Potlatch Lumber Co. v. Peterson

• Decision Date: 31 December 1906
• Citation: 88 P. 426,12 Idaho 769
• Parties: THE POTLATCH LUMBER COMPANY, a Corporation, Respondent, v. HENRY T. PETERSON et al., Appellants
• Court: Idaho Supreme Court

88 P. 426

12 Idaho 769

THE POTLATCH LUMBER COMPANY, a Corporation, Respondent, v. HENRY T. PETERSON et al., Appellants

Supreme Court of Idaho

December 31, 1906

EMINENT DOMAIN-ALLEGATIONS OF COMPLAINT-CONSTITUTIONAL LAW-NAVIGABLE STREAMS-IMPROVEMENT OF-FLOATING LOGS AND TIMBER-PRODUCTS-CHARACTER OF NAVIGABILITY-RIGHT TO EXERCISE POWER OF EMINENT DOMAIN-GENERAL WELFARE-PUBLIC USE-OBLIGATION TO THE PUBLIC-RIGHT OF PUBLIC SUPERVISION-OBSTRUCTION OF RIVER PROHIBITED-STREAMS NAVIGABLE IN FACT-DEVELOPMENT OF MATERIAL RESOURCES-PROVISIONS OF CONSTITUTION SELF-EXECUTING-PROCEDURE PROVIDED BY STATUTE.

1. Held, that the complaint alleges a cause of action in a suit seeking to exercise the power of eminent domain over land for the improvement of a river for storing water for floating sawlogs and other timber products.

2. Under the provisions of section 14, article 1, of the constitution, the necessary use of lands for the complete development of the material resources of the state is declared to be a public use.

3. Under the provisions of subdivision 3, section 5210, Revised Statutes, the necessary use of lands for storage basins and the improvement of the floatability of such streams may be obtained by the exercise of the power of eminent domain, and the provisions of said subdivision apply to all streams not navigable in fact.

4. The phrase "streams not navigable," as used in said section 5210, Revised Statutes, means streams not navigable in fact.

5. The legislature cannot by legislative act impress the character of navigability on a stream that is not navigable, as a stream not navigable in fact cannot be made so by legislation.

6. The power of eminent domain is an incident of sovereignty inherent in the states of this Union by virtue of their sovereignty.

7. The provisions of section 14, article 1 of the constitution of Idaho, declare for what purposes the power of eminent domain may be exercised, and the legislature cannot prohibit the exercise of that power for any of the purposes therein specified.

8. The right to exercise the power of eminent domain under the constitution of this state is not made to depend upon the narrow and restricted meaning of the phrase "public use" as defined by courts of last resort of some of the states.

9. Under the provisions of said section of the constitution, the general welfare and benefit of the public is taken into consideration, and if the taking is necessary to the complete development of the material resources of the state, such taking is for a public use.

10. The term "public use," as used in said section 14 article 1, of the constitution, means public usefulness and productive of general benefit. That term is a flexible one and necessarily has been of constant growth as new public uses have developed.

11. The power of eminent domain under our constitution and laws is given a degree of elasticity, thus making it capable of meeting new conditions and improvements of the ever-increasing necessities of society.

12. The person or corporation who exercises the power of eminent domain assumes certain obligations to the public, and the grant of that right carries with it the right of public supervision and reasonable control.

13. One who exercises the right of eminent domain in the improvement of non-navigable rivers in this state for the purpose of floating logs and timber products does not thereby secure the exclusive use and control of such streams, but such streams are open to the use of anyone who may have occasion to use them for any purpose.

14. Under the provisions of section 835, Revised Statutes, the construction of any dam or boom on any creek or river in this state that will unreasonably delay or hinder the passage or floating of timber down the same is prohibited.

15. In the enactment of section 5210, the legislative intent was to make the provisions thereof applicable to all streams not navigable in fact.

16. Under the provisions of said section of the constitution the power of eminent domain may be exercised when necessary to the complete development of the material resources of the state, and the great lumbering interest of the state is one of the material resources of the state, and cannot be completely developed without the exercise of said power.

17. While said provisions of the constitution are not self-executing, or, in other words, do not furnish the procedure by which that power may be exercised, the procedure to subject lands to a public use has been provided by the legislature.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

An action to condemn twelve and sixty hundredths acres of land for use as a storage reservoir for logs and timber products and to improve the navigability of the Palouse river. Judgment for respondent. Affirmed.

Judgment of the trial court sustained. Costs awarded to the respondent.

Wm. M Morgan, for Appellants.

The respondent has no greater rights than those provided by the statute under which it seeks to proceed. The provision of the constitution in question is not self-executing, and if it is broader and more general in its terms than is the statutory enactment, nothing can be drawn from it in aid of the statute. Whatever rights the respondent may have to appropriate the appellants' land must be found in the act of the legislature. (Lewis on Eminent Domain, sec. 237; Cooley's Constitutional Limitations, 4th ed., 657; Long v. Billings, 7 Wash. 267, 34 P. 936; In re Poughkeepsie Bridge Co., 108 N.Y. 483, 15 N.E 601.)

Nothing is to be read into the statute for the benefit of the respondent which does not appear there. A statute granting to a corporation the power of eminent domain must be strictly construed. (Cooley's Constitutional Limitations, 4th ed., sec. 530; Lewis on Eminent Domain, sec. 254; Ford Bridge Baptist Cem. Assn. v. Redd, 33 W.Va. 262, 10 S.E. 405; Gilmer v. Lime Point, 19 Cal. 47; In re Poughkeepsie Bridge Co., 108 N.Y. 483, 15 N.E. 601; United States v. Rauers, 70 F. 748; Currier v. Marietta etc. R. R. Co., 11 Ohio St. 228; Miami Coal Co. v. Wigton, 19 Ohio St. 560; Clay v. Penoyer Creek Imp. Co., 34 Mich. 204.)

The taking of property for a strictly private purpose of this kind cannot be justified by merely calling it a public use. (Lewis on Eminent Domain, sec. 165; Amador Queen M. Co. v. Dewitt, 73 Cal. 482, 15 P. 74; Con. Channel Co. v. Central P. R. Co., 51 Cal. 269; Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 60 Am. St. Rep. 818, 46 P. 790, 34 L. R. A. 368; Apex Trans. Co. v. Garbade, 32 Or. 582, 52 P. 573, 54 P. 367, 882, 62 L. R. A. 513; Healy Lumber Co. v. Morris, 33 Wash. 490, 99 Am. St. Rep. 964, 74 P. 681, 63 L. R. A. 820; Matthews v. Belfast Mfg. Co., 35 Wash. 662, 77 P. 1046; In re Niagara Falls & W. Ry. Co., 108 N.Y. 375, 15 N.E. 429; In re Split Rock Cable-Road Co., 128 N.Y. 408, 28 N.E. 506; Board of Health v. Van Hoesen, 87 Mich. 533, 49 N.W. 894, 14 L. R. A. 114; Sholl v. German Coal Co., 118 Ill. 427, 59 Am. St. Rep. 379, 10 N.E. 199; Water Power Co. v. Berrien, Circuit Judge, 133 Mich. 48, 103 Am. St. Rep. 438, 94 N.W. 379; Cozard v. Kanawah Hardwood Co., 139 N.C. 283, 111 Am. St. Rep. 779, 51 S.E. 932, 1 L. R. A., N. S., 969; State ex rel. Tacoma Industrial Co. v. White River Power Co., 39 Wash. 648, 82 P. 150, 2 L. R. A., N. S., 842.)

From the authorities last above cited it will be seen that the true rule is that land cannot be taken under the exercise of the power of eminent domain unless, after it is taken, it will be devoted to the use of the public independent of the will of the corporation taking it.

John P. Gray and G. G. Pickett, for Respondent.

In adopting section 14, article 1, providing for the condemnation of land for public use, the framers of our constitution had in view the decisions of the older states upon the mill dam acts and the Nevada decisions extending the same rule to mines.

The supreme court of Massachusetts, in Boston & Roxbury Mill Corp. v. Newman, 12 Pick, 467, 23 Am. Dec. 622, first announced the rule, stating that in regard to the manufacturing establishments, there was nothing in which the public had a more certain and direct interest. (Hazen v. Essex County, 12 Cush. 475; Murdock v. Stickney, 8 Cush. 111; Turner v. Nye, 154 Mass. 579, 28 N.E. 1048, 14 L. R. A. 487; Scudder v. Trenton Del. Falls Co., 1 N.J. Eq. 694, 23 Am. Dec. 756; Great Falls Mfg. Co. v. Fernald, 47 N.H. 444.)

The supreme court of the United States has reached the same conclusion. (Head v. Amoskeag Mfg. Co., 113 U.S. 9, 28 L.Ed. 889, 5 S.Ct. 441; Otis Co. v. Ludlow Mfg. Co., 201 U.S. 140, 50 L.Ed. 696, 26 S.Ct. 353.)

California, Nevada, Utah, Colorado, the Dakotas, Montana and Idaho have recognized that the taking of land for the purposes of irrigation, under the climatic conditions which exist in the arid states, is a taking for a public use, and that doctrine has received the support and approval of the supreme court of the United States. (Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112, 41 L.Ed. 369, 17 S.Ct. 56.) Even in the case where the taking is for the benefit of one individual user. (Clark v. Nash, 198 U.S. 361, 49 L.Ed. 1085, 25 S.Ct. 676.)

The first case under the Nevada statute allowing the taking of private property under the eminent domain act for the purpose of mining, milling or smelting, or other reduction of ore in the state of Nevada, is the case of Dayton Gold & Silver M. Co. v. Seawell, 11 Nev. 394. (Overman Silver M. Co. v. Cochran, 15 Nev. 417; Douglas v. Byrnes (C. C.), 59 F. 29.)

The principle has been squarely accepted and adopted by the supreme court of the United States. (Clark v. Nash, 198 U.S. 361, 49 L.Ed. 1085, 25 S.Ct. 676; Stikley v....