Claremont Railway & Lighting Co. v. Putney , 73 N.H. 431 ( 1905 )

Bingham, J.

The plaintiffs are authorized by their charter “ to acquire by contract all the property, assets, and franchises ” of the Claremont Street Railway Company and the Claremont Electric Light Company; to “ construct, maintain, and operate a railroad,” using any power except steam, for the “ transportation of passengers, freight, express, and mail,” over and upon such highways and lands within the limits of the town of Claremont “ as may be necessary for the public accommodation ” ; to carry on in the town the business of “ generating, manufacturing, producing, and supplying electricity for purposes of light, heat, and mechanical power ”; to make use of the streets of the town in distributing the same; to “ construct and maintain suitable buildings, dams, boilers, water and other motors, engines, electrical machinery and works as may be needed and convenient for conducting the business of said corporation”; and to “lease, hold, purchase, and acquire such real and personal estate as may be necessary and convenient in the prosecution of its business.” Laws 1901, e. 276.

The first contention of the plaintiffs is, that it is to be implied from the use of the word “ acquire ” in their charter that the legislature intended to confer upon them the power to take by eminent domain such property, real and personal, as might be necessary to the prosecution of their business. But the answer to this is, that as the exercise of this power is against common right, and the plaintiffs’ charter does not expressly confer the power, or point out the steps to be pursued in its exercise, or make provision for compensation, the presumption is that the legislature did not intend to confer it. Private property cannot be invaded by this power without statutory authority; and statutes which are claimed to authorize its exercise are to be strictly construed. 1 Lew. Em. Dorn., 8. 240.

The plaintiffs also contend that the right of eminent domain is conferred upon them by section 4, chapter 27, Laws 1895, as amended by chapter 93, Laws 1901; and that under the provisions of this statute they are authorized to condemn the land, of the defendant Roberts and the water privilege thereto appertaining, so that by means of their dam and canal they may divert the water of the stream from its natural channel and conduct it to their power-house, to be there used in developing electrical power. Section 4, as amended, reads as follows: “All parts of street railways, not located in a public highway, shall be laid out, located,, and the location changed, under the provisions of chapter 158 of the Public Statutes; said railway corporations may take and hold in the manner provided by said statute such land as may be necessary for the purposes of installing and maintaining power plants,, car-houses and depots, repair shops, pole lines, wires, side tracks,, and gravel pits; and said railway corporation and all persons whose property shall be taken for tlie use of such railway corporation shall have respectively all the rights and privileges, and b& subject to all the duties, restrictions, and liabilities contained in said chapter.” This section is a part of the general street railway-law; and such power as is there conferred the plaintiffs, as a street railway corporation, are entitled to exercise. Laws 1895, c. 27, s. 1. The portion of the section upon which they base their claim to condemn the land and water privilege in question is: “ Said railway corporations may take and hold . . . such land as may be necessary for the purposes of installing and maintaining power plants.” But this provision does not authorize street railway corporations to condemn land and water privileges for the purpose of diverting streams and procuring power with which to operate power plants erected or to be erected on their own land. On the contrary, the authority there conferred is limited to taking such land as may be necessary for locating or placing power plants in position for use and maintaining the same. This construction gives to the words used their natural and usual moaning and such as is recognized by leading lexicographers. The plaintiffs’ contentions cannot be sustained.

Exception overruled.

All concurred.