Rockingham County Light & Power Co. v. Hobbs

• Decision Date: 03 May 1904
• Court: New Hampshire Supreme Court
• Parties: ROCKINGHAM COUNTY LIGHT & POWER CO. v. HOBBS.

58 A. 46

72 N.H. 631

ROCKINGHAM COUNTY LIGHT & POWER CO.

v. HOBBS.

Supreme Court of New Hampshire. Rockingham.

May 3, 1904.

Transferred from Superior Court; Young, Judge.

Petition by the Rockingham County Light & Power Company against Sylvester N. Hobbs for the appraisal of damages for the taking of certain rights in defendant's land. Case transferred from the trial term on defendant's exceptions to the court's ruling that the plaintiff was entitled to maintain the petition. Exceptions overruled.

Samuel W. Emery, for plaintiff.

Eastman & Hollis and Arthur O. Fuller, for defendant.

CHASE, J. The plaintiff is a voluntary corporation, formed under the general law (Pub. St c. 147), for the purpose of "manufacturing, creating, furnishing, and selling for lighting, manufacturing, heating, transportation, propulsion of cars, machines, and engines, and for all mechanical, commercial, and business purposes, electricity and gas and all other illuminants and motive powers; to set poles and stretch wires to conduct and transmit the same, and to install and lay all necessary means or instrumentalities for conducting, storing, and transmitting the same." It is located at Portsmouth, and its business is to be carried on in the towns and cities of Rockingham and Strafford counties, and in Alton, in Belknap county. By section 5, c. 195, p. 679, Laws 1901, it was authorized "to take and hold and to purchase and hold such lands and interests in land as may be reasonably necessary to carry out the purposes and objects for which it was organized." The intention of the Legislature to delegate to the corporation the right to take land without the owner's consent is unmistakably shown by the use of the words "to take"—especially when read in connection with the words "to purchase" immediately following— and by the provision made for the location of the land taken and payment of the owner's damages. The plaintiff relies upon this statute for its authority to take the desired interests in the defendant's land. It proposes to construct and maintain a line of wires extending from a point in Hampton in a straight line to a point in East Kingston, and from the latter point in a straight line to a point in Salem—a distance of about 23 miles. This line crosses the defendant's land, and in the location which the plaintiff has filed (Pub. St. c. 158, §§ 26, 34) it particularly describes the line and the interest in land taken. The latter is, in substance, so far as the defendant's land is concerned, the right to set and forever maintain four poles of a certain size and height at designated points in the line; to string as many as 15 wires upon cross-arms attached to the poles, not less than 18 feet above the surface of the ground; to cut all trees within one rod either side of the line, and trim other trees whose branches extend within this space; and to enter upon the land as occasion requires for the purpose of inspecting, repairing, and renewing the poles, wires, and appurtenances. The location further states that "there are to be transmitted along and upon said wires a high potential electric current to be used in operating street railroads, for power, lighting, and for other purposes; and other weaker electric currents may be transmitted along and upon said line for various purposes." The plaintiff's real purpose is to furnish power for the operation of the lines of electric railway located west, south, and east of Salem. It also intends, if it has occasion, to furnish power for any of the purposes authorized by its charter. It is reasonably necessary to take the specified interest in the defendant's land to carry into effect the corporation's purpose.

Article 12 of the Bill of Rights forbids, by implication, the taking of private property for private uses without the owner's consent. Concord R. R. v. Greely. 17 N. H. 47; Underwood v. Bailey, 59 N. H. 480. Unless, therefore, the use which the plaintiff proposes to make of the defendant's land is a "public use," within the meaning of those words as used in the Bill of Rights, the Legislature had no power to grant to the plaintiff the right to take the land, or an interest in it, without the defendant's consent. Whether the contemplated use is of a public character is a question of law. Concord R. R. v. Greely supra; Amoskeag Mfg. Co. v. Head, 56 N. H. 386, 399. The Bill of Rights contains no definition of "public uses," and the court has not attempted to formulate one. "That is left to be determined in each individual case by reference to the principles and reasons upon which the right to take private property for public use is founded, and by authority." Great Falls Mfg. Co. v. Fernald, 47 N. H. 444, 455. It has been held in this state that the use of land for the following purposes is a public use: For a turnpike (Petition of Mt. Washington Road Co., 35 N. H. 134); for a toll bridge (Piseataqua Bridge v. New Hampshire Bridge, 7 N. H. 35); for a highway (Peirce v. Somersworth, 10 N. H. 369; Backus v. Lebanon, 11 N. H. 19, 35 Am. Dec. 400); for a railroad (Concord R. R. v. Greely, 17 N. H. 47; Northern R. R. v. Railroad, 27 N. H. 183); for a public cemetery, it seems (Orowell v. Londonderry, 63 N. H. 42; Evergreen Cemetery Ass'n v. Beecher, 53 Conn. 551, 5 Atl. 353); and for making a survey by the United States as a part of the coast survey (Orr v. Quimby, 54 N. H. 590). In all these cases, excepting the last, the public have a common and equal right to the use of the land taken, for the purposes for which it was taken, subject to certain reasonable limitations, conditions, and regulations. In fact, the principal object of the taking is the accommodation of the public; and whatever benefit the corporation, through whose agency the right of eminent domain is exercised, derives therefrom, is incidental to the main object, and is compensation for money, services, and skill contributed by it to the furtherance of that object. The decision in Orr v. Quimby, supra, is based on the idea that the use of the land for the purposes of the coast survey is necessary in order to provide "a safe highway upon the ocean"—which, it was remarked, "is as much a public necessity as a safe highway upon the land."

It has also been held that the owner or occupant of land upon a stream of water may, by erecting a dam on his land, take the right to flow the lands of others without their consent, for use in connection with his mills, by complying with the provisions of the statute authorizing such taking, and that the use of land flowed under such circumstances is a public use within the meaning of the Constitution. Pub. St. c. 142, §§ 12-19; Great Falls Mfg. Co. v. Fernald, 47 N. H. 444. Although attempts have been made to have this question reconsidered, and the reasons given for the decision have been vigorously attacked (50 N. H. 592; 56 N. H. 388). the court have regarded the question as settled, and have declined to reopen it (Ash v. Cummings, 50 N. H. 501; Amoskeag Mfg. Co. v. Head. 56 N. H. 386; Amoskeag Mfg. Co. v. Worcester, 60 N. H. 522; Amoskeag Mfg. Co. v. Goodale, 62 N. H. 66). In speaking of the mill act, Ladd, J., said, in Salisbury Mills v. Forsaith, 57 N. H. 124: "I agree with counsel for the defendant that the act goes to the verge of the constitutional power of the Legislature, and I may say that, but for the authorities by which the court thought they should be governed in the late case of Amoskeag Co. v. Head, I should find great difficulty in sustaining it." See, also, the remarks of the same judge in the case referred to. 56 N. H. 400. The courts of other states have given a like interpretation to similar provisions of their constitutions with reference to flowage. Lewis, in his work on Eminent Domain, after reviewing the decisions, concludes that "the only possible basis upon which the mill acts can stand is that mills are a public use, within the meaning of the Constitution," and that "this can only be true of that class of mills which are obliged to serve the public, and, unless the acts are limited to such mills, they cannot be sustained." 1 Lew. Em. Dom. §§ 176-183. It would seem, therefore, that the doctrine of Great Falls Mfg. Co. v. Fernald, and like cases, is sui generis, and is not applicable to the full extent of its import in cases other than those specially relating to the taking of flowage rights. These eases cannot be regarded as deciding that "public use" in the Bill of Rights is synonymous with public benefit, public advantage, or any use that is for the benefit and welfare of the state. Whatever was said by Perley, C. J., in the Fernald Case, having a tendency to show that such was his view, must be understood as having reference to the facts of that case, and not as expressing a general rule to be applied whenever the question of public use arises.

That the use of land for constructing and maintaining a line of wires to conduct currents of electricity employed in transmitting intelligence by telegraph or telephone for all persons who may desire such service, or in lighting public streets, highways, and buildings, etc., or in moving the cars of a railway serving the public, is a "public use" within the narrower meaning of those words as applied in the above cited cases, is beyond question. Pub. St. c. 81, § 13; Laws 1895, p. 367, c. 27. It has been so held in other jurisdictions. Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7; Duke v. Telephone Co., 53 N. J. Law, 341, 21 Atl. 460, 11 L. R. A. 664; 1 Lew. Em. Dom. § 172. Electricity is also extensively used for the transmission of power from the point where the power is accumulated by means of a waterfall, or by the combustion of fuel, to distant points for use there; and the prospect is that it will be used in the near future to produce and distribute heat in a similar manner. That the use of land for the production and distribution of power may be a public use is shown by the mill acts and the decisions...