Blackwell Lumber Co. v. Empire Mill Co.

• Citation: 28 Idaho 556,155 P. 680
• Parties: BLACKWELL LUMBER CO., a Corporation, Appellant, v. EMPIRE MILL CO., a Corporation, Respondent
• Decision Date: 19 February 1916
• Court: United States State Supreme Court of Idaho

155 P. 680

28 Idaho 556

BLACKWELL LUMBER CO., a Corporation, Appellant, v. EMPIRE MILL CO., a Corporation, Respondent

Supreme Court of Idaho

February 19, 1916

EMINENT DOMAIN-COMPLAINT-DEMURRER-PRIVATE PROPERTY-PUBLIC USE-MATERIAL RESOURCES-TIMBER RESOURCE-COMPLETE DEVELOPMENT OF-CONSTITUTIONAL CONSTRUCTION-SELF-EXECUTING PROVISIONS-JUDICIAL QUESTION-PROCEDURE.

1. Held, that the complaint states a cause of action and the court did not err in overruling the demurrer.

2. Sec 14 of art. 1 of the state constitution declares for what purposes the power of eminent domain may be exercised, and the legislature cannot make the provisions of that section any more effective by enacting them into statute law.

3. To the extent of establishing the nature of the use for which privately owned property is necessary to the complete development of the material resources of the state, the provisions of said sec. 14 of the constitution are self-executing, and the courts of general jurisdiction are vested with the power to determine, upon judicial inquiry whether or not any particular use for which land is sought to be appropriated is "necessary to the complete development of the material resources of the state."

[As to what constitutes public use, see note in 102 Am.St. 813.]

4. In said sec. 14 of the constitution, the people have declared the necessary use of lands to the complete development of the material resources of the state to be a public use, and the legislature has provided a procedure to subject such lands to such use.

5. After the adoption of sec. 14, art. 1, of the constitution it only remained for the legislature to provide the procedure to carry into effect the provisions of said section. The legislature, however, might add to the public uses enumerated in said section, but it could not annul or repeal any of the uses therein specified.

6. That clause of said section, to wit, "subject to the regulation and control of the state," refers to the machinery or procedure necessary to subject private lands to a public use.

7. By that provision of said sec. 14, to wit, "or any other use necessary to the complete development of the material resources of the state is hereby declared to be a public use," it was intended to and does include and cover every material resource of the state, and it is for the court to determine upon the facts of each case whether or not the case comes within the provisions of said section of the constitution.

8. Where it is provided in the constitution in express terms for what purposes the right of eminent domain may be exercised and public uses are defined therein, such provision is the expression of the sovereign will, and grants the right as effectually as if expressed in a legislative act, and can be enforced when such grant is supplemented by an act of the legislature providing the procedure for the exercise of such right.

9. Under the provisions of said sec. 14, the right of eminent domain is permitted on the theory of a public use for the "complete development of the material resources of the state," even where the public may have no direct interest in the exercise of the right of eminent domain and the main end of which is private gain, and where the benefit to the people at large could result indirectly and incidentally only from the increase of wealth and the development of those material resources.

10. The constitution and statute provide that full compensation shall be paid for all lands taken for a public use.

11. Held, that where a temporary logging road is necessary to the complete development of the material resources of the state, the necessary use of land for a right of way is a "public use," and may be acquired as provided by the statute.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. John M. Flynn, Judge.

Action to condemn a right of way over private lands for a temporary logging road. Judgment for defendant. Reversed.

Reversed and remanded, with instructions. Costs awarded to respondent.

John P. Gray and W. F. McNaughton, for Appellant.

This court has expressly held that the lumber industry is one of the great material resources of the state in Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 118 Am. St. 233, 88 P. 426. Sec. 14, art. 1, of the constitution is self-executing. (Potlatch Lumber Co. v. Peterson, supra), and the legislature was vested only with the power of providing a mode of procedure by which to subject the lands to such uses. (Washington Water Power Co. v. Waters, 186 F. 572; Lamborn v. Bell, 18 Colo. 346, 32 P. 989, 20 L. R. A. 241; Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566, 571; Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 P. 631.)

Sec. 14, art. 1, is a limitation of power upon the legislature, and not a grant of power. (Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 100 P. 1046, 18 Ann. Cas. 674.)

"The legislature, neither by neglect to act nor by legislation, can nullify a mandatory provision of the constitution." (Day v. Day, 12 Idaho 556, 86 P. 531, 10 Ann. Cas. 260; Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249.)

Such a use is a public use, irrespective of the fact that the public as a whole or any considerable part thereof will be users of the right of way. (Baillie v. Larson, 138 F. 177; Latah County v. Peterson, 3 Idaho 398, 29 P. 1089, 16 L. R. A. 81; Rawson-Works Lumber Co. v. Richardson, 26 Idaho 37, 141 P. 74.)

"It is enough if the taking tends to enlarge the resources, increase the industrial energies and promote the productive power of any considerable part of the inhabitants of a section of the state, or leads to the growth of towns and the creation of new channels for the employment of private capital and labor, as such results indirectly contribute to the general prosperity of the whole community." ( Potlatch Lumber Co. v. Peterson, supra; Boston & Roxbury Mill Dam Corp. v. Newman, 12 Pick. (Mass.) 467, 23 Am. Dec. 622; Hazen v. Essex County, 12 Cush. (Mass.) 475; Murdock v. Stickney, 8 Cush. (Mass.) 113; Turner v. Nye, 154 Mass. 579, 28 N.E. 1048, 14 L. R. A. 487; Scudder v. Trenton Delaware Falls Co., 1 N.J. Eq. 694, 23 Am. Dec. 756; Great Falls Mfg. Co. v. Fernald, 47 N.H. 444; Head v. Amoskeag Mfg. Co., 113 U.S. 9, 5 S.Ct. 441, 28 L.Ed. 889; Otis Co. v. Ludlow Mfg. Co., 201 U.S. 140, 26 S.Ct. 353, 50 L.Ed. 696; Hand Gold Min. Co. v. Parker, 59 Ga. 419; Dayton Gold & Silver Min. Co. v. Seawell, 11 Nev. 394; Overman Silver Min. Co. v. Corcoran, 15 Nev. 147; Byrnes v. Douglass, 83 F. 45, 27 C. C. A. 399; Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085, 4 Ann. Cas. 1171; Strickley v. Highland Boy Gold Min. Co., 200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581, 4 Ann. Cas. 1174.)

C. W. Beale, for Respondent.

If it is the desire of the Blackwell Lumber Company to enable the owners of timber in Shoshone and Kootenai counties, and particularly the owners of timber adjacent to the St. Maries river and its branches and tributaries, to transport to market such timber and also to afford itself a means of transportation for all the timber it owns in these portions of Northern Idaho, the law has provided a means and under Connolly v. Woods, 13 Idaho 591, 92 P. 573, and McLean v. District Court, 24 Idaho 441, Ann. Cas. 1915D, 542, 134 P. 536, this appellant can cause to be organized a railroad company to construct whatever lines it finds necessary to enable it to reach all the timber referred to in the complaint herein. "The power of eminent domain being in derogation of the common right, acts conferring it are to be strictly construed and are not to be extended beyond their plain provisions. The right to exercise the power is strictly limited to the purposes specified in the statute conferring it. The proposed use of the lands of the owner must be clearly embraced within the legitimate object of the power conferred." (15 Cyc. 567; In re Providence & W. R. Co., 17 R. I. 324, 21 A. 965; Ligare v. City of Chicago, 139 Ill. 46, 32 Am. St. 179, 28 N.E. 934.)

A party seeking the right of condemnation must not only show that the use for which he would condemn is a public use within our constitution, but also that the legislative machinery has been provided for the exercise of such use. ( Idaho-Western Ry. Co. v. Columbia Conference etc. Synod, 20 Idaho 568, 119 P. 60, 38 L. R. A., N. S., 497; Thomas v. Boise City, 25 Idaho 522, 138 P. 1110; Lewis on Eminent Domain, 3d ed., secs. 367-388; Inspiration Consolidated Copper Co. v. New Keystone Copper Co., 16 Ariz. 257, 144 P. 277; Long v. Billings, 7 Wash. 267, 34 P. 936.)

It was held by this court in Potlatch Lumber Co. v. Peterson, 12 Idaho 769, on page 788 (118 Am. St. 233, 88 P. 426), that the provision in said section 14 of the constitution is not self-executing. From a most careful investigation of the decisions of the supreme court of this state wherein the right of eminent domain has been upheld, it is found in every instance that the use for which the private property has been sought is a use declared a public use by some subdivision of sec. 5210, Rev. Codes. The aforesaid provision of sec. 14 having been declared by this court not self-executing, and the legislature not having amended sec. 5210 so as to include therein as a public use the right to condemn private property for a logging road, that right does not exist in Idaho.

SULLIVAN, C. J. Budge, J., concurs in the conclusion. MORGAN, J., Dissenting.

OPINION

SULLIVAN, C. J.

The plaintiff corporation, the Blackwell Lumber Co., commenced this proceeding for condemnation of a right of way for a logging railroad. A general demurrer was sustained to the complaint. Thereafter the plaintiff declined to amend and elected to stand upon its...