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MACON & AUGUSTA R. Co.

V.

Riggs et al.

(Georgia Supreme Court, April 20, 1891.) Eminent Domain-Church Property is private property, and is subject to condemnation according to law for railway purposes.

Same-A Deed from Certain Members of a Church, who had no authority to make the same, purporting to convey to a railway company a right of way over land belonging to the church, does not authorize the company to take such land for the purpose designated in said deed.

ERROR from Superior Court, Bullock County.
Gustin, Guerry & Hall, for plaintiff in error.
Brannen & Brannen, for defendants in error.

LUMPKIN, J.-1. The judge below held that the property of a church was not subject to condemnation for railway pur

poses. It has been settled by this court that church Condemnstion of church property is private property, and it follows that property.

land belonging to a church may be condemned for

public use, such as the building of a railway there. on, just as the property of an individual may be. City of Atlanta v. First Presbyterian Church (Ga.), 13 S. E. Rep. 252 (this term.) See, also, Lyons v. Planters' L. & S. Bank (Ga.), 12 S. E. Rep. 882.

2. The railway company obtained from five members of the church, including a deacon, a deed conveying to it the

right to construct its track across the land of the

church, and delivered, in payment for said land, a church members.

draft for $175. These members of the church did

not own the land, and had no right to make said deed. Afterwards the church deliberately repudiated this action on the part of said members, and returned the draft to the company. The company, nevertheless, was about to proceed to build its railway across the land of the church, having no authority or right so to do except such as may have been conferred by said deed; whereupon Riggs and a number of others, members of the church, and representing it, filed their petition for an injunction against the company to restrain it from encroaching upon the land of the church, and upon the hearing thereof the court granted the injunction. We think the judge did right, because, under the facts disclosed, the company had no right, title, or authority what

Deed from

ever to use this land. We affirm the judgment of the court below, but this ruling must not be so construed as to prevent the railway company, if it sees proper so to do, from instítuting condemnation proceedings according to law.

Judgment affirmed.

FORT STREET UNION DEPOT Co.

v.

MORTON et al.

(83 Michigan, 265.) Eminent Domain-Union Depots—Public Use_Constitutional Law. The Michigan Union Depot Act, authorizing the formation of union depot companies, and conferring on them the power of eminent domain, so stamps the property to be taken with a public character, and imposes upon it a trust for the public use, as to make the grant of the power of eminent domain perfectly constitutional.

Same-Sufficiency of Title of Act.—The Union Depot Act is entitled “An act to authorize the incorporation of companies for the construction of union railroad stations and depots with the necessary tracks and management of the same." Held, that this title is sufficient to warrant the conferring of the power of eminent domain upon such corporations.

Union Depot Company-Authority to Run Trains—Title of Act.—That provision of the Michigan Union Depot Act which authorizes companies organized thereunder to run local trains, is warranted by the provision in the title of such act authorizing the construction of depots “ with the necessary tracks and the management of the same."

Same-Oath to Jury in Condemnation Proceedings.—Under the Michigan Union Depot Act of 1881, the following oath to the jury in proceedings to condemn land is sufficient, viz. : That they would justly and impartially ascertain and determine the public necessity for taking and using for the public use the parcel of land described in the petition in this cause."

APPEAL from Wayne Circuit Court.

Proceedings to condemn land for union depot purposes under Act No. 244, Laws 1881. Respondents appeal from an award of $86,000 in their favor.

Dickinson, Thurber & Stephenson, (Don M. Dickinson, of counsel,) for appellants.

F. A. Baker, for appellee.

MORSE, J.—This is a proceeding taken to condemn lands to the public use. The petitioner is a union depot company, organized under the union depot act of 1881. The property in question in this case is a part of lands and premises claimed by the petitioner to be required for its depot and station grounds. In the court below, a jury ren

Case stated.

of

dered a verdict that it was necessary to take the property for the public use, and that the respondents were entitled, as a just compensation therefor, to the sum of $86,000. The respondents apppeal to this court. The grounds of such appeal, as summarized by their counsel, are as follows: (1) The union depot act of June 9, 1881, in so far as it confers the power of eminent domain, is unconstitutional and void, for these rea. sons: (a) The proposed use of land by a corporation which is independent of the railroad laws of the state, and thus is discharged from the obligations imposed by law upon railroad transportation, is not a public use. (6) The act does not confer upon the public at large any right to make use of the proposed passenger depot, and freight warehouse, on any terms.

Much less are the terms for such use to the public defined, so as to be certain, beyond doubt, and without condition. (c) Even if the terms to railroad companies were fixed and certain, railroad companies are not the public contemplated by the constitution. The use, and the terms for the use, must be for the people at large. (d) The purpose the act is not stated in its title. (e) The oath for the jury prescribed by the statute does not cover their constitutional duty. (2) The act does not contemplate more than one union depot in each city or village, and this corporation is not within the clear purposes of the act requiring such companies to provide for all companies entering the city desiring such accommodations. (3) The testimony in the case clearly shows that there is no necessity for taking this property for the public use, and there is no legal evidence to the contrary."

The main argument against the constitutionality of the act conferring the power of eminent domain upon these compa

nies (See Pub. Laws 1881, p. 320; How. St. p. 888) Condemna- is based upon the proposition that they must action of land

quire such power entirely from the act itself; that for union de the union depot company is not a railroad compot-Public

pany; it is not a common carrier; it is a new arti

ficial person deriving all its rights and powers and finding absolutely all its obligations in this, its organic act. Therefore, it is argued it is clearly independent of, and not affected by, the body of the railroad laws and amendments embraced in chapters 91 and 92, How. St., which confer rights and privileges upon railroad companies, and also provide certain and clearly defined reciprocal duties to the people, the imposition of which duties by law is the criterion which makes the use for railroad purposes a public one. It may be admitted for the purposes of this case that so far the contention of counsel is correct, and that we must look to the act itself to support the claim of the company to the right to

use.

acquire lands by condemnation for public use. But, going further, the counsel also claim that in this act nothing can be found conferring upon the public at large any rights in the contemplated passenger depots and freight houses; that the people at large—the common public-are given by the statite no fixed and definite rights in these depots; and that there is nothing to prevent the companies organized under it from charging what they please for depot services to the public at large. It is said that the provisions of the statute apply only to dealings between the depot companies and the railroad companies who may use the property of the former companies; that this company, for instance,“ may shut its doors as against the approaching passenger unless he pays its price to go in, and that there is nothing in the act to compel it to open its passenger depot or its freight house at all to the community in which it is proposed to erect its structure;" that the act only provides for those entering the same by the railroads that terminate or connect with it. The argument is, if we understand it, that the public at large have no rights specified by the act unless they act and use the same under the privileges granted to the railroads. It appears from the record that the Fort Street Union Depot Company was organized for the purposes of furnishing depot and terminal facilities for four different railroad corporations, and for all other railroads that may hereafter desire admittance thereto. The four companies now interested are the Flint & Pere Marquette Railroad Company, the Detroit, Lansing & Northern Railroad Company, the Wabash Western Railroad Company, and the Canadian Pacific Railroad Company. It would seem that a depot built to accommodate all the railroads coming into Detroit, or any considerable number of them, and to be used by them for the same purposes that any one railroad company would use its own single depoi, would be when so used, without question, put to a public use, as it has long been settled that a railroad company may acquire, by the right of eminent domain, grounds for its depots and station houses; and this right is not questioned by the counsel for respondents. The act (S) confers, in express terms, this right upon companies organized under it, and provides that such right shall be exercised, and title acquired to the lands sought, in the manner and by the special proceedings prescribed in the act. Id. $ 3463. Section 28 of the act provides that “all companies formed under this act shall, for a reasonable compensation, provide suitable depot accommodations for the passengers and freights of the railroads terminating or connecting with it, or desiring access thereto, and shall provide suitable tracks therefor without

discrimination in favor of or against such roads. If the corporations cannot agree upon the terms and conditions upon which such accommodations shall be furnished, and the bus. iness transacted, the commissioner of railroads shall determine the rate of compensation to be paid for the accommodations required, which shall be uniform to all such railroad companies; but no such rate shall be fixed as will reduce the net annual income of the business of said company to less than seven per cent. on the cost of the property so used. Sec. 29. Companies formed under this act shall not at any time charge or receive for warehouse or elevator service or use more than the average rates then prevailing at the cities of Toledo, Ohio, and Port Huron. in Michigan, for like ser. vice or use.

Sec. 30. Any union railroad station and depot company may, and whenever it is expedient, and such trains will pay the expenses thereof, shall put on local passenger trains to do a local and suburban passenger business; and for such local business upon or to the end of its tracks shall be entitled to charge for each passenger not exceeding four cents per mile; and upon the application of any ten suburban citizens for the establishment for such trains, unless the said company comply with such request, it shall, be, upon the same request to the commissioner of railroads, competent for him to investigate and determine whether such trains shall be established, and, if in favor thereof, it shall be the duty of such company to establish and maintain them so long as he shall require it to be done." See Id. p. 899, SS 3485-3487. It seems to me that the rights of the public to use the depots of these companies, their freight houses and elevators, and, in certain cases, their trains, which under certain conditions they must operate, is fixed, definite, and certain. The public at large have the same rights in them as they have in the depots and freight houses and cars of railroad companies in this state; and the representative of the public, the commissioner of railroads in this state, is given powers of control and regulation over them. Their charges must be reasonable, and the maximum is under state control, as in the case of railroads. No additional charges can be imposed upon the public by any railroad company, contracting with the union depot companies, by reason of its agreement with such depot company, while the public is benefited, as well as the railroad companies, by increased facilities of travel and transportation. That a union depot like the one sought to be established by the petitioner in the city of Detroit would be of great and incalculable public benefit, no one who reads this record can doubt. The act stamps the property to be taken with a public character, and imposes upon it a trust for the

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