Bloomfield & Rochester Natural Gas Light Co. v. Richardson

63 Barb. 437, 1872 N.Y. App. Div. LEXIS 128

• Court: New York Supreme Court
• Decided: September 10, 1872
• Status: Published

Opinion

By the Court, Talcott, J.

The respondent is a corporation, created under the act of 1848, to authorize the formation of gas companies. The object of the formation of the company was to utilize the illuminating and combustible gas,, naturally flowing from what is termed a gas well, situate in Bloomfield, in the county of Ontario, and about thirty miles from the city of Rochester. By an act passed May 9, 1870, to grant additional powers to the Bloomfield and Rochester Natural Gas Light Company, it is provided that the company, in addition to the powers and franchises, conferred upon it by the general statute, and the acts amendatory thereof, should have the right and power to conduct the gas from said 'gas well to any city, town or village within thirty miles therefrom, and situated within the counties of Ontario, Livingston or Monroe, by mains, conduits or pipes in any such city, town or village, to sell and supply gas for lighting the streets, public parks, dwellings and other buildings therein; and that in any such city, town or village, to or through which the corporation should conduct its gas, it should have the rights and powers conferred by section 18 of the said general statute, and the acts amendatory thereof, the same, to all intents and purposes, as if said gas were manufactured, and said corporation thus located, and its business operations conducted, in said respective cities, towns or villages. The act further provides that, in case it shall be necessary for the corporation to take private property for said purposes, and it cannot agree with the owners and occupants, then such proceedings - may be had, for the purpose of acquiring' the right to take such property for.any purpose authorized by this act, or the said general law, as is provided for acquiring the title to real estate by railroad corporations, under the provisions of the general railroad act; and that any real estate so acquired for the purposes aforesaid, shall be deemed to be acquired for public use.

The corporation is engaged in the enterprise of conveying the gas from the well to the city of Rochester, and for such purpose desires to lay its mains under the surface of a highway leading from Henrietta to the city of Rochester. The appellants are the owners of certain lands along which the highway passes, and own the fee of the land in front of their premises, to the center of the highway.

The corporation desires to lay its mains under the surface of that portion of the highway the'fee of which is in the appellants, and has been unable to agree with the appellants as to the amount of compensation to be paid to them for the right and privilege. Thé corporation, therefore, applied to the special term for the appointment of commissioners of appraisement, in the manner prescribed in the general railroad act. An order appointing such commissioners was made by the special term, from which order the appellants appeal.

On this appeal, the question presented is, whether the right thus sought to be acquired by the corporation is a public use, so that the legislature is authorized in furtherance of it, to exercise the right of eminent domain, and to confer the power to exercise that right upon the respondent. Most of the principles involved in the discussion of this appeal have been authoritatively settled.

In Bloodgood v. The Mohawk and Hudson River R. R. Co., (18 Wend. 9,) it was settled by the court of last resort that the power to exercise the right of eminent'domain, where such right exists, may be conferred upon a corporation, acting in its own interests, and for purposes of private profit. In that case the principle was declared in a resolution adopted by the court, and afterwards made a part of its judgment, in the following words : “ It is declared and adjudged that the legislature of this State has the constitutional power and right to authorize the taking of private property for the purpose of making railroads and other public improvements, paying the owners of said property full compensation therefor, whether, such public improvements are made by the State itself, or through the medium of a corporation or joint stock company.” The same doctrine had been previously declared in Beekman v. The Saratoga and Schenectady R. R. Co., (3 Paige, 45.)

This power had been assumed by the legislature from time to time, from the early history of the State. For instance, in 1792 the legislature conferred the right of eminent domain on certain lock navigation companies. (2 Greenl. Laws of N. Y. 427.) In 1825 the Granville Canal Company was incorporated with the right of eminent domain. (Laws of 1825, p. 306.) Since this power began to be exercised by the legislature, two new constitutions have been created, without any change in the provision by which the right to take private property for public use is limited. And the constitution of 1846 was framed and adopted subsequent to the formal adjudication of the court of errors which has been referred to, and which attracted much professional and general attention at the time. 'So that it may be considered as settled, in this State, that the right to take private property for*what is a public improvement, may be conferred upon any parties who are, or propose to be, engaged in the making of such improvement.

It is equally well settled that in order to constitute a public use, within the meaning of the constitution, it is not necessary that the improvement should directly benefit the people of the whole State; but the direct public benefit contemplated may be confined to a particular community. Such is the case in regard to many highways, and especially in cases where the right to exercise the power of eminent domain in the particular case has been conferred upon persons authorized to conduct water from a distance to supply particular localities, and the case of grounds taken for burial places. (See act of May 9, 1870.) Nor is it essential to the exercise of this right that the taking of the property in question should be absolutely necessary to accomplish the object.

It is said by the chancellor, in the case of Beekman, before referred to: “ It belongs to the legislature to determine whether the benefit to the public is of sufficient importance to justify their exercise of the right of eminent domain in thus interfering in the private rights of individuals. * * * But if the public interest can in any way be promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain. It is upon this principle that the legislatures of several of the States have authorized the condemnation of the lands of individuals for mill sites.

•Upon the same principle of public benefit, not only the agents of the government, but also individuals and corporated bodies, have been authorized to take private property for the purpose of making public highways, turnpikes, roads and canals, of erecting and constructing wharves and basins, of establishing ferries, of draining swamps and marshes, of bringing water to cities and villages. In all such cases, the object of the legislative grant of power is, the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, through the medium of corporate bodies, or of individual enterprise.” The .principles stated by the chancellor, as quoted, were afterwards substantially reiterated by the court of errors in the case of Bloodgood, (supra,) and again by the Court of Appeals in the Buffalo and N. Y. R. R. Co. v. Brainard, (5 Seld. 109,) where it is said: “ It belongs to the legislative power of the government to determine for what public purposes private property shall be taken, and the necessity or expediency of such appropriation.”

These principles undoubtedly constitute the law of this State, and furnish the rule by which the provision of the' constitution limiting the right to take private property for public use is to be interpreted. Unquestionably, to a certain limited extent, the constitutionality of an act of the legislature assuming to confer this right, is .a judicial question. That is to say, a case'may be supposed, in fact such cases have arisen, where the legislature has assumed to pass enactments, the effect of which, if valid, was merely to divest one citizen of his property for the benefit of another, without the semblance of any public benefit. When such a case arises, where the absence of all pretense of public benefit is clear and palpable, it' will be of course the duty of courts to declare the act unconstitutional and void, not as an authorized taking of private property for public use, but as an attempt to take it for private use. But in order to authorize a court thus to interpose its veto upon a legislative act, it must be clear and manifest that no public use was contemplated, or public benefit is to result.

The provision of the constitution referred to, does not purport, and was not designed, to define or limit the nature of the use for which private property can be taken, but only to require absolutely that in all cases where the property was taken for a public use, just compensation should be provided for and made.

If these suggestions are correct, it will be seen that the power of the court, on questions of this character, is circumscribed within very narrow limits. If the act which confers the right to take private property has for its objects, or one of its objects, the promotion of an enterprise which we can see may be for the public benefit, or in the language of the judgment of the court of errors, may constitute “ a public improvement,” and it at the same time provides for the payment of a full compensation to be ascertained in the manner pointed out by the constitution, the power of the legislature to make the law must be affirmed, whatever may be thought of- the propriety of its exercise.

We have, then, only to inquire, in this case, whether the object for which the power to exercise the right of eminent domain has been attempted to be conferred upon the “ Bloomfield and Rochester Natural Gas Light Company,” is one which, although the parties engaged in the enterprise may be actuated solely by the inducement of private gain, can yet fairly be supposed to be a matter in which the public of a particular community, or various communities, may be benefited.

As we have seen, the object of the act conferring the special powers upon this company, is to authorize the conducting of the gas from the natural gas well to any city, town or village within a certain distance and there to sell and supply the gas for lighting the streets and public parks, as well as dwellings and other buildings.

It is unnecessary, in this case, to enter into any discussion as to whether the lighting of the dwelling of an individual, or any number of such dwellings, for the convenience of the occupants, can be considered a public use, since one of the objects of the act in question is to facilitate the lighting of the streets and public places. Is the lighting of the streets and public places a public benefit? The modern practice of the civilized world answers the question. But it is said that a gas company already exists in Rochester, which is ready to supply all gas which may be needed. The same answer, in principle, might be made to almost any attempt to take any particular property for any particular public use. In almost all cases, it could be demonstrated that the particular method by which the legislature has attempted to authorize the public benefit to be conferred, or the particular property proposed to be taken, is not absolutely necessary to the accomplishment of the object. If the court can see that a public benefit is contemplated, the mode and method and means of producing this result must belong to the legislature to be authorized in its discretion. It may be that the quality or price may influence the legislature to select one method over another. It must be a matter wholly resting in legislative discretion, or else the power is nugatory.

Side by side with the gas mains of this company, leading to the city of Rochester, and, as was stated on the argument, at the very locality where the question in this case arises, are also placed the main conduits of the “ Rochester Water Works Company,” upon which the legislature conferred the right to conduct water from a distance for the purpose of supplying the city with water, together with the power to take such private property as should be necessary in accomplishing the object.

This court has had occasion to confirm an appraisal of damages under the provisions of the water works charter conferring the right to take private property.

But it might well be alleged that Rochester might be supplied with water from other sources, and even within the city itself. The use of gas for illuminating purposes has become almost a necessity of modern civilization. The right to take the private property of those who own the fee of streets and highways may be absolutely necessary to the public enjoyment of the benefits of this invention, and we think there can be no doubt, upon principle and upon the adjudicated cases, that the conduction of illuminating gas, with such public objects as are specified in' the act conferring the special powers upon this company, is within the category of those public improvements to enable which to be carried out, the legislature may confer upon the parties engaged in the enterprise, the right to take the private property necessary to effect the object, upon making compensation according to the constitution.

It is a somewhat remarkable circumstance that the legislature has never yet, so far as we can discover, found it necessary to confer this power upon gas companies using manufactured gas. The general act for the formation of gas light companies, passed in 1848, contains no-such power; nor, so far as we have discovered, has it been conferred in any special charter or statute, except in the case of this company, the Westfield Gas Company, (Laws of 1860, p. 203,) and the Getzville Mining Company, (Laws of 1866, p. 63,) all three of which are- companies formed for conducting natural gas to certain localities. We are not aware that any obj ection has hitherto been interposed by any owner of the fee of a street or highway to the use of so much thereof as is necessary or proper for the conduction and distribution of gas, until this case; 'yet it is manifest that if the parties objecting, in this case, can succeed in preventing the use of a part of the land in the Highway for the purpose here proposed, so may any owner of the fee of any street in a city or town, prevent the use thereof for a like purpose, though the gas be manufactured within the limits of the city or town.

[Fourth Department, General Term, at Rochester, September 10, 1872.

The fact that no such opposition has been heretofore attempted may bp taken as evidence, at all events, of very general acquiescence in the proposition that the conduction and distribution of illuminating gas is a public object and for the public benefit. The mere nominal damages likely to be awarded to the owner of the fee for laying a gas pipe under ground through a highway, have not been a sufficient inducement to the parties technically interested to insist on the formality of an appraisal.

As the supposed constitutional objection which has been considered is the only one of importance which is made, to the appointment of commissioners, in this case, the order appointing them must be affirmed.

Order appealed from affirmed.

Mullin, Johnson and Talcott, Justices.]