173 Ind. 252 | Ind. | 1909
This is an appeal from an interlocutory order overruling objections to appellee’s complaint to condemn and appropriate certain lands of appellants, and appointing appraisers to assess the resulting damages.
Appellant Horace E. Kinney has assigned errors upon the overruling of each of his objections to the amended complaint, and upon the insufficiency of the evidence to justify the appointment of appraisers.
The view we entertain of the law will make it necessary for us to consider only the overruling of the first of said objections to the amended complaint. This complaint alleged the following facts: That appellee is a corporation organized under the laws of this State for the purpose and engaged in the business of supplying the town of Greenwood and its inhabitants with water, electric light and other public conveniences; that appellant Horace E. Kinney is the o-wner of a particularly described tract of real estate, and that, immediately south of the same, appellee owns a tract of land upon which is situated the plant and machinery wherein electricity is generated and whereby water is pumped for the use of said town and its inhabitants; that the main track of the Louisville division of the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company runs immedi
Appellants’ first objection to this complaint was that it does not state facts sufficient to constitute a cause of action.
The power of eminent domain — the right to appropriate for public use the private property of the citizen against his will, has been characterized as a “very high and dangerous one,” and appellee cannot exercise that power for the purpose named in this proceeding unless it is able to show clear legislative authority for so doing. Prather v. Jeffersonville, etc., R. Co. (1875), 52 Ind. 16, 36; Allen v. Jones (1874), 47 Ind. 438, 442; Minnesota, etc., Power Co. v. Koochiching Co. (1906), 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638; Western Union Tel. Co. v. Pennsylvania R. Co. (1903), 120 Fed. 362.
Water-works companies may condemn and appropriate lands “for the source of supply, the pumping stations, the settling basins, the filtering basins or tanks, the storage reservoir, the supply mains, the delivery reservoir, tank or stand-pipes, and the delivery mains, any
At the time this action was commenced, electric lighting companies, except such as are organized to produce electricity by water-power, under Acts 1907, p. 277, §§5074-5083 Burns 1908, were not clothed with the power of eminent domain.
It is admitted by counsel that the right asserted by appellee is based upon the provisions of section 256 of the act of 1905 concerning municipal corporations (Acts 1905, p. 219, §8941 Burns 1908), which reads as follows: “Any corporation engaged in the business of providing any city or town and its inhabitants with water, sewerage, gas, electric light, heat, power or other public convenience, as provided for in the last two sections, shall have the right to acquire such real estate and rights of way, whether within or without the limits of such city or town, as may be necessary for its business, under the right of eminent domain, as fully as if the law in relation to such right were incorporated in this Act and made a part of the same.”
Acts 1905, p. 219, §254, §8939 Burns 1908, which is referred to in the section just quoted, authorizes a city or town to enter into a contract with any person or corporation to furnish it and its inhabitants with water, motive power, heat or light.
Appellants’ counsel criticise the averments of the complaint with reference to this subject, but if the complaint were otherwise sufficient its allegations in this conneetion doubtless might be treated as uncertain and defective rather than wholly wanting with respect to a material matter.
It is earnestly and ably argued that §8941, supra, which purports to confer the power of eminent domain upon certain private corporations, contravenes article 4, §19, of the Constitution of this State, for the reason that this section is not covered by or germane to the title
The right to take private property by the power of eminent domain rests upon the theory that all property is held subject to the right of the public to demand its use when necessary for the general benefit. The power is inherent in the sovereign and may be delegated, but the delegated power can be exercised only within the strict terms of the grant. The burden therefore devolved upon appellee to show affirmatively a grant of power for the specific purpose for which it proposes to appropriate appellants’ property. 15 Cyc., 567, and cases cited.
Appellee’s complaint, in terms, alleges that the proposed appropriation and the side-track extension are necessary to the conduct of its business, but the allegation of such necessity is manifestly a mere conclusion of the pleader. It appears from the averments of the complaint that appellee is now operating its plant and engaged in furnishing the town of Greenwood with water, electric light and other conveniences, and in the conduct of its business transports fuel and other supplies from the railroad to its plant by means of teams and wagons. Appellee voluntarily chose the location for the power plant, and if a railroad side-track connection were indispensable or absolutely necessary to its operation, we cannot conceive that the existing site would have been selected. The facts pleaded show only that the desired track extension would
The way sought to be condemned over appellants’ lands is plainly not for the use of appellee, but for the Pittsburgh, Cincinnati, Chicago and St. Louis Bailway Company, and the complaint avers that the proposed track, when constructed, is to be under the control and operation of said company, and to become a constituent part of its railway system. We intimate no opinion as to the right of the railway company to condemn lands for the purpose declared in appellee’s complaint, but appellee is not authorized by its charter to construct or to operate a railroad, and
The legislature, by the use of the language “real estate and rights of way” in the statute herein before quoted, doubtless intended such only as may be reasonably necessary to water and light companies for the construction and maintenance of their works, for the laying and maintenance of their pipe-lines, mains and conduits, and for the erection and maintenance of their poles, wires and other proper structures and appliances, and not such ways of railway communication as might become expedient and desirable because of an unfavorable location of the poAver plant, voluntarily chosen. If a right of way for a stub switch can be condemned by appellee for uses contemplated in this proceeding, in order to make an extension of a few hundred feet, then by parity of reasoning this power may be employed to secure a Avay for a connecting track of any length, since the alleged “necessity” would naturally increase with the distance to be traversed. The appropriation of a right of way for the uses and purposes declared in appellee’s complaint is not within the purview of any statute of this State purporting to clothe water or light companies with the power of eminent domain, and the court erred in overruling the first objection of appellant Horace E. Kinney to the complaint.
The judgment is reversed, with directions to sustain the first objection of appellant Horace E. Kinney to the complaint.