Webb v. Knox Co. Transmission Co.

purpose was questioned on the ground that it was not a public use, in that the Calor Oil & Gas Company was a mere dummy of the Louisville Gas Company, in whose interest it was organized; the Louisville Gas Company owning all, or practically all of the stock of the Calor Oil & Gas Company. In discussing the petitioner's right to

condemn, the court said:

"Nor is it material that the appellant (Calor Oil & Gas Company) proposes to sell all of its gas to the Louisville Gas Company, and in that way distribute it to the citizens of Louisville."

Nor do we think that the fact that petitioner has leased its property to the Tennessee Power Company is a valid defense to its right to condemn. The leasing of this property to the Tennessee Power Company was authorized by the statute. Shannon's Code, section 2043.

In the case of State ex rel. Trimble v. King County Superior Court, 31 Wash., 445, 72 Pac., 89, 66 L. R. A., 897, it was held that a railroad company was not deprived of the right to exercise the power of eminent domain by the fact that it had no rolling stock of its own, and its right of way was leased to another company. In that case the court said:

"And if it be true that said company has leased its railroad to the Great Northern Company, or any other company or companies, or agreed to do so, it is not thereby precluded from condemning and appropriating private property, for a public use, which may be necessary for its tracks, side tracks, depots," etc.

To the same effect is the rule announced in New York,

Webb v. Knox Co. Transmission Co.

1

L. & W. R. Co. v. Union Steamboat Co., 99 N. Y., 12, 1 N. E., 27, in C. & W. I. R. Co. v. I. C. R. Co., 113 Ill., 156, in Crolly v. Minneapolis & St. Louis Ry. Co., 30 Minn., 541, 16 N. W., 422, and in Snyder v. B. & O. Railroad Co., 210 Pa., 500, 60 Atl., 151.

Nor do we think it is material that the petitioner may be allied with or promoted by the Tennessee Power Company, or that it may intend to supply electricity to the Knoxville Railway & Light Company. We think the rule is well established by the great weight of authority that, if the use for which the property is proposed to be applied is, in fact and in law, a public use, it is immaterial whether it is promoted by other corporations in whole or in part. This does not affect the right of condemnation, and it cannot be set up as a defense that a corporation seeking to condemn is owned or controlled by some other corporation, which will be the chief beneficiary of the condemnation proceedings.

In Lewis on Eminent Domain, vol. 2, p. 1070, it is said: "If the petition or instrument of appropriation shows that the property is wanted for a purpose which is a public use within the Constitution, and for a purpose within the statute conferring authority, it would seem the better rule that any inquiry into the secret purpose or intentions of the appropriator should be precluded."

The same author, at page 1050, further says: "It is no objection that the organization of the plaintiff corporation was promoted or procured by another corporation, or its stockholders, which is especially interested in the enterprise for which the plaintiff was formed, and which

Webb v. Knox Co. Transmission Co.

could not condemn property in furtherance of such enterprise, and such matters cannot be set up in answer to the plaintiff's petition to condemn."

To the same effect is the rule announced in 2 Nichols on Eminent Domain, section 413; 10 R. C. L., pp. 211, 212; 20 Corpus Juris, p. 914; Railroad Co. v. Cable Co., 111 Fed., 842, 49 C. C. A., 663; Postal Telegraph Co. v. Railroad Co., 23 Utah, 474, 65 Pac., 735, 90 Am. St. Rep., 705; and Oliver v. Bridge Co., 197 Pa., 344, 47 Atl., 230.

To the same effect is the rule stated in our own cases of Railroad v. Railway, 116 Tenn., 504, 95 S. W., 1019 and Lea v. L. & N. R. Co. et al., 135 Tenn., 560, 188 S. W., 215 Nor do we think that anti-trust laws have any application to the petitioner's right to condemn.

In Railroad v. Railway, supra, this court held that this question could not be raised collaterally.

In 2 Nichols on Eminent Domain, 1088, it is said: "It is universally held that, when the power of eminent domain has been conferred upon a corporation duly formed, its right to exercise the power will not be defeated simply because the corporation has done, or omitted, some act which may be a cause of forfeiture of its rights and franchises."

In answer to the fifth ground of defense offered by the defendants, to the effect that the right of way proposed to be condemned by the petitioner is improperly located, it is only necessary to say that it has been ruled with unbroken unanimity in this State that the right of location rests with the condemning party. Railroad v. Railway,

Webb v. Knox Co. Transmission Co.

supra; Railway v. Campbell, 109 Tenn., 655, 73 S. W., 112; Railway v. Memphis, 126 Tenn., 267, 148 S. W., 662, 45 L. R. A. (N. S.), 266, Ann. Cas., 1913E, 195; Railroad V. Union City, 137 Tenn., 500, 194 S. W., 572; Gamble v. Paine, 141 Tenn., 551, 213 S. W., 419; Western Union Telegraph Co. v. Railroad, 133 Tenn., 710, 182 S. W., 254.

In Railroad v. Railway, supra, the court quoted from 2 Lewis on Eminent Domain, p. 1068, as follows:

"If the contention were well founded, the result would be that the plaintiff could not condemn any land, for every other landowner would likewise have the same right to object to his land being condemned."

It appears from the testimony of Mr. Crumbliss, the engineer, that he has located the right of way, which it is proposed to condemn, over lands that are less susceptible of improvement, and along the edges of creeks and over unused lands, so as to do as little damage as possible. The engineer further testified that the line proposed to be located does not run near enough to any property to offer the least danger from electricity. He further shows that the Tennessee Power Company's line passes through the suburb of Whittle Springs, a more populous community than Bearden.

The rule is clearly stated in the case of Railroad v. Memphis, supra, as follows:

"But where the taking is for public use, the only remaining restriction on the sovereign power is to pay the fair and reasonable value of the property taken, generally denominated 'just compensation.'

Webb v. Knox Co. Transmission Co.

"But all other incidents of the taking are political questions, for the determination of the sovereign, and not judicial questions, for the determination of the courts. Selecting the property to be taken, as contradistinguished from similar property in the same locality, determining its suitableness for the use to which it is proposed to put it, as well as deciding the quantity required, are all political questions, which inhere in and constitute the chief value of the power to take. This power would be a vain and empty thing, if the owner could contest the advisibility of taking his property rather than his neighbor's, or if he could interpose as a defense to the taking that other property could be found which would suit the public purposes better, or that he, the owner, was of opinion and could prove that the public needed more or less than the quantity proposed to be taken. The power to take would be of small value, if the thing to be taken, in its quantity, quality, and locality, could be determined by another and adverse interest. The authorities seem to be in harmony."

Now, answering the defendants' contention to the effect that petitioner does not own its own dams, create its own water power, or manufacture its own electric energy, and therefore has no right to condemn, we are of the opinion that it is not necessary for petitioner, in order to exercise the right of eminent domain, to own its own generative plant.

In Curtis on Electricity, section 104, it is stated that"Electricity is property, and may be the subject of sale and delivery. An electric company may purchase its