already devoted.274 Where express statutory authority exists, however, authorizing the action, this will control, but the right must be strictly exercised.275 Strictly speaking, the power of eminent domain is continuing and inextinguishable, and, if the public good requires it, all property is subject to its exercise, but a second appropriation cannot be made where it is inconsistent with the first and tends to deprive the first person acquiring a public use from the full enjoyment of it.276 But, as said in the Minnesota case cited above: "The power to extend streets and highways across railway tracks, at convenient and suitable places, street will so far add to the convenience of access to the depot that the use of plaintiff's land for a public street can be so harmonized with plaintiff's use thereof for depot purposes as practically to work no serious injury. "This position is not tenable, if it involves a surrender of any substantial rights in the land in question. The plaintiff cannot be required to accept a beneficial use upon land to be taken from others in exchange for the exclusive enjoyment of its own." City of Hannibal v. Hannibal & St. J. R. Co., 49 Mo. 480; Hyde v. City of Newark, 28 N. J. Law (4 Dutch.) 529; New Jersey So. R. Co. v. Long Branch Com'rs, 39 N. J. Law, 28; Van Reipen v. Jersey City, 58 N. J. Law, 262, 33 Atl. 740; In re Village of Walden, 14 N. Y. State Rep. 590; Albany Northern R. Co. v. Brownell, 24 N. Y. 345, In re Boston & A. R. Co., 53 N. Y. 574; In re City of Buffalo, 68 N. Y. 167; Prospect Park & C. I. R. Co. v. Williamson, 91 N. Y. 552; Subur ban Rapid-Transit Co. v. City of New York, 128 N. Y. 510, 28 N. E. 525; Bellaire & O. R. Co. v. City of Buffalo, 7 Ohio Dec. 607; Little Miami C. & X. R. Co. v. City of Dayton, 23 Ohio St. 510; Oregon R. Co. v. City of Portland, 9 Or. 231; Wi nona & St. P. R. Co. v. City of Watertown, 4 S. D. 323, 56 N. W. 1077. 274 Cincinnati, W. & M. R. Co. v. City of Anderson, 139 Ind. 490, 38 N. E. 167; Chicago, M. & St. P. R. Co. v. Starkweather, 97 Iowa, 159, 66 N. W. 87, 31 L. R. A. 183; Battle Creek & S. R. Co. v. Tiffany, 99 Mich. 471, 58 N. W. 617. The burden is upon the railroad corporation in such a case to show the impossibility and incompatibility of a concurrent use. 275 Ill Cent. R. Co. v. City of Chicago, 141 Ill. 586, 30 N. E. 1044, 17 L. R. A. 530; Chicago & N. W. R. Co. v. City of Chicago, 151 Ill. 348, 37 N. E. 842; Lake Erie & W. R. Co. v. City of Kokomo, 130 Ind. 224, 29 N. E. 780; Parks and Boulevard Com'rs of Detroit V. Michigan Cent. R. Co., 90 Mich. 385, 51 N. W. 447; Parks & Boulevard Com'rs of Detroit v. Detroit, G. H. & M. R. Co., 93 Mich. 58, 52 N. W. 1083; In re City of New York, 125 N. Y. 253, 31 N. E. 1043; In re District of Kensington, 2 Rawle (Pa.) 445. 276 Lake Erie & W. R. Co. v. Seneca County Com'rs, 57 Fed. 945; Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 17 Conn. 454; St. Louis, H. & K. C. R. Co. v. Hannibal Union Depot Co., 125 Mo. 82. is necessarily implied in the general authority conferred on cities and towns for such purposes, without express provisions on the subject. In like manner, railroads necessarily cross streets and highways on their routes. An adjustment of the two public uses is thus demanded by public convenience and necessity wherever practicable." Neither can an agent, to whom has been granted the power by the state, select someone to exercise the power either for his benefit or that of the individual in favor of whom the attempted delegation has been made. In many states also will be found limitations upon the power in respect to the property taken, excluding land occupied by farm buildings, orchards, gardens, yards, burying grounds, houses and structures of a similar character. 277 § 757. Definition of the phrase “public use.' The power of eminent domain is authorized only when property is to be taken for a public use; it cannot be exercised for a mere private purpose. The state has no power even when compensation in full is paid, in any case, to divest an individual of his 277 Nischen v. Hawes (Ky.) 21 S. W. 1049. Under Kentucky Gen. St. c. 94, art. 1, § 19, prohibiting the opening of a road through an orchard without the owner's consent, a collection of fifteen or twenty trees is to be considered as such. Howard v. Brown, 37 Neb. 902, 56 N. W. 718; Pancoast v. Troth, 34 N. J. Law, 377. An engine house belonging to a private individual to be occupied by a fire company is not a public building within the meaning of the statute which prohibits the appropriation of public buildings and dwelling houses in order to establish or alter a public highway. Lansing v. Caswell, 4 Paige (N. Y.) 519; People v. Dutchess County, 23 Wend. (N. Y.) 360. Two apple trees in a lane do not constitute an orchard. People v. Kingman, 24 N. Y. 559. Under 1 N. Y. Rev. St. p. 514, § 57, which prohibits the laying out of a public road through a mill yard, ground not definitely occupied and without fixed boundaries although used for piling logs, not adjoining the saw mill does not come within the prohibition. Snyder v. Plass, 28 N. Y. 465; People v. Highway Com'rs of Town of Greenburgh, 57 N. Y. 549. The prohibition against the laying out of a highway through a garden extends only to land which is part of a cultivated garden and actually used as such. Swift & Given's Appeal, 111 Pa. 516; Seymour v. State, 19 Wis. 240; Smart v. Hart, 75 Wis. 471, 44 N. W. 514. Under Rev. St. Wis. 1878, § 1263, which prohibits the laying out of a public highway through any building or fixture or upon the yard or enclosure necessary to the use or enjoyment thereof without the consent of the owner a highway cannot be laid through a cow stable, property and grant it to another without some reference to a use to which it is to be appropriated for the public benefit.278 What is a public use is a judicial question 279 and one upon which there wagon shed, or chicken-house. But see Crowell v. Town of Londonder,, 63 N. H. 42; Barr v. City of New Brunswick, 58 N. J. Law, 255, 33 Atl. 477. The exception does not apply to a municipal corporation which may condemn a dwelling house in order to use the land occupied by it for street purposes. In re Opening of 22d St. 102 Pa. 108. 278 Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U. S. 254; Sadler v. Langham, 34 Ala. 311; Lorenz v. Jacob, 63 Cal. 73; Prior v. Swartz, 62 Conn. 132, 25 Atl. 398, 18 L. R. A. 668; Robinson v. Swope, 75 Ky. (12 Bush) 21; Van Witsen v. Gutman, 79 Md. 405, 24 L. R. A. 403; Turner v. Nye, 154 Mass. 579, 28 N. E. 1048, 14 L. R. A. 487; In re Albany St., 11 Wend. (N. Y.) 151; Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 29 N. E. 246; State v. Lyle, 100 N. C. 497; Waddell's Appeal, 84 Pa. 90; City of Wilkes-Barre v. Wyoming Historical Soc., 134 Pa. 616; Fort v. Goodwin, 36 S. C. 445; Tyler v. Beacher, 44 Vt. 648; Osborn v. Hart, 24 Wis. 89; Wisconsin Water Co. v. Winans, 85 Wis. 26, 54 N. W. 1003, 20 L. R. A. 662. See, also. many authorities cited in Lewis, Em. Dom. (2d Ed.) § 157. 279 Shoemaker v. United States, 147 U. S. 282; Sadler v. Langham, 34 Ala. 311; Loughbridge v. Harris, 42 Ga. 501; Bankhead v. Brown, 25 Iowa, 540; In re St. Paul & No. P. R. Co., 34 Minn. 227. Lots held by a state university but not set apart or occupied for public purposes the court held in this case could be ac quired by condemnation proceedings as in the case of the lands of private persons or corporations. "These lots are not used or held for public purposes by the state, and are not contiguous to the university grounds, and are liable to be appropriated in the same manner as lands of private persons. No good reason, therefore, appears why they might not be taken for public use by the railway company if reasonably necessary therefor. And the necessity or propriety of appropriating these particular lots does not seem to be questioned, if the enterprise is to proceed. The court, it appears, upon the hearing of the petition, was satisfied that the public interests required the prosecution of the enterprise, and we think there was a sufficient prima facie case made to sustain such determination. The court was entitled to consider the nature of the enterprise as disclosed by the record, the location, termini, and extent of the line, as well as the evidence before it of the expenditures and improvements already made, and the facilities for business possessed by the company. would also take judicial notice of things generally known to the public, such as the general development of commercial interests and the increase of trade and travel, in determining the question of the propriety or importance of extending the proposed line of road. Whether, however, the use for which lands are sought to be taken in such cases is a public use, and It is a great variety and conflict of reasoning and results. As said by a Nevada case, 280 "No question has ever been submitted to the courts upon which there is a greater variety and conflict of reasoning and results than that presented as to the meaning of the words 'public use' as found in the different state constitutions regulating the right of eminent domain." The question of public use is not affected by the character of the agency employed. The query is what are the objects or results to be accomplished—not who are the instruments or agencies selected by the sovereign for attaining this.281 Neither is the question of public use affected or whether they are reasonably necessary or required therefor by the corporation, or whether a proposed public use would be inconsistent with or subsersive of a prior public use to which particular public lands sought to be appropriated had already been dedicated,-these are undoubtedly questions for the court, and, so far as the determination thereof may affect the prosecution of a proposed enterprise, it will, to that extent, be under the control of the court." Welton v. Dickson, 38 Neb. 767, 57 N. W. 559, 22 L. R. A. 496; Coster v. Tide Water Co., 18 N. J. Eq. (3 C. E. Green) 54; Apex Transp. So. v. Garbade, 32 Or. 582; Tyler v. Beacher, 44 Vt. 648. 280 Dayton Gold & Silver Min. Co. v. Seawell, 11 Nev. 394. 281 Cottrill v. Myrick, 12 Me. 222; Bloodgood v. Mohawk, & H. R. R. Co., 18 Wend. (N. Y.) 9. "Let us inquire, then, whether the act incorporating this company authorized it to take the property of the plaintiff for public use. The use for which it was taken is declared in the act. * * Does the fact that the power to construct the road is given to a company alter the nature of the grant? Surely not. It is entirely immaterial who constructs the road, or who defrays the expense of the construction. The object for which it is constructed must determine the nature of the grant, whether for public or private use. What object had the legislature in view in authorizing this company to construct the road in question over the plaintiff's land? It was not the private emolument the company was to receive for the use of the road. For such a purpose the right would never have been conferred. The legislature, who are constituted the judges of the expediency of taking private property for public use, came to the conclusion that the public required the use of a railroad between the cities of Albany and Schenectady. It deemed it inexpedient to construct it at the public expense, and adopted the policy of having a company construct it at its own expense and risk, having the money expended refunded by way of tolls or fare from the individuals who should travel upon it; reserving the right, however, to take it as the property of the state within a certain period. Because the legislature permitted the company to remunerate itself for the expense of constructing the road, from those who should travel upon it, its pri determined by the fact that the use or the benefit is local or limited 282 nor is it determined by the necessity or the lack of necessity for the condemnation; 283 neither is it established by the frequency or the infrequency of the use. 284 There are two theories in respect to the proper and legal meaning of the words "public use" as used in constitutions or legislative enactments. The first might be termed the theory of strict construction and it maintains the principle that for a public use to exist there must be a literal use or right of use on the part of the public generally, or limited portion of it, without the payment of compensation for the exercise of this use or right of use. 285 vate character is not established; it does not destroy the public nature of the road, or convert it from a public to a private use." Willyard v. Hamilton, 7 Ohio (p. 2) 111; Lancey v. King County, 15 Wash. 9, 34 L. R. A. 817. 282 Gilmer v. Lime Point, 18 Cal. 229; Ross v. Davis, 97 Ind. 79; Phillips v. Watson, 63 Iowa, 28; Riche v. Bar Harbor Water Co., 75 Me. 91; Talbot v. Hudson, 82 Mass. (16 Gray) 417. "It has never been deemed essential that the entire community or any considerable por tion of it should directly enjoy or participate in an improvement or enterprise, in order to constitute a public use, within the true meaning of these words as used in the constitution. Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and beneficial influence on the welfare and prosperity of the state. In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause of the Declaration of Rights, every thing which tends to enlarge the resources, increase the industrial energies, and promote the produc tive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new sources for the employmenɩ of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community." Township Board of Education v. Hackmann, 48 Mo. 243; Coster v. Tide Water Co., 18 N. J. Eq. (3 C. E. Green) 54; Hartwell v. Armstrong, 19 Barb. (N. Y.) 166; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; In re Burns, 155 N. Y. 23; McQuillen v. Hatton, 42 Ohio St. 202; Keller v. City of Corpus Christi, 50 Tex. 614; Williams v. School Dist. No. 6, 33 Vt. 271; Lewis County v. Gordon, 20 Wash. 80; Skagit county v. McLean, 20 Wash. 92, 54 Pac. 781. 283 Jordan v. Woodward, 40 Me. 317; Dayton Gold & Silver Min. Co. v. Seawell, 11 Nev. 394; Varner v. Martin, 21 W. Va. 534. 284 Green v. Elliot, 86 Ind. 53. The question of whether a proposed highway will be of public utility depends upon whether the public convenience requires it; not upon the existence of an absolute necessity for it. 285 Lewis, Em. Dom. §§ 164 et seq. |