The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1913-02-03

cities taking over system of water |
works. gas works and other public
utilities, cemeteries, highways and
perhaps other public uses, provide for
the appointment of commission
commonly called jury. In some In
stances Of one man, in other instances
three men, in still others six, and
still Others twelve men, Such awards |
thus made while only preliminary are
final and binding unless there is an
appeal. But In every instance to
meet the requirements Of the Iowa
constitution In such cases OF taking
private property for a public use. an
appeal Is allowed the party feeling
aggrieved to the district court of the
county-a court provided for by the
constitution, in which court either
party on demand is given the right
OF trial to common law jury OF
twelve men; such a Jury as is meant
by the Iowa constitution when the
right OF trial by jury Is given. So
that am of the opinion that the mat
ter OF procedure prior to the time the
case is lodged in the district court on
appeal is not at all pivotal or decis-
i've. 1t is all in the nature sof a pro-
cess to secure the parties trial in
the district court with the aid OF
i jury. This is illustrated by the Gin
cinnati postoffice case of Kohl W..
United States, 81 U. S., 367.
/ A statutory declaration in any giv-
en- case authorizing the taking OF
i property for public use, while not
binding. is persuasive, unless clearly
and without doubt 1t is beyond the
constitution. Whether this property
will be subject to state and municipal
taxation is not before the court. Pos.
sibly (but not deciding the question),
!, because governmental agency these
] improvements canno. be taxed, nor
levied upon by writ Of attachment or
!; execution against the Power Com
pany. But all this is here of little i'm
1 portance, for the reason that this is
court Of equity with power to re-
i quire, on showing, an additional de-
post to be placed in the registry of
this court, or a bond with surety t.
1 meet any award that in the end may
/ be given Hagerla for his land. The
authorities show this work as one
4 for public use. Carrouthers vs.. Phil
4 adelphia, 11S Pac. Rep. 46S; Helena
/ Power Co. Us. Spratt, 50 Montana, 19S
4 6 L. r. A., N, s., 500 (ss Pac. Rep,
/ 7T3); Hollistsr vs.. state, II Pac. Rep,
Sal: Gas Light VS., Richardson, e3
Barbour, 43T; Dodge VS.. Council
Bluffs, 81 Iowa. $50, holding that a
foreign corporation had the power
of eminent domain in the construc-
ton of water works under ordinance
of the city. A statute Of Wisconsin
was enacted to improve navigation
and to create hydraulic power for
4 sale. 1t Was held that the company
building 1t had the power of eminent
domain, It being for public use. In
4 (t22 N. w. Rep. S01). In Walker vs..
Shasta Power Co. 160 Fed Rep, $50
! &C. C. A., 9th circuit). it was hold that
Il in building a ditch and flume To
convey water in furnishing electricity
to the public generally for lighting,
power and heating purposes, gives the
! right of eminent domain.
i Sisson VS.. Board of Supervisors,
lbs Iowa. 442. holds that private prop
erty may be taken In connection with
+ a ditch constructed to drain agricul-
tural lands
In Head VS.. Amoskeag, 11S U. S., q
1t was held that a state statute auth.
Z orizing a person to erect on his own
4 land mill and dam across stream
not navigable, paying to the o.
of the land overflowed, was the TAX
ing of property by due process oil
law. The holding of the court or
the facts in the case and the aushori
ties cited is strongly applicable to the
case at bar.
Strickiey vs.. Highland Boy, 200 u
S., 527 sustained the supreme court
of Utah Us Pac. Rep, 1860, In hold
ing that private property could be
taken under the power Of eminent dc
main for a right. of-way for bucket
zine dcIoss the property OF announcer IN
carrying ores from the mountain to
railroad station.
HOLSTER vs.. state. II Pac. Rep.
541, the supreme court Of Idaho held
that the power OF eminent domain i
given to obtain lands for the improve
ment of water power In which the
power is to generate electricity for
light and power.
These cases and cases therein cited
show that the power of eminent Go
main has been lawfully exercised In
a variety of cases such as ditchine
and for irrigation and to aid in min
ing, Strengthening streams. widening
and deepening channels. and perhap:
in other instances, showing thereb,
that the courts are keeping pace Will
the progress OF our institutions ant
improved facilities for business.
But a much broader view than the
foregoing should be and is taken IL
A. AZ J. vi -