Summary
In Rehfuss v. City of La Crosse (1942) 240 Wis. 619, 4 N.W.2d 125 the taking was by a city for use as a public library, the library to be turned over to and operated by a private corporation but for the use and benefit of the public.
Summary of this case from Rubin v. W.H. Hinman, Inc.Opinion
May 5, 1942 —
June 1, 1942.
APPEAL from an order of the circuit court for La Crosse County: EDWARD J. GEHL, Circuit Judge, Presiding. Affirmed.
For the appellant there was a brief by Baldwin Bosshard of La Crosse, and oral argument by Otto Bosshard.
Fred E. Steele, city attorney, for the respondent.
Action in equity to restrain trespass. This action was begun on December 31, 1940, by Virginia Rehfuss, plaintiff, against the city of La Crosse, a municipal corporation, defendant, seeking a permanent injunction restraining the defendant, its agents and servants, from trespassing upon certain lands alleged to belong to the plaintiff. In the complaint it is alleged that the plaintiff for more than twenty years last past has been the owner of the lands in question; that the city of La Crosse by and through its park board and the agents and servants of the park board and city trespassed upon the said premises, claiming the right to do so on the ground that the city of La Crosse was the legal owner of the lands; that the defendant city claims ownership under and by virtue of certain condemnation proceedings conducted and carried on in the circuit court for La Crosse county for the acquisition thereof; said lands to be acquired for the benefit of the trustees of the La Crosse Public Library; that the said La Crosse Public Library is operated, managed, and controlled by a self-perpetuating board of directors, seven in number, and that said defendant has no control over said library or its directors or employees; that the city of La Crosse does, however, annually levy a special library tax and appropriates the same to the said corporation, said money being used for the operation and maintenance of said corporation.
The defendant demurred to the complaint, and from an order entered on August 22, 1941, sustaining said demurrer, the plaintiff appeals.
We shall consider the principal contention made by the plaintiff without deciding whether the action was begun in the proper form. The contention of the plaintiff here is that the city of La Crosse may not condemn lands for the benefit of the La Crosse Public Library for the reason that the La Crosse Public Library is a private corporation; that the power conferred upon the city by sec. 62.22, Stats., cannot be exercised for the benefit of a private corporation. This argument is based upon the fact that the city of La Crosse has no control or authority over the library which is managed and conducted by the trustees of the La Crosse Public Library. The real question for decision is whether the lands in question were acquired by the defendant city for a public purpose. The mere fact that the legal title of the property owned by the La Crosse Public Library is in a private corporation does not prevent it from being devoted to a public use. Ch. 32, Stats., expressly authorizes the exercise of the power of eminent domain for the benefit of private corporations, among which are telegraph and telephone corporations, corporations formed for the improvement of any stream, for log-driving purposes, railroad corporations, and many others. It is not doubted that the power of eminent domain may be exercised by such corporations where the use to which property is to be devoted is a public use. It has been so held in many cases.
It is stated in the complaint that the La Crosse Public Library is as its name implies a public and not a private library. That the maintenance and operation of a library by a nonprofit corporation for the use of the general public is a public purpose cannot be questioned. It was so held in State ex rel. La Crosse Public Library v. Bentley (1916), 163 Wis. 632, 158 N.W. 306. The mere fact that the city of La Crosse has no voice in the election of trustees of the La Crosse Public Library has no bearing upon the question for decision. Public authorities have no choice in the election of the board of directors of railroads, telegraph, telephone, and many other corporations for whose benefit the power of eminent domain is exercised. The use of lands upon which public-library buildings are to be constructed and operated is likewise a use for the benefit of the public and therefore a public use. The condemnation of such lands is expressly authorized by sec. 62.22, Stats. The case of State ex rel. La Crosse Public Library v. Bentley, supra, is decisive of the questions raised in this case.
By the Court. — Order appealed from is affirmed.