Westport Stone Company v. Thomas

• Decision Date: 10 March 1911
• Docket Number: 21,305
• Citation: 94 N.E. 406,175 Ind. 319
• Parties: Westport Stone Company v. Thomas et al
• Court: Indiana Supreme Court

94 N.E. 406

175 Ind. 319

Westport Stone Company v. Thomas et al

No. 21,305

Supreme Court of Indiana

March 10, 1911

From Decatur Circuit Court; Marshall Hacker, Judge.

Action by the Westport Stone Company against Maria Thomas and others. From a judgment for defendants, plaintiff appeals.

Reversed.

Davison Wilson and George W. Bruce, for appellant.

John F Goddard and John W. Craig, for appellees.

OPINION

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 appellees, under the provisions of §§ 929-940, 5398-5404 Burns 1908, Acts 1905 p. 59, Acts 1907 p. 306, §§ 3987-3993 R. S. 1881.

It appears from appellant's complaint, which is in one paragraph, among other things, that it is a corporation engaged in quarrying and selling 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 between said quarries, and that a railroad, owned and operated by appellant, connects the Hollensbe Stone Quarry with the tracks of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company; that appellant desires to construct a lateral railroad from the Magee Stone Quarry to the railroad already constructed to the Hollensbe Stone Quarry, and thus connect said Magee quarry, by a lateral railroad, with said railroad. The complaint describes in detail the proposed route, which is less than ten miles in length, and 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."

Each appellee filed twenty-nine objections to said complaint, fourteen 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 in 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 the act of 1869 (Acts 1869 [s. s.] p. 97, §§ 3987-3993 R. S. 1881, §§ 5398-5404 Burns 1908) is void because it violates the provisions of the state Constitution and the 14th amendment to the Constitution of the United States.

The other objections sustained by the court assert that appellant, being a corporation organized under 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 Trust Co. v. Harless (1892), 131 Ind. 446, 452, 15 L. R. A. 505, 29 N.E. 1062; Richland School Tp. v. Overmyer (1905), 164 Ind. 382, 73 N.E. 811; Water-Works Co. v. Burkhart (1872), 41 Ind. 364, 370; Speck v. Kenoyer (1905), 164 Ind. 431, 73 N.E. 896; note to Moore v. Sanford (1890), 7 L. R. A. 151. But 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. Sexauer v. Star Milling Co. (1910), 173 Ind. 342, 26 L. R. A. (N. S.) 609, 90 N.E. 474, and authorities cited.

The courts are not entirely harmonious in their decisions as to what constitutes a public use. Note to Albright v. Sussex County, etc., Park Com. (1904), 2 Am. and Eng. Ann. Cas. 48, 50, 51.

It is said in 3 Thompson, 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 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. (1911), ante, 303, and authorities cited; Sexauer v. Star Milling Co., supra, and cases cited; Phillips v. Watson (1884), 63 Iowa 28, 18 N.W. 659; 2 Wood, Railroads (2d ed.) p. 828; 1 Lewis, Eminent Domain (3d ed.) § 264; 2 Elliott, Railroads (2d ed.) p. 515.

The fact that the construction of such a 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 a 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 R. Co. v. Dix (1883), 109 Ill. 237, 17 Am. and Eng. R. Cas. 157; St. Louis, etc., R. Co. v. Petty (1893), 57 Ark. 359, 21 S.W. 884, 20 L. R. A. 434; Greasy Creek Min. Co. v. Ely Jellico Coal Co. (1909), 132 Ky. 692, 116 S.W. 1189; Chesapeake Stone Co. v. Moreland (1907), 126 Ky. 656, 104 S.W. 762, 16 L. R. A. (N. S.) 479; Butte, etc., R. Co. v. Montana, etc., R. Co. (1895), 16 Mont. 504, 41 P. 232, 50 Am. St. 508, 31 L. R. A. 298; Phillips v. Watson, supra; Morrison v. Thistle Coal Co. (1903), 119 Iowa 705, 94 N.W. 507; New Central Coal Co. v. George's Creek Coal, etc., Co. (1873), 37 Md. 537; New York Min. Co. v. Midland Min. Co. (1904), 99 Md. 506, 58 A. 217; Dietrich v. Murdock (1868), 42 Mo. 279; DeCamp v. Hibernia, etc., R. Co. (1885), 47 N.J.L. 43; Hays v. Risher (1858), 32 Pa. 169; Boyd v. Negley (1861), 40 Pa. 377; Brown v. Corey (1862), 43 Pa. 495; Ulmer v. Lime Rock R. Co. (1904), 98 Me. 579, 57 A. 1001, 66 L. R. A. 387, and cases cited; Farnsworth v. Lime Rock R. Co. (1891), 83 Me. 440, 22 A. 373; Zircle v. Southern R. Co. (1903), 102 Va. 17, 45 S.E. 802, 102 Am. St. 805, and note pp. 813-821; Madera R. Co. v. Raymond Granite Co. (1906), 3 Cal.App. 668, 87 P. 27; Shasta Power Co. v. Walker (1906), 149 F. 568; Holly Shelter R. Co. v. Newton (1903), 133 N.C. 132, 45 S.E. 549; Beekman v. Saratoga, etc., R. Co. (1831), 3 Paige 45, 22 Am. Dec. 679, and note p. 696; Latah County v. Peterson (1892), 3 Idaho 398, 29 P. 1089, 16 L. R. A. 81; Ex parte Bacot (1891), 36 S.C. 125, 15 S.E. 204, 16 L. R. A. 586; Strickley v. Highland, etc., Min. Co. (1906), 200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581; Hairston v. Danville, etc., R. Co. (1908), 208 U.S. 598, 28 S.Ct. 331, 52 L.Ed. 637; note to Pere Marquette R. Co. v. United States Gypsum Co. (1908), 22 L. R. A. (N. S.) 181; 1 Lewis, Eminent Domain (3d ed.) § 264; Nichols, Eminent Domain § 221.

It is not a question whether appellant is a private or a 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, Eminent Domain (3d ed.) §§ 253, 274; Butte, etc., R. Co. v. Montana, etc., R. Co., supra; F. W. Cook, etc., Co. v. Evansville, etc., Railway (1910), ante, 3.

In the case last cited the court said: "It is held in the case of County of Randolph v. Post (1876), 93 U.S. 502, 23 L.Ed. 957, that a corporation with authority to '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 (1893), 6 Wash. 138, 32 P. 1077. * * * It is well to note that in considering the right to exercise the power of eminent domain, the charter, or statute under which it was granted, or the charter of the corporation--whether private, or quasi-public--is not important. The prime and exclusive test may be said to be: Is the 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 that statute authorizing such organization."

Sections 5398-5404, supra, authorize the construction of lateral railroads, and grant the power of eminent domain. Sai...