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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 N. E. 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 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 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 N. 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

ping the flow of the gas and cutting off the supply, where severed, to the public; still another object is to prevent the gas so accumulated in the pipe lines from destroying the rubber rings used in connecting the joints of pipe, and causing blow-outs, increasing the expense in maintaining the pipe lines and resulting often in the interruption of the business and supply of gas to consumers. That this plan for conserving the product and facilitating its transportation is according to the best and most scientific methods is clearly shown by expert witnesses examined at the trial. . . . But the claim on behalf of the defendants is that the real purpose of the petitioner in taking the defendants' land is to get the gas to their gasolene plant to extract the gasolene and reap a profit thereon, and that the other purposes named are mere pretenses to cover the main object, the extraction of the gasolene and adding to the profits of the business. We do

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not think this is a fair conclusion from the evidence. In the case here presented it is true the public will derive no direct benefits from the gasolene, but, if the quality of the gas served is better, and the method and means of transportation thereby made more secure and constant, the public will get that use from the pipe lines proposed to be built over defendants' land. But this is not the main advantage; the public will actually be served with the gas transported through these pipe lines, and those lines will be thereby devoted mainly to public use. Indeed these pipe lines, when built through defendants' land by way of the gasolene plant, will constitute a part or section of the plaintiff's main line of pipe through which they propose to serve the public, and which will be subject to control by the public authorities. .

The mere fact that some profit may be incidentally derived by plaintiff from the extraction and marketing of the gasolene does not change the character of the use. . . . Moreover, it is settled law that where a corporation authorized to do so assumes the burden of a public service, the methods

and manner of discharging its duties is largely left to the discretion of its board of directors, and this includes the right to determine the route and quantity of land necessary to be taken for the public use, subject of course to the control of the courts on the question of the public use, and generally the burden is on the landowner to show that the land is to be devoted not to a public but a private use."

And the fact that the pipe line to the gasolene plant did not lead off gradually from the main line of the gas company, but at right angles thereto, in other words, that the land which the company sought to acquire was a narrow strip which made possible an apparent diversion from the main pipe line through two pipes, one of which took the gas to the gasolene plant, while the other served as a return conduit,-was held not to make any practical difference in the conclusion above indicated, or to characterize the use as a private rather than a public one. Pittsburg & W. V. Gas Co. v. Cutright (W. Va.) supra.

Miscellaneous.

It has been held that the public character of a proposed change of a street railway terminal, for which the exercise of eminent domain is invoked, is not affected by the fact that the improvement is undertaken at the suggestion of private parties, viz., benefactors of a college which would be benefited by the improvement through removal of the tracks from proximity to college dormitories, and through the fact that the college would have a connected and unbroken campus. Rowland v. Mercer County Traction Co. (1917) 90 N. J. L. 82, 102 Atl. 814, affirmed without opinion in (1917) 91 N. J. L. 332, 102 Atl. 814.

It was held in New York C. & H. R. R. Co. v. Metropolitan Gaslight Co. (1875) 63 N. Y. 326, that it was not a valid objection to a proposed improvement by a railway company, for which it sought to exercise the power of eminent domain, that perchance the same might confer benefits and advantages upon business arising from structures essential to the successful operation of the railroad, but not of

themselves authorizing the appropriation of land to insure their construction, within the rules applicable to eminent domain proceedings.

A case of possible interest, though not strictly in point in the annotation, as it does not appear that the court regarded the incidental purposes as merely private, is Ryan v. Louisville & N. Terminal Co. (1899) 102 Tenn. 111, 45 L.R.A. 303, 50 S. W. 744, which holds that a statute giving a corporation organized to furnish railroad terminal facilities the right of eminent domain is not rendered unconstitutional as authorizing the taking of property for private purposes, by the fact that the corporation is authorized to maintain at its passenger station a hotel, restaurant, and news stand. The court took the view that, where such a corporation has acquired property to serve the object of its creation, in the construction of a passenger station, it may exercise, if it deems best, the purely incidental right to provide these accommodations for the public.

The right to condemn land for the transmission of electric current and power by a corporation having the power of eminent domain for that purpose will not be refused because the proof shows that its purpose is to carry telephone wires on the line for its own sole use. Joyce v. Texas Power & Light Co. (1927) Tex. Civ. App. 298 S. W. 627. The court observed that the extent of its opinion was that a mere contemplated secondary use of the kind under consideration, though improper and not granted, would not of itself destroy the right to condemn for an authorized

use.

III. Incidental public use or benefit.

a. Rule in general.

It has been shown above that a merely incidental private use or benefit will not defeat the exercise of eminent domain if the paramount, primary purpose is a public one; and the converse of this rule is true, viz., that if the chief, dominating purpose or use is private, the mere fact that a public use or benefit is also incidental

ly derived will not warrant the exercise of eminent domain. (As stated under I., supra, the annotation does not cover that large class of cases involving merely the question whether the term "public purpose" means public advantage or benefit.)

California.-Lorenz v. Jacob (1883) 63 Cal. 73; Gravelly Ford Canal Co. v. Pope & T. Land Co. (1918) 36 Cal. App. 556, 178 Pac. 150.

Georgia. Thom v. Georgia Mfg. & Pub. Serv. Co. (1907) 128 Ga. 187, 57 S. E. 75 (recognizing rule).

Indiana.-KESSLER V. INDIANAPOLIS (reported herewith) ante, 1; Fountain Park Co. v. Hensler (1927) Ind., 50 A.L.R. 1518, 155 N. E. 465; Great Western Natural Gas & Oil Co. v. Hawkins (1902) 30 Ind. App. 557, 66 N. E. 765; Gary v. Much (1911) · Ind. App., 94 N. E. 583, rehearing denied in (1911) Ind. App. N. E. 609.

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Massachusetts. Opinion of Justices (1910) 204 Mass. 607, 27 L.R.A. (N.S.) 483, 91 N. E. 405; Opinion of Justices (1910) 204 Mass. 616, 91 N. E. 578; Salisbury Land & Improv. Co. v. Com. (1913) 215 Mass. 371, 46 L.R.A. (N.S.) 1196, 102 N. E. 619.

Michigan. Pere Marquette R. Co. v. United States Gypsum Co. (1908) 154 Mich. 290, 22 L.R.A. (N.S.) 181, 117 N. W. 733.

New York.-Re Eureka Basin Warehouse & Mfg. Co. (1884) 96 N. Y. 42. North Carolina. Stratford v. Greensboro (1899) 124 N. C. 127, 32 S. E. 394.

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61 L.R.A. 129, 99 Am. St. Rep. 855, 43 S. E. 194.

If the public use is contingent and prospective, and the private use or benefit is actual and present, the public use will be regarded as incidental to the private use, and in such a case the power of eminent domain cannot lawfully be exercised. KESSLER V. INDIANAPOLIS (reported herewith) ante,

1.

So, if the special benefit to be derived from land sought to be appropriated under eminent domain is wholly for private persons, the use is a private one, and is not made a public use by the fact that the public has a theoretical right to use it, or that the public will receive an incidental or prospective benefit therefrom. Fountain Park Co. v. Hensler (Ind.) supra (holding unconstitutional a statute which attempted to confer the right of eminent domain on Chautauqua corporations).

And the view that the use is not made public, warranting the exercise of eminent domain, merely by reason of a purely theoretical right of the public to service therefrom, if the actual present purpose is to serve merely private interests, is supported by Brown v. Gerald (1905) 100 Me. 351, 70 L.R.A. 472, 109 Am. St. Rep. 526, 61 Atl. 785. The court observed that there must be more than a mere theoretical right to use; that it must be an actual, effectual right to use.

And it is incumbent upon the corporation or individual seeking to exercise the right of eminent domain to show both the necessity and the purpose; and, if it appears that the alleged public purpose is purely collateral, and that the real, essential purpose is to acquire lands and streams needful and to be used for the purpose of carrying on a private business enterprise, although the public use might be subserved incidentally, the taking will not be permitted. Thom v. Georgia Mfg. & Pub. Serv. Co. (1909) 128 Ga. 187, 57 S. E. 75 (holding, however, that the evidence was sufficient to sustain a finding that the taking was primarily for a public use).

While incidentally it may be an

advantage to the public that private persons prosper, if the essential character of the transaction in its direct object is private benefit to individuals, the purpose is not public, warranting the exercise of the power of eminent domain. Salisbury Land & Improv. Co. v. Com. (1913) 215 Mass. 371, 46 L.R.A. (N.S.) 1196, 102 N. E. 619 (see this case in the annotation in 14 A.L.R. on p. 1351).

And the fact that the use to which property is intended to be put, or the structure intended to be built thereon, will tend incidentally to benefit the public by affording additional accommodation for business, commerce, or manufacture, is not sufficient to bring the case within the operation of the right of eminent domain, so long as the structures are to remain under private ownership and control, and no right to their use or to direct their management is conferred on the public. Re Eureka Basin Warehouse & Mfg. Co. (1884) 96 N. Y. 42.

In Gravelly Ford Canal Co. v. Pope & T. Land Co. (1918) 36 Cal. App. 556, 178 Pac. 150, the court said that it had been uniformly held in that state that the power of eminent domain cannot be used by a private person to promote private enterprises, no matter how necessary or advantageous it may be to their success or however beneficial to the public. The case is within the scope of the annotations on the subject of the exercise of eminent domain for the purpose of irrigating land of private owners, in 9 A.L.R. 583, and 27 A.L.R. 519, and is set out in the annotation in 9 A.L.R. on p. 587.

It is pointed out, also, in Ferguson v. Illinois C. R. Co. (1926) 202 Iowa, 508, A.L.R. -, 210 N. W. 604, that, although the public may receive a substantial benefit from the use of certain property by private individuals, this fact does not necessarily constitute a public use of the property.

It is said (arguendo) in Chesapeake Stone Co. v. Moreland (1907) 126 Ky. 656, 16 L.R.A. (N.S.) 479, 104 S. W. 762, that if "public use" were contrued to mean that the public would be

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