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 & O. 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 and 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

right to take private property for private use, but it has the right to take private property for public use on paying a just compensation therefor. The right to take, which depends upon whether it is to be taken for public or private use, is a judicial question, and the decision of the circuit court on that question is subject to review: Baltimore & O. R. R. Co. v. Pittsburg etc. R. R. Co., 17 W. Va. 812."

Section 69a and its subdivisions, chapter 54, Code of 1899, provides for giving a right to the owners or lessees of timber or timber lands, quarries, mills, oil and salt wells, coal mines, lime-kilns or other real estate in the vicinity of any common carrier, not more than twelve miles therefrom, to build lateral railroads for the purpose of transporting their private products, in the absence of any constitutional provisions authorizing any such legislation. In Sholl v. German Coal Co., 118 Ill. 427, 59 Am. Rep. 379, 10 N. E. 199, it is held: "Land belonging to a private individual is not subject to condemnation for the extension of a tramway belonging to a corporation, organized for the purpose of mining and selling coal, so as to connect the way with a railroad, and thus secure to the company railroad facilities for the transportation of its coal; the use to which the land would be put not being a public use": Amador Queen Min. Co. v. Dewitt, 73 Cal. 482, 15 Pac. 74. In Healy Lumber Co. v. Morris, 33 Wash. 490, 99 Am. St. Rep. 964, 74 278 Pac. 681, 63 L. R. A. 820, it is held that whether a contemplated use is public shall be a judicial question, to be determined without regard to any legislative assertion that the use is public, the fact that a statute authorizes the condemnation of land for a particular purpose does not raise a presumption that such purpose is a public use. It is also held to be a judicial question in Great Westren etc. Gas & O. Co. v. Hawkins, 30 Ind. App. 557, 66 N. E. 765. In Weidenfeld v. Sugar Run Co., 48 Fed. 615, at page 618, it is said: "Whether the use is a public one, for which private property may be taken, is a judicial question. If the use itself is found to be only private, or, further, if the use, being public, the appropriation can in no respect be subservient thereto, it is the duty of the judicial department to protect the citizens by proper remedies from the taking of his property, whether attempted in open disregard of or under color of law": Citing Mississippi etc. Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206. Edgewood R. R. Co.'s Appeal, 79 Pa. 257, was a case in which a number of persons had procured a charter for a railroad company, and under cover of constructing a railroad for public use were engaged

in the construction of a railroad from a tract of coal land owned by themselves to the Pennsylvania Railroad. A bill was filed by a property holder to restrain the condemnation of his property by virtue of the power of eminent domain ⚫ conferred upon the railroad company over a portion of his property for its uses. The supreme court of Pennsylvania, finding the facts to be that the railroad was constructed with the primary object of connecting the coal mines with the Pennsylvania Railroad, held that the road was being constructed for private purposes under the cover of a power obtained under the general railroad laws of the state, that there appeared a perversion of an enactment passed for one purpose in order to subserve other and inconsistent purposes, that the charter of the company did not warrant the appropriation of the land of the plaintiff for the purpose for which the defendant had applied, and that it did not possess the right or franchise to do the acts which had resulted in the injury of which plaintiff complained.

Cooley on Constitutional Limitations, 774, says: "The question what is a public use is always one of law. Deference will be paid to the legislative judgment, as expressed 279 in enactments providing for an appropriation of property, but it will not be conclusive": Citing a long list of authorities.

Zircle v. Southern Ry. Co., 102 Va. 17, 102 Am. St. Rep. 805, 45 S. E. 802, cited by defendants in error was a case of a railway company for the condemnation of a way for a branch road or spur track a distance of two-thirds of a mile to Manor Mills, a private industrial enterprise, and it was there held that the company had a right to condemn if the track was to be used by the company in furtherance of its public business. In Charleston Nat. Gas Co. v. Lowe, 52 W. Va. 662, 44 S. E. 410, it said: "It is the province of the legislature to declare the public uses for which private property may be taken, but the power of the legislature in this respect is limited by the constitution, and it remains with the courts to say whether the legislative enactment making such declaration and appropriation is in conflict with the constitutional limitation, and if so, to declare it unconstitutional and void": Citing Baltimore & O. R. R. Co. v. Pittsburg etc. R. R. Co., 17 W. Va. 812; Varner v. Martin, 21 W. Va. 534; Mississippi Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206.

From what has been said it follows that section 69a and its subdivisions, chapter 54, Code of 1899, in so far as it attempts to confer the power and right of eminent domain upon the owner or owners, lessee or lessees of timber or timber lands,

etc., to be exercised by them in the condemnation of lands for rights of way for their private benefit and not for the public use, is unconstitutional, null and void. Therefore, the judgment of the circuit court of Randolph county is reversed and annulled, and this court proceeding to render such judgment as the circuit court should have rendered, the demurrer to the petition of the plaintiffs is sustained and the petition and notice dismissed.

In Scott Lumber Co. v. Wolford, 62 W. Va. 555, 59 S. E. 516, the principles announced in the principal case, ante, p. 966, are reaffirmed and applied.

The Term "Public Use" as Employed in the Law of Eminent Domain is flexible, and necessarily has been of constant growth as new public uses have developed. What is a public use will depend somewhat upon the nature and wants of the community for the time being: Potlatch Lumber Co. v. Peterson, 12 Idaho, 769, 118 Am. St. Rep. 233. Whether a use is public is, as a rule, ultimately a question for the decision of the courts: Cozard v. Kanawha Hardwood Co., 139 N. C. 283, 111 Am. St. Rep. 779; Riley v. Charleston Union Station Co., 71 S. C. 457, 110 Am. St. Rep. 579; Brown v. Gerald, 100 Me. 351, 109 Am. St. Rep. 526; Albright v. Sussex County etc. Commission, 71 N. J. L. 303, 108 Am. St. Rep. 749; Borden v. Trespalacios Rice etc. Co., 98 Tex. 494, 107 Am. St. Rep. 640; note to Chicago etc. Ry. Co. v. Morehouse, 88 Am. St. Rep. 926; but if a use is public, the expediency or necessity for establishing it is for the legislature to determine: Cozard v. Kanawha Hardwood Co., 139 N. C. 283, 111 Am. St. Rep. 779; Brown v. Gerald, 100 Me. 351, 109 Am. St. Rep. 526; Zircle v. Southern Ry. Co., 102 Va. 17, 102 Am. St. Rep. 805.

The Purposes for Which Private Property may be Condemned under the power of eminent domain are discussed in the note to Zircle v. Southern Ry. Co., 102 Am. St. Rep. 809. As to whether private property may be condemned in order to promote lumber and timber enterprises, see Cozard v. Kanawha Hardwood Co., 139 N. C. 283, 111 Am. St. Rep. 779; Healy Lumber Co. v. Morris, 33 Wash. 490, 99 Am. St. Rep. 964; and as to whether it may be condemned in order to promote mining operations, see Highland Boy etc. Min. Co. v. Strickley, 28 Utah, 215, 107 Am. St. Rep. 711. The power of eminent domain has been successfully invoked to condemn property for use in the generation of electricity: Brown v. Gerald, 100 Me. 351, 109 Am. St. Rep. 526. See, however, Fallsburg etc. Mfg. Co. v. Alexander, 101 Va. 98, 99 Am. St. Rep. 855.

BOARD OF EDUCATION v. BERRY.

[62 W. Va. 433, 59 S. E. 169.]

EQUITY-Pleading-Exhibits.-Documents made exhibits with

a bill in chancery and as parts thereof are of controlling force in case of a variance between them and such bill. (p. 977.)

JUDICIAL SALES-Notice to Purchaser.-The purchaser at a judicial sale is charged with notice of every fact appearing upon the face of the record affecting the title acquired by him. (p. 978.)

EVIDENCE-Judicial Notice-Public Law. The courts of the state will take judicial notice of a public law, and it need not be put in evidence. (p. 979.)

CORPORATIONS, DE FACTO-Right to Attack Existence.—If there has been a bona fide effort to comply with the law to effectuate an incorporation, and the persons affected thereby have acquiesced therein, and have exercised all of the functions pertaining to the corporation, it becomes a de facto corporation, whose corporate existence cannot be litigated in actions between private individuals, nor between private individuals and the assumed corporation. (pp. 981, 982.) CORPORATIONS, DE FACTO-Existence of, How Shown.-To establish the existence of a de facto corporation only a charter or law authorizing the existence of the corporation must be shown and used under such authority. (p. 982.)

CORPORATIONS, DE FACTO-Existence-Right to Question. If a corporation exists de facto, it may exercise the powers assumed, and the question of its having a right to exercise them will be deemed one which can be raised only by the state. (p. 982.)

CORPORATIONS, DE FACTO-Municipalities. If the inquiry into the existence of a municipality is merely collateral, the fact that the municipality exists de facto is all that need be proved. (p. 982.)

Hines & Kelly, for the plaintiff in error.

Haymond & Fox and J. Fisher, for the defendant in error

434 MILLER, P. In an action of unlawful entry and detainer in the circuit court, the defendant, besides the general issue, by plea put in issue the corporate existence of the plaintiff. In a trial before a jury, after the plaintiff had introduced all its evidence, the circuit court sustained the defendant's motion to exclude such evidence, and directed a verdict for defendant, which the jury returned accordingly. The subsequent motion of the plaintiff to set aside the verdict and award a new trial did not prevail, and judgment was rendered dismissing the plaintiff's summons. It does not distinctly appear from the record upon what particular ground this action of the court was founded.

The property sued for was a lot of one and one-half acres, with a schoolhouse thereon, conveyed to the board of education of Salt Lick district by W. F. Morrison and L. J. Berry, October 14, 1897, to which the plaintiff succeeded by virtue of its incorporation as the board of education of Flatwoods