Southwest Missouri Light Co. v. Scheurich.

• Decision Date: 18 March 1903
• Citation: 174 Mo. 235,73 S.W. 496
• Parties: SOUTHWEST MISSOURI LIGHT CO. v. SCHEURICH et al.
• Court: Missouri Supreme Court

73 S.W. 496

174 Mo. 235

SOUTHWEST MISSOURI LIGHT CO. v. SCHEURICH et al.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

EMINENT DOMAIN—PUBLIC MILLS—ELECTRIC AND WATER WORKS.

1. The right of eminent domain conferred in Rev. St. 1899, c. 131, for the construction and maintenance of mills and milldams, relates only to public mills, as defined in section 8756 to be "all grist mills which grind for toll, and all water grist mills, built on any water course by authority of any statute or order of any court," and does not confer the right to condemn land for a dam, on a corporation organized for the purpose of owning and operating gas, electric, and water works, to furnish light, power, and water for hire.

Appeal from Circuit Court, Newton County; Henry C. Pepper, Judge.

Action by the Southwest Missouri Light Company to condemn lands of A. J. Scheurich and others for the purpose of a dam and water power to operate an electrical plant. From a judgment dismissing the suit, plaintiff appeals. Affirmed.

Plaintiff is a private corporation organized under article 8, c. 42, Rev. St. 1889, for the purpose of owning and operating gasworks electricity works, and waterworks, to furnish light, power, and water to Joplin, Webb City, and neighboring towns, and their inhabitants, for "hire and compensation." By this suit the plaintiff seeks to exercise the right of eminent domain as it is conferred in chapter 113, Rev. St. 1889 (now chapter 131, Rev. St. 1899), entitled "Mills and Milldams." Upon the filing of the petition a writ of ad quod damnum issued, and proceedings were had as in conformity to the requirements of that chapter. Upon the final hearing the court quashed the proceedings and dismissed the suit upon the ground, as recited in the judgment, "that the court finds that the petitioner is not entitled, under the pleadings and evidence, under the Constitution and laws of this state, to exercise the powers of eminent domain, and erect and maintain the dam in question for the purpose of furnishing electric light to the city of Joplin, or other municipalities, or their inhabitants." The plaintiff appeals from that judgment.

John A. Eaton, W. R. Thurmond, and John T. Sturgis, for appellant. C. H. Montgomery, for respondents.

VALLIANT, J. (after stating the facts).

There were some disputed questions of fact as to the damage that would be done the owners of land, and the effect on the health of the people in the vicinity, caused by maintaining the dam; also concerning plaintiff's alleged contractual duty to the city of Joplin to furnish light and water. But in the view we take of the main question in the case, it is unnecessary to go into those questions.

Plaintiff's purpose is to maintain a dam across Shoal creek, in Newton county, on land owned by it on both sides of the creek, to gain a water power to run its works to manufacture gas and electricity to be transmitted to Joplin, Webb City, and other cities in the vicinity, and their inhabitants, the consequence of which will be to obstruct the flow of the creek, flood adjacent lands, and inflict damage on the property owners in the vicinity, compensation for which the plaintiff offers to pay when the amount is duly ascertained as in the statute above mentioned is prescribed.

The vital question in the case is, does our statute which authorizes a person to exercise the right of eminent domain to condemn private property for the purpose of building and maintaining a milldam embrace in its purpose a private business corporation, organized to furnish light and water, for pay, to neighboring cities and their inhabitants? In going straight to this question, we may, for the purpose of this case, concede, without so deciding, that the use of property in furnishing light and water to a city is a public use. But it is not every corporation whose occupation is that of serving the public that is entitled to condemn and take or damage private property for its use. Many corporations whose whole revenues are derived in serving the public have no right of eminent domain. Street railroad companies serve the public, and their machinery and appliances are public utilities. If the plaintiff in this case may exercise the right of eminent domain to enable it to generate electricity for the purposes it has in view, a street railroad company may condemn, take, and damage private property, under the terms of the statute in question, to enable it to utilize a water power anywhere in the state to transmit the power by wire to the city to run its street cars; and in such case the railroad company's dam would be as appropriately called a "milldam" as the dam that the plaintiff in this case would erect. The right of eminent domain does not come merely from the character of the business, but arises only in legislative grant, and is to be exercised only in the manner prescribed by law. Section 21, art. 2, Const. It is a sovereign power, to be used only by the sovereign, or by one on whom the sovereign has conferred it for a particular use; and when conferred it is to be treated as an invasion of the rights of the individual whose property is to be taken, and therefore to be strictly construed. The Legislature has authorized the taking of private property...