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enter upon the intervening lands to survey, locate, mark and map the route of said proposed railroad between said. points, and filing a copy of said map showing the total length of said road to be ten and forty-one hundredths miles; that the same would cross the lands of Asbury Pritt and Virginia Pritt, Charles C. Channel, Eugenia Ward and J. W. Cleavenger, said right of way over said lands being fully described on said map; that they had been wholly unable to agree with said owners, or any one of them, for the compensation to be paid to them for the use of said land which they averred to be an easement or right of way for a period of ten years, and stating the amount they had offered to pay the several parties respectively for such compensation; averring that said right of way was needful and useful for the transportation of timber to market, including as well the timber belonging to petitioners as other timber not owned by them along said route and accessible thereto, and as to which timber and all other timber and manufactured products thereof situated along said route they would be common carriers, prepared to haul for others many other things necessary and useful upon the farm and in the houses of residents along said route; that the condemnation of said right of way was necessary and of public utility, that no other route would serve the purpose of the one described in the proceedings, and that if the same was condemned, petitioners would use the same for railroad purposes and in accordance with the laws of the state; and prayed for the appointment of commissioners to view the said lands and proposed route for the railroad and examine the same, and if they should deem the same needful and useful for the transportation of timber to market, and that the condemnation thereof was necessary and of public utility, that no other practicable route would subserve the purpose of the parties, then the commissioners should report in writing what damages would be sustained by the owners; and filed their notice of such condemnation proceedings served upon the said owners.
On the fourteenth day of September, 1906, the petition was presented together with a notice of the filing thereof, and the same was ordered filed and the cause docketed, whereupon the owners of the land appeared by counsel and demurred 273 to said petition, in which demurrer the plaintiff joined, and the demurrer, being considered by the court, was overruled, to which ruling of the court defendants excepted. The demurrer alleges the following grounds and reasons: "First: Because this is an effort to take private property for pri
vate purposes. Secondly: Because the act of the legislature, viz., chapter 12 of the acts of 1885, under which petitioners are attempting to proceed, is unconstitutional in so far as the same authorizes the taking of private property for private purposes: Third: Because said petition shows upon its face that this is an effort to take private property for private use. Fourth: Because said petition does not make such showing or contain such allegations as would, in any event, entitle the petitioners to take private property for their use. Fifth: Because, especially, the said petition does not show that there is no other practicable way over which they could remove their timber, it being a fact that said petitioners now have, and have had for years, a private railroad, or tramroad upon which they have been running locomotives and hauling timber, which is parallel with the road they now propose to build and but a short distance therefrom, and, further, it is a fact that from the town of Huttonville to the town of Mill Creek, where petitioner's mill is located, the said proposed railroad will parallel the line of the Western Maryland Railroad (formerly the West Virginia Central and Pittsburg Railway), a common carrier, engaged in transporting all kinds of freight and passengers, so that there is no necessity for paralleling the same by petitioners for their private purposes and the petition."
Defendants also tendered their joint answer, to the filing of which plaintiff's objected and the objection was sustained. The court then appointed commissioners as provided by said section. The commissioners made a separate report as to each of said tracts of land, ascertaining the amount to be paid to the owners respectively as compensation for the land proposed to be taken and damages to the residue, and reported that they deemed the said route for railroad needful and useful for the transportation of timber to market, and that the condemnation of the property described in said petition sought to be condemned belonging to each of said owners was necessary and of public utility, and that no other 274 practicable route would subserve the purposes, and the court confirmed the said reports. To which judgments of the court the owners of the lands proposed to be taken, excepted, and obtained a writ of error and supersedeas.
The answer and plea of the defendants sought to raise the question as to the necessity and public utility of the proposed road and of the right of the petitioners to condemn the property for the purposes set out, but which plea and answer were rejected and not permitted to be filed. It is conceded
that the question of the constitutionality of section 69a and its subdivisions, chapter 54, Code of 1899, providing for the condemnation and taking of private property for private use, is the principal, if not the only question to be decided in this case. Section 9, article 3 of our constitution provides: "Private property shall not be taken or damaged for public use without just compensation; nor shall the same be taken by any company, incorporated for the purpose of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use, or for the use of such corporation, the compensation to the owner shall be ascertained in such manner, as may be prescribed by general law; provided, that when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders."
There is no provision in the constitution authorizing the legislature to provide for the taking of private property for private use, and there is no provision in our constitution, nor in the constitutions of any other of the states of the Union, expressly forbidding the legislature to pass laws whereby the private property of one citizen may be taken and transferred to another for his private use. As was well said by Judge Green in Varner v. Martin, 21 W. Va. 534, at page 548: "It was doubtless regarded as unnecessary to insert such a provision in the constitution or Bill of Rights, as the exercise of such an arbitrary power of transferring by legislation the property of one person to another, without his consent, was contrary to the fundamental principles of every republican government; and in a Republican government neither the legislature, executive or judicial department can possess unlimited power. Such a power as that of taking 275 the private property of one and transferring to another for his own. use is not in its nature legislative, and it is only legislative power, which by the constitution is conferred on the legislature. Such an act, if passed by the legislature, would not in its nature be a law but would really be an act of robbery; the exercise of an arbitrary power not conferred on the legislature." And at page 549 he further says: "There is an entire concurrence of all the authorities in the proposition, that private property cannot be taken for private use, either with or without compensation. A few of the many authorities in which this proposition is laid down as unquestionable law are here cited: See In the Matter of Albany Street, 11 Wend. 149, 25 Am. Dec. 618; Embury v. Conner, 3 Comst. 511; Tay
lor v. Porter, 4 Hill, 140, 401 Am. Dec. 274; Beekman v. Saratoga & S. R. R. Co., 3 Paige, 45, 22 Am. Dec. 679; Concord R. R. Co. v. Greely, 17 N. H. 47; Dunn v. Charleston, Harp. (S. C.) 189; Bankhead v. Brown, 25 Iowa, 540; Wilkison v. Leland, 2 Pet. 627, 7 L. ed. 542; Robinson v. Swope, 12 Bush, 21; Blood v. Nashua & L. R. Corp., 2 Gray, 137, 61 Am. Dec. 444; Ten Eyck v. Delaware & R. C. Co., 18 N. J. L. (3 Har.) 200, 37 Am. Dec. 233; Varick v. Smith, 5 Paige, 137, 28 Am. Dec. 417; Parham v. Justices, etc., 9 Ga. 341; Hall v. Boyd, 14 Ga. 1; Clack v. White, 2 Swan, 540; Bangor R. R. v. McComb, 60 Me. 290; Hepurn's Case, 3 Bland, 95; West River Bridge Co. v. Dix, 6 How. 507, 12 L. ed. 535; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Pa. 309; Matter of John and Cherry Street, 19 Wend. 659; Cooper v. Williams, 4 Ohio, 253, 22 Am. Dec. 745; Buckingham v. Smith, 10 Ohio, 288; Reeves v. Treasurer of Wood County, 8 Ohio St. 333; Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9, 31 Am. Dec. 313; Pratt v. Brown, 3 Wis. 603; New York etc. R. R. Co. v. Kip, 46 N. Y. 546, 7 Am. Rep. 385; Nesbit v. Trumbo, 39 Ill. 110, 89 Am. Dec. 290; Osborn v. Hart, 24 Wis. 89, 1 Am. Rep. 161; and Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398." The first point of the syllabus in Varner v. Martin, 21 W. Va. 534, holds: "Under our constitution private property cannot be taken with or without compensation for private use." In Fallsburg P. & M. Co. v. Alexander, 101 Va. 98, 99 Am. St. Rep. 855, 43 S. E. 194, 61 L. R. A. 129, the first point of the syllabus is: "Although not forbidden by the constitution of this state, the legislature cannot authorize the taking of private property for private use, as it is contrary to the fundamental principles of a republican government." And point 2 of the syllabus is: "A use to be public must be fixed and definite. It 276 must be one in which the public, as such, has an interest, and the terms and manner of its enjoyment must be within the control of the state, independent of the rights of the private owner of the property appropriated to the use. The use of property cannot be said to be public if it can be gainsaid, denied, or withdrawn by the owner. The public interest must dominate the private gain."
In Cemetery Assn. v. Redd, 33 W. Va. 262, 10 S. E. 405, it is held that: "An application to condemn land for public use must distinctly state that the land is needed for public. use, and will, when condemned, be devoted to such public use." In said case, at page 263, it is said: "Ownership and enjoyment of private property are sacred in the eye of the law.
The owner's right yields only to public necessity. The great power of eminent domain does overcome this right of private property, but never for public use, under our constitution”: Citing Varner v. Martin, 21 W. Va. 534; Baltimore & 0. R. R. Co. v. Pittsburg etc. R. R. Co., 17 W. Va. 812. The use which the public is to have of the property condemned must be fixed and definite, and the general public must have a right to the definite aud certain use thereof. A supposed indirect advantage to the public is not, in contemplation of law, a public use. It is not sufficient to say that the general prosperity of a community will be promoted by the taking. The use must be needful for the public to have, and which it cannot do without except by suffering great loss. The petition in case at bar clearly shows that the plaintiffs are seeking to obtain this right of way in order to enable themselves to transport their timber from their land to their mill, clearly showing that it is for their private use and benefit, and in order to give it the semblance of being for public use, they show that the other owners of timber along the route may be enabled also to market their timber over the same road. It in no way appears that the general public will derive any benefit from it other than the development of private property and interests. The proposed road is not to be a common carrier nor one which will be of use to the community at large, to be used by the public in general, but simply a private way for the convenience of the projectors and builders thereof for the shipment of their logs and timber to market.
277 It is contended here by petitioners that for certain purposes their road will be a common carrier, and yet it is proposed to equip the road when built for the purposes of shipping timber and logs alone. It is not proposed to have the equipment of a common carrier, and it is only for the private interests of those who would secure the right of way: In Pittsburg etc. R. R. Co. v. Benwood Iron Works, 31 W. Va. 710, 8 S. E. 453, 2 L. R. A. 680, it is held: “Evidence that all who wish to avail themselves of the proposed switch, branch road or lateral work can do so, is not sufficient to show that the use of the work will be for the benefit of the public." This road, if built as proposed, would accommodate only its builders and the other parties mentioned who have timber in the same section, if, indeed, it should accommodate the latter. In the case just cited, at page 718: “The question here is not one of compensation, but it is whether the petitioner had a right to take the property. It of course has no