Lindsay Irrigation Co. v. Mehrtens

Harrison, J. The plaintiff is incorporated under the laws of this state for the purpose of supplying water for irrigation and domestic use, and other purposes to which water may be put, to the farming neighborhood surrounding and lying contiguous to the town of Lindsay, in the county of Tulare, and seeks in this proceeding to condemn certain lands for the purpose of constructing a ditch or canal through which to conduct water from Kaweali River to said farming neighborhood. Judgment was rendered in its favor for a condemnation of the land sought to be appropriated by it, and fixing, the amount of damage which should be paid by it to each defendant for the land taken from him. In their appeal from this judgment, the argument of the appellants is directed chiefly to an attempt to show that the land to which the plaintiff seeks to conduct the water is not a farming neighborhood, and that the supplying of water to that land is not a public use, and therefore the plaintiff cannot exercise the right of eminent domain for the purpose of taking their lands.

The right of the state to take private property for public use is an inherent element of its sovereignty, and its exercise is restrained only by the limitations contained in the constitution. The right to take the property is not conferred by the constitution, but is to be exercised in conformity with the will of the sovereign, as expressed by the legislature, and such right can be exercised only in behalf of those public uses which the legislature has authorized, and in the mode and with the limitations prescribed in the statute which confers the authority. Whoever, under the claim of an agency [679]of the state, would deprive the owner of any of his property by virtue of the exercise of eminent domain must show not only that the use for which he seeks to appropriate it is a public use, but also that the legislature has authorized the taking of property for that particular use, and in the mode in which he is seeking to appropriate it. The legislature must designate, in the first- place, the uses in behalf of which the right of eminent domain may be exercised and this designation is a legislative declaration that such uses are public, and will be recognized by courts; but whether, in any individual case, the use is a public use must be determined by the judiciary from the facts and circumstances of that case. '

Section 1238 of the Code of Civil Procedure provides that “the right of eminent domain may be exercised in behalf of the following public uses: ¡ ... 4. ... . Canals, ditches, flumes, aqueducts, and pipes for public transportation, supplying mines and farming neighborhoods with water.” This is a legislative declaration that the supplying of water to a farming neighborhood is a public use, and such declaration must be regarded as falling within the scope of legislative duty in providing for the public welfare. (In re Madera Irrigation District, 92 Cal. 309-311.) “If the subject-matter of the legislation be of such a nature that there is any doubt of its character, or if by any possibility the legislation may be for the welfare of the public, the will of the legislature must prevail over the doubts of the court.” (Id.) In a state like California, where so great a portion of the land is susceptible of agriculture, it may well be said, in view of the climatic peculiarities and topographical distribution of the land, that the legislature is acting for public welfare in making provision for supplying its many farming neighborhoods with water. “ We are not prepared to say that the supply of water to ‘ farming neighborhoods ’ for irrigation (and the code evidently means for irrigation) may not be for a public use. Indeed, in view of the climate and arid soil in parts of the state (for this object cli«