152 F. 93 | 9th Cir. | 1907
after stating the case as above, delivered the opinion of the court.
The bill is so framed as to present two questions: First, whether the appellees could lawfully condemn the right of way for a tunnel; and, second, whether, sustaining such right, the appellants can be decreed to have the use of the tunnel in common with the appellees. The bill shows that the first of the questions had been decided in the affirmative by the court below in two causes pending therein, one the action to condemn the right of way, and the other a suit in equity brought by the appellants to enjoin the appellees from extending the
The bill alleges that the tunnel has been constructed from the place of its outlet to and through the mining claims of the appellants. Assuming, as we must on this appeal, but not deciding, that the appellees were authorized to condemn the right of way for that tunnel, the single question presented for our decision is whether or not the appellants can be decreed to have a use thereof in common with the ap-pellees. The appellants contend that the right to such common use is implied in the very fact that the right of way for the tunnel has been condemned by judicial proceedings in the exercise of eminent domain, and that such right of way can have been condemned only for a public use. They cite Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, as authority for that contention. That was a case in which it was sought to condemn a right of way, so-called, by enlarging a ditch which had been made to convey water across the land of the defendant under a statute of the state of Utah, permitting condemnation by an individual for the purpose of obtaining water for his land or for mining purposes. The court sustained the right, in view of special conditions obtaining in the state of Utah as to agricultural and mining industries, and held that a statute of that state permitting an
“We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining thé water for an individual where It Is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. Other landowners adjoining the defendant in error, if any there are, might share in tire use of the water by themselves taking the same proceedings 1o obtain it.”
In Strickley v. Highland Boy Min. Co., 200 U. S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581, the court said of the decision in Clark v. Nash :
“In discussing what constitutes a public use, it recognized the inadequacy of use by the general public as a universal test.”
If the appellants were here seeking to condemn a right of way to widen the tunnel of the appellees, and showing a necessity therefor for the purpose of laying their own tracks in the widened portion thereof for working their mines and extracting ores from their subterranean ledges, the doctrine of Clark v. Nash would be pertinent; but the purpose of the bill is to obtain the right to use a tunnel which has been made by the appellees at their own expense for their own purposes, with track and facilities, it may be assumed, no more than sufficient for their own use. We find no statutory authority, no precedent, and no recognized principle of law or of equity upon which to base such a right. In section 257a, of Rewis on Eminent Domain, it is said:
“It would seem clear that, under the general rule already stated, nothing but an express authority or absolute necessity created by tlie Legislature itself could justify one railroad company in taking the tracks of another company, or even the joint use of such tracks.”
There is no legislative provision in Idaho which authorizes the granting to one of the right to use a tunnel acquired by another under condemnation proceedings. Section 5212 of the Revised Statutes of 1887 of that state provides that property appropriated to public use “shall not be taken unless for a more necessary public use than that to which it has already been appropriated.”
But the present suit is not a suit to condemn a right of way over the tunnel. It is a suitdn equity to compel the joint use of a right of way already condemned by another, and to obtain the right to participate in the benefits thereof, on the theory that the condemnation has been made for a public use, and that the appellants are members of the public for whom such condemnation has been adjudged. There is no allegation showing the necessity for such common use, and nothing to show that the appellants cannot proceed and condemn a right of way for a tunnel, as was done by the appellees.
The decree of the Circuit Court is affirmed.