Shoshone journal. [volume] (Shoshone, Idaho) 1884-1931, 1903-02-06
Journal
Special
THE SHOSHONE FALL CASE.
Following is the Decision as Handed
Down by the Supreme Court.

for Lincoln county in the two con
domination cases brought against
the state and others for right OF
way for the electric power plant
which it is proposed to establish
at Shoshone Falls.
The state owns land which it is
claimed is necessary to be occupied
in part by the plant. After various
negotiations between the state and
the power people for the land had
fallen through or been abandoned,
these condemnation suits were
brought by the power project pro-
moter, H. L Hollister, and in the
lower court damages were assessed
in favor of the state in the sum OF
$500 in each case. The cases were
appealed to the supreme court.
They were consolidated in the
hearing and are both covered by
this decision. The opinion is by
Justice Ailshie.
One contention of the state was
that this was an action brought
against the state without its con-
sent for which it was claimed, there
was no authority in law. In pass
ing on this point the opinion, after
stating that the provision of the
constitution authorizing supreme
courts to hear cases and enter re-
commendatory judgements against
the state continues:
Turning to the statutes of 1887,
under the title of Eminent Domain"
we find in section 52l2 the following
language: 1.-THE private property which
may be taken under this title includes:
LANDS belonging to this state not
appropriated to some public USE 1t is
true, as urged by counsel for the state.
admission of the state and adoption of
the constitution, but we do not think it
conflicts in any manner with the consti-
tuition. This statute alone, however,
would not authorize this action; but
section 10. of act approved February 20.
1899, session laws '99, page ISL. provides
as follows: The right of wav over and |
upon any and all lands owned or con-
troled by the state vi Idaho is hereby |
granted to any and all persons for the
purpose of constructing and maintaining
any ditch, canal. conduit or works for
the diversion or carving of water for
any beneficial use. Provided, that no
property shall be taken under the pro-
visions of this section until just COM
pensation shall be paid therefor, to be
ascert ined in the manner prescribed by
law for the taking of private property
for public use.'
From this latter provision it will be
zen that all the provisions of the code
O civil procedure of the REVISED statutes
1887, are made to apply against the
state as well as against private parties
and this, to our minds. confers specific
authority to maintain an action of this
character and provides all the procedure
therefor.
Again 1t is urged by appellant that
the court had no jurisdiction of the sub
6 a.. l,ot |
to Is inclusive of act of congress of ,
July 3, 1890, known as the Idaho admis- |
on act, granting sections J6 and 80 III
e ch township to the state for school
purposes and providing that such lands
shall be disposed of only at public sale.
the proceeds to constitute permanent
school fund prohibite the taking of
t property under the claim of eminent
domain. Under this act is it claimed
that the state cannot authorize and dis
position of such lands other than at
public sale and that therefore the court
had no jurisdiction of an action TO con-
denim any such lands to a public use.
In support of this contention the
learned counsel of the state cite: (27 A
and E. OF law. p. 226, and Hame VS.
Missouri, IS How. 1876; 10 L. Ed. P. S.
,34)
I'VE have examined these authorities
and do not think they support this con-
.ention. When Idaho became state it
1t once necessarily assumed the power
If eminent domain. one of the inalien
Ible rights of sovereignty, and that
light, we take it. may be exercised owe
III IL