Mull v. Indianapolis & C. Traction Co.

• Decision Date: 21 June 1907
• Docket Number: No. 20,902.,20,902.
• Citation: 81 N.E. 657,169 Ind. 214
• Court: Indiana Supreme Court
• Parties: MULL v. INDIANAPOLIS & C. TRACTION CO.

169 Ind. 214

81 N.E. 657

MULL

v.INDIANAPOLIS & C. TRACTION CO.

No. 20,902.¹

Supreme Court of Indiana.

June 21, 1907.

Appeal from Circuit Court, Rush County; Will M. Sparks, Judge.

Condemnation proceedings by the Indianapolis & Cincinnati Traction Company against Leonidas H. Mull. From an order appointing appraisers, defendant appeals. Affirmed.

Douglas Morris, for appellant. Claude Cambern and Smith, Cambern & Smith, for appellee.

MONTGOMERY, J.

This action was commenced by appellee against appellant, to condemn land for a proposed electrical transmission line, consisting of poles and wires, for the transmission of electricity from its power house in Rushville to a station in Shelbyville, where such electricity is to be reduced in voltage and used for lighting and motive power in operating an interurban railroad extending from Indianapolis to Shelbyville, and its proposed extension to Greensburg, when completed. Appellant appeared in response to notice, and filed objections to the proceeding, in substance, as follows: (1) That appellee has no right to exercise the power of eminent domain and appropriate the lands described; that the amended complaint, (2) does not state facts sufficient to entitle appellee to exercise the power of eminent domain for the use sought, (3) does not state the location of the right of way sought, (4) or the general route thereof, (5) or the width of the same through appellant's land, (6) or the termini, (7) or a specific description of the land to be taken, (8) or the amount and location of the land sought to be appropriated, and proposes to take 40 square feet in 25 different places, 100 feet apart, and not connected, or adjoining any highway; (9) that the facts stated are not sufficient to show that the proposed use is a public use; (10) that appellee is the lessee of the interurban road extending from Indianapolis to Shelbyville and projected and to be extended to Greensburg, and now operated from a power house in Shelbyville, and the only purpose and object of the proposed transmission line is to enable appellee to transmit electricity from its power house at Rushville to its said leased line, and thereby reduce the expense of running cars thereon, and such transmission line is not intended to be used for any other purpose; (11) that the act of February 26, 1903 (Acts 1903, p. 92, c. 36), is in conflict with the Constitution of this state, and the fourteenth amendment to the Constitution of the United States; (12) that the proposed transmission line as intended to be used would be exceedingly dangerous and constitute a nuisance; (13) that the proposed use of appellant's land sought to be taken is not in fact, and will not be, a public use; and (14) the facts alleged in the amended complaint are denied. The court, after argument of counsel, overruled the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh of said objections, to the overruling of each of which appellant at the time excepted, and, declining to amend, elected to stand upon his exceptions to these rulings. The cause was heard by the court upon the issues joined by the complaint and the first, twelfth, thirteenth, and fourteenth objections thereto by appellant. The court made a finding in favor of appellee, and against said objections, and entered an order appointing appraisers as prayed in the complaint.

It is appellant's contention that, as appellee is a mere lessee of the railroad to which the proposed transmission line is to be appurtenant, it cannot exercise the power of eminent domain for the declared purpose. It is conceded upon both sides that a lessee cannot condemn lands for a use appurtenant to a way of the lessor, unless expressly so authorized by statute. Western Union, etc., Co. v. Penn. R. R. Co., 195 U. S. 594, 25 Sup. Ct. 150, 49 L. Ed. 332; Mayor, etc., v. Norwich, etc. R. Co., 109 Mass. 103; 15 Cyc. 572; 10 Am. & Eng. Ency. of Law, 1060; Lewis, Em. Domain, § 243; Elliott on Railroads, § 461. Appellee insists that the act of 1903, supra, authorizes lessees of street railroads, interurban street railroads, and suburban street railroads, to exercise the power of eminent domain for the acquisition of lands upon which to construct lines for the transmission of electrical power. The act of 1903 provides: “That, any street railroad company heretofore or hereafter organized under the laws of the state of Indiana, and desiring to construct or acquire, or having heretofore constructed or acquired any street railroad, interurban street railroad, or suburban street railroad, shall, in addition to the rights, privileges and powers already given and granted by law to street railroad companies, possess the general powers and be subjected to the liabilities and restrictions expressed in the special powers following: *** Third: To purchase, or by voluntary grants and donations, or by special proceedings hereinafter provided, receive, acquire and take *** hold and use all such lands and real estate and other property as may be necessary for the construction, maintenance and operation of its railroads *** lines for transmission of electricity for heat, light and power for such companies or the public, which transmission lines may be on the line of said railroad, or elsewhere, as such company may desire,” etc. “Sixth. To maintain, and operate, and to that end to construct, purchase, lease, or otherwise acquire, and own or control street railroad, interurban street railroad, or suburban street railroad lines and systems, constructed or in process of construction, or any part or parts thereof, and property appertaining thereto or to be used in connection therewith,” etc. Acts 1903, pp. 92, 94, c. 36. The solution of the question turns upon the construction of the word “acquired,” as used in this act. The word in its primary use doubtless means to get as owner, but in its broader sense means to obtain in any manner. In subdivision 6 of the first section of the act, we find the terms “construct, purchase, lease or otherwise acquire” used as words ejusdem generis. It thus appears that leasing was regarded by the Legislature as a species of acquisition of railway property within the purview of this statute. We recognize the principle that statutes conferring the power of eminent domain are to be strictly construed, and yet, taking the whole statute into consideration, we are of the opinion that it was the intent of the Legislature in passing the act in question to confer this power upon lessees of street and interurban railroads. The appellee is shown to be the lessee of one of such roads for a term of 999 years, and had a right to exercise the power of eminent domain to acquire property for use in connection with its leased line.

It is further contended...