
    The Miami Coal Company v. Samuel W. Wigton.
    The act of April 8, 1856, providing for the incorporation of mining and other companies, authorizes a mining company to construct a railroad from its mine to another railroad; but makes no provision for the appropriation <jf land for such road, other than that the company shall, “in respect to such railroad, be subject to and governed by the . . . acts in relation to railroads, so far as applicable thereto. ” — Held: That under the strict construction applicable to grants of the power of eminent domain to corporations, said act of 1856 does not authorize such mining company to exercise the same power to appropriate private property that is conferred on railroad companies by said “acts in relation to railroads.”
    Error to the court of common pleas of Muskingum county. Reserved in the district court.
    The original ease was a proceeding by the plaintiff in the probate court to condemn a right of way for a railroad through the lands of the defendant.
    The statement filed in the probate court, October 30,1866, sets forth, that the plaintiff is a^ body corporate under the laws of the State, for the purpose of “ mining coal and other minerals; ” and that it finds it necessary to appropriate to its use certain lands of the defendant, for the purpose of a right of way for a railroad for the transportation of coal and other necessaries from the Cincinnati and Zanesville Railroad, to and from the lands of the plaintiff.
    The defendant was duly notified, and a jury was duly drawn and summoned to attend at the probate court on the 2d day of November, 1866.
    The defendant then appeared and filed a motion to dismiss the proceedings, on the ground that they were unauthorized by law. The motion was overruled by the court, and the defendant excepted.
    The jury, upon hearing, rendered a verdict, for right of way and damages, for the sum of seven hundred dollars, which amount, together with the costs of suit, plaintiff deposited in the court for the defendant.
    The defendant filed a motion for a new trial, for the rea son, among others, that the proceeding and verdict are irregular and illegal. This motion was overruled, and exception taken.
    A judgment was rendered in favor of the defendant for the sum of seven hundred dollars and costs; and it was adjudged by the court, “ that said corporation, £ The Miami Coal Company,’ plaintiff, hold the property in these proceedings mentioned, for the uses and purposes for which the same was appropriated.”
    On the hearing of the motion to dismiss the proceedings, the plaintiff gave in evidence their charter or declaration of incorporation, which is as follows: '
    “The undersigned citizens of Hamilton county, in the State of Ohio, associating themselves, together for the purpose of mining coal, ores, and other minerals, and carrying on the business usually connected therewith, and in addition thereto, to construct a railroad from any mine or mines, which said corporation may acquire, to the road of the Cincinnati and Zanesville Railroad Company, according to an act of the general assembly of the State of Ohio, passed April 8, 1856, entitled £ An act supplementai’y to the act entitled “ An act to provide for the creation and regulation of incorporated companies in the State of Ohio,” ’ passed May 1,1852 — do certify:
    “ 1st. That the name and style of said corporation shall be, £ The Miami Coal Company.’
    “ 2d. That the capital stock thereof shall be one hundred thousand dollars, divided into shares of $100 each.
    “ 3d. The business of mining shall be carried on at such places as the said corporation may acquire coal and other mineral lands; and the office and place of business of said corporation shall be in the city of Cincinnati.
    “ Dated, June 16, 1866.”
    [Signed, sealed, acknowledged, etc.]
    The defendant prosecuted his petition in error, in the court of common pleas, to reverse the judgment and proceedings; had in the probate court, and assigned for error, among other-things, that the probate court had no jurisdiction of the sabject-mattei*, that the court erred in overruling the motion to dismiss the proceedings and the motion for a new trial, and in rendering judgment for the plaintiff.
    The court of common pleas reversed the judgment of the pi’obate court, and to reverse the judgment of reversal the plaintiff filed in the district court a petition in error, and the same was reserved to this court for decision.
    
      Southard <& Southard and Hunter <& Daugherty for plaintiff in error:
    The Miami Coal Company, being a body corporate, is vested with power and authority to appropriate private property to the use proposed, that use being a public use within the meaning of the constitution and laws of the State.
    It is the obvious intention of the last clause of section 8 of the supplementary act of April 8, 1856 (S. & O. 3M), to subject the companies named in the section, to wit: companies organized under the provisions of the act for the purpose of mining, quarrying, and manufacturing [and which are authorized by the section to construct railroads from their rrdne, quarry, or manufactory, to any other railroad], to the operation of all existing laws in relation to railroads, so far as applicable to the railroads so to be constructed by said companies.
    The effect, doubtless, is to subject them to the same duties, •obligations, and penalties, in respect to their railroads, as railroad companies are subject to bylaw; as, for instance, ■for negligence resulting in loss of life or property, taxation, ^fencing their road, etc.
    And, on the other hand, they are clothed with the like rights, powers, and privileges conferred upon railroad com¡panies, being bodies corporate; and prominent amongst these, the power to enter upon lands of private individuals, do examine, sm*vey, locate, and construct its road, but subject, ■of course, to the provisions of law regulating the mode of procedure in such cases prescribed, in regard to railroad comcpanies. The object of the enactment is manifest. Associations for mining, quarrying, and manufacturing, evidently, not only in reference to the inherent nature of their business, but most expressly in view of the discrimination found in this very law between- them and other associations, are regarded as peculiarly promotive of the common interests of the public, whose utility will be extended by clothing them with the power to connect their establishments, mines, and quarries by railroad with the common railroads of the country.
    Such a system of railroads connecting manufactories, mines, and quarries with the common railroads of the country, becomes, immediately, a public use, and promotive of the public interests in precisely the same way, if not in the same degree, with the general railroads themselves of the country ? It is, in truth, only an extension of the system.
    It will be seen, on referring to section one of this supplemental act, that it provides for associations becoming incorporated .for various other purposes — canals for hydraulic purposes, building and repairing steamboats and other water crafts, dry docks, marine 'railways, printing and publishing newspapers, books, etc., etc.; yet, for the reason mentioned, no doubt, to none of these is given the power to construct railways, as in the cases in question.
    Assuming, then, that it was the legislative intent to confer upon mining compames, etc., the same power, “ in respect to thei/r railroads,” as are conferred upon railroad companies, the question whether such companies are clothed with power to condemn private property, etc., becomes easy of solution. Section 1 of the “Act to provide for compensation to the owners of private property appropriated to the use of corporations ” (S. & C. 311), requires the appropriation to be “ made and conducted in accordance with the provisions of that act; ” and section 10 of the general corporation act (S. & C. 21T) contains the grant of power to railroad companies to make appropriations of private property.
    ' The plaintiff, being clothed with this same power, entered upon the lands of the defendant, and surveyed its railroad line, and instituted the proceedings under review in this case, to perfect the appropriation of the strip required for the right of way, etc., in conformity with the provisions of the act referred to.
    The use for which the plaintiff thus sought to make the appropriation is a pubUo use. Geisey v. C. W. & Z. R. R. Co., 4 Ohio St. 325-328; Shaver v. Starrett, 4 Ohio St. 494; Ferris v. Bramble, 5 Ohio St. 109; B. & R. Milldam v. Neiman, 12 Pick. 477; Gardner v. Village of Newburgh, 2 Johns. Ch. 160; Lumbard v. Stearns, 4 Cush. 60; Belknap v. Belknap, 2 Johns. Ch. 468; Hosea v. Essex Co., 12 Cush. 475; Reeves v. Treasurer of Wood County, 8 Ohio St. 345; Thompson v. Treasurer of Wood County, 11 Ohio St. 678; Beekman v. S. & S. R. R. Co., 8 Paige, 73, 74; Wilson v. Blackbird Ins. Co., 2 Peters, 251.
    We further submit whether this class of railroads is not open to public use, in the same manner as railroads in general.
    
      Ball ds O'Feill for defendant in error:
    The constitution (art. 1, sec. 19) clearly contemplates that private property shall be taken only when the public interest requires it. The Miami Coal Company is not a representative of the public; the public have no interest in it. This company undertakes to appropriate our lands, not to construct a railroad with termini, but to enable it to reach its own lands, over which it lays a track, which is as clearly and conclusively private property as áre the shovels and picks with which it takes out its coal. Who can control, or, of right, use that portion 'of the track lying on the lands of this company ? The land on which that portion of the track lies has never been changed from its condition of private property, nor has the public any interest in it. The company condemn and take our land to run its private cars, to its private banks, over its private road track, for its private profit. In what does it differ from a.farmer? It furnishes fuel at its own prices, and sells or refuses to sell to whom it pleases; the farmer furnishes bread on the same terms. The keeper - of a hotel is obliged to entertain all well-behaved persons, to the capacity of his house; yet no one would undertake to appropriate private property for the erection of a hotel. What is there in the mere fact that property is to be transported by steam over iron rails, that gives this coal company these extraordinary rights?
    The act of appropriating under color of a statute does not give character to the enterprise; it is the character of the enterprise that determines the right to appropriate. The language of the statute appears to be broad enough to authorize this proceeding, but we can hardly suppose that a legislative body, looking to the provisions of the constitution, regarded the act as' within the authority of that body.
    If this plaintiff may condemn and appropriate, then any coal, or iron, or other company may do the same, and no man can feel assured of his lands against demands of this character. In that event, men, instead of holding their lands subject to the public interest, hold them subject to the demands of such corporations as private interest may bring into being for private gain. This would work so great, and so anti-American, a revolution in our tenures, that real estate would become little less unstable than chattels.
    We refer to Cooper v. Williams, 4 Ohio, 253, and Am. Law. Reg. (Aug. 1870) 487.
   Day, J.

A number of questions are made in argument, but the conclusion to which we have arrived on one is decisive of the case. Had the Miami Coal Company power or authority to make the appropriation sought by it? Clearly not, unless such authority has been conferred upon it by the legislative power of the State. This company is a corporation deriving its powers from an act supplementary to the act entitled an act to provide for the creation and regulation of incorporated companies in the State of Ohio,’ passed May 1, 1852.” The act was passed April 8, 1856 S. & O. Stat. 344. Among the various purposes for which corporations may be formed under this act, that of mining coál, ores, and other minerals ” is one. The act authorizes the “ carrying on business usually connected with the main objects of the corporations.” It also provides, in the first section, that such corporations, “when organized, shall be a body corporate, having all the privileges, immunities, and powers conferred upon manufacturing companies by said act, and shall be governed in all respects by the provisions of said act [the act of 1852], and the acts supplementary and amendatory thereto.” The third section of the act of 1856 is as follows:

“ The several companies which may be organized under the provisions of this act, for the purpose of mining, quarrying, or manufacturing, shall be authorized, when such purpose shall be stated in the certificate of organization, to construct a railroad, with a single or double track, with such side tracks, turn-outs, offices, and depots, as they may deem necessary to carry out the objects of the incorporation, from any such mine, quarry, or manufactory, to any other railroad, or any canal, slack-water navigation, or other navigable water or place within or upon the borders of this State; and shall, in respect to such railroad, be subject to and governed by the act aforesaid, and the said supplementary, amendatory, and other acts in relation to railroads, so far as applicable thereto.”

The 10th section of the act of 1852 provides, “ in relation to railroads,” that “ such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad,” etc. The act contains a great number of provisions in relation to the construction- and management of railroads. Does the act of April 8, 1856, confer upon this corporation the same authority to appropriate lands for a railroad that is expressly conferred upon railroad corporations organized under the act of 1852 ?

In deciding this question, it must be kept in mind, as a fundamental principle, held and clearly stated in Currier v. Marietta & Cincinnati R. R. Co. (11 Ohio St. 231), “ that grants of corporate power, being in derogation of common right, are to be strictly construed; and this is especially the case where the power claimed is a delegation of the right of eminent domain, one of the highest powers of sovereignty pertaining to the State itself, and interfering most seriously and often vexatiously with the ordinary rights of property.”

It is claimed that the same right of appropriating land for a railroad, which is granted to railroad companies under the act of 1852, is conferred, by the third section of the act of 1856,upon corporations organized “for the purpose of mining, quarrying, or manufacturing.” This section does confer upon such companies the authority to build railroads, which is an addition to the powers conferred by the preceding sections. But is anything more conferred than the mere power to construct a railroad in the manner defined in the section % It is claimed that, in addition to the power to construct a railroad, the concluding clause of the section confers the right of appropriating land. The literal reading of the clause only subjects the company, in respect to its railroad, to be governed by the “ acts in relation to railroads, so far as applicable thereto.” There is no express grant of authority to condemn land in the clause, nor does it expressly confer upon such corporations the powers and privileges granted by law to railroad corporations. The grant of the power in question can only be inferred from the language of the last clause of the third section of the act of 1856. But this power cannot be derived by intendment or inference. Cooley’s Const. Lim. 530. The only manifest purpose of this clause is to subject the company, in respect to its railroad, to the governing provisions of the acts in relation to railroads; it evinces no purpose to confer additional powers.

The strict meaning of this clause is rendered clear by comparing it with the last clause of the first section of the same act. It is there provided that the corporation, “ when organized, shall be a body corporate, having all the privileges, immunities, and powers conferred upon manufacturing companies by said act, and shall be governed in all respects by the provisions of said act, and the acts supplementary and amendatory thereto.”

Here it will be seen that the legislature plainly distinguishes the provisions of the act conferring powers upon the corporation, from those governing the exercise of such powers. The language used in the last clause of the third section is substantially, only that which is used in the first section, to subject the company to the government provided in the acts ref erred to in each section. If the legislature intended by the thii’d section to confer on these companies the powers enjoyed by railroad corporations, why was it not done, in as explicit terms, as it is in the first section, in relation to the powers of manufacturing corporations ? We think that if such had been the legislative intent, it would have been as clearly expressed in the one case as in the other. The language used in the third section, requiring such companies to be governed by the acts in relation to railroads, has no broader significance than that of like language in the first section; and, therefore, since the language used in the first section to confer power, is omitted in the third, a negative, rather than an affirmative, intent to confer additional power is indicated. But, however this may be, under a rule requiring a strict construction we are constrained to hold, that the act in question does not confer upon the corporation, plaintiff in this case, the power to appropriate property to its use, against the will of the owner.

This construction is strengthened by the fact, that there can be no pretence of a grant of power in the act for the appropriation of property to the use' of a company that may be organized for the purpose of constructing and maintaining a canal or canals for hydraulic purposes ; ” yet, a.corporation for that purpose is expressly authorized by the act; and it would seem that the necessity for- the exercise of the right of condemnation might be as essential for the canal of such a corporation as for the railroad of a mining corporation.

Since, then, the plaintiff had no right to appropriate the land of the defendant, the probate court erred in overruling the motion of the defendant to dismiss the proceeding for that purpose. It follows that the judgment of the common pleas, reversing that of the probate court, was right, and must be affirmed.

Brinkerhoff, C.J., and Scott, Welch, and White, JJ., concurred.  