Blackwell Lumber Co. v. Empire Mill Co.

• Decision Date: 03 October 1916
• Citation: Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265 (Idaho 1916)
• Parties: THE BLACKWELL LUMBER COMPANY, a Corporation, Respondent, v. THE EMPIRE MILL COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

160 P. 265

29 Idaho 421

THE BLACKWELL LUMBER COMPANY, a Corporation, Respondent, v. THE EMPIRE MILL COMPANY, a Corporation, Appellant

Supreme Court of Idaho

October 3, 1916

EMINENT DOMAIN - METHOD OF EXERCISE BY PRIVATE CORPORATION-NECESSITY OF, A QUESTION OF FACT-CONFLICT OF ALLEGED PUBLIC USES-PURPORTED TRANSFER OF RIGHT OF WAY-PRIOR OCCUPATION BY CONDEMNOR WITHOUT AUTHORITY OF LAW-TEMPORARY USE.

1. In an action wherein the condemnation of land is sought under the exercise of the right of eminent domain, the question of necessity is a question of fact, and where there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed.

2. The power to locate a railroad right of way by a corporation is vested in its board of directors, and some official corporate action is necessary before such corporation can make a valid location. The act of an officer of the company in making a preliminary survey of such right of way does not by itself constitute a valid appropriation of such right of way to a public use.

3. Held, under the facts of this case as disclosed by the evidence, the lands of appellant were not devoted to a public use at the time they were sought to be condemned by respondent, and were subject to condemnation by respondent in proper proceedings.

4. Where it appears that no legal or valid appropriation of land for a public use has been made, a purported conveyance thereof for such use has no validity.

5. Prior occupation of land without authority of law by one seeking to exercise the right of eminent domain does not preclude the condemnor from taking subsequent measures authorized by law in order to condemn such land to a public use, but such illegal occupation renders the condemnor liable in trespass.

6. Where in an action for condemnation for a logging railroad it appears from the findings of fact that the condemnor will not require the use of such road for more than one year, the court in its judgment of condemnation should limit the period of use accordingly.

[As to what constitutes public use for which property may be taken by eminent domain, see notes in 16 Am.St. 610; Ann.Cas 1912D, 1002]

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

Action to condemn strip of land for right of way through defendant's property for temporary logging railroad. Judgment for plaintiff. Modified and affirmed.

Judgment of the trial court sustained. Costs awarded to appellant.

C. W Beale and Charles L. Heitman, for Appellant.

At common law, permanent improvements placed upon land of another by one having no interest or title therein and without the owner's consent become part of the realty. (22 Cyc. 7.)

This common-law rule has not been changed or modified by any law or statute in Idaho as applying to a trespasser. ( Batterton v. Douglas Min. Co., 20 Idaho 760, 120 P 827, 38 L. R. A., N. S., 1121. See, also, Crest v. Jack, 3 Watts (Pa.), 238, 27 Am. Dec. 353; Wells v. Howell, 19 Johns. 385.)

Where property has been taken for public use and become vested in the state or in a corporation or individual for such use, the right so acquired may be transferred in such manner as may be authorized by law. So long as the use is not changed, it is immaterial to the owner by whom the right is exercised. ( Crolley v. Minneapolis & St. L. Ry. Co., 30 Minn. 541, 16 N.W. 422; State v. Superior Court, 65 Wash. 129, 117 P. 755.)

A condemnor could not initiate an appropriation in trespass, and all acts in furtherance of such initiation were void. ( Marshall v. Niagara Springs O. Co., 22 Idaho 144, 125 P. 208.)

John P. Gray, C. H. Potts and W. F. McNaughton, for Respondent.

Where a company with the power of eminent domain enters land without the consent of the owner and erects improvements thereon, and subsequently institutes proceedings to condemn the same land, the common-law rule that a structure erected by a tort-feasor becomes a part of the lands does not apply. (15 Cyc. 763; Goldfield Consol. Milling & Transp. Co. v. Old Sandstrom Annex Gold Min. Co., 38 Nev. 426, 150 P. 313; Oregon Ry. & N. Co. v. Mosier, 14 Ore. 519, 58 Am. Rep. 321, 13 P. 300; 6 Am. & Eng. Ency. 567; Searls v. School Dist. No. 2, 133 U.S. 553, 10 S.Ct. 374, 33 L.Ed. 740; Chase v. School Dist. No. 10, 8 Utah 231, 30 P. 757, 16 L. R. A. 805; Seattle & M. R. Co. v. Corbett, 22 Wash. 189, 60 P. 127; Calumet River Ry. Co. v. Brown, 136 Ill. 322, 26 N.E. 501, 12 L. R. A. 84; Illinois Cent. R. Co. v. Le Blanc, 74 Miss. 650, 21 So. 760; Greve v. First Div. St. P. & P. R. Co., 26 Minn. 66, 1 N.W. 816.)

The term "appropriated" as used in the statute means "devoted to a use." Any other construction would be repugnant to the reasons for the statute. The statute simply means that any private property not being used for a public purpose may be condemned for purchase. (Portneuf Irr. Co., Ltd., v. Budge, 16 Idaho 116, 18 Ann. Cas. 674, 100 P. 1046; Postal Tel. Cable Co. v. Oregon Short Line Co., 104 F. 623; Colorado Eastern Ry. Co. v. Union P. Ry. Co., 41 F. 293; Butte, Anaconda & P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 50 Am. St. 508, 41 P. 232, 31 L. R. A. 298; Denver Power & Irr. Co. v. Denver & R. G. R. Co., 30 Colo. 204, 69 P. 568, 60 L. R. A. 383; Chicago & M. Electric R. Co. v. Chicago & N.W. Ry. Co., 211 Ill. 352, 71 N.E. 1021.)

BUDGE J. Sullivan, C. J., MORGAN, J., Concurring.

OPINION

BUDGE, J.

This case has been before this court on three prior occasions, and will be found reported in 27 Idaho 400, 149 P. 505, 28 Idaho 556, 155 P. 680, and 29 Idaho 236, 158 P. 792. In the interest of brevity we will limit ourselves, so far as practicable, to the questions involved upon this appeal. An investigation of the above authorities will elicit a history of the case from its inception. However, at this point it may be well to call attention to the fact that this court has heretofore held that the lumbering industry of this state is one of its material resources, which can not be completely developed in the absence of the right to exercise the power of eminent domain, under the provisions of sec. 14, art. 1 of the constitution, which provides that "The necessary use of lands . . . . to the complete development of the material resources of the state, . . . . is hereby declared to be a public use." (Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 118 Am. St. 233, 88 P. 426; Washington Water Power Co. v. Waters, 19 Idaho 595, 115 P. 682.)

In construing the above constitutional provision, this court has held it to be broader in its terms, and consequently entitled to receive a more liberal construction than constitutional provisions of a somewhat similar character, dealing with the subject of eminent domain, found in a majority of the various state constitutions; which liberal construction has also been justified by this court in view of the varied industries of the state, coupled with their rapid and phenomenal development. (Connolly v. Woods, 13 Idaho 591 (598), 92 P. 573.) In effect, under the above constitutional provision this court has held that private property may be taken under the power of eminent domain for any use necessary to the complete development of any of the material resources of the state, upon the payment of a just compensation therefor, to be ascertained in a manner prescribed by law.

Upon a former hearing (Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556, 155 P. 680) this court held that the respondent company is vested with the power of eminent domain, and that the allegations of its complaint stated a cause of action. Just previous to the pronouncement of the opinion of this court, wherein it so held, the Shoshone Railway Company was organized by the officers of the Empire Mill Company, the appellant herein, and the land sought to be condemned by the respondent company was by the Empire Mill Company conveyed to the Shoshone Railway Company. The Empire Mill Company immediately thereafter filed its answer to respondent's complaint in this action, denying the necessity for the construction of the proposed railroad and for the appropriation and condemnation of the land sought to be taken by the respondent, alleging an appropriation of the lands sought to be condemned by the Empire Mill Company for railroad use, and alleging in substance and effect that the respondent company surreptitiously, wrongfully and unlawfully went upon the lands of appellant, and unlawfully constructed thereon a temporary logging railroad, without the consent and against the protest of the appellant, which acts constituted a bar to the proceedings brought by the respondent company in condemnation, and that said railroad so constructed thereby became the property of the Empire Mill Company, and was by it, together with the right of way, conveyed to the Shoshone Railway Company. It further appears that shortly after the respondent filed its complaint in the original action it also filed its notice of lis pendens. When the respondent company filed its original complaint, notice was given by it for the appointment of commissioners to assess and determine the damages accruing to the appellant by reason of the condemnation and appropriation of the lands sought to be taken.

On the issues made by the pleadings a hearing was had, pursuant to notice, on May 25, 1916, at Wallace, in the district court of the first judicial district for Shoshone county, Hon. John M. Flynn presiding, for the purpose of determining whether or not the Blackwell Lumber Company was entitled to the appointment of commissioners and to have entered a decree of condemnation for the purchase of the land sought to be taken. After hearing the testimony that is presented upon...