pied, or his water power to remain unimproved, which another is anxious to convert to uses highly advantageous to the public. On what principle shall a law transferring the title from the owner to his more enterprising neighbor, on the payment of a just compensation, be pronounced unconstitutional, if using property beneficially to 19 The term "public use" as implied in constitutional provisions that private property shall not be taken for public use without just compensation is not synonymous with public benefit, and does not mean a use which may properly be deemed to be of public benefit or advantage; but it means that the public possesses, to some extent, certain rights to the use or employment of the property. FERGUSON v. ILLINOIS C. R. Co. (reported herewith) ante, 1.

It is said in Cloth v. Chicago, R. I. & P. R. Co. (1910) 97 Ark. 86, 132 S. W. 1005, Ann. Cas. 1912C, 1115, that, in order to constitute a public use, it is necessary that the public should be concerned in the use. But the case does not directly present the question under annotation, the proceeding being one to condemn land for a railroad freight depot.

And in Gilmer v. Lime Point (1861) 18 Cal. 229, the court said that the term "public use" as used in the constitutional provision of that state, declaring that private property should not be taken for public use without just compensation, means a use which concerns the whole community, as distinguished from a particular individual or number of individuals; that it might be a use in which only a small portion of the public was directly interested, as a street, bridge, or railroad, necessarily local in its benefits and advantages, but that it must be of such a character that the general public might, if they chose, avail themselves of it. The facts of the case, however, do not bring it within the scope of the annotation, the proceeding being one by the United States to condemn land for fortification purposes.

In Gravelly Ford Canal Co. v. Pope & T. Land Co. (1918) 36 Cal. App. 556, 178 Pac. 150, the court said that, from the first case to the last found in the reported decisions of the courts of that state, it had universally been held

the public is to be deemed a public use of it?"

Attention is called in the footnote to the statements and rules laid down in several other cases in which the courts have rejected the view that public benefit is sufficient, and that there need not be a right of user by the public to warrant the exercise of the power of eminent domain. 19

that the power of eminent domain could not be exercised by a private person to promote private enterprises, no matter how necessary or advantageous the same might be to their success or how beneficial to the public. It was held that the California Statute of 1911, declaring irrigation to be a public use for which the power of eminent domain could be exercised, should not be construed as authorizing the condemnation of land for the private use merely of the condemnor by irrigating his own land exclusively. As to irrigation, see notes 22-25, infra.

The statement in Cleveland, C. C. & St. L. R. Co. v. Polecat Drainage Dist. (1904) 213 Ill. 83, 72 N. E. 684, that public use means public usefulness, utility, advantage, or profit, must be interpreted in the light of the further observations of the court, that private property cannot be condemned by a person or corporation on the ground that the general prosperity of the state or community would be promoted thereby, if the title to the property so taken is to be vested in such person or corporation as private property, to be used and controlled as other private property; and that to be public the use must concern a community as distinguished from an individual or any particular number of individuals, and that, to authorize the condemnation of private property, the law must control the use to be made of the property after it has been condemned, to the end that it shall be devoted to the public purpose which alone can justify the taking of the same from the owner without his consent. The condemnation which it is held, in this instance, was for a public purpose, was for a drainage district.

In Pocantico Waterworks Co. v. Bird (1891) 130 N. Y. 249, 29 N. E. 246, the court said it was doubtless true that, in order to make a use public, a duty must devolve upon the person or corporation holding the property to fur

IV. Illustrations.

run

It should be observed that the present annotation is concerned with discussion of principles which through various classes of cases, and that the citation of authorities to show how these principles have been applied in concrete instances, or denied application, is desirable for the purpose of developing and clarifying these principles; but that no attempt is made to cover particular classes of cases except so far as they involve the principles under consideration. Cases on similar states of fact may be decided on widely different theories. Hence the decisions set out under this subdivision should be regarded as intended to illustrate the subject under annotation, rather than as an exhaustive collection of cases on the specific facts.

nish the public with the use intended; that the term implied "the use of many," or "by the public," although it may be limited to the inhabitants of a small or restricted locality.

It is pointed out in Cozard v. Kanawha Hardwood Co. (1905) 139 N. C. 283, 1 L.R.A. (N.S.) 969, 111 Am. St. Rep. 779, 51 S. E. 932, that, while the liberal interpretation of the term "public use" in the law of eminent domain, so as to make it synonymous with public benefit, has in some cases stimulated material growth and development, yet valuable property rights have been sacrificed and dangerous monopolies fostered by such a construction.

The phrase in the Ohio Constitution relating to the taking of property for public use has been held to imply possession, occupation, and enjoyment of the property by the public, or by public agencies, to be used for public purposes. Pontiac Improv. Co. v. Cleveland Metropolitan Park Dist. (1922) 104 Ohio St. 447, 23 A.L.R. 866, 135 N. E. 635.

The statement in Pittsburgh v. Scott (1845) 1 Pa. St. 309, that the right of eminent domain may be exercised where the interest or even the convenience of the state or its inhabitants is concerned, should not apparently be regarded as necessarily approving the doctrine of public benefit merely; the court saying, also, that, to justify the exercise of the right, it must be

It has been said, 20 and properly so, that when we leave those classes of cases which are universally regarded as public and come to those which stand on debatable ground, we find that the doctrine that public benefit and utility is a justification for the exercise of the power of eminent domain has been associated more especially in four classes of cases; viz., those relating to the development of water power for mills under general or special mill or flowage acts; those arising under drainage acts for the reclamation of wet and marshy land; those relating to the irrigation of arid land; and those relating to the promotion of mining. Cases of the latter class, relating to mining, are treated in a separate annotation, 21 and are included herein only so far as their discussion of the general principles for the use of the public. And the case was one involving the exercise of the power of eminent domain for a public street.

It is said in Re Rhode Island Suburban R. Co. (1901) 22 R. I. 457, 52 L.R.A. 879, 48 Atl. 591, that there are many kinds of business of great benefit to the public generally which could not be claimed to warrant a taking of property as for a public use; that if private property is to be taken it must be for a use by the public. The case was one in which the right of a street railway company to take land for a power house in a city 5 miles from its line, in which it had no authority to operate cars, was denied, on the ground that the use was not a public

one.

In Deerfield River Co. v. Wilmington Power & Paper Co. (1910) 83 Vt. 548, 77 Atl. 862, the court said that, although others take a more liberal view, that court drew a sharp line of distinction between public use and public benefit,-guarding the private right of ownership against the exercise of the power of eminent domain for public benefit as distinguished from public use.

20 Brown v. Gerald (1905) 100 Me. 351, 70 L.R.A. 472, 109 Am. St. Rep. 526, 61 Atl. 785.

21 See annotation following Cleveland, C. C. & St. L. R. Co. v. Illinois Commerce Commission, post, 56, on eminent domain for development or

makes the same advisable. The same observation may be made as to cases relating to irrigation, questions as to the exercise of the power of eminent domain for the purpose of irrigating the land of private owners being discussed in other annotations. 22 And it should be observed that irrigation cases, like those of some other classes subsequently set out, even when they involve the irrigation of the land of an individual owner, may be decided on grounds other than those consid

operation of mines and mining industries.

The authorities, so far as mining is concerned, it will be observed, are divided, with the majority sustaining the exercise of the power of eminent domain for mining operations; while the opposing view, which is in accord on principle with the general rule shown in the present annotation, is represented by such cases as Sutter County v. Nicols (1908) 152 Cal. 688, 15 L.R.A. (N.S.) 616, 93 Pac. 872, 14 Ann. Cas. 900, which holds that the mining of gold, to be applied only to the private use of the miner, to whatever extent it may increase the general output, will not justify the exercise of the power of eminent domain on the theory of promotion of the public welfare.

22 See annotation in 9 A.L.R. 583, and 27 A.L.R. 519.

ered in the present annotation. In other words, as a class they do not necessarily present the question with which the annotation is concerned. This is true especially as to irrigation projects, which, like drainage schemes, may be upheld on the ground of reasonable regulation of parties who are treated as owners of a common property.23 The doctrine that public benefit may be sufficient, without a right of use on the part of the public, to justify a taking of propare treated for this purpose as owners of a common property. If it be essential or material for the prosperity of the community, and if the improvement be one in which all landowners have to a certain extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners by reason of the peculiar natural conditions of the tract sought to be reclaimed, then such reclamation may be made, and the land rendered useful to all and at their joint expense. In such cases the absolute right of each individual owner of land must yield to a certain extent or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit. Irrigation is not so different from the reclamation of swamps as to require the application of other and different principles to the The court observes, further, that the fact that the water is limited to the landowner is not a fatal objection to such legislation; that it is not essential that the entire community,

or

even any considerable portion thereof, should directly enjoy or participate in an improvement in order to constitute it a public use; that, as all landowners in the district have a right to a proportionate share of the water, it is not necessary, in order that the use should be public, that every resident in the district should have a right to the use thereof.

And the court in Fallbrook Irrig. Dist. v. Bradley (U. S.) supra, regarded the case as the same in principle as Hagar v. Reclamation Dist. (1884) 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663, in which it sustained the validity of California legislation prescribing a system for the reclaiming of swamp lands.

erty under eminent domain, as for a public use, is recognized, however, in a leading case involving irrigation decided by the Federal Supreme Court; 24 while, on the other hand, the doctrine that public benefit is not synonymous

24 Without committing itself to the general doctrine that private property may be taken in all cases in order merely to promote the public interest, the court in 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, held that the peculiar local conditions in Utah justified, as authorizing condemnation for a public use, a statute of that state under which an individual landowner might condemn a right of way across his neighbor's land for the enlargement of an irrigation ditch thereon, in order to enable him to obtain water from a stream in which he had an interest, to irrigate his land, which otherwise would remain absolutely valueless. The court pointed out that the question of public use, warranting the condemnation of land for an individual owner, depended upon a number of considerations relating to the situation of the state; and that it was strongly inclined to hold with the state courts, where the use was asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use was based upon, or was the result of, some peculiar condition of soil or climate or other peculiarity of the state, and the right of condemnation was asserted under a state statute. It was said that the validity of said statutes sometimes depends on many different facts, the existence of which would make a public use even by an individual, where, in the absence of such facts, the use would clearly be private. These facts, the court said, must be general, notorious, and acknowledged in the state, and the state courts may be assumed to be exceptionally familiar with them. And the court further observed that it meant simply to hold that in this particular case, having reference to the conditions which were indicated, it was of the opinion that the use was a public one, although the taking of the right of way was for the purpose simply of obtaining water for an individual, where it was absolutely nec

with public use, and that there must be a right of user by the public to warrant exercise of the power of eminent domain, finds illustration in several cases involving irrigation.25

Drainage cases, as already indi

essary to enable him to make any use whatever of the land, which would be valuable and fertile only if water could be obtained.

25 It is held in Smith v. Cameron (1922) 106 Or. 1, 27 A.L.R. 510, 210 Pac. 716, that since, under the rule adopted in that state, public use warranting the exercise of the power of eminent domain is not synonymous with public benefit, the power cannot be exercised to enlarge an irrigation ditch owned by others, in order merely to enable the applicants, who were private individuals, to irrigate their own tract of land. The court said that there was no possible ground upon which the condemnation could be based, as for a public use, unless it could be said that the irrigation of the plaintiffs' land was a public use because it would be a public benefit; that if the plaintiffs were permitted to condemn the right to enlarge and use the ditch to carry the water to their land, such right would be their right only; that it would be a private right, privately owned, and employed in furthering their private purposes, and that the condemnation would not create a like right for any other landowner, no other person being able to use the ditch unless he also acquired the right by condemnation proceedings. And it was said that, if it were desirable as a matter of public policy that a private person might be permitted to condemn private property so that he could irrigate his own private land, the remedy was by constitutional amendment.

In Vetter v. Broadhurst (1916) 100 Neb. 356, 9 A.L.R. 578, 160 N. W. 109, the court seems inclined to the view that public benefit is not alone sufficient to justify the exercise of the power of eminent domain, but that there must be a right of use on the part of the public, or public regulation. And it was held that, even if in some cases a great and general public advantage might constitute a public use, the court would take judicial notice of the fact that neither the climatic, agricultural, industrial, nor social conditions in Nebraska were

cated, are related to the present subject in much the same way as those involving irrigation. Cases involving drainage of swamp or marsh lands may be decided on the ground that statutes enacted for the purpose are police regulations, or that the same such as to warrant the condemnation of property for a site for a reservoir from which to irrigate merely the land of the condemnor. The decisions sustaining the right to take land for irrigation and milldams because of the public benefit conferred were distinguished on the ground of difference in the conditions in the states in which they were rendered and in Nebraska, the court regarding the argument, from necessity, as failing, in view of the conditions in the latter state.

By way of illustration, attention is called, also, to Thayer v. California Development Co. (1912) 164 Cal. 117, 128 Pac. 21, a proceeding to compel a development company to deliver water to the plaintiff for irrigation purposes, in which the view is taken that the term "public use" implies a right of user by the public, and that this is the test as to whether property is devoted to a public use.

See also Gravelly Ford Canal Co. v. Pope & T. Land Co. (Cal.) in note 19,

supra.

26 See Fallbrook Irrig. Dist. v. Bradley (1896) 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56, and Hagar v. Reclamation Dist. (1884) 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663, supra; also Coster v. Tide Water Co. (N. J.) in note 12, supra.

It has been held that the draining of the farm land of two individuals in order to make it more productive is not a public purpose for which private. property may be taken; so that, where the statute authorizes township trustees to cause a ditch to be established whenever, in their opinion, the same would be conducive to the public health, convenience, or welfare, they are not warranted in establishing a ditch over the land of others, under the circumstances indicated, on the theory that the public will be benefited from the raising of larger crops on the land drained. McQuillen v. Hatton (1884) 42 Ohio St. 202.

And, although the question is not directly discussed, the case of Fleming v. Hull (1887) 73 Iowa, 598, 35 N. W. 673, seems to be at least argu

merely regulate a common ownership of property, or they may recognize or reject the public benefit doctrine. Without attempting to treat exhaustively this group of cases, as a class, attention is called in the footnote to illustrative cases.26

mentative authority for the proposition that indirect public benefit merely is not sufficient to render a taking of property one for a public purpose; especially in view of the dissenting opinion, which is based on the ground that the statute should be upheld, if it were conceded that property was taken on the theory that thereby the argicultural resources of the state would be developed and the general prosperity advanced. The majority of the court held constitutional a statute which authorized the construction of tile or other underground drains through the land of another on payment of damages, "whenever any person shall desire to construct" such a drain, and which was not limited to cases of swamp or marsh land.

In Seely v. Sebastian (1870) 4 Or. 25, the court said that, "by public use is meant for the use of many, or where the public is interested." And the objection was overruled that a drainage statute permitting any person whose land was so situated that it required draining to make application to the county court for a right of way for a ditch was unconstitutional as providing for the taking of private property for a private, and not a public, use. The court, however, seems to place the decision partly on the ground of promotion of the public health, as well as on that of advancement of the agricultural interests of the state.

In Fleming v. Hull (Iowa) supra, the court said that the drainage cases where swamp or overflowed land has been drained by ditches or otherwise reclaimed, and in so doing drains or ditches have been constructed under statutory provision through the land of others, are based not on the right of eminent domain, but on the police power, which, properly speaking, is the power to do whatever may be regarded as being for the interest of all the people of the state.

A general plan or scheme for the reclamation of the wet or marsh lands of a state for agricultural purposes by drainage is a public use for the accomplishment of which the power of emi