The latest round of attacks aimed toward Donald Trump can only reasonably be considered divinely inspired fails.
OMG Donald Trump Supports Eminent Domain!!
[ *NOTE* Watch closely who picks up on this attack approach and you’ll identify an even larger number of the GOPe deceivers than were visible before. ]
Brett Baier interviewed Donald Trump for his Fox News Special Report segment and carried with him a specifically pre-framed angle of attack, an agenda. Baier used the Club for Growth argument (see video: @3:34) for conversation about Eminent Domain.
Of course Eminent Domain is wonderful, it goes without saying.
It is not even a reasonable argument to state otherwise. Eminent Domain is expressly written into the 5th Amendment of the U.S. constitution because without the ability of government to control property use, institute easements and take ownership of land parcels there would be complete chaos. Think about the power grid as an example. How do you get electricity to your home if the municipal government cannot put a power pole in the neighborhood yards? It really is that simple.
Or if you live in the country and build a home and you need to have utilities installed, think about how ridiculous it would be if the neighboring land owner two miles away refused to allow the transferring infrastructure?
Eminent Domain is an essential element of society and life. There is no other option without it. Donald Trump says “eminent domain is wonderful” because it is.
Yet look at how quick the punditry moved to make an issue out of it:
You just have to laugh at the scope of the FAIL.
Now, there is an argument to be made that the Kelo Supreme Court decision, which expanded Eminent Domain to encompass the transfer of property ownership from one private owner to another private owner, is going to far.
In Kelo you enter into the “greater good” argument where the property rights of an individual are compromised by government intervention. Should a property owner lose their property for a developer or business who is putting a manufacturing facility upon it?
That’s a more nuanced argument and should be decided between the interested parties and resolved in local courts if needed.
However, the larger argument of “eminent domain”, where the government can use private property for the benefit of a larger society is not an issue; it is essential. There’s another aspect to “actual property ownership” that revolves around taxation, economic activity, private property “ownership”, and who actually owns real property that is subject to cyclical taxation, but that’s for another day.
Short version “anything that is taxed, while existing in a static economic form, you do not technically own”.
But in their rush to find something, anything, to attack Donald Trump with – Fox News once again shows how absolutely biased they are in their efforts to get rid of Donald Trump and make way for their chosen candidate, Jeb!
The anti-Trump media and ruling political class are making huge mistake and playing games with a very dangerous people.
If they hurt or kill Trump, if they steal this election, they will pay dearly. I am convinced this movement to put Donald Trump in the oval office is a ground swell of plain ordinary white men and women, those of us who are desperately trying to save a nation for our children and grandchildren.
If they hurt or kill Trump, if they steal this election, they will pay dearly. I am convinced this movement to put Donald Trump in the oval office is a ground swell of plain ordinary white men and women, those of us who are desperately trying to save a nation for our children and grandchildren.
You're correct. I wonder if the GOPe will vote Hillary over Trump. Since they are traitors I suspect many of the will.
"In Kelo you enter into the “greater good” argument where the property rights of an individual are compromised by government intervention."
All that the Kelo decision said was that local governments could take property for commercial use. Since that decision, 42 states have passed laws against taking property for commercial use, thereby voiding Kelo.
I wonder if the GOPe will vote Hillary over Trump. Since they are traitors I suspect many of the will.
When anti-establishment GOP'er Barry Goldwater ran against LBJ in '64, Nelson Rockefeller and George Romney (Mitt's daddy) sat it out. They may have actually come out for LBJ but I'm not sure.
I could see the likes of Juan McClown coming out and supporting "my good friend" Hilliary . . .
"Blessed is the nation whose God is the LORD . . . "
Of course Eminent Domain is wonderful, it goes without saying.
It is not even a reasonable argument to state otherwise. Eminent Domain is expressly written into the 5th Amendment of the U.S. constitution because without the ability of government to control property use, institute easements and take ownership of land parcels there would be complete chaos. Think about the power grid as an example. How do you get electricity to your home if the municipal government cannot put a power pole in the neighborhood yards? It really is that simple.
Or if you live in the country and build a home and you need to have utilities installed, think about how ridiculous it would be if the neighboring land owner two miles away refused to allow the transferring infrastructure?
Eminent Domain is an essential element of society and life. There is no other option without it. Donald Trump says “eminent domain is wonderful” because it is.
Yes the public use arguments in the paragraphs above are legit uses of the taking clause. Building casino garages is an abuse of the clause.
All that the Kelo decision said was that local governments could take property for commercial use. Since that decision, 42 states have passed laws against taking property for commercial use, thereby voiding Kelo.
Kelo was wrongly decided and should be reversed by SCOTUS
I wonder if the GOPe will vote Hillary over Trump. Since they are traitors I suspect many of the will.
The Grand Old Party has nothing in common with white working Republicans, they have used the middle class over and over again, we are tired of being the two bit used.
I need another 10 to 48 hours to put up something on hos important this upcoming Speaker of the House vote is.
I'm certain the GOPe would vote for Hillary. She is part of the corporate/political Oligarchy that runs this nation. The only candidate who can smash that system is Donald Trump! This election is about American sovereignty vs. globalism/NWO.
This is our ONLY chance to break up this global cartel, and people wonder why we send people to Washington and nothing ever gets done? Oligharchy. WAKE UP PEOPLE! Think long and hard about this.
Trump 2016
In a time of universal deceit - telling the truth is a revolutionary act. George Orwell
All that the Kelo decision said was that local governments could take property for commercial use. Since that decision, 42 states have passed laws against taking property for commercial use, thereby voiding Kelo.
Kelo involved an eminent domain taking pursuant to Connecticut state law. The U.S. Supreme Court only had jurisdiction to determine if the taking had violated the Fifth Amendment to the U.S. Constitution. It held that over a century of case law confirmed that there was no constitutional violation. The Supreme Court explicitly explained that any state could legislate to restrict its exercise of the takings power.
Kelo at 489-90: (citations omitted)
In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.
The judgment of the Supreme Court of Connecticut is affirmed.
Sec. 48-6. Time limits for municipal corporations to take real property. Taking of property in neighborhood revitalization zones.(a) Any municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void.
(b) In the case of acquisition by a redevelopment agency of real property located in a redevelopment area, except as provided in sections 8-127a, 8-193 and 32-224, the time for acquisition may be extended by the legislative body upon request of the redevelopment agency, provided the owner of the real property consents to such request.
(c) In accordance with the policy established in section 7-603, any municipal corporation may take property which is located within the boundaries of a neighborhood revitalization zone identified in a strategic plan adopted pursuant to sections 7-601 and 7-602. The acquisition of such property shall proceed in the manner provided in sections 8-128 to 8-133, inclusive, and 48-12.
(1949 Rev., S. 7179; 1959, P.A. 152, S. 64; 1961, P.A. 294; 1971, P.A. 198; P.A. 83-587, S. 58, 96; P.A. 91-398, S. 3, 7; P.A. 95-340, S. 5; P.A. 07-141, S. 20.)
History: 1959 act deleted “concerning the condemnation of land for the site of county buildings” following reference to Sec. 48-12, county government having been abolished by the act; 1961 act added reference to powers conferred by the general statutes, imposed six-month deadline for taking action under Sec. 48-12 and specified that unless such action is taken the vote shall be void; 1971 act clarified six-month deadline for taking action by rephrasing provision; P.A. 83-587 made a technical amendment; P.A. 91-398 designated existing language as Subsec. (a), substituted the term “real property” for “real estate” in Subsec. (a) and added Subsec. (b) regarding acquisition by a redevelopment agency of real property located in a redevelopment area; P.A. 95-340 added Subsec. (c) re taking of property located within neighborhood revitalization zones; P.A. 07-141 amended Subsec. (b) to add “except as provided in sections 8-127a, 8-193 and 32-224”, effective June 25, 2007, and applicable to property acquired on or after that date.
Cited. 100 C. 411. Challenge of authority’s decision must be by procedures under Sec. 48-12. 154 C. 446. Cited. 186 C. 229.
Cited. 23 CA 554; 32 CA 611. 6-month time limitation in Subsec. (a) applies only to condemnation proceedings and not to voluntary sales. 94 CA 364. Where referendum question stated that property proposed to be acquired by eminent domain by municipality for a school project would also be used for open space and general government, provisions of section requiring commencement of compensation process within 6 months of referendum apply. 103 CA 369.
Establishment of an airport by a town is clearly one of its municipal purposes and proceedings to condemn for such are brought under this section and Sec. 48-12. 9 CS 317. Cited. 20 CS 422.
#12. To: nolu chan, tooconservative, tomder55, cz82, misterwhite (#11)
This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution.
So here is the fifth amendment. Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Lets zero in on this part "No person shall...... nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation".
So the constitution has some requirements. It has to be for public use. There has to be just compensation. It says public use not public ownership. So it seems constitutionally Kelo is correct. Even though we don't like people having things taken by us from the Government.
It also says states can have higher standards. So having seen and thought about this Kelo is correct if you use the text of the constitution. Or at least an argument could be made that it is.
It seems even when Trump went to court and won. He actually had a constitutional case to make. I mean it met the two requirements in the constitution. There was just compensation. It was for public use. Remember the constitution says public use not public ownership. If we like that or not.
It seems even when Trump went to court and won. He actually had a constitutional case to make. I mean it met the two requirements in the constitution. There was just compensation. It was for public use. Remember the constitution says public use not public ownership. If we like that or not.
The Founders and all the Courts since never discovered any such legitimate use until the Kelo decision a decade ago.
This was the Court, mad with power, tinkering with the Constitution. They should have all been impeached in the Senate. It was shameless politicking to sell out to the Chambers of Commerce types for a Court victory.
"This was the Court, mad with power, tinkering with the Constitution."
Most of the problems in this country are due to Supreme Court interpretations, not laws passed by Congress.
We can start with the Commerce Clause, abortion rights, gay rights including marriage, 14th amendment anchor babies, 14th amendment due process (which applies the BOR to the states), removing God from public places, etc.
It seems even when Trump went to court and won. He actually had a constitutional case to make. I mean it met the two requirements in the constitution. There was just compensation. It was for public use. Remember the constitution says public use not public ownership. If we like that or not.
Trump did not go to court. The government agency and the owner went to court. In the New Jersey case, Vera Coking prevailed over the Atlantic City agency in a New Jersey Superior Court.
In Kelo, the case went to SCOTUS.
Kelo held the Federal government did not have authority to tell all the 50 states how to conduct their business in this matter, as long as they stayed within the bounds of the Fifth Amendment.
In construing State law, the highest court of the State has the final say. SCOTUS only reviews for the constitutionality of that law.
Mt. Vernon-Woodberry Co. v. Alabama Power Co., 240 U.S. 30 (1916)
Mt. Vernon-Woodberry Cotton Duck Company
v.
Alabama Interstate Power Company
No. 200
Submitted January 10, 1916
Decided January 24, 1916
240 U.S. 30
ERROR TO THE SUPREME COURT
OF THE STATE OF ALABAMA
Syllabus
Prohibition is a distinct suit, and the judgment finally disposing of it is a final judgment by common law as well as under the statutes of Alabama within the meaning of Judicial Code, § 237.
The fact that the denial of a petition for writ of prohibition does not decide the merits of the principal suit is immaterial so far as finality of the judgment is concerned.
Where the state court has denied a petition for writ of prohibition, all the points urged exclusively under the the Constitution must be taken to have been decided adversely to plaintiff in error, and this Court in such respect follows the state court.
To manufacture, supply, and sell to the public power produced by water as motive force held in this case, following the judgment of the state court, to be a public use justifying the exercise of eminent domain, and the statute of Alabama providing for condemnation of property for water power purposes is not unconstitutional as taking property without due process of law.
186 Ala. 622 affirmed.
The facts, which involve the construction, application, and constitutionality of statutes of Alabama providing for proceedings to condemn land and water powers, are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a petition for a writ of prohibition to prevent the probate court of Tallapoosa County from taking
Page 240 U. S. 31
jurisdiction of condemnation proceedings instituted by the Alabama Interstate Power Company to take land, water, and water rights belonging to the petitioner. An alternative writ was issued, but the supreme court of the state ordered it to be quashed and the writ to be dismissed. 186 Ala. 622. The grounds of the petition are that the statutes of Alabama do not authorize the proceedings, and that, if they do, they contravene the Fourteenth Amendment of the Constitution of the United States. The supreme court upheld the statutes and the jurisdiction of the probate court, but left the sufficiency of the petition for condemnation, whether every subject of which condemnation was sought could be condemned, and the ability of the Power Company to prove its case, to be determined in the condemnation case. There is a motion to dismiss the writ of error on the ground that the present decision is not final because it does not determine the merits, but this motion must be denied. Prohibition is a distinct suit, and the judgment finally disposing of it is a final judgment within the meaning of the Judicial Code, Act of March 3, 1911, c. 231, § 237, 36 Stat. 1087, 1156, under the statutes of Alabama and by the common law. Code of 1907, §§ 4864-4867, 4872; Weston v. Charleston, 2 Pet. 449, 27 U. S. 464-465. The fact that it does not decide the merits of the principal suit is immaterial. It is not devoted to that point, but only to the preliminary question of the jurisdiction of the court in which that suit is brought.
The argument in favor of granting the writ, presented by the plaintiffs in error, is addressed in great part to matters with which this court has no concern. It is argued that the probate court could not be given jurisdiction of the condemnation proceedings consistently with the Constitution of the state; that, under the same instrument, the state legislature had no power to pass the condemnation acts; that the petition was insufficient to found jurisdiction of the case and was defective in various
240 U. S. 32
ways; that a part of the condemnation sought was bad under the statutes in any event, and that certain words in the Alabama Code under which it is sought to condemn rights below the contemplated dam of the Power Company never were properly enacted by the legislature of the state. All these points must be taken to have been decided adversely to the plaintiff in error by the Supreme court of Alabama so far as they might furnish grounds for prohibition, and they all are matters on which this court follows the supreme court of the state.
The principal argument presented that is open here is that the purpose of the condemnation is not a public one. The purpose of the Power Company's incorporation, and that for which it seeks to condemn property of the plaintiff in error, is to manufacture, supply, and sell to the public power produced by water as a motive force. In the organic relations of modern society, it may sometimes be hard to draw the line that is supposed to limit the authority of the legislature to exercise or delegate the power of eminent domain. But to gather the streams from waste and to draw from them energy, labor without brains, and so to save mankind from toil that it can be spared, is to supply what, next to intellect, is the very foundation of all our achievements and all our welfare. If that purpose is not public, we should be at a loss to say what is. The inadequacy of use by the general public as a universal test is established. Clark v. Nash, 198 U. S. 361; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 200 U. S. 531. The respect due to the judgment of the state would have great weight if there were a doubt. Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 208 U. S. 607; O'Neill v. Leamer, 239 U. S. 244, 239 U. S. 253. But there is none. See Otis Co. v. Ludlow Manufacturing Co., 201 U. S. 140, 201 U. S. 151. We perceive no ground for the distinction attempted between the taking of rights below the contemplated dam, such as these are, and those above. Compensation is provided for according to rules
240 U. S. 33
that the court below declares to be well settled and that appear to be adequate. The details as to what may be taken and what not under the statutes and petition are not open here. Before a corporation can condemn rights, it is required to have obtained by other means at least an acre on each side of the stream for a dam site, and this is supposed to show that the use is not public. It is only a reasonable precaution to insure good faith. A hardly consistent argument is that the dam should be built before the necessity of taking waters below can be shown. But a plan may show the necessity beforehand. All that we decide is that no general objection based on these grounds affects the jurisdiction of the probate court of the constitutionality of the act.
Certain exceptions from the powers conferred, such as private residences, lands of other corporations having similar powers, and cotton factories, subject to the taking of the excess of water over that in actual use or capable of use at normal stages of the stream are too plainly reasonable so far as they come in question here to need justification. Discrimination is alleged, but not argued. We see nothing that runs against the Fourteenth Amendment. The right given to take possession before the compensation is finally determined also is not argued. Williams v. Parker, 188 U. S. 491, 188 U. S. 502. Without further discussion of the minutiae, we are of opinion that the decision of the Supreme Court of Alabama upon the questions arising under the Constitution of the United States was correct.
Whether the statute of a state permitting condemnation by an individual for the purpose of obtaining water for his land or for mining, is or is not a condemnation for public use and therefore a valid enactment under the Constitution depends upon considerations relating to the situation of the state and its possibilities for agricultural and mining industries.
The rights of a riparian owner in and to the use of water flowing by his land are not the same in the arid and mountainous western states as they are in the eastern states.
This Court recognizes the difference of climate and soil which render necessary different laws in different sections of the country, and what is a public use largely depends upon the facts surrounding the subject, and with which the people and the courts of the state must be more familiar than a stranger to the soil.
While private property may not in all cases be taken to promote public interest and tend to develop the natural resources of the state, in view of the peculiar conditions existing in the Utah, and as the facts appear in this record, the statute of that state permitting individuals to enlarge the ditch of another and thereby obtain water for his own land is within the legislative power of the state, and does not in any way violate the federal Constitution.
198 U. S. 362
This action was brought by the defendant in error, Nash, to condemn a right of way. so called, by enlarging a ditch for the conveying of water across the land of plaintiffs in error for the purpose of bringing water from Fort Canyon Creek, in the County and State of Utah, which is a stream of water flowing from the mountains near to the land of the defendant in error, and thus to irrigate his land.
The plaintiffs in error demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action against them. The demurrer was overruled, and the defendants then waived all time in which to answer the complaint, and elected to stand on the demurrer. Thereafter there was a default entered against the defendants, and each of them, for failing to answer, and the case was, under the practice in Utah, then tried and evidence heard on the complaint of the plaintiff, showing the material facts as stated in the complaint. The trial court found the facts as follows:
"That the plaintiff during all the times mentioned in said complaint, to-wit, from the first day of January, 1902, down to the present time, inclusive, was, has been, and now is the owner of, in possession of, and entitled to the possession of the south half of the northwest quarter of section 24, in township 4 south of range 1, east of Salt Lake meridian, in Utah County, State of Utah."
"That Fort Canyon Creek is a natural stream of water flowing from the mountains on the north of plaintiff's said land in a southerly direction to and near to plaintiff's said land."
"That said land of plaintiff above described is arid land, and will not produce without artificial irrigation, but that, with artificial irrigation, the same will produce abundantly of grain, vegetables, fruits, and hay."
"That the defendants own land lying north of and adjacent to plaintiff's said land, and said defendants have constructed and are maintaining and jointly own a water ditch which diverts a portion of the said waters of the said Fort Canyon Creek on the west side of said creek (being the side on which
198 U. S. 363
the plaintiff's said land is situated) at a point about one mile north of plaintiff's said land, in section 13 of said township, down to a point within a hundred feet of plaintiff's said land, which said ditch is begun on the defendants' land and runs in a southerly direction over said defendants' land and onto and over the lands of the said defendants to said point about a hundred feet of plaintiff's said land."
"The plaintiff is the owner of, and entitled to the use of, sufficient of the remainder of the flow of the waters of the said Fort Canyon Creek to irrigate his said land, and that the irrigation of said land by the waters of said creek, and the uses of the said waters in the irrigation of the said lands of the defendant is, under the laws of this state, declared to be, and the same is, a public use."
"That the said waters of said Fort Canyon Creek cannot be brought upon the said plaintiff's said land by any other route except by and through the ditch of the defendants, owing to the canyon through which said ditch runs being such as to only be possible to build one ditch."
"That plaintiff has no other way of irrigating his said land except by the use of the waters of said Fort Canyon Creek, and that, unless plaintiff is allowed to enlarge the ditch of the defendants, and have a right of way through said ditch for the flow of the waters of said Fort Canyon Creek down to the plaintiff's said land, that said land of plaintiff will be valueless and the waters of said Fort Canyon Creek will not be available for any useful purpose."
"That said ditch of defendants is a small ditch, about 18 inches wide and about 12 inches deep; that, if the plaintiff is permitted to widen said ditch one foot more, it will be sufficient in dimensions to carry plaintiff's said water, to which he is entitled, to his said land, and the same can and will be put to a beneficial and public use in the irrigation of the soil on plaintiff's said land hereinbefore described."
"That on the sixteenth day of January, 1902, and while the said defendants were not in the actual use of their said ditch,
198 U. S. 364
and while the widening of said ditch at said time would not in any manner interfere with said defendants, other than the act of widening of same, the plaintiff requested of the said defendants the right to so widen the said ditch of the said defendants so to make it one foot wider for the purpose of using the same to carry the water of the plaintiff on to his said land from said creek, and at said time and place offered to pay to said defendants all damages which the said defendants might suffer by reason of said enlargement, and offered to pay his proportion of the maintenance of keeping the same in repair, and asked of said defendants a right to continue the use of said ditch in common with said defendants, and to use the same so as not to interfere with the use of said ditch by said defendants, and it further appearing to the court that the said plaintiff is now and has ever since been willing to pay said damage and all damage incident thereto, and to pay his just proportion of the cost of maintaining said ditch. That the said defendants then and there and ever since have refused to permit plaintiff to enlarge said ditch or to use the same, or in any manner to interfere with the same."
"And it further appearing to the court that the said defendants would suffer damages by reason of the enlarging of said ditch one foot in width in the sum of $40.00, and no more. And that the said plaintiff has deposited with the clerk of this Court, to be paid to the order of the said defendants, the sum of $40.00 in full payment of such damages. That the land of the defendants not sought to be condemned by plaintiff would suffer no injury or damage."
"And it further appearing from said evidence that said ditch of the defendants can be widened by the plaintiff one foot more without injury to defendants or to said ditch, and that said widening of said ditch and the use thereof by the plaintiff will not in any manner interfere with the free and full use thereof by the defendants for the carrying of all waters of the said defendants."
Upon these facts, the court found the following:
198 U. S. 365
"Conclusions of Law"
"The court finds and decides that the plaintiff is entitled to a decree of this court condemning a right of way through defendants' said ditch, to the extent of widening said ditch one foot more than its present width, and to a depth of said ditch as now constructed through the entire length thereof down to plaintiff's said land, for the purpose of carrying his said waters of said Fort Canyon Creek to the land of the plaintiff for the purpose of irrigation, and is entitled to an easement therein to the extent of the enlarging of said ditch, and for the purposes aforesaid, and to have a perpetual right of way to flow waters therein to the extent of the said enlargement."
"That the defendants are entitled to have and recover from the said plaintiff the sum of $40.00 damages for injury sustained by reason of the enlargement and improvement above stated and such right of way and easement."
"That the plaintiff is required to contribute to the cost and expense of maintaining and keeping the said ditch in repair in an amount and proportion bearing the same relation to the whole amount of cost and expense as the waters he flows therein bears to the whole amount flowed therein both by the plaintiff and defendants."
"That the plaintiff recover no costs herein, and judgment is hereby ordered to be entered accordingly."
Judgment having been entered upon these findings, the defendants appealed to the supreme court of the state, where, after argument, the judgment was affirmed. 27 Utah 158.
198 U. S. 367
MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the Court.
The plaintiffs in error contend that the proposed use of the enlarged ditch across their land for the purpose of conveying water to the land of the defendant in error alone is not a public use, and that therefore the defendant in error has no constitutional or other right to condemn the land, or any portion of it, belonging to the plaintiffs in error, for that purpose. They argue that, although the use of water in the State of Utah for the purposes of mining or irrigation or manufacturing may be a public use where the right to use it is common to the public, yet that no individual has the right to condemn land for the purpose of conveying water in ditches across his neighbor's land for the purpose of irrigating his own land alone, even where there is, as in this case, a state statute permitting it.
In some states, probably in most of them, the proposition contended for by the plaintiffs in error would be sound. But whether a statute of a state permitting condemnation by an individual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and therefore a valid enactment, may depend upon a number of considerations relating to the situation of the state and its possibilities for land cultivation, or the successful prosecution of its mining or other industries. Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded
198 U. S. 368
upon or is the result of some peculiar condition of the soil or climate or other peculiarity of the state where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts when they uphold a state statute providing for such condemnation. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an individual, where, in the absence of such facts, the use would clearly be private. Those facts must be general, notorious, and acknowledged in the state, and the state courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand for the enactment of the statute, and they also appreciate the results upon the growth and prosperity of the state which, in all probability, would flow from a denial of its validity. These are matters which might properly be held to have a material bearing upon the question whether the individual use proposed might not in fact be a public one. It is not alone the fact that the land is arid and that it will bear crops if irrigated, or that the water is necessary for the purpose of working a mine, that is material; other facts might exist which are also material -- such as the particular manner in which the irrigation is carried on or proposed, or how the mining is to be done in a particular place where water is needed for that purpose. The general situation and amount of the arid land or of the mines themselves might also be material, and what proportion of the water each owner should be entitled to; also the extent of the population living in the surrounding country, and whether each owner of land or mines could be in fact furnished with the necessary water in any other way than by the condemnation in his own behalf, and not by a company, for his use and that of others.
These and many other facts not necessary to be set forth
198 U. S. 369
in detail, but which can easily be imagined, might reasonably be regarded as material upon the question of public use, and whether the use by an individual could be so regarded. With all of these the local courts must be presumed to be more or less familiar. This Court has stated that what is a public use may frequently and largely depend upon the facts surrounding the subject, and we have said that the people of a state, as also its courts, must, in the nature of things, be more familiar with such facts, and with the necessity and occasion for the irrigation of the lands, than can any one be who is a stranger to the soil of the state, and that such knowledge and familiarity must have their due weight with the state courts. Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 164 U. S. 159. It is true that, in the Fallbrook case, the question was whether the use of the water was a public use when a corporation sought to take land by condemnation under a state statute for the purpose of making reservoirs and digging ditches to supply landowners with the water the company proposed to obtain and save for such purpose. This Court held that such use was public. The case did not directly involve the right of a single individual to condemn land under a statute providing for that condemnation.
We are, however, as we have said, disposed to agree with the Utah court with regard to the validity of the state statute which provides, under the circumstances stated in the act, for the condemnation of the land of one individual for the purpose of allowing another individual to obtain water from a stream in which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless.
But we do not desire to be understood by this decision as approving of the broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural resources of the state. We simply say that, in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of opinion that the use is a
198 U. S. 370
public one, although the taking of the right of way is for the purpose simply of thereby obtaining the water for an individual, where it is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. Other landowners adjoining the defendant in error, if any there are, might share in the use of the water by themselves taking the same proceedings to obtain it, and we do not think it necessary, in order to hold the use to be a public one, that all should join in the same proceeding or that a company should be formed to obtain the water which the individual landowner might then obtain his portion of from the company by paying the agreed price, or the price fixed by law.
The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous states of the West that they are in the states of the East. These rights have been altered by many of the Western states by their constitutions and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the states of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and prosperity of those states, arising from mining and the cultivation of an otherwise valueless soil, by means of irrigation. This Court must recognize the difference of climate and soil which render necessary these different laws in the states so situated.
We are of opinion, having reference to the above peculiarities which exist in the State of Utah that the statute permitting the defendant in error, upon the facts appearing in this record, to enlarge the ditch and obtain water for his own land was within the legislative power of the state, and the judgment of the state court affirming the validity of the statute is therefore
Affirmed
MR. JUSTICE HARLAN and MR. JUSTICE BREWER dissented.
The issue is clearly presented and it ought to be fairly met. That the purposes mentioned in the act “are of vital necessity to the people of this state,” cannot be denied; that mining is the paramount interest of the state is not questioned; that anything which tends directly to encourage mineral developments and increase the mineral resources of the state is for the benefit of the public and is calculated to advance the general welfare and prosperity of the people of this state, is a self-evident proposition. Hence, it necessarily follows that if the position contended for by petitioner is correct, and I believe it is, then the act is constitutional and should be upheld. Although other and weaker reasons have more frequently been assigned, it seems to me that this is the true interpretation upon which courts have really acted in sustaining the right of eminent domain in favor of railroads and other objects, and in several of the decided cases this reason is expressly given.
At 403-04:
“The principle is, that the lands of individuals are holden subject to the requisitions of the public exigencies, a reasonable compensation being paid for the damage. It is not taking the property of one man and giving it to another. At most, it is a forced sale to satisfy the pressing want of the public.” (12 Pick. 480.)
At 405:
It has never been deemed essential that the entire community, or any considerable portion of it, should directly enjoy or par ticipate in an improvement or enterprise, in order to constitute a public use, within the true meaning of these words as used in the constitution. Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and beneficial influence on the welfare and prosperity of the state.
At 406:
In Connecticut the doctrines advanced in the Massachusetts cases are fully supported. Especially is this true of the reasoning of the supr eme court in Olmstead v. Camp, sustaining the validity of the flowage act of that state. It was there contended that the act manifestly authorized the taking of property for private use; that in order to sustain the law it must affirmatively appear that th e public have an interest in the thing to be taken; that there must be a public right of control of the thing taken as property in which the state has an interest; that the thing taken is to be used by the public, and is taken that it may be so used. In di scussing this question the court say: “One of the most common meanings of the word ‘use' as defined by Webster, is ‘usefulness, utility, advantage, productive of benefit.' Public use may therefore well mean public usefulness, utility or advantage, or what is productive of general benefit, so that any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use.” (33 Conn. 546.) This decision directly declaring t hat the “term ‘public use’ is synonymous with public benefit or advantage” was concurred in by all the judges except Hinman, C. J., who dissented.
At 409:
Now it so happens, or, at least, is liable to happen, that individuals, by securing a title to the barren lands adjacent to the mines, mills or works, have it within their power, by unreasonably refusing to part with their lands for a just and fair compensation, which capital is always willing to give without litigation, to greatly embarra ss if not entirely defeat the business of mining in such localities. In my opinion, the mineral wealth of this state ought not to be left undeveloped for the want of any quantity of land actually necessary to enable the owner or owners of mines to conduct and carry on the business of mining.
At 410:
But it is argued, that in sustaining this act upon the principles we have announced, there is no limitation to the exercise of legislative will in the appropriation of private property. After a thorough investigation of this question, I am of opinion that this argument is more specious than sound.
At 410:
If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a public inn as they have to travel upon railroad.
