Northern Pacific Railway Co. v. McAdow

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. This controversy arises out of a proceeding instituted by the plaintiff under Part III, Title VIl of the Code of Civil Procedure, relating to eminent domain. (Eev. Codes, secs. 7331-7355.) Plaintiff seeks to appropriate to its own use a strip of land 100 feet in width, containing 4.25 acres and extending in a southwesterly direction from its main line, at the city of Bozeman in Gallatin county, through certain blocks in the Northern Pacific Addition to the city, belonging to the defendants William B. and Florence Y. McAdow, its purpose apparently being to occupy the strip as a way for a spur or lateral track to connect its main line with a terminal nearer to the business portion of the city than that now in use. It alleges that to serve its purposes and objects as a common carrier, it is necessary for it to take the land in question and permanently use it for railroad right of way purposes. The defendants Story and Bozeman Milling Company did not appear. The defendants McAdow filed an answer in which they put in issue the necessity of the proposed taking and use, and, as tending to show that the real purpose sought by the plaintiff is not to meet the requirements of its necessity, but to serve its convenience and enhance its profits only, allege the following: That the proposed right of way is sought to enable plaintiff to construct a spur from its main line, which now passes through [553] the city of Bozeman, for the distance of about a mile to a proposed uptown depot; that the plaintiff and its predecessors have for the past twenty-seven years owned a tract of 160 acres of land to the north, northeast and northwest of the strip now sought to be taken which has been occupied by the main line of plaintiff’s road, its freight and passenger depots, yards, etc., with all necessary spurs and sidetracks, and that the said tract is adequate for the necessary use for such purposes; that during the year 1907 plaintiff’s freight depot was destroyed by fire, and that within the past year plaintiff has completed the erection, on said tract, of a large new freight depot, which is ample in size and appointment to supply its needs in this behalf for the present and the reasonably near future; that this depot, with the yards, etc., is only about a mile from the business district of the city, and is practically, if not equally, as close to this portion of the city as any depot used by the plaintiff for the accommodation of its patrons during the period of twenty-seven years; that the proposed new depot would be only one-half mile nearer to the business district of the city, and that it would not enable plaintiff to accommodate or serve with railroad facilities any greater number of people or a greater territory than it can serve with the depot and yards it now has-. To these allegations the plaintiff interposed a general demurrer, which the court sustained, and thereupon, “without proof except the complaint and the admissions and the evidence of the allegations contained in the answer, ’ ’ made and entered an-order of condemnation. The appeal is from the order. 1. It is contended that the court erred in sustaining the demurrer. The position assumed by counsel is, that the plaintiff is entitled to condemn and take the land in controversy if it can show a reasonable necessity for its use; but that neither it nor any other corporation which may take by condemnation can add to its holdings merely to serve its convenience or enhance the profits of its business. After defining what are public uses and enumerating the classes of property which may be taken by the right of eminent [554] domain, the statute (Rev. Codes, sec. 7334) declares: “Before property can be taken it must appear: 1. That the use to which it is to be applied is a use authorized by law. 2. That the taking is necessary to such use. * * * ” That the taking sought is one authorized by law, under proper circumstances, is, in view of the provisions of the Revised Codes as they have been construed by this court, rightly conceded. (Rev. Codes, secs. 3895, 4271, 4275, 7331; State ex rel. Bloomington L. & L. S. Co. v. District Court, 34 Mont. 535, 115 Am. St. Rep. 540, 88 Pac. 44.) In their argument, counsel on both sides have devoted much [1] attention to the question whether the term “necessary,” as used in the statute, imports absolute necessity, or only such as may be characterized as reasonable in view of the purpose to which the property sought to be condemned is to be devoted and the benefits to accrue therefrom to the public. Considering this subject, this court, in Butte, A. & Pac. Ry. Co. v. Montana U. Ry. Co., 16 Mont. 504, 50 Am. St. Rep. 508, 41 Pac. 232, 31 L. R. A. 298, said: “We have used the word ‘necessary’ advisedly throughout this opinion, although when we say that the route chosen by ■ the Butte, Anaconda' & Pacific requires the taking of the lands in question as necessary for public use, we do not mean that there is an absolute necessity of the particular location they seek. But, under the statute, such an absolute necessity is not a prerequisite to the exercise of the law [right] of eminent domain.” In another part of the opinion the rule is stated thus: “It would.be difficult to lay down any specific rule, as to the measure of the necessity, of sufficient scope to include all eases. It may be observed generally that necessary in this connection does not mean an absolute or indispensable necessity, but reasonable, requisite and proper for the accomplishment of the end in view, under the peculiar circumstances of the case. ’ ’ That the appropriation of a particular piece of property would promote convenience of operation and enhance the profits of the [2] business of a railroad company is not alone a sufficient reason for permitting it. The right to take may be of great value to any corporation which may exercise the privilege, “but that [555] is an incident which must be subordinated by the courts to the public use and to the consideration of the benefits to accrue to the public by the construction of the contemplated project.” (Butte, A. & Pac. Ry. Co. v. Montana U. Ry. Co., supra.) Convenience, economy, expedition, and necessity for facilities for competition may all be inducing considerations, in that they all contribute indirectly to efficient service; but a corporation in charge of a public use may not condemn whatever it may find it convenient and advisable to acquire, on the sole ground that it may save expense or add to the profits of the business. (Spring Valley Waterworks v. San Mateo Waterworks, 64 Cal. 123, 28 Pac. 447; Prather v. Railroad Co., 52 Ind. 16; Jefferson v. Hazeur, 7 La. Ann. 182; New York etc. R. R. Co. v. Kip, 46 N. Y. 546, 7 Am. Rep. 385; Eldredge v. Smith, 34 Vt. 484; Fenwick v. East London Ry. Co., L. R. 20 Eq. 544.) The provisions of the Code (secs. 3895, 4271, 4275), supra, are exceedingly liberal in bestowing upon railroad corporations the power to appropriate the property of the citizen to carry forward the public service; but they must nevertheless be interpreted in the light of section 7334; and the rule of necessity as laid down in Butte, A. & Pac. Ry. Co. v. Montana U. Ry. Co., supra, must be determinative of the right to take in each instance. Changing circumstances may render it necessary, from time to time, for the corporation to change the location of its line, or its depots, yards and appurtenant tracks at a particular station, and for this purpose to appropriate additional land (Chicago etc. Ry. Co. v. People ex rel. Langhams, 222 Ill. 396, 78 N. E. 784); yet, the rule of necessity must prevail. Mere desire to effect such a change, or choice of the officers of the corporation to make it, in the absence of some showing that the public welfare will be served by it, is not sufficient. In view of these governing principles, do the facts stated in the answer constitute a conclusive reason why the plaintiff may not appropriate the land in controversy? At best they show only that the plaintiff already has sufficient land to meet its necessities as they have 'existed heretofore. But they do not negative the idea that a change of circumstances wrought by an [556] increase of population, or a revolution or alteration in the business necessities of the community requiring a more economical, expeditious or convenient service, is the motive which prompts the plaintiff, or that circumstances have intervened which have created a necessity for competition by the plaintiff with other carriers. The fact that the plaintiff has recently erected a new freight depot, or that the one now proposed is only half a mile nearer the business district of the city, is not conclusive. Even [3] so, all the allegations are matters of evidence which are competent as reflecting upon the issue of necessity; but it was neither proper nor necessary to plead them. The demurrer was therefore properly sustained. 2. The second assignment presents the question whether, upon the admissions in the answer and without further proof, the court was justified in making the order. Under the rule stated [4] above, the burden was upon the plaintiff to show a necessity for the taking. The facts alleged in the answer do not tend in any way to show such necessity, except so far as it appears from them that the proposed new depot will be half a mile nearer to the business district of the city. Therefore, aside [5] from the expressed desire of the plaintiff to effect the change manifested by its institution of this proceeding, and the possible inference that the new depot might be more conveniently located than the one now in use, there was nothing before the court to justify the order. In view of the direct issue upon the question of necessity, these two inferences alone are not sufficient to sustain it. The circumstances as they actually exist may be such as to justify the proposed appropriation, but they were not made apparent by the proof. The property rights of the citizen cannot be invaded, even for public purposes, except upon a substantial showing that the invasion is necessary. The order is reversed, and the cause is remanded for further proceedings. Reversed and remanded. Mr. Justice Smith and Mr. Justice Holloway concur.