282 P. 183 | Kan. | 1929
The opinion of the court was delivered by
In this action plaintiff sought to enjoin the railway company from condemning a portion of his real property on the ground that the railway company sought to take the property not for its own use, but for the use of a private corporation which does not possess the right of eminent domain. After a hearing the court denied the injunction, and plaintiff has appealed.
The answer of the railway company admitted the formal parts of the petition and that it had made the application mentioned in plaintiff’s petition for the condemnation of the real property therein described, and that commissioners had been appointed who had given notice and were proceeding to condemn the land in accord
Issues were joined on these allegations. The accompanying plat
The property sought to be condemned includes that shown by the
wide black lines on the plat and the wedge-shaped tract surrounded by them. It may be described beginning at a point on the north line of the present right of way of the railway company and at the west side of the plaintiff’s land, thence north 93.4 feet to a point 81 feet northwesterly from the north line of such right of way meas
Turning now to the legal questions involved. Since in a condemnation proceeding under the exercise of the right of eminent domain the principal question at issue is the amount which should be paid as damages for the talcing of the property, injunction by the landowner is a proper remedy when he contends that the condemning party is exceeding its powers, or where it is contended that the condemnation is ostensibly for a lawful purpose but really for an unlawful or improper one, such as a private use, or when an unnecessary amount of property is sought to be taken. (20 C. J. 1167.)
The statute (R. S. 66-901) under which the railway company is seeking to condemn the property provides that the railway company may condemn a route for a proposed railroad “not exceeding one hundred feet in width, except for the purpose of cuttings and embankments, . . . and also such land as may be deemed necessary for sidetracks, depots and workshops and water stations, materials for construction, except timber, a right of way over adjacent lands sufficient to enable such company to construct and repair its roads and stations, and a right to conduct water by aqueducts, and a right of making proper drains.”
It is argued by appellee that since its present right of way, 15 feet, plus the strip 81 feet wide, which it now seeks to condemn, is less than 100 feet as mentioned in the statute, the presumption is
But the real contention of appellant is that the officials of the railway company did not in good faith deem it necessary to take all of the land sought to be condemned for the purpose stated in the statute. This charge of a lack of good faith is tantamount to a charge of fraud or false pretense on the part of the officers of the railway company. To establish that the plaintiff necessarily had the burden of proof by evidence of a character and degree necessary to establish fraud or bad faith in a court of equity. In this connection appellee suggests that appellant does not come into court with clean hands, for the reason that by contracts made by his predecessor in title he is at least morally' and equitably bound to see that the quartz company has a way appropriate for its use to and from Kansas avenue, or at least that he is morally and equitably bound not to oppose a reasonable provision made which enables the quartz company to have such a way.- But we pass this question
To support the charge of bad faith on behalf of the railway company in condemning more land than it needed for railroad purposes plaintiff offered evidence, most of which was correspondence between the railway company and the quartz company, to the effect that the railway company planned to acquire by condemnation all of the land sought to be condemned and would, at its own expense, remove the poles and wires above the ground and the pipes and conduits under the ground which the quartz company has on its present way of ingress and egress to its premises to the northerly 18 feet of the property sought to be condemned, and would permit a way for such ingress and egress to the quartz company over that strip. The question really is: Does this evidence, taken in its broadest sense, constitute proof of fraud or bad faith on behalf of the officials of the railway company in condemning the 18-foot-strip, being the northerly part of the property sought to be condemned? The trial court held in effect that it did not, and we agree with that conclusion. The officials of the railway company were confronted by an actual condition which had to be changed to insure the safe and efficient operation of its railroad. It could not put in the extra switch tracks and operate them safely and efficiently with this way of ingress and egress located where it is. Neither was it practical to attempt to relocate it between its spurs or switch tracks. The only practical thing to do was to put it off to one side. On considering the matter it was found that this- could be .done in such a way as to enable the railway company to have a right of way for passage on the north side of its tracks for the purpose of constructing them, repairing them, and the proper and necessary use
Appellant argues that this evidence discloses that a private use as well as a public use is to be made of this property and that this renders the condemnation proceeding unlawful. It is well settled, of course, that even when a party has the right of eminent domain he cannot condemn the private property of an individual for the private use of another who does not possess the right of eminent domain. It is also quite well settled that where both a public and a private use is to be made of the-property sought to be condemned and the private use is the dominant, outstanding, or more important object of the condemnation, the proceeding must fail, and some of the authorities are to the effect that if the public and the private use are equal in importance there can be no condemnation. See authorities collected in the annotation 52 A. L. R. 9 et seq. But if the private use to be made of the property is inconsequential compared to the public use, or subordinate thereto to the extent that it can be said to be only an incident thereof, then the fact that such private use is to be made of the property will not defeat the condemnation. In Irrigation Co. v. Klein, 63 Kan. 484, 497, 65 Pac. 684, it was said:
“There is no question but that, if a private use is combined with a public one in such way that the two could not be separated, the right of eminent domain may not be invoked to aid the joint enterprise. We mean by this that the two purposes must together exist as main, or principal, ones; but where the private purpose is simply an incident, and the public use the principal, then the incident will not destroy or defeat the principal. That boats may be sailed upon an irrigation reservoir, or that fish may live therein, does not destroy or interfere with its use for irrigation. What is the principal, and what the incident, might in some cases become a question of fact, to be determined by the proper triers of questions of fact.”
See, also, Walker v. Shasta Power Co., 160 Fed. 856, 860, and Eastern Oregon Land Co. v. Willow River L. & I. Co., 204 Fed. 516, 518, 519.
In the note, 53 A. L. R. 12, it is said:
“The general rule is well settled that the exercise of eminent domain for a public purpose which is primary and paramount will not be defeated by the*187 fact that incidentally a private use or benefit will result which would not of itself warrant the exercise of the power.”
Many authorities are cited. On this point the trial court held that the private use in contemplation to be made of the property by the quartz company was inferior to the public use to be made of it by the railway company and amounted only to an incident to such use. There is evidence to support this view.
Appellant further contends that the real purpose on the part of the railroad was to save itself from a heavy claim of damages on the part of the quartz company. It is pointed out that the railway company might condemn the interests of the quartz company in its present way of ingress and egress to its premises and pay whatever damages would be occasioned thereby. The fact such damages might be large (such a taking of the property of the quartz company would in effect put it out of business) is no reason why it could not be done, and appellant contends that the railway company is really attempting to condemn a part of his land and turn it over to the use of the quartz company to lessen the amount of damages it would otherwise have to pay to the quartz company. In other words, that it is compensating the quartz company for the taking of its present right of way by condemning plaintiff’s land and giving it to the quartz company for a new right of way; that it is compensating the quartz company by substituting a new right of way taken from plaintiff for the right of way it now has.
In this connection the thought suggests itself: Why should appellant be concerned with the amount the railway company pays the quartz company for the damages the quartz company will sustain by reason of the railway company taking the quartz company’s present way of ingress and egress to its premises and other of its property, or with the manner of such payment? Appellant is primarily concerned with but two questions: First, that his property is being taken for a public purpose as distinct from a private one; second, that he receives reasonable compensation for his property taken by the railway company, a matter which will be determined in the condemnation proceeding rather than in this action. If the railway company, instead of taking outright the property of the quartz company and thus in effect destroying the usefulness of its plant and paying the heavy damages which would necessarily result from such a taking, by its officers negotiates with the officials of the quartz company and reaches an agreement by which the rights of
What is perhaps regarded as the leading case was decided by the supreme court of Maryland, Pitznogle v. Western Md. R. R. Co., 119 Md. 673. In that case the railway company, because of an increase in its business, found it necessary to increase its switches, yards and sidetracks. A part of the ground necessary to be used for that purpose was then occupied by a private road from certain farm properties to the pike. In its application for condemnation of the property deemed necessary for its purposes the railway company alleged that it desired to acquire the land “to be used for the purpose of locating its railroad tracks, switches, yard tracks and .sidetracks ... on part of the same, and for the location of a substitute private road on the remainder thereof, in place of the existing private road which the petitioner desires to close and to use for railroad purposes.” It was contended that the use of a part of the land for the location .of a private road in substitution for the existing private road which was to be closed and used by the railway company for railroad purposes is a private use of the land. This contention was not sustained. The court said in the opinion:
“It is shown that the whole of this intervening space, including the road or way thereon, is required for railroad purposes, that is, for laying the tracks, sidetracks and switches of said road. . . . Without the use of this road or private way for the purposes that we have mentioned, the plaintiff would be defeated in its proposed plan of straightening its road and of enlarging its*189 yard. . . . The condemnation, of a part of this land, here sought to be condemned, for a substitute private road or way is incident to and results from the taking, by reason of public necessity, of the existing private road for public use, and the use of it for such purposes should, we think, be regarded as a public use within the meaning of the constitution.” (p. 679.)
The syllabus reads:
“Where a railroad company having power of condemnation sought by apt proceedings to acquire certain land, including a strip on which to open a new private road to replace a private road which it wished to close, in order to widen its right of way and provide additional tracks, etc., it was held, that it could not be objected that the strip of land so acquired would not inure to the public service nor tend to promote public use nor have relation to the public welfare and convenience.”
Appellant points out that this case is reported in 46 L. R. A., n. s., 319, with an annotation the author of which criticizes the judgment as being unsound. But we note that the decision has been cited approvingly by the supreme court of the United States in Brown v. United States, 263 U. S. 78, 83, also by the supreme court of Pennsylvania in Foley et al. v. Beech Creek Ext. R. R. Co., 283 Pa. 588, and by the supreme court of Michigan in Fitzsimmons & Galvin, Inc., v. Rogers, 243 Mich. 649. This judicial approval outweighs the adverse criticism of the annotator above mentioned.
In Brown v. United States, supra, the dam for a government irrigation project on Snake river in Idaho was so situated that the reservoir would flood about three-fourths of the town of American Falls. Congress passed an act authorizing the department in charge of the work—
“. . . to purchase or condemn and to improve suitable land for a new townsite to replace the portion of the town of American Falls which will be flooded by the reservoir, and to provide for the removal of buildings to such new site and to plat and to provide for appraisal of lots in such new townsite and to exchange and convey such lots in full or part payment for the property to be flooded by the reservoir and to sell for not less than the appraised valuation any lots not used for such exchange.” (p. 80.)
The government sought to condemn the plaintiffs’ land under this statute for a part of the new townsite. Plaintiffs contended that the power of eminent domain did not extend to the taking of one man’s property to sell it to another, that such an object could not be regarded as for a public use of the property, and without this appropriation could have no constitutional validity. This contention as applied to the case was denied. The court said:
“The purchase of a site to which the buildings of a town can be moved and*190 salvaged and the dispossessed owners be given lots in exchange for their old ones is a reasonable adaptation of proper means toward the end of the public use to which the reservoir is to be devoted. The transaction is not properly described as the condemnation of the land of one private owner to sell it to another. ... A method of compensation by substitution would seem to be the best means of making the parties whole. The power of condemnation is necessary to such a substitution.” (pp. 82, 83.)
The pertinent headnote reads:
“Where establishment of a reservoir under the reclamation act involved flooding part of a town, the United States had constitutional power to take by condemnation other private land near by, in the only practicable and available place, as a new townsite to which the buildings affected could be moved at the expense of the United States and new lots be provided in full or part satisfaction for those flooded. The fact that, as an incident of such a readjustment, there may be some surplus lots of the new townsite which the government must sell, does not characterize the condemnation as a taking of one man’s property for sale to another.”
In Fitzsimmons & Galvin, Inc., v. Rogers, supra, the state highway department was engaged in the construction and improvement of a state trunk-line highway which was an extension of one of the principal streets of Detroit. The highway was to be increased to 200 feet in width, and for that purpose it was necessary to acquire adjacent property. For a distance of 9.1 miles the right of way of a railroad lay adjacent to the highway. It became necessary to acquire this right of way to carry out the plan of widening the highway. The legislature passed an act authorizing the governor to negotiate with the railway company for the relocation of its railroad right of wajr and empowered the highway commissioner to acquire, by purchase or condemnation, ground for the relocation of the railroad right of way. The question of the validity of this statute and the proceedings under it were before the court. The court stated:
“We have squarely before us the question as to whether under the highway act there can be what may be termed substituted condemnation, or compensation by substitution.” (p. 658.)
The court referred to the cases of Brown v. United States, supra, and Pitznogle v. Western Md. R. R. Co., supra, and said:
“Having in mind that the primary purpose of the act . . . was that of highway construction and improvement, and that the relocation of the railroad right of way was inseparably connected with the project, we hold that the working out of the whole problem was properly delegated by the legislature to the state highway department under the terms of the contract embodied in the statute.” (p. 660.)
We have not overlooked the case of City of Cincinnati v. Vester, 33 F. (2d) 242 (and In re Opinion of the Justices, 204 Mass. 607, and other allied cases), where it was held:
“Excess condemnation of land by city in widening of street for purpose of selling such excess at a profit, and using proceeds to pay for improvement, held not condemnation for a ‘public use’ within const. Ohio, art. 18, sec. 10, and is in violation of the due process clause of the federal constitution.”
In our view the rules of law stated in these decisions are not applicable to the case before us.
Lastly, appellant argues that in no event does the railroad company have the right to condemn more than the surface of his property for railroad purposes, and has no right to condemn his property for the purpose of relocating underground pipes and conduits. We note that in the rights of condemnation conferred by our statute (R. S. 66-901) is the “right to conduct water by aqueducts and the right of making proper drains.” We see no reason why this is limited to the surface, or above the surface. We think that the word “aqueduct” as used in the statute includes underground conduits, and that “proper drains” may be underground pipes as well as drainage on the surface or above it.
From what has been said it necessarily follows that the judgment of the court below must be affirmed. It is so ordered.