"mills. The mines are fixed by the laws of nature, and are "often found in places almost inaccessible. For the purpose "of successfully conducting and carrying on the business "of mining, milling, smelting, or other reduction of ores,' "it is necessary to erect hoisting works, to build mills, to "construct smelting furnaces, to secure ample grounds for "dumping waste rock and earth; and a road to and from. "the mine is always indispensable. The sites necessary "for these purposes are oftentimes confined to certain "fixed localities. 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 embarrass, 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. Nature has denied to this "state many of the advantages which other states possess, "but, by way of compensation to her citizens, has placed "at their doors the richest and most extensive silver deposits ever yet discovered. The present prosperity of the "state is entirely due to the mining developments already "made, and the entire people of the state are directly "interested in having the future developments unob"structed by the obstinate action of any individual or "individuals." 1 A like doctrine was affirmed by the same court in a later case, where a mine-owner sought to condemn the land of another for the purpose of sinking a shaft thereon." This decision presents the question of "public use," as applied to the class of state legislation under consideration, in the most favorable light for the mining industry. In its diction it is a classic; in its logic it is persuasive, considering the local conditions existing in that state. 259. The rule in Arizona.-The supreme court of Arizona, by a parallel line of reasoning, reached the same Dayton M. Co. v. Seawell, 11 Nev. 394. 2 Overman S. M. Co. v. Corcoran, 15 Nev. 147. conclusions as to the validity of the laws of that territory authorizing the condemnation of land for the purpose of a canal or ditch for irrigating purposes. Said that court: "May a state or territory, in view of its natural advan"tages and resources and necessities, legislate in such a way, exercising the power of eminent domain, that these "advantages and resources may receive the fullest develop"ment 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 mountains abound in the precious metals, gold and silver, the jewels of sover"eignty'; 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 moun"tains and the deserts may be made to yield fabulous "wealth, and Arizona become the home of a vast, prosper"ous, and happy people. But with water in this territory "cribbed, cornered, and confined,' it will continue and "remain the mysterious land of arid desert plains, and "barren hillsides, and bleak mountain peaks. The legis"lature of the territory, seeing what was apparent to all, adopted at an early day a policy-'a general and impor"tant 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 ex"isting in the territory, must be apparent to every one."1 260. The rule in 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 1Oury v. Goodwin, 26 Pac. 376, 382. "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. "The increased production of gold from the mines of "Lumpkin county by the means as provided for in the de"fendant'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 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.- An act of the legis lature 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 property for private use." p a rivate rail In the case of Edgewood R. R. Co.'s appeal,' the same court refused to permit a condemnation of land for road 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 1 Hand G. M. Co. v. Parker, 59 Ga. 419, 424. 2 Purd. Dig. 1967. Waddell's Appeal, 84 Pa. St. 90. 479 Pa. St. 257, 269. 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 specula"tion may prove successful or disastrous. 2262. The rule in 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.1 Under this act, the Valley City Salt Co., 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.2 263. The rule in California.—The supreme court of California has, in several instances, had under consideration a statute of that state which provides that the right of eminent domain may be exercised in behalf of certain enumerated public uses, including "tunnels, ditches, flumes, "pipes, and dumping-places for working mines; also, out“lets, natural or otherwise, for the flow, deposit, or conduct "of tailings or refuse matter from the mines."3 In the case of Consolidated Channel Co. v. C. P. R. R.,1 the attempt was made by the plaintiff, as the owner of a gold mine, to condemn a right of way for the purpose of 1 Code W. Va., ch. xliii., 22 44, 45. W Code Civ. Proc., 1238. +51 Cal. 269. constructing a ditch and flume, to carry off the tailings from the mine. "It is clear, [said the court,] that the object sought is "the appropriation of the private property of the defendants to the private use of plaintiff. The proposed flume is to "be constructed solely for the purpose of advantageously "and profitably washing and mining plaintiff's mining "ground. It is not even pretended that any person other "than the plaintiff will derive any benefit whatever from "the structure when completed. No public use can possi"bly be subserved by it. It is a private enterprise, to be "conducted solely for the personal profit of the plaintiff, "and in which the community at large have no concern. "It is clear that this case does not come within the meaning "of that clause of the constitution which permits the tak"ing of private property for a public use. 66 It would be difficult to suppose a case more completely within the exception stated, and in which the absence of all possible "public interest in the purposes for which the land is sought to be condemned is more clear and palpable, than "in the case at bar." In Lorenz v. Jacobs,' the same court held that the right of eminent domain could not be exercised in favor of the owners of mining claims, to enable them to obtain water for their own use in working such claims, though the intention may also be to supply water to others for mining and irrigating purposes. In the case of Amador Queen M. Co. v. Dewitt, the plaintiff undertook to condemn the right of way through defendant's ground, for the purpose of a tunnel to enable plaintiff to extract ore from its mine and transport it to its mill, defendant's land intervening between plaintiff's mine and its mill. The federal statute was invoked, as in the Colorado case of The People ex rel. Aspen M. & S. Co. v. District Court (supra). But the court held that the language of the Revised Statutes of the United States contained no reservation of such right in favor of plaintiff, and that the mine of defendant was his private property, the use for which it was sought to be condemned was a private use, and the proceeding could not be maintained. |