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Show 276 APPROPRIATION OF WATER of water to consumers. The commercial irrigation company-either public utility or private contract type of water enterprise-fitted into this concept. Indeed, these declarations relating to "sale, rental, or distribution" were made to facilitate the distribution of water for hire. That the State had the power to authorize privately owned organizations, created and operated for public service, to condemn land easements to effectuate this public use of water for irrigation purposes was recognized and established in the early decades of modern irrigation in the West.271 Condemnation by Individual for His Own Use Although, as the Montana Supreme Court pointed out in 1909,272 the State has no power to authorize an intending appropriator to enter private land without formality for the purpose of appropriating water there, it does have power to authorize him to do this by acquiring an easement under the law of eminent domain. And it may make such authorization to an individual whether for the purpose of supplying water to others for hire, or to acquire a water supply for his own private use. The basis for this admittedly long step forward is the recognition that, under typical western conditions, the irrigation of one's own land is so important to the welfare of the community and eventually to that of the State as to justify the declaration that it is a public use. Constitutional foundation for the principle.-This was established by the United States Supreme Court in Clark v. Nash, decided in 1905, affirming a decision of the Utah Supreme Court.273 At issue was the validity of a statute of the State authorizing any person, corporation, or association to enlarge an already constructed canal belonging to another party by compensating the owner for the damage so caused.274 The constitutional issue involved was whether the land in question was being condemned for a public or for a private use. The State court pointed out that the most vital of all industrial questions with which the people within the arid region had been confronted since the advent of the early pioneers was the method of appropriation and use of water. "The natural physical conditions of this State are such that in the great majority of cases the only possible way the farmer can supply his land with 271 See discussions of these public water services by Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 2, § § 1245 to 1328 (1911); Kinney, C. S., "A Treatise on the Law of Irrigation and Water Rights," 2d ed., vol. 3, § § 1490 to 1529 (1912). A study of the practical usefulness of the commercial type of irrigation organization was made by the author in 1929: Hutchins, Wells A., "Commercial Irrigation Companies," U.S. Dept. Agr. Tech. Bull. 177 (1930). 212Prentice v. McKay, 38 Mont. 114, 117, 98 Pac. 1081 (1909). 213Clark v. Nash, 198 U. S. 361 (1905), affirming 27 Utah 158, 163-168, 75 Pac. 371 (1904). 274Utah Rev. Stat. § 1278 (1898), now Code Ann. § 73-1-7 (1968). |