Wise v. Yazoo City

Lead Opinion

Mayes, J.,

delivered the opinion of the court.

Oounsel have entered into an agreement as to the facts; therefore we deem it unnecessary to fully restate same. There is but one question in the case, in our view of it. Yazoo Oity is the owner of its waterworks, electric light, sewerage, and street railway systems, and in order to generate the power for operating these utilities it has a power house located not a great distance from the main track of the Yazoo & Mississippi Valley Railroad Company. In operating this plant through the power house, it becomes necessary for the city to purchase about four thousand five hundred tons of coal per year. The city finds it cheaper to have this coal shipped via the railway than it does to have it sent by the river, and hence, in purchasing the coal, it is routed over the railway to its destination. After reaching the city it was found to cost it twenty-five cents per ton for cartage from the main line to the power plant, and in order to cut out this expense the city conceived the idea of putting in a spur track to the power house and having all cars sent over same To the power house. In order to accomplish this, it was necessary to run the spur over a lot belonging to appellant, and to use a strip of land through the lot of appellant, about one hundred and twenty-five feet in length and about twenty-five feet wide. It appears that the city constructed this spur track across this lot without the consent of appellant, and appropriated this land for this use before the appellant or the city knew the land belonged to appellant. This, however, is immaterial, as this particular feature does not affect the decision of the case. After it was discovered that this spur ran over appellant’s lot, negotiations were had by both parties looking to the sale of this land to the city; but the price could not be agreed upon. Appellant offered the land to the city for $500, but the city would only offer $75. In this condition of affairs, the city failing to agree with appellant upon a price, the city undertook to condemn the land and in this way take it for the purpose of this spur track for the use already stated. The appellant enjoined the condemnation proceedings on the ground that the city had no power under its charter to condemn the land for the purpose of putting a spur track to its power house. It will be seen that the increased cost to the city of getting its coal "to' its power house by having it carted from the main line of railway was twenty-five cents per ton, and on the four thousand five hundred: tons used by it during the year the total excess cost would be $1,125 per 'year. The owner of the lot offered to sell to the city this laud for $500, or $625 less-than it was actually costing the city per year to baul its coal; but tbe city refused to pay tbe $500, and seeks to take tbe property by tbe exercise of eminent domain power.

Tbe question in this case is whether, under section 20 of its charter, tbe city has tbe power to condemn this land for this purpose. Tazoo City is not under tbe general municipal chapter, but bolds its charter by special act. Tbe particular section involved in this case is section 20, and is as follows," viz.:

“Whenever said council shall deem it necessary to use or take and apply any private property, under the provisions of this act, for streets, roads, alleys, hospitals, burying grounds, landings, wharves, sewerage, waterworks, electric light lines, gas mains, street railways, places of quarantine and buildings required for quarantine or any other public purpose, or whenever said council shall deem it necessary to acquire an easement, user, or right of way in, under, or over any private property for the laying of water, sewer, or gas mains or pipes or any of the purposes above mentioned, they shall endeavor to purchase the said property, or the easement, user, or right of way in, under or over the same at a reasonable price, and if they cannot agree with the owner thereof or if the owner or owners be absent or incapable from legal disabilities of making a sale and conveyance of the land, or easement, user, or right of way wanted, said council ma'y proceed to condemn said land or the use, easement, or right of way therein under and according to the procedure of the laws of the state of Mississippi in such cases made and provided,” etc.

Unless it can be said that the city obtains the power to condemn this strip of land under that clause of its charter which gives it tbe power to condemn “places of quarantine and buildings required for quarantine or any other public purpose/3 it is apparent by all settled rules of construction that the charter of the city confers no power to condemn and take this private property for the use contemplated, unless it can be said that the city may take it for the purpose of saving expense. We shall discuss the above clause of the charter later on in this opinion in tire broadest sense in which it may be claimed that it is used, but for the present we will only say that the clause only gave the city the power to condemn land for “plac.es of quarantine and buildings required for quarantine or any other public purpose;” that is to say, when the city undertook'to condemn, it could condemn for quarantine purposes, “or any other public purpose,” always, of course, within the scope of the powers before specifically delegated for the use of the eminent domain powers.

This right of way is not necessary for any purpose of completing any essential feature of sewerage, or waterworks, or electric light lines, or gas mains, or street railways. All these things can be completely accomplished in eveiy particular without this spur track. The sole purpose of this taking is to reduce the expense of fuel to the city by taking appellant’s property for a use not needed in order 1» make effective its public utilities, and not named in its charter as cause for which the property might be condemned. When we examine section 20 for power to condemn for this purpose, it is not there, either b'y clear expression or necessary implication, because not essential to effectuate any purpose named in the charter. In other words, the sewerage, the waterworks, the electric light plant, the gas mains, the street railways, all may be conducted and carried on without this spur track, as well as with it. We must assume that the legislature gave the city in its charter all the power it intended it should exercise, and in so holding we are in line with the unanimous authority on this subject. Whenever a city seeks to exercise a power, it must find that power in its charter, or it must be one of necessary implication from other, powers granted in order to make effective the power which the legislature has granted in express terms.

No power conferred on any corporation, either private or municipal, is to be more strictly construed than the power to exercise the right of eminent domain. Thus, in 15 Cyc. p. 567, it is said: “The power of eminent domain being in 'derogation of the common right, acts conferring it are to be strictly construed, and are not to be extended beyond their plain provisions. The right to exercise the power is strictly limited to the purposes specified in the statute conferring it. The proposed use of the lands of the owner must be clearly embraced within the legitimate object of the power conferred. .Where there is any doubt in regard to the extent of the power, the landowner must have the benefit of that doubt.” In Binney’s case, 2 Bland. (Md.) 129, it is said: “The power to condemn private property is a portion of the eminent domain of the government, granted to this body politic, which should never be exercised by the government itself, but .with great caution and in cases most obviously for the public good. When, as has been justly observed in our country, the legislature undertakes to give away what is not their own, when they attempt to take the property of one man, which he has fairly acquired, and the general law of the land protects, in order to transfer it to another, even upon a complete indemnification, it will naturally be considered as an extraordinary act of legislation, which ought to be viewed with jealous eyes, examined with critical exactness, and scrutinized with all the severity of legal exposition. An act of this sort deserves no favor. To contrae it liberally would be sinning against the rights of property. In England it has been said that all courts have, for obvious reasons, at all times, construed such legislative enactments most strictly.” In Lewis on Eminent Domain, vol. 1, § 388, the same rule of construction is announced.

It is quite true that statutes granting these powers are not to . be so strictly construed as to defeat the evident purpose of the legislature in granting the power; but when we hold that the charter of Yazoo City does not carry with, it the power to condemn property for the purpose of a spur track to its power bouse, when the only authority conferred is to exercise eminent domain proceedings in order to take private property for waterworks, electric light, gas, and street railway purposes, we certainly do no violence to the act when we say this does not include the power to take land for railroad purposes. It is certain that in so construing the act we in no way defeat the purpose of the charter power. The city may complete, operate, and maintain all these utilities without the use of this spur track in any way. See, also, Chestatee, etc., Co. v. Cavenders Creek Company, 119 Ga. 354, 46 S. E. 422, 100 Am. St. Rep. 174. In the case of McElroy v. Kansas City (C. C.) 21 Fed. 260, Justice Brewer, in speaking upon this subject says; “In these days of enormous property aggregation, where the power of eminent domain is pressed to such an extent, and when the urgency of so-called public improvements rests as a constant menace upon the sacredness of private property, no duty is more imperative than that of the strict enforcement of these constitutional provisions intended to protect every man in the possession of his own.” See, also, Ligare v. City of Chicago, 139 Ill. 46, 28 N. E. 934, 32 Am. St. Rep. 179; City of Waterbury v. Platt Bros. & Co., 75 Conn. 387, 53 Atl. 958, 60 L. R. A. 211, 96 Am. St. Rep. 229.

On a review of all the authorities there is unanimity among them to the effect that the power to exercise the right of eminent domain, whether delegated to private or municipal corporations, is limited to the express terms or clear implication of the statute authorizing its exercise, and where it is to be implied it can only be implied in a case where the implied power is indispensable to the effectuation of the purpose granted by the express terms of the statute.

As to the argument, advanced by appellee, that even if it be held that the charter power naming specific things for which-private property may be condemned is not broad enough to ■cover tbe use sought here, yet the use intended is “a public use,” .and a general provision in the charter authorizes the taking not ■only for the specific things enumerated, but provides that private property may not only be condemned for those uses, but •for “any other public purposes,” we cannot agree that this contention is á sound one. It is quite true that the charter names certain things for which private property may be condemned, and then concludes with the sweeping clause of “any other public purpose,” thus seemingly delegating to the municipality a power of-eminent domain as broad as that possessed by the state. This clause can only mean that the powers conferred specifically shall be broad enough to accomplish this specific purpose. It is limited in its operation to the effectuation of the specific subjects named in the charter and adds no new and independent rights. State v. City of Newark, 54 N. J. Law, 62, 23 Atl. 129.

Eminent domain rights are attributes of sovereignty, to be exercised by the state with great caution and only in cases of public necessity. It is a power which sleeps in the bosom of the state until aroused into activity by an act of the legislature. This high power is never to be presumed to' be confided, to any public or private body or corporation, however great may be' the necessity for it to have and exercise such power. When it is asserted by any person or corporation, the state’s assent must be clearly given in legislative acts, and the subjects for which It may be exercised specifically named. No state has yet given to any corporation the sweeping power to condemn and take private property for “any public purpose,” without preceding every such clause with specifically named' subjects for which it may exercise the right. Even if it can be done, we do not believe any state will ever confide this sovereign power, so liable to abuse and filled with possibility of oppression, by a clause so sweeping as to vest any individual or corporation with the power to condemn at pleasure for any and every public use,, without specifically naming the public use. -

The court below having sustained the contention of the city and dissolved the injunction, the injunction is hereby reinstated, the decree reversed and cause remanded.

Reversed.

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Dissenting Opinion

Whityihli), C. J.,

delivered the following dissenting opinion :

I desire to state very briefly the ground of my dissent in this case. Section 20 bf the charter provides: “Whenever said council shall deem it necessary to use or take and apply any private property, for streets, roads, alleys, hospitals, burying grounds,, landings, wharves, sewerage, waterworks, electric light lines, gas mains, street railways, places of quarantine and buildings required for quarantine or any other public purpose,” etc., “they may proceed to condemn said land,” etc., “under eminent domain proceedings.” The same section further provides: “"Whenever said council shall deem it necessary to acquire ar. easement, or right of way in, under, or over any private property for the laying of water, sewer or gas mains or pipes or any of the purposes above mentioned,” it shall likewise proceed to exercise the right-of eminent domain, if an agreement cannot be had with the owner. It is agreed that no agreement could be reached between the city and the owner as to the purchase of the right of way. The city was proceeding under said section 20 to condemn a right of way over this strip of land, when an injunction was sued out against the city to stop the proceeding. The city made a motion to dissolve this injunction, which motion was sustained, and the injunction dissolved, and from that decree appellant appeals.

The whole controversy comes to this single inquiry: Did the city have the power to condemn this right of way as necessary means to effectuate the public purpose, the transportation of tbis coal over tbis spur track, to enable tbe city to conduct its furnaces in tbe safest, quickest, and most reasonable, practical way? I agree, of course, with tbe general announcement of tbe opinion in chief as to tbe rule of strict construction of statutes or charters granting tbe right of eminent domain. But tbis dance, “any other public purpose” must receive a commonsense construction, keeping in view tbe whole situation. It should not receive a construction so narrow and so technical as to defeat the manifest purpose of tbe grant. In tbe development of a city, from decade to decade, as it advances in tbe scale of civilization, what might be thought a public purpose as to a great city might very well not be regarded as a public purpose for a mere village. Nay, more, what might be considered a public purpose for a, city at one period of its development might not be a public purpose at some earlier stage of development. The size of a city, its population, its relation to commerce, its use of railroads, telephones, telegraphs, and all tbe public utilities known now to' modern life, as well as tbe revenues of tbe city, should be taken into consideration in construing tbe grant in tbis day, as to whether a certain purpose is a public purpose or not, and whether the taking, consequently, of private property in the exercise of the right of eminent domain is a taking for public use or private use. See my dissent in Jackson v. Williams, 92 Miss. 324, 46 South. 551. It seems to me to be too clear for controversy that tbe use here h> which this spur was to be dedicated was a public use, and not a private use; and it seems equally plain to me that tbis charter did confer the power to condemn tbis right of way for this public use by tire words quoted above from section 20 of the charter. I cannot conceive how language could be broader than the phrase “any other public purpose;” and when, in addition to that, it is said, “but whenever the city council shall deem it necessary to acquire a right of way over any private property” for any of the purposes above mentioned, it is 'impossible for me to resist the conclusion, that this charter does give,, in plain and express language, the power to Tazoo City to condemn this right of way for this spur track.

It was, of course, impossible for the legislature to' foresee, when they granted this special charter, all the public purposes for which it might become necessary, from decade to decade, for Yazoo City, as it developed, to exercise the right of eminent domain. The grant ought, therefore, to receive a broad and reasonable interpretation in view of this fact, so that the city might not be unreasonably hampered in building itself up along modern lines into the great city it aspires to be. It seems to be conceded by counsel for appellant that under this charter the.city had power to condemn for a power .house; and how, if this be true, it has not also the necessarily associated power to condemn a strip of land for a spur track over which to transport the coal to the power house I confess myself unable to see. The charter expressly provides that the city may own these modem utilities, waterworks, electric lights, street railways, etc., for the benefit of the inhabitants, and that the city may, of course, condemn private property, or easements in private property, for the construction, etc., of these public utilities, whenever said council shall deem it necessary, and it adds that it may so condemn private property “for any other public purpose.” Under this charter, manifestly, the city had the power to determine what lands, what easements, and rights of way were necessary to the complete acquisition and proper and efficient operation of these public utilities; and any act of the council reasonably calculated to promote the success of any ■of these enterprises, necessarily incidental to the business of operating any of them, surely ought to be held to be clearly embraced in these general terms.

I think the language of Chief Justice Woods, speaking for this court in Ewing v. Railroad, 68 Miss. 551, 9 South. 295, fits in here with marvelous aptness. He said: “But that is not a strict construction which' denies to the agency created the very means which are indispensable to the accomplishment of the ends of its creation. That is the destruction of the agency, and not a construction of the grant of the powers conferred.” That was a case where the railroad company had the power to con-' demn for a “railroadbut tire court held that under that grant it also had power, as necessarily incidental to the main grant,, to condemn for side tracks, station houses, turntables, fuel storage, water tanks, and repair shops; the court adding: “True,, the public uses only the main line of a railway, and all the adjuncts just named are used solely by the railroad company, and' yet these are as necessary to the attainment of the public good as the main line itself.” The right to own and operate a power house necessarily and inescapably presupposes the right to operate it with such fuel as is right to operate it with, and also presupposes the right to obtain the same in such reasonable and ordinary manner as the council shall deem wise and to the best interests of the public. The operation of the power house without coal is unthinkable. The mere method of obtaining it is in the reasonable discretion of the council. In the case of Canton v. Cotton Warehouse Co., 48 Miss. 268, 36 South. 266, 105 Am. St. Rep. 428, 65 L. R. A. 561, where the right to lay water pipes in the right of way of the railroad across the public streets of Canton .to conduct water from an ice plant to the tanks of the railroad company was involved, and in upholding that right the court said: “The broad fundamental principle is: In the construction or maintenance of its -line of road, a railroad company is vested with all such power as may be requisite for the successful consummation of the object for which it was granted corporate exists enee.” See, also, specially, the case of In re Minneapolis & St. L. R. Co. v. Nicolin, 76 Minn. 302, 79 N. W. 304. See, also, Chicago Ry. Co. v. Morehouse, 112 Wis. 1, 87 N. W. 849, 56 L. R. A. 240, 88 Am. St. Rep. 918, and Zircle v. Southern Ry. Co., 102 Va. 17, 45 S. E. 802, 102 Am. St. Rep. 805.

I will not protract further this opinion. I conclude that, first, the charter grants, in the most explicit and express terms, the power to condemn this land for this spur track; second, the use of the right of way for the purposes indicated is a public and not a private use; and, consequently, that the decree should be affirmed.

Affirmed.

Case Details

Case Name: Wise v. Yazoo City

Court Name: Mississippi Supreme Court

Date Published: Mar 15, 1910

Citation: 51 So. 453

Court Abbreviation: Miss.