Smith v. Cameron

• Decision Date: 28 November 1922
• Citation: 106 Or. 1,210 P. 716
• Parties: SMITH ET AL. v. CAMERON ET AL.
• Court: Oregon Supreme Court

210 P. 716

106 Or. 1

SMITH ET AL. v. CAMERON ET AL.

Supreme Court of Oregon

November 28, 1922

Department 1.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Condemnation proceedings to secure irrigation ditch right of way by Ed Smith and another against Frank Cameron and others. From a judgment against plaintiffs, they appeal. Affirmed.

The plaintiffs, Ed Smith and Silas Smith, brought this action against the defendants Frank Cameron and seven other persons in an attempt to exercise the power of eminent domain, and thus obtain the right to enlarge an irrigation ditch known as "the farmers' ditch," and owned and in the possession of the defendants as tenants in common. The ditch extends from the Little Applegate river to lands owned by the defendants. Water is taken from the river and conveyed through the ditch to the lands owned by the defendants, and is there used for irrigation.

The plaintiffs own 160 acres of land. The farmers' ditch extends "on, to, and through" the land owned by the plaintiffs. Upon the application of the plaintiffs the state engineer on May 5, 1917, granted them a permit to appropriate a specified quantity of the waters of the Little Applegate river for the irrigation of their land.

The plaintiffs sought to acquire from the defendants the right to enlarge the farmers' ditch and to use it for carrying the water which they are permitted to divert from the river for the irrigation of their 160 acres of land, offering to pay for the right, and also offering to agree to pay their pro rata part of the expense of maintaining the ditch. The plaintiffs wish to connect with the farmers' ditch at a specified point below its intake, and from that point convey their water through the farmers' ditch to their land. The complaint alleges, among other things, that the land of plaintiffs--

"above described is semiarid in character, and will not profitably produce without artificial irrigation, but that with artificial irrigation the same will produce abundantly of grain, vegetables, fruit and hay."

The plaintiffs further aver in their complaint:

"That there is no way by which these plaintiffs could convey the waters of Little Applegate river to which they are entitled as aforesaid, from said Little Applegate river to the lands of the plaintiffs above described, except through said ditch, or through a ditch substantially parallel therewith and over and across the lands of a considerable number of landowners, which lands are now traversed by the defendants' said ditch."

The plaintiffs refused to plead further after the trial court sustained a demurrer to the complaint, and they appealed from the consequent judgment rendered against them.

Porter J. Neff, of Medford, for appellants.

Gus Newbury, of Medford, for respondents.

HARRIS J. (after stating the facts as above).

The defendants contend, and apparently the trial court decided that to permit the plaintiffs to condemn the right to enlarge the farmers' ditch so that they could convey their share of water through it would be to take private property for a private use. It is conceded that the farmers' ditch is private property owned by private persons; and so the only question for decision is whether in the attending circumstances the enlargement and use of the farmers' ditch by the two plaintiffs for the irrigation of their tract of land would be for private or for a public use. The plaintiffs insist that they are authorized to exercise the power of eminent domain by section 5720, Or. L which reads as follows:

"Sec. 5720. Right to Enlarge Existing System. When the United States, the state, or any person, firm or corporation desires to convey water for irrigation, drainage 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 the United States, the state, or any such person, firm or corporation, or the owner or owners of the land 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 damages, if any, caused by said enlargement; provided, that said enlargement may be made at any time between the first day of October and the first day of March, but not any other time, unless upon agreement in writing with the owner or owners of said canal or ditch."

In connection with section 5720, Or. L., one should also examine section 5719, Or. L., which, so far as material here, reads thus:

"Sec. 5719. Eminent Domain. The United States the state, or any person, firm or corporation, shall have the right of way across and upon public, private and corporate lands or other rights 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 drainage or any other beneficial purpose, upon payment of just compensation therefor. * * * Such right may be acquired in the manner provided by law for the taking of private property for public use."

The defendants are private owners of lands. The ditch owned by the defendants is private property used by private persons for irrigating their own and no other lands. The plaintiffs are private persons and own private land; and they are attempting to condemn the right to enlarge the ditch owned by the defendants, and thus to take the private property of the defendants in order to irrigate their own and no other land.

The language employed in sections 5719 and 5720, Or. L., is general and comprehensive; and, although it is not specifically declared, as has been done by statute or by a constitutional provision in a few jurisdictions, that a private owner of land may condemn a right of way for conveying water to be used on his and no other land, and although there may be room to doubt whether the Legislature intended that sections 5719 and 5720 should apply to a situation like the one presented here, section 5720, Or. L., is probably sufficiently broad in its terms to include such an owner; and we shall therefore assume that the Legislature intended by the enactment of section 5720 to permit persons in the situation of the plaintiffs to condemn the right to enlarge a ditch owned by and in the possession of persons in the situation of the defendants. A statute as comprehensive as we assume section 5720, Or. L., to be is entirely valid, unless article 1, section 18, of our state Constitution is an interposing obstacle.

The fifth amendment to the United States Constitution, declaring that private property shall not be taken for public use without just compensation, is a restriction upon Congress, and not upon state Legislatures. 20 C.J. 532; 10 R. C. L. 16. State legislation is, however, subject to the due process of law clause in the Fourteenth Amendment to the federal Constitution; but this provision of the federal Constitution is not violated by a state statute permitting the condemnation of land in circumstances like those presented here; and, consequently, whether article 1, section 18, of our state Constitution permits or prevents the plaintiffs from condemning the right to enlarge the defendants' ditch is, in the language of the Supreme Court of the United States, "a local affair." Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531, 26 S.Ct. 301, 50 L.Ed. 581, 4 Ann. Cas. 1174; Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085, 4 Ann. Cas. 1171.

Article 1, section 18, of our state Constitution as amended in 1920 reads as follows:

"Private property shall not be taken for public use, nor the particular services of any man demanded without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads and ways necessary to promote the transportation of the raw products of mine or farm or forest is necessary to the development and weifare of the state and is declared a public use."

For convenience that portion which was added to article 1, section 18, by the amendment of 1920, is italicized. That part of section 18 which precedes the italicized words is exactly as it was originally adopted, except that the amendment of 1920 omitted the word "be," previously found after the word "man." It is appropriate to explain that the amendment resulted from the decision rendered in Anderson v. Smith-Powers Logging Co., 71 Or. 276, 139 P. 736, L. R. A. 1916B, 1089; and it is worthy of notice that the amendment is limited to "roads and ways necessary to promote the transportation of the raw products of mine or farm or forest."

The power of eminent domain is inherent in sovereignty, and exists in a sovereign state without any recognition of it in the Constitution. The power of eminent domain does not depend for its existence upon a grant in the Constitution. 10 R. C. L. 11. It exists independent of constitutional provisions. It is not conferred by a constitution, although it may be recognized or limited by a constitution. 20 C.J. 516. The language "private property shall not be taken for public use * * * without just compensation" is the familiar language of most of the state Constitutions, and is a limitation upon the power of eminent domain.

A few state Constitutions contain an express prohibition against taking private property for a private use. But the language of most of the Constitutions, including the federal Constitution, is either the same as or equivalent to the language appearing in our Constitution; and it is uniformly held that such language prohibits the...