a canal or ditch for irrigating purposes. Said that

court:

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"May a state or territory, in view of its natural advantages and resources and necessities, legislate in such a way, exercising the power of eminent domain, that "these advantages and resources may receive the fullest "development for the general welfare, the laws being "general in their operation? This territory is vast in "extent, and rich in undeveloped natural resources. "Mountains and deserts are not an inviting prospect "when viewed by a stranger in transit. But the moun"tains abound in the precious metals, gold and silver, "the jewels of sovereignty'; and the deserts may be "made to 'bloom and blossom as the rose.' The one great want is water. With this resource of nature "made available, the mountains and the deserts may "be made to yield fabulous wealth, and Arizona become "the home of a vast, prosperous, and happy people. "But with water in this territory 'cribbed, cornered, ""and confined,' it will continue and remain the mys"terious land of arid desert plains, and barren hillsides, " and bleak mountain peaks. The legislature of the territory, seeing what was apparent to all, adopted at an early day a policy-' a general and important public 'policy.' That policy was to protect against private "ownership and monopoly the one thing indispensable "to the growth, development, and prosperity of the territory, the element that would serve to uncover the gold and silver hidden in the hills and mountains, and "transform the desert into a garden. . . . The wisdom "of this policy, under the physical conditions existing "in the territory, must be apparent to every one."'1

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259a. Montana. The section of the constitution of Montana declaring certain uses of water to be public has been quoted above. The legislature enacted a law authorizing a proceeding to condemn a right of way over the lands of another for ditches used for irrigating pur

'Oury v. Goodwin (Ariz.), 26 Pac. 376, 382. Art. iii, 15.

3 See, ante, § 253.

poses. Under this act a proceeding was commenced by Ellinghouse to condemn a right of way for his irrigatingditch across the lands of Taylor. The latter contended that the statute was unconstitutional, as authorizing the taking of private property for private uses, and that the constitutional provision restricted the public use of water to the sale, rental, distribution, and kindred beneficial uses. The court refused to sustain this contention, saying:

"We cannot agree with this construction of section "fifteen, article three, of the constitution of Montana. "The phrase 'other beneficial use' clearly included in "the term 'public use' the use of water for the purpose "of irrigating a particular tract of agricultural land or "working a particular mine, as well as the use of water "for irrigating a number of tracts of land or working "a number of mines owned by different persons. In "California, whose constitutional provision on the sub"ject of the use of water, it is insisted by appellant, is "substantially the same as that of Montana, a much "narrower interpretation of the term 'public use' has "been adhered to than we can agree with. In Lorenz 66 v. Jacobs1 the supreme court of California held that "The right of eminent domain is restricted to the tak"'ing of private property for public use. It cannot be "'exercised in favor of the owners of mining claims, to "'enable them to obtain water for their own use in work"'ing such claims, though the intention may also be to 'supply water to others for mining and irrigating pur'poses.'

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"The constitutional provision of California, however, "is not the same as that of Montana on the subject of "the use of water. The former does not contain the

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phrase 'other beneficial use.' But even if this phrase were not included in the Montana provision, we should "not feel disposed to follow the California construction. "It impresses us as narrow and retrogressive. Under

163 Cal. 73.

"this language in the constitution of each state,namely, 'the appropriation of water for distribution,' "we think the courts of either state would be justified "in declaring the use of water for one or two tracts of "land or mines a 'public use.'

"The public policy of the territory and the state of "Montana has always been to encourage in every way "the development of the minerals contained in its "mountains, and the necessity for adding to its tilled acreage is manifest. This state is an arid country, " and water is essential to the proper tillage of its scat"tered agricultural valleys. With all this in view, it was "expressly declared in our state's constitution that the "use of water by private individuals for the purpose of irrigating their lands should be a public use. The "statute of 1891 regulating the manner in which rights "of way for irrigating ditches should be acquired was "enacted under the constitution in order to carry out "the intention of its framers and the people who "adopted it." 1

A similar doctrine had previously been announced with reference to a lateral railroad having its terminus at a mine.2

260. Georgia.-The supreme court of Georgia upheld an act of the state legislature creating a private corporation and empowering it to condemn lands for the purpose of enabling it to work its mines for gold or other valuable minerals by the hydraulic process, thus stating its reasons:

"Gold and silver is the constitutional currency of the "country, and to facilitate the production of gold from "the mines in which it is imbedded, for the use of the public, is for the public good, though done through "the medium of a corporation or individual enterprise.

'Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757.

Butte A. and P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 50 Am. St. Rep. 508, 41 Pac. 232.

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"The increased production of gold from the mines of Lumpkin county by the means as provided for in the "defendant's charter must necessarily be for the public "good, inasmuch as it will increase for the use of the public a safe, sound constitutional circulating medium, which is of vital importance to the permanent "welfare and prosperity of the people of the state of Georgia, as well as of the people of the United "States."1

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We cannot perceive upon what principle, particularly in states like Georgia, the industry of mining should be considered of "public utility" any more than the cultivation of the soil and the raising of cotton, sugar-cane, cereals, or any other product so essential to the use of mankind. There may be some plausibility for the rule as announced in Nevada, based, as it is, upon the peculiar conditions existing in that state. But certainly the reasons given by the supreme court of Georgia are neither logical nor persuasive.

? 261. The rule in Pennsylvania, West Virginia, California, and Oregon.-In these states a private enterprise such as mining is not regarded as a public utility in the sense of authorizing the exercise of the power of eminent domain in its behalf. The decisions of the respective courts on this subject will be considered in order.

An act of the legislature of Pennsylvania2 provided for a right of way across or under rivers or other streams of this commonwealth, for the better and more convenient mining of anthracite coal. The supreme court of that state held the act to be unconstitutional and void, as conferring authority to take private property for private use.3

In the case of Edgewood R. R. Co.'s appeal,1 the same court refused to permit a condemnation of land for a railroad which was a mere appurtenant to a mine, thus stating its views:

"The commonwealth transfers to its citizens her power of eminent domain only when some existing "public need is to be supplied or some present public "advantage is to be gained. She does not confer it with a view to contingent results, which may or may not "be produced, and may or may not justify the grant, as a projected speculation may prove successful or "disastrous."

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262. West Virginia.—In West Virginia an act was passed providing that any person owning land having timber upon it, or containing coal, ore, or other minerals, who desires to obtain a subterranean or surface right of way by railroad or otherwise, under, through, or over land belonging to another, for the purpose of mining for such minerals, or conveying such timber or minerals to market, or for the purpose of draining any coal or mineral lands under, through, or over lands belonging to another, might institute proceedings for the condemnation of such lands for such purposes.2

Under this act, the Valley City salt company, owning some thirty acres of coal land, sought to condemn a subterranean right of way through the land of another, for the purpose of extracting and transporting its coal. The supreme court of West Virginia held that the intended use was strictly private in its nature, and that the right of eminent domain could not be exercised for any such purpose.3

263. California.-The supreme court of California has, in several instances, had under consideration a stat

179 Pa. St. 257, 269.

Code W. Va., ch. xliii, §§ 44, 45.

3 Valley City Salt Co. v. Brown, 7 W. Va. 191.