Shasta Power Co. v. Walker

• Decision Date: 12 December 1906
• Docket Number: 13,895.
• Citation: 149 F. 568
• Parties: SHASTA POWER CO. v. WALKER et al.
• Court: U.S. District Court — Northern District of California

149 F. 568

SHASTA POWER CO. v. WALKER et al.

No. 13,895.

United States Circuit Court, N.D. California.

December 12, 1906

Braynard & Kimball and Samuel M. Shortridge, for plaintiff.

A. E Bolton and Reed & Dozier, for defendants.

WOLVERTON District Judge.

The question presented for determination here arises upon demurrer to the complaint, challenging the right of plaintiff to condemn certain lands of the defendant Walker for its use the contention of defendant being that it is not made to appear that the use to which it is sought to devote the property is in fact a public use. It is alleged that the purpose of the plaintiff corporation is to generate transmit, and furnish electricity and electric current to the public in general, and to all inhabitants and persons within the county of Shasta and elsewhere, in the state of California, for the necessary public use of light, power, and heat; that, to enable plaintiff to perform its functions in this respect, it is necessary to conduct water from Bear creek a long distance, by means of ditches, flumes, and pipe lines, to its power house for use in operating machinery for generating and transmitting electricity and electric current designed for supplying mines, quarries, railroads, tramways mills, and factories in said county of Shasta and elsewhere in the state, not owned by plaintiff, also for supplying light, heat, and power to villages, towns, and incorporated cities in the county of Shasta and elsewhere, in California, and to the inhabitants thereof; that prior to the commencement of this action plaintiff was, and now is, the owner, and entitled to the use and enjoyment of the right, privilege, and franchise to erect poles and string wires thereon for the transmission of electricity and electric current for power, light, and other necessary and useful purposes along and upon the roads, bridges, and highways of the county of Shasta for the period of 50 years, and also over, along, and upon the streets, alleys, and avenues of the city of Redding, in the county of Shasta, for a like period, all of which rights and privileges were regularly granted by the authorized boards of supervisors and trustees of the county and city; that the purpose and object of plaintiff is to supply, by means of electricity and electric current to be generated as aforesaid, the public needs in the city of Redding and the county of Shasta and elsewhere, in the state of California, for light, heat, and power, and that it will be impracticable for plaintiff to utilize the water of Bear creek for the purposes indicated, except by conducting the same, by means of a ditch, along plaintiff's surveyed and established ditch line, and over and across said lands of the defendant Walker; that a large proportion of the inhabitants, citizens, and residents within the county of Shasta and elsewhere, in the state of California, are not supplied with electricity or electric current for heat, light, or power, and the supplying of such electricity and electric current for the purposes designated is, and was at all the times mentioned, a public necessity. The ordinary prayer follows that the lands be condemned for plaintiff's use. The purpose of plaintiff, from a reading of the complaint, is plain. It is to show that the use for which condemnation is sought is public in character, and such as gives warrant to the proceeding to subject the property in question thereto.

The California Constitution contains the usual provision that 'private property shall not be taken for public use without just compensation. ' In view of the restriction, the Legislature has adopted a regulation as follows:

'Any person may, without further legislative action, acquire private property for any use specified in section 1238 of the Code of Civil Procedure either by consent of the owner or by proceedings had under the provisions of title VII, part III, of the Code of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in such title is 'an agent of the state,' or a 'person in charge of such use,' within the meaning of those terms as used in such title. ' Section 1001, Civ. Code, Cal.

The provisions in title 7, part 3, relate to the exercise of eminent domain, and define the manner of such exercise. 'Eminent domain' is defined to be 'the right of the people or government to take private property for public use. ' Section 1237 Code Civ. Proc., which is within the title above designated. The next following section (1238) provides that:

'Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: * * * 12. Canals, reservoirs, dams, ditches, flumes, aqueducts, and pipes for supplying and storing water for the operation of machinery for the purpose of generating and transmitting electricity for the supplying of mines, quarries, railroads, tramways, mills and factories with electrical power, and also for the supplying electricity to light or heat mines, quarries, mills, factories, incorporated cities, cities and counties, villages or towns, together with lands, buildings and all other improvements in or upon which to erect, install, place, use, or operate machinery for the purpose of generating and transmitting electricity for any of the purposes or uses above set forth.'

These statutes would seem to confer the very power that the plaintiff seeks to exercise by invoking the right of eminent domain; and, such being the case, the constitutionality thereof is drawn in question, although the point does not appear to be expressly made by counsel. The point is specifically made, however, that the use sought to be exercised is a private and not a public use, and not such in character, therefore, as gives authority to invoke the right of eminent domain. It is the consensus of judicial opinion everywhere that the question whether the use is in fact public or not, so as to justify its taking without the consent of the owner, is one which the courts alone may determine. On the other hand, however, it is just as well settled that the necessity or expediency for the taking, the instrumentalities by which it may be done, and the mode of procedure to be observed are matters resting wholly within the province and discretion of the legislative department. Secombe v. Railroad Company, 23 Wall. 108, 23 L.Ed. 67; Shoemaker v. United States, 147 U.S. 282, 13 Sup.Ct. 361, 37 L.Ed. 170; The Dalles Lumbering Company v. Urquhart, 16 Or. 67, 19 P. 78; Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 46 P. 790, 34 L.R.A. 368, 60 Am.St.Rep. 835; Apex Transportation Co. v. Garbade, 32 Or. 582, 52 P. 573, 54 P. 367, 882, 62 L.R.A. 513; Fanning v. Gilliland, 37 Or. 369, 61 P. 636, 62 P. 209, 82 Am.St.Rep. 758; Dallas v. Hallock, 44 Or. 246, 75 P. 204; County of San Mateo v. Coburn, 130 Cal. 631, 63 P. 78, 621; Board of Health v. Van Hoesen, 87 Mich. 533, 49 N.W. 894, 14 L.R.A. 114; Matter of Niagara Falls & Whirlpool R. Co., 108 N.Y. 375, 15 N.E. 429; Matter of S.R.C.R. Co., 128 N.Y. 408, 28 N.E. 506. It is the general doctrine that, if it be doubtful whether legislation is within or inimical to the constitution, the courts should resolve the doubt by sustaining the lawmaking body. As pertaining to the inquiry, under conditions similar to those attending the case at bar, the Supreme Court of California has made pertinent application of the general rule. In Lux v. Haggin, 69 Cal. 255, 303, 10 P. 674, 699, it says:

'It is the rule that, where there is any doubt whether the use to which the property is

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