Brown v. Gerald

• Decision Date: 29 June 1905
• Parties: BROWN v. GERALD et al.
• Court: Maine Supreme Court

61 A. 785

100 Me. 351

BROWN

v. GERALD et al.

Supreme Judicial Court of Maine.

June 29, 1905.

Report from Supreme Judicial Court, Kennebec County, in Equity.

Bill in equity by Joseph C. Brown against Amos F. Gerald and others, praying for an injunction to restrain the defendants from erecting a line of poles and wires across the plaintiff's farm in Benton, Kennebec county. When this cause came on to be heard before the justice of the first instance upon a motion for a temporary injunction, the parties agreed that the answer and replication should be waived, and that the testimony and admissions should stand as if taken upon a hearing for a final decree, and that the cause be reported to the law court, and that "upon so much of the testimony as is legally admissible the law court shall render such judgment as the law and equity requires." Decree for plaintiff.

Argued before WISWELL, C. J., and EMERY, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

Brown & Brown, for plaintiff. Heath & Andrews, for defendants.

SAVAGE, J. Bill in equity praying for an injunction to restrain the defendants from erecting a line of poles and wires across the plaintiff's farm in Benton. The case comes up on report. The defendants admit an intention to erect the line of poles and wires, but claim they have a right to do so under the charter of the Sebasticook Manufacturing & Power Company, one of the defendants, of which Mr. Gerald, the other defendant, is the president and general manager. It is therefore necessary to examine the charter of the defendant corporation (chapter 86, p. 113, Private and Special Laws of 1890, as amended by chapter 271, p. 429, of the Private and Special Laws of 1903), in order to ascertain its powers. Some question having been raised in regard to the proper construction of this charter, we will state, without much discussion, the construction we place upon so much of it as is involved in the consideration of the case before us; and this we do, at present, without any reference to the constitutionality of any of its provisions.

By the original charter the company was empowered to manufacture, generate, sell, distribute, and supply electricity for lighting, heating, traction, manufacturing, or mechanical purposes in the towns of Clinton, Benton, and Albion, or for any or either of such purposes. The company, therefore, might generate, sell, distribute, and supply electricity to others for electric lighting, or electric heating, or traction power for an electric railway, or for electric power for manufacturing or mechanical purposes, or for all of these purposes. But it is conceded that it could not use the electricity for these purposes on its own account. For instance, to suit the illustration to this case, it could not itself engage in manufacturing by electric power. It might sell such power to others. By the amendment of 1903 the right to manufacture, etc., electricity for lighting purposes in the town of Clinton was withdrawn. To accomplish its chartered purposes, it was authorized to build and maintain a dam or dams on the Sebasticook river, in the town of Benton. By the original act the company was also authorized to take as for public uses—that is, by the exercise of the right of eminent domain—any water rights or land, and to flow any lands or other privileges, for the purpose of constructing and maintaining its dams, and the establishment of its plant, which includes, we think, its pole and wire lines. But by the amendment it was provided that it should have "no right to flow any mill privilege upon which a dam is now built without the consent of the owners thereof." The company, therefore, might take land for the erection of its lines of poles and wires. Certain street rights in Benton were given by the charter, by which poles could be sot and wires extended for the purpose of electric lighting in the towns named, subject to the permission of the municipal officers, and subject to the general laws regulating ulating the erection of poles and wires for electrical purposes. And the company was also empowered specifically to transmit electric power within said towns, for lease or sale, "in such manner as may be expedient," and, subject to the general laws, to erect poles and wires for that purpose. The towns and the corporation were authorized to make contracts for public lighting.

Prior to the bringing of this bill, the company had constructed a dam on the Sebasticook river, in Benton, capable of developing 1,258 horse power of water power. It had erected a station and was installing an electrical plant, to be connected with the water wheels. It had contracted to deliver to the Hollingsworth & Whitney Company, of Winslow, the entire electrical current or energy developed by water power on the dam for a period of 10 years. The electrical current was agreed to be delivered at a point in Benton, near the Winslow line, where the Hollingsworth & Whitney Company was to take it and transmit it by lines of its own to its own mill in Winslow for use as power in manufacturing pulp and paper. By a supplemental agreement, made after this controversy arose, the defendant company reserved the right to take from the wires so much electricity as might be required to enable it to perform its duties as an electric light company. To transmit the current from the station to the point of delivery at or near the Winslow line required a line of poles and wires nearly 6 miles long. This had nearly all been erected. The line was practically straight. It did not follow the roads in any place, but crossed 24 farms, including the plaintiff's. It did not pass in proximity to many buildings. The testimony of the defendant Gerald shows clearly that there is now no demand for public or municipal lighting in Benton, that there are no large villages which require lighting, that one man, and one only, had agreed to take domestic lights, though he (Gerald) had talked frequently with people about it, and that between plaintiff's farm and the end of the line, about 2 miles, with the exception of the last house in Benton, there is no call for lights whatever. Mr. Gerald said that he did "not know of a thing from the power station to the end of the line that would call for power." Being asked about the development of electricity for people that live along the line, he answered, "I don't know any one that lives along the line that wants it." Of course, these things are quite collateral in some aspects of the case, as will appear when we discuss what constitutes a public use; but in other aspects they seem to us to be material and important, as we shall attempt to show presently.

It is contended that the defendant company, under its charter, has the power to exercise constitutionally the right of eminent domain for each of its four chartered purposes—furnishing an electrical current for lighting, for heating, for traction, for power for manufacturing or mechanical uses. But it makes the point that, if for any reason this power cannot be exercised within constitutional limits for all of these purposes, it can certainly be used so far as electric lighting is concerned, and perhaps for other uses, and therefore that if the company had the right of eminent domain for lighting purposes, and exercised it in this instance for those purposes among others, the taking would be valid, even if it could not be sustained, were it dependent upon power purposes alone. It says it had a right to take the plaintiff's land and erect pole lines upon it for the purpose of furnishing an electric current for lights, and that that affords a complete justification, whether it could exercise the eminent domain for supplying power for manufacturing or not. Cole v. County Commissioners, 78 Me. 532, 7 Atl. 397. It says, and justly in this aspect, that it is for the Legislature, and not the court, to say whether there is any such demand or exigency in that locality for electric lights as to justify the exercise of the right of eminent domain.

We assume in this case that the taking of the defendants was in form for ail of its chartered purposes. We also assume, but do not decide, that under the authority of Cole v. County Commissioners, supra, a taking may be sustained, even if some of the uses are extraconstitutional; that the bad may be rejected, and the good may stand. Some courts have held to the contrary. Gaylord v. Sanitary Dist, 204 Ill. 576. 68 N. E. 522, 63 L. R. A. 582, 98 Am. St. Rep. 235; Atty. Gen. v. Eau Claire, 37 Wis. 400. But see 15 Cyc. 579. We think it should be conceded that the taking of the land for the purpose of supplying the public, or so much of the public as wishes it, with electric lighting, is for a public use. But, even so, it does not necessarily follow that this taking can be sustained as a taking for that purpose. The charter unquestionably gives the company the right of eminent domain for the purpose of supplying a current for electric lighting. It places no limitations or restrictions upon the exercise of this right. The company may go when and where it chooses. It may take whose land it chooses. It may use its discretion as to these things. But, if the company seeks to justify on the ground that the taking was for lighting purposes, it must appear that it exercised the right actually for lighting purposes. If it did so, it might also use the property thus obtained for other incidental purposes, as has many times been held. See Atty. Gen. v. Eau Claire, 37 Wis. 400. But, to support the taking under the lighting feature of the charter, it is necessary that it should actually have been made for that purpose. If the Legislature had authorized the taking of this particular land for lighting purposes, and nothing else, it would probably have been a conclusive determination of the use for which it is intended to be taken. But when the Legislature grants the right of eminent domain for several purposes, for some of which the grant would...