88 P. 426 | Idaho | 1906
Lead Opinion
This action was commenced for the purpose of condemning twelve and sixty hundredths acres of land belonging to the appellants for use as a storage reservoir for logs, and which is overflowed by reason of the construction of a dam tending to improve the navigability of the'Pa-louse river. The complaint alleges with particularity the necessity for the appropriation and the facts upon which
The complaint alleges specifically the facts found by the court which are hereafter set forth. The appellants demurred to the complaint on the ground that it did not state a cause of action and relied upon two propositions of law in support of said demurrer: 1. That the taking of said land was not for a public use; and 2. That the statutes of Idaho were not sufficiently broad to cover such use. The demurrer was overruled by the court and appellants refused to further plead, and stood on their demurrer. Evidence in support of the allegations of the complaint was introduced, and the court made its findings of fact and conclusions of law and entered a decree in favor of the respondent. The court decreed that the defendants were entitled to receive from the plaintiffs $500 as full compensation for the damages suffered by them for the taking of said land for said purposes. The facts found by the court necessary to the understanding of this case are as follows:
It is contended by appellant that the provisions of section 14, article 1 of the state constitution, and the statutes of the state in force in regard to the powers of eminent domain, are not sufficiently broad and comprehensive to authorize or permit the respondent, who is plaintiff here, to have condemned the lands in question for the uses and purposes stated in the complaint. Section 14, article 1 of the Idaho constitution, is as follows:
“Section 14. The necessary use of lands for the construction of reservoirs or storage basins, for the purposes of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes to convey water to the place of use, for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to complete development, or any other use necessarjr to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state.
“Private property may be taken for public use, but not until a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefor.'’
“Section 5210. Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: . . . . Subd. 3. Wharves, docks, piers, chutes, booms, ferrier, bridges, toll roads, by-roads, plank and turnpike roads, steam, electric and horse railroads, reservoirs, canals, ditches, flumes, aqueducts and pipes, for public transportation, supplying mines and farming neighborhoods with water, and draining, and reclaiming lands, and for storing and floating logs and lumber on streams not navigable.”
It is first contended that the complaint does not state a cause of action under said provisions of the constitution and the statute, in that it nowhere alleges that it is proposed to use the land sought to be taken for a reservoir with a view to public transportation. The allegation on that point is to the effect that said river is narrow and not of uniform size during all seasons of the year; is dependent on rain and snow and during portions of the year it does not carry sufficient water to float logs except by the use of artificial means; that it is necessary to store the water by the use of dams and splash or flood the logs down by opening the dams; that during the period of high water, the convenient, economical and practical method of transporting said logs from the forest to the mills is by the use of such dams; that such-dams cannot be constructed at all places, but must be built at points rendered favorable by the topography of the land on the sides of the river which affords storage basins for logs; that said dam was constructed for the purpose of storing the waters of said river and furnishing a storage basin for logs for the purposes alleged, and for the purposes of improving the floating capacity and navigability of said river, particularly at the season of the year when said river was at the lowest stage. I think the allegations of the complaint are sufficient to show that the land sought to be taken will be used for the purpose of storing and floating logs and timber on said river and im
It is contended that the right of eminent domain under the provisions of said section 5210 can only be exercised in the improvement of streams not navigable, and that as the territorial legislature had declared, by act approved February 14, 1879. that the Palouse river was a navigable stream, the -right of eminent domain could not be exercised to improve the navigability of said stream'. I cannot concur in that contention, as it is clear the provisions of said section 5210 are applicable to all streams not navigable in fact. It is alleged in the complaint and found as a fact by the court that the said stream is not even navigable for logs a part of the season, and I have no doubt that said section applies and was intended to apply to all such streams. Judge Hanford, in the United States circuit court for the state of Washington, in Voltz & Metcalf v. Potlatch Lumber Co., held that said stream was-not a navigable stream except during portions of the year, and that the evidence in that case clearly showed that during a portion of the year logs could be floated upon it; that the period during which they could be floated without the aid of artificial means was comparatively short, constituting only a month or two of the entire year; that during the remainder of the year said stream was not navigable. The decision in that case has not been published in the reports. The court holds that said stream is not navigable in fact, upon the evidence produced on the trial. It is clear to this court that the declaration of a state legislature cannot impress upon a stream a character of navigability for logs when the stream does not carry water sufficient to float a log. If a stream is not navigable in fact, the mere legislature declaration that it is navigable in fact cannot make it so. (Murray v. Preston, 106 Ky. 561, 90 Am. St. Rep. 232, 50 S. W. 1095; Duluth Lumber Co. v. St. Louis Boom Co., 17 Fed. 419, 5 McCrary, 382.)
Then the question is fairly presented: Does the use of said dam and storage basin of twelve and sixty hundredths acres under the aforesaid facts constitute a public use within the provisions of said sections of our constitution and statutes ? The conclusion by this court upon that question is of very great and lasting importance to the complete development of the material resources of our state.
In limine, we shall make a few observations upon the power of eminent domain. That power is an incident of sovereignty inherent in the federal government and the several states by virtue of their sovereignty. This power with all its incidents is vested in the legislatures of the several states. (1 Lewis on Eminent Domain, sec. 237; Cooley’s Constitutional Limitations, 7th ed., 755; Hollister v. State, 9 Idaho, 8, 71 Pac. 541.)
The provisions in regard to the power of eminent domain and the taking of private property for a public use contained in said section 14, article 1 of our constitution, emanate directly from the people instead of from the legislature, and are therefore, legal and valid, emanating from the highest power. In meeting the marvelous industrial development of many of the United States in the last one hundred years, it
There is no doubt when a person or corporation exercises the power of eminent domain, he or it assumes certain obligations to the public, and the grant of the right of eminent domain carries with it the right of public supervision and reasonable control. The improvement of said river is not for the use of the respondent alone, although under the conditions which exist it may be more benefited than others. But the river will be open to anyone who may have occasion to use it for floating logs and timber produets. Under the provisions of section 835, Bevised Statutes, the construction of any dam or boom on any creek or river in this state that will unreasonably delay or hinder the floating or passage of timber down the same, is prohibited. (Powell v. Springston Lumber Co., ante, p. 723, 88 Pac. 97.)
There are many streams in this state that will float logs or lumber during the flood time or spring freshets and will not do so during the time that such streams are at the ordinary stage cf during low water. If it be true that all such streams are navigable under the provisions of said section 5210, and for that reason the right of eminent domain, cannot be exercised with reference to such streams, the power therein given as a mere shadow, without any substance, and amounts to
Concurrence Opinion
Concurring. — I concur in the final conclusion reached but not in all that is said, especially clause 11 of the syllabus. I think the constitution means ‘ ‘ the same in the spring that it does in the fall.”