2254. 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.

We assume that the organic law of a state may properly provide for the condemnation of private property for private use. Such constitutional provisions, wherever they exist, form exceptions to the general rules of law upon the subject of eminent domain. Our future presentation of the law is alone applicable to states where such class of provisions do not exist, and to such uses which do not fall within the above exceptions or limitations.

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. such cases, the public welfare is promoted, though indirectly, by the increased prosperity which necessarily results from developing the natural resources of the country.'

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This is an exceedingly optimistic view of the rule, not concurred in by other writers. Mr. Mills thus states his conclusions upon the subject of condemnation for private

use:

"The use to which property is condemned must be public. As between individuals, no necessity, however "great, no exigency, however imminent, no improvement, "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.'

Judge Cooley says:—

"It is conceded on all hands that the legislature has no "power, in any case, to take the property of one individual 1 Lewis on Eminent Domain, 3 1. 2 Mills on Eminent Domain, 22.

"and pass it over to another, without reference to some use to which it is to be applied for public benefit.”1

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."

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 assembly 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."

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While this may be true, the rule announced is based upon a taking for a purely private purpose, unaccom panied by any supposed indirect public benefit.

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

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'Cooley's Const. Limit., 6th ed., 651.

Lewis on Eminent Domain, 157, and cases cited in note.

Coster v. Tide Water Co., 18 N. J. Eq. 54, 63.

* Mills on Eminent Domain, 2 10; Lewis on Eminent Domain, § 158. The rule is different in Colorado, whose constitution provides that the question is to be determined without regard to any legislative assertion. Const. Colo., art. ii., 15.

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.1

But 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 the public for domestic, manufacturing, or industrial purposes is of unquestioned "public utility."

2256. Lateral and other railroads, for transportation of mine products.-The mining interests in certain. localities have been deemed sufficiently important to justify statutes enabling a mine-owner to condemn rights of way from his mine to the nearest available thoroughfare, by means of what are termed "lateral railroads." But the laws authorizing the construction and maintenance of such railroads over the lands of another provide that all persons. who may have occasion to do so may utilize them, thus making the use, at least, quasi public.2

A railroad company organized under a law making it a common carrier of passengers and freight may, of course, condemn land for its roadbed. And the fact that the road. terminates at a mine, and is used for transporting the mined product, does not alter the public character of the use.1

But, in respect to the transportation of mine products, it has been held that a mine-owner can not condemn land. for a railroad to be used exclusively for the product of his

1 Randolph on Eminent Domain, 2 47; West Va. Trans. Co. v. Volcanic C. Co., 5 W. Va. 382; Johnston v. Gas Co., 5 Cent. Rep. 564; Carothers' Appeal, 118 Pa. 468.

2 Randolph on Eminent Domain, 247; Hibernia R. R. Co. v. De Camp, 77 N. J. 518; New Cent. C. Co. v. George's Creek C. Co., 37 Md. 537; Phillips v. Watson, 63 Iowa, 28; Brown v. Corey, 43 Pa. St. 495.

3 Contra Costa R. R. v. Moss, 23 Cal. 323.

'Colorado E. Ry. Co. v. Union Pac. Ry. Co., 41 Fed. 293.

own mine. Such use is a mere private one, to which the law of eminent domain is inapplicable."

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This was the rule announced as to tramways by the supreme court of Colorado, heretofore discussed; also, by the supreme court of Pennsylvania,' and the supreme court. of West Virginia."

257. Physical and industrial conditions as affecting the rule of "public utility."- Mr. Randolph, in his work on eminent domain," says:

"The magnitude of the interests involved seems to have "been in some cases the determining factor in upholding "the necessity for condemnation."

"This seems to account for the distinction drawn by "Chief Justice Shaw between a single mill and a great mill power the latter a public use, and the former not.

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Whatever merit there is in this particular distinction, "there is doubtless some, albeit an indefinable force of principle. One might admit the publicity of lateral railroads "and irrigation works in states containing great mineral "deposits and vast tracts of arid land," and deny the neces "sity of these works in states where mineral wealth and "desert land are so insignificant as to render the public gain by their development absurdly disproportionate to "the private benefit.

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"There is some force in the suggestion that what shall "be considered a public use may depend somewhat on 'the situation and wants of the community for the time "being.

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Randolph on Eminent Domain, 47; Stewart's Appeal, 56 Pa. 413; McCandless's Appeal, 70 Pa. 210; Sholl v. German C. Co., 118 Ill. 427.

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2 People v. Pittsburg R. R., 53 Cal. 694.

3 People ex rel. Aspen M. Co. v. District Court, 11 Colo. 147.

Edgewood R. R.'s Appeal, 79 Pa. St. 257.

5 Valley City S. Co. v. Brown, 7 W. Va. 191.

Randolph on Eminent Domain, 2 52.

'Great Falls Mfg. Co. v. Fernald, 47 N. II. 444.

Hazen v. Essex Co., 12 Cush. 475.

9 Murdock v. Stickney, 8 Cush. 113.

10 See, Oury v. Goodwin, 26 Pac. 376. This case very ably presents the question as applied to water-ways for irrigation purposes, in many of its aspects. The opinion is replete with authorities, and presents the law logically.

11 Scudder v. Trenton Del. Falls Co., 1 N. J. Eq. 694.

258. The rule in Nevada. The state of Nevada enacted a law which provided that—

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"The production and reduction of ores are of vital necessity to the people of this state; are pursuits in which "all are interested, and from which all derive a benefit; so "the mining, milling, smelting, or other reduction of ores "are hereby declared to be for the public use, and the right of eminent domain may be exercised therefor."

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We have already noted the provisions of the Nevada constitution on this subject.

An action was brought under this statute to condemn a strip of land to enable the Dayton Mining Company to transport over it the wood, lumber, timbers, and other materials required by it in the conduct of its business of mining. The district court declined to act upon the application on the ground that the statute in question was unconstitutional and void.

A writ of mandate was applied for, to compel the district court to act, upon which application the supreme court of the state admitted that private property could not be taken. for private use; that the declaration by the legislature was not conclusive upon the courts, and that the sole question. to be determined was whether the use was a public one. Upon this the court, speaking through Chief Justice Hawley, said:

"The reasons in favor of sustaining the act under con"sideration are certainly as strong as any that have been given in support of the mill-dam, or flowage acts, as well "as some of the other objects heretofore mentioned. Min"ing is the greatest of the industrial pursuits in this state. "All other interests are subservient to it. Our mountains "are almost barren of timber, and our valley lands could "never be made profitable for agricultural purposes, except "for the fact of a home market having been created by the "mining developments in different sections of the state. "The mining and milling interests give employment to many men, and the benefits derived from this business are "distributed as much, and sometimes more, among the laboring classes than with the owners of the mines and

1Stats. 1875, 111.