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ing has sometimes been regarded as of sufficient public benefit or advantage to warrant on this ground the taking of property under eminent domain therefor, as a taking for a public use within constitutional provisions. The general annotation above referred to will therefore be of value on this aspect of the present subject.

As to exercise of eminent domain for purpose of irrigating land of private owner, see annotations in 9 A.L.R. 583, and 27 A.L.R. 519 [Eminent Domain, 90].

The annotation does not include cases on the question of the right to exercise the power of eminent domain for electric plants, even though part or all of the power or light is to be furnished for use in mines. See, for example, Spratt v. Helena Power Transmission Co. (1907) 35 Mont. 108, 8 L.R.A. (N.S.) 567, 88 Pac. 773, 10 Ann. Cas. 1055, later appeal in (1908) 37 Mont. 60, 94 Pac. 631.

It should be observed that the question as to what may be condemned, as, for example, property already taken for an alleged public use, although it sometimes arises in connection with the class of cases under consideration, is not distinctive to this class, and is not covered in the annotation. By way of illustration, see Byrnes v. Douglass (1897) 27 C. C. A. 399, 48 U. S. App. 526, 83 Fed. 45, 19 Mor. Min. Rep. 96, affirming (1893; C. C.) 59 Fed. 29, in which the question is presented as to whether a mining company may take under eminent domain a tunnel belonging to the owners of another mine, where the tunnel has not been kept in repair and is in disuse. In Ketchum Coal Co. v. Pleasant Valley Coal Co. (1917) 50 Utah, 395, 168 Pac. 86, it was held that while, under the statute of that state, a coal company had the right to condemn sufficient land for a tipple site, it could not condemn for this purpose a portion of a right of way of a railroad company granted to the company by act of Congress, regardless of whether the location desired by it for that purpose on the right of way would be the most convenient, and would indirectly benefit the public by permitting the company to ship

coal out at a cost less than it otherwise could. Attention is called, also, to Marsh Min. Co. v. Inland Empire Min. & Mill. Co. (1916) 30 Idaho, 1, 165 Pac. 1128, on the question of the effect of the provision of the Idaho statute, that property appropriated to public use shall not be taken unless for a more necessary public use than that to which it is already appropriated. It was held that a level portion of a mining claim, the balance of which was situated upon steep mountain sides, could not be taken under eminent domain by another mining company for certain mining purposes, where the company owning the land would need this portion for the same mining purposes in case its mines proved successful, and prospecting was still in progress, although ore in paying quantities had not yet been discovered, while ore from the mines of the plaintiff, which was seeking to condemn the land, was already being marketed, and there was a reasonable immediate necessity for the use of the land to facilitate its mining operations. And see Monetaire Min. Co. v. Columbus Rexall Consol. Mines Co. (1918) 53 Utah, 413, 174 Pac. 172, under III. infra.

II. Mining as a public use or purpose warranting exercise of power of eminent domain.

a. General statement.

In a number of states mining has been regarded as of such public importance, and the development of mines and the mining industry so essential to the welfare of the people of the state, that even though the purpose was to condemn land to serve the mines of a single owner, the same has been regarded as a public one warranting the exercise of the power of eminent domain. Other courts have taken a different view of the matter, and have refused to recognize the public-benefit doctrine as applied to mines. The general question of public benefit as distinguished from a public use as a ground for the exercise of the power of eminent domain is discussed in annotation following Ferguson v. Illinois C. R. Co. ante, 7,

which should be consulted in this connection. In the case of mines, more than in most other instances, there would seem to be more justification for recognition of the public benefit doctrine of the law of eminent domain, from a practical standpoint, even though it must be recognized that the result is an extension of the term "public use" beyond its strictly literal meaning. This seems true because of the fixed nature of the property and its value both to the owner and the public. It is conceivable, as the courts have pointed out, that in some states where mining is perhaps the chief industry, the arbitrary or malicious action of a few individuals might greatly retard the development of the state's resources, were the courts to adhere strictly to the literal meaning of the term "public use" under the law of eminent domain. On the other hand, there is much to be said in favor of the proposition that, if the development of the mineral resources of the state demands the exercise of the power of eminent domain in favor merely of a private owner, such right should be conferred by constitutional amendment, and not by a strained construction by the courts, of terms which in their natural import seem to convey a clearly different meaning. b. Cases sustaining exercise of eminent

domain.

While, as already indicated, there is a difference of opinion among the authorities outside of those states whose constitutions in terms recognize mining as a public use, the weight of authority supports the view that the development and operation of mines. is of such public interest and benefit to those communities and states in which they are situated that mining may properly be regarded as a public use for which the power of eminent domain may be delegated. The result is that, even though the direct benefit from the condemnation of land is, or may be, to an individual mine owner who is seeking merely to develop or facilitate operation of his own mine, the use or purpose is regarded as public, warranting exercise of the power of eminent domain, because of

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the indirect public benefit. Supporting these views are the following cases: United States. 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; 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 (Nevada statute); Baillie v. Larson (1905; C. C.) 138 Fed. 177; Miocene Ditch Co. v. Jacobsen (1906) 77 C. C. A. 106, 146 Fed. 680. See also 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; and Headrick v. Larson (1907) 81 C. C. A. 378, 152 Fed. 93. Colorado.

See Tanner v. Treasury Tunnel Min. & Reduction Co. (1906) 35 Colo. 593, 4 L.R.A. (N.S.) 106, 83 Pac. 464 (involving, however, tunnel open to mine owners generally).

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Montana.

See 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. 235, and Kipp v. Davis-Daly Copper Co. (1910) 41 Mont. 509, 36 L.R.A. (N.S.) 666, 110 Pac. 237, 21 Ann. Cas. 1372.

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

Utah. 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; Monetaire Min. Co. v. Columbus Rexall Consol. Mines Co. (1918) 53 Utah, 413, 174 Pac. 172.

A leading case on the present question, sustaining the right to exercise the power of eminent domain for the development of the mining industry as a public use, and supporting the view. that the words "public use" should be interpreted as meaning public utility, advantage, or benefit, is Dayton Gold & S. Min. Co. v. Seawell (Nev.) supra, in which the court upheld the constitutionality of a statute declaring that the production and reduction of ores was of vital necessity to the people of the state, were pursuits in which all were interested and from which all derived a benefit, and that mining, milling, smelting, or other reduction of ores was thereby declared to be for the public use, and the right of eminent domain might be exercised therefor. It was said: "Mining is the greatest of the industrial pursuits in this state. All other interests are subservient to it. Our mountains are almost barren of timber, and our valley lands could never be made profitable for agricultural purposes except for the fact of a home market having been created by the mining developments in different sections of the state. The mining and milling interests give employment to many men, and the benefits derived from this business are distributed as much, and sometimes more, among the laboring classes than with the owners of the mines and mills. The mines are fixed by the laws of nature, and are often found in places almost inaccessible. For the purpose of successfully conducting and carrying on the business of 'mining, milling, smelting, or other reduction of ores,' it is necessary to erect hoisting works, to build mills, to construct smelting furnaces, to secure ample grounds for dumping waste rock and earth; and a road to and from the mines is always indispensable. The sites necessary for these purposes are sometimes confined to certain fixed localities. Now it so happens, or, at least is liable to happen, that individuals, by securing a title to the barren lands adjacent to the mines, mills, or works, have it within their power, by unreasonably refusing to part with their lands for

a just and fair compensation, which capital is always willing to give without litigation, to greatly embarrass, if not entirely defeat, the business of mining in such localities. In my opinion, the mineral wealth of this state ought not to be left undeveloped for want of any quantity of land actually necessary to enable the owner or owners of mines to conduct and carry on the business of mining. Nature has denied to this state many of the advantages which other states possess; but by way of compensation to her citizens has placed at their doors the richest and most extensive silver deposits ever yet discovered. The present prosperity of the state is entirely due to the mining developments already made, and the entire people of the state are directly interested in having the future developments unobstructed by the obstinate action of any individual or individuals."

The conclusion reached by the Nevada court in the above case was approved, and that case followed in Overman Silver Min. Co. v. Corcoran (1880) 15 Nev. 147, 1 Mor. Min. Rep. 691, and Goldfield Consol. Min. & T. Co. v. Old Sandstorm Annex Gold Min. Co. (Nev.) supra.

And under the Nevada statute, the acquiring of dumping places to facilitate the milling of ore and for the deposit of tailings is a public use, for which the power of eminent domain may be exercised. See Goldfield Consol. Min. & T. Co. v. Old Sandstorm Annex Gold Min. Co. (Nev.) supra, involving the question whether the taking of the property sought to be condemned for the storage of tailings was necessary for that purpose, and the interest which might be acquired by the mining company.

And the constitutionality of the Nevada statute declaring mining to be a public use, for which eminent domain would lie, was regarded in 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, as settled by the decisions of the supreme court in that state.

It has been said that the statutes of

Utah show a legislative intention to declare mining generally and the development of mines and mineral deposits a public use, in furtherance of which the right of eminent domain is applied with full force and effect. Monetaire Min. Co. v. Columbus Rexall Consol. Mines Co. (1918) 53 Utah, 413, 174 Pac. 172.

And the Utah court in Highland Boy Gold Min. Co. v. Strickley (1904) 28 Utah, 215, 1 L.R.A. (N.S.) 976, 107 Am. St. Rep. 711, 79 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, in holding that the construction of roads and tramways for the development of the mining industry of a state is a public use, for which the right of eminent domain may be exercised, said: "The same reasons that hold that manufacturing is necessary to the public welfare in New Hampshire and other New England states can be urged in behalf of mining in Utah and other western states. The mining industry in this state, and in others similarly situated, not only produces a home market for the markets of the farm, and furnishes thousands of men with steady employment at liberal and remunerative wages, but also produces wealth which has enabled other industries to be created and to flourish, which, without the stimulus thus furnished, would languish. . . . We have in this state, in addition to the extensive deposits of gold, silver, lead, and copper ores, large areas of lands containing coal in almost limitless quantities, and we depend almost exclusively upon the coal mines for the fuel used in our manufacturing establishments and for domestic purposes. Now, it is of vital importance to the people that the coal, as well as the other hidden resources of the state, be opened up and developed, and that the mining industry in general, which has been the source of so much wealth to the people of this and other western states, be conducted on the same extensive scale in the future that has characterized its operations in the past. Therefore the public policy of the state, as exemplified by the act of the legislature

under consideration, is to encourage the people to open up and exploit the mines with which the state abounds, and thereby not only give to the state the wealth which will enable other industries to be created, but furnish thousands of laborers with remunerative employment. It being conceded, and this court having held, that the construction and operation of irrigating ditches in this state is a public use, . . it follows that the construction of roads and tramways for the development of the mining industry is a public use, as the same line of reasoning that applies in support of the doctrine in the one case holds good in the other. Otherwise a party owning a few acres of farming land, or only a few square rods for that matter, could invoke the law of eminent domain, and by condemnation proceedings acquire a right of way across his neighbor's land for an irrigation ditch to convey water to his small holdings; whereas the owners of mines and of works for the reduction of ores, the operations of which furnish thousands of men in this state with employment at good wages, and to which the general prosperity of the state is largely due, would be denied the right to invoke this same rule of law in order to acquire, when necessary to the successful operation of their business, rights of way for the transportation of ores from the mines to the mills and smelters, and for the construction of tunnels for drainage and other purposes. And parties holding the title to ground necessary and suitable for these purposes, which, in many cases, except for such purposes, might be entirely worthless, would be clothed with power to demand and compel payment of an unconscionable price for their lands before parting with the title, or they could refuse absolutely to grant the easement required on any terms, and thereby in some cases cripple mining enterprises, or destroy them altogether. Such a policy would not only be inconsistent and unreasonable, but would greatly retard the development of one of the greatest natural resources of the state. We are therefore of the opinion, and

so hold, that the construction and operation of roads and tramways for the development and working of mines is a public use."

The Utah statute involved in the last case provided that the right of eminent domain might be exercised, "in behalf of the following public uses: roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places to facilitate the milling, smelting, or other reduction of ores, or the working of mines." And the Federal Supreme Court held that the provisions of the 14th Amendment of the Federal Constitution were not violated by the condemnation under this statute of a right of way across a placer mining claim for the aerial bucket line of a mining company.

It has been held, also, that the 14th Amendment of the Federal Constitution is not violated by a state statute or constitutional provision declaring that the necessary use of land for the drainage or working of mining tunnels is a public use, and granting an owner of a mining claim having a tunnel thereon the right to extend the same through the claims of other parties, on payment of actual damages or injury done to the owner of the claims crossed by the tunnel. Baillie v. Larson (1905; D. C.) 138 Fed. 177 (case arising in Idaho). The court relied on the principles stated in Clark v. Nash (1905) 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas. 1171, infra, and observed further: "It is the law that the owner of land entirely surrounded by that of his neighbors may force an outlet. Why may not the same law of necessity apply to mining property, when so located that easements on other properties must be permitted, or the value of the property be practically destroyed?"

The production of gold was regarded in Hand Gold Min. Co. v. Parker (1877) 59 Ga. 419, as of such public benefit that the legislature might constitutionally authorize a gold-mining company to exercise the power of eminent domain to obtain a right of way for a canal or ditch, so as to enable it to convey from a distance water necessary for the successful working of its

mine. The court said that the increased production of gold by the means provided for in the charter of the company in question must necessarily be for the public good, inasmuch as it would increase, for the use of the public, a safe, sound, constitutional circulating medium, which is of vital importance to the permanent welfare and prosperity of the people of the state, as well as of the people of the United States; but that, if there was any reasonable doubt as to whether the exercise of the right of eminent domain by the legislature, as provided by the charter, was for the public good, that doubt should be resolved in favor of the constitutionality of the act.

The theory upon which eminent domain is extended in aid of the mining industry in Idaho is that public benefit will result from the application of private property to public use; the end sought to be obtained is that mines should be discovered, developed, and operated, and that thereby the wealth of the state and the prosperity of its inhabitants should be augmented. Marsh Min. Co. v. Inland Empire Min. & Mill. Co. (1916) 30 Idaho, 1, 165 Pac. 1128. The court cites a constitutional provision declaring that the necessary use of lands for the drainage of mines or the working thereof, by means of roads, railroads, tunnels, etc., or other means necessary to their complete development, is a public use and subject to the regulation and control of the state.

And in Kipp v. Davis-Daly Copper Co. (1910) 41 Mont. 509, 36 L.R.A. (N.S.) 666, 110 Pac. 237, 21 Ann. Cas. 1372, the court emphasizes the importance of the mining industry in the state, in upholding the right of a mining company to construct a railroad in a street in order to transport materials to and from its mine; but under the laws of the state the railroad, it appears, was available to the public, and was not a merely private line. It was said: "Mining is a dominant industry in this state. In some localities it is the all important industry. The prosperity of the state has been due, in large measure, to it, and many

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