114 Me. 150 | Me. | 1915
Bill in equity praying for an injunction to stay condemnation proceedings by which the defendant is attempting to take the plaintiff’s land by an exercise of the power of eminent domain. The case comes up on report.
The defendant is a water company chartered by the Legislature for the purpose “of supplying the towns of York and Wells, or any part thereof, or residents therein, with pure water for domestic, manufacturing and municipal purposes.” For these purposes, the corporation is authorized by its charter (Private and Special Laws of 1911, ch. 256) “to take, hold, protect and use the water of Chase’s pond in the town of York, and of all other ponds and streams tributary thereto, or running therefrom,” and, to “take and hold by purchase or otherwise any lands or other real estate necessary for any of the purposes aforesaid, and for the protection of its water mains and pipes and the water shed of said Chase’s pond.” The defendant takes its water from Chase’s pond, which is one and one-third miles long, and it has acquired the ownership of some land within its watershed. The plaintiff owns a heavily timbered tract of land lying one and one-fifth miles easterly from Chase’s pond. The tract contains one hundred and four acres. The deed to the plaintiff bears date March 8, 1913, and was executed on that day.
The plaintiff contends that the taking was not a constitutional exercise of the power of eminent domain, and hence that it was invalid and void. But before discussing this question, we must first consider one of the points in defense, namely that the plaintiff was not owner of the land at the time of the taking, and therefore has no such interest as entitles him to maintain this bill. We do not think the point is tenable. It is true the plaintiff did not obtain title until after the taking. It appears that both the plaintiff and the defendant had been negotiating with the then owners for the purchase of the land. The plaintiff offered a little more than the defendant and a deed to him was made and executed March 8. But it was left with the cashier of a bank to be delivered to the plaintiff when it should be ascertained that his check on another bank was good. It was not actually delivered to the plaintiff until March 17, five days after the taking by defendant.
If the taking by the defendant was valid, and if, thereby an absolute fee was vested in the defendant, its present contention might be sound. Whether an eminent domain taking vests an absolute fee is a question concerning which the courts are not in entire accord. In some cases, the character of the use seems to be the determining factor; in others, the provisions of the statute under which the taking is made. In some statutes it is expressly provided that the fee shall vest in the' taker; in others, provision is made merely for taking and holding for specified public uses. The charter of this
It is unnecessary in this case, however, to determine the precise character of the interest in the land, which remained in the owner, if the proceedings were valid, and which came to the plaintiff by deed from the owner. If it shall be found that the condemnation proceedings were valid, he cannot on the facts maintain his bill. On the other hand, if the proceedings were invalid, he owns the entire interest in the land, and may have unauthorized and unlawful attempts to take it restrained. The contention of the defendant begs the question. It assumes that the taking was valid. Whether it was is the precise question in issue. In this respect it is immaterial whether the plaintiff took title before, or after March 12. He now has such an interest as enables him to try his rights.
The defendant relies upon the rule stated in Hayford v. Bangor, 103 Maine, 434, that only the owner at the time of taking can complain. But that case was not like this one. That was an appeal from assessment of damages on account of an eminent domain taking. And it was properly held that, as the damages occasioned by an eminent domain taking belong to whoever is owner at the time of taking, so no one can be aggrieved by the assessment except that owner. This case is not one of damages. This plaintiff would have no standing in a hearing on that question. But he has a standing in a proceeding to determine his rights in the land itself, and to prevent an encroachment upon the same.
Recurring now to the main proposition, we think the discussion will be clearer, if we describe the situation of the land with refer
The plaintiff charges that the taking was not made in good faith for the purpose of protecting the water in Chase’s pond, or even of protecting the water shed of the pond, or for any purpose for which the defendant was authorized to exercise the right of eminent domain; but that it was, on the other hand, an attempt in the guise of
The Legislature conferred upon the defendant the right of eminent domain for public uses. It could confer it for no other kind of use. Of the exigency or necessity for its exercise the Legislature was the sole judge. It is a political or governmental question. Eminent domain is the right of the sovereign state. The State by the Legislature may determine the necessity for itself as to a particular piece of property, or it may determine the general question of necessity, and commit to the corporation to which the power is granted, or to its officers, the right to determine the extent to which
But whether the uses for which land is taken by eminent domain are public is a judicial question which must be determined, in case of controversy, by the court. Riche v. Bar Harbor Water Co., supra; Moseley v. York Shore Water Co., supra. So, it is a judicial question whether the taking has been in good faith for a public use, or whether the professed public use is but a guise or cover for an intended private use; whether, in short, the exercise of eminent domain in a particular case, is not an abuse of power, a perversion of authority. Brown v. Gerald, 100 Maine, 351; Brown v. Kennebec Water District, supra. These questions in this case are open for our consideration.
To protect the purity and conserve the quantity of a public water supply is undoubtedly a public use. To protect the water shed of a pond or stream, which is a public water supply, so as to preserve the purity and quantity of the supply is likewise a public use. Such was the case contemplated by the Legislature when it authorized this defendant to take land for the protection of the water shed of Chase’s pond. The public have no interest in any other use. But we have seen that no water, and no impurity of any kind, can pass from the plaintiff’s lot to Chase’s pond, and that such water as flows off the lot is not within the scope of the defendant’s charter. It follows that neither the purity nor the quantity of water in Chase’s pond can be protected, nor in any way affected by the uses to which this land may be put. It is difficult to believe that the ostensible purpose stated in the notice of taking was the real purpose. Our disbelief is aided by the testimony of Mr. Chase that the taking was for protection against fire'. The case contains nothing to show that the ability to control the Bowden lot would in any way tend to the protection of the purity or quantity of the water in Chase’s pond.
Whether a taking for a declared specific public use is invalid, when the declared use is not the true purpose of taking, but when some other public use is served, need not be decided now. For we think the real purpose of the taking, if not to hold and operate the land for profit, was to serve a private, and not a public use. If we take the testimony of Mr. Chase, we are compelled to conclude that the land was sought to be taken as a protection from fire of other timber lands owned by the defendant. And in this connection, we may add that these other timber lands are not shown by the case to be of public use for the protection of the purity or quantity of the water in Chase’s pond. If this taking for the avowed purpose can be upheld, there would seem to be no constitutional reason why adjoining lands still further away, if any there were, might not be so taken, and so on. The use of land by the defendant for the protection of its other lands from the spread of fire, at least, when the other lands are themselves not of public use, is clearly a private use. In this case we do not need to define more narrowly.
It is universally held that private property cannot be taken by another under governmental power for private uses. The State can neither do it, nor authorize it to be done. The principle applies as well to a taking by a public service corporation as to one by another corporation or individual. Public service corporations may be authorized to take for public, but not for private, uses. The prohibition is not expressed in the constitution, but it is necessarily implied, i Lewis on Eminent Domain, 406. Our Constitution, Art. I Section 21, provides that “private property shall not be taken for public uses, without just compensation, nor unless the public exigencies require it.” In discussing this provision, the court, in B. & P. R. R. Co. v. McComb, 60 Maine, 290, said: “This exercise of the right of eminent domain is, in its nature, in derogation of the great and fundamental principle of all constitutional governments, which secures to every individual the right to acquire, possess and defend property. As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighborly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can
However useful it may be to the defendant to protect its other timber lands from the ravages of fire, it cannot constitutionally do so under the conditions shown in this case, by the exercise of the right of eminent domain. The plaintiff is entitled to the relief prayed for.
Bill sustained with costs.
Writ of permanent injunction to issue.