The difficulty in the way of a clear understanding of the matter is increased by a failure to appreciate the difference between a public and a private road. If one or more individuals have the power to appropriate land for the opening of a road for their exclusive benefit, from which they may shut out the general public, and which they may maintain or discontinue at their pleasure, without any supervisory control on the part of the State or municipal authorities, the road is most certainly a private one, and the forcible appropriation of land for it is a taking of private property without due process of law. But if the road is open to the general public, and the persons, for whose special benefit the road was established, have not the power of closing it up at will, but upon them the expense of constructing it and maintaining it is imposed; even though they may at will discontinue the repairs, the road is a public one, notwithstanding it is called by the statute authorizing it a private road, and it is opened for the special benefit of those, who assume the expense of its construction and maintenance. It being open to the public, the fact that there is no pressing public need for the road is not open to judicial investigation. The legislature is the sole judge of the necessity for the appropriation of private lands to a public use. The following quotation from an opinion of the Supreme Court of Iowa will amply illustrate the limitations upon the power of establishing "private" roads over private lands: "The State may properly provide for the establishment of a public road or

Stewart v. Hartman, 46 Ind. 331; Blackman v. Halves, 72 Ind. 515; Osborn v. Hart, 24 Wis. 89 (1 Am. Rep. 161); Nesbit v. Trumbo, 39 Ill. 110; Dickey v. Tennison, 27 Mo. 373; Bankhead v. Brown, 25 Iowa, 540; Witham v. Osburn, 4 Ore. 318 (18 Am. Rep. 287). But see Whittingham

v. Bowen, 22 Vt. 317; Bell v. Prouty, 43 Vt. 279; Proctor v. Andover, 42 N. H. 348; Pocopson Road, 16 Pa. St. 15; Harvey v. Thomas, 10 Watts, 63; Ferris v. Bramble, 5 Ohio St. 109; Robinson v. Swope, 12 Bush, 21; Sherman v. Brick, 32 Cal. 241, in which the constitutionality of such appropriations is more or less sustained.

highway to enable every citizen to discharge his duties. The State is not bound to allow its citizens to be walled in, insulated, imprisoned, but may provide them a way of deliverance. The State may provide a public highway to a man's house, or a public highway to coal or other mines. If the road now in question had been established as a public road under the general road law, as we confess we do not see why it might not have been, there would be in our minds no doubt of its validity, although it does not exceed a half mile in length, and traverses the lands of but a single person. For the right to take land for a public road, that is, a road demanded by public convenience, as an outlet to a neighborhood, or it may be as I think for a single farmer, without other means of communication, cannot depend upon the length of the road, or the number of persons through whose property it may pass.

"With respect to the act of 1866, we are of opinion that the roads thereunder established are essentially private, that is, the private property of the applicant therefor, because: First, the statute denominates them private roads. If these roads are not private and different from ordinary and public roads, there was no necessity for these provisions. Secondly, such a road may be established upon the petition of the applicant alone; and he must pay the costs and damages occasioned thereby, and perform such other conditions as to fences, etc., as the board may require. Thirdly, the public are not bound to keep such roads in repair, and this is a satisfactory test as to whether a road is public or private.1 Fourthly, we see no reason when such a road is established, why the person at whose instance it was done might not lock

1 The second and third reasons for holding the road to be a private one here stated, rather establish a rebuttable than a conclusive presumption in favor of its private character. The establishment of the road upon the petition of the applicant, and its construction and maintenance at his expense, are not necessarily inconsistent with its being a public road, if the public have the use of it, and cannot be excluded from it.

the gates opening into it or fence it up, or otherwise debar the public of any right thereto. Could not the plaintiffs, in this case, having procured the road in question, abandon it at their pleasure? Could they not relinquish it to the defendants without consulting the board of supervisors? If this is so, does it not incontestably establish the fact, that it is essentially private? For it must be private if it is of such a nature, that the plaintiffs can at their pleasure use or forbid its use, abandon or refuse to abandon it, relinquish or refuse to relinquish it? If the act of 1866 is valid, might not the plaintiffs, having procured the road, use it for laying down a horse or tramway, and forbid everybody from using the road, and even exclude all persons therefrom? Who could prevent it? These conditions make the great difference between such a road and a public highway, and demonstrate the essentially private character of the road."1

The difficulty of determining what is a public use becomes greater and more perplexing, when the attention is turned to those cases in which the right of eminent domain is exercised, not by the State or municipality, but by some private stock corporation, which undertakes the performance of the public work, in consideration of the tolls and other returns which they are permitted to require of the public for the outlay

1 Dillon, Ch. J., in Bankhead v. Brown, 25 Iowa, 545. "The use, convenience and advantage of the public, contemplated by the law, are benefits arising out of the aggregate of such improvements, to which a particular road so established contributes to a greater or less degree. But no limitation upon the power of the court, in regard to any proposed road, is to be found in the degree of accommodation, which it may extend to the public at large. This is a matter which addresses itself not to the authority, but the discretion of the court. It cannot be predicated of any road that it will be of direct utility to all the citizens of the county. It may accommodate in travel and transportation but a small neighborhood, or only a few individuals. Still, when established, it may be used at pleasure by all the citizens of the county or country; and the public is interested in the accommodation of all the members of the community." Lewis v. Washington, 5 Gratt. 265. See Varner v. Martin, 21 W. Va. 534, for a most exhaustive review of the law and authorities on this subject.

of the capital they have made. We have already seen 1 that the right of eminent domain may be delegated to privato individuals and corporations, provided it is exercised in the promotion of some public good. It is plain enough that the establishment of railroads, turnpikes, canals and other means of transportation and locomotion is as much a public use as the construction of public streets or highways. The facts, that they are established and owned by private individuals or corporations, and that the general public must pay a certain fee or toll for the privilege of using them, do not affect their legal character. For, as Mr. Cooley says, "the common highway is kept in repair by assessments of labor and money; the tolls paid upon turnpikes, or the fares on railways, are the equivalents to these assessments; and when these improved ways are required by law to be kept open for use by the public impartially, they also may properly be called highways, and the use to which land for their construction is put be denominated a public use." 2

We again reach contested ground, when we inquire into the power of the government to authorize the exercise of the right of eminent domain in the condemnation of lands for manufacturing and industrial purposes. The question has usually arisen in the request for the condemnation of lands on the banks of a river, for the establishment of some sort of mill run by water power. Before the days of steam, water was the only motive power, and sometimes a whole community would depend for milling facilities upon the caprice or avarice of one or more men. It is true that at present a mill site on the river bank is not so essential to industrial activity, but it is still important on the ground of economy, water power being cheaper than steam. In most of the States, in which the question has arisen, such appropriations of land have been sustained as being for the public

1 See § 139.

2 Cooley on Const. Lim. 660, 661.

good, if not for a public use. But in New York and other States the power of exercising the right of eminent domain in favor of manufacturing and milling industries is denied.2

In pronouncing the opinion of the Supreme Court of Massachusetts in favor of such an exercise of the right of eminent domain, Shaw, Ch. J., said: "It is then contended that if this act was intended to authorize the defendant company to take the mill power and mill of the plaintiff, it was void because it was not taken for public use, and it was not within the power of the government in the exercise of the right of eminent domain. This is the main question. In determining it we must look to the declared purposes of the act; and if a public use is declared, it will be so held, unless it manifestly appears by the provisions of the act that they can have no tendency to advance and promote such public use. The declared purposes are to improve the navigation of the Merrimac river and to create a large mill power for mechanical and manufacturing purposes. That the improvement of the navigation of a river is done for the public use, has been too frequently decided and acted upon to require authorities, and so to create a wholly artificial navigation by canals. The establishment of a great mill power for manu

1 Fisher v. Manufacturing Co., 12 Pick. 67; Boston & Roxbury Mill Co. v. Newman, 12 Pick. 467; Olmstead v. Camp, 33 Conn. 532; Great Falls Manuf. Co. v. Fernald, 47 N. H. 444; Ash v. Cummings, 50 N. H. 591; Jordan v. Woodward, 40 Me. 317; Crenshaw v. State River Co., 6 Rand. 245; Burgess v. Clark, 13 Ired. 109; Smith v. Connelly, 1 T. B. Mon. 58; Shackleford v. Coffey, J. J. Marsh, 40; Newcome v. Smith, 1 Chand. 71; Thien v. Voegtlander, 3 Wis. 461; Pratt v. Brown, 8 Wis. 603 (but see Fisher v. Horricon Co., 10 Wis. 351; Curtis v. Whipple, 24 Wis. 350); Miller v. Troosh, 14 Minn. 365; Venard v. Cross, 8 Kan. 248; Harding v. Funk, 8 Kan. 315.

2 Hay v. Cohoes Company, 3 Barb. 47; Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564); Loughbridge v. Harris, 42 Ga. 500; Tyler v. Beacher, 44 Vt. 648 (8 Am. Rep. 398); Sadler v. Langham, 34 Ala. 311. In the last two cases, the right to condemn lands for mill sites was recognized, provided the mill owners were required to serve the public impartially.