Chicago, M. & St. P. R. v. Mason

McCOY, J. This is a proceeding instituted by the respondent, — 566 — Chicago, Milwaukee & St. Paul Railroad Company, a corporation, 'under the statute' of this state, to condemn 34.8 acres of land belonging to the appellant, George Mason. Respondent in its petition, in substance, alleges that it is a railway corporation organized under the laws of the state of Wisconsin, and for many years last past has owned, operated, and maintained lines of railroad within this state, and that one of these lines enters .the state at its easterly boundary in the county of Lincoln, and extends westward through said county .into and across the counties of Turner, McCook, Davison, Aurora, and so on westward; that as such railroad cor.poration it conducts and carries on a large and important traffic as a common carrier in the transportation of passengers and freight; 'that, in order to maintain, operate, and repair its roadbed and tracks in a safe condition for the transaction of its business, it is necessary that it should have gravel beds in order that it might be able to ballast its traclqs and keep its roadbed in a safe condition for use; that its said line of railroad crosses the west half of the southwest quarter of section 8, township 103, range 66, in Aurora county, and that tire appellant, George Mason, is the owner of said tract of land and of that part thereof lying north of the right of waof this petitioner, containing 34.8 acres; that now it is necessary to ballast, with gravel its tracks upon its roadbed and to rise gravel to keep its roadbed and tracks in a safe condition for a .long distance along its said line both east and west of the 'place where its said right of way crosses the said land of the said George Mason; that it has no gravel nearer than xoo miles and more from said real estate, and that, in order to obtain a supply of gravel sufficient for its said use, the appellant desires, and it is necessary ' for ft to take and appropriate and condemn, the whole of the said 34.8 acres of said land so owned by said Mason, and that it has 'determined that it is neqessary to take the said tract of land for the said purpose; thát the petitioner and the said defendant, George Mason, are unable to agree upon the terms or 'consideration for tlie transfer'to this plaintiff of the said' real estate, and that this petitioner says that by reason of its being invested by law with the right .and privilege of. taking .and appropriating said property, and of damaging the same for the said purposes and uses hereinbefore — 567 — stated, it has determined to exercise the right of taking the said described land and the whole thereof for the said purpose as provided by law, and to condemn all of the said 34.8 aqres of said land for the public use aforesaid as contemplated by the laws of this state pertaining tO' eminent domain. The said cause was placed on the calendar for trial, and, upon call of the case the defendant, Mason, appeared and made the following motion: “Comes now the defendant, George Mason, and moves the court to dismiss the petition of the plaintiff for the reason that the same does not state facts authorizing the condemnation of the property sought to be condemned.” This motion was overruled, and the defendant duly excepted. Evidence was then adduced by the petitioner tending to substantiate the allegations of said petition, and also to show the value of the said land sought to be condemned. The question of the value of said land was submitted to a jury under instructions of the court, and a verdict returned finding the damages for the taking of said land tobe $2,000, and that, upon the payment of said amount, the plaintiff shall have the title to said land for the purposes of obtaining gravel for use upon its railroad bed for ballast, and also for keeping its roadbed in a safe and sceure condition for use. From the judgment thus entered the defendant Mason, as appellant, brings the cause to this court by appeal, contending, first, that under the law of this state respondent has no right or authority under any circumstances to condemn the land in question which lies outside of the right of way for the purposes alleged, but we are of the opinion that subdivision 4, § 488, Rev. Civ. Code, which provides that a railway corporation shall have power to lay out its road not exceeding 100 feet in width, and to construct the 'same, and for the purposes of obtaining gravel to take as much land' as may be necessary for the proper construction, operation, and security of the road, .sufficiently authorizes a railway corporation to condemn land for the purpose of obtaining gravel under the allegations and .evidence 'in the case. The appellant further contends that the evidence in this case is wholly insufficient to show that the necessity exists, or has been shown to exist, for the condemnation, but we are of the opinion that in this contention the appellant is in error, and that the tidings of the circuit court are — 568 — fully sustained by the evidence. We are of the opinion that, under the law of this state, the question of the existence of the aieces-sity for exercising the right of eminent domain, where it is first shown that the use is public, is not open to judicial investigation and determination, but that the body having power to exercise the right of eminent domain is also invested with power to determine the existence of the necessity; that by the statutes of this state the Legislature, in whom this power originally existed, has delegated the power determining the necessity to those bodies authorized to exercise the -right of eminent domain. In the absence of some constitutional or statutory provision to the contrary, the necessity and .expediency of exercising the right of eminent domain are questions political, and not judicial. The determination of those questions belongs to the sovereign power. The legislative determination is conclusive, and the courts have no power to review, unless so authorized. While the Legislature may itself exercise the right of determining the necessity for the exercise of the power to condemn, it may, unless prohibited by Constitution, delegate the power to public officers -or to private corporations established to carry on .enterprises in which the public are interested, and their determination that -a necessity exists is conclusive. It is generally held that, in the abses-nce of any statutory provision submitting the question of necessity to the courts, the decision of the question lies with the body to whom the state has delegated the authority to take, and there is no restraint in this power except as to compensation. 15 Cyc. 629; Smith v. Gould, 59 Wis. 631, 18 N. W. 457; Gibson v. Cann, 28 Colo. 499, 66 Pac. 879; Waterbury v. Platt, 76 Conn. 435, 56 Atl. 856; O’Hare v. Chicago Railway Co., 139 Ill. 151, 28 N. E. 923; Barrett v. Kemp. 91 Iowa 296, 59 N. W. 76; Eastern Ry. Co. v. Boston Ry. Co., 111 Mass. 125, 15 Am. Rep. 13; State v. Rapp, 39 Minn. 65, 38 N. W. 926; In re N. Y. Cent. Ry. Co., 77 N. Y. 248. It is never permissible for a company or individuals invested with the power to exercise the right of eminent domain tq appropriate more land than is necessary for its use, and the courts have power to prohibit excessive appropriation, or the taking of .land not within the scope of the purpose required, and the courts have power to determine whether — 569 — the use for which private property proposed to be taken under authority authorized by Legislature is in fact a public use or not. 15 Cyc. 632; Smith v. Gould, supra; St. Louis v. Griswold, 58 Mo. 175. Where a duly incorporated company authorized by statute to take land for public use exercises the right of eminent do • main in good faith and is not guilty of oppression, its discretion m the selection of land will not be' interfered with by the courts. Postal Tel. Co. v. Oregon Short Line, 23 Utah, 474, 65 Pac. 735, 90 Am. St. Rep. 705; Piedmont Cotton Mills v. Georgia Ry. Co., 131 Ga. 129, 62 S. E. 52. It is a matter of common knowledge that gravel may be used to advantage in maintaining a railway track and keeping it in proper condition for traffic, and the Legislature of this state has delegated to the railway corporations by section 488, Rev. Civ. Code, power to take land for the purpose of obtaining gravel, and the railway company thus empowered is the judge of the conditions rendering it necessary to use gravel for such purpose, and we are of the opinion that the amount of land taken in this instance is not excessive, and that there is nothing in the taking or selection of the locality for the condemnation from which fraud or oppression might be inferred. On the trial the appellant offered to prove the value per yard of gravel and sand as la method of arriving at the value of the land, taken in connection with an estimate of the number of cubic yards of gravel and sand on the 34.8 acres of land in question. The offer was objected to as immaterial, and not a proper measure of damage, and to the ruling of the court sustaining the objection the appellant excepted, and now urges that such ruling was error. But we are of the opinion that the objection was properly sustained. The estimate as to the number of cubic yards of sand and gravel is speculation only, and would afford no true or reasonable rule as to the value of the land. The jury were instructed that they should allow the appellant the full market value of the 34.8 acres of land taken for any and all uses to which said land might be put in view and in the light of present business conditions, and those that might be reasonably expected in the immediate future, together with such damages as appellant might suffer to' t'he remaining portion of his farm by reason of having the 34.8 .acres taken therefrom, and ;it occurs to — 570 — us that the learned trial court properly submitted the question of damage to the jury. Finding no error in the record, the judgment of the circuit court is affirmed.