We concur in the positions taken by the learned counsel for the defendants, that the courts will not ordinarily interfere by injunction with the operation of industrial and other enterprises which aid in the development of the country, nor will they attempt to restrain the free exercise of discretion vested in public officers, when used for the benefit of the public. But these questions are not now before us.
The allegations of the plaintiff are that the members of the road ■committee are not using the powers vested in them for the public good, .and that, on the contrary, they and their codefendant have entered into an arrangement to destroy the public road running in front of the plaintiff’s house and to open a new road in the rear of the house and ■over the land of the plaintiff solely for the benefit of the defendant ■railroad, and to enable it to run an enterprise of its own more successfully; and if these allegations are true, the road committee is exceeding its powers and the taking of the plaintiAE’s land would be for a private, not a public, use, and illegal.
There is no power under the Constitution to take private property except for a public use, and then only upon just compensation
(Dargan v. R. R.,
The author says in Euling Case Law: “The question whether the constitutional provisions against taking private property for' private use have been violated is, like all constitutional questions, ultimately for the courts; and if a court can clearly see that a particular undertaking, which it is proposed to clothe with the power of eminent domain, has no real and substantial relation to the public use, it is the duty of the court to intervene.” And the Court, in Stratford v. Greensboro, said: “But whether the use of the,property which the delegated legislative authority has declared to be a public use be such a use, or would sustain the authorities in taking, against the will of the owner, his property, is a judicial question.”
The Stratford case is clearly recognized as authority in Edwards v. Comrs., Supra, as applied to a case where it appears that the measure complained of is “in promotion of a personal and private scheme, and not in furtherance of the public interest.3.”
We have, then, on this branch of the case, a judicial question raised by the pleadings, and supported by evidence at the hearing, and the material facts alleged, upon which it rests, are denied in the answers of the defendants.
This raises serious issues of fact, supported by evidence; and in such case, and when the main purpose of the action is to obtain a permanent injunction, the rule is to continue the restraining order to the final hearing.
Tise v. Whitaker,
If, however, it should hereafter be made to appear that the use is for the benefit of the public, the courts would not interfere on account of incidental advantage to the railroad, nor because the course followed by the commissioners in the honest exercise of their judgment and discretion might be less convenient or might not be the best.
As was said in
Edwards v. Comrs., supra,
these officers “are not to be controlled by a vote of the localities affected, either informal or otherwise, and, whenever it is shown that they have officially dealt with, questions lawfully submitted to their judgment, their action may not be controlled nor interfered with by the courts, unless it is established that there has been a gross and manifest abuse of their discretion or it is clearly made to appear that they have acted, not for the public interest, but in promotion of personal or private ends.
Supervisors v. Comrs.,
The plaintiff also asks for injunctive relief against the defendant railroad, not to restrain it from operating its quarry, but to prevent *62 it from so using the quarry that it will throw rooks on the land of the plaintiff.
He alleges that the defendant has heretofore used the quarry, and while doing so it continually trespassed on the premises of the plaintiff; that in its use rook were thrown in all directions, and that almost daily large quantities of rock were thrown on the land of the plaintiff, striking the plaintiff’s residence and outhouses, and endangering the life of members of his family, and impairing the value.of his property, and that the defendant intends to renew the operations as heretofore.
The defendant railroad denies that it has or will do any injury to the plaintiff, but admits that it is about to renew the operation of the quarry.
This raises an issue for a jury, and as a continuous trespass may be restrained, and without an allegation of insolvency (Rev., sec. 807), his Honor properly continued the order, restraining the defendant from causing rock, etc., to be thrown on the land of the plaintiff, until the hearing.
If the defendant is doing no injury to the plaintiff, as it claims, the order is no restraint upon its rights; and if it will continuously throw rock on the land of the plaintiff, it ought to be restrained.
In our opinion, the restraining order was properly continued to the final hearing.
Affirmed.