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certain persons have life-estates and others remainders, taking care that the proceeds shall go to trustees for the use and benefit of those having the life-estate and of those having the remainder, as they are entitled under the will. This is depriving no one of his property, but is merely changing real into personal estate, for the benefit of all parties in interest. It is unconstitutional to interfere with the use of private property by prohibiting the owners of land within three hundred yards of fair-grounds from opening stables for the purpose of receiving for pay horses, vehicles, etc., during the continuance of the fair." ;

1 Linsley v. Hubbard, 44 Conn. 109; Sohier v. Massachusetts General Hospital, 3 Cush. 496; Rice v. Parkman, 16 Mass. 326. The Commonwealth v. Bacon, 13 Ky. 210.

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CHAPTER II.

OF USES CONSIDERED PUBLIC..

8 10. Whether the use is public — Province of the legislature.

11. The propriety or policy of the condemnation not a judicial question. 12. How many people must use, in order to make the use public. 13. The public need not own nor operate the improvement – Incidental

private advantage. 14. Means of transportation - Railroads, canals, ferries, roads, and bridges. 15. Public character of mills. 16. Draining of marshes — Reclaiming land. 17. School-houses. 18. Facilities for public health or recreation — Parks — Water-works. 19. Burying-grounds. 20. Encouragement of mines. 21. Improvements unknown to the framers of the Constitution — Miscel

laneous public uses.

§ 10. Whether the use is public — Province of the legislature. — The legislature cannot so determine that the use is public as to make the determination conclusive upon the courts. The attempt of the legislature to determine the public character of the use does not settle that it has the right to do so, but the existence of the public use in any class of cases is a question to be determined by the courts. The presumption is in favor of the public character of a use declared to be public by the legislature, and unless it is seen at the first blush that it is not possible for the use to be public, the courts cannot interfere. There can be no way for courts to be possessed of all the facts

Tyler v. Beacher, 44 Vt. 648; Northern Central Coal Co. v. Coal and Iron Co., 37 Md. 537; Parham v. Justices, 9 Ga. 341; Anderson v. Turbeville, 6 Coldw. 150; Memphis Freight Co. v. Memphis, 4 Coldw. 419; Channel Co. v. Railroad, 51 Cal. 269; Sadler v. Langham, 34 Ala. 311. • West Pennsylvania Inst. v. Edgewood R. R., 79 Pa. 257.

and circumstances which the legislative department had before it in each particular case. An abuse of a general act authorizing condemnation for private purposes will not be tolerated.? The Missouri Constitution of 1875, art. II, sec. 20, provides " that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined, without regard to any legislative assertion that the use is public.”

§ 11. The propriety or policy of the condemnation not a judicial question. - If the use is certainly a public one, then the legislative authority over the subject cannot be restrained or supervised by the courts. Only when it is plainly perceived that there is an attempt to evade the law and procure the condemnation of property for a private use, or to accomplish an end not public in its character, will the courts declare the act void ;8 or if it was doubtful or questionable whether the use was public or not, testimony might be admissible to determine the fact. The legislature is the proper body to determine the necessity of the exercise of the power, and the extent* to which the exercise shall be carried, and there is no restraint upon the power save that requiring that compensation shall be made. As soon as

i Stockton R. R. v. Stockton, 41 Cal. 147.
* Bankhead v. Brown, 25 Iowa, 540.
* Pittsburgh v. Scott, 1 Pa. St. 309.

- North Missouri R. R. v. Gott, 25 Mo. 540; Bonaparte v. Camden R. R., Baldw. 205; Concord R. R. v. Greely, 17 N. H. 47; Hingham Bridye v. Norfolk, 6 Allen, 353; Water-Works Co. v. Burkhart, 41 Ind. 364; Challiss v. Atchison R. R., 16 Kan. 117.

5 County Court of St. Louis County v. Griswold, 58 Mo. 175; Brooklyn Park v. Armstrong, 45 N. Y. 234; Secombe v. Milwaukee R. R., 23 Wall. 108; Weir v. St. Paul R. R., 18 Minn. 155; Dickey v. Tennison, 27 Mo. 373; Tyler o. Beacher, 44 Vt. 648; Haverhill Bridge v. County Commissioners, 103 Mass. 120; John and Cherry Streets, 19 Wend. 659; Bloodgood v. Mohawk R. R., 18 Wend. 9; Harris v. Thompson, 9 Barb. 350; Beekman v. Saratoga R. R., 3 Paige, 45; Coster v. Tide-Water Co., 18 N. J. Eq. 54; Whiteman's Executors o. Wilmington R. R., 2 Harr. 514; Northern Central Coal Co. o. Coal and Iron

the court has arrived at the conclusion that the use is public, then the judicial function is gone, and there is no restraint on the legislative discretion. The degree of public usefulness need not be determined by the court, or whether the proposed plan will accomplish the end desired. Statutes palpably improvident and hasty must still be sustained by the courts. The particular property needed may be pointed out by the legislature,' and the courts cannot consider the question whether or not other land equally feasible can be obtained by purchase. The question of necessity or propriety may be delegated by the legislature to boards of commissioners or to the courts, but in the absence of such delegation the legislative determination is conclusive. Judge Woodbury,' in the case of West River Bridge v. Dix, seemed to doubt whether property which was not absolutely necessary, but only convenient, for public use could be condemned, and indicated that if property could be purchased, it should not be condemned for such purposes as hospitals, court-houses, and jails; but the practice of all the states and of the Federal government, since that time, in condemning land for such purposes has been so frequent that the legislative control over the necessity and the particular location is almost universally conceded. The present New York doctrine is that the court is to determine, upon the application by a railroad company to acquire lands, the question of the necessity and extent of the appropriation, and that

Co., 37 Md. 537; Anderson v. Turbeville, 6 Coldw. 150; Bankhead v. Brown, 25 Iowa, 540.

1 Dietrich v. Murdoch, 42 Mo. 279.
? West Pennsylvania Inst. v. Edgwood R. R., 79 Pa. 257.
3 Smedley v. Erwin, 51 Pa. 445.
• Aldridge v. Tuscumbia R. R., 2 Stew. & P. 199.
6 Giesy v. Cincinnati R. R., 4 Ohio St. 308.

6 Lecour v. Police Jury, 20 La. An. 318; Power's Appeal, 29 Mich. 504. The decision of a municipal corporation, to which is delegated certain powers of condemnation, is not always conclusive on the courts. Milwaukee R. R. t. Faribault, 23 Minn. 167. ? 6 How. 507.

the land-owner may contest the question. The burden is on the company to show the necessity.

§ 12. How many people must use, in order to make the use public. It is not essential that the whole community, or any considerable portion thereof, should directly enjoy or participate in an improvement, to make the use public. If the proposed improvement tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the community, the use is public. The use, to be public, must concern the community, but not necessarily every individual in the community, or that every individual should have an equal interest. The legislature determines the sufficiency of the number of people to be benefited in order to constitute the use a public one. Water-works for a particular town are for the public use. Ways denominated private, which the public may use, are sustained as constitutional. A park may be established in a county, in such a place that it could be beneficial only to a city immediately adjacent. Although the city is a distinct municipality, it is still a part of the county, because the greater portion of the population of the county may be in the city.”

Own

13. The public need not nor operate the improvement - Incidental private advantage. — It is not necessary that the public should own the property taken. It may be owned by a private corporation, such as a railroad

I Matter of New York Central R. R. 66 N. Y. 407.

Talbot v. Hudson, 16 Gray, 417; O'Reiley v. Draining Co., 32 Ind. 169. 8 Gilmer v. Lime Point, 18 Cal. 229. • Aldridge v. Tuscumbia R. R., 2 Stew. & P. 199. 5 Inhabitants of Wayland v. Middlesex, 4 Gray, 500.

6 Sherman v. Buick, 32 Cal. 241; Warren v. Bunnell, 11 Vt. 600; Killbuck Private Road, 77 Pa. 39; Sadler v. Langham, 34 Ala. 311; Shaver v. Starrett, 4 Ohio St. 494.

7 County Court of St. Louis v. Griswold, 58 Mo. 175.

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