96 P. 195 | Idaho | 1908
This action was commenced by the village of Twin Falls against a number of persons owning the lands through which Eock creek in Twin Falls county runs. The plaintiff sought to condemn the channel of Eock creek and a strip of land twenty-five feet in width on each side thereof for use in constructing and maintaining a sewer and dump and outlet privileges for a sewer system. Prior to the trial of this case the village was organized under the general laws into a city of the second class, and filed its supplemental complaint showing that fact. The defendants, who are appellants in this court, answered, and the appellant, Gross, who is a purchaser from one of the original defendants, filed a supplemental answer setting up that fact, and also alleging that subsequent to the commencement of this action he had applied for and received a permit from the state engineer to appropriate and divert water from Eock creek for domestic purposes. This appeal is from the final judgment of condemnation. The respondent made a motion to strike out a large part of the matter contained in the transcript, for the reason that the same is not properly a part of the record on this appeal. That motion is confessed by the appellant, and it consequently leaves the case here on the complaint and supplemental complaint and the answers and supplemental answer, findings and judgment. This eliminates from our consideration most of the questions argued in appellants’ brief.
It is contended by appellants that the village had no right to exercise the right of eminent domain. That, in the first place, it could not condemn lands for sewerage purposes, and in the second place, if it had that power it could not exercise it beyond the territorial limits of the municipality. We think both these questions are fully answered by the provisions of sec. 1 of an act approved Feb. 21, 1905 (Sess. Laws 1905, p. 335), authorizing and empowering cities, towns and villages to construct and maintain sewerage systems, etc. Sec. 1 provides in part as follows:
“In addition to the powers heretofore granted to cities, towns, or villages under the provisions of the laws of the state of Idaho now in force, cities, towns, or villages may by ordinances, by-laws, and under and by virtue of this act:
“First. Construct, build, or purchase, keep, conduct, and maintain a sewer system or sewerage disposal works therein, or elsewhere, of the character and keeping sufficient to furnish the inhabitants thereof, as well as the places and people' along and in the vicinity of the lines of pipes, conduits, or aqueducts constructed or used for such purposes with a sewerage system and sewerage disposal works sufficient for all uses and purposes necessary for the comfort, convenience, health and well being of said city, town or village, and to that end may acquire by purchase, gift, condemnation or otherwise, to own, and possess-, such real or personal property within and without the limits of the city, town or village, as in the judgment of the persons herein authorized to construct, purchase, conduct and maintain a sewer system and sewerage disposal works as may be deemed necessary and convenient.”
This statute clearly authorizes cities, towns and villages to construct and maintain sewer systems and sewerage disposal works either within or without the corporate limits and for such purposes to “acquire by purchase, gift, condemnation or otherwise,” all real estate necessary for such purpose. In connection with this power, subdivision 2 of sec. 5210, Bev. Stat., as amended by act of March 3, 1903 (Sess. Laws 1903,
It is contended by appellants that under the statutes of this state and the provisions of art. 15 of the constitution, a municipality cannot condemn the waters of a stream for sewerage purposes. In other words, that a condemnation of the waters cannot be had for the purpose of dumping sewerage matter therein and polluting the stream and rendering it unfit for domestic purposes. The contention is made that this would be an “appropriation” within the meaning of the constitution and statute, and that while it is an appropriation, the “use” is not one enumerated either in the constitution or statute, and that the waters in this state cannot be taken for any other use or purpose than those enumerated in the constitution. This question does not arisé on the record before us, and for that reason we decline to express any view as to its correctness. This action as shown both by the complaint, findings and judgment, was not an action to condemn the waters of a stream or any person’s water right or water privileges, and the judgment does not extend to any right of use or privilege of enjoyment of any of the waters of this stream. It merely extends to a strip of land fifty feet wide through the center of which runs this gorge or canyon called Bock creek. It does not appear from the record that the appellants have any right in or claim to the waters (if any are flowing therein) of this canyon or gulch. If any water does flow therein and it has not been appropriated in accordance with law, it belongs to the state of Idaho. Gross alleges that he has a permit to use water therefrom, but the findings say nothing of that and the evidence is not here.
If the respondent municipality undertakes to pollute the waters of any stream or maintain any nuisance therein, or
As we view the record, none of the other questions argued by appellants properly arise on this appeal. We discover no reason for interfering with the judgment of the lower court, and it is therefore affirmed, with costs in favor of respondent.