Evening journal., 1912-07-19


es, herein defined. or for any Of the
purposes mentioned in the Act, would
be taking for public use within
the contemplation Of the constitu-
tional provision. If the taking OF
land for a highw y, or for an cleo
trio railway, would be a taking Tor
public one, it Is difficult to see why
il would not be equally so If taken
for a boulevard. which would include
those things and also other public
utilities.
..There can be no doubt that the
power of eminent domain may be
delegated to a private corporation
for the construction of a highway as
ordinarily understood; and no one
will say that highway is not a pub
lie use.
"There can be no doubt that every
one Of the features or elements Of the
boulevard contemplated by the stat
ute-road. railway, telegraph and tele-
phone lines. pipe lines, and the beau
tihcation of the land by walks, trees,
ETC., has been iudicially decided TO be
"a public use. But the ground of OBJ
jection upon which the plaintiff chief
ly relies Is that the statute does not
require the land taken to be devoted
to any public use. This is. we think,
the most serious and difficult question
that has been raised In the case. and
has received rom the court the most
careful and thorough examination.
"The practical and plain question is
this: Whether the legislature can au-
thorlze an individual or a corporaion'
TO take land of another by condemna-
tion proceedings for public use, and
give such individual or corporation
the right to hold the land indefinitely,
or for o long period of years, With
out making any use of Il that Is bcne-
ifcial TO the public. or that Is contem-
plated by the act Thirty feet of the
strip is required 10 be used for We
hicular road but the statute does not
specifically require the corporation 10
make any use Of the remaining one
hundred and seventy feet Apparent
" it Is left entirely optional with tho
corporation whether II shall use this
land or not
we are not at all impressed with
the argument Of plaintiffs counsel
that such one hundred and seventy
feet may be used for private purposes,
or for any purposes other than those
mentioned in the act
Neither do we think there is much
force IN the point that-the statute Is
unconstitutional because II does not
expressly provide that the public shall
be entitled to the use OF the Boule-
ward, and Of the constituent elements
thereof, or shall be entitled 10 the
benefits TO be derived from use Of the
same
Very often the act delegating TO a
corporation the power of eminent do
main does not expressly impose upon
A the obligation of public service. But
the corporation, by the acceptance
and exercise Of the power impliedly
undertakes such service respecting
the subject for which the power is
exercised.
And so we say IN the
present case, ca that the company's
acceptance OF the benefits Of the act,
With the power and exercise OF the
right Of eminent domain, imposed
upon u the obligation of public use
or service: and (2l that the provisions
OF the act itself clearly indicate the
legislative intent that the boulevard
and all its elements should be for
the use and accommodation of the
pubic, and that the public should have
the right 70 such use, or TO the bene-
nts thereof, and the service TO be sup
piled thereby The different elements
of the boulvard ar dscrlbd as public
utilities, and the purposes Il which
It is authorized TO be devoted OF used
are all Of a public nature and for the
heneiit of the public The location OF
the boulevard was to be determined
by the aents of the tSate: and the part
ito be used for vehicular travel Is to
lhe owned and maintained by the state
"Clarly the statute indicates that
the land TO be taken Hereunder was
for public use, that the public should
have the right 10 its use. or the bene-
INT Of its use. and that there should
lhe an obligation resting upon the
company to devote IL TO the public
use"
Taking up the point raised as ic
whether 200 feet of land was neces.
sary for the public use Of the houle.
ward. the court says:
The law seems 10 be equally wei
settled, that the quantity of Ian,
that can be taken for the public us
mentioned the Aact, is a matte
SssIly within the discretion of tn