Clendaniel v. Conrad

• Decision Date: 19 July 1912
• Citation: 26 Del. 549,83 A. 1036
• Court: Supreme Court of Delaware
• Parties: CLENDANIEL v. CONRAD, Judge, et al

83 A. 1036

26 Del. 549

CLENDANIEL v. CONRAD, Judge, et al

Supreme Court of Delaware

July 19, 1912

Henry Ridgely, of Dover, and Caleb S. Layton, of Dover, for complainant.

Charles W. Cullen, of Georgetown, and Robert H. Richards, for respondents.

Argued before CURTIS, Ch., PENNEWILL, C.J., and BOYCE, WOOLLEY, and RICE, JJ.

OPINION

PENNEWILL C.J.

(delivering the opinion of the court). On the 2d day of March, 1911, the Senate and the House of Representatives of the state of Delaware received from the Governor of this state a special message, which message contained the context of a letter the Governor had received from Gen. T. Coleman du Pont, and the letter set forth that if the state of Delaware by proper legislative action would authorize and enable the same, he T. Coleman du Pont, through a corporation, would acquire by purchase or condemnation, a strip of land not less than 100 nor more than 200 feet wide, extending from some point in the northern part of New Castle county to the southern boundary of the state, upon which strip of land the said corporation would construct a good modern road, from 12 to 18 feet wide throughout the whole length of the state; that a portion of said strip of land not less than 30 feet wide should be devoted to the vehicular road and its accessories, and upon the remaining portion of the strip of land acquired the said corporation should have the right to construct certain other public utilities and to plant trees, grass or shrubbery; that as soon as the vehicular road was completed the said corporation should convey title to the 30 foot wide portion of said strip of land devoted to said vehicular road, unto the state of Delaware, free of cost to the state, and that the state should be required forever to maintain the road in the same condition as when turned over to it; that it might not be desirable to immediately use the part of the said strip of land, other than the 30 feet devoted to the road, for any of the public utilities; that the use of boulevards for public utilities would be practicable and that every part of the state would be enabled to enjoy many public utilities at a minimum cost by the use of a boulevard as a main trunk. The suggestion was made that the part of the strip of land not used for vehicular travel should be exempt from taxation for 50 years, or until used by some of the public utilities.

The Governor, in his message, recommended the enactment of proper legislation to effectuate the proposal.

The Senate the same day sent a concurrent resolution to the House of Representatives, providing for a joint session of the two houses to consider the message of the Governor, and on March 10, 1911, a concurrent resolution was passed, providing for a joint session for the purpose of conference with Mr. du Pont in respect to the highway proposition, pursuant to which resolution the said session was held in the Dover Opera House.

Some time after the 10th of March, 1911, a bill covering the essentials of the proposal, as contained in the du Pont letter, was introduced in the General Assembly as an amendment to the General Corporation Law of the state, and on the 31st day of March, 1911, the Governor of the state approved an act which had theretofore been passed by the General Assembly of the state of Delaware, entitled "An act to amend an act entitled, 'An act providing a general corporation law' (being chapter 273, volume 21, Laws of Delaware, as amended) by authorizing the organization of boulevard corporations," which said last mentioned act is printed in volume 26 of the Session Laws of the state of Delaware as chapter 189 thereof.

On the 16th day of October, 1911, Thomas Coleman du Pont, Lewis L. Dunham, Frank M. Williams, Sidney H. Henry, and Paul E. Wilson, under authority of said last mentioned act, filed in the office of the Secretary of State of the state of Delaware articles of association, whereby was created a corporation by the name of "Coleman du Pont Road, Incorporated," which, by its said articles of association, disclosed its object and purpose to be that "of forming a corporation, which shall have perpetual succession, for the purpose of locating, building, constructing, maintaining and operating a boulevard extending from a place in the northern part of New Castle county, by as nearly a straight course as may prove feasible and desirable, through the state of Delaware to the southern boundary thereof, and for the purpose of constructing upon said boulevard a well built road for vehicular travel such as is required by said act as amended, and for the purpose of constructing, maintaining, and operating upon said boulevard a railway or railways for the transportation of freight and passengers, the carriages, coaches and cars of which are to be moved or propelled by electricity, by cable, or motor, or by any improved motive power other than steam, and for the purpose of laying, maintaining and operating pipes and conduits beneath the surface of said boulevard for distributing steam, heat and power, and for the purpose of distributing along said boulevard, either by poles and wires above the surface or by pipes or conduits and wires below the surface, electricity and electric current for any purpose whatsoever, and for the purpose of laying, maintaining and operating, beneath the surface of said boulevard, pipes, tubes, mains and conduits for the distribution or transportation of gas, water or oil or any other useful article, and for the purpose of constructing and operating, either upon or under the surface of said boulevard, or both upon and under the surface thereof, telegraph or telephone lines, by means of poles and wires, or cables, or underground conduits, or otherwise, and for the purpose of beautifying said boulevard by means of trees, grass, flowers and shrubbery, and for the purpose of generating, manufacturing, producing and providing steam, heat, power, electricity, electric current, gas, water, oil, or any other useful article for distribution by means of the agencies hereinabove mentioned, and for the purpose of distributing and selling steam, heat, power, electricity, electric current, gas, water, oil, or any other useful article, and for the purpose of transmitting, sending and receiving telegraph and telephone messages, by means of the appropriate agencies aforesaid, and also for the purpose of using said boulevard for any other purpose not unlawful and not necessarily detrimental to the use of the said road for vehicular travel to be constructed thereon. * * *"

The said corporation organized the same day, and at its meeting for organization adopted the following resolution, viz.:

"Resolved, that the proper officers of this corporation do proceed forthwith to take the necessary steps to enable the corporation to condemn any land, sand, earth, gravel or other materials that may be necessary to be taken and used in the construction of the boulevard, to construct which this corporation was organized; and

"Be it further resolved, that the proper officers of this corporation be, and they hereby are, authorized to execute all notices, petitions or other papers necessary and proper, and advised by counsel, to effectuate the condemnation of any such land, sand, earth, gravel or other material, and to affix the corporate seal of this corporation thereto."

The said corporation thereafter proceeded to make surveys and to establish the route, or parts thereof, of its said boulevard in accordance with the requirements of said act, and did further proceed to acquire its right of way. On the 18th of November, 1911, the directors of said corporation did adopt a fixed general plan for the development and construction of the boulevard to be built by said corporation. On the 4th of January, 1912, the said corporation deposited in the office of the Secretary of State a survey of a section of the route of its said boulevard extending from the town of Georgetown to or near the town of Milford, said section being all located in the county of Sussex and state of Delaware, and passing through the lands of Jehu H. Clendaniel, the petitioner. On the 24th day of April, 1912, the said corporation, having previously given the notice prescribed by said act, presented a petition to Henry C. Conrad, Associate Judge resident in Sussex county, for the purpose of condemning the right of way for its said boulevard through the lands of the said Clendaniel, wherein the said corporation, inter alia, did aver that "for the purpose of locating and constructing said boulevard mentioned and authorized by the charter, or certificate of incorporation, of the said Coleman du Pont Road, Incorporated, and for the purpose of constructing upon said boulevard a well built road for vehicular travel, of the character aforesaid, and for the purpose of constructing, maintaining and operating upon said boulevard a railway or railways for the transportation of freight and passengers, of the character aforesaid, and for the purpose of laying, maintaining and operating beneath the surface of said boulevard pipes, tubes, mains and conduits for public use and accommodation in the distribution and sale of steam, heat, power, electric current, gas, water, oil or other useful article, and for the purpose of distributing along said boulevard, in the manner aforesaid, electricity and electric current, and for the purpose of constructing and operating, by means of said boulevard, in any of the manners above indicated, telegraph and telephone lines, for public use in transmitting, sending and receiving messages or intelligence, at reasonable rates or charges, and for the purpose of beautifying said boulevard, as aforesaid, it is necessary that the corporation, petitioner, shall take and appropriate...