BRIDAL VEIL LUMBERING COMPANY v. JOHNSON. SUPREME COURT OF OREGON, 1896. [30 Oreg. 205.] BEAN, J. 1. There being no bill of exceptions in the record, the only question for our determination is whether the findings of fact support the judgment. The right of eminent domain is a right of sovereignty, and can be exercised only by legislative authority, and for a public use or benefit. When, therefore, a particular corporation claims the right to take private property without the consent of the owner, it must show not only a legislative warrant, but if its right is challenged on that ground, it must be able to establish the fact that the enterprise in which it is engaged is one by which a public use or benefit is to be subserved or promoted, so that such taking can be said to be for a public and not a private use. The necessity or expediency of taking private property for public use, the instrumentalities through which it may be done, and the mode of procedure, are legislative and not judicial questions. But, whether the proposed use thereof is in fact public, so as to justify its taking without the consent of the owner, has always been a question for the courts to determine, and, in doing so, they are not confined to the description of the objects and purposes of the corporation as set forth in its articles of incorporation, but may resort to evidence aliunde showing the actual business proposed to be conducted by it: Lewis on Eminent Domain, § 158; Matter of Niagara Falls & Whirlpool R. Co., 108 N. Y. 375 (15 N. E. 429); Chicago & E. I. R.R. Co. v. Wiltse, 116 Ill. 449 (6 N. E. 49). 2. Now, in this case, from the findings of fact, it clearly appears that plaintiff is a corporation organized for the construction of a railroad for the transportation of freight and passengers, and therefore sections 3239 and 3240, Hill's Code, invest it with authority to exercise the power of eminent domain, if the use it intends to make of the property sought to be taken is in fact public. Bearing upon this question, the findings are that it has already constructed five and a half miles of road, and is now and has been operating the same for the use and benefit of the general public in carrying freight and passengers, and there is nothing in the record anywhere to indicate that the road has ever been used or is intended to be used for any other or different purpose, or that it was built or intended for a logging road, or has ever been used for that purpose; or, in fact, that it is in any way connected with or a part of the mill enterprise; or, indeed, except by inference, that it belongs to the mill company. We are, therefore, unable to say that the court was in error in holding that the railroad of plaintiff is public so as to justify the exercise in its behalf of the power of eminent domain. The fact that it has not been fully completed between the termini indicated in its articles of incorporation, or that there is at present no town, city, or settlement, or other railroad at its proposed southeastern terminus, or that its proposed route is through a rough, mountainous, and sparsely settled country, or that the plaintiff has not yet fully equipped the road, or supplied itself with complete and perfect terminal facilities, or that it has not charged the passengers upon its railroad any fare, does not affect its right to exercise the power of eminent domain. The question of public use is not determined, as a matter of law, by any of these things, but by the fact that the proposed road is intended as a highway for the use of the public in the transportation of freight and passengers. And it can make no difference that its use may be limited by circumstances to a small part of the community. Its character is determined by the right of the public to use it, and not by the extent to which that right is exercised: De Camp v. Hibernia Railroad Co., 47 N. J. Law, 43; Phillips v. Watson, 73 Iowa, 28 (18 N. W. 659); Ross v. Davis, 97 Ind. 79. If every one having occasion to use the road as a passenger or for transportation of freight may do so, and of right may require the plaintiff to serve him in that respect, it is a public way, although the number actually exercising the right is very small. The findings of the court show that the enterprise in which plaintiff is engaged, and for which it requires the land in question, is of this character, and therefore we have no alternative but to affirm the judgment. In doing so, however, we do not desire to be understood as holding that a railroad constructed by a mill company for the evident purpose of transporting logs to its mill can become a public highway, so as to justify the exercise of the power of eminent domain in its behalf, because of any declaration in its articles of incorporation to that effect, or on account of any right of the public to use it for the transportation of freight and passengers. No such question is presented by this record. The findings of the court by which we are bound negative such an inference, and this decision is based upon the facts as found by the court below. The judgment must therefore be affirmed.1 Affirmed. 1 As to public railways, see: Butler v. Tifton Ry. Co. 121 Ga. 817 (1904); Phillips v. Watson, 63 Iowa, 28 (1884); Louisville, etc. R.R. Co. v. Pittsburg & K. Coal Co., 23 Ky. L. Rep. 1318, 64 S. W. 969, 55 L. R. A. 601 (1901); Ulmer v. Lime Rock R.R. Co., 98 Me. 579, 57 Atl. 100 (1904); New Central Coal Co. v. George's Creek C. & I. Co., 37 Md. 537 (1872); Kettle River R.R. Co. v. Eastern Ry. Co., 41 Minn. 461; Dietrich v. Murdock, 42 Mo. 279 (1868); Butte, A. & P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 232, 50 Am. St. Rep. 508, 31 L. R. A. 298 (1895); Bridal Veil Lumbering Co. v. Johnson, 30 Oreg. 205, 46 Pac. 790, 60 Am. St. Rep. 818, 34 L. R. A. 368 (1896); Maginnis v. Knickerbocker Ice Co., 112 Wis. 385 (1901). MATTER OF THE SPLIT ROCK CABLE ROAD COURT OF APPEALS OF NEW YORK, 1891. [128 N. Y. 408.1] O'BRIEN, J. The map of its route originally filed, taken in connection with the evidence, shows that the southern terminus of the tramway is upon the land of the petitioner and near the establishment of the Solvay Process Company, a corporation engaged in a large and growing business, consisting, as is to be inferred from the evidence, in the production of soda ash. This company owns one hundred acres of land upon which are stone quarries, and this land entirely surrounds the terminus of the tramway as well as the land in question. The northern terminus of the tramway as now built is also on the lands of the Solvay Process Company at the lime-kiln of their works, about 500 feet from the Erie canal. The incorporators of the petitioner were practically all stockholders and persons interested in the Solvay Company, and it is quite apparent that the petitioner was organized and is operated as an instrumentality to facilitate the business operations of the Solvay Company. The only business that it has thus far carried on was for that company. As now constructed the limit of its carrying capacity cannot exceed 750 tons per day. It has thus far been operated practically night and day, and has succeeded in carrying for the Solvay Company 350 to 400 tons of stone a day. There is no public highway leading to the northern terminus of the road by means of which the public can obtain access for its use; that the road has thus far been entirely for the benefit of the Solvay Company, and that its business is to be entirely subordinate in the future to the plans and interests of the same company is entirely clear. From the evidence of the president of the petitioner and other witnesses in support of the application the most that is claimed is that the surplus of the capacity of the road, after supplying the wants of the Solvay Company, is to be devoted to public use in carrying, in buckets, freight offered to it by any person, providing such freight is suitable to the buckets and the road. Whether there is to be any surplus capacity as the Solvay Company continues to expand its business, and, if so, how much, are questions which are left entirely uncertain. From the testimony, it appears that the lands are required in order to increase the terminal 1 The first part of the opinion largely devoted to the recital of the legislation purporting to authorize companies constructing cable tramways to condemn lands is omitted.-ED. facilities of the tramway company by building other tramways on the surface to facilitate the carrying of stone to the cable station, by erecting buildings for the storage of freight and for repair shops, and to furnish means of access. The company has other lands that could be used for these purposes, but it is not so convenient. The evidence does not suggest any business that the petitioner is to carry on in the future any more than in the past, beyond the carrying of stone for the Solvay Company, except, possibly, the carrying of coal. In regard to that, it is best to describe the project in the language of the president himself, who said: "We intend to make a contract with some private individual to furnish him with coal, so that he can transport it or sell it to people in that vicinity; to establish a coal yard the same as anywhere, not that the Solvay Process Company or the cable company will establish a coal yard; some individual will have to run it, with whom we will make a contract to carry coal, and we propose to limit the contract to one individual for the present." Looking at the statute under which the petitioner was incorporated, the object of its incorporation as described in the certificate and the evidence in regard to the manner in which it has been and is to be operated and the purpose of its corporate existence, we think it is entirely clear that the use to which the petitioner is to devote the lands of the respondents is not public, but private. The principles governing applications by corporations of this character to take private property for its corporate purposes, have been very fully discussed and stated in a recent case in this court. (Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375.) Under the doctrine of this and other cases, a possible limited use by a few, and not then as a right but by way of permission or favor, is not sufficient to authorize the taking of private property against the will of the owner. (Matter of Deansville Cemetery Assn., 66 N. Y. 569; Matter of Eureka Basin, Warehouse & M. Co., 96 id. 42; Matter of Rochester, Hornellsville & Lack, R. Co., 110 id. 119; Matter N. Y., L. & W. Ry. Co., 99 id. 12.) The order appealed from is right, and should be affirmed, with costs. All concur. Order affirmed.1 1 As to private railways, see: Wade v. Lutcher & Moore Lumber Co., 74 Fed. 517 (1896); Weidenfeld v. Sugar Run Ry., 48 Fed. 615 (1892); Albion Lumber Co. v. De Nobra, 72 Fed. 739 (1896); contra Costa R. R. Co. v. Moss, 23 Cal. 323 (1863); White v. Kennon & Co., 83 Ga. 343 (1889); Normandale Lumber Co. v. Knight, 89 Ga. 111 (1892); Garbutt Lumber Co. v. Georgia &c. Ry., 111 Ga. 714 (1900); Litchfield & M. Ry. Co. v. The People, 222 Ill. 242 (1906); Williams, et al. v. Judge, 45 La. Ann. 1295 ( ); Kettle River R. R. Co. v. Eastern Ry. Co., 41 Minn. 461 (1889); Leigh v. Garysburg Mfg. Co., 132 N. C. 167 (1903); Cozard v. Hardwood Co., 139 N. C. 283 (1905). HAUGEN v. ALBINA LIGHT AND WATER CO. SUPREME COURT OF OREGON, 1891. [21 Ore. 411.1] THIS is an action for a writ of mandamus to require the defendant to supply the plaintiff with water by tapping a certain water-main on Tillamook Street, and allowing him to connect a service-pipe therewith, &c. The facts alleged in substance are these: That the defendant is corporation, the business of which, among other things, is to furnish the city of Albina, and the inhabitants thereof, with water; that it is operating under a franchise granted to said company by the council of the city of Albina, by virtue of an ordinance, as follows: "An ordinance granting the right of way through the streets for laying pipes for the purpose of conveying water through the city. The city of Albina does ordain as follows: Section 1. That the Albina Water Company, its successors and assigns, be and are hereby granted the right and privilege of laying pipes through the streets of the city of Albina, for the purpose of conducting water through the city. Section 2. That the ditches for laying pipes shall be sunk two feet, and the pipes for conducting the water shall be under the surface or level of the established grade eighteen to twenty inches on all improved streets, and no pipe shall be laid so as to interfere with the construction of sewers; provided, that nothing in this ordinance shall be construed so as to grant any exclusive right or privilege of conducting water into the city; provided further, that said water company shall in no case charge more than one dollar per month for the first faucet and fifty cents for each additional faucet in the same building, for family use or at a private dwelling house," &c. That the purpose and object of granting to said company the right to lay water-mains in the streets of said city, was that the citizens of said city might be furnished with a supply of pure and wholesome water; that by virtue of the authority conferred by said ordinance, the defendant laid down a four-inch water-main in and through Tillamook Street in the then city of Albina, from the east line of the original townsite of the city of Albina, to the west line of Twenty-fourth Street in Irvington, and connected the said main with the main on Margaretta Avenue in said city, and for nearly a year past has been pumping water and conducting it through said main on Tillamook Street to supply the citizens of Irvington residing east of Fourteenth Street; that the defendant utterly refuses to allow persons residing on Tillamook Street between the east line of the original townsite of Albina and Fourteenth Street in Irvington, to tap said main, and refuses to supply them with water therefrom; that the plaintiff resided on Tillamook Street between the points above named, and is the owner 1 This case is abridged. — ED. |