In re Theresa Drainage District

63 N.W. 288, 90 Wis. 301, 1895 Wisc. LEXIS 280

• Court: Wisconsin Supreme Court
• Decided: May 15, 1895
• Status: Published

Opinion

Newman, J.

It is settled law in this state that private property can be taken in im/oitum for a public use only. For a private use it cannot he taken. Wis. Water Co. v. Winans, 85 Wis. 26, 39. It is also settled that to dig ditches or drains across the lands of private owners, under an apparent legislative authority, is a taking of the lands. Mills, Em. Dom. § 30; Smith v. Gould, 61 Wis. 31; Donnelly v. Decker, 58 Wis. 461. The question presented for decision is whether the digging of the ditches and drains and the construction of the levees and other works contemplated by the statute under consideration is for a public use.

The provision of the statute is: “ If it shall appear to the court that the proposed drain or drains, ditch or ditches, levee or levees, or other works, is or are necessary or will be useful for the drainage of the lands proposed to be drained thereby, for agricultural, sanitary or mining pv/t'jyoses” the court shall appoint commissioners. Laws of 1891, eh. 401. There is in the entire statute no expression or intimation that it was any part of the consideration upon which the improvement should be authorized that it should be either necessary or desirable to promote any public interest, convenience, or welfare. No doubt, such an improvement may be useful to some, or perhaps many, private owners of land, by way of increasing the usefulness and value of their lands. But that is merely a private advantage. It interests the public only indirectly and remotely, in the same way and sense in which the public interest is advanced by the thrift and prosperity of individual citizens. Donnelly v. Decker, 58 Wis. 461. Some home or homes might be made more cheerful aucl more healthful. But one man’s property cannot be taken to make another man’s home more cheerful or healthful. It is only when it will make the homes of the public more healthful that any man’s property can be taken 'for “ sanitary purposes.”

But it is urged that the term “ sanitary purposes ” comprehends and imports the idea of the public health. If so, it might save this statute. "Webster defines the word “sanitary ” as “ pertaining to or designed to secure sanity or 'health.” The Century dictionary defines it as “ pertaining to health or hygiene, or the preservation of health.” It will be seen that the word is of purely abstract meaning. It is utterly devoid of any suggestion of numbers or of public or private relation. It imports neither. Eor such purpose it is strictly neutral and impartial. "Without some qualifying word it is inoperative to designate the purpose as a public one or as in the interest of the public health.

It is, no doubt, for the legislature to specify the use and purpose for which it authorizes private property to be appropriated. It should be expressed clearly; for it cannot be enlarged by a doubtful construction, nor be presumed to be larger than the purpose which is expressed. Dill. Mun. Corp. (4th ed.), § 603. This is not a question of the construction of ambiguous words or terms. But it is an entire fa.il-mre to express in any form that the taking of property for which it provides is to be for a public use. So it must be held that it does not provide for a taking for a public use. It could not lawfully provide for a taking for any other than a public use. It cannot support proceedings for the condemnation of lands as for a public use. It is entirely invalid. The proceedings should have been dismissed.

By the Court.— The.order of the circuit court is reversed, and the cause remanded with directions to dismiss the proceedings.