83 Vt. 548 | Vt. | 1910
This is an appeal from a pro forma decree of the court of chancery dismissing the bill. The orator seeks to enjoin the defendant from proceeding before commissioners who have been duly appointed by two judges of this Court under §4 of No. 318, Acts of 1908, to determine the necessity for the
The village of Readsboro, which belongs to that class of municipalities specified in said charter, is lawfully authorized to light its -now unlighted streets and highways and to enter into contracts therefor, and has requested the defendant to furnish it electricity for that purpose, agreeable to said charter provision. Such lighting is desirable and necessary and the only reasonable and feasible way in which the defendant can comply with this request and meet the requirements of its charter in this behalf is by erecting such a dam on Deerfield River as will set back the water over the orator’s said land, and by the erection and maintenance of a pole line across the same. For these purposes the defendant has instituted, and proposes to follow up pursuant to the terms of its charter, the condemnation proceedings herein sought to be enjoined.
The foregoing facts appear from the admissions and allegations of the defendant’s answer. The hearing in the court of chancery was on bill and answer, and there being no suggestion that the foregoing facts were not well pleaded in the answer, they must be taken to be true; and if they constitute a defence, .the bill must be dismissed. Dyer v. Dean, 69 Vt. 370. The orator challenges the constitutionality of the provision referred to on the ground that the taking therein authorized is not for a public, but a private use — asserting that the public use involved, if any, is merely incidental.
We recently held in Swanton v. Highgate, 81 Vt. 152, that an electric light plant, maintained by a municipality under charter authority to light its streets and public places, was devoted to a public use within the meaning of the statute exempting property so devoted from taxation, saying: “We have no doubt that that use is a public use within the meaning of the statute, for it is distinctively a public service as it benefits the people, conserves the public peace, and protects both persons and property, for darkness invites disorder and encourages crime.” This language is as pertinent here as there, and by adopting it as determinative of the character of the use here involved we are supported by the authorities — even those that take as restricted a view óf the matter as we do. So while it is held in Washington that the generation and sale of electricity to the general public, though on equal terms, is not a public use for which the power of eminent domain may be exercised — State, ex rel. Harris v. Superior Court, (Wash.) 5 L. R. A. (N. S.) 672 — it is also there held that the generation and transmission of electric current for municipal lighting is for a public use. State, ex rel. Dominick v. Superior Court, (Wash.) 21 L. R. A. (N. S.) 448.
And in Virginia, where it is held to be beyond the constitutional authority of the Legislature to confer upon an individual or corporation the right of eminent domain to acquire a site for a plant to generate power, light and heat for general sale— Fallsburgh Power & Manufacturing Co. v. Alexander, 101 Va. 98, 99 Am. St. Rep. 855 — -it is held that condemnation by a town to enable it to furnish light to its inhabitants is for a public use. Miller v. Pulaski, (Va.) 63 S. E. 880.
And in Brown v. Gerald, (Me.) 70 L. R. A. 472, wherein it was held that the -generation and distribution of electricity for power for manufacturing enterprises was not a public use which
The end to be accomplished must always be the true and ultimate test; and it is quite immaterial that the title and control of the property taken are vested in a private person or corporation, whose actuating motive is private gain. State, ex rel. Dominick v. Superior Court, supra; Ryan v. Terminal Co., 102 Tenn. 111, 45 L. R. A. 303; Whitman’s Exrx. v. Wilmington etc. R. Co., 2 Har. (Del.) 514, 33 Am. Dec. 411; Willyard v. Hamilton, 7 Ch. (p. II) 111, 30 Am. Dec. 195; Bloodgood v. Mohawk etc. R. Co., 18 Wend. 9, 31 Am. Dec. 313; Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389; Valley City Salt Co. v. Brown, 7 W. Va. 191; Bardstown etc. R. Co. v. Metcalf, 4 Met. (Ky.) 199, 81 Am. Dec. 541.
And, as this case is presented, the only use for which the defendant seeks to condemn this land being a public one, the mere fact that its charter powers also embrace matters of private use will not deprive it of this right of condemnation for the public use. Walker v. Shasta Power Co., 87 C. C. A. 660, 19 L. R. A. (N. S.) 725; Lake Koen etc. Co. v. Klien, 63 Kan. 484; Brown v. Gerald, (Me.) 70 L. R. A. 472.
There is no force in the orator’s suggestion that the condemnation proceedings are premature. To be sure the necessity for the taking and the conditions which make the use a public one must then exist; but the law does not require that the defendant first complete its dam, its power plant, and its transmission line, in whole or in part, before it can assert its right to condemn flowage rights and rights of way/
Nor can we endorse the orator’s other suggestion that the use specified is private because the general public cannot avail themselves of it. It is not necessary to a public use that the whole public or any considerable portion of it participate in it’; the use may be, and frequently is, limited to a small locality and yet be public in a constitutional sense. Williams v. School Dist., 33 Vt. 271.
Affirmed and remanded.