Sterritt v. Young

• Decision Date: 20 November 1905
• Citation: 14 Wyo. 146,82 P. 946
• Parties: STERRITT v. YOUNG ET AL
• Court: Wyoming Supreme Court

82 P. 946

14 Wyo. 146

STERRITT v. YOUNG ET AL

Supreme Court of Wyoming

November 20, 1905

ON reserved constitutional questions from the District Court Carbon County

The questions were reserved in an action brought by Frank E Sterritt against Charles G. Young and another to restrain the construction of an irrigating ditch across the lands of plaintiff. The defendants claimed to have acquired a right of way for the ditch by condemnation proceedings as authorized by statute. The questions reserved involved the constitutionality of the statute providing for condemning a right of way for private ditches.

McMicken & Blydenburgh, for plaintiff.

While the right of eminent domain is one inherent in government nevertheless the property cannot be taken without due process of law. (Stewart v. Palmer, 74 N.Y. 183; Board v. Aldredge, 73 P. 1104; Aldredge v. School District (Okla.), 65 P. 96; Branson v. Gee, 36 P. 527; Davidson v. Board, 96 U.S. 97.) As to what is due process of law, see Stewart v. Palmer, supra; Westervelt v. Gregg, 12 N.Y. 209; Cooley's Const. Lim., 355; Ireland v. Rochester, 51 Barb., 414; In re Ford 6 Lans., 92; Davidson v. Board, 96 U.S. 97.

The courts have held in all proceedings to take eminent domain that there must be notice and opportunity to be heard. (Burns v. Multnomah Bar Co., 15 F. 177; Ames v Booming Co., 11 Mich. 139; Long v. People, 14 Mich. 454; Kundinger v. City of Saginaw, 59 Mich. 325; Langley v. Ramsey County, 16 Minn. 375; McGavett v. Omaha, 40 Neb. 64.) We are aware that there have been frequent decisions to the effect that eminent domain proceedings are exempt from the provisions of the constitution requiring trial by jury, and that the assessment of damages by the commissioners has been held to be legal; but in all these cases that we have been able to examine it has been held that the procedure must be such as was applicable, and it has been the usual custom and mode of procedure in eminent domain matters. And in accord with this we may say that we have been unable to find any case where there was legislative provision for the assignment of the compensation by the commissioners that the proceedings did not either originate in some court to whom the commissioners were required to report and where the land owner might have a chance of hearing, both prior to the appointment of the commissioners, and afterwards on review of the award, or that it was required that the report or award should be confirmed and where an opportunity was given to file exceptions and objections and to have the matter reviewed and also an opportunity for appeal. In our own state all such opportunities are given in every other proceeding in eminent domain except in this special one in regard to ditches by private individuals. Where a statute does not provide for a notice, the mere fact that the notice may be given does not remedy the defect in the statute. These proceedings in eminent domain are special proceedings, and they give no power to any officer, board, court or commissioner to act in any way except as provided by the statute, and they must be strictly construed. (Powers v. Bears, 12 Wis. 213; Board v. Aldredge, 73 P. 1104; Aldredge v. Sch. Dist., 65 P. 796.)

All the requisites of the petition must be complied with or the court or board will acquire no jurisdiction. (Reed v. R. R. Co., 126 Ill. 48.) Under the statute in question, however, there is no opportunity to be heard upon the sufficiency of the petition, the necessity for the ditch going through the lands, or even the truthfulness of the petition in any particular; and this petition by the statute is not required to be verified; all that is necessary, therefore, is for anyone who desires to injure his neighbor, or to cut up his lands with a ditch, is to file an unverified petition with the Board of County Commissioners, when, without any redress on behalf of the land owners, the commissioners must appoint appraisers, and these appraisers may be all friends of the person filing the petition, and there are no qualifications prescribed as to whether they shall be freeholders or whether they shall have any qualifications whatever to perform the duties they are called upon to perform. Now, if the statute is strictly followed, and these men are appointed appraisers, then if by any possible twisting of the statute it could be said that they were judges of the necessity, etc., of the ditch going through the land of the land owner, or as to whether the prerequisites had been fulfilled, it would be giving judicial power to the appraisers. But they are not commissioners in the sense in which that word is sometimes used in eminent domain statutes, and they have no power whatever except to appraise. It is not necessary to refer to the constitution vesting in certain courts the judicial power of the state, or to cite decisions to the effect that acts of the Legislature which impose judicial duties upon other than the courts named or provided for in the constitution are void.

In some states where the constitution provides for the appointment of commissioners to assess the damages on condemnation proceedings, it has been held that they are both the judges of the law and the facts. (R. R. Co. v. Voorhees, 50 Mich. 506; Toledo, &c., Co. v. Dunlap, 47 Mich. 476.)

Section 900 provides that the appraisers shall make deductions or allowance for real benefits or advantages that the owner may derive from the construction of the ditch. Under similar constitutional provisions to ours this has been held to be illegal. (R. R. v. Dickerson, 66 Am. Dec., 108; Brown v. Beatty, 34 Miss. 227; Isomman v. R. R. Co., 36 Miss. 313; Penrice v. Wallis, 37 Miss. 183; R. R. Co. v. Noye, 39 Miss. 385; Micken v. Patty, 57 Miss. 397.)

In the statutes of most of the states, as well as our own in other cases, provision is made for a review of the proceedings, either of the jury, or where commissioners are prayed for, of the commissioners, and also by exceptions to the award. The court or judge may take up and set aside the award when inadequate or inequitable Under the statute in this proceeding, as has been stated before, there is no such provision. These appraisers, who may be unpaid, and to whose appointment the land owner has no power to object, merely record in gross the amount that they find should be paid, if any, this record to be made in the County Clerk's office. There is no provision by which this estimate can be reviewed; there is no provision by which, no matter how unjust the compensation may be, no matter how fraudulently done, no matter what it may consist of, the land owner can have it set aside and have a proper value placed upon his property. These appraisers are not required to give him any notice; they may go into secret session; and their proceedings are without any record. The only thing they have to do is to fix the amount or say what the land owner is entitled to and have that recorded in the County Clerk's office; and if their award should be that the land owner is entitled to nothing, if this statute is now followed the party seeking to obtain land would have the right without paying anything to go upon and take to his own use the land of another

It cannot be contended, because the statute does not provide for notice that the intention is that they should make a return to the Board of County Commissioners and the Board of County Commissioners should review their award, since there is no provision for so doing. Should the Commissioners attempt in any way to review, confirm, or set aside their return or appraisement, such proceedings would be absolutely void as being without authority of statute or law. By the great weight of authority the ultimate power of restricting the exercise of eminent domain to the actual reasonable necessities of the case is to be vested in the court rather than the donee. (Fairchild v. City of St. Paul, 46 Minn. 54; People v. Blake, 19 Cal. 579; Spring Valley Co. v. S. M. W. W. Co., 64 Cal. 123; Reed v. Bridge Co., 8 Bush., 69; Tracy v. R. R. Co., 80 Ky. 269; Ry. Co. v. State, 34 Minn. 227; R. R. Co. v. Ry. Co., 31 N.J. Eq. 475; Olmstead v. Morris Aqueduct, 58 N.J.L. 303; In re Cent. Ry. Co., 66 N.Y. 407; Ry. Co. v. Davis, 43 N.Y. 137; Ry. Co. v. Blake, 9 Rich., 228; Stearns v. City of Barre, 73 Vt. 281; Ry. Co. v. Ry. Co., 17 W.Va. 812; Ry. Co. v. Cornell University, 52 Wis. 537; Water Power Co. v. Green Bay Canal Co., 142 U.S. 254.) And the question of the necessity for taking is a judicial one, which must be determined either by a court or by some quasi judicial tribunal designated in the statute. (Lewis on Eminent Domain, Secs. 238, 393; O'Hara v. Ry. Co., 139 Ill. 151; Cooley Const. Lim. (6th Ed.), 664; Heyneman v. Blake, 19 Cal. 579; Ry. Co. v. Love, 81 N. C., 434; McWhirter v. Cockrell, 2 Hed., 9.)

We are aware that it has been held in some of the western territories that the taking of land for ditches for irrigation is a public use, but we believe that this is a strained construction of the law; and it would seem from the decisions rendered in regard to private rights of way and for similar matters and the general particulars involved, that the taking of another's land simply for the purpose of irrigating the land of one individual is strictly a private use and does not come under the general power of eminent domain and would not be allowable in this state except for the provision of the Constitution, Section 32, Article I. The very language of this section of the Constitution says that such use is a private use, because it is mentioned as an exception to the prohibition against taking private property for private use. And it is clearly a private and not a public use. (Taylor v. Porter, 4 Hill, 140; Clark v White, 2 Swan, 540; Rice v....