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Show RIGHTS-OF-WAY FOR WATER CONTROL AND RELATED PURPOSES 277 water is by conveying it by means of ditches across his neighbor's lands which intervene between his own and the source from which he obtains his supply." The court held that the condemnation was for a public use, as these words mean a use that will promote the public interest and develop the State's natural resources. The United States Supreme Court agreed with the State court as to validity of the statute in question. But the Court cautioned that it was not to be understood as approving the broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the State's natural resources.275 What the Court held was that differences of climate and soil, which required different laws in the arid States from those in the humid ones, must be recognized.276 Having reference to the physical conditions obtaining in Utah, the use sought to be condemned under the circumstances of this case was believed to be a public one, even though it was simply for the purpose of obtaining water for an individual. This was because it was absolutely necessary to enable this individual to make any use whatever of his land.277 So the Supreme Court held that on the facts appearing in the record, the statute permitting enlargement of the neighbors' ditch, with compensation to them, was within the legislative power of the State.278 Thus, in Clark v. Nash, the United States Supreme Court sustained the constitutional soundness of a statute of a Western State, in the economy of which irrigation was a vital factor, authorizing an individual to condemn the right to enlarge his neighbor's ditch, as a facet of the whole concept of individual condemnation of rights-of-way over private lands. The same line of reasoning with respect to public use was applied to construction and operation of roads and tramways in the mining industry.279 Right-of-way for new ditch.-In nearly all Western States, an individual may condemn an easement across lands intervening between his own and the source of his water supply for the purpose of conveying to his own property the water to which his appropriation entitles him. 275 Clark \.Nash, 198 U.S. 361, 369 (1905). 216Id. at 367-368. 277Id. at 369-370. 278/d. at 370 279Highland Boy Gold Min. Co. v. Strickley, 28 Utah 215, 230-236, 78 Pac. 296 (1904), affirmed, 200 U. S. 527 (1906). The Utah court said, 28 Utah at 232, that: "The mining industry in this State is second in importance only to that of irrigation, and this court held in the case of Nash v. Clark, supra, that the construction and operation of irrigation ditches is a public use." In affirming the judgment of the State court, the United States Supreme Court said, 200 U.S. at 531 that: "In the opinion of the legislature and the Supreme Court of Utah the public welfare of that State demands that the aerial lines between the mines upon its mountain sides and the railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are wrong." |
