7 W. Va. 191 | W. Va. | 1874
The Valley City Salt Company, the appellee and plaintiff below in this proceeding, is a corporation, organized under the laws of this State, for the purpose of digging or boring for salt and other minerals, and manufacturing the same; and also for mining coal and marketing the same; and for selling goods, having its principal office or place of business at Hartford City, in Mason county, West Virginia. The said company being the owner of a certain tract of land, containing thirty acres, and desiring to obtain access thereto by a subterranean right of way, by railroad, under a portion of an intervening tract, sought the benefit of the forty-fourth and forty-fifth sections of chapter forty-three jof the Code of West Virginia. A petition was addressed to the circuit court of Mason county, setting forth the fact of ownership, and asking that commissioners might be appointed to ascertain what would be a just compensation to the owners of the land for what was sought to be taken in accordance with the provisions of law. The petition recites that the said right of way was “sought to be established by said company in order that it may mine and remove the coal from said tract of land, marked D., for the purpose of marketing the same, and of supplying the salt furnace of said company with coal, and for draining the rooms and entries which may be-made in said lot D.” To this petition Major Brown demurred; commissioners were appointed, and made their report, to which the defendant Brown filed exceptions ; but the same were overruled by the court, and the report directed to be recorded on the chancery side of the court, the judge being satisfied, that the purpose for which the property, in the petition mentioned, is to be taken, is of public util
Two of the exceptions, (the first and fifth) made to the report present the chief question raised by these proceedings for the consideration of the court, to-wit: Whether the applicants, the appellees here, are justified in invoking the right of eminent domain, residing in the State, for the accomplishment of their object. And to this questionour attention will now be directed. The former Constitution of this State under which this cause originated, provided, as probably do the Constitutions of all the States of this Union, in article two section six; that “private property shall not be taken for public use without just compensation :” And that “no person, in time of peace, shall be depriyed of life, liberty or property without due process of law.” These provisions have been invoked by the defendant for his protection or the protection of his property. We observe in the outset that private property is there held subject to “pub-lice use” according to this provision of our civil compact, wherever the Legislature of the State in the exercise of its wisdom, shall see proper to wield the high and sovereign power of the government for this purpose. We observe, in the second place, that this constitutional limitation impliedly prohibits the taking of private property for'any private use whatever, without the consent of the owner. This last proposition has been long supported in the legislative and judicial history of the Country by the weight of authorities ; but this question does not arise in the present case and is not intended to be decided at this time.
The remaining and material question then is, whether the land which has been taken, by the
What then constitutes a public use, as contradistin-guished from private use? The most extended research will not likely result in the discovery of any rule, or set of rules or principles, of certain and unusual application, by which this question can be determined in all cases. Eminent jurists and distinguished writers upon public law, do not express concurrent or uniform views upon this subject. It is a question, from its very nature, of great practical, perhaps of insuperable difficulty, to determine the degree of necessity, or the extent of public use, which justifies the exercise of this extraordinary power upon the part of a State, by which the citizen, without his will, is deprived of his property. For example; says Chancellor Walworth, in the case of Beekman v. Saratoga and Schenectady Railroad Company, in speaking of the public interest, “But if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the Legislature to determine whether the benefit to the public, will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals, for that purpose.” An eminent commenlator, judge Cooley, referring to this language, says, “It would not be entirely safe, however, to apply with much liberality, the language above quoted, that, ‘when the public in-
In looking at the history of the states upon this subject, we find that the following objects embrace about all, perhaps every one, in whose behalf the states have interposed their sovereign power; to-wit: Public highways, turnpike roads, canals and railroads; also, for the purposepf erecting wharves, basins, streets and alleys; of establishing ferries, draining swamps and marshes; of bringing water to cities and villages; of erecting dams for fhe improvement of navigable streams, and the creation and protection of flouring mills. The legislation of other states has embraced these objects, and we think these only, so far as we have seen, down to the present-time. While this course of legislation does not furnish an absolute law of exclusion at all, it does indicate that; the enlightened judgment and wisdom of our legislative-bodies has found no other objects of sufficient importance- or necessity, to justify the exercise of this high power on the part of the states. In this connection we refer to-an observation made by judge Cooley in his work on Con. Lim. 532: “The reason of the case, and the settled practice of free governments must be our guides in determining what is, or is not to be regarded a public use; and that only can be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience or welfare, which, on account of' their peculiar character, and the difficulty — perhaps impossibility — of making provision for them, otherwise, it is alike proper, useful and needful for the government to-
Before applying this rule to the case in hand, we refer again to said forty-fourth and forty-fifth sections of our Code : it will be observed that the right given in the forty-fourth section to certain parties to call in the aid of the State, is not absolute, but modified and controlled by the forty-fifth section, making it the express duty of the court to determine whether the purpose, in any particular application which is made, for which the property is to be taken, is of public utility or use ; if not, all the proceedings must be rejected. It is not necessary, therefore, to pass here upon the constitutional character of the forty-fourth section, but simply to determine whether, under all the circumstances of this case, as seen in the report and evidence, a public use is legally found to appear; this it is made the express duty of the cburts to determine in each case as it may arise.
In looking at the proceedings in this case, we find no light or information upon this point, in the report of the commissioners; the evidence introduces the certificate of incorporation, which recites the purposes of its organization, which have been hereinbefore set forth, to-wit : of digging and boring for salt, and other minerals, and making the same, and also for mining coal and market
¥e are unable to see in this evidence and report of commissioners any of the requisitions of the rule: the work is not even needed to supply a limited neighborhood with coal; they can otherwise obtain their supplies ; it is not extremely difficult, much less impossible, to do so ; and there is no remaining supervision of law to regulate or secure any possible public interests. No sufficient public use is therefore made to appear to justify an interference with the rights of private property. To secure the possession and enjoyment of private property is one of the chief ends of all free governments; and hence the limitation found in our National and State Constitutions to secure this object and the safeguard thus provided in the supreme law, may not be lightly or recklessly invaded. To destroy or materially weaken its force, would be to subvert one of the pillars on which rests the fabric of our civil society. While cheerfully conceding that private interests must yield to the public exigencies, or the public good, in a proper case, yet that proper case must be clearly made to appear. Said a learned jurist of Virginia, judge Green, in 6 Randolph, “Liberty itself consists essentially, as well in the security of private property, as of the persons of individuals; and this security of private property is one of the primary objects of civil government, which our ancestors in passing our Constitution intended to secure to themselves and their posterity, effectually and forever.”
An eminent statesman of England, referring to the security of the subject under the JEgis of English law, once said : “There stands the poor man’s cottage; the
In our own country the citizen should be equally safe in his person and property under the shield of our constitutions, and the acknowledged pre-eminent dominion of the state never needlessly employed to interfere with the private rights of the highest or the lowest in the land.
The judgment or order of the circuit court of Mason county, made on the 28th day of May, 1872, confirming the report of the commissioners and ordering it to be recorded, is set aside and reversed with costs to the appellant, and this Court proceeding to render such judgment as the court below ought to have rendered, doth adjudge and order that the petition of the appellee be and the same is hereby dismissed, with costs in the circuit court, and that this order be certified to the circuit court’of Mason county.
JudgmeNT Reversed and Proceeding Dismissed.