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to cases of which the above are illustrative, it is said in 10 R. C. L. pp. 31, 32, that it is well settled that a use may be public although it will be enjoyed by a comparatively small number of people; that the use may be limited to the inhabitants of a small locality, but the benefit must be in common; and that when a certain use is of such a character that the public at large may enjoy it, the fact that in the particular instance very few people will be likely to enjoy the proposed improvement is immaterial, but if the use is itself of such a character that it can in the nature of things be of service to but few people, it cannot be said that they will enjoy it as members of the public, and eminent domain cannot be invoked in its behalf.

The annotation deals with general principles and illustrative cases, and the latter should not be regarded as intended to show whether eminent domain may be exercised for a specific improvement, except as the question depends on a combination of public and private purposes or uses.

Other annotations have dealt with various subjects of possible interest in this connection.

As to right to condemn property in excess of needs for public purposes, see annotation in 14 A.L.R. 1350.

As to whether the furnishing of electricity to the public is a public use or purpose for which the power of eminent domain may be exercised, see annotation in 44 A.L.R. 735.

As to exercise of eminent domain for purpose of irrigating land of private owner, see annotations in 9 A.L.R. 583, and 27 A.L.R. 519.

As to right to exercise the power of eminent domain for establishing restricted residence districts in municipalities, see State ex rel. Twin City Bldg. & Invest. Co. v. Houghton (1919) 144 Minn. 1, 8 A.L.R. 585, 174 N. W. 885, 176 N. W. 159, and annotation following this case in 8 A.L.R. 594, on the question of the power to condemn against particular use of property.

And that building lines may be established under the power of eminent

domain, see annotations in 28 A.L.R. 314, and 44 A.L.R. 1377.

A class of cases not within the scope of the annotation, involving the exercise of the right of eminent domain by a corporation the purposes of whose organization are both public and private, is represented by Walker v. Shasta Power Co. (1908) 19 L.R.A. (N.S.) 725, 87 C. C. A. 660, 160 Fed. 856, in which it was held that the fact that a corporation seeking by right of eminent domain property necessary to enable it to generate a supply of electricity has power to serve a private use will not defeat its application for property which it proposes and proves shall be used exclusively for a public service. See also, for example, Lake Koen Nav. Reservoir & Irrig. Co. v. Klein (1901) 63 Kan. 484, 65 Pac. 684, holding that the fact that the charter powers of a private corporation embrace both private purposes and public uses does not deprive the corporation of the right to exercise the power of eminent domain in the promotion of such public uses. And see cases cited in the annotation in 44 A.L.R. on p. 736, to the effect that the fact that the charter powers of a corporation to which the power of eminent domain has been delegated embrace both private purposes and public uses does not necessarily deprive it of the right of eminent domain, in so far as it promotes the public use.

Among other cases illustrating the view that a use does not cease to be public merely because it may be limited to a comparatively small part of the public, or a single individual or corporation may benefit in greater degree than others, see Jacobs v. Clearview Water Supply Co. (1908) 220 Pa. 388, 21 L.R.A. (N.S.) 410, 69 Atl. 870, in which it is held that supplying water to the public for commercial and manufacturing purposes is a public use; that the right of eminent domain may be lawfully conferred to secure property for the safe storage and transportation of water for such purposes, where all applicants have a right to service, although at the time of the taking the principal, if not the

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only, customer, will be a railroad company.

By way of illustration, attention is called, also, to Blackwell Lumber Co. v. Empire Mill Co. (1916) 28 Idaho, 556, 155 Pac. 680, Ann. Cas. 1918A, 189 (involving the right to exercise eminent domain for a logging railroad), where the question was whether the use was a public one within the provision of the state Constitution, declaring that the use of land necessary to the complete development of the material resources of the state was a public use. And the court held that the case was a proper one for the exercise of eminent domain.

As to distinction between inquiring into the motives of public officers in seeking to acquire land by eminent domain and the purpose for which the land is taken, i. e., whether the purpose is a public or private one, or is in part public and in part private, see the reported case (KESSLER V. INDIANAPOLIS, ante, 1), where it was unsuccessfully contended that the court could not go behind the declared purpose of the public authorities that the land was to be acquired for "park purposes."

II. Incidental private use or benefit. a. Rule in general.

The general rule is well settled that the exercise of eminent domain for a public purpose which is primary and paramount will not be defeated by the fact that incidentally a private use or benefit will result which would not of itself warrant the exercise of the pow

er.

United States. Kaukauna Water Power Co. v. Green Bay & M. Canal Co. (1891) 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; United States v. Chandler-Dunbar Water Power Co. (1913) 229 U. S. 53, 57 L. ed. 1063, 33 Sup. Ct. Rep. 667; Hendersonville Light & P. Co. v. Blue Ridge Interurban R. Co. (1917) 243 U. S. 563, 61 L. ed. 900, 37 Sup. Ct. Rep. 440; 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; Dyer v. Baltimore (1905; C. C.) 140 Fed. 880,

appeal dismissed in (1906) 201 U. S. 650, 50 L. ed. 905, 26 Sup. Ct. Rep. 759; 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; Eastern Oregon Land Co. v. Willow River Land & Irrig. Co. (1913) 122 C. C. A. 636, 204 Fed. 516 (certiorari denied in (1913) 234 U. S. 761, 58 L. ed. 1581, 34 Sup. Ct. Rep. 777); Alabama Power Co. v. Gulf Power Co. (1922; D. C.) 283 Fed. 606; Weaver v. Pennsylvania-Ohio Power & Light Co. (1926; C. C. A. 6th) 10 F. (2d) 759.

Arkansas.

St. Louis, I. M. & S. R. Co. (1893) 57 Ark. 359, 20 L.R.A. 434, 21 S. W. 884; Cloth v. Chicago, R. I. & P. R. Co. (1910) 97 Ark. 86, 132 S. W. 1005, Ann. Cas. 1912C, 1115; St. Louis, I. M. & S. R. Co. v. Ft. Smith & V. B. R. Co. (1912) 104 Ark. 344, 148 S. W. 531; Butler County R. Co. v. St. Louis, K. & S. E. R. Co. (1918) 132 Ark. 426, 200 S. W. 1007; McClintock v. Bovay (1924) 163 Ark. 388, 260 S. W. 395.

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

Illinois. South Chicago R. Co. v. Dix (1883) 109 Ill. 237; Road Dist. v. Frailey (1924) 313 Ill. 568, 145 N. E. 195.

Indiana. Sexauer v. Star Mill. Co. (1910) 173 Ind. 342, 26 L.R.A. (N.S.) 609, 90 N. E. 474; Glendenning v. Stahley (1910) 173 Ind. 674, 91 N. E. 234; KESSLER v. INDIANAPOLIS (reported herewith) ante, 1.

Iowa. Sisson v. Buena Vista County (1905) 128 Iowa, 442, 70 L.R.A. 440, 104 N. W. 454; Dubuque & S. C. R. Co. v. Ft. Dodge, D. M. & S. R. Co. (1910) 146 Iowa, 666, 125 N. W. 672; Kroon v. Jones (1924) 198 Iowa, 1270, 201 N. W. 8.

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

Kentucky.-Louisville & N. R. Co. v. Louisville (1908) 131 Ky. 108, 24 L.R.A. (N.S.) 1213, 114 S. W. 743; Henderson v. Lexington (1908) 132 Ky. 390, 22 L.R.A. (N.S.) 20, 111 S. W. 318; Riley v. Louisville, H. & St. L. R. Co. (1911) 142 Ky. 67, 35 L.R.A. (N.S.)

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ex rel. Lyle

Light, Power & W. Co. v. Superior Ct.
(1912) 70 Wash. 486, 127 Pac. 104.

West Virginia.-Pittsburg & W. Va.

Gas Co. v. Cutright (1918) 83 W. Va.

42, 97 S. E. 686.

Atty. Gen. v. Eau

Claire (1875) 37 Wis. 400; State v.

Eau Claire (1876) 40 Wis. 533; Green

Bay & M. Canal Co. v. Kaukauna

Water Power Co. (1888) 70 Wis. 635,

35 N. W. 529, 36 N. W. 828, affirmed

in (1891) 142 U. S. 254, 35 L. ed. 1004,

12 Sup. Ct. Rep. 173; Tilly v. Mitchell

& L. Co. (1904) 121 Wis. 1, 105 Am.

St. Rep. 1007, 98 N. W. 969; Wisconsin

River Improv. Co. v. Pier (1908) 137

Wis. 325, 21 L.R.A. (N.S.) 538, 118 N.

W. 857; Re Southern Wisconsin Power

Co. (1909) 140 Wis. 245, 122 N. W.

801.

Where private interests are sub-

served by proceedings for which it is
sought to exercise the power of emi-
nent domain, the controlling question
is whether the paramount reason for
the taking of the land to which objec-
tion is made is the public interest, to
which benefits to private interests are
merely incidental, or whether, on the
other hand, the private interests are
paramount and controlling, and the
public interests merely incidental.
Weaver v. Pennsylvania-Ohio Power

& Light Co. (1926; C. C. A. 6th) 10 F. (2d) 759 (relocation of highway).

An incidental private purpose will not defeat a chief public purpose for which it is sought to exercise the right of eminent domain. Lake Koen Nav. Reservoir & Irrig. Co. v. Klein (1901) 63 Kan. 484, 65 Pac. 684.

And it is held in Kansas City v. Liebi (1923) 298 Mo. 569, 28 A.L.R. 295, 252 S. W. 404, that the fact that the advantage of a public improvement inures to a particular individual or group of individuals does not deprive it of its public character, for which the power of eminent domain may be exercised.

If the use for which the property is desired is in fact a public one, then the right to condemn the property follows; and the mere fact that private ends will be advanced by such public user will not defeat the right. Cloth v. Chicago, R. I. & P. R. Co. (1910) 97 Ark. 86, 132 S. W. 1005, Ann. Cas. 1912C, 1115.

So, if enjoyment in the public generally exists, in the case of a use for which it is proposed to exercise eminent domain, the court will not be justified in refusing to acknowledge and sanction such public use merely because of an incidental private advantage. Sexauer v. Star Mill. Co. (1910) 173 Ind. 342, 26 L.R.A. (N.S.) 609, 90 N. E. 474.

And if the proposed taking is bona fide and essential for public purposes, though it be contemplated that in part the property shall incidentally be used in a private enterprise, such a taking is not necessarily obnoxious to any constitutional provision. Thom V. Georgia Mfg. & Pub. Serv. Co. (1907) 128 Ga. 187, 57 S. E. 75.

By way of illustration of the above rule, attention is called to several other statements of the courts.

Thus, the view has been taken that controlling effect cannot be given the fact that the construction of a particular improvement will result incidentally in benefit to private rights and interests; if the contrary were true, it is doubtful whether there could be prosecuted any public work requiring an exercise of the power of

eminent domian. Sisson v. Buena Vista County (1905) 128 Iowa, 442, 70 L.R.A. 440, 104 N. W. 454.

And the rule is laid down in Cottrill v. Myrick (1835) 12 Me. 222, that, if public purposes and uses are promoted, it is no objection to the power of appropriation by the legislature that it results also to the emolument and advantage of individuals or corpora tions.

So, the rule is laid down in Re Burns (1898) 155 N. Y. 23, 49 N. E. 246 (in considering the constitutionality of a statute authorizing the taking of property by eminent domain), that a statute is not to be condemned on the ground that it originated in private interests, and was intended in some degree to subserve private purposes; that so long as the use intended is not restricted to private parties or private interests, but is open to the whole public, it is no valid objection to the act that it will benefit one person, or some class of persons, more than others.

And the position has been taken that the question of constitutionality of a statute conferring the right of eminent domain does not depend in judicial consideration on the proportion which the public interest bears to private interests, where it is contended that individual interests and personal or private considerations were the only objects in the view of the legislature. Spring v. Russell (1831) 7 Me. 273 (statute conferring right of eminent domain on proprietors of canal).

b. Illustrations.

It should be observed, as already noted, that the annotation is concerned with cases which consider the effect of a combination of public and private uses or purposes, and that the specific applications set out below. should be regarded as illustrating the rules on this question, rather than as intended to show whether eminent domain may be exercised for a specified improvement, apart from any question of a combination of public and private purposes.

Surplus power or water.

The rule that a use which is essentially public in character does not lose that character, as regards the exercise of eminent domain, by the fact that incidentally a private use is served, is illustrated by the decision in Kaukauna Water Power Co. v. Green Bay & M. Canal Co. (1891) 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173, affirming (1888) 70 Wis. 635, 35 N. W. 529, 36 N. W. 828, in which it was held that the improvement of the navigation of a river was not deprived of its character as a public purpose, for which the power of eminent domain might be exercised, by the fact that the surplus water power developed incidentally was leased for private purposes. The Federal Supreme Court said that the improvement of the navigation of a river is a public purpose, and the sequestration or appropriation of land or other property for such purpose is doubtless a proper exercise of the authority of the state under its power of eminent domain; that, on the other hand, it is probably true that it is beyond the competency of the state to appropriate to itself the property of individuals for the sole purpose of creating a water power to be leased for manufacturing purposes, as this would be a case of the taking of property of one person for the benefit of another, which is not a constitutional exercise of the right of eminent domain; but that if, in the erection of a public dam for a recognized public purpose, there is necessarily produced a surplus of water which may properly be used for manufacturing purposes, there is no sound reason why the state may not retain to itself the power of controlling or disposing of such water as an incident of its right to make the improvement. The court said, further, that the true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtaining a water power to lease to private individuals (or where in building a dam for a public improvement a wholly unnecessary excess of water is created), and cases where the surplus is a mere incident to the public im

provement, and a reasonable provision. for securing an adequate supply of water at all times for such improvement.

To a similar effect is United States v. Chandler-Dunbar Water Power Co. (1913) 229 U. S. 53, 57 L. ed. 1063, 33 Sup. Ct. Rep. 667, although in this instance the condemnation proceeding was instituted under act of Congress, instead of under an act of a state legislature, it being held that the taking by the United States, in the avowed interest of navigation, of certain land, was none the less for a public use because a provision of the act, which declared that the conservation of the flow of the river was "primarily for the benefit of navigation, and incidentally for the purpose of having the water power developed," permitted the lease by the Secretary of War of any excess of water power which might result from such conservation and the work which the government might construct.

And in proceeding to condemn lands of riparian owners under the Federal Water Power Act of 1920, authorizing the construction of dams in navigable streams to impound the water for the purpose of improving navigation, it was held competent for Congress to provide that the licensees who built the dams under government supervision should receive as their compensation for their outlay the surplus water, at the weir, not necessary for navigation. Alabama Power Co. v. Gulf Power Co. (1922; D. C.) 283 Fed. 606.

It is held, also, in Wisconsin River Improv. Co. v. Pier (1908) 137 Wis. 325, 21 L.R.A. (N.S.) 538, 118 N. E. 857, that a river improvement company is not prevented from exercising. its power of eminent domain to construct a dam for the improvement of navigation, by the fact that it has contracted with a power company to construct the necessary dam at its own expense, and given it the right to the power which will result therefrom, although the value of the power greatly exceeds the tolls which will result from navigation on the stream, and it would not have entered upon the im

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