Portneuf Irrigating Co., Ltd. v. Budge

• Decision Date: 15 March 1909
• Citation: 16 Idaho 116,100 P. 1046
• Parties: PORTNEUF IRRIGATING COMPANY, LTD., a Corporation, Plaintiff, v. ALFRED BUDGE, Judge, Defendant
• Court: Idaho Supreme Court

100 P. 1046

16 Idaho 116

PORTNEUF IRRIGATING COMPANY, LTD., a Corporation, Plaintiff, v. ALFRED BUDGE, Judge, Defendant

Supreme Court of Idaho

March 15, 1909

EMINENT DOMAIN-SOVEREIGN POWER OF EMINENT DOMAIN-CONSTITUTIONAL LIMITATIONS OF RIGHT-CONSTITUTIONALITY OF STATUTE-COMPENSATION FOR TAKING-DUE PROCESS OF LAW-RIGHT TO JURY TRIAL-MODE OF ASSESSING DAMAGES-NECESSITY FOR TAKING.

1. Under the provisions of sec. 14, art. 1 of the constitution of Idaho, which provides that "private property may be taken for public use, but not until a just compensation to be ascertained in a manner prescribed by law shall be paid therefor," the legislature had the power and authority to enact sec. 5226, Rev. Codes, and provide for assessing the damages sustained by any land owner by three commissioners to be appointed by the court. A tender of the amount so assessed to the land owner, or in case of his refusal to accept the same, a payment thereof into court to await the determination of the action, is sufficient compliance with the constitutional requirements as to payment in advance of the taking to justify and authorize the court in letting the party seeking to condemn into possession of the property.

2. Sec 7, art. 1 of the constitution, which provides that "the right of trial by jury shall remain inviolate," has reference to the right of jury trial as the same existed at the time of the adoption of the constitution, and therefore does not guarantee to the citizen the right of trial by jury in condemnation proceedings in the exercise of the right of eminent domain pursuant to the provisions of sec. 14, art. 1 of the constitution.

3. At the time of the adoption of the constitution of Idaho, the exercise of the right of eminent domain was recognized and existed as a "special proceeding of a civil nature," and was not classed or recognized as an action at law.

4. At common law, a proceeding for condemnation of property to a public use was inquisitorial and ex parte, and was instituted at the instance of the sovereign, and the fixing or assessing damages to be paid for the taking was merely for the purpose of satisfying the sovereign conscience, and a trial by jury was not recognized in such proceedings.

5. It is the uniform ruling of the American courts that the right of trial by jury in proceedings for condemnation of property to a public use does not exist as a constitutional right unless the con- stitution itself contains a specific grant and guaranty of such right.

6. Primarily, the power to exercise the right of eminent domain for and on behalf of the state rests with the legislature and the constitutional provision with reference to the exercise of that power (sec. 14, art. 1) is a limitation and not a grant of power. The legislature may determine the necessity for the taking, and its determination thereon is final. The legislature of this state has delegated the power to determine the necessity for the taking to the courts, and jurisdiction is thereby vested in the courts to pass upon determine and adjudicate all the matters and things specified by the statute to be determined before the taking is finally consummated and title devested.

7. The provisions of sec. 5226 for the appointment of commissioners to assess damages that the defendant will sustain by reason of the condemnation and appropriation of his property, and for the payment of the sum so assessed to the defendant, or in case of his refusal to accept the same, its being paid into court to abide the result of the action, and for the plaintiff thereupon to enter upon and take possession of the property pending the final hearing and determination of the proceeding, are not in conflict with either section 7 or sec. 14 of art. 1 of the constitution.

8. The fact that the statute grants to a defendant in condemnation proceedings the right to a trial subsequent to the assessment made by the commissioners, and also the right of appeal, does not render the provision of the statute, authorizing the appointment of the commissioners and assessment of damages and the taking of possession after payment of the amount so assessed, obnoxious to the constitution.

9. The damages to be assessed for the taking of property in condemnation proceedings is fixed by the statute (sec. 5221) as of the date of the issuance of the summons, and if the damages so assessed are paid to the land owner, the fact that the plaintiff in condemnation may subsequently commit waste or damage on the lands so condemned, and may not prosecute the proceeding to final judgment, can in no way prejudice the land owner whose damages are assessed as of a previous date.

10. The question as to the necessity for the taking of a definite piece of property for a public use, when denied, should be determined by the court in limine before appointing commissioners to assess the damages that will be sustained by reason of the taking.

11. Where it is sought by condemnation proceedings to take a piece of property that is already devoted to a public use, the necessity will not be measured by the extent to which the use is actually applied, but rather to the public nature and character of the use to which it has been previously applied.

12. Under the constitution and statutes of this state irrigating canals are declared to be a public use.

13. Where the necessity for the taking is shown, one canal company will be allowed to condemn a part of the right of way of another canal company, for the purpose of enlarging the old canal to a sufficient capacity to carry such additional volume of water as may be needed for the use of the latter company.

(Syllabus by the court.)

Original application for a writ of prohibition. Demurrer to the petition sustained, writ denied and proceeding dismissed.

Demurrer sustained, writ denied and the petition dismissed. Costs awarded in favor of the defendant.

Clark & Budge, for Plaintiff.

The taking of the possession of property pending the action is a "taking" within the meaning of sec. 14, art. 1 of the constitution. (Authorities cited in opinion.) Under the above provision of the constitution, compensation must be paid before a "taking" is authorized. (15 Cyc. 776; Carrico v. Colvin, 92 Ky. 342, 17 S.W. 854; Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 L. R. A. 838; Oregonian R. R. Co. v. Hill, 9 Ore. 377; Pratt v. Roseland R. Co., 50 N.J.Eq. 150, 24 A. 1027; Stolze v. Milwaukee etc. R. Co., 104 Wis. 47, 80 N.W. 68.)

Inasmuch as sec. 5226 makes no provision for the payment of damages sustained by the defendant by reason of the plaintiff's possession pending the proceedings to condemn, in the event that the plaintiff does not take the property, said section is in violation of the constitutional provision, and is void. (Davis v. San Lorenzo R. R. Co., 47 Cal. 517; Steinhart v. Superior Court, 137 Cal. 575, 92 Am. St. 183, 70 P. 629, 59 L. R. A. 404.)

Under the authorities above cited, the compensation must be paid in advance, and it is not sufficient to say that the defendant, if his land be not taken, would have an action for damages. (See Sanborne v. Belden, 51 Cal. 266.)

The necessity for the taking of property, as well as the fact that the use sought to be made of it, is a more necessary public use than that to which it is now devoted, must be made to appear, and be determined by the court, before it has jurisdiction to proceed to have compensation assessed. (15 Cyc. 814, 815; Cleveland etc. R. R. Co. v. Ohio etc. Cable Co., 68 Ohio St. 306, 67 N.E. 890, 62 L. R. A. 941; Barrett v. Kemp, 91 Ia. 296, 59 N.W. 76; Manistee etc. R. Co. v. Fowler, 73 Mich. 217, 41 N.W. 261; Lewis on Eminent Domain, 2d ed., secs. 338, 393; Hubbard v. Great Falls Mfg. Co., 80 Me. 39, 12 A. 878.; O'Hare v. Chicago etc. R. Co., 139 Ill. 151, 28 N.E. 923; Sand Creek etc. Irr. Co. v. Davis, 17 Colo. 326, 29 P. 742.)

Whether land sought to be condemned is necessary, or whether the proposed use would be inconsistent with or subversive of a prior public use, are questions for judicial determination. (15 Cyc. 580; In re St. Paul etc. R. Co., 34 Minn. 227, 25 N.W. 345.)

Edwin Snow, for Defendant.

"In the absence of a constitutional provision forbidding it, the legislature may provide that the compensation may be assessed by commissioners or arbitrators." (15 Cyc. 883, and cases cited; Kansas City Belt Ry. Co. v. Kansas City etc. Ry. Co., 118 Mo. 599, 24 S.W. 478; Butte etc. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 50 Am. St. 508, 41 P. 232, 31 L. R. A. 298; Doughty v. Somerville, 21 N.J.L. 442; Ross v. Elizabethtown Ry. Co., 20 N.J.L. 230; Austin v. Helms, 65 N.C. 560; Sullivan v. Missouri Ry. Co., 29 Tex.Civ.App. 429, 68 S.W. 745.)

"In the absence of a special constitutional or statutory provision there is no right to trial by jury in condemnation proceedings." (15 Cyc. 873; Koppikus v. State Capitol Commrs., 16 Cal. 249; Bruggerman v. True, 25 Minn. 123; People v. Smith, 21 N.Y. 595; Chowan Ry. Co. v. Parker, 105 N.C. 246, 11 S.E. 328; Penn. R. Co. v. German Lutheran Cong., 53 Pa. 445; Houston Tap. Ry. Co. v. Milburn, 34 Tex. 224; Postal Tel. Co. v. So. Ry. Co., 122 F. 156; 18 Cent. Dig., tit. "Eminent Domain," sec. 545; Kramer v. Cleveland Ry. Co., 5 Ohio St. 140; State v. City of Oshkosh, 84 Wis. 548, 54 N.W. 1095; Central Branch Union P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453.)

All the constitutional guaranties of the defendant in the condemnation suit have been protected by the submission of the question of damages to the commissioners appointed under sec. 5226, and the payment of the compensation assessed by such commissioners. The subsequent right to a trial by jury is simply an additional privilege. The statute can grant that privilege on terms. One of the terms is the loss...