Northern Pacific Ry. Co. v. Boynton
| Decision Date | 03 March 1908 |
| Citation | 115 N.W. 679,17 N.D. 203 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh county; Burke, Special J.
Condemnation proceedings by the Northern Pacific Railway Company against William Krszeszewski and others. From a judgment condemning certain property and an order denying a new trial, defendants appeal.
Affirmed.
Judgment and order affirmed. Respondent recovered its costs.
Andrew Miller and A. T. Patterson, for appellants.
There is a difference in taking for operation of franchise, and for carrying on business of the road. Avery v. Vermont Electric Co., 59 L. R. A. 817; In re Condemnation Suburban Railway, 52 L. R. A. 879.
State can condemn for public use alone. Brown v. Gerald, 70 L. R. A. 472; Kane v. Baltimore, 15 Md. 240; Van Witzen v. Gutman, 79 Md. 405; Townsend v Epstein, 93 Md. 537; Arnsperger v. Crawford, 70 L. R. A. 497; Minn. Canal & Power Co. v. Koochiching Co., 107 N.W. 405.
Railway is not limited to any locality for water supply. In re Suburban Ry Co., supra.
The use must be clearly needful to the public. Varner v Martin, 21 W.Va. 548; State v. White River P. Co., 2 (N. S.) L. R. A. 842; F. R. B. Cemetery Ass'n v Redd, 33 W.Va. 262; Minn. Canal & Power Co. v. Koochiching Co., supra; Dodge v. Mission Township, 54 L. R. A. 242.
There must be a finding of public necessity. Grand Rapids N. & L. S. Ry. Co. v. Vandrial, et al., 24 Mich. 409; McClary v. Hartwell, 25 Mich. 139.
Ball, Watson & Young and Newton & Dullam, for respondent.
Eminent domain statutes should be liberally construed. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570; Petersburg v. Peterson, 14 N.D. 344, 104 N.W. 518; Fallbrook v. Bradley, 164 U.S. 112; Clark v. Nash, 198 U.S. 361; State v. Centralia, etc., 85 P. 344; Rockinham v. Hobbs, 58 A. 46; Strickley v. Highland, etc., 200 U.S. 527.
Legislative determination of public use is final. 10 Enc. Law, 1066; Bankhead v. Brown, 25 Iowa 540; Hazen v. Essex Co., 12 Cush. 477.
Plaintiff recovered a judgment in the court below condemning certain real property to its use for alleged railway purposes. From such judgment and from an order denying a motion for a new trial, this appeal is prosecuted.
The purpose for which said property is sought by the railway company, as alleged in its complaint, is to construct a reservoir for the collection and storage of surface water for use in operating its engines, and for the purpose of laying a pipe line therefrom to its railway track at Sterling. A mere easement for the latter purpose is all that is prayed for. The necessity for such use is duly alleged in the complaint. Defendants deny the existence of such necessity, and they contend that the facts alleged and proven do not entitle plaintiff to the relief demanded.
After the first witness was sworn, and before any testimony was offered, defendants objected to the introduction of any evidence, for the reason, as stated, that the complaint shows on its face that the court has no jurisdiction of the subject matter, because: (1) The complaint shows on its face that the action is one for condemnation under the law of eminent domain, and that the use for which said premises are contemplated is the private convenience of the plaintiff. (2) The complaint fails to allege that the plaintiff is unable to obtain sufficient water to operate its line at other places. (3) Said complaint fails to state that there is any necessity for said condemnation. (4) Said complaint fails to allege that the condemnation prayed for is for the use or benefit of the public. (5) Said complaint fails to allege that, by condemning the premises sought to be condemned, the plaintiff will be enabled to obtain sufficient water to operate its line of road. (6) Said complaint fails to allege that the premises for which condemnation is prayed are reasonably necessary for the convenience of the public and the operation of its line of road. (7) Said complaint fails to allege that the public will be in any manner benefited by said condemnation. (8) The proceedings contemplated are in violation of the rights of private ownership of property, contrary to public policy, and in violation of section 14 of the constitution of the state, and in violation of the provisions of article 5 of the amendments to the constitution of the United States.
Such objection was overruled, and at the close of plaintiff's evidence defendants moved to dismiss the action on the following grounds: (1) That the evidence introduced fails to establish the public necessity for the condemnation of the premises described in the complaint, or any portion thereof. (2) The evidence fails to show a public necessity for the condemnation of all the premises described and sought to be condemned in this action. (3) The evidence affirmatively shows that no sufficient public necessity exists to warrant the condemnation of the premises or any part thereof. (4) The evidence fails to show that the general public will receive any material benefit from the proposed condemnation. (5) The evidence shows that the object of the proposed condemnation is wholly for the private convenience and profit of the plaintiff. (6) The evidence and the allegations of the complaint are too vague and indefinite, especially in regard to the proposed easement for a pipe line mentioned in the evidence for the court to properly adjudge the condemnation asked. This motion was also overruled, as was a similar motion made at the close of all the evidence. A verdict having been returned in plaintiff's favor, and judgment entered pursuant thereto, a motion for a new trial based upon substantially the same grounds urged in support of the foregoing objection and motion was made and denied, and the same grounds are urged in this court for a reversal of the judgment and order appealed from. These alleged errors will be disposed of in the order in which they are argued in appellants' brief.
The first contention is that the trial court erred in overruling the first, fourth, sixth and eighth grounds of defendants' objection to the jurisdiction of the court. It is argued by appellants' counsel that the complaint fails to allege that the property is sought to be taken for a public use, but that it discloses, on the contrary, that the use to which the property is sought to be subjected is a mere private use, namely, the private convenience of plaintiff in obtaining a supply of water at said station for its engines. The general propositions of law advanced by appellants' counsel, that private property cannot be taken for other than public uses, and that the complaint must allege the necessity for the taking and that it is intended for a public use, are undoubtedly sound, and it only remains to apply such well-settled rules to the case before us. Is the use to which the property is sought to be applied a public use? If so, the foundation of appellants' argument necessarily falls and with it the superstructure which he has reared. We think section 7575, Rev. Codes 1905, furnishes a complete answer to the above question. this section provides: "Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses: * * * (4) Wharfs, docks, piers, chutes, booms, ferries, bridges toll roads, by-roads, plank and turnpike roads, railroads. * * *" Here is an express legislative declaration that the taking of property for a railroad purpose is the taking for a public use. What better authority can be produced? Again, section 4266, Rev. Codes 1905, provides: * * *" Here express legislative authority is given to railroad corporations authorized to construct, operate or maintain railroads in this state to acquire under the provisions of the chapter on eminent domain all such property as may be necessary for the construction, maintenance and operation of such railroads. This is in effect another declaration that property necessary for the construction, maintenance, or operation of a railroad is property necessary for a public use, as section 7574, Rev. Codes 1905, provides that eminent domain is the right to take private property for public use. It is therefore manifest that the allegation in the complaint...
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