| Mo. | Nov 26, 1894
The proceedings were to condemn for a railway track of defendant’s railroad a part of the land acquired and held by the defendant for union depot purposes in the city of Hannibal.
It appears from the evidence that the defendant was incorporated under the general laws of the state, (R. S. 1879, see. 826; R. S. 1889, sec, 2667) for the purpose of constructing, establishing and maintaining a union station for passengers in the city of Hannibal; that for the purposes of its incorporation it acquired a tract of land in the eastern portion of the city. The
On the grounds north of the creek the defendant had constructed and maintained a large, convenient and expensive depot building with extensive sheds, with a number of railroad tracks running into them, from the northeast, also one or more tracks on the north side of the building. The cost of the entire property was estimated at $160,000. No part of the improvements were on the land south of the creek.
It was shown that Hannibal was a city of about fifteen thousand inhabitants; that six or seven railroads centered there, all of which used this depot for receiving and unloading passengers, and that from forty-eight to fifty passenger trains come into the depot daily.
The evidence of the defendant was to the effect that Bear creek was a small stream generally dry, and could easily be bridged and the ground south of it easily utilized for building tracks into the depot; that this land was intended for depot purposes when the neces
Plaintiff is a railroad corporation authorized under the general laws of the state with power to construct and operate a road from Perry, in Ralls county, to the city of Hannibal, a distance of about thirty-two miles. By this proceeding plaintiff sought to appropriate a strip of land fifty feet wide and ninety-four feet long through the south end of the depot land lying south of the creek. This would leave an irregular piece of the land south of the road of the dimensions of twenty feet on the west, sixty-two feet on the south, seventy-six feet on the east, and ninety-four feet on the north side. Defendant filed written objections to the proceedings, the grounds of which in substance were afterwards renewed in exceptions filed to the report of the commissioners. The evidence was heard by the court before the appointment of commissioners. The court found, and so declared in its judgment, that “plaintiff has the power to condemn over defendant’s unused and unapplied vacant land south of Bear creek a right of way for through main track passage and travel.”
Commissioners were thereupon appointed. The court in substance instructed the commissioners that in estimating the damages, in addition to the value of the land appropriated they should estimate “the depreciation, if any, in the reasonable market value of the defendant’s remaining real estate and plant, caused by the taking of said right of way strip from said property, and by injurious affection of defendant’s said property and plant, directly caused by the presence of plaintiff’s railway on said strip and the operation of plaintiff’s
The jury afterwards reported: “We hereby assess the damage, sustained for said strip and said corner cut off, at the sum of four hundred dollars, and for damages, as sustained to that part of said depot tract lying between said strip and Bear creek, we assess at the sum of $200, as will more fully appear by the map or plat hereto annexed marked ‘Exhibit A,’ and that the damages assessed by us in full is the sum of $600.”
Defendants filed exceptions to the report of the commissioners on the grounds: That, under the petition and evidence, plaintiff had no legal right to appropriate the land of defendant for the purposes named; that no necessity for the appropriation was shown; and that the commissioners were improperly instructed. The exceptions were overruled and judgment of condemnation was entered in favor of plaintiffs, and for the amount of damages awarded in favor of defendants. Defendants appealed.
It may be stated further that the evidence offered by plaintiff tended to prove that defendant’s property and business would not be materially affected by the appropriation sought.
I. It is insisted in the first place that the power to.construct a railroad from the city of Hannibal to another designated point in the state does not sufficiently designate the terminal point in said city and consequently no power existed, under the charter of plaintiff, to extend its road through a part of the city to the wiion depot. The charter contains no restrictions, express or implied, as to the point or terminus in the city of Hannibal. To or from a city, without other restrictions, we think fairly means to or from any point
II. It is insisted, and this is the substantial question in the case, that, inasmuch as defendant’s property has been devoted to one public, use, it can not lawfully be taken and applied to another inconsistent public úse, under the right of eminent domain, though a general power is given plaintiff: by charter to condemn land for its railroad.
The power of the state to appropriate private property to a public use is an inherent element of sovereignty. It applies to all property and is impliedly reserved in every grant. The property and franchises of a corporation are subject to it. The power to determine when the public interest demands its exercise rests exclusively with the legislature, subject to judicial determination “whether the contemplated use be really public.” Sec. 20, art. 2, const, of Mo. “The necessity may be left the adjudication of designated officers or tribunals; but when not so delegated, it may be declared by the legislature itself. The right itself may be delegated to corporate bodies, public or private; and when the enjoyment of two public rights would to some extent interfere, it is * * * for the legislature to determine which shall yield, and to what extent, and whether wholly or in part only, to the other; and such question will ordinarily be determined by the legislature according to their conviction of the greater preponderance of public necessity and convenience.” Railroad v. Railroad, 111 Mass. 131, and cases cited.
It may be conceded, as a general rule of law, that lands once appropriated to one public use can not be taken under proceedings in invitum and applied to the same or an inconsistent use unless the intention of the
The constitution declares that “the exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the general assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals.” Art. 12, sec. 4, const, of Mo. These terms are broad enough to include property of private corporations which is devoted to public use. So, as the power stands unrestricted and unlimited, there can be no difference between corporate and individual rights, and a grant for one public purpose may be made to yield to another deemed by the legislature of equal or greater importance. All legislation must be construed in the light of this constitutional provision. While the power to exercise the right of eminent domain delegated to railroad corporations, is general in its terms, and is not expressly given to appropriate corporate property devoted to another use, the general power includes the appropriation of any lands and other property and necessarily includes that of corporations. This is more apparent in view of the provision of the statute which
To determine this question the court heard the evidence, the substance of which is given in the statement. The court found that there would be no such interference and in its conclusions we fully agree. In doing so we recognize the importance to defendant and the traveling public, which it serves, of having the property actually used in connection with its station free from the use or even limited control of others. We also recognize the right of defendant to make provision for the probable necessities of the future and make its plans with reference to such needs. But we are convinced that there is no reasonable probability that the small piece of land south of the creek, cut off as it is by that stream and the right of way and tracks of another railroad, from all the land now improved and used, will ever be, or can safely be, used by tracks or buildings in connection with the depot. The land plaintiff seeks to acquire is at least 150 feet from any of defendant’s improvements, nor is any of its business conducted on or across that part of its ground. We are unable to see that the uses for which the land was acquired will be materially interfered with by the construction and operation of plaintiff’s road across the same as contemplated.
III. But it is said that there is no such necessity for the appropriation of a part of defendant’s property as justifies the exercise of the power of eminent domain.
It is undoubtedly true that “the right of eminent domain rests upon necessity and that alone. Beyond this there is no right.” Railroad Co.’s Appeal, 93 Pa. St. 150. But it is also true that the sovereignty must be the judge of the necessity of taking the property, and the legislature has delegated to railroad corporations the right to exercise the power, and the courts of this state have always held the use of land by a railroad to be for a public use. The sovereignty has lodged with railroad companies the power of selecting and adopting their own routes subject only to such limitations as have been imposed. Whenever the use of private property, on the line adopted, is necessary, the necessity exists. There is no distinction in this respect between private and corporate property, except when the exercise of the power as to the latter should “materially interfere with the uses, to which, by law, the corporation holding the same is authorized,” to apply it. Section 2741, supra. As we have seen, taking the land sought in this proceeding would not materially interfere with defendants use of its union station, and, as plaintiff has adopted that route for its road, we must hold that the necessity for the exercise of the power exists.
We find no prejudicial error in the record, and affirm the judgment.