Vetter v. Broadhurst

• Decision Date: 17 November 1916
• Docket Number: 19315
• Citation: 160 N.W. 109,100 Neb. 356
• Parties: ANDREW VETTER ET AL., APPELLEES, v. NATHAN BROADHURST, APPELLANT
• Court: Nebraska Supreme Court

160 N.W. 109

100 Neb. 356

ANDREW VETTER ET AL., APPELLEES, v. NATHAN BROADHURST, APPELLANT

No. 19315

Supreme Court of Nebraska

November 17, 1916

APPEAL from the district court for Dawes county: WILLIAM H WESTOVER, JUDGE. Affirmed.

AFFIRMED.

J. E Porter, for appellant.

E. D Crites and F. A. Crites, contra.

LETTON, J. FAWCETT, J., not sitting.

OPINION

LETTON, J.

This is an appeal from a judgment of the district court dismissing certain condemnation proceedings brought by the applicant, Broadhurst, to obtain a reservoir site on the lands of defendants for irrigation purposes.

The petition to the county judge stated, in substance, that applicant was the owner of 160 acres of land, and that defendants owned an adjoining 160-acre tract; that a creek flows through the land of both, and that during the winter season and during freshets in the summer a large amount of unappropriated water of the creek goes to waste; that by its storage and conservation the same can be used in the irrigation of the lands of the applicant; that he had procured a permit from the state board of irrigation to store the flood waters; that the construction of the dam will cause water to cover five acres of land belonging to defendants, and defendants have refused to permit him to use the land for reservoir purposes or to agree as to the amount of damages. Objections were made in the county court by motion and answer, on the ground that the purpose of the applicant was to impound the water for his own private use and not for a public purpose, and for other reasons. The objections were overruled. Appraisers were appointed who viewed the premises and awarded defendants compensation in the sum of $ 420. An appeal was taken to the district court, where a motion was made to dismiss the proceedings on the same grounds which was at first overruled, but during the trial leave was given to renew the motion which was then sustained and the proceedings dismissed.

The sections of the statutes under which applicant asserts the right to take defendants' property are section 3444, Rev. St. 1913, which provides in part as follows: "Every person, corporation or association intending to construct and maintain a storage reservoir for irrigation or any other useful purpose, shall make an application to the state board of irrigation, highways and drainage as hereinbefore provided. * * * Upon the approval of such application the applicant shall have the right to impound any and all waters not otherwise appropriated and any appropriated water not needed for immediate use, to construct and maintain necessary ditches for the purpose of conducting water to such storage reservoir and to condemn land for such reservoir and ditches in the same manner as is provided by law for the condemnation of rights of way for other ditches"--and sections 3428, 3430, 3431, Rev. St. 1913, which specify the manner of obtaining rights of way for other ditches.

The principal ground set forth in the motion, and that upon which the district court acted, is that the attempted appropriation and condemnation is not for a public purpose but for a private purpose, being for the sole benefit and advantage of the applicant, and the power of eminent domain cannot be exercised to take defendants' property for private use. Is the proposed taking for a public use? It is pointed out in 10 R. C. L. p. 25, that though some courts hold that "anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, contributes to the general welfare and the prosperity of the whole community, and, giving the Constitution a broad and comprehensive interpretation, constitutes a public use," yet other courts have held, and the common law rule and the generally accepted doctrine is, that in order to constitute a public use the property taken must be placed within the control of the public, or of a public agency or instrumentality, and its use or the rates charged for its use be subject to public control, or it must be within the right of the public to use and enjoy. A citation of cases holding to each of these views may be found in 10 R. C. L., notes, p 22. A full and able discussion of the whole subject may be found beginning on page 24 of the same volume, and in 1 Wiel, Water Rights (3d ed.) sec. 606. The proper limits of this opinion lead us to refer the reader to these articles and the authorities cited therein. One of the clearest statements justifying the doctrine that a public advantage or benefit--the general welfare, to use another term--may justify the taking of private property against the consent of the owner is given in the opinion by Mr. Justice Peckham in the case of Clark v. Nash, 198 U.S. 361, 4 Am. & Eng. Ann. Cas. 1171, 49 L.Ed. 1085, 25 S.Ct. 676. In that case it was held by the supreme court of Utah that on account of the peculiarly arid climate of Utah, where agriculture is practically impossible without irrigation, the use of water, even by a private owner, for agricultural purposes was a public use, and was of such value to the commonwealth that a statute permitting condemnation of the right of way for a ditch for the use of a private individual was not unconstitutional. This was upheld by the supreme court of the United States. The opinion, after saying that probably in most states the contention of plaintiff in error would be sound, proceeds: "Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the state, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such condemnation. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an individual, where, in the absence of such facts, the use would clearly be private. Those facts must be general, notorious, and acknowledged in the state, and the state courts may be assumed to be exceptionally familiar with them." And again: "But we do not desire to be...