Wise v. Yazoo City

• Decision Date: 28 February 1910
• Docket Number: 14,241
• Citation: 51 So. 453,96 Miss. 507
• Court: Mississippi Supreme Court
• Parties: HERMAN WISE v. YAZOO CITY

51 So. 453

96 Miss. 507

HERMAN WISE v. YAZOO CITY

No. 14,241

Supreme Court of Mississippi

February 28, 1910

FROM the chancery court of Yazoo county, HON. G. GARLAND LYELL Chancellor.

Wise appellant, was complainant in the court below; Yazoo City appellee, was defendant there. From a decree in defendant's favor the complainant appealed to the supreme court.

Yazoo City, appellee, initiated statutory proceedings to condemn lands for the purpose shown in the opinion of the court Wise, appellant, enjoined the proceedings, instituting this suit in equity for that purpose. The facts are fully stated in the opinion of the court and section 20 of the city's special charter, the construction of which was involved, is quoted therein.

Reversed.

Campbell & Campbell, for appellant.

The city claims authority to condemn the land involved in this suit by virtue of section 20 of its charter as amended.

The object and purpose of condemning the land in question is to construct thereon a railroad to be used for conveying, principally, coal to the city's power house, from the tracks of the Yazoo & Mississippi Valley Railroad Company. If the city has power to condemn land for the purpose of constructing a railroad it must derive the power from section 20 above cited. and the authority must be either expressed or conferred by necessary implication. Waterbury v. Platt, 75 Conn. 387, 53 A. 958, 60 L. R. A. 211; Markham v. Howell, 33 Ga. 508; Providence, etc., R. Co. v. Norwich, etc., R. Co., 124 Mass. 277; Tacoma v. State, 4 Wash. 64, 29 P. 847.

Our contention and argument is that the act does not confer the authority on the city either in express or implied terms. A reading of the act fails to disclose any express authority to build or operate a railroad. The act first confers upon the council power to condemn private property for streets, roads, alleys, hospitals, burying grounds, landings, wharves, sewerage, waterworks, electric light lines, gas mains, street railways, and places of quarantine. And then if the council should not deem it necessary to acquire the fee in the private property taken for the above purposes, but should conclude that an easement, user or right of way would meet the exigencies of the case it proceeds to confer upon the council the power to condemn an easement, user, or right of way in, under or over any private property for the laying of water, sewerage or gas mains or pipes, or any of the purposes above mentioned. Now let us refer to each of the purposes above mentioned and endeavor to line one of those "purposes" with the words, easement, user, or right of way and obtain for the city the right to condemn a right of way for a railroad or spur track. The combination cannot be found--but the counsel for the city contend that the combination, "an easement, user, or right of way for a waterworks" gives the desideratum. Ask ten men what "an easement, user or right of way for a waterworks" conveys to their minds, and we venture the assertion all would reply, in substance, a site or place for the building, pumps, wells, reservoir, and water pipes or mains connected with a waterworks; and it would not occur to any one of them that a "right of way" for a railroad was even contemplated.

It is very clear that section 20 does not in express terms authorize the city to condemn the land involved in this suit, however strained the construction. Then does the city get the authority to condemn this land by necessary implication?

Before discussing the facts from which we must determine whether the particular act now under consideration confers an implied power to condemn, we wish to call to the court's attention, the rule that all acts conferring the power of eminent domain must be strictly construed.

"The power of eminent domain being in derogation of the common right, acts conferring it are to be strictly construed and are not to be extended beyond their plain provisions. The right to exercise the power is strictly limited to the purposes specified in the statute conferring it. The proposed use of the land of the owner must be clearly embraced within the legitimate object of the power conferred. Where there is any doubt in regard to the extent of the power the land owner must have the benefit of that doubt." 15 Cyc. 567, 568; Harvey v. Aurora, etc., R. Co., 174 Ill. 295, 51 N.E. 163; Goddard v. Chicago, etc., R. Co., 104 Ill.App. 526, 66 N.E. 1066; Minn. Canal & P. Co. v. Koochicking Co., 107 N.W. 405, 5 L. R. A. (N. S.) 638; Erie R. Co. v. Steward, 63 N.E. 118; Painters v. St. Clair, 34 S.E. 989; State v. Superior Court, 78 P. 1011; City of Waterbury v. Platt Brothers Co., 53 A. 958, 60 L. R. A. 211; Georgia R. & B. Co. v. Mayor, etc., Union Pt., 47 S.E. 183; Dewey v. Chicago, etc., R. Co., 56 N.E. 804; Claremint R. Co. v. Putney, 62 A. 729; Gaines v. Lunsford, 47 S.E. 967; City of Detroit v. Doley, 37 N.W. 11; Glover v. Boston, 14 Gray, 282; Wilson v. Lynn, 119 Mass. 174.

By referring to the petition for condemnation filed by the city we find that it is engaged in the business of operating a light, water and sewerage system and line of street railway--that it owns a power house which is situated on the bank of the Yazoo River, a navigable stream. about one thousand four hundred feet from the main line of the Yazoo & Mississippi River Valley Railroad Company--that the Producers Cotton Oil Company has constructed a spur track from its property to the main tracks of the Yazoo & Mississippi Valley Railroad Company and the city secured the right to use this spur track; that the city desires to connect its power house with this spur track for the purpose of conveying coal to its said power house from the main line of the Yazoo & Mississippi Valley Railroad Company; that it is necessary that the city have coal in order to operate its plant; that the land of complainant lies between the terminal of said spur track and the power house and it is necessary to lay a track on complainant's land in order to connect the spur with the power house. We find that said power house is located on a public street and the city can convey coal from the freight yards of the Yazoo & Mississippi Valley Railroad Company to its power house on said street at a cost of twenty-five cents per ton more than if it used the spur tract; and can also with some hazard get coal by the Yazoo River which is superior in quality to the coal received by rail, but more expensive; however its superior heating qualities offset this additional cost.

We have seen that section 20 does not give the city express authority to condemn for the purpose here sought. Now in view of these facts, has the city that right by virtue of implication? We say it clearly has not.

What is meant by necessary implication? And when should this method of construction be resorted to? Our answer is that certain powers not expressed in the grant are to be implied when not to do so would defeat the accomplishment of the purpose and object of the grant. For instance: suppose a corporation is granted the power under its charter to own and operate a railroad and given power to condemn land for this purpose. Here nothing is said about side tracks, depots, turn tables, repair shops; yet to deny the corporation the right to condemn land for these purposes would render the railroad inoperative and thereby defeat the purpose of the grant.

We now ask that the test be applied and inquire, Is it necessary and indispensable to the construction, operation or maintenance of the city's electric, light, water and sewerage plant that it condemn the spur track in question? Will the object and purpose of section 20 be destroyed if the spur track is not built? The facts in this case refute any such idea. The purpose of the spur track is not to supply the city with coal because it cannot get it without the spur, but to supply it with coal at a reduction of twenty-five cents per ton, over the cost of getting it by other means. Never for a moment must we conclude that to deny the city the right to condemn this land will cause the city to suspend the operation of its plant, nor even impair the operation of it. Admit that it can operate less expensively with the spur track than without it, this additional expense is a small item to a business that shows a net earning up to February 23, 1909, of nearly $ 70,000 and a net earning for the preceding year of about $ 8,000. If the city's power plant was so situated that it had no means of ingress whereby it could get coal, possibly it would have the right, by necessary implication, to condemn for a right of way on which to construct a spur track in order to secure coal which is necessary for the operation of the plant. But in this case the city admits that it can secure the coal by other means, one of which only costs twenty-five cents per ton additional. This means of access which the city seeks to condemn is not indispensable to the operation of the plant, but only conducive to a less expensive operation of it. We earnestly insist that the inevitable conclusion must be that the city by said section 20 has neither the express or implied power to condemn the land of complainant for the purpose of erecting thereon a railroad or spur track, to be used by the city for conveying coal to its power house.

Holmes & Holmes, for appellee.

The appellee is a municipal corporation with a special charter under which it owns and operates a waterworks, electric light, sewerage, and street railway system, serving alike the general public without discrimination. This entire system is operated from the city's single plant or power house which is located on the Yazoo River within the corporate limits. The operation of every branch of this system is absolutely dependent for its very...