OCR Text |
Show 280 APPROPRIATION OF WATER (2) Judicial constructions of statutes. In many decisions the courts have dealt with constructions of the ditch right-of-way laws, a few of which may be cited. In 1899, the Montana Supreme Court declared that the taking of private property from its owner can be done only pursuant to the procedure provided by the legislature therefor and with always "a rigorous compliance with the provisions of the statute, which points out when, in what manner, and under what conditions" the property can be taken.298 The Oregon Supreme Court holds that authority to condemn a right-of-way over the land of another for the purpose of obtaining a particular supply of water depends upon the applicant's right to make a lawful appropriation of such water.299 In a New Mexico case, it was held that the owners of a community acequia, whether private parties or a community acequia corporation, had the right to condemn a right-of-way for a ditch. And as irrigation was a public purpose, a city had no express or implied right to condemn the acequia for another public purpose.300 This case was distinguished a few years later in a case in which it was held that a city had the power to condemn property already devoted to a public use, provided the first public use was not obliterated or destroyed, the property to be used jointly.301 In a recent case,302 the New Mexico Supreme Court held that under the State's constitution and legislation a right of way to lay a pipeline to a watercourse to make beneficial use thereof under an appropriative right could be acquired by eminent domain by a private corporation for coal mining purposes. The court indicated that the same principles would be applied to irrigation and other beneficial uses of water.303 The Nebraska statute declares that "All persons" have authority to condemn rights-of-way over and through the lands of others for ditches, dams, and other necessary works for the storage and conveyance of water.304 However, the State supreme court has held that the right of eminent domain cannot be exercised for purely private purposes, such as by an individual for 298 Glass v. Basin Min. & Concentrating Co., 22 Mont. 151, 155-156, 55 Pac. 1047 (1899). In view of the declaration in Mont. Const., art. Ill, § 15, that the right-of-way over land of others for necessary water conduits and structures is a public use, the supreme court held that the right to appropriate water on the land of another may be acquired by condemnation proceedings: Prentice v. McKay, 38 Mont. 114, 118, 98 Pac. 1081 (iyO9). See Cocanougher v. Zeigler, 112 Mont. 76, 79,112 Pac. (2d) 1058 (1941). 299Henrici v. Paulson, 134 Oreg. 222, 224, 226, 293 Pac. 424 (1930). Oreg. Rev. Stat. § 772.305 (Supp. 1963). 300Albuquerque v. Garcia, 17 N. Mex. 445, 449-454, 130 Pac. 118 (1913). N. Mex. Stat. Ann. § 75-1-3 (1968). 301 Raton v. Raton Ice Co., 26 N. Mex. 300, 307, 191 Pac. 516 (1920). 302 Kaiser Steel Corp. v. W.S. Ranch Co., 81 N. Mex. 414, 467 Pac. (2d) 986 (1970). 303Id. at 467 Pac. (2d) 990-991. 304Nebr. Rev. Stat. § § 46-246 to -248 (1968). |