*

In Rockingham Light & Power Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 585, 586, the court said: "If the plaintiff is under obligation to supply electricity or electric energy at reasonable rates, and without discrimination, to all corporations, public, quasi public, and private, and to all persons desiring it, who are located within reasonable distances of the plaintiff's lines so far as the extent and capacity of its works will permit, it appears to have all the characteristics of a quasi public corporation. The delegation of the power of eminent domain to a corporation is not always accompanied with an express imposition of the obligation to serve the public reasonably and equitably. A corporation, by the acceptance and exercise of the power, impliedly undertakes such service respecting the subject for which the power is exercised. Lumbard v. Stearns, 4 Cush. [Mass.] 60; Trenton & N. B. Turnpike Co. v. American Commercial News Co., 43 N. J. Law, 381." So in Brown v. Gerald, 100 Me. 372, 61 Atl. 794 (70 L. R. A. 472, 109 Am. St. Rep. 526), it was said: "It is generally well settled now that when the Legislature grants to a corporation the right of eminent domain, or public rights, like street rights for public uses, and the corporation accepts and exercises the grant, it thereby impliedly comes under obligation to the public to perform all those duties in which the public are interested, and to aid in the performance of which the right of eminent domain was granted. It can be compelled to perform them, and at reasonable rates. It subjects itself to public regulation and control, and to forfeiture of its charter for failure to perform." In the case now before us the appellee has written into its charter the obligation to the public to perform all those duties in which the public is interested, and, this charter being granted under the general law of incorporation, that obligation is as much a part of its organic life as if contained in a legislative charter directly to the appellee. But unless the grant was for public uses, the appellee cannot, either impliedly by acceptance of the grant, or by incorporating obligations into its charter, come under any obligation to the public or obtain any rights as a public instrumentality. The ultimate question is, and must be, whether the uses ueclared in the charter are in law public uses.

The amended charter of the appellee was, be "a pre-enacted legislative regulation" such obviously adopted for the purpose of remov-as section 336 provided for telephone compaing any question whether the original char- nies. ter measured up to that test, and in the belief that the amended charter accomplished that purpose, and it will therefore be necessary to consider only the latter amended charter. It specifically declares the corporation to be formed "to act as a common carrier of electrical power or energy by means of all appropriate or necessary structures, appliances, devices, or processes, now or hereafter capable of being used in the transaction of any business wherein electricity, or electric power or energy may be applied to any useful purpose," and it expressly "vests" in "the public in like situation with said Susquehanna Pole Line Company of Harford County, its successors and assigns, whether individuals, partnerships, or corporations, a right to apply for and demand of said company, all connections and facilities without discrimination or partiality to the extent of the just and reasonable distributing, transforming, carrying and connecting capacity and facilities of said company." It declares that said company "shall and must supply all applicants in like situation as aforesaid, who may exercise said right with the connections and facilities aforesaid, provided such applicants comply or offer to comply with all reasonable rules, regulations, terms and rates of said company"; and it declares that said company shall not impose any conditions or restrictions upon any such applicant not imposed impartially upon all other persons, partnerships, or corporations in like situation; and that said company shall not discriminate against any such applicant or between any such applicants, engaged in any lawful business, by requiring as a condition for furnishing such facilities that the same shall not be used in the business of said applicant, or otherwise for any lawful purpose. The language of the amended charter as given above is not that of the appellee's counsel, and as such subject to the possible suspicion that it was chosen in the interest of the appellee rather than that of the public; but it is the language of the Legislature of the state, to be found in section 336 of article 23, and employed by it deliberately to indicate that the operation of a telephone company is a "public employment and that the instruments and appliances used are property devoted to public use, and in which the public have an interest." C. & P. Telephone Co. v. B. & O. Tel. Co., 66 Md. 415, 7 Atl. 809, 59 Am. Rep. 167. It is therefore not only appropriate language in itself to declare and impose a public duty, but it has legislative sanction for its employment for that purpose. In the case just cited Chief Judge Alvey said: "It is the nature of the service undertaken to be performed that creates the duty to the public, and in which the public have an interest, and not simply the body that may be invested with the power." It is not essential, as

Mr. Lewis, in his work on Eminent Domain (section 173), says: "The condemnation of property for public sewers, or works for the disposition of sewage, or for supplying a city or town with water or gas, is so manifestly a public use that it has been seldom questioned and never denied." And in section 160 he says: "In determining whether the use is public or not, it is an immaterial consideration that the control of the property

solely by motives of private gain. Railroads, | court said: "It has been generally held by the canals, turnpikes, and ferries are familiar courts that the generation of electric power instances of such appropriation, and the principle is of universal application. "The inquiry must necessarily be, what are the objects to be accomplished? not, who are the instruments for attaining them?" Nor need the use be for the whole public. "It may be for the inhabitants of a small or restricted locality; but the use and benefit must be in common, not to particular individuals or estates." Id. § 161. Mr. Joyce, in his work on Electric Law (section 277), says: "The planting of poles and stringing of wires for the purpose of street lighting, and supplying light to citizens, is one of the uses to which the streets of a city may be devoted, and is a public use."

for distribution and sale to the public on equal terms is a public enterprise." And in Minnesota Canal and Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638, it was said: "Electric lighting is universally recognized as a public enterprise, in aid of which the right of eminent domain may be invoked." And in Canal Power Co. v. Pratt, 101 Minn. 212, 112 N. W. 395, 11 L. R. A. (N. S.) 105, it was held that the term "public business" includes the construction of works for supplying the public with light, heat, and power. In New Central Coal Co. v. George's Creek Co., 37 Md. 563, it was held, through Chief Judge Alvey, that the Legislature may authorize the condemnation of private property by a mining company for the construction of a railroad to bring coal from its mines; "such use being of a public nature." And in N. Y. Mining Co. v. Midland Co., 99 Md. 506, 58 Atl. 217, that de cision was confirmed; Chief Judge McSherry saying that a mining company could condemn land for the construction of a connecting railroad, though it had no motive power of its own, and he pointed out that such use was a public use, for the reason, among others, "that other railroad companies or mining companies would have the right to run over it and to use it in the method prescribed by the statute." The courts of Pennsylvania, as observed by Judge Alvey in New Central Coal Co.'s Case, supra, have very fully sus

In State ex rel. v. Toledo, 48 Ohio St. 113, 26 N. E. 1061, 11 L. R. A. 729, it was held that the supplying of municipal corporations and their citizens with natural gas is a public use or purpose for which the taxing power may be constitutionally exercised; and in the course of the opinion the court observed that, though that was a case of taxation and not of eminent domain, yet it was to be considered upon the principles governing eminent domain. If supplying the public with water or gas is so manifestly a public use as not to be questioned, upon what just principle can it be held that supplying the public with electric light is not a public use? In Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526, the defendant was empowered to generate, sell, dis-tained "the right to take by compulsory protribute, and supply electricity for lighting, cess land for the construction of lateral railheating, and manufacturing purposes in cer- ways to coal mines, as being for public use, tain towns, and to take by the exercise of the and therefore within the power of the emiright of eminent domain land for the estab-nent domain," and this notwithstanding that lishment of its plant, which the court held the test for determining a public use which embraced its line of poles and wires. The we adopted in the Arnsperger Case, 101 Md. case was for an injunction to restrain the 247, 61 Atl. 413, 70 L. R. A. 497, was the test erection of the line across the plaintiff's applied in Farmers' Market Co. v. P. & R. farm. The defendant contended that it had R. R. Co., 142 Pa. 586, 21 Atl. 902, 989, upon the right to take the plaintiff's land for the which case the Arnsperger Case largely was purpose of furnishing an electric current for determined. Even in the cases cited in the lights, whether it could do so for supplying appellee's brief as against the validity of the power for manufacturing purposes or not. power in this case, there are to be found exThe court said: "We think it should be con- pressions going far to sustain the view that ceded that the taking of land for the purpose the supplying of electric light, heat, or power of supplying the public, or so much of the to the public is a public use. Thus in Fallspublic as wishes it, with electric lighting, burg v. Alexander, 101 Va. 110, 43 S. E. 194, is for a public use." And also held that: "If 61 L. R. A. 129, 99 Am. St. Rep. 855, the the company exercised the right actually for court held that the interest of the public, if lighting purposes, it might also use the prop- any, under the language of the charter was erty thus obtained for other incidental pur- too vague and indefinite to support the power poses, as has been many times held." But of eminent domain, but also said: "We do the court found under the testimony taken not mean to say, however, that under no conin the case that the land was being taken to ditions can the right of eminent domain be enable the company to deliver electrical pow- conferred by the Legislature in furtherance er to a manufacturing company under a con- of the establishment of plants for the gentract, and that the alleged public use was a eration of electric power, or other power, mere cover for a private enterprise, and the light, or heat, where public necessity requires injunction was for that reason only sustained. it and the public use is apparently safely In Walker v. Shasta Power Co., 160 Fed. 856, guarded. To meet industrial progress, new 87 C. C. A. 660, 19 L. R. A. (N. S.) 725, the conditions, and the ever increasing necessi

ties of society, the courts have gone very far in sustaining legislation conferring the franchise of eminent domain, and it is not necessary for us in this case, if we were so inclined, to question the soundness of the policy sustained in those decisions."

reason for denying to a private corporation the power of eminent domain for the promotion of a public use, because by its charter it is also authorized to engage in a private enterprise, than to deny to a private person the same power, because he is inherently endowed with the same authority."

But it is further contended by the appellant that there is no provision of law determining the necessity of the taking, either by the jury of inquisition or by a court of competent jurisdiction, and the taking therefore

We think that the language of the appellee's amended charter amply safeguards the right of the public to the use of the electric current to be conveyed over the pole line, and that we are well within the principles laid down in the Arnsperger Case in holding that the right of eminent domain may be exercis-is without due process of law, both under the ed by the appellee for the purposes indicated in its amended charter.

But it is further contended by the appellant that some of the purposes of the appellee as set forth in its charter cannot be held to be public uses, and therefore the power of eminent domain cannot be exercised at all. But this is only when a private use is combined with a public use in such a way that the two cannot be separated. 1 Lewis on Eminent Domain, § 206. The case of Harlan v. Centralia Elec. Power Co., 42 Wash. 633, 85 Pac. 344, 7 L. R. A. (N. S.) 198, states what we deem to be the true doctrine in this respect. There the court said: "The objects for which the corporation was formed, as recited in its articles, are many and somewhat varied, and those of a public and quasi public nature are commingled with those that are purely private. The relator contends therefore, to permit it to condemn property at all, is to permit private property to be taken for a private use. There are cases which maintain the doctrine that a statute authorizing the condemnation of property for uses, a part of which only are of a public nature, is in violation of the rule that private property cannot be taken for private use, and hence cannot be enforced.

If

Constitution of the state and the fourteenth amendment to the Constitution of the United States. But in New Central Coal Co. v. George's Creek Coal Co., 37 Md. 565, speaking of the necessity of the taking, the court said: "It is proper that taese questions be referred exclusively to the court specially clothed with jurisdiction and power to pass on the propriety of the inquisition of condemnation." And in N. Y. Mining Co. v. Midland Co., 99 Md. 513. 58 Atl. 217, Judge McSherry said: "There could be no more conclusive reason for refusing to confirm the inquisition than the nonexistence of a necessity for an acquisition of the land sought to be condemned. Whether such a necessity did in point of fact exist was obviously a question for the court below to determine upon the objections filed before the inquisition could be confirmed." The case before us has not reached a stage for the consideration of that question. As was said in New Central Coal Co.'s Case, supra: "In the delegation of the power is implied the condition that it shall only be exercised when, and to the extent actually found necessary. This rule, however, may, and generally does, involve questions of engineering and other questions that a court of equity cannot undertake to determine."

a private use is combined with a public one Again, it is contended that the appellee, in such a way that the two cannot be sep- even if it has a valid power of eminent doarated, then, unquestionably, the right of main under section 366 of article 23, cannot eminent domain could not be invoked to aid take both a fee simple, or the use in fee the enterprise; but it has been said, and it simple, of the parcel described in the applicaseems to us that it is the better reason, that tion and warrant, and also an easement to where the two are not so combined as to be cut and trim trees and other obstructions inseparable, the good may be separated from which may fall upon or interfere with the use the bad, and the right exercised for the uses of said parcel of land, for the reason that that are public. * * While the exercise the language of section 366 is in the disjuncof the right of eminent domain must be tive, "the use thereof in fee simple, or for a guarded jealously so that the private proper- less estate." We cannot adopt so narrow and ty of one person may not be taken for the strained a construction. To compel the apprivate use of another, after all is said and pellee to condemn the use in fee simple of done, the power to prevent property taken for the whole, when the use in fee simple of a public use from being subsequently devot-part, together with an easement in adjoining ed to a private use must rest rather in the land would be ample, would be an arbitrary supervisory control of the state, than in caution in permitting the exercise of the power. Property taken for a public use by a corporation organized solely to promote a public business may be as easily diverted by it to a private use as it may by one having both private and public objects." And in Lake Koen Nav. Co. v. Klein, 63 Kan. 485,

and unreasonable construction to impose upon the language of the law. It cannot be doubted that if the appellee had only asked for the use in fee of the parcel described, and after occupying it had discovered that it was necessary to have the right to cut and trim trees and bushes interfering with the use and occupation of the parcel first taken, that

purpose; and there can be no reason why it should not be allowed to take in one proceeding, upon proof of necessity, what it could take in two proceedings.

assurance that corporations engaged in the public service, as well as other corporations, shall perform their duties to the satisfaction of the public." In this state all charters granted or adopted since the Constitution of 1867 may be altered from time to time and repealed at the pleasure of the Legislature, and any corporation may forfeit its charter by nonuser or misuser of its franchises. In any such case, where the use in fee had been condemned as authorized by the statute, there are not wanting authorities of high character holding that this should be treated as a qualified fee simple determinable when the public use ceases, and that the land would revert if the company ceased to use it for the purposes for which it was taken, or upon forfeiture of the company's charter. 1 Lewis on Eminent Domain, § 278; People v. White, 11 Barb. (N. Y.) 28; Hooker v. Utica Turnpike Co., 12 Wend. (N. Y.) 371; Raleigh R. R. v. Davis, 19 N. C. 467. But that question does not properly arise in this case, and we are not to be understood as deciding it, or attempting to decide it, in advance of its presentation.

Finally, it is contended that, under the general and unrestricted power of amendment given to corporations organized under the general law, the appellee could, after acquiring the appellants' property, for the public uses which we have said are imposed upon it, under its amended charter, divest itself of such public uses, merely by another amendment, repealing or striking out all the provisions of the original amendment, with the result that it would then hold for private uses property condemned for a public use. But this result cannot be accomplished under the law. We have said that the appellee is a public service corporation. Section 51 of article 23, as amended by the act of 1908, while permitting corporations in general to apply for voluntary dissolution, expressly withholds this power from public service corporations, and it can require no argument to show that such a corporation could not by amendment accomplish what it could not do by attempted dissolution. By that provision It results, from what we have said, that of the law the state declared its purpose to none of the constitutional objections made retain absolute control over public service by the appellants can be maintained, and the corporations and to forbid them, by any meth-decree refusing the injunction and dismissing od or device, to divest themselves of their the bill must be affirmed. duties and obligations to the public. The state could for proper cause forfeit the charter of a public service corporation, but its power is just as clear to control its conduct as such, and to compel by mandamus the performance of its public duties. C. & P. Telephone Co. v. B. & O. Tel. Co., 66 Md. 419, 7 Atl. 809, 59 Am. Rep. 167.

Decree affirmed; costs above and below to be paid by the appellants.

(106 Me. 150)

Nov. 24,

MISHOU v. MAINE CENT. R. CO. (Supreme Judicial Court of Maine. 1909.)

(Official Syllabus.)

1. TRIAL (§ 139*)-DIRECTING VERDICT.

But it would be an injustice to assume that the appellee would attempt to do what the law forbids. In McMeekin v. Central CaroIt is the settled law of Maine that, when lina Power Co., 80 S. C. 512, 61 S. E. 1020, the evidence is insufficient to support a verdict 128 Am. St. Rep. 885, the court said: "The for the plaintiff, the court is not required to language of section 5 of the act plainly im-submit the case to the jury, but may direct a

poses upon the defendant a public duty and the petition assumes that the defendant will not comply with the requirements of the statute. It would be prejudging the case to decide that question at this time." And the same is substantially held in Brown v. Gerald, 100 Me. 372, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526, and in Rockingham County L. & P. Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 586. In the latter case the company's charter had been amended, as in this case, with a view to a clearer imposition of a public use upon the property proposed to be taken, and the court, after saying that the public thereby acquired a right to the service of the corporation upon equal and reasonable terms, said further: "In addition to the plaintiff's duty in this regard, the Legislature have power to control the plaintiff in its dealings with the public, * and this furnishes additional

verdict for the defendant.

Dig. 8 338; Dec. Dig. § 139.*]
[Ed. Note.-For other cases, see Trial, Cent.

2. MASTER AND SERVANT (§ 287*)-INJURIES
TO SERVANT-NEGLIGENCE OF FELLOW SERV-
ANT-DIRECTION OF VERDICT.

Where, at the close of the plaintiff's evidence in an action on the case to recover damtiff and caused by the alleged negligence of the ages for personal injuries sustained by the plaindefendant, the presiding justice ordered a nonsuit, and the plaintiff excepted, held, that the nonsuit was rightfully ordered.

Servant, Cent. Dig. 88 1060-1062; Dec. Dig. § 287.*]

[Ed. Note.-For other cases, see Master and

3. MASTER AND SERVANT (8 185*)-INJURIES TO SERVANT-NEGLIGENCE OF FELLOW SERVANT.

Where the plaintiff, who was a train conductor in the employ of the defendant railroad, was injured by his train colliding with another train of the defendant, and the proximate cause of the accident was a switch left open by the negligence of the plaintiff's fellow servant, a

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

brakeman, held, that the defendant was not lia- | west-bound train, who testified that he was ble for that negligence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 411; Dec. Dig. § 185.*] 4. MASTER AND SERVANT (§§ 276, 279*)—INJURIES TO SERVANT-EVIDENCE.

Where it was contended that the defendant railroad was negligent in putting an engineer in charge of a certain train, 'who was inexperienced, incompetent, untaught, and improperly instructed as to the running of said engine and train over said road," and also that it was negligent, in that it "carelessly, negligently, and wrongfully maintained", a certain cross-over, which "was improperly planned, arranged, defective, and unsafe," held, that the evidence was insufficient to sustain a verdict for the plaintiff upon either proposition.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 959, 973; Dec. Dig. 88 276, 279.*]

43 years old, and had been running locomotives as engineer for 16 years continuously; that before being put in charge of this train he went over this particular track between Oldtown and Bangor (about 12 miles in length) for a week in an engine with a regular engineer on that road, for the purpose of learning about the track, the crossings, switches, signals, semaphores, and the like, after which he passed an examination required by the defendant company as a test of his qualification for that service.

Another engineer, called by the plaintiff, testified in cross-examination, in respect to the time necessary for an experienced and efficient engineer to learn this particular piece of road, that "if they paid strictly to atten

Exceptions from Supreme Judicial Court; tion he ought to learn it in two or three or Penobscot County. four days on it."

Action by George F. Mishou against the Maine Central Railroad Company. Judgment of nonsuit, and plaintiff brings exceptions. Overruled.

Argued before WHITEHOUSE, SAVAGE, CORNISH, KING, and BIRD, JJ.

It is to be further noted that the accident would not have occurred if the switch had not been open, and the evidence does not show what could have been done by any engineer to avoid this accident; the switch being open. The semaphore indicated safety, an invitation to the engineer to come on; but when

George E. Thompson and Taber D. Bailey, the open switch was seen the train could for plaintiff. Forrest Goodwin and John Wilson, for defendant.

not be stopped, and the collision was then unavoidable. After a careful examination of the case it is the opinion of the court that the evidence is insufficient to sustain a verdict for plaintiff upon the proposition that the defendant was negligent in its selection of the

KING, J. Action for damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. At the close of the evidence in behalf of plain-engineer of the west-bound train. tiff the presiding justice ordered a nonsuit, Second, the plaintiff contended that the deand the case is before the law court on excep- fendant was negligent, in that it "carelessly, tions to that ruling. negligently, and wrongfully maintained" October 23, 1906, the plaintiff was conduct- said cross-over, which "was improperly planor of defendant's train No. 401, running east-ned, arranged, defective, and unsafe." His bound from Bangor to Oldtown. There was position was that on double tracks a crossa double track from Orono to Oldtown. At over would be less dangerous if constructed Webster Station, between Orono and Oldtown, and maintained in the reverse position, with there was a switch or "cross-over" from the a trailing instead of a facing switch, so that, west-bound to the east-bound track, facing if open, it would not face the current of trafthe west-bound trains. The plaintiff's train | fic. going east was due and on time at Webster Station at 8:55 a. m. Another train of defendant, No. 512, running west-bound from Oldtown to Bangor, was due at Webster Station at 8:57 a. m., but not scheduled to stop there. The switch at the "cross-over" had been left open by a brakeman of a shifting engine operating at Webster Station, and just as the east-bound train started out of Webster Station the west-bound train passed through the open switch, and the engines collided. The plaintiff's injuries resulted from the collision. Two propositions are relied upon: First, that the defendant was negligent in putting an engineer in charge of the westbound engine "who was inexperienced, incompetent, untaught, and improperly instructed as to the running of said engine and train over said road."

It may be true that such construction of a cross-over as plaintiff suggests would be less dangerous than that adopted and used by defendant; but, if so, no evidence was introduced to establish it, or to show that the cross-over as located and maintained was not reasonably safe, or was not such as is usually and customarily adopted and used in the management and operation of railroads similar to the defendant's. There was, therefore, no sufficient evidence to sustain a verdict for plaintiff on the proposition that the defendant was negligent in the location and method of construction of its cross-over.

Finally, the case clearly shows that the open switch was the proximate cause of the accident which resulted in the plaintiff's injuries.

The switch was left open by the negligence The plaintiff called the engineer of the of the plaintiff's fellow servant, the brake