v. Pier (1908) 137 Wis. 325, 21 L.R.A. (N.S.) 538, 118 N. W. 857, the court states that public use is not synonymous with public benefit, and regards the right of the public to use the property, and regulation thereof by the public, as the test of whether there is a public use warranting the exercise of eminent domain. The case involves the question of the effect of a combination of the public and private uses, a question which is stated in annotation following Kessler v. Indianapolis, 53 A.L.R. 9.

57 In Bottoms v. Brewer (1875) 54 Ala. 288, it was said that the constitutionality of statutes authorizing the taking of private property for the erection of a mill and the construction of a dam could be sustained only on the ground that the mill was public, every citizen having the right, under regulations prescribed by law, to have his grain ground there.

58 Although the present question is not directly discussed, attention is called to Loughridge v. Harris (1871) 42 Ga. 500, in which it was held that, although mills were in a general sense for the public, their tolls and manner of rotation among customers being regulated by law, their use was not such a public use as authorized the appropriation of private property under the law of eminent domain. But this case was distinguished in Hand Gold Min. Co. v. Parker (1877) 59 Ga. 419, holding that land could be taken under the power of eminent domain for mining purposes, on the ground of the public benefit.

And in Garbutt Lumber Co. v. Georgia & A. R. Co. (1900) 111 Ga. 714, 36 S. E. 742, it is held that a partnership which is the owner of a sawmill, and which, in connection with the business carried on, has constructed a railroad to be used solely for the purpose of facilitating the operation of the mill business, is not engaged in any business in which the public is interested; and that a railroad owned by such a partnership, and operated in such a way, is in no sense property used for public purposes within the meaning of the law of eminent domain.

59 Since mere benefit to the public is insufficient to warrant the exercise of the power of eminent domain, and, to justify the exercise of the power, there must be a right of user on the part of the public, the court in Gay

lord v. Sanitary Dist. (1903) 204 Ill. 576, 63 L.R.A. 582, 98 Am. St. Rep. 235, 68 N. E. 522, held that the legislature could not authorize the condemnation of private property for the erection of public mills and machinery generally, without anything to show what was meant by a public mill, or anything to give the public any interest in a mill after it was erected.

60 In Howard Mills Co. v. Schwartz Lumber & Coal Co. (1908) 77 Kan. 599, 18 L.R.A. (N.S.) 356, 95 Pac. 559, it is held that a private corporation. owning a mill operated by steam power, and having for its purpose the manufacture and sale of flour and feed, cannot exercise the power of eminent domain for the purpose of improving and enlarging the business. The court said that the company in question was simply a private corporation, organized by its charter to manufacture flour and feed for sale; that the public had no more interest in it than in the corporation from which it was sought to take the land in question; that they were both useful and important business instrumentalities, and contributed to the growth and development of the locality where they were situated; that, however, this might be said of every legitimate business, and was not sufficient to warrant the exercise of the power of eminent domain.

61 In Ryerson v. Brown (1877) 35 Mich. 333, 24 Am. Rep. 564, the court denied the power of the legislature to take land under eminent domain for the purpose of creating water power for mills generally, holding that the same was not a public purpose, and that, under the conditions then existing in that state, there was no necessity warranting the exercise of the power of eminent domain for that purpose. In holding unconstitutional a statute giving a right, on payment of damages, to overflow land for the purpose of erecting dams to operate mills by water power, Cooley, Ch. J., speaking for the court, said: "An examination of the adjudged cases I will show that the courts, in looking about for the public use that was to be accommodated by the statute, have sometimes attached considerable importance to the fact that the general improvement of mill sites, as property possessing great value if improved, and often nearly worthless if not im

Vermont,63

Tennessee, 62 proved, would largely conduce to the prosperity of the state. This is especially true of the decisions of those states where water power is most abundant, and where, partly because of a somewhat sterile soil, manufactures have attracted a larger proportion than in other states, of the capital, skill, and labor of the community. In this state it is doubtful if such legislation would add at all to the aggregate of property. If the act were limited in its scope to manufactures which are of local necessity, as gristmills are in a new country not yet penetrated by railroads, the question would be somewhat different from what it is now. But even in such case it would be essential that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodations. There is

nothing in the present legislation to indicate that the power obtained under it is to be employed directly for the public use. Any sort of manufacture may be set up under it, and the proprietor is not obligated in any manner to carry it on for the benefit of the locality or of the state at large. He is not bound to consider the interest of the locality or of the state; and nothing but the requirement that his project, whatever it is, shall receive from a commission or a jury a certificate to its public character, would preclude his devoting the power to purposes which public opinion would not sanction. The statute appears to have been drawn with studious care to avoid any requirement that the person availing himself of its provisions shall consult any interest except his own, and it therefore seems perfectly manifest that when a public use is spoken of in this statute nothing farther is intended than that the use shall be one that, in the opinion of the commission or jury, will in some manner advance the public interest. But incidentally every lawful business does this. We are not disposed to say that incidental benefits to the public could not under any circumstances justify an exercise of the right of eminent domain. The rules which underlie taxation do not necessarily govern the case." The court further pointed out that there was no such necessity as warranted the exercise of the power of eminent

domain, such as existed in the case of railroads, which could not be constructed around unreasonable landowners; that in that state steam was available in any part of the state, and the question of operation by water power was not one of necessity, but merely of profit and relative convenience.

The decision in Ryerson v. Brown, supra, seems to overrule Re Hartwell (1871) 2 Mich. N. P. 97 (a circuit court case), in which it was held that property might be taken, as for a public purpose, under the power of eminent domain, through the raising of a dam to enable the condemnor to obtain increased power for the operation of a foundry and machine shop, resulting in the overflow of the land of oth

ers.

62 That the power of eminent domain cannot be exercised for the taking of land for a sawmill or a paper mill, see Harding v. Goodlett (1832) 3 Yerg. 41, 24 Am. Dec. 546, where the uses for which it was sought to take the land were a sawmill, paper mill, and gristmill, and it was held that condemnation would not lie for all of these purposes jointly, even though the latter the gristmill-was for a public use.

63 In Tyler v. Beacher (1871) 44 Vt. 648, 8 Am. Rep. 398, it was held that property could not be taken for purposes of a gristmill under the flowage act of that state, since the taking was not for a public use, even though it was found that the mill would be a public benefit, such mills not being obliged, under the laws of that state, to grind for the public or any portion of it, and not being public mills, although the statute fixed the tolls for grinding grain received by them for that purpose.

And the rule that public use and public benefit are not synonymous under the law of eminent domain is recognized in Avery v. Vermont Electric Co. (1903) 75 Vt. 235, 59 L.R.A. 817, 98 Am. St. Rep. 818, 54 Atl. 179, in holding that the generation of electricity by water power for the operation of a railroad is not a public use for which property may be taken by eminent domain, where there is nothing which binds the petitioner to serve the railroad or to give equal advantages to all.

It is held in Re Barre Water Co.

It may be noted that the terms "public use" or "public purpose" have received consideration in many other connections, apart from the law of eminent domain, and that the courts in dealing with the proper definition of the terms under this law have sometimes relied in part on cases of other kinds as precedents.66

V. Conclusions.

From the foregoing authorities, the following conclusions may be drawn: (1) It is erroneous to regard the authorities as divided, generally speaking, into two classes, one taking the view that the terms "public use" and "public benefit" are synonymous under the law of eminent domain, and the other that a right of user by the public is essential to constitute a public use; (2) the general rule is that to constitute a public use there (1889) 62 Vt. 27, 9 L.R.A. 195, 20 Atl. 109, that, since one cannot take another's property under eminent domain simply because it would be worth more in the former's hands, the fact that water from a water-supply main, by reason of the high pressure in the pipe, would be worth more for running motors than for supplying water in dams on the stream from which the water supply is taken, gives no right to use it for running such motors for private use without consent of the owners of the dam.

64 In Fallsburg Power & Mfg. Co. v. Alexander (1903) 101 Va. 98, 61 L.R.A. 129, 99 Am. St. Rep. 855, 43 S. E. 194, it was held that, as there was only an indefinite public benefit from the proposed undertaking, and the use by the public was not fixed and certain, but might be withdrawn by the company at will, the power and manufacturing company in question, which was seeking to condemn property for the generation of water power, was a private corporation, and not entitled to exercise the power of eminent domain.

65 It is said (dictum) in Varner v. Martin (1883) 21 W. Va. 534, in discussing the grounds for allowing condemnation of land for dams for water gristmills, that, while no reasons are assigned in the cases in that state, the true grounds are that the owners

must exist a right of user on the part of the public, or some portion of it, or some public or quasi public agency, after the property has been condemned, and with this right of user is associated a right of regulation by the public so as to secure to it the expected benefits; (3) an exception to this general rule has been recognized by some courts in certain classes of cases, as those relating to mills, dams, water power, mining, irrigation, and perhaps drainage; (4) this exception seems to have arisen in the early mill and water-power cases, because of special economic conditions which have since largely changed; (5) the exception does not appear to have been extended beyond those cases in which property rights were fixed as to location, so that a necessity arose for an extension of the term "public use," which does not ordinarily exist in the case of business enterprises of such mills are public servants, compelled to grind for the public at prices fixed by law; and that this is not true as to other mills, such as sawmills, in which the general public have no direct tangible interest; that it is an abuse of terms to say that the condemnation of land for a dam for a sawmill or for land overflowed by it is a condemnation of land for a public use, as much so as to say that the condemnation of land for a storeroom or for a lawyer's office is for a public use; that the latter may be a public convenience, although the public has no more interest in them than in a private individual's dwelling house; and that, in a general sense, doubtless public convenience and advantage are promoted by the building of any private dwelling house in a community.

66 6 By way of illustration of cases of possible interest in this connection, attention is called to Dodge v. Mission Twp. (1901) 54 L.R.A. 247, 46 C. C. A. 661, 107 Fed. 827, holding that the promotion of the construction and operation of mills and factories to manufacture sorghum cane into sugar or syrups is a private, and not a public, purpose, and that township bonds issued for this purpose, and a statute authorizing their issue, are beyond the powers of the legislature and the township, and are void.