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the annotation, has arisen as to whether a constitutional provision

erty is taken under eminent domain must be a public one, and that private property cannot be taken for a private purpose; and the question with which the annotation is primarily concerned is whether this "public use" is the equivalent of such terms as "public benefit," "public convenience," etc. Therefore, cases arising under constitutional provisions which expressly purport to permit the taking of property for a private use in certain instances are not in point. See, for example, State ex rel. Galbraith v. Superior Ct. (1910) 59 Wash. 621, 140 Am. St. Rep. 893, 110 Pac. 429, a case involving the taking of property for irrigation of the land of a single landowner, under the provision of the Washington Constitution that "private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes.'

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In Idaho the Constitution has expressly declared that the use of land necessary to the complete development of the material resources of the state is a public use. See Potlatch Lumber Co. v. Peterson (1906) 12 Idaho, 769, 118 Am. St. Rep. 233, 88 Pac. 426, in which the court said: "In Idaho, owing to the contour of the country, its mountain fastnesses and the great difficulty of preparing and constructing means and modes of communication and transportation, and also owing to the arid condition of the state, the necessity for irrigation in the development of the state's agricultural resources and in the development of its boundless mineral wealth, it was considered a necessity to the complete development of the material resources of the state to enlarge and broaden the power of eminent domain in the state; hence the adoption of said § 14, art. 1, of our Constitution. In many of the state Constitutions, the right to exercise the power of eminent domain is made to depend upon the question whether the use contemplated is or is not a public use in the most narrow and restricted meaning of the phrase 'public use.' The decisions under many state Constitutions, therefore, are of little value as precedents for cases arising under constitutions like that of Idaho, Colorado,

permitting the exercise of the power of eminent domain for purposes neces

and other western states, which make the character of the use, whether strictly public or otherwise, the criterion of the right to exercise the power."

Under the provision of the Idaho Constitution above cited, it was held in Potlatch Lumber Co. v. Peterson (Idaho) supra, that the lumbering interest of the state was one of its material resources, which could not be developed without the exercise of the power of eminent domain, and that land overflowed by reason of the construction of a dam tending to improve the navigability of a river flowing through a timber country and used for the floatage of logs might be condemned for a storage reservoir.

But it may be observed that, while the Idaho Constitution expressly declares that the use of land necessary to the complete development of the material resources of the state is a public use "subject to the control and regulation of the state," and the court in Potlatch Lumber Co. v. Peterson (Idaho) supra, holds that land may be taken under this provision for the development of the lumbering interests of the state, in furthering the navigability of a stream for transporting logs through a timber country, yet it further holds that a person or corporation who exercises the power of eminent domain assumes certain obligations to the public; that the granting of that right carries with it the right of public supervision and reasonable control; and that one who exercises the right of eminent domain in the improvement of non-navigable rivers in the state for the purpose of floating logs and timber products did not thereby secure the exclusive use and control of such streams, but they were open to the use of anyone who had occasion to use them for any purpose; so that the exercise of the power of eminent domain seems in such instances to serve not only a public benefit, but also a use which in the strict sense is a public one because open to the public.

By constitutional amendment in 1918 it was declared in Massachusetts that the conservation, development, and utilization of the water resources of the commonwealth were public uses. See Re Opinion of Justices (1921) 237 Mass. 598, 131 N. E. 25,

sary to the complete development of the resources of the state is self-executing, or whether the legislature must first declare the specific purposes which it deems to be within the provision, before the power can be exercised. *

holding that the taking of property under eminent domain might be authorized by a corporation composed of owners or lessees of water mills or dams, organized for the construction and operation of storage reservoirs.

In Ellinghouse v. Taylor (1897) 19 Mont. 462, 48 Pac. 757, the court approves a broad view of the meaning of the term "public use," as signifying in effect indirect public benefit, although the decision turns on the construction of the constitutional provision that the use of all waters which were then or might thereafter be appropriated for sale, rental, distribution, "or other beneficial use," and the right of way over the land of others for ditches, etc., necessarily used in connection therewith, should be held to be a public use. It was held that the use of water by private individuals for the purpose of irrigating their own land was a public use under this provision, warranting the exercise of the power of eminent domain.

In Jones v. Venable (1904) 120 Ga. 1, 47 S. E. 549, 1 Ann. Cas. 185, the court held that the taking of property for a private railroad to a quarry might be justified on the ground that it was necessary for the successful prosecution of the business, and was within the constitutional provision that in cases of necessity private ways might be granted upon payment of just compensation. The court, however, conceded that the condemnation could not be sustained on the theory that the property condemned would be taken for a public use.

The provision of the Idaho Constitution, declaring the use of land necessary for certain specified purposes "or any other use necessary to the complete development of the material resources of the state," on payment of just compensation, to be a public use for which private property may be taken, was held in Blackwell Lumber Co. v. Empire Mill Co. (1916) 28 Idaho, 556, 155 Pac. 680, Ann. Cas. 1918A, 189, to be self-executing and sufficient to invest the court with the power of determining whether or not

The Federal Supreme Court has taken the position that a state may, under some circumstances at least, adopt the public benefit doctrine without any infringement of the Federal Constitution. 5

Other annotations have dealt with

any particular use for which land was sought to be appropriated was necessary to the complete development of the material resources of the state; in other words, it was not necessary, in order to give effect to the provision quoted, that the legislature should declare each material resource of the state which it deemed to be within the provision; and the legislature, it was held, would have no authority to declare that any use necessary to the complete development of the material resources of the state was not a public

use.

It was held, further, in Blackwell Lumber Co. v. Empire Mill Co. (Idaho) supra, that the fact that the Constitution expressly specified certain uses to be public, such as the construction of reservoirs, of reservoirs, irrigation, drainage of mines, etc., did not prevent the taking of land for a private logging railroad, as one of the other uses necessary to the complete development of the state, on the theory that the timber industry, not being expressly mentioned, must first be declared by the legislature to be one of the material resources of the state.

It is held, also, in Washington Water Power Co. v. Waters (1910; C. C.) 186 Fed. 572, among possibly other cases of the kind, that the provision of the Idaho Constitution above cited (to the effect that the necessary use of land for reservoirs, irrigation, mines, etc., or other use necessary to the complete development of the material resources of the state, was a public use) is self-executing, and that, in the absence of legislative declaration, the court may declare whether a use is within the provision as necessary to the development of the material resources of the state.

5 See Clark v. Nash (1905) 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas. 1171, affirming (1904) 27 Utah, 158, 1 L.R.A. (N.S.) 208, 101 Am. St. Rep. 953, 75 Pac. 371, 1 Ann. Cas. 300. Also Baillie v. Larson (1905; C. C.) 138 Fed. 177.

It is pointed out in Re Opinion of Justices (1921) 237 Mass. 598, 131 N.

various questions related to the present subject, and should be consulted in this connection. 6

II. The public benefit doctrine in general.

The doctrine that the term "public use" under the law of eminent domain is, or, under some circumstances at

E. 25, that the tendency of recent decisions of the Federal Supreme Court has been to accept as true in its application to local conditions a constitutional declaration of a state, to the effect that a given expropriation of private property is for a public use.

As to eminent domain for development or operation of mines and mining industries, see annotation following Cleveland, C. C. & St. L. R. Co. v. Illinois Commerce Commission, post, 56.

As to combination of public and private uses or purposes as affecting the exercise of eminent domain, see annotation following Kessler v. Indianapolis, 53 A.L.R. 9 [Eminent Domain, § 56]. It is shown in this annotation that the mere fact that a public use or benefit is incidentally derived will not warrant the exercise of eminent domain, if the chief, dominating purpose or use is private. This appears to be the rule regardless of the question whether the public has a right of user, or whether there is a mere public benefit, and cases of the kind do not generally present the question with which the present annotation is concerned, as to the distinction between public use and public benefit in the exercise of eminent domain. Cases which hold that an incidental public benefit will not authorize the taking of property under eminent domain are included only in so far as they appear to be of value with regard to the distinction indicated.

As to right to condemn property in excess of needs for public purpose, see annotation in 14 A.L.R. 1350 [Eminent Domain, § 4].

As to constitutionality of statute conferring power of eminent domain on private corporation or association for educational, religious, or recreational purpose, see annotation in 50 A.L.R. 1530 [Eminent Domain, § 66]. As to exercise of eminent domain for purpose of irrigating land of private owner, see annotations in 9 A.L.R.

least, may be, synonymous with public benefit, convenience, or advantage, and that a right on the part of the public, or some portion of it, to use the property taken, need not exist in order to make the use a public one, warranting delegation of the power of eminent domain, is supported by a number of authorities. 7 While, in 583, and 27 A.L.R. 519 [Eminent Domain, § 90]. 7 United States. Clark v. Nash (1905) 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas. 1171, affirming (1904) 27 Utah, 158, 1 L.R.A. (N.S.) 208, 101 Am. St. Rep. 953, 75 Pac. 371, 1 Ann. Cas. 300 (irrigation); Strickley v. Highland Boy Gold Min. Co. (1906) 200 U. S. 527, 50 L. ed. 581, 26 Sup. Ct. Rep. 301, 4 Ann. Cas. 1174, affirming (1904) 28 Utah, 215, 1 L.R.A. (N.S.) 976, 107 Am. St. Rep. 711, 78 Pac. 296, 3 Ann. Cas. 1110 (mining); Douglass v. Byrnes (1893; C. C.) 59 Fed. 29, affirmed in (1897) 27 C. C. A. 399, 48 U. S. App. 526, 83 Fed. 45, 19 Mor. Min. Rep. 96 (mining).

Arizona.-Oury v. Goodwin (1891) 3 Ariz. 255, 26 Pac. 376 (irrigation). See also Inspiration Consol. Copper Co. v. New Keystone Copper Co. (1914) 16 Ariz. 257, 144 Pac. 277 (mining).

V. Camp

Connecticut.-Olmstead (1866) 33 Conn. 532, 551, 89 Am. Dec. 221 (mill); Todd v. Austin (1867) 34 Conn. 98 (mill); Water Comrs. v. Manchester (1913) 87 Conn. 193, 87 Atl. 870, Ann. Cas. 1915A, 1105, subsequent appeal in (1915) 89 Conn. 671, 96 Atl. 182, affirmed without opinion in (1916) 241 U. S. 649, 60 L. ed. 1221, 36 Sup. Ct. Rep. 552 (reservoir); Connecticut College v. Calvert (1913) 87 Conn. 421, 48 L.R.A. (N.S.) 485, 88 Atl. 633 (recognizing rule).

Georgia. Hand Gold Min. Co. v. Parker (1877) 59 Ga. 419 (mining).

Idaho. (Special constitutional provision). See Potlatch Lumber Co. v. Peterson (1906) 12 Idaho, 769, 118 Am. St. Rep. 233, 88 Pac. 426 (lumber industry); Blackwell Lumber Co. v. Empire Mill Co. (1916) 28 Idaho, 556, 155 Pac. 680, Ann. Cas. 1918A, 189 (same); Marsh Min. Co. v. Inland Empire Min. & Mill. Co. (1917) 30 Idaho, 1, 165 Pac. 1128 (mining).

Iowa. Burnham v. Thompson (1872) 35 Iowa, 421 (mills). But see cases from this state under III. infra. Massachusetts.-Boston & R. Mill

8

some of these cases the doctrine is stated so broadly that one might infer that the court regarded public benefit and public use as always, or at least generally, synonymous, within the law of eminent domain, the authorities cited in support of the public benefit doctrine, taken as a group, support a somewhat more limited principle, viz., that there may be purposes for which the exercise of eminent domain is sought which are of such public benefit and advantage that, even though the public will have no right to use the property after it is condemned, the use may properly be regarded as a public one, warranting a Corp. v. Newman (1832) 12 Pick. 467, 23 Am. Dec. 622 (water power for mills and factories); Hazen v. Essex Co. (1853) 12 Cush. 475 (same); Com. v. Essex Co. (1859) 13 Gray, 239 (same); Talbot v. Hudson (1860) 16 Gray, 417 (removal of milldam for benefit of agricultural interests).

Montana.-Ellinghouse v. Taylor (1897) 19 Mont. 462, 48 Pac. 757 (irrigation; approving rule, though case is governed by special constitutional provision). See also Butte, A. & P. R. Co. v. Montana Union R. Co. (1895) 16 Mont. 504, 31 L.R.A. 298, 50 Am. St. Rep. 508, 41 Pac. 232 (branch railroad; approving rule).

Nevada.-Dayton Gold & S. Min. Co. v. Seawell (1876) 11 Nev. 394, 5 Mor. Min. Rep. 424 (mining); Overman Silver Min. Co. v. Corcoran (1880) 15 Nev. 147, 1 Mor. Min. Rep. 691 (same); Goldfield Consol. Mill Transp. Co. v. Old Sandstorm Annex Gold Min. Co. (1915) 38 Nev. 426, 150 Pac. 313 (same).

New Hampshire.-Great Falls Mfg. Co. v. Fernald (1867) 47 N. H. 444 (flowage act; water power for manufacturing purposes); Amoskeag Mfg. Co. v. Head (1876) 56 N. H. 386 (same); Amoskeag Mfg. Co. V. Worcester (1881) 60 N. H. 522 (same); Amoskeag Mfg. Co. v. Goodale (1882) 62 N. H. 66 (same). See also Ash v. Cummings (1872) 50 N. H. 592 (same); and McMillan v. Noyes (1909) 75 N. H. 258, 72 Atl. 759 (same).

New Jersey. Scudder v. Trenton Delaware Falls Co. (1832) 1 N. J. Eq. 694, 23 Am. Dec. 756 (water power for manufacturing establishments; but

delegation of the power of eminent domain. No court, it is believed, would commit itself to the doctrine that public use and public benefit are always equivalent or synonymous under the law of eminent domain, so that a taking of the property of another under this power could be sustained in all cases where a benefit to the general public is shown. The question is partly one of degree of public benefit, but it is more especially one of necessity for the development of the resources of a community or of a state, as will be shown by reference to the classes of cases in which the doctrine has been developed and applied. In see later cases from this state under III. infra.)

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Utah. Nash v. Clark (1904) 27 Utah, 158, 1 L.R.A. (N.S.) 208, 101 Am. St. Rep. 953, 75 Pac. 371, 1 Ann. Cas. 300, affirmed in (1905) 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas. 1171 (irrigation); Highland Boy Gold Min. Co. v. Strickley (1904) 28 Utah, 215, 1 L.R.A. (N.S.) 976, 107 Am. St. Rep. 711, 78 Pac. 296, 3 Ann. Cas. 1110, affirmed in (1906) 200 U. S. 527, 50 L. ed. 581, 26 Sup. Ct. Rep. 301, 4 Ann. Cas. 1174 (mining); Monetaire Min. Co. v. Columbus Rexall Consol. Mines Co. (1918) 53 Utah, 413, 174 Pac. 172 (mining).

8 In Dayton Gold & S. Min. Co. v. Seawell (Nev.) supra (a mining case), the court takes the view that the words "public use," as contained in the provision of the state Constitution, should be given the broad meaning of utility, advantage, or benefit, and that any appropriation of private property under the right of eminent domain for any purpose of great public benefit, interest, or advantage to the community is a taking for a public use. This position was taken in view of the decisions of the courts of other states prior to the adoption of the state Constitution of Nevada, supporting the milldam or flowage acts and other enterprises of public utility. In view of these, the court thought that it would be an unwarranted assumption upon its part to declare that the framers of the Constitution did not intend to give to the term "public use" the meaning of public utility, benefit, and advantage, as disclosed in those decisions.

9 See IV. infra.

various questions related to the present subject, and should be consulted in this connection. 6

II. The public benefit doctrine in general.

The doctrine that the term "public use" under the law of eminent domain is, or, under some circumstances at

E. 25, that the tendency of recent decisions of the Federal Supreme Court has been to accept as true in its application to local conditions a constitutional declaration of a state, to the effect that a given expropriation of private property is for a public use.

6 As to eminent domain for development or operation of mines and mining industries, see annotation following Cleveland, C. C. & St. L. R. Co. v. Illinois Commerce Commission, post, 56.

As to combination of public and private uses or purposes as affecting the exercise of eminent domain, see annotation following Kessler v. Indianapolis, 53 A.L.R. 9 [Eminent Domain, § 56]. It is shown in this annotation that the mere fact that a public use or benefit is incidentally derived will not warrant the exercise of eminent domain, if the chief, dominating purpose or use is private. This appears to be the rule regardless of the question whether the public has a right of user, or whether there is a mere public benefit, and cases of the kind do not generally present the question with which the present annotation is concerned, as to the distinction between public use and public benefit in the exercise of eminent domain. Cases which hold that an incidental public benefit will not authorize the taking of property under eminent domain are included only in so far as they appear to be of value with regard to the distinction indicated.

As to right to condemn property in excess of needs for public purpose, see annotation in 14 A.L.R. 1350 [Eminent Domain, § 4].

As to constitutionality of statute conferring power of eminent domain on private corporation or association for educational, religious, or recreational purpose, see annotation in 50 A.L.R. 1530 [Eminent Domain, § 66].

As to exercise of eminent domain for purpose of irrigating land of private owner, see annotations in 9 A.L.R.

least, may be, synonymous with public benefit, convenience, or advantage, and that a right on the part of the public, or some portion of it, to use the property taken, need not exist in order to make the use a public one, warranting delegation of the power of eminent domain, is supported by a number of authorities. 7 While, in 583, and 27 A.L.R. 519 [Eminent Domain, § 90].

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"United States. Clark v. Nash (1905) 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas. 1171, affirming (1904) 27 Utah, 158, 1 L.R.A. (N.S.) 208, 101 Am. St. Rep. 953, 75 Pac. 371, 1 Ann. Cas. 300 (irrigation); Strickley v. Highland Boy Gold Min. Co. (1906) 200 U. S. 527, 50 L. ed. 581, 26 Sup. Ct. Rep. 301, 4 Ann. Cas. 1174, affirming (1904) 28 Utah, 215, 1 L.R.A. (N.S.) 976, 107 Am. St. Rep. 711, 78 Pac. 296, 3 Ann. Cas. 1110 (mining); Douglass v. Byrnes (1893; C. C.) 59 Fed. 29, affirmed in (1897) 27 C. C. A. 399, 48 U. S. App. 526, 83 Fed. 45, 19 Mor. Min. Rep. 96 (mining).

Arizona.-Oury v. Goodwin (1891) 3 Ariz. 255, 26 Pac. 376 (irrigation). See also Inspiration Consol. Copper Co. v. New Keystone Copper Co. (1914) 16 Ariz. 257, 144 Pac. 277 (mining).

V. Camp

Connecticut.-Olmstead (1866) 33 Conn. 532, 551, 89 Am. Dec. 221 (mill); Todd v. Austin (1867) 34 Conn. 98 (mill); Water Comrs. v. Manchester (1913) 87 Conn. 193, 87 Atl. 870, Ann. Cas. 1915A, 1105, subsequent appeal in (1915) 89 Conn. 671, 96 Atl. 182, affirmed without opinion in (1916) 241 U. S. 649, 60 L. ed. 1221, 36 Sup. Ct. Rep. 552 (reservoir); Connecticut College v. Calvert (1913) 87 Conn. 421, 48 L.R.A. (N.S.) 485, 88 Atl. 633 (recognizing rule).

Georgia. Hand Gold Min. Co. v. Parker (1877) 59 Ga. 419 (mining). Idaho.-(Special constitutional provision). See Potlatch Lumber Co. v. Peterson (1906) 12 Idaho, 769, 118 Am. St. Rep. 233, 88 Pac. 426 (lumber industry); Blackwell Lumber Co. v. Empire Mill Co. (1916) 28 Idaho, 556, 155 Pac. 680, Ann. Cas. 1918A, 189 (same); Marsh Min. Co. v. Inland Empire Min. & Mill. Co. (1917) 30 Idaho, 1, 165 Pac. 1128 (mining).

Iowa. Burnham v. Thompson (1872) 35 Iowa, 421 (mills). But see cases from this state under III. infra. Massachusetts.-Boston & R. Mill

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