Helena Power Transmission Co. v. Spratt

• Decision Date: 03 February 1907
• Citation: 88 P. 773,35 Mont. 108
• Parties: HELENA POWER TRANSMISSION CO. v. SPRATT et al.
• Court: Montana Supreme Court

88 P. 773

35 Mont. 108

HELENA POWER TRANSMISSION CO. v. SPRATT et al.

Supreme Court of Montana

February 3, 1907

Appeal from District Court, Lewis and Clarke County; Henry C. Smith Judge.

Action by the Helena Power Transmission Company against Augustus N Spratt and others for the condemnation and appropriation of land. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded, with directions to dismiss the proceedings as to certain defendants.

M. S Gunn and J. B. Clayberg, for appellants.

Wallace & Donnelly and Carpenter, Day & Carpenter, for respondent.

LOUD Special Judge.

This is an action instituted by the respondent for the condemnation and appropriation of five separate tracts of land alleged to be necessary for the purpose of flooding, in connection with the dam to be built by the respondent across the Missouri river in Lewis and Clarke county, Mont. Issues were framed by complaint and answer, and a hearing thereon was had, and evidence on the part of respondent was introduced, from which it appears that the facts, briefly stated, are as follows That the respondent is a foreign corporation organized under the laws of the state of New Jersey, and is authorized by the laws of said state to exercise the right of eminent domain therein, and by its charter and articles empowered, among other things, to build, maintain, and operate a reservoir, dam, water power, and electrical power plants on the Missouri river in Montana. It is the assignee and successor in interest of the Missouri River Power Company of Montana, a joint-stock company, which was duly authorized and empowered, by an act of Congress approved June 8, 1894, to construct on the Missouri river at a point to be approved by the Secretary of War of the United States a dam, reservoir, and appurtenances thereto for generating water power and other purposes, which dam, by the provisions of said act, was to be constructed under the supervision and control of the Secretary of War and upon plans and specifications therefor to be approved by said Secretary. The Secretary of War, prior to the prosecution of the work of construction by respondent, recognized it as the assignee and successor in interest of said joint-stock company, and authorized the construction of said dam, reservoir, and power plant by respondent, as provided in said special act of Congress. The respondent, at a point approved by the Secretary of War, began and is now engaged in the construction of said dam, reservoir, and power plant. In the construction thereof it becomes necessary to permanently flood the lands and premises of the appellants, as a part of its reservoir site to be made by the construction of said dam. The respondent has acquired certain water rights in the Missouri river, but as yet has not actually diverted any waters from said river, although it is the intention of the company to do so when the work is completed. The capacity of the dam and power plant will be about 25,000 horse power, 7,000 of which has been contracted for to be used in the mines of Butte and smelters of Anaconda. The dam, reservoir, and power plant are intended to furnish water and electrical power to the public generally, or such portion of it as may have occasion to purchase and use the same, and to furnish water for sale, rental, and distribution to the public generally for the irrigation of lands and for other beneficial uses. There are 20,000 acres of land in the Prickly Pear Valley that can be irrigated from waters which can be furnished by respondent by an average lift of 50 feet. It will take about 6,000 horse power to pump sufficient water to irrigate these 20,000 acres of land. The pumping of water for irrigation is one of the important features in connection with the dam and has been in contemplation by the company from the beginning. It is proposed to sell the remaining power for electric lighting or the operation of electric railways, or in the operation of mines or smelters, and the public generally. Respondent was unable to agree with the appellants as to the amount of damages for the taking of the lands so to be permanently flooded, as aforesaid, and appellants will not voluntarily give title to the land desired therefor. A fee-simple estate is required in the lands sought to be condemned by this action, and all of said lands lie wholly within the county of Lewis and Clarke, state of Montana. The court below rendered its judgment, finding that the use for which respondent seeks to appropriate the lands in question is a public use, and that the public interests require such taking, and that the respondent is authorized and empowered by law to take and appropriate such lands; and thereupon made its order appointing three commissioners to appraise the damage caused by the taking of appellants' lands. From the judgment aforesaid, appellants have appealed to this court.

This appeal raises two important questions, the decision of which will materially affect the future development of this state. While we are not unmindful of the importance of this decision as affecting the large property interests involved, we must not fail to recognize the right of the individual to possess and enjoy his property undisturbed from invasion except by the sovereign power of the state, or by some person or corporation to whom this power has been expressly delegated.

1. The first assignment of error is: "The court erred in holding that the use for which respondent sought to condemn and appropriate the lands, property, and rights of these appellants set forth in the complaint was and is a public use." In all cases wherein the power of eminent domain is ought to be exercised the principal question for determination is: What is a public use? This is necessarily so, because private property without the owner's consent cannot be taken for the private use of another without violating the fourteenth amendment to the Constitution of the United States. Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489; Fallbrook Irrigation District v. Bradley, 164 U.S. 158, 17 S.Ct. 56, 41 L.Ed. 369; Matter of Tuthill, 163 N.Y. 133, 57 N.E. 303, 49 L. R. A. 781, 79 Am. St. Rep. 574. We feel indebted to the eminent counsel for the elaborate briefs which have been filed and for the strong arguments by which their respective contentions have been presented. A large number of cases has been cited, all of which we have carefully examined; but we find that it will be impossible to analyze them in an opinion of reasonable length, and for this reason we shall not attempt to do so. Upon an examination of these authorities it will be found that there is a great diversity of opinion upon this most important question, and that it is impossible to harmonize them and make them entirely consistent with any definition of a public use. In the case of Nash v. Clark, 27 Utah, 158, 75 P. 371, 1 L. R. A. (N. S.) 208, 101 Am. St. Rep. 953, the court, in speaking upon this question of public use, says: "Was the condemnation of appellant's land in this case in law and in fact for a public use? There is no fixed rule of law by which this question can be determined. In other words, what is a public use cannot always be determined by the application of purely legal principles. This is evident from the fact that there are two lines of authorities, neither of which attempts to lay down any fixed rule as a guide to be followed in all cases. One class of authorities, in a general way, holds that by public use is meant a use by the public or its agencies-that is, the public must have the right to the actual use in some way of the property appropriated-whereas the other line of decisions holds that it is a public use within the meaning of the law when the taking is for a use that will promote the public interest and which use tends to develop the great natural resources of the commonwealth." To the first class belong the following cases: Borden v. Trespalacios Rice, etc., Co. (Tex. Civ. App.) 82 S.W. 461; Pittsburg, etc., R. Co. v. Benwood Iron Works, 31 W.Va. 710, 8 S.E. 453, 2 L. R. A. 680; Varner v. Martin, 21 W.Va. 534; Fallsburg Power Mfg. Co. v. Alexander, 101 Va. 98, 43 S.E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855; In re Barre Water Co., 72 Vt. 413, 48 A. 653, 51 L. R. A. 754, 82 Am. St. Rep. 914; Avery v. Vermont Electric Co., 75 Vt. 235, 54 A. 179, 59 L. R. A. 817, 98 Am. St. Rep. 818; Berrien Springs Water Co. v. Berrien Circuit Judge, 133 Mich. 48, 94 N.W. 379, 103 Am. St. Rep. 438; Brown v. Gerald, 100 Me. 351, 61 A. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526; State v. White River Power Co., 39 Wash. 648, 82 P. 150, 2 L. R. A. (N. S.) 842; State v. Superior Court, 42 Wash. 660, 85 P. 666. The following cases belong to the second class: Aldridge v. Tuscumbia, etc., R. Co., 2 Stew. P. (Ala.) 199, 23 Am. Dec. 307; Todd v. Austin, 34 Conn. 78; Hand Gold Mining Co. v. Parker, 59 Ga. 419; Bradley v. New York, etc., R. Co., 21 Conn. 294; Great Falls Mfg. Co. v. Fernald, 47 N.H. 456; Talbot v. Hudson, 16 Gray (Mass.) 417; Olmstead v. Camp, 33 Conn. 532, 89 Am. Dec. 221; Boston & Roxbury Mill Co. v. Newman, 12 Pick. (Mass.) 467, 23 Am. Dec. 622; Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694-728, 23 Am. Dec. 756.

In the decision of this question the courts have apparently been largely influenced by local conditions and necessities. The decisions of the New England and southern states were born of the desire to turn the swiftly flowing streams of those states into instrumentalities for the promotion of the public welfare and to the development and upbuilding of those, at that time, sparsely settled regions. Who will at this late day, in contemplation of the wonderful development of the manufacturing industries of...