Ulmer v. Lime Rock R. Co.

• Decision Date: 25 April 1904
• Citation: 98 Me. 579,57 A. 1001
• Parties: ULMER et al. v. LIME ROCK R. CO.
• Court: Maine Supreme Court

57 A. 1001

98 Me. 579

ULMER et al.

v. LIME ROCK R. CO.

Supreme Judicial Court of Maine.

April 25, 1904.

(Official.)

Report from Supreme Judicial Court, Knox County.

Bill by Fred T. Ulmer and another against the Lime Rock Railroad Company. On report. Bill dismissed.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, POWERS, PEABODY, and SPEAR, JJ.

D. N. Mortland and J. E. Moore, for plaintiffs.

C. E. & A. S. Littlefield, for defendant.

WISWELL, C. J. The defendant, the Lime Rock Railroad Company, is a corporation organized under chapter 418, p. 633, of the Private and Special Laws of 1889, and the amendments thereto, and was given power, by its charter, "to construct, maintain and use one or more lines of railroad to be operated by steam or horse power, with single or double tracks, from the lime quarries in the city of Rockland and town of Thomaston, in such direction as may best convene the transportation of lime stone from said quarries to the various lime kilns in said city and town, together with other freight, with convenient branches to accommodate each kiln." It was also authorized "to construct, maintain, use and operate all side tracks, spurs, turnouts and branches, and to make such additions to its present location, from time to time, as may be necessary or convenient in order to reach the various lime quarries and lime kilns that are now opened or built, or that may be hereafter opened or built, in said city and town." The corporation was also given power to purchase and hold such real estate as might be necessary and convenient for its purposes; "and in case said corporation cannot agree with the owners of land necessary and convenient for said road, it may be taken for the aforesaid purposes, as and for public uses, subject to the same damages and proceedings as when land is taken by other railroads under the general laws of the state."

The corporation soon after the date of its charter filed locations for the lines of its roads in accordance with the provisions of its charter, and has since, from time to time, made additional locations, in each case stating therein that such location was a partial location and that it reserved the right thereafter to make additional locations. The road has been built and has been in operation for a number of years, and now consists of about 13 miles of track extending from various lime quarries in Rockland and Thomaston to the limekilns. It also connects with the Maine Central Railroad at Rockland, and with an electric street car line extending through the two towns. The principal business of the road has always been the transportation of lime rock from the quarries to the kiln, but it has also been engaged to a considerable extent in the transportation of other freight between the Maine Central Railroad Station and the places of business of various persons, firms, and corporations.

On January 20, 1903, the railroad company commenced proceedings to condemn, under its power of eminent domain, a right of way over the land of the complainants, for the purpose of building thereon a branch track from one of its main lines to a lime quarry owned by the Rockland-Rockport Lime Company. No question is raised as to the form or sufficiency of the proceedings commenced by the railroad company for the purpose of acquiring by condemnation this easement; but in this bill the complainants ask that the railroad company may be restrained from further proceedings, and from taking possession of any portion of the complainants' premises for this purpose. The prayer for this relief is based upon many reasons set out in the bill, which will be considered. The principal ground for relief is that the easement in the complainants' real estate is not to be taken by the railroad company for a public use, but solely for the private use and benefit of the railroad company, and of the owner of the quarry to which a branch track is to be constructed.

The charter of the company, already quoted from, authorized the railroad company, so far as it could do so within constitutional limitations, to construct and maintain branch lines to each kiln, and to the various quarries then opened or built, or that might be subsequently opened or built. Somewhat similar to this authority given to the defendant by its charter is the power conferred upon railroads by a general statute of this state (Rev. St 1903, c. 51, § 30) which is as follows: "Any railroad corporation, under the direction of the railroad commissioners, may locate, construct and maintain branch railroad tracks to any mills, mines, quarries, gravel-pits or manufacturing establishments erected in any town or township, through which the main line of said railroad is constructed," etc.

But it is urged that this general statute, and the provisions referred to in the charter of this railroad company, are unconstitutional, since it allows the private property of an individual to be taken, not for a public use, but for the private purposes of the railroad corporation and of the manufacturer or mine owner who is primarily accommodated by the construction of such branch track, or that at least in this particular case the land sought to be taken by the railroad company for the purpose of constructing a branch track from its main line across the plaintiff's land to the lime quarry is for the sole use and benefit of the railroad company and the lime company, and will in no sense serve any public purpose or use.

The question thus presented, as has been frequently decided in this and many other states of this country, is a judicial one. The Legislature has the power to take, or to delegate to another the power to take, private property for public purposes, provision being made for the payment of just compensation therefor; but it cannot take, or delegate to another the right to take, private property for anything but a public purpose. Whenever, therefore, it is contended that this power of eminent domain is attempted to be improperly exercised under legislative authority, it is necessary for the court to determine whether or not the Legislature, in granting such authority, has acted within the limitations of the Constitution, and whether or not, in the exercise of this power, the corporation is in fact carrying out the public purpose on account of which the power was granted. It is, of course, important in the determination of such a question that this essential attribute of sovereignty should not, upon the one hand, be so abridged as to interfere with the development of enterprises which are of a public nature, within the meaning of the Constitution, or, upon the other band, so extended as to allow the taking of the private property of one for the private use and benefit of another.

That the ordinary purposes for which railroads are constructed and operated—the transportation of freight or passengers—are essentially public in their nature, and of great public convenience and utility, is, of course, conceded. "They are public highways; great thoroughfares of public travel and convenience." In re Railroad Commissioners, 83 Me. 273, 22 Atl. 168. These great thoroughfares of public travel could not be constructed if the acquisition of their necessary rights of way depended upon the whim, caprice, or unreasonable demands of the owners of all lands over which it is necessary for them to be constructed. For this reason public railroad corporations are very properly endowed by the Legislatures of all states with the power to exercise the right of eminent domain. It is plain that such transportation lines from place to place, whether in the same or in different towns, are as much a public enterprise and use as are public roads constructed for the same purpose. That the purposes of this particular railroad, so far at least as its main lines are concerned, are public, and therefore that the corporation was properly invested with the right of eminent domain, was decided by this court in 1801. Farnsworth v. Lime Rock Railroad Company, 83 Me. 440, 22 Atl. 373.

The genera! question is then presented whether or not a railroad corporation organized under legislative authority for the purpose of constructing and operating a public railroad, with express authority to build a branch track to a private manufacturing establishment, mine, or quarry, and invested with the right to take by eminent domain lands necessary for such purposes, may take the private property of an individual, under such right, for the purpose of the construction of such a branch track, even if the primary purpose for such taking and construction is to accommodate such manufactory, mine, or quarry, and of obtaining the business of the transportation of freight therefrom. There is no arbitrary rule by which this question can be determined in all cases. It must be decided by the application of general principles to the particular facts of each case. Of course, the general question is whether such track is to be constructed for private purposes or for public use. If the branch track is to be built solely and exclusively for the benefit and accommodation of the railroad company and of the owner of the private business enterprise, it may well be said that it would serve no public purpose and would be of no public use, although the existence of such a track might be of great, but indirect, benefit to the community, by enabling the private enterprise to be carried on, and in thereby giving employment to labor. But the mere fact that the primary purpose of such a branch is to accommodate a particular private business enterprise is by no means a controlling test. The character of the use, whether public or private, is determined by the extent of the right by the public to its use, and not by the extent to which that right is or may be exercised. If it is a public way in fact, it is not material that but few persons will enjoy it. When such a branch track is first constructed, and the right...