‘JOHN STRICKLEY and Ellen Stricklev, Plffs. in Err., v.

HIGHLAND BOY GOLD MINING COM¬ PANY.

(See S. C. Reporter’s ed. 527-532.)

Eminent domain— public use.- The COD-

200 II. S. U. S., Book 50.

demnatlon of a right of way across a placer mining claim for the aerial bucket line of a mining corporation cannot be said to be a taking of private property for private use, in defiance of Ik S. Const., 14tb Amend., if authorized by the construction given by the state courts to the provisions of state legis¬ lation for the exercise of the right of eminent domain in behalf of certain uses de¬ clared to be public.

[No. 172.]

Argued and submitted January 25, 1906. Decided February 19, 1906.

IiN ERROR to the Supreme Court of the State of Utah to review a judgment which affirmed a judgment of the District Court of Salt Lake County, in that state, condemning a right of way across a placer mining claim for the aerial bucket line of a mining corporation. Affirmed.

See same case below, 28 Utah, 215, 78 Pac. 296.

The facts are stated in the opinion.

Mr. Arthur Brown submitted the cause for plaintiffs in error. Mr Frank Hoffman was on his brief:

The question as to whether the use to which the person seeking to condemn the land of another puts the land so condemned is public or private is always a question to be determined by the courts.

Bankhead v. Broion, 25 Iowa, 540.

The use to which the defendant in error sought to condemn the property of the plaintiffs in error was a private use.

Consolidated Channel Co. v. Central P. R. Co. 51 Cal. 269; People ex rel. Robin¬ son v. Pittsburgh R. .Co. 53 Cal. 6Q4; Sholl v. German Coal Co. 118 Ill. 427, 59 Am. Rep. 379, 10 N. E. 199; Nesbitt v. Trumbo, 39 Ill. 110, 89 Am. Dec. 290; Bankhead v. Brown , supra j Edgeivood R. Co.’s Appeal, 79 Pa. 257; Waddell’s Appeal, 84 Pa. 90; Pittsburg, W. & K. R. Co. v. Benwood Iron Works, 31 W. Va. 710, 2 L.R.A. 680, 8 S. E. 453; Baltimore & O. R. Co. v. Pittsburg, IF. <£- K. R. Co. 17 W. Va. 812; Varner v. Martin, 21 W. Va. 534; Valley City Salt Co. v. Brown, 7 W. Va. 191; Coster v. Tide Water Co. 18 N. J. Eq. 54; Varick v. Smith, 5 Paige, 137, 28 Am. Dec. 417 ; Donnelly v. Decker, 58 Wis. 461, 46 Am. Rep. 637, 17 N. W. 389; 2 Kent, Com. p. 339; Lewis, Em. Dom. § 165, •pp. 224, 225, § 167, p. 228; Mills, Em. Dom. 2d ed. §§ 23, 26, 27; Cooley, Const.

Note. — As to what is a public use for which private property may be taken by eminent do¬ main — See note,, to Pittsburg, W. & K. R. Co. v. Benwood Iron Works, 2 L.R.A. 680 ; Barre R. Co. v. Montpelier & W. River R. Co. 4 L.R.A. 785 ; and Sweet v. Rechel, 40 L. ed. U. S. 188.

37

581

529

Supreme Court op the United States.

Oct. Term,

Lim. pp. 651-654; Citizens’ Sav. d L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 455; Re Eureka Basin Warehouse & Mfg. Co. 96 N. Y. 42.

Mr. George Sutherland argued the cause, and, with Messrs. Waldemar Van Cott and E. M. Allison, Jr., filed a brief for defendant in error:

The legislative declaration of a public use will be respected by the courts, unless such declaration is clearly without rea¬ sonable foundation.

Stockton d V. R. Co. v. Stockton, 41 Cal. 1G8 : Backus v. Fort Street Union De¬ pot Co. 169 U. S. 568, 42 L. ed. 858, 18 Sup. Ct. Rep. 445; Dayton Gold d S. Min. Co. v. Seawell, 11 Nev. 399; 10 Am. & Eng. Ene. Law, 2d ed. p. 1070; Tuttle v. Moore, 3 Ind. Terr. 712, 64 S. W. 590; F allbroolc Irrig. District v. Bradley, 1C4 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56; Clark v. Nash, 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676: Yunker v. Nichols, 1 Colo. 551; Overman Silver Min. Co. v. Cor¬ coran, 15 Nev. 147; United States v. Gettys¬ burg Electric R. Co. 160 U. S. 668, 40 L. ed. 576, 16 Sup. Ct. Rep. 427.

The legislature of Utah adopted the Ne¬ vada statute after it had been held consti¬ tutional by the supreme court of Nevada.

Overman Silver Min. Co. v. Corcoran, su¬ pra.

It has been held in Georgia that the con¬ struction of an irrigation ditch for the development of mines for the purpose of furnishing more gold for circulation is a public use, and that, too, in a state where little gold is found.

Hand Gold Min. Co. v. Parker, 59 Ga. 419.

The Nevada statute has also been held constitutional by the Federal court for the district of Nevada.

Douglass v. Byrnes, 59 Fed. 29.

The doctrine of the Nevada and Georgia cases has been approved in Montana.

Butte A. d P. R. Co. v. Montana Union R. Co. 16 Mont. 526, 31 L.R.A. 298, 50 Am. St. Rep. 508, 41 Pac. 232; Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757.

So in Arizona, it has been held that a right of way for an irrigation ditch is a public use.

Oury v. Goodwin, 3 Ariz. 255, 26 Pac.

A great number of authorities as to the development of mines being a public use are collated in 10 Am. & Eng. Enc. Law, 2d ed. pp. 1086, 1087.

There are many states in the Union which would undoubtedly hold that an ir¬ rigation ditch is not a public use, and they would be entirely correct in so holding; but our own court, as well as other courts in the arid region, would be just as correct 582

in holding, on principle, to the direct con¬ trary, on account of the difference in the public good. The same has been held in Maryland in regard to a railway for the carrying of supplies and coal from a mine.

New Central Coal Co. v. George’s Creek Coal d I. Co. 37 Md.. 538.

In Chicago d N. W. R. Co. v. Morehouse, 112 Wis. 1, 56 L.R.A. 240, 88 Am. St. Rep. 918, 87 N. W. 849, it was held that a rail¬ way company is exercising a public use in condemning land for a spur track to one establishment.

To the same effect are Stockdale v. Rio Grande Western R. Co. 2S Utah, 201, 77 Pac. 849, and Morrison v. Thistle Coal Co. 119 Iowa, 705, 94 N. W. 507.

In Ahern v. Dubuque Lead d Level Min. Co. 4S Iowa, 140, it was held to be a pub¬ lic use to construct drains and levels for the purpose of draining mineral lands so that they would be available for mining pur¬ poses. On principle, there' is no difference between this case and the one at bar.

A public use is not determined simply by the question whether a physical use is made by the public; but the question is deeper, and depends upon whether the use subserves the public good or tends to that end.

Olcott v. Fond du Lac County, 16 Wall. 688, 694, 695, 21 L. ed. 386, 388: Gibson v. Mason, 5 Nev. 308; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Chesapeake <f- P. Teleph. Co. v. Manning, 186 U. S. 245, 46 L. ed. 1147, 22 Sup. Ct. Rep. 881; Ulmer v. Lime Rock R. Co. 98 Me. 579, 66 L.R.A. 387, 57 Atl. 1001.

The state • courts are in irreconcilable conflict as to what are public uses. For instance, this is well illustrated in the “mills acts.” See 1 Lewis, Em. Dorn. §§ 180 et seq., and instances there given. The United States Supreme Court has never passed upon the constitutionality of these mills acts.

See Head v. Amoskeag Mfg. Co. 113 U. S. 20, 28 L. ed. 893, 5 Sup. Ct. Rep. 441.

The court will not hold unconstitutional the Utah statute declaring tramways for cer¬ tain purposes a public use, unless it is clear¬ ly, plainly, and palpably in conflict with the Federal Constitution. Even if there is a doubt, the law will be declared valid.

Fletcher v. Peck, 6 Cranch, 128, 3 L. ed. 175; Munn v. Illinois, 94 U. S. 123, 24 L. ed. S3; Fairbank v. United States, 181 U. S. 285, 45 L. ed. 863, 21 Sup. Ct. Rep.

Mr. Justice Holmes delivered the opin¬ ion of the court:

This is a proceeding begun by the defend-

200 U. S.

Stbickley v. Highland Boy Gold Min. Co.

529-532

ant in error, a mining corporation, to con¬ demn a right of way for an aerial bucket line across a placer mining claim of the plaintiffs in error. The mining corporation owns mines high up in Bingham canyon, in West mountain mining district, Salt Lake county, Utah, and is using the line or way to carry ores, etc., for itself and others from the mines, in suspended buckets, down to the railway station, 2 miles distant, and 1,200 feet below. Before building the way it made diligent inquiry, but could not dis-

cover the owner of the placer claim *in ques¬ tion, Strickley standing by without object¬ ing or making known his rights while the company put up its structure. The trial court found the facts and made an order of condemnation. This order recites that the mining company has paid into court the value of the right of way, as found, and costs, describes the right of way by metes and bounds, and specifies that the same is to be used for the erection of certain towers to support the cables of the line, with a right to drive along the way when necessary for repairs, the mining company to move the towers as often as reasonably required by the owners of the claim for using and work¬ ing the said claim. The foregoing final order was affirmed by the supreme court of the state. 28 Utah, 215, 78 Pac. 296.. The case then was brought here.

The plaintiffs in error set up in their answer to the condemnation proceedings that the right of way demanded is solely for private use, and that the taking of their land for that purpose is contrary to the 14tli Amendment of the Constitution of the Unit¬ ed States. The mining company, on the other hand, relies upon the statutes of Utah, which provide that “the right of eminent domain may be exercised in behalf of the following public uses: . . . (6) Roads,

railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places to facili¬ tate the milling, smelting, or other reduc¬ tion of ores, or the working of mines.” [Utah, Rev. Stat. 1898, § 3588.] In view of the decision of the state court we assume that the condemnation was authorized by the state laws, subject only to the question whether these laws, as construed, are con¬ sistent with the 14th Amendment. Some objections to this view were mentioned, but they are not open. If the statutes are con¬ stitutional as construed, we follow the con¬ struction of the state court. On the other hand, there is no ground for the suggestion that the claim by the plaintiffs in error of their rights under the 14th Amendment does 200 U. S.

not appear sufficiently on the record. The suggestion was not pressed.

The single question, then, is the consti¬ tutionality of the *Utah statute, and the

particular facts of the case are material only as showing the length to which the statute is held to go. There is nothing to add with regard to them, unless it be the finding that the taking of the strip across the placer claim is necessary for the aerial line, and is consistent with the use of all of the claim by the plaintiffs in error for mining, ex¬ cept to the extent of the temporary inter¬ ference over a limited space by four towers, each about 7% feet square and removable, as stated above.

The question, thus narrowed, is pretty nearly answered by the recent decision in Clark v. Nash, 198 U. S. 361, 49 L. ed. 1085,

25 Sup. Ct. Rep. 676. That case estab¬ lished the constitutionality of the Utah statute, so far as it permitted the condemna¬ tion of land for the irrigation of other land belonging to a private person, in pur¬ suance of the declared policy of the state.

In discussing what constitutes a public use, it recognized the inadequacy of use by the general public as a universal test. While emphasizing the great caution necessary to be shown, it proved that there might be exceptional times and places in which the very foundations of public welfare could not be laid without requiring concessions from individuals to each other upon due compen¬ sation, which, under other circumstances, would be left wholly to voluntary consent.

In such unusual cases there is nothing in the 14th Amendment which prevents a state from requiring such concessions. If the state Constitution restricts the legislature within narrower bounds, that is a local affair, and must be left where the state court leaves it in a case like the one at bar.

In the opinion of the legislature and the supreme court of Utah the public welfare of that state demands that aerial lines be¬ tween the mines upon its mountain sides and the railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are wrong. If, as seems to be assumed in the brief for the defendant in error, the finding that the plaintiff *is a carrier for it-

self and others means that the line is dedi¬ cated to carrying for whatever portion of the public may desire to use it, the founda¬ tion of the argument on the other side dis¬ appears.

Judgment affirmed.

583

532-535

Supreme Court of the United States.

Oct. Term,