Mr. Justice Wolverton,
after stating the facts in the foregoing terms, delivered the opinion of the court.
1. It is first insisted that the City of Dallas is without competent authority to institute condemnatory proceedings of the nature here in progress, but it is quite apparent that section 51 of the charter, as amended in 1903 (Sp. Laws 1903, p. 671), confers ample power for the purpose.
2. It is next urged that the complaint does not state facts sufficient to constitute a cause of action, because (1) [251]*251it is not shown that the property and rights sought to be appropriated and condemned are necessary and convenient for the purposes contemplated ; (2) that the city is pro ceeding by resolution, and not by ordinance, as required by the charter; and (3)that it is transcending its powers in leasing the plant,.instead of operating the same upon its own account. Of these in their order.
It may be premised in this connection that a motion was interposed after verdict for judgment notwithstanding in favor of defendants for a dismissal of the action, which reserves the questions suggested for our- consideration. Section 51 of the charter, among other things, authorizes and empowers the city to construct, operate, and maintain waterworks within or without its limits for the purpose of supplying the city and its inhabitants with water, and to charge tolls therefor, and to that end to purchase all real property, whether located within or without its limits, necessary for reservoirs, pumping stations, other buildings, and pipe lines, and all waters of lakes and streams and riparian rights necessary or convenient therefor, and, if unable to agree with the owner of any such property for the purchase thereof, to appropriate and condemn to its own use for the purposes aforesaid any and all such real property, waters, streams, and riparian rights; the proceedings in such action to condemn to be the same as those provided by the laws of Oregon for the condemnation of lands for railway purposes; and for the purposes indicated to issue interest-bearing negotiable coupon bonds, to the amount of $25,000, to run not more than twenty years, and to draw interest not to exceed the rate of five per cent per annum. Within the intendment of this section, the complaint should undoubtedly show by appropriate allegations that the property and rights sought to be condemned were necessary, or at least convenient, for [252]*252the construction, maintenance, and operation of waterworks for the city’s use and benefit.
The general rule applicable where it is sought to take lands or property of another and appropriate them to a public use or benefit is that the necessity therefor must not only be averred, but proved, and that it must further appear that the party seeking the appropriation has been unable to agree with the-owner for the purchase thereof: 7 Ency. Pl. & Pr. 528; Fork Ridge B. C. Assoc. v. Redd, 33 W. Va. 262 (10 S. E. 405); City of Helena v. Harvey, 6 Mont. 114 (9 Pac. 903); Portland & G. Tpk. Co. v. Bobb, 88 Ky. 226 (10 S. W. 794). Whether a proposed use is in fact public, so as to justify the taking of private property without the consent of the owner, is a matter for judicial determination ; but the question of the necessity, propriety, or expediency of appropriating such property to such an use, and the extent to which it shall be taken, rest wholly in legislative discretion, subject only to the restraint that just compensation must be made: Bridal Veil Lum. Co. v. Johnson, 30 Or. 205 (46 Pac. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818); Apex Transp. Co. v. Garbade, 32 Or. 582 (62 L. R. A. 513, 52 Pac. 573); Fanning v. Gilliland, 37 Or. 369 (82 Am. St. Rep. 758, 61 Pac. 636, 62 Pac. 209); Shoemaker v. United States, 147 U. S. 282, 298 (13 Sup. Ct. 361); Secombe v. Railroad Co. 90 U. S. (23 Wall.) 108, 118.
3. When, therefore, the use is determined or admitted to be public, as it is here, and the legislature has declared that private property necessary or convenient to that use may be taken in furtherance of the enterprise, the poAver to take is complete. It then becomes a matter for the municipality or incorporation authorized to exercise the right of eminent domain to show by apt allegations and proofs the necessity or convenience for the appropriation of the property sought to be condemned to such an use. The complaint here is manifestly sufficient in that par[253]*253ticular. The allegations bearing upon the subject may not be as direct as they might have been, but they show by all reasonable intendment that the property sought to be condemned is necessary for the use designated. It is suggested that it ought to have been alleged that the property was both necessary and convenient for the contemplated use; but this is not the mandate of the charter, and it is quite sufficient that it is shown to be necessary.
4. In this connection, we will determine another question cognate thereto, which is pertinently presented by the attempt of the defendants to show under their second further and separate answer that it was more convenient and less expensive for the city to procure a supply of water from Ellendale Creek, which flows into La Creole Creek below the water power of Mrs. Hallock, instead of Canyon Creek, and therefore that the city ought not to be permitted to prosecute the present action to condemn; in other words, the objection goes to the necessity of the particular property for the use designed, not that it is excessive, thus conceding that some property was necessary thereto, hut not that which it is here sought to have condemned. “ But,” says Mr. Lewis, “ this objection is unavailing. Except as specially restricted by the legislature, those invested with the power of eminent domain for a public purpose can make their own location according to their own views of what is best or expedient, and this discretion cannot he controlled by the courts”: 2 Lewis, Em. Dom. (2 ed.) 891. Mr. Chief Justice Dixon indicates the reason for the rule, and states the consequences of the doctrine insisted upon here with convincing power in. Ford v. Chicago & N. W. R. Co. 14 Wis. 609, 617 (80 Am. Dec. 791). He says : “So far as the judge placed his decision on the ground that there was no necessity of appropriating the street to the use of the railroad, because there were other adjoining lands which could he as conveniently occupied for that [254]*254purpose, he was clearly in error. The propriety of taking property for public use is not a judicial question, but one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in such manner and form as may be prescribed. * * Whether the company should appropriate this particular piece of land or that to the use of the road was, therefore, under their charter, a matter which was committed entirely to their discretion; and the logic of the county judge, if good for anything, would be sufficient to defeat the company’s location of the line of their road in ninety-nine cases out of every hundred, for in about that proportion of instances the land selected is not so indispensably necessary that some other might not be taken without very great inconvenience.” So it is said in St. Louis, I. M. & S. Ry. Co.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Wolverton,
after stating the facts in the foregoing terms, delivered the opinion of the court.
1. It is first insisted that the City of Dallas is without competent authority to institute condemnatory proceedings of the nature here in progress, but it is quite apparent that section 51 of the charter, as amended in 1903 (Sp. Laws 1903, p. 671), confers ample power for the purpose.
2. It is next urged that the complaint does not state facts sufficient to constitute a cause of action, because (1) [251]*251it is not shown that the property and rights sought to be appropriated and condemned are necessary and convenient for the purposes contemplated ; (2) that the city is pro ceeding by resolution, and not by ordinance, as required by the charter; and (3)that it is transcending its powers in leasing the plant,.instead of operating the same upon its own account. Of these in their order.
It may be premised in this connection that a motion was interposed after verdict for judgment notwithstanding in favor of defendants for a dismissal of the action, which reserves the questions suggested for our- consideration. Section 51 of the charter, among other things, authorizes and empowers the city to construct, operate, and maintain waterworks within or without its limits for the purpose of supplying the city and its inhabitants with water, and to charge tolls therefor, and to that end to purchase all real property, whether located within or without its limits, necessary for reservoirs, pumping stations, other buildings, and pipe lines, and all waters of lakes and streams and riparian rights necessary or convenient therefor, and, if unable to agree with the owner of any such property for the purchase thereof, to appropriate and condemn to its own use for the purposes aforesaid any and all such real property, waters, streams, and riparian rights; the proceedings in such action to condemn to be the same as those provided by the laws of Oregon for the condemnation of lands for railway purposes; and for the purposes indicated to issue interest-bearing negotiable coupon bonds, to the amount of $25,000, to run not more than twenty years, and to draw interest not to exceed the rate of five per cent per annum. Within the intendment of this section, the complaint should undoubtedly show by appropriate allegations that the property and rights sought to be condemned were necessary, or at least convenient, for [252]*252the construction, maintenance, and operation of waterworks for the city’s use and benefit.
The general rule applicable where it is sought to take lands or property of another and appropriate them to a public use or benefit is that the necessity therefor must not only be averred, but proved, and that it must further appear that the party seeking the appropriation has been unable to agree with the-owner for the purchase thereof: 7 Ency. Pl. & Pr. 528; Fork Ridge B. C. Assoc. v. Redd, 33 W. Va. 262 (10 S. E. 405); City of Helena v. Harvey, 6 Mont. 114 (9 Pac. 903); Portland & G. Tpk. Co. v. Bobb, 88 Ky. 226 (10 S. W. 794). Whether a proposed use is in fact public, so as to justify the taking of private property without the consent of the owner, is a matter for judicial determination ; but the question of the necessity, propriety, or expediency of appropriating such property to such an use, and the extent to which it shall be taken, rest wholly in legislative discretion, subject only to the restraint that just compensation must be made: Bridal Veil Lum. Co. v. Johnson, 30 Or. 205 (46 Pac. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818); Apex Transp. Co. v. Garbade, 32 Or. 582 (62 L. R. A. 513, 52 Pac. 573); Fanning v. Gilliland, 37 Or. 369 (82 Am. St. Rep. 758, 61 Pac. 636, 62 Pac. 209); Shoemaker v. United States, 147 U. S. 282, 298 (13 Sup. Ct. 361); Secombe v. Railroad Co. 90 U. S. (23 Wall.) 108, 118.
3. When, therefore, the use is determined or admitted to be public, as it is here, and the legislature has declared that private property necessary or convenient to that use may be taken in furtherance of the enterprise, the poAver to take is complete. It then becomes a matter for the municipality or incorporation authorized to exercise the right of eminent domain to show by apt allegations and proofs the necessity or convenience for the appropriation of the property sought to be condemned to such an use. The complaint here is manifestly sufficient in that par[253]*253ticular. The allegations bearing upon the subject may not be as direct as they might have been, but they show by all reasonable intendment that the property sought to be condemned is necessary for the use designated. It is suggested that it ought to have been alleged that the property was both necessary and convenient for the contemplated use; but this is not the mandate of the charter, and it is quite sufficient that it is shown to be necessary.
4. In this connection, we will determine another question cognate thereto, which is pertinently presented by the attempt of the defendants to show under their second further and separate answer that it was more convenient and less expensive for the city to procure a supply of water from Ellendale Creek, which flows into La Creole Creek below the water power of Mrs. Hallock, instead of Canyon Creek, and therefore that the city ought not to be permitted to prosecute the present action to condemn; in other words, the objection goes to the necessity of the particular property for the use designed, not that it is excessive, thus conceding that some property was necessary thereto, hut not that which it is here sought to have condemned. “ But,” says Mr. Lewis, “ this objection is unavailing. Except as specially restricted by the legislature, those invested with the power of eminent domain for a public purpose can make their own location according to their own views of what is best or expedient, and this discretion cannot he controlled by the courts”: 2 Lewis, Em. Dom. (2 ed.) 891. Mr. Chief Justice Dixon indicates the reason for the rule, and states the consequences of the doctrine insisted upon here with convincing power in. Ford v. Chicago & N. W. R. Co. 14 Wis. 609, 617 (80 Am. Dec. 791). He says : “So far as the judge placed his decision on the ground that there was no necessity of appropriating the street to the use of the railroad, because there were other adjoining lands which could he as conveniently occupied for that [254]*254purpose, he was clearly in error. The propriety of taking property for public use is not a judicial question, but one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in such manner and form as may be prescribed. * * Whether the company should appropriate this particular piece of land or that to the use of the road was, therefore, under their charter, a matter which was committed entirely to their discretion; and the logic of the county judge, if good for anything, would be sufficient to defeat the company’s location of the line of their road in ninety-nine cases out of every hundred, for in about that proportion of instances the land selected is not so indispensably necessary that some other might not be taken without very great inconvenience.” So it is said in St. Louis, I. M. & S. Ry. Co. v. Petty, 57 Ark. 359, 369 (21 S. W. 884, 886, 20 L. R. A. 434): “Having determined that the side tracks are necessary for the conduct of the company’s business, the location must be left to the company’s discretion, unless there is a very clear abuse of it.” See, also, Rialto Irrig. Dist. v. Brandon, 103 Cal. 384 (37 Pac. 484). The City of Dallas is empowered, under section 51 of its charter, to condemn property necessary for the use contemplated, and no limitations or restrictions are imposed confining its choice to any particular property. It has a discretion, within reasonable limits, as to the kind and capacity of the plant it may install, and so it has a discretion, within like limits, to choose the source of its water supply, the route of its pipe lines, and the location of its reservoirs and pumping stations, and, unless there is a clear abuse of it to the detriment of private individuals and property rights, the courts cannot interfere to control it.
5. The second point relates to the manner in which the city shall exercise the power to condemn. By section 27 of the charter the city is accorded power to do many things, [255]*255among which (subdivision 35) to provide the city with good and wholesome water for domestic, fire, and power purposes, and for the erection, construction, or purchase of such waterworks and reservoirs within or without the limits of the city as may be necessary or convenient therefor ; but the cost of the erection, construction, or purchase of such works is to be provided for in the manner prescribed in section 51. The same power is also granted by section 51, as amended, and, as we have seen, the costs attendant upon the purchase or construction of such waterworks may be provided for by the issuance of bonds of a kind therein designated. By section 28 it is provided that the power and authority granted by section 27 can only be exercised or enforced by ordinance, unless otherwise specified. By Besolution No. 17 the city attempted to make selection of the water and property rights it desired to appropriate, and by the same resolution it provided for submitting the question whether the city should acquire, institute actions to condemn, and make payment for such property and rights to the taxpayers for their determination. Now, the power conferred, within the purview of section 27, is to erect, construct, or purchase waterworks. Section 51, as amended, provides as well the means for procuring property necessary to that purpose in case a purchase cannot be had, and to that end confers the power to exercise the right of eminent domain. The two powers are manifestly distinct, the latter not being included in section 27, but only being conferred by section 51 as amended. The resolution was a step in the direction of an exercise of the latter power, looking to the condemnation of the property, and, although in aid of the construction and maintenance of waterworks, is not within the inhibition of proceeding otherwise than by ordinance. The resolution being adequate for the purpose, therefore, the second objection is unavailing. Section 51 originally [256]*256merely authorized the city to issue $25,000 interest-bearing bonds. The amendment confers additional powers, as we have seen, and limits the purpose for which they may be issued; but such powers as do not come within the purview of section 27 may as well be exercised by resolution as by ordinance.
6. The third reason assigned wherein the complaint is insufficient involves two objections. One proceeds upon the ground that the act of leasing the plant as contemplated by Ordinance No. 23 is ultra vires, and the other that the steps prescribed by the charter (Sp. Laws 1901, §§ 52-56) for issuing and disposing of the bonds for the purpose of raising the means with which to pay for the plant have not been taken, it being insisted that all of these provisions of the charter must be complied with before the city can lawfully acquire the requisite rights of way, water, and water rights and privileges necessary to the construction of such waterworks. The defendants do not claim to be residents or inhabitants of the city, or taxpayers therein, so as to question the regularity of the proceedings by which the city is attempting to procure the construction of the waterworks system, and the only matters in which they are concerned are the existence of the municipality as a corporation with power to exercise the right of eminent domain, the necessity for taking the property for the public use designated, and the injuries they will sustain by the taking. Whether the city intends leasing the plant when it has acquired it, or has not provided the ready funds with which to pay for its construction, cannot affect them in the least. The contract contemplates that the city shall own the system when completed, and the fact that the builder, as a part consideration for its construction, is to take as lessee the tolls for a term of years, cannot affect the right to construct, and for that purpose to acquire the easements necessary thereto; so that defendants cannot [257]*257complain or object to the exercise by the city of the right of eminent domain on that account. For a discussion of the principles here involved, see State v. Newark, 54 N. J. Law, 62 (23 Atl. 129).
7. The city is authorized and empowered to contract for the construction of a waterworks system, as well as to purchase, and it is not necessary that it provide at once for meeting the payments contemplated. This it can do at another time. But if it should be required to provide immediately for such payments, it is difficult to understand howit could affect these defendants. The contractor might insist upon it, but why is it necessary that it should be done that the city might exercise the right of eminent domain in securing the rights of way for pipe lines, water, and water rights and privileges requisite to the construction of the system ? It is neither expressly nor impliedly made a condition precedent thereto, nor do we think that a reasonable interpretation in pari materia of all the sections of the charter bearing upon the subject requires, that the whole should be provided for at one and the same time, and especially does it not require that the bonds shall be issued and disposed of and the money actually in hand before the city can exercise the right accorded it to acquire the property and privileges necessary to the initiation of the work of construction.
It is said in argument that the city has no authority to pay the money necessary to the appropriation out of the general fund, and that the sale of the bonds is the exclusive source from which it could be derived. Grant it. The defendants, not being taxpayers or residents within the city, cannot be affected thereby, and their demands are subserved when the money is paid into court for them. Where it comes from—whether from one fund or another, or whether paid by the city or a stranger—cannot affect [258]*258them injuriously. It is no defense to condemnation proceedings begun by a city for such purpose that the general fund is insufficient to defray the current expenses of the city, because it is said the landowner is not concerned in .the city’s ability to pay, as he is not required to give credit': In re Application of Cedar Rapids, 85 Iowa, 39, 43 (51 N. W. 1142). So it is here. The defendants are not concerned in the source from which they are to receive their compensation. It is enough that it has been actually provided for them, and is ready for their acceptance : Secombe v. Railroad Co. 90 U. S. (23 Wall.) 108, 118.
8. Another argument we will notice in passing is that the city should have proceeded in its condemnatory proceedings under the general laws (B. & C. Comp. § 5108), and submitted the question of whether it would institute the action to condemn and make payment for the property involved to a vote of the taxpayers. We think, however, this is not required, as the charter has authorized the condemnatory proceedings, and prescribes only that the proceedings in such action to condemn shall be the same as those provided by the general laws for condemnation for railway purposes. But, if it be conceded that counsel’s contention is correct that the question alluded to should have been submitted to a vote of the taxpayers, it may be answered that that is just what Eesolution No. 17 provided for.
There was another question presented, relative to the time of taking effect of the act of the legislature amending section 51 of the city charter, in view of the emergency clause adopted with it; but it is fully settled and determined by the late case of Kadderly v. Portland, 44 Or. 118 (74 Pac. 710). These considerations affirm the judgment of the trial court, and such will be the order here.
Affirmed.