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provement had it not made such contract, if the dam will really be an aid to navigation and it will not be impaired by the use of the dam for generating power. The incidental use for power purposes of the dam seems to be regarded as a public use, but the court apparently considered it doubtful whether the power company had the right to exercise the right of eminent domain, and recognized the rule that an incidental private use will not defeat the exercise of eminent domain for a primary purpose which is a public one justifying its use.

And attention is called to Re Southern Wisconsin Power Co. (1909) 140 Wis. 245, 122 N. W. 801, where, also, the court regarded both purposes as public. The statute purported to authorize the construction and maintenance of a dam "to improve the navigation of the Wisconsin river

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and for the purpose of creating hydraulic power." In overruling the contention that the condemnation was for a private use, the court said that it had uniformly held that, where a dam is constructed in a navigable stream in aid of navigation, the purpose of its construction is public, and also that the taking of property for the generation of electric power for the purpose of sale is a taking of property for a public purpose; that the mere fact that a dam would not have been constructed were it not for the power generated by it did not argue that the dam would not in fact aid navigation when built, and that such a structure might be entirely lawful even though the legislative authorization for its construction was limited to the purpose of aiding navigation.

In Hendersonville Light & Power Co. v. Blue Ridge Interurban R. Co. (1917) 243 U. S. 563, 61 L. ed. 900, 37 Sup. Ct. Rep. 440, it was held not a valid objection to condemnation proceedings instituted by a railway company for the purpose of developing water power to generate electricity for the operation of the railway, that the charter authorized the sale of surplus power, and that the contemplated works would produce more power than would be needed for the

railway, it having been found in the state courts that the taking was for a public use, and the Federal Supreme Court taking the view that it was not warranted in assuming that the sale of surplus power, if there was any, was the real object of the enterprise or anything more than a possible incident, necessary to prevent waste, of the primary public use.

And in McMillan v. Noyes (1909) 75 N. H. 258, 72 Atl. 759, the court, in sustaining the right of a power company to exercise the power of eminent domain for the acquisition of flowage rights through establishment of a dam, since the use for which the rights were acquired, of generating electricity, was a public one, said that the fact that the corporation might also use some of the power developed by its dam for purposes that were not public, and for private gain, did not show that its use for general lighting purposes was not a public use, justifying its acquisition of flowage rights.

In Buckingham v. Smith (1840) 10 Ohio, 288, while the court said that canal commissioners were authorized by law to take water enough from a stream for canal navigation, but not for the purpose of creating hydraulic power to sell or lease on behalf of the state, it added that, in conducting waters through the feeder for the purposes of the canal, a discretionary power must necessarily rest in the agents of the state, and, in making such provision for a supply, it must frequently occur that a surplus will accumulate, and that the right to the use of this surplus water may be leased. The same principle finds support in Little Miami Elevator Co. v. Cincinnati (1876) 30 Ohio St. 629.

And the proposition that a public service corporation seeking to exercise the power of eminent domain for the purpose of constructing works necessary to the installation of a plant for generating electricity for public uses may anticipate future needs, and may sell for private use as much surplus power as the present needs of the public do not require, if the condemnation is in good faith, is supported by State ex rel. Lyle Light, Power &

W. Co. v. Superior Ct. (1912) 70 Wash. 486, 127 Pac. 104.

In Atty. Gen. v. Eau Claire (1875) 37 Wis. 400, although a statute authorizing a city to erect a dam at public cost across a navigable river, at the option of the city, either for the purpose of waterworks for the city or for the purpose of leasing the water power for private purposes, so that the power was alternative and optional either for a public or private use, was held unconstitutional, the court conceded that the legislature might properly grant to a city the power to lease the surplus water incident to the public purpose of establishing waterworks; and, the statute having been subsequently amended so as to make the power to construct the dam dependent on the power to construct waterworks, and to limit the power of the city to lease the water to the excess not required for the waterworks, its constitutionality was upheld in State v. Eau Claire (1876) 40 Wis. 533. See in this connection, Stewart v. Great Northern R. Co. (Minn.) under IV. infra. And see in Fallsburg Power & Mfg. Co. v. Alexander (Va.) under III. b, infra, where the court held that the private benefit to be derived by a power company dominated the public interest.

It is held in State, Slingerland, Prosecutor, v. Newark (1891) 54 N. J. L. 62, 23 Atl. 129, that the mere fact that, as a natural incident to the securing of a public water supply by a municipality, more water is obtained than is then requisite for public purposes, and that the city disposes of the surplus for an outside use, does not deprive the condemnation of its public character, the power to construct and maintain the works resting on a municipal public use, not on the disposition of the accidental excess.

So, the fact that a water company authorized to exercise the power of eminent domain for the purpose of supplying a village with water has, in order to secure certain riparian rights, contracted to supply the riparian owners, does not deprive the project of its character as a public use, for which the power of eminent domain may be 53 A.L.R.-2.

exercised. Pocantico Waterworks Co. v. Bird (1891) 130 N. Y. 249, 29 N. E. 246.

See in this connection, Wise v. Abilene Water Co. (Tex.) under III. b, infra, where the supplying of water to the public was only incidental.

In Thom v. Georgia Mfg. & Pub. Serv. Co. (1907) 128 Ga. 187, 57 S. E. 75, where by statute corporations operating or carrying on waterworks were given the right of eminent domain, it was held that the evidence justified a finding that the waterworks company in question was seeking to acquire land by eminent domain to meet the contract which it already had with private individuals and with a municipality for the supply of water, and that this was the main purpose for which it was desired to take the land, which would be covered by water backed up by a new dam, the construction of which was contemplated; in other words, that the primary purpose was to meet needs arising out of the growth of the municipality whose inhabitants and the city itself were supplied by water by the company. This conclusion, the court held, was justified, notwithstanding the fact that some of the water was used by the waterworks company in operating, in connection with its waterworks plant, a paper mill which it had recently enlarged. It will be observed that the question in such cases is largely one of fact regarding the primary purpose for which it is sought to take the property under eminent domain.

And, while the legislature cannot authorize the exercise of the power of eminent domain for the purpose of repairing or maintaining a dam solely for the benefit of mill owners, yet the facts that such repair or maintenance will operate incidentally to the benefit of the mill owners, and that they will share the burden of paying damages to the owners of contiguous land, and the expense of supporting the dam, do not deprive the purpose of its character as a public one, if it is otherwise such. Harris v. Thompson (1850) 9 Barb. (N. Y.) 350.

As involving a principle analogous

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to that in the cases above set out, attention is called to Orange v. Barre (1921) 95 Vt. 267, 115 Atl. 238, in which it was held that the fact that at certain seasons of the year more water was supplied by a municipal water system than was required for municipal purposes, and the surplus was sold for mechanical uses, did not deprive the property of its character as property used for a public purpose. The question, however, was as to exemption from taxation.

Storage reservoirs.

The fact that private interests may benefit incidentally by reason of the organization, under a conservation law, of river-regulating districts and the establishment of storage reservoirs for impounding the flood waters and releasing them in dry seasons, will not necessarily defeat the exercise of eminent domain for the project as for a public purpose and for the public benefit. Black River Regulating Dist. v. Ogsbury (1922) 203 App. Div. 43, 196 N. Y. Supp. 281, affirmed without opinion in (1923) 235 N. Y. 600, 139 N. E. 751.

And the fact that private interests might be subserved by the construction of a storage reservoir to collect the flood waters in a river, through the use of water for power purposes which the reservoir incidentally permitted, was held in Hudson River Regulating Dist. v. Fonda, J. & G. R. Co. (1926) 127 Misc. 866, 217 N. Y. Supp. 781, not to make the taking one for private use, for which eminent domain could not be exercised, where the primary purpose for the taking, under legislative authority, was a public one, to prevent floods, injury to property, and disease due to unsanitary conditions which followed floods or conditions of low water. conclusion was reached notwithstanding the fact that the power companies were to be paid 95 per cent of the cost of the improvement.

This

See in this connection, Re Opinion of Justices (Me.) under III. b, infra. Highways.

The conclusion of the trial court which hears the testimony, that the

public

interest will be subserved

by the proposed relocation of a highway for which it was sought to take land by eminent domain proceeding should be accepted, on appeal by the landowner, who objects to such relocation on the ground that private interest is the controlling consideration, unless the evidence decidedly preponderates against the conclusion reached. Weaver v. PennsylvaniaOhio Power & Light Co. (1926; C. C. A. 6th) 10 F. (2d) 759.

And statements by representatives of private interests or of municipal authorities as to reasons for relocation of a highway, viz., to the effect that the motive is to subserve private interests, will not necessarily control where the trial court has found that the change is in the interests of the public, for which eminent domain may be exercised. (Ibid.) It is held in this case that it may be found that the paramount reason justifying the exercise of eminent domain for relocation of a public highway is the public interest, to which benefits to private interests are merely incidental, notwithstanding the facts that a traction company desires to build a power station across the existing highway; that an agreement has been made with the highway commissioners for conveyance of a portion of the right of way for the new road; that the resolution of public interest was adopted on the same date as that of the agreement; that in the petition for relocation it was stated that relocation was believed to be a public benefit, because in its present location the road interfered with the erection of a new industrial plant; that a representative of the traction company had declared to the municipal authorities that the reason that it was necessary to move the road was to place its plant in a certain place, while the representative of the highway commissioners had also told the objecting landowner that the motive in moving the road was to accommodate the power company.

So, in sustaining the power of municipal authorities to vacate a street, the court in State, Kean, Prosecutrix, v. Elizabeth (1892) 54 N. J. L. 466, 24

Atl. 495, affirmed in (1893) 55 N. J. L. 337, 26 Atl. 939, held that the vacation should not be regarded as made merely to subserve a private interest, although the proceedings for vacation were taken immediately after a petition for such vacation had been presented by an owner of property through which the vacated portion of the street passed, and the vacation was desired by such owner for the purpose of affording an opportunity to locate extensive works thereon by a company desiring to purchase the land.

It was observed by the lower court that probably the principal inducement to the action of the municipal authorities was the desire to obtain the land; that, however, motives which induce municipal proceedings of this kind are always of a mixed character, regard for private interests being necessarily intertwined with public interests; that if the court can enter into the motives of municipal authorities in respect to acts of this kind in any case, it must be one in which the public interests have been glaringly sacrificed to subserve private ends; and that under all the circumstances the action of the city council in this instance was not properly the subject of suspicion as being influenced by any consideration other than that of conserving the best interests of the city.

And the fact that a railway company would be greatly benefited by the vacation of an existing street and the opening of a new street, to accomplish which it was proposed to take land of the complainant by eminent-domain proceedings, was held in Barr v. New Brunswick (1895) 67 Fed. 402, appeal dismissed in (1896) 19 C. C. A. 71, 39 U. S. App. 187, 72 Fed. 689, not to show conclusively that the use to which the land of the complainant was to be put was for the benefit of the railway company, and the proceeding in denial of due process of law. It was said that the fact that the railway company would be benefited by the proposed action, and that it had agreed to pay all necessary expenses, could not affect the matter; that the affidavit submitted clearly showed

that the public interest would be promoted by the proposed action; and that, if this were so, it was proper to invoke the right of eminent domain, although private interests might also gain largely.

It has been held, also, that the lowering of a street grade by municipal authorities, causing the damage complained of, is not to promote a private purpose or subserve a private enterprise, and, therefore, unauthorized, although a greater benefit therefrom results to a private corporation than to the public generally, and the change is being made in order to construct a belt-line railway in the street to connect with a plant of the corporation, which the municipal authorities are desirous of establishing in the city. Dobler v. Baltimore (1926) 151 Md. 154, 134 Atl. 201.

By way of illustration, attention is called, also, to Louisville & N. R. Co. v. Louisville (1908) 131 Ky. 108, 24 L.R.A. (N.S.) 1213, 114 N. W. 743, in which it was contended that the extension of a highway across a railroad track was for the private benefit of an individual, and not for a public use warranting the exercise of eminent domain; but the court held that, as the projected highway would connect with other streets, it was apparent that it was for the benefit of the public, and that the use was a public one, stating that the mere fact that a corporation or an individual may be deeply interested in or benefited by the taking of property will not of itself deny to the municipality the right to exercise the power; that it is probable that in every case where the right of eminent domain is exercised, private interest will be more or less benefited, but the existence of this fact will not be allowed to defeat the benefit that will accrue to the public.

See in this connection, Gary v. Much (Ind.) and Stratford v. Greensboro (N. C.) under III. b, infra, where the primary purpose for the opening or vacation of a highway was private.

Irrigation.

The fact that an irrigation company which is seeking to condemn land for canals, etc., necessary for an extensive

irrigation scheme, will irrigate some land of its own from the proposed system, does not necessarily preclude the exercise of it by eminent domain, if it is engaged in the general sale of water for irrigation and domestic purposes. Eastern Oregon Land Co. v. Willow River Land & Irrig. Co. (1913) 122 C. C. A. 636, 204 Fed. 516 (certiorari denied in (1914) 234 U. S. 761, 58 L. ed. 1581, 34 Sup. Ct. Rep. 777).

See annotations in 9 A.L.R. 583, and 27 A.L.R. 519, on exercise of eminent domain for purpose of irrigating land of private owner.

See also Lorenz v. Jacob (Cal.) under III. b, infra, where irrigation was an incidental purpose.

Docks; harbor improvements.

In a proceeding to restrain municipal authorities from condemning the plaintiff's property for proposed extensions of the public docks, it has been held that the probability that the for requirements strictly public wharves might not exhaust all of the piers and docks which it would be necessary to construct in carrying out the beneficial changes contemplated by the plan of the commission, and that there might be space which the city could only utilize by leasing it, would not necessarily determine that the improvement as a whole was not for a public use, but for a private purpose, for which condemnation proceedings could not be exercised. Dyer v. Baltimore (1905; C. C.) 140 Fed. 880, appeal dismissed in (1906) 201 U. S. 650, 50 L. ed. 905, 26 Sup. Ct. Rep. 759.

The question whether a municipality, in improving harbor facilities, may constitutionally exercise the right of eminent domain to condemn property to be used by prospective lessees from the city, is presented in other cases, of which Marchant v. Baltimore (1924) 146 Md. 513, 126 Atl. 884, is a good illustration. In sustaining the validity of the condemnation proceedings by municipal authorities, the court said: "The development of the harbor of Baltimore according to a comprehensive plan by which the commerce of the port will be most advantageously served, and its future

growth encouraged, is a project of distinctively public interest and purpose. It is concerned with the improvement and extension of a harbor service which constitutes an essential part of a system of water transportation connecting the port of Baltimore with the markets of the world. The public character of the use to which the harbor structures are devoted is not affected by the fact that they may not all be made available for the indiscriminate use of the public. By the allocation or lease of certain docks for the separate use of persons or corporations having a regular or continuous need of such conveniences, the city does not convert into a private use the public-port service which is thus in part provided. The municipal ownership is not thereby surrendered, and the use remains consistent with the public purpose for which the port accommodations as a whole are main

tained."

And in Re New York (1892) 135 N. Y. 253, 31 Am. St. Rep. 825, 31 N. E. 1043, it is held that the providing of proper places in a seaport where ships can be loaded and unloaded with proper facilities is a public duty, and that land taken for this purpose is taken for a public use, although some portion of the land actually used may be thereafter, in the discretion of the municipality taking the land, divided off and placed in the exclusive possession of a lessee for the sole purpose of using it in the transaction of the necessary business connected with the loading and unloading of vessels.

And the improvement of the Boston harbor and the reclamation of the commonwealth's flats at South Boston were held in Moore v. Sanford (1890) 151 Mass. 285, 7 L.R.A. 151, 24 N. E. 323, not to lose their character as a public purpose authorizing the exercise of the power of eminent domain, by the fact that an incidental and private advantage might result to the commonwealth by the sale of other flats, the taking of which was necessary to accomplish the public purpose contemplated by the act. The court said that if lands are taken for a public use and for the benefit of the com

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