35 Mich. 265 | Mich. | 1877
This case was heard upon pleadings and proofs and a decree rendered perpetually enjoining defendant from entering upon complainant’s property for the purpose of constructing a branch or spur track “without the consent of the complainant first had and obtained, or, without first obtaining a condemnation therefor, for the public use, and making compensation therefor, agreeable to the provisions of law.” From this decree defendant, conceiving itself aggrieved, appealed.
The appellant insists that under Sec. 36 of the Laws of 1878, p. 526, it has a right to build this spur track, and that after the crossing shall have been made, if the companies cannot agree as to the compensation to be made by the company crossing, the same shall be ascertained by like proceedings and in like manner as is provided for taking of land or other property. It is also insisted that this statute is valid and not in conflict with any constitutional provision; that the constitution of Michigan (§ 1, Art. 15) provides that “corporations may be formed under general laws,” and that “all laws passed pursuant to this section maybe amended, altered or repealed;” that the general railroad law under which these companies were organized was passed under and by virtue of the power conferred by this section of the constitution, and that the act subjected the companies to certain liabilities and restriction^; among others, the right to construct their road across any stream, private road, highway, railroad or canal, and to cross or intersect any other railroad then or thereafter to be constructed; that while the same statute gave to railroad companies formed under it the power to purchase, receive, hold and use lands and real estate for the purpose of constructing and maintaining its road, it granted the power for a public use and not a private one, and subject to the reserved legislative power granted in the constitution, which enabled the legislature to alter, amend or repeal its charter at pleasure, and that it would be absurd to say, after a railroad has taken
Such in brief is the argument of counsel for the appellant upon this branch of the case.
In so far as we can discover, this is the first time that such a position has been taken on behalf of a corporation. Heretofore when this question has arisen, it has been insisted that the legislature could not authorize the property or franchises of a corporation to bo taken under the exercise of the right of eminent domain. It was then argued by the corporations that their property and rights were of so sacred and intangible a character that they could not be disturbed, although similar rights in the person of the citizen could be. The courts, however, uniformly held that in this respect there was no difference between corporate and individual rights; that a grant for one public purpose must yield to another equally important, but that in all such cases compensation should be made to those whose property or franchises was thus required and taken for the public use.
We consider the argument advanced in this case a very dangerous one for railroad companies to endeavor to enforce. If carried out to its legitimate and logical conclusion, it would, in effect, enable the legislature to take, or authorize to be taken from them, all property they might' have acquired by •condemnation, and authorize its use for other so-called public purposes, without making any compensation whatever therefor. The company might thus be practically destroyed and its rights given to another or parceled out. Some other very absurd results would follow, but we need not here refer to them.
How, without attempting at present to define the power of the legislature, under the clause of the constitution referred to, it has never yet been claimed that the legislature under this reserved right could take the property which the corporation had acquired, by purchase or otherwise, and give it to
The theory that land taken under the power of eminent domain is taken for the public use, has really caused much *mischief. The term public use or public purpose is misleading. An object may be public for one
Now, while railroads in one sense are for the use and accommodation of the public, and to this extent may be considered as used for public purposes, the mistake in this case consists in assuming that the property by them acquired, having been taken for a public purpose, may be used and appropriated by any other corporation for a siWilar public purpose, without making compensation therefor; that property public for one purpose shall be public for all. But is this true ? In the case of a common public highway every one has an equal right of passage over it, but if it is sought to appropriate it to some essentially different public use, as a railroad, it is now generally conceded that the owner of the soil would be entitled to additional compensation. A turnpike is also a public highway, which the public have a right to use upon paying toll. If it is appropriated to some other public use, the turnpike company would be' entitled to compensation, and if the new use was essentially different from the old, the owner of the reversion would also be entitled to compensation. In the one case the public have the right to the free use of the road, in the other, to the use upon paying toll; but in neither event are their rights considered in case of the road being appropriated to a different purpose.
If lands are taken for a site for a light-house or a fort, although clearly taken for public purposes, yet the • the public as *such are excluded therefrom. The use for which it is designed is one that is inconsistent with individual rights, either separate or collectively. In some cases where property is required for public use a mere temporary use or easement only is required, while in others an
Our conclusion upon this branch of the case is, that the franchises or property of one railroad may be taken for the construction of another, in all cases where the property of an individual might be, upon making compensation therefor.
We refer to the following authorities, and while perhaps none of the cases cited cover the entire ground here gone over, yet we think they fully support the views taken. — Cooley’s Const. Lim., 523 et seq.; 1 Redfield on Railways, 229 et seq.; West River Bridge Co. v. Dix, 6 How., 529; Richmond, etc., R. R. Co. v. Louisa R. R. Co., 13 How., 81; Newcastle, etc., R. R. v. P. & I. R. R., 3 Ind., 464; Springfield v. Conn. R. R., 4 Cush., 63; Northern R. R. v. Concord, etc., R. R., 7 Fost., 183; The Peoria, etc., R. R. v. The Peoria & Springfield R. R., 66 Ill., 174; Enfield Toll Bridge Co. v. Hartford, etc., R. R., 17 Conn., 40; Matter of Kerr, 42 Barb., 119; Boston Water Power * Co. v. Boston, etc., R. R., 23 Pick., 360; Central Bridge Co. v. Lowell, 4 Gray, 482; The People v. Salem, 20 Mich., 452; Bench and Bar, July, 1871, p. 97.
It follows that the decree must be affirmed, with costs.