Lamborn v. Bell

• Citation: 32 P. 989,18 Colo. 346
• Parties: LAMBORN v. BELL.
• Decision Date: 17 April 1893
• Court: Supreme Court of Colorado

32 P. 989

18 Colo. 346

LAMBORN v. BELL.

Supreme Court of Colorado

April 17, 1893

Appeal from district court, El Paso county.

Proceeding by William A. Bell against Robert H. Lamborn to condemn a right of way across defendant's land for a ditch to carry water to furnish power to operate an electric light plant. From a decree for petitioner, defendant appeals. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

A hearing was had before a jury in pursuance of the provisions of the eminent domain act, and they found (1) that it was and is necessary for petitioner herein to take and appropriate the lands of defendant, described in the petition herein, for the purpose of furnishing petitioner with power to run an electric plant to generate electricity for the purpose of lighting the town and buildings of Manitou with electric light; (2) that it was and is necessary for petitioner herein to take and appropriate the lands of defendant, described in the petition, for purposes of irrigating the lands of petitioner lying under said ditch described in the petition and assessed the actual value of the land taken at $12.50.

A. B. McKinley, for appellant.

Colburn & Dudley, for appellee.

GODDARD J., (after stating the facts.)

The questions presented by the record are: First. Has the petitioner a right to condemn a right of way over the lands of the defendant for the purpose of carrying water to furnish power to operate an electric light plant? Second. Has he a right to have a ditch across said land for irrigation purposes for his own use, under the facts shown?

The first proposition depends upon the effect to be given to the following constitutional provisions: 'That private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and except for reservoirs, drains, flumes, or ditches, on or across the lands of others, for agriculture, mining, milling domestic, or sanitary purposes.' Section 14, art. 2, Bill of Rights. 'That private property shall not be taken or damaged, for public or private use, without just compensation. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein diversted; and whenever an attempt is made to take private property for use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.' Section 15, Id. 'The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.' Section 5, art. 16, Mining and Irrigation. 'The right to divert unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.' Section 6, Id. 'All persons and corporations shall have the right of way across public, private, and corporate lands for the construction of ditches, canals, and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.' Section 7, Id. It is apparent from the foregoing provisions that our constitution is, in certain particulars touching the right to take private property for private use, exceptional, and, for certain enumerated uses, changes the accepted rule that the use to which private property may be condemned must be public. The right of eminent domain is an exercise of sovereign power, and is generally conferred by legislative enactment; yet a constitutional provision that, in express terms, affirmatively confers the right for particular uses is likewise an expression of the sovereign will, and grants the right as effectually as if expressed in an act of the legislature, and can be enforced when such grant is supplemented by an act of the legislature providing the means for its exercise. 'A constitution is but a higher form of statutory law, and it is entirely competent for the people, if they so desire, to incorporate into it self-executing enactments. These are much more common than formerly, the object being to put it beyond the power of the legislature to render them nugatory by refusing to enact legislation to carry them into effect. Prohibitory provisions in a constitution are usually self-executing to the extent that anything done in violation of them is void. But instances of affirmative self-executing provisions are numerous in almost every modern constitution.' Willis v. Sanitation Co., (Minn.) 50 N.W. 1111. See, also, State v. Weston, 4 Neb. 216; Thomas v. Owens, 4 Md. 189. It becomes necessary, therefore, to determine whether the purpose relied on in this proceeding, as expressed in the first proposition, is within the class of uses enumerated in section 14 of article 2, and section 7 of article 16, of the constitution, above cited.

It is insisted by counsel for appellant that these constitutional provisions should be read in the light of the conditions existing at the time they were adopted, and be construed in relation to the evident purposes they were intended to subserve; that the necessity for irrigation, and the paramount industry of mining, were in contemplation by the framers of the constitution, and the term 'milling' was used in section 14 of article 2 with relation to those purposes, and its meaning should be restricted to milling ore and grain. We think the term 'milling,' as used in that provision, should be given its modern acceptation, and held as synonymous with the word 'manufacturing,' if not of broader signification, and including that term. Webster, after defining the word 'mill,' says 'In modern usage,...