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ute, 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 con

demnation 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

mitting power used wholly for public uses."

And it is assumed in 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, that a petition for condemnation of water power for purposes of generating electricity to supply a lighting plant and electric system, a public purpose,-and also to furnish power to the public generally, -a purpose deemed by the court to be private, and not public,-was bad. The court said, however, that the petition might be amended so as to ask only for the condemnation of land sufficient for the public purpose.

Attention is called, also, to Chicago & N. W. R. Co. v. Galt (1890) 133 III. 657, 23 N. E. 425, 24 N. W. 674, where the purposes for which it was sought to condemn land were both public, but one was for a use for which the petitioner was not authorized to take land by eminent domain; and it was held that as the two purposes for which the condemnation was made were so inseparably connected in the petition and judgment in the condemnation proceedings as not to be capable of severance, the court was without jurisdiction and the condemnation proceedings could not be sustained. The case was one where a railroad company sought to take land under eminent domain by a petition which stateed that the land was needed by the company for a right of way,-a purpose for which the company had power to condemn land, and for the alteration of a street,—a purpose for which it had no such power.

See in this connection, Re Southern Wisconsin Power Co. (Wis.) II. b, supra, under the heading, "Surplus power or water."

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ville & W. R. Co. (1908) 208 U. S. 598, 52 L. ed. 637, 28 Sup. Ct. Rep. 331, 13 Ann. Cas. 1008 (spur track); Union Lime Co. v. Chicago & N. W. R. Co. (1914) 233 U. S. 211, 58 L. ed. 924, 34 Sup. Ct. Rep. 522 (same); Barr v. New Brunswick (1895; C. C.) 67 Fed. 402, appeal dismissed in (1896) 19 C. C. A. 71, 44 U. S. App. 257, 72 Fed. 689; Re Rouge River (1920; D. C.) 266 Fed. 105 (improvement of navigable river); Alabama Power Co. v. Gulf Power Co. (1922; D. C.) 283 Fed. 606 (recognizing rule; condemnation under Federal Water Power Act); Weaver v. Pennsylvania-Ohio Power & Light Co. (1926; C. C. A. 6th) 10 F. (2d) 759 (relocation of highway). See also United States v. River Rouge Improv. Co. (1922; C. C. A. 6th) 285 Fed. 111, reversed on other grounds in (1926) 269 U. S. 411, 70 L. ed. 339, 46 Sup. Ct. Rep. 144; United States v. Burley (1909; C. C.) 172 Fed. 615, affirmed in (1910) 102 C. C. A. 429, 33 L.R.A. (N.S.) 807, 179 Fed. 1 (irrigation project).

Arkansas.-Cloth v. Chicago, R. I. & P. R. Co. (1910) 97 Ark. 86, 132 S. W. 1005, Ann. Cas. 1912C, 1115 (relocation of railroad freight depot); McClintock v. Bovay (1924) 163 Ark. 388, 260 S. W. 395 (opening of highway).

California.-Santa Ana v. Harlin (1893) 99 Cal. 538, 34 Pac. 224 (opening of highway).

Illinois. Summerfield v. Chicago (1902) 197 Ill. 270, 64 N. E. 490 (widening of street); Chicago, B. & Q. R. Co. v. Naperville (1897) 169 Ill. 25, 48 N. E. 335 (extension of street); Road Dist. v. Frailey (1924) 313 Ill. 568, 145 N. E. 195. See also Department of Public Works & Bldgs. v. Caldwell (1921) 301 Ill. 242, 133 N. E. 642.

Kentucky. Shirley v. Southern R. Co. (1905) 121 Ky. 187, 89 S. W. 124 (furnishing of railroad right of way); Henderson v. Lexington (1908) 132 Ky. 390, 22 L.R.A. (N.S.) 20, 111 S. W. 318 (vacation of street); Riley v. Louisville, H. & St. L. R. Co. (1911) 142 Ky. 67, 35 L.R.A.(N.S.) 636, 133 S. W. 971, Ann. Cas. 1912D, 230 (spur track).


V. Boston

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Bashor v. Bowman

(1915) 133 Tenn. 269, 180 S. W. 326 (fact that highway is opened and maintained at expense of private persons does not detract from its public character).

Wisconsin.-Chicago & N. W. R. Co. v. Morehouse (1901) 112 Wis. 1, 56 L.R.A. 240, 88 Am. St. Rep. 918, 87 N. W. 849 (spur track); Wisconsin River Improv. Co. v. Pier (1908) 137 Wis. 325, 21 L.R.A. (N.S.) 538, 118 N. W. 857 (construction of dam in aid of navigation).

If the public necessity and convenience require the improvement, it is immaterial at whose expense it is made; and a donation or contribution from individuals to relieve the burden on the municipality has no tendency to prove that the extension of a street is not a public benefit. Chicago, B. & Q. R. Co. v. Naperville (1897) 169 Ill. 25, 48 N. E. 335.

So, to the effect that the circumstance that the compensation for private property taken for a public use is required by law to be paid in whole or in part by one person or a few individuals who may be specially benefited by it does not affect the public

character, is Denham v. Bristol County (1871) 108 Mass. 202.

Where it is admitted in condemnation proceedings that a railway company desires to condemn the property involved for the purpose of relocating its freight depot thereon, this fact stamps the character of the use to which the property will be put as a public one, and the public nature of the use is not changed by reason of the fact that citizens of the town in which the depot is located, or the town itself, have agreed to pay a portion of the condemnation expense. Cloth v. Chicago, R. I. & P. R. Co. (1910) 97 Ark. 86, 132 S. W. 1005, Ann. Cas. 1912C, 1115.

And the Federal Supreme Court has held that the condemnation of land by a railroad company for a spur track will not be held to be for a private use, and therefore forbidden by the Federal Constitution, where the state courts have held in effect that the use is public, on evidence tending to show that the spur track is designed, in part, for the storage of cars while loading and unloading, and to relieve the congestion of business, although the motive which dictated its location over the land in question was to reach a private industry, which contributed to the cost. Hairston v. Banville & W. R. Co. (1908) 208 U. S. 598, 52 L. ed. 637, 28 Sup. Ct. Rep. 331, 13 Ann. Cas. 1008.

And it is held in Riley v. Louisville, H. & St. L. R. Co. (1911) 142 Ky. 67, 35 L.R.A. (N.S.) 636, 133 S. W. 971, Ann. Cas. 1912D, 230, that the fact that the owner of a manufacturing plant to which railroad company is seeking to run a spur track over private land has agreed to furnish the funds necessary to construct it, to be repaid by the railroad company, is not conclusive that the improvement is not of a public nature, so that the right of eminent domain cannot be exercised to secure a right of way for it.

The view has been taken, also, that the fact that an individual expects to gain by a lateral railroad to a coal mine, and has private motives for risking the whole of the necessary investment, and acquires peculiar rights in

the work, does not detract in the least from the public aspect of it. Hays V. Risher (1858) 32 Pa. 169.

The rule is laid down in Weaver v. Pennsylvania-Ohio Power & Light Co. (1926; C. C. A. 6th) 10 F. (2d) 759, that the fact that private interests are also subserved, or even that such interests defray in whole or in part the expense of an improvement, does not take away the otherwise public nature of the improvement. And it was held that the fact that a railway and light company which desired to build a power station across the existing highway which it was proposed to vacate agreed to give the right of way for the relocated highway did not of itself affect the validity of the condemnation proceedings, or show that the land taken for the new highway was taken for private interests only. Notwithstanding a private agreement had been made by the holder of the franchise for a toll bridge and the county court that the former should pay the expense of opening a highway to connect with the bridge, it was held in McClintock v. Bovay (1924) 163 Ark. 388, 260 S. W. 395, that the condemnation of land for the proposed highway was for a public purpose, and that the property was not being wrongfully taken by a private corporation, viz., the bridge company, the court taking the view that, notwithstanding the agreement and the form of the court's order that, under no condition should the county be liable for the payment of any part of the expense, the county remained responsible for compensation found to be due. owners of land taken for the proposed road.

And the mere fact that individuals have subscribed money or given a bond to a city to contribute toward the expense of laying out a street will not vitiate the proceedings, or prove that the land was taken for the accommodation of private persons, and not for public uses. Santa Ana v. Harlin (1893) 99 Cal. 538, 34 Pac. 224.

So, the fact that a railway company which would be greatly benefited had agreed to pay all of the expenses

which might arise on account of the vacation of a street and the laying out of another street was held in Barr v. New Brunswick (1895; C. C.) 67 Fed. 402, appeal dismissed in (1896) 19 C. C. A. 71, 39 U. S. App. 187, 72 Fed. 689, not to show necessarily that the use to which the land of the complainant, which it was proposed to take by eminent domain in order to open the new street, would be taken for a private purpose and without due process of law.

It is said in Stratford v. Greensboro (1899) 124 N. C. 127, 32 S. E. 394, that, if in point of fact public necessity and convenience require the improvement of a street or the opening of one, it can make no difference who pays the damages of condemnation; that it might be that a party contributing a part or the whole of the assessed damages for the condemnation of land for a public street when the public necessity requires said street might have lands adjacent which might be improved by the opening of the street, and that surely, if nothing else appears, it would not be either immoral or illegal for him to pay such damages.

And it is said in Road Dist. v. Frailey (1924) 313 Ill. 568, 145 N. E. 195 (proceeding for establishment of highway), that the fact that a private individual pays for the right of way does not change the character of the highway; that, if the highway is in fact open to the use of the public generally, then the power to condemn the land for it may be properly exercised, though an individual may be deeply interested or benefited by its opening.

It is held, also, in State, North Baptist Church, Prosecutor, v. Orange (1891) 54 N. J. L. 111, 14 L.R.A. 62, 22 Atl. 1004, that a promise made by a citizen to pay part of the expense of opening a street is not opposed to public policy, and that an ordinance passed by a municipality to open such street will not, on that ground, be set aside. The court said that, if it should be held that an offer to contribute money is opposed to public policy, it must follow that a donation

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