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Show RIGHTS-OF-WAY FOR WATER CONTROL AND RELATED PURPOSES 27 5 the total for the West, as contrasted with 2 percent for Nebraska, 13 percent for Montana, 19 percent for California, and 21 percent for Colorado.266 Before this time, considerable attention to commercialized irrigation development had been paid elsewhere in the West. The California and Montana constitutional declarations were made in 1879 and 1889, respectively. In 1888, the Colorado Supreme Court stated that: "The constitution unquestionably contemplates and sanctions the business of transporting water for hire from natural streams to distant consumers."267 During the latter part of the 19th century, there was much financing of western land and water development projects on a commercial scale. This type of irrigation financing eventually proved to be infeasible and practically ceased during the first hah0 of the present century.268 However, in its conclusion in the Lake Koen case as to the value of irrigation in the State's economy, the Kansas Supreme Court took a forward looking view. In 1935, in the course of holding that the State may appropriate private property under its inherent power of eminent domain, the New Mexico Supreme Court observed that "the question of the necessity and expediency of the taking is a legislative question," but that "Whether the use to which the property is to be put is a public use is a judicial question." The character of the use involved as public had been determined by the Territorial supreme court long previously.269 Three decades earlier, the Utah Supreme Court said that "while it is for the legislature to determine, in the first instance, whether the use is a public use, and to provide the means of condemnation, yet the great weight of authority holds that the declaration of the Legislature is not final, and that it is ultimately for the courts to determine whether a particular use is public or not."270 Condemnation by Organization for Public Service Once the principle that the use of water for irrigation is a public use was established by constitutional or legislative mandate or court decree, the way was paved for according to public and public-service organizations, that had been vested with the power of eminent domain, the right to condemn necessary rights-of-way for canals as well as sites for reservoirs, buildings, and structures needed for effectuating the storage, diversion, control, and delivery 266 U.S. Bur. Census, Thirteenth Census of the United States: 1910, Irrigation of Agricultural Lands, Table 14, p. 845. 267 Wheeler v. Northern Colorado Irr. Co., 10 Colo. 582, 588, 17 Pac. 487 (1888). 268 See Teele, R. P., "The Economics of Land Reclamation in the United States," pp. 148-152 (1927); Hutchins, Wells A., "Commercial Irrigation Companies," U. S. Dept. Agr. Tech. Bull. 177 pp. 6-14 (1930); Hutchins, Wells A., Selby, H. E., Voelker, Stanley W., "Irrigation-Enterprise Organizations," pp. 34-38, 78-79, 81-82, 84, 89-91 (1953). 269State ex rel. Red River Valley Co. v. District Court, 39 N. Mex. 523,527-528, 51 Pac. (2d) 239 (1935). 270Highland Boy Gold Min. Co. v. Strickley, 28 Utah 215, 230-231, 78 Pac. 296 (1904). |