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benefited in the sense that the enterprise or improvement for the use of which the property was taken might contribute to the comfort or convenience of the public, or a portion thereof, or be deemed necessary for their enjoyment, there would be absolutely no limit on the right to take private property; that it would not be difficult for any person to show that a factory, hotel, or other like improvement which he contemplated erecting or establishing, would result in benefit to the public, and, under this rule, the property of the citizen would never be safe from invasion.

b. Illustrations.

The cases set out below should be regarded as illustrative of the principles with which the annotation is concerned, and are not, as has been already intimated under other subdivisions, intended to show whether eminent domain may be exercised for specific objects, apart from any question of a combination of public and private purposes.

It is held in Lorenz v. Jacob (1883) 63 Cal. 73, that the power of eminent domain cannot be exercised where the main purpose shown by the evidence is the attaining of a supply of water for the working of the mining claims of the plaintiffs, although the intention may also be to supply water to others for mining and irrigation purposes. See in this connection, Eastern Oregon Land Co. v. Willow River Land & Irrig. Co. (Fed.) II. b, supra, under the heading "Irrigation" where the irrigation of its own land by an irrigation company was incidental to the public use.

And Re Eureka Basin Warehouse & Mfg. Co. (1884) 96 N. Y. 42, the court held that the project could not be regarded as for a public purpose or use justifying the delegation of the right of eminent domain, where a corporation was authorized to establish and maintain docks, basins, warehouses, and other buildings necessary for the docking and loading of vessels in connection with the creek and marsh lands contiguous to the city of Brooklyn; originally, the corporation was a

private enterprise, and had no power of eminent domain, but subsequently an act was passed purporting to confer such power upon it; this act declared that the basin of the company should be open to the public use for all vessels that might apply therefor, but there was a proviso which in effect reserved from the public use a large part of the basin and wharves, leaving open to the public simply a means of entrance and a comparatively small area in the center of the basin. In view of this proviso it was held that the project could not be regarded as for a public purpose or use. The court took the view that the incidental benefit which the public might receive by affording additional accommodations for business was insufficient to bring the case within the operation of the right of eminent domain, so long as the structures were to remain under private ownership and control, without right of use or management on the part of the public. See in this connection, cases cited II. b, supra, under the heading "Docks, harbor improvements," in which it was held that the private use was so incidental that it did not defeat the exercise of eminent domain.

So, if the substantial benefit from the opening of a street is for a private property owner, as an individual, and the benefit to the city is only incidental and purely prospective, the proceedings are ultra vires and void. Stratford v. Greensboro (1899) 124 N. C. 127, 32 S. E. 394.

And it was held in Gary v. Much (1911) - Ind. App. —, 94 N. E. 583, rehearing denied in (1911) Ind. App. 95 N. E. 609, that the vacation of a highway was for a private and not a public use, and was not warranted, where the evidence showed that the municipal authorities attempted the vacation on the theory, and with the idea, that it was necessary to have the street in question for exchange yards of several railroad companies, so that they might handle the products of a large steel company at that place, although the authorities also believed that the result would be of benefit to all the property in the

municipality and the community, and would benefit the public, and that the proposed vacation would relieve the municipality of a burden after the streets were occupied by the railway companies.

See in this connection, cases cited II. b, supra, under the heading, "Highways," where the public purpose was held paramount.

It has been held, also, that the service to the public is too remotely contingent to justify the exercise of the right of eminent domain by a water company which is engaged in furnishing water for a number of purely private purposes and institutions, and to the city and to a municipality only in the event of an emergency, although one of the purposes for which the company was incorporated was to supply water to the municipality, and it had previously done so before the city acquired its own water system. Wise v. Abilene Water Co. (1924) Tex. Civ. App. -, 261 S. W. 549. The court said that the public use of the water was not sufficiently specific and definite, nor was the public's right to the use of the water made to appear; also that the public use of the water was too remote and undefined to form the basis of the condemnation proceedings. See in this connection, cases cited II. b, supra, under the heading, "Surplus power or water," where the paramount purpose was the securing of a public water supply.

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So, it has been held that the state may not develop storage reservoirs for conserving the waters of the great ponds of the state, and increasing and regulating the flow of the outlet rivers and streams, for the chief purpose of increasing the capacity and value of the privately owned water powers on such rivers and streams, even though the proposed plan of state development of reservoirs for storing the waters may render the flow of the rivers of the state more uniform, conserve the water supply, and tend to the development of more mill sites and the enlargement of existing mills, all of which are incidentally of public benefit, since the public benefit is

only incidental, and the plan in its essential and legal aspect is merely an aid to private enterprise. Re Opinion of Justices (1919) 118 Me. 503, 106 Atl. 865. See in this connection, Black River Regulating Dist. v. Ogsbury and Hudson River Regulating Dist. v. Fonda, J. & G. R. Co. (N. Y.) II. b, supra, under heading, "Storage

reservoirs."

And in Fallsburg Power & Mfg. Co. v. Alexander (1902) 101 Va. 98, 61 L.R.A. 129, 99 Am. St. Rep. 855, 43 S. E. 194, the court held that the private benefit to be derived by a power company too clearly dominated the public interest to warrant its exercise of the power of eminent domain, as not only the public benefit to be derived was vague and indefinite, but, under the language of the charter, the right of the public to use the property might be withdrawn by the company at its will, where it was authorized to develop and use the water power of a river and generate electric or other power, light, or heat, and to be utilized, transmitted, and distributed for its own use, or for the use of other individuals or corporations, although the charter recognized it as an "internal improvement company." See in this connection, cases cited II. b, supra, under the heading "Surplus power or water," where the private use or benefit was held merely incidental.

Although the annotation does not cover the cases generally on the taking by eminent domain of land for side or spur tracks, attention is called to a Michigan case of this kind which appears to be of value on the general question here considered, the court in Pere Marquette R. Co. v. United States Gypsum Co. (1908) 154 Mich. 290, 22 L.R.A. (N.S.) 181, 117 N. W. 733, holding that a sidetrack of a railroad cannot be regarded as for public use, where it reaches a private factory, and the railroad company has contracted for its use only when it can use it without interfering with the business of the manufacturer.

As applying a somewhat analogous principle, attention is called to Locks & Canals v. Nashua & L. R. Co. (1870) 104 Mass. 1, 6 Am. Rep. 181, holding

in effect that the surrender by a railroad corporation into the exclusive use and occupation of private traders or manufacturers, of land in which it acquired an easement by exercise of the power of eminent domain, was such a departure from the public. purpose which justified the exercise of such power, as to entitle the owner of the fee to maintain a writ of entry to establish his right and to recover damages, although the railroad company derived incidental advantages from the transaction and did not intend to abandon permanently the use of the premises for a railroad.

Attention is called, also, to several illustrative cases where there was no incidental public purpose which would in itself, if it were the main purpose, authorize the exercise of eminent domain, but rather an incidental public benefit or advantage, which the court held did not warrant the exercise of eminent domain. The annotation does not, however, cover generally cases of this kind.

In Opinion of Justices (1910) 204 Mass. 607, 27 L.R.A. (N.S.) 483, 91 N. E. 405, the court held that the legislature cannot authorize a municipal corporation to secure by the power of eminent domain, or use the public funds to pay for, land abutting on a public street, to be leased to merchants for the promotion of the commercial interest of the municipality. The court took the view that a contrary position would make it possible for a city to take the home of a resident near the line of the thoroughfare, or the shop of a tradesman, and compel him to give up his property and go elsewhere for no other reason than that, in the opinion of the authorities of the municipality, some other use of the land would be more profitable, and, therefore, would better promote the prosperity of the citizens generally. The above decision, and also the somewhat similar case of Opinion of Justices (1910) 204 Mass. 616, 91 N. E. 578, are within the class of cases covered in the annotation in 14 A.L.R. 1350.

And it has been held that the incidental advantage to or interest of

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Lumber operations are clearly private enterprises, conducted upon private capital, for private gain; and, while promotion of their successful operation undoubtedly indirectly benefits the public at large, yet the power of eminent domain cannot rest merely on public benefit of this character. Paine v. Savage (1927) Me.—, 51 A.L.R. 1194, 136 Atl. 664. The court said that the public-benefit doctrine did not obtain in that state.

And, without attempting to cover the specific question involved, attention is called to Boyd v. C. C. Ritter Lumber Co. (1916) 119 Va. 348, L.R.A. 1917A, 94, 89 S. E. 273, in which it is held that the development by a private corporation of a tract of timberland is not a public purpose so as to justify the exercise of the right of eminent domain to secure a right of way between the tract and the sawmill of the owner, although provision is made in the statute for the use of the way by anyone having access to it. The court took the view that one of the requisites to justify condemnation is that the use of the property by the public must be a substantially beneficial one, and that in this instance the scheme for providing a private use for the owner of the tramway, together with a public use in the general public, was wholly impracticable, and in any event would be of no value whatever to the general public.

As applying the rule that to warrant the exercise of eminent domain there must be a public right of user, and not merely an incidental benefit to the public, see, for example, Brown v. Gerald (1905) 100 Me. 351, 70 L.R.A. 472, 109 Am. St. Rep. 526, 61 Atl. 785, in which the court denied the right to exercise the power of eminent domain

for the purpose of furnishing electric power for manufacturing purposes. And it was held that the exercise of eminent domain could not be justified on the theory that the company, because of its franchises, should be regarded as in a public service,-especially since the capacity for service was of necessity limited, and could not extend to the general public, and the service, therefore, was a matter of grace, and not of right.

IV. Purpose partly public and partly private.

The authorities hold that if there is a combined purpose, partly for public and partly for private use or benefit, and the two uses or purposes cannot be separated, eminent domain cannot be exercised.

Alabama. - Sadler v. Langham (1859) 34 Ala. 311; Columbus Waterworks Co. v. Long (1898) 121 Ala. 245, 25 So. 702 (dictum).

Illinois. Gaylord v. Sanitary Dist. (1903) 204 Ill. 576, 63 L.R.A. 582, 98 Am. St. Rep. 235, 68 N. E. 522.

Indiana.-KESSLER V. INDIANAPOLIS (reported herewith) ante, 1.

Kansas.-Lake Koen Nav. Reservoir & Irrig. Co. v. Klein (1901) 63 Kan. 484, 65 Pac. 684 (recognizing rule).

Michigan. Berrien Springs WaterPower Co. v. Berrien Circuit Judge (1903) 133 Mich. 48, 103 Am. St. Rep. 438, 94 N. W. 379.

Stewart

V. Great

Minnesota. Northern R. Co. (1896) 65 Minn. 515, 33 L.R.A. 427, 68 N. W. 208; Minnesota Canal & Power Co. v. Koochiching Co. (1906) 97 Minn. 429, 5 L.R.A. (N.S.) 638, 107 N. W. 405, 7 Ann. Cas. 1182.

Tennessee. Harding v. Goodlett (1832) 3 Yerg. 40, 24 Am. Dec. 546. Virginia. Miller v. Pulaski (1909) 109 Va. 137, 22 L.R.A. (N.S.) 552, 63 S. E. 880; Jeter v. Vinton-Roanoke Water Co. (1913) 114 Va. 769, 76 S. E. 921, Ann. Cas. 1914C, 1029 (recognizing rule).

Washington.-State ex rel. Harris v. Superior Ct. (1906) 42 Wash. 660, 5 L.R.A. (N.S.) 672, 85 Pac. 666, 7 Ann. Cas. 748; State ex rel. Puget Sound

Power & Light Co. v. Superior Ct. (1925) 133 Wash. 308, 233 Pac. 651.

In the reported case (KESSLER V. INDIANAPOLIS, ante, 1) the court says that, where the intention to confer a private use or benefit forms the purpose or a part of the purpose of the proceeding or taking, the power of eminent domain may not be exercised; and that it is only where the public and private purposes may be separated that the proceeding may be perImitted to be taken as to that part which is public in character.

And it is said (dictum) in Lake Koen Nav. Reservoir & Irrig. Co. v. Klein (Kan.) supra, that there is no question but that if a private use is combined with a public one in such a way that the two cannot be separated, the right of eminent domain may not be invoked to aid the joint enterprise. By this, the court said, it meant that the two purposes must together exist as main or principal ones.

So, a proceeding to condemn land under the power of eminent domain cannot be maintained unless the use to which the property is to be devoted is exclusively a public use; and where a proceeding is instituted in which it is sought to exercise the power to condemn property for both public and private uses indiscriminately, that is, where the purposes stated in the petition are part public and part private, the right to proceed must be denied. Minnesota Canal & Power Co. v. Koochiching Co. (Minn.) supra.

And it is said in Jeter v. VintonRoanoke Water Co. (Va.) supra, that where the power to take property for a public use, conferred by legislative act, is so combined with the right to use the property for private purposes that the public use cannot be separated from the private use and be so controlled as to safeguard the interests of the public therein, the authority to take the property is unconstitutional and void.

In State ex rel. Puget Sound Power & Light Co. v. Superior Ct. (Wash.) supra, the court observed that it, like many other courts, had often said that if a private use is combined with a public one in such a way that the two

cannot be separated, then unquestionably the right of eminent domain cannot be invoked to aid the enterprise.

But if the uses are separable, for which it is sought to exercise the power of eminent domain, even though the private use for which eminent domain may not be exercised is not merely incidental, it has been held that condemnation may be sustained, it being intimated that an injunction will lie in proper cases to prevent subsequently the unauthorized use. Thus, in Smith v. Western Maine Power Co. (1926) 125 Me. 238, 132 Atl. 740, where a corporation, which was given the power of eminent domain, was chartered for the purpose of generating and distributing electricity for certain purposes, including lighting, manufacturing, and industrial uses, and sought to take property under eminent domain for a relocation of its transmission line, the court held that the condemnation was good at all events for the transmission of the lighting current, and that a decree voiding the condemnation proceedings and ordering removal of the part of the new line already constructed, as a nuisance, was erroneous, even if it were assumed that the transmission of power was not a public use for which eminent domain could be exercised. It will be observed that this conclusion was reached notwithstanding the fact that the transmission of power was, as the court points out, not merely the incidental disposal of surplus power, but was one of the company's primary purposes, the other primary purpose being electric lighting, and it was expected that about one third of the company's current would be used for light and two thirds for power for farms, household purposes, and mills.

The rule above indicated that if the two purposes, public and private, are not separable, eminent domain may not be exercised, is illustrated by a number of cases.

Thus, the fact that a statute gave the right of eminent domain to persons proposing to erect a mill or other machinery, employing the generic term "mill," without limitation to

gristmills which ground for toll, this being the only class of mills the establishment of which was a public purpose for which the power of eminent domain might be exercised, was held in Sadler v. Langham (1859) 34 Ala. 311, to render the provision unconstitutional. The same principle is recognized (dictum) in Columbus Waterworks Co. v. Long (1898) 121 Ala. 245, 25 So. 702, the court saying that it is well settled that when an act authorizes a taking, and a private use is combined with a public use in such a way that the two cannot be separated, -as, where an act provides for the erection by a city of a dam across a river, either for the purpose of waterworks or for the purpose of leasing the water for private use; or where an act authorizes the taking of property for gristmills, sawmills, and paper mills jointly,-gristmills being under the statute public mills, and saw and paper mills not, the act is void.

And in Harding v. Goodlett (1832) 3 Yerg. (Tenn.) 40, 24 Am. Dec. 546, a petition in condemnation proceedings was held bad because it combined as the purposes of the proceeding the establishment of sawmills or paper mills-private purposes-with the establishment of a gristmill-a public purpose.

So, in holding that a legislature cannot authorize the condemnation of private property for the erection of public mills and machinery generally, without anything to show what is meant by a public mill, or anything to give the public any interest in a mill after it is erected, the court in Gaylord v. Sanitary Dist. (1903) 204 III. 576, 63 L.R.A. 582, 98 Am. St. Rep. 235, 68 N. E. 522, said: "It may be doubted whether the legislature, in fact, intended to extend the right of eminent domain to other than public gristmills. It carefully defines such mills, and prescribes the duties of the proprietors thereof and the rights of the public, making no mention whatever as to what is meant by the expression, 'other public mill or machinery.' What is a public mill? What is a public machinery? We find nothing in the stat

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