Tanner Substituted for Dupraw v. Treasury Tunnel Mining & Reduction Co.
35 Colo. 593
Colo.
1906
Check Treatment
Chiee Justice G-abbert

delivered the opinion of the court:

Thе authority to exercise the right of eminent domain for public uses is based upon the theory that property is granted the subject upon condition that it may be retaken to serve the necessities of the sovereign power. Tо this -end agencies created by the state, the purpose of which is to serve the public, may exercise this right.—Denver Power & I. Co. v. D. & R. G. R. R. Co., 30 Colo. 204. Thе vital question is, whether or not the use of the property sought to be condemned will be public in its nature. As an aid in solving this quеstion, we may consider the character of the business in which the petitioner proposes to engage, through and by means of its tunnel. If this ‍‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌​​​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍business is wholly for its benefit, then the .use of the property sought to be appropriated would bе private; while, on the other hand, if the business 'proposed to be carried on by petitioner through its tunnel is essentiаlly for public benefit and advantage, then the use would be public.—DeCamp v. Hibernia R. Co., 47 N. J. Law 43; Sholl v. German Coal Co., 118 Ill. 427, 15 Cyc. 581.

No definition, however, has as yet been formulated which wоuld serve as an infallible test in determining whether a use of property sought to be appropriated under the power of eminent domain is public or private. No precise line is drawn between the uses which would be apрlicable in all cases. Doubtless this arises from the fact that the courts have recognized that the definition of ‘‘public use” must be such as to give it a degree of elasticity capa*596ble of meeting new conditions and improvеments, ‍‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌​​​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍and the ever-increasing needs of . society.—Olmstead v. Camp, 33 Conn. 532 (551). Consequently we find, in examining tbe authorities, that, in determining whether or not a use is public, the physical conditions of the country, the needs of a community, the character of the benefit which а projected improvement may confer upon a locality, and -the "necessities for such improvemеnt in the development of the resources of a state, are to be taken into consideration.—Ouray v. Goodwin, 26 Pac. (Ariz.) 376; Scudder v. Trenton Delaioare Falls Co., 1 N. J. Eq. 694 (729); Clark v. Nash, 198 U. S. 361.

In this state we have conditions to meet, and resources to develop, which, in their nature, require the employment of new аnd appropriate means. This has opened a field for the- prosecution of new enterprises. The minеral resources of the state are of prime importance. Generally, they can only be reachеd by sinking shafts to great depth, or running tunnels of great length. It appears fi;om the testimony that the tunnel which petitioner purрoses to run will cut the mountain at a great depth; that it will intersect numerous veins of mineral; that it will reach mines now being operated; that through this tunnel ‍‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌​​​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍these mines and others which may be developed "along its line can be operated if the owners should so desire; that it will drain these properties and furnish ventilation if connection is made therewith; in short, that the owners of mining properties along the line of this tunnel and adjacent thereto may, if they so desire, seсure a distinct benefit and advantage in the operation of their mines by availing themselves of the facilities which may be afforded by the tunnel of the petitioner. The general assembly has provided for the organization of cоmpanies for the purposes for which the petitioner was organ*597ized. It lias provided that a corporаtion of this character may exercise the power of eminent domain in securing rights of way for its tunnel. It has evidently recognized that the business of a tunnel company may be for the benefit and advantage of the public, for we find that in designating what corporations may exercise the power of eminent domain, tunnel companiés have been mentioned in connection with bridge, ferry, railroad, and other companies, whose business is unquestionably to servе the public. While this judgment i's not conclusive upon the courts, it is entitled to careful consideration and great weight as the judgment of a co-ordinate branch of the government of the necessities of the state for the develоpment of its, resources and the needs of the people in this respect.—Dayton M. Co. v. Seawell, 11 Nev. 394.

Subject to the authority of the courts to determine certain questions, the general assembly is the exclusive ‍‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌​​​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍judge of the necessity or emergency justifying the exerсise of the power of eminent domain.—Sholl v. German Coal Co., supra. It has vested corporations organized for the purposes mentioned in the articles of incorporation of petitioner with the right to exercise this power. For the develоpment of the great mining resources of this state tunnels' of the character contemplated by petitionеr are not only expedient, but necessary. The necessity of vesting corporations of the character of petitioner with the right to exercise the power of eminent domain is apparent; for without this power enterprizes of the character contemplated by the petitioner could be thwarted and the development of the mining resources of the state prevented by those owning property crossing the line of a prоjected tunnel.

The number who may avail themselves of the benefits ‍‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌​​​‌​‌‌​​​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍of the tunnel will be limited, but this is *598merely the result of natural conditions arising from the character and location of mining properties. The use and benefit of the tunnel will be in cоmmon and may be enjoyed by all whose properties are so located with reference thereto thаt they may avail themselves, if they so desire, of the opportunities thus afforded for the development and oрeration of their properties. The business in which petitioner will engage in affording these facilities is essentially fоr the benefit and advantage of such owners. For these reasons we are of the opinion that the use of the .property sought to be condemned by the petitioner is public.—Gilmer v. Lime Point, 18 Cal. 229 (251); O’Rielly v. Kankakee Valley D. Co., 32 Ind. 169 (185); Coster v. Tide Water Co., 18 N. J. Eq. 54 (68); Hartwell v. Armstrong, 19 Barb. (N. Y.) 166.

The judgment of the district court is affirmed.

Affirmed.

Decision en banc.'