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 Ν. Ε. 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 the public in having an individual sell such a commodity as coal in a municipality will not warrant the taking of property under eminent domain for the erection of a coal shed by him, to be used solely for storing his own coal, to be sold to his customers for personal profit, as this is not a public use. Ferguson v. Illinois C. R. Co. (1926) 202 Iowa, 508,- A.L.R. -, 210 N. W. 604. 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 Ν. Ε. 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 statute, or elsewhere, answering these inquiries, nor is there anything in petitioner's petition indicating what kind of 'other public machinery' he is about to build. It is apparent that he does not seek merely to establish the right to build a public gristmill, but, as shown by his petition, his purpose was, and is, to take or injure the property of appellee for the purposes of other mills or machinery. The evidence which was heard by the court below fully justifies the conclusion that, for all the purposes of a public gristmill, his own property affords ample facilities for the production of more power than could be practicably used for a gristmill. Moreover, if the taking of private property for other public mills or machinery is not for a public use, it must be conceded, at most, that he seeks to condemn private property for a public and a private use, which the law will not permit him to do." See the reported case (KESSLER V. INDIANAPOLIS, ante, 1), in which the court held that the intent to take land for a private purpose formed at least a part of the reason for the taking, which was alleged to be for park purposes, and that the exercise of eminent domain was not warranted, as the public and private purposes could not be separated. It was held in Berrien Springs Water-Power Co. V. Berrien Circuit Judge (1903) 133 Mich. 48, 103 Am. St. Rep. 438, 94 N. W. 379, that a statute was unconstitutional which purported to authorize the exercise of the power of eminent domain for the purpose of constructing a navigable waterway with appurtenant water power which might be used for private purposes. In this case, a water-power company proposed to improve the navigability of a stream for the double purpose, the court said, of carrying on a transportation business, which it might be admitted was public, and of furnishing water power, which it might own, lease, and use for private purposes. The court conceded that land may be taken under the power of eminent domain for a legitimate public purpose even though a private purpose will be thereby incidentally subserved, and impliedly conceded that, had the statute confined the exercise of the power of eminent domain to the purpose of improving the navigability of the stream, the fact that a water power would incidentally be created which might be used for private purposes would not destroy the public character of the use. But the court pointed out that the statute contained no provision by which the taking could be limited to the public necessities involved in the improvement of the navigability of the stream. The petition for condemnation alleged that the corporation required the land proposed to be condemned, for the purposes of its incorporation, which included not only the improvement of the navigability of the stream, but the creation of a water power which, at its option, it might sell or lease to others or use itself. In Stewart v. Great Northern R. Co. (1896) 65 Minn. 515, 33 L.R.A. 427, 68 N. W. 208, in construing the Minnesota statute providing for the erection of public grain warehouses and grain elevators on railroad rights of way, and providing for condemnation proceedings in connection therewith, the court took the view that the statute would be unconstitutional if it were construed, as it was contended it should be, so as to authorize the party seeking condemnation of land for an elevator site to use it, at his option, either for the purchase or for the sale or for the shipment of grain, or for the purpose of storing grain for the public for hire; or, in other words, as authorizing such party to use the elevator exclusively for the purchase and sale of grain on his own account or for the storage of grain for the public for hire. The court said that, if this were the proper construction of the statute, it would be unconstitutional for the reason that it authorized a party to exercise the power of eminent domain for a public or private use at his option. See in this connection, Atty. Gen. v. Eau Claire (Wis.) II. b, supra, under heading, "Surplus power or water." And the principle that where condemnation proceedings are instituted to condemn property for both public and private uses the right to proceed must be denied is applied in 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, where a canal and power company was denied the right to condemn land for the purpose of creating a water-power plant, and of "supplying water power from the wheels thereof," and for the purpose of generating heat and electricity for heat, lighting, and power purposes. The court said that here were two distinct purposes and uses to which the company proposed to put the defendant's property, and that it was necessary that both should be public uses. And the view was taken that, while the generation of electricity by water power for distribution and sale to the general public on equal terms, subject to governmental control, is a public enterprise, and property so used is devoted to public use, yet the creation of water power and a water-power plant for the purpose of "supplying water power from the wheels thereof" to the public is a private enterprise, in aid of which the power of eminent domain cannot be exercised, the nature of water power being such that, under the conditions indicated, it could not be used by the public to such an extent as to make the use a public one. It is held, also, in Miller v. Pulaski (1909) 109 Va. 137, 22 L.R.A. (N.S.) 552, 63 S. E. 880, that a statute which purports to authorize the exercise of the power of eminent domain for the purpose of supplying the inhabitants of a town with water and electric lights, a public use, and supplying other persons, companies, or corporations with electric light or power, a private purpose, cannot be upheld as to either purpose, since the public and private purposes are inseparable. And it was held in State ex rel. Puget Sound Power & Light Co. v. Superior Ct. (1925) 133 Wash. 308, 233 Pac. 651, that the right of eminent domain could not be exercised, because a private use was combined with a public one in such a way that the two could not be separated, where a power and light company invoked the right of eminent domain to acquire a transmission line from a generating plant which it was constructing, wherein it proposed to produce electric current to be used for public purposes to the extent that there was demand for such use, such transmission lines being intended to transmit power for use in operating street railways, interurban lines, street and home lighting, and for operating manufacturing plants; the purposes for which the corporation was organized were both public and private, and it was found that at the peak hour, or time of highest demand for public uses upon its available current, it had current actually devoted to private uses to the extent of from 25 to 30 per cent of its total supply, while, at the hour of minimum demand for its public uses, it had available for private uses 50 to 60 per cent of its total current, and that it had a considerable surplus over all demands, both for public and private uses. The court said: "As we view it, this is not a case of providing for a public use, and, when the maximum for that purpose is not required, devoting it, or a part of it, to some other purpose so as to prevent waste, but a case of actually devoting one fourth of the total available supply to private use at the same time of the highest demand for public service, and still have over and above the two combined a supply of approximately one sixth of the total present available supply. Under such circumstances we know of no sound reason for holding, nor any case judicially declaring, the contemplated use of additional property to be really public, hence there is no necessity shown for the taking of the property sought to be acquired." The above conclusion was reached in State ex rel. Puget Sound Power & Light Co. v. Superior Ct. (Wash.) supra, notwithstanding a finding that the transmission lines in question "would not be constructed in any other manner for the transmission of all of such power than they would be constructed if wholly devoted to trans |