The Lake Koen Navigation v. Klein

• Decision Date: 06 July 1901
• Docket Number: 12,599
• Citation: 63 Kan. 484,65 P. 684
• Parties: THE LAKE KOEN NAVIGATION, RESERVOIR AND IRRIGATION COMPANY v. J. J. KLEIN
• Court: Kansas Supreme Court

65 P. 684

63 Kan. 484

THE LAKE KOEN NAVIGATION, RESERVOIR AND IRRIGATION COMPANY v. J. J. KLEIN

No. 12,599

Supreme Court of Kansas

July 6, 1901

Decided July, 1901.

Error from Barton district court; ANSEL R. CLARK, judge.

STATEMENT.

THE Lake Koen Navigation, Reservoir and Irrigation Company is a corporation organized under the general laws of the state of Kansas. The purposes for which it was organized are set forth in its charter as follows:

"The accumulation, storage and conservation of storm, flood and seepage waters and the supply of water to the public; to manufacture and supply light and heat to the public; the construction and maintenance of dams and canals and reservoirs for the purpose of water-works, irrigation navigation and manufacturing purposes; and, also, to have and exercise each and all the powers referred to and conferred on canal corporations for the purpose of irrigation under the laws of the state of Kansas, and to acquire and hold all real estate and property necessary to construct and maintain such dams, canals and reservoirs from a point in the Arkansas river near Pawnee Rock, Kan., on the north side of said stream, thence in a northerly direction through Barton county, Kansas, to and including what is known as the 'Cheyenne bottoms,' which 'bottoms' are to be converted into a lake, to be called 'Lake Koen'; and to acquire and hold all necessary property to construct and maintain ditches, dams and canals to and from said lake."

In pursuance of such objects, it has already acquired the right to construct a canal from a point near Pawnee Rock in a northerly direction some eight or ten miles to the "Cheyenne bottoms," a tract of land of comparatively small value, forming a natural basin. For the purpose of acquiring land in these bottoms upon which to accumulate waters to be discharged from this canal, and thus to form a reservoir or lake, it instituted condemnation proceedings in the manner pointed out in the statute for the condemnation of lands for railroad and other purposes. Its application to the judge of the district court for the appointment of commissioners for this purpose was as follows:

"The Lake Koen Navigation, Reservoir and Irrigation Company respectfully represents unto your honor that it is a duly chartered and organized corporation, and authorized under the laws of Kansas to construct, operate and maintain irrigation ditches, lakes and reservoirs in and through the county of Barton, in the state of Kansas; that it is necessary for the proper construction, operation and maintenance of such ditches, lakes, and reservoirs, as located in said. county to acquire for the said purposes certain lands for said ditches, lakes and reservoirs in said county."

The commissioners were appointed, made their condemnation and reported to the court, from which defendant in error appealed to the district court of Barton county, filing his proper petition therein, to which plaintiff in error answered. After the issues were thus formed, defendant in error filed his motion to quash the condemnation proceedings and declare the same null and void, on the following grounds:

"1. That said alleged condemnation proceedings are null, void and of no effect.

"2. That there is no law under which plaintiff's said land or any interest or easement, can be taken or appropriated, against plaintiff's will, for the purpose for which said land is sought to be appropriated. (See charter of said defendant corporation, a copy of which is hereto attached marked 'Exhibit A.')

"3. That the purpose for which said land, or an easement therein, is sought to be taken under said alleged condemnation is for private purposes and not for public uses.

"4. That the alleged laws under which said pretended condemnation proceedings were had were and are unconstitutional and void.

"5. That said chapters 95 and 151 of the Session Laws of Kansas for 1899 were and are unconstitutional and void.

"6. That the proceedings in this alleged condemnation proceeding are illegal and void, and contrary to the general irrigation laws of the state of Kansas, chapter 52a, page 732, in the Statutes of Kansas (Dassler), 1899." (Gen. Stat. 1901, §§ 3607-3758.)

This motion was sustained, and plaintiff in error brings the case here. The questions presented, in brief, are:

First. Is irrigation in Kansas such public use that the power of eminent domain may be invoked for its promotion?

Second. Has the legislature by statute authorized the exercise of the power of eminent domain therefor?

Third. Does the fact that purposes other than those of a public character are found in the charter of plaintiff in error destroy its right to exercise the power of eminent domain in the promotion of the public uses authorized therein?

Fourth. Does the object as specified in its application for the appointment of commissioners to make condemnation control as to the purpose of such proceedings, or do the objects of its creation as found in its charter control?

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EMINENT DOMAIN -- Exercise for Public Use. It rests with the courts to decide what is a public use, for the promotion of which the legislature is authorized to confer the power of eminent domain, and with the legislature to determine when this power may be exercised, and the character, quality, method and extent of such exercise.

2. EMINENT DOMAIN -- Irrigation. Irrigation in this state is a public use, for the promotion of which the legislature may authorize a private person or corporation to exercise the power of eminent domain.

3. EMINENT DOMAIN -- Act of 1891. Whether chapter 133, Laws of 1891 (Gen. Stat. 1901, §§ 3627-3721), conferred such power to be exercised east of the ninety-ninth meridian, is a query.

4. EMINENT DOMAIN -- Acts of 1899 Construed. Such power is conferred by chapter 151, and by section 1, chapter 95, Laws of 1899 (Gen. Stat. 1901, §§ 1366, 3758). The power therein conferred is not taken away by either section 1367 or section 1368, General Statutes of 1901, or by both together.

5. EMINENT DOMAIN -- Subsequent Regulation by Legislature. A private person or corporation receiving and exercising the power of eminent domain for the promotion of a public use is liable to respond to all reasonable regulations in the matter of the administration of such public use which the legislature shall thereafter prescribe.

6. EMINENT DOMAIN -- Purposes of Private Corporations. The fact that the charter powers of a private corporation embrace both private purposes and public uses does not deprive such corporation of the right to exercise the power of eminent domain in the promotion of such public use.

7. EMINENT DOMAIN -- Cases Distinguished. The case of The State, ex rel., v. Osawkee Township, 14 Kan. 418, and C. B. U. P. Rld. Co. v. Smith, Treasurer, etc., 23 id. 746, distinguished.

Trimble & Braley, Osmond & Cole, and John A. Eaton, for plaintiff in error.

Nimocks & Schwartz, C. F. Foley, and Sam'l Jones, for defendant in error.

CUNNINGHAM, J. SMITH, ELLIS, JJ. concurring.

OPINION

CUNNINGHAM, J.:

It is a basic principle of our form of government that no person can be deprived of life, liberty or property except by due process of law. It is equally fundamental that the legislature possesses no power to take the property of any one and give it to another for the advancement of simply private objects. To argue these propositions or state authorities in their support would be but a pedantic display of learning. It is equally well settled that the legislature may authorize the taking of private property by private persons or corporations for public uses, the owner of such property being compensated therefor. Courts determine what is a public use; legislatures, when the power of eminent domain may be exercised in its promotion. Courts may not interfere to limit or control the discretion of the lawmaking power as to the character, quality, method or extent of the exercise of the power of eminent domain by a private person or corporation engaged in the promotion of a public use, when once it has been determined that such use is a public one. This being so, they should be careful in pronouncing upon the question as to whether a given project is such a public use as to permit the exercise of the power of eminent domain in its promotion.

We are met at the threshold of the inquiry in hand with the question as to whether, under the conditions existing in this state, irrigation is such a public purpose as to warrant the permission of the exercise of the power of eminent domain for its accomplishment. After careful consideration, we answer this question in the affirmative. Agriculture is by far the most important of our industries. It engages the attention of a very large part of our people. In it a vast amount of capital is employed. Heretofore a scarcity of moisture when most needed for the growth of crops has been a thing most dreaded by our farmers. This has been true in the western portion to a greater degree than in the eastern, but in all portions of the state has this been true to a greater or less extent. Any scheme which has as its legitimate purpose the alleviation of these conditions is of general use and benefit. It is not necessary that all portions of the state be equally benefited by a given enterprise to constitute it a public use, or even all persons living within the limited area to which its operations are confined. All that is necessary is that the use and benefit be common to all within the designated area, not to particular individuals or estates.

It is a very difficult matter to define what is a public use. Courts of last resort have departed quite widely from one another in the effort....