Albuquerque evening herald. [volume] (Albuquerque, New Mexico) 1911-1914, 1913-04-01

IN tho orders 4. New Mexico. being
Oao OF tho arid states OF the Union.
and tho successful cultivation OF
cropa depending almost exclusively
upon the ability Of the land owner 10
procure wnior for the irrigation OF his
lands. the right 20 DO 20, ana 90, Tor
such purpose, construct bitches and
canals across lands Of his nelghbor,
has been recognized for many years
by tho law making power Of the ter
ritory. (now stated. Ia 1851 the Tor
ritoriHi Legislature passed an act de-
clnrlng that "tho irrigation Of the
fields should be preferable 20 all 9TH
ors," and forbidding any inhabltnnt
OF the Territory 20 construct any
building 10 the impeachment OF tho ir-
rlgation of lands or fields. Sec. I,
c. j.. 1897. In 1874 ar act was passed
giving 70 an the inhabitants 81 the
Territory OF New Mexico. the right TO
construct either private or common
accauias through the lands OF others,
requiring however. compensation 70 be-
made for al damages done 500 Sec
tlon % G. T.. 1881; and the next sue
cccding section provides for the con
demnation Of a right Of way for such
ditch or accuula. By Section 81
Chapter 80. s. l.. 1907. the right 20
condemn lands for irrigation bitches
was conferred upon "the United
states. the Territory Of New Mexico.
or any person. firm, association or
corporation"
The ditch in question, az shown vs.
the complaint, was community
aceuuia. aud under Section 3. Chapter
Z. e.. l.. 1897. was a corporation. by
the sections quoted from the statutes
all Sew Mexico. Il H. apparent that The
owners Of this ditch whether pri-
| Nnto parties. or % corporation under
said SECTION s. had the right 10 con-
denim right Of way Tor q ditch. u
appenrs thss the ditch had been IN
use Tor pcrhnps fifty years. but the
/ record docs not disclose la what man
nor or method the right ct way FOR
I the snid ditch Wns originally acquired;
nor is % material. for az said hy the
court in ST. Paul rnlon Depot Go. W..
! Chy OF ST. Paul 80 MINI. $50. The
question for the Court when Il arises
in judicial investigation in such
cas"s iS not how the tand was nc-
/ uuired. but how IL is used. or whether
/ 70 o. necessary for a public purpose.
/ ia re Water gommrs. 90 y. y. ii3.'
/ Therefore the court ~ mot concerned
as 60 how the right was originally ac-
quircd 20 conduct water Through he
uceduia in question
ln 1904 the state of rtah bad "a
statute comforting upon any person
! or corporation the right Co condemn
/ % right of way Tor AN lrr cation ditch
across pr.,at" property. THE plain
ItU. Sash. sought by condemnation
, 90 enlarge private ditch owned by
/ CLARK and others. Condemnation
/ was awarded and the cas-, was taken
. 60 the supreme Court aud the con-
tDntion here urged was that the use
/ to hc made ot the property sought to
/ hc condemned was strictly private
/ aud In no sense public use. and
that both under the constitui IA OF
i the United states and the constitution
al Utah. which provide that "Wivpte
I property was not to hr taken or dam
I ngrd for public usc without iusi com"
prusutiun" condemnation could not
| ho awarded because the constitutional
| provision meant that private property
could not bee taken FOR strictly a pri-
waite use, and the question as deter
! mined hy thr court, AS stated. was.
| WAS IN condemnation VI appellant -
4 land ben this case 40 law and n TACT
/ tor public uscr" The court SAYS.
| In view oI the physical ANA climatic
! conditions in this state. and In the
! tight cot tho history Of the arid west,
| which shows marvellous results ac-
! cumplish,d hy irrigation, tu hold that
] the use of water for irrigation is not
/ in any sense o. public use, ana thereby
| place II within the power of a few
| individuals to place msurmountablc
! barriers iu an. way ct the future wci-
! urc and prosperity OF the state.
would be- tu give tu the term public
4 use altogether too strict ana narrow
an Interpretations ana one We 81" not
thiuk is contemplated hy the tonstl-
tuition" Nnsh VS. Ciark. 20 Otdh'
I5S. Thu court in the east above cit
ed sustained the Judgment of IN"
lower court awarding condemnation,
and from the said Court an appeal
was taken to the supreme Court ot
/ the tnued States. where the Judgment
&C ia. lovcF court was sustained. and
thu rcasuniug upheld See clark W..
/ Sash, i9N g.. 3 3Gl
our Territorial supreme C"urt ~
thc case of The Albuquerque Land a
lrr CATION Company vg. Gutierrez, ID
\. NJ. i77 said m b. undoubtedly
true that th. diversion and disui
butlnu or vut.r for irrigation ana
other domestic purposes la New Mex
lrn. aud other Western states where
7 irriuutinu Be- necessary. RI PUN
purpose
These ,a, o would scoin tu dispose
of tho question as to tho public use