Westport Stone Co. v. Thomas

Citation94 N.E. 406,175 Ind. 319
Decision Date10 March 1911
Docket NumberNo. 21,305.,21,305.
PartiesWESTPORT STONE CO. v. THOMAS et al.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Decatur County; Monks, Judge.

Condemnation proceedings by the Westport Stone Company against Mariah Thomas and others. From a judgment for defendants on sustaining objections to the complaint, plaintiff appeals. Reversed and remanded, with instructions.Davison Wilson and George Bruce, for appellant. Goddard & Craig and Bennett & Davidson, for appellees.

MONKS, J.

Appellant, a corporation organized under the laws of this state governing the incorporation of manufacturing and mining companies, brought this proceeding to condemn a right of way for a lateral railroad over and upon the lands of the appellees, under the provisions of sections 929-940, 5398-5404, Burns 1908. It appears from appellant's complaint, which is in one paragraph, among other things, that it is a corporation engaged in the quarrying and selling of stone to the public generally; that it is the owner of certain described real estate on which are located two quarries known as the “Magee Stone Quarry” and the “Hollensbe Stone Quarry”; that appellees own the land intervening between said quarries, and a railroad owned and operated by appellant connects the Hollensbe Stone Quarry with the Cleveland, Cincinnati & St. Louis Railway; that appellant desires to construct a lateral railroad from said quarry known as the Magee Stone Quarry to the railroad already constructed to the Hollensbe Quarry, and thus connect said Magee Quarry by a lateral railroad with said railroad, and described in detail the proposed route, which is less than 10 miles in length. It further alleges that such lateral railroad is to be used “for the purpose of transporting stone for itself and for the purpose of transporting stone and other property and freight for the public generally *** and to act as a common carrier for hire for the public generally.” Appellees each filed 29 objections to said complaint, 14 of which were sustained, the others being overruled. Appellant refused to plead further, and final judgment was rendered in favor of appellees. The assignment of errors calls in question the action of the court sustaining said objections.

A part of the objections sustained by the court assert that appellant, being a corporation organized and existing under the manufacturing and mining laws as a stone company, has no right to exercise the power of eminent domain to condemn appellees' lands for the reason that the quarrying and transporting of stone is not a public but a private use, and that therefore said act of 1869, being sections 5398-5404, Burns 1908, is void because it violates the provisions of the state Constitution and the fourteenth amendment to the Constitution of the United States. The other objections sustained by the court assert that appellant, being a corporation organizedunder the manufacturing and mining laws, has no authority to engage in the business of a common carrier.

It is settled that the Legislature has the power to determine when convenience or necessity requires the exercise of the right of eminent domain, and, when it is so declared, within constitutional limits, courts cannot question such declaration. Consumers' Gas, etc., Co. v. Harless, 131 Ind. 446, 452, 29 N. E. 1062, 15 L. R. A. 505;Richland School Tp. v. Overmeyer, 164 Ind. 382, 73 N. E. 811;Waterworks Co. v. Burkhart, 41 Ind. 364, 370;Speck v. Kenoyer, 164 Ind. 433, 73 N. E. 896;Moore v. Sanford. 7 L. R. A. 151, note. But the question whether a particular use is public or private is a judicial question and must be determined by the courts. A presumption exists, however, in favor of the public character of a use declared by the Legislature, but it is not conclusive upon the courts. Sexauar v. Star Milling Co., 173 Ind. 342, 90 N. E. 474, 476, 477, 26 L. R. A. (N. S.) 609, and authorities cited.

The courts are not entirely harmonious in their decisions as to what constitutes a public use. 2 Am. & Eng. Ann. Cas. 50, 51, note. It is said in 3 Thompson on Corporations (2d Ed.) § 2743: “Conceding the rule that property can only be taken for a public use, the difficulty encountered is usually in the determination of what constitutes a public use. The term itself is difficult of exact definition, but it is conceded that public benefit is one of the essential characteristics of a public use. The opinions of the courts have undoubtedly been tempered by harmonizing public use with public benefit and public utility, as well as the general welfare of the state. Indeed, the determination of the question may depend somewhat on the nature of the wants of the community for the time being However, it is well settled that instrumentalities which tend to promote the manufacturing industries of the state, to develop and utilize its natural resources and advantages, to create the need of markets, for its products, and to furnish labor for its mechanics, are of great public benefit, and may constitute the required public use. These general principles are supported by many cases showing a great variety in their application”-citing many cases. It has been held by this court that the test as to whether a use is a public or a private one is, not simply how many persons actually use the way condemned for the purpose for which it is condemned, but whether the public has the right to its use without discrimination. Bedford Quarries Co. v. Chicago, etc., R. Co. (No. 21,605, this term) 94 N. E. 326, and authorities cited; Sexauar v. Star Milling Co., 173 Ind. 342, 90 N. E. 474, 26 L. R. A. (N. S.) 609, and cases cited; Phillips v. Watson, 63 Iowa, 28, 18 N. W. 659; 2 Wood on Railroads (Miner's Ed. 1894) p. 828; 2 Lewis on Eminent Domain (3d Ed.) § 264 (171); 2 Elliott on Railroads, § 961. The fact that the construction of such lateral railroad may or will subserve a private interest does not change the character of the use from a public use to a private one. As has been said: “The mere fact that the primary purpose of lateral railroad is to accommodate a particular private enterprise is not a controlling test. The character of the use, whether public or private, is to be determined by the extent of the right of the public to use it, and not by the extent to which the right is or will be used.” 15 Cyc. 590, 591, and cases cited; South Chicago, etc., R. Co. v. Dix, 109 Ill. 237, 17 Am. & Eng. R. Cas. 160;St. Louis, etc., R. Co. v. Petty, 57 Ark. 359, 21 S. W. 884, 20 L. R. A. 434;Greasy Creek, etc., Co. v. Ely Jellico Coal Co., 132 Ky. 692, 116 S. W. 1189; Chesepeaks Stone Co. v. Moreland, 126 Ky. 656, 104 S. W. 762, 16 L. R. A. (N. S.) 479;Butte, etc., R. Co. v. Montana, etc., R. Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508;Phillips v. Watson, 63 Iowa, 28, 18 N. W. 659;Morrison v. Thistle Coal Co., 119 Iowa, 705, 94 N. W. 507;New Central Coal Co. v. George's Creek Coal Co., 37 Md. 537;N. Y. Mining Co. v. Midland Mining Co., 99 Md. 506, 58 Atl. 217;Deitrich v. Murdock, 42 Mo. 279; De Camp v. Hibernia, etc., R. Co., 47 N. J. Law, 43; Hays v. Risher, 32 Pa. 169;Boyd v. Negley, 40 Pa. 377;Brown v. Corey, 43 Pa. 495;Ulmer v. Lime Rock, etc., R. Co., 98 Me. 579, 57 Atl. 1001, 66 L. R. A. 387, and cases cited; Fransworth v. Lime Rock R. Co., 83 Me. 440, 22 Atl. 373;Zircle v. So. Ry. Co., 102 Va. 17, 45 S. E. 802, 102 Am. St. Rep. 805, and note pages 813-821; Madera Co. v. Raymond Granite Co., 3 Cal. App. 668, 87 Pac. 27;Shasta Power Co. v. Walker (C. C.) 149 Fed. 568;Holly Shelter R. Co. v. Newton, 133 N. C. 132, 45 S. E. 549;Beekman v. Saratoga, etc., R. Co., 3 Paige (N. Y.) 45, 22 Am. Dec. 679, 696, note; Latha County v. Peterson, 3 Idaho (Hasb.) 398, 29 Pac. 1089, 16 L. R. A. 81; Ex parte Bacot, 36 S. C. 125, 15 S. E. 204, 16 L. R. A. 586;Strickley v. Highland, etc., Co., 200 U. S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581;Hairston v. Danville, etc., R. Co., 208 U. S. 598, 28 Sup. Ct. 331, 52 L. Ed. 137, 22 L. R. A. (N. S.) 181, note; Lewis on Eminent Domain, § 264; Nichols on Power of Eminent Domain, § 221.

It is not a question whether appellant is a private or public corporation, but whether the use is a public one. If it is to be so used, the right of condemnation can be bestowed upon any private corporation; but if not to be so used it cannot be conferred upon either a private or a public corporation. 1 Lewis on Eminent Domain (3d Ed.) §§ 253, 274; Butte, etc., R. Co. v. Montana, etc., R. Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508;F. W. Cook, etc., Co. v. Evansville, etc., Ry., 93 N. E. 279. In the case last cited the court said: “It is held in County of Randolph v. Post, 93 U. S. 502, 23 L. Ed. 957, that a corporation with authorityto ‘construct, complete, and operate a railroad’ is not the less a railroad company because it is also a coal, or a mining, or a furnace or a manufacturing company. Seymour v. City of Tacoma, 6 Wash. 147, 32 Pac. 1077. *** It is well to note that, in considering the right of eminent domain, the charter statute, or whether the corporation was organized as a private, or a quasi public, corporation, is not important. The prime and exclusive test may be said to be: Is the purpose or proposed use a public one? If the use is calculated to promote the public welfare, the law will not stop to inquire whether the applicant is organized under this or statute authorizing such organization.”

Sections 5398-5404, Burns 1908, enacted in 1869, authorize the construction of lateral railroads and grant the power of eminent domain. Said section 5398 provides that: “It shall be lawful for any owner or owners, or their lessees of lands, mills, blast furnaces, quarries, iron or coal mines or other real estate or for any company of persons who shall desire to construct a lateral railroad not exceeding ten miles in length, to locate and construct the same to any other railroad,” etc. Said section also gives...

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