Inspiration Consol. Copper Co. v. New Keystone Copper Co.

• Decision Date: 25 November 1914
• Docket Number: Civil 1343
• Citation: 144 P. 277,16 Ariz. 257
• Parties: INSPIRATION CONSOLIDATED COPPER COMPANY, Appellant, v. NEW KEYSTONE COPPER COMPANY, Appellee
• Court: Arizona Supreme Court

144 P. 277

16 Ariz. 257

INSPIRATION CONSOLIDATED COPPER COMPANY, Appellant, v. NEW KEYSTONE COPPER COMPANY, Appellee

Civil No. 1343

Supreme Court of Arizona

November 25, 1914

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.

The facts are stated in the opinion.

Mr Curtis H. Lindley and Mr. Edward W. Rice, for Appellant.

Messrs Alderman & Elliott, for Appellee.

OPINION

ROSS, J.

The appellant mining company, as shown by its complaint, is the owner of two groups of mines situate in the Globe Mining District, Gila county, Arizona, to wit, the Inspiration Group, consisting of 36 patented mines, and the Live Oak Group, consisting of 15 patented mines. These mines are low-grade copper mines; the ores found in them containing an approximate average of 2 per cent copper. There has been disclosed in the Inspiration Group deposits of approximately 30,000,000 tons of copper ore of commercial grade, and in the Live Oak Group a deposit of approximately 15,000,000 tons of copper ore of commercial grade. The appellant has purchased at great expense a mill or concentrator site for the treatment of ores from the two groups, and contemplates and intends to erect such mill or concentrator at a point about 1 1/2 miles in a northeasterly direction from the Inspiration Group and approximately 2 1/2 miles in same direction from the Live Oak Group. Because of the lowgrade ores found in said mines, it is necessary, in order to mine the same at a profit, to mine and treat the same in large quantities, and to that end the concentrator is to have an approximate capacity of 7,500 tons of ore daily. The Inspiration Group and the Live Oak Group are entirely separated from each other by the mines of the appellee, New Keystone Copper Company. The appellant has sunk shafts upon both groups and run tunnels or drifts through and across both groups up to the Keystone line. It is alleged:

"That for the successful working of said Live Oak Group of mines and utilization of said mill or concentrator it is necessary and indispensable that the plaintiff have a right of way across said Copper Hill claim (being one of the Keystone mines) and throughout the length thereof for the construction, maintenance, and operation of a tunnel or drift 9 feet high and 11 feet wide; . . . that said Live Oak Group of claims have and will have great value because of their production of ores and metals, and that their further development and mining will contribute to the development of the mineral resources and the prosperity of the United States and of the state of Arizona; that the plaintiff is constructing said tunnel to enable it to develop and mine said Live Oak Group of claims, and that the construction thereof is necessary for said purposes, and the same is and will be a public use for and on behalf of which the plaintiff may exercise the right of eminent domain; that the taking of said property to the construction of said tunnel across said Copper Hill claim is necessary to such use and is authorized by law."

A demurrer to the complaint was sustained upon the ground that the right of way for tunnel or drift sought to be condemned was to be devoted to a private use and not to a public use. The oral arguments of the learned counsel in their presentation of the case were devoted entirely to the one question as to whether the proposed use was private or public and their very elaborate briefs were given over to the same proposition, apparently upon the assumption that the solution of that question determined the case; it being conceded in the arguments that the use must be public to authorize condemnation. By an analysis of the facts, it is easily discovered that the tunnel asked for is for the private and individual use of the plaintiff. Both of its ends are perpendicular shafts on the private property of plaintiff and under its complete dominion. If the necessities of the case required its use by others, it could be used only upon consent of plaintiff. Public participation in the use of the tunnel in the sense that other mining companies might use it to transport their ores is precluded by the fact that it begins and ends on the plaintiff's property. Therefore if user by the public is essential under our laws to constitute a public use, and if private property may be taken only for public use, the plaintiff must fail.

The Constitution of the United States (and most of the state Constitutions are modeled after it) provides that private property shall not be taken for public use without just compensation. The decisions of the courts under such Constitutions, as to the purposes for which private property may be taken and as to what constitutes a public use, are not controlling in this state, and, indeed, lend us but little aid toward solving our problem. In the first place, it should be borne in mind that the right of eminent domain is an inherent right of sovereignty, and that the provisions found in the various Constitutions of the states defining eminent domain are restrictions and limitations upon the legislative department, and not the grant or extension of power to that department of government. In authorizing the taking of private property for private use, the legislative department of the government is therefore limited to the purposes named in the Constitution. The legislature may provide the modes and means of exercising the right thus defined by the fundamental law, and designate the persons and agencies authorized to exercise the right; but it cannot enlarge that right to include other private uses for which condemnation may be had. There is no limitation upon the sovereign's power to take private property for public use, except that just compensation shall be made. Constitutions that provide that private property shall not be taken for public use (except upon just compensation) have been uniformly construed, so far as we know, to prohibit by negation the taking of private property for private use. Under such Constitutions private property can be taken for public use only.

"Public use," instead of having a common definition, because of local conditions, has acquired at least two meanings; one is user or right of use by the general public without the consent of the owner, and the other is public welfare, or public benefit or advantage. These definitions have been adopted in the different jurisdictions as the local conditions and necessities demanded, and very properly so. For to give the words their popular meaning in the arid West would often mean the prevention of the reclaiming of desert areas there found or the development of other of its paramount resources, such as mining, lumbering or stock-raising. The strained or unnatural construction given the words in some jurisdictions have been imperative to the development and prosperity of the country. In other words, the exigencies of the cases were such as to require the courts to declare what was in fact a private use to be a public use; otherwise the right of eminent domain was denied, private enterprises paralyzed, and natural resources left dormant. Such a strained construction disregards the plain intent of the Constitution that forbids by implication the taking of private property for private use; but no such necessity exists under our Constitution, for that instrument, in section 17, article 2, provides 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 mining, agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation. . . ."

This definition of the right of eminent domain found in our Constitution, if approved and followed, authorizes the lawmaking body to enact legislation providing for the condemnation of private property for private use, to wit, "private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, . . . purposes." Without such constitutional sanction or authority, Nevada, in Dayton Min. Co. v. Seawall, 11 Nev. 394, Utah, in Nash v. Clark, 27 Utah 158, 101 Am. St. Rep. 953, 1 Ann. Cas. 300, 1 L.R.A. (N.S.) 208, 75 P. 371, and Highland Boy Gold Min. Co. v. Strickley, 28 Utah 215, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110, 1 L.R.A. (N.S.) 976, 78 P. 296, and the supreme court of the United States in Clark v. Nash, 198 U.S. 361, 49 L.Ed. 1085, 4 Ann. Cas. 1171, 25 S.Ct. 676, and Strickley v. Highland Boy Gold Min. Co., 200 U.S. 527, 50 L.Ed. 581, 4 Ann. Cas. 1174, 26 S.Ct. 301, have decided that private property may be taken for private use in connection with irrigation and mining. It is true that such courts have indulged the fiction that a private use is a public use, simply because it was for the general welfare or of public utility or benefit, but this conceit, however pardonable, does not change the use from private to public. The fact is that the above cases hold that private property may be taken for private uses in the particular instances passed upon, and our Constitution in providing in certain cases that private property may be taken for private uses is in line with those decisions.

Lewis, in his work on Eminent Domain, third edition, section 315, page 595, says:

"The legislature of a state may not take, or authorize the taking of private property, except for public use, but the state itself, the people in their collective capacity, may take, or authorize the taking of private property for any purposes of public utility, or public welfare. . . . The policy of permitting private property to be taken for a particular purpose may promote the public welfare, though the purpose may not...