Protection of Public Service Company Property Land has, to be sure, been given to railroads, as a bonus, to be sold to set tlers. The very purpose served by the corporation brings this proceeding into conformity with the rule that no more is to be taken than is necessary for the accomplishment of the public object.* In land taken to advance a public ser vice, the corporation can never have the absolute fee. The reverter to the individual owner may be cut off by the condemnation of his fee and full com pensation, but the abandonment of the public use must bring about a termina tion of the control of the property taken from public ownership only for a public use. Land, easements, and fran chises may well be conveyed without the destruction of the property, but the burden upon the land of continuing the public use cannot be shed by a mere transfer of ownership. Can a gas company, for example, by agreeing with a competitor not to exer cise a franchise or not to devote land to the public purpose for which it was acquired, prevent the reverter of the franchise to the public and, as insepa rable from the intangible franchise, the tangible property indispensable to its continued exercise? Admitting that fairness would demand the compensa tion of the company for the loss of tangible property, should that loss be estimated at more than the actual loss sustained, i. e., should the supposed loss be so compensated by payment by in dividuals or the public to the company of the value of the property in the market for its most profitable purpose, rather than exactly the actual total cost to the public service company? Should a public service company be permitted to convert public property into private property and to its own profit by its own wrong, or by an un•Mills, Eminent Domain, §49 and cases cited.
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warranted extension of its powers? If this is not permitted to be done by an abandonment of the public service, should the same result be attainable during the continuance of the public service? Gas companies, for example, may find it more profitable to deal in realty held for the purposes of their franchises than to limit themselves to the manufacture and distribution of gas. Unfortunately, under their fran chises, they levy a sort of tax, propor tioned to the benefit, for the public service performed by them. The as sessment must be reasonably appor tioned to the cost. In assessing the cost of the manufacture of gas, may the supposed market value of lands and franchises be taken as the basis? In other words, does the growth of a com munity, and the consequent creation of an unearned increment in the value of the franchises of public service and the property devoted to the exercise of these franchises, result in no benefit to the community, but only in the main tenance of a high rate of charges for the public service, adequate to the payment to the bondholders and stockholders of the corporation of returns upon the bonding and capitalization of the un earned increment? So predominant has become the pub lic service as an element, not only in social, industrial, and commercial prog ress, but in the cost of living of the average man, that the old abstractions of rights and liberties seem unreal in the face of a threatened peril of social, industrial, and commercial slavery en forced by appeals to the Constitution of the United States. An examina tion, however, of a few fundamental principles will show that the law does not aid, but properly asserted prevents the substitution of private for public ownership of the common wealth. The
