Oury v. Goodwin

• Decision Date: 24 January 1891
• Docket Number: Civil 301
• Citation: 26 P. 376,3 Ariz. 255
• Parties: GRANVILLE H. OURY, and THE COUNTY OF MARICOPA, Defendants and Appellants, v. JAMES C. GOODWIN, Agent of the Territory of Arizona, Plaintiff and Appellee
• Court: Arizona Supreme Court

26 P. 376

3 Ariz. 255

GRANVILLE H. OURY, and THE COUNTY OF MARICOPA, Defendants and Appellants, v. JAMES C. GOODWIN, Agent of the Territory of Arizona, Plaintiff and Appellee

Civil No. 301

Supreme Court of Arizona

January 24, 1891

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kibbey Judge.

Affirmed.

A Buck, for Appellants.

It is now well settled that while, if the use is public, the legislative discretion is absolute as to the expediency or necessity of exercising the power, the legislature cannot finally determine whether the use is public; that question is a judicial one to be answered by the courts. Taylor v Beecher, 44 Vt. 548; Laughbridge v. Harris, 42 Ga. 500; Concord R. R. Co. v. Greeley, 17 N.H. 47, 57, 61; Palort v. Hudson, 16 Gray, 417, 421; Bankhead v. Brown, 25 Iowa 540; Custer v. Tide Water Co., 18 N. J. Eq. 54-63; Harris v. Thompson, 9 Barb. 350-362; Matter of Townsend, 39 N.Y. 171, 174, 181; Hayward v. Mayor, 7 N.Y. 314.

If the use be a public one, the decision of the legislature as to the necessity or propriety of the taking, and as to the manner and the instruments of the taking, whether by the state itself or by individuals or corporations, is final. Ford v. Chicago R. R. Co., 14 Wis. 609, 80 Am. Dec. 791; People v. Smith, 21 N.Y. 597; Hays v. Risher, 32 Pa. St. 189; Railroad Co. v. Lackland, 25 Mo. 515; Railroad Co. v. Gott, 25 Mo. 540.

Land cannot be condemned for private ways, and statutes authorizing such taking for ways which are private are invalid, although the ways be designated neighborhood roads. Dickey v. Tennison, 27 Mo. 373; Nescitt v. Trambo, 39 Ill. 110, 89 Am. Dec. 290; Grear v. Crosby, 40 Ill. 175; Osborn v. Hart, 24 Wis. 89, 1 Am. Rep. 161.

The distinction between a public and a private use is clearly defined in Hilmer v. Lime Point, 18 Cal. 251, 252; Memphis Freight Co. v. Memphis, 4 Cold. 425.

There must be some true criterion in order to ascertain whether property is about to be taken for public or private use. What this criterion is must depend upon the nature and character of the use.

What is a public use? It is defined to be a use in which the public have a right to participate. A public road or bridge, or a street in a town or a city, and the like. They may be located where but few people make use of them, but they are of such a character that anybody who chooses may make use of them. A public use, then, is one in which anybody who chooses has a right to participate.

On the contrary, a private use is where the owners thereof have such right of property and control of the use as enables them to allow any one whom they may choose to participate in its benefit to the exclusion of all others; in other words, a use where the owners have the right to dispose of the benefits and privileges at whatever price they see fit, and to whom they see fit, to the exclusion of others, and over such the legislature has no control.

The evidence in this case is, that a certain number of men own a certain amount of land, that each of these own stock in the ditch in proportion to their land; that the water to be carried through the ditch, passing through the land which they wish condemned, is all owned by them, and they are to be the exclusive owners of the ditch. The general public, under the testimony in this case, is to have no rights in the ditch, nor in the water passing through it. It is to be a private concern, in which no outsider is to participate. How can the enterprise be anything more or less than a private enterprise, in the fullest sense of the term? In this case the owners of the rights in the ditch are owners of a private right, as much so as the right which they have in the lands which the testimony shows they own. If the land can be condemned in this case, then land may be condemned on the request of a single individual for the purpose of irrigating the smallest subdivision of land, a matter in which the public would not and could not have any right.

We do not contend that irrigation ditches cannot be constructed in accordance with a plan which would constitute the same a public use. A canal constructed for the purpose of distributing water to the public might be such as would be a public use, but the evidence in this case falls far short of showing the existence, or the proposed existence, of any such concern.

Private property cannot be taken for private use. Lambert v. Hoke, 14 John. 383; Herrick v. Stover, 3 Wend. 380; 2 Kent's Commentaries, 340; Wilkinson v. Leland, 2 Pet. 857; Story on the Constitution, 861; In re Albany St., 11 Wend. 149, 25 Am. Dec. 618 and note; Bloodgood v. Mohawk etc. R. R. Co., 18 Wend. 59, 31 Am. Dec. 313, and note; In re John and Cherry St., 19 Wend. 659; Taylor v. Porter, 4 Hill, 140, 40 Am. Dec. 274, and note.

W. J. Kingsbury, for Appellee.

The right of eminent domain may be exercised in behalf of the following public uses: . . . canals, ditches, . . . and for supplying farming neighborhoods with water, . . . and reclaiming lands. Rev. Stats. Ariz., par. 1762, subd. 4, (Same in Cal. Code Civ. Proc., sec. 1238); Cooley on Constitutional Limitations, 532.

Any person may without further legislative action acquire private property for canals and ditches for supplying farming neighborhoods with water and reclaiming lands. Rev. Stats. Ariz. 1766, 1762. (Same in Cal. Code, par. 1001.)

"Farming neighborhoods." Lux v. Haggin, 69 Cal. 255, 10 P. 700.

In general the legislature is the sole judge of what constitutes a public use. But to a very limited extent the constitutionality of a statute purporting to confer the right to take private property for public use is a judicial question. Courts will only interfere when there is no semblance of public benefit, or when the absence of all pretense of public interest is clear. Gas Co. v. Richardson, 63 Barb. 437.

If the public interest can in any way be promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain. 2 Kent's Commentaries, 340; Gilmer v. Lime Point, 18 Cal. 229.

The necessity for appropriating private property for the use of the public is not a judicial question. The power resides in the legislature. People v. Smith, 21 N.Y. 595; Tidewater Co. v. Coster, 18 N. J. Eq. 518, 90 Am. Dec. 634; Lux v. Haggin, 69 Cal. 255, 10 P. 696.

Supplying water to "farming neighborhoods" for irrigation, in view of the arid soil, etc., is what the legislature has decided it to be--a public use. Dicta in Lux v. Haggin, 69 Cal. 255, 10 P. 699.

The right to acquire private property for irrigating-ditch purposes exists in favor of those holding lands so situated as to make it necessary to cross the lands of others independent of any statutory provision. The servitude arises not by grant but by operation of law. Hallett, C. J., in Yunker v. Nichols, 1 Colo. 551.

Gooding, C. J. Sloan, J., and Kibbey, J., concur.

OPINION

The facts are stated in the opinion.

GOODING, C. J.--

This is an action under title 22 "Eminent Domain," of the Revised Statutes of Arizona, act approved March 9, 1887, to condemn real estate of appellant for the purpose of a canal or ditch for irrigating purposes. The appellant contends--1. That the legislature had no power to pass the act; 2. That the court, and not the legislature, must be the final judge of what is a public use, as distinguished from a private use; and 3. That the use in this case is private, and not public.

These are questions of the utmost importance in this territory, and have been presented and argued with ability commensurate with their importance. Was the act, "Eminent Domain," beyond the power and authority of the legislature, and therefore void? The organic law of Arizona provides (U. S Rev. Stats. 1878, sec. 1851): "The legislative power of this territory extends to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States. But no laws shall be passed interfering with the primary disposal of the soil. . . ." The exercise of the power of eminent domain is certainly "a rightful subject of legislation." The various and imperative demands for the exercise of this power are so obvious as to preclude the idea that Congress did not intend to confer it by the language used in the organic act. Public buildings, public roads, railroads, canals, water-works, sewers, gas, electric lights, and all the modern improvements of a public character are dependent on the exercise of this power. Not only is the exercise of the power of eminent domain a "rightful subject of legislation," but this power is implied from the negative. "But no law shall be passed interfering with the primary disposal of the soil." The primary disposal, it is needless to say, is the disposal of it by the government when it parts with its title. The legislature has the power to determine and fix by what tenures lands in the territory shall be held, and under what forms titles shall pass, and who shall be the heirs at the death of the proprietor and pass other like laws. The purpose of the Organic Act was to transfer from Congress to the territorial legislature the power that Congress had to pass laws for the people of the territory upon "all rightful subjects of legislation." The territorial legislature is substituted for Congress, and clothed with the power of Congress, except that it may not pass laws interfering with the primary disposal of the soil, nor tax the property of the United States, nor tax the lands or other property of non-residents higher than the lands or property of...