D.E. HOLBROOK, J. (dissenting).

This writer finds himself unable to agree with the majority in this case.

Plaintiff appeals as of right from an August 30, 1974 judgment dismissing its declaratory judgment action which had alleged that MCLA 229.1; MSA 9.281 was unconstitutional.

The statute in question basically provides that the person seeking to establish a private road may make an application to the township supervisor who will then give notice to the owner of the land over which the road is proposed to be laid out. Pursuant to such notice, a meeting is held for the purpose of striking a jury which shall determine the necessity of the road. The following sections of the statute deal with formation of the jury, assessment of damages, payment thereof, and the actual laying-out of the road. The statute has been virtually unchanged since its enactment nearly a hundred years ago.

The sole issue in this case is whether or not the statute in question is constitutional. The trial court held that it was, and this writer agrees.

Plaintiff first argues that the statute provides for an unauthorized use of the power of eminent domain under Const 1963, art 10, § 2. Plaintiff bases this argument on the fact that the property which is taken is not put to a public use. The intervening defendants use this same argument in asserting that the statute does not derive from the eminent domain power of the state at all; eminent domain only applies if the property in question is taken for a public use. This writer agrees with the intervening defendants. If property is taken for a private use, then it can only be done under some power other than that of eminent domain. This makes such cases as Shizas v Detroit, 333 Mich. 44; 52 N.W.2d 589 (1952), largely inapplicable as they deal with eminent domain.

In many states the actual organic law provides for certain instances where the private property of one person may be taken and put to the private use of another. In these instances, there is not so much a current "taking" as there is an inherent limitation on the extent of ownership of private property. This was the situation that existed in Michigan prior to the 1963 Constitution. In Michigan, Const 1850, art 18, § 14 and Const 1908, art 13, § 3, both provided for the taking of private property to establish private roads as is contemplated in MCLA 229.1; MSA 9.281. However, all language dealing with the taking of private property to establish private roads was deleted from Constitution 1963, which contains no provision whatever comparable to the language which had appeared in Constitution 1850 and Constitution 1908. It appears that this deletion may have been made under the mistaken belief that the common law "easement by necessity" was sufficient to fill the need which had previously been filled by the constitutional provision coupled with the statute. See 2 Official Record, Constitutional Convention 1961, pp 2602, 2846. The common law easement by necessity, however, cannot fill that gap because it requires privity of estate between the property holders in question. It is actually an easement which arises by implication where a grantor conveys land to a grantee, and where there is no access to the grantee's land except across the land of the grantor. In such a case, the law would imply that it had been the intent of the parties to convey an easement over the grantor's land on behalf of the grantee. In saying that the easement in such a case was actually the implied intent of the parties, the issue of whether or not there is actually a "taking" by the grantee of an easement over the grantor's property is avoided. If an easement is what the parties originally intended, then all the court is really doing is enforcing the original intent of the parties. While it is sometimes said that the rule would not apply if a contrary intent can be shown, it is probably closer to the truth to say that such intent is actually irrebuttably presumed. Douglas v Jordan, 232 Mich. 283; 205 N.W. 52 (1925). And, of course, if such intent is irrebuttably presumed, then the enforcement of an easement in favor of a grantee in such a case would be no different from the actual granting of a private road under the statute in question insofar as the owner of the subservient estate is concerned. In either case, his property has been taken for the use of another private person without the necessity of proving his own consent to the taking. The only practical difference then between the common law easement by necessity and the private road contemplated by the statute in question is that the common law would require privity of estate. Under either theory, the property of one individual may, without his actual consent, be taken for the use of another private individual.

Under the common law, an easement by necessity ended when the necessity ended. The prime example of this was when the holder of the easement acquired the subservient estate. The statute in question requires a finding of necessity before a private road will be granted. The right of an individual to have a private road declared is based upon absolute necessity, and upon the necessity ceasing the right to use the road would end.

The authority of the Legislature in passing such a statute does not derive from the eminent domain power of the state, nor is it provided for specifically in the Constitution of 1963. Finally, the statute does not accurately restate the common law "easement by necessity" as the statute has no requirement of privity between the estates in question.

Of course, an owner's right to use his property is subject to reasonable regulation, restriction and control by the state in a legitimate exercise of its police powers. The state has a legitimate interest in protecting the property rights of its citizens. In protecting these rights, it sometimes becomes necessary to weigh and balance competing interests. As a starting point, the state seeks to insure to every property owner the fullest and most complete use and enjoyment of his property as is possible. In order to prevent one party from being totally deprived of the use and enjoyment of his property, it is not unreasonable to require another party to suffer a private road to pass over his property.

This writer concludes that the provision of Const 1963, art 3, § 7 is controlling: "The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed". It can be seen from the above-quoted article of the Constitution of 1963, that the aforementioned deletion from the Constitution of 1963 of the section which dealt with the power of the Legislature to create laws such as the statute in question has no necessary effect upon that statute. In other words, if the statute is not found to be repugnant to the Constitution of 1963, it is valid. This writer would hold that it is not repugnant to the Constitution of 1963.

The decision of the trial court should be affirmed, and this writer so votes.