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company, canal company, or even by a private individual. Ownership and use are not synonymous. The constitution is satisfied if the use is public and the public may have the privilege of using the same. The public use is not confined to actual uses by the government or its officers. It is sufficient if of advantage or benefit to the community. Should those to whom is delegated the control of the improvement refuse to allow the public, under reasonable regulations, to enjoy the improvement, their charters or franchises would be subject to forfeiture. It does not signify that profit will accrue to private individuals, or that tolls are charged." The government habitually moves through the agency of employees, and they may be compensated by the profits of the enterprise. No great public work could be completed by the government in which some profit would not accrue to individuals. The agents who accomplish the objects do not determine the public character of the use, but the fact that the public may use and that the improvement may be useful to the public.
§ 14. Means of transportation - Railroads, canals, ferries, roads, and bridges. — The best examples of public use, and the most frequent exercise of the power of eminent domain, occur in securing means of transportation and intercommunication between different portions of the state.? Railroads are compelled by law to transport over their lines, at reasonable times, and at prices frequently limited by law, all such passengers and freight, not of a
1 Concord R. R. o. Greely, 17 N. H. 47; Bloodgood v. Mohawk R. R., 18 Wend. 9; Brown v. Beatty, 34 Miss. 227.
? Olmstead v. Camp, 33 Conn. 532.
Buffalo R. R. v. Ferris, 26 Texas, 588; O'Hara v. Lexington R. R., 1 Dana, 232; Arnold v. Covington Bridge, 1 Duv. 372.
dangerous character, as shall be offered for transportation, and this constitutes the use a public one." Although a railroad corporation may be a private one, yet its work is public as much as if the road were constructed by the state. Upon no other ground than that the purpose is public can the exercise of the power of eminent domain in behalf of such corporations be supported. On this ground alone rests the authority for the issue of bonds to assist railroads, and of taxation to meet the same.3 Railroads are, in fact, public highways. The circumstance that the railroad company uses its own cars exclusively is not material," or that the tolls are collected for its own exclusive use.6 Under the head of railroads may be included lines of tubing for the transportation of oil.' The power of the state to condemn land for the use of canals,& ferries, public roads, turnpikes, 10 and bridges 11 has never been denied. The tolls or profits of all these means of intercommunication may properly be collected by the corporations or individuals owning them. The true criterion by which to judge of the character of the use is whether the public may enjoy it
1 Buffalo R. R. v. Brainard, 9 N. Y. 100; Beekman v. Saratoga R. P.., 3 Paige, 45; Raleigh R. R. v. Davis, 2 Dev. & B. 451; Swan v. Williams, 2 Mich. 427.
2 Pine Grove o. Talcott, 19 Wall. 666; Secombe v. Milwaukee R. R., 23 Wall. 108: Weir v. St. Paul R. R., 18 Minn. 155; Concord R. R. v. Greely, 17 N. H. 47; Brown 0. Beatty, 34 Miss. 227; Swan v. Williams, 2 Mich. 427; Stewart v. Polk County, 30 Iowa, 9.
* Pine Grove v. Talcott, 19 Wall. 666; Stockton R. R. v. Stockton, 41 Cal. 147.
• Railroad v. Chappell, Rice, 383. 5 Bloodgood v. Mohawk R. R., 18 Wend. 9; Swan v. Williams, 2 Mich. 427. • Swan v. Williams, 2 Mich. 427; Bonaparte v. Camden R. R., Baldw. 205.
West Virginia Transp. Co. v. Oil Co., 5 W. Va. 382. * Chesapeake Canal Co. y. Key, 3 Cranch C. Ct. 599; Willyard v. Hamilton, 7 Ohio, pt. 2, p. 111.
• Day v. Stetson, 8 Me. 365. 10 Mount Washington Road, 36 N. H. 134; The State v. Maine, 27 Conn. 641.
11 Arnold v. Covington Bridge, 1 Duv. 372; Palmer v. The State, Wright (Ohio), 364. Bridges are highways as much as any other section of the road. Crosby v. Hanover, 36 N. H. 404.
by right or only by permission, and not to whom the tax or toll for supporting them is paid.
§ 15. Public character of mills. — In the early history of the country, when power to drive mills was almost exclusively confined to water-power, a system of legislation arose for the encouragement of mills, by which the power of eminent domain was delegated to persons desiring to erect mills, enabling them to condemn favorable sites for mills which they could not obtain by purchase on account of the obstinacy of the owners. In Massachusetts and Maine the mill-acts are sustained on account of a policy in force prior to the adoption of their Constitutions. Many of the courts which formerly have sustained the public character of mills, and the propriety of taking private property for that purpose by the exercise of eminent domain, continue to do so with reluctance, and consider that, if the question was brought up for decision anew, the decision would be adverse to the constitutionality of such statutes.? Such statutes are sustained in Massachusetts, Vermont,4 New Jersey, Connecticut, and Tennessee.? In Minnesota 8 and Kansas' they are sustained because other states with similar constitutions have sustained them, although they are considered as going to the extreme of legislative power. The Wisconsin Supreme Court doubt the public character of the
1 Bonaparte v. Camden R. R., Baldw. 205; Rogers v. Bradshaw, 20 Johns. 735; Mount Washington Road, 35 N. H. 134; The State v. Maine, 27 Conn. 641; Wood v. Truckee Turnpike Co., 24 Cal. 474.
2 Occum Co. v. Sprague Co., 35 Conn. 496; Powers v. Bears, 12 Wis. 213; Fisher ». Horicon Co., 10 Wis. 351.
s Hazen v. Essex Co., 12 Cush. 475; Andover v. Sutton, 12 Metc. 182; Boston Mill-Dam v. Newman, 12 Pick. 467.
• Tyler v. Beacher, 44 Vt. 648.
The doctrine is denied in Maine, New York, Georgia, Alabama,' and Michigan. Judge Cooley, in the recent case of Ryerson v: Brown, 35 Mich. 333, has reviewed the entire law on the subject, and the history of the legislation on the subject, and concludes that the question is not one of necessity, but of comparative cost, and that the use is not properly a public one. The Supreme Court of the United States, in Holyoke Company v. Lyman,' recognize to a certain extent the public use of mills, and approve the exercise of eminent domain in cases where, from the nature of the country, mill-sites sufficient in number could not otherwise be obtained. This decision, however, was by Judge Clifford, who was familiar with the long course of decisions in Massachusetts supporting the constitutionality of the millacts, and in a case in error from the state of Massachusetts. The reasons for encouraging mills in early times, when capital was small and steam as a motive-power had not been discovered, have largely ceased to exist, and there is now no reason for indulging owners of mills over owners of public groceries, hotels, or theatres.8
§ 16. Draining of marshes Reclaiming land. - The draining of a marsh, whereby valuable land is reclaimed and the health of the community is improved, is a work of such public benefit as to justify the exercise of the power of eminent domain. It is not an usurpation of judicial functions for
1 Powers v. Bears, 12 Wis. 213.
9 Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Henry v. Thomas, 119 Mass. 583; Dingley v. Boston, 100 Mass. 544; Hartwell v. Armstrong, 19 Barb. 166; Tide-Water Co. v. Coster, 18 N. J. Eq. 518; Norfleet v. Cromwell, 70 N. C. 634; Anderson v. Kerns Draining Co., 14 Ind. 199.
the legislature to declare a marsh a nuisance, and provide for its reclamation.? A dam which flows a large and valuable tract of land may be cut down for the purpose of reclaiming the land and devoting it to tillage. The agricultural interests may be promoted in the exercise of eminent domain as well as any other interest.? Drains which the public may use on proper terms are public. The drainage of one's farm simply to render it more valuable to the owner would not be a public, but a private, undertaking, and it does not make the use more public that the work is done by a corporation formed for purposes of draining. Land may be condemned for the purpose of making sewers to drain a city. In New Jersey 6 and Indiana' the regulations concerning drainage are referred to the police power.
§ 17. School-houses. — Land may be appropriated for the erection of a school-house 8 and for a school-yard. The use proposed is not local and limited, but public. Schools are a public necessity, and as taxation for schools is supported, the exercise of eminent domain is equally justified in providing suitable locations. The use need not be universal.10 The practice of condemnation for this purpose exists without question in many of the states."
§ 18. Facilities for public health recreation Parks Water-works. — Land may be condemned in order
1 Ding'ey v. Boston, 100 Mass. 544.
Talbot v. Hudson, 16 Gray, 417. 3 Norfleet v. Cromwell, 70 N. C. 634. • Anderson v. Kerns Draining Co., 14 Ind. 199. 6 Hildreth v. Lowell, 11 Gray, 345. • The State v. Blake, 36 N. J. L. 442. ? O'Reiley v. Draining Co., 32 Ind. 169. & Township Board v. Hackman, 48 Mo. 243. 9 Williams v. School District, 33 Vt. 271. 10 Williams v. School District, 33 Vt. 271. 11 Peckham v. School District, 7 R. I. 545; Appointment of Viewers, Wyo ming Common Pleas, 4 Leg. Gaz. 410; Long v. Fuller, 68 Pa. 170.