95 Vt. 144 | Vt. | 1921
This bill is brought to restrain tbe defendants, who are the mayor and aldermen of tbe city of Rutland, from
Briefly, the case stated is in substance this: The plaintiff is a public service corporation 'organized under the general laws of the State with the power of eminent domain, and authorized, among other things, to build hydro-electric plants, to generate, distribute, and supply electricity to the public and to acquire necessary water rights for that purpose. It owns and operates several hydro-electric plants by means of which it is supplying electricity to municipalities, corporations, and individuals for power, lighting, and heating purposes in some twenty towns in this State. Demands are made upon the. plaintiff for electric current throughout the territory served by it greatly in excess of the amount it can generate with present facilities; and in order to supply the demands so far as possible the plaintiff is now purchasing large quantities of electricity from others, which it intends to and should, in the proper conduct of the business, replace as soon as possible with electricity generated at its own hydro-electric plants. To meet these demands it is necessary as soon as possible for the plaintiff to construct hydroelectric plants to use for generating electricity all the water power it now owns, which it has already been authorized to do by the Public Service Commission. The plaintiff owns water and flowage rights and other interests in land of great value along the north branch of Cold River in the towns of Mendon and Shrewsbury, recently acquired pursuant to the orders of the Public Service Commission, which it intends to use in the construction of a hydro-electric plant generating large quantities of electricity and of especial value to the plaintiff because of its location with reference to transmission lines and other plants which it owns or controls. The electricity generated at such plant when constructed is to be used for public purposes within the State. The proceedings sought to be restrained were commenced on December 16, 1919, about two months • after the plaintiff acquired the rights in the north branch of Cold River. The defendants propose thereby to take the water rights of the plaintiff in Cold River by power of eminent domain and to divert the waters thereof for the purpose of an additional water supply
Three grounds of demurrer are assigned which are briefly as follows: (1) For that the defendants 'are authorized by statute to take the water rights described in the bill for the purpose contemplated; (2) for that the property in question is not now devoted to a public use, mere intent to do so in the future being insufficient in law to exempt the property from condemnation for the purposes-of the municipality; (3) for that the use to which the city of Rutland proposes to devote the property is of so much greater comparative importance and more general public benefit than that to which it is alleged the plaintiff intends to devote it that the city has the superior right.
The charter of the city of Rutland vests the administration of all municipal affairs in the city council consisting of the mayor and board of aldermen. The powers of the city council with respect to the taking of land, etc., for purposes of a water supply, are found in No. 277, Acts of 1915, amending the charter of the city. Therein the council is authorized among other things to provide a supply of water for the protection of the city against fire and for the use of its inhabitants, and from time to time to increase such supply. It is provided that in the exercise of the powers enumerated the city “may purchase and take, within or without its corporate limits, lands, springs, streams and water rights of individuals and corporations, and divert waters from natural channels into its water supply, on making compensation therefor.” It is recognized by the defendants that the power of eminent domain thus granted to the city is general in character. No question is made by the plaintiff but that ordinarily such a general delegation of power would be sufficient to enable the city council to take lands, etc., for the purposes of the city’s water supply. As already appears, the proceedings are resisted by the plaintiff solely on the ground that the property which the defendants are undertaking to condemn is already devoted to a public use, placing it beyond the reach of the city in the proper exercise of the power conferred
It is the settled law of this State that property already legally appropriated to a public use cannot be taken for another public use without legislative authority expressly given or necessarily implied. Rutland-Canadian R. Co. v. Central Vt. Ry. Co., 72 Vt. 128, 133, 47 Atl. 399; Rutland Ry., etc., Co. v. Clarendon Power Co., 86 Vt. 45, 50, 83 Atl. 332, 44 L. R. A. (N. S.) 1204. To bring property within the immunity from condemnation under general legislative authority it is not necessary that it be acquired by eminent domain. If its owner has devoted it to a public use which he is under a legal obligation to maintain, it comes within the protection of the rule. 2 Nichols on Em. Dom., § 364; 2 Lewis on Em. Dom. (3d ed.) § 443; Rutland Ry., etc., Co. v. Clarendon Power Co., supra; Barre R. Co. v. Montpelier & W. R. R. Co., 61 Vt. 1, 17 Atl. 923, 4 L. R. A. 785, 15 A. S. R. 877; In re Saratoga Ave., 226 N. Y. 128, 123 N. E. 197. And it is not necessary that the property be actually in use for the public purpose to exempt it from the proceeding. In other words, it may be appropriated or devoted to a public use within the law of eminent domain without being actually put to such use. Rutland Ry., etc., Co. v. Clarendon Power Co., supra; In re Newport Ave., 218 N. Y. 274, 112 N. E. 911; New Haven Water Co. v. Wallingford, 72 Conn. 293, 44 Atl. 235. But a mere voluntary assumption of public service which may be abandoned at any time does not carry with it the privilege of exemption. The test whether land is held for a public use such as will exempt it from condemnation is said not to be what the owner does or may choose to do bnt what under the law he must do, and whether a public trust is impressed upon it. A corporation does not so hold its property impressed with a trust for the public use unless its charter or the general law puts that character upon it so that it cannot be shaken off. In re New York., etc., Ry. Co., 99 N. Y. 12, 1 N. E. 27. While land kept by a corporation bound by law to serve the public in reasonable anticipation of future needs cannot be seized for a different public use under general authority, land held for purposes other than those pertaining to its franchise may be taken as freely as from a private individual. 2 Nichols on Em. Dom., § 364, and cases there cited. The element of necessity plays an important part in the determination of the question. While
The general rule to be gathered from the authorities is that property is devoted to or held for a public use, so as to be exempt from condemnation for a different public use under general authority, when used' in immediate and necessary connection with a public trust, or when acquired by a public service corporation for a necessary purpose pertaining to its franchise and held in reasonable anticipation of its future needs, with a bona fide intention’ of using it for such purpose within a reasonable time. For additional cases see State v. Superior Court, 84 Wash. 20, 145 Pac. 999, 149 Pac. 324; State v. Superior Court, 94 Wash. 691, 163 Pac. 15; St. Louis, etc., R. Co. v. Belleville City Ry. Co., 158 Ill. 390, 41 N. E. 916; Rochester, etc., R. Co. v. Babcock, 110 N. Y. 119, 17 N. E. 678.
It follows that to sustain the plaintiff’s claim that the property in question is held devoted to a public use, it should appear' that it is reasonably necessary to a proper discharge of the plaintiff’s legal obligation to the public, and that in good faith it intends to use the property for such purpose without unreasonable delay. These are largely questions of fact to be inferred from the circumstances under which the property is held. Chicago, etc., Elec. R. Co. v. Chicago, etc., R. Co., 211 Ill. 352, 71 N. E. 1017. The cases relied upon by the de
We come to the question raised by the first ground of the demurrer, whether authority to take the property sought to be condemned is conferred by the charter of the city. Confessedly it is not unless by necessary implication. There is nothing in the language of the act from which it can be implied that the Legislature intended to give the city of Rutland authority to take the particular source of water supply in question here. The defendants recognize this but rely upon the claim that the authority is necessarily implied from the power granted in view of the attending circumstances. The law of the subject is well settled and is quite fully considered in Rutland-Canadian R. Co. v. Central Vt. Ry. Co., 72 Vt. 128, 133, 47 Atl. 399.
The rule generally recognized is that when the only land available for a particular public work specifically authorized by the Legislature is already devoted to a public use, the power to take such land will be inferred, but not otherwise. 2
In their attempt to bring the ease within this rule the defendants are forced to rely upon facts outside the record of which it is said the Court will take judicial notice. We are asked to take into account the geography and topography of the section of the State in the vicinity of Rutland, from which it is claimed that no other suitable water supply is available to the city; and it is argued therefrom that the power granted necessarily . carried with it the implied authority to condemn the property in question. The defendants are unmindful of the fact that the matters relied upon are not available to them on demurrer. The purpose of a demurrer being to test the sufficiency of the bill, it must be based exclusively on matters apparent on the face thereof. In general, a demurrer is applicable to any defence which may be made out from the allegations of the bill; but if the matter of defence is not apparent on the face of the bill, the defendant must show it either by plea or answer. It is not available on demurrer. A demurrer based on extraneous facts which it seeks to import into the record is bad as a speaking demurrer. 21 C. J. 432; 10 R. C. L. 465; Stewart v. Masterson, 131 U. S. 151, 33 L. ed. 114, 9 Sup. Ct. 682; 1 Dan. Ch. Pl. & Pr. 612; United States v. Forbes (D. C.) 259 Fed. 585. It has been held that a demurrer is not aided by facts not appearing in the pleadings, even though conceded at the hearing. Hartland v. Windsor, 29 Vt. 354. See also Columbian Gr. Co. v. W. C. Townsend & Co., 74 Vt. 183, 52 Atl. 432.
In view of the disposition to be made of the case it seems advisable to observe that there may be grave doubt whether a court could take judicial notice of the facts relied upon by the defendants, even if proper to be considered on demurrer. True,
It should also be noticed that where the language of the statute conferring the right of eminent domain is general, it is presumed, in the absence of some necessary implication to the contrary, that it was not intended that land already devoted to one public use should be taken for another. Board of Water Com’rs v. Johnson, 86 Conn. 151, 84 Atl. 727, 41 L. R. A. (N. S.) 1024. As the defendants rely upon the claim of legislative authority conferred by necessary implication, theirs is the burden of establishing it. Western Union Tel. Co. v. Burlington Trac. Co., 90 Vt. 506, 516, 99 Atl. 4, Ann. Cas. 1918 B, 841.
Under their third ground of demurrer the defendants claim that the city of Rutland has a superior right to the waters because of the greater resulting benefit to the public. Whatever the merit of the argument in this behalf, it presents a question for the Legislature, and not for the courts. A municipal corporation having the right of eminent domain stands no differently before the courts than a private corporation clothed with the same right, except that the municipality may, when so authorized, take land devoted to a public úse, and apply it to the same use, which the private corporation cannot do. Armington v. Barnet, 15 Vt. 745, 40 A. D. 705; West River Bridge Co. v. Dix, 16 Vt. 446; s. c., 6 How. 507, 12 L. ed. 535; Long Island Water Sup. Co. v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct. 718; 2 Nichols on Em. Dom. § 353. The same rules of construction apply to statutes giving general power of eminent domain whether the grantee is a private or a municipal corporation. City of Moline v. Greene, 252 Ill. 475, 96 N. E. 911, 37 L. R. A. (N. S.) 104. While the point here raised has seldom been brought in question, the reports are full of illustrative cases, showing that such a distinction as the defendants claim is
It follows from what has been said that the demurrer was properly overruled. The defendants requested at the hearing that leave be granted to answer if the demurrer was not sustained, and the cause will be disposed of accordingly.
Decree overruling the demurrer is affirmed. In other respects the decree is reversed pro forma, and the cause remanded, with leave to apply. Let the plaintiff recover its costs.