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.

a

The fact that private interests may benefit incidentally by reason of the organization, under 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 Ν. Ε. 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 This

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.

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. С. 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 С. С. А. 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

munity, it is not of importance that individuals, or, as in this case, the commonwealth, may derive incidental advantage therefrom; and that the cases cited to the proposition that, if a private use is combined with a public use in such a way that the two cannot be separated, the whole act of taking is invalid, did not affect the case, since in this instance no land was taken for a private use, although an incidental and private advantage might arise from the taking for a public use.

Also, in N. Ward Co. v. Boston (1914) 217 Mass. 381, 104 Ν. Ε. 965, it was held that the taking of land in Boston harbor for the purpose of providing for the disposal of garbage and refuse of the city, being for a public purpose, was not invalid because it was made at the request of a contractor and the land taken was intended to be used, for some time at least, by him. The court said that if, as appeared in this instance, the primary object of the taking was for a municipal purpose, the particular manner in which the object aimed at was to be accomplished was immaterial.

See in this connection, Re Eureka Basin Warehouse Mfg. Co. (N. Y.) under III. b, infra, where it was held that the project could not be regarded as for a public purpose. Toll bridge; ferry.

An interesting case which illustrates the rule that, if the taking of property under eminent domain is primarily for a public purpose, its character in this respect is not changed by the fact that private interests are incidentally subserved, is McClintock v. Bovay (1924) 163 Ark. 388, 260 S. W. 395, in which the owner of a ferry across a river protested against the opening of a proposed road across his land to connect with a toll bridge, for which a franchise had been granted to one who had agreed to pay the expense of opening the highway; the situation seems to have been such that the complainant's ferry rights might be seriously injured by the diversion of traffic around his ferry, to the benefit of the holder of

the franchise of the toll bridge. But the court held that the condemnation was not being made for the benefit of the bridge company, but for the benefit of the public; and that the county remained responsible for compensation, notwithstanding the private agreement of the holder of the bridge franchise to defray the expenses; and overruled the contention that the land was wrongfully taken by a private corporation, the bridge company. Erosion.

In Kroon v. Jones (1924) 198 Iowa, 1270, 201 N. W. 8, it was held that property was not unconstitutionally taken for a private, and not a public, use by the action of county authorities, acting under statute, in taking steps to prevent erosion of a river, even though owners of land adjoining the same might receive a larger degree of benefit, where the improvement was shown to be for the public benefit of the district in question, through checking erosion and thus preventing possible future danger to other land, and protecting it from overflow.

Fisheries.

And it was held in Cottrill v. Myrick (1835) 12 Me. 222, that the public had such an interest in the preservation and regulation of the fisheries in a river emptying into the sea, through which river fish would ascend unless the stream were impeded by obstacles which they could not surmount; that a public purpose would be served by a statute designed for the regulation and protection of such fisheries, even though the interests of individuals or corporations were also incidentally subserved; and that it was not a valid objection to the statute that, in contributing incidentally to the advantage of private parties or corporations, it took property not for a public, but for a private, use. Drainage.

In State ex rel. Utick v. Polk County (1902) 87 Minn. 325, 60 L.R.A. 161, 92 N. W. 216, the court, in sustaining the validity of a statute providing for the drainage of wet and overflowed lands in certain cases, held that it was not important that proceedings under the statute were begun on petition by one or more private citizens, nor was it controlling that private interests were advanced and promoted. And the contention was overruled that the statute unconstitutionally provided for the taking of private property of individuals for private purposes.

Park purposes.

It was held in Bunyan v. Palisades Interstate Park (1915) 167 App. Div. 457, 153 Ν. Y. Supp. 622, that it was not a valid objection to condemnation proceedings instituted under statute to take land along the Hudson river for park purposes, that private interests desired the discontinuance of quarry works on the land taken, because of the annoyance caused by blasting in the quarry, and that such parties were so far interested in the improvement as to contribute largely to its cost, if the commissioners making the condemnation acted in good faith.

Attention is called, also, to Laird v. Pittsburg (1903) 205 Pa. 1, 61 L.R.A. 332, 54 Atl. 324, in which it is held that land may be taken under eminent domain for park purposes, although it is to be used for an extension of a free public library located in the park, and although one half of the directors of the library are appointed by private persons, the public appointing the other half. The court said it might be conceded, as contended, that a library in itself is not an integral part of a park, and were the taking complained of a taking directly and solely for a library site, a different question would be presented; but that a library occupying only a very small fraction of the park area, not interfering at all substantially with its open air and free space, does not differ in legal effect from museums, picture galleries, and other incidental means of promoting the entertainment and pleasure of the people; and that, therefore, should the city decide to devote the land in controversy to the enlargement of the library building, it could not fairly be said to be a use outside of what is legiti

mately implied in the authority to take for a public park.

See in this connection, the reported case (KESSLER V. INDIANAPOLIS, ante, 1).

Extracting gasolene from public gas supply.

It has been held that the facts that a gas company organized for the purpose of transporting and serving the public with natural gas is seeking to exercise the right of eminent domain for the purpose of acquiring a right of way for a pipe line to a gasolene plant which it is constructing for the purpose of extracting and preserving gasolene from the gas before it is distributed to consumers, and that it will derive a profit from such gasolene, will not render the use for which the land is sought a private one, if the plant will be useful to the public by purifying and conserving the gas and facilitating transportation. Pittsburg & W. V. Gas Co. v. Cutright (1918) 83 W. Va. 42, 97 S. E. 686. The court said: "It is clearly shown that the main business of the plaintiff is not the production of gasolene, and we think its right to erect somewhere along its line compressors and also gasolene plants or stations for extracting the gasolene and otherwise purifying the gas and facilitating its transportation, and to take land for that purpose, can hardly be denied. But the criticism is that incidentally the plaintiff will reap a profit from the gasolene so extracted, and that it cannot, by the power of eminent domain, take land for such purposes. The record shows, however, that conservation of gasolene, which is very desirable, if not almost imperative, is not the only purpose of extracting it and other liquid substances from the gas. Other objects are to be subserved thereby one of these is to serve the public with a purer quality of gas without material detriment to its heat properties; another is to avoid waste of the gas in great quantities by the necessity of maintaining at low places all along the line drips for draining and blowing out the gasolene and water which accumulate in the pipes, clogging and sometimes stop