Lee Clark v. Nash
Decision Date | 15 May 1905 |
Docket Number | No. 218,218 |
Citation | 198 U.S. 361,25 S.Ct. 676,49 L.Ed. 1085 |
Parties | LEE L. CLARK, Robert N. Bennett, T. F. Carlisle, Lincoln Carlisle, and Richard Carlisle, Plffs. in Err. , v. E. J. NASH |
Court | U.S. Supreme Court |
This action was brought by the defendant in error, Nash, to condemn a right of way so called, by enlarging a ditch for the conveying of water across the land of plaintiffs in error, for the purpose of bringing water from Fort Canyon creek, in the county and state of Utah, which is a stream of water flowing from the mountains near to the land of the defendant in error, and thus to irrigate his land.
The plaintiffs in error demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action against them. The demurrer was overruled, and the defendants then waived all time in which to answer the complaint, and elected to stand on the demurrer. Thereafter there was a default entered against the defendants, and each of them, for failing to answer, and the case was, under the practice in Utah, then tried and evidence heard on the complaint of the plaintiff, showing the material facts as stated in the complaint. The trial court found the facts as follows:
'That the plaintiff during all the times mentioned in said complaint, to wit, from the first day of January, 1902, down to the present time inclusive, was, has been, and now is the owner of, in possession of, and entitled to the possession of, the south half of the northwest quarter of section 24, in township 4 south of range 1, east of Salt Lake meridian, in Utah county, state of Utah.
'That Fort Canyon creek is a natural stream of water flowing from the mountains on the north of plaintiff's said land, in a southerly direction to and near to plaintiff's said land.
'That said land of plaintiff above described is arid land and will not produce without artificial irrigation, but that, with artificial irrigation, the same will produce abundantly of grain, vegetables, fruits, and hay.
'That the defendants own land lying north of and adjacent to plaintiff's said land, and said defendants have constructed and are maintaining and jointly own a water ditch which diverts a portion of the said waters of the said Fort Canyon creek on the west side of said creek (being the side on which the plaintiff's said land is situated), at a point about one mile north of plaintiff's said land, in section 13 of said township, down to a point within a hundred feet of plaintiff's said land, which said ditch is begun on the defendants' land and runs in a southerly direction over said defendants' land and onto and over the lands of the said defendants to said point about a hundred feet of plaintiff's said land.
'The plaintiff is the owner of, and entitled to the use of, sufficient of the remainder of the flow of the waters of the said Fort Canyon creek to irrigate his said land and that the irrigation of said land by the waters of said creek, and the uses of the said waters in the irrigation of the said lands of the defendant, is, under the laws of this state, declared to be, and the same is, a public use.
'That the said waters of said Fort Canyon creek cannot be brought upon the said plaintiff's said land by any other route except by and through the ditch of the defendants, owing to the canyon through which said ditch runs being such as to only be possible to build one ditch.
'That plaintiff has no other way of irrigating his said land except by the use of the waters of said Fort Canyon creek, and that unless plaintiff is allowed to enlarge the ditch of the defendants, and have a right of way through said ditch for the flow of the waters of said Fort Canyon creek, down to the plaintiff's said land, that said land of plaintiff will be valueless and the waters of said Fort Canyon creek will not be available for any useful purpose.
'That said ditch of defendants is a small ditch, about 18 inches wide and about 12 inches deep; that if the plaintiff is permitted to widen said ditch one foot more it will be sufficient in dimensions to carry plaintiff's said water, to which he is entitled, to his said land, and the same can and will be put to a beneficial and public use, in the irrigation of the soil on plaintiff's said land hereinbefore described.
'And it further appearing from said evidence that said ditch of the defendants can be widened by the plaintiff one foot more without injury to defendants or to said ditch, and that said widening of said ditch and the use thereof by the plaintiff will not in any manner interfere with the free and full use thereof by the defendants for the carrying of all waters of the said defendants.'
Upon these facts the court found the...
To continue reading
Request your trial-
State v. Clausen
... ... private property for what, in its immediate purpose, is a ... private use. Clark v. Nash, 198 U.S. 361 [25 S.Ct ... 676, 49 L.Ed. 1085]; Strickley v. Highland Boy Mining ... Co., 200 U.S. 527, 531 [26 S.Ct. 301, 50 ... ...
-
Public Utilities Commission of State of Idaho v. Natatorium Co.
...the rights of navigation are not involved. (United States v. Rio Grande Irr. Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136; Clark v. Nash, 198 U.S. 361; 4 Ann. Cas. 25 S.Ct. 676, 49 L.Ed. 1085; Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956; Producers Oil Co. v. Hanzen, 238 U.......
-
State ex rel. Collins v. Crescent Cotton Oil Co.
... ... implied from those expressly conferred ... The ... rule as stated in Clark on Corporations (Horn Book Series) ... page 112, is as follows: "A corporation has such powers ... and such powers only, as are conferred upon it ... Lake Shore, etc., Ry., 111 Mich ... 489, 72 N.W. 338. Majority upholding law requiring sale of ... thousand-mile tickets at fixed rate. Nash v. Page, ... 80 Ky. 547, 44 Am. St. Rep. 495; Budd v. N. Y., 143 ... U.S. 147, 36 L.Ed. 256; Louisville Tobacco Co. v ... Warehouse Co., 48 S.W ... ...
-
Washington Water Power Co. v. Waters
... ... Co., 125 Ga. 618, 54 S.E. 85, 6 L. R. A., N. S., 122, 5 ... Ann. Cas. 526; Baillie v. Larson, 138 F. 177; ... Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed ... 1085, 4 Ann. Cas. 1171; Strickley v. Highland Boy Gold ... Mining Co., 200 U.S. 527, 26 S.Ct ... ...
-
CHAPTER 9 ACQUISITION OF RIGHTS-OF-WAY BY CONDEMNATION
...200 U.S. 527, 530-31 (1905); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158 (1896); Nash v. Clark, 75 P. 371, 373 (Utah), aff'd, 198 U.S. 361 (1904). [12] The constitutions of some western states acknowledge that certain uses are private and in the same breath authorize condemnati......
-
CHAPTER 15 CONDEMNATION LITIGATION - THE SWORD AND THE SHIELD
...affected with a public interest. Pine Martin Mining Company v. Empire Zinc Co. 90 Colo 529, 11 P.2d 221 (1932). See also, Clark v. Nash, 198 U. S. 361, 25 S. Ct. 676, 49 L. Ed. 1085 (1905). III. GENERAL EMINENT DOMAIN PROCEDURES The exercise of eminent domain power also is regulated by stat......
-
Constitutional Review of State Eminent Domain Legislation: Hawaii Housing Authority v. Midkiff
...all courts seem to agree is that the nature of the uses, whether public or private, is ultimately a judicial question."); Clark v. Nash, 198 U.S. 361, 368 (1905) (the level of judicial inquiry varies with the facts and circumstances of each case); Madis-onville Traction Co. v. Saint Bernard......
-
Eminent domain after Kelo v. City of New London: an argument for banning economic development takings.
...for the private use of another). (105.) See Meidinger, supra note 41, at 30. (106.) 166 U.S. 226, 228 (1897). (107.) Clark v. Nash, 198 U.S. 361 (108.) 208 U.S. 598, 607 (1908). (109.) Mt. Vernon-Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S. 30, 32 (1916). (110.) 262 U.S.......