Spratt v. Helena Power Transmission Co.
| Decision Date | 23 March 1908 |
| Citation | 94 P. 631,37 Mont. 60 |
| Parties | SPRATT v. HELENA POWER TRANSMISSION CO. HELENA POWER TRANSMISSION CO. v. SPRATT et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; Thos. C. Bach and J. M. Clements, Judges.
Action by Augustus N. Spratt against the Helena Power Transmission Company to restrain condemnation proceedings. From a judgment for defendant, plaintiff appeals. Also condemnation proceedings by the Helena Power Transmission Company against Augustus N. Spratt and others. From a judgment for plaintiff defendants appeal. Both cases affirmed.
The appeals now before the court grew out of an attempt by respondent to acquire certain of appellants' lands by the right of eminent domain. The parties to these actions are the same, and the parcels of land substantially the same, as were those involved in Helena Power Transmission Co. v Spratt, 35 Mont. 108, 88 P. 773, 8 L. R. A. (N. S.) 567 which cause was decided February 8, 1907, the court holding that under the laws of Montana, as they then existed, the respondent, a foreign corporation, had no right to exercise the power of eminent domain within this state. On February 6th there was introduced in the House of Representatives, the Legislature then being in session, House Bill 249, which will be adverted to hereinafter; it passed the House and Senate and received the Governor's approval on February 20th. The next day the respondent commenced an action to condemn the lands above mentioned in the district court of the First judicial district, and it fell to the department presided over by the Honorable J. M. Clements. This action we shall refer to hereafter as the "condemnation proceeding." Its trial was begun March 25th, upon the issues framed by the complaint and answer of the respective parties. Practically the same evidence was introduced at this trial as was in Helena Power Transmission Co. v. Spratt, supra; and we adopt the statement of facts there made as applicable to this phase of the controversy at hand. Pending the trial-on April 22d, to be exact-the appellants commenced an action against respondent in the same court, but in the department presided over by the Honorable Thomas C. Bach, wherein appellants prayed as a part of the relief asked that the respondent be enjoined and restrained from prosecuting the condemnation proceeding. This action will be referred to hereafter as the "injunction proceeding." On April 24th, the court, Judge Clements presiding, was moved to suspend further action in the condemnation proceeding until the injunction proceeding might be heard and determined. This motion was denied, and on the same day the court determined the use to be a public use, that the public interests required the taking of appellants' lands, the amount of said land asked for by respondent to be necessary, and appointed commissioners to ascertain and determine the amount to be paid to appellants by reason of the appropriation of their property. Thereafter the court, Judge Bach presiding, heard the allegations and proofs of the parties in the injunction proceeding, from which these facts, with others, appeared: That the first proceeding by respondent to acquire appellants' lands was commenced April 24, 1906. After a hearing in that suit commissioners were appointed by the court to examine the land, and these examined the premises in controversy, heard evidence concerning its value, and made report and award on August 4, 1906. Ten days later the appellants appealed to this court from the order appointing the commissioners and from their award. Notwithstanding the appeal respondent paid the amount of the award into the district court, and obtained from the court an order to be let into possession of the land, this latter order being made on December 12, 1906. At this time respondent's dam, an immense structure of steel and concrete, built across the Missouri river, and about 70 feet high, was nearly complete. The river waters were escaping under the dam through 6 huge pipes which were provided with headgates weighing about 6,000 pounds each, and so arranged that they might be dropped and the opening closed. About January 25, 1907, after the cause above mentioned had been argued and was under advisement in this court, the respondent caused the headgates to be dropped. In order to seal the headgates securely, a filling of earth was deposited over them. The waters of the Missouri river then rose over the spillway, and ever since it has been impossible to release these imprisoned waters, except by overflow, without a total destruction of the dam. So, when the respondent commenced the condemnation proceeding at bar, the water covered almost all of the land sought to be condemned. On May 8, 1907, the court denied the motion for the injunction to restrain the prosecution of the condemnation proceeding. The commissioners, in the condemnation proceeding now before the court, as they were directed by the order appointing them, met for the first time on April 24, 1907, and at divers times thereafter. They visited the premises in controversy, heard the allegations of the respective parties, took the proofs that were offered, and on the 28th day of June, 1907, filed a report of their proceedings and of the assessment of damages made by them. On July 12th following, the court, at the instance of the respondent, made its order in the condemnation proceeding authorizing the respondent to continue in possession of the property sought to be appropriated, and to use and possess the same during the pendency and until the final conclusion of the proceedings, and staying all actions and proceedings against the respondent on account thereof.
Appellants have appealed, first, from the order of the court in the condemnation proceeding determining that the use for which the respondent is seeking to take the property is a public use, that the public interest required the taking of such property, that the respondent is authorized and empowered by law to appropriate the same, and from that portion of the order appointing commissioners to ascertain and determine the amount to be paid by respondent to appellants as damages by reason of the appropriation of such property; second, from the order of the court denying and refusing the motion and application of appellants for an injunction restraining the prosecution of the condemnation proceeding; third, from the order of the court determining that the respondent was entitled and authorized to continue in the possession of the property sought to be condemned, and to use and possess the same during the pendency until the final conclusion of the litigation, and that all actions and proceedings against the respondent on account of said order be stayed until such time. By stipulation of the respective counsel the three appeals were heard and considered together.
M. S. Gunn, Jno. B. Clayberg, and Edward Horsky, for appellant.
Carpenter, Day & Carpenter and Wallace & Donnelly, for respondent.
The questions presented upon the three appeals are resolved into these: (1) Can the respondent acquire appellants' property as for a public use? (2) Is House Bill 249, Laws 1907, p. 38, c. 23, a constitutional enactment? (3) Because of flooding appellants' lands before the condemnation proceeding was begun, is respondent deprived of the right to condemn them, and herein are appellants deprived of their property without due process of law? We shall consider them in the order mentioned.
1. It is suggested by appellants that upon the former appeal the court by way of obiter held that the use for which respondent sought to condemn the property was a public one. We do not regard Judge Loud's masterful discussion of the subject nor the holding of this court thereon, as obiter in any sense. The question was directly placed in issue by the pleadings, the litigants introduced evidence in the lower court upon the precise point, and that court decided the use for which respondent sought to condemn the land to be a public use. In this forum the eminent counsel for the contending parties spent their energies upon this weighty question. This court, having to do with a constitutional problem of wide import, proceeded to its solution with caution and deliberation. It held that the use for which the condemnation was sought was a public use. The precise question was properly presented, fully argued, and ably considered in the opinion. The decision on this phase of the case was as much a part of the judgment of the court as was that upon the question of the right of the respondent to exercise the power of eminent domain. Railroad Co. v. Schutte, 103 U.S. 118, 26 L.Ed. 327; Union Pacific Co. v. Mason City Co., 199 U.S. 166, 26 S.Ct. 19, 50 L.Ed. 134. The judgment is controlling upon all questions properly within the issues, which the opinion shows the court deliberately considered. Brown v. Chicago & N.W. R. Co., 102 Wis. 137, 77 N.W. 748, 78 N.W. 771, 44 L. R. A. 586. It is again earnestly insisted by appellants that the right of eminent domain must be denied respondent, because "public and private use cannot be intermingled in the same enterprise." As before noted, the parties to this action and the land sought to be condemned are the same as in the former appeal; the evidence introduced by the respective parties is, in effect, the same; and this record, like the other one, does not disclose a taking for private use. And while we do not feel called upon to express an opinion upon the question appellants seek to present, for the reason that the record does not disclose a taking for private use, it may not be inapt to say that it is erroneous to assume that, because the use may bring about private profit, for that reason...
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