58 A. 46 | N.H. | 1904
The plaintiff is a voluntary corporation, formed under the general law (P. S., c. 147) for the purpose of "manufacturing, creating, furnishing, and selling for lighting, manufacturing, heating, transportation, propulsion of cars, machines, and engines, and for all mechanical, commercial, and business purposes, electricity and gas and all other illuminants and motive powers; to set poles and stretch wires to conduct and transmit the same, and to install and lay all necessary means or instrumentalities for conducting, storing, and transmitting the same." It is located at Portsmouth, and its business is to be carried on in the towns and cities of Rockingham and Strafford counties, and in Alton in Belknap county. By section 5, chapter 195, Laws 1901, it was authorized" to take and hold and to purchase and hold such lands and interests in land as may be reasonably necessary to carry out the purposes and objects for which it was organized." The intention of the legislature to delegate to the corporation the right to *532 take land without the owner's consent is unmistakably shown by the use of the words "to take," — especially when read in connection with the words "to purchase" immediately following, — and by the provision made for the location of the land taken and the ascertainment and payment of the owner's damages. The plaintiff relies upon this statute for its authority to take the desired interests in the defendant's land. It proposes to construct and maintain a line of wires extending from a point in Hampton in a straight line to a point in East Kingston, and from the latter point in a straight line to a point in Salem, — a distance of about twenty-three miles. This line crosses the defendant's land; and in the location which the plaintiff has filed (P.S., c. 158, ss. 26, 3, 4), it particularly describes the line and the interest in land taken. The latter is, in substance, so far as the defendant's land is concerned, the right to set and forever maintain four poles of a certain size and height at designated points in the line; to string as many as fifteen wires upon cross-arms attached to the poles, not less than eighteen feet above the surface of the ground; to cut all trees within one rod either side of the line and trim other trees whose branches extend within this space; and to enter upon the land as occasion requires for the purpose of inspecting, repairing, and renewing the poles, wires, and appurtenances. The location. further states that "there are to be transmitted along and upon said wires. a high potential electric current to be used in operating street railroads, for power, lighting, and for other purposes; and other weaker electric currents may be transmitted along and upon said line for various purposes." The plaintiff's real purpose is to furnish power for the operation of the lines of electric railway located west, south, and east of Salem; it also intends, if it has occasion, to furnish power for any of the purposes authorized by its charter. It is reasonably necessary to take the specified interest in the defendant's land to carry into effect the corporation's purpose.
Article 12 of the bill of rights forbids, by implication, the taking of private property for private uses without the owner's consent. Concord R. R. v. Greely,
It has been held in this state that the use of land for each of the following purposes is a public use: For a turnpike (Petition Mr. Wash'n Road Co.
It has also been held that the owner or occupant of land upon a stream of water may, by erecting a dam on his land, take the right to flow the lands of others without their consent, for use in connection with his mills, by complying with the provisions of the statute authorizing such taking; and that the use of land flowed under such circumstances is a public use within the meaning of the constitution. P. S., c. 142, ss. 12-19; Great Falls Mfg. Co. v. Fernald,
That the use of land for constructing and maintaining a line of wires to conduct currents of electricity employed in transmitting intelligence by telegraph or telephone for all persons who may desire such service, or in lighting public streets, highways, and buildings, etc., or in moving the cars of a railway serving the public, is a "public use" within the narrower meaning of those words, as applied in the above cited cases, is beyond question. P.S., c. 81, s. 13; Laws 1895, c. 27. It has been so held in other jurisdictions. Pierce v. Drew,
The defendant has called attention to the recent case of In re Rhode Island etc. Co.,
But it is not the intention of the plaintiff to make use itself of the electricity which it generates or collects in either of the ways above mentioned, except possibly that of electric lighting. In fact, the plaintiff has no authority to engage in the business of transmitting intelligence by telegraph or telephone, or in a manufacturing business, or in operating a railroad. In this respect the case differs essentially from Fallsburg etc. Co. v. Alexander, 43 S.E. Rep. 194, cited by the defendant. Its purpose is to generate or Collect electricity, and store, transmit, and sell it to those desiring it for *537
any use to which it is applicable. Its business in respect to electricity closely resembles that of an aqueduct company in respect to water. This business differs materially in several important respects from that of selling fuel and other articles of daily use. The capital and enterprise of private individuals are ordinarily sufficient for the latter purpose. It is not important that the business of dealing in such articles should be conducted in a single large enterprise, with supplies emanating from a single source. The business does not require the exercise of any governmental function. But, as has already been suggested, the collection, storing, and distribution of electricity, like the collection, storing, and distribution of water, requires large capital, favorable conditions, the use of the public streets, and sometimes the exercise of the right eminent domain. Opinion of Justices,
If the plaintiff is under obligation to supply electricity or electric energy at reasonable rates and without discrimination to all corporations, public, quasi-public, and private, land to all persons desiring it, who are located within reasonable distances of the plaintiff's lines, so far as the extent and capacity of its works will permit, it appears to have all the characteristics of a quasi-public corporation. Its articles of association do not, in terms, impose this obligation upon it. They are, however, entirely consistent with the existence of the obligation. When the interpretation is considered which the plaintiff has given to the agreement by its acts in locating lines of wires in the public highways, and in procuring and attempting to exercise the right of eminent domain, it is apparent that the plaintiff intended by its articles of association to take upon itself the obligations of a quasi-public corporation in respect to the sale of electricity and electric energy. The delegation of the power of eminent domain to a corporation is not always accompanied with an express imposition of the obligation to serve the public reasonably and equitably. A corporation by the acceptance and exercise of the power impliedly undertakes such service respecting the subject for which the power is exercised. Lombard v. Stearns, 4 Cush. 60; State v. News Co.,
In addition to the plaintiff's duty in this regard, the legislature have power to control the plaintiff in its dealings with the public. By section 19, chapter 148, of the Public Statutes, it is provided that "the legislature may at any time alter, amend, or repeal the charter of any corporation or the laws under which it was established, or may modify or annul any of its franchises, duties, and liabilities." This authority to control the duties of corporations was first introduced into the statutes upon the revision thereof in 1891, and furnishes additional assurance that corporations engaged in the public service, as well as other corporations, shall perform their duties to the satisfaction of the public. There seems to be no question concerning the validity of the statute. Spring Valley Water Works v. Schottler,
Thus it is seen that all the elements of public use, in the limited sense of the words, exist in this case, and consequently that this petition may be maintained.
Exception overruled.
YOUNG, J., did not sit: the others concurred. *539