Smith v. Cameron

BELT, J. In 1922, the plaintiff attempted, through the exercise of the power of eminent domain, to enlarge what is knoym as the “Farmers’ Ditch,” for the purpose of conveying water from the Little Applegate River to irrigate 160 acres of semi-arid land owned by him. An action was instituted, by virtue of Sections 5719 and 5720, Or. L., to appropriate a very narrow strip of land owned by defendants, in order to widen this ditch so as to carry additional water. A trial was had and judgment rendered in favor of the defendants, dismissing the action. Plaintiff appealed (106 Or. 1, 210 Pac. 716, 27 A. L. R. 510) and the lower court was affirmed for the reason that Sections 5719 and 5720 of the statute purporting to authorize such proceedings in *504 eminent domain violated Article I, Section 18 of the state Constitution, in that they undertook to authorize the taking of private property for a private use. It was suggested in the opinion of the court that the remedy was by constitutional amendment. As a result thereof the people, through the initiative, amended Section 18 of Article I of the Constitution to read as follows: “Private property shall not be taken for public use, nor the particular services of any man be 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, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.” After the adoption of the above constitutional amendment plaintiff again commenced an action to condemn land necessary to enlarg’e the ditch. A demurrer to the complaint was overruled and, upon refusal of the defendants further to plead, judgment was rendered in favor of the plaintiff. Hence this appeal. We inquire: Where is the statutory authority entitling plaintiff to exercise the power of eminent domain? Eminent domain is vested in the state. This power may be delegated by it to its subordinate agencies, but he who would exercise such sovereign right of taking another person’s property, even though it be for a public use, must be able to point out express statutory authority. It will not be implied: San Joaquin etc. Irr. Co. v. Stevinson, 164 Cal. 221 (128 *505 Pac. 924); Oritz v. Hansen, 35 Colo. 100 (83 Pac. 964); Neitzel v. Spokane International Ry. Co., 65 Wash. 100 (117 Pac. 864, 36 L. R. A. (N. S.) 522); Minnesota Canal etc. Co. v. Fall Lake Boom Co., 127 Minn. 23 (148 N. W. 561); City of Chicago v. Hill, 251 Ill. 502 (96 N. E. 223); Lewis on Eminent Domain (3 ed.), § 367. We may eliminate from onr consideration Sections 5719 and 5720, supra, which have been heretofore declared to be unconstitutional. The adoption of the constitutional amendment did not revive or bring into life those sections of the statute. They were and are null and void. As stated in 12 C. J. 727: “An act of the legislature not authorized by the constitution at the time of its passage is absolutely void, and is not validated by a subsequent adoption of an amendment to the constitution authorizing the passage of such an act.” At the time this action was commenced there was no general statute as in Idaho (Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho, 556 (155 Pac. 680, Ann. Cas. 1918A, 189), conferring upon a person the right to exercise the power of eminent domain. The constitutional amendment does not purport to vest such authority, but merely declares that the use of waterways to convey water for a beneficial purpose constitutes a public use. This constitutional provision, so far as the nature of the use of waterways is concerned, is self-executing and needs no subsequent legislation to carry it into effect. We are unable to agree with appellants that there is need of legislation to define the term “waterways.” This is a question for judicial construction and, as we *506 construe it, “waterways” may be used interchangeably with “watercourses.” A waterway is a channel for water. It may be either natural or artificial. That an artificial ditch may constitute a waterway or watercourse, see Words and Phrases, Vol. 8, p. 7411, and 40 Cyc. 658. After judgment was rendered in favor of the plaintiff in the instant case and after the passage of the above constitutional amendment, the legislature (Chap. 166, G. L. O. 1927) conferred upon “The United States, the State, or any person, firm or corporation,” the right, among other things, to construct and maintain ditches to convey water for irrigation and drainage purposes. This right was to be acquired “in the manner provided by law for the taking of private property for public use.” The act also undertook to validate prior proceedings had for the purpose of condemning land to enable the conveyance of water for irrigation and drainage purposes and particularly did it purport to validate proceedings for enlarging “any canal or ditch already constructed under the provisions of Sections 5719 and 5720 Oregon Laws.” Does this curative statute, which, of course, is retroactive in its application, have the effect of validating the judgment rendered appropriating the property of the defendants for a public use? At the time this judgment was rendered there was no statutory delegation to plaintiff of the power to exercise the right of eminent domain. Hence the court was without jurisdiction in the premises. Its judgment was a nullity. It is stated in 34 C. J. 510: “It is not competent for the legislature to validate a judgment void for want of jurisdiction and a statute purporting to have that effect would be uncon *507 stitutional, amounting to a denial of due process of law.” A legislature may pass a retroactive law which could validate any act which it could in the first instance have authorized, subject to the restriction that it could not impair the obligation of a contract or a vested right: 12 C. J. 1091. That defendants had a vested right in the ditch sought to be appropriated is beyond question. We conclude that this action was prematurely commenced and should not have been filed until after the legislature had expressly delegated the power of eminent domain to persons, as provided in the 1927 act. There was and is sufficient legal machinery to condemn private property for the purpose contemplated by the plaintiff, but his cause fails for the reason that, at the time the action was commenced, there was no statutory delegation upon him of the right to appropriate private property under the power of eminent domain. It follows that the complaint failed to state a cause of action and the demurrer thereto should have been sustained. The judgment of the lower court is reversed and the cause remanded. Reversed and Remanded. Rand, C. J., and Bean and Brown, JJ., concur.