Pittsburg Hydro-Electric Co. v. Liston.
| Decision Date | 05 December 1911 |
| Citation | 70 W.Va. 83 |
| Court | West Virginia Supreme Court |
| Parties | Pittsburg Hydro-Electric Co. v. Liston. |
lic Use.
The legislature may authorize the takiig of private property for public use, upon making provision for just compensation therefor, by electric power, heat, light and traction companies. Clause six of ch. 13, Acts 1907, amending and re-enacting sec. 2, ch. 42, Code 1899, is not an unwarranted exercise by the legislature of the power of eminent domain, (p. 84).
Whether it is expedient, appropriate or necessary to provide for a public service of a particular kind or character, is a legislative, not a judicial, question, (p. 87).
Courts are limited in their inquiry to the question, whether the particular service provided for is a public service, (p. 87).
The legislature may select the agencies through which it will exercise the right of eminent domain, iri3luding foreign corporations, (p. 90).
Sec. 30, ch. 54, Code 1906, confers upon foreign electric power, light, heat and traction companies that have complied with the conditions of law entitling them to do business in this state, and that propose to serve the public, equal right of eminent domain with like domestic companies, and subjects them to the same regulations, restrictions and liabilities, (p. 90).
Error to Circuit Court, Preston County.
Action by the Pittsburg Hydro-Electric Company against Elizabeth Liston. Judgment for plaintiff, f.nd defendant brings error.
Affirmed.
J. B. Trotter, for plaintiff in error.
P. J. Crogan and A. Bliss McCrum, for defendant in error.
Williams, President:
Elizabeth Liston has obtained a writ of error to an order of the circuit court of Preston county, made in a condemnation proceeding against her by the Pittsburg Hydro-Electric Company, investing said company with title to 15.45 acres of her land at the fork of Cheat River and Big Sandy Creek in Preston county, West Virginia, upon payment to her, by it, of the sum of $500.00, ascertained by commissioners appointed in the manner provided by law to be a just compensation therefor.
Condemnation proceedings were instituted by virtue of ch. 13, Acts 1907, amending and re-enacting section 2 of chapter 42, Code 1899. That portion of the act applicable to this case is as follows, viz: "Sec. 2. The public uses for which private property may be taken or damaged, are as follows: * * * "Sixth. For telegraph and telephone companies and electric power, heat, light and traction companies, when for public use. That telephone and electric light, heat, traction and power companies desiring to extend their lines in this state may place poles and wires along any county road, by and with the consent of the county court through which such lines may pass; provided, that all such poles and wires shall be placed and erected so as not in any way to interfere with the public use of such road or with any fruit or shade trees or with any private property; and provided, further, that when any such company desires to erect its poles along any street of any incorporated city, town or village, the consent of the council of such city, town or village shall first be obtained.
"Provided, that any power company using or occupying any highway under this act, shall furnish to any person, company or corporation, along, upon or near its line or lines desiring the same, every kind of service at the minimum charge for like services charged to any other person, company or corporation for like service, and upon the same terms, if amount of power consumed and conditions and expenses to such power company be the same; should at any time the power generated by any power company be insufficient to furnish all persons, companies and corporations the amount of power desired, such power comnanv shall first serve municipal corporations having" contract therefor; second, persons, companies or corporations engaged in manufacture or transportation; and third, individual customers.
"Any violation of any provisions of this clause shall work a forfeiture of all rights acquired under it."
The constitutionality of this statute is assailed by counsel for Airs. Lis ton, on the ground that it authorizes the taking of private property for private use, which is in violation of the spirit of the Constitution.. The authorities uniformly hold that the eminent domain exists only for the public welfare, and that private property cannot be lawfully taken for private uses. The exercise of the sovereign power for such a purpose would be an usurpation of power never delegated to the state by the people, an unwarranted invasion of the rights of private property which has always been a right, sacred in the eyes of the English common law, and still held sacred by the laws of all tlie States of the Union. An owner of property can only be compelled to surrender it to subserve the public good, and even then only when just compensation is paid to him, or secured to be paid. "No court, so far as we know, has ever held that private property can be taken for private use. And, on the contrary, none of them hold that a state cannot lawfully take private property for public use.
Lewis, in his excellent work on Eminent Domain, sec. 1, defines eminent domain to be "the right or power of a sovereign state to appropriate private property to particular use, for the purpose of promoting the general welfare." It is an inherent, inalienable, sovereign right, and lies dormant in the state until the legislature sees fit to exercise it, either directly, or by investing some corporation, or individual, with the power to exercise it. It is interesting to note the various purposes for which the legislatures of the states have successively exercised the power of eminent domain, as discovery and invention would bring about new social and economic conditions calling for its exercise in relation to some matter not theretofore thought of. In the early history of our country the needs of the public were few, and the eminent domain was exercised in respect to a very limited number of subjects. Grist-mills and highways were about the first, and for some time the only material things in which the public had a common use. But since the advent of steam and electric power, many water mills which once nourished, served large communities, have passed into disuse. And while the old mill acts are still retained as part of the law of this state, they are seldom, if ever, invoked in condemnation proceedings. At first public roads, turnpikes, canals and navigable streams furnished the only means for travel and commerce, but later on, when steam began to be used as a motive power, the eminent domain was applied in the promotion of railroad development, as another means of serving the public. The following are some of the many subjects which the legislatures of many of the states have deemed of sufficient public utility to justify the taking of private property, viz: grist-mills, public roads and turnpikes, steam and street railroads, canals, pipe lines for carrying water, oil and gas, sewers and drains, public buildings including school houses, mining privileges, Irrigation of arid lands, drainage of swamp lands. And the courts have uniformly held that the taking of private property for such purposes was a lawful exercise of the state's power. In more recent years the discovery of that hidden, magic force known as electricity, and all the varied uses to which it has been applied to serve the wants and conveniences of mankind, have again called forth the exercise, by the state, of the right of eminent domain, for a purpose not theretofore contemplated. Until the discovery of this new force, and the invention of means by which it could be transmitted, controlled and applied, so as to give light, heat and power, only a limited use could be made of the natural water-falls which abound in this state. It is not practicable to transmit water power a very great distance, and, in order to utilize the water-falls as a direct motive powTer at all, mills and factories would have to be erected nearby, and very many of such water-falls are found in sections remote from railroads. But these water-falls, howrever remote from railroad development, may be utilized to develop electricity, and electricity possesses the quality of being separated and transmitted by means of wire over hill and valley for a long distance, without a very great diminution of its force. By this means water power can be converted into electric power, and transmitted over a wide area, and be made to serve the uses of a greater number of people than any other physical force vet discovered. Moreover, electricity possesses the combined qualities of heat, light and power, and is, therefore, capable of supplying more of man's wants and needs than any other natural force now known. For some, or all, of these different purposes it is now in almost universal use in every civilized country on the globe. But electricity is not self-generating, some other force or power is necessary to produce it. Either steam, or water, power must be employed in the first instance before this subtle and indescribable force, known as electricity, is developed. And the legislature, realizing' that the numerous natural water-falls in the state could be made to serve the public through the means of "electric power, heat, light and traction companies," invested them with the right of eminent domain. They are authorized to take the lands of private persons upon making just compensation therefor, when their purpose is to serve the public. Is there such a general demand for electricity, for heating and lighting, and as a motive power, as to warrant the legislature in extending the right of eminent domain to...
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