Arizona republican., 1891-01-26
EMINENT DOMAIN.
Continued from First Page.


 latures of various States have clothed private corporations and individuals with the power ol eminent domain to make available the extraordinary natu- N ral resources within their borders. N In great number of these instances there Is no participation by the general public, and the public use consists in the purely incidental benefits. The peculiar physical conditions and the great benefit that would result to the general public seemed to justify public policy, authorizing the taking of private property to promote the general welfare 8 Tn such cases.
 In most States, and under ordinary conditions, laws like the mill site acts, | the dam acts and the acts allowing land to be condemned 10 facilitate mining, and for Irrigation, would not be passed ana might not be thought of sufficient puUnc necessity and Importance to be upheld II passed.
 The connIcL Tn the authorities may be accounted Tor Tn the different conditions that exist Tn dIttelent States. The authorues are numerous that sites for manufacturing luay not be condemned, though manufactures are Oi great public uulty, and promote the general welfare in preemlnent degree. But the reason given Is that a suthclent number ol sites can be had by purchase and without the necessity oI condemnation. But dil- terenL ruling prevails where manufact- urlng ls done by water power and mill sites are lew, us We have seen in the cases before referred to.
 Property may be taken under power ol eminent domain where the use is merely amusement or recreation, as for pubic drives or parks" II, Allen, $50 i; , S5 \. H., l34; AS Barber, 9; 5S Mo-, 175; 45 \. Y., 234.
 Speaking oi the power of the State to exercIse the right Of eminent domain in behalf oi railroads, Judge Cooley says: :
 'ln such cases the property is not so much appropriated to the public une as taken tO suDserye some general and i'm portant pubic policy" 35. Mich, 339. Chancellor Kent has written: ''lt the pubic interest can be in any way promoted by the taking of private property, IL must rest in the wisdom of the Legislature to determine whether the benent to the public will be of sui tcient importance to render it expedi- ent for them to exercise the right of eminent domain, and to authorize an
 
 individuals for that purpose" 7 Kent, Com, 34U.
 give due weight to the remark of Judge Cooley, that "lt would not be entirely safe" to apply with much lib- erty" the words "In any way" And the further remark of Judge Cooley, that private property may not be taken flor objects which may merely tend to give an aspect of beauty, etc. "
 l have looked into the various in stances ot the exercise of the right and power Oi eminent domain in the cases before cited to ascertain whether 1t Is necessary that the property appropriated should be actually appropriated to q direct public use, or to some use in which the general public might par ticlpate, as in the cases Of rail- roads and canals, or whether the requirements of the COnsti- tuition might not be met, if the use was Tn pursuance Of some general and important pubic policy. In other words, may q State or Territory in view ol its natural advantages and resources and necessities, leglsiaLe in.such a way, exercising the power of eminent do- main, that these advantages and re- sources may receive the fullest develop menL for the general welfare, the laws being general III their operation. This Territory Is vast In extent and rich Tn undeyelUped natural resources. Noun talns ana deserts are not an inviting prospect when viewed by the stranger Tn transit, But the mountains abound In the precious metals, gold and silver, the Jewels Ol sovereignty" and the deserts may be made 10 bloom and blossom as the rOse." The one great want Is water. lth tnIs resource ol nature made available, the mountains ant the deserts may be made to yield fabulous wealth and Arizona become the home oI vast, prosperous and nap py people.
 but with water in this Territory "crlbbed, cOrnered and confined" 1t VIII continue and remain the mysterious iahu ol arid desert plains, and barren hili sides and bleak mountain peaks.
 The Legislature of the Territory seeing what was apparent to all, adopted at an early day a policy, "a general and i'm portant public policy" That policy was to protect against private ownership and monopoly, the one thing indispensable to the growth, development and pros- perity Ol the Territory, the element that would serve to uncover the gold and silver hidden in the hills and mourn tains, and transform the desert into a garien.
 Sec. 22 of the Bill of Rights provides {:
 All sIreamS, lakes and ponds Oi water capable ot being used for the purposes ol navigation or irrigation are hereby declared to be public property, and no individual or corporation shall have the right to appropriate them exclusively to their own private use, except under such equitable regulations and restric- tons as the Legislature shall provide for that purpose"
 Sec. 31OS R. S. provides:
 "The common law doctrine of riparian rights shall not obtain or be of any force or effect in this Territory" Then provision is made for public and private acequias.
 Sec. 32Ol R. s. A.
 ''All the inhabitants of this Territory who own or possess arabic or irrigable lands shall have the right to construct public or private aCequias and obtain the necessary water from the same from any convenient river, creek or stream of running water"
 Sec. 32O2 provides:
 Whenever such public or private acequias shall necessarily run through the lands of any private individuals not benefited by said acequias the damage resulting to such private individuals on the application. of the party interested shall be assessed by the Probate Judge of the proper county in a summary manner"
 These provisions were enacted early in the history of the Territory, and probably existed as they are now when the Territory was a mart of Old Mexico