St. Helena Water Co. v. Forbes

Ross, J.: The plaintiff is a corporation organized under the laws of this State, for the purpose of supplying the inhabitants of the town of St. Helena with fresh water. The defendant is the owner of a tract of land through which run the waters of a certain creek called Hudson or York Creek.

The purpose of the present proceeding on the part of the plaintiff is to condemn the waters of the creek for the purpose of supplying the inhabitants of the town with water; and the principal question in the case is, whether or not, under the laws of this State, the right of a private individual to enjoy the flow of water in its natural channel, upon or along his land, can be taken from him for such purpose.

There can be no sort of doubt that the supplying of the inhabitants of a town with pure fresh water, is one of the “public uses,” in behalf of which the Legislature has declared the right of eminent domain may be exercised. (Code of Civil Proc., § 1238.) Whether, with such declaration, the [183]Courts can in any case interfere, need not now be determined, since it. is very clear that we would not be justified in holding that the supplying of the inhabitants of a town with pure fresh water is not a public use. It is equally clear that the plaintiff is authorized to exercise the right of eminent domain in behalf of such use. Section 1001 of the Civil Code provides: “ Any person may, without further legislative action, acquire private property for any use specified in Section 1238 of the Code of Civil Procedure, either by consent of the owner or by proceedings had under the provisions of Title VII, Part III, of the Code of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in such title is ‘an agent of the State,’ or ‘a person in charge of ’ such use, within the meaning of those terms, as used in such title.”

The only question about which we have had any serious doubt is whether the statute authorizes the condemnation of the particular kind of property here sought to be taken.

Section 1240 of the Code of Civil Procedure defines the property which is made subject to the exercise of the right of eminent domain, and Section 1239 classifies the estates and rights in lands subject to be taken for public use, as follows: “ 1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine. 2. An easement, when taken for any other use. 3. The right of entry upon and occupation of lands, and the right to take therefrom such earth, gravel, stones, trees, and timber as may be necessary for some public use.”