Highland Boy Gold Mining Co. v. Strickley

McOARTT, J., after stating the facts, delivered the opinion of the court. Plaintiff bases its right to condemn on section 3588, Rev. St. 1898, as amended in 1901 (Sess. Laws, p. 19, c. 25) which provides that: “The right of eminent 1 domain may be exercised in behalf of the following public uses: . . . (6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places to facilitate the milling, smelting, or other reduction of ores, or the working of mines. . . .” Appellants (defendants below) contend that the foregoing provision of the statute is in conflict with section 22, art. 1, Const. Utah, which provides that£ ‘ private property shall not be taken or damaged for public use without just compensation,” for the reason that the use made of the right of way sought to be condemned is not a public use. There appears to be an irreconcilable conflict' in the authorities as to what constitutes a public use. This, no doubt, is largely due to the fact that in many cases what would be a public use in one jurisdiction would not be in another or different jurisdiction. Thus it has been almost uniformly held throughout the Pacific Coast States that the construction and operation of irrigation ditches is a public use, which doctrine, when applied to the arid region, has been approved by the Supreme Court of ¡the United States, whereas in Ohio, New York, Pennsylvania, and other States where irrigation is not followed and is practically unknown, it would undoubtedly be held not a public use. Therefore what shall be considered a public use often depends somewhat upon the locality, the wants and necessities of the people, the condition with which they are surrounded, and the nature and character of the natural resources of such locality, State, or commonwealth. And while it is for the Legislature to determine, in the first instance, whether the use is a public use, and to provide — 231 — the means of condemnation, yet the great weight of authority holds that the declaration of the Legislature is not final, and that it is ultimately for the courts to determine whether a particular use is public or not. 1 Lewis, Eminent Domain (2d Ed.), 158. The text-writers on eminent domain, and the adjudicated cases, practically all agree that, when the Legislature has declared a use to he public, such declaration will he respected .and followed by the courts, unless the act is clearly and palpably unconstitutional, or the necessity for the taking is plainly without reasonable foundation. 2 Dillon, Mun. Corp. (4th Ed.), 600; U. S. v. Gettysburg Elec. Ry. Co., 160 U. S. 668, 16 Sup. Ct. 427, 40 L. Ed. 576; Dayton Min. Co. v. Seawell, 11 Nev. 394; Tuttle v. Moore (Ind. T.), 64 S. W. 585; Mills, Eminent Domain (2d Ed.), 10; Lewis, Eminent Domain, 158; 10 Am. & Eng. Ency. Law (2d Ed.), 1070. For a further discussion of the general and well-established rule that legislative 2 enactments are presumed to be constitu-. tional unless the contrary clearly appears, see Fletcher v. Peck, 6 Cranch, 128, 3 L. Ed. 162; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Stewart v. Board of Supervisors, etc., 30 Iowa 1, 1 Am. Rep. 238; State v. Tingey, 24 Utah 225, 67 Pac. 33, and cases cited; State ex rel. v. Lewis, 26 Utah 120, 72 Pac. 388. The reason for the rule, when applied to ¡the law of eminent domain, is very apparent, as there are some uses for which private property may be condemned the public character of which is so plain that there is no room for argument; and, on the other hand, there are innumerable uses for which property may be and is used, the private character of which is equally clear and plain. As stated by counsel for respondent, in their brief: ‘ ‘ Between these two extremes, however, courts can approach a dividing line which is so shadowy that it leaves room for argument as to whether or not a statute is constitutional. A short distance on either side of the line the decision is plain, but on the line, and for a short distance on each side, it is doubtful.” And, as — 232 — hereinbefore stated, whenever the court is in doubt, it holds the statute constitutional. Therefore, unless it clearly appears that the use made of the right of way in question is private and in no sense public, the validity of the statute must be upheld. Some general rules by which the question as to what constitutes a public use may be determined were declared by this court in the case of Nash v. Clark, 27 Utah 158, 75 Pac. 371. In that case it was in effect held that when the taking is for a use that will promote the public interest, and which tends to develop the great naitural resources of the State, such taking is for a public use. The mining industry in this State is second in importance only to thait of irrigation, and this court held in the case of Nash v. Clark, supra, that the construction and operation of irrigation ditches is a public use. Counsel for appellants, in his brief, concedes “that irrigation is a public use, and that the condemnation of lands for irrigation ditches is for a public use;” and ag*ain he says, ‘ ‘ There is no person, I take it, of ordinary intelligence, that would assert or think for a moment that the system of irrigation, as adopted and' used throughout this whole western country, is not surely a public benefit and a public use.” In Great Falls Mfg. Co. v. Fernald, 47 N. H. 444, the court, after speaking of the interests that New Hampshire had in the improvement and development of her natural water power, say: “No State of the Union is more interested than ours, in the improvement of natural advantages for the application of water power to manufacturing purposes. Nature has denied to us the fertile soil and genial climate of other lands, but by way of compensation has endowed us with unrivaled opportunities of turning our streams of water to practical account. The present prosperity of the State is largely due to what has already been done towards developing these natural advantages, and there is no assignable limit to our resources in this respect if extended and connected enterprises for the improvement of the — 233 — water power in the State should he successfully prosecuted hereafter. In no part of the world have the public a deeper interest in the success of all undertakings which promise to assist in the development of these great natural advantages. Whether we look to the interpretation which has been given in other jurisdictions to the term ‘public use,’ in reference to the right of taking private property for such a use, to the legislative practice under the provincial and State governments before and at the time when the Constitution was adopted, to the language of the Constitution itself, to the early and continued legislative practice under the Constitution, to the decisions of the courts in this State or to the character of our business and the natural productions and resources of the State, we are drawn to the conclusion that the Legislature have power to authorize a private right that stands in the way of an enterprise set on foot for the improvement of the water power in a large stream like this river to be taken without the owner’s consent, if suitable provision is made for his compensation, and that the act of the Legislature is constitutional and valid.” The same reasons that hold that manufacturing is necessary to the public welfare in New Hampshire and other New England States can be urged in behalf of mining in Utah and other Western States. The mining industry in this State, and in others similarly situated, not only produces a home market for the products of the farm, and furnishes thousands of men with steady employment at liberal and remunerative wages, but also produces wealth which has enabled other industries to be created and to flourish, which, without the stimulus thus furnished, would languish. In Dayton Mining Co. v. Seawell, supra, Mr. Chief Justice Hawley, speaking for the court, aptly portrays some of the conditions and disadvantages under which the mining industry is prosecuted in this inter-mountain region, as well as some of the benefits derived therefrom, as follows: ‘ ‘ The mining and milling interests give employment-to many — 234 — men, and the benefits derived from this business are distributed as much, and sometimes more among the laboring classes than with the owners of tbe mines and mills. The mines are fixed by the laws of nature, and are often found in places almose inaccessible. For the purpose of successfully constructing and carrying on the business of mining, smelting, or other reduction of ores, it is necessary to erect hoisting works, to build mills, to1 construct smelting furnaces, to secure ample grounds for dumping waste, rock, and earth; and a road to and from the mine is always indispensible.- The sites necessary for these purposes.are often confined to certain fixed localities.” We have in this State, in addition to the extensive deposits of gold, silver, lead, and copper ores, large1 areas of lands containing coal in almost limitless quantities, and we depend almost exclusively upon the coal mines for the fuel used in our manufacturing establishments and for domestic purposes. Now, it is of vital importance to the people that the coal, as well as the other hidden resources of the State, be opened up and developed, and that the mining industry in general, which has been the source of so much wealth to the people of this and other Western States, be conducted on the same extensive scale in the future that has characterized its operations in the past. Therefore the public policy of the State, as exemplified by the act of the Legislature under consideration, is to encourage the people to open up and exploit the mines with which the State abounds, and thereby not only give to the State the wealth which will enable other industries to be created, but furnish thousands of laborers with remunerative employment. It being conceded, and this court having held, that the construction and operation of irrigating ditches in this State is a public use (Nash v. Clark, supra), it follows that the construction of roads and tramways for the development of the mining industry is a public use, as the same line of reasoning that applies in support of the doctrine in the one case holds good in the other. — 235 — Otherwise a party owning a few acres of farming land, or only a few square rods for that matter, conld invoke the law of eminent domain, and by condemnation, proceedings acquire a right of way across his neighbor’s land for an irrigation ditch to convey water to his small holdings; whereas the. owners of mines and of works for the reduction of ores, the operations of which furnish thousands of men in this State with employment at good wages, and to which the general prosperty of the State is largely due, would be denied the right to invoke this same rule of law in order to acquire, when necessary to the successful operation of their business, rights of way for the transportation of ores from the mines to the mills and smelters, and for the construction of tunnels for drainage and other purposes. And parties holding the title to ground necessary and suitable for these purposes, which, in many cases, except for such purposes, might be entirely worthless, would be clothed with power to demand and compel payment of an unconscionable price for their lands before parting with the title, or they could refuse, absolutely,' to grant the .easement required on any terms, and thereby in some cases cripple mining enterprises, or destroy them altogether. Such a policy would not only be inconsistent and unreasonable, but would greatly retard the development of one of the greatest natural resources of the State. We are therefore of the opinion, and so hold, that the construction and operation of roads and tramways for the development and working of mines is a public, use. The act of the Legislature under consideration makes ample provision for the payment of a fair price to the owner for lands sought to be condemned, and for all damages that he may suffer because of such taking, and is therefore valid. There are several other questions of minor importance raised and discussed by appellants in their brief, but as neither the abstract nor brief contain — 236 — 3 a specification of the points relied npon as grounds for a reversal, as required by rule 6 of this court (49 Pac. xi), they can not he considered. The judgment of the trial court is affirmed, 'with costs. BABTCH, J., concurs. BASKIN, O, J., concurs in the affirmance of the judgment.