198 U. S. Argument for Plaintiffs in Error. "Conclusions of Law. "The court finds and decides that the plaintiff is entitled to a decree of this court condemning a right of way through defendants' said ditch, to the extent of widening said ditch one foot more than its present width and to a depth of said ditch as now constructed through the entire length thereof down to plaintiff's said land, for the purpose of carrying his said waters of said Fort Canyon Creek to the land of the plaintiff for the purpose of irrigation, and is entitled to an easement therein to the extent of the enlarging of said ditch and for the purposes aforesaid, and to have a perpetual right of way to flow waters therein to the extent of the said enlargement. "That the defendants are entitled to have and recover from the said plaintiff the sum of $40.00 damages for injury sustained by reason of the enlargement and improvement above stated and such right of way and easement. "That the plaintiff is required to contribute to the cost and expense of maintaining and keeping the said ditch in repair in an amount and proportion bearing the same relation to the whole amount of cost and expense as the waters he flows therein bears to the whole amount flowed therein both by the plaintiff and defendants. "That the plaintiff recover no costs herein and judgment is hereby ordered to be entered accordingly." Judgment having been entered upon these findings, the defendants appealed to the Supreme Court of the State, where, after argument, the judgment was affirmed. 27 Utah, 158. Mr. J. W. N. Whitecotton for plaintiffs in error: The taking not being a public use, plaintiffs in error are deprived of their property without due process of law in violation of the Fourteenth Amendment. As to what is a private and not a public use see Taylor v. Porter, 4 Hill, 140; Re Eureka Basin Co., 96 N. Y. 42, 48; Re Tuthill, 163 N. Y. 133, and see authorities under this case in 49 L. R. A. 781; Nesbitt v. Trumbo, 39 Illinois, 110; Sholl v. Coal Co., 118 Illinois, 427. Argument for Plaintiffs in Error. 198 U. S. This taking may greatly injure the present owner of the ditch. This is not public irrigation. Lorenz v. Jacobs, 63 California, 73; Lindsay Irrigation Co. v. Mehrtens, 97 California, 680. The term "public use" is an expression of indefinite significance and its application to any particular case is to be determined by evidence. Fallsbuy Co. v. Alexander, 61 L. R. A. 129; Gayland v. Sanitary District, 204 Illinois, 576; Lumber Co. v. Morris, 63 L. R. A. 820; Railway Co. v. Nebraska, 164 U. S. 403, 416. Water rights are not made public use by the constitution of Utah. Article I, § 22, and Art. 17, const. Utah; § 3588, Rev. Stat. Utah, 1898, subsec. 5, 6, 10; also §§ 1277, 1278; see also "Public" and "Private" as defined in Anderson's, Standard and Webster's Dictionaries. Private property shall not be taken or damaged for public use without just compensation. Constitution of Utah, Art. I, $ 22. This constitutional provision means that private property cannot be taken against the will of the owner for a private use under any circumstances. So that the only question to be determined is, Is the use for which this condemnation is allowed a public use within the meaning of the Fourteenth Amendment? See Bankhead v. Brown, 25 Iowa, 540; Matter of Albany Street, 11 Wend. 151; Railroad Co. v. Greeley, 17 N. H. 47, 55; Bloodgood v. M. & H. R. Ry. Co., 18 Wend. 9; Beckman v. Railway Co., 3 Paige, 73; Witham v. Osborn, 4 Oregon, 318; Helburn's case, 3 Bland (Md.), 95; Hoy v. Swan's Lessee, 5 Maryland, 237, 244; Dunn v. Charleston, Harper (S. Car)., 189; Osborn v. Hart, 24 Wisconsin, 89; Tyler v. Beacher, 44 Vermont, 648; Dickey v. Tennison, 27 Missouri, 373; Clark v. White, 2 Swan, 540; Sadley v. Langham, 34 Alabama, 311; Valley City Salt Co. v. Brown, 7 W. Va. 191; New Central Coal Co. v. Coal & Iron Co., 37 Maryland, 537; Varner v. Martin, 21 W. Va. 534; Railroad Co. v. McComb, 60 Maine, 290; McChandless' Appeal, 70 Pa. St. 210; Embury v. Connor, 3 N. Y. 511; Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694, 726; Robinson v. Swope, 12 Bush (Ky.), 21, 27; Harding v. Funk, 8 Kansas, 315, 323; Jenal v. Green Island Draining Co., 12 Nebraska, 163; Waddell's Appeal, 84 Pa. St. 90; Brown v. Beatty, 34 Mississippi, 227, 240; Mining Co. v. Parket, 59 Georgia, 419; McQuilton v. Hallon, 42 Ohio St. 202. No appearance for defendant in error. MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court. The plaintiffs in error contend that the proposed use of the enlarged ditch across their land for the purpose of conveying water to the land of the defendant in error alone is not a public use, and that, therefore, the defendant in error has no constitutional or other right to condemn the land, or any portion of it, belonging to the plaintiffs in error, for that purpose. They argue that, although the use of water in the State of Utah for the purpose of mining or irrigation or manufacturing may be a public use where the right to use it is common to the public, yet that no individual has the right to condemn land for the purpose of conveying water in ditches across his neighbor's land, for the purpose of irrigating his own land alone, even where there is, as in this case, a state statute per-} mitting it. In some States, probably in most of them, the proposition contended for by the plaintiffs in error would be sound. But whether a statute of a State permitting condemnation by an individual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and, therefore, a valid enactment, may depend upon a number of considerations relating to the situation of the State and its possibilities for land cultivation, or the successful prosecution of its mining or other industries. Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the State, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such condemnation. The validity of such statutes may sometimes depend upon 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. Those facts must be general, notorious and acknowledged in the State, and the state courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand for the enactment of the statute, and they also appreciate the results upon the growth and prosperity of the State, which in all probability would flow from a denial of its validity. These are matters which might properly be held to have a material bearing upon the question whether the individual use proposed might not in fact be a public one. It is not alone the fact that the land is arid and that it will bear crops if irrigated, or that the water is necessary for the purpose of working a mine, that is material; other facts might exist which are also material, such as the particular manner in which the irrigation is carried on or proposed, or how the mining is to be done in a particular place where water is needed for that purpose. The general situation and amount of the arid land, or of the mines themselves, might also be material, and what proportion of the water each owner should be entitled to; also the extent of the population living in the surrounding country, and whether each owner of land or mines could be, in fact, furnished with the necessary water in any other way than by the condemnation in his own behalf, and not by a company, for his use and that of others. These, and many other facts not necessary to be set forth ι in detail, but which can easily be imagined, might reasonably be regarded as material upon the question of public use, and whether the use by an individual could be so regarded. With all of these the local courts must be presumed to be more or less familiar. This court has stated that what is a public use may frequently and largely depend upon the facts surrounding the subject, and we have said that the people of a State, as also its courts, must in the nature of things be more familiar with such facts and with the necessity and occasion for the irrigation of the lands, than can any one be who is a stranger to the soil of the State, and that such knowledge and familiarity must have their due weight with the state courts. Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 159. It is true that in the Fallbrook case the question was whether the use of the water was a public use when a corporation sought to take land by condemnation under a state statute, for the purpose of making reservoirs and digging ditches to supply land owners with the water the company proposed to obtain and save for such purpose. This court held that such use was public. The case did not directly involve the right of a single individual to condemn land under a statute providing for that condemnation. We are, however, as we have said, disposed to agree with the Utah court with regard to the validity of the state statute, which provides, under the circumstances stated in the act for the condemnation of the land of one individual for the purpose of allowing another individual to obtain water from a stream in which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless. But we do not desire to be understood by this decision as approving of the broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural resources of the State. We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of opinion that the use is a VOL. CXCVIII-24 |