Wisconsin Water Co. v. Winans

Oassoday, J. The statutes provide, in effect, that for the construction and maintenance of waterworks for the supply of any city or village in this state, or the inhabitants thereof, with water for protection against fire, or for domestic use or sanitary purposes, every corporation formed for such purpose under the laws of this state is hereby authorized to acquire the title in fee simple to, or such easement in, or servitude upon, all such lands as may be necessary for the construction or maintenance of such works, and to hold and use the same for that purpose; and such lands and interests therein may be acquired by such corporations in the manner provided by secs. 1845-1857, R. S. Sec. 9275, S. & B. Ann. Stats.; ch. 325, Laws of 1882; ch. 165, Laws of 1883. Such a corporation may, it would seem, be formed in the manner prescribed by ch. 86, R. S., as amended,— although such purpose is not specifically named in sec. 1771,— in view of the context and the provisions of the act giving such authority to such corporation, and the general clause in the section last cited, which reads: “ Or for any lawful business or purpose whatever, except the business of banking, insurance, building or operating public railroads, or plank or turnpike roads, or other eases otherwise specially provided for.” This seems to be broad enough to authorize the formation of corporations “for the construction and maintenance of waterworks for the supply of any city or village in this state, or the inhabitants ” thereof, “ with water for protection against fire, or for domestic use or sanitary purposes.” The question here involved is whether the record presents a case authorizing the petitioner to condemn the la nds described in the petition for the purposes mentioned. The contest is not one between the petitioner and the village of Waukesha or its inhabitants, or the owners of rival springs, but, so far as the law is concerned, the contest is solely between the petitioner and the owners of the lands sought to — 39 — be condemned. “ The property of no person shall be taken for piMio use without just compensation therefor.” Sec. 13, art. I, Const. Wis. It is firmly settled that the legislature has no power to authorize the taking of private property for a private use without the owner’s consent, even upon the making of just compensation therefor. Pratt v. Brown, 3 Wis. 612; Osborn v. Hart, 24 Wis. 89; Culbertson v. Coleman, 47 Wis. 200; Embury v. Conner, 3 N. Y. 511, 53 Am. Dec. 325, and notes; Cole v. La Grange, 113 U. S. 1; Lewis, Em. Dom. § 157. This court' has repeatedly held, in effect, that the question of the necessity for taking lands for public use by right of eminent domain is one to be determined by the legislative department of the government. Smeaton v. Martin, 57 Wis, 364; Smith v. Gould, 59 Wis. 641; State ex rel. Baltzell v. Stewart, 74 Wis. 630. See U. S. v. Oregon R. & N. Co. 16 Fed. Rep. 524, 14 Am. & Eng. R. Cas. 23. Thus, it is said by Mr. Lewis, in the work mentioned, that “ the necessity, expediency, or propriety of exercising the power of eminent domain, and the extent and manner of its exercise, are questions of general policy, and belong to the legislative department of the government.” Lewis, Em. Dom. § 162. So, this court has held, in the cases cited, that while the necessity for such taking is to be determined by the legislature, yet it may delegate the exercise of such right to town or municipal officers. While the legislature cannot divest itself of sovereign powers, yet in the exercise of such powers it may select such agencies as it pleases, and confer upon them the right of taking private property for public use, subject only to the-limitations contained in the constitution. Lewis, Em. Dom. § 242. “ It may be regarded as settled law that it is solely for the legislature to judge what persons, corporations, or other agencies, may properly be clothed with this power.” Ibid., and cases there cited. The question of such necessity, however, seems to be entirely distinct from the question of — 40 — such public use. Of course, the legislature or its agency must, in the first instance, determine whether the use for which it is proposed to make the condemnation is a public use; but such determination is not final as to the character of the use. Lewis, Em. Dom. § 158. In the same section it is said: “ All the courts, we believe, concur in holding that whether a particular use is public or not, within the meaning of the constitution, is a question for the judiciary.” See, also, Talbot v. Hudson, 16 Gray, 417; In re Deansville Cemetery Asso. 66 N. Y. 569; In re Niagara Falls & W. R. Co. 108 N. Y. 375; Coster v. Tide-Water Co. 18 N. J. Eq. 54; In re St. Paul & N. P. R. Co. 34 Minn. 227; Tyler v. Beacher, 44 Vt. 648; Smeaton v. Martin, 57 Wis. 364. It would be very difficult, if possible, to define in a single sentence just what constitutes a public use, as determined by the adjudged cases. Mr. Lewis says, in effect, that it is the power of the “ state to appropriate private property to particular uses for the purpose of promoting the general welfare” (sec. 163); that “public use means the same as use by the public, and this, it seems to us, is the construction the words should receive in the constitutional provision in question ” (sec. 165). “ Though the property is vested in private individuals or corporations, the public retain certáin definite rights to its use or enjoyment, and to that extent it remains under the control of the legislature. If no such rights are secured to the public, then the property is not taken for public use, and the act of appropriation is void.” Ibid. The mill-dam act was upheld in this state, on the ground that 'the land flowed by virtue of it, and the water power thereby created, was devoted to a public use. Thien v. Voegtlander, 3 Wis. 461; Pratt v. Brown, 3 Wis. 603; Fisher v. Horicon Iron Mfg. Co. 10 Wis. 351. Where such mill is engaged in doing custom work for any and all who apply, it may well be regarded as devoted to a public — 41 — use. Sadler v. Langham, 34 Ala. 325. So, it lias been held in this state that the taking of land for the construction of a ditch to drain a public highway is the taking of it for a public use. Smeaton v. Martin, 57 Wis. 364. Waterworks for the supply of a city or village in this state, or the inhabitants thereof, with water for protection against fire, or for domestic use or sanitary purposes, may be devoted to the general welfare of such municipality or its inhabitants, and, if so devoted, we perceive no reason why they should not be regarded for the public use. Attorney General v. Eau Olaire, 37 Wis. 400; Wayland v. Middlesex Co. Comm’rs, 4 Gray, 500; In re Middletown, 82 N. Y. 196; Stamford Water Co. v. Stanley, 39 Hun, 424; In re New Rochelle Water Co. 46 Hun, 525; St. Helena Wader Co. v. Forbes, 62 Cal. 182. In Kentucky it has been held that “ necessity and a public use must, in all cases, exist as a condition precedent to the legal right of a railway company to enforce the remedy given by a charter to condemn property.” Tracy v. E., L. & B. S. R. Co. 80 Ky. 259, 14 Am. & Eng. R. Cas. 407. In the same case it was held that “ the company is not the judge of the necessity for the condemnation of the property, or of the character of its use. The decision of both of these questions belongs to the court.” In In re Niagara Falls & W. R. Co. 108 N. Y. 375, it was held, in effect, that a railroad corporation seeking to take property in inritum for the purposes of its road must be able to show, first, a legislative warrant; and, secondly, if the right is challenged, that the business it is organized to carry on is public, and that the taking of private property for its purposes is,a talcing for public lose; and that the question as to whether the uses are in fact public, so as to justify such taking, is a judicial one, to be determined by the courts. See, also, Citizen's Waterworks Co. v. Parry, 59 Hun, 202, affirmed 128 N. Y. 669; — 42 — Edgewood R. Co.'s Appeal, 79 Pa. St. 257; Sterling's Appeal, 111 Pa. St. 35. U pon the authorities cited, as well as reason, we are constrained to hold -that a legislative warrant of the necessity of the taking, and that the same is for a public use, must coexist as conditions precedent to the right of condemnation in all cases. Especially should this be so where,, as here, the corporation is created by the incorporators under the general laws. Here, as indicated in the foregoing statement, the petitioner only seeks to condemn for its pipe line from its springs in Waukesha, by way of Darling place, to the city limits of Milwaukee. There is nothing in the record showing any legal right in the petitioner to enter upon or condemn land in that city. It does not appear that the petitioner has secured, by way of contract or otherwise, the right to construct or maintain waterworks or to lay pipe therein, or to sell or dispose of the water so to be conveyed by pipes to the inhabitants of that city. Eor aught that appears, such pipe line may terminate at such city limits, or the water to be conducted through the same be there put to private use. There can be no public use, except in supplying the city or its inhabitants with water for the uses and purposes mentioned. Until the right to so supply the city or its inhabitants with water is secured, there can be no right to condemn. The declared purpose of the petitioner is to take the water from its springs, and convey it through the pipes to be laid to the city, and there to supply the city or its inhabitants. The transportation is purely incidental to such supply for such public use in the city. Without the right in the petitioner to so supply for such public use, the condemnation here sought, to lay such pipe, would necessarily be independent of such public use. It is entirely unlike a railroad, which is used by the public along the whole line. In the — 43 — case at bar the right to so supply for such public use at the terminus gives character to the whole enterprise. We are forced to the conclusion that the showing made was insufficient to authorize such condemnation. By the Court.— The order of the circuit court is reversed, and the cause is remanded with direction to dismiss the proceedings.