142 Ky. 67 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
In this condemnation proceeding, the only question presented by the record is, was the land condemned necessary for a public use?
Appellee company is a railway corporation, operating a line of railroad from Louisville, Kentucky, to Evansville, Indiana, passing through the county of Daviess and city of Owensboro therein. It sought to condemn a strip of ground owned by the appellant, Mrs. Riley, for the purpose of constructing a spur track from its main line to a point on the property of the Gienmore Distillery Company. This company owns about forty acres of land a short distance from the corporate limits of the city of Owensboro, and is one of the largest distilleries in the State. The spur track proposed to be constructed is about a half mile long, and except where it crosses the Hardinsburg road, a public highway, that runs immediately along the property line of the distillery company, it runs entirely through the lands of the appellant. The amount of damages awarded to appellant in the- circuit court is not complained of, but it is insisted that the land cannot be taken because the use to which it is to be put is not a public one, or, in other words, the spur track is not necessary for a public use. This contention is
From the earliest history of the State, its public policy as expressed in constitution and statute is unalterably opposed to the invasion of private rights for private purposes. As said in Robinson v. Swope, 12 Bush, 21, in which the Court declared unconstitutional a statute authorizing the establishment of a private passway from one track to another:
“The right of a citizen to the unmolested use and enjoyment of his land rests upon a sure foundation. He may keep and use it in any lawful manner he chooses, subject only to the right of the public to take it upon compensation previously made for some public use. * * *
And the principle announced in this case, which has been frequently followed and applied, we have no disposition to depart from in any particular. There can be no such thing in this State as a taking of private property for private purposes. In every case in which the power of eminent domain is invoked, it must appear ■that the property is desired for a public use and will be reasonably necessary for that use.
Some claim is made that section 769, Kentucky Statutes, relating to railroads and providing that:
“Any company may build such spurs, switches, tracks or branches as may be necessary to conduct its business or develop business along its line of road, and for that purpose shall have all the power and be subject to the same restrictions and liabilities as are conferred upon it for the construction of its main line. * * *”
_ Authorizes condemnation proceedings in behalf of a railroad company when it desires to build tracks or branches that it deems necessary to develop business along its line of road. But this statute was only intended to enable a railroad company to acquire with the consent of the owner or by condemnation proceedings in a proper state of case property upon which it might construct and operate a branch road. It does not mean that a railroad company may take private property for private purposes, without the consent of the owner, under condemnation proceedings for the purpose of building spurs or branches. If it did, it would be an attempt upon the part of the legislative department of the State to grant authority in violation of the Constitution. When it comes to condemning land for the purpose of establishing branch roads, the same principles apply as do in every case in which it is sought to take private property. Greasy Creek Coal Co. v. Ely Jellico Coal Co., 132 Ky., 692.
Having the foregoing view of the principles of law .applicable in cases like this, we will now proceed to inquire whether this spur road will serve a public use, and be necessary for such use. Upon this point the argument is made by counsel for the appellant that as this track .runs from the main line of the railway, entirely upon the
“It seems entirely probable that only a few persons aside from the individual at whose instance it was established will have occasion to use this tramway; but this fact does not destroy its-public use in the meaning of the Constitution. It is not the number of people who use the property taken under the law of eminent domain that- constitutes the use of it a public one; nor does the fact that the benefits will be in a large measure local enter into the question. In short, according to the generally recognized rule, the length of the public way, the places between which it runs, or the number of people who use it, is not the essential inquiry. The controlling and decisive question is: Have the public the right tó its use upon the same terms as the person at whose instance the way was established? If they have, it is a public use; if they have not, it is a private one. If the owner can exercise the same kind of dominion over it as he does over other property owned by him, if he can close it up, if he can prohibit all or any part of the public from its use, then it is clear that its establishment would be private and not public; and the right of eminent domain could not be invoked in its creation.”
The fact, however, that only a limited number would use it, is a pertinent inquiry in considering whether or not the improvement is necessary for a public use. And this suggestion brings to mind the utter impracticability of setting down any firm rule that can be applied in all cases when the question of the necessity of the improvement for a public use comes up. Upon this point, each case must be adjudged by its particular facts. Applying to this case the test that it must appear that the public will have the right to use the improvement upon the same terms and conditions as the distillery company, and that they will have free access to it for the purpose of such use, and furthermore that its construction must be necessary for the public use, let us now see how the case stands. At the outset, there can be no doubt that the public will have the right to use this branch road upon the same terms and conditions as the distillery company if it can obtain access to it. The railway company can not make any discrimination between its patrons in its charges or service. It will be as much under the control of the State as any other part of the railroad, and all the laws in force for the purpose of compelling equal and
Coming now to the question as to the need for this branch by any person except the distillery company, which inquiry brings up the question of its necessity for a public use, the facts are: In the immediate vicinity of the distillery company there is situated two or three large manufacturing plants, with a prospect of others,' and in the neighborhood quite a number of people reside. It is clearly shown by the evidence that the construction of this spur track will be a great convenience as well as benefit to the other business establishments in that locality as well as to the public in that section who may desire to receive and ship freight, and that these manu
But it is said that the admitted fact that the distillery company has agreed to furnish to the railway company the money necessary to construct this branch is persuasive if not controlling evidence that it is for a private enterprise and not a public use. Although this circumstance is competent as evidence tending to show, if it did so show, that the building of this branch would be a private enterprise, it is not entitled to weighty consideration in determining the nature of the improvement. The railway company was as desirous to have this branch built as the distillery company, but. it did not have the means with which to construct it, and so it was agreed between the two companies that the distillery company should advance to the railway company the money necessary to build this road — the money so advanced to be repaid by the railway company according to the terms of the agreement between them. But, in this agreement it was distinctly stipulated that the railway company should have the exclusive operation and control of the road. The distillery company having no more to do with this than any other shipper. In short, the distillery company merely agreed to advance the money to build the road under a contract by which it is to be re-embursed. There is nothing against public policy in a contract like this. Nor does it carry with it the inference that the road is for the private use of the party furnishing the money. It is a matter of no consequence so far as the legal aspects of the case are concerned who furnishes the money to build railroads. Zircle v. Southern Ry. Co., 102 Va., 17, 102 Am. St. Rep., 805, and note; Chicago & N. W. R. Co. v. Morehouse, 112 Wis., 1; 56 L. R. A., 240; St. Louis, Iron M. & S. R. Co. v. Petty, 57 Ark., 359; 20 L. R. A., 434; Kansas City, S. & G. R. Co. v. La. & W. R. Co., 116 La., 178, 7 Am. & Eng. Annot. Cases, 831, and note.
