and before he or the adventurers had sailed for this country, it provided that "a certain quantity of land or ground plot shall be laid out for a large town or city in the most conve nient place upon the river for health and navigation, and every purchaser and adventurer shall by lot have so much land therein, as will answer to the proportion which he had bought or taken up upon rent: but it is to be noted that the surveyors shall consider what roads or highways will be necessary to the cities, towns, or through the lands. Great roads from city to city not to contain less than forty feet in breadth, shall be first laid out, and declared to be for highways, before the dividend of acres shall b laid out for the purchasers: and the like observation shall be had for the streets in towns and cities, that there may be convenient roads and streets preserved, not to be encroached upon by any planter or builder, that none may build irregularly to the damage of another. In this, custom governs."

By this it will be perceived, that it was intended first to lay out the streets of the cities and towns and the great roads, before the lands were sold to those who desired to purchase or occupy. On arriving here, it was found that there were insurmountable difficulties in carrying this project into practice; and accordingly a new arrangement was made, which has been followed in all the grants of land made by the proprietaries and the commonwealth from that day to this, to wit: to allow six acres in every hundred to every grantee, without price or rent, as an allowance for roads and highways. This received a legislative sanction as early as the year 1700, and again in 1711, and by repeated acts since passed.

This six acres per cent. was agreed, on the one hand, to be granted, and on the other received in lieu of what might be taken for public roads and highways, whether the requisitions for those purposes should exceed or fall short of that quantity. "In this plan there was evidently a chance that the purchaser might be either a gainer or loser in the event, as it was then and would continue for a long time uncertain how much of each man's land would be found necessary for such public roads." "Although in this early arrangement there might be a chance that certain purchasers might be obliged to contribute more than six per cent. to the roads, yet it might possibly have been foreseen that scarce any instance of that would occur without an eqivalent likewise accruing to the purchaser, from the

vicinity of such public roads to their buildings and improvements." (Per Shippen, C. J., 3 Yeates, 372; 6 Binney, 513.)

"

The allowance for road and highways was inserted in every original grant, and no matter how the estates might be subsequently subdivided or sold, notice was conveyed to every such purchaser in the grant from the proprietaries or state government, that it was so granted and so received. The subsequent legislation on the subject of roads and highways, in cases of county roads, allowed payment to be made to individuals for any improvements which might be destroyed in laying out and opening county roads; and subsequently by the act of 1802, and the supplementary and additional acts on the subject, compensation is authorized to be made for the land itself taken for the public roads. This is, to be sure, not in accordance with the provisions of the grants, but as it was a relinquishment by the public to individuals, it was a subject perfectly within the power of that public, to do with as they pleased. Still, as regards state roads, or other great public highways, the law remains unaltered, that for the land itself taken, the person holding it has no right to be paid, because compensation has already been made to him, or those under whom he claims, by the allowance of six per cent. for which the public never received a cent.

The law is well settled that the public may either exercise this power itself or delegate the power to a company created for the purpose, allowing them to take certain tolls as a recompense for the expenditure in the construction of the road. The supreme court in the case of M'Clenachan v. Curwen, (3 Yeates, 373; 6 Binney, 514,) say, "We cannot, therefore, consider the legislature applying a certain portion of every man's land for the purpose of laying out public roads and highways without compensation, as any infringement of the constitution-such compensation having been originally made in each purchaser's particular grant. But it is objected that even if the legislature might do this themselves, yet they could not grant the right of doing it, to individuals or a corporate body for their own emolument, so as to deprive the inhabitants or travellers of the free use of the road, by imposing tolls or other restrictions in the use of it. To this it may be answered, that such an artificial road, being deemed by the legislature a matter of general and public utility, and considering that it was not to be effected but at a considerable expense, and that the expense could not be defrayed, nor expected to be defrayed in the ordinary way, by the inhabitants of the several townships through which the road was to run, they devised this mode of accommodating the public with such a road at the expense of private individuals, who, from a prospect of deriving some small profit to themselves, might be induced to do it. It was immaterial to the public whether it was done by a general tax, to be laid on the people at once, or by the gradual payment of certain specified sums by way of tolls on those who used the road only; the latter being considered as the most equal mode of defraying the charge of making and keeping such road in repair. For although every man has a right to the free use of a public road, yet every member of the community may be taxed for making that road in any manner that the legislature may think reasonable and just."

The roads of the province were divided into three kinds-first, those called in the act of 1700,"the king's highways," or "public roads,”

which were laid out by the governor and council: these were usually called the great provincial roads.

Second. The roads or cartways leading to such great provincial roads, laid out by order of the justices of the county courts after the return of viewers, that the same were necessary for the convenience of the public: such parts of these roads as ran through any man's improved ground were to be paid for out of the county stock.

Third. Private roads, likewise laid out by order of the county court, on the application of any person for a road to be laid out from or to their plantations or dwelling places, to or from the highway. The improved grounds through which these roads run, were directed to be paid for by those, at whose request, and for whose use the same were laid out.

From the year 1700 to the present time, there has been provision by law for opening private roads, giving a man the means of ingress and egress to and from his lands and the public road or highway; in other words, prescribing the mode in which a right of way, which exists from necessity, shall be designated and secured. To the exercise of this right there can and ought to be no objection, as it is one growing out of the necessities of society.

The question as to rights on our rivers has been before our courts in various shapes. In the case of Carson v. Blazer, (2 Binney, 475,) it was held, that the riparian owner had no exclusive right in the stream of the Susquehanna, but any person might fish therein if he did not draw out on the shore, which belonged to the riparian owner. In the case of Ueberoth v. the Lehigh Coal and Navigation Company, (7 Hazard's Register, 92,) Judge Huston, in his charge to the jury, says, "The state may improve our navigable stre ms itself, or permit companies or individuals to improve them for the use of the public or themselves, authorizing them to be compensated for so doing by the tolls to be received;" thus putting them on the same footing as the supreme court had previously placed turnpike roads. Again, he says in the same case, "Along all the rivers, almost, there is a strip of land between the bank and low water, which is covered when the river is up, but which, as it falls, is left bare, &c. This is a peculiar kind of property. The owner of the land bounding on such a stream, has a right to use it to a certain extent, until the state chooses to claim and use it, or authorize others to do it, for the purpose of navigation. The owner of the adjacent ground has a right to fish opposite to and draw out upon it; perhaps to take the wood off it. But were he to build a wharf or make a wingwall, which, as the river rose, would offer any obstruction to the navigation, he could be indicted and convicted of a nuisance, and be compelled to abate it. The property in the land between high and low water is a curious kind of right. It is a qualified, not an absolute one. It is better than that of any one else, but always subject to the superior right of the state. For the swelling on such land, (for purposes of navigation,) the owner of the adjacent soil is entitled to no damages, because the land does not belong to him. For the strip of land, said by the surveyor to be two rods wide and upwards of eighty rods long, along the river, and which is alleged to be flooded, if it be not below the bank, but above it, the plaintiff would be entitled to compensation in damages: I understood the witness say the lines run to low water mark. You were on the ground and understood what is meant by the term bank;