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of Alabama, Georgia, Michigan, New York, person interested in the property “to be Vermont, and West Virginia.”

taken or injured to be ascertained,” etc. In The supreme court of the state of Massa- other words, it is a statute authorizing the chusetts, and other courts, and the Su- taking or injuring of private property preme Court of the United States, have sus- under the right of eminent domain. If it tained acts which gave the right to have the were otherwise, there could be no question, damages assessed for overflowing the lands under our decisions, and in fact under the of another by the erection of dams for decisions of all the courts, including the operating mills and other machinery, not Supreme Court of the United States, that upon the right of eminent domain, but on the right which appellant seeks to enforce the theory that the statutes do not author- by his petition—that is, to overflow apize the taking or damaging of private pellee's lands—would amount to taking its property at all; that is, that “it is not a property. Nevins v. Peoria, 41 Ill. 502, 89 right to take and use the land of the pro- Am. Dec. 392; Rigney v. Chicago, 102 Ill. prietor above against his will, but it is an 64. Lewis, in his work on Eminent Domain, authority to use his own land and water 2d ed. § 183, says: “There can be no quesprivilege to his own advantage and for the tion, it seems to us, but that the flooding benefit of the community. It is a provision of land by a milldam is a taking. It interby law for regulating the rights of pro- teres with the right to have the water of the prietors on one and the same stream, from stream fiow off in its accustomed manner, its rise to its outlet, in a manner best and excludes the owner from the use and calculated, on the whole to promote and enjoyment of so much of the land as is secure their colomon rights in it.” Bates covered by water, and may greatly deteriov. Wcymouth Iron Co. 8 Cush. 548, ap-rate that which is not flooded. This has proved and adopted in Head v. Amoskeag been expressly held to be a taking by the Mfg. Co. 113 U. S. 9, 28 L. ed. 889, 5 Sup. Supreme Court of the United States and by Ct. Rep. 441. These and other cases also almost every court in the Union;" citing seem to proceed upon the idea that that Pumpelly v. Green Bay & M. Canal Co. 13 which is a public benefit amounts to a pub- Wall. 166, 20 L. ed. 557. At $ 67 he further lic use.

says:

“Where works are constructed leAs already said, the validity of our low the lands of a proprietor, such as present statute, in so far as it extends the bridge or dam or alteration of the channel, right of condemnation to sawmills or other which causes the water to set back and overpublic mills or machinery, or to improve fiow the land of such proprietor, there is a the navigation of any stream water violation of such right, and if the works are course on which tlie same may be situated, authorized by law there is a taking, for "for the use of such mill or machinery,” has which compensation must be made," citing never been passed upon by this court; and cases from almost all the states. it seems clear that, in view of the language It is also the settled doctrine of this of the statute, the Constitution of this state, court that, to constitute a public use, someand the holdings of this court as to what is thing more than a mere benefit to the pub9 public use, within the meaning of the lic must flow from the contemplated imConstitution, and what a taking or damag. provement. The public must be to some ing of private property, there is no escape extent entitled to use or enjoy the property, from the conclusion that it must be held not as a mere favor or by permission of the unconstitutional and void. In reaching owner, but by right. Chicago & E. I. R. Co. this conclusion it is not necessary to dissent v. Wiltse, 116 Il. 449, 6 N. E. 49; Sholl v. from the views of the Supreme Court of the German Coal Co. 118 Ill. 427, 59 Am. Rep. United States and other courts holding a 379, 10 N. E. 199; Chicago Dock & Canal similar doctrine, for the reason that our Co. v. Garrity, 115 Ill. 155, 3 N. E. 448; statute is in no sense confined to the ascer- Millett v. People, 117 Ill. 294, 57 Am. Rep. tainment of damages or just compensation 869, 7 N. E. 631. It may be doubted whether for overflowing the lands of another, but the legislature, in fact, intended to extend authorizes the proceeding whenever "it the right of eminent domain to other than shall be necessary to take or injure private public gristmills. It carefully defines such property without the owner's consent, and mills, and prescribes the duties of the prothe compensation therefor cannot be agreed prietors thereof, and the rights of the pubupon by the parties interested." The neces- lic, making no mention whatever as to what sity may or may not arise from the flowage is meant by the expression, "other public of the lands of another. Moreover, it, by mill or machinery." What is a public mill? express terins, authorizes the owner, etc., What is a public machinery ? We find "to take or injure private property," and al- | nothing in the statute or elsewhere answerlows the assessment of damages or compen- ing these inquiries, nor is there anything sation to be paid to the owner or other ' in petitioner's petition indicating what kind

or

of "other public machinery” he is about to question would be somewhat different from build. It is apparent that he does not seek what it is now. But even in such case it merely to establish the right to build a pub. would be essential that the statute should lic grist mill, but, as shown by his petition, require the use to be public in fact; in other his purpose was and is to take or injure the words, that it should contain provisions enproperty of appellee for the purposes of titling the public to accommodations. A other mills or machinery. The evidence flouring mill in this state may grind ex. which was heard by the court below fully clusively the wheat of Wisconsin, and justifies the conclusion that for all the sell the product exclusively in Europe; purposes of a public gristmill his own and it is manifest that in such a property affords ample facilities for the pro- case the proprietor can have no valid duction of more power than could be prac- claim to the interposition of the law ticably used for a gristmill. Moreover, if to compel his neighbor to sell a business the taking of private property for other site to him, any more than could the manupublic mills or machinery is not for a pub- facturer of shoes or the retailer of groceries. lic use, it must be conceded, at most, that

The statute appears to have been he seeks to condemn private property for a drawn with studious care to avoid any republic and a private use, which the law will quirement that the person availing himself not permit him to do. Chicago & N. W. R. of its provisions shall consult any interest Co. v. Galt, 133 Ill. 657, 23 N. E. 425, 24 N. cxcept his own, and it therefore seems E. 674. In 1 Lewis Em. Dom. 2d ed. 8 perfectly manifest that, when a public use 206, note 33, it is said: “Thus, under an is spoken of in this statute, nothing further act for the erection of gristmills, an order is intended than that the use shall be one of the court condemning land for a grist that, in the opinion of the commission or mill, sawmill, and papermill is void;" jury, will in some manner advance the pubciting authorities. Our statute does not lic interest. But incidentally every lawful authorize a condemnation proceeding for the business does this. · · Undoubtedly improvenient of the navigation of a stream there may arise circumstances under which generally, as counsel seem to argue, but it would be convenient if a power to cononly "for the use of such mill or machinery.” demn lands for mill purposes might be exerHence, if the object is to improve the navi- cised, but they are so rare that a stretch of gation of the Des Plaines river for tlie use governmental power in order to provide for of public mills or machinery other than them would be more harmful than benefipublic gristmills, the improvement of the cial.” This reasoning is peculiarly applicanavigation is no less a taking of private ble to our statute and this case. The property for private use than the erection Michigan statute was in that decision held of "other public mills or machinery." If unconstitutional, and the proceeding disthe petitioner can maintain this petition, he missed. To the same effect are Loughcan undoubtedly establish and operate, by bridge v. Harris, 42 Ga. 500; Tyler v. the water power acquired, every species of Beacher, 44 Vt. 648, 8 Am. Rep. 398; Sadmachinery, and establish any kind of manu- ler v. Langham, 34 Ala. 311; and McCulley factories, or he may transmit and sell the v. Cunningham, 96 Ala. 583, 11 So. 694. power wherever he can find a market for it. In Harding v. Goodlett, 3 Yerg. 41, 24 This would certainly be carrying the right Am. Dec. 546, the petitioners sought to conof eminent domain to an alarming and demn land for a gristmill, sawmill, and dangerous extent.

paper mill under a statute of that state Passing upon the validity of an act of the giving the right of eminent domain to one state of Michigan, enacted in 1865, not desiring to erect a water gristmill. The materially different from the Illinois statute supreme court sustained the statute on the of 1872, the supreme court of that state, in ground that n gristmill is a public mill, and Ryerson v. Brown, 35 Mich. 333, 24 Am. the miller a public servant, under the Rep. 564, said (Mr. Chief Justice Cooley statutes of Tennessee, but denied the petirendering the opinion): “Unlike the act tion, and in its opinion used the following of 1824, the act of 1865 [Laws 1865, p. 651, language: “The petitioners say they are No. 304] clearly appears to contemplate desirous to build a gristmill, sawmill, and other mills than those for the grinding of paper mill.

The sawmill and grain. The title of the act would indicate paper mill have no public character.

The a purpose to give every species of manu- erection of these mills would be wholly for facture wirich could profitably be carried on the private use of these petitioners.

Το by means of water power the benefit of its take Harding's land for such use would be provisions.

If the act were limit. unconstitutional. The act of 1777 (chap. ed in its scope to manufactures which are 23) contemplates ro such violation of the of local necessity, as gristmills are in a new rights of one man for the private benefit of country not yet penetrated by railroads, the another. Had the application been con

not

has

de

fined to the sawmill and paper mill, no one

ing a stockholder's lifetime, but could for a moment hesitate in rejecting it.

distributed as dividends until after his death, Does the introduction of the gristmill,

is income, and goes to a life tenant under his

will, and not to a remainderman, although thereby asking the land for these compli

the dividend amounts to 20 per cent of the cated purposes, alter the case ? In my face value of his stock. opinion, the application is entitled to no 2. Stock dividends declared after the more favor than if nothing were said about death of a stockholder who the gristniill. If an application of this sort

vised his stock in trust to pay the net in

come to a life tenant and the principal to a were granted, a like application for, the

remainderman are to be held for the benefit erection of iron works, or any other estab

of the remainderman, whether the earnings lishment requiring water power, might be which they represent accrue before or after made, and would be entitled to equal favor, the death of tbe testator. provided the applicant, as a pretext, were 3. The right to subscribe to additional to associate a gristmill with his other

stock at par, accorded to persons holding

shares of stock in trust to pay the net inworks. Thus the gristmill, the only thing

come to life tenants and the principal to a mentioned in the act of assembly as having

remainderman, is part of the capital to be any claim to be of a public character, held for the benefit of the remainderman, would be made the subterfuge for vesting in whether the shares are actually subscribed one citizen the land of another, and of giv

for, or the right is sold for a valuable con

sideration. ing to the whole establishment, of which it would be but an inconsiderable appendage,

(October 26, 1903.) the high appellation of a public mill. This would be mocking the citizen, who would

A

PPEAL by plaintiffs from a judgment of thus be despoiled of his land to enrich an- the Branch Appellate Court, First Disother. It would be holding out the idea trict, reversing a decree of the Circuit Court that his land was taken for a public use, for Cook County in favor of the life tenant and that the public exigencies required it, in a proceeding to determine the ownership when in fact this was only used as a pretext of dividends declared by corporations. Affor obtaining the land for private emolu- firmed. ment."

The facts are stated in the opinion. We are clearly of the opinion that, in so Mr. David Fales, for appellants : far as the statute of 1872 attempts to The cash dividend declared by the Pullauthorize the condemnation of private man Palace Car Company is income, and beproperty for the purposes of public mills or longs to the life tenant. machinery other than public gristmills, it 9 Am. & Eng. Enc. Law, 2d ed. pp. 710is violative of that provision of our Consti- 713; Cook, Stock & Stockholders, $$ 552 et tution which declares that private property seq.; Bates v. Mackinley, 31 Beav. 280; shall not be taken or damaged for public Richardson v. Richardson, 75 Me. 570, 46 uise without just compensation, the meaning Am. Rep. 428; Minot v. Paine, 99 Mass. 101, of which is that private property shall be 96 Am. Dec. 705; Johnson v. Johnson, 15 taken for no other than a public use, and Jur. 714; Perry, Trusts, $ 544; Reed v. then only upon the payment of just compen- Head, 6 Allen, 174; Leland v. Hayden, 102 sation, and that on that ground alone the Mass. 542; Waterman v. Alden, 42 Ill. App. circuit court would have been justified in 295. sustaining the motion to dismiss appellant's The stock dividends issued by the Pull. petition.

man Palace Car Company, the Chicago TelWithout reference, therefore, to other ephone Company, the Pullman Loan & Savquestions raised and discussed in the argu- | ings Bank, and the Chicago, Rock Island, & ment of counsel, the order and judgm of Pacific Railway Company are all dividends the Circuit Court of Will County will be af- of the earnings and income of the said corfirmed.

porations, respectively, and belong to the

life tenant. Annie L. DE KOVEN et al., Trustees, etc., N. Y. 137, 64 N. E. 796; 2 Thomp. Corp.

Lowry v. Farmers' Loan & T. Co. 172 of John DeKoven, Deceased, et al., Appts.,

$8 2192, 2193; Cook, Stock & Stockholders,

$$552 et seq.; Clarkson v. Clarkson, 18 John DeKoven ALSOP et al.

Barb. 646; Rigys v. Cragg, 26 Hun, 89; (205 Ill. 309.)

Goldsmith v. Smith, 25 Hun, 201; Re Ker. 1. Money earned by a corporation dur

nochan's Estate, 104 N. Y. 618, 11 N. E. 149; Note.-As to rights of life tenants and re- Pritchett V. National Trust Co. 33 L. R. A. maindermen with respect to stock dividends, 856; McLouth V. Sexton, 39 L. R. A. 230; see also, in this series, Spooner v. Phillips, 16 Quinn v. Safe Deposit & T Co. 53 L. R. A. L. R. A. 461, and note; Hite v. Hite, 19 L. 169. R. A. 173; Mills v. Britton, 24 L. R. A. 536 ;

V.

Re Warren, 2 Connolly, 411, 11 N. Y. Supp. Bouch v. Sproule, L. R. 12 App. Cas. 398; 787; McLouth v. Hunt, 154 N. Y. 179, 39 L. Gibbons v. Mahon, 136 U. S. 551, 34 L. ed. R. A. 230, 48 N. E. 548; Downing's Estate, 525, 10 Sup. Ct. Rep. 1057. Law Journal, July 8th, 1899; Hite v. Hite, The accumulated earnings in treasury of 93 Ky. 257, 19 L. R. A. 173, 40 Am. St. Rep. the Pullman Palace Car Company at the 189, 20 S. W. 778; Pritchitt v. Nashville death of testator was a fund of one characTrust Co. 96 Tenn. 472, 33 L. R. A. 856, 36 ter only. A portion of said fund was not S. W. 1064; Waterman v. Alden, 42 Ill. corpus, and the other part corpus, but was App. 295; Thomas v. Gregg, 78 Md. 545, 28 all, accumulated earnings in the treasury of Atl. 565.

the corporation. The will affirmatively gives the net income If the part given as cash dividend was not to the life tenant. There is nothing in the corpus, and was given to the life tenant, the will that takes it away from the life ten other part remaining appropriated to the ant and gives it to the remaindermen. The stock dividend was not corpus. cash dividend and the stock dividend are McLouth v. Hunt, 154 N. Y. 179, 39 L. such net income.

R. A. 230, 48 N. E. 548; Paris v. Paris, 10 Pritchitt v. Nashville Trust Co. 96 Tenn. Ves. Jr. 185; Morawetz, Priv. Corp. § 468; 479, 33 L. R. A. 856, 36 S. W. 1064; Clark. Thomp. Corp. § 2222; Lowry v. Farmers' son v. Clarkson, 18 Barb. 646.

Loan 6 1. Co. 172 N. Y. 137, 64 N. E. 796; Whether the will provides that the life Aite v. Hite, 93 Ky. 257, 19 L. R. A. 173, tenant shall have the "income,” "entire in- 40 Am. St. Rep. 189, 20 S. W. 778. come," "dividends," "dividends or profits," In making the stock dividend, the corpo“dividends, interest, and profits,” has no sig. ration parts with the right and power to nificance. They are all synonymous expres- further declare dividends of the earnings sions.

which by the stock dividend it has made, Hooper v. Rossiter, McClel. 536; Reed fixed, and established. v. Head, 6 Allen, 177; Andrews v. Boyd, Morawetz, Priv. Corp. § 471; Riggs v. 5 Me. 202; Earl v. Roue, 35 Me. 420, 58 Am. Cragg, 26 Hun, 89. Dec. 714; 1 Lindley, Partn. chap. 1, 16 Mr. E. A. Otis, with Messrs. Otis & et seq.; People es rel. McMaster v. Niagara Graves, for appellees : County, 4 Hill, 23.

The language of the will is highly restricA stockholder has no legal or equitable tive in its character, and, if the testator had title to the surplus earnings, income, or intended that it should embrace all stock profits of a corporation until the declaration dividends, he would have employed other of a dividend.

and more appropriate terms to accomplish Cook, Stock & Stockholders, 545; Mor- that purpose. awetz, Priv. Corp. $8 450, 451 et seq.; Spooner v. Phillips, 62 Conn. 62, 16 L. R. Greeff v. Equitable Life Assur. Soc. 160 N. A. 461, 24 Atl. 524. Y. 19, 46 L. R. A. 228, 73 Am. St. Rep. The meaning and intent of the testator 659, 54 N. E. 712; Burden v. Burden, 159 must be determined from the whole will and N. Y. 287, 54 N. E. 17; Jermain v. Lake all its parts. Shore & M. S. R. Co. 91 N. Y. 483; Park v. Harrison v. Weatherby, 180 Ill. 439, 54 Grant Locomotive Works, 40 N. J. Eq. 114, N. E. 237; Dickison v. Dickison, 138 Ill. 3 Atl. 162; Button v. Hoffman, 61 Wis. 20, 541, 32 Am. St. Rep. 163, 28 N. E. 792. 50 Am. Rep. 131, 20 N. W. 667; Queen v. The dividends mentioned in the bill should Arnaud, 9 Q. B. 806; Browne v. Collins, L. be distributed under what is known as the R. 12 Eq. 594.

Massachusetts rule. This rule regards all On petition for rehearing.

cash dividends, whether large or small, as A court of chancery has power to inves- income, and all stock dividends, whenever tigate the entire transaction, and to look to earned, and however declared, as capital. the origin of the dividend, to determine what Waterman v. Alden, 42 Ill. App. 294, 144 is income and what is capital.

Ill. 90, 32 N. E. 972; Minot v. Paine, 99 Heard v. Eldredge, 109 Mass. 258, 12 Mass. 101, 96 Am. Dec. 705; Gibbons v. Am. Rep. 687; Daland v. Williams, 101 Mahon, 136 U. S. 549, 34 L. ed. 525, 10 Sup. Mass. 574; Moss's Appeal, 83 Pa. 264, 24 Ct. Rep: 1057; Richardson v. Richardson, 75 Am. Rep. 164; McLouth v. Hunt, 154 N. Y. Me. 570, 46 Am. Rep. 428; Davis v. Jackson, 179, 39 L. R. A. 230, 48 N. E. 548; Sproule v. 152 Mass. 58, 23 Am. St. Rep. 801, 25 N. E. Bouch, L. R. 29 Ch. Div. 638, 653; 2 Thomp. 21; Re Brown, 14 R. I. 371, 51 Am. Rep. Corp. § 2192; Pritchitt v. Nashville Trust 397; Millen v. Guerrard, 67 Ga. 284, 44 Am. Co. 96 Tenn. 477, 33 L. R. A. 856, 36 s. Rep. 720; Mills v. Britton, 64 Conn. 4, 24 W. 1064; Lowry v. Farmers' Loan & T. Co. L. R. A. 536, 29 Atl. 231; 2 Cook, Corp. § 172 N. Y. 137, 64 N. E. 796.

454 ; 5 Am. & Eng. Enc. Law, p. 738, 2d ed. The courts look at the substance and form p. 716. of the transaction.

In the event the court shall decide that

the Massachusetts rule is not in force in Il- | stocks are a part of the capital or corpus of linois, then the stock dividends in contro- said estate, to be held by the trustees as a versy must be controlled by the Pennsylva- part thereof. That decree, upon appeal to nia rule. Under it the court, in disposing the appellate court for the first district, was of stock or property dividends as between reversed by the branch of that court, in life tenant and remainderman, may proper part, in a carefully considered opinion by ly inquire as to the time when the fund, out Freeman, J. The reasoning and much of of which the extraordinary dividend is to the language of that opinion will be adopted be paid, was earned or accumulated. If it here. is found to have accrued or been earned be- The question for determination is whethfore the life estate arose, it is held to be er any or all of these dividends and rights principal, and, without reference to the time are to be considered “net income,” within when it is declared or made payable, to be the meaning of the provision of the will long to the corpus of the estate, and not above referred to, payable to the testator's to go to the life tenant.

wife as the life tenant, or whether they con2 Cook, Corp. § 554; Earp's Appeal, 28 stitute a part of the capital or body of the Pa. 368; Biddle's Appeal, 99 Pa. 282; estate, which by the will is, upon the expiSmith's Estate, 140 Pa. 355, 23 Am. St. ration of the life tenancy, to be divided beRep. 237, 21 Atl. 438; Van Doren v. Olden, tween appellees as remaindermen. These 19 N. J. Eq. 176, 97 Am. Dec. 650; Pritchitt dividends and rights arrange themselves in v. Nashrille Trust Co. 96 Tenn. 472, 33 L. three classes. The first of these is an exR. A. 856, 36 S. W. 1064.

traordinary cash dividend of 20 per cent, All the rights to subscribe at par re- declared July 1, 1898, upon the shares of ferred to in the bill belong to the capital of stock in the Pullman Palace Car Company. the trust fund, and are not net income un- The dividend amounted to $6,000, and it is der the will.

to be determined whether this is payable, un2 Cook, Corp. § 559; Atkins v. Albree, der the will, to testator's wife as "net in12 Allen, 359; Biddle's Appeal, 99 Pa. 278; come,” or to the remaindermen as a part Eidman v. Bowman, 58 Ill. 444, 11 Am. Rep. of the corpus of the estate. The money out 90.

of which it was paid appears to have been

earned, for the most part, at least, during Wilkin, J., delivered the opinion of the the lifetime of the deceased, and was recourt:

tained by the company as surplus assets reThis is an appeal from the appellate court maining in the company's treasury as undisfor the first district in a proceeding in eq. tributed earnings. While thus in the comuity begun in the circuit court of Cook pany's treasury it was subject to such uses county by the trustees of the estate of John as the directors might see fit to make of it De Koven, deceased, to construe certain pro- for corporation purposes, and its ownership visions of his will, wherein the "rest and was in the corporation. It had not, thereresidue” of his estate is given to trustees, fore, become the property of the testator "to hold, invest, rent, manage, and care for during his life. In Gibbons v. Mahon, 136 the same, and to pay the net income there- U. S. 549, 34 L. ed. 525, 10 Sup. Ct. Rep. of” to the testator's widow "during her life, 1057, the court, by Mr. Justice Gray, says: so iong as she remains unmarried, and up. "The distinction between the title of a coron her death or remarriage” to divide such poration and the interest of its members or residue between the appellees herein, if liv- stockholders in the property of the corporaing at the expiration of the wife's life ten- tion is familiar and well settled. The ownancy.

ership of that property is in the corporation, There is no controversy as to the facts. and not in the holders of shares of its stock. The testator died April 30, 1898, leaving as The interest of each stockholder consists a part of his estate a number of shares of in the right to a proportionate part of the the capital stock of several corporations, profits whenever dividends are declared by railroads, telephone companies, etc. These the corporation, during its existence, uncorporations have since his death declared, der its charter, and to a like proportion of in one case an extraordinary cash dividend, the property remaining upon the terminain another, stock dividends, and in others, tion or dissolution of the corporation, after stock dividends and rights to subscribe at payment of its debts.” Minot v. Paine, 99 par for certain shares of stock. The circuit Mass. 101, 96 Am. Dec. 705; Greeff v. Equicourt held the cash dividends and the stock table Life Assur. Soc. 160 N. Y. 19, 46 L. dividends (including the right to subscribe R. A. 288, 73 Am. St. Rep. 659, 54 N. E. belonging to each of the said stock divi- 712; Hyatt v. Allen, 56 N. Y. 553, 15 Am. dends) to be a part of the net income of Rep. 449. Applying the principle in the the estate belonging to testator's wife, and present case, no part of the earnings of that the rights to subscribe to certain other the Pullman Palace Car Company out of

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