The Bridgeport evening farmer., 1913-11-06

It seems futile to combat the state ment further than to suggest that the right of eminent domain has been supported when granted to individuals and corporations in their private bus mess in aid of all sorts of public utt1- ities, mining enterprises, grain eleVa- tors, cemeteries, grain mills, petro- leum transportation and schemes of private drainage and irrigation.
 And in our State in aid of a mill for the manufacture of axIes and. tin ware. Todd vs. Austin, 34 Conn. 78.
 Many of these are activities which neither the State nor any of it's politi- cal divisions has essayed in aid of prt- sal opinion would forbid it's trying.
 The opinion supports Acts giving the right of eminent domain in aid of private ownership of mills, mining, drainage and irrigation.
 None of these can be properly held to be a purpose which the government or any of it's political divisions could administer.
 Thus we think the opinion refutes it's doctrine that governmental use is a prerequisite of public use.
 Its second prerequisite. that the use must be one in which the public has or can acquire a common right on equal terms to the use of the property taken, is a. view which we expressly repudiated in Olmstead vs. Camp, 33 Conn. 532, 546, and impiiedly rejected in other decisions.
 Some thorities hold that a grant of eminent domain cannot be delegat- ed to a private corporation which is not under governmental control or regulation, and make this the test of public use." But generally speak ing, there have been two general views of what constitutes a public use. and under one head or the other most of authorities are ranged.
 1. One holding that there must be a use or right of use on the part of the public or some limited portion of it.
 2. The other holding that public use is equivalent to public benefit, or utility. H Lewis on Eminent Domain, (3d Ed3 Sec 257. These two views are the only ones we need consider.
 Nichols on Eminent Domain, Sec. 2O6, note, says, '"The weight of au- thortty supports this view'' (the sec ond).
 An examination of the authorities tends to support this conclusion. There are a host of decisions supporting each view; it is quite immateria1 which has the major number.
 We, from the beginning have adopt ed the second view, and unless there Apart from it.
 When first called upon to consider a grant to a railroad of the right of eminent domain we adopted the pub lie utility view as the test of pub lie use.'' Bradley vs. N. Y., N. H. & H. R. R. Co.,, 21 Conn. 293, 305.
 In O1mstead vs. Camp (supra) in sustaining the constitutiona1ity of the grant to a grist mill of the right to flow land, the question, on which of these conflicting views should prevail, was e1aborateIy and ably presented by the most eminent lawyers of that day. Judge Origen s. Seymour for the res pondent maintained that 'fno taking is for public use unless the property is to be used by the public to answer some public emergency and must be appropriated for that service.
 Public use means possession, occu- patton, direct enjoyment by the public. The thing taken is used by the public. and is taken that it may be so used"
 The court considered and repudiat- ed view 1, that public use means possession, occupation, direct enjoy ment by the public.''
 Public use," says McCurdy J., fsnay therefore well mean public use fitness, 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." ''The term public use is synonymous with public benefit or advantage
 Six months later the court in Todd vs. Austin, 34 Conn. 78, had before it the same question and it said that this point twas decided after full consid- eration in the case of Olmstead vs. Camp
 In Bradley vs. N. Y., N. H. 6 H. R. R. Co.,, (supra) the power of eminent domain given the railroad was sus- +oi "a of benefit to be subserved- This case and Nicholson vs. N. Y, N. H. & H. R. R. Co.,, 22 Conn. 73, were cited in 0Irnstead vs. Camp, in support of it's holding that public utility was the test of public use.
 In N. r., N H. & H. R. R. Co.,, vs. Omeld, TT Conn. AT, 421, we said, Baldwin J. -It (property taken by eminent domain for a railroad) is so taken because the public benefit will be promoted by such a railroad" So in Evergreen Cemetery Assn vs Pardee J., "Corporations take land by right of eminent domain primarily for the benefit of the public, incidentally for the benefit of themselves.''
 And in the latest utterance of this court upon this subject we have held to the same underlying principle. Board Water Comm'rs vs. Johnson, 86 Conn. 151, 164.
 All authorities place Connecticut among the courts committed to the utility test. It has behind it the authority of our greatest jurist such as Chief Justice Storrs, Butler and Baldwin. Before we overruIe so set tied a principle of law it ought to be very apparent that it does not rest upon a logical basis or that in its practical operation it either has work ed injustice, or promises to-
 The utility test is not subject to such attack. It rests on the better reasoning and in it's application it has not worked harm.
 Every valid exercise of this right in all jurisdictions can be supported upon this underlying principle of public utility.
 The instances which the opinion hold to be exceptions to it's test of