The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-08-19

/ vi NeW OTIeanS anu IOTIIliilB part VI tie
| water works system, are the property OF
the water company; that the drainage
commission, In prosecuting It's drainage
works In the city, cannot require the re-
| moval of mains and pipes belonging to
| the water company, without previously
| making Just and adequate compensation;
and that If II attempts to do SO an In
junction pendente lite should Issue to
protect the company's rights. This case
| is directly in point, and is highly per-
suasive authority In favor of the plain
| tiffs position. In the opinion Is found n
clear discussion of the principles and a
review of the authorities, and we can do
no better than quote from 1t at some
length.
A PARALLEL CASE.
"The case has been argued as though
| the drainage commission Of New Orleans
was vested with full possession of the
police power of the state, to the exclu-
sion of all and any rights of the New Or
| leans Waterworks company, while the
fact is that both the commission and
| the waterworks company are agencies
of the state and city in providing for the
| public health and safety. and that both
are entitled to the support and protection
of the police power in executing and per-
forming the functions respectively as
| signed; and the work Of each would
seem to be of equal Importance from the
sanitary standpoint, as the one is in
| tended to bring a sufficient supply of
water into the city for the supply Of the
inhabitants, and the other to expel from
the city the overflow and surface water.
"1f there were only room for one of
these agencies, 1t might be argued with
great force that the waterworks COM
pany, being prior in time and in possess
| sion with it's mains and pipes laid, would
| have the supreme right; but, fortunately
| for all, there is room for both, and the
/ t. IL
and transfers OF water mains and pipes
the plans of drainage as determined by
the city and intrusted to the commission
| can be fully carried out; and the matter
| in hand here Is to determine at whose
| expense shall be the removal and re-
placement of the water mains and pipes.
1t is to be noticed that the commission
has been provided with large funds to
| carry on and execute its work. and to
pay the costs and expenses of the same,
| and this pre-supposes that. for work done
| and property taken necessary and proper
| to the construction, compensation Is to
be made.
"Are the water mains and pipes, as laid
in the public streets Of the city of New
Orleans, and forming part of the
waterworks system, tho property of the
New Orleans Waterworks company? Un-
| questionably; because the case shows
| that many of them as laid were directly
| thority, and the balanc- nave been laid
| under contract with the state and city,
which contract has been declared valid
beyond the impairment by state legsla-
tion in Waterworks Co. vs. Rivers, Q15
U. s. 6T4, Sup. Ct. 273. 20 l.. Ed. 525).
| Does the waterworks company own this
property subject to the legitimate eXer-
| else of the police power of the state?
Unquestionably; but the waterworks
company also owns the property under
the protection of constitutional principles,
and as declared in the constitution of the
state of Louisiana, article 167, which pro-
vldes, that private property shall not be
taken or damaged for public purposes
without just and adequate compensation
being first made
WANTED MAINS REMOVED.
'In prosecuting its drainage works in
the city of New Orleans, the drainage
commission requires the removing of GER
tain mains and pipes of the waterworks
company, with the result that the mains
and pipes are taken or damaged the le
gitimate business of the waterworks
company interfered with and damaged by
cutting off the supplies of water through
many and large tracts of the city. If
carried out, is this the taking or damag-
Ing of the waterworks property for pub
lie purposes, within the meaning of arti-
Gle 167 of the constitution above quoted?
It certainly Is a taking and damaging of
the property. If part OF the mains and
pipes can be removed, why not all? Why
cannot the drainage commission go
through every street in which there are
mains and remove the same? 1t is no
answer to say, eve do not take your
property, We just remove it, for. when
removed. it is nothing but iron pipes, and
no longer part Of the system. Nor is it
an answer to say that after we have re-
moved your mains you may replace them
somewhere else out of our way: for this
all requires expense. subjects the water
works company to damage and Is equiv
alent to saying, we do not take or dam
age your property. for after we have
removed your mains and pipes you can
get others placed elsewhere This ques-
ton seems too plain for further discus
sion..
"Is such taking or damaging war;
ranted as a legitimate exercise of the
police power Of the state without COM
pensation is first made? The question
covers very large field. Many cases
have been, and can be, cited, where. in
the legitimate exercise of the police
power, property has been incidentally,
more or less remotely, and, perhaps, even
directly, damaged through the exercise
of the police power. without requiring
compensation to be made to the owners
of the property so damaged; but I have
found no well-considered case. and none
has been cited to me, where private prop
erty has been actually taken or physi-
cally damaged that the owners We're held
not to be entitled to damages.
'In National Waterworks Co. VS.. city
of Kansas &C. Co 2S Fed. 921, there was
no such contract as here. and there was
a reservation in favor of the city as to
the designation of streets ETC.. where
pipes might be laid. Under constitu-
tional provision of the state of Illinois,
which is very similar to the constitutional
provision Of the state of Louisiana, the
Supreme court of the United States. in
City of Chicago vs. Taylor Q25 U. S. 16l,
Sup. CT. $40. 81 l.. Ed, 63S have dis
cussed and decided the matter. with the
result that the owner was entitled to
compensation in/all cases where private
property has Sustained substantial in
jury from the making and using of an
improvement that Is public in it's charac-
ter, whether the damage be direct. as
when caused by trespass or physical in
vasion of the property, or consequential.
as In diminution of It's market value
Other interesting cases in this respect
are Pumpeliy VS.. Green Bay Co., 13 WALL |
166, 20 l.. Ed. 557; Ponchartrain r. Co. VS..
Board of Com'rs of Orleans Levee Dist, |
40 La. Ann SIG, 81 South. 765: Eaton Va.
Railroad Co., 81 N. III, 504. 12 Am. Rep |
147. See also. Chicago b. and Q. r. Co
VS.. city of Chicago, 166 L. s. 226, II Sup |
CT. $751; Al, l.. Ed. 97S wherein 1t is held |
that since the adoption of the four
teenth amendment, compensation for pri- |
stitutes an essential element In due pro-
cess of law and that without such COM
pensation the appropriation of private |
nrOperty IN Dublic uses M matter under |