Nash v. Clark

• Decision Date: 23 January 1904
• Docket Number: 1406
• Citation: 75 P. 371,27 Utah 158
• Court: Utah Supreme Court
• Parties: E. J. NASH, Respondent, v. LEE L. CLARK, ROBERT N. BENNETT, T. F. CARLISLE, LINCOLN CARLISLE and RICHARD CARLISLE, Appellants

75 P. 371

27 Utah 158

E. J. NASH, Respondent, v. LEE L. CLARK, ROBERT N. BENNETT, T. F. CARLISLE, LINCOLN CARLISLE and RICHARD CARLISLE, Appellants

No. 1406

Supreme Court of Utah

January 23, 1904

Appeal from the Fourth District Court, Utah County.--Hon. J. E Booth, Judge.

Action to condemn a right of way in a ditch owned by the defendants. From a judgment in favor of the plaintiff, the defendants appealed.

AFFIRMED.

J. W N. Whitecotton, Esq., for appellants.

Messrs Warner, Houtz, Prentiss & Warner for respondent.

McCARTY J., delivered the opinion of the court. BARTCH, J., concurs. BASKIN, C. J., dissents.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to condemn a right of way in a ditch owned by the defendants. The provisions of the statute upon which he bases his right of action, so far as material to this case, are as follows: Rev. St. 1898, section 3588, in part provides: "Subject to the provisions of this chapter the right of eminent domain may be exercised in behalf of the following public uses: . . . (5) Reservoirs, dams, water-gates, canals, ditches, flumes, tunnels, aqueducts, and pipes for supplying persons, mines, mills, smelters, or other works for the reduction of ores, with water for domestic or other uses, or for irrigating purposes, or for draining and reclaiming lands, or for floating logs and lumber on streams not navigable. (6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places to facilitate the milling, smelting, or other reduction of ores, or the working of mines; outlets, natural or otherwise, for the deposit or conduct of tailings, refuse, or water from mills, smelters or other works for the reduction of ores, or from mines; mill dams; . . . also an occupancy in common by the owners or possessors of different mines, mills, smelters, or other places for the reduction of ores, of any place for the flow, deposit, or conduct of tailings or refuse matter . . . . (10) Canals, reservoirs, dams, ditches, flumes, aqueducts, and pipes for supplying and storing water for the operation of machinery for the purpose of generating and transmitting electricity for power, light, or heat." Section 1277, Rev. Stat. 1898, is as follows: "Any person or corporation shall have the right of way across and upon public, private, and corporate lands, or other right of way, for the construction, maintenance, repair, and use of all necessary reservoirs, dams, water-gates, canals, ditches, flumes, tunnels, or other means of securing, storing, and conveying water for irrigation, or for any necessary public use, or for drainage, upon payment of just compensation therefor, but such right of way shall in all cases be exercised in a manner not to unnecessarily impair the practical use of any other right of way, highway, or public or private road, nor to unnecessarily injure any public or private property. Such right may be acquired in the manner provided by law for the taking of private property for public use."

Section 1278 provides: "When any person or corporation desires to convey water for irrigation, or for any other beneficial purpose, and there is a canal or ditch already constructed that can be enlarged to convey the required quantity of water, then such person or corporation, or the owner or owners of the lands through which a new canal or ditch would have to be constructed to convey the quantity of water necessary shall have the right to enlarge said canal or ditch already constructed by compensating the owner of the canal or ditch to be enlarged for the damage, if any, caused by said enlargement: provided, that said enlargement is to be done at any time from the first day of October to the first day of March, or at any other time that may be agreed upon with the owner of said canal or ditch."

The complaint herein in substance alleges that plaintiff is the owner of 80 acres of land situated in Utah county, this State, which land, without irrigation, is arid, barren, and unproductive, but with irrigation would produce in abundance, hay, grain, and other agricultural crops; that Ft. Canyon creek is a natural stream of water in Utah county, flowing from the mountains north of plaintiff's land in a southerly direction to and near plaintiff's land, that the defendants own a tract of land contiguous to and adjoining plaintiff's land on the north, and are also the owners of a certain ditch leading from Ft. Canyon creek over and across their land to a point within 100 feet of plaintiff's land, which ditch is a mile and a quarter in length, 18 inches wide, and 12 inches deep; that plaintiff owns water in Ft. Canyon creek sufficient to irrigate his land above mentioned; that there is no other convenient or practicable way in which to divert the waters of said creek and convey the same onto plaintiff's land except by and through the ditch of defendants; that, in order to irrigate his land, it is necessary that plaintiff have a right of way through defendants' ditch; that for plaintiff to enter upon defendants' land to enlarge their ditch will not injure them; that plaintiff requested of defendants that they allow him to go onto their land and enlarge their ditch, and use it for conducting his water to and on his land, and offered to contribute his share of the expense of maintaining the ditch and all damages; that the defendants refused to permit him to do so.

Plaintiff asks that he be permitted to enlarge defendants' ditch to the extent of widening it one foot more; that he have a perpetual right of way through said ditch when so widened, and constructed for the purpose of diverting and carrying his water from Ft. Canyon creek to his land for irrigation purposes; that the damages for such right of way and use of the ditch by plaintiff be fixed and determined, and that upon payment by the plaintiff of such damages he have such ditch condemned to the extent of and to the use and for the purposes above set forth, and that defendants be enjoined from in any way or manner asserting any right antagonistic to this right of plaintiff; that, if plaintiff is permitted by decree of this court to enlarge and use the ditch as aforesaid, his land can be made productive and the use of the water to which plaintiff is entitled can and will be put to a beneficial and public use in the irrigation of plaintiff's said land, and for no other purpose. Defendants interposed a general demurrer to plaintiff's complaint, alleging that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled. The defendants elected to stand upon their demurrer, and the plaintiff introduced evidence in support of the allegations of his complaint, and the court entered judgment and decree in favor of plaintiff, condemning defendants' land as prayed for in the complaint; and for a reversal of this judgment the defendants have appealed to this court.

McCARTY, J., after a statement of the foregoing facts, delivered the opinion of the court.

Appellants contend that the order of the district court overruling the demurrer was erroneous for the reason that the complaint on its face shows that the use to be made of the property sought to be condemned is strictly private, and in no sense a public use. Both the Constitution of the United States and the Constitution of this State provide that "private property shall not be taken or damaged for public use without just compensation." This provision is construed to mean that private property can not be taken for strictly a private use, which counsel for respondent concede to be the true and proper construction. This brings us to the only question presented by this appeal, to-wit: Was the condemnation of appellants' land in this case in law and in fact for a public use? There is no fixed rule of law by which this question can be determined. In other words, what is a public use can not always be determined by the application of purely legal principles. This is evident from...