Paxton & Hershey Irrigating Canal & Land Co. v. Farmers' & Merchants', Irrigation & Land Co.

• Decision Date: 01 October 1895
• Docket Number: 7724
• Parties: PAXTON & HERSHEY IRRIGATING CANAL & LAND COMPANY, APPELLANT, v. FARMERS & MERCHANTS IRRIGATION & LAND COMPANY, APPELLEE
• Court: Nebraska Supreme Court

64 N.W. 343

45 Neb. 884

PAXTON & HERSHEY IRRIGATING CANAL & LAND COMPANY, APPELLANT, v. FARMERS & MERCHANTS IRRIGATION & LAND COMPANY, APPELLEE

No. 7724

Supreme Court of Nebraska

October 1, 1895

APPEAL from the district court of Lincoln county. Heard below before SINCLAIR, J.

AFFIRMED.

Frank T. Ransom and T. Fulton Gantt, for appellant:

The irrigation law of 1889 is unconstitutional in so far as it attempts to confer authority to condemn lands for right of way for canals. The act contains more than one subject. Article 2 treats upon a subject foreign to that mentioned in the title of the act, and is, therefore, in contravention of section 11, article 3, of the state constitution which provides: "No bill shall contain more than one subject and the same shall be clearly expressed in its title." (City of Tecumseh v. Phillips, 5 Neb. 305; Messenger v. State, 25 Neb. 674; State v Lancaster County, 6 Neb. 474; Holmberg v Hauck, 16 Neb. 337; Touzalin v. City of Omaha, 25 Neb. 817.)

The act is unconstitutional because it attempts to authorize the taking of private property for private use. (State Bill of Rights, sec. 21; Welton v. Dickson, 38 Neb. 767; Jenal v. Green Island Draining Co., 12 Neb. 163; Witham v. Osburn, 4 Ore., 318; Lorenz v. Jacob, 63 Cal. 73; Randolph, Eminent Domain, 37.)

Statutes permitting drainage canals to be placed on land for the benefit of an individual proprietor have uniformly been held to be invalid as being for private purposes, unless there was some provision in the state constitution permitting such statutes. (Fleming v. Hull, 73 Iowa 598; McQuillen v. Hatton, 42 Ohio St. 202; Reeves v. Wood County, 8 Ohio St. 333.)

The canals already constructed may be made to answer the purpose for which the defendant's proposed canal is desired and intended, and defendant should be enjoined from crossing the land of plaintiff with an irrigating ditch. (Compiled Statutes, sec. 3, ch. 93a; San Luis Land, Canal & Improvement Co. v. Kenilworth Canal Co., 32 P. [Col.], 860.)

Thomas C. Patterson and Grimes & Wilcox, contra:

So far as the act of 1889 declares irrigation to be a public use, and provides for the condemnation of land for right of way for canals that are projected and built for the purpose of supplying water to the public for irrigation, it clearly comes within the constitutional power of the legislature to legislate for the public welfare. (In re Bonds, Madera Irrigation District, 28 P. [Cal.], 272; Cumming v. Peters, 56 Cal. 593; Lux v. Haggin, 69 Cal. 255; Lindsay Irrigation Co. v. Mehrtens, 97 Cal. 677; Talbot v. Hudson, 16 Gray [Mass.], 425; Oury v. Goodwin, 26 P. [Ariz.], 376; Barbier v. Connolly, 113 U.S. 31; Head v. Amoskeag Mfg. Co., 113 U.S. 16; Stockton & V. R. Co. v. City of Stockton, 41 Cal. 147; Bankhead v. Brown, 25 Iowa 540; Pocantico Water-Works Co. v. Bird, 29 N.E. [N. Y.], 246; Omsted v. Proprietors of the Morris Aqueduct, 46 N.J.L. 495; St. Helena Water Co. v. Forbes, 62 Cal. 182; Matter of New Rochelle Water Co., 46 Hun [N. Y.], 525; Stamford Water Co. v. Stanley, 39 Hun [N. Y.], 424; 6 Am. & Eng. Ency. Law, 524; Cooley, Constitutional Limitations [4th ed.], 672.)

The following cases were also cited to sustain the decision of the lower court: Downing v. Moore, 20 P. [Col.], 766; Thomas v. Guiraud, 6 Col., 530; Dick v. Caldwell, 14 Nev. 167; Simpson v. Williams, 18 Nev. 432; Farmers' Independent Ditch Co. v. Agricultural Ditch Co., 32 P. [Col.], 724; Farmers' High Line Canal & Reservoir Co. v. Southworth, 21 P. [Col.], 1028; Clifford v. Larrien, 11 P. [Ariz.], 397; Wyatt v. Larimer & Weld Irrigation Co., 33 P. [Col.], 144; Cole v. Logan, 33 Pac. [Ore.], 568; Knoblauch v. City of Minneapolis, 57 N.W. [Minn.], 929; Barrett v. Kemp, 59 N.W. [Ia.], 77; Cherry v. Matthews, 36 P. [Ore.], 529; City of Santa Ana v. Harlin, 34 P. [Cal.], 225; Waterloo Water Co. v. Hoxie, 56 N.W. [Ia.], 499; Western Maryland R. Co. v. Patterson, 37 Md. 125; Philadelphia, W. & B. R. Co. v. Williams, 54 Pa. 103; Eidemiller Ice Co. v. Guthrie, 42 Neb. 238; Tigard v. Moffitt, 13 Neb. 565; Gause v. Perkins, 3 Jones Eq. [N. Car.], 177.

OPINION

The opinion contains a statement of the case.

POST, J.

This is an appeal from a decree of the district court for Lincoln county dismissing the action of the plaintiff company whereby it seeks to prevent the appropriation by the defendant of a right of way through its lands for an irrigating canal. In the petition it is, in substance, alleged that the plaintiff company is the owner of 10,000 acres of land, bounded by the North Platte river, in Lincoln county, and also of an irrigating canal known as the "Paxton & Hershey ditch," situated on its said lands and on the lands of other adjoining proprietors; that upon its said land, and nearly parallel with the ditch above mentioned, is an irrigating canal known as the "North Platte Irrigating & Land Company's ditch," and herein referred to as the "North Platte ditch," and that in the vicinity of the plaintiff's lands sought to be watered by the defendant's proposed canal is an irrigating canal known as the "Cody & Dillon ditch." The plaintiff, it is alleged, has constructed a large number of laterals from its said canal, which it is proposed by the defendant company to cross, thus necessitating the construction and maintaining of many bridges, flumes, and conduits, and otherwise needlessly harassing it in the use and enjoyment of its said property. The defendant company, which is organized for the purpose of building and maintaining ditches, canals, aqueducts, and reservoirs for the storage and conveyance of water and of selling water to consumers for irrigating, power, and other useful purposes, prior to the commencement of this action, entered upon the plaintiff's said land, and located and staked out a ditch thereon four and one-half miles in length, and is taking steps to condemn a right of way therefor, but that the three ditches above described afford ample facilities for the irrigation of all of the land sought to be supplied by the defendant company, and that water sufficient to supply the defendant's wants can be furnished from the ditches already constructed, should connection be made therewith, at less expense than by the construction and maintaining of the proposed ditch through the plaintiff's land to the source of supply, the North Platte river. The answer, so far as it is deemed necessary to notice it, consists of an allegation that the defendant is engaged in the construction of an irrigating canal some twenty miles in length for the purpose of supplying with water from the North Platte river certain territory not within the reach of either of the canals already constructed, a denial that the plaintiff's canal is capable of supplying the lands which the defendant proposes to water, and an allegation that the water supplied by said canal is barely sufficient for the irrigation of the plaintiff's own land. Accompanying the pleadings is a map showing the location of the proposed ditch, as well as those already completed, and which is essential to a perfect understanding of the question at issue. (See page 890.)

The district court, upon entering the decree complained of, submitted the following findings of fact and conclusions of law:

"1. The plaintiff is a corporation organized and existing under and by virtue of the laws of this state for the following purposes: To construct, own, operate, and maintain a canal or canals, ditch or ditches, for irrigation purposes, to purchase, acquire, own, sell, and convey all real estate that may be necessary for such purposes, and to acquire, own sell, and convey real estate in connection with carrying on an irrigating business, and to acquire, own, sell, and convey real estate for other purposes deemed advisable or advantageous to the corporation and its interest, and to cultivate and improve such lands as shall be owned by the corporation; to furnish, sell or rent water for irrigation of lands which shall be owned by said corporation and within its area and other lands within reach of any canal or canals which shall be owned, operated, or controlled by the corporation owning live stock and raising the same in connection with the land held or controlled by this corporation.

"2. The plaintiff is the owner of about 7,000 acres of land located on and adjacent to the banks of the North Platte river, in Lincoln county, Nebraska, as alleged in its petition, and is the owner of an irrigating canal running across its said lands, and the lands of others, for a distance of about ten miles, which canal is finished and constructed for the purposes of irrigating the land under the said ditch, and for the purposes set forth in the articles of incorporation of the plaintiff.

[SEE MAP IN ORIGINAL]

"3. The defendant is a corporation organized under the laws of this state for the following purposes, among others: The building and maintaining of canals, ditches, and aqueducts and reservoirs for the storage and conveyance of water, and the selling of such water to consumers for irrigation, agricultural, power, and other useful purposes.

"4. The plaintiff is the owner of the tract of land proposed to be crossed by the proposed canal of the defendant and which lies under the plaintiff's ditch and which is proposed to be crossed by defendant's ditch for a distance of four miles and a half.

"5. All of the land of the plaintiff across which the defendant proposes to construct its canal, for a distance of four and a half miles, can be irrigated from and by plaintiff's canal, and it is not proposed by the defendant to water or irrigate any of plaintiff's said land within said four miles and a half.

"6. That the defendant corporation is the owner of no land to be watered by its...