Hench, Dromgold and Shull a partnership doing business under the firm name of Hench, Dromgold and Shull, claiming-to be the owners of a large saw-mill plant at the town of Mill Creek in Randolph county on the Yalley river, a station on the line of the Huttonville Branch of the Western Maryland Railroad, filed their petition in the circuit court of Randolph county under section 2370 &c., Code 1906 (section 69a and its sub-divisions, chapter 54) setting forth that they were the owners of large bodies of timber and timber lands in said county in the vicinity of said railroad in and on the waters tributary to said Yalley river, none of which timber was 'more than twelve mile's distant from said Mill Creek station. That aside from the timber owned by the petitioners there were other parties owning large bodies of timber and timber lands along and upon the said waters all of which timber would hav.e to be hauled, by wagon at enormous cost, to the railroad and there manufactured or manufactured where it was situated and the lumber produced therefrom transported at an equally great cost by wagons to said railroad in order to market the same; that petitioners proposed and desired to construct of steel rails and wooden ties and maintain and operate by steam locomotives a railroad from their saw-mill at Mill Creek with an intersection at said town with the railroad and extending across the intervening lands to their said timber; that they had
On the 14th day of September, 1906, the petition was presented together with a notice of the filing thereof and the same was ordered filed and the cause docketed, whereupon the owners of tire land appeared by counsel and demurred
Defendants also tendered their joint answer, to the filing-of which plaintiffs objected and the objection was sustained. The court then appointed commissioners as provided by said section. The commissioners made a separate report as to each of said tracts of land, ascertaining the amount to be paid to the owners respectively as compensation for the land proposed to be taken and damages to the residue and reported that they deemed the said route for railroad needful and useful for the transportation of timber to market, and that the condemnation of the property, described in said petition, sought to be condemned belonging to each of said owners was necessary and of public utility and that no other
The answer and plea of the defendants sought to raise the question as to the necessity and public utility of the proposed road and of the right of the petitioners to condemn the property for the purposes set out, but which plea and answer were rejected and not permitted to be filed. It is conceded that the question of the constitutionality of section 69a and its sub-divisions, chapter 54,' Code 1899, providing for the ■condemnation and taking of private property for private use is the principal if not the onljr question to be decided in this case. Section 9 Art. Ill of our Constitution provides: “ Private property shall not be taken or damaged for public use, without just compensation; nor shall the same be taken by any company, incorporated for the purpose of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use or for the use of such corporation, the compensation to the owner shall be ascertained in such manner, as may be prescribed bjr general law; Provided, that when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders,”
There is no provision in the constitution authorizing the legislature to provide for the taking of private property for private use, and there is no provision in our Constitution nor in the constitutions of any other of the states of - the Union expressly forbidding the legislature to pass laws whereby the private property of one citizen may be taken and transferred to another for his private use. As was well said by Judge Geeeií in Varner v. Martin, 21 W. Va. 534, at page 548: “It was doubtless regarded as unnecessary to insert such a provision in the Constitution or bill of rights, as the exercise of such an arbitrary power of transferring by legislation the property of one person to another, without his consent, was contrary to the fundamental principles of every republican government; and in a republican government neither the legislature, executive or judicial department can possess unlimited power. Such a power as that of taking
In Cemetery Ass’n v. Redd, 33 W. Va, 262, it is held that: “An application to condemn land for .public use must distinctly state that the land is needed for public use, and will, when condemned, be devoted to such public use.” In said case at page 263 it is said: “Ownership and enjoyment of private property are sacred in the eye of the law. The owner’s right yields only to public necessity. The great power of eminent domain does overcome this right of private property, but never for public use, under our constitution.” Citing Varner v. Martin, supra; Railroad Co. v. Railroad Co., 17 W. Va. 812. The úse which the-public is to. have of the property condemned must be fixed and definite and the general public must have a right to the definite and certain use thereof. A supposed indirect advantage to the public is not in contemplation of law a public use. It is not sufficient to say that the general prosperity of a community will be promoted by the taking. The use must be needful for the public to have and which it cannot do without except by suffering great loss. The petition in case at bar clearly shows that the plaintiffs are seeking to obtain this right of way in order to enable themselves" to transport their timber from their land to their mill, clearly showing that it is for their private use and benefit, and in order to give it the semblance of being for public use they show that the other owners of timber along the route may be enabled also to market their timber over the same road. It in no way appears that the general public will derive any benefit from it other than the development of private property and interests. The proposed road is not to be a common carrier nor one which will be of use to the community at large, to be used by the public in general, but simply a private way for the convenience of the projectors and builders thereof for the shipment of their logs and timber to market.
Section 69a and its sub-divisions, chapter 54, Code 1899, provides for giving a right to the owners or lessees of timber or timber lands, quarries, mills, oil and salt wells, coal mines, lime kilns or other real estate in the vicinity of any common carrier, not more than twelve miles therefrom, to build lateral railroads for the purpose of transporting their private products, in the absence of any consitutional provisions authorizing any such legislation. In Sholl v. Coal Co., 10 N. E. (Ill.) 199, it is held: '‘Land belonging to a private individual is not subject to condemnation for the extension of a tramway, belonging to a corporation, organized for the purpose of mining and selling coal, so as to connect the way with a railroad, and thus secure to the company railroad facilities for the transportation of its coal; the use to which the land would be put not being a public use. ” Mining Co. v. Dewitt, lo Pac. (Cal.) 74. In Lumber Co. v. Morris, 74
Cooley on Constitutional Limitations, 774 says. “The question what is a public use is always one of law. Deference will be paid to the legislative judgment, as , expressed
Zircle v. Southern Ry. Co., 45 S. E. (Va.) 802, cited by defendants in error, was a case of a railway company for the condemnation of a way,fop a branch road or spur track a distance of two-thirds of a mile to Manor Mills, a private industrial enterprise, and it was there held that the company had a right to condemn if the track was to be used by the company in furtherance of its public business. In Gas Co. v. Lowe, 52 W. Va. 662, at page 664, it said: “It is the province of the legislature to declare the public uses for which private property may be taken, but the poorer of the legislature in this respect is limited by the Constitution, and it remains with the courts to say whether the legislative enactment making such declaration and appropriation is in conflict with the constitutional limitation, and if so, to declare it unconstitutional and void. ” Citing Railroad Co. v. Railroad Co., supra; Varner v. Martin, supra; Boom Co. v. Patterson, supra.
From what has been said it follows that section 69« and its sub divisions,.'chapter 54, Code 1899, in so far as it attempts to confer the power and right of eminent domain upon the owner or owners, lessee or lessees of timber or timber lands, &c. to be exercised by them in the condemnation of lands for rights of way for their private benefit and not for the public use is unconstitutional, null and void. Therefore the judgment of the circuit of Randolph county is reversed and annulled and this Court proceeding-to render such judgment as the circuit court should have rendered the demurrer to the petition of the plaintiffs is sustained and the petition and notice dismissed.
Reversed. Dismissed.