87 Mich. 533 | Mich. | 1891
This matter comes here by certiorari, to test the validity of certain proceedings to condemn land for cemetery purposes.
1. Said petition is insufficient to confer upon said court jurisdiction of the subject-matter of said petition.
2. The statutes confer no authority upon said court to summon a jury in cases of the kind alleged and set forth in said petition.
3. It appears by said petition that said cemetery which it is proposed to enlarge is not owned by a corporation organized to establish a rural cemetery, and provide for the care and maintenance theréof.
Chapter 39, How. Stat., makes it the duty of the township board of health to provide and maintain burial grounds, but contains no provisions for the condemnation of land for cemetery purposes.
In 1869 the Legislature passed an act entitled ffAn act to authorize and encourage the formation of corporations to establish rural cemeteries, and provide for the care and maintenance thereof.”
In 1875 the last-named act was amended (Act No. 219, Laws of 1875) by adding 10 new sections,
The contention of respondent is that there is no valid statute which authorizes or permits the condemnation of private property for the enlargement of this cemetery; that the act of 1869 authorized the formation of corporations to establish rural cemeteries, and provided for the care and maintenance of rural cemeteries so established, and only such as are so established.
In my judgment, although the point is not made hr the briefs, the amendment of 1875 is, as applicable to rural cemeteries established by corporations formed under the act of 1869, unconstitutional and void, as it attempts to invoke the exercise of the power of eminent domain for the condemnation of lands at the instigation of a private corporation for private uses.
Eminent domain is that sovereign power vested in the people by which they can, for any public purpose, take possession of the property of any individual, upon just •compensation paid to him. 6 Amer. & Eng. Cyc. Law, .511; 2 Kent, Com. 33'9. It has been defined by this 'Court to be—
“The rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, and welfare may demand. Trombley v. Auditor General, 23 Mich. 471, 474.
In Ryerson v. Brown, 35 Mich. 333, the Court say that, in authorizing condemnation proceedings, it is essential that the statute should require the use to be public in fact, — in other words, that it should contain provisions ■entitling the public to accommodations; that property oan never be condemned for private improvements, except where they belong to a class that cannot usually exist without the exercise of that power, and where the public welfare requires that they shall be encouraged.
The exercise of the right of eminent domain is limited to cases in which the public have an interest. Cody v. Rider, 1 S. W. Rep. (Ky.), 2. It can never be just to take property, under pretence of public benefit, which is not needed by the public, however much it may advance interests in which the public have no concern. Paul v. Detroit, 32 Mich. 108, 119. The state has no right to take the property of one citizen, and give it to another, whether with or without compensation. 3 Washb. Real Prop. 539; Tied. Lim. § 1215, p. 390. As has been said, -“■When one man wants the property of another, the legislature will not aid him in the acquisition.” Taylor v. Porter, 4 Hill, 147. See Wilkinson v. Leland, 2 Pet. 658; Heyward v. Mayor, 3 N. Y. 324.
It was held in People v. Salem, 20 Mich. 452, that a legislative act originating proceedings, by or in pursuance of which individual property was to be taken under the
Mr. Cooley says:
“The public use implies a possession, occupation, and enjoyment of the land by the public at large, or by public agencies; and a due protection to the rights of private property will preclude the government from seizing it in the hands of the owner, and turning it over to another, on vague grounds of public benefit, to spring from the -more profitable use to which the latter may devote it.”' Cooley, Const. Lim. (6th ed.), 654.
The use must be* by the general public of the locality, and not by particular individuals. McQuillen v. Hatton, 42 Ohio St. 202; Ross v. Davis, 97 Ind. 79. A use which may be monopolized or absorbed by the few, and from which the general public may and must ultimately be excluded, is in no sense a public use. Land cannot be condemned for the purpose of enabling those instigating1 the proceedings to parcel it out to private individuals. Nor is a use which is not common to the public, and over which the state has surrendered that control and regulation necessary to secure such common use, a public use. The use of land for railways and turnpikes has been declared to be a public use, because it is open to all upon the payment of tolls, which are regulated by law, and the law requires such ways to be kept open for use by the public impartially.
As has been said, the question whether the use is public or private depends upon the right of the public to use the road, and to require the corporation, as a common carrier, to transport passengers or freight over the same. Railroad Co. v. Railway Co., 41 Minn. 461 (43 N. W. Rep. 469); De Camp v. Railroad Co., 47 N. J. Law, 47; Phillips v. Watson, 63 Iowa, 33; Clarke v. Blackmar, 47 N. Y. 156; Lewis, Em. Dom. § 166.
To justify the condemnation of lands for a private corporation, not only must the purpose be.one in which the public has an interest, but the state must have a voice in the manner in which the public may avail itself of that use. In Gilmer v. Lime Point, 18 Cal. 229, a public use is defined to be a use which 'concerns the whole community, 'as distinguished from a particular individual. The use which the public is to have of such property must be fixed and definite. The general public must have a right to a certain definite use of the private property, on terms and for charges fixed by law, and the owner of the property must be compelled by law to permit the general public to enjoy it. It will not suffice that the general prosperity of the community is promoted by the taking of private property from the owner, and transferring it8 title and control to a corporation, to be used by such corporation as its private property, uncontrolled by law as to its use. In other words, a use is private so long as the land is to remain under private ownership and control, and no right to its use, or to direct its management, is conferred upon the public. In re Eureka Basin Co.; 96 N. Y. 42. It is for the court to determine whether or not the use is a public one. In re Cemetery Ass’n, 66 N. Y. 569 (23 Amer. Rep. 86); In re Railroad Co., 77 Id. 248; Savannah v. Hancock, 91 Mo. 54 (3 S. W. Rep. 215); Railroad Co. v. Iron Works, 31 W. Va. 710; Tied.
This very question arose in Cemetery Ass’n v. Beecher, 53 Conn. 551 (5 Atl. Rep. 353), and the court say.
“The complaint alleges that the plaintiff is an association duly organized under the laws of this state for the purpose of establishing a burying ground; that it now owns one; that it desires to enlarge it; and that such enlargement is necessary and proper. There is no allegation that the land which it desires to take for such enlargement is for the public use in the sense indicated in this opinion. The demurrer, for the reason that the complaint does not set out any right in the plaintiff to acquire title to the land of the defendants otherwise than by their voluntary deed, must be sustained."
In re Cemetery Ass’n, 66 N. Y. 569, it was held that the statute authorizing rural cemetery associations to acquire land by exercising the right of eminent domain was unconstitutional and void, for the reason that the use was a private one. The court say:
“The land is to be vested in trustees, with power to divide into lots, and sell these lots to individual owners. It is difficult to 'see what interest the public will have in the lands or in their use. No right on the part of the public to buy lots or bury their dead there is secured. The prices at which the lots are to be sold are to be fixed by private agreement. The corporation is to be managed by trustees elected by the lot-owners. The lots, or the rights of the owners therein, are to descend as private property to the heirs of these owners; and by the act of 1874 the owners may, by leave of the courts, sell their lots, and put the proceeds in their pockets. The substantial right of enjoyment of the property is vested in the individual lot-owner; and the whole effect of the incorporation of these cemetery associations is to enable a number of private individuals to unite in purchasing property for their own use and that of their descendents as a place of burial, and- to secure a permanent management of it through the instrumen*541 tality of trustees appointed by themselves, and subject to no other control, with the privilege,' when they cease to nse their lots as a place of burial, to sell them, and receive the proceeds for their own benefit.
“It is argued that the property is to be used' as a place of burial, and that the burial of the dead is a public benefit, and, therefore, the use is public. But the answer to this argument is that the right of burial in these grounds is not vested in the public or in the public authorities, or subject to their control, but only in the individual lot-owners. If the fact that it is a benefit to the public that the dead should be buried is sufficient to make a. cemetery a public use, the legislature might authorize A. to take the land of B. for a private burial place of A. and his family. The fact that this land is taken for the benefit of a number of individuals for division among themselves or their grantees, for their own use as a cemetery, makes the case no stronger than if taken for the benefit of a single individual.”
Precisely the same may be said of a corporation formed under the act in question. The lands owned by it are under the absolute control and dominion of the corporation. It may sell to A., and refuse to sell to B., and by its sale to A. it excludes every other person from that parcel. Not only may it sell to A. for burial purposes5 but it may sell to any other person for any purpose, if, in its judgment, the lands are not occupied or required for burial purposes.
It may be urged that the petitioner here is not a private corporation; but I think that the entire amende ment must fail. The original act provided for the formation of corporations to establish rural cemeteries. An amendment is made which is intended to confer certain powers upon these corporations, and also upon other corporations and agencies not alluded to in the original act. The power sought to be conferred upon the corporations organized under the original act cannot be exercised, because not warranted by the Constitution. It
The petition filed in the court below must therefore be dismissed, with costs to respondent.
How. Stat. §§ 4768-4777.
How. Stat. §§ 4778-4787.