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Show RIGHTS-OF-WAY FOR WATER CONTROL AND RELATED PURPOSES 281 irrigation of his own land.305 In its holding, the Nebraska Supreme Court distinguished the decision of the United States Supreme Court in Clark v. Nash,306 as limited by the highest Court itself to the circumstances of that case, wherein reference was had to the natural conditions of an arid State such as Utah. The Nebraska court pointed out the vast difference between the physical configuration and climatic conditions of Utah and of Nebraska. Under local conditions, it was held, the right of eminent domain rests upon the right to the control of rates by the public. Application of the statutory sections to irrigation districts and public service companies was conceded. What the court held was that the statutes could not, with due regard to the right of private property, be applied to circumstances in which a mere private interest is subserved. The right of an individual to condemn a right-of-way across the land of another is declared by the legislature and sustained by the courts of Idaho.307 However, the supreme court denied the right to condemn what it termed "a novel use of a canal system belonging to others."308 The applicants in this case proposed to discharge water appropriated by them into the Low Line canal of Twin Falls Canal Company, and to pump a like quantity of water out of the main canal of that company at a point on the main system far above the point of discharge into the lowland canal. One cannot condemn the right to use a small part of a canal of another at a lower point, the court held, to discharge water into it and another small part at the higher point to pump the water out. "No legal fiction can support the theory that the water to be taken out of respondent's main canal is the same water as that proposed to be appropriated by appellants and placed in the Low Line Canal." Right to enlarge another's existing ditch.-In addition to authorizing an individual to condemn a right-of-way across his neighbor's land for a new ditch from the source of supply to the place of use, a number of State statutes provide that in the same way he may acquire the right to enlarge or to use an existing ditch on the intervening land, in common with the former owners, upon payment of proper compensation.309 305 Vetter v. Broadhurst, 100 Nebr. 356, 360-363, 160 N. W. 109 (1916), cited with approval in Onstott v. Airdale Ranch & Cattle Co., 129 Nebr. 54, 58-59, 260 N. W. 556 (1935). *°6Clark v. Nash, 198 U. S. 361, 367-370 (1905), affirming 27 Utah 158, 75 Pac. 371 (1904). ^Idaho Code Ann. §§ 42-1101 to -1108 (1948). Bassett v. Swenson, 51 Idaho 256, 259-263, 5 Pac. (2d) 722 (1931). 308Berg v. Twin Falls Canal Co., 36 Idaho 62, 64-66, 213 Pac. 694 (1922). 309Cal. Water Code § 1800 (West Supp. 1970); Colo. Rev. Stat. Ann. § 148-3-6 (1963); N. Mex. Stat. Ann. §§ 75-1-3 and 75-5-14 (1968); N. Dak. Cent. Code Ann. § 61-01-04 (1960); Okla. Stat. Ann. tit. 82, § 2 (1970); Oreg. Rev. Stat. § 772.310 (Supp. 1963); S. Dak. Comp. Laws Ann. § 46-8-1 (1967); Utah Code Ann. § 73-1-7 (1968); Wash. Rev. Code § 90.03.040 (Supp. 1961); Wyo. Stat. Ann. § 1-794 (Supp. 1969). |