Threlkeld v. Third Judicial Dist. Court In

• Decision Date: 08 July 1932
• Docket Number: No. 3780.,3780.
• Citation: 36 N.M. 350,15 P.2d 671
• Parties: THRELKELDv.THIRD JUDICIAL DISTRICT COURT IN AND FOR OTERO COUNTY et al.
• Court: New Mexico Supreme Court

36 N.M. 350

15 P.2d 671

THRELKELD

v.THIRD JUDICIAL DISTRICT COURT IN AND FOR OTERO COUNTY et al.

No. 3780.

Supreme Court of New Mexico.

July 8, 1932.

Syllabus by the Court.

Condemnation of land by logging company for right of way for logging railroad subjects company to laws governing common carriers (Comp. St. 1929, §§ 43-120, 43-121).

Statutes authorizing construction of logging railroad and relating to eminent domain held not legislative declaration that logging railroad constitutes “public use” (Comp. St. 1929, §§ 43-120, 43-121; Const. art. 2, § 20).

Statute authorizing taking of private property for logging railroad for public use held not invalid under constitutional provision prohibiting taking of private property for public use without compensation (Comp. St. 1929, §§ 43-101, 43-120, 43-121; Const. art. 2, § 20).

Petition to condemn land for right of way for logging railroad must show public use (Comp. St. 1929, §§ 43-101, 43-120, 43-121; Const. art. 2, § 20).

Public benefits from development of large resources and extensive business held not “public use” within constitutional provision prohibiting taking private property for public use without compensation (Comp. St. 1929, §§ 43-101, 43-120, 43-121; Const. art. 2, § 20).

1. Condemnation of land for right of way for logging railroad subjects logging company to laws governing common carriers. Comp. St. 1929, §§ 43-120, 43-121.

2. Comp. St. 1929, §§ 43-120, 43-121, construed, and held not a legislative declaration that logging railroad is a public use.

3. N. M. Const. art. 2, § 20, prohibiting taking private property for public use without compensation, not violated by legislative authorization of taking for logging railroad for public use; question of public use being left to judicial determination.

4. Petition to condemn land for right of way for logging railroad must make showing of public use.

5. Public benefits from development of large resources and extensive business do not constitute public use within meaning of N. M. Const. art. 2, § 20, prohibiting taking private property for public use without compensation.

Original proceeding by George A. Threlkeld, for a writ of prohibition prayed to be directed to the Third Judicial District Court sitting within and for the County of Otero and George W. Hay acting and sitting as Special Judge. On respondent's demurrer to the alternative writ.

Alternative writ made absolute.

Petition to condemn land for right of way for logging railroad must show public use. Comp.St.1929, §§ 43-101, 43-120, 43-121; Const. art. 2, § 20.

George A. Threlkeld, of Roswell, for petitioner.

J. B. Newell, of Las Cruces, for respondents.

On Rehearing.

WATSON, J.

Our alternative writ of prohibition has stopped proceedings by respondent in the district court to condemn petitioner's land for use as a logging railroad. To the petition for the alternative writ, respondent has demurred.

The Southwest Lumber Company showed in the district court that it is a private corporation engaged in lumbering and logging, and holding large contracts with the federal government and with the state for the harvesting of timber, to reach which it desires to construct a spur from its existing logging railroad across petitioner's lands; that the proposed route is the most favorable by which to reach a body of timber which would supply its plant at Alamogordo with raw materials for a period of eighteen years; that some of such timber is accessible only by crossing petitioner's lands, and that none of it is equally accessible otherwise; that the right of way is necessary to enable the federal government and the state to dispose of timber owned by them respectively; that a large portion of the proceeds from federally owned timber is turned over to the counties for public use, and that a portion of such proceeds is expended on roads and trails in forest areas; that the harvesting of timber is essential to carry out the policies of the national forestry service; and that from the sales of timber on state lands large sums of money will be derived by state institutions.

Petitioner's demurrer having been overruled, he applied to this court.

[1][2][3][4][5] Our statute, Laws 1905, c. 97, Comp. St. 1929, § 43-101 et seq., gives railroad, telephone, and telegraph companies the right of eminent domain and prescribes condemnation procedure. It also provides for the taking of private property for certain other public uses. Sections 20 and 21 of that act read as follows:

“All corporations, lawfully doing business in the state of New Mexico, and engaged in the manufacture of logs, lumber or timber, shall have the right to construct, maintain and operate logging roads, chutes, flumes or artificial water courses for the transportation of its logs and other timber products, and shall have the right and power to acquire, hold, use and, whenever the rights of any interested party shall not be affected thereby may transfer, all such real and personal property as shall be reasonably necessary for the construction and maintenance of such logging roads, chutes, flumes and artificial water courses: Provided, that such corporations operating under the provisions of this section shall be subject to the laws in force governing common carriers.” (L. '05, c. 97 § 20, Comp. St. 1929, § 43-120.)

“Such corporations shall have the right of eminent domain and shall have the right to condemn and appropriate property for the uses and purposes set forth in section 1 (43-101) of this chapter. Such right of eminent domain and condemnation shall be exercised in the manner prescribed by this chapter: Provided, that any property acquired under the provisions of this chapter shall be used exclusively for the purposes as set forth in this chapter and whenever the use of such property as herein contemplated shall cease for the period of three years, the same shall revert to the original owner, his heirs or assigns.” (L. '05, c. 97, § 21, Comp. St. 1929, § 43-121.)

Counsel disagree both as to the meaning and as to the constitutionality of these provisions. We naturally endeavor first to ascertain the meaning.

One difference arises out of the proviso in section 20. Petitioner contends that it limits the right to logging companies already subject to the laws in force governing common carriers. So, he contends, the failure to claim such status is fatal to the right and to the jurisdiction.

Respondent contends that the proviso means only that a private logging company must proceed in condemnation as a common carrier is required to proceed.

We find nothing to support respondent's contention. Not only is the language quite inappropriate to express such meaning, but we find the matter of procedure covered by section 21, where it is provided that “such right *** shall be exercised in the manner prescribed by this chapter,” apparently referring to earlier sections.

Nor are we better satisfied with petitioner's theory. The right had been, in earlier sections, conferred upon common carriers by railroad. Sections 20 and 21 were evidently intended to confer the right upon companies not organized as common carriers or so engaged.

As we view it, the true meaning must be that a logging company, by invoking the right granted, subjects itself to the laws in force governing common carriers. On the face of the statute the matter is not plain. This meaning emerges, however, when the two sections are construed together and in the light of general principles governing the taking of private property for public use.

A further and more important inquiry presents itself: What are the public uses for which logging companies may take private property? Section 21 says “for the uses and purposes set forth in section 1” (Comp. St. 1929, § 43-101). In section 1 there is nowhere an express declaration of public use. The “case” dealt with by the section is that of a railroad, telephone, or telegraph company, seeking to appropriate lands or other property “for public use.” It later appears, by inference, that the Legislature contemplated the “line” as the particular use for which it authorized the taking. By section 14 (Comp. St. 1929, § 43-114) there is a special provision for depots.

So, even when the right is claimed by a railroad, telephone, or telegraph company for a right of way for its line, it would seem that there is back of it all the condition that the line must serve a “public use.”

True, the procedural sections of the act do not expressly require a showing of public use, or a conclusion by the court on that matter. But, in framing these provisions, the Legislature evidently had in mind railroad, telegraph, and telephone companies, whose ordinary businesses are universally admitted to be public utilities. They are required to set forth in their petitions “the general directions in which it is desired to construct their *** line(s) ***.” This affords an opportunity to make an issue of public use and to have a judicial determination of it.

Thus we conclude that the Legislature has in no case made a positive declaration of public use, and that in all cases before appointing commissioners to award compensation the court should be persuaded that the taking is for a public use.

Thus interpreting the statute, we do not find it violative of N. M. Const. art. 2, § 20, which provides: “Private property shall not be taken or damaged for public use without just compensation.” The Legislature has not assumed to authorize taking for private use. It has not authorized any taking except upon condition that it be for public use.

Hence respondent's right to take petitioner's land must be shown by a petition presenting a case of public use.

Counsel for respondent rests his case upon the liberal, or, as many have termed it, “loose,”...