Charleston Natural Gas Co. v. Lowe
| Decision Date | 30 March 1901 |
| Citation | 52 W.Va. 662 |
| Court | West Virginia Supreme Court |
| Parties | Charleston Natural Gas Co. v. Lowe & Butler, Trustees, et als. |
Supplying an incorporated city or town and its inhabitants with natural gas for the purpose of heating and illumination, by a corporation organized under the general laws of the State, and occupying the streets and alleys of such city or town for the purpose by means of the location therein of its pipes, connections, boxes, valves and other fixtures, under an ordinance of the city or town, is a public use for which such company may take private property, in the manner prescribed by chapter 42, of the Code, upon which to locate its pipe line. (p. 664).
Such company is bound to furnish gas to every inhabitant of such city or town who applies therefor and complies with the regulations prescribed by the ordinances of the town, or fixed by contract between the council and the company, (p. 671).
Writ of error and supersedeas from the Circuit Court, Kanawha County.
Action by Charleston Natural Gas Co. against Lowe & Butler, Trustees, et als. Judgment for defendants, and plaintiff brings error.
Reversed,.
Brown, Jackson & Knight, for plaintiff in error.
MoLLOHAN, McClintic & Mathews, for defendant in error. poefenbarger, judge:
The common council of the city of Charleston having passed an ordinance reciting the probability of the discovery of natural gas, sufficiently near said city to make it practicable to transport the same to it, the anticipation that the use of such gas for domestic and manufacturing purposes will add largely to the wealth and prosperity of the city as well as contribute to its health and cleanliness; and the desirability of the adoption of such municipal regulations as shall provide against the waste of said gas, and afford to the citizens of Charleston facilities for the receipt thereof upon a uniform system which shall be protective of life and property so that gas may be economically used; and granting to William Seymour Edwards and his associates, their successors and assigns the right and privilege of opening and using the streets and alleys of the city for laying pipes for the purposes of conveying natural gas with the necessary street boxes and valves, and making the necessary street connections subject to certain conditions providing for indemnity to the city against damages, fixing a limit of time within which the grantees should accept the franchises and be ready to supply gas to consumers, and requiring them when ready, so to deliver, to file with the recorder of the city a statement of the price or cost to consumers, not to be increased except by consent of the council: said franchise was assigned by said parties to the Charleston Natural Gas Company.
This company owns a gas well in Boone County from which it desires to convey gas by means of pipes to Charleston, and for the purpose of constructing its pipe line it; desires to take five small parcels of land, the legal title to which is in B. P. Butler and A. Augustus Lowe, trustees. These parcels are sixty-five, forty, one thousand one hundred, one hundred and twenty, and one hundred and sixty-eight feet long respectively, and ten feet wide, and being unable to agree upon a price therefor with the owners, the company filed its petition in the circuit court of Kanawha for the condemnation of said strips of land for the use of its pipe line. The trustees and their cestius que trust appeared and demurred to the petition, and the demurrer being sustained and the petition dismissed, the petitioner was allowed a writ of error to, and supersedeas from the order.
It is contended by counsel for the defendants that in order that the lands may be condemned it must be shown that the use for which they are wanted is clearly and unmistakably a public use in the legal sense of the words, as defined by the courts, that their condemnation is authorized by statute and that the statutes, if any, authorizing it, are not unconstitutional. These propositions cannot be controverted. It is the province of the legislature to declare the public uses for which private property may be taken, but the power of the legislature in this respect is limited by the Constitution, and it remains with the courts to say whether the legislative enactment making such declaration and appropriation is in conflict with the constitutional limitation, and if so, to declare it unconstitutional and void. B. & 0. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 812; Verner v. Martin, 21 W. Ya. 534; Boom Co. v. Patterson, 98 U. S. 403.
When the court has determined that the use for which property is condemned is a public use, its judicial function is gone and the legislative discretion is unrestrained. Whether the proposed plan will accomplish the end proposed, or to what exent it will be beneficial to the public, are not matters to be determined by the courts; these are matters belonging to the legislative discretion. Varner v. Martin, supra,
The only question to be determined in this case is, therefore, whether the use for wliich the land is sought to be taken is a public use, and this involves an inquiry as to the interest the public will have in the operation of the proposed pipe line of this company, it being insisted by the defendants that the operations of this company are not subject to such legislative regulation and control as to vest in the public a right to a certain definite use of the property proposed to be taken. Although clause 5 of section 2 of chapter 42 of the Code declares private property may be taken for companies organized for the purpose of transporting carbon oil or natural gas, or both, by means of pipes or otherwise, and qualifies this right by the words, "when for public use," neither that clause nor any other part of said chapter contains any further guaranty of the public interest or right in the property which may be so taken, or any regulations or restrictions upon such companies to prevent them from excluding the public from a benficial interest in it. Section 24 of chapter 52, Code, provides that, "A company organized for the purpose of transporting natural gas, petroleum or water, necessary for use in carrying out the provisions of this act in piping and transporting natural gas and petroleum or for boring for the same, through tubing and pipes, may enter upon any land for the purpose of examining and surveying a line for its tubing and pipes, and may appropriate so much thereof as may be deemed necessary for the laying down of such tubing and piping, and for the erection of tanks and the location of stations along such line, and the erection of such buildings as may be necessary for the purpose aforesaid; such appropriations shall be made and conducted in accordance with the law providing for compensation to the owners of private property taken for public use."
After provisions not material to this controversy, said section further declares: "Such company shall, for the purpose of transporting natural gas, oils and water, be considered and held to be a common carrier, and subject to all the duties and liabilities of such carriers under the laws of this state." This section imposes no regulations, rates or limitations upon companies organized for transporting natural gas other than that they shall be common carriers.
Chapter 27, Acts 1879, as amended and re-enacted by chapter 44 of the Acts of 1891, regulates the transportation and storage of petroleum, and compels all persons, corporations and companies to conform to the regulations thereby prescribed, one of which is that they shall accept all petroleum offered to them in sufficient quantities and in merchantable order, and transport and deliver the same at any delivery station within or without the state, on the route of its line of pipes which may bo designated by the owners of the petroleum so offered. The act also fixes maximum rates for transporting and storing petroleum and provides for testing it and for monthly statements to be made by such persons and companies, and imposes numerous duties upon them and their agents. But this act is silent as to natural gas.
It is contended that under the principles laid down by this Court the purpose for which the petitioner seeks to take the land is not a public use, and this objection is based largely upon the absence of any legislative regulations applicable to the transportation and handling of natural gas, similar to those applicable to mills, ferries, railroads, oil pipe lines and other agencies having an undoubted right to condemn private property for their purposes.
In Yarner v. Martin, 21 W. Va, the Court held as follows: "Where the title and control of the property to be condemned is in private hands or in a corporation, three qualifications are necessary to impose upon it such a public use as will justify the taking of such private property without the consent of the owner. (1) The use which the public is to have of such property must be fixed and definite. The general public must have a right to a certain, definite use of the private property on terms and for charges fixed by law: and the owner of the property must be compelled by law to permit the general public to enjoy it. * * * * * *(2) This use of the property which in such cases the public must have, must be a substantially beneficial use, which is obviously needful for the public to have, and which it could not do without except by suffering great loss or inconvenience. (3) And when the title of the property is thus transferred by condemnation to the individual or to a corporation, the necessity for such condemnation must be obvious. It must obviously appear from the location of the property proposed to be condemned or from the character of the use to which it is to be put, that the public could not without great difficulty obtain...
To continue reading
Request your trial