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The second theory is based upon a liberal interpretation of the words "public use" and holds that the words are equivalent to public benefit, utility or advantage, and are not limited by the actual use by the public in the property taken or some limited portion of it.286 The modern construction of the words seems to be in favor of the second or liberal interpretation and of an equivalent meaning of use by the public.287

§ 758. Concrete illustrations of public use.

The theoretical discussion of the proposition is always interesting but unsatisfactory. The most substantial aid which perhaps

286 Olmstead v. Camp, 33 Conn. 532.

"The defendant insists that, in favor of private rights, the construction should be strict, and that the term 'public use' means possession, occupation, direct enjoyment, by the public. Or in other words that the property must be literally taken by the public as a body into its direct possession and for its actual use, as in the instances of a state-house, a court house, a fort, an arsenal, a park, etc. It seems to us that such a limitation of the intent of this important clause would be entirely different from its accepted interpretation, and would prove as unfortunate as novel. One of the most common meanings of the word 'use' as defined by Webster, is 'usefulness, utility, advantage, productive of benefit.' 'Public use' may, therefore, well mean public usefulness, utility or advantage, or what is productive of general benefit; so that any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use. Such, it is believed, is the construction which has uniformly been put upon the language by courts, legislatures and

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Todd v. Austin, 34 Conn. 78; Concord R. Co. v. Greely, 17 N. H. 47. "It has been said that property could not be properly alleged to be taken for the public use, unless, when taken, it should belong to the public as owning it; that the words substantially mean, that the property should be changed, by the act of application, and should belong to the community at large. This position can be maintained only upon the assumption that the words 'public use' are equivalent to the words 'public ownership,' or with other words which express the idea that the private property, by the act of application, becomes the property of the public. There is nothing in the constitution that authorizes us to extend the words 'public uses' into such a meaning." Trenton & N. B. Turnpike Co. v. American & E. Commercial News Co., 43 N. J. Law, 384; Seely v. Sebastian, 4 Or. 27.

287 Board of Health of Portage

a text book can afford to one seeking information upon a particular subject in respect to which there is great diversity and conflict of reason and opinion is to give concrete illustrations of the interpretation of words and phrases placed upon them by the different courts.

§ 759. Highways.

One of the most common as well as familiar illustrations of an exercise of the power of eminent domain on the part of a public corporation is that for the acquisition of real property for use as a public highway.288 The term, as will be remembered, is a general one and applies to all ways used by the public as a means of passing or repassing 289 and its public character does not depend upon the extent of the use, 290 the location of the way 291 or

Tp. v. Van Hoesen, 87 Mich. 533, 49 N. W. 894, 14 L. R. A. 114; In re Niagara Falls & W. R. Co., 108 N. Y. 375, 15 N. E. 429; Fork Ridge Baptist Cemetery Ass'n v. Redd, 33 W. Va. 262.

288 Edgerton v. Town of Green Cove Springs, 19 Fla. 140; Dunham v. Village of Hyde Park, 75 Ill. 371; Phillips v. Watson, 63 Iowa, 28, 18 N. W. 659; Brimmer v. City of Boston, 102 Mass. 19; Inhabitants of Wells v. York County Com'rs (Me.) 11 Atl. 417; Smith v. City of St. Paul, 72 Minn. 472, 75 N. W. 708; Smith v. Helmer, 7 Barb. (N. Y.) 416; Shaver v. Starrett, 4 Ohio St. 494; Lindsay v. Charleston City Com'rs, 2 Bay (S. C.) 38. See, also, cases cited generally under this paragraph.

289 Underwood v. Bailey, 59 N. H. 480. Land cannot be appropriated under the power of eminent domain for a highway which will not accommodate the public. See § 423, ante.

290 Roberts v. Williams, 15 Ark.

291 Crosby v. Hanover, 36 N. H. 44; West Pikeland Road, 63 Pa.

43; Sherman v. Buick, 32 Cal. 241. Monterey County v. Cushing, 83 Cal. 507; Reynolds v. Reynolds, 15Conn. 83; Ross v. Davis, 97 Ind.

; Logan v. Stogsdale, 123 Ind. 372, 8 L. R. A. 58; Johnson v. Clayton County Sup'rs, 61 Iowa, 89; Phillips v. Watson, 63 Iowa, 32; Pagels v. Oaks, 64 Iowa, 198; Cemetery Ass'n v. Meninger, 14 Kan.. 312; City of Savannah v. Hancock, 91 Mo. 54; Coster v. Tide Water Co., 18 N. J. Eq. 54; State v. City of Orange, 54 N. J. Law, 111, 22 Atl. 1004, 14 L. R. A. 62; State v. Stackhouse, 14 S. C. 417; Lewis v. Washington, 5 Grat. (Va.) 265; Paine v. Town of Leicester, 22 Vt. 44.

Elliott, Roads & Streets (2d Ed.) § 192. "Roads and streets used by the public, with a right in all the public to use them, are undoubtedly public, and private property may be appropriated for the purpose of constructing such ways. The test is, not simply how many persons do actually use them, but,

471; Gilman v. Town of Westfield, 47 Vt. 20.

the fact of its continuity and connection with other ways.202 The fact that a highway may not be entirely of a useful character but is designed for purposes of amusement, health or recreation, will not destroy its character as a public way, and its use as a public one of such a character will be sufficient to justify the exercise of eminent domain. 203 In some states the provision is made for the establishment of so-called private roads or highways and the character of these roads is not dependent so much upon the name applied to it by the state but by its use. If a road is authorized to be laid out on the application of an individual, is paid for and kept in repair wholly or in part by him, although he may be especially accommodated by its laying out, yet, if it is one designed for the use without permission from such individual by all who may desire, it is still to be regarded as a public way.294 Where, however, the road, after it is laid out, becomes or remains the pri

how many have a free and unrestricted right in common to use them; for, if the public generally are excluded, the way must be regarded as a private one; if the public have the right to use the way at pleasure and on equal terms, it is a public one, although in reality it is little used. Where the way is a private one the right of eminent domain cannot be successfully invoked." But see Los Angeles County v. Reyes (Cal.) 32 Pac. 233; Richards v. Wolf 82 Iowa, 358, 47 N. W. 1044. A public highway cannot be laid out for the convenience of a single person.

292 Peckham v. Town of Lebanon, 39 Conn. 231; Goodwin v. Town of Wethersfield, 43 Conn. 437; Sheaff v. People, 87 Ill. 189; Moore v. Auge, 125 Ind. 562; Masters v. McHolland, 12 Kan. 17; Bartlett v. City of Bangor, 67 Me. 460; Fields v. Colby, 102 Mich. 450, 60 N. W. 1048; Watson v. Town of South Kingstown, 5 R. I. 562; Decker v. Menard County (Tex. Civ. App.) 25 S. W. 727; Snow v. Town of Sandgate, 66 Vt. 451, 29 Atl. 673; Schatz v. Pfeil, 56 Wis.

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293 Bryan v. Town of Branford, 50 Conn. 246; Higginson v. Inhabitants of Nahant, 93 Mass. (11 Allen) 530; Petition of Mt. Washington Road Co., 35 N. H. 134; Town of Woodstock v. Gallup, 28 Vt. 587. But see Farist Steel Co. v. City of Bridgeport, 60 Conn. 278, 22 Atl. 561, 13 L. R. A. 590. The taking of lands for the sole purpose of preserving a satisfactory view of a public bridge is not a proper exercise of the power of eminent domain.

294 Sherman v. Buick, 32 Cal. 241. "Thus if the legislature provides for the laying out and establishing of a certain class of roads or highways which from any cause, whether for the purposes of classification or otherwise, is denominated 'private,' or as being for the especial benefit of certain individuals upon whom the burden of cost and repair is cast, instead of the public at large, it by no means follows that such roads become the private property or estate of the

vate property of a person from which he may exclude the public, then its use is a private one and in the laying out of which the condemnation of property under the power of eminent domain is unauthorized.29 295 If the road is intended for public use even though the applicant may be required to pay all costs connected with its laying out and repair, it is to be considered a public way. If it is for the exclusive use of the applicant, it is a private road.296 The appropriation and use of public funds for its laying out and repair, either wholly or in part, will be considered a good test of its character as a public way, although it may be denominated as a private road in the statute.297

individuals designated, even if the legislature has so provided in express terms; for where roads are laid out, whether mainly for the accommodation of particular neighborhoods or individuals or not, it must be understood as having been provided for the use of every one who may have occasion to travel it, and hence as being public. In other words, the legislature has no power to lay out and establish 'private roads,' in the sense that they are to be the private property of particular individuals, or that they are what are denominated 'private ways,' at common law; and hence, so far as they undertake to do so, their action is simply null and void; but the road so laid out and established becomes a way over which all may lawfully pass who have occasion, and therefore public; and the language employed by the legislature, so far as it relates to the legal character of the roadas public or private-must be understood as being used for the purpose of distinguishing it from all other roads, or in general terms, for the purposes of classification." Township of Madison v. Gallager, 159 Ill. 105, 42 N. E. 316; Bankhead v. Brown, 25 Iowa, 540; Den

ham v. Bristol County Com'rs, 108 Mass. 202.

295 Sadler v. Langham, 34 Ala. 311; Nesbitt v. Trumbo, 39 Ill. 110; Crear v. Crossly, 40 Ill. 175; Robinson v. Swope, 75 Ky. (12 Bush) 21; Shake v. Frazier, 94 Ky. 143; State v. Price, 21 Md. 449; Dickey v. Tenninson, 27 Mo. 373; Welton v. Dickson, 38 Neb. 767, 57 N. W. 559, 22 L. R. A. 496; Taylor v. Porter, 4 Hill (N. Y.) 140; Witham v. Osburn, 4 Or. 318; Snow v. Town of Sandgate, 66 Vt. 451, 29 Atl. 673; Salt Co. v. Brown, 7 W. Va. 191; Osborn v. Hart, 24 Wis. 89. But see Steele V. Madison County Com'rs, 83 Ala. 304; Latah County v. Peterson, 2 Idaho, 1118, 16 L. R. A. 81; State v. Stackhouse, 14 S. C. 417.

296 Gilmer v. Lime Point, 18 Cal. 229; Olmstead v. Camp, 33 Conn.. 532; Wild v. Deig, 43 Ind. 455; Davis v. Smith, 130 Mass. 113; Proctor v. Andover, 42 N. H. 348; In re Niagara Falls & W. R. Co., 108 N. Y. 375; Shaver v. Starrett, 4 Ohio St. 494; Wolcott v. Whitcomb, 40 Vt. 40.

297 Bankhead v. Brown, 25 Iowa, 540. "The public are not bound to work or keep such roads in repair, and this is a very satisfactory test

§ 760. Parks and pleasure grounds.

299

Closely connected with the laying out of a public way is the establishment of public parks, boulevards, commons or pleasure grounds 298 and the opening of places of historic interest to the public. The health and pleasure of the people are dependent, to some degree, upon their means of recreation and no better opportunity is afforded for its improvement than the use of the facilities suggested above. In a recent case of the supreme court of the United States,300 the conversion of a historic spot into a public park as a means, primarily, of inculcating patriotism, was sustained. In laying out highways, pleasure grounds or drives, the fact of the public use being established, the questions of necessity, expediency and feasibility of a particular location, are left to the public authorities, the grantee of the power.301

761. Bridges, ferries and canals.

As a means of communication connected with or forming a part of a system of public highways, it may be necessary to construct

as to whether a road is public or private." Denham v. Bristol County Com'rs, 108 Mass. 202.

298 Kerr v. South Park Com'rs, 117 U. S. 379; Shoemaker v. United States, 147 U. S. 282; United States v. Cooper, 20 D. C. (9 Mackey) 104; People v. Salomon, 51 Ill. 37; Cook v. South Park Com'rs, 61 Ill. 115; Jones v. Town of Lake View, 151 111. 663, 38 N. E. 688; West Chicago Park Com'rs v. City of Chicago, 152 Ill. 392, 38 N. E. 697; In re City of Cedar Rapids, 85 Iowa, 39, 51 N. W. 1142; Winn v. Board of Park Com'rs, 12 Ky. L. R. 339, 14 S. W. 421; Rowan's Ex'rs v. Town of Portland, 47 Ky. (8 B. Mon.) 232; Boston & R. Mill Cor. v. Newman, 29 Mass. (12 Pick.) 467; Holt v. City of Somerville, 127 Mass. 408; Foster v. Boston Park Com'rs, 133 Mass. 321; Id., 131 Mass. 225; State Park Com'rs v. Henry, 38 Minn. 266; St. Louis County Court v. Gris

wold, 58 Mo. 175; Owners of Ground v. City of Albany, 15 Wend. (N. Y.) 374; Brooklyn Park Com'rs V. Armstrong, 45 N. Y. 234; Matter of Bushwick Ave., 48 Barb. (N. Y.) 9; Matter of Central Park Com'rs, 50 N. Y. 493; Matter of Washington Park Com'rs, 52 N. Y. 137; Matter of Central Park Com'rs, 63 Barb. (N. Y.) 282; In re City of Rochester, 137 N. Y. 243; Hammett v. Philadelphia, 65 Pa. 146; Root's Case, 77 Pa. 276; In re Vernon Park, 163 Pa. 70, 29 Atl. 972 See, also, § 432.

299 United States v. Gettysburg Elec. R. Co., 160 U. S. 668; United States v. Certain Tract of Land in Cumberland Tp., 67 Fed. 869.

300 United States v. Gettysburg Elec. R. Co., 160 U. S. 668.

301 Butte County V. Boydstun (Cal.) 11 Pac. 781; State v. Price, 21 Md. 449; Commonwealth v. Inhabitants of Egremont, 6 Mass. 491; Inhabitants of Lanesborough V.

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