"irrespective of any benefit from any improvement proposed "by such corporation, which compensation shall be ascer"tained by a jury, unless a jury be waived."1 South Dakota. 66 "Private property shall not be taken for public use, or "damaged, without just compensation, as determined by a jury, which shall be paid as soon as it can be ascertained, "and before possession is taken. No benefit which may accrue "to the owner as a result of an improvement made by any private corporation shall be considered in fixing the com"pensation for property taken or damaged. The fee of land "taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken.” 2 66 Utah. "Private property shall not be taken or damaged for a "public use without just compensation." Washington. 66 "Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, "domestic, or sanitary purposes. No private property shall "be taken or damaged for public or private use without just compensation having been first made, or paid into court "for the owner, and no right of way shall be appropriated to "the use of any corporation other than municipal until full "" compensation therefor be first made in money, or ascer"tained and paid into court by the owner, irrespective of any "benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a 'jury be waived, as in other civil cases in courts of record, in "the manner prescribed by law. Whenever an attempt is "made to take private property for a use alleged to be public, "the question whether the contemplated use be really public Const. Utah, art. i, § 22. 1 Const. N. Dak., art. i, § 14. 66 shall be a judicial question, and determined as such, without "" regard to any legislative assertion that the use is public."1 Wyoming. "Private property shall not be taken for private use un"less by consent of the owner, except for private ways of "necessity, and for reservoirs, drains, flumes, or ditches on or across the lands of others, for agricultural, mining, milling, domestic, or sanitary purposes, nor in any case without "due compensation." "Private property shall not be taken or damaged for pub"lic or private use without just compensation."'* 4 It will thus be seen that private property may be subjected to burdens for certain specified purposes that may generally be classified as private, in Colorado, Idaho, Montana, Washington, and Wyoming. In these states, it would seem that, within the limitations prescribed by the respective constitutions, the local legislatures may act, although some of the uses are not essentially public. The legislation in the remaining states,-i. e. California, Nevada, North Dakota, and South Dakota,-and in the other states, for purposes not within the specified limitations, must necessarily be confined to such uses as are essentially public in their nature. 254. Mining as a "public use."-An exhaustive discussion of the law of eminent domain is hardly within the scope of this treatise, but it is necessary to deal with it to some extent. The organic law of a state may not properly provide for the condemnation of private property for private 1 Const. Wash., art. i, § 16. Const. Wyo., art. i, § 32. 3 Id., art. i, § 33. Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757; Smith v. Denniff, 24 Mont. 20, 81 Am. St. Rep. 408, 60 Pac. 398; Glass v. Basin M. and C. Co., 22 Mont. 151, 55 Pac. 1047. use. The use must be public. Otherwise, the property is taken without due process of law. But what is a public use depends largely upon the facts and circumstances surrounding the particular subject-matter of the use. The people of a state and the members of its legislature are more familiar with the facts and circumstances surrounding a particular subject-matter within the state than a stranger to the state can be. Consequently constitutional declarations, acts of legislature, and decisions of the courts of a state as to what is and what is not a public use within the state, while not conclusive, are entitled to great respect in the federal courts.2 Mr. Lewis, in his work on the "Law of Eminent "Domain," states that, apart from constitutional considerations, it is not essential in order to constitute an act of eminent domain that the use for which property is taken should be of a public nature. It is sufficient that the use of the particular property is necessary to enable individual proprietors to cultivate and improve their land to the best advantage, or to develop certain natural and exceptional resources incident thereto, such as a water privilege or a mine. In such cases, the public welfare is promoted, though indirectly, by the increased prosperity which necessarily results from developing the natural resources of the country. This is an exceedingly optimistic view of the rule, not concurred in by other writers, and is contrary to the authorities above cited. It is expressly disapproved by Mr. Randolph.* Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 159, 17 Sup. Ct. Rep. 56; Missouri Pac. Ry. v. Nebraska, 164 U. S. 403, 417, 17 Sup. Ct. Rep. 130. 9 Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 159, 160, 17 Sup. Ct. Rep. 56. Mr. Mills thus states his conclusions upon the subject of condemnation for private use: 66 "The use to which property is condemned must be "public. As between individuals, no necessity, however great, no exigency, however imminent, no im"provement, however valuable, no refusal, however unneighborly, no obstinacy, however unreasonable, no "offers of compensation, however extravagant, can compel or require a man to part with one inch of his "'estate."1 66 66 "It is conceded on all hands that the legislature has "no power, in any case, to take the property of one "individual and pass it over to another, without refer66 ence to some use to which it is to be applied for public "benefit." 2 Only a few of the state constitutions in terms prohibit the taking of private property for private use. All the courts, however, agree that this can not be done.3 As was said by the supreme court of New Jersey,— "There is no prohibition in the constitution of this "state, or in any of the state constitutions that I know "of, against taking private property for private use. "But the power is nowhere granted to the legislature. "The constitution vests in the senate and general as"sembly the legislative or law-making power. They may make laws, the rules prescribed to govern our "civil conduct. They are not sovereign in all things; the "executive and judicial power is not vested in them. Taking the property of one man and giving it to another is not making a law or rule of action; it is "not legislation, it is simply robbery." 66 While this may be true, the rule announced is based upon a taking for a purely private purpose, unaccompanied by any supposed indirect public benefit. Mills on Eminent Domain, § 22. Lewis on Eminent Domain, § 157, and cases cited in note As to what constitutes a "public use" is a difficult question. It is impossible for us to supply a definition sufficiently comprehensive to cover all possible cases. Nor is it necessary that we should do so. The question as to whether a given use is or is not public is a judicial one. The legislature can not so determine that the use is public as to make the determination conclusive upon the courts; but the presumption is in favor of the public character of a use declared to be public by the legislature; and unless it is seen at first blush that it is not possible for the use to be public, the courts can not interfere.1 255. Rights of way for pipe-lines for the conveyance of oil and natural gas.-In the application of these principles to the class of state legislation under consideration, we find that the decisions of the courts are not altogether uniform. The power of eminent domain has been exercised for pipe-lines for the conveyance of oil and natural gas.2 The theory in such cases seems to be, that pipe-lines for such purposes are public highways, and their owners common carriers engaged in the transportation of oil or gas. But, independently of this view, these uses are just as much public in their nature as supplying water to municipalities. Fuel and light are just as essential commodities as water, and their general distribution to 1 Mills on Eminent Domain, § 10; Lewis on Eminent Domain, § 158; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 159, 160, 17 Sup. Ct. Rep. 56. The rule is different in Colorado and Washington, whose constitutions provide that the question is to be determined without regard to any legislative assertion. Const. Colo., art. ii, § 15; Const. Wash., art. i, § 16. Randolph on Eminent Domain, § 47; West Va. Trans. Co. v. Volcanic C. Co., 5 W. Va. 382; Johnston v. Gas Co., 5 Cent. Rep. 564; Carothers v. Philadelphia Co., 118 Pa. 468, 12 Atl. 314. |