281 F. 183 | N.D. Ala. | 1922
This is a petition to condemn certain rights of way through a seam of coal in the bowels of the earth, filed under certain statutory provisions in Alabama, and begun in the probate court, and removed to this court, and comes on to be heard on a motion to dismiss the proceedings, which motion is based upon the proposition that the provisiofts of the Code of Alabama and special act of the Legislature authorizing condemnation of rights of way underground are unconstitutional. The contention is based upon the language used in section 23 of the Constitution, where, after providing that the exercise of the right of eminent domain shall never be abridged, so as to prevent the Legislature from taking property and franchises
“But private property shall not be taken for, or applied, to, public use,' unless just- compensation be first made therefor; nor shall private property be taken for private use, nor for the use of corporations, other than municipal, without the consent of the owner: Provided, however, the Legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations.” '
It then forbids the construction of eminent domain so as to allow taxation or forced subscription for the use of individuals, associations, or corporations, other than municipal. Eliminating some unnecessary portions of these provisions, so as to present the question raised for decision and underscoring two of the terms used, we find the following:
“Nor shall private property be taken for private use: * * * Provided, however, the Legislature may by law secure * * * the right of way over lands."
: It- is true that the ordinary meaning of the word “over,” as applied to"land, would be across or along the surface; but the word may have
The real meaning of the word as so used is one of inclusion, and not of limitation to the surface; it means over all the lands or space of so many counties. The same meaning it seems to me should be given the word “over” as used in the Constitution, viz. there is no denial of the right of the Legislature to pass laws to condemn rights of way “over land”; that is, covering lands, as to or concerning lands. As used here, “over lands” is to include the whole land and all its parts, whether over, on, or under the surface. Jurisdiction over land is allowed to the Legislatux-e for the purpose of granting necessary rights of way to persons or corporations. The word “over” is not used in connection with anjr word indicating the surface of the land; if so used, it would undoubtedly have limited the rights of way to the surface.
Remembering; also, that the two provisions, the one forbidding the taking of private property and the proviso thereto authorizing the Legislature to provide for condemnation of rights of way over lands, when construed together, are not a grant of power, but are a limitation thereof; hence the power of the Legislature is limited only so far as the words expressly require. The Constitution was not differentiating between surface rights of way and ways under the surface. The words are “over lands,” and not “over the surface of lands.” It was denying to the Legislature the right to pass laws taking private property of one for another’s use, except necessary rights of way in lands. It was dealing with general rights and powers granting and denying them, not splitting such rights and powers as granted, so as to give to some and deny to others.
As to land, it recognized that often one could not properly enjoy his own, and render its use valuable to him and to the public, unless he could make some use of the lands of his neighbor. The public, and the courts, are lately recognizing many interests or rights the public have m what formerly were considered mere private concerns. Is not the public as much concerned with the right of one who owns a seam of coal to get it to the market, as it is that one should get his bale of. cotton or his bushel of corn to the market? The public is equally as much concerned with three great subjects, food, clothing, and fuel.
Is not it as much a concern of the public that a person should not, by buying lands over a seam of coal, so as to cut off other owners in that seam from getting the coal out for market, as it is that one should not buy or own surface lands surrounding others’ holdings, and deny to them the right to cross with their produce, so as to market it, or to cross himself, so as to perform his other duties to the .community. Is there a limitation of the character of the right of way to a way over the surface of land'?
Is the full development of the resources of a state to be limited to a surface development, when property of great value lying under the surface can be bottled up and destroyed, to the great damage, not only of the owner, but to the public, by unscrupulous persons, who might buy small lots in such localities so as to tie up whole fields of coal. ,1 feel that the opinion in the state case gives a proper and just construction of the clause, and by necessary inference covers underground as well as surface rights of way. The one construction opens up the property in the state for proper use and development, while the other tends to tie up property and to stifle development.
A decree will be entered overruling the motion.