The Howard Mills Company v. The Schwartz Lumber and Coal Company

Decision Date11 April 1908
Docket Number15,349
Citation77 Kan. 599,95 P. 559
PartiesTHE HOWARD MILLS COMPANY v. THE SCHWARTZ LUMBER AND COAL COMPANY
CourtKansas Supreme Court

Decided January, 1908.

Error from Sedgwick district court; THOMAS C. WILSON, judge.

STATEMENT.

ON April 3, 1906, the Howard Mills Company began proceedings to condemn certain real estate for its use which belonged to the Schwartz Lumber and Coal Company. During such procedure, and on May 17, 1906, the Schwartz Lumber and Coal Company filed its petition in the district court of Sedgwick county to enjoin this appropriation of its property. The defendant answered, and when the case was reached for trial it was submitted to the court upon an agreed statement of facts which, so far as necessary to show the questions presented in this court, reads:

"The plaintiff is the owner of the tract of land described in said application and sought to be taken and appropriated by said proceedings; that the plaintiff is a private corporation organized under the laws of Kansas, and engaged in the business of the purchase and sale of lumber, coal and building material at retail, and uses said tract of land, so sought to be appropriated, in its said business, and desires to keep and use said tract in its said business; . . . that the defendant, the Howard Mills Company, is a private corporation organized under the laws of Kansas, and that the purpose for which it is organized is stated in its charter as follows: 'The purposes for which this corporation is formed is the manufacture and sale of flour and feed' that said Howard Mills Company is a milling corporation using power, and is authorized to engage in the manufacture and sale of flour and feed and do all things necessary or expedient in the operation of such a mill and the manufacture and sale of flour, feed and other grain products; that in the year 1901 the said Howard Mills Company, being the owner of said tract of land, erected thereon its present mill and elevator, and from that time to the present has engaged in operating the same in the manufacture and sale of flour and feed and other grain products; that said business has been so conducted during all said time at a fair living profit; that the said mill is equipped with and operated by a steam-power plant, consisting of engine and boiler of 100 horse-power which furnishes power capacity for manufacturing 400 barrels of flour each day of 24 hours, and is equipped with an elevator having a storage capacity of 25,000 bushels of wheat and 1000 bushels of corn and other grain; and said mill has a storage capacity of from 80,000 to 100,000 pounds of flour and 40,000 pounds of meal and feed; and said mill is equipped with modern mill machinery and apparatus of the capacity of 250 barrels of flour each day of 24 hours; that each barrel of flour contains 196 pounds of flour and consumes 4 1/2 bushels of wheat; and that in the ordinary operations of said mill from 50 to 65 per cent. of the horse-power capacity of said power plant is used; that the storage capacity for fuel owned by said Howard Mills Company is 25 tons of coal and 200 barrels of oil; that the ordinary daily consumption of fuel in the operation of said mills is 4 tons of coal and 15 barrels of oil; that if it were not necessary to use any part of the said mill for storing manufactured products, additions to the milling machinery and apparatus could be made which would give the said mill a milling capacity equal to the full horse-power capacity of the said power plant; that if the power plant were used to its full capacity the consumption of fuel would be increased 25 per cent.; that it frequently happens that it is not practicable to obtain coal in car-load lots upon so short notice as 10 days; and the Howard Mills Company in the operation of its mill has frequently experienced a shortage of fuel for the operation of the same.

"That the business conducted by the Howard Mills Company in said mill is and has been the purchase of wheat and other grain in the open market, and manufacturing the same into flour and feed and selling the same in the open markets, and manufacturing flour and feed for farmers and other customers for pay, when offered, as follows: Said Howard Mills Company will grind for pay wheat in quantities of 20 bushels or more and will grind corn or other grain into feed for pay at any time and in any quantities, and will exchange flour and bran for wheat in any quantity upon request; and has conducted in the past, and is now conducting, a large business in such exchange for its customers, retaining a sufficient allowance from the grain so exchanged to pay its regular customary and uniform rates of exchange; that said Howard Mills Company publishes and keeps posted up in its said mill its rate of exchange, and the terms and conditions on which it will grind for pay; that under the present conditions of the milling business in Wichita and in the state of Kansas the business of grinding for toll and pay is not now carried on so far as the grinding of wheat into flour is concerned; and that the method of exchanging flour of a grade and weight corresponding to the grade and weight of the wheat offered for exchange has been substituted therefor; that the grinding of corn and other grain into feed for pay is regularly and extensively carried on by the Howard Mills Company in its said mill.

"That the object of the Howard Mills Company in appropriating the land sought to be appropriated by said proceedings is to provide facilities for the present and future increase of the milling capacity of its said mill, and the present and future increase of its business; and that the full plans and designs to be adopted in utilizing said land in said business are not matured or settled upon, and are to be so settled upon from time to time as the increase or changes in the business and operation of said mill render the same expedient or necessary; that if the said Howard Mills Company shall acquire the land so sought to be appropriated in said proceeding, its present intention is to increase its present storage capacity for its flour and other mill products by erecting on said land a building substantially covering all the tract so acquired, to be set on a stone foundation, one story in height, for the storage of its manufactured products, and constructed with a view to making additions thereto for storage purposes and putting in additional machinery as the operation of said mill and the conduct of said business may from time to time render expedient or necessary; also to increase its storage capacity for fuel by erecting oil-tanks and structures for storing coal or other fuel sufficient for the efficient operation of said mill.

"That the said Howard Mills Company is desirous of extending and increasing its business by operating its mill to its full capacity, and by increasing its capacity by the addition of new buildings and additional machinery; and that it has not now the necessary land upon which to construct such additional buildings and machinery; that the said tract of land sought to be appropriated by said proceedings is the only land adjoining or near to the said mill of the said Howard Mills Company that is practical for the purpose of enlarging and extending the said mill as is desired and contemplated by the said Howard Mills Company; that the said land so sought to be appropriated by said proceedings owned by the plaintiff is used by the plaintiff for storing its lumber, brick and other building material as suits its convenience, and for the maintenance of coal-sheds and bins in which it stores its coal kept for sale; and that there are now no permanent buildings of any kind on said land other than said coal-sheds and bins; that the said Howard Mills Company has endeavored to purchase from the plaintiff the said tract of land so sought to be appropriated in said proceeding, and that the plaintiff has refused and still refuses to sell the same to the said Howard Mills Company or to place a price which it will accept therefor."

The land sought to be appropriated adjoins that already owned, occupied and used by the Howard Mills Company in its business.

Upon the final hearing a permanent injunction was granted. From that order the Howard Mills Company brings the case here for review.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EMINENT DOMAIN--Flour-mill Operated by Steam-power. A private corporation owning a mill operated by steam-power, and having for its purpose the manufacture and sale of flour and feed, cannot exercise the right of eminent domain for the purpose of improving and enlarging such business.

2. EMINENT DOMAIN -- "Public Mills." The provisions of chapter 65 of the General Statutes of 1901 do not apply to mills used merely for the purpose of manufacturing flour and feed for sale, and such mills are not made public mills by that act.

3. EMINENT DOMAIN -- Statute Construed. Section 1366 of the General Statutes of 1901 does not confer the right of eminent domain upon a mill or other manufacturing corporation which is merely engaged in the manufacture of flour and feed for sale by the use of steam-power.

Smyth & Helm, for plaintiff in error.

H. C. Sluss, Kos Harris, and V. Harris, for defendant in error.

OPINION

GRAVES, J.:

Do the foregoing facts show the defendant, the Howard Mills Company to be a public corporation having power to exercise the right of eminent domain? This is the question presented. The defendant insists that this question is answered in its favor by the statute of this state. In support of its claim reference is made to various statutes relating to mills, among which is an act that took effect June 1, 1863, and is still in force, now being chapter 65 of the General...

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4 cases
  • Washington Water Power Co. v. Waters
    • United States
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    • 28 Marzo 1911
    ... ... 19 Idaho 595 THE WASHINGTON WATER POWER COMPANY, Appellant, v. CHARLES WATERS, BERTHA E ... 8, 71 P. 541; Potlatch Lumber Co. v. Peterson, 12 ... Idaho 769, 118 Am. St ... Mass. 480, 14 N.E. 751; Howard Mills Co. v. Schwartz ... Lumber & Coal Co., 77 ... ...
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  • German Alliance Insurance Company v. Ike Lewis
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    ...the validity of a Kansas statute, it is well to note that the supreme court of that state in Howard Mills Co. v. Schwartz Lumber & Coal Co. 77 Kan. 599, 18 L.R.A.(N.S.) 356, 95 Pac. 559, recognizes that there is a difference, and adjudges accordingly. It there cited numerous decisions from ......
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    ... ... use. Howard Mills Co. v. Schwartz Lumber & Coal Co., ... 77 ... ...
1 books & journal articles
  • CHAPTER 1
    • United States
    • Full Court Press Zalma on Property and Casualty Insurance
    • Invalid date
    ...validity of a Kansas statute it is well to note that the Supreme Court of that State in Howard Mills Co. v. Schwartz Lumber & Coal Co., 77 Kan. 599 (1908), recognizes that there is a difference and adjudges accordingly. It there cited numerous decisions from other States and in defining a p......

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